SEPTEMBER AND OCTOBER 2010

COMMISSION DECISIONS AND ORDERS
09-01-2010 Arizona Materials
09-01-2010 Mosaic Fertilizer, LLC.
09-03-2010 Nelson Quarries, Inc.
09-07-2010 Hawaiian Cement Maui/Concrete & Agg. Div.
09-09-2010 Black Energy, Inc.
09-09-2010 Frost Crushed Stone Company
09-09-2010 Petra Materials
09-10-2010 Vulcan Construction Materials, LP
09-14-2010 Richard C. Budine
09-14-2010 Essroc Cement Corporation
09-14-2010 Austin Powder Company
09-14-2010 Sierra Rock Products
09-14-2010 Casella Construction Inc.
09-14-2010 Climax Molybdenum Company
09-14-2010 Keystone Cement Company
09-15-2010 M & M Clays, Inc.
09-14-2010 Oak Grove Resources, LLC.
09-15-2010 Sherwin Alumina, LP
09-15-2010 Double Bonus Coal Company
09-24-2010 United Salt Corporation
09-28-2010 Bill Smith Sand and Gravel
09-28-2010 Maybell Enterprises, Inc.
09-28-2010 Dynamic Energy, Inc.
09-30-2010 Sumitomo Metal Mining Pogo, LLC.
10-06-2010 Joshua Coal Company
10-06-2010 Marfork Coal Company
10-13-2010 Eastern Associated Coal Corp.
10-20-2010 Trivette Trucking
10-20-2010 Performance Coal Company
10-21-2010 Long Branch Energy
10-21-2010 LG. Everist, Inc.
10-21-2010 Wolf Run Mining Company
10-2202010 Harvey Trucking, Inc.
10-22-2010 Aracoma Coal Company, Inc.
10-28-2010 Oak Grove Resources, LLC.
10-28-2010 Musser Engineering, Inc. &PBS Coals, Inc.

I

WEST 2010-671-M Pg. 1091
SE 2010-712-M
Pg. 1095
CENT 2009-663-M Pg. 1098
WEST 2010-496-M Pg. 1102
KENT 2010-1197
Pg. 1106
CENT 2010-105-M Pg. 1109
CENT 2008-735-M Pg. 1113
SE 2010-819-M
Pg. 1119
YORK 2010-225-M Pg. 1122
LAKE 2010-598-M Pg. 1125
CENT 2010-316-M Pg. 1128
WEST 2010-1052-M Pg. 1131
YORK2010-118-M Pg. 1134
WEST 2010-1072-M Pg. 1137
PENN2010-172-M Pg.1140
SE 2010-744-M
Pg. 1144
SE 2010-788
Pg. 1147
CENT 2009-760-M Pg. 1150
WEVA 2009-1759
Pg. 1155
CENT 2010-635-M Pg. 1159
LAKE 2010-501-M Pg. 1162
WEST 2010-989-M Pg. 1165
WEYA 2007-448-R Pg. 1168
WEST 2010-940-M Pg. 1178
CENT 2009-602
Pg. 1181
WEVA2010-196
Pg. 1185
WEVA 2007-335
Pg. 1189
KENT 2010-1062
Pg. 1209
WEVA 2007-460
Pg. 1212
WEYA 2010-992
Pg. 1220
CENT 2010-673-M Pg. 1224
Pg. 1228
WEYA 2009-804
WEYA 2010-225
Pg. 1245
WEVA2010-267
Pg. 1249
SE 2009-812
Pg. 1253
PENN 2004-152
Pg.1257

ADMINISTRATIVE LAW JUDGE DECISIONS
09-03-2010
09-09-2010
09-13-2010
09-14-2010
09-14-2010
09-17-2010
09-21-2010
09-27-2010
09-28-2010
09-28-2010
09-28-2010
09-29-2010
09-29-2010
10-06-2010
10-07-2010
10-18-2010
10-18-2010
10-25-2010

Lehigh Cement Company, Inc.
Knox Creek Coal Corporation
Wolf Run Mining Company
Khani Company, Inc.
German Alvarez v. Loudoun Quarries, et al.
Performance Coal Company
Sequoia Energy, LLC.
Mach Mining, LLC.
American Coal Company
Michael R. Lee v. Genesis, Inc.
RS & W Coal Company
Parkstone
Mountainside Coal Company
Sumitomo Metal Mining Pogo, LLC.
Nelson Quarries, Inc.
Twentymile Coal Company
Blue Mountain Production Company
Three Way Portable Crushing, Inc.

SE 2009-991-M
Pg. 1304
VA 2008-400
Pg. 1306
WEY A 2007-600
Pg. 1317
CENT 2009-444-M Pg. 1339
VA 2010-266-DM Pg. 1346
WEVA 2010-1190-R Pg. 1352
KENT 2009-1059
Pg. 1361
LAKE 2009-324-R Pg. 1375
LAKE 2010-408-R Pg. 1387
WEST 2009-1063-DMPg. 1392
PENN 2010-523-R Pg. 1403
CENT 2007-273-M Pg. 1406
SE 2008-356
Pg. 1409
WEST 2010-429-RM Pg. 1420
CENT 2009-663-M Pg. 1422
WEST 2008-788-R Pg. 1431
SE 2009-68-M
Pg. 1464
WEST 2008-1138-M Pg. 1486

ADMINISTRATIVE LAW JUDGE ORDERS
09-01-2010
09-13-2010
09-17-2010
10-27-2010

Freedom Energy Mining Company
Carmeuse Lime & Stone
Blue Diamond Coal Company
Sec. Labor o/b/o Harry Lee Beckman v.
Mettiki Coal (WV), LLC.
10-15-2010 Sec. Labor o/b/o Jose A. Chaparro v.
Comunidad Agricola Bianchi, Inc.
10-27-2010 Justin Nagel v. Newmont USA Limited

II

KENT 2010-1352-R Pg. 1495
KENT 2009-949-M Pg. 1509
KENT 2008-592
Pg. 1511
WEVA 2009-1526-D Pg. 1515
SE 2010-434-DM Pg. 1517
WEST 2010-464-DM Pg. 1520

SEPTEMBER AND OCTOBER 2010

Review was granted in the following cases during the months of September and October 2010:
Secretary of Labor, MSHA v. Big Ridge, Inc., Docket No. LAKE 2009-377, et al. (Judge Melick,
August 26, 2010)
Freedom Energy Mining Company v. Secretary of Labor, MSHA, Docket No.
KENT 2010-1352-R. (Judge McCarthy, September 1, 2010).
Performance Coal Company v. Secretary of Labor, MSHA, Docket No. WEVA 2010-1190-R.
(Judge Miller, September 17, 2010).
Secretary of Labor, MSHA v. Sequoia Energy, LLC., Docket No. KENT 2008-1059. (Judge
Feldman, September 21, 2010).

No cases were filed in which review was denied during the months September and October 2010.

l1l

COMMISSION DECISIONS AND ORDERS

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

September 1, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-671-M
A.C. No. 02-02867-191421

v.
ARIZONA MATERIALS

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On February 18, 2010, the Commission received from
Arizona Materials ("AM") a request to reopen a penalty assessment that had become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders; the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

32 FMSHRC Page 1091

On July 16, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000191421 to AM, proposing penalties for five
citations that had been issued to the operator two months earlier. According to AM, it
understood that a former safety manager had faxed the contest form to MSHA, but MSHA shows
no record of receipt of the contest, and informed AM that such a method of contest is contrary to
the directions contained on the assessment.
The Secretary opposes the request on the ground that AM's explanation for the failure to
file a timely contest is conclusory and thus insufficient to establish grounds for reopening the
assessment. The Secretary also states that AM has failed to explain why it did not respond more
quickly to an October 8, 2009~ delinquency notice, but instead waited until after MSHA had
referred the matter to the U.S. Treasury before it made its request to reopen.
Having reviewed AM's request to reopen and the Secretary's response, we conclude that
the operator has not provided a sufficiently detailed explanation for its failure to timely contest
the proposed penalty assessment. Without further elaboration, the operator's explanation has not
provided the Commission with an adequate basis to reopen. Accordingly, we hereby deny the
request for relief without prejudice. See Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May
2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). The words ''without
prejudice" mean that AM may submit another request to reopen Assessment No. 000191421 so
that it can contest the two proposed penalties.

32 FMSHRC Page 1092

At a minimum, the operator must provide the date on which the former official
responsible for this matter left the company, the name of the individual who took over the
responsibility for the contest of penalties, and explain why it has an understanding that its former
Environmental Health and Safety Manager faxed a request to contest the citations to MSHA, and
why AM did not file a motion to reopen as soon as it was alerted to the delinquency by the
MSHA delinquency notice dated October 8, 2009. AM should also obtain an affidavit from the
former Environmental Health and Safety Manager or explain why it cannot obtain such an
affidavit. Any amended or renewed request by AM to reopen Assessment No. 000191421 must
be filed within 30 days of the date of this order. Any such request filed after that time will be
denied with prejudice.

Robert F. Cohen, Jr., Commissioner

qrsl

Patrick K. Nakamura, Commissioner

32 FMSHRC Page I 093

Distribution:
Lindsay Balmer
Arizonia Materials
3636 S. 43ro Ave.
Phoenix, AZ 85009

/

.

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

32 FMSHRC Page 1094

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

September 1, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-712-M
A.C. No. 08-00835-209758

v.
MOSAIC FERTILIZER LLC

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

§ 801 et seq. (2006) ("Mine Act"). On May 3, 2010, the Commission received from
Mosaic Fertilizer LLC a motion by counsel to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
On May 21, 2010, the Commission received a response from the Secretary of Labor stating that
she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. · If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1095

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

~£~

M Lu~dan, Ch~an

Mic

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1096

Distribution:
Mark N. Savit, Esq.
Patton Boggs LLP
1801 California Street, Suite 4900
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1097

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

September 3, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2009-663-M
A.C. No. 14-01477-191032
Docket No. CENT 2009-664-M
A.C. No. 14-01635-191033

v.
NELSON QUARRIES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"}. 1 On July 27, 2010, the Secretary of Labor filed two motions
to approve settlement in these proceedings. The motions to approve settlement involved Citation
Nos. 6447701 and 6447705, which had been issued to Nelson Quarries, Inc. ("Nelson") by the
Department of Labor's Mine Safety and Health Administration ("MSHA"). On July 28, 2010,
Administrative Law Judge Priscilla Rae issued two decisions granting the motions and ordering
Nelson to pay penalties in the sum of $560 in accordance with the terms of the settlement
agreements.
On August 12, 2010, the Judge received from Nelson motions to vacate both decisions
approving settlement.2 In the motions, Nelson asserts that it did not agree to settle citations in the
manner described in the settlement agreements filed by the Secretary and that its representative

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers CENT 2009-663-M and CENT 2009-664-M, both captioned Nelson
Quarries, Inc., and both involving similar procedural issues. 29 C.F.R. § 2700.12.
2

In addition, on August 4, 2010, the Judge received in Docket No. CENT 2009-664-M, a
Motion to Settle, in which Nelson's representative states that, after considering the "proposed
settlement offers" proffered by MSHA, the operator believes that Citation No. 6447705 should
be vacated.
32 FMSHRC Page 1098

had informed the Secretary's Conference and Litigation Representative ("CLR") before the
settlement motions were filed that Nelson had not yet approved of any proposed settlement.
The Judge's jurisdiction over these proceedings terminated when she issued her decisions
approving settlement on July 28, 2010. 29 C.F.R. § 2700.69(b). Relief from a Judge's decision
may be sought by filing a petition for discretionary review within 30 days of its issuance. 30
U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem Nelson's motions to vacate to constitute
timely filed petitions for review, which we grant. See, e.g., Middle States Res., Inc., 10
FMSHRC 1130 (Sept. 1988).
The Commission has made clear that "[s]ettlement of contested issues is an integral part
of dispute resolution under the Mine Act." Tarmann v. Int'! Salt Co., 12 FMSHRC 1, 2 (Jan.
1990) (quotingPontiki Coal Corp., 8 FMSHRC 668, 674(May1986)). In this respect, the
Commission has observed that "the record must reflect and the Commission must be assured that
a motion for settlement [approval], in fact, represents a genuine agreement between the parties, a
true meeting of the minds as to its provisions." Tarmann, 12 FMSHR.C at 2 (quoting Peabody
Coal Co., 8 FMSHRC 1265, 1266 (Sept. 1986)); see also Wake Stone Corp., 27 FMSHRC 289,
290 (Mar. 2005) (vacating decision approving settlement where it was ''unclear whether the
parties achieved a true meeting of the minds").
The record in these proceedings includes two letters dated July 27, 2010, from the
Secretary's CLR to Nelson stating that the Secretary anticipates that the Judge would not rule on
the motion to approve settlement for a 10-dayperiod, and that ifNelson believes that the motion
does not correctly state the operator's intentions, Nelson must immediately notify the Judge and
the Secretary. The CLR states that if Nelson does not file an objection within 10 days, the
Secretary would assume that the motion correctly embodies the settlement agreement reached by
the parties.
The July 27 letters indicate that the settlement agreements filed by the Secretary do not
reflect a true meeting of the minds of the parties. Moreover, the representations made by the
CLR are contrary to the provisions of interim Commission Procedural Rule 31, which became
effective on May 27, 2010. See 75 Fed. Reg. 21,987 (Apr. 27, 2010). Commission Procedural
Rule 31(b)(1) provides that the "party filing a motion must certify that the opposing party has
reviewed the motion, and has authorized the filing party to represent that the opposing party
consents to the granting of the motion and the entry of the proposed order approving
settlement."3 Id. at 21,989.
.

3

We note further that, contrary to the CLR's expectation, the Judge acted on the
settlement motions one day after they were received.
32 FMSHRC Page 1099

Thus, it appears from the record that the Judge's decisions granting the Secretary's
motions to approve settlement were based on proffered agreements that had not been ratified by
both parties. See, e.g.• Secy ofLabor on behalfofPendley v. Highland Mining Co, 29 FMSHRC
164, 165-66 (Apr. 2007). Accordingly, in the interests of justice, we vacate the Judge's July 28
decisions and remand this matter to her for further proceedings as appropriate. See RBS. Inc., 26
FMSHRC 751(Sept.2004).

Robert F. Cohen, Jr.~ CommfSsioner

Patrick K. Nakamura, Commissfoner

32 FMSHRC Page 1100

Distribution:
Paul M. Nelson
Representative for the Respondent
P.O. Box 334
Jasper, MO 64755
pnelson@keinet.net
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Pricilla M. Rae
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1101

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

surre gsoo
WASHINGTON, DC 20001

September 7, 2010
SECRETARY OF LABOR.
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2010-496-M
A.C. No. 51-00171-123842

v.

Docket No. WEST 2010-497-M
A.C. No. 51-00192-123798

HAWAIIAN CEMENT MAUI,
CONCRETE & AGGREGATE DNISION

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

§ 801 et seq. (2006) ("Mine Act"). On January 8, 2010, the Commission received from
Hawaiian Cement Maui, Concrete & Aggregate Division ("Hawaiian Cement") a motion by
counsel seeking to reopen two penalty assessments that had become final orders of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On August 1, 2007, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment Nos. 000123842 and 000123798 to Hawaiian Cement,
proposing civil penalties for various citations, including Citations Nos. 6395603, 6392793,
6395608 and 6395606. Hawaiian Cement states that it filed contests of the four citations, and the
contests were subsequently stayed. The operator explains that it was unaware that it was required
to contest the penalties in addition to contesting the citations, and that it did not become aware
that the assessments had become final orders until after it retained counsel. Hawaiian Cement's
General Manager states that the operator has no record of having received the proposed
assessments. In addition, Hawaiian Cement states that it did not receive any delinquency notices
which would have alerted it that the deadline for contesting the penalties had passed.
32 FMSHRC Page 1102

The Secretary opposes Hawaiian Cement's request to reopen. She asserts that the penalty
assessments became final Commission orders on September 15, 2007, and that the request to
reopen was not received by the Commission until January 8, 2010. The Secretary maintains that
because the operator filed its request more than two years after the assessments became final
orders, the request should be denied. The Secretary further notes in part that the proposed
assessments were delivered by certified mail on August 6, 2007, and signed for by Mark Ambre;
that MSHA sent delinquency notices to Hawaiian Cement on November 1, 2007, informing the
operator that it had failed to timely contest the proposed penalty ·assessments; and that MSHA
received a check dated November 17, 2007, with a notation to apply payment to the two subject
cases.
The operator filed a reply to the Secretary's opposition in which Hawaiian Cement
maintains that the Commission should grant its request to reopen. The operator clarifies that
after it received the delinquency letters, it sent payment for the penalties listed on the proposed
assessments, except for those penalties associated with Citations Nos. 6395603, 6392793,
6395608 and 6395606.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable
neglect. 1 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
·held that a Rule 60(b) motion shall be made within a reasonable time, and for reasons (1), (2),

1

Rule 60(b) provides that a court may relieve a party from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence ... ;
(3) fraud . . . ;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
32 FMSHRC Page 1103

and (3) not more than one year after the judgment, order, or proceeding was entered or taken. 2
Celite Corp., 28 FMSHRC 105, 106 (Apr. 2006).
Here, we have been presented with Hawaiian Cement's failure to timely contest the
proposed assessments due to its mistake in believing that it did not need to contest the proposed
penalties if it had already contested the underlying citations. This misunderstanding falls within
the ambit of Rule 60(b)(l). See generally Celite Corp., 28 FMSHRC at 107. However, because
Hawaiian Cement waited more than one year to request relief with regard to the penalties
associated with Citation8 Nos. 6395603, 6392793, 6395608 and 6395606, its motion is untimely.
JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004). Accordingly, we deny Hawaiian
Cement's request to reopen.

Robert F. Cohen, Jr., Coniurlssioner

.
J-~\
~

akamura, Commissioner

2

Rule 60(c)(l) provides that "[a] motion under Rule 60(b) must be made within a
reasonable time- and for reasons (1), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding." Fed. R. Civ. P. 60(c)(l).
32 FMSHRC Page 1104

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

32 FMSHRC Page 1105

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

September 9, 2010
SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2010-1179
A.C. No. 15-19253-209348 5RG

V.

BLACK ENERGY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On June 9, 2010, the Commission received from contractor
Black Energy, fuc. ("Black Energy'') a motion by counsel seeking to reopen a penalty assessment
that may have become a final order of the Commission pursuant to section 105(a) of the Mine
Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
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).
32 FMSHRC Page 1106

On January 21, 2010, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Penalty Assessment No. 000209348 to Black Energy. The record
indicates that the proposed assessment was not received at that time by Black Energy, but rather
only months later, when the contractor requested a copy of the proposed assessment from MSHA
after learning from the agency's web site that it was considered delinquent with regard to paying
the penalties included on the assessment. Black Energy immediately thereafter filed a notice of
contest.
The Secretary states that she does not oppose the reopening of the proposed penalty
assessment.
Having reviewed Black Energy's request and the Secretary's response, we conclude that
the proposed penalty assessment has not become a final order of the Commission because it was
not initially received by Black Energy, and when it was eventually received, the contractor filed a
timely notice of contest. Accordingly, we deny the request to reopen as moot and remand this
matter to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act
and the Commission's Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R § 2700.28.

Robert F. Cohen, Jr., Commissioner

·Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1107

Distribution:

John M. Williams, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alumni Park Plaza, Suite 310
Lexington, KY 40517
W. Christian Schwn~ Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1108

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

September 9, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. CENT 2010-105-M
A.C. No. 41-03721-168103

FROST CRUSHED STONE COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On.October 30, 2009, the Commission received from Frost
Crushed Stone Company ("FCS") a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen ftnal section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1109

On November 5, 2008, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Proposed Assessment No. 000168103 to FCS. FCS states that
it mistakenly paid the assessment after it had a conference on the citations at which MSHA
refused to make any changes to the citations and informed FCS that it was strictly liable. FCS
states that it erroneously believed that it had no other recourse but to pay the assessment. FCS
states that it has been named the defendant in a civil suit involving the incident which is the
subject of the citations and was not aware of the legal consequences of its payment of the
penalties.
The Secretary opposes FCS's request to reopen. She states that the proposed assessment
form, MSHA's regulations, the Commission's Procedural Rules, and the Mine Act all clearly
explain the operator's right to contest the citations and assessment and that ignorance of the law
is not a sufficient basis for relief. She notes that FCS was represented by counsel at the
conference. She also states that FCS failed to explain the 11-month delay in filing its request to
reopen. Finally, the Secretary contends that the subsequent adverse legal consequences ofFCS's
failure to contest the penalty assessment in a timely manner is not a valid excuse for its failure.
FCS replies that its request to reopen is based on Rule 60(b)(3), which includes "fraud
... , misrepresentation, or other misconduct of an adverse party." Fed. R. Civ. P. 60(b)(3). FCS
explains that it was misled by the Secretary's representative and did not understand its contest
rights. FCS explains that it had never contested a citation previously and did not know that it
could contest the fact of the violation and related findings in challenging the penalty assessment.
FCS states that the delay in filing its request to reopen was due to the fact that its misunderstanding only came to light in addressing the related civil suit and that the final order, which is
now the basis of the pending civil suit, could adversely affect its ability to remain in business.
Although FCS claims that it mistakenly paid the penalty assessment because it did not
understand its right to challenge the violations and related findings in contesting the assessment,
it was represented by counsel at the time it had the opportunity to contest the citations and
penalty assessment. Moreover, FCS seeks reopening only after it has been named the defendant
in a civil suit involving the same matter which is the subject of the citations.

32 FMSHRC Page 1110

Based on FCS 's submissions and because FCS waited over 11 months to request relief
with regard to Proposed Assessment No. 000168103, we conclude that FCS has failed to provide
an adequate basis for the Commission to reopen the penalty assessment. See Pinnacle Mining
Co., 30 FMSHRC 1061, 1062-63 (Dec. 2008) (denying relief because operator's excuse was
insufficient); Pinnacle Mining Co., 30 FMSHRC 1066, 1067-68 (Dec. 2008) (same).
Accordingly, we deny FCS's request to reopen.

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1111

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

32 FMSHRC Page 1112

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

September 9, 2010
Docket No. CENT 2008-735-M
A.C. No. 41-04518-157473

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

Docket No. CENT 2008-736-M
A.C. No. 41-04518-140610

v.
Docket No. CENT 2009-612-M
A.C. No.41-04518-147703
Docket No. CENT 2009-681-M
A.C. No. 41-04518-172147

PETRA MATERIALS

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and.Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). 1 On September 5, 2008, July 10, 2009, July 30, 2009, and
August 10, 2009, the Commission received from Petra Materials ("Petra") letters seekitig to
reopen penalty assessments that had become final orders of the Commission pursuant to section
105(a) of the Mme Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers CENT 2008-735-M, CENT 2008-736-M, CENT 2009-612-M, and
CENT 2009-681-M, all captioned Petra Materials and involving similar facts and procedural
issues. 29 C.F.R. § 2700.12.
32 FMSHRC Page 1113

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
On February 14, April 17, July 17, and December 18, 2008, the Department of Labor's
Mine Safety and Health Administration ("MSHA") issued Proposed Penalty Assessment Nos.
000140610 (Docket No. CENT 2008-736-M), 000147703 (Docket No. CENT 2009-612-M),
000157473 (Docket No. CENT 2008-735-M), and 000172147 (Docket No. CENT 2009-681-M),
respectively, to Petra for various citations. On September 5, 2008, the Commission received a
request to reopen Proposed Assessment Nos. 000140610 and 000157473 (Docket Nos. CENT
2008-736-M and 2008-735-M), in which Petra stated that the date to contest the penalties had
passed because it "did not know the procedures."
On September 30, 2008, the Commission received an opposition from the Secretary, in
which the Secretary stated that the operator made no showing of circumstances that warrant
reopening. In addition, as to Docket No. CENT 2008-736-M, the Secretary noted that MSHA
notified Petra by letter dated May 14, 2008, that it was delinquent in paying the proposed
assessment and that Petra failed to explain why it took three months to seek relief.
On January 22, 2009, the Commission issued an order denying without prejudice Petra's
motion to reopen. 31FMSHRC47, 49 (Jan. 2009). The Commission explained that Petra failed
to provide a sufficiently detailed explanation for its failure to contest Proposed Penalty
Assessment Nos. 000140610 and 000157473 and its delay in responding to the delinquency
notice. Id. The Commission further explained that Petra could submit another request to reopen
the penalty assessments. Id.

On July 10, 2009, the Commission received a letter from Petra requesting that "cases
2008158701A and 2008201924A" be reopened. Petra explains that it never received the original
correspondence, so it failed to contest the proposed penalties prior to the 30-day deadline. It
explains that it was unaware that penalties were owed until it received a notice from a private
collection agency that had been contracted by the U.S. Department of the Treasury. The case
numbers referred to by Petra are Treasury reference numbers and refer to Proposed Assessment
No. 000140610 or Docket No. CENT 2008-736-M (No. 2008158701A) and Proposed
Assessment No. 000147703 or Docket No. CENT 2008-612-M (No. 2008201924A).

32 FMSHRC Page 1114

On July 30, 2009, the Commission received from Petra a request to reopen Proposed
Assessment No. 000172147 (Docket No. CENT 2009-681-M). In the request, Petra explains that
the proposed assessment was mailed to its previous address, although "a change of address was
submitted to your office." Petra further states that the operator's address ofrecord at the U.S.
Department of Treasury is listed as "1500 E. Fourth Avenue, and it should be 1600 E. Fourth
Avenue." It notes that it received a document dated September 10, 2008, regarding Docket Nos.
CENT 2008-735-M and CENT 2008-736-M, which showed its correct address so it does not
understand why MSHA's correspondence continues to be mailed to its previous address. 2
On August 4, 2009, the Commission received the Secretary's opposition to Petra's
July 10 motion to reopen. As to Docket No. CENT 2008-736-M, the Secretary notes that the
operator's July 10 reason for its failure to timely contest differed from the reason set forth in its
September 5 request, and that a motion for reconsideration cannot be based on grounds that could
have been raised, but were not raised, in the original motion. The Secretary further states that
MSHA's records show that Proposed Assessment No. 000140610 was delivered to the operator's
address of record on February 22, 2008, and was signed for by P. Cortez, and that MSHA mailed
the delinquency notice. As to Docket No. CENT 2009-612-M, the Secretary states that Petra
makes no showing of circumstances that warrant reopening, and that MSHA's records show that
Proposed Assessment No. 000147703 was received by the operator on April 21, 2008, and signed
for by J. Barlow. Accordingly, the Secretary requests that Petra's request to reopen be denied.
On August 10, 2009, the Commission received a letter from Petra in which Petra requests
that "cases 000157473 and 000140610" be reopened and specifies which citations it wishes to
contest. The operator further states that its managing office was not properly notified of the
citations and assessments because correspondence from MSHA, including delinquency notices,
were sent to a Diamondhead Road address instead of to Petra's office address (1600 E. Fourth
Avenue), which resulted in delays in the operator's response. Petra further notes that the
delinquency notice in Docket No. CENT 2008-736-M was signed for by Patricia Cortez, who
was not an agent of the operator. Petra attached various documents to its request, including a
letter dated July 25, 2008, addressed to MSHA, enclosing payment for the penalty associated
with Proposed Assessment No. 000147703 (Docket No. CENT 2008-612-M), and requesting that
MSHA change Petra's address to 1600 East Fourth Avenue. The operator also attached a letter
from MSHA to Petra at "1500 4th St." enclosing blank MSHA legal identity forms.
On August 14, 2009, the Commission received a response from the Secretary to Petra's
July 30 request to reopen Proposed Assessment No. 000172147 (Docket No. CENT
2009-681-M). In the response the Secretary states that she does not oppose reopening the
proposed assessment. She notes, however, that proposed assessments that are mailed to the
operator's address of record are properly served, and that the operator should take any steps

2

It appears that the September 10 document referred to by Petra is a docketing notice
issued by this Commission, rather than by MSHA.
32 FMSHRC Page 1115

necessary to update its changes of address by submitting an updated Legal Identity Report form
withMSHA.
Proposed Penalty Assessment Nos. 000140610 and 000157473 (Docket Nos. CENT
2008-736-M and 2008-735-M, respectively)
Consistent with the operator's statements, it appears from the record that there may have
been problems with the operator's receipt of Proposed Assessment Nos. 000140610 and
000157473. The Legal Identification Report filed by the Secretary lists Petra's address of record
as a Diamond.head Road address. The operator states that it was not timely in contesting
Proposed Assessment Nos. 000140610 and 000157473 because both proposed assessments and
delinquency notice as to the former had been sent to the operator's previous address. It appears
that the operator attempted to change its address of record with MSHA by letter dated July 25,
2008.
As to Docket No. CENT 2008-736-M, it appears that Proposed Assessment
No. 000140610 (issued on February 14, 2008), and MSHA's notice of delinquency (dated
May 14, 2008) were sent before the operator attempted to change its address with MSHA.
However, Proposed Assessment No. 000140610 may not have been received by the operator ifit
had been signed for by a person who is not an agent of the operator, as Petra alleges.
As to Docket No. CENT 2008-735-M, it appears that Proposed Assessment No.
000157473 was issued on July 17, 2008, close to the time that the operator attempted to change
its address ofrecord with MSHA. The circumstances surrounding the receipt of Proposed
Assessment No. 000157473 are not set forth in the record. Thus, it is possible that the operator
never received the proposed assessment or that the operator attempted to change its address.
before the proposed assessment was delivered to the Diamond.head address.
IfMSHA sent the proposed assessments to Petra's official address of record and the
proposed assessments were received by an agent of the operator, grounds exist for denying
Petra's request for relief. Cf Harvey Trucking, 21FMSHRC567, 568-69 & n.l (June 1999)
(stating that operator is required to notify MSHA of changes of address). If, however, MSHA
mailed the proposed assessment to an incorrect address or if the proposed assessment was
received by someone who is not an agent of the operator, the proposed assessments may not have
become final Commission orders·and Petra's request may be moot.
Having reviewed Petra's motions and the Secretary's responses, we remand this matter to
the Chief Administrative Law Judge for a determination of whether the proposed assessments
became final orders and, if so, whether the final orders should be reopened. The Judge shall
order further appropriate proceedings in accordance with principles described herein, the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

32 FMSHRC Page 1116

Proposed Assessment No. 000147703 (Docket No. CENT 2009-612-Ml
Although Petra requested in its July IO letter that cases 2008158701A (Docket No. CENT
2008-736-M) and 2008201924A (Docket No. CENT 2008-612-M) be reopened, it appears from
the record that Petra erred in requesting the reopening of Docket No. CENT 2008-612-M.
Rather, from its August 10, 2009, correspondence, it appears that Petra had intended to request
reopening of Docket Nos. CENT 2008-735-M and 2008-736-M. In fact, Petra attached a letter to
its July 10 request that appears to be payment of the only proposed penalty set forth in Proposed
Assessment No. 000147703. Accordingly, we find Petra's request to reopen Proposed
Assessment No. 000147703 to be moot and hereby deny it.
Proposed Assessment No. 000172147 (Docket No. CENT 2009-681-Ml
It appears from the record that MSHA sent Proposed Assessment No. 000172147 to an
incorrect address. The operator attempted to change its address with MSHA by letter dated
July 25, 2008, to "1600 E. Fourth Avenue." However, MSHA sent Proposed Assessment
No. 000172147 to "1500 4th St." The operator states that it never received the proposed
assessment until it was faxed to Petra on July 22, 2009. We consider Petra's July 30 request to
reopen to be a timely contest of Proposed Assessment No. 000172147. Therefore, the proposed
ass~sment did not become a final order of the Commission and the request to reopen is moot.
This case, Docket No. CENT 2009-681-M, shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1117

Distribution:
Raul Villa
Petra Materials
1600 E. Fourth Ave.
El Paso, TX 79901
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Peiialty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1118

FEDERAL

MINE

SAFETY

AND

601

NEW

HEALTH

JERSEY

AVENUE,

SUITE

COMMISSION

REVIEW
NW

9500
DC

WASHINGTON,

20001

September 10, 2010
SECRETARY
MINE

LABOR,

OF

AND

SAFETY

HEALTH

ADMINISTRATION

(MSHA)
Docket

V.

A.C.

SE 2010-819-M

No.

No.

31-02087-216623

CONSTRUCTION

VULCAN

LP

MATERIALS,

Duffy, Young, Cohen,

Jordan, Chairman;

BEFORE:

Nakamura,

and

Commissioners

ORDER

BY

THE

COMMISSION:

These

§ 801

arise under

matters

Construction

Vulcan

final order

of the

On June

30, 2010,

she

not

does

the Federal

Materials,

pursuant

the Commission
the

oppose

to

request

received

to reopen

section
a

Health

Commission

the

7, 2010,

LP, a request

Commission

Safety and

Mine

On June

(2006) ("Mine Act").

et seq.

a

1977, 30 U.S.C.

of

received

penalty assessment

105(a) of the Mine
from

response

Act

the

Act,

from
that

had

30 U.S.C.

Secretary of Labor

become

a

§ 815(a).
stating that

the assessment.

to reopen

Under

section 105(a) of the Mine Act, an operator who wishes
to contest
a proposed
the
of
Labor
later
than
30
after
the
no
notify
penalty
Secretary
days
receiving
proposed
If the operator
fails to notify the Secretary, the proposed penalty assessment
penalty assessment.
must

is deemed

final

order

have

held, however,

that

in appropriate circumstances,

assessments

that

have

a

We

uncontested
reopen
Jim Walter Res.,
final

reopen
Federal
from
See

a

order

29 C.F.R.

§ 2700.1
Rules

that

a

is

Procedure

harsh

30 U.S.C.

become

§ 815(a).

final

we

Commission

(May 1993) ("JWR").

786-89

the

Commission

under

which,

of the Commission

by the Federal
default

782,

105(a) orders,

of Civil

final

Commission.

15 FMSHRC

lnc.,

section

Rules

of the

for

the basis

has found

jurisdiction
possess
orders
under
section

mistake,

105(a).

In

evaluating requests
guidance in Rule 60(b) of the

example, a party could be entitled
of

to

inadvertence,

to

excusable

to

relief

neglect.
and its Judges shall be guided so far as practicable
(b) ("the Commission
of Civil Procedure"); JWR, 15 FMSHRC
We have also observed
at 787.
remedy and that, if the defaulting party can make a showing of good cause
on

32 FMSHRC

Page 1119

or

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

~[~
Patric!C K.. Nakamura, Co~sioner

32 FMSHRC Page 1120

Distribution:
Bryan M. Moore
Vulcan Materials Co.
11020 David Taylor Dr. #105
Charlotte, NC 28262
W. Christian Schumann, Esq.
Office of the Solicitor, U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1121

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

September 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND.HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 2010-225-M
AC. No. 30-03598-198917

v.
RICHARD C. BUDINE

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). On April 26, 2010, the Commission received from
the Richard C. Budine a request to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On May 17,
2010, the Commission received a response from the Secretary of Labor stating that she does not
oppose the request to reopen the assessment.
Under section lOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
32 FMSHRC Page 1122

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Mich

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1123

Distribution:
Richard C. Budine
Owner
259 Old Plant Rd.
Deposit, NY 13754
W. Christian Schumann~ Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance
MSHA, U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1124

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

September 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2010-598-M
A.C. No. 12-00066-201813

v.
ESSROC CEMENT CORPORATION

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On Aprill, 2010, the Commission received from
Essroc Cement Corporation a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On
April 7, 2010, the Commission received a response from the Secretary of Labor stating that she
does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section I 05(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
32 FMSHRC Page 1125

for a failure to timely respond, the case· may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 {Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1126

Distribution:

Danny Lowe, CMSP
Essroc Cement Corp.
I 826 South Queen St.
Martinsburg, WV 25402
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
I I 00 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1127

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

September 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-316-M
A.C. No. 03-01614-198268 E24

v.
AUSTIN POWDER COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, CommissionerS
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 30, 2009, the Commission received from
Austin Powder Company ("Austin Powder") a motion by counsel to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). On January 11, 2010, the Commission received a response from the Secretary
of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1128

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

~

MiChaclF:ffi,C01ll11liion~

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1129

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

32 FMSHRC Page 1130

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

September 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-1052-M
A.C. No. 04-03489-207509

V.

SIERRA ROCK PRODUCTS

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act''). On April 20, 2010, the Commission received from
Sierra Rock Products a request by counsel to reopen a penalty assessment that had become a final
order of the Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a). On
May 4, 2010, the Commission received a response from the Secretary of Labor stating that she
does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section IOS(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
32 FMSHRC Page 1131

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Comnusstoner

~

L

. .

Patrick K. Nakamura, Commtss10ner

32 FMSHRC Page 1132

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

32 FMSHRC Page 1133

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

September 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK.2010-118-M
A.C. No. 43-00423-196497

v.
CASELLA CONSTRUCTION INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 28, 2009, the Commission received from
Casella Construction Inc. ("Casella") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
On January 12, 2010, the Commission received a response from the Secretary of Labor stating
that she does· not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
32 FMSHRC Page 1134

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1135

Distribution:
JoeMatteri
Casella Const., Inc.
8 US Route East
Mendon, VT 057601
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1136

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

September 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-1072-M
A.C. No. 05-00790-210809

v.
CLIMAXMOLYBDENUM COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 23, 2010, the Commission received from
Climax Molybdenum Company a request by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On May 11, 2010, the Commission received a response from the Secretary of Labor
stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
32 FMSHRC Page 113 7

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circwnstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1138

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

32 FMSHRC Page 1139

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

September 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2010-172-M
A.C. No. 36-00125-194419

V.

KEYSTONE CEMENT COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen. and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On December 8, 2009, the Commission received a motion by
counsel to reopen a penalty assessment issued to Keystone Cement Company ("Keystone") that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section IOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l (b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coai Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1140

On August 13, 2009, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Proposed Assessment No. 000194419 to Keystone. Keystone asserts that its
failure to timely file its contest was the result of confusion because it had submitted a conference
request for seven of the citations contained on the proposed assessment. Keystone additionally
contends that the error was made by a plant manager without the knowledge of the company's
general counsel, who oversees MSHA compliance. Keystone states that it has changed its
address of record so that all correspondence will now be sent to the general counsel so as to
avoid future mistakes. Keystone promptly filed its motion to reopen after receiving MSHA's
rejection of its contest.
The Secretary opposes the request on the ground that the letter acknowledging Keystone's
conference request specifically required the operator to contest the penalty assessment and that a
conference request does not toll the time to contest a penalty. 1

1

The Secretary initially also opposed the motion to reopen on the ground that the
operator was delinquent in its payment of penalties for the citations it was not seeking to reopen
in this assessment case, and thus had not acted in good faith. In response, Keystone stated that
the failure to pay stemmed from the same problem as above with the plant manager receiving
MSHA correspondence, and that it had paid the uncontested assessments after discovering its
error. The Secretary then withdrew her assertion that the operator had acted in bad faith.
32 FMSHRC Page 1141

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

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1142

Distribution:
Jeremiah J. Jowett, III, Esq.
Keystone Cement Co.
320-D Midland Parkway
Summerville, S.C. 29485
W. Christian Schumann,.Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1143

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

September 15, 2010
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-744-M
A.C. No. 09-00229-199383

v.
M & M CLAYS, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 6, 2010, the Commission received from
M & M Clays Incorporated a request to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On
May 26, 2010, the Commission received a response from the Secretary of Labor stating that she
does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become fmal Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 {Sept. 1995).
32 FMSHRC Page 1144

Having reviewed the facts and circwnstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. 1 Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Patrick K. Nakamura, Commissioner

1

We reopen Proposed Assessment No. 000199383 only as to Citation Nos. 6595601,
6595605,6595610,6595611,6595614,6595615,6595616,6595618,6595619,6595620,
6595621, and 6595628.
32 FMSHRC Page 1145

Distribution:
Gary W. Meir, President
M & M Clays Inc.
159 Railroad St.
P.O. Box 119
Mcintyre, GA 31054
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1146

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

September 14, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2010-788
A.C. No. 01-00851-209778

v.
OAK GROVE RESOURCES LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 26, 2010, the Commission received from
Oak Grove Resources LLC ("Oak Grove") a request to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On June 8, 2010, the Commission received a response from the Secretary of Labor
stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 11 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1147

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

Robert F. Cohen, Jr., Commissioner

~l

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1148

Distribution:

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1149

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

September 15, 2010

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

v.

Docket No. CENT 2009-760-M
A.C. No. 41-00906-191553
Docket No. CENT 2009-761-M
A.C. No. 41-00906-191553

SHERWIN ALUMINA, LP
BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
DIRECTION FOR REVIEW AND ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act''). On November 12, 2009, the Secretary of Labor filed two
motions to approve settlement in these proceedings. The motions involved penalty assessments
that had been issued to Sherwin Alumina, LP ("Sherwin") by the Department of Labor's Mine
Safety and Health Administration ("MSHA"). Pursuant to Commission Procedural Rule 12, on
our own motion, we hereby consolidate docket numbers CENT 2009-760-M and
CENT 2009-761-M, both captioned Sherwin Alumina, LP, and both involving similar procedural
issues. 29 C.F.R: § 2700.12.
Although the Secretary submitted the two settlement agreements simultaneously, orders
approving the settlements issued just over two months apart. In Docket No. CENT 2009-760-M,
Chief Administrative Law Judge Robert J. Lesnick issued an order on May 27, 2010 that granted
the Secretary's motion and ordered Sherwin to pay $3,238 in accordance with the terms of the
settlement agreement.
Subsequently, on June 9, 2010, Sherwin, through counsel, moved to set aside the
settlement agreement filed by the Secretary in Docket No. CENT 2009-761-M. 1 Sherwin alleges

1

On December 9, 2009, the operator submitted a prose letter to the Commission in

which it took issue with the method by which the penalty had been lowered in Docket No. CENT
2009-761-M, though there is no indication that the letter was served on the Secretary. The
32 FMSHRC Page 1150

that it had not reviewed the agreement, and that it had not agreed to several of its provisions. On
June 15, 2010, the Secretary filed a response in opposition to Sherwin's motion, and requested
that, "if the Court grants the Respondent's Motion to Set Aside Settlement in CENT 2009-761M[,] thereby accepting the Respondent's argument that no agreement was reached as to the
settlement terms, then the Court must also set aside the settlement that was concurrently reached
in CENT 2009-760-M." Sec'y Opp. at [9]. On June 16, 2010, Sherwin filed a response to the
Secretary's reply.
On August 16, 2010, Chief Judge Lesnick issued an order granting the motion in Docket
No. CENT 2009-761-M and ordering Sherwin to pay $85,532 in accordance with the terms of the
settlement agreement in that docket, without addressing Sherwin's motion to set aside the
agreement.
The judge's jurisdiction over these proceedings terminated when he issued his decisions
approving settlement on May 27 and August 16, 2010. 29 C.F.R. § 2700.69(b). As to Docket
No. CENT 2009-761-M, pursuant to Commission Procedural Rule 71, 29 C.F.R. § 2700.71, and
section 113(d)(2)(B) of the Mine Act, 30 U.S.C. § 823(d)(2)(B), on our own motion, we direct
review of the August 16, 2010, decision of the judge on the ground that the decision may be
contrary to law. Specifically, review is limited to the issue of whether the judge's decision
approving settlement was made in accordance with section 1 lO{k) of the Mine Act, 30 U.S.C.
§ 820(k), and Commission precedent.
As to Docket No. CENT 2009-760-M, under the Mine Act and the Commission's
procedural rules, relief from a judge's order may be sought by filing a petition for discretionary
review within 30 days of its issuance. 30 U.S.C. § 823(d)(2)(A); 29 C.F.R. § 2700.70(a). If the
Commission does not direct review within 40 days of an order's issuance, it becomes a final
order of the Commission. 30 U.S.C. § 823(d)(l). The judge's order approving settlement
became a final order of the Commission on July 6, 2010. In her opposition to Sherwin's motion
. to set aside the settlement agreement in Docket No. CENT 2009-761-M, the Secretary asserted
that she conductednegotiations with Sherwin relating to both dockets, and that ifthe
Commission were to set aside the settlement in Docket No. CENT 2009-761-M, it should do the
same in Docket No. CENT 2009-760-M. We construe this statement by the Secretary as a
request to reopen the proceedings in Docket No. CENT 2009-760-M.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
to relief from a final order of the Commission on the basis of mistake, inadvertence or excusable
neglect. See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure"); Jim Walter Res., Inc., 15 FMSHRC 782,
787 (May 1993). Having reviewed the record in Docket No. CENT 2009-760-M, we remand this
matter so that the Commission Administrative Law Judge assigned to determine whether the

operator also states that it filed a similar letter in Docket No. CENT 2009-760-M.
32 FMSHRC Page 1151

parties agreed to settle Docket No. CENT 2009-761-M may also consider whether the interests of
justice require that Docket No. CENT 2009-760-M also be reopened to fully effectuate a
settlement agreed upon by the parties, or to fully nullify a settlement approved by the
Commission despite an absence of agreement by the parties.
The Commission has made clear that "[s]ettlement of contested issues is an integral part
of dispute resolution under the Mine Act." Tarmann v. Int 'l Salt Co., 12 FMSHRC 1, 2 (Jan.
1990) (quoting Pontiki Coal Corp., 8 FMSHRC 668, 674 (May 1986)). fu this respect, the
Commission has obser\red that ''the record must reflect and the Commission must be assured that
a motion for settlement [approval], in fact, represents a genuine agreement between the parties, a
true meeting of the minds as to its provisions." Tarmann, 12 FMSHRC at 2 (quoting Peabody
Coal Co., 8 FMSHRC 1265, 1266 (Sept. 1986)); see also Wake Stone Corp., 27 FMSHRC 289,
290 (Mar. 2005) (vacating decision approving settlement where it was ''unclear whether the
parties achieved a true meeting of the minds").
On the record in these proceedings, Sherwin's motion to set aside the settlement in
Docket No. CENT 2009-761-M asserts that the settlement agreement filed by the Secretary does
not reflect a true meeting of the minds of the parties, and that the judge's order granting the
Secretary's motion to approve settlement may have been based on a proffered agreement that had
not been ratified by both parties. See, e.g., Secy ofLabor on behalf ofPendley v. Highland
Mining Co, 29 FMSHRC 164, 165-66 (Apr. 2007). The Secretary disputes this, but further
suggests that if the settlement in Docket No. CENT 2009-761-M is set aside, the settlement in
the other matter must also be set aside because the parties' agreements in both matters are
complementary.

32 FMSHRC Page 1152

Accordingly, in the interests ofjustice, we vacate the judge's May 27 and August 16,
2010, orders and remand these matters to him for further proceedings consistent with this
opinion. See RBS, Inc., 26 FMSHRC 751, 752 (Sept. 2004).

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1153

Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Ronald M. Mesa
Conference & Litigation Representative
U.S. Department of Labor, MSHA
1100 Commerce St., Rm. 4C50
Dallas, TX 75242-0499
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington,D.C. 20001-2021

32 FMSHRC Page 1154

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

September 15, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA2009-1759
A.C. No. 46-09020-180693

v.

Docket No. WEVA 2009-1761
A.C. No. 46-09020-183777

DOUBLE BONUS COAL COMPANY

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

§ 801 et seq. (2006) ("Mine Act"). On August 4, 2009, the Commission received motions
seeking to reopen two penalty assessments issued to Double Bonus Coal Company ("Double
Bonus") that had become final orders of the Commission pursuant to section 105(a) of the Mine
Act, 30 U.S.C. § 815(a). 1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. .If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEVA 2009-1759 and WEVA 2008-1761, both captioned Double
Bonus Coal Co. and involving similar procedural issues. 29 C.F.R. § 2700.12.
1155

§ 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 pennitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

On March 31, 2009, and April 28, 2009, the Department of Labor's Mine Safety and
Health Administration (''MSHA") issued two proposed penalty assessments to Double Bonus.
Double Bonus asserts that it first learned of these penalty assessments when representative,
James Bowman was reviewing data on MSHA's data retrieval system. It claims that MSHA
failed to properly serve the proposed assessments because MSHA sent the assessments by U.S.
certified mail rather than by Federal Express.
The Secretary opposes reopening and maintains that the proposed penalty assessments
were properly delivered via U.S. certified mail to the operator's legal address of record and were,
in fact, received and signed for by the operator. She asserts that the operator in its reopening
request in Double Bonus Coal Co., 31 FMSHRC 358 (Mar. 2009), stated that it had difficulties
in receiving deliveries at the address at Route 12/3 Pinnacle Creek Road. Because of those
difficulties, the Secretary asserts that she used the legal ID address of record.
Double Bonus then filed an answer to the Secretary's opposition, in which it
acknowledged that it received the penalty assessments but claimed that it was expecting penalty
assessments to be delivered by Federal Express as a result of a prior MSHA instruction and that
delivery by U.S. Mail caused confusion among its personnel. It further claimed that the certified
mail may have been overlooked as junk mail.
The Secretary filed a reply, contending that the operator's claim was specious in light of
the fact that it ''undisputedly received the proposed penalty assessment." S. Reply at 1.
Having reviewed Double Bonus' requests and the Secretary's responses, we deny the
motions with prejudice. The record reveals that Double Bonus unquestionably received and
signed for the proposed assessments. We note that the Commission Procedural Rules expressly
authorize the Secretary to utilize certified mail when notifying operators of proposed penalty
assessments. 29 C.F.R. § 2700.25. Moreover, we are not persuaded by the operator's proffered
reasons for failing to timely regpond to the penalty assessments, i.e., that the certified mail
delivery caused confusion and that the operator may have treated its certified mail, the receipt of
which was acknowledged by one of its employees, as casually as junk mail. We have held that
an inadequate or unreliable system for delivering internal mail does not constitute inadvertence,
mistake, or excusable neglect so as to justify reopening of an assessment that has become final
under section 105(c) of the Mine Act. Pinnacle Mining Co., 30 FMSHRC 1061(Dec.2008);
Pinnacle Mining Co., 30 FMSHRC 1066 (Dec. 2008).

1156

Accordingly, we conclude that Double Bonus has failed to establish good cause for
reopening the prop<>sed penalty assessments and deny its motions with prejudice. See Highland
Mining Co., 31FMSHRC1313, 1314-15 (Nov. 2009) (denying motion to reopen with prejudice
when the operator's security guard signed for the proposed penalty assessment and operator
claimed to have never seen it again).

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

1157

Distribution:
James F. Bowman
Double Bonus Coal Co.
P.O.Box99
Midway, WV 25878
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

1158

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

September 24, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-635-M
A.C. No. 41-02478-208485-02

v.
UNITED SALT CORPORATION

BEFORE: Jordan, Chairman; Duffy, YoWlg, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 21, 2010, the Commission received from United
Salt Corporation ("United Salt") a letter seeking to reopen a penalty assessment that had become
a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
On May 7, 2010, the Commission received a response from the Secretary of Labor stating that
she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR."). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1159

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., CommfsSioner

32 FMSHRC Page 1160

Distribution:
ClifMower
United Salt Corporation
14002 Warren Ranch Rd.
Hockey, TX 77447
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25•h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1161

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

WASHINGTON, DC 20001

September 28, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2010-501-M
A.C. No. 20-01315-203114
Docket No. LAKE 2010-618-M
A.C. No 20-02421-206022

V.

BILL SMITH SAND AND GRAVEL

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (''Mine Act"). 1 On March 9, 2010, and April 1, 2010, the Commission
received from Bill Smith Sand & Gravel requests to reopen two penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). On March 25, 2010, and April 16, 2010, the Commission received responses from the
Secretary of Labor stating that she does not oppose the requests to reopen the assessments.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers LAKE 2010-501-M and LAKE 2010-618-M, both captioned Bill
Smith Sand & Gravel and both involving similar procedural issues. 29 C.F.R. § 2700.12.
32 FMSHRC Page 1162

Federal Rules of Civil Procedure under whic~ for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F .R. § 2700. l (b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of these cases, the operator's requests, and
the Secretary's responses, we hereby reopen these matters and remand them to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file petitions· for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1163

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
47 40 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1164

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

September 28, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-989-M
A.C. No. 05-04434-204801

v.
MAYBELL ENTERPRISES, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 9, 2010, the Commission received from
Maybell Enterprises, Inc., a request to reopen a penalty assessment that had become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On May 3,
2010, the Commission received a response from the Secretary of Labor stating that she does not
oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700. l (b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1165

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2100. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHR.C Page 1166

Distribution:
Bret Steele, President
Maybell Enterprises, Inc.
P.O. Box 115
Maybell, CO 81640
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1167

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

September 28, 2010

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

Docket No. WEVA 2007-448-R
Order No. 7264179; 04/26/2007

v.
DYNAMIC ENERGY, INC.
BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
DECISION
BY THE COMMISSION:
In this contest proceeding arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2006) ("Mine Act"), Administrative Law Judge Jacqueline R. Bulluck
determined that Dynamic Energy, Inc. ("Dynamic") violated 30 C.F.R. § 77.1607(b). 1 Dynamic
Energy, Inc., 31 FMSHRC 670, 684 (June 2009) (ALJ). Dynamic filed a petition for
discretionary review challenging the finding of violation, which the Commission granted.
For the reasons that follow, we affirm the judge's decision.

I.
Factual and Procedural Background
Dynamic owns and operates the Coal Mountain No. 1 Surface Mine ("Coal Mountain")
located in Wyoming County, West Virginia. 31 FMSHRC at 672. As part of the operation, Coal
Mountain operates a load out facility which receives truck shipments of coal from several mines
in the area operated by Dynamic and affiliated companies. The coal trucks travel to the load out
stockpile area on a dirt and gravel haul road, which has a steep grade of 17% to 19% with a sharp

1

Section 77.1607(b) states that "Mobile equipment operators shall have full control of
the equipment while it is in motion."
32 FMSHRC Page 1168

switchback curve near the midpoint. Id. at 672 n.4, Tr. 109-11.2

On April 25, 2007, Department of Labor's Mine Safety and Health Administration
("MSHA") Inspector Bruce Billups was conducting an inspection of Coal Mountain. 31
FMSHRC at 672. He observed a grader sitting close to a coal haulage truck near the bottom of
the mine's main haulage road. Id. Billups approached the grader operator and asked him what
he was doing. Id. The operator told Billups that when haulage trucks lost traction and were
unable to ascend to the top of the road, he moved the grader behind the trucks and pushed until
the trucks regained enough traction to move on their own. Id. (citing Tr. 16). The Inspector
informed the grader operator that such pushing was a ''bad practice" and that he would discuss
the practice with the mine foreman. Id. (citing Tr. 16).
Later that day, Inspector Billups met with Foreman Kirby Bragg and informed Bragg that
pushing the trucks up the hill with a grader was a violation of section 77.1607(b) and that ifhe
witnessed the practice he would cite the mine. Id. at 687. Foreman Bragg and the inspector
"openly and honestly disagreed" on the application of the standard. Id. at 687-88.
Inspector Billups returned the next day to resume his inspection. Id. at 672. As he
traveled in his car to the area he intended to inspect, he overheard a haulage truck driver on the
mine's Citizen's Band ("CB") radio state that his truck was stuck and needed a push. Id. (citing
Tr. 20). Billups headed toward the haulage road where he saw the 18-wheel truck. Tr. 20. It had
lost traction and could only spin its wheels. Id. at 672 (citing Tr. 20). As Billups watched, the
grader started to push the truck up the hill. Id. (citing Tr. 21). The inspector contacted the
foreman to indicate that he was going to issue a withdrawal order. Id. (citing Tr. 26, 62-63).
Billups issued Order No. 7264179, which states in relevant part:
The driver of the loaded Kenworth tractor-trailer truck ... being
,used at the mine to haul coal over a loose dirt and gravel roadway
did not have full control of the truck while it was in motion, in that
he had to be pushed upgrade by a 14H Caterpillar motor grader. It
is reasonable to think that if this continues the truck driver could be
injured .... The mine foreman of the operator was warned of this
violation in a pre-inspection conference on 04-25-2007. This
violation is an unwarrantable failure to comply with a mandatory
standard.
Ex. R-5; 31 FMSHRC at 673. Although the inspector designated the violation as significant and

2

MSHA mechanical engineer Ron Medina explained that a 17 percent grade means that
for every 100 feet of road, there is an increase in elevation of 17 feet, which is considered fairly
steep. Tr. 111.
32 FMSHRC Page 1169

substantial ("S&S"), the Secretary removed the S&S designation before a hearing was held. 3
S. Br. at 2. Dynamic abated the order by agreeing to refrain from assisting coal trucks with the
Caterpillar 14H grader. Dynamic began operating smaller ten-wheel trucks on the haulage road
which did not require pushing assistance from graders. Tr. 262-63.
Before a penalty was issued, Dynamic filed a notice of contest challenging the order. A
hearing was held before Judge Bulluck. The judge found that section 77.1607(b) requires that
the operator have "full control of the equipment while it is in motion." 31 FMSHRC at 684. She
relied on the definition of "full" to mean ''being at or of the greatest or highest degree" and
"control" as having the "power . . . to guide or manage. " Id. (citing Webster's Third New
International Dictionary (2002) at 919; 496). The judge determined that accordingly "full
control'' means having '"complete' power to guide or manage." 31 FMSHRC at 684. The judge
reasoned that during an assist. the tractor-trailer driver and the grader operator "share control of
the truck," and the truck driver does not possess full control over the truck. Id. She concluded
that the assist procedure violated section 77.1607(b). Id.
The judge determined that this was ·a moderately serious violation which could lead to an
accident that would seriously injure the truck driver but that the chance of injury was remote. 31
FMSHRC at 685. In so doing, the judge credited the testimony ofDynamic's expert that it was
very unlikely that the truck could jackknife and found that the inspector's concern that a
multitude of hazards and injuries could result from the practice was unsubstantiated. Id. at 686.
The judge also concluded that the violation was a result of moderate negligence and not a result
of unwarrantable failure. She modified the Mine Act section 104(d)(2) order to a citation issued
pursuant to section 104(a), 30 U.S.C. § 814(a). Id. at 688.4
II.

Dispositon
Dynamic· argues that the judge's finding of violation i$ not supported by substantial
evidence because the evidence showed that the tractor-trailer truck operator was in "full control"
of the truck. PDR at 4; D. Br. at 6; D. Reply Br. at 4. It asserts that the judge ignored the clear
weight of the testimony and instead relied on unsubstantiated claims of the Secretary's witnesses.
PDR at 6; D. Br. at 9. Dynamic also contends that the judge's finding of violation contradicts the
credibility findings made in the·gravity section of the decision. PDR at 6; D. Br. at 9. It further
asserts that the judge's definition of "full control" is erroneous as it is impractical and fails to

3

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."
4

Neither the gravity nor the unwarrantable failure issues are before the Commission
because the Secretary did not appeal those rulings. S. Br. at 5, n.5.
32 FMSHRC Page 1170

hannonize with the objectives of the Mine Act. D. Br. at 13; D. Reply Br. at 1. Dynamic
additionally maintains that it lacked notice ofMSHA's interpretation of the regulation at issue.
D. Br. 17-18.
The Secretary responds that the judge's finding of violation is supported by substantial
evidence and should be affirmed. S. Br. at 1. She asserts that the truck driver was not in "full
control" of the truck while it was being pushed uphill by the grader. Id. at 6. The Secretary
argues that the plain meaning of having "full control" over a truck is having complete power to
guide or manage the truck. Id. at 6. She submits that the truck driver did not have "full control"
over the truck's acceleration and deceleration during the assist. Id. at 9, 10. The Secretary
contends that because there is no ambiguity in the term "full control," Dynamic's argument that it
did not have reasonable notice of the Secretary's interpretation is misplaced as the issue of notice
does not arise where the language of the standard is plain. Id. at 6-7. In any event, she asserts
that, if there is any ambiguity in the standard, the Secretary's interpretation is reasonable and
entitled to deference. Id. at 6 n.6.
A.

Plain Meaning of Section 77.1607{b)

The Commission has not previously had occasion to construe section 77 .1607(b). 5
Accordingly, 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., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation
Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). It is only when the meaning is ambiguous that
deference to the Secretary's interpretation is accorded. See Udall v. Tallman, 380 U.S. 1, 16-17
(1965) (finding that reviewing body must "look to the administrative construction of the
regulation ifthe meaning of the words used is in doubt") (quoting Bowles v. Seminole Rock &
Sand Co., 325 D.S, 410, 413-14 (1945)); Exportal Ltda. v. United States, 902 F.2d 45, 50 (D.C.
Cir. 1990) ("Deference ... is not in order ifthe rule's meaning is clear on its face." (quoting

5

A number of administrative law judges have interpreted the standard. Island Creek
Coal Co., 3 FMSHRC 1265, 1271-73 (May 1981) (ALJ) (determining that trucks that were
slipping and sliding were not in full control and rejecting the argument that an accident or nearmiss has to occur before a violation arises); Highwire, Inc., 10 FMSHRC 22, 66 (Jan. 1988)
(ALJ) (noting that lacking full control does not mean there must be an accident); Vandalia Res.,
Inc., 25 FMSHRC 390, 397 (July 2003) (ALJ) (finding a violation when two trucks slipped on
ice); Garrett Const. Co., 4 FMSHRC 2202, 2202 (Dec. 1982) ( ALJ) (finding no violation
because of insufficient evidence that the operators lacked full control of their vehicles or went
anywhere other than where the operators wanted them to go, even though a collision occurred).
Administrative law judge decisions, although instructive, are not binding precedent on the
Commission. 29 C.F.R. § 2700.69(d).
32 FMSHRC Page 1171

Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984)).
Section 77.1607(b) requires a mobile operator to have "full control [of the equipment]
while it is in motion." "Full" is defined as "being at or of the greatest or highest degree" and the
"greatest or highest potential." Webster's Third New International Dictionary 919 (1993).
"Control" is defined as having ''the power ... to guide or manage." Id. at 496. This is the
definition upon which the judge based her ruling. 31 FMSHRC at 684. Dynamic relies on the
definitions of "full" as "possessing or containing as much or as many as possible or normal," and
"control" as ''to have power over." D. Reply Br. at 2. Based on the terms of the standard, the
judge's construction of requiring the highest degree of control to guide or manage a vehicle
appears well supported by the plain language. Hence, we conclude that the judge's determination
that full control means having "complete power to guide or manage" accords with the plain
meaning of the standard. 31 FMSHRC at 684.
Dynamic argues that the judge's holding requiring absolute control is not practical in the
real world environment. D. Br. at 13-16. It maintains instead that the standard applies only to
vehicles that are out of control or unable to go where the drivers intended. Id. It asserts that the
truck went where the driver intended and thus was not out of control. Id. at 16.
However, Dynamic's reading that the standard only applies to vehicles dangerously out of
control does not comport with the text of the standard. As the Inspector testified, a violation of
the standard does not require vehicles to be out of control because "the standard says you [need]
full control." Tr. 97-98.
Accordingly, we affirm the judge's plain language application of section 77. l 607(b).
Because the language is plain, it is unnecessary to evaluate the question of whether the standard
provides fair notice of its requirements. Bluestone Coal Corp., 19 FMSHRC 1025, 1031 (June
1997). In Bluestone, the Commission held that where it had determined that the language of a
standard is clear and unambiguous, that standard provides operators with fair and adequate
notice. 6

B.

Whether Substantial Evidence Supports the Judge's Determination of Violation

The next question is whether substantial evidence supports the judge's determination that
tractor-trailer truck drivers and grader operators lack full control over their vehicles during an
assist. 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

6

In any event, Dynamic had received actual notice that MSHA considered its pushing
practice to violate section 77.1607(b). 31 FMSHRC at 672.
32 FMSHRC Page 1172

U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must consider
anything in the record that ''fairly detracts" from the weight of the evidence that supports a
challenged finding. Midwest Material Co., 19 FMSHRC 30, 34n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
Under the substantial evidence standard, the "possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency's finding from being
supported by substantial evidence." Secy on behalf of Wamsley v. Mutual Min., Inc., 80 F.3d
110, 113 (4th Cir. 1996) (refusing to disturb decision supported by substantial evidence);
Donovan on behalf of Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 {D.C. Cir. 1983)
(providing that Commission is bound to affirm ALJ factual determinations supported by
substantial evidence). Additionally, substantial evidence has been found to be more than a
scintilla, but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Consolidated Edison, 305 U.S. at 229 (substantial evidence standard met when the record was
not ''wholly barren of evidence" to sustain the judge's finding).
The judge found that when an assist is in progress, the tractor-trailer driver does not have
complete power to manage the truck. 31 FMSHRC at 684. She determined that during an assist
the tractor-trailer driver and the grader operator share control of the truck, in that both can supply
power that causes it to accelerate to the point where its driver can resume full management of the
vehicle's acceleration. Id. The judge also held that the facts established that "the tractor-trailer
driver and the grader operator share control of the truck's deceleration." Id.
These findings are supported by the record. The record revealed that when the tractortrailer reached a particular point on the hill it lacked control over its acceleration. See Tr. 20
(Inspector Billups heard over the CB radio that a truck was stuck on the hill and truck driver
could not make it on his own and needed a push). See also Tr. 32-33 (inspector testified that the
tractor-trailer trucks spin out when going uphill and at a certain point, all the wheels' front and
rear axles begin to spin, lose traction, and cannot go further). Similarly, the inspector, with 25
years of experience in the mining industry, testified that the truck driver does not have full
control of the truck because he "cedes some of the power to the grader operator." Tr. 29-30.
MSHA's expert, mechanical engineer Ron Medina, also testified: "What I concluded about the
practice was that the driver of the truck does not have full control of the truck because he is
giving some of the control of the truck to the grader so it affects his braking, propulsion and his
ability to slow the truck down." Tr. 136, see also Tr. 113-14. He also "reached the conclusion
that during the practice of pushing the fully loaded coal truck up the hill using a grader, that the
haul truck driver does not have full control of the truck. He cedes some of the control to the
grader operator." Tr. 106-07. Dynamic witness Derrick Steele, who was truck driver, would not
answer the question whether the truck has lost ability to maneuver when it is starting to spin. Tr.
189-90. Additionally, Dynamic's expert stated that in order for the truck to regain directional
control, the truck needs a push. Tr. 345.
In reaching her holding, the judge explicitly made two credibility determinations. She
credited the testimony of truck driver Steele that during an assist, regaining full control of the
32 FMSHRC Page 1173

truck's ability to accelerate requires the truck driver to keep his foot on the throttle and the grader
operator to keep pushing from behind. 31 FMSHRC at 684 n. 21 (citing Tr. 207-11 ). She further
credited the "common sense opinion of the Secretary's expert, Medina, that when the truck driver
takes his foot off of the throttle, the force from the grader continues to push the truck forward and
consequently, it will 'take a longer time for the [tractor-trailer driver] to slow down or stop."' Id.
at n. 22 (citing Tr. 112).
Dynamic takes issue with the judge's conclusions based on these credibility
determinations. However, credibility determinations reside in the province of the administrative
law judge's discretion, are subject to review only for abuse of that discretion, and cannot be
overturned lightly. See Buck Creek Coal Co., 52 F.3d 133, 135 (7th Cir. 1995) (holding that
judge did not abuse discretion in crediting inspector with many years of experience whose
testimony was common sense); Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1540-41
(Sept. 1992) (providing that ''the Commission has often stated 'a judge's credibility resolutions
cannot be overturned lightly."') (citation omitted).
Dynamic also faults the judge for crediting the testimony of the Secretary's witnesses in
the finding of violation but not in the gravity section of the decision. However, it is a general
rule that a judge need not credit every aspect of one witness' testimony. See Secy on behalfof
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 813 (Apr. 1981) (providing that judge
may accept some but not all of a witness' testimony). We also are not persuaded to take the
extraordinary step of disturbing the judge's credibility resolution based on Dynamic's assertion
that the judge's findings in the gravity section of her decision are inconsistent with the finding of
violation. D. Br. at 10-11. Dynamic contends that the judge's crediting ofits expert that the
grader simply did not have enough weight to overcome the truck's weight shows that the truck
was in control. 31 FMSHRC at 685 (citing Tr. 318-19). Nonetheless, this finding does not mean
that the truck was fully in control during the assist. Moreover, the judge went on to point out that
given the disparity in weight, ifthe tractor-trailer lost its brakes and rolled down the steep hill, it
would pose a significant risk not only to the truck driver but to the grader operator as well. Id. at
685-86. Similarly, Dynamic's attempt to discount the credibility determinations based on the
truck driver Steele's testimony is also unpersuasive. Steele explains that in the assist, the grader
pushes the truck until it can navigate on its own. Tr. 207-15. This testimony is consistent with
the judge's finding that the truck driver lacks full control during an assist.
Dynamic presented some evidence that could be viewed as fairly detracting from the
judge's opinion. For example, Dynamic expert Jose Calonge testified that trucks need assistance
because there is not enough traction for the wheels to get going and there is a difference between
loss of traction and loss of control. Tr. 310-11. According to Calonge, loss of traction means
that the wheels are not biting into the surface whereas loss of control means that you have no
control over your vehicle. Id. Truck owner Bobby Justice testified that the ''the truck is
definitely in full control," "you got your brakes, you got your steering ... all you need is a little
assistance." Tr. 175. Similarly, Dynamic presented testimony that the pushing helped the truck
stay in control and prevented slipping. Tr. 244-46.

32 FMSHRC Page 1174

On balance, however, the weight of the evidence clearly supports the judge's conclusion
that the truck driver did not have complete power to ascend the haulage road without the
assistance of the grader and thus was not in full control. Indeed, the testimony ofDynamic's
witnesses indicated that the truck driver could not fully ascend the hill without assistance by the
grader. Tr. 310-11, 345. Similarly, the record revealed that due to the pushing from behind by
the grader, the truck driver did not have complete control over the time to decelerate or stop the
truck. Tr. 112-13. Significantly, we emphasize that the judge's holdings are backed by well
reasoned credibility resolutions, which we do not overturn lightly. Farmer, 14 FMSHRC at
1540-41.
Finally, Dynamic argues that there is no violation because the pushing is customary in the
industry and is a safe and calculated process. D. Br. at 16-17. We are mindful that the record
showed that the push was normally performed at low speeds, which decreased the likelihood of
injury. Tr. 158-59. Nonetheless, the pushing contravenes the plain terms of the standard
requiring full control and therefore is a violation. Additionally, as the judge indicated, an
operator may obtain a variance or modification of a mandatory safety standard at its mine upon
showing that "an alternative method of achieving the result of such standard exists which will at
all times guarantee no less than the same measure of protection afforded the miners .... " 31
FMSHRC at 688 n.26 (citing 30 U.S.C. § 81 l(c)). Moreover, we note that Dynamic's expert
testified that pushing is not the only option to propel the trucks up the hill - the operator also can
reduce the grade, pave the road, or use a different set of tires. Tr. 358-59. 7
In sum, substantial evidence contained in the record supports the conclusion that the truck
driver ceded some of his acceleration and deceleration power during the assist and that he
therefore was not in full control of his vehicle. Accordingly, we affirm the judge's finding of
violation. 8

7

The judge concluded that because the truck driver's loss of full control over the
acceleration and deceleration of the truck establishes the violation, it was unnecessary to further
examine the alleged loss of control of the truck's braking and steering capacities to resolve the
issue. 31 FMSHRC at 684 n.23. Similarly, the Commission need not address Dynamic's
arguments with regard to those other capacities of the truck.
8

Because this is a contest proceeding, the penalty is not before the Commission. The
associated penalty assessment proceeding is Docket No. WEVA 2008-1356 before Judge
Bulluck.
32 FMSHRC Page 1175

ill.
Conclusion
For the foregoing reasons, we affirm the judge's decision.

Robert F. Cohen, Jr., Commissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1176

Distribution:
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Francine Serafin, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Edward Waldman, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Administrative Law Judge Jacqueline R. Bulluck
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1177

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUl1E9500
WASHINGTON, DC 20001

September 30, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2010-940-M
A.C. No. 50-01642-211689

v.
SUMITOMO METAL MINING
POGO,LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On April 2, 2010, the Commission received from
Sumitomo Metal Mining Pogo, LLC ("Sumitomo") a request by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
. Mine Act, 30 U.S.C. § 815(a). On April 16, 2010, the Commission received a response from the
Secretary of Labor stating that she does not oppose the request to reopen the assessment.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become fmal Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
32 FMSHRC Page 1178

for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator's request, and the
Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R.
§ 2700.28.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1179

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

32 FMSHRC Page 1180

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

SUITE9500
WASHINGTON, DC 20001

October 6, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2009-602
A.C. No. 34-01062-185628

v.
JOSHUA COAL COMPANY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On July 15, 2009, the Commission received from Joshua
Coal Company ("Joshua") a letter from the owner seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105{a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89{May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 {Sept. 1995).
32 FMSHRC Page 1181

On May 14, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000185628 to Joshua for five violations totaling
$500. Joshua states that on June 15, 2009, it sent a letter requesting a hearing to MSHA's
District Office in Denver, Colorado. It then received a letter from MSHA, dated June 23, 2009,
informing it that a safety and health conference would be scheduled once penalties had been
assessed and contested. Joshua sent another letter, dated July 14, 2009, to the same MSHA
District Office stating its opposition to the citations and noting its intent to contest the penalties.
In its letter to the Commission, Joshua described its attempts to contest the penalties, and states
that it does not understand when the 30-day period to file its contest began and requests an
opportunity for a hearing.
The Secretary indicates that she does not oppose Joshua's request to reopen. She
explains that the MSHA District Office was not aware that the proposed penalty assessment had
been issued when it received the operator's letter. She urges the operator to take all steps
necessary to ensure that future penalty assessments are contested in a timely manner and mailed
to the address for the MSHA Civil Penalty Compliance Office in Arlington, Virginia, included in
the notice accompanying all proposed assessments.

In this case, Joshua had 30 days from its receipt of the Proposed Assessment dated May
14, 2009, within which to file a contest of the assessment. Its June 15, 2009, letter would have
been timely, but since it was sent to the wrong MSHA office, the Secretary treated it as not
having been filed. 1

1

Commissioner Cohen would find that Joshua's contest of the proposed assessment was
timely filed.
32 FMSHRC Page 1182

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

MMy~+~
~
Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1183

Distribution:
Alan Churchill
Joshua Coal Co.
205 Perryman Rd.
Henryetta, OK 74437
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1184

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

October 6, 2010

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA2010-196
A.C. No. 46-08315-190383

V.

MARFORK COAL COMPANY, lNC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act''). On November 10, 2009, the Commission received from ·
Marfork Coal Company, Inc. ("Marfork") a motion to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

32 FMSHRC Page 1185

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).

On July 7, 2009, the Department of Labor's Mine Safety and Health Administration
(''MSHA") issued Proposed Assessment No. 000190383 to Marfork, proposing penalties for 20
violations totaling $23, 788. Marfork contends that it received the proposed assessment on July
14, 2009 and filed its contest form on August 14, 2009, one day late. Marfork claims it did not
realize its lateness until it received MSHA's delinquency notice around September 30, 2009.
The Secretary of Labor, who does not oppose Marfork's request, states that shortly after
receiving the late filing on August 19, 2009, she notified the operator that its contest was
untimely and that the assessment had become a final order. The Secretary also contends that
''this case has been paid by checks dated August 20, 2009 and November 5, 2009." Marfork did
not respond to the Secretary's statement that the penalties in this case have been paid.

32 FMSHRC Page 1186

Having reviewed Marfork's motion and the Secretary's response, we find the request to
reopen to be moot. The operator has paid the penalties in full. Accordingly, this case is
dismissed. See Riverton Investment Corp., 31 FMSHRC I 067 (Oct. 2009); Performance Coal
Co., 32 FMSHRC 466 (June 2010).

Robert F. Cohen, Jr., CJmmissioner

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1187

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

32 FMSHRC Page 1188

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

SUITE9500
WASHINGTON, DC 20001

October 13, 2010

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2007-335

v.
EASTERN ASSOCIATED COAL CORP.
BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, Commissioners1
DECISION
BY: Jordan, Chairman; Young and Cohen, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act" or "Act"). Eastern Associated Coal Corp.
("Eastern") was charged by the Department of Labor's Mine Safety and Health Administration
("MSHA") with violating the roof control requirements of30 C.F.R. § 75.202(a). 2 After a
hearing, Judge Avram Weisberger affrrmed the violation and its designation as significant and
substantial ("S&S"), but concluded that the violation was not attributable to the operator's
unwarrantable failure to comply with the regulation. 31 FMSHRC 174 (Jan. 2009) (ALJ). 3

1

Commissioner Patrick K. Nakamura assumed office after this case had been considered
at a Commission meeting. A new Commissioner possesses legal authority to participate in
pending cases, but such participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC
1218 (June 1994). In the interest of efficient decision making, Commissioner Nakamura has
elected not to participate in this matter.
2

Section 75.202(a) provides that "[t]he roof, face and ribs of areas where persons work
or travel shall be supported or otherwise controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock bursts." 30 C.F.R. § 75.202(a).
3

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." The
unwarrantable failure terminology is taken from the same section, and establishes more severe
32 FMSHRC Page 1189

The Commission subsequently granted the Secretary of Labor's petition for discretionary
review challenging the judge's determination that the section 75.202(a) violation was not caused
by an unwarrantable failure. For the foregoing reasons, we vacate the judge's decision, and
remand the case to him so that he can further consider two of the relevant unwarrantable failure
factors and whether, in light of all of the relevant factors, Eastern's conduct in violating section
75 .202(a) was aggravated under the circumstances.
I.
Factual and Procedural Background
The violation occurred at Eastern's Federal No. 2 Mine, an underground coal mine in West
Virginia, where Eastern uses an entry mined in the 1970s to store mine cars. 31 FMSHRC at 17475; Tr. 68, 132, 150; E. Ex. 1 (main mine map). The entry is approximately 7,000 feet long and
16 feet wide. 31 FMSHRC at 175; Tr. 60, 145, 163-64. The stored cars are ones the mine is not
currently using, so the track is referred to as the "7 Right empty track." Tr. 7.
The track consists of two rails running down the center of the entry, spaced 42 inches
apart. 31 FMSHRC at 175; Tr. 27-28, 30. A trolley wire that supplies power to vehicles traveling
on the rails runs overhead on the side of the entry between the rails and left rib (the ''wire side").
31 FMSHRC at 175; Tr. 26; Gov't Ex. 3-4, 5-8. The other side of the entry, between the rails and
the right rib, is used as a walkway for foot traffic (the "walkway side"). 31 FMSHRC at 175;
Tr. 28; Gov't Ex. 3-4, 5-8.
Roof control at the time the entry was mined consisted of the installation, every five feet,
of three roof bolts, spaced across the center of the entry (and thus over the area of the floor where
there are now rails), with straps between the bolts. 31 FMSHRC at 175; Tr. 147-48. The bolts
were installed so that the outside bolts were no farther than six feet from the nearest rib, and that
remains the maximum allowable distance under Eastern's roof control plan for that part of the
mine. Tr. 156. Since the time the entry was mined, supplemental roof support has been added,
including additional bolts, straps installed between bolts, and posts and cribs. 31 FMSHRC at
175; Tr. 146, 147-50, 184.

In July 2006, Eastern was. mining the Eight Left longwall panel. Tr. 153-54; E. Ex. 1.
Various miners would work or travel in the 7 Right empty track entry, such as motormen and the
two maintenance men assigned to the area. 31 FMSHRC at 180 n.10; Tr. 115, 117, 146. Roof
maintenance would be performed by miners using bolting machines on the tracks when the tracks
were unoccupied. Tr. 116, 146, 149. Examiners would travel the entry daily, and, depending on
the work to be done, repairmen and pumpers would need to travel and work on both the walkway
and wire sides of the entry. 31 FMSHRC at 180; Tr. 146, 166, 171.

sanctions for any violation that is caused by "an unwarrantable failure of (an] operator to comply
with ... mandatory health or safety standards."
32 FMSHRC Page 1190

On July 17, 2006, Inspector Jason Rinehart, as part ofMSHA's quarterly inspection of the
mine, walked all the way through the 7 Right empty track. 31 FMSHRC at 174; Tr. 18-23;
E. Ex. 1. He was accompanied by both management representative Dan Kurry, the mine's safety
supervisor, as well as a miners' representative, Eastern roof bolter Kevin Luketic. 31 FMSHRC at
177, 180 n.9; Tr. 23, 148. Empty cars did not occupy the track on the day of the inspection, as
they had been deployed elsewhere. Tr. 78, 144.
As a result of his inspection, Rinehart issued Order No. 6602108 under section 104(d)(2)
of the Mine Act, alleging an S&S violation of section 75.202(a) attributable to Eastem's
unwarrantable failure to comply with that roof control standard. 31 FMSHRC at 174; Gov't
Ex. 1, at 1-2. According to Rinehart, the roof and/or ribs had deteriorated at seven locations in the
entry, resulting in the roof not being adequately supported at those locations. 31 FMSHRC at
175; Gov't Ex. 1. The roof deficiencies were enumerated in the order,4 and six of the seven were
further explained later by Rinehart in l\is testimony at the hearing later held on this matter. Tr. 2764; 76-92; 101-04.
To abate the order, Eastern installed a total of 66 bolts and three steel jacks. Tr. 69; Gov't
Ex. 1, at 3. The Secretary subsequently proposed a civil penalty assessment of $4,100 for the
violation.
Two types of roof control deficiencies were cited by Rinehart. The most common was
sloughage of material off the ribs, which resulted in an expansion of the overall width of the entry.
Such expansion increased the distance between the rib and the nearest roof bolts. Tr. 30, 32-33,
58, 64, 77, 164. The increase was approximately a foot in each instance, thus increasing the
distance between the rib and the bolts from the original six feet to seven feet. 31 FMSHRC at
177, 180.
The other deficiency was "potting out" of the roof around roof bolts. This occurs when so
much roof material falls away from around a bolt that the bearing plate between the bolt and the
roof becomes loose. Tr. 38-39, 41-42. Bolts that are loose and bearing plates that are not up
against the roof do not provide the intended roof support. 31 FMSHRC at 179; Tr. 38-39, 47-50;
Gov't Ex. 4A.

4

In the order, locations in the 7 Right empty track were for the most part indicated by
"car marker" numbers. Car markers were spaced 21 feet apart and the numbers were in
descending order in the direction of Rinehart's inspection route in the entry. 31 FMSHRC at 176
n.4; Tr. 78-79. The only exception is with respect to the first roof deficiency, which was noted to
be at the "5-Left rectifier." Tr. 27; Gov't Ex. 1, at 1, & 3. A rectifier is used in mines to convert
alternating current to direct current. Dictionary ofMining, Minerals, and Related Terms 448 (2d
ed. 1997). The reference to the area was outdated, as the area no longer included a rectifier.
Tr. 155-56.
32 FMSHRC Page 1191

At the hearing, Inspector Rinehart described the dangers of the roof deficiencies, both with
respect to any roof weakened because a wider area was unsupported due to rib sloughage as well
as any roof weakened because potting out had lessened the support provided by the roof bolts.
According to Rinehart, both conditions increased the likelihood that material would fall from the
roof, putting miners immediately below at risk. 31 FMSHRC at 175-76; Tr. 30-31, 51.
Rinehart further alleged that falling roof material could pull out the bolts in the roof,
increasing the area of roof that was subject to roof falls. Tr. 31, 82. fuadequately supported roof
near intersections was particularly susceptible to this problem, according to Rinehart.
31 FMSHRC at 176; Tr. 51-52.
The judge affirmed the order alleging a violation of section 75.202(a) on the ground that a
preponderance of the evidence established that a reasonably prudent person, familiar with the
mining industry and the protective purpose of the standard, would have provided additional roof
support in each of the areas in question. 31 FMSHRC at 179-81. The judge further found that the
violation was S&S. Id. at 181-83.
With regard to whether the violation of section 75.202(a) was attributable to Eastem's
unwarrantable failure, the judge found that the condition of the roof was obvious and, based on his
S&S finding, posed a high degree of danger to miners. Id. at 184, 185. He also concluded that the
conditions had existed for more than a few days, though there was insufficient evidence regarding
their existence "beyond that limited time period." Id. The judge further found that the area
affected by the cited conditions was not extensive in comparison with the total roof in the entry,
and that Eastern was neither aware of the conditions nor had been put on notice that greater
compliance efforts on its part were required. Id. at 185. As a result, the judge held that it had not
been shown that the violation was the result of Eastern' s unwarrantable failure, and assessed a
penalty of$3,000. Id. at 186.
II.

Disposition
The Secretary, who adopted her petition for discretionary review as her opening brief,
urges the Commission to reverse.the judge on the question of whether the violation was
attributable to Eastem's unwarrantable failure and to remand the case for a recalculation of the
penalty. PDR at 7, 13-14. The Secretary argues that reversal is appropriate because the judge's
factual fmdings were flawed with respect to the extent of the violative conditions, Eastem's
knowledge of the conditions, and the operator's knowledge that greater compliance efforts were
necessary on its part. Id. at 7-11; S. Reply Br. at 1-5. The Secretary also maintains that the
existence of the roof conditions for more than a few days weighs in favor of finding those
conditions unwarrantable. Id. at 12-13.

32 FMSHRC Page 1192

Eastern responds that the judge's conclusion that the violation was not attributable to
unwarrantable failure is amply supported by substantial evidence, and that all of the Secretary's
contentions would require the Commission to impermissibly reweigh evidence. E. Br. at 2, 10,
13-24. Eastern further argues that the judge's findings that the conditions were obvious and posed
a high degree of danger are not supported by substantial evidence. Id. at 25-30.
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v.
MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test).
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. Aggravating factors include the
length of time that the violation has existed, the extent ofthe violative condition, whether the
operator has been placed on notice that greater efforts were necessary for compliance, the
operator's efforts in abating the violative condition, whether the violation was obvious or posed a
high degree of danger, and the operator's knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consof'); Cyprus Emerald Res.
Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999);
Midwest Material Co., 19 FMSHRC 30, 43 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).
All of the relevant facts and circumstances of each case must be examined to determine if
an actor's conduct is aggravated, or whether mitigating circumstances exist. Consol, 22
FMSHRC at 353. A judge may determine, in his discretion, that some factors are not relevant, or
may determine that some factors are much less important than other factors under the
circumstances. IO Coal Co., 31FMSHRC1346, 1351(Dec.2009).
Here, the judge addressed all of the relevant factors, and the Secretary does not take issue
with the relative weights he placed on those factors in concluding that the violation was not
unwarrantable. Rather, the Secretary challenges the judge's conclusions as to four of the factors,
arguing that the record evidence does not support the judge's conclusions. 5 In turn, while

5

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
32 FMSHRC Page 1193

defending those findings, Eastern takes issue with fmdings the judge made as to two factors that
he concluded were aggravating in this instance. Consequently, we address these six factors. 6
A.

The Extent of the Violative Conditions

The Commission has viewed the extent of a violative condition as an important element in
the unwarrantable failure analysis. IO Coal, 31 FMSHRC at 1351-52. Below, the judge found
the violation not to be extensive, based on his calculation that the areas of the roof described in
the order as being inadequately supported because of the rib sloughage or potting out were not
significant in comparison to the total of approximately 112,000 square feet of roof in the 7 Right
empty track. 31 FMSHRC at 183-84.
On review, the Secretary argues that the judge erred in calculating the actual area of roof
that was inadequately supported. With respect to the instances of rib sloughage, the Secretary
maintains that the judge should have calculated the area of inadequately supported roof to include
not just the immediate area of additional roof resulting from the rib sloughage, but rather the
entire width of the entry. This is because, in finding a violation and concluding that it was S&S,
the judge had credited Rinehart's testimony that the increases in width in the entry due to such
sloughage weakened the roof support from rib to rib in those locations. PDR at 8-9 (citing 31
FMSHRC at 179-80). The Secretary also takes issue with the judge's calculation of the area of
roof affected by the potting out around the roof bolts, arguing that the judge took into account
only two of the three such areas described in the order. Id. at 9-10. According to the Secretary,
altogether the judge was off by nearly a factor of seven in his calculation of the total area of roof
that should have been considered inadequately supported in this instance. Id. at 10.
Eastern responds that calculating the extent of the violation using the entire width of the
entry would convert the factor into one directed at the degree of hazard, when the factor is actually
directed at th~ obviousness of a violation. E. Br. at 15-16. Eastern argues that even using the
Secretary's method of calculation, the total area that was affected was still quite small compared
to the total area ofroofin the entry, and that the number of bolts compromised or subject to
compromise by the potting out, as well as the number of additional bolts installed to abate the
order, are relatively few in comparison to the 4,200 bolts that were initially installed in the entry.
Id. at 17-19.
fu her reply brief, the Secretary objects to Eastern's characterization of the purpose of the
extensiveness criteria in the unwarrantable failure analysis. S. Reply Br. at 4. According to the

Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
6

With regard to the seventh factor the judge addressed, Eastem's efforts to abate the
violative conditions, the Secretary did not argue below that those efforts were deficient.
31 FMSHRC at 185. Accordingly, the judge did not consider it an aggravating factor. Id.
32 FMSHRC Page 1194

Secretary, the purpose of the criteria is to take into account the scope or magnitude of a violation,
and other factors alfeady account for a violation's obviousness and danger. Id.
We agree with the Secretary that the purpose of taking the extensiveness of a violation into
account under the unwarrantability analysis is not to give additional consideration to the factors of
danger or obviousness, but rather to factor in the scope or magnitude of a violation. See Peabody,
14 FMSHRC at 1261 (holding that five accumulations of loose coal and coal dust were
extensive); Quin/and Coals, Inc., I 0 FMSHRC 705, 708 (June 1988) (listing different roof control
deficiencies where operator was charged with an unwarrantable violation of predecessor to section
75.202). Other unwarrantable failure factors already take the danger posed by a violation into
account, and whether the violation was obvious.
We also agree with the Secretary that the judge's analysis contains errors. For instance,
the judge acknowledged that there were three areas of roof cited as having potted out, but he only
included in his calculation the square footage of two of them. See 31 FMSHRC at 183.
More fundamentally, however, we reject the judge's analysis that the question of the
extensiveness of a roof control violation should be addressed by simply measuring the area of
inadequately supported roof and comparing it to the relevant area examined by the inspector.
Here the judge used the size of the entire entry as a basis for determining extensiveness. While
the entry was dedicated to the storage of empty cars, that consideration does not mandate that the
entire entry should thus serve as the area of comparison for determining extensiveness. The
nature of mine roof is such that roof over a mile away that is in good condition does not lessen the
degree of violation posed by roof needing repair that is immediately overhead.
As explained in the preamble to MSHA' s roof control regulations, roof control in mines is
quite idiosyncratic. See 53 Fed. Reg. 2354 (Jan. 27, 1988) ("Prevention or control of roof falls
continues to be a difficult task because of the variety of conditions encountered in coal mines that
can affect the stability of various types of strata."). That there are a myriad number of different
types of mine roofs is why, under 30 C.F.R. § 75.220, each mine is required to submit, have
approved by MSHA, and follow a roof control plan tailored to that mine. See 53 Fed. Reg. at
2369 ("The roof control plan concept, which has been used effectively throughout the coal mining
industry, grew out of a need for flexibility to address the unique conditions of each mine."). Thus,
the question of whether a roof control violation can be considered "extensive" in a particular mine
should not be resolved simply by comparing the area of roof immediately affected by the violative
condition with the area of the relevant entries or section. See IO, 31 FMSHRC at 1352 (more than
15 unsupported or inadequately supported kettle bottoms in the roof of a mechanized mining unit
section totaling approximately 2100 linear feet can be found to be extensive). Not all roof control
violations should be presumed to have the same effect because not all mine roofs are the same.
Using the entirety of the entry as the sole basis for comparison also tends to obscure where
in the entry the bad roof was found. Three of the instances of sloughage that Rinehart cited
included 54 linear feet within an approximately 100 linear foot area. Gov't Ex. 1, 6-8 (specifying

32 FMSHRC Page 1195

sloughage at car marker numbers 110 to 108, 108 to 107, and 105). The violative conditions thus
could easily be considered much more extensive within this smaller (approximately 1700 square
foot) area, and the judge should have taken this into account in his analysis of the extensiveness of
the violation. See IO, 31 FMSHRC at 1352 (remanding unwarrantability issue to take distribution
of roof plan violations into account).
Another relevant consideration in determining whether the roof control violation could be
considered extensive is the abatement measure taken to terminate the citation. In this case it was
66 roof bolts and three steel jacks. Gov't Ex. l, at 3. The Secretary argued that the number of
bolts and jacks established that the violation was extensive in this instance, but the judge did not
address the issue, instead relying solely on his calculation of relative area of roof in the entry
affected by the cited conditions. See 31 FMSHRC at 183-84. The number of roof bolts installed,
and the employment of jacks, is too significant in this instance to ignore in analyzing whether the
violation was extensive. 7 See Peabody, 14 FMSHRC at 1263 (extensiveness shown by significant
abatement efforts that were required to terminate citation).
Consequently, we are remanding this case to the judge for a finding on whether the
extensiveness of the violation was an aggravating factor. The judge's analysis of the factor should
not be limited to just a mathematical calculation of the roof area impacted by the violation in
comparison to the size of the roof in the 7 Right empty track, but rather should take into account a
wider scope of the circumstances surrounding the violation. Because the issue of extensiveness
involves the degree of the violation, it ultimately is a fact question concerning the material
increase in the degree of risk to miners posed by the violation. Various considerations, such as
those previously discussed, are relevant to that question.
Remand will also permit the judge to resolve a clear contradiction in his decision with
respect to the extensiveness of the sloughage. For purposes of determining whether the cited
conditions constituted a violation of section 75.202(a), the judge accepted the Secretary's position
that the widemng of the entry due to sloughage led not only to an inadequately supported roof in
the area of the extra foot ofroofbetween the rib and the bolts, but it also "compromise[d] the
integrity of the roof support system." 31 FMSHRC at 180 (increase of one foot in roof must be
considered in context of the bolt support system's design to create compression from rib to rib). 8

7

While Eastern argues that there is no evidence that all the additional bolts and jacks
were used to abate the roof control violation (E. Br. at 19), if some were used in areas of the
entry that were not cited by Rinehart, it was incumbent upon Eastern to show that at trial. It
made no attempt to do so.
8

Eastern questions whether the judge should have credited Rinehart's testimony
regarding the effect a wider roof would have had in this instance, given the inspector's
qualifications and his failure to take into account the additional roof support that Eastern had
installed, both throughout the entry and in some of the areas cited in particular. E. Br. at 16-17.
The Secretary maintains that, given Rinehart's education, experience, and training, the judge
32 FMSHRC Page 1196

Yet when he calculated the extent of the violation in determining that it was not unwarrantable,
the judge only took into account the extra foot of unsupported roof resulting from the sloughage.
Id. at 183. Given the judge's findings crediting Rinehart's testimony that the roof support system
was compromised in the areas of sloughage, it follows that the judge must address whether the
entire width of the entry in these areas should be considered as to extensiveness. See Consol, 22
FMSHRC at 362-63 (instructing that on remand scope ofunwarrantability analysis must match
scope of violation).
Our dissenting colleague correctly notes that we are not to substitute a competing version
of the facts for a view reasonably reached by the judge. Slip op. at 19 n.3 (citing Donovan ex rel.
Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983)). Yet our quarrel is not with
the judge's view of the facts - given that he accepted in its entirety the Secretary's evidence that
the roof conditions cited constituted a violation, and that he also found that the violation was an
obvious hazard that presented a high degree of danger to miners. Rather, we take exception to his
misapprehension of how those facts must be applied to determine whether the violative condition
was so extensive as to constitute an aggravating factor for purposes of determining whether
Eastem's conduct rose to the level of being an unwarrantable failure. A conclusion may not be
said to be supported by substantial evidence where the judge has not applied a correct legal
standard. Enlow Fork Mining Co., 19 FMSHRC 5, 11-12 (Jan. 1997) (remanding unwarrantable
failure determination where judge employed an incorrect legal analysis with respect to certain

correctly credited Rinehart regarding the effect that an increase in the width of the entry has
across the entry, S. Reply Br. at 3-4.
The Commission has recognized that a judge's credibility determinations are entitled to
great weight and may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC
1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The
Commission hf!S also recognized that, because the judge "has an opportunity to hear the
testimony and view the witnesses[,] he [or she] is ordinarily in the best position to make a
credibility determination." In re: Contests ofRespirable Dust Sample Alteration Citations,
17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir.
1984)), ajf'd sub nom. Secy ofLabor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir.
1998). Nonetheless, the Commission will not affirm such determinations if they are selfcontradictory or if there is no evidence or dubious evidence to support them. Id. at 1881 n.80;
Consolidation Coal Co., 11FMSHRC966, 974 (June 1989).
Here, the judge had more than adequate grounds to credit Rinehart on the issue, because
Kurry conceded on cross-examination that the additional one foot of roof resulted in the amount
of roof exceeding the original design of the roof support system with regard to those locations
where rib sloughage had been found. 31 FMSHRC at 180; Tr. 164. In addition, while Eastern is
correct that at car marker No. 239 two additional posts had been installed, that was not an area in
which the Secretary relied upon the rib sloughage to argue that there was roof stress across the
entire width of the entry. S. Reply Br. at 3.
32 FMSHRC Page 1197

record evidence). Even if a simple calculation of area were an appropriate metric for determining
extensiveness- and we have held (and our colleague's dissent acknowledges, slip op. at 18) that it
is not - the judge's formulation on the extensiveness issue dilutes the threat posed by the hazard
by using an unreasonably large area as the denominator for his calculation. Thus, his view of the
facts may not be considered to have been reasonably reached because it does not attach any
realistic proportion to the threat the condition posed to miners working in proximity to the hazard.
Furthermore, given the judge's finding that the hazard was highly dangerous and obvious,
the extensiveness must be weighed appropriately in the context of those factors, as well as the
duration factor and the other factors found to be in mitigation or aggravation. Jim Walter Res.,
Inc., 21 FMSHRC 740, 744-45 (July 1999). It is not possible for us to adequately review the
conclusion reached by the judge without his appropriate application of each of the relevant
factors. Nor is it appropriate for us to infer a conclusion that he has not reached on one of the
factors, and then to further infer, solely from his finding that the hazard did not result from the
operator's unwarrantable failure, that he must have appropriately applied this missing factor.

B.

The Duration of the Violative Conditions

The Commission has emphasized that the duration of the violative condition is a necessary
element of the unwarrantable failure analysis. See Windsor Coal Co., 21FMSHRC997, 1001-04
(Sept. 1999) (remanding for consideration of duration evidence of cited conditions). In his
decision, the judge, referring to Rinehart's estimate that the conditions had existed for a week
because the sloughage and potting out processes were gradual ones, concluded that the
"conditions had existed for more than a few days." 31 FMSHRC at 184 (citing Tr. 72). The
judge further held that there was "insufficient evidence regarding their existence beyond that
limited time period." Id. at 185.
As the Secretary states in her brief, it is not clear from the foregoing statements whether
the judge found the duration of the violative conditions to weigh in favor of, or against, the
conclusion that the violation was unwarrantable. PDR at 11-12. However, we read the judge's
decision as holding that in order for the duration of the violative conditions to establish
unwarrantability in this instance, that duration would have had to be longer than the Secretary had
established.
We cannot uphold the judge on this factor because, in reaching this conclusion, he did not
address the testimony ofLuk:etic that the conditions had been present for at least a week. Tr. 12627. Because the case is being remanded for the judge to correct errors in his analysis of the
extensiveness factor, the issue of the duration of the violation may become a more important
factor regarding whether the judge finds on remand that the violation was attributable to Eastem's
unwarrantable failure. Consequently, on remand the judge should also reexamine the issue of the
duration of the violation.

32 FMSHRC Page 1198

C.

Eastern's Knowledge of the Existence of the Violation and Whether It Had Been
Put on Notice That Greater Compliance Efforts Were Necessary

We address these two factors together because the Secretary cites the same evidence as
establishing both factors. The judge found that the Secretary had failed to establish that Eastern
had knowledge of the violative conditions or that the operator had been put on notice of the need
for greater efforts by it to achieve compliance with section 75.202(a). 31 FMSHRC at 185. The
judge concluded that it was significant that the record contained no evidence that Eastern had
actual knowledge of the cited conditions. Id. The judge was further persuaded by the lack of a
history of roof falls in the entry at issue and the fact that MSHA had not previously communicated
to Eastern that it needed to make additional efforts to comply with section 75.202(a). Id.
The Secretary argues that the judge's findings are erroneous, based on Kurry's testimony
that he knew that the roof in the entry had been subject to normal weathering over the previous 30
years. PDR at 10 (citing Tr. 150). Eastern responds that it acted conscientiously to counter the
normal weathering of the roof in question by providing additional roof support over the years
where it was needed throughout the entry. E. Br. at 22.
Nothing in the record establishes that Eastern knew of the violative conditions for which it
was cited. The Secretary made no attempt to establish actual knowledge of the cited conditions.
Moreover, the operator's knowledge that the roof was subject to normal weathering does not
necessarily lead to the conclusion that the operator should have known of the cited conditions.
The Secretary made no attempt to show that Eastern' s overall roof maintenance in the entry was
insufficient; she only established that the operator had failed to detect the conditions that were
cited in this instance. Thus, the Secretary failed to establish the predicate circumstances necessary
to conclude that Eastern reasonably should have known of the violative conditions. See Emery, 9
FMSHRC at 2002-04; compare Coal River Mining, LLC, 32 FMSHRC 82, 92 (Feb. 2010)
(operator's knowledge of the specifics of its operations should have led it to conclude that
violation charged would eventually occur).
The Secretary also argues that Eastern' s experience in maintaining the roof in the entry put
it on notice that greater efforts at compliance were necessary with respect to the roof. The
Secretary specifically points to the 15 supplemental roof bolts the operator installed in the entry
on the day prior to the inspection. PDR at 11. However, the Secretary made no attempt to show
that MSHA had put Eastern on notice that its roof maintenance efforts were inadequate, either
through the citation issuance process or more informally, by a warning from an MSHA
representative. 9

9

The Commission has stated that repeated similar violations are relevant to an
unwarrantable failure determination to the extent that they serve to put an operator on notice that
greater efforts are necessary for compliance with a standard. JO Coal, 31 FMSHRC at 1353-55;
Amax Coal Co., 19 FMSHRC 846, 851(May1997); see also Consolidation Coal Co., 23
FMSHRC 588, 595 (June 2001) ("a high number of past violations of section 75.400 serve to
32 FMSHRC Page 1199

Moreover, we view the evidence of Eastern's efforts to combat the weathering process not
as an aggravating factor, but rather as a mitigating one. The new roof bolts installed during the
prior day were just the most recent supplemental roof control measure taken by Eastern in that
entry. As Kurry detailed, additional roof bolts, steel and wooden straps, and posts and cribs had
been installed over the years in the entry since its original mining. Tr. 146-49. To agree to the
Secretary's suggestion and hold Eastern' s efforts against it in this instance would not further the
cause of safety. Consequently, we affirm the judge's conclusions as to Eastern's lack of
knowledge of the violation and the lack of prior notice to Eastern that greater efforts at
compliance were necessary.
D.

Whether the Violative Conditions Were Obvious

The judge found that the roof conditions were obvious, because fuspector Rinehart
testified that he could see the conditions when he walked up the entry, and Eastern safety
supervisor Kurry, who accompanied Rinehart, did not contradict that testimony. 31 FMSHRC at
184. Eastern argues that the record does not support the judge's conclusion regarding the
obviousness of the roof conditions. 10 According to Eastern, when there are cars on the track,
examiners have to travel on the walkway side of the track, and thus would have difficulty
detecting any expansion of the roof on the wire side of the track. E. Br. at 29.
Substantial evidence supports the judge's finding that the conditions were obvious. Only
one of the cited seven instances of inadequately supported roof solely involved conditions on the
wire side of the track. Gov't Ex. 1, 3-4, 5-8. There is no record evidence that the presence of the
cars would have obscured the other conditions cited, which involved, in whole or part, roof
potting out over the track or walkway-side rib sloughage.
Moreover, the evidence is that the conditions on the wire side would not have been so
obscured once the cars were moved. The number of cars in the entry varied from zero to 200 (Tr.
132-33), and the amount at any time was clearly controlled by Eastern. When the operator's

place an operator on notice that it has a recurring safety problem in need of correction.")
(citations omitted). The purpose of evaluating the number of past violations is to determine the
degree to which those violations have "'engendered in the operator a heightened awareness of a
serious ... problem."' San Juan Coal Co., 29 FMSHRC 125, 131(Mar.2007) (citingMidContinent Res., Inc., 16 FMSHRC 1226, 1232 (June 1994)). The Commission has also
recognized that ''past discussions with MSHA" about a problem "serve to put an operator on
heightened scrutiny that it must increase its efforts to comply with the standard." Id. (citing
Consolidation Coal, 23 FMSHRC at 595).
10

As the party defending the judge's determination that the violation was not attributable
to unwarrantable failure, Eastern can argue bases that the judge rejected in support of that
determination. See Sec'y on behalf ofPrice & Vacha v. Jim Walter Res., Inc., 14 FMSHRC
1549, 1552 n.2 (Sept. 1992).
32 FMSHRC Page 1200

actions have caused a condition not to be obvious, the Commission has not been persuaded that
the lack of obviousness is a mitigating factor in the determining whether a violation is attributable
to the operator's unwarrantable failure. See Coal River, 32 FMSHRC at 94.
Eastern also maintains that the judge should not have found the violative conditions to be
obvious because Eastern' s personnel believed that roof in the· entry was well-supported and safe.
E. Br. at 29-30. Regardless of the overall condition of the root: however, Eastern had a duty to
protect miners from areas of the roof that were inadequately supported. Furthermore, on direct
examination, Eastern safety director Kurry, who accompanied Rinehart, had an opportunity to
dispute Rinehart's account of the deficiencies he found in Eastern's roof control measures. But
Kurry agreed with Rinehart's measurements of the distances. Tr. 162. On cross-examination,
Kurry went further, and stated that the distances between the ribs and the nearest bolt in the areas
affected by sloughage exceeded the maximum distance permitted by the mine's roof control plan.
Tr. 167. Consequently, we affirm the judge's conclusion that the violation was obvious.
E.

The Degree of Danger Posed by the Violative Conditions

The Commission has relied upon the high degree of danger posed by a violation to support
an unwarrantable failure finding. See BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug.
1992) (finding unwarrantable failure where unsaddled beams "presented a danger" to miners
entering the area); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding
violation to be aggravated and unwarrantable based upon "common knowledge that power lines
are hazardous, and ... that precautions are required when working near power lines with heavy
equipment"); Quin/and Coals, 10 FMSHRC at 709 (finding unwarrantable failure where roof
conditions were "highly dangerous").
Here, the judge, referencing his S&S findings, came to the conclusion that the violative
roof conditions posed a high degree of danger to miners. 31 FMSHRC at 184. Eastern argues
that the degree 9f danger at the time of the inspection was not nearly as high as the judge found.
E. Br. at 26-28.
The judge's S&S findings focused partly on the danger posed to miners should roof
conditions continue to deteriorate over time without being addressed. See 31 FMSHRC at 18283. While it may not be clear that the roof conditions would have continued to deteriorate under
normal operations, which are presumed in an S&S analysis, the judge's ultimate conclusion does
not require such a finding. The judge's S&S findings are adequately supported by evidence of the
present danger that miners faced.
The judge found that miners were working and traveling in the entry. Id. He also took
into account the size of the materials that had already fallen from the roof Id. According to
Rinehart, there were softball- and basketball-sized pieces on the mine floor in the areas of
inadequately supported roof. See id. at 179; Tr. 39. The judge also correctly noted that in one of
the areas where roof potting had occurred, some bolts were loose, and their bearing plates were no

32 FMSHRC Page 1201

longer in contact with the roof, and thus were not providing support. 31 FMSHRC at 179, 182;
Tr. 38-42; Gov't Ex. 4A.
Moreover, elsewhere in his decision the judge does not qualify his description of the
dangers posed by the roof conditions as only occurring at some point in the future. See 31
FMSHRC at 179-80. Accordingly, we affirm the judge's finding that the danger posed to miners
by the violative conditions was an aggravating factor in this case.

32 FMSHRC Page 1202

III.
Conclusion
For the foregoing reasons, we vacate and remand the judge's conclusion as to whether the
section 75.202 violation was attributable to Eastem's unwarrantable failure, the issue of the
operator's degree of negligence in connection with the violation, and the amount of the penalty the
judge assessed for that violation. On remand the judge should reexamine the factors of
extensiveness and duration of the violation and then determine whether the Secretary has
established that the violation of section 75.202(a) was attributable to Eastem's unwarrantable
failure. Should he reach a different conclusion than in his original decision, he would also need to
reassess the penalty for the violation.

Robert F. Cohen, Jr., Commissioner

32 FMSHRC Page 1203

Commissioner Duffy, dissenting:
Because I cannot agree remand is justified in this instance, I must respectfully dissent from
the decision of my colleagues.
The question before the judge was whether the Secretary had established that Eastem's
violation of the roof control requirements of 30 C.F.R. § 75.202(a) was attributable to the
operator's unwarrantable failure. See Peabody Coal Co., 18 FMSHRC 494, 499 (Apr. 1996)
(citing Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 (Oct. 1993)). Consequently, the judge
analyzed each of the many factors that the Commission requires its judges to review each time a
citation or order is alleged to result from an operator's unwarrantable failure. 31 FMSHRC at
183-85; see also slip op. at 5. After doing so, he concluded that Eastem's degree of negligence in
connection with the roof control violation did not reach the level of aggravated conduct that
constitutes unwarrantable failure under the Mine Act. 31 FMSHRC at 185-86.

In the face of such an analysis and holding, the only issue this case presents is whether the
judge's ultimate conclusion is supported by substantial evidence. See 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)).
In my opinion, the majority errs in concluding that, because the judge's analysis as to one
of the seven factors he examined was faulty (the extent of the violative condition), and the judge
failed to expressly address all of the record testimony with respect to another factor (the duration
of the violation), the case must be remanded for a cure of these defects. The majority's approach
entirely ignores whether substantial evidence supports the judge's overall conclusion that the
Secretary failed to establish that the violation was attributable to unwarrantable failure.
Taking the duration of the violation factor first, I cannot agree with the majority that the
judge's analysis of this factor falls short of what we expect of our judges. The majority instructs
the judge that on remand he needs to address the testimony of miners' representative Luketic that
the violative condition had been present for at least a week. Slip op. at 10 (citing Tr. 126-27).
However, a careful reading of the judge's decision and the record reveals that it is not surprising
that the judge did not consider this testimony, because the judge did not credit any ofLuketic's
testimony on the evidence ofEastem's alleged unwarrantable failure. The judge only credited
Luketic's testimony regarding the existence of the condition, and then just partially so. See 31
FMSHRC at 180 n.9.
The judge had ample opportunity to credit Luketic on the unwarrantable failure evidence,
but passed in every instance. For instance, Luketic stated that Eastern had "neglected" roof

32 FMSHRC Page 1204

control in the 7 Right empty track. Tr. 120. As both the judge concluded and the Commission
concurred, the evidence is quite to the contrary. ~ee 31 FMSHRC at 184-85; slip op. at 11-12. 1
Moreover, with regard to the duration factor, the judge stated that "there is insufficient
evidence" the violative condition existed beyond a few days. 31 FMSHRC at 185. I read this as a
barely veiled finding refusing to credit Luketic's testimony that the violation had existed for a
week or more.
The judge also ignored Luketic's testimony that cut in favor of the operator with regard to
unwarrantable failure. Luketic testified that big lumps of coal had not fallen out of the areas of
inadequately supported roof to the mine floor. Tr. 127. The judge instead credited Rinehart
regarding the material that had fallen from the roof. See 31 FMSHRC at 179, 182. Rinehart
testified that he observed softball- and basketball-size roof pieces on the mine floor (Tr. 39), and
the judge relied on that testimony to find the violation to be S&S and thus be an aggravating
factor in his unwarrantable failure analysis, as it established that the violation posed a high degree
of danger to miners. See 31 FMSHRC at 182, 184. If remand for the judge to consider Luketic's
testimony is called for with respect to the duration factor, it is thus also called for with respect to
the danger factor, to resolve the conflict between Luketic's testimony and Rinehart's testimony on
the material that had fallen from the roof.

In light of the foregoing, I can only conclude that the judge made an implicit negative
credibility finding as to Luketic's testimony on the unwarrantable failure evidence. This, of
course was well within the judge's discretion to do. 2 Because the Secretary has advanced no

1

Eastern was cited for a roof control violation in an area of the mine, the Right 7 empty
track, in which it had no history of such violations before, and there is not an iota of evidence
that MSHA had put the operator on notice that greater roof control efforts were needed there.
See 31 FMSHRC at 184-85. As the majority finds, this was not a coincidence. The operator had
an ongoing roof maintenance program in that area of the mine. See slip op. at 12. I thus agree
with the majority that this mitigates Easteni's level of negligence in this instance. That the
Secretary believed that she had to attempt to convert a mitigating factor into an aggravating
factor in order to establish unwarrantability in this instance, first below and then on review,
undermines her credibility here. As the majority properly concludes, the primary consideration
under the Mine Act is furthering the cause of safety. Id. It appears that may have been forgotten
by the Secretary in formulating her litigation strategy in this case.
2

A judge's credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992);
Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has recognized
that, because the judge "has an opportunity to hear the testimony and view the witnesses[,] he [or
she] is ordinarily in the best position to make a credibility determination." In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting
32 FMSHRC Page 1205

reason to overturn this credibility resolution, I do not join my colleagues in remanding the case to
the judge to merely do explicitly what he clearly did implicitly in his original decision.
That leaves only the factor of the extent of the violation at issue in this case. I agree with
the majority that the judge's approach to determining the extent of the violation- calculating the
square footage of inadequately supported roof and dividing it by the entirety of roof in the relevant
area of the Right 7 empty track - should not be countenanced. Slip op. at 7. Roof control in a
mine is too idiosyncratic a subject to properly capture the extent of the condition with such a
formulaic analysis.
However, I do not believe that the Commission's unwarrantable failure precedent
necessarily requires that a case be remanded for a judge to correct an analytical error he made with
respect to a single individual factor. Moreover, I cannot agree that the more complex analysis of
the extensiveness factor that the Commission apparently expects upon remand will lead to an
improved decision the second time around. See slip op. at 7-8.
First of all, remand is only necessary if the error the judge made was not harmless to his
overall conclusion. As I believe the judge's failure to conduct a more exhaustive analysis of the
extent of the violation does not significantly detract from his overall conclusion that the violation
was not unwarrantable, I do not believe that remand is necessary in this instance.
My belief in that regard is buttressed by the substance of the majority's remand. While the
majority points out the evidence the judge could consider in this instance with regard to the
extensiveness of the violation, it hardly provides clear instructions to the judge as to how to
conduct an extensiveness analysis. See id. That is perfectly understandable, because of the nature
of roof control violations. Unlike, for instance, accumulation violations, there are no readily
accepted and calculable standards for determining whether roof control violations should be
considered extensive.
Accordingly, it is much less complicated, and thus appropriate, to look at a roof control
violation in question in the context of Commission precedent. In Quin/and Coals, Inc., 1O
FMSHRC 705 (June 1988), the Commission, in affirming the judge that a roof control violation
was attributable to the operator's unwarrantable failure, stated that:
The conditions indicating that the roof was not adequately
supported were extensive and visually obvious. The judge credited
the inspector's testimony that, in addition to the broken posts that
had not been replaced and were lying on the floor of the entry, there
was a large roof fall near the intersection of the entry and the
crosscut, there were cracks in the roof running from the intersection

Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), aff'd sub nom. Sec'y ofLaborv.
Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998).
32 FMSHRC Page 1206

to and over the seal, and one side of the seal was being crushed by
the weight of the roof.
10 FMSHRC at 708. In contrast, in Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the
Commission reversed a judge's finding of unwarrantable failure because the violation only
involved four roof bolt bearing plates that had popped off in a track entry in which the operator
had been diligent in its roof control efforts. Id. at 2004-05.
Here, the extent of the roof control violation in the 7 Right empty track fell somewhere in
between those two cases, as it was clearly less than in Quin/and Coals, but greater than in Emery.
Because there is substantial evidence in the record to support the conclusion that the violation was
closer in extent to Emery than it was to Quin/and Coals, I would not remand the case to the judge
for additional analysis. 3
For the foregoing reasons I thus dissent from the decision remanding this case, and would
instead affirm the judge on the ground that substantial evidence supports his conclusion that the
Secretary did not establish that the roof control violation was attributable to Eastem's
unwarrantable failure in this instance.

3

If the judge had determined that the Eastern roof control violation was extensive, I
would have found substantial evidence in the record to uphold that determination, given the
number of instances of sloughage and potting out noted by Inspector Rinehart. However, the
judge found that the violation was not extensive, and the only question is whether the evidence in
the record supports that finding. In applying the substantial evidence standard, the Commission
may not "substitute a competing view of the facts for the view that the ALI reasonably reached,"
even if there is also support in the record for the Commission's own view. Donovan ex rel.
Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983).
32 FMSHRC Page 1207

Distribution

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty A venue
Pittsburgh, PA 15222
Whitney G. Clegg, Esq.
Jackson Kelly, PLLC
1144 Market St., Suite 400
P.O. Box 871
Wheeling, WV 26003
Edward Waldman, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1208

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

October 20, 2010
Docket No. KENT 2010-1062
A.C. No. 15-18784-214933 Q080

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

Docket No. KENT 2010-1063
A.C. No. 15-18823-214934 Q080

V.

Docket No. KENT 2010-1064
A.C. No. 15-17360-214926 Q080

TRNETTE TRUCKING

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 18, 2010, the Commission received from Trivette
Trucking ("Trivette") motions made by counsel to reopen three penalty assessments that had
become final orders of the Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C.
§ 815(a). 1 On June 4, 2010, the Commission received a response from the Secretary of Labor
stating that she does not oppose the requests to reopen.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed .
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held 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

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2010-1062, KENT 2010-1063, and KENT 2010-1064, all
captioned Trivette Trucking, and all involving similar procedural issues. 29 C .F .R. § 2700 .12.
32 FMSHRC Page 1209

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

Robert F. Cohen, Jr., Commissioner

~l

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1210

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

32 FMSHRC Page 1211

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

October 20, 2010

Docket Nos.

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

V.

PERFORMANCE COAL COMPANY

WEVA 2007-460
WEVA2007-470
WEVA 2007-576
WEVA 2007-608
WEVA 2007-672
WEVA 2007-767
WEVA 2008-249
WEVA 2008-888
WEVA 2008-889
WEVA 2008-890
WEVA 2008-891
WEVA 2008-892
WEVA 2009-129
WEVA 2009-281
WEVA 2009-282
WEVA 2009-283
WEVA 2009-831

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act" or "Act"). On June 2, 2010, Administrative
Law Judge Margaret Miller issued orders granting in part and denying in part a motion to stay 44
dockets involving Performance Coal Company ("Performance") filed by the Secretary of Labor.
Unpublished Orders dated June 2, 2010. 1 The Secretary filed unopposed petitions for
discretionary review seeking review of the Judge's order denying the stay as to 17 of the dockets.

1

The Judge issued seven orders granting in part and denying in part the Secretary's
motion to stay in these proceedings. For purposes of this order, they are collectively referred to
as the "June 2 Order."
32 FMSHRC Page 1212

On June 30, 2010, we issued an order that directed the matter for review, consolidated the
proceedings for purposes of our review, and suspended the proceedings before the Judge. For the
reasons that follow, we vacate our direction for review.
I.
Factual and Procedural Background
Performance operates the Upper Big Branch Mine (''UBB") in Raleigh, West Virginia. On
April 5, 2010, that mine experienced a major explosion involving multiple fatalities. On
May 17, 2010, the Secretary filed a motion to stay 44 dockets involving citations and orders
issued to Performance by the Department of Labor's Mine Safety and Health Administration
{"MSHA") at UBB. The Secretary explained that R. Booth Goodwin, IT, Assistant United States
Attorney ("AUSA") for the Southern District of West Virginia, sent Douglas White, the Associate
Regional Solicitor for the Department of Labor, a letter dated May 14, 2010, stating that the U.S.
Attorney's office is currently conducting a criminal investigation of violations that have occurred
atUBB.

In the May 14 letter, the AUSA requested that MSHA petition the Judge for a "stay of the
pending civil actions pertaining to UBB until the criminal matters are resolved, as well as any
other cases that are subsequently docketed." S. Mot. to Stay, Ex. B at 1. The AUSA stated that a
number of cases pending before the Commission potentially constitute separate violations of the
provisions of the Mine Act setting forth criminal penalties for willful and knowing violations (see
30 U.S.C. § 820(c), (d)), and that each violation may also provide evidence that other violations
were committed willfully and knowingly. Id. He further explained that each violation may
provide a context that would be lacking if each were considered separately, and that the violations
may involve identical factual issues. Id. at 1-2.
On May20, 2010, Judge Miller heard argument on the Secretary's motion to stay. The
Secretary's counsel noted that the criminal investigation conducted by the U.S. Attorney's office
is much broader than-the MSHA accident investigation. Tr. 6-7. She stated that, given the fiveyear criminal statute oflimitations, the U.S. Attorney's investigation encompasses the previous
five years. Tr. 7. The Secretary's counsel stated that the date of the earliest alleged violation at
issue in the MSHA proceedings is June 3, 2006. Tr. 7. Therefore, all of the violations at issue in
the proceedings before the Commission are within the scope of the criminal investigation. Tr. 7.
The Secretary's counsel suggested that since the explosion at UBB was the worst disaster in 40
years, the scope of the criminal investigation will most likely be comprehensive and thorough. Tr.
20-21.
The Secretary's counsel further noted that continuing the civil proceedings before the
Commission might prejudice, or interfere with, the criminal investigation and any potential
prosecution. Tr. 13-14. She noted that liberal civil discovery procedures may provide criminal
defendants with access to materials that would not be available to them under more limited

32 FMSHRC Page 1213

criminal discovery rules. Tr. 13. The Secretary's counsel also stated that the Secretary may not
be able to fully develop the Secretary's case and effectively prosecute the civil proceedings if she
is met with Fifth Amendment objections during discovery or at a hearing. Tr. 14-15.
The operator's counsel agreed with the Secretary's argument that staying the Commission
proceedings would be appropriate. Tr. 21. The operator's counsel stated that although
Performance itself would not invoke a Fifth Amendment right, mine managers would invoke their
Fifth Amendment rights and the company might not have any fact witnesses to present its defense
in the civil proceedings. Tr. 24-26. The operator's counsel also clarified that the parties were
asking for more of a temporary stay than a blanket stay. Tr. 21-22. She stated that if the cases
were stayed approximately six months, the parties could revisit the older cases and determine
whether any grand jury investigation had taken place at that time. Tr. 22.

In considering the motion to stay, the Judge applied the following five factors set forth in
Buck Creek Coal Co., 17 FMSHRC 500, 503 (Apr. 1995) for determining whether a Commission
case should be stayed because of the pendency of a related criminal investigation or prosecution.
Those factors are: (1) the commonality of evidence in the civil and criminal matters; (2) the
timing of the stay request; (3) prejudice to the litigants; (4) the efficient use of agency resources;
and (5) the public interest. June 2 Order at 2. The Judge stated that the ''threshold issue" in
determining whether to stay a proceeding pending before a Commission Judge is whether there is
a commonality of evidence between the civil and criminal matters. Id. at 2. The judge noted that
the Secretary was unable to provide information about the criminal investigation, such as which
violations were being investigated, the focus of the investigation, or the length of the
investigation. Id. Although she acknowledged that both parties claimed that they would be
prejudiced by a denial of the stay, the Judge concluded that the Secretary had failed to "meet the
threshold issue,"' particularly with regard to violations that occurred in 2006 and 2007. Id.
Accordingly, the Judge denied the stay as to the 17 dockets that involved citations and orders
issued before January 1, 2009. Id. at 2, 3. The Judge left ''the door open for the United States
Attorney to present further evidence regarding the necessity of a stay for the earlier cases, either
by supplemental motion or in camera review." Id. at 3.

n.
Disposition

In the unopposed petitions, the Secretary argues that the Judge abused her discretion by
denying the stay as to the 17 dockets. She asserts that the Judge misapplied all five Buck Creek
factors. PDR at 11-19. The Secretary submits that, although the Judge's June 2 Order is not a
final disposition of the proceedings, the Commission may review the order under the collateral
order doctrine. Id. at 8-11. Because we conclude that the Judge's June 2 Order is not presently

32 FMSHRC Page 1214

reviewable under the collateral order doctrine, we do not reach the Secretary's arguments that the
Judge erred in applying the Buck Creek factors. 2
The collateral order doctrine is a practical construction of the final judgment rule which
has been applied in federal courts. The final judgment rule, as set forth in 28 U.S.C. § 1291,
permits appeal only from "all final decisions" of a district court. In Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541 (1949), the Supreme Court recognized that appeals of a small class of
decisions which appear interlocutory in nature must be permitted if those decisions "finally
determine claims of right separable from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated." Id. at 546. The Court cautioned,
however, that appeal gives an upper court "a power of review, not one of intervention." Id. Thus,
if a matter remains "open, unfinished or inconclusive," there may be no "intrusion by appeal." Id.
The Supreme Court has clarified that there are three prongs that must be satisfied under
the collateral order doctrine. Specifically, an order that does not conclude an action may
nonetheless be immediately appealable if it: (1) conclusively determines a disputed question;
(2) resolves an important issue separate from the merits of the action; and (3) is effectively
unreviewable on an appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978). In order to be reviewable, the order must satisfy all three requirements. Stringfellow
v. Concerned Neighbors in Action, 480 U.S. 370, 375 (1987). The Supreme Court has ''warned"
that the issue of appealability must be determined for the entire category to which a claim belongs,
without regard to the chance that the litigation at hand might be speeded, or a particular injustice
averted, by a prompt appellate court decision. Digital Equipment Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 868 (1994) (citations omitted).
The Commission has not previously applied the collateral order doctrine to immediately
review a non-final Judge's order. We conclude that we should not do so in these proceedings
because the first prong of the collateral order doctrine, that the order "conclusively determine" a
disputed question, has not been satisfied.
That the order '"conclusively determine a disputed question,' has been interpreted to mean
that the district court has clearly said its last word on the subject." 19 James Wm. Moore et al.,
Moore's Federal Practice~ 202.07[1], at 202-28 (3d ed. 2010) ("Moore's"). The Supreme Court
2

We note, however, that consideration of the Buck Creek factors involves a balancing
test in which the factors are weighed against each other in order to determine whether the
balance favors a stay. See, e.g., Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th
Cir. 1995). No single factor is meant to be dispositive, so that the lack of evidence on a single
factor at a preliminary stage of proceedings does not necessarily indicate that proceedings should
not be stayed. Rather, that factor is weighed with other factors, and if available evidence weighs
in favor of a stay, the stay should be granted. The Buck Creek factors must also be weighed
against a background of coordinated and consistent government action between agencies.
32 FMSHRC Page 1215

has "allowed collateral order review where there was 'no basis to suppose that the District Judge
contemplated any reconsideration of his decision,' Moses H Cone Mem 'l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 12-13 ... (1983), and prohibited it where the relevant order was left
'subject to revision.' [Coopers & Lybrand, 437 U.S. at 469]." Harris v. Kellogg Brown & Root
Svcs., Inc.,_ F.3d _, 2010 WL 3222089 at *3 (3d Cir. 2010). Thus, "'[t]entative' rulings can
never satisfy the 'conclusively determined' requirement." Id., quoting Digital Equip., 511 U.S. at
869 n.2; Coopers & Lybrand, 437 U.S. at 469 n.11; Cohen, 337 U.S. at 546.
The Supreme Court has addressed the first prong of the collateral order doctrine in the
context of motions to stay federal litigation pending the resolution of parallel state proceedings.
In Moses H. Cone,3 the Supreme Court found immediately appealable a district court's order
granting a motion to stay litigation in federal court pending the resolution of the same issue in a
concurrent state court proceeding. The Supreme Court "contrasted two kinds of nonfinal orders:
those that are "'inherently tentative,' ... and those that, although technically amendable, are made
'with the expectation that they will be the final word on the subject addressed.'" 460 U.S. at 1213 & n.14. The Court concluded that the order granting the stay of litigation in that case was not
tentative because such an order contemplated that the state proceeding would be an adequate
vehicle for the resolution of the issues between the parties. Id. at 28.

fu contrast, in Gulfetream Aerospace Corp. v. Mayacamas Corp.,4 the Supreme Court
recognized that the decision in that case to deny a stay was inherently tentative and did not satisfy
the first prong of the collateral order doctrine. The Court stated that a district court that denied the
motion did not "necessarily contemplate" that the decision would close the matter for all time.
485 U.S. at 278. It opined that given the nature of the factors considered in that case and "the
natural tendency of courts to attempt to eliminate matters that need not be decided from their
dockets, a district court usually will expect to revisit and reassess an order denying a stay in light
of events occurring in the normal course of litigation." Id. Similarly, in Sinclair Oil Corp. v.
Amoco Production Co., 982 F.2d 437, 441 (10th Cir. 1992), the Court determined that the district
court's motion denying a stay was not immediately appealable because it was expected that the
district court would "revisit and reassess" its order.
Here, we conclude that Judge Miller's denial of the stay was tentative in nature. fu her
written order, the Judge explicitly stated, "I leave the door open for the United States Attorney to
present further evidence regarding the necessity of a stay for the earlier cases, either by
supplemental motion or in camera review." June 2 Order at 3. In addition, during the hearing,

3

Moses H Cone Mem 'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983), superseded
by statute on other grounds as stated in Bradford-Scott Data v. Physician Computer Network,
128 F.3d 504, 506 (7th Cir. 1997).
4

Gulfetream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287-88 (1988),
superseded by statute on other grounds as stated in In re Piper Funds, Inc. v. Piper Capital
Mgmt., Inc., 71F.3d298, 300 (8th Cir. 1995).
32 FMSHRC Page 1216

the Judge repeatedly noted that she was denying the stay "at this point," but that she was willing
to review any evidence provided by the U.S. Attorney. Tr. 37 ("I'm leaving it open a little bit, if
the U.S. Attorney wants to be a little more forthcoming with what they're doing."), 42, 73, 88.
We do not find persuasive the parties' argument that the Judge's denial of the stay motion
was conclusive because the U.S. Attorney "has not provided any further information to the ALJ,
and has informed the Secretary that he does not intend to do so." PDR at 10. The Judge would
likely revisit and reassess her motion denying the stay during the normal course of litigation, as
more specific information becomes available through the investigative process.
Because we conclude that the first prong of the collateral order doctrine has not been
satisfied, we need not reach the remaining two prongs. Accordingly, we conclude that the Judge's
June 2 orders are not reviewable under the collateral order doctrine. 5

5

We also need not reach the question of whether the Secretary's petitions for
discretionary review may be deemed to be petitions for interlocutory review under Commission
Procedural Rule 76, 29 C.F.R. § 2700.76. Rule 76(a)(2) provides in part that the Commission
may grant interlocutory review ''upon a determination that the Judge's interlocutory ruling
involves a controlling question oflaw and that immediate review may materially advance the
final disposition of the proceeding." 29 C.F.R. § 2700.76(a)(2). The parties have conceded that
the petitions cannot properly be considered as seeking interlocutory review under Rule 76, stating
that, "The ALJ's order here does not involve a 'controlling question oflaw. '" PDR at 8 n.3.
32 FMSHRC Page 1217

III.

Conclusion

For the foregoing reasons, we hereby vacate the direction for review that we issued on
June 30, 2010, our consolidation of these proceedings, and our stay of proceedings before the
Judge. 6

~-

~ ..

MiclUlcl~--

Robert F. Cohen, Jr., Commissioner

~L

Patrick K. Nakamura, Commissioner

6

Given the amount of time that has passed since the issuance of the June 2 orders, we
suggest that judicial economy might be served if the parties informed the Judge of the current
status of the MSHA and criminal investigations, including any facts that might support a renewed
motion to stay.
32 FMSHRC Page 1218

Distribution:
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
Edward Waldman, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Margaret A. Miller
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

32 FMSHRC Page 1219

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

October 21, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEYA 2010-992
A.C. No. 46-04955-212816

v.
LONG BRANCH ENERGY

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 6, 2010, the Commission received from Long
Branch Energy ("Long Branch") a motion by counsel seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
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).
32 FMSHRC Page 1220

On March 3, 2010, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000212816 to Long Branch proposing penalties for
10 citations, including Citation Nos. 8078978, 8078979, and 8078980. The operator states that it
intended to contest the penalties associated with Citation Nos. 8078978, 8078979, and 8078980,
but that the assessment form was misplaced. It explains that the failure to timely contest the
proposed penalties was ''the result of inadvertence or a mistake."
The Secretary opposes the request to reopen. She states that Long Branch's explanation
for the failure to file a timely contest is conclusory and thus insufficient to establish grounds for
reopening the assessment. The Secretary also notes that the operator has filed another reopening
request describing a similar procedural failure.
Having reviewed Long Branch's request, we conclude that the operator has not provided
a sufficiently detailed explanation for its failure to timely contest the proposed penalty
assessment. Without further elaboration, the operator's explanation has not provided the
Commission with an adequate basis to reopen. Accordingly, we hereby deny the request for
relief without prejudice. See Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008);
James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). The words ''without prejudice"
mean that Long Branch may submit another request to reopen Assessment No. 000212816.

32 FMSHRC Page 1221

At a minimum, the operator must provide an explanation of how it normally contests
proposed penalties and specific information regarding why that process did not work in this
instance. Any amended or renewed request by Long Branch to reopen Assessment No.
000212816 must be filed within 30 days of the date of this order. Any such request filed after
that time will be denied with prejudice.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner·

32 FMSHRC Page 1222

Distribution:
Melissa Robinson, Esq.
Jackson Kelly PLLC
1600 LaidleyTower
P.O. Box 553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris, Acting Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25 1h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1223

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

October 21, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2010-673-M
A.C. No. 39-00012-212991

v.
L.G. EVERIST, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On May 3, 2010, the Commission received from
L.G. Everist, Inc. ("Everist") a motion by counsel to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section lOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1224

On March 4, 2010, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000212991 to Everist for eight citations and one
order that MSHA had issued to the operator in January of this year. Everist states that it intended
to contest one of the proposed penalties, but "due to inadvertence and mistake by Company
personnel," the proposed assessment form was not processed in a timely manner.
The Secretary opposes the request to reopen on the basis that the operator has made no
showing of the exceptional circumstances that warrant reopening. She states that the operator's
conclusory statement that the assessment form was not timely processed due to "inadvertence
and mistake" is insufficient to justify reopening.
Having reviewed Everist's request and the Secretary's response, we conclude that Everist
has failed to provide a sufficiently detailed explanation for its failure to timely contest the
proposed penalty assessment. The operator's explanation that it failed to file a timely contest due
to "inadvertence and mistake" by company personnel without any further elaboration, does not
provide the Commission with an adequate basis to justify reopening of the assessment.
Accordingly, we deny without prejudice Everist's request. See, e.g., Eastern Associated Coal
LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July
2007).

32 FMSHRC Page 1225

Any amended or renewed request by Everist to reopen Assessment No. 000212991 must
be filed within 30 days of the date of this order. Any such request filed after that time will be
denied with prejudice.

21¢~
~

~

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1226

Distribution:
Laura E. Beverage, Esq.
Jackson Kelly PLLC
I 099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann,.Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, CJ;lief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1227

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

October 21, 2010

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

Docket No. WEVA 2008-804
A.C. No. 46-04168-142950

v.
WOLF RUN MINING COMPANY
BEFORE: Jordan, Chairman; Duffy and Young, Commissioners 1
DECISION
BY: Jordan, Chairman; Young, Commissioner
In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act"), Administrative Law Judge Jerold Feldman
determined that a violation of a safeguard notice, issued pursuant to section 314(b) of the Mine
Act, 30 U.S.C. § 874(b), and 30 C.F.R. § 75.1403, may properly be designated as significant and
substantial ("S&S"). 2 Wolf Run Mining Co., 30 FMSHRC 1198 (Dec. 2008) (ALJ) and 31
FMSHRC 306 (Feb. 2009) (ALJ). The mine operator filed a petition for discretionary review
challenging the judge's determination, which the Commission granted. For the reasons that
follow, we affirm the judge's determination.

1

Commissioner Cohen took no part in the consideration of the petition for discretionary
review ("PDR") and has recused himself from the case. Commissioner Nakamura assumed
office after this case had been considered at a Commission meeting. A new Commissioner
possesses legal authority to participate in pending cases, but such participation is discretionary.
Mid-Continent Res., Inc., 16 FMSHRC 1218 (June 1994). In the interest of efficient decision
making, Commissioner Nakamura has elected not to participate in this matter.
2

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."

32 FMSHRC Page 1228

I.
Factual and Procedural Background
On June 27, 2000, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Notice of Safeguard No. 7095089 at the Sentinel Mine located in West
Virginia and operated by WolfRun Mining Company ("Wolf Run"). 31 FMSHRC at 306.
Safeguard No. 7095089 cited the criterion in 30 C.F.R. § 75.1403-5(j) that requires suitable
crossing facilities where persons cross over or under moving conveyor belts. The safeguard
notice was issued pursuant to section 314(b) of the Mine Act, 30 U.S.C. § 874(b), and 30 C.F.R.
§ 75.1403. 3 The language of section 314(b) of the Mine Act and the language of30 C.F.R. §
75.1403 are identical. Both provisions state:
Other safeguards adequate, in the judgment of an authorized representative
of the Secretary [of Labor], to minimize hazards with respect to transportation of
men and materials shall be provided.
Nearly eight years later, MSHA fuspector Jeffrey Maxwell issued Citation No. 66061994
to Wolf Run after he determined that someone had crossed under a return belt that was
suspended 24 inches above the mine floor. 31 FMSHRC at 308. There was no belt crossover

3

The procedures by which an authorized representative of the Secretary may issue a
citation pursuant to section 75.1403 are described in 30 C.F.R. § 75.1403-l(b):
The authorized representative of the Secretary shall in writing advise the
operator of a specific safeguard which is required pursuant to section 75.1403 and
shall fix a time in which the operator shall provide and thereafter maintain such
safeguard. If the safeguard is not provided within the time fixed and if it is not
maintained thereafter, a notice shall be issued to the operator pursuant to section
104 of the Act.
Moreover, 30 C.F.R. §§ 75.1403-2 through 75.1403-11 set forth specific "criteria" which guide
authorized representatives in requiring safeguards. Section 75.1403-5 is entitled: "Criteria-Belt
conveyors," and section 75.1403-5(j) states:
Persons should not cross moving belt conveyors, except where suitable
crossing facilities are provided.
4

Citation No. 6606199 states that "[a] suitable crossing facility is not being provided
where miners are required to cross the moving# 5 [belt] coal conveyor belt at# 20 block. The
bottom of the return belt is 24 inches from the mine floor, and there is evidence that miners have
been crossing under the moving coal conveyor belt at this location." The citation alleged a
violation under 30 C.F.R. § 75.1403-5(j).
32 FMSHRC Page 1229

provided at this location. Id. The citation alleged a violation of Safeguard No. 7095089 because
a suitable crossing facility was not provided to enable miners to safely cross over a moving
conveyor belt. The violation was designated as S&S based on the Secretary's assertion that the
cited condition was "reasonably likely'' to contribute to an accident that would result in a serious
injury. Id. at 306-07. To terminate the citation, Wolf Run installed an aluminum crossover at the
cited location. Id. at 308.
Wolf Run contested the citation and the case was assigned to Judge Feldman. On
October 30, 2008, before the case was heard, the Secretary filed a motion to modify the citation
seeking to insert Mine Act section 314(b) and to amend existing language from 30 C.F.R.
§ 75.1403-5(j) to 30 C.F.R § 75.1403. Wolf Run then filed an opposition to the Secretary's
modification motion and a motion for partial summary judgment, claiming that the S&S
designation should not be applied to a violation of a safeguard notice.
On December 18, 2008, the judge issued an Order Denying the Secretary's Motion to
Amend as Moot and Order Denying Respondent's Motion for Partial Summary Decision. 30
FMSHRC 1198. The judge ruled that the Secretary did not need to replace the safeguard
criterion set forth in section 75.1403-5(j) with Mine Act section 314(b) and section 75.1403. Id.
at 1199. He reasoned that the Secretary's authority to issue safeguard notices under section
314(b) of the Mine Act, which is codified in section 75.1403 of the regulations, is inseparable
from the safeguard criteria set forth in section 75.1403-2 through 75.1403-11. Id.

In denying Wolf Run' s summary judgment motion, the judge determined that safeguard
notices are issued as an interim mandatory safety standard under section 314(b) of title III of the
Act, and that a "mandatory health or safety standard" under section 3(1) of the Act, 30 U.S.C. §
802(1 ), includes an interim mandatory standard promulgated in Title III. Id. at 1200. Section
3(1) provides that "'mandatory health or safety standard' means the interim mandatory health or
safety standards established by titles Il and III of this Act, and the standards promulgated
pursuant to tltle I of this Act." The judge also relied on the language of section 301(a), 30 U.S.C.
§ 861(a), which states that interim mandatory safety standards in sections 302 to 318 "shall be
enforced in the same manner and to the same extent as any mandatory standard." Id. at 1200.
In order to facilitate review of the judge's decision on the S&S issue, the Secretary and
Wolf Run filed a Joint Motion for Final Decision on February 18, 2009. There the parties
stipulated that a violation of section 75.1403 occurred, that the gravity level was "reasonably
likely'' to result in "lost work days or restricted duty" injury for one miner, that the negligence
level was "moderate," and that the proposed "penalty of$1,304 [was] appropriate" and "would
not affect the ability of the operator to continue in business." Jt. Mot. at 3. On February 26,
2009, the judge granted the joint motion. 31 FMSHRC 306. He reiterated his previous
determination that "it is appropriate to designate safeguard violations as significant and
substantial," and found that "it is reasonably likely that the hazard posed by crawling under, or

32 FMSHRC Page 1230

climbing over, a moving beltline will result in an accident causing serious injury." Id. at 309. As
a result, the judge found the violation to be S&S and imposed a penalty of$1,304. Id. 5

II.
Disposition
Wolf Run argues that the judge erred by holding that safeguard notices qualify as
mandatory standards which can be designated as S&S. PDR at 4. It submits that Wolf Run
violated a safeguard, not section 314(b) of the Act or 30 C.F.R. § 75.1403. PDR at 8; WR Br. at
7; WR Reply Br. at 6. Wolf Run argues that section 3 l 4{b) is simply a grant of regulatory
authority to the Secretary and establishes no standard or obligation with which a mine operator
must comply. WR Reply Br. at 5. It asserts that because safeguard notices are not plainly
defined as mandatory standards under section 3(1 ), they cannot serve as the basis for S&S
designations. PDR at 9. In addition, Wolf Run claims that safeguard notices do not qualify as
mandatory standards because they are issued without notice-and-comment rulemaking. Id. at 6-

7.
The Secretary responds that a violation of section 314(b) and 30 C.F.R. § 75.1403 can be
designated as S&S because they constitute "mandatory safety standards" under the Mine Act.
S. Br. at 13. She counters that the standard violated in section 314(b) of the Act and 30 C.F.R.
§ 7 5 .1403 is the requirement that "operators provide safeguards judged adequate by a
representative of the Secretary.... " Id. at 15 n.9. The Secretary also maintains that the Act does
not require mandatory safety standards to be promulgated pursuant to notice-and-comment
rulemaking, but only to fall within the statutory definition of "mandatory safety standard" set
forth in section 3(1), which the safeguard provisions do. Id. at 16-17. Thus, she urges the
Commission to affirm the judge's determination that a violation of a safeguard notice may be
designated as S&S based on the plain meaning of the Mine Act. Id. at 20. Alternatively, the
Secretary asserts that, if the Commission concludes that the statute is not plain, the Commission
should affirm the Secretary's interpretation as "eminently reasonable." Id.
A.

Does the Mine Act Directly Address Whether a Safeguard Notice Qualifies as a
Mandatozy Safety Standard. a Violation of Which May Be Designated as S&S

The first inquiry in statutory construction is ''whether Congress has directly spoken to the
precise question at issue." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is

5

Judge Feldman noted that Judge Zielinski had issued two orders regarding the propriety
of designating safeguard violations as S&S that conflicted with his decision. Big Ridge, Inc., 30
FMSHRC 1172 (Nov. 2008) (AU); Cumberland Res. LP, 30 FMSHRC 1180 (Dec. 2008) (ALJ)
(interim orders granting partial summary judgments to operators and denying the Secretary's
motions to amend). 31 FMSHRC at 308.
32 FMSHRC Page 1231

clear and unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-43;
accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990). Deference to
an agency's interpretation of the statute may not be applied ''to alter the clearly expressed intent of
Congress." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (citations omitted). In
ascertaining the plain meaning of the statute, courts utilize traditional tools of construction,
including an examination of the "particular statutory language at issue, as well as the language and
design of the statute as a whole," to determine whether Congress had an intention on the specific
question at issue. Id.; Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal Employment
Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989). The examination to determine whether
there is such a clear Congressional intent is commonly referred to as a "Chevron l' analysis. See
Coal Employment Project, 889 F.2d at 1131; Thunder Basin, 18 FMSHRC at 584; Keystone Coal
Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994).
Section 104(d)(l) of the Mine Act provides that a violation can be designated as S&S only
if it is a violation of a ''mandatory health or safety standard. •'6 The primary statutory interpretation
issue presented by this case is whether Congress directly spoke to the question of whether a
violation of section 3 l 4{b) of the Act is a violation of a mandatory safety standard and therefore
can constitute an S&S violation.
Sections 3(1) and 30l(a) of the Act both address the question of what constitutes a
mandatory safety standard. Section 3(1) defines the key term "mandatory health or safety
standard" as "the interim mandatory health or safety standards, established by titles II and III of
this Act, and the standards promulgated pursuant to title I of this Act." 30 U.S.C. § 802(1).
Moreover, section 301(a) of the Act provides in pertinent part that "[t]he provisions of sections
302 through 318 of ... [title III] shall be interim mandatory safety standards applicable to all
underground coal mines until superseded in whole or in part by improved mandatory safety
standards promulgated by the Secretary under the provisions of section 101 of this Act ...." 30
U.S.C. § 861(a). Section 301(a) further provides that sections 302 through 318 "shall be enforced
in the same manner and to the same extent as any mandatory safety standard promulgated under
section 101 of this Act." Thus, the statutory language clearly states that the provisions of sections
302 through 318 of title III, unless superseded, are enforced as mandatory standards.

6

Section 104(d)(l), 30 U.S. C. § 814(d)(l) states in pertinent part:

If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation of any
mandatory health or safety standard, and if he also finds that, ... such violation
is of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard ... , he shall include
such finding in any citation ... [emphasis added].

32 FMSHRC Page 1232

Because section 314(b) is one of the subsections contained within sections 302 through
318 of title III, we conclude that the clear language of the Act dictates that the provisions of
section 314(b) constitute a mandatory safety standard. Moreover, we find no language in the Act
that would create any exception for section 314(b) in this regard.
The question then becomes whether a violation of a safeguard notice issued by an MSHA
inspector constitutes a violation of section 3 l 4{b) and thus is a violation of a mandatory safety
standard. A review of the relevant statutory language in combination with the Secretary's
regulatory approach in implementing section 314(b) convinces us that a violation of a safeguard
notice is a violation of section 314(b) and therefore is a violation of a mandatory safety standard.
The Secretary, in implementing section 314(b), chose to use the mechanism of a safeguard
notice to inform the operator in question what she determined constitutes an "adequate" safeguard
forthe particular situation involved. 30 C.F.R. § 75.1403-1. Accordingly, an operator's failure to
comply with a safeguard notice issued by an MSHA inspector is necessarily a failure to comply
with section 314(b) and therefore is a violation of a mandatory safety standard. As a result, it is
irrelevant whether the citation in a given case alleges the violation of the safeguard notice itself or
a violation of section 314(b) and 30 C.F.R. § 75.1403. 7 In either event, the basic allegation is that
the operator has failed to comply with its obligation under section 314(b) to provide an adequate
safeguard. We conclude that the language of section 314(b) and the relationship between that
subsection and safeguard notices issued pursuant to it establish a safeguard notice as a mandatory
safety standard for purposes of enforcing section 314(b).
Our holding is consistent with the Commission's treatment of provisions in roof control
and ventilation plans that are derived from other interim mandatory standards contained in title ID
of the Mine Act, i.e., section 302(a) (roof control plans) and section 303(o) (ventilation plans), "as
mandatory standards." Jim Walter Res., Inc., 9 FMSHRC 903, 907(May1987); see also UMWA
Intern. Union v. Dole, 870 F.2d 662, 667 n.7 (D.C. Cir. 1989) ("[t]he requirements of these plans
are enforceable.as if they were mandatory standards") (quoting S. Rep. No. 95-181, at 25 (1977)
reprinted in Senate-Subcomm. on Labor, Comm.. on Human Res., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 613 (1978)). Accordingly, the Commission
routinely evaluates whether violations of provisions of mine-specific plans are S&S or a result of
unwarrantable failure under Mine Act section 104(d). See, e.g., IO Coal Co., 31FMSHRC1346,
1349, 1361 (Dec. 2009) (judge found provision ofroof control plan to be S&S and Commission
remanded the unwarrantability issue).
Our recognition of extra-regulatory mandatory standards under the direction of title III of
the Mine Act is well-settled law. In Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir.
1976), the court reasoned that a "'mandatory standard' can reasonably be read to include
provisions of plans whose adoption is explicitly required under an existing mandatory standard."

7

For this reason, we find it unnecessary to address the Secretary's motion to amend the
citation in this case to include an explicit reference to section 314(b).
32 FMSHRC Page 1233

The court held that provisions of a ventilation system and methane and dust control plans were
enforceable "as though they were mandatory standards." 536 F.2d at 402-09. The Zeigler holding
was explicitly approved by Congress when it enacted the Mine Act. Dole, 870 F.2d at 667 n.7.
This reasoning applies with equal force to the case at bar, and our holding is consistent with
Congressional intent to treat safeguards whose adoption is explicitly compelled by the existing
mandatory standards of section 314(b) and 30 C.F.R. § 75.1403, as mandatory standards.
In light of the clear language of the Mine Act that defines mandatory safety standards as
those "interim mandatory safety standards established by titles II and ID," we are not persuaded by
WolfRun's assertion that, because safeguard notices are issued by MSHA inspectors, they do not
fall under the definition of a mandatory safety standard. A safeguard notice is derived from, and
authorized by, section 314(b), and is established by title ID of the Mine Act. Section 3 l 4(b)
expressly delegates "an authorized representative of the Secretary'' with the authority to require
that the operator provide certain safeguards. 30 U.S.C. § 874(b). Indeed, the safeguard notice is
the Secretary's mechanism for realizing Congress' command that safeguards "shall be provided"
by the operator. Id. 8
We similarly reject WolfRun's argument that section 314(b) is a general grant of authority
that places no specific obligations upon an operator, but only on the Secretary. WR Br. at 12;
Oral Arg. Tr. at 18-19. WolfRun's characterization of section 314(b) cannot be squared with the
statutory language. All the paragraphs in section 314 impose requirements on an operator using
the passive voice. For example, paragraph (e) states that "[e]ach locomotive and haulage car ...
shall be equipped with automatic brakes .... " Paragraph (b) is no different from the other
paragraphs in this respect. It mandates that "[o]ther safeguards adequate ... to minimize hazards
with respect to transportation of men and materials shall be provided." This language clearly

8

Co~ssioner Young shares Commissioner Duffy's concerns about safeguard notices

"issued on a random basis by an individual inspector acting unilaterally without provision for
Secretarial or Commission Review" and the potential for hazards to remain unaddressed because
a safeguard was not required at a given mine (slip op. at 13-14). However, whether this is a wise
policy choice or not, it is in fact, a choice made by Congress and embedded in the statute. See 30
U.S.C. § 874(b) {Congress' command that "Other safeguards adequate, in the judgment ofan
authorized representative ofthe. Secretary, to minimize hazards with respect to transportation of
men and materials shall be provided." (emphasis added)). Notwithstanding Commissioner
Duffy's thoughtful observations about the benefits of uniformity, permanence and thorough
consideration of safety concerns that would be better served by formal rulemak:ing to impose
final and detailed standards in this area, the statute itself is a pure delegation from Congress to
the Secretary, and the responsibility for providing improved standards is hers alone under section
101 of the Mine Act. See 30 U.S.C. § 81 l(a) (''The Secretary shall ... develop, promulgate, and
revise ... improved mandatory health or safety standards for the protection of life and prevention
of injuries in ... mines.").

32 FMSHRC Page 1234

imposes a requirement upon operators. Accordingly, we reject the operator's attempt to carve out
an exception for section 314(b) as the only subsection in those sections not to qualify as a
mandatory safety standard. 9
Wolf Run seeks to rely on the D.C. Circuit's decision in Cyprus Emerald Res. v.
FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999), which held that ''the statute does not authorize
[MSHA] to designate as [S&S] a violation ofa regulation such as 50.1 l(b) that is not a mandatory
health or safety standard." Cyprus Emerald, however, dealt with a 30 C.F.R. Part 50 regulation
promulgated under section 508, 30 U.S.C. § 957. Unlike safeguard notices, Part 50 regulations do
not fall within the definition of interim mandatory standards as involved here. Hence, there is a
clear distinction between the regulation at issue in Cyprus Emerald and a safeguard notice that is
established by section 314(b), title III of the Act. In fact, the language of the Mine Act itself, just
as it did in Cyprus Emerald, compels the conclusion here. 195 F.3d at 45. The Mine Act requires
that interim mandatory standards established by Title III be treated exactly like mandatory
standards, which means they can be subject to S&S designation.
We likewise are not persuaded by WolfRun's reliance on certain language contained in
the underlying Commission decision in Cyprus Emerald Res. Corp., 20 FMSHRC 790, 808-09
n.22 (Aug. 1998), rev 'd, 195 F.3d 42 (D.C. Cir. 1999), in which the majority stated that "[a]
safeguard, because it is not issued pursuant to the procedures set forth in section lOl(a) of the
Mine Act, does not meet the statutory definition of a mandatory health or safety standard." In
Cyprus Emerald, the Commission concluded that a violation of a Part 50 regulation, which did
not meet the statutory definition of a mandatory health and safety standard, could be designated as
S&S. 20 FMSHRC at 809. Although Wolf Run relies heavily on the statement, its arguments are
unavailing for two reasons. First, the standard at issue does "meet the statutory definition of a
mandatory health and safety standard" because as noted previously (supra at 6), section 314(b) is
expressly identified as such by the Act itself. Second, the precise issue of whether a safeguard
notice is a mandatory safety standard was not before the Commission, was not fully briefed by the
parties, and has never been squarely addressed by the Commission. Accordingly, the majority's
statement in Cyprus Emerald should be regarded as dicta. 10
Additionally, we find without merit WolfRun's argument that safeguard notices do not
qualify as mandatory health and safety standards because they are not promulgated through notice-

9

The fact that Congress chose to give MSHA inspectors an express role in ensuring that
section 3 l 4(b) is implemented does not in any way change the overall requirement set forth in
section 3 l 4(b) that operators must provide "adequate" safeguards regarding the ''transportation
of men and materials."
10

Moreover, the majority's statement focused on its belief that a safeguard notice is not a ·
mandatory health or safety standard because it is not promulgated under title I of the Act. 20
FMSHRC at 808-09 n.22. The majority did not address the possibility that a safeguard notice
could be a mandatory health or safety standard because it is established by title III of the Act.
32 FMSHRC Page 1235

and-comment rulemaking pursuant to section 101 of the Act, 30 U.S.C. § 811. WR Br. at 9. We
agree with the Secretary that the Act does not require mandatory safety standards to be
promulgated pursuant to notice-and-comment rulemaking but only to fall within the statutory
definition set forth in section 3(1). S. Br. at 16-17.
In summary, we conclude that Congress did directly address the question of whether a
violation of section 314(b) constitutes a violation of a mandatory safety standard. The relevant
statutory language provides that section 314(b) falls within the section 3(1) definition of a
mandatory safety standard because it is an interim mandatory safety standard contained in title ill
of the Act. As a result, any violation of section 314(b) is a violation of a mandatory safety
standard. Because a proven violation of a safeguard notice is necessarily a violation of section
3 l 4(b), it follows that the violation of a safeguard notice is a violation of a mandatory safety
standard and can constitute an S&S violation.

B.

Whether the Mine Act May Be Reasonably Inteipreted Such that Safeguard
Notices Qualify as Mandatory Safety Standards Subject to S&S Designation

If there were any doubt as to whether the Mine Act expressly provides that a safeguard
notice established by section 3 l 4(b) qualifies as an interim mandatory standard and should be
treated as mandatory safety standard, we conclude that it is certainly reasonable for the Secretary
to construe the Mine Act such that safeguard notice violations may be subject to S&S designation.
See Chevron, 467 U.S. at 843-44; Sec '.Y ofLabor v. National Cement Co. ofCalifornia, 573 F.3d
788, 792-97 (D.C. Cir. 2009); Thunder Basin, 18 FMSHRC at 584 n.2; Keystone, 16 FMSHRC at

13.11
As discussed supra at 5-6, the language and structure of the Mine Act itself support the
interpretation that safeguard notices issued pursuant to section 3 l 4(b) qualify as interim
mandatory safety standards, and are in turn mandatory safety standards subject to an S&S
designation. 30 U.S.C. §§ 802(1), 861(a), 874(b). Similarly, the legislative history of the
provision also supports a reading of section 314(b) that would most promote safety. See Jim
Walter Res., Inc., 7 FMSHRC 493, 496 (Apr. 1985) (citing S. Rep. No. 91- 411, at 81 (1969),
reprinted in Senate Subcomm on Labor, Comm. on Labor and Public Welfare, Part I Legislative
History ofthe Federal Coal Mine Health and Safety Act of 1969, at 207 (1975)). The
Commission emphasized that "the very purpose of [the safeguard provisions] - the elimination of
transportation-related hazards - militates against" a narrow interpretation of section 314(b). Jim
11

Deference is accorded to "an agency's interpretation of the statute it is charged with
administering when that interpretation is reasonable." Energy West Mining Co. v. FMSHRC, 40
F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844). The agency's interpretation of
the statute is entitled to affirmance as long as that interpretation is one of the permissible
interpretations the agency could have selected. See Joy Technologies, Inc. v. Sec '.Y ofLabor, 99
F.3d 991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997) (citing Chevron, 467 U.S. at
843); Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).
32 FMSHRC Page 1236

Walter Res., 7 FMSHRC at 498 (rejecting the assertion that section 314(b) only applies to one
type of belt conveyor). Accordingly, even if we were to determine that the statutory language was
not clear, we would affirm the judge and the Secretary's reasonable interpretation of the Act that
violations of safeguards may be properly designated as S&S.
ID.
Conclusion
For the foregoing reasons, we affirm the judge's decision and hold that safeguard notices
established and issued pursuant to section 314(b), title ill of the Mine Act, qualify as interim
mandatory safety standards an.d thereby constitute mandatory safety standards under the definition
of section 3(1) of the Act. We conclude that the Secretary may properly designate violations of
safeguard notices as S&S violations.

32 FMSHRC Page 1237

Commissioner Duffy, dissenting:
I dissent from my colleagues, and would reverse the judge's decision that the violation of
the safeguard noticed previously issued to Wolf Run can be designated as significant and
substantial ("S&S").
This case presents an issue that one would have expected to have been resolved decades
ago. Indeed, it has been nearly 41 years since Congress authorized individual coal mine
inspectors to require certain safety measures, called "safeguards," to address conditions not
otherwise covered by the interim safety standards contained in Title III of the Federal Coal Mine
Health and Safety Act of 1969 ("Coal Act"), or improved mandatory safety and health standards
adopted by the Secretary through notice-and-comment rulemaking. See Pub. L. No. 91-173, 83
Stat. 742, 786. Yet, four decades into the heightened federal enforcement of mine safety and
health, including the passage of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. ("Mine Act" or "Act") and its reauthorization of Title III of the Coal Act, the Commission,
only now, is being asked to specifically address whether a failure to comply with a notice to
provide a safeguard can be deemed "significant and substantial" ("S&S"), a designation for
certain safety and health violations first employed in the Coal Act and carried over to the Mine
Act.
Despite this passage of time and intervening legislation, we have no more insight into the
meaning and application of the safeguard system than we did under the Coal Act. The language
of the safeguard provision, remains the same, the language of30 C.F.R. § 75.1403 remains the
same, and the definition of "mandatory safety or health standard" remains the same.
The statutory design is relatively simple. Congress, first in section 104 of the Coal Act
and then in section 104 of the Mine Act, provided that only those violations of a "mandatory
health or safety standard" can be designated as S&S. See 30 U.S.C. § 814(d){l). In both statutes
it also defined "mandatory health or safety standard" to mean "the interim mandatory health or
safety standards established by titles II or III or this Act, and the standards promulgated pursuant
to title I of this Act." 30 U.S.C. § 802(1).
In section 104(a) of the Mine Act, however, Congress provided that a citation can be
issued for a violation of the Act or of a mandatory health or safety standard, or of any rule, order,
or regulation promulgated pursuant to the Act. 30 U.S.C. § 814(a).
It is this contrast between the violation of a mine safety and health requirement and the
smaller universe of such violations that can designated S&S that provided the crux of the D.C.
Circuit's opinion in Cyprns Emerald Resources, Inc. v. FMSHRC, 195 F.3d 42 (D.C. Cir. 1999).
The court held that if a requirement is not, by definition, a mandatory health or safety standard, it
cannot be designated S&S under section I 04(d) or (e) of the Mine Act.

32 FMSHRC Page 1238

Thus, 30 C.F.R. §75.1403-S(j) is not a mandatory health or safety standard because it was
neither enacted as a.ii interim mandatory safety standard by Congress in either Act, nor was it
promulgated as a mandatory safety standard by the Secretary pursuant to section 101 of the Act.
By its very wording, section 75. l 403-5(j) is a hortatory criterion, not a mandatory standard, as it is
invoked on an informal basis by an individual mine inspector without provision for immediate
pre-enforcement review as would be the case with a mandatory health or safety standard adopted
through notice-and-comment rulemaking.
Moreover, this Commission has explicitly held that safeguards are not mandatory health or
safety standards. In its decision taking an expansive view of which Mine Act violations could be
designated S&S that was later overturned by the court in Cyprus Emerald, the Commission stated
that, "[i]ronically, the regulation that was violated in Mathies was not a 'mandatory health or
safety standard,' as that term is defined in section 3(1) of the Act. The Mathies citation involved a
failure to comply with a safeguard notice." Cyprus Emerald Res. Corp., 20 FMSHRC 790, 808
(Aug. 1998). The Commission further concluded that "[a] safeguard, because it is not issued
pursuant to the procedures set forth in section lOl(a) of the Mine Act, does not meet the statutory
definition of a mandatory health or safety standard." Id. at 808 n.22. The Commission went on to
hold that "[a]ccordingly, the Mathies decision, involving precisely these criteria, does not restrict
the Secretary to applying an S&S designation only to a citation involving a mandatory safety or
health standard." Id. at 809.
It was this ultimate holding that the D.C. Circuit explicitly reversed in its decision on
appeal. See 195 F.3d at 45-46. Although the position of the Commission majority in Cyprus
Emerald was adopted in service to its position that regulations issued pursuant to section 508 of
the Mine Act, i.e., accident reporting requirements, could be deemed S&S, I read the court's
reversal as applicable to all regulatory requirements that do not fall within the precise statutory
definition of "mandatory health or safety standard." That would include notices to provide
safeguards.

The Secretary argues, and my colleagues agree, that a violation of a notice to provide a
safeguard can be designated S&S because it is derived from section 3 l 4(b) of the Act or its
verbatim iteration in MSHA's regulations, i.e., 30 C.F.R. § 75.1403. S. Br. at 13-20; slip op. at 56. Neither of those provisions can be considered a mandatory health or safety standard that
imposes discrete obligations on an underground coal mine operator. They delegate authority to
individual mine inspectors to issue notices to provide safeguards, but provide no binding norms
nor adequate notice to mine operators as to what conduct is expected of them.
The Secretary would have us amend the citation here to allege a violation of section 314(b)
of the Act and 30 C.F.R. § 75.1403. S. Br. at 8-12. In my view, that would make no difference.
Allowing section 75.1403-S(j) to fly under the colors of section 314(b) of the Act does not
transform a notice to adopt a criterion invoked by a single inspector, acting alone, into a

32 FMSHRC Page 1239

mandatory safety standard as defined by Congress and as understood by the D.C. Circuit in
Cyprus Emerald. 1
I also cannot agree that a notice to provide a safeguard is analogous to a provision in a
underground mine plan that addresses ventilation or roof control. See slip op. at 6-7. It is true
that such plan provisions do not appear in Title ill of the Act, nor are they promulgated as
mandatory health or safety standards under section 101 ofthe Act, yet the D.C. Circuit in Ziegler
Coal Co. v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976), nevertheless concluded that a plan provision
could be enforced as a mandatory standard.
However, there are a number of reasons not to read the court's reasoning in Ziegler Coal
to extend to safeguard notices. First, Ziegler Coal was decided in 1976 without the judicial gloss
applied by the same court 23 years later in Cyprus Emerald.
Second, the issue surrounding the mine plan provision in Ziegler Coal was whether it was
enforceable at all, not whether a violation of the provision could be designated S&S. See 536
F.2d at 401 (operator challenged applicability of section 104(b)'s notice of violation process, the
Coal Act equivalent of a section 104(a) citation under the Mine Act). Here, there is no dispute
that safeguards are enforceable under section 104(a); the issue is whether failure to comply with a
notice to provide safeguard can be S&S, a much different issue.
Third, the genesis of a mine plan provision is wholly distinguishable from that of a notice
to provide safeguard. All underground coal mine operators are required under Title ill of the Act
to adopt roof and ventilation control plans, the ultimate plan provisions are established through
negotiations between the mine operator and the MSHA District Office for the mine, and such
plans are systematically reviewed every six months. See 30 U.S.C. §§ 862(a), 863(o); Jim Walter
Res., Inc., 9 FMSHRC 903, 906-07(May1987). If the parties reach an impasse, there is provision
for the issuance of a technical citation to allow for Commission review of the dispute. See, e.g.,
Twentymile Coal Co., 30 FMSHRC 736 (Aug. 2008).
In stark contrast, a safeguard notice is issued on a random basis by an individual inspector
acting unilaterally without provision for Secretarial or Commission review. The legitimacy of the
notice to provide a safeguard and its application to conditions in the mine cannot be determined

1

The dissenting Commissioners in Cyprus Emerald sought to distinguish between
safeguards and Part 50 regulations by making the same argument the Secretary makes here, i.e.,
that safeguards issued pursuant to section 3 l 4(b) of the Act assume the patina of mandatory
health and safety standards because section 314(b) appears in a Title captioned "Interim
Mandatory Safety Standards for Underground Coal Mines." See 20 FMSHRC at 826, 829 n.3
(Commissioners Riley and Verheggen, dissenting in part). It was that specific argument that led
the Commission majority in Cyprus Emerald to counter that a safeguard does not meet the
statutory definition of "a mandatory health or safety standard." See id. at 808-09 n.22.
32 FMSHRC Page 1240

unless and until the provisions of the notice are violated. See 30 C.F.R. § 75.1403-l(b); Southern
Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985).
Thus, in my opinion the potential for arbitrariness in the safeguard system precludes it
from being considered analogous to the mine plan adoption and approval system specifically
mandated in Title ID of the Act. Accordingly, on that basis I would reverse the judge and hold
that a violation of a notice to provide safeguard, while subject to sanction through the issuance of
a citation under section 104(a) of the Act, cannot be deemed S&S for purposes of section 104(d)
or (e) of the Act, because the notice to provide a safeguard is not a mandatory health or safety
standard as defined in section 3(1) of the Act.
The Secretary has expressed concern that if safeguard notices are not deemed to be
mandatory heath or safety standards, the full panoply of Mine Act enforcement sanctions, i.e.,
unwarrantable failure closure orders or pattern of violation closure orders, would not be available
to her. See Cumberland Coal Res., LP, 30 FMSHRC 1180, 1185 (Dec. 2008) (ALJ). An identical
argument was presented in the Cyprus Emerald case and the D.C. Circuit responded that "[i]fthe
Secretary of Labor finds a particular practice or condition so dangerous as to require the sanctions
provided in section 104(d) and (e), she may promulgate an appropriate mandatory standard under
section 101 [of the Mine Act], 30 U.S.C. § 811, the violation of which may properly be found
'significant and substantial."' 195 F.3d at 46.
Moreover, as far back as 1992 the Commission noted that MSHA had acknowledged the
need for specific mandatory safety standards for the transportation of miners and materials in
underground coal mines. See Southern Ohio Coal Co., 14 FMSHRC 1, 16 (Jan. 1992) ("SOCCO
If') (citing the then most recent MSHA Semiannual Regulatory Agenda). The Commission went
on to "strongly suggest that the safety of underground coal miners would be better advanced by
the promulgation of mandatory safety standards aimed at eliminating transportation hazards." Id.
In the 18 years since, nothing has been done.
The Commission's concern in SOCCO II was not an idle one. Transportation of persons
and materials is an integral part of the mineral extraction process. Haulage accidents consistently
rank at or near the top of causes for mine fatalities and serious injuries. See MSHA Fatality
Statistics (http://www.msha.gov/stats/charts/chartshome.htm) (accessed Oct. 19, 2010).
Consequently, surface coal miners and both surface and underground hardrock miners are
protected from death and serious injury by comprehensive mandatory transportation and materials
handling standards in Parts 77, 56, and 57, respectively, of Title 30 of the Code of Federal
Regulations.
The lesser protection provided to underground coal miners is illustrated by the content of
Subpart 0 of30 C.F.R. Part 75, entitled "Hoisting and Mantrips," which sets forth the regulatory
scheme for addressing the transportation of miners and materials in underground coal mines.
There are mandatory standards applicable to hoists, locomotives, and wire ropes. All other

32 FMSHRC Page 1241

aspects of transportation and haulage are addressed by section 75.1403, which authorizes
safeguards and contains 11 sets of criteria, not mandatory standards.
Many of the criteria are common sense, best practices that read suspiciously like actual
mandatory safety standards set forth in 30 C.F.R. Parts 77, 56, and 57, applicable to coal and
hardrock mines. For example, section 75.1403-10(1) states: "All self-propelled rubber-tired
haulage equipment should be equipped with well-maintained brakes, lights, and a warning
device." 30 C.F.R. § 75.1403-10(1).
While that requirement has universal application even beyond the mining environment, it
is not a mandatory standard applicable to all underground coal mines. It is only applicable in
those mines where an inspector has ordered it through a notice to provide a safeguard. Numerous
other criteria set forth under section 75.1403 fall within the same category-common sense rules
of the road that have never been promulgated as mandatory standards since they were first
published in 1970. 2
Why these criteria have not been made mandatory during 40 years of mine safety
enforcement and eight Presidential administrations appears to be lost in the mists of regulatory
lassitude, but the implications are troubling. Under the current safeguard regime, it is possible for
miners to be killed or seriously injured without any enforcement consequences. The underground
coal mine operator, post-accident, is not cited but, rather, is given a notice which requires it to
take such measures prospectively that operators at surface coal mines and all hardrock mines are
already required to do through mandatory safety standards.
Given this hole in the enforcement net and the threat it poses to miner safety, I find it
difficult to credit the Secretary's complaint that not designating notices to provide safeguards as
mandatory safety health and safety standards constrains her ability to ensure miner safety. The
Commission in SOCCO II and the D.C. Circuit in Cyprus Emerald told the Secretary what she
can do to avoid this problem. She and her predecessors have had 40 years to take action, and have
not done so. I simply do not believe it is in the best interest of underground coal miners' safety
for the Commission to serve as an enabler and permit the Secretary to continue a slapdash
approach to regulating transportation and haulage in underground coal mines.

2

There may be one exception: 30 C.F.R. § 75.1403-IO(a) provides that reflectors or
headlights need not be required on loads pulled by animals. I trust that exemption is no longer
necessary.
32 FMSHRC Page 1242

Thus, in addition to reversing the judge on legal grounds, there are sound safety policy
reasons for not finding that notices to provide safeguards are mandatory safety standards as
defined in section 3(1) of the Act and as addressed in section 104(d) and (e) of the Act.

32 FMSHRC Page 1243

Distribution:

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
Samuel Lord, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
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

32 FMSHRC Page 1244

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

October 22, 2010
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEYA 2010-225
A.C. No. 46-08596-177524 HFT
Docket No. WEYA 2010-226
A.C. No. 46-09070-188924 HFT

v.
HARVEY TRUCKING, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 10, 2009, the Commission received from
Harvey Trucking, Inc. ("Harvey Trucking") requests to reopen two penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). 1 On December 8 and 9, 2009, the Commission received responses from the Secretary
of Labor stating that she does not oppose the requests to reopen the assessments.
Under sect~on 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. -If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEYA 2010-225 and WEYA 2010-226, both captioned Harvey
Trucking, Inc., and both involving similar procedural issues. 29 C.F.R. § 2700.12.
32 FMSHRC Page 1245

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
In Docket No. WEVA 2010-225, Harvey Trucking states that it mailed a request to
reopen Proposed Assessment No. 000177524 on July 6, 2009, and attaches an undated copy of
that letter to its current request. In that letter, Harvey Trucking states that it did not receive the
proposed assessment because during the time MSHA sent the assessment, its office was closed
for a period of time due to an illness. The Secretary, who does not oppose Harvey Trucking's
request, explains that the assessment was delivered on March 3, 2009, and became final on
April 2, 2009. On May 20, 2009, MSHA notified the operator that the assessment was
delinquent.
In Docket No. WEVA 2010-226, Harvey Trucking contends that it mailed the contest
form on August 17, 2009, but according to the Secretary, the assessment had become final on
July 30, 2009. On September 17, 2009, MSHA notified the operator that the assessment was
delinquent. The Secretary indicates that she does not oppose this request.

Having reviewed Harvey Trucking's requests to reopen and the Secretary's responses, we
conclude that the operator has not provided sufficiently detailed explanations for its failure to
timely contest the proposed penalty assessments. Harvey Trucking's general statement that the
office was closed for a period of time due to an illness does not provide the Commission with an
adequate basis to reopen without further elaboration. In Docket No. WEVA 2010-226, Harvey
Trucking has failed to provide any explanation for its failure to timely file a contest of the
assessment. Furthermore, Harvey Trucking has failed to explain why it delayed approximately
six weeks and seven weeks respectively in responding to the delinquency notices sent by
MSHA. 2 Accordingly, we hereby deny without prejudice Harvey Trucking's requests. See Petra
Materials, 31FMSHRC47, 49 (Jan. 2009); Eastern Assoc. Coal, LLC, 30 FMSHRC 392, 394
(May2008).

2

In considering whether an operator has unreasonably delayed in filing a motion to
reopen a final Commission order, we find relevant the amount of time that has passed between an
operator's receipt of a delinquency notice and the operator's filing of its motion to reopen. See,
e.g., Left Fork Mining Co., 31 FMSHRC 8, 10-11 (Jan. 2009).

32 FMSHRC Page 1246

The words "without prejudice" mean Harvey Trucking may submit another request to
reopen these cases so that it can contest the citations and penalty assessments. 3 Any such request
must be filed within 30 days of the date of this order. Any such request filed after that time will
be denied with prejudice.

Robert F. Cohen, Jr., ·commissioner

~L

Patrick K. Nakamura, Commissioner

3

If Harvey Trucking submits another request to reopen these cases, it must establish
good cause for not contesting the citations and proposed assessments within 30 days from the
date it received the proposed penalty assessments from MSHA. Under Rule 60(b) of the Federal
Rules of Civil Procedure, the existence of "good cause" may be shown by a number of different
factors including mistake, inadvertence, surprise, or excusable neglect on the part of the party
seeking relief, or the discovery of new evidence, or fraud, misrepresentation, or other misconduct
by the adverse party. Harvey Trucking should include a full description of the facts supporting
its claim of "good cause," including how the mistake or other problem prevented it from
responding within the time limits provided in the Mine Act, as part of its request to reopen these
cases. Harvey Trucking should also include copies of all documents supporting its request to
reopen these cases.
32 FMSHRC Page 1247

Distribution:
Denese Richmond
Harvey Trucking, Inc.
5383 Ashford Nellis Rd.
Ashford, WV 25009
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1248

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

October 22, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 2010-267
A.C. No. 46-08801-189657

ARACOMA COAL COMPANY, INC.

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On November 25, 2009, the Commission received from
Aracoma Coal Company, Inc. ("Aracoma") a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
32 FMSHRC Page 1249

On June 30, 2009, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Proposed Assessment No. 000189657 to Aracoma. Aracoma states that it had
recently changed its procedure for processing proposed assessments, bringing the function inhouse. It states that it received and processed the assessment according to this new procedure
and on July 24, 2009, placed the marked-up assessment for contest in its internal mail dropoff
location for pickup to be brought to the local U.S. post office. Aracoma contends that it learned
that the assessment was delinquent when it received MSHA's delinquency notice dated
September 24, 2009. Aracoma speculates that a delay in mail pickup must have occurred,
resulting in the assessment being mailed on the next business day, which was July 27, 2009.
The Secretary opposes Aracoma's request to reopen. She states that Aracoma's
inadequate and unreliable internal office procedures do not constitute grounds for relief under
Rule 60(b). She notes that the contested assessment was postmarked September 2, 2009,
contrary to Aracoma' s contention that the mailing of the assessment was delayed by a few days.
Given the unexplained time gap between Aracoma's internal processing of the assessment
and the date the assessment was actually mailed, we cannot conclude that its failure to timely
contest this assessment amounts to mistake or inadvertence warranting relief. Moreover, even
after the Secretary's identification of Aracoma's erroneous assumption, Aracoma provided no
explanation for the one-month time delay in mailing the assessment. In addition, given the
amount of the penalty assessment at stake, over $200,000, we conclude that Aracoma's delay in
filing a request to reopen two months after its discovery of the delinquency was too long under
the circumstances.

32 FMSHRC Page 1250

Based on the foregoing, we conclude that Aracoma has failed to provide an adequate
basis for the Commission to reopen the penalty assessment. See Pinnacle Mining Co., 30
FMSHRC 1061, 1062-63 (Dec. 2008) (denying relief because operator's excuse was
insufficient); Pinnacle Mining Co., 30 FMSHRC 1066, 1067-68 (Dec. 2008) (same).
Accordingly, we deny Aracoma's request to reopen.

Robert F. Cohe~ Jr., Commissioner

crt>L

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1251

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

32 FMSHRC Page 1252

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

SUITE9500
WASHINGTON, DC 20001

October 28, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2009-812
A.C. No. 01-00851-183518
Docket No. SE 2009-850
A.C. No. 01-00851-186278

v.
OAK GROVE RESOURCES, LLC

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) ("Mine Act"). On August 14, 2009, and August 27, 2009, the Commission
received from Oak Grove Resources, LLC ("Oak Grove") motions made by counsel to reopen
penalty assessments that had become final orders of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a). 1
Under section IOS(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section lOS(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers SE 2009-812-M and SE 2009-850, both captioned Oak Grove
Resources, LLC, and involving similar procedural issues. 29 C.F.R. § 2700.12.
32 FMSHRC Page 1253

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).
With respect to Docket No. SE 2009-812, on April 24, 2009, the Department of Labor's
Mine Safety and Health Administration ("MSHA") issued Proposed Penalty Assessment No.
000183518 to Oak Grove, which proposed penalties of $298,900 for three orders. In its motion
to reopen the assessment, Oak Grove acknowledges that the proposed assessment was not
contested within 30 days because of a miscommunication regarding who was to file the contest
between the safety director and a Mr. Blevins, whose relationship to Oak Grove is unclear. Oak
Grove had filed pre-penalty contests of the three orders at issue. Oak Grove does not indicate
information regarding how it learned ofthe delinquency nor provide the delinquency notice from
MSHA. We note that the orders became final orders of the Commission on May 29, 2009, and
that Oak Grove filed its motion to reopen more than two and half months after the penalties had
become final.
With respect to Docket No. SE 2009-850, on June 1, 2009, MSHA issued Proposed
Penalty Assessment No. 000186278 to Oak Grove, which proposed penalties of$77,000 for two
orders. In its motion to reopen, Oak Grove states that the reason for failing to timely file a
contest was a miscommunication regarding who would file the contest between its counsel and
its safety director. We note that the orders became final on July 6, 2009. Oak Grove does not
provide any indication of how it learned of the delinquency, nor does it provide the notice of
delinquency from MSHA. It filed its motion to reopen nearly two months after the penalties had
become final.
The Secretary opposes the reopening of both proposed assessments on the ground that
inadequate or unreliable internal procedures do not constitute an adequate excuse for reopening.
She argues that the large amounts of the penalties involved indicate that the operator's internal
procedures were particularly inadequate.
Both assessments were issued within a period of a little over six weeks, and Oak Grove
has provided a very similar reason for its failure to timely contest them, i.e., lack of
communication with an outside party. We have held that an inadequate or unreliable system for
delivering internal mail does not constitute inadvertence, mistake or excusable neglect so as to
justify the reopening of an assessment which has become final under section 105(c) of the Mine
Act. Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008); Pinnacle Mining Co., 30
FMSHRC 1066, 1067 (Dec. 2008).
Consequently, we hereby deny without prejudice the motions to reopen these three
assessments. Should Oak Grove renew its reopening requests, it must do so within 30 days, and
fully explain the circumstances in the two failures to timely contest the proposed assessments. It

32 FMSHRC Page 1254

must also address what it has done to ensure that it responds to ·proposed assessments in a timely
manner, in order to avoid a repeat of the mistakes it outlined in its two motions.
In addition, Oak Grove fails to explain when and how it learned of the delinquency as to
both assessments. In the context of penalty assessments, in considering whether an operator has
unreasonably delayed in filing a motion to reopen, we find relevant the amount of time that has
passed between an operator's receipt of a delinquency notice or other notification from MSHA
and the operator's filing of its motion to reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8,
11(Jan.2009). As set forth in Highland Mining Co., 31FMSHRC1313, 1317 (Nov. 2009),
motions to reopen filed more than 30 days after receipt of delinquency information from MSHA
should include an explanation for the delay in seeking reopening. The lack of such an explanation
is grounds for the Commission to deny the motion. Oak Grove should provide a full explanation
as to why it waited so long after the orders became final to file the motions to reopen.

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

32 FMSHRC Page 1255

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
40 l Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25t1t Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

32 FMSHRC Page 1256

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

October 28, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket No. PENN 2004-152
A.C. No. 36-08746-26478

MUSSER ENGINEERING, INC.,
and PBS COALS, INC.

Docket No. PENN 2004-158
A.C. No. 36-08746-26477

BEFORE: Jordan, Chairman; Duffy and Cohen, Commissioners 1
DECISION
BY: Cohen, Commissioner
This consolidated civil penalty proceeding, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act" or "Act"), involves citations
issued by the Department of Labor's Mine Safety and Health Administration ("MSHA") against
PBS Coals, Inc. ("PBS") and Musser Engineering, Inc. ("Musser"). The citations were the result

1

Commissioner Michael G. Young did not participate in this matter. Commissioner
Patrick K. Nakamura assumed office after this case had been considered at a Commission
meeting. A new Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 (June 1994). In the
interest of efficient decision making, Commissioner Nakamura has elected not to participate in
this matter.
2

A majority of the Commissioners joins in each section of Commissioner Cohen's
opinion, and therefore it constitutes the Commission's decision in this case. A footnote at the
beginning of each section of this opinion explains which Commissioners join in that section.
Chainnan Jordan and Commissioner Duffy have also issued separate dissenting opinions on
certain issues.
32 FMSHRC Page 1257

of a July 2002 near-fatal, 77-hour entrapment of nine miners at the Quecreek No. 1 Mine.3 In
response to cross motions for summary decision, Chief Administrative Law Judge Robert J.
Lesnick affirmed the citations against PBS and Musser and ordered a hearing on proposed
penalties. 28 FMSHRC 699, 718-19 (Jul. 2006) (ALJ). 4 In a subsequent decision, the Chief
Judge concluded that Musser and PBS acted in a grossly negligent manner, determined that the
violations were significant and substantial ("S&S"), and imposed the maximum penalties
alfowed by the Mine Act. 30 FMSHRC 1087, 1095-96 (Nov. 2008) (AU). PBS and Musser
filed petitions to review the judge's decisions, and the Commission granted both petitions. For
the reasons that follow, we affirm, in part, and vacate and remand, in part, the judge's decisions.
I.

Factual and Procedural Background
A.

The Mine Inundation

Beginning in 2001, Black Wolf Coal Company, Inc. ("Black Wolf') operated the
Quecreek No. 1 Mine, an underground coal mine in Somerset County, Pennsylvania.
28 FMSHRC at 700-01; Stip. 23. Black Wolf employed 61miners,55 of whom worked
underground. 28 FMSHRC at 700-01; Stip. 24. The mains, which consisted of seven entries,
were driven down dip (at a lower elevation level) from the portals, and coal was produced in the
1-Left and 2-Left sections. 28 FMSHRC at 701; Stips. 16, 18. Mining was conducted by use of
remote-controlled continuous mining machines that loaded coal directly into electrically operated
shuttle cars, which carried the coal to a conveyor belt for transport out of the mine. Stip. 19.
On July 24, 2002, at 8:45 p.m., miners working in the 1-Left section broke through the
working face into the room of an abandoned coal mine known as the Harrison No. 2 Mine.
28 FMSHRC, at 701. The breakthrough resulted in a serious inundation of water from the
Harrison No. 2 Mine, which was located up dip (at a higher elevation) from the Quecreek No. 1
Mine. Id. Nine miners were able to escape by wading through chest-high water and changing
their route several times when they encountered impassable areas, while nine other miners were
trapped underground. Id.; Tr. 393. Although the trapped miners retreated to the highest possible
elevation and attempted to build a barricade against the rising water, the flooding reached a
height of four feet at their last refuge point. Tr. 395-96. In addition to the hazard of drowning,
the trapped miners suffered hypothermia and difficulty breathing as a result of low oxygen
content in the atmosphere. Tr. 397. The nine miners wrote last notes to their loved ones, which

3

Black Wolf Coal Company, Inc., the operator of the Quecreek No. 1 Mine when the
entrapment occurred, was also issued a citation and entered into a settlement agreement with the
Secretary just before the hearing in the proceeding. Tr. 9-10.
4

PBS and Musser filed petitions for interlocutory review of the Judge's initial decision
of July 21, 2006, which the Commission denied. Unpublished Order, dated Feb. 15, 2007.
32 FMSHRC Page 1258

they placed in a waterproof container, and tied themselves together so that when they were at last
overtaken by the water, they would be found together. Tr. 396. The nine trapped miners were
ultimately rescued, following dramatic rescue efforts over a four-day period. 28 FMSHRC
at 701.
B.

Events Leading to the Permitting of the Quecreek Mine

Prior to the opening of a mine in Pennsylvania, a mine operator must apply for permits
from state and federal authorities. Id. For the Quecreek No. 1 Mine, beginning in 1994, the
Double C Coal Company ("Double C") initiated the application process with the Pennsylvania
Department of Environmental Protection (DEP). Id. PBS subsequently acquired the Quecreek
Mine No. 1 from Double C 5 and contracted with Musser to prepare a permit application for
submission to DEP. Id.
Pennsylvania state law requires that operators must survey the workings of their mines
and create accurate maps of their mines with accurate boundaries of adjoining mines. Id. at 702;
Stip. 34. In addition, an engineer must certify the map. 28 FMSHRC at 702. There were a total
of four abandoned coal mines around the Quecreek permit area, including Harrison No. 2 Mine.
Tr. 249. The Harrison No. 2 Mine was located in the same coal seam and immediately up dip
from the Quecreek No. 1 Mine boundary. 28 FMSHRC at 702. Part ofMusser's work in
preparing the permit application was researching and showing the location of these abandoned
mine works adjacent to the planned Quecreek No. 1 Mine. 28 FMSHRC at 701-02; Stip. 12.
Prior to the closing of the Harrison No. 2 Mine, which began operating in 1913, Consol
Energy, Inc. ("Consol") had purchased the mine's coal reserves. 28 FMSHRC at 702; Stip. 28.
Consol leased the coal reserves to Saxman Coal and Coke Company ("Saxman"), which operated
the mine. 28 FMSHRC at 702; Stip. 48. Saxman provided updated mine maps of the Harrison
No. 2 Mine to Consol on a biannual basis. 28 FMSHRC at 702. When the mine was closed in
1963, Saxman.was required to supply a final mine map to the state of Pennsylvania. Id. After
the mine was closed, it was abandoned and sealed and became flooded. Id. Consequently,
during the state permitting process for the Quecreek No. 1 Mine, the Harrison No. 2 Mine could
not be surveyed. Id. These circumstances led both Musser and PBS to conduct searches for
maps of the Harrison No. 2 Mine. Id.
Although records indicated that the superintendent of the Harrison No. 2 Mine supplied
final mine closing information and a final mine map to state authorities, the DEP did not have a
final mine map in its archives when the Quecreek No. 1 Mine was planned and permitted. Id. at
703. Indeed, none of the four abandoned mines surrounding the Quecreek mine had final

5

The parties' stipulations provide that the Quecreek No. 1 Mine was "initially opened"
by PBS and RoxCoal, Inc., which are both identified as subsidiaries of Mincorp, Inc. Stips. 13,
20. In 2001, PBS contracted with Black Wolf for Black Wolf to conduct underground mining at
Quecreek. 28 FMSHRC at 701; Stip. 23.
32 FMSHRC Page 1259

certified maps that were used in preparing the permit application for Quecreek. Tr. 249. Musser
and PBS tried over a multi-year period to locate maps of the Harrison No. 2 Mine through visits
to state and federal governmental offices and by contacting individuals connected to the ~e.
28 FMSHRC at 702-03. For instance, PBS and Musser located a map of the Harrison No. 2
Mine at the Department of Interior's Office of Surface Mining ("OSM") office in Greentree,
Pennsylvania (''the Greentree map"). Id. at 703. The Greentree map was not dated nor marked
final, but it was the most current map of the mine that could be located at the state or federal
mine map repositories. Id.; see Gov't Ex. 9; Stips 63, 64, and Jt. Ex. 3-4 (these copies of the
Greentree map are dated; the original copy that Musser and PBS obtained is not).
In addition, PBS personnel reviewed maps at an MSHA district office and two DEP
offices. Stips. 59, 60. Musser employees also retrieved maps from DEP offices. Stip. 61. Many
of the maps that PBS and Musser uncovered were older ones and not useful for drawing the final
boundaries of the Harrison No. 2 Mine on the Quecreek No. 1 Mine permit application maps.
28 FMSHRC at 703.
Musser contacted Consol because it had owned the coal reserves at the Harrison No. 2
Mine. Musser expected that Consol would have had accurate maps of the coal removed from the
mine for purposes of checking its royalties. Id. A Consol employee at its facility in Library,
Pennsylvania, located a map of the Harrison No. 2 Mine and provided a copy to Musser. Id.;
Stip. 65. The map proved to be inaccurate because it showed coal reserves that had been mined.
30 FMSHRC at 1089; Tr. 44-46. Musser and PBS subsequently obtained a second map from
Consol. 30 FMSHRC at 1089; 28 FMSHRC at 703. This map was neither dated, certified by an
engineer, nor marked final. Id. This second Consol map showed the most extensive workings of
the Harrison No. 2 Mine of any map located and was accepted as the final map. Id.
Musser, with the concurrence of PBS, used the second Consol map, Gov't Ex. 3, to draw
in the boundaries of the Harrison No. 2 Mine on the Quecreek permit map. 30 FMSHRC at
1089; 28 FMSHRC at 703. The Harrison No. 2 Mine boundary on the permit map determined
the extent of the development of the Quecreek No. 1 Mine, the limit of which was a 200-foot
"hydraulic" barrier when there was an unsurveyed adjacent mine. 30 FMSHRC at 1089; 28
FMSHRC at 715; Tr. 653. Musser engineer Ed Secor certified the permit map. 28 FMSHRC at
703; see Gov't Ex. 5.

On February 28, 1998, the permit application for the Quecreek No. 1 Mine was submitted
to the DEP. 28 FMSHRC at 701. During the DEP review of the application, DEP staff members
conducted their own search for mine maps to confirm the accuracy of the mine map submitted
with the application. Stip. 64. The most current map of the Harrison No. 2 Mine that could be
located at the state and federal repositories was the Greentree map. Id. Based on the application
prepared by Musser and submitted by PBS, including the mine map with the Harrison No. 2
Mine boundaries as reflected in the second Consol map, the DEP issued a permit for the
Quecreek No. 1 Mine on March 13, 1999. 28 FMSHRC at 701; Stip. 73.

32 FMSHRC Page 1260

Once Musser engineer Secor certified the state permit map, all further maps created
during the permittmg process accepted the information (such as the boundary of the Harrison No.
2 Mine) on the prior sealed maps as complete. Stip. 87. The Musser permit map, including the
placement of the Harrison No. 2 Mine and the established 200-foot hydraulic barrier, was used as
the basis for maps submitted to MSHA, including the mine map required under 30 C.F.R.
§ 75.1200. 30 FMSHRC at 1089; Tr. 591-97.
C.

The MSHA Investigation and Subsequent Citations

After the breakthrough from the Quecreek Mine into the Harrison No. 2 Mine, MSHA
conducted a search for Harrison mine maps. Stip. 77. It was determined that the second Consol
map, upon which Musser had relied in drawing on the permit map the boundaries of the Harrison
No. 2 Mine, was not a final map and showed mining only through approximately 1961, while
mining operations had continued through 1963. Stip. 67.
During MSHA's investigation, it was also ascertained that the Greentree map of the
Harrison No. 2 Mine that appeared to be the most recent map filed with state or federal
authorities prior to its closing, was actually a map from 1957. Stip. 78. Due to a filing error at
OSM, a portion of the map that had a date of 1957 on it was not supplied to PBS and Musser
when they obtained the Greentree map. 28 FMSHRC at 703. See Stips. 63, 78-81.
In determining whether the operator of the Harrison No. 2 Mine complied with state law
in submitting a final mine map,6 MSHA identified John Kimmel as the superintendent and
engineer for Saxman at the Harrison Mine. 28 FMSHRC at 703. Records indicated that Kimmel
had submitted final mine maps for other mines in the area when they closed. Id. However, the
Commonwealth of Pennsylvania had no record of a final mine map for the Harrison No. 2 Mine.
Id.
In August 2002, MSHA discovered a final mine map at a museum, the Windber Coal
Heritage Center. Id. at 703-04. MSHA investigators traveled to the museum and went to the
museum's attic to examine old un-cataloged maps. Stip. 86. The family of a deceased
Pennsylvania mine inspector, C.H. Maize, who had inspected the Harrison No. 2 Mine, had
donated a map in his possession to the museum in June 2002. Stip. 84. The map was not
available to the public prior to July 24, 2002, the date of the Quecreek inundation. Stip. 86.
A note on the outside of the map indicated that it was the "final" mine map, and it had a date of
1964. Stip. 82. This map (''the Windber map") was the final mine map presented by Saxman to
the state, and it was signed and dated by state inspector Maize. Stips. 82, 86; PBS Ex. 19.
6

The Mine Act, 30 U.S.C. § 312(c), and the Secretary's regulations, 30 C.F.R.
§§ 75.1204 to 75.1204-1, now require that an operator file a final mine map with the MSHA
district office that is accurate up to the time of closure. The Harrison No. 2 Mine closed in 1963,
well before the effective date of either the Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. § 801 et. seq. ("Coal Act") or the Mine Act.
32 FMSHRC Page 1261

However, the Windber map was not certified by a surveyor or engineer, as required by state law,
and the map did not show mining in the room at the Harrison No. 2 Mine where the breakthrough
from the Quecreek No. 1 Mine had occurred. 28 FMSHRC at 704. MSHA investigators never
located a final certified map of the Harrison No. 2 Mine nor any map that showed mining in the
Harrison No. 2 Mine where the actual breakthrough occurred. Id.
A second mine map that was identical to the Windber map was located after the
conclusion ofMSHA's investigation. This map was found in the storage area in an attorney's
office at Consol. Stips. 99, 102. The box containing the map was marked with the name of an
environmental matter under investigation by the U. S. Environmental Protection Agency.
Stip. 102. The map was not cataloged and had been placed in the storage area in the mid-1990' s.
Stips. I 01-02. During a review of the stored boxes for possible donation to an educational
institution, documents relating to Quecreek were discovered, and MSHA was contacted.
Stips. 103-04. In July 2004, MSHA examined the contents of the box and located a map
identical to the Windber map, along with a letter from state inspector Maize reminding Saxman
of its obligation under state law to supply a final mine map 60 days after mine closure.
Stips. I 05-07.
At the completion of its investigation, on August 12, 2003, MSHA issued citations to
Black Wolf, Musser, and PBS that charged each with violating 30 C.F.R. § 75.1200. That
section provides:
The operator ofa coal mine shall have in a fireproof repository
located in an area on the surface of the mine chosen by the mine
operator to minimize the danger of destruction by fire or other
hazard, an accurate and up-to-date map ofsuch mine drawn on
scale. Such map shall show:
(a) The active workings;
(b) All pillared, worked out, and abandoned areas, except as
provided in this section;
(c) Entries and aircourses with the direction of airflow
indicated by arrows;
(d) Contour lines of all elevations;
(e) Elevations of all main and cross or side entries;
(f) Dip of the coalbed;
(g) Escapeways;
(h) Adjacent mine workings within 1, 000 feet;
(i) Mines above or below;
(j) Water pools above; and
(k) Either producing or abandoned oil and gas wells located
within 500 feet of such mine and any underground area of such
mine; and

32 FMSHRC Page 1262

(1) Such other information as the Secretary may require.
Such map shall identify those areas of the mine which have been
pillar~ worked out, or abandoned, which are inaccessible or
cannot be entered safely and on which no information is available.
30 C.F.R. § 75.1200 (emphases added).

In substantially similar citations, MSHA charged Musser and PBS with violating the
standard because the workings of the Harrison No. 2 Mine ''were not accurately and completely
shown on the mine map." The citations further specified that the operator's mine map showed
the Harrison No. 2 Mine to be 450 feet away from where the breakthrough occurred and "the
primary cause of the accident was the use of an undated and uncertified mine map of the
Harrison No. 2 Mine that did not show the complete and final mine workings." The citations
further stated that Musser and PBS had improperly relied on the second Consol map as the most
up-to-date map even though it was not dated or represented as a final map. Finally, the citations
stated that, even though the Windber map would not have been available to Musser, "other
information ... would indicate that the boundaries used were questionable." The citations
specified that the violations were S&S; that the gravity of the violations was high; and that PBS
and Musser were moderately negligent. Docket Nos. PENN 2004-152 and PENN 2004-158,
Pets. for Assessment of Civ. Pen. (Exs. A, citations dated Aug. 12, 2003). The Secretary
proposed penalties of$5,000 each against PBS and Musser. Id.
PBS and Musser filed notices of contests, and the case was assigned to the Chief Judge.
In response to motions for summary decision from the Secretary, PBS, and Musser, the judge, on
July 21, 2006, issued a decision addressing whether PBS and Musser violated section 75.1200.
With regard to PBS, the judge noted that the Mine Act is a strict liability statute and that
the language of the regulation is clear. 28 FMSHRC at 706. Among other things, section
75.1200 requires an operator to show on a mine map adjacent mine workings that are within
1000 feet. Id. at 707. The judge found that the mine map at the Quecreek No. 1 Mine did not
accurately show the workings of the abandoned Harrison No. 2 Mine. Id. Therefore, the judge
concluded that PBS violated the standard when it depicted inaccurate boundaries of the
abandoned mine on the map. Id. at 707-08. The judge did not address PBS' s degree of
negligence nor the appropriateness of the proposed penalty because of outstanding questions of
material fact that could only be resolved following a hearing. Thus, he denied summary decision
on those issues. Id. at 709-11.

In response to Musser's argument that it was not an operator subject to the jurisdiction of
the Mine Act, the judge held that Musser was an independent contractor providing engineering
services to the mine that were more than de minimis. Id. at 711-14. The judge concluded that
Musser violated section 75.1200 because it was in a position to prevent the errors on the mine
map submitted to MSHA in that "Musser created, certified, and sealed the permit map, on which
the section 75.1200 map was based." Id. at 714-16. On the issue ofMusser's negligence, the

32 FMSHRC Page 1263

judge conclude<L as he had with PBS, that he could not determine the degree of Musser' s
negligence or the penalty assessment without a hearing. 7 Id. at 716-18.
Following a hearing, the judge issued a second decision on November 3, 2008, addressing
the degree of negligence of PBS and Musser in committing the violations, whether the violations
were S&S, and the amount of penalties. 30 FMSHRC at 1087. With regard to negligence, the
judge concluded that PBS and Musser acted in "a grossly negligent manner." Id. at 1092-94.
The judge reasoned that PBS and Musser were aware that they had received contradictory maps
from Consol, that final.certified maps are rarely available, and that the Harrison No. 2 Mine was
at a higher elevation and full of water. Id. Rather than take additional precautions such as
placing a notation on the mine map indicating uncertainty about the boundaries, PBS and Musser
chose instead "to play Russian roulette with the lives of miners." Id. at 1093-94. The judge also
concluded that the violations were S&S, noting in particular that the death of the nine miners was
a near certainty but for a dramatic rescue. Id. at 1095. Finally, in addressing the proposed
penalties, the judge found that the violations were "of the utmost gravity," id. at 1091-92, and he
imposed the maximum penalty of $55,000 against PBS and Musser. Id. at 1095.
II.
Disposition
PBS challenges the judge's reading of section 75.1200 in finding a violation because the
judge's decision requires PBS to comply with the "impossible" requirement of producing an
accurate map with the boundaries of the abandoned and sealed Harrison No. 2 Mine when there
was no complete final mine map available from any source. PBS Br. at 15-16. PBS argues that
the judge's reading of the standard misinterpreted section 75.1200 to mandate "accurate and upto-date" information about the abandoned Harrison No. 2 Mine when the regulation only requires
such information about the operator's own mine. Id. at 16-17. PBS also contends that the
judge's reading of the standard is inconsistent with the regulatory scheme. Id. at 18-20. In
support of its position, PBS also notes that the Secretary's regulation for ventilation plan maps,
30 C.F.R. § 75.372(c) (which maybe satisfied by amine map prepared under section 75.1200),
requires boundaries of only "known" mine workings, which is consistent with Pennsylvania
regulations. PBS Reply Br. at 5. PBS further argues that the judge erred when he required PBS
to annotate the mine map to indicate uncertainty about the boundaries of the adjacent abandoned
mine. PBS Br. at 19-25; PBS Reply Br. at 7-9. PBS states that it was not aware of such a
requirement under section 75.1200 and therefore lacked notice. PBS Br. at 25-26; PBS Reply Br.

7

The judge concluded that Black Wolf, as the operator of the Quecreek No. 1 Mine, was
jointly liable with the independent contractors, PBS and Musser, for the violation of section
75.1200. Id. at 717-18. As previously noted, Black Wolf settled with the Secretary and is no
longer in the proceeding. The judge approved a settlement in which Black Wolf was ordered to
pay $4100, the amount that the Secretary had proposed in its penalty against Black Wolf.
Unpublished Order, Docket No. PENN 2004-157 (Nov. 3, 2008).
32 FMSHRC Page 1264

at 9. PBS takes issue with the judge's finding that PBS' s level of negligence was very high or
"gross," noting that the Secretary only alleged that the level of negligence was "moderate."
PBS Br. at 26-31. PBS also asserts that the violation was not S&S. Id. at 31-33. Finally, PBS
contends that the judge's increase in the Secretary's proposed penalty was improper and that he
failed to provide an adequate explanation for departing from the proposed amount. Id. at 33-34.
Musser initially argues that it is not an "operator" within the meaning of the Mine Act
and therefore that MSHA has no jurisdiction over it. M. Br. at 6-15; M. Reply Br. at 8-12.
Musser contends that a mine must exist before Mine Act jurisdiction attaches, and that Quecreek
No. 1 Mine was not in existence at the time Musser performed services. M. Br. at 7-11. Musser
further argues that it did not violate section 7 5.1200 because it never created any map of the
Quecreek No. 1 Mine, M. Reply Br. at 6-7, and never certified the section 75.1200 map nor
submitted it to MSHA. M; Br. at 16-1 7. Musser asserts that it played no role in making sure an
up-to-date map was kept at the mine, M. Br. at 16, and that it could not have met the
requirements of section 75.1200 because there was no "mine" in existence at the time it prepared
the state permit map. M. Reply Br. at 6-7. Musser challenges the judge's S&S determination
because he failed to correctly apply the test set forth in Mathies Coal Co., 6 FMSHRC 1 (Jan.
1984). M. Br. at 17-18. Musser asserts that the judge's finding that Musser acted in a grossly
negligent manner is contrary to the record evidence, clearly erroneous, and that the judge ignored
mitigating factors in his determination. Id. at 19-25. Musser further challenges the judge's
negligence holding because it was based on Musser's failure to place a warning or notation on
the state permit map, when such a disclaimer would have been inappropriate. M. Br. at 21-22;
M. Reply Br. at 2-3. Musser finally argues that the Commission should reverse the judge's
penalty assessment because he failed to properly consider whether the increased penalty was
appropriate to Musser' s size and whether it would affect its ability to continue in business.
M. Br. at 25-26.
In response, the Secretary argues that Musser failed to raise either before the judge or in
its PDR that it.was not covered by the Mine Act. S. Br. at 12-13, 15-16. The Secretary further
argues that Musser provided sufficient services to the Quecreek mine to be an "independent
contractor" under the Act. Id. at 14-18. With regard to the regulatory requirement to provide an
accurate mine map showing adjacent mine workings, the Secretary argues that the standard is
plain and that Musser and PBS violated it when they failed to show the correct boundaries of the
Harrison No. 2 Mine. Id. at 18-20. In response to Musser's and PBS's argument that they did
not have adequate notice of the standard's requirements, the Secretary asserts that a reasonably
prudent operator would have understood that a mine map that indicates there were no
immediately adjacent workings, when in fact, that information was unknown, is not "accurate."
Id. at 24-25. The Secretary argues that the judge's S&S determination is correct under Mathies.
Id. at 26-30. The Secretary states that the judge's finding of gross negligence is supported legally
and factually. Id. at 30-39. In the assessment of penalties against Musser and PBS, the Secretary
states that a remand to the judge for a further analysis of the penalties and two of the penalty
criteria in section l lO(i), size of business and ability to continue in business, is necessary. Id.
at 41-42.

32 FMSHRC Page 1265

A.

Musser' s Status as an Operator/Independent Contractor under the Mine Act8

Section 3(d) of the Mine Act expanded the definition of"operator" in the Coal Act, and
defines "operator" as "any owner, lessee, or other person who operates, controls, or supervises a
coal or other mine or any independent contractor performing services or construction at such
mine." 30 U.S.C. § 802(d). The phrase "independent contractor" is not defined in the Mine Act,
but MSHA regulations define it as an entity that "contracts to perform services ... at a mine."
30 C.F.R. § 45.2(c). The Secretary cited Musser as an operator based on the independent
contractor clause of section 3(d). 9
Musser challenges MSHA's authority to issue it a citation under the Mine Act. M. Br.
at 6-17. It essentially argues that before there can be jurisdiction over it, there must, pursuant to
section 3(d), be a "mine" in existence from which minerals are being extracted, and that in this
case, the actions for which it was cited occurred years before there was a mine. Id. at 6-9 & n.4.
Musser additionally argues that MSHA lacked jurisdiction to issue the citation because its work
was not performed at the prospective mine site, and hence, was not "at such mine" within the
meaning of30 U.S.C. § 802(d).
Initially, we disagree with the Secretary that Musser has not adequately preserved the
issue for review. In its petition for discretionary review, Musser identifies the first issue for
review in the following words, ''There is no Mine Act jurisdiction." M. PDR at 6. Musser states
in its petition that it is not an "operator," which includes "any independent contractor performing
services," within the meaning of section 3(d) of the Act. Id. Musser's identification and
treatment of the issue in its PDR largely parallels the judge's discussion of the issue that he titled,
"Musser - Jurisdiction" in his first decision. 28 FMSHRC at 711. In any event, Musser' s
arguments regarding its status as an operator and independent contractor under section 3(d) are
clearly related to those presented to the judge, M. Reply Br. on Mot. for Sum. Dec. at 1-5, and
can be considered by the Commission. See Rock ofAges Corp., 20 FMSHRC 106, 115 n.11
(Feb. 1998), ajf'd in part on other grounds, 170 F.3d 148 (2nd Cir. 1999) (addressing
unwarrantable failure findings not specifically raised in a PDR because the arguments were
sufficiently related to the negligence issue in the PDR); Keystone Coal Mining Corp., 16
FMSHRC 6, 10-11 n.7 (Jan. 1994) (holding that the arguments raised on review were sufficiently
related to those presented to thejudge, as they enlarged the initial contention to the judge by
presenting an additional rationale).

8

Chairman Jordan joins Commissioner Cohen in Part II.A. of this opinion.

9

In response to Musser's argument based on Berwind Natural Resources Corp., 21
FMSHRC 1284 (Dec.1999), an argument which Musser now seems to have abandoned, the
Judge correctly pointed out that a majority of Commissioners concluded that the engineering firm
in Berwind could have been cited as an independent contractor. 28 FMSHRC at 711-12.
32 FMSHRC Page 1266

In finding that Musser was an "independent contractor performing services ... at [a]
mine" under section 3(d), the judge relied on Otis Elevator Co. v. Secretary ofLabor, 921 F.2d
1285, 1290 (D.C. Cir. 1990), Joy Technologies, Inc. v. Secretary ofLabor, 99 F.3d 991, 999-1000
(10th Cir. 1996), and Northern Illinois Steel Supply Co. v. Secretary ofLabor, 294 F .3d 844, 84849 (7th Cir. 2002), which hold in effect that section 3(d) covers any independent contractor
performing more than de minimis services at a mine. See 28 FMSHRC at 712-14. The judge's
analysis of this issue is correct. 10
First, clearly Musser was an independent contractor which performed engineering services
for PBS in connection with the Quecreek No. 1 Mine. It prepared the original permit application
including the maps that were an integral part of securing a mining permit from state and federal
authorities. Stips. 11, 12. Once Musser engineer Secor certified the state permit application map
that indicated the boundaries of the Harrison No. 2 Mine, all future mine maps, including mine
maps submitted to MSHA, were prepared using that map as the "base map." 30 FMSHRC at
1089. Substantial evidence supports the judge on this point. 11 Tr. 59-60, 194, 335, 377-82.
The next inquiry is whether Musser was performing services "at a mine." Relying on the
Commission's decision in Paul v. P.B.-K.B.B., Inc., 7 FMSHRC 1784 (Nov. 1985), aff'd, 812
F.2d 717, 720 (D.C. Cir. 1987), Musser argues, M. Br. at 7-8, that there can be no Mine Act
jurisdiction if there is no mine in existence. In Paul, the Commission dismissed a section 105(c)
discrimination complaint because the individual was not working at a "mine," and was involved

° Commissioner Cohen notes that previous Commission cases have utilized a

1

cumbersome and obscure two-pronged test for determining whether an independent contractor is
an operator under section 3(d). First, the Commission has reviewed the independent contractor's
"proximity" to the mining process and determined whether its work is "sufficiently related" to it.
Otis Elevator Co., 11 FMSHRC 1896, 1902 (Oct. 1989), aff'd 921F.2d1285 (D.C. Cir. 1990).
Next, the Commission has considered "the extent of [the contractor's] presence at the mine." Id.
By contrast, the D.C. Circuit in Otis Elevator, the 10th Circuit in Joy Technologies, and the 7th
Circuit in Northern Illinois have adopted an approach based on the plain meaning of the statute.
This approach to section 3(d) is also advocated by the Secretary. S. Br. at 18 n.15.
Commissioner Cohen believes this view is more straightforward and in keeping with the
language of the Mine Act. He notes that no court has endorsed the Commission's analysis of the
independent contractor component of section 3(d). Consequently, he suggests that our older
precedent in this area merits reexamination by the Commission.
11

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)).
32 FMSHRC Page 1267

in design and exploratory activity that was "simply too far removed from what reasonably can be
regarded as mining activity in order to qualify for Mine Act coverage." 7 FMSHRC at 1788.
However, Musser's argument ignores an essential provision of the Mine Act that is
applicable in this proceeding. Section 3(h)(l) of the Act defines ''mine" as including "lands ... or
other property ... used in, or to be used in, or resulting from, the work of extracting such minerals
from their natural deposits." 30 U.S.C. § 803(h)(l) (emphases added). 12 The significant
distinction between Paul and this case is that in Paul, the engineer was preparing designs to
explore the feasibility of storage of nuclear waste in shafts constructed in underground salt
formations, but no prospective mine site was involved. Further, in Paul, "[t]he design never left
the drawing board. It was never implemented." 7 FMSHRC at 1787. Thus, the ''mine" was
wholly conceptual in nature. As the D.C. Circuit noted, "[c ]onceptual designs do not endanger
lives or property; any hazards they pose, prior at least to their final approval or the initial stages of
their implementation, are purely hypothetical. The Act was not designed to regulate ideas."
812 F.2d at 720.
Here, in contrast, the site for the mine had been selected, and Musser's work was in
relation to that specific site. The Quecreek No. 1 Mine was located at that site. Thus, we
conclude that the absence of a mine from which minerals were being extracted at the time of
Musser's work is not dispositive ofMusser's status as an independent contractor. See 7
FMSHRC at 1785, 1788. 13

12

We disagree with Musser's assertion, stated at oral argument before the Commission,
Oral Arg. Tr. 57-58, that MSHA has no jurisdiction over any actions taken by an operator before
ground is broken for a new mine.
13

We also reject Musser's argument based on the language of section 4 of the Mine Act,
that it is not subject to the Act because "[a]t the time of the acts for which Musser was cited,
there was no 'mine, the products of which enter[ed] commerce or the operations or products of
which affect[ed] commerce." M. Br. at 8-9, quoting 30 U.S.C. § 803; Oral Arg. Tr. 50. Musser
relies on Paul for the proposition that this section of the Act "says nothing about the prospective
effects of commerce." M. Br. at 9, quoting 812 F.2d at 720 n.3 (emphasis in brief). Musser's
reliance is misplaced. Musser ignores the fact that the services Musser performed (which, as
discussed below, included surveying, field investigations, and water sampling at the mine site),
were contemporaneous "operations ... which affect commerce." See United States v. Lake,
985 F.2d 265, 269 (6th Cir. 1993) (holding that the operation of a mine whose coal was sold
locally, and which purchased mining supplies from a local dealer and consumed commercially
produced electricity, were sufficient to prove that "operations or products" of the mine affected
interstate commerce under the Act); Sec '.Y ofInterior v. Shingara, 418 F. Supp. 693 (M.D. Pa.
1976) (holding that defendants' mining activities fell within the coverage of the Act based in part
on their purchase of items of equipment and an insurance policy produced by out-of-state sources
which "affects commerce"); see also D.A.S. Sand & Gravel, Inc., 386 F.3d 460 (2nd Cir. 2004)
32 FMSHRC Page 1268

Musser's second argument as to jurisdiction is that its work was not actually performed at
the prospective mine site. In response, the Secretary argues that the words "at such mine" are
applicable if the services related to the mine site even if Musser performed them somewhere else.
S. Br. at 15-17. The words "at such mine" in section 3(d) are ambiguous, and we conclude that
the Secretary's interpretation is reasonable and thus entitled to deference under the Chevron II
standard. Chevron U.S.A., Inc. v. Natural Res. Defense Council, 467 U.S. 837, 842-44 (1984).
Even without according deference to the Secretary's interpretation of the words "at such
mine," there is substantial evidence to support the finding that Musser's work was performed, in
part, at the mine site. This conclusion is supported by Musser' s time records contained in Musser
Exhibit 4. These time records indicate repeated visits to the mine site for work related to the
permitting process, including surveying, field investigations, and water sampling. See M. Ex. 4.
These types of visits were acknowledged by Musser's counsel at oral argument. Oral Arg. Tr. 4445. Moreover, the services performed by Musser, which determine whether it is subject to MSHA
jurisdiction include all of the work performed by Musser in connection with submitting the permit
application to the Pennsylvania Department of Environmental Protection in 1998. This work was
much more extensive than just the work oflocating the boundaries of the Harrison No. 2 Mine
and placing them on the Module 19.2 permit map. The specific work relating to the Harrison
Mine boundaries is the only work relevant to the citation in this case, but it is the totality of the
work Musser performed in preparing the permit application which must be considered on the
jurisdiction issue. 14
Our examination ofMusser's activities does not end here. We must determine whether its
contact was so infrequent or de minimis that it would be difficult to conclude that services were
being performed. Northern Illinois, 294 F.3d at 848-49. Musser's engineering services for
Rox Coal, PBS, and Black Wolf were extensive in time and substantial in content. Musser' s time
records reflect work on a monthly, weekly, or more frequent basis, throughout 1992 to 1999.
See M. Ex. 4. As the judge found, 28 FMSHRC at 714, Musser's activities included "engineering
support, mappjng, and surveying services" that were performed to meet the operational needs of
the mine. Substantial evidence supports the judge in this regard. Accordingly, the services
provided by Musser-were not de minimis, unlike the contractor in Northern Illinois.
Finally, in considering the role of Musser in the pre-extraction, operational activities at the
Quecreek mine, it is consistent with the purposes of the Mine Act to conclude that Musser is an
operator. As the Commission has noted, Congress' inclusion of language in section 3(d) to
include independent contractors under the definition of "operator" represents an intentional

(affirming Commission holding that the Mine Act applies to mines the products of which are
sold entirely intrastate).
14

However, we reject the Secretary's argument that the work performed by Musser at the
Quecreek Mine in 2001 and 2002 is relevant to establishing jurisdiction for work performed up
to submission of the Pennsylvania permit application in 1998.
32 FMSHRC Page 1269

expansion in the coverage of the statutory term. Bulk Transp. Se111ices, Inc., 13 FMSHRC 1354,
1357 (Sept. 1991). Moreover, according to the Senate Report, "[I]t is the Committee's intention
that what is considered to be a mine and to be regulated under this Act be given the broadest
possibl[e] interpretation." S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on
Labor Comm. on Human Res., Legislative History ofthe Federal Mine Safety & Health Act of
1977, at 602 (1978). Indeed, if we did not find coverage of Musser under the Act, we would reach
the anomalous result that a mine owner performing the same work as an independent contractor
would be covered, but the contractor would not.
B.

Whether Section 75.1200 Was Violated

PBS and Musser were cited for violating section 75.1200, 30 C.F.R. § 75.1200. Section
75.1200 is a standard that has its origin in, and closely tracks, section 312 of the Mine Act, which
provides that "[t]he operator of a coal mine shall have ... an accurate and up-to-date map" that
shows "adjacent mine workings within one thousand feet." 30 U.S.C. § 872. 15
1.

Liability of PBS 16

In agreement with the judge, we conclude that the language of section 312 of the Mine Act
and the regulation, 30 C.F.R. § 75.1200, is clear in requiring a coal mine operator to maintain an
"accurate" mine map showing adjacent mine workings, including abandoned workings within
1000 feet. The judge correctly determined that PBS violated 30 C.F.R. § 75.1200. PBS violated
the standard's requirement of an accurate map because, as the judge pointed out, "[t]o say that the
operator's map was inaccurate would be an understatement. If the operator's map were accurate,
the Harrison No. 2 Mine workings would not have been intersected because the Harrison No. 2
Mine really would have been approximately 450 feet away, as indicated on the operator's map."
28 FMSHRC at 706. Accordingly, as the judge noted, if the Quecreek mine map had been
"accurate," no breakthrough would have occurred. Id.
PBS raises a number of defenses regarding this liability issue. First, PBS argues that
section 75.1200's requirement for an "accurate" mine map only applies to the mine "being
mapped and operated." PBS Br. at 16-17. It asserts that the regulation does not require an
"accurate and up-to-date map" of the adjacent workings (in this case, of the Harrison No. 2 Mine).

15

Section 312(a) of the Coal Act had similar wording, requiring accurate and up-to-date
mine maps including "adjacent mine workings within one thousand feet." 30 U.S.C. § 872(a)
(1976).
16

Chairman Jordan and Commissioner Duffy join Commissioner Cohen in Part II.B.l. of
this opinion.
32 FMSHRC Page 1270

We reject this contention, as the framework and language of the standard are clear that it does. 17
Quoting section 3 li(a) of the Act, the regulation states: "The operator of a coal mine shall have in
a fireproof repository located in an area on the surface of the mine chosen by the mine operator to
minimize the danger of destruction by fire or other hazard, an accurate and up-to-date map of
such mine drawn on scale." 30 C.F.R. § 75.1200 (emphasis added). The regulation goes on to
state, "[s]uch map shall show" and then enumerates specific items which must be shown.
Id. (emphasis added). Of the 12 items listed, eight (the first seven and the last) refer to the
operator's mine, while the other four items, including "(h) Adjacent mine workings within 1,000
feet," do not refer to the operator's mine. PBS' s assertion that the requirement of accuracy of the
mine map applies to the eight specified items relating to the operator's mine but not to the
remaining four items has no basis in the statutory or regulatory language, which makes no such
distinction. PBS's argument contravenes the well-known principle that a statutory or regulatory
provision must be construed "as a whole, giving comprehensive, harmonious treatment to all
provisions." Morton Int'/, Inc., 18 FMSHRC 533, 536 (Apr. 1996). Certainly, it would trivialize
the requirement of an accurate mine map to carve out an exception for the boundaries of adjacent
mines.
Moreover, the legislative history of the Coal Act, which, as mentioned previously,
contains the predecessor provision to section 312 of the Mine Act, makes clear that the
requirement of an accurate mine map applies to workings adjacent to the mine. As stated in the
Senate Report, "[r]ecent inundation accidents ... point up the need for the accurate mapping of
mines. Active mines often cut through into adjacent mines, or worked[-]out and abandoned areas
of the same mine, because of the lack of maps or because of inaccurate maps." S. Rep. 91-411,
at 82 (1969), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Part I Legislative
History ofthe Federal Coal Mine Health and Safety Act of 1969, at 208 (1975). Hence, the
operator's argument that the regulation does not require "accurate" mapping of the adjacent mine
workings within 1,000 feet is groundless.
PBS also challenges the judge's finding of a violation because the judge's reading of the
regulation ''requires what is impossible," as no final complete mine map of the Harrison No. 2
Mine was available, and because it was impossible to survey the abandoned and flooded mine.
PBS Br. at 15-16.
In support of its argument, PBS cites four cases - Rock ofAges Corp., 20 FMSHRC 106,
122 (Feb. 1998); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993); Dantran, Inc.

17

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).
32 FMSHRC Page 1271

v. Department ofLabor, 171 F.3d 58, 65 (1st Cir. 1999); and Walker Stone Co. v. Secretary of
Labor, 156 F.3d 1076, 1082 (10th Cir. 1998). However, none of these cases stand for the
proposition advanced by PBS. Rather, they stand for the principle that a statute or regulation may
not be construed so as to lead to absurd results.

In any event, PBS' s argument that the citation in this case required it to do the
"impossible" because the precise location of the Harrison No. 2 Mine workings was unknown
ignores the precept that "operators may be held liable for violations of mandatory safety
[standards] under the Mine Act even if they did not have knowledge of facts giving rise to the
violation." S. Br. at 20, citing Rock ofAges Corp. v. Secy ofLabor, 170 F.3d 148, 156 (2nd Cir.
1999); see also Stillwater Mining Co. v. FMSHRC, 142 F.3d 1179, 1183-84 (9th Cir. 1998). As
noted by the Second Circuit, this is consistent with the putpose of the Mine Act because it
encourages "greater vigilance" and avoids creating an incentive for operators ''to avoid gaining
knowledge." Rock ofAges, 170 F.3d at 155.
Because the Mine Act is a strict liability statute, an operator is liable if a violation of a
mandatory safety standard occurs, regardless of the level of fault. Spartan Mining Co., 30
FMSHRC 699, 706 (Aug. 2008); Asarco, Inc., 8 FMSHRC 1632, 1634-36 (Nov. 1986), ajf'd, 868
F.2d 1195 (10th Cir. 1989). In Asarco, the Commission concluded that "the operator's fault or
lack thereof, rather than being a determinant of liability, is a factor to be considered in assessing a
civil penalty." Id. at 1636. Thus, because the standard requires that the operator maintain an
"accurate and up-to-date map," it follows that if the mine map fails to meet these requirements,
the operator has violated the standard, regardless of whether it did everything possible to locate an
accurate historical map of adjacent mine workings.
We also reject PBS's assertion that the judge's interpretation of the regulation (requiring
an operator to accurately depict the workings of an abandoned adjacent mine even if it is not
possible for the operator to survey the abandoned mine) is inconsistent with the regulatory
scheme. PBS Br, at 18-19. PBS first relies on 30 C.F.R. § 75.1200-2, which addresses the
surveying of mine property. PBS reasons that this standard equates the accuracy of a mine map
with the accuracy of an operator's survey methods. Id. However, references to the methodology
of surveying in other MSHA regulations do not vitiate the plain language of section 75.1200(h),
which requires an "accurate and up-to-date map" of adjacent mine workings within 1,000 feet.
PBS also relies on borehole regulations (30 C.F.R. § 75.388) that, according to PBS, have
more stringent requirements in areas of a mine not shown by surveys. PBS contends that the
different requirements involving the drilling of boreholes in advance of mining18 recognize that

18

PBS compares 30 C.F.R. § 75.388(a)(l), which requires boreholes in advance of
mining when the working place approaches "[t]o within 50 feet of any area located in the mine as
shown by surveys that are certified by a registered engineer or registered surveyor unless the area
has been preshift examined," with 30 C.F.R. § 75.388(a)(3), which requires boreholes in advance
of mining when the working place approaches "[t]o within 200 feet of any mine workings of an
32 FMSHRC Page 1272

some adjacent mines cannot be accurately mapped, and so build in a 200-foot borehole drilling
requirement as a replacement for accurate mapping. Id. at 19. However, the requirement for
boreholes in advance of mining when the working place approaches to within 200 feet of any
mine workings of an adjacent mine located in the same coal bed (unless the mine workings have
been preshift examined), 30 C.F.R. § 75.388(a)(3), does not displace the requirement for an
accurate map of adjacent mine workings within 1,000 feet. Rather, this is an additional safety
precaution which provides additional protection from breakthroughs. 19 The fact that section
75.388(a)(l) requires borehole drilling when the working place approaches to within 50 feet of an
area "located in the mine as shown by surveys that are certified by a registered engineer or
registered surveyor" is irrelevant. This provision relates to mining coming close to an alreadymined area within the operator's mine rather than an adjacent mine.
PBS also contends that under MSHA's regulations governing ventilation maps, 30 C.F.R.
§ 75.372(b)(3), an operator need only show "known" mine workings in the same seam and that
Pennsylvania state law only requires "known workings of ... abandoned, underground or surface
mines," on permit application maps, 25 Pa. Code.§ 89.154(a)(4). PBS Reply Br. at 5. PBS notes
that pursuant to C.F.R. § 75.372(c), MSHA accepts a mine map prepared under 30 C.F.R.
§ 75.1200 as fulfilling the requirements of a ventilation map under 30 C.F.R. § 75.372(b). Id.
However, neither section 75.372(b)(3) nor the Pennsylvania environmental statute supplants the
plain language requirements of section 75.1200(h). PBS appears to accept the premise that the
language of 30 C.F.R. § 75.372(b)(3), with its reference to "known mine workings," is less
stringent than 30 C.F.R. § 75.1200(h), which omits the word "known." The fact that the Secretary
accepts the more rigorous provision of section 75.1200 as satisfying section 75.372(b)(3) can in
no way be interpreted to imply the inverse - that the Secretary intended to accept a watered-down
version of a section 75.1200 mine map to satisfy section 75.1200. If anything, comparison of
section 75.1200 with section 75.372 supports the judge's conclusion that the plain meaning of
section 75.1200 requires an accurate depiction of adjacent mine workings within 1,000 feet.
Additi9nally, PBS takes issue with the judge's findings that the Quecreek Mine map
would have been "accurate" within the meaning of section 7 5 .1200 if it had been drafted so as to
show uncertainty regarding the location of workings in the Harrison No. 2 Mine. 28 FMSHRC
at 707. PBS argues that it had no notice of a requirement that, when the precise boundaries of an
adjacent mine are uncertain, it must show the uncertainty on its mine map by using dotted lines or
other form of disclaimer. PBS Br. at 20-26. However, we need not reach the issue of whether a
mine map depicting an uncertain.area becomes "accurate" if it shows the uncertainty. As stated

adjacent mine located in the same coalbed unless the mine workings have been preshift
examined."
19

If the Quecreek Mine map had been less inaccurate, e.g., 180 feet wrong rather than
450 feet, then the borehole requirement of section 75.388(a)(3) would have avoided the disaster
which occurred on July 24, 2002. However, the gross inaccuracy of the mine map here meant
that the 200-foot borehole requirement, by itself, was not sufficient to prevent the inundation.
32 FMSHRC Page 1273

supra, the plain meaning of section 75.1200 is that a mine map's depiction of the workings of an
adjacent mine within 1,000 feet must be accurate.20
An operator in the position of PBS in this case - recognizing the existence of an
abandoned mine up dip of its proposed mine, but uncertain of the boundaries of the abandoned
mine because of the lack of a final, dated, and certified map of the abandoned mine - is not
without means to operate its mine legally and safely. The Mine Act envisions situations in which

°

2

Chairman Jordan believes it is necessary to address the judge's holding that, had the
map at issue merely indicated uncertainty about the mined out area, it would have met the
requirement for an accurate map under 30 C.F.R. § 75.1200. According to the judge, such map
''would have 'accurately' shown that adjacent mine workings existed, and would have
'accurately' shown that the exact location of those workings was not known." 28 FMSHRC
at 707. The judge indicated this was the construction urged by the Secretary, and indeed the
Secretary has maintained this position on appeal, stating that compliance with the regulation
could have been achieved "simply by indicating in some way on the map that the exact location
of the adjacent workings in the Harrison No. 2 Mine was unknown." S. Br. at 21.
The judge considered this construction of75.1200 to be in accord with a "plain reading of
the text" as well as "in line with the purpose of the Act" because, as he explained, "[i]fthere had
been some indication on the map that the location of mine workings in the Harrison No. 2 [M]ine
w[ as] unknown, the miners would most certainly have proceeded with more caution."
28 FMSHRC at 707. Moreover, the judge concluded, "[t]his reading of the text does not lead to
the absurd result of requiring operators to produce exact depictions of inaccessible mine
workings." Id.
Putting aside for the moment the issue of whether it is reasonable to assume that the
miners (particularly at an unorganized mine) would actually see the mine map, collectively
realize the need to implement extra precautions, and then be in a position to determine which
precautions were advisable, the fact remains that under the judge's holding, those miners have no
recourse if their employer declines to address their concerns. If the miners went to MSHA, that
agency could not insist on any precautions since, under the judge's (and apparently the
Secretary's) construction of section 75.1200, the operator is considered to be in compliance with
that standard merely by indicating on the map that it is not certain where a particular boundary is
located. An operator who disagreed with the need to implement certain precautions, and whose
miners subsequently broke through into flooded workings, would not be considered to have
violated section 75.1200's requirement of an accurate mine map as long as the map indicated the
operator's uncertainty about the location of the adjacent flooded workings. Chairman Jordan
respectfully suggests that this is the absurd result that should be avoided. She therefore rejects
the Secretary's argument, which was adopted by the judge, that a map with incorrect boundaries
may nevertheless comply with section 75.1200's requirement for an "accurate and up-to-date
map" as long as the map indicated those boundaries might be wrong. She believes such
construction is not consistent with either the language or purpose of the standard.
32 FMSHRC Page 1274

an operator is permitted to deviate from a standard's requirements, if adequate alternative
precautions are implemented. Section 101 (c) of the Mine Act authorizes the Secretary to modify
the application of any mandatory safety standard to a particular mine if she finds that "an
alternative method of achieving the result of such standard exists which will at all times guarantee
no less than the same measure of protection afforded the miners of such mine by such standard."
30 U.S.C. § 81 l(c). An operator in the situation of PBS in this case may petition the Secretary,
pursuantto section lOl(c), to modify the strict application of30 C.F.R. § 75.1200. In the petition,
the operator could explain what steps it would put in place, in other words, what "alternative
method" it is proposing to implement, so that miners would have the same level of protection as is
afforded by compliance with the standard. Thus, in the absence of a final, dated certified map of
an adjacent mine, the operator could propose procedures such as horizontal drilling at the face in
advance of the mining, as suggested by Black Wolf President David Rebuck, Tr. 280-81, and
MSHA expert Stanley Michalek, Tr. 429.
Hence, we reject PBS's defenses and conclude that it violated section 75.1200 when it
failed to maintain an accurate mine map.
2.

Liability ofMusser2 1

Musser appeals the judge's conclusion that it violated 30 C.F.R. § 75.1200 by preparing
the Pennsylvania DEP environmental permit application for the Quecreek No. 1 Mine, including a
map showing the location of abandoned mine workings adjacent to the planned mine.
28 FMSHRC at 714-16. In his decision finding Musser liable, the Judge reasoned that the Musser
environmental permit map, including the location of the Harrison No. 2 Mine, was used as a basis
for the maps required to be prepared under 30 C.F.R. § 75.1200; that the Mine Act is a strict
liability statute; that the Secretary has wide discretion to proceed against an owner-operator, its
contractor, or both; and that Musser was in a position to prevent the errors on the section 75.1200
map submitted to MSHA. Id.
Musser argues that it never certified or submitted a map to MSHA under section 75.1200.
M. Br. at 16. Musser further contends that its certification of the maps submitted to the
Pennsylvania DEP was guided solely by state requirements under which it appropriately certified
the maps and boundaries. Id. at 16-17. At its essence, Musser's primary argument is that its state
environmental permit work was too attenuated to the map preparation and submission required
under section 75.1200 for Musser to be held responsible. In response, the Secretary argues that
section 75.1200 has no words that would limit its application to an operator involved with
preparing or certifying maps for MSHA, and thus Musser committed a violation because it
prepared the state permit map upon which the section 75.1200 map was based. S. Br. at 23.

21

Commissioner Duffy joins Commissioner Cohen in Part II.B.2. of this opinion.
32 FMSHRC Page 1275

Previously, Chairman Jordan and Commissioner Cohen found that Musser's services as an
independent contractor at the mine justified the judge's conclusion that Musser was an "operator"
of the mine pursuant to section 3(d) of the Mine Act, 30 U.S.C. § 802(d). However, the fact that
Musser was an "operator," together with the fact that Musser prepared the Pennsylvania
environmental map, is not sufficient to justify the conclusion that Musser is liable for a violation
of section 75.1200. As we noted in Joy Technologies, Inc., 17 FMSHRC 1303, 1309 (Aug. 1995),
aff'd, 99 F.3d 991 (10th Cir. 1996), an independent contractor will not be held responsible for a
violation where it exercised no control. As recently stated by the D.C. Circuit in Secretary
ofLabor v. National Cement Co. of California, 573 F.3d 788, 795 (D.C. Cir. 2009), "strict
liability means liability without fault. . . . . It does not mean liability for things that occur outside
one's control or supervision."
The citation issued to Musser states that the information it supplied ''was used by PBS to
show the Harrison No. 2 boundary on the map required by 30 C.F.R. § 75.1200 for the Quecreek
No. 1 Mine." Stip. 96. Section 104(a) of the Mine Act limits citations to an operator that has
"violated" the Act or any mandatory standard. 30 U.S.C. § 814(a). The liability of Musser in this
case is a very close question. The issue is whether an engineering firm which produced a map
under a state environmental permit statute is liable for a violation under the Mine Act when
information on the state map was carried over to the section 75.1200 mine map, and was
erroneous. If Musser had itself participated in the actual preparation of the section 75.1200 mine
map, we would have no problem in upholding the violation. But the issue presented by Musser's
involvement in the inundation at the Quecreek No. 1 Mine is a matter of first impression.
We conclude that the company's preparation of the Pennsylvania environmental permit
map was too attenuated a circumstance to justify imposition of liability for the erroneous mine
map under 30 C.F.R.§ 75.1200, even though the location and boundaries of the Harrison No. 2
Mine were identical on both maps. Musser was not involved with the preparation or submission
of the section 75.1200 mine map to MSHA. It had no direct control over the submission of the
map to MSHA. 22
As noted supra at 17, the Pennsylvania environmental statute under which the permit
application was submitted differs from 30 C.F.R. § 75.1200, in that it only requires "[t]he location
and extent of known workings of active, inactive or abandoned, underground or surface mines" to
be shown on permit application maps. 25 Pa. Code§ 89.154(a)(4) (emphasis added). Thus, it
would appear that Musser may have been in compliance with the Pennsylvania statute under
which it prepared the permit map, since the mine workings in the Harrison No. 2 Mine which
were erroneously placed on the permit map were not "known" from any map which Musser was
able to locate. It would be anomalous to hold that Musser violated a statute under which it did not

22

As a verb, "control" has been defined as "[t]o exercise authority or dominating
influence over; direct; regulate." The American Heritage Dictionary ofthe English Language,
New College Edition 290 (1976).

32 FMSHRC Page 1276

prepare the map when it arguably complied with the statute which was applicable to the map it did
prepare.
Moreover, although Musser engineer Secor was the person who certified the Pennsylvania
environmental permit map, PBS was fully involved in the process of producing it. PBS vicepresident Joseph Gallo testified that he "approved" the boundary lines for the Harrison No. 2
Mine that appeared on the state permit map. Tr. 247. Clearly, PBS knew what Musser knew with
regard to the boundaries of the Harrison No. 2 Mine at the time of submission of the state permit
map. Tr. 144-46. Both Gallo and PBS chief mining engineer John Yonkoske testified that PBS
then continued to search for maps of adjacent mines after Musser submitted the state
environmental permit application. Tr. 189-92, 227, 235-36, 321-22. Thus, in preparing the
section 7 5 .1200 mine map, PBS concluded independently from Musser that the location and
boundaries of the Harrison No. 2 Mine were correctly placed.
The judge rested his conclusion that Musser was liable on the finding:
Musser was in a position to prevent the errors on the section
75.1200 map because Musser created, certified, and sealed the
permit map, on which the section 75.1200 map was based. Musser
knew that even though its map would not specifically be submitted
to MSHA for the requirements of section 75.1200, the research and
plotting of the Harrison No. 2 Mine and the hydraulic barrier line
would be used in creating future maps of the Quecreek No. 1 Mine.
By sealing the permit map, Musser verified the map's accuracy.
28 FMSHRC at 716. Essentially, this is a conclusion based on the concept of foreseeability. The
argument is that because it was foreseeable that the location and boundaries of the Harrison No. 2
Mine placed on the permit map would then be placed on the section 75.1200 mine map (a
conclusion wi¢. which we do not disagree), Musser committed a violation under the Mine Act
because of the inaccuracy of the mine map.
The concept of foreseeability of injury as a basis for finding negligence has long been an
integral part of Anglo-American tort law. See W. Page Keeton et al., Prosser and Keeton on
Torts, § 43, at 280 (5th ed. 1984) ("Prosser"). However, tort law is inherently different from the
law of governmental regulation. Tort law
is directed toward the compensation of individuals, rather than the
public, for losses which they have suffered within the scope of their
legally recognized interests generally ....
The law of torts, then, is concerned with the allocation of
losses arising out of human activities .... The purpose of the law
of torts is to adjust these losses, and to afford compensation for

32 FMSHRC Page 1277

injuries sustained by one person as the result of the conduct of
another.

Id., § 1, at 5-6. In contrast, the concepts underlying governmental regulation such as the Mine Act
do not include allocation of losses or compensation to a person injured by the actions of another.23
Penalties under the Mine Act are payable to the public via payment to the federal government.
Whether or not a penalty is imposed under the Mine Act (although not the amount of the penalty)
is determined by whether the operator committed a violation of the Act, which is a matter of strict
liability. Section l lO(a) is specific in this regard: "The operator of a coal or other mine in which
a violation occurs ... shall be assessed a civil penalty ...." 30 U.S.C. § 820(a). The issue of
negligence is not part of the analysis of whether or not a violation of the Act occurred under
section l lO(a).24 The rationale for strict liability under the Mine Act is that ••it is a common
regulatory practice to impose a kind of strict liability on the employer as an incentive for him to
take all practicable measures to ensure the workers' safety." Allied Products Co. v. FMSHRC,
666 F.2d 890, 893 (5th Cir. 1982).
Consequently, the foreseeability of the potential injury caused by an operator's conduct is
rarely, if ever, a factor in determining whether a strict liability penalty is assessed under section
l lO(a). Rather, the issue in Mine Act litigation is usually whether an operator or its contractor is
subject to a statutory or regulatory provision, and if so, whether there was compliance with the
applicable legal mandate. Indeed, the Commission has emphatically rejected a proposed
••unforeseeable employee misconduct exception" to the principle of liability without fault,
declaring that "[s]uch an exception ... would vitiate the underlying principle." Western
Fuels-Utah Inc., 10 FMSHRC 256, 261(Mar.1988). If unforeseeable conduct may not be used as
a defense to liability under the Mine Act, then conversely, the foreseeability of injury caused by an
actor's conduct should not generally be relevant to establish liability.
We have found very few precedents from other areas of federal administrative law.
However, it is instructive to compare two cases, both of which involve the liability of an
engineering firm under the Clean Water Act, 33 U.S.C. § 1251 et seq. Section 404 of the Clean
Water Act, 33 U.S.C. § 1344, provides that a person or other entity must obtain a permit from the

23

Thus, our conclusion that Musser is not liable for a violation of the Mine Act does not
resolve the question of whether Musser may be liable under tort law to miners and their families
injured in the Quecreek Mine inundation.
24

Of course, issues relating to negligence under tort law do come into play in considering
monetary penalties under section 11 O(i) of the Mine Act., 30 U.S.C. § 820(i). As discussed infra,
Chairman Jordan and Commissioner Cohen hold that the concepts applicable to the law of
negligence generally are applicable to consideration of an operator's negligence under section
l lO(i). We also look to the law of negligence in determining whether a violation is attributable
to an operator's unwarrantable failure, which is defined as "aggravated conduct constituting more
than ordinary negligence." Emery Mining Corp., 9 FMSHRC 1997, 2001(Dec.1987).
32 FMSHRC Page 1278

Anny Corps of Engineers for the discharge of dredged or fill material into navigable waters of the
United States, except in certain specified situations. Civil liability under the statute is predicated
on either (1) performance, or (2) responsibility for or control over the performance of the work.
See United States v. Bd. of Trustees ofFlorida Keys Community College, 531 F. Supp. 267, 274
(S.D. Fla. 1981). Thus, an engineering firm can face liability under the Clean Water Act if it has
responsibility for, or control over, the performance of work which violates the Clean Water Act,
even if it performs none of the work itself. Accordingly, an engineering firm's liability under the
Clean Water Act predicated on "control" is similar to the concepts of control and liability under
the Mine Act, as discussed previously in reference to Joy Technologies and National Cement.
In United States v. Weisman, 489 F. Supp. 1331 (M.D. Fla. 1980), an engineering firm was
held liable for the violation of33 U.S.C. § 1344 when it designed a new roadway, submitted
permit applications to the Corps of Engineers, and wrote the Corps again in response to denial of
the permit. The engineering firm became liable under the Clean Water Act when the owner of the
property constructed the roadway despite not having a permit. In contrast, in United States
v. Sargent County Water Resource District, 876 F. Supp. 1081 (D. N.D. 1992), an engineering
firm was found not liable under 33 U.S.C. § 1344 in connection with a project to clean silt out of
a ditch through wetlands. The engineering company provided drawings to Sargent County
showing the pre-existing depth of the ditch, placed depth stakes in some areas of the ditch, and
placed centerline stakes in the ditch, but did not apply for any permits. The Court found the
engineering firm not liable under the Clean Water Act because the firm's work was too attenuated
from potential violations arising from the construction work performed on the ditch. Id. at 108889. In the present case, Musser's actions are more akin to those of the engineering firm in Sargent
County than to the engineering firm in Weisman, particularly in that Musser did not prepare the
section 75.1200 mine map.

In sum, we conclude that Musser' s role in preparing a "base" map that PBS used in
preparing the section 75.1200 mine map was insufficient to bring it within the parameters of the
specific standa,rd involved in this case. Thus, we conclude that Musser did not violate section
75.1200.
C.

S&S25

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 'I Gypsum Co.,

25

Chairman Jordan and Commissioner Duffy join Commissioner Cohen in Part Il.C. of
this opinion.
32 FMSHRC Page 1279

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. Secretary ofLabor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).
The judge addressed the S&S designation of the citations in his second decision.
30 FMSHRC at 1094-95. He found that, with regard to the first two elements of Mathies, the
standard had been violated when an inaccurate mine map was produced, and that the violations
directly contributed to the very dangerous inundation at Quecreek when the breakthrough
occurred. Id. at 1095. With regard to the third and fourth Mathies criteria, the judge found that,
as a consequence of the inaccurate mine map, 18 miners were placed in peril of their lives and
nine miners were trapped for three days and four nights before being dramatically rescued. Id.
We conclude that substantial evidence fully supports the judge's S&S determination; indeed, most
of the evidence concerning the Mathies elements is undisputed.
PBS alleges that the judge did not address the thlrd Mathies criterion. PBS also contends
that to demonstrate that the event was "reasonably likely," the Secretary was required to produce
evidence of other mines that relied on abandoned mine maps that were not final and the number of
times this resulted in a breakthrough and injuries, and that the Secretary failed to produce such
evidence. PBS. Br. at 32. In making these arguments, PBS fails to distinguish between the words
''violation" and "hazard" in the Mathies test.
The second element in Mathies requires consideration of whether a discrete safety hazard
- that is, a measure of danger to. safety- is contributed to by the violation. There is no
requirement of"reasonable likelihood." The third element is whether there is a reasonable
likelihood that the hazard contributed to will result in an injury.
As applied to this case, the "violation" is the failure to have an accurate map. The
"hazard" is the danger of breakthrough to an adjacent mine and resulting inundation. PBS
concedes that the judge properly found that the hazard - the danger of breakthrough - was
contributed to by the mapping failure. But in turning to the third element, PBS conflates
"violation" with "hazard." PBS argues that there must be a reasonable likelihood that the

32 FMSHRC Page 1280

violation will cause injury. However, that is not the test. The test under the third element is
whether there is a reasonable likelihood that the hazard contributed to by the violation, i.e., the
danger of breakthrough and resulting inundation, will cause injury. The Secretary need not prove
a reasonable likelihood that the violation itself will cause injury, as PBS argues.
The Secretary presented evidence regarding the likelihood of injury as a result of the
hazard through the testimony of her expert witness, Stanley Michalek. He testified that miners
who broke through into a flooded adjacent mine would face numerous dangers of injury:
drowning, blocked escapeways, disrupted ventilation, entrapment, hypothermia, air with low
oxygen or high noxious gas levels, and roof falls. Tr. 389-91. The testimony constitutes
substantial evidence supporting the judge's conclusion that the Secretary proved the third Mathies
element.
In addition to confusing the concept of a ''violation" versus a "hazard" in the Mathies test,
PBS's challenge to the judge's finding ofS&S contains another significant flaw. In asserting that
the Secretary was required to produce "an analysis ... of situations where mining was conducted
without a final map ... and the number of times that resulted in a breakthrough and the number of
times that resulted in injuries," PBS Br. at 32, PBS misstates the Secretary's evidentiary burden.
Indeed, in arguing that testimony regarding the likelihood of fatal injuries was "a theoretical
possibility, not actual reality, which is insufficient for an S&S finding," PBS ignores our previous
caselaw in this area. We have held that the absence of an injury-producing event when a cited
practice has occurred does not preclude a determination of S&S. See Elk Run Coal Co.,
27 FMSHRC 899, 906 (Dec. 2005) (judge erred in concluding that Secretary failed to carry her
evidence burden by not presenting evidence of roof falls or stress on the roof in defending her
S&S designation of a roof control plan violation); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC
853, 857 (June 1996) (operator's assertions that it had no history of accidents and that equipment
had been driven for many months in cited condition is not dispositive of S&S determination).
Hence,, the judge's treatment of the S&S designation was legally correct and supported by
substantial evidence.
D.

Negligence26

In setting the penalty, the judge concluded that PBS acted in "a grossly negligent manner."
30 FMSHRC at 1094. His finding was based on PBS's use of a map of the Harrison Mine that
was neither dated, final, nor certified, despite the obvious risk of catastrophe presented by the
flooded Harrison No. 2 Mine up dip :from the Quecreek No. 1 Mine. Id. at 1093-94.27 The

26

Chairman Jordan joins Commissioner Cohen in Part Il.D. of this opinion.

27

The judge also relied on the absence of a disclaimer on the map. 30 FMSHRC at
1094. We conclude that the judge's finding of gross negligence can be upheld on the evidence
relating to the use of the non-final, undated, uncertified property map.
32 FMSHRC Page 1281

Commission must decide whether substantial evidence in the record supports this determination.
Rochester & Pittsburgh Coal Co., 11 FMSHRC at 2163.
The issue of PBS's negligence turns on the question of whether, in fulfilling its legal duty
to maintain an accurate mine map, it was reasonable for PBS to reproduce the second Consol map
on the section 75.1200 map as an accurate depiction of the extent of mining in the Harrison No. 2
Mine. We agree that PBS conducted a diligent search for a final map of the abandoned Harrison
No. 2 Mine, and that it used the best map available to it. 28 FMSHRC at 709; Stip. 55. However,
the fact that the second-Consol map was the best map it could locate does not mean it was
reasonable for PBS to conclude that this map was a reliable indicator of the boundaries of the
Harrison No. 2 Mine.
PBS assumed that the second Consol map of the Harrison No. 2 Mine was accurate. As
stated by Gallo, who was then the PBS vice-president for engineering, the second Consol map
contained the most extensive mine workings, and PBS "equate[d] extensive with correct and
accurate." Tr. 186, 237. Similarly, Yonkoske, the PBS chief mining engineer, testified: "If
you've done everything possible to locate what you have, you plot that on your map, and that goes
as your mine line .... " Tr. 366. Thus, PBS equated "best map available" with "accurate map."
The false assumption that the second Consol map was accurate lay at the heart of PBS's
negligence. This map was not only undated, but uncertified and not marked as final. It was, as
MSHA expert witness Stanley Michalek testified, "simply a line drawing of some workings on a
property map." Tr. 417, referring to Gov't Ex. 4. By assuming that the second Consol map was
accurate, PBS assumed that no further mining had occurred at the Harrison Mine which could
impact the Quecreek Mine. PBS concluded that no further mining had occurred beyond the area
shown despite the fact that it did not know the date of the second Consol map.
Although PBS did not know the date of the map upon which it was relying, it did have
information ill its possession which indicated the direction in which the mining had been
advancing prior to the preparation of the second Consol map. Michalek testified that if PBS had
compared the second Consol map with the Greentree map previously located, it would have
detected that the mining was progressing in a certain direction. By extrapolating from the most
recently known mining, PBS would have seen that additional mining occurring after the time that
the second Consol map was prepared likely would have been in the direction of the Quecreek
Mine it was planning. Tr. 417-429. Thus, "if mining had continued in the direction ... shown, it
would have been pretty clear that ... the possible additional workings, if they were present, would
have intersected the Quecreek Mine." Tr. 428. 28 Witness Richard T. Stoltz, the MSHA Acting

28

Government Exhibit 4 is a reproduction of a portion of the second Consol map
prepared by MSHA, showing the outline of the Harrison No. 2 Mine. On this map, Michalek
circled the area of the Harrison No. 2 Mine representing the mined-out area which was not shown
as being mined-out on the Greentree map, Gov't Ex. 9. Tr. 417-418, 421-23. Michalek indicated
the direction of this mining on the map with an arrow. Tr. 426-27. Later at trial, Gallo placed an
32 FMSHRC Page 1282

Ventilation Division Chief, confirmed that comparison of the two maps showed the additional
mining on the second Consol map compared with the Greentree map. Tr. 830, 844-46, 862-66.
Because the second Consol map was undated, Michalek testified that PBS's engineers had
a duty to assume that additional mining may have occurred, and that it would have been in the
direction of the planned Quecreek Mine. Tr. 428-29. As Michalek stated, prudent engineers
"could have conducted additional exploration to try to delineate the workings of the [Harrison]
Mine by vertical holes." Tr. 429. They could have also set their "drill-in-advance barrier" further
back based on an extrapolation from previous mining at the Harrison Mine. Id. They could also
have "done long-hole drilling in advance of where their Mains were advancing." Id. 29
However, there is no evidence that PBS performed the extrapolation of the direction of
possible additional mining based on maps in its possession as Michalek outlined. Tr. 483-85.
Nor, as Judge Lesnick noted, did PBS take any additional precautions. 30 FMSHRC at 1093.30
PBS simply assumed that the second Consol map represented the final extent of the Harrison
Mine workings.

"X" on the map indicating where the Quecreek breakthrough occurred. Tr. 710-11. The arrow
points directly toward the location of the breakthrough.
29

Regarding Michalek's testimony, Commissioner Duffy states, "[n]evertheless, when
asked what he would have done under the circumstances, he replied that he would have done the
same thing that Musser and PBS did. Tr. 490." Slip op. at 42. Michalek's testimony that he
''would have done what Musser and PBS did" refers to the overall approach followed by Musser
and PBS ("Go out to the likely sources for that information, find out what they have, bring it
back, study it, use some engineering judgment, and decide what to do with it from that point."
Tr. 490). Michalek clearly stated that he disagreed with the engineering judgment used by PBS
and Musser upon finding, at best, an undated, uncertified, non-final line drawing of some
workings of the Harrison No. 2 Mine on a property map. Tr. 412-13, 429-30.
30

PBS argues that more pre-mining drilling would have been akin to "finding a needle in
a 3,000-acre haystack" (quoting its expert witness Sean Charles Isgan, Tr. 794) because it would
have had to encompass the entire perimeter of the mine - a distance of several miles - with drill
holes every 10 feet. PBS Reply Br. at 9-10. This argument ignores the fact that if its engineers
had performed the extrapolation described by Michalek from the maps already in their
possession, they would have narrowed their "haystack" to the relatively small area in which the
direction of mining at the Harrison No. 2 Mine was proceeding. A limited number of boreholes
across the potential additional entries in the Harrison Mine would have disclosed whether
additional mining had occurred after the preparation of the second Consol map. See Government
Exhibits 4 and 9, as marked by Michalek and described by him. Tr. 416-28. The entire
perimeter of the mine would not have required the drilling of additional boreholes, because PBS
would have only had to check abandoned mines that were updip of the proposed Quecreek Mine.
32 FMSHRC Page 1283

In making his negligence determination, the judge relied in part on the testimony of David
Lucas, the Musser engineer3 1 who did the actual mapping of the Harrison Mine in consultation
with PBS engineers. 30 FMSHRC at 1093. Lucas testified that although the Consol map was the
best map PBS and Musser had, he did not consider it an accurate rendition of the Harrison No. 2
Mine, and was unsatisfied with it. Tr. 57-58. In fact, when asked ifhe had any reservations about
placing that boundary on the permit map, Lucas replied "always." Tr. 56-57.32

The judge also justifiably relied on the fact that before receiving from Consol the map they
relied on, PBS and Mu8ser had received a different map from Consol in response to their request
for a map of the Harrison No. 2 Mine. Quoting the testimony of Michalek, the judge concluded:
"Having received two contradictory maps from Consol ought to have put the Respondents on
notice that all was not right, that 'these guys [Consol] didn't have their system down like they
used to.' Tr. 458." 30 FMSHRC at 1093 (alteration in original). The judge noted that Musser's
expert witness, Hiram C. Riblett, "agreed that getting an unreliable map would raise doubts about
other maps received from the same source. Tr. 651-52." /d. 33

31

The testimony of Musser officials is relevant to the analysis of PBS's negligence
because the two entities both searched for maps and both agreed to use the second Consol map.
See Tr. 43-44, 58-60, 106-07, 192-93. Lucas acknowledged that "[PBS] knew what [Musser]
knew." Tr. 62.
32

PBS challenges the judge's reliance on this testimony by citing the testimony of
Musser mining engineer Secor that after receiving the second Consol map, Lucas talked again
with Carlton Barron. Barron had worked at the Harrison No. 2 Mine, and later came to own the
assets of Saxman Coal and Coke after mining ceased (Tr. 19, 38, 43). As PBS notes, Secor
testified that he understood that Barron had told Lucas that the mining had not progressed beyond
the point shown on the Consol map. PBS Br. at 29. However, as acknowledged by PBS counsel
at oral argument before the Commission (Oral Arg. Tr. 26), this testimony was disputed by
Lucas, the person who actually talked with Barron. Lucas himself testified that he had gone back
to Barron and shown him the Consol map, and Barron said that he did not know about it.
Tr. 58. As Lucas testified, this contact with Barron after the receipt of the second Consol map
engendered concern rather than confirmation of the accuracy of the Consol map. Tr. 58.
33

PBS contends that the judge erred in finding significance in the fact that the first map
obtained from Consol was found by Musser and PBS to inaccurately depict the boundaries of the
Harrison No. 2 Mine. PBS Br. at 28. PBS argues that multiple searches of possible map sources
were made, and "the ALJ fundamentally misunderstands the search process: it is an ongoing
process that may involve multiple visits or contacts with each source." Id. It would logically
follow from this argument that a search for maps is never complete because the source visited
may always have more maps than those located. And if, as PBS argues, it is important that
''when Mr. Secor at Musser initiated a second visit to Consol, he asked for the latest most up-todate map," id.," this would imply that Musser did not clearly indicate to Consol in its first request
that it was seeking the "latest most up-to-date map." At most PBS's argument raises the
32 FMSHRC Page 1284

However, PBS asserts that it was reasonable to rely on the second Consol map because it
had asked Consol !or its best map, because Consol is a large and reputable mine operator with an
extensive collection of maps, because PBS had good experiences with Consol maps,34 and
because Consol, as the lessor of the coal and collector of royalties from the mining, would have a
self-interest in having an accurate map of the Harrison No. 2 Mine workings. PBS Br. at 27-28;
Tr. 217-219. We agree that Consol, as lessor of the coal, certainly had a strong self-interest in
having, and indeed did have, accurate maps of the Harrison mine workings. But this strong selfinterest became greatly reduced after Consol was no longer receiving royalties, which occurred
after the mine ceased operations in 1963. As witness Stoltz agreed, the fact that Consol had an
interest in keeping its maps accurate while it was receiving royalties does not mean that Consol
has a continuing interest in filing them well, storing them well, or organizing them well. Tr. 857.
The question is not whether Consol had an accurate map in the 1960's, but whether it still
had such a map, catalogued for availability to Musser and PBS or some other entity, in the mid1990' s, 30 years later. As it turned out, Consol did have an accurate map of the Harrison No. 2
Mine workings, but, as mentioned supra, this map (together with other mine-related documents
including correspondence) had been sent to one of its attorneys, who, many years earlier, had been
handling a request from the Environmental Protection Agency about mines that may have caused
discharges into the Casselman River. Stips. 99-107. The attorney had requested maps from the
Consol repository about such mines, which included the Harrison No. 2 Mine. Thus, the accurate
map was in one of six boxes in a storage room of the Consol Legal Department. Id.
This was exactly the type of problem that should have been anticipated in relying on
Consol not only to have a map, but to keep it catalogued for availability for 30 years. AB Judge
Lesnick noted, PBS should have been aware that the Consol map cataloguing system was not
reliable in terms of a 30-year-old map when it received, in response to its first request for the map
of the Harrison No. 2 Mine workings, a map which proved to be incomplete, and Musser had to
go back to Consol a second time. 30 FMSHRC at 1093. Clearly, as Michalek testified, the
receipt of an il').complete map in response to the first request should have raised a "red flag"
regarding the reliability of Consol's cataloguing system. Tr. 458.

possibility that there is more than one inference which the judge could have drawn from the fact
that the first map obtained from Consol proved to be inaccurate. However, the judge has
discretion to draw inferences from the facts as long as such inferences are reasonable.
Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984). Judge Lesnick's inference here
was certainly reasonable, and consistent with the testimony of two expert witnesses, Michalek
and Riblett, discussed above.
34

Gallo was the PBS official who testified about his good experiences with Consol
maps. Tr. 221-23. Gallo acknowledged that he had no actual knowledge of whether Consol had
a system for keeping tracks of mine maps but "[could] only assume that a company of that size
and reputation, that they would accumulate data." Tr. 219.
32 FMSHRC Page 1285

fu sum, for the reasons stated above, it was not reasonable for PBS to conclude that the
second Consol map, on which it based its section 75.1200 map; was an accurate indicator of the
boundaries of the Harrison No. 2 Mine.
fu considering PBS' s degree of negligence, the judge correctly took into account the
significant risk posed by the abandoned Harrison Mine, as PBS knew that this mine was full of
water and updip :from the proposed Quecreek mine. 30 FMSHRC at 1093. The judge properly
noted that "[t]he amount of care demanded by the standard of reasonable conduct must be in
proportion to the apparent risk. As the danger becomes greater the actor is required to exercise
caution commensurate with it." Id., quoting Prosser§ 34, at 208; see also A. H Smith Stone Co.,
5 FMSHRC 13, 15 (Jan. 1983) (holding that "[a]n operator must address a situation presenting a
potential source of explosion, as here, with a degree of care commensurate with that danger").
The judge noted testimony indicating that PBS had placed its production agenda ahead of
concerns for safety. 30 FMSHRC at 1093. In this regard, Lucas35 testified that he used the
Consol map because he "had no choice" after years of searching for an accurate map of the
Harrison No. 2 Mine. Tr. 58. He agreed that at the time, getting a permit ''was the most
important thing." Id. This is evidence from which the judge could properly find that PBS placed
its desire to open a mine ahead of concerns for the safety of the miners who would be working in
the mine. This evidence, together with the evidence showing the unreasonable basis for assuming
that the second Consol map - an undated, uncertified map which was nothing more than "a line
drawing of some workings on a property map," Tr. 417 - truly represented the extent of mining at
the Harrison No. 2 Mine, especially after the first map provided by Consol had proven to be
inaccurate, and the failure to take any additional precautions, justifies the judge's conclusion that
PBS chose "to play Russian Roulette with the lives of miners." 30 FMSHRC at 1093-94.
PBS offered testimony that it was common in Somerset County, Pennsylvania for
boundaries of abandoned mines to be depicted on the basis of maps that were not final or certified
maps. Tr. 77~ 218. It suggests that the standard of care it exercised conformed to the standard in
existence in the MSHA District 2 area or the Somerset County area. While the standard behavior
in that geographic area is a factor that may considered in determining negligence, it does not mean
that the "reasonable person" standard is limited to that area. See Bell v. Jones, 523 A.2d 982, 98788 (D.C. 1987) (holding that ''the standard of care by which the professional acts of surveyors are
measured is a national standard,. not a local or regional one''); Prosser, § 32, at 187-88.
Furthermore, even if PBS was correct in suggesting that the proper standard of care was a
local one, and that local practice did not require final certified maps, this would not insulate it

35

Although Lucas worked for Musser, the judge found that Musser and PBS, "in
consultation with each other," agreed to use the second Consol map as the basis for the boundary
of the Harrison No. 2 Mine. 30 FMSHRC at 1093.
32 FMSHRC Page 1286

from a negligence finding. As one commenter has explained:
[C]ustoms and usages themselves are many and various; some are
the result of careful thought and decision, while others arise from
the kind of inadvertence, carelessness, indifference, cost-paring and
comer-cutting that normally is associated with negligence....
Even an entire industry, by adopting such careless methods
to save time, effort or money, cannot be permitted to set its own
uncontrolled standard. . . . And if the only test is to be what has
been done before, no industry or group will ever have any great
incentive to make progress in the direction of safety.

Prosser, § 33, at 194-95 (footnotes omitted).
In arguing that substantial evidence does not support the judge's negligence finding, PBS
asserts that the judge did not consider all of the relevant evidence. In addition to the arguments
already discussed, PBS contends that the judge "ignore[d] the fact that mining was over 200 feet
from the start of the [section 75.388(a)(3)] barrier and that Black Wolf was going to cease mining
in that direction well before the barrier." PBS Br. at 27. This claim has no validity. Mining
stopped over 200 feet from the barrier because it intersected the old workings of the Harrison No.
2 Mine, which were 450 feet from where PBS believed them to be. Tr. 293-94; Stip. 97. Thus,
PBS stopped mining 250 feet from the barrier only because of the near-tragedy which gave rise to
this case. Moreover, the assertion that "Black Wolf was going to cease mining in that direction
well before the barrier" is not only unsupported by any reference to the record, but devoid of any
support in the record. Black Wolf President David Rebuck testified that the company "kept the
boundary, permit boundary line further than 200 feet from the position of the abandoned mines."
Tr. 293. However, neither Rebuck nor any other witness testified that Black Wolf was going to
"cease mining.in that direction well before the barrier."
PBS also contends that the judge "failed to discuss the extent and nature of PBS' s search
for maps in his finding of negligence." PBS Br. at 30. However, the judge clearly was aware of
the extensive search for maps by PBS and Musser. The judge distinguished between the search
for maps, and how PBS used the maps it found. In its use of the maps, the judge "flou]nd the
record in this matter replete with instances of PBS ... failing to act conservatively and to err on
the side of safety." 30 FMSHRC at 1093. The fact that the judge drew different conclusions from
those articulated by PBS in his review of the entire record does not mean that he failed to consider
the evidence.
PBS also argues that "[t]here is always some uncertainty about the location of inaccessible
workings of all abandoned mines," and this uncertainty is accounted for by the requirement of "a
200 foot barrier rather than a 50 foot one" in section 75.388. PBS Br. at 30-31. This argument
does not undermine the judge's negligence finding. The 200-foot-barrier requirement would have

32 FMSHRC Page 1287

applied, rather than a 50-foot barrier, unless the adjacent Harrison mine workings could have been
preshifted. 30 C.F.R. § 75.388(a)(3). In other words, this margin of safety is required even when
there is not the uncertainty that was present here. Moreover, the argument ignores the reality that
compliance with section 75.388 does not ensure that an operator which has an unreliable mine
map will avoid a catastrophic breakthrough into adjacent abandoned workings. That reality is
demonstrated by this case.
Hence, the record leads us to conclude that substantial evidence supports the judge's
determination that PBS acted in a grossly negligent manner.
E.

Civil Penalties36

At the time of trial, the Secretary had proposed penalties of $5,000 against PBS and
Musser. In her main brief before the judge, the Secretary specifically referred to the proposed
$5,000 penalty, which she considered a ''minimum penalty," and the stipulations and trial
exhibits, noted infra, in support of the proposed penalty. S. Tr. Br. at 31-32. It was not until the
Secretary filed her post-trial reply brief that she requested the judge "to assess a penalty of
$55,000 for each of these mine operators," S. Tr. Reply Br. at 22, which he did. 37
On review, PBS argues that the judge failed to explain why his $55,000 penalty
determination substantially diverged from the amount originally proposed by the Secretary.
PBS Br. at 33-34. PBS also contends that the stipulations on which the judge relied applied to the
proposed penalty, not to the maximum penalty he imposed. Id. at 33.
In her brief, the Secretary asserts that the judge sufficiently explained why he assessed
penalties higher than the Secretary initially proposed. She relies on his statements that the
violations "were of the utmost gravity," S. Br. at 41, quoting 30 FMSHRC at 1092. She also
relies on his finding that PBS acted in "a grossly negligent manner." S. Br. at 41, citing 30
FMSHRC at'1094. However, the Secretary acknowledges that the judge's penalty criteria analysis
was inadequate with regard to whether the $55,000 penalty was appropriate to the size of the
operator's businesses and whether the proposed penalties would affect the operator's ability to
continue in business. S. Br. at 41-42. She notes that the stipulations agreed to by PBS on these
penalty criteria were entered into assuming that the penalties would be $5,000. Id. at 41-42.
It is well-established that the Commission's judges are accorded broad discretion in
assessing civil penalties under the Mine Act. Cantera Green, 22 FMSHRC 616, 620 (May 2000).
In determining the amount of the penalty, neither the judge nor the Commission is restricted by a
penalty recommended by the Secretary. Sellersburg Stone Co., 5 FMSHRC 287, 291(Mar.1983),

36

Chairman Jordan joins Commissioner Cohen in Part ILE. of this opinion.

37

Because Commissioners Cohen and Duffy find that Musser was not liable for the
violation, the Commission vacates the $55,000 penalty the judge imposed against Musser.
32 FMSHRC Page 1288

ajf'd, 736 F.2d 1147 (7th Cir. 1984). However, such discretion is not unbounded and must reflect
proper consideration of the penalty criteria set forth in section 11 O(i) and the deterrent purposes of
the Act. Cantera Green, 22 FMSHRC at 620.
The Commission in Sellersburg, 5 FMSHRC at 293, explained that "[w]hen ... it is
determined that penalties are appropriate which substantially diverge from those originally
proposed, it behooves the Commission and its judges to provide a sufficient explanation of the
bases underlying the penalties assessed by the Commission." See also Dolese Bros. Co.,
16 FMSHRC 689, 695 (Apr. 1994) ("adequate findings are critical when a judge assesses a
penalty that significantly departs from that proposed by the Secretary''). In Cantera Green, the
Commission clarified that "[w ]hile the findings and explanations relating to a penalty assessment
do not have to be exhaustive, they must at least provide the Commission with a basis for
determining whether the judge complied with the requirement to consider and make findings
concerning the section 11 O(i) penalty criteria. " 38 22 FMSHRC at 621.
We reject PBS' s contention that the judge failed to adequately explain the significant
departure from the Secretary's initial proposed penalty. The judge relied primarily on the gravity
of the violation and PBS's gross negligence to increase the proposed penalties from $5,000, which
was proposed by the Secretary, to $55,000, the maximum penalty allowed under the Secretary's
regulations at the time of the violations. 30 FMSHRC at 1088, 1091-92, 1095. The Commission
held inLopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001), that a judge did not abuse his
discretion by weighing the factors of negligence and gravity more heavily than the other four
statutory criteria. Also, the Commission has recently held that it is appropriate for a judge to raise
a penalty "significantly" based on his findings of extreme gravity and unwarrantable failure.
Spartan Mining, 30 FMSHRC at 725. Similarly, the judge was justified in emphasizing the
factors of gravity and negligence in this case.
However, we agree that a remand for further consideration of two penalty criteria is
necessary. In the judge's initial discussion of the penalty criteria, he relied on a set of stipulations
that were admitted at trial, Gov't Trial Stip. No. 1, and two exhibits that showed Musser's and

38

Section 11 O(i) sets forth six criteria to be considered in the assessment of penalties
under the Act:
[1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30

u.s.c. § 820(i).
32 FMSHRC Page 1289

PBS's history of violations and production, Gov't Ex. 1 and 2. The stipulations stated that the
proposed penalties "will not affect the ability ... to remain in business;" that each of the
violations was abated in good faith; that the government exhibits referred to above accurately set
forth the operators' production and history ofviolations;39 and that those exhibits could be used in
determining the penalty assessments. Gov't Trial Stip. No. 1, at 1. In finding that the $55,000
penalty was appropriate considering the size of PBS' s business and its ability to stay in business,
the judge erroneously based his conclusion on the stipulations, which were entered into on the
basis that the penalty would be $5,000. It is apparent that, given the judge's substantial increase
in penalties for PBS, he did not give PBS an adequate opportunity to address the two criteria once
the proposed penalty was increased.
Accordingly, we vacate the judge's penalty determination with regard to PBS. We remand
the case to the judge for the purpose of making findings concerning these two statutory criteria
based on the assumption that the penalty is $55,000, and for the purpose of assessing a penalty
based on the statutory criteria of section 11 O(i) of the Act.

Robert F. Cohen, Jr., Commissioner

39

PBS incorrectly asserts that the judge failed to discuss and properly consider the
absence of any previous violation history. PBS Br. at 33. The judge explicitly referenced the
parties' stipulation that PBS had "no significant history of previous violations." 30 FMSHRC at
1091, which we deem sufficient. See Spartan Mining, 30 FMSHRC at 724; see also Lopke
Qua"ies, 23 FMSHRC at 713.
32 FMSHRC Page 1290

Chairman Jordan, concurring in part and dissenting in part:
I join Commissioners Duffy and Cohen in affirming the judge's determination that PBS
Coals, Inc. ("PBS") violated 30 C.F.R. § 75.1200, and that the violation was significant and
substantial. I also join Commissioner Cohen's opinion affirming the judge's finding that PBS
acted in a "grossly negligent manner," and in the section of his opinion vacating the judge's
penalty determination with regard to PBS and remanding it to the judge.
Regarding the liability of Musser, I join Commissioner Cohen's opinion holding that in
this case Musser was properly cited as an operator based on its status as an independent contractor
at the mine. 1 However, I dissent from my colleagues' conclusion that substantial evidence does
not support the judge's determination that Musser can be held liable for the violation of section
75.1200. I would find Musser liable and uphold the judge's negligence finding.
Commissioner Cohen and I have determined that Musser can reasonably be considered an
operator by virtue of the services it performed as an independent contractor, in connection with
the issuance of the permit allowing mining at the Quecreek mine. Moreover, all three
Commissioners hearing the appeal of this case agree with the judge's determination that the mine
map retained at the Quecreek mine did not accurately depict "[a]djacent mine workings within
1,000 feet," as required by section 75.1200. Section l lO(a) of the Mine Act states: "The operator
of a coal or other mine in which a violation occurs ... shall be assessed a civil penalty .... "
30 U.S.C. § 820(a)(l). This provision has been construed as imposing strict liability, regardless of
fault, against the operator of a mine in which a violation occurs. A literal application of the
statute, therefore, would appear to support the imposition of a penalty against Musser. Musser is
an operator of the Quecreek mine; a violation occurred in that mine; the Act imposes strict
liability against an operator of a mine in which a violation occurs. Accordingly, Musser can be
held liable for the violation of section 75.1200.
Musser's status as an operator, however, is that of"an independent contractor performing
services at the mine." The fact that an independent contractor is considered an operator of a mine
does not necessarily mean that the contractor can exert control over the entire mine, or even over
the activities or area involved in the violation. A contractor is sometimes hired to perform a
particular skilled activity that is limited to a certain area of the mine. A contractor pired solely to
sink a shaft, for instance, would presumably have no control over how another contractor
constructed the preparation plant.. Although the Mine Act imposes strict liability, Commissioner
Cohen is rightly mindful of the D.C. Circuit's observation that "strict liability means liability
without fault. It does not mean liability for things that occur outside one's control or
supervision." Sec'y ofLabor v. Nat'/ Cement Co. of California, 573 F.3d 788, 795 (D.C. Cir.
2009) (citations omitted). Commissioner Duffy also properly notes Commission precedent
invoking limitations in holding an independent contractor liable for matters over which it has no

1

Commissioner Duffy did not reach this issue.

32 FMSHRC Page 1291

control. Slip op. at 40. I agree with my colleagues that it is pertinent to consider the issue of
control in determining Musser's liability for the violation of section 75.1200.
My colleagues have concluded that Musser should not be liable for the violation of section
75.1200 because, in their view, Musser had no direct control over the preparation of the map
required to be maintained at the mine. Slip op. at 20-21, 39-40. It is true that PBS, not Musser,
prepared the map that was required under section 75.1200 to depict the adjacent mine workings
within 1,000 feet. 30 FMSHRC 1087, 1089-90 (Nov. 2008) (ALJ). Musser, however, prepared
the environmental pemiit map for the Quecreek mine and that map had to show, among other
things, an outline of abandoned mines adjacent to the proposed mine being permitted. 28
FMSHRC 699, 715 (July 2006) (ALJ). After plotting the outline of the Harrison No. 2 Mine on
the permit map, Musser drew a line between the outline of the Harrison No. 2 Mine and the
planned workings for the Quecreek No. 1 Mine. Stip. 71. This line represented a 200-foot-wide
hydraulic barrier between the Harrison No. 2 Mine and the Quecreek No. 1 Mine. Stip. 71, Jt. Ex.
11. It indicated the limit of planned mining for the Quecreek No. 1 Mine. Edwin Secor, a Musser
employee, certified the permit map with the presumed outline of the Harrison No. 2 Mine and the
established 200-foot-wide hydraulic barrier. Stip. 66. Mining would be limited by the
requirement that a 200-foot barrier remain between the furthest development in the Quecreek
mine and the furthest extent of the Harrison No. 2 mine.
Musser's map was used as the base map for complying with section 75.1200's
requirement that the operator keep an up to date and accurate mine map showing, among other
things, the "adjacent mine workings within 1,000 feet." The adjacent mine workings placed on
the section 75.1200 map coincided with the boundaries depicted by Musser in the map submitted
as part of the permitting process. Indeed, the judge found that it was "standard practice for an
environmental permit map, such as the one Musser prepared and submitted on behalf of Quecreek,
to be used as the base map from which the mine map required by MSHA would be drawn" and
that "[t]he location of adjacent mines does not change once they are plotted on a permit map, but
are simply transferred over to the mine map required by MSHA." 30 FMSHRC at 1089 (citing
Tr. 33, 196, 336). In this case "PBS prepared all of the maps of the Quecreek No. 1 Mine by
transferring the boundary of the Harrison No. 2 Mine as delineated on the permit map prepared by
Musser." Id. (citing Tr. 198, 203-04).
The PBS engineers involved in drafting the mine map required under section 75.1200
never thought about making any changes to the boundaries of the Harrison No. 2 mine that were
delineated by Musser on the environmental permit map. Tr. 238-39. As one PBS witness
explained, the engineer generally takes the previous map and positions it correctly with reference
to the map being created. Tr. 335-36. Indeed the PBS expert witness testified that when
engineers certify a map created to comply with section 75.1200, they are certifying ''that to the
best of their ability, they ... positioned that abandoned mine map on their mapping as accurately
as possible." Tr. 745.

32 FMSHRC Page 1292

The record provides substantial evidence for the judge's conclusion that ''Musser was in a
position to prevent the errors on the section 75.1200 map because Musser created, certified, and
sealed the permit map on which the section 75.1200 map was based." 28 FMSHRC at 716.
Furthermore, as the judge pointed out:
Musser knew that even though its map would not specifically be
submitted to MSHA for the requirements of section 75.1200, the
research and plotting of the Harrison No. 2 Mine and the hydraulic
barrier lin~ would be used in creating future maps of the Quecreek
No. 1 Mine. By sealing the permit map, Musser verified the map's
accuracy.
Id.
Whether the section 75.1200 map would accurately reflect "the adjacent mine workings
within 1,000 feet" depended on whether the permit map accurately depicted those workings.
Musser prepared and certified the permit map. Admittedly, the section 75.1200 mine map
requires more information than ''the adjacent workings" and Musser was not the entity that
actually prepared the section 75.1200 map. Nevertheless, this record offers substantial evidence
for the conclusion that Musser had sufficient control over the ultimate contents of the section
75.1200 map, at least at it pertained to the adjacent workings. Thus, it is not unreasonable to hold
Musser strictly liable as an operator, for the violation of section 75.1200 that occurred at the
Quecreek mine.
I also conclude that substantial evidence supports the judge's finding that Musser acted in
a grossly negligent manner. 2 Musser's reliance on the second Consol map to determine the
location of the abandoned Harrison Mine for the environmental permit map was unreasonable.
Musser knew that the Consol map was not dated, not marked final, and not certified by a
professional el)gineer or professional surveyor. Stips. 65, 66. Moreover, as mentioned above,
Musser's Vice President at the time, David Lucas, testified that he was not satisfied with the
Consol map and did not consider it an accurate rendition of the Harrison No. 2 Mine. Tr. 57-58.
In fact, Lucas admitted that he always had reservations about placing the Harrison Saxman Mine
boundary on the permit map. Tr. 56-57. This uncertainty was compounded by the fact that the
receipt of the first incomplete Consol map should have put Musser on notice regarding the
reliability of Consol's cataloguing system. Tr. 458. Nonetheless, Musser used the boundary from
the Consol map on its permit map which it knew would form the basis of the mine map required
under section 75.1200. Tr. 32-33; 59-60.

2

I incorporate by reference the opinion of Commissioner Cohen and myself in which we
uphold the judge's finding that PBS acted in a grossly negligent manner, supra at 25-32. It is
appropriate to rely on this analysis, as Musser concurred with the decision of PBS to use the
second Consol map to plot the boundary of the Harrison No. 2 Mine on the permit maps. Stip.
66; Tr. 58-60, 106-07, 192-93.
32 FMSHRC Page 1293

As the judge correctly noted, Musser' s negligence was also heightened due to the major
risk posed by the abandoned Harrison Mine. 30 FMSHRC at 1093-94. Given Musser's reliance
on a map it did not consider accurate, its knowledge that the map it was preparing would be used
to prepare the section 75.1200 map, and its elevated duty of care, I would affirm the judge's
determination that Musser acted in a grossly negligent manner.

32 FMSHRC Page 1294

Commissioner Duffy, concurring in part and dissenting in part:
I concur with Commissioner Cohen in reversing the judge's finding that Musser
Engineering, Inc., was liable for a violation 30.C.F.R. § 75.1200, but I would do so on additional
grounds, discussed below. I also join Commissioner Cohen and Chainnan Jordan in affinning the
judge's finding that PBS Coals, Inc., violated the standard and that the violation was significant
and substantial in nature. I dissent, however, from my colleagues' affirmance of the judges's
detennination that the violation was owing to PBS Coals' gross negligence. Accordingly, I would
also vacate the judge's penalty determination and remand that issue for further analysis, based on
a moderate level of negligence as originally charged by the Secretary and, only then if it becomes
necessary, for the purpose of taking into consideration all the appropriate penalty criteria set forth
in section l lO(i) of the Act, as explained in the opinion of Commissioner Cohen.
My colleagues set forth an extensive summary of the facts in this case which I will not
iterate here, except to the extent that they are pertinent to the conclusions I have reached contrary
to those of the majority.

I.

Musser's Liability.

Under the Pennsylvania Mine Act, which regulates coal mining in that state, mine
operators must secure permits from the Pennsylvania Department of Environmental Protection
("DEP"). 28 FMSHRC at 701. When PBS acquired the land that would ultimately contain the
Quecreek Mine No. 1 Mine, it contracted with Musser Engineering to prepare a pennit application
for submission to DEP. Id. Musser's duties included the preparation of a mine map that would,
among other things, delineate "known workings of ... abandoned, underground or surface mines."
25 Pa. Code. § 89 .154(a)(4) (emphasis added); see P. Reply Br. at 5. That required Musser to
secure maps for the four abandoned underground mines adjacent to the Quecreek pennit area,
including the Harrison No. 2 Mine. 28 FMSHRC at 701-702; Stip.12.
Musser's responsibility to PBS was limited to helping secure the DEP pennit. The
engineering company had no involvement and no control over the PBS's submissions to MSHA
when the mine opened in 2001 -three years after the initial permit application had been submitted
to DEP. Musser did not submit any maps to MSHA, and would not have been in a position to
place a disclaimer or notation on the section 7 5 .1200 map that would have warned about any
uncertainties regarding the Harrison No. 2 Mine boundaries, assuming that such a disclaimer was
required under the circumstances. Musser's role, even in preparing the state permit maps, was
limited in that it only prepared an initial map with proposed boundaries of the Quecreek No. 1
Mine that would not have intersected the Harrison No. 2 Mine at the point where the breakthrough
and inundation occurred. M. Reply Br. at 11 (citing Tr. 34, 153).
The citations issued to both Musser and PBS, respectively, state that the information
supplied by Musser was ''used by PBS to show the Harrison No. 2 boundary on the map required
by 30 CFR 75.1200 for the Quecreek # 1 mine." Citation No. 7322487, at 2 (Aug. 12, 2003), and

32 FMSHRC Page 1295

Citation No. 732488, at 2 (Aug. 12, 2003). However, the Secretary's position in this case- that
Musser violated the standard because it was involved in preparing a map that later served as the
basis for PBS's preparation of the map that Black Wolf maintained pursuant to section 75.1200ignores the language of the standard. Moreover, the Secretary's theory of liability regarding
Musser ignores the record evidence that indicates Musser' s limited role and PBS' s expansive role
in preparing the mine maps submitted to MSHA.
Section 75.1200, by its plain language, applies to "[t]he operator of a coal mine" and
requires that particular operator to maintain an accurate mine map "in a fireproof repository in an
area on the surface of the mine." 30 C.F.R. § 75.1200. Thus, even if the judge were correct that
Musser "knew or had reason to believe" that its state mine map would later be used in preparing
maps that were required by MSHA (30 FMSHRC at 1092), Musser is not ''the operator of a coal
mine" within the intended scope of section 75.1200. 1 See also Comm. on Education and Labor,
H.R. Rep. No. 91-563, at 54 (1969), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Part lLegislative History ofthe Federal Coal Mine Health and Safety Act of1969, at 1084
(1975) (section "requires the operator of an active mine to have in a safe location on the surface
an accurate map of the mine") (emphasis added).
The Commission's decision inMartin County Coal Corp., 28 FMSHRC 247 (May2006),
is instructive in this area. There, the Commission dismissed a citation issued against an
independent contractor for allegedly violating a reporting requirement that was applicable to ''the
person owning, operating, or controlling" a waste impoundment. Id. at 270. The Commission
contrasted the specific reporting requirement with a general safety standard where the
responsibility for complying with the standard can rest with the production operator, an
independent contractor, or both. Id. Similarly, in Joy Technologies Inc., 17 FMSHRC 1303,
1309 (Aug. 1995), the Commission noted the limitations in holding an independent contractor
liable for matters over which it and its employees have no control.
The record in this proceeding fully reflects that PBS and Black Wolfhad ultimate control
over the preparation, submission, and storage of the section 75.1200 mine map. Significantly,
even in the preparatory planning and submission of the state DEP maps, PBS worked closely with
Musser. Indeed, PBS vice-president Joseph Gallo testified that he "approved" the boundary lines
for the Harrison No. 2 Mine that were on the state permit map. Tr. 247. Finally, PBS' s research
did not end with Musser's preparation of the state DEP application; PBS continued its efforts to
search for maps of the Harrison ·No. 2 Mine to establish its boundaries in anticipation of
submitting the map to MSHA for purposes of complying with section 75.1200. Tr. 321-22;
Stip. 60.
In contrast, Musser had no involvement and no control over the section 75.1200 map and
did not certify any maps for submission to MSHA. Musser did fully comply with Pennsylvania

1

By its terms, section I 04(a) of the Mine Act limits citations to an operator that has
violated the Act or any mandatory standard. 30 U.S.C. § 814(a).
32 FMSHRC Page 1296

law in submitting to the DEP the map that it did prepare, that is, a "general mine map" that
showed "[t]he location and extent of known workings of active, inactive or abandoned,
underground or surface mines." 25 Pa. Code.§ 89.154(a)(4) (emphasis added).
Thus, Musser's limited role in preparing a "base" map that PBS used in preparing the
section 75.1200 mine map is insufficient to bring it within the parameters of the specific standard
involved in this case. Accordingly, I join Commissioner Cohen in reversing the judge's holding
that Musser violated the standard. 2
II.

The Degree of Negligence Attributable to PBS.

As noted above, I find that the judge correctly found that PBS violated the standard and
that the violation was significant and substantial in nature. As for the level of negligence
chargeable to PBS, I conclude that substantial evidence does not support the judge's conclusion
that the operator demonstrated "gross negligence" in its efforts to provide an accurate map of the
Harrison No. 2 Mine.
Because the Mine Act is a strict liability statute, an operator will be held liable if a
violation of a mandatory safety standard occurs regardless of the level of fault. Asarco, Inc.,
8 FMSHRC 1632, 1634-36 (Nov. 1986), aff'd, 868 F.2d 1195 (10th Cir. 1989). InAsarco, the
Commission concluded that "the operator's fault or lack thereof, rather than being a determinant
ofliability, is a factor to be considered in assessing a civil penalty." Id. at 1636.
Thus, the Mine Act's principle of strict liability dictates that if an operator maintains a
mine map that is not accurate with regard to the features listed in section 75.1200, including
adjacent mine workings within 1000 feet, that operator is in violation of the standard. Once that is
established, it remains to determine the appropriate level of negligence attributable to the
violation.

2

I am also persuaded by Musser's argument that it was not liable because at the time it
performed the work for PBS, there was no "mine" in existence that would bring Musser' s
activities under Mine Act jurisdiction. M. Br. at 8. In my view, the facts of this case fall
squarely within the parameters set forth by the D.C. Circuit Court of Appeals in Paul
v. FMSHRC, 812 F.2d 717 (D.C. Cir. 1987). Although the Secretary argues that Musser's
activities involved "property ... to be used" in the work of mineral extraction (S. Br. at 14-15),
the D.C. Circuit made it clear that the phrase ''to be used" had its limits: "[W]e think the more
reasonable interpretation is that§ 3(h)(l) is not applicable prior to the commencement of any
mineral extraction or construction activities. The phrase ''to be used in" merely refers to property
that has not yet, but will be, committed to the work of extraction at a preexisting site or
structure." Id. at 720 (emphasis in original). Nevertheless, it is sufficient for the purpose of
deciding this case that section 75.1200, by its clear terms, did not apply to Musser.
32 FMSHRC Page 1297

The judge concluded that, in violating section 75.1200, PBS acted in a "grossly negligent
manner." 30 FMSHRC at 1094. He based his conclusion in part on the fact that PBS had
received two contradictory maps from Consol, which should have put PBS on notice "that all was
not right." Id. at 1093. The judge further noted that final, certified mine maps ''were a rare
commodity," but found that PBS should have taken additional precautions. Id. The judge
summarized the basis for his negligence conclusion, stating that he found it "incomprehensible"
that PBS failed to place any type of warning on the section 75.1200 map. Id. at 1094.
The judge relied principally on the testimony of David Lucas, a technical assistant
employed by Musser, to conclude that both Musser and PBS did not find the Consolidation Coal
map to be reliable. Id. at I 093. Mr. Lucas did testify that he was not satisfied with the map, as
the judge states, but that statement needs to be placed in context. Twice in his testimony, on cross
examination by counsel for PBS and on redirect by counsel for the Secretary, Mr. Lucas stated
that he agreed with his earlier statement, taken during an MSHA interview, that he, in fact, was
satisfied with the Consolidation Coal map. Tr. 69-70, 80-81.
This seeming contradiction is easily explained by other testimony by Mr. Lucas that the
judge ignored. In the course of discussing the procedure for verifying old maps, Mr. Lucas stated
that the only sure way to verify past mining development is to actually survey the underground
area in question. In the absence of such definitive plotting of prior mining activity, according to
Mr. Lucas, maps are not going to be completely reliable. Tr. 67-68, 79. Moreover, whatever
personal doubts Mr. Lucas might have had, his testimony does not indicate that these concerns
were shared with PBS.
The judge also relies on the testimony of MSHA witness Stanley Michalek to establish
that Consolidation Coal's map repository was unreliable, inasmuch as PBS had to go back for a
second, more up-to-date map. 30 FMSHRC at I 093. According to the judge, PBS was put on
notice that, as Michalek put it, Consol no longer had its "system down. They [were] slipping."
Id. (citing Tr: 458). It should be noted that Mr. Michalek admitted that he had never prepared a
map for purposes of obtaining a permit from the state of Pennsylvania, and that he had never
conducted a map search such as that undertaken by Musser and PBS in this case. Tr. 488-89.
Nevertheless, when asked what he would have done under the circumstances, he replied that he
would have done the same thing that Musser and PBS did. Tr. 490.
So the level of negligence assignable to PBS comes down to what steps the operator took
to ensure that the map ultimately submitted to MSHA was "accurate." PBS asserts (PBS Br.
at 26-31 ), and I agree, that it performed appropriate and accepted due diligence in researching all
available sources for evidence of past mining development adjacent to the Quecreek mine. The
record is replete with statements by MSHA witnesses that Musser and PBS exercised such due
diligence in securing what they believed to be the most up-to-date maps. Tr. 348, 432, 501, 570.3

3

The judge accuses PBS of playing "Russian roulette with the lives of miners."
30 FMSHRC at 1093-94. If so, there were other players at the table. None of the governmental
32 FMSHRC Page 1298

The judge's principal basis for determining that PBS was guilty of gross negligence was
the operator's failure to include on the mine map a disclaimer or a dotted line to indicate
uncertainty regarding the boundary of the Harrison No. 2 Mine. 30 FMSHRC at 1094. The judge
had concluded as a threshold matter that had PBS included such a disclaimer on the map it
submitted to MSHA it would have been in compliance with section 75.1200. 28 FMSHRC
at 707. I find, and my colleagues apparently agree, that the standard by its terms does not require
the placing of a disclaimer on a map based on undated, uncertified prior maps, and I share
Chairman Jordan's skepticism as to the efficacy of such a disclaimer in the circumstances
presented here. See slip op. at 18 n.20. I would add that PBS believed the map it did submit to
MSHA was, in fact, reliable, thus obviating the need to include a disclaimer in the first place.
Finally, it seems to me that if the standard does not require a disclaimer, it is not logical to
conclude that failure to provide one in these circumstances would support a finding of any
negligence, much less gross negligence.
PBS argued below that is was impossible to comply with the standard, because no final
certified map of the Harrison No. 2 Mine was available. 28 FMSHRC at 706. The Secretary
countered, and the judge agreed, that PBS could have prepared an "accurate" mine map "by
indicating in some way on the map that the exact location of the adjacent workings in the Harrison
No. 2 Mine was unknown." S. Br. at 21 (emphasis added); see 28 FMSHRC at 707; S. Br.
at 22 n.18. 4 Because the Secretary has maintained that the language of the standard is clear, the
Secretary's placing of this additional gloss on the standard is neither necessary nor legally correct
under Chevron, 467 U.S. at 842-43. And while 30 C.F.R. § 75.1200 is a reiteration of section 312
of the Mine Act and section 312 of the Coal Act, there is nothing in the Mine Act, the Coal Act,
nor in the legislative history of either that would support such a reading of the standard.
I therefore conclude that the Mine Act and the Secretary's regulations do not provide for
such a practice, and none can be read into the regulation when its language is so abundantly clear.

entities charged with assuring the reliability of maps of abandoned mines met its responsibilities
in this case. MSHA did not question PBS as to the existence of certified maps of adjacent areas,
even though since 1969 the agency or its predecessor had been responsible for maintaining such
documents (see 30 U.S.C. § 872(c); 30 C.F.R. § 75.1204); the Office of Surface Mining, the
designated archival agency under federal law, had only a partial 1957 map of the areas in
question (Stip. 78); and Pennsylvania DEP allowed its inspectors to retain official final maps
among their own private papers. Stips. 84, 86. These derelictions of official duty played no
small role in the near tragedy.
4

The Secretary further states, "Section 75.1200's requirement of an 'accurate' map did
not require PBS and Musser to prepare a map showing something they could not know; it
required them to prepare a map indicating what they did not know." S. Br. at 21. This statement
is both difficult to understand and unhelpful in resolving this case.
32 FMSHRC Page 1299

Any requirement that the operator indicate in some way that the exact location of an adjacent mine
is unknown could only be imposed after notice-and-comment rulemaking. 5
Notwithstanding the lack of any statutory or regulatory basis for requiring a disclaimer on
a section 75.1200 map, the judge seized on the lack of a disclaimer to focus on PBS's actions
from a general negligence perspective. 30 FMSHRC at 1093-94 ("As the danger becomes greater
the actor is required to exercise caution commensurate with it") (quoting W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts§ 34, at 208 (5th ed. 1984)). 6 The judge stated that he
considered it "incomprehensible" that PBS did not place any type of warning on the section
75.1200 map. Id. at 1094.
While the judge's sentiments are understandable, they are not grounded in the plain
language of the standard. InA. H. Smith Stone Co., 5 FMSHRC 13 (Jan. 1983), the Commission
explained the nature of a negligence finding under section 11 O(i): "Each mandatory standard thus
carries with it an accompanying duty of care to avoid violations of the standard, and an operator's
failure to meet the appropriate duty can lead to a finding of negligence if a violation of the
standard occurs." Id. at 15. Under the Commission's holding, it is clear that the negligence
finding must be grounded in the violation of the standard itself, not by general principles of tort

5

In further support of her position, the Secretary switches gears somewhat to assert that a
"reasonably prudent operator" would read the standard to require that it provide some indication
on a mine map when the exact location of adjacent mine workings is unknown. S. Br. at 24-25.
That argument must be rejected as well. The Commission has long held that the "reasonably
prudent person" test is invoked to determine whether an operator "would have ascertained the
specific prohibition" of a broadly worded standard and "concluded that a hazard existed." Phelps
Dodge Tyrone, Inc., 30 FMSHRC 646, 656 (Aug. 2008) (citing Ideal Cement Co., 12 FMSHRC
2409, 2416 (Nov. 1990)). That test is clearly inapplicable here, where no broadly worded safety
standard is involved and the Secretary essentially seeks to add a new requirement to a specific
standard. Rather, the Commission has addressed the issue of notice of a plain language provision
in the following manner: "'when the meaning of a standard is clear based on its plain language,
it follows that the standard provided the operator with adequate notice of its requirements.'"
Austin Powder Co., 29 FMSHRC 909, 919 (Nov. 2007) (quotingLaFarge Constr. Materials,
20 FMSHRC 1140, 1144 (Oct. 1998)).
6

The Commission has generally considered "the high degree of danger posed by a
violation" in regard to an unwarrantable failure finding, rather than a negligence determination.
See Rock ofAges Corp., 20 FMSHRC 106, 115 (Feb. 1998) (supervisor should have appreciated
extreme danger posed by unexploded pyrodex). It is noteworthy here that the Secretary did not
designate the citations as being the result of the operators' unwarrantable failure, which the
Commission has generally characterized as '"aggravated conduct constituting more than ordinary
negligence,"' .... and in so doing has "recognized that a finding of high negligence suggests
unwarrantable failure." Eagle Energy Inc., 23 FMSHRC 829, 839 (Aug. 2001) (quoting Emery
Mining Corp., 9 FMSHRC 1997, 2003-04 (Dec. 1987)).
32 FMSHRC Page 1300

law and general notions of what would be desirable. fu other words, the operator's duty of care is
prescribed by the standard. fu Smith Stone, the Commission rejected the judge's reasoning that
the operator failed to engage in a "safe practice," because the Commission concluded that its
examination was limited to what the standard required. Id. at 16.
As the Commission's decision in Smith Stone indicates, the "duty of care" that PBS was
required to meet was to maintain an accurate mine map. Obviously, PBS failed to do this, and the
judge's examination of the operator's conduct should be focused on the strength of its efforts to
locate an accurate mine map of the Harrison No. 2 Mine and its preparation of the section 75.1200
map. The judge instead relied upon a practice, apparently only beginning to emerge prior to the
Quecreek inundation, that an operator indicate in some way unknown areas on a mine map. 7
However beneficial or exemplary this practice might be, the standard at issue was silent on this.
Significantly, there was an absence of guidance from MSHA to even suggest that operators should
follow this practice.
Moreover, adopting the judge's theory ofnegligence in this case would have the effect of
imposing a general duty clause on mine operators similar to that imposed on general industry by
section 5(a)(l) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(l). By its
terms, section 104(a) of the Mine Act limits citations to an operator that has violated the Act or
any mandatory standard. 30 U.S.C. § 814(a); see also Con£ Rep. No 95-461, at 38-39 (1977),
reprinted in Senate Subcomm. on Labor Comm. on Human Res., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 1316-17 (1978) (Mine Act as enacted rejected
"general duty" clause that would have permitted citing operators for failing to furnish safe and
healthful working conditions and to comply with rule and regulations under the Act).
Here, the judge's reliance on an arguably desirable but unpromulgated practice to require a
disclaimer on a mine map stands on a similar footing to the "safe practice" rationale which the
Commission rejected in Smith Stone. Thus, from the judge's decisions, it is evident that his
negligence findings were not limited to PBS's actions in failing to provide an accurate map under
section 75.1200. fu addressing negligence in his first decision, the judge responded to PBS's

7

Most of the evidence concerning the practice of noting uncertainty regarding the
boundaries of adjacent mines involved maps dated after the initial map was submitted to the
Pennsylvania DEP. See Gov't Ex. 10 (final MSHA mine map dated Feb., 23, 1999 (punch line
used to indicate unknown areas)); Gov't Ex. 11 (MSHA mine map dated Aug. 26, 2002
(notations used to indicate unsurveyed areas)); Gov't Ex. 12 (MSHA mine map appears to be
dated Jan. 4, 2001 (notations used to indicate that extent of prior mining was unknown));
Gov't Ex. 13 (MSHA mine map dated July 15, 2002 (notation used to indicate extent of survey
areas unknown)). All the maps came from MSHA districts other than the district in which the
Quecreek No. 1 Mine is located, and testimony indicated that there may have been informal
guidance as to the practice in those other districts. Tr. 548-49. There is no evidence that MSHA
had issued any such guidance regarding mine maps in the district where the Quecreek No. 1 Mine
is located.
32 FMSHRC Page 1301

argument that there was nothing in the standard or other guidance from the Secretary that required
PBS to do more than depict the workings of an adjacent inaccessible mine, noting that "[t]here are
many prophylactic actions taken by reasonably prudent people that are not set forth in the
statutes." 28 FMSHRC at 710 (emphasis added). In further response to PBS's argument that it
had met or exceeded "the standards of the mining community," the judge stated that, aside from
those standards, "given the gravity of the accident, I cannot dismiss basic common sense." Id.
at 711. Again, while these sentiments may well be of some moment in a case brought in tort, they
. are inapposite to the determination of culpability under the Mine Act. Umbrageous hindsight
must not be substituted for legal analysis consistent with Commission precedent.
Consequently, I conclude, contrary to the judge's reasoning, that Commission case law
establishes that PBS is not guilty of "gross" or high negligence. See also Utah Power & Light
Co., 12 FMSHRC 965, 972(May1990) (operator that followed a clean-up plan believing that
such conduct was consistent with applicable regulations not guilty of aggravated conduct
constituting more than ordinary negligence). In any event, even if the Secretary's regulations left
room for interpretative guidance that indicated the need for map notations in light of uncertain
boundaries, she has issued no guidance here that has been ignored. See also Midwest Minerals,
Inc., 12 FMSHRC 1375, 1379 (Jul. 1990) (operator not guiltyofhighnegligencewhere seemingly
conflicting MSHA policies left operator in doubt as to what was required for compliance).
Finally, in its recent decision in Spartan Mining Co., 30 FMSHRC 699 (Aug. 2008), the
Commission held that negligence :findings cannot be based on an operator's actions after a
violation has occurred; rather the judge's examination must focus on the operator's actions before
the violation occurred. Id. at 708. Here, PBS's failure to provide a notation or warning on a map
to indicate uncertainty as to boundaries is, at best, inaction that followed its failure to provide an
accurate map with boundaries under section 75.1200. 8
In summary, I would reverse the judge's finding of gross negligence. To my mind, nothing·
presented before the judge below warranted a finding in excess of the moderate negligence
originally charged by MSHA after an extraordinarily thorough investigation of the circumstances
leading up to the Quecreek inundation.

8

In order to abate the citations issued to it and Musser, PBS was ordered to correct the
state mine map in light of the uncertified map found at the Windber Coal Heritage Museum, and
to perform test bores when mining with 200 feet of the Harrison No. 2 mine. Citation No.
7322487, at 2-3; Citation No. 732488, at 2-3.
32 FMSHRC Page 1302

Distribution

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
401 Liberty A venue, Suite 1340
Pittsburgh, PA 15222
Melanie J. Kilpatrick, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
3151 Beaumont Centre Circle, Suite 375
Lexington, KY 40513
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Myra James, Chief
Office of Civil Penalty Compliance, MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D,.C. 20001-2021

32 FMSHRC Page 1303

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, D.C. 20001-2021.
Telephone: (202) 577-6809
Fax: (202) 434-9949

September 3, 2010
CIVIL PENALTY PROCEEDJNG

HILDA L. SOLIS,
Secretary of Labor,
United States Department of Labor,
Petitioner

Docket No. SE 2009-991-M
A.C. No. 01-00043-197458

V.

LEHIGH CEMENT COMPANY, 1NC.,
Respondent

Mine: Leeds Plant

ORDER DISMISSING PROCEEDING
Before: Judge William B. Moran
This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977. The parties have filed a Joint
Motion to dismiss petition for assessment of civil penalty. In total the originally assessed amount
for the two citations was $13,200.00, each being assessed $6,600.00. The joint motion describes
the "proposed settlement motion" for the citations as "vacated." The joint motion is a peculiar
submission in that it recites the penalty criteria, such as history of previous violations, size of the
operator's business, and the operator's good faith abatement to "achieve rapid compliance after
notification of.the alleged violation." It is only when the negligence and gravity are brought up
among the penalty criteria that the Secretary advises that "[b ]ased upon a review of the evidence
and in its prosecutorial discretion, Petitioner agrees to vacate [the two citations]. The Joint
Motion concludes that "approval of this settlement is in the public interest and will further the
intent and purpose of the [Mine Act]."
Normally, a settlement motion arises in the context of the parties' negotiation of the
particular citations listed, and more often than not, at least some of the citations are settled for an
amount which is less than the penalty sums originally proposed. Where all of the citations in a
given docket are vacated, as in this instance, the description of the result as a "settlement motion"
seems inapt. Here, the Joint Motion seeks dismissal of the petition for the assessment of civil
penalty. The question is whether a motion seeking a judge's approval to dismiss a matter should
be denominated as a "settlement."
This matter, despite ticking off the penalty criteria, is simply a motion to dismiss the
citations listed in the docket and to end the civil penalty proceeding. In RBK Construction, Inc.,
32 FMSHRC Page 1304

15 FMSHRC 2099 (Oct. 1993) the Commission, looking to the U.S. Supreme Court's decision in
Cuyahoga Valley Ry. Co. v. United Transportation Union, 474 U.S. 3 (1985), held that the
Secretary has the authority to vacate citations and that such actions are not reviewable.

In Cuyahoga the Supreme Court noted the distinct roles of the Commission and Secretary
of Labor as adjudicator and prosecutor, respectively, and that Congress did not intend a
commingling of those roles. 1 See, also Rockville Crushed Stone, Inc. 1994 WL 700964,
December 1994 (Judge Merlin2), noting RBK's holding that the "vacation of citations and orders
are within the Secretary's unreviewable prosecutorial discretion." cf PC Sand & Gravel, 32
FMSHRC 235, 2010 WL 1145201, February 2010, (Chief Judge Lesnick) in which thatjudge
distinguished the Secretary's effort to vacate citations "in the context of a motion to approve a
settlement agreement."
As at least the title, if not the substance, of the Joint Motion is to dismiss the petition for
the assessment of the civil penalty in this docket, and as such action does not require
Commission approval, the proceeding has become moot and therefore this matter is
DISMISSED, with prejudice.

William B. Moran
Administrative Law Judge

Distribution:
Leslie Paul Brody, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street SW,
Room 7Tl 0, Atlanta, GA 30303
Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 2400 N Street NW,
5th Floor, Washington, DC 20037
Washington, DC 20037

1

While Cuyahoga dealt with the authority of the Occupational Safety and Health Review
Commission, there is no basis to distinguish the Mine Safety and Health Review Commission's
authority and the Commission recognized that fact in RBK Construction.
2

Judge Merlin was the Chief Administrative Law Judge at that time. He has since retired.

32 FMSHRC Page 1305

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

September 9, 2010
CIVIL PENALTY PROCEEDING

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

Docket No. VA 2008-400
A.C. No. 44-06804-156224

v.
KNOX CREEK COAL CORPORATION,
Respondent

Mine: Tiller No. 1

DECISION GRANTING SUMMARY DISPOSITION
FOR FAILURE TO FILE A TIMELY ANSWER
AND RESPOND TO INITIAL ORDER TO SHOW CAUSE
Statement of the Proceedings
Before:

Judge McCarthy

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor against Respondent, Knox Creek Coal Corporation, pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act'). The
October 29, 2008 Petition seeks civil penalty assessments in the amount of$25,996 for 11
alleged violations of certain mandatory safety standards found in Part 56, Title 30, Code of
Federal Regulations. The citations and proposed civil penalty assessments are as follows:

Citation No.
7317861
7317862
7317904
6632093
6632099
6632100
6632101
6632102
6632103
6632105
6632107

Date
4/15/08
4/16/08
4/16/08
4/21/08
4/23/08
4/23/08
4/23/08
4/23/08
4/23/08
4/23/08
4/23/08

30 C.F.R.

75.370(a)(l)
75.202(a)
75.370(a)(l)
75.400
75.400
75.202(a)
75.362(b)
75.400
75.400
75.400
75.517

Section Assessments
$1,795.00
$2,106.00
$3,689.00
$3,689.00
$ 745.00
$1,412.00
$2,473.00
$3,996.00
$ 745.00
$3,689.00
$1,657.00

32 FMSHRC Page 1306

I.

Initial Order to Show Cause

On November 16, 2009, Chief Administrative Law Judge Robert J. Lesnick issued by
certified mail an Order to Respondent to Show Cause why default judgment should not be
entered for failure to file an Answer as required by Commission Procedural Rule 29, 29 C.F.R.
§2700.29. Chief Judge Lesnick Ordered that an Answer to the Petition be filed within 30 days of
said Order, or Respondent will be placed in default and ordered to pay the assessed penalties.
The return receipt indicates that said Order was served on Respondent on November 19, 2009.
Respondent failed to file its Answer, as ordered, or otherwise respond to the Order to Show
Cause. No default Order, however, ever issued.

II.

Petitioner's Motion for Summary Disposition

Nearly six months later, on May 17, 2010, the Petitioner filed a Motion for Summary
Disposition of Proceedings pursuant to Commission Procedural Rule 66, 29 C.F.R. §2700.66
because Respondent had not filed an Answer to date and had not responded to the Order to Show
Cause.

III.

Respondent's Appearance, Untimely Answer and Opposition

On May 18, 2010, counsel for Respondent filed a Notice of Appearance. On May 20,
2010, Respondent, by and through counsel, filed its Answer, which admitted, inter alia, that
Respondent received a proposed assessment from the Secretary for $25,996.00. On or about
May 24, 2010, Respondent, by and through counsel, served its Memorandum in Opposition to
Motion for Summary Disposition of Proceeding on the Secretary and Commission.

In its Memorandum in Opposition, Respondent argued that it has bona fide defenses to
the underlying 11 citations and that summary disposition would be unfair. Respondent averred
that the Petition and Order to Show Cause were served on Respondent. However, Respondent
never assigned to outside counsel. Contrarily, the Secretary's Motion for Summary Proceedings
was served and immediately assigned to outside counsel, who immediately filed Respondent's
Answer. Respondent further averred that it has unspecified bona fide defenses that could result
in vacation of the citation, or reduction in the gravity cited and penalty assessed. In such
circumstances, Respondent argued that it would be unjust to impose the full remaining
$25,996.00 assessment against It for apparent administrative oversight in failing to assign this
matter to outside counsel, particularly since the Secretary has argued no prejudice from any delay
in having to defend the citations against reasonable inquiry and cross-examination. On the
contrary, Respondent argued that any delay would most likely prejudice Respondent since
unspecified persons with relevant knowledge of the citations have left its employ. In sum,
Respondent argued that it is ready to proceed with discovery and that this case should be decided
on the merits, not inadvertent procedural missteps.

32 FMSHRC Page 1307

IV.

Petitioner's Reply

Petitioner replied that the Respondent admitted its failure to respond to the Petition and
Order to Show Cause and has simply stated that this case was not "assigned to outside counsel''
until the Secretary filed the instant motion. Thus, Petitioner argued that but for the Secretary's
motion, Respondent's inaction would have resulted in default judgment. The Petitioner then
analyzed requests for relief from default orders under Commission precedent applying Fed. R.
Civ. P. 60(b), which provides that to obtain relief from a final judgment, a party must establish
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3)
fraud; (4) that the judgment is void; (5) that the judgement has satisfied, released, or discharged
or should not have prospective application; or (6) any other reason justifying relief. In essence,
the Secretary argued that a party requesting reopening from a final judgment or default order
under Fed.R.Civ.P. 60(b)(l) must establish more than mere carelessness, i.e., that this case was
"never assigned to outside counsel." Finally, the Secretary argued that Respondent must, but has
failed to, identify facts that, if proven on reopening, would constitute a meritorious defense.
Accordingly, the Secretary argued in its Reply that Respondent has failed to satisfy its burden of
establishing an entitlement to extraordinary relief from final order and the Secretary's Motion for
Summary Disposition should be granted.

V.

My Additional Order to Show Cause

On July 13, 2010, I issued an Additional Order to Show Cause. The Order recognized
that the Commission is in the process of issuing a Notice of Proposed Rulemaking for a new
Commission default rule, which proposes a rule that includes relief not only from orders that
have become final by operation of law under section 105(a) of the Act, but also from defaults
resulting from a party's failure to file an answer to a petition for assessment of penalty. I
informed the parties in my Additional Order to Show Cause that in an effort to provide as much
guidance to the parties as possible, the Commission, in its proposed rule has set forth two
principle factors that the Commission would consider in determining whether to reopen a final
order of default, as well as other additional factors that it may also consider. I informed the
parties that the first factor that the Commission would consider is the nature of the error or
omission leading to the default (including whether the operator exercised due diligence in
attempting to contest the proposed penalty, whether the untimeliness was within the reasonable
control of the operator, and the effectiveness of the operator's internal contest procedures). I
informed the parties that the second factor is the period of time between the operator's discovery
of its default and the filing of the request to reopen with the Commission. I further informed the
parties that additional factors that the Commission might consider include the operator's history
of penalty delinquencies, the size of the operator, the operator's experience with Mine Act
procedures, whether the operator was represented by counsel at the time of the default, the size of
the proposed penalty, prejudice to the Secretary or any affected person, whether the motion is
opposed, and any other relevant factor.

32 FMSHRC Page 1308

I specifically informed the parties that I would consider these factors in arriving at my
disposition of this matter. I directed the Respondent, within 14 days from the date of my order,
to address these factors and Show Cause Why Summary Disposition for Failure to File a Timely
Answer and Response to Notice to Show Cause Should Not Be Granted in this matter. I
directed Petitioner to respond, if appropriate, within 8 days after service of Respondent's
showing. I informed the parties that no further papers would be permitted and I would then rule
on whether the Petitioner's proposed civil penalty assessments should not be made the final order
of the Commission, and whether the motion for default judgment should be granted or denied.

VI.

Respondent's Response

On July 27, 2010, Respondent filed its Response to Additional Order to Show Cause and
attached the affidavit of Safety Director Jack Snow, which states that he has personal knowledge
of the internal administrative process employed by Respondent to respond to proposed penalty
assessments. Mr. Snow avers that he reviewed the Proposed Assessment issued by the Office of
Assessments for MSHA, which contains the 11 citations at issue; that Respondent clearly
indicated on the Proposed Assessment that it intended to challenge these citations; that
Respondent returned the contested citation form to the Civil Penalty Compliance Office; and that
Respondent's internal assessment payment process was followed because a $21,263 payment was
made on August 12, 2008 for the non-contested citations.
Affiant Snow avers that when the Secretary filed the instant Petition against Respondent
[back on October 29, 2008], it would have been routinely handled by corporate in-house counsel
or forwarded for assignment to outside counsel for handling of all subsequent aspects of the
proceeding. Affiant Snow states that when Chief Judge Lesnick's Order to Show cause was sent
to Respondent in mid-November 2009, it was forwarded to corporate headquarters for further
disposition. Mr. Snow continued to assume that the matter was being handled by either in-house
or outside counsel.
Affiant Snow further states that when the Secretary filed her May 17, 2010 Motion for
Summary Disposition for failure to file an Answer, the content of said motion caused him to
make inquiries and learn that outside counsel had not been engaged, as intended. That is, in the
words of Respondent's counsel, " ... given the now obvious nature of the apparent default, Mr.
Snow made inquiries and learned that, through an inadvertent mistake, outside counsel had not
been engaged, as intended." Mr. Snow immediately contacted outside counsel and had ''those
documents" forwarded to outside counsel for prompt engagement. Outside counsel then filed
Respondent's May 20, 2010 Answer the same day that the Petition was received from the
Solicitor's Office by email. Said Answer pleads seven defenses to the Petition's allegations.
Further, affiant Snow states that Respondent has bona fide and legal defenses to the citations that
should be considered on their merits, and Respondent never intended to waive those defenses.
Finally, Mr. Snow avers that all Petitions now received are forwarded immediately to outside
counsel for disposition, and counsel confirms that [t]his apparent breakdown in communication
had lead Knox Creek to change its procedures relating to the handling of incoming petitions."

32 FMSHRC Page 1309

Based on this factual background established by affiant Snow, Respondent argues that
Commission precedent permits reopening uncontested assessments that have become final under
§ 105(a) because of inadvertence and mistake, citing Peabody Coal Co., 19 FMSHRC 1613 (Oct.
1997) which cites Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993), and citing
Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994). Respondent emphasizes the
Commission's observation in Coal Preparation Services, Inc., 17 FMSHRC 1529, 1530 (Sept.
1995) that default is a harsh remedy and if a defaulting party can make a showing of good cause
for failure to timely respond, reopening for disposition on the merits is appropriate. Respondent
notes that the Commission directed reopening where counsel had misplaced a proposed
assessment in a file rather than return it. See Pederson Brothers, Inc., LAKE 2008-60-M (Apr.
4, 2008). Similarly, Respondent notes that mistake and inadvertence under Fed. R. Civ. P.
60(b)(l) were established when the late filing of a hearing request was due to a processing error
by accounts payable personnel. See Doe Run Co., 21FMSHRC1183, 1184-85 (Nov. 1999)
(granting motion to reopen where mishandling of proposed assessments resulted in mistaken
payment during absence of employee regularly responsible for such tasks); Kaiser Cement Corp.,
23 FMSHRC 374, 375 (Apr. 2001) (granting motion to reopen where operator's inadvertent
payment of the proposed assessment was due to internal processing error and operator attached
affidavit supporting its allegations).
In sum, Respondent argues that Commission case law supports the proposition that cases
should be decided on their merits where it can be shown that some inadvertent error has
prevented a party from strictly complying with the rules of procedure. Respondent reiterates that
it timely submitted the contested citation form, which clearly expressed its intent to contest the
instant citations; that Respondent promptly paid the net balance of $21,263 owed for the
uncontested citations; that in-house or outside counsel should have filed a [timely] Answer
because Knox Creek was not routinely handling communications from the Solicitor or the Court,
and that after forwarding this November 2009 Court's Order to Show Cause [to corporate
headquarters], Respondent had no reason to believe that this matter was not being handled by
counsel. Respondent emphatically contends that it did not realize that its case was in jeopardy
until it received the Motion for Summary Proceeding for failure to file an answer, a document
whose very title clearly telegraphed that the process of answering petitions had broken down. At
that time, Respondent directly contacted outside counsel and cured the pending default by
promptly filing an answer. Respondent argues that the Secretary cannot argue prejudice from the
regrettable and inadvertent delay, that Respondent is far more likely prejudiced given employee
turnover, and that Knox Creek should be permitted to defend on the merits.

Respondent did not address most of the additional factors in the Commission's proposed
default rule, as enumerated in my Additional Order to Show Cause. 1

1

Respondent was placed on notice that l intended to consider these factors in my decision
and has not challenged the use of these factors. In addition, these factors are similar to those
used by other courts in determining whether Fed. R. Civ. P. 60(b)(l) allows for relief. See, e.g.
Bateman v. US. Postal Service, 231F.3d1220, 1223 (91h Cir 2000); Pioneer Inv. Services Co. v.
32 FMSHRC Page 1310

VII.

Petitioner's Reply

On August 3, 2010, Petitioner filed its Reply to Respondent's Response to Additional
Order to Show Cause. In said Reply, Petitioner argues that Respondent still fails to show good
cause for its late Answer and failed to adequately explain the facts it claims are related to the first
factor listed in my Additional Order to Show Cause, i.e., the nature of the error or omission that
led to the failure to file a timely answer. Petitioner argues that Respondent attempts to cast the
in-house legal department of its parent company, Massey Energy, as an entirely separate and
distinct entity over which Respondent has no control, even though Respondent admits that upon
receiving the Secretary's motion, it independently contacted outside counsel. According to
Petitioner, this action belies Respondent's assertion that it was unable to proceed on its own and
rely entirely on the in-house legal department to respond, or refer the matter to outside counsel.
Petitioner argues that Respondent's safety director admits receiving and reviewing Chief Judge
Lesnick's Order to Show Cause, which he simply forwarded to the in-house legal department
without any instruction or question. Petitioner emphasizes that the Order to Show Cause orders
Respondent to file an answer within 30 days or show good cause for failure to do so, and plainly
stated, in italicized text for emphasis, "you will then be placed in default and ordered to pay the
amount ofMSHA's penalty $47,259.00 immediately," and "preserve your right to [a] hearing,
you must file an Answer." Respondent, however, made no special efforts to address this issue
until the Motion for Summary Disposition was filed.
Petitioner argues that the second factor, i.e., the period of time between the operator's
discovery of the default and its action to cure it, also weighs against proceeding now on the
merits since the Order to Show Cause was issued a year after the Petition was filed, and the
instant motion was not filed until six months later. Thus, 18 months expired before Respondent
sought this proceeding on the merits.
Petitioner argues that the additional factors set forth by the Commission in its proposed
new default rule likewise weighed against Respondent's argument. In this regard, Petitioner
asserts that MSHA's Data Retrieval System, available on its public website, shows that as of July
29, 2010, Respondent had 89 violations with delinquent penalties, originally assessed at
$204,230.00, but currently assessed at $123,715.00, of which Respondent has paid only
$1,094.00. 2 Thus, despite the fact that these penalties were reduced by almost half through
litigation or negotiation, Respondent has failed to timely remit $123, 715.00 in penalties,
according to the Petitioner. Furthermore, Petitioner argues that Respondent is a large mine

Brunswick Associates, Ltd. Partnership, 507 U.S. 380, 395 (1993).
2

MSHA's Data Retrieval System contains information on mine citations, orders, and
safeguards and is available at MSHA's public website (http://www.msha.gov/drs/drshome.htm).
On September 8, 2010, the website indicated that the Tiller No.1 mine had 68 outstanding
delinquent penalties originally assessed at $159,906.00, but currently assessed at $87,246.00, of
which Respondent has paid only $1,049.00.
32 FMSHRC Page 1311

producing between 700,000 and 1,000,000 tons of coal annually, and it is controlled by a large
energy company that produces over 10,000,000 tons of coal annually. Finally, Petitioner argues
that Respondent has extensive experience with Mine Act procedures and was represented by inhouse counsel at the time of the default.

VIII. Legal Framework

A.

Procedural Rules

The applicable Commission Rules in this case provide as follows:
29 C.F.R § 2700.27

§ 2700.27 Proposal for a penalty.
(a) When to file. Within 45 days of receipt of a timely notice of contest of a notification
of proposed assessment of penalty, the Secretary shall file a proposal for a penalty with
the Commission.
29 C.F.R § 2700.29

§ 2700.29 Answer.
A party against whom a penalty is sought shall file and serve an answer within 30 days
after service of a copy of the proposal on the party. An answer shall include a short and
plain statement of the reasons why each of the violations cited in the proposal is
contested, including a statement as to whether a violation occurred and whether a hearing
is requested. (Emphasis added).
29 C.F .R § 2700.63

§ 2700.63 Summary disposition of proceedings.
(a) Generally. When a party fails to comply with an order of a judge or these rules, an
order to show cause shall be directed to the party before the entry of any order of default
or dismissal.
(b) Penalty proceedings. When the judge finds the respondent in default in a civil penalty
proceeding, the judge shall also enter a summary order assessing the proposed penalties
as final, and directing that such penalties be paid.

B.

Analogous Precedent

In this penalty proceeding, it is undisputed that the Respondent failed to file a timely
Answer and failed to respond to the initial Order to Show Cause. However, a Commission
Administrative Law Judge (ALJ) never issued an Order of Default. Accordingly, this is not a
32 FMSHRC Page 1312

case where Respondent is requesting relief :from a default judgment or order, since one never
issued. Rather, at this stage of the proceeding, the issue is whether default judgment should issue
at this time for failure to timely file an Answer and answer the original Notice to Show Cause.
The facts establish that it was only after the Secretary's Motion for Summary Disposition
that Respondent filed its belated Answer because the case was not assigned to outside counsel
before then. In essence, therefore, the Petitioner seeks a default judgment on the ground that the
Respondent failed to file a timely answer to the Petition and Notice to Show Cause.
I could find no Commission case law or rule governing this issue. Accordingly, I look to
analogous case law and the Commission's new proposed default rule to decide this issue.
The concept of granting default judgment in the absence of good cause shown for failure
to timely file an answer is consistent with well-established case law under the National Labor
Relations Act (NLRA), which provides a model for certain provisions of the Mine Act. The
National Labor Relations Board (Board) has consistently rejected counsel inattention as an
excuse for the late filing of an answer. See, .e.g., King Courier, 344 NLRB 485 (2005) (default
judgment granted in absence of good cause shown for late filed answer due to inadvertent
inattention of counsel); South Atlantic Trucking, Inc., 327 NLRB 534, 534-35 (1999).3

King Courier is particularly instructive. In that case, the respondent failed to file a timely
answer to the General Counsel's complaint under the National Labor Relations Act. The General
Counsel filed a Motion for Default Judgment with the Board. The Board issued an Order
transferring the proceeding to the Board and a Notice to Show Cause why the motion should not
be granted. The respondent, unlike Knox Creek, actually filed a response to the Board's Notice
to Show Cause and included an answer to the complaint. In its response to the Board's Notice to
Show Cause the respondent argued that its failure to file a timely answer to the complaint was
"the result of inadvertent inattention of counsel in light of the substantial factual issues need to be
addressed in this case." The Board found that Respondent's explanation for its failure to file a
timely answer did not constitute good cause, noting that "[i]nadvertent inattention of counsel is
not sufficient to establish good cause, citing Electra-Cal Contractors, 339 NLRB 370, 370
(2003), and Associated Interior Contractors, 339 NLRB 18, 18 (2003). Further, the Board found

3

I note that the Board's decision Air Climate Systems, Inc. 357 NLRB No. 75 (May 30,
2008)Air Climate Systems, Inc., 357 NLRB No. 75 (May 30, 2008) (default judgment granted in
absence of good cause shown for answer filed one-day late due to inattention of counsel to ensure
timely filing), was decided by a two-member panel consisting of then Chairman Schaumber and
then Member Liebman. On June 17, 2010, a divided Supreme Court ruled that the two-member
Board was not authorized to issue decisions, specifically holding that Section 3(b) of the Act
requires that a delegee group maintain a membership of three in order to exercise the delegated
authority of the Board. See New Process Steel v. NLRB, 130 S.Ct. 2635 (2010). Accordingly, I
need not rely on that analogous authority here.

32 FMSHRC Page 1313

that respondent's claim that there were substantive and factual issues which needed to be
addressed was also not sufficient to establish good cause, and refused to address respondent's
assertion that it had a meritorious defense since good cause for the late filed answer was not
otherwise demonstrated. See Dong-A Daily North America, 332 NLRB 15, 16 (2000), citing
Printing Methods, Inc., 289 NLRB 1231, 1232 fu. 4 (1988). Accordingly, the Board granted the
General Counsel's Motion for Default Judgment for failure to file a timely answer to the
complaint, despite Respondent's answer to the Notice to Show Cause.
Similarly, in South Atlantic Trucking, Inc., the Board found that the respondent failed to
establish good cause for the failure to file a timely answer and granted the Acting General
Counsel's Motion for Default Summary Judgment, despite respondent's response to the Notice to
Show Cause. The Board rejected respondent's arguments that it tried unsuccessfully to fax the
answer late on the due date, that hard copies of the answer were misplaced and not mailed until a
week later, that summary judgment was unfair since it had a defense on the merits, that counsel
was not a regular practitioner, and that the Acting General Counsel was not prejudiced by the
delay. The Board found that respondent's late fax transmission would not have been excused,
even if facsimile filing of answers were allowed under the Board's rules, and the copies of the
answer which were mailed were also untimely. The respondent's bare assertion that the copies
were misplaced and not mailed for a week did not establish good cause for failing to file a timely
answer. Father & Sons Lumber, 297 NLRB 437 (1989), enfd. 931F.2d1093 (6th Cir. 1991).
The respondent received clear notice of its obligation to file a timely answer and its attorney's
unfamiliarity with the Board's procedures did not constitute good cause for the late filing. Dura
Pleating, 317 NLRB 614 (1995). Similarly, the Board rejected the respondent's argument that
the government had not been prejudiced by the late-filed answer, concluding that it is not
necessary to show prejudice to require compliance with the pleading rule. In sum, respondent's
response to the Notice to Show Cause was inadequate because it did not sufficiently explain
failure to file a timely answer or provide a cogent reason for further extending the answering
period. Finally, the Board noted that respondent's attack on the factual allegations of the
complaint, whjch would have been appropriate in a timely answer, simply came too late.
According, in the absence of good cause shown for failure to file a timely answer, the motion for
default summary judgment was granted.

C.

Legal Analysis

In this case, Respondent both failed to file a timely answer and failed to respond to the
Chief Judge Lesnick's Order to Show Cause why no answer was timely filed and why default
should not be entered. Thus, contrary to Affiant Snow's suggestion otherwise, it was well
before the Secretary filed her Motion for Summary Disposition that the Order to Show Cause
"clearly telegraphed that the process of answering petitions had broken down." Respondent's
safety director admits receiving that Order to Show Cause, which was simply forwarded to
corporate headquarters with no follow-up or direction. Thus, the nature of the error or omission
leading to the failure to timely file an answer was the cavalier assumption by Respondent that the
Order was being handled by either in-house or outside counsel.

32 FMSHRC Page 1314

According to Respondent's own affidavit, when the Secretary filed the instant Petition
against Respondent in October 2008, it would have been routinely handled by corporate in-house
counsel or forwarded for assignment to outside counsel. Respondent is represented by both inhouse and outside counsel, as well as a staff responsible for safety compliance issues.
Respondent, however, failed to track the progress of this case or follow-up to ensure that the case
was being handled, even after an Order to Show Cause was issued.
As explained above in an analogous context, the inadvertent inattention of counsel or
corporate headquarters is not sufficient to establish good cause. Respondent failed to exercise
due diligence in attempting to perfect its contest to the proposed penalty, cure its failure to timely
file an answer, or respond to the initial Order to Show Cause. The untimeliness and apparent
breakdown in communication was clearly within the reasonable control of the Respondent and
resulted from the ineffectiveness of its internal procedures, as demonstrated by its decision to
independently contact outside counsel in response to the Motion for Summary Disposition, and
change its procedures relating to the handling of incoming petitions.
In the circumstances of this case, the period of time between when the Respondent
discovered, or should have discovered, its failure to file an answer and its effort to cure, is not a
mitigating factor. Concededly, Respondent acted quickly by filing an answer after receiving the
Motion for Summary Disposition, but that action simply comes too late. As emphasized above,
Respondent was on notice that it was in jeopardy of default when it received the Order to Show
Cause on November 19, 2009. The Order to Show Cause was filed one year after the initial
Petition. Respondent's Safety Director admits that he received and reviewed the Order. The
Order plainly stated, in italicized text for emphasis, "You will then be placed in default and
ordered to pay the amount ofMSHA 's penalty $47,259.00 immediately." The order also stated
that "to preserve your right to [a] hearing, you must file an Answer." Thus, the Order to Show
Cause was clear and unequivocal notice that the Respondent had not properly answered and was
at risk of being placed in default. The Motion for Summary Disposition was not filed until six
months after Respondent received the Order to Show Cause. Thus, Respondent had six months
to act and failed to do so. In fact, there is no evidence to suggest that Respondent would have
ever acted if not prompted by the Motion for Summary Disposition. Therefore, this factor
weighs in favor of default judgment against Respondent.
Additional factors that the Secretary highlighted in her papers further weigh in favor of
granting her Motion for Summary Disposition. Respondent, Knox Creek Coal Corporation, is a
subsidiary of Massey Energy Company and operates the Tiller No. 1 underground coal mine
located in Tazewell County, Virginia. Petitioner represents that Respondent has a history of
penalty delinquencies and that as of July 29, 2010, MSHA' s Data Retrieval System indicated that
Respondent had about 89 violations with outstanding delinquent penalties amounting to
approximately $123,715.00. 4 Respondent is a large mine, which at the time of the violations
subject to this docket, was producing between 700,000 and 1,000,000 tons of coal annually.

4

As noted above, on September 8, 2010, MSHA's Data Retrieval System indicated that
the Tiller No. 1 mine had 68 outstanding delinquent penalties amounting to a total of$87,246.00.
32 FMSHRC Page 1315

Respondent is controlled by a large energy company (Massey Energy), which produces over
10,000,000 tons of coal annually. Finally, Respondent has extensive experience with Mine Act
procedures and was represented by in-house counsel, if not outside counsel, at the time of the
default. The size of the proposed civil penalty assessments at issue- $25,996 for 11 alleged
violations of mandatory safety standards - is but one-fifth of apparent, delinquent penalties and
pales in comparison to revenue generated from annual coal production. The Secretary strongly
opposes Respondent's belated efforts to proceed on the merits. Finally, it is not necessary for the
Secretary to show prejudice to require compliance with Commission Procedural Rule 29 and an
Order to Show Cause, and even if it were, this factor is outweighed by the other factors explained
herein.
.•

··In sum, I am mindful of the Commission's observation in Coal Preparation Services,
Inc., 17 FMSHRC 1530, 1531 (Sept. 1995), relied on by Respondent, that default is a harsh
remedy and that if a defaulting party can make a showing of adequate or good cause for the
failure to timely respond, the failure may be excused and appropriate proceedings on the merits
permitted. In this case, however, I have made a determination based on the totality of the facts
and circumstances, following full briefing by the parties on Additional Order to Show Cause, that
Respondent has not made a showing of adequate or good cause for the failure to timely file an
Answer or respond to Chief Judge Lesnick' s initial Order to Show Cause. I decline to reward
behavior that has already caused unwarranted expense to the Commission and Secretary because
of unexcused failure by a large, experienced and sophisticated operator, represented by counsel,
to follow Commission Rule and Order of the Commission's Chief Judge.
ORDER
In light of the foregoing, Petitioner's Motion for Summary Disposition for Failure to File
a Timely Answer is GRANTED, and it is ORDERED that the Respondent pay a penalty of
$25,996.00 within 30 days of this order.
·

71VJ'f)t4 P. /rJ ct;,d:fu-t

Thomas P. McCarth~
Administrative Law Judge

Distribution:
Jordana L. Greenwald, Esq., Office of the Solicitor, U.S. Department of Labor, 170 S.
Independence Mall West, Suite 630, Philadelphia, PA 19106-3306
Alexander Macia, Esq., Spilman, Thomas, & Battel, PLLC, 300 Kanawha Blvd. East, P.O. Box
273, Charleston, WV 25321-0273
/cp

32 FMSHRC Page 1316

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

September 13, 2010
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 2007-600
A.C. No. 46-08791-120481

v.
Docket No. WEVA 2008-247
A.C. No. 46-08791-130758
Sago Mine

WOLF RUN MINING COMPANY,
Respondent

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

Judge Feldman

These civil penalty proceedings concern Petitions for the Assessment of Civil Penalty
filed pursuant to section l IO(a) of the Federal Mine Safety and Health Act of 1977, as amended
("Mine Act"), 30 U.S.C. § 820(a), by the Secretary of Labor against the respondent. Wolf Run
Mining Company ("Wolf Run"). The petitions seek to impose a total civil penalty of
$148,400.00 for 15 violations of the Secretary's regulations governing underground coal mines
that allegedly occurred at WolfRun's Sago Mine. The cited violations were identified following
a Mine Safety and Health Administration {MSHA) investigation of the January 2, 2006,
Sago Mine disaster that resulted in twelve fatalities and one serious injury. The Secretary does
not allege that any of the cited violations in these proceedings contributed to the fatal mine
explosion.
This Decision concerns the adjudication of 104(d) Order No. 7100920 and 104(a)
Citation No. 7100919. Docket No. WEVA 2008-247 contains only 104(d) Order No. 7100920.
The civil penalty matter in WEVA 2007-600 initially contained fifteen citations and orders.
However, 104(d) Order No. 7100904 was bifurcated from WEVA 2007-600 and assigned to
Docket No. 2007-600-A. Order No. 7100904 is the subject of future litigation. Contained
among the remaining fourteen citations and orders in Docket No. WEVA 2007-600 is
104(a) Citation No. 7100919, a subject of this litigation.
32 FMSHRC Page 1317

Prior to the hearing, on July 15, 2009, and January 21, 2010, the parties filed Motions to
Approve Partial Settlement with respect to the remaining thirteen citations and orders in
WEVA 2007-600. The parties have agreed to a reduction in civil penalty from $133,900.00
to $71,800.00 for these thirteen citations and orders.
The settlement terms include modifying 104(d)(l) Order Nos. 7100907, 7100912,
7100916, 7100918, and 7458180 to 104(a) citations to reflect that the violative conditions were
not the result of an unwarrantable failure. The parties have agreed to vacate 104(d) Order
No. 7100911 because the cited condition has been merged with the conditions contained in
104(d) Order No. 7100909. Similarly, 104(d) Order No. 7100915 shall be vacated because the
cited condition has been merged with the conditions contained in 104(d) Order No. 7100914.
Finally, the parties have agreed to vacate 104(d) Order Nos. 7458182 and 7458183.
I have considered the representations and documentation submitted in the motions
for approval of partial settlement, and I conclude that the proffered partial settlement is
appropriate under the criteria set forth in Section 1 IO(i) of the Mine Act. 30 U.S.C. § 820(i).
Consequently, the parties' settlement terms shall be approved and incorporated in this Decision.
The hearing with regard to 104(a) Citation No. 7100919 and 104(d)(l) Order
No. 7100920 was conducted on February 2 and February 3, 2010, in Clarksburg, West Virginia.
The Secretary proposes a total civil penalty of $14,500.00 for the two cited violations. The
citation and order concern a mine operator's responsibility to notify MSHA and mine rescue
teams immediately after an accident. The parties filed simultaneous post-hearing briefs and
replies that have been considered in the disposition of these matters.
I. Backa=round
The Sago Mine, operated by Wolf Run, is an underground coal mine located in
Upshur County, West Virginia. International Coal Group, Inc., (ICG) is the parent company of
Wolf Run Mining Company. The contested citation and order concern WolfRun's alleged
violations of the reporting requirements in 30 C.F.R. § 50.10 and 30 C.F.R. § 75.1502(a).
The subject citation and order were issued because ofWolfRun's delay in notifying the
authorities that an underground mine explosion had occurred. Under applicable regulations and
the mine emergency evacuation plan, Wolf Run was required to "immediately" notify MSHA,
the West Virginia Office of Miners Health Safety and Training (WVOMHST) and the Barbour
County Mine Rescue team that an accident had occurred. Federal and state authorities exercise
final authority over the implementation of a rescue plan at an accident scene.
At approximately 6:26 a.m. on Monday, January 2, 2006, a methane explosion
occurred in a sealed area of the mine known as the 2nd Left Mains or the 2 North Mains area.
The explosion and its aftermath occurred during the national observance of the New Years Day
holiday. There were 29 miners underground at the time of the explosion. Most of these miners
were members of two continuous miner section crews, each consisting of twelve members.

32 FMSHRC Page 1318

The crews worked in the 1st Left and znd Left face areas. When the explosion occurred,
the 1st Left crew had not yet reached the face and managed to evacuate without serious injury.
The members of the znd Left crew, who were further inby, unsuccessfully attempted to evacuate
before barricading themselves in the 200 Left face area.
Several minutes after the explosion, at approximately 6:36 a.m., Wolf Run management
personnel located on the surface received a phone call from an underground foreman of
the 1st Left crew who had experienced the force of the explosion. The foreman informed them
that his crew had survived a significant underground accident. Approximately 15 minutes
thereafter, four members of mine management went underground to assist in the evacuation
of miners and to determine the nature and extent of the accident. Sometime between 7:15 a.m.
and 7:23 a.m., management personnel communicated from underground to the surface that the
2"d Left crew could not be accounted for. At that time, the Wolf Run officials used an
underground mine phone that had been patched into the home telephone of John B. Stemple, Jr.,
the company's Assistant Director of Safety and Employee Development, to advise Stemple to
provide notification to the authorities, and to implement the company's rescue program that
relied on the Barbour County Mine Rescue.
Instead of immediately attempting to notify the authorities, between 7:24 and 7 :28 a.m.
Stemple left messages on the home telephone answering machines of several members of the
company's upper management. General Manager Charles Dunbar returned Stemple's call at
7:34 a.m. at which time Stemple informed Dunbar of the explosion. Stemple also managed to
have his immediate supervisor, Harrison Tyrone (Ty} Coleman, ICG's Manager of Safety for
West Virginia and Maryland, informed of the explosion. Coleman directed Stemple to activate
the mine rescue plan shortly after 7:40 a.m.
At 7:46 a.m., Stemple left a message on the home answering machine of an official of
WVOMHST. The information provided by Stemple shortly after the accident reflects Stemple's
initial attempt to _contact MSHA occurred at approximately 7:50 a.m. when he left a phone
message at the home of an MSHA supervisor. Stemple initially unsuccessfully attempted to
contact a Barbour County Mine Rescue team member at his home at approximately 8:04 a.m.
Stemple ultimately successfully contacted an MSHA official at his home at which time a 103(k)
order was verbally issued on the telephone at 8:32 a.m. prohibiting anyone from entering the
mine. Generally speaking, secti_on 103(k) of the mine act authorizes MSHA representatives to
issue such orders deemed appropriate to insure the safety of persons in a coal mine.
30 u.s.c. § 957(k).
MSHA, the Barbour County Mine Rescue Team, and WVOMHST received actual notice
of the explosion at approximately 8:30 a.m. ~v1embers of these organizations arrived at the
Sago Mine betvveen 10:00 a.m. and 10:30 a. m. The mine rescue team was not able to go
underground until 5:30 p.m that evening because of dangerous concentrations of gases.
Rescue teams did not reach the 2nd Left face area until the following evening at approximately
11 :00 p.m. on January 3, 2006, at which time one survivor was found. There were 12 fatalities.

32 FMSHRC Page 1319

II. Statement of the Case
This case raises difficult and complex issues concerning the effect ofMSHA's exercise
of its 103(k) authority on a mine operator's compliance with its reporting responsibilities.
As discussed below, a management team went underground after the explosion to assist the
evacuation and to assess what had happened. The management team advised Stemple to
implement mine rescue at approximately 7:23 a.m. However, Stemple was reticent to contact
MSHA without the approval of his immediate supervisor because he believed a 103(k)
withdrawal order would be issued immediately. Stemple responded to the request for mine
rescue by attempting to contact the company's upper management instead of notifying the
authorities. Stemple did not attempt to notify MSHA until 7:50 a.m. He attempted to notify the
mine rescue team shortly thereafter. The delay from 7:23 a.m. until 7:50 a.m. constitutes a
violation of WolfRun's obligation to timely report accidents. Consequently, the citation and
order concerning WolfRun's alleged reporting violations shall be affirmed.
The Secretary attributes WolfRun's delay in implementing its mine rescue plan to an
unwarrantable failure. The Secretary has failed to demonstrate the requisite unjustified or
aggravated conduct to support an unwarrantable failure due to the significant mitigating
circumstances that arose out of the particular circumstances of this case.

ill. Findin&s of Fact
a. Immediate Aftermath of the Explosion
The material facts are essentially undisputed and have been stipulated by the parties.
At approximately 6:26 a.m. on January 2, 2006, an explosion occurred in a recently sealed and
abandoned area inby the 2 North Mains seals that destroyed all ten of the seals used to separate
that area from the active portion of the mine. At that time, the mine was operating two
continuous miner sections, 1st Left and 2nd Left. At the time of the explosion, approximately
29 miners were underground. The twelve member 2nd Left crew boarded a mantrip entering the
mine through the track entry at approximately 6:00 a.m. and had reached the 2nd Left face
working section at the time of the explosion. (Gov. Ex. 5-A). The twelve member 1st Left crew
accompanied by a pumper, a belt cleaner and a mine examiner, entered the mine via a mantrip
shortly thereafter, at approximately 6:05 a.m., but this crew was still in the mantrip at the 1st Left
switch and had not yet arrived at the 1st Left working face. (Gov. Ex. 5-A). A preshift examiner
who had entered the mine earlier in the morning remained underground.
At approximately 6:26 a.m., on the surface, dispatcher William Chisolm was speaking
on the telephone with Mine Superintendent Jeffrey Toler, who was located in a building next to
the dispatcher's office, when a flash of iightning and loud thunder occurred. (Joint Stip. 75).
Chisolm told Toler that the mine's Atmospheric Monitoring System (AMS), that
monitors carbon monoxide (CO), was lost and that the belts were down. (Joint Stip. 77).
CO is a byproduct of fire and explosion. Data from the AMS system reflect that it alarmed
32 FMSHRC Page 1320

at 6:31 :31 a.m. (Joint Stip. 64). The investigation determined the system alarmed
at 6:26:35 a.m. because the clock on the AMS was four minutes and 56 seconds fast.
(Joint Stip. 65).
Toler initially thought that lightning may have affected the fuses for the AMS system.
(Joint Stip. 80). Toler told Chisolm to radio the 1st Left and 2nd Left crew to ask them to check
all CO sensors that were alarming to determine the problem. (Joint Stip. 79). Chisolm also
spoke to Maintenance Superintendent Denver Wilfong on the phone. Wilfong told Chisolm that
communications on the AMS had been lost. Wilfong also thought that fuses had blown.
(Joint Stip. 81, 82). Wilfong directed Maintenance Foreman Vernon Hofer, who was in
Wilfong's office at that time, to check the AMS and to replace any blown fuses. Hofer
proceeded to the dispatcher's office to obtain his cap light. Hofer checked the CO monitor
screen to see which belts were affected. He noted the Nos. 1 and 2 Belts were operating, but the
Nos. 3 and 4 Belts had lost power. (Joint Stip. 83, 84).
Meanwhile underground, at approximately 6:26 a.m., pumper John Boni, who was in the
No. 3 entry at the 22 crosscut, felt a rush of air he attributed to a small pillar fall. (Joint Stip. 56,
67; Gov. Ex. 5-A). At approximately 6:32 a.m., belt cleaner Pat Boni noticed dust moving in an
inby rather than an outby direction, the opposite direction air normally flowed. Boni telephoned
dispatcher Chisolm from the No. 4 Belt drive to ask what had happened. (Joint Stip. 85, 86).
At approximately 6:36 a.m., Owen Jones, Section Foreman for the 1st Left crew traveled
to a telephone after having experienced the force of the explosion and the resultant smoke, dust
and debris approximately ten minutes earlier. Jones communicated to Chisolm, Toler and
Wilfong, who were still speaking on the telephone on the surface, that ''we had a mine explosion
or something in here" and "get mine rescue here right now." (Stip. 92, 93; Tr. 89). Jones was
concerned about his brother who was a 2nd Left crew member.
After'spe~ng to Jones, Toler learned that the 1st Left crew was accounted for. Toler

was concerned that the 2nd Left crew had not responded. (Joint Stip. 96). Toler's uncle was
a member of the 2nd Left crew. Wilfong instructed Chisolm to continue trying to establish
communications with the 2nd Left crew. (Joint Stip. 98). Toler, Wilfong, Hofer and
Safety Director James (Al) Schoonover prepared to go underground to investigate. They boarded
a mantrip and proceeded underground. (Joint Stip. 101). Toler estimated that approximately
15 minutes had elapsed from the time of the explosion until they started underground.
(Joint Stip. 103).
At approximately 7:01 a.m., Chisolm called Stemple at his home to relate that Jones
had reported a big rush of air accompanied by dust and debris. (Tr. 522-23, 525). Sometime
between 7:01 and 7:15 a.m., while Chisolm was speaking to Stemple, Wilfong met the 1st Left
crew and learned that the 2nd Left crew had not been heard from. Wilfong called Chisolm from
underground. (Tr. 527). Wilfong told Chisolm to alert federal and state agencies, and told
Chisolm that mine rescue teams were needed immediately. (Joint Stip. 114).

32 FMSHRC Page 1321

Contemporaneous with hearing that Wilfong had requested notification of mine rescue
teams, while continuing to speak to Wilfong, Chisolm patched the land line phone into the mine
phone enabling Stemple to speak directly to Toler underground.· (Joint Stip. 115). Toler advised
Stemple that he was not sure what had happened, that they had found the 1st Left crew, and, that
they were helping to bring the crew members to the surface. Toler also told Stemple that there
had been no contact with the 2rnt Left crew. (Joint Stip. 116-18).
Toler further related to Stemple that the 1st Left crew stated that several intake stoppings
were out, and that there was smoke and dust in the air as they traveled along the primary intake
escapeway. (Joint Stip. 117). Stemple told Toler that he needed to re-establish ventilation
as deep into the mine as possible to prevent a shortage of fresh air at the 2nd Left section.
(Joint Stip. 119). Toler testified that his conversation with Stemple began at approximately 7:15
a.m. (Tr. 451). Stemple testified that the telephone conversation ended at 7:23 a.m. (Tr. 572).
Sometime between 7:15 and 7:23 a.m. Toler told Stemple to contact mine rescue teams. (Joint
Stip. 120 ). Stemple told Chisolm to continue to try to establish contact with the 2nd Left crew
and that he would take care of notifying the parties who needed to be notified. (Tr. 526-27).
Toler instructed Wilfong to assist the 1st Left crew to the surface while he, Schoonover
and Jones remained underground. (Joint Stip. 121 ). One I51 Left crew member had a prosthetic
leg. (Tr. 106). Hofer operated a mantrip to transport the !51 Left crew, pumper John Boni,
and Wilfong to the surface. The men arrived on the surface at approximately 7:30 a.m.
(Joint Stip. 122).
Jones met Toler and Schoonover at the mine phone at the intersection of the No. 25
crosscut at the No. 4 belt entry. (Joint Stip. 123). Jones insisted on remaining underground due
to his concern for his brother's safety. Toler instructed Jones to remain at the phone because
Jones did not have a hard hat, while he and Schoonover traveled inby to assess the damage.
(Joint Stip. 124). Toler and Schoonover observed multiple blown out stoppings from the intake
entry towards the track entry. (Joint Stip. 125-27).
Toler and Schoonover decided to withdraw because they did not have CO detectors and
atmospheric conditions were uncertain due to multiple damaged stoppings. (Joint Stip. 127).
They traveled outby to the intersection of the No. 41 crosscut and No. 4 belt entry where another
mine phone was located. Toler called to the surface and instructed Wilfong and Hofer to bring
into the mine curtains, nails, boards, saws, all available detectors, and a hard hat for Jones.
(Joint Stip. 127-28).
Toler and Schoonover then walked further outby joining Jones who was waiting at the
phone location at the i'~o. 25 crosscut and No. 4 belt entry where they waited for Wilfi.mg and
Hofer to return with supplies. (Joint Stip. 129). Wilfong and Hofer disconnected the mine
power before reentering the mine. (Joint Stip. 130). After gathering supplies, Wilfong and
Hofer proceeded inby meeting Toler, Schoonover and Jones. (Joint Stip. 131 ). After installing
check curtains across damaged stoppings at the No. 32 crosscut between the Nos. 6 and 7 entries

32 FMSHRC Page 1322

on the intake side, the five men boarded a mantrip and rode inby to the No. 42 crosscut.
(Joint Stip. 132-33). The CO detectors carried by Toler and Hofer started to alann between
crosscut Nos. 42 and 43. (Joint Stip. 134, 136). Concerned about another explosion, the men
disconnected the mantrip batteries and unloaded the supplies at the No. 42 crosscut and
the No. 4 belt. (Joint Stip. 137-38). The five men then started to repair stoppings between
the No. 6 and 7 entries as they traveled inby. (Joint Stip. 139).
The five men continued to repair stoppings advancing as far as the No. 58 crosscut.
(Joint Stip. 142, 149). However, the density of the smoke prevented them from hanging
additional curtains. (Joint Stip. 149). Toler, Wilfong and Schoonover exited the mine at
approximately 10:35 a.m., unaware that a 103(k) order had been verbally issued by MSHA
supervisor James Satterfield at 8:32 a.m. requiring all personnel to evacuate the mine.
(Joint Stip. 148, 150). The exact time Jones exited the mine is unclear. All efforts to contact the
2nd Left crew had failed. (Joint Stip. 151).
b. Stemple's Efforts to Reach
Federal. State and Rescue Personnel
After his conversation with Toler that ended at approximately 7:23 a.m., Stemple began
attempting to contact the company's upper management. (Joint Stip. 152). Immediately after his
conversation with Toler, Stemple phoned purchasing manager Jerry Waters at the company's
division office at 7:24 a.m. to obtain the phone numbers of mine manager Raymond Coleman,
General Manager Chuck Dunbar, and Stemple's supervisor Harrison Tyrone (Ty) Coleman,
ICG's Manager of Safety for West Virginia and Maryland, Raymond Coleman's brother.
(Tr. 534). Between 7:24 and 7:28 a.m. Stemple left messages on these three individuals'
phones. (Tr. 534-35). Dunbar returned Stemple's call at approximately 7:34 a.m. at which time
Stemple informed him about the accident at the mine. (Tr. 537). Dunbar's telephone
conversation.with Stemple ended at approximately 7:40 a.m. (Tr. 537-38).
Stemple was determined to contact Ty Coleman who was his "boss." {Tr. 534).
The company's division office is located approximately one mile from Ty Coleman's house.
{Tr. 545). Stemple testified that Waters, who was aware of the explosion since 7:24 a.m., went
to Ty Coleman's home and informed him of the accident. Stemple testified that "Jerry [Waters]
got back to me" sometime "previous to 8:20" and informed him that he "got Ty out of bed and
informed Ty of what was going on." {Tr. 545). Although the record does not reflect when
Waters initially advised Ty Coleman of the explosion, the parties have stipulated that sometime
after Stemple's conversation with Dunbar ended at 7:40 a.m., Ty Coleman called Stemple and
told him to activc.tc the mine rescue teams and to put them on standby. (Joint Stip. 153, 155).
Stemple's initial attempt to notify MSHA is in dispute. Although Ty Coleman did not
advise Stemple to notify the authorities until sometime after 7:40 a.m., Stemple testified that
he initially attempted to notify MSHA by calling the Bridgeport field office at approximately
7:30 a.m. {Tr. 536-37). There was no answer to his phone call and Stemple did not leave a

32 FMSHRC Page 1323

message. (Tr. 537). Stemple further testified that he next attempted to contact WVOMHST
authorities by calling their Fairmont office at 7:32 a.m. Once again, there was no answer and
Stemple did not leave a message. (Tr. 537). Stemple explained that he knew January 2, 2006,
was a national holiday and he did not want to leave a message on an office answering machine
that he believed would not be beard until the following day. (Tr. 539-40).
Stemple testified that while he was making phone calls to federal and state agencies,
WolfRun's upper management were calling him for status. (Tr. 537). Between 7:34 and
7:40 a.m. Stemple was on the phone with Dunbar. (Tr. 537-38). At 7:40 a.m. Stemple
reportedly called both the MSHA Bridgeport field office and the WVOMHST's Fairmont office
again to obtain alternative phone numbers from automated recordings. (Tr. 537-38). Again, the
phones were not answered, but the recordings provided names and numbers to call.
Stemple also began looking up in his local telephone book the phone numbers of federal
and state agency personnel he knew lived in his area. At 7:46 a.m. Stemple left a message on
John Collins' answering machine at his home. Collins is a WVOMHST official. Stemple's
message informed Collins that there had been a lightning strike at the mine; the mine had lost
power; the 1st Left crew felt a gush of air; there was dust, dirt and debris in the air; and that the
1st Left crew was accounted for but the 2nd Left crew was not. (Tr. 539-40).
After two unsuccessful attempts to reach personnel identified in the MSHA office
recordings, at 7:50 a.m., Stemple testified he successfully left a message on MSHA supervisor
Tenney's answering machine at his home. (Joint Stip. 156; Tr. 538-39; Gov. Ex. 7). Stemple
left Tenney the same message he had left Collins. (Tr. 538-39).
At 7:56 a.m., Collins returned Stemple's call at which time Stemple notified him of the
incident. (Gov. Ex. 7). After finally providing notification to both federal and state agencies,
Stemple called the Sago Mine to obtain the local mine rescue phone numbers. (Tr. 541).
At 8:04 a.m., Stemple called Jeff Rice of the Barbour County Mine Rescue Team at Rice's home.
(Tr. 541; Gov. Ex. 7). A woman who answered the phone advised Stemple that Rice was not
home, but she did not provide his whereabouts. (Tr. 542). Stemple called the local mine rescue
station at 8:05 a.m., but there was no answer and there was no answering machine in operation.
(Tr. 542, 544: Gov. Ex. 7).
At this point, Stemple testified he had been on the telephone continuously from 7 :30 a.m.
until 8:05 a.m. calling federal, state and mine rescue agencies and individuals, and he had only
managed to speak to Collins and a woman at Rice's home. (Tr. 542, 552; Gov. Ex. 7).
Bet'.vt?:.::n 8:05 and 8:25 a.m., Stemple reportedly called the MSHA Distiict J office in
Morgantown several times to obtain other phone mtmbers to call from the offic~'s recording
system. Stempie left three more messages on the answering machines ofMSHA District
Manager Kevin Stricklin, and MSHA Assistant District Managers Carol Mosely and
William Ponceroff (Tr. 544-45).

32 FMSHRC Page 1324

Having not received a response from Tenney, at 8:28 a.m., after attempts to reach
two individuals named "James Satterfield" who were listed in Stemple's local telephone book,
Stemple reached MSHA supervisor James Satterfield at home. After receiving the information
from Stemple, at 8:32 a.m., Satterfield issued a verbal 103(k) order over the phone requiring
the withdrawal of all personnel from the mine. {Tr. 545-46). Specifically, Satterfield
instructed Stemple that ''no one is to enter the mine or do any work at the mine from 8:32 on."
(Joint Stip. 147).
Immediately after Stemple spoke to Satterfield, Stemple called the Sago Mine to advise
that a 103(k) order had been issued and to request additional phone numbers for other rescue
team personnel. (Tr. 546-48). Stemple successfully reached Chris Height, Vice-President of the
Barbour County Mine Rescue Association at 8:37 a.m. (Tr. 549; Joint Stip. 167).
Stemple related that he was continuously on the telephone, either making or receiving
calls, between 7:01 a.m. and 10:40 a.m. He estimated that he had made or received 48 phone
calls during this period. {Tr. 552). At the time of his last phone call, when he called the
Sago Mine at 10:40 a.m. for an update, the mine rescue teams had arrived but could not enter the
mine without MSHA approval due to the 103(k) order and the atmospheric conditions existing in
the mine. (Tr. 559, 568-69).
The Secretary, relying on information Stemple provided shortly after the accident,
contends that Stemple's initial attempt to notify MSHA occurred at 7:50 am. when Stemple left
a message on MSHA supervisor Kenneth Tenney's answering machine. The Secretary's
assertion is consistent with Stemple's initial documented 7:46 a.m. telephone message for
WVOMHST's John Collins. Both the 7:46 a.m. and 7:50 a.m. telephone messages were left by
Stemple after Ty Coleman advised Stemple sometime after 7:40 a.m. to activate mine rescue.
Thus, the evidence does not support Stemple's undocumented claim that he attempted to contact
MSHA's Bridgeport field office as early as 7:30 a.m.
MSHA personnel first arrived at the Sago Mine shortly before 10:30 a.m. (Joint Stip.
166). Height assembled the Barbour County team members at their Volga, West Virginia station
where they prepared their equipment and departed for the mine at approximately 10:30 a.m.
(Joint Stip. 169). Several other mine rescue teams were alerted and arrived at the mine after the
Barbour County team.
MSHA and WVOMHST exercised final authority over the rescue plan. (Joint Stip. 172).
Monitoring of the mine atmosphere was commenced and continued throughout the day.
Air quality measurements reflected a dovHlward trend in the levels of dangerous gases.
(Joint Stip. i 73-74). At 5 :25 p.m. on the day of the accident the first mine re:;cue team entered
the mine through the fan house and proceeded inby exploring the mine. (Joint Stip. 175).
This was the first time MSHA permitted entry into the mine. (Joint Stip. 169).

32 FMSHRC Page 1325

The mine rescue teams reached the 2nd Left section the following evening sometime after
11:00 p.m. on January 3, 2006. (Joint Stip. 176). Eleven crew members had died near the face
area of the section. There was one survivor. (Joint Stip. 178). Another deceased victim was
located outby the 2nd Left section. (Joint Stip. 179).
IV. Further Fin dines and Conclusions
a. Citation No. 7100919
The thrust of the Secretary's case is that immediately after learning of the underground
mine explosion from Owen Jones at 6:36 a.m., Wolf Run management went underground to
assist or attempt to establish contact with survivors instead of notifying the authorities of the
accident. Consequently, 104(a) Citation No. 7100919 alleges that Wolf Run violated 30 C.F.R.
§ 50.10 because it failed to notify MSHA immediately following the explosion. The violation
was attributed to a high degree of negligence. The Secretary proposes a civil penalty of
$1,500.00 for Citation No. 7100919. The citation states:
An explosion occurred at the Sago mine in the sealed area of the 2 North Mains
on January 2, 2006, at 6:26 a.m. MSHA was not immediately notified of the
explosion as required. According to testimony during the investigation, the 151
Left section foreman [Owen Jones], who was underground at the track switch at
49% crosscut at the time of the explosion made a call to the surface approximately
5 minutes after the explosion. He informed mine management, that we've had an
explosion in here" and "get mine rescue teams here now." According to
testimony the Director of Safety and Employee Development [John B. Stemple,
Jr.] initiated the notification to MSHA. His telephone call log, provided to
MSHA during the investigation, indicated that the first attempt to notify MSHA of
the explosion was made at 7:50 a.m. on January 2, 2006.
The violation is not marked "significant and substantial" only because, at the time
of the violation, 30 C.F.R. 50.10 was a regulation and not a standard and because
of a Court decision holding that only violations of mandatory standards can be
"significant and substantial." Otherwise, this violation is reasonably likely to be
(sic) cause a reasonably serious injury since failing to notify MSHA of emergency
accident events could delay important health and safety decisions affecting miners
at the mine.
(Gov. Ex. 1).

32 FMSHRC Page 1326

At the time of the accident 30 C.F.R. § 50.10 provided:
If an accident occurs, an operator shall immediately contact the MSHA District
Office having jurisdiction over its mine. If an operator cannot contact the
appropriate MSHA District Office, it shall immediately contact the MSHA
Headquarters Office in Arlington by telephone at (800) 746-1153.
Section 50.2(h)(5) of the regulations, 30 C.F.R. § 50.10, defines "accident" to include "an
unplanned ignition or explosion of gas or dust.,,
To establish the fact of the cited violation the Secretary must demonstrate: that an
accident occurred; the operative time when the mine operator had sufficient knowledge to
meaningfully report the material facts and circumstances surrounding the accident; and an
unreasonable delay of the mine operator's responsibility to "immediately" notify MSHA of the
accident.

i. Fact of the Violation
Obviously, a tragic explosion constituting a reportable accident occurred at approximately
6:26 a.m. Toler and Wilfong contend Owen Jones did not use the word "explosion" when he
called the surface at approximately 6:36 a.m. "right about 10 minutes" after the force of the
explosion blew Jones off of the mantrip. (Tr. 85, 448, 468; Joint Stip. 93). Rather, they claim
Jones only stated that something bad had occurred. Jones testified, consistent with the
information he provided during the investigation, that he told Chisolm and Toler that "we had a
mine explosion or something in here" and "get mine rescue here right now." (Tr. 87, 89).
Owen Jones' account of what he said during his initial phone call is entitled to great
weight because it is consistent with the information he provided to investigators shortly after
the explosion. Moreover, the testimony of Toler and Wilfong is self-serving.
However, the fact that WolfRun's management knew, or should have known, as early
as 6:36 a.m. that an explosion had occurred does not end the analysis. Commission case law,
as well as the language of section 103(k) of the Mine Act, recognize that the propriety of actions
to be taken immediately following a mine accident is best determined based on personal
on-the-scene knowledge of the particular circumstances and conditions at the accident site.
Consequently, in evaluating a mine operator's reporting obligations under section 50.10,
the Commission has acknowledged that mine operators must be accorded a degree of discretion
in investigating accidents prior to ;iotifying MSHA. The Commission has stated:
Section 50.10 therefore necessarily accords operators a reasonable opportunity
for investigation into an event prior to reporting to MSHA. Such internal
investigation, however, must be carried out by operators in good faith without

32 FMSHRC Page 1327

delay and in light of the regulation's command of prompt, vigorous action.
The immediateness ofan operator's notification under section 50. l 0 must be
evaluated on a case-by-case basis, taking into account the nature ofthe accident
and all relevant variables affecting reaction and reporting.

Consolidation Coal Company, 11FMSHRC1935, 1938 (Oct. 1989) (emphasis added).
Moreover, the language of section 103(k) manifests Congressional recognition that
MSHA's oversight of rescue and recovery efforts is best exercised after it has arrived at the mine
site and had the opportunity to observe and evaluate the circumstances and conditions that exist
at the accident scene. fu this regard, the Mine Act provides:
fu the event of any accident occurring in a coal or other mine, an authorized
representative ofthe Secretary, when present, may issue such orders as he deems
appropriate to insure the safety of any person in a coal or other mine, and the
operator ofsuch mine shall obtain the approval ofsuch representative in
consultation with appropriate State representatives, when feasible, of any plan to
recover any person in such mine or to recover the coal or other mine or return
affected areas of such mine to normal.

30 U.S.C. § 957(k). (Emphasis added).
Subsequent to the Sago Mine disaster, the Secretary has recognized policy issues raised
by the issuance of a verbal 103(k) withdrawal order issued before MSHA arrives at the scene
of a mine accident. See MSHA Program Policy Letter ("PPL") No. P09-V-Ol (August 12, 2009)
(the need of a uniform policy for responding to accident notification by issuance of a verbal
section 103(j) order until MSHA personnel arrive at the mine site at which time rescue activities
can be directed under the authority delegated in section 103(k)). 1 2 Thus, the exercise of section
103(k) authority prior to MSHA' s arrival at an accident site must be balanced with the possible
risk to victims caused by a withdrawal order issued without personal knowledge of the nature and
variables of the accident. That is why a mine operator's section 103(k) obligation to obtain
MSHA's prior approval of any ofits efforts to assist and/or recover accident victims is qualified
to apply "when feasible."

1

Although PPL No. P09-V-Ol was not admitted ir; evidence, it is a publicaliy :waih;oie
official record of the Secretary.
2

Section 103(j) of the Mine Act, 30 U.S.C. § 957(j), authorizes MSHA to verbally direct
operators to take specific actions in response to an accident without the complete control over
rescue and recovery operations delegated to MSHA under section 103(k).
32 FMSHRC Page 1328

Thus, judgment ofWolfRun's actions must be viewed in the context of"all relevant
variables" affecting its reaction and reporting, including its preoccupation with assisting victims
who were still underground. Toler, Wilfong, Schoonover and Hofer went underground at
approximately 6:45 a.m., approximately 15 minutes after the explosion, to determine the nature
and extent of the accident and to assist the evacuation. Toler and his associates would have been
precluded from entering the mine if, as the Secretary suggests, MSHA was notified at 6:36 a.m at
which time it is likely that a verbal 103(k) withdrawal order would have been issued.3 As it
turned out, mine rescue teams were unable to enter the mine until 5:25 p.m. in the evening.
Having not been precluded by MSHA from going underground, sometime between
6:45 and 7:00 a.m. Toler and his associates met the members of the 1st Left crew, including
Owen Jones, who had abandoned the mantrip and were traveling outby on foot in an effort to get
fresh air. Visibility was very poor. At that time, they learned of the trauma experienced by the
crew from the force of the explosion as well as the resultant dust and debris that was created.
They also observed some of the missing and damaged stoppings. Toler and Wilfong were
concerned for the 1st Left crew's safety. Toler directed Wilfong to assist in the evacuation.
Wilfong and the crew reached the surface at approximately 7:30 a.m. While the evacuation
efforts continued, Wolf Run made repeated attempts to establish communications with the
missing victims of the 200 Left crew.
After obtaining information from survivors, ensuring the safe evacuation of the
1st Left crew, observing the degree of damage to stoppings, and determining that the 2nd Left crew
could not be accounted for, Toler and Wilfong informed Chisolm and Stemple to notify MSHA
and mine rescue teams immediately during a telephone conference that ended at 7:23 a.m.
Thus, the urgency ofWolfRun's responsibility to notify MSHA and mine rescue started at
approximately 7 :23 a.m.
Although Stemple now asserts he initially attempted to telephone MSHA's Bridgeport
office at 7:30 a.m., on balance, the weight of the evidence reflects that Stemple initially
attempted to contact Dunbar and Ty Coleman, his superiors in upper management, to obtain their
approval before contacting MSHA despite the requests of Toler and Wilfong for implementation
of mine rescue. In this regard, Stemple apparently was reluctant to notify MSHA because, as he
told Toler,".. .ifwe call MSHA, they're going to issue a (k) order, and they'll expect you to
come out of the mines." {Tr. 45_2). Stemple did not obtain Ty Coleman's directive to activate
the mine rescue plans until sometime after 7:40 a.m. Stemple testified:
So I hung up with Jeff {Toler), and I called our division office, at 7:24. I hung up
the phone with Jeff (Toler) at 7:23, and .in ~ny notes I wrote down that I called the

3

Although the verbal 103(k) order was effective as of 8:32 a.m., after the mine was
evacuated with the assistance of Wilfong and Hofer at 7:30 a.m., the Secretary does not allege
that MSHA would have permitted Toler and his associates to go underground if MSHA had been
contacted at 6:36 a.m.

32 FMSHRC Page 1329

division office at 7:24. I realized that I didn't have Chuck Dunbar's home phone
number or cell phone number.
Chuck Dunbar is the general manger. I didn't have Ty Coleman's home phone
number or cell phone. He's my boss, who was the director of safety and employee
development. I didn't have Raymond Coleman's phone number or cell phone
number. Raymond was the mine manager at the mine.
So I called the division office and spoke to Jerry Waters, who is a purchasing
manager. And I believe Jerry was working that day. And I asked Jerry for those
three individuals' home phone numbers, cell phone numbers, any contact
information that he could give me for those three individuals.
When I hung up the phone from Jerry, my first attempt was with Chuck Dunbar,
at 7:25, I wrote down: 7:25 a.m, Chuck Dunbar. And I called up Chuck's home
phone number and ... I left a message that there had been a lightning strike at the
mine; we had lost power underground; the 1 Left crew had called out there was a
gush of air that went over the top of them, a lot of dust, dirt and debris was in the
air; they were all accounted for; they were on their way out of the mine; but we
have not been able to get a hold of the 2 Left crew at this time. I hung up the
phone.
Then I called Ty Coleman. I called him on his cell phone, he had no home phone
number, so I called his cell phone. I left Ty the exact same message.
Then at 7:20- I want to say 7:28, I called Raymond. I called Check at 7:24; I
called Ty, I think, 7:25; Raymond is 7:28. And [I] left the message on Raymond's
cell phone.
(Tr. 534-35).
Stemple's telephone call log, provided to investigators shortly after the accident,
indicates that his first attempt to notify MSHA of the explosion occurred at 7:50 a.m. on
January 2, 2006, when he left a message on Tenney's answering machine. (Gov. Ex. 7).
Stemple's contemporaneous telephone log, furnished to MSHA during the investigation,
is the best evidence.
The :1~1p;·mjmate 27 minute delay iT: 11v~i r::;ing MSHA, from 7;23 J..n::. until 7:50 a.m.,
constitutes<.: serio;_is v[olation of the requin~rncr:t in section 50.10 that acciden~s. including
explosions, must be ;·eported immediately. However, the Secretary has not designated this
reporting violation as significant and substantial (S&S) because of the Court decision in Cyprus
Emerald Resources Corp., 195 F.3d 42 (D.C. Cir 1999), rev'g Cyprus Emerald Resources Corp.,
20 FMSHRC 790 (Aug. 1998). Cyprus Emerald dealt with whether section 50.11 (b) of the

32 FMSHRC Page 1330

Secretary's regulations, governing the investigation and reporting of accidents, was a "mandatory
safety standard" that could be designated as S&S. The Court held that: "[s]ection 104{d) (of the
Mine Act] unambiguously authorizes a 'significant and substantial' violation finding for a
violation only of a mandatory health or safety standard." Id. at 44. Thus, the Court concluded
section 50.11 (b) was not a mandatory safety standard because it was promulgated by Congress
under the "Administration" provisions in Title V, section 508 of the Mine Act, rather than by a
section 101 rulemaking. 4 Although reporting standards may not be designated as S&S, it is clear
that the hazard created by the subject violation, that deprives MSHA of timely notice and
oversight of mine accidents, is serious in gravity.
The Secretary attributes a high degree of negligence to WolfRun's notification delay.
However, the Secretary's assertion that WolfRun's obligation to notify authorities began after
Owen Jones' initial telephone call approximately ten minutes after the 6:26 a.m. explosion has
been rejected because it ignores the nature of this accident that involved the evacuation of
survivors. Rather, the termination ofStemple's call with Toler at 7:23 a.m. provides the
beginning point for Wolf Run' s obligation to notify MSHA. Thus, the actionable delay was
approximately 25 minutes rather, than more than one hour as the Secretary argues.
Moreover, there are several other mitigating circumstances. The accident occurred in the
early morning hours on Monday, January 2, 2006, when the New Years Day holiday was
observed because January 1 was on a Sunday. Consequently, MSHA and WVOMHST offices
were closed at the time of the Sago Mine accident. In addition, WolfRun's management
officials were difficult to contact during this holiday period. The Secretary does not dispute that
officials were difficult to reach during the New Years Day holiday.
Finally, and most importantly, WolfRun's delay was not motivated by a desire or
reluctance to avoid notification. Rather, the delay is attributable to the fact that Wolf Run was
conflicted over its concern for evacuating survivors, its preoccupation with establishing contact
with the missing victims, and its responsibility to notify MSHA. In the final analysis, Wolf Run
was confronted with either notifying MSHA and subjecting itself to a violation of a 103(k) order,
or, violating the reporting provisions of section 50.10. Thus, WolfRun's actions constitute no
more than a moderate degree of negligence. Consequently, the $1,500.00 proposed by the
Secretary for 104(a) Citation No. 7100919 shall be reduced to $1,000.00.

4

Section 508 provides, "[t]he Secretary [of Labor], the Secretary of Health, Education,
and Welfare and the Panel are authorized to issue such regulations as each deems appropriate to
carry out any provision of this Act." 30 U.S.C. § 957.
32 FMSHRC Page 1331

b. Order No. 7100920
The mandatory safety standard in section 75.1502(a), 30 C.F.R. §75.1502(a), requires
each mine operator to adopt and follow an MSHA approved emergency evacuation and
firefighting program. 104(d)(l) Order No. 7100920 alleges that Wolf Run violated 30 C.F.R.
§ 75.1502(a) because it failed to comply with the mine's emergency evacuation and firefighting
program of instruction provision that mine rescue teams be contacted immediately in the
event of an emergency. (Gov. Ex. 6 at 12). The violation was designated as S&S in nature.
The violation also was attributed to a high degree of negligence that evidenced an unwarrantable
failure. The Secretary proposes a civil penalty of$13,000.00 for Order No. 7100920.
The citation states:
A (sic) explosion occurred at the Sago mine, I.D.46.08791 in the sealed area of
the No. 2 Mains on January 2, 2006, at 6:26 a.m. The Mine Emergency
Evacuation and Firefighting Program of Instruction approved on February 3, 2004
was not complied with. On page 12 of the plan under "Mine Rescue" it states "In
the event of a mine fire or explosion the Barbour County Mine Rescue team is to
be notified immediately at 457-2745." The Barbour County Mine Rescue team
was not immediately notified of the explosion. According to testimony during the
investigation, the 1st Left section foreman, who was underground at the track
switch a 49Yi crosscut at the time of the explosion made a call to the surface
approximately 5 minutes after the explosion. He informed the mine dispatcher,
and mine management that ''we've had a mine explosion in here" and "get mine
rescue team here now."
According to testimony, no attempt was made by those people informed by the
1st Left foreman to get a mine rescue team. According to testimony the Director
of Safety and Employee Development initiated the first attempt to contact the
Barbow County Mine Rescue team. His telephone call log, provided to MSHA
during the investigation, indicated that the first attempt to notify the rescue team
after the explosion was at 8:04 a.m. on January 2, 2006.
(Gov. Ex. 2).
i. Fact of the Violation
As discussed above, WolfRun's obligation to immediatelynotifyMSHA and mine
rescue teams began at 7:23 a.m., after Stemple's telephone conversation with Chisolm and Toler.
At that time, Wolf Run had ascertained the nature and extent of the emergency, and it had taken
measures to ensure the safe evacuation of victims. However, Stemple admits he did not make
any effort to contact rescue teams until 8:04 a.m. when Stemple phoned Jeffery Rice, a member
of the Barbour County Mine Rescue team, at his home. Stemple finally reached Chris Height,
Vice-President of the Barbour County Mine Rescue Association at 8:37 a.m. The approximate
40 minute delay from 7:23 until 8:04 a.m, constitutes a section 75.1502(a) violation of

32 FMSHRC Page 1332

WolfRun's emergency evacuation and firefighting program that requires immediate notification.
Stemple's apparent preoccupation with his attempts to notify federal and state agencies does not
absolve WolfRun's concurrent responsibility to notify mine rescue. 5

ii. S&S
With respect to the issue of S&S, as a general proposition, a violation is properly
designated as S&S, if, based on the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to by the violation will result in an injury or an
illness of a reasonably serious nature. Cement Division, National Gypsum, 3 FMSHRC at 825.
In Mathies Coal Co., 6 FMSHRC 1(Jan.1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard -- that is, a measure of danger to safety -contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to [by the violation] will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
6 FMSHRC at 3-4; see also Austin Power Inc., v. Secretary, 861 F .2d 99, 103-04 (5th Cir. 1988),
affg 9 FMSHRC 2015, 2021(Dec.1987) (approving Mathies criteria).
The hazard created by a failure to timely notify MSHA and rescue teams in the face of an
emergency is self evident. After the explosion, MSHA and WVOMHST exercised final
authority over the rescue plan. The fact that rescue teams were prevented from entering the mine
until 5:25 p.m. on January 2, 2006, because of dangerous concentrations of gases does not
diminish the importance of their prompt arrival. Rescue teams have the experience and
equipment to safoly attempt to recover victims of mine accidents. The presence of rescue teams
also minimizes the exposure of mine personnel who, as in this case, subordinate their personal
safety in an effort to save friends, colleagues or family members. In this regard, in their haste to
go underground, mine management entered the mine without turning off power and without
carrying gas detectors.

5

Under the applicable regulations, Wolf Run was required to immediately notify all
relevant authorities of the accident. hnplementation of mine rescue involves the coordinated
efforts of federal, state and mine rescue authorities. Thus, notification of one entity is, in effect,
notification of all. Even if Wolf Run is credited with notifying the authorities as of 7:50 a.m. (or
7:46 a.m. when Stemple initially left a telephone message for WVOMHST), such notification
was still untimely. Moreover, notification in this case is problematic as the initial contacts were
telephone messages rather than direct communications.
32 FMSHRC Page 1333

Here, Toler's attempt to repair stoppings was well intentioned and there is no evidence
that the effort to direct fresh air to the 2nd Left section was harmful. However, Ron Hixon, a
member of the rescue team that initially reached the 2nd Left victims, explained how rescue teams
proceed into a mine following an explosion. They airlock areas to prevent pushing methane over
an ignition source, or to prevent directing CO gases towards trapped victims. (Tr. 238).
Thus, as a general matter, it is reasonably likely that the existing hazards posed by an
underground mine emergency will be exacerbated by a delay in the arrival of rescue personnel.
It is also reasonably likely that this increased exposure to danger will result in serious or fatal
injuries of would be rescuers or the victims of an accident. Consequently, the section 75.1502(a)
violation was properly designated as S&S.
iii. Unwarrantable Failure
The remaining question of unwarrantable failure in this case raises difficult issues.
Generally speaking, an unwarrantable failure is evidenced by aggravated conduct. Emery Mining
Corp., 9 FMSHRC 1997 (Dec. 1987). I recognize the Secretary's concern for the safety of
would be rescuers who may expose themselves to extreme danger because of their desire to save
friends and family. I am also cognizant of the Jim Walter Resources mine tragedy noted
by the Secretary in which twelve miners who went into a mine to rescue one miner following
an explosion were killed by a secondary explosion. (Sec'y br. at 41-42). However, the
Jim Walter accident did not involve the evacuation of miners that were known to have survived
the explosion. Jim Walter Resources, Inc., 28 FMSHRC 579 (Aug. 2006).
Similar to the delay in notification ofMSHA, the Secretary attributes a high degree of
negligence to WolfRun's delay in notifying mine rescue. However, the Secretary's assertion that
Wolf Run's obligation to notify rescue teams began after Owen Jones' initial telephone call that
occurred at approximately ten minutes after the 6:26 a.m. explosion has been rejected because
Wolf Run had not yet determined the nature and extent of the accident. Rather, the termination
of Stemple's call with Toler at 7:23 a.m. provides the beginning point for WolfRun's obligation
to notify mine rescue. Thus, the actionable delay from 7:23 until 8:04 a.mis approximately 40
minutes rather than the approximate 1Yi hour delay from 6:36 to 8:04 a.m. alleged by the
Secretary.
As a threshold matter, it is easy to question the propriety ofWolfRun's conduct by
asking why it did not contact MSHA and mine rescue at 7:23 a.m. while Toler and his associates
continued their attempts to help victims underground. The simple answer is that they knew they
could not legally remain underground once MSHA was notified as exemplified by Satterfield's
8:32 a.m. verbal 103(k) order requiring a total withdrawal from the mine.

32 FMSHRC Page 1334

In this regard, Gary Marsh, a supply motorman, testified that Stemple told him that
morning "[t]hat once we notified MSHA that they would shut us down to where no one would
be allowed in the mines and we wouldn't be able to try to go in there and try to get our people."
(Tr. 142). As previously noted, Toler testified that Stemple told him: "You know if we call
MSHA, they're going to issue a (K) order, and they'll expect you to come out of the mines." (Tr.
452). Toler testified he replied: "Don't let that stop you from calling, because we're not going to
come out." (Tr. 452). Although Toler testified he told Stemple to call MSHA and mine rescue
teams anyway, it is clear that the prospect of the issuance of a 103(k) order in response to Wolf
Run's notification had a chilling effect on Stemple's reporting responsibilities. (Tr. 454). Toler
estimated this conversation occurred at 7:15 a.m. (Tr. 451). Stemple testified the conversation
ended at 7:23 a.m. (Tr. 572).
Thus, the Secretary alleges that Wolf Run intentionally delayed notifying MSHA and
rescuers immediately because they knew MSHA would immediately issue a 103(k) withdrawal
order that would prevent Toler and others from trying to reach the 2nd Left crew. (Sec'y br. at
40). The Secretary argues that such deliberate disregard of the requirements of the law is an
aggravating rather than a mitigating factor.
The Secretary's position is understandable from an enforcement perspective. The failure
to timely notify MSHA and rescue teams immediately after an accident is a serious violation.
However, notification violations are not per se unwarrantable. WolfRun's conduct must be
analyzed on a case-by-case basis based on what was known at the time without the benefit of
hindsight . In this case, unlike the Jim Walters accident, mine management knew that miners had
survived the explosion. Thus, management was focused on evacuating the 1st Left crew and
determining whether the 200 Left crew members could be helped.
While the Nacco defense may not be used to mitigate an unwarrantable failure, it
nevertheless is significant that only mine management personnel, rather than hourly employees,
went undergr'ound before rescue teams were contacted. Capitol Cement Corp., 21 FMSHRC
883, 893-95(Aug.1999), ajf'd, 2000 WL 1205389 (4th Cir. 2000) (Naaco defense unavailable
when conduct of supervisory personnel results in unwarrantable section 104(d) violations
regardless of whether that conduct exposes other miners to risk). Thus, subordinate hourly
employees were not put at risk by management's actions. Finally, Toler, Jones, Wilfong,
Schoonover and Hofer' s presence underground furthered the rescue efforts because they were
able to brief the rescue teams about underground conditions while the rescuers remained on the
surface until later that evening because of dangerous gases.
As noted, an unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining, 9 FMSHRC at 2001. Unwarrantable failure is characterized by such
conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of

32 FMSHRC Page 1335

reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-194
(Feb. 1991); see also Buck Creek Coal, 52 F.3d at 135-36 (approving the Commission's
unwarrantable failure test). All relevant factors must be viewed in the context of the factual
circumstances, and all material facts and circumstances must be examined to determine if a mine
operator's negligence is mitigated. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).
Here, the Secretary fails to distinguish between imprudent or ill-advised conduct, and
aggravated or unjustified conduct. WolfRun's delay was not motivated by a desire to avoid
notifying MSHA of the accident. Nor was it an attempt to alter an accident scene. Rather,
WolfRun's delay was caused by its preoccupation with determining the condition of its miners
who were underground at the time of the explosion.
Toler was concerned about the safety of his uncle who was a 2°ct Left crew member.
Jones was motivated by a concern for the well being of his brother, also a member of the
znct Left crew. Toler and his associates were also motivated by a concern for their colleagues.
The subordination of their personal safety in an attempt to save others instead of relinquishing
their ability to go underground by immediately calling MSHA, given the circumstances in this
case, is understandable, if not admirable. Their actions are not attributable to intentional
misconduct, or a manifestation of indifference. Their behavior manifested a conscious awareness
of an exigent situation rather than a reckless disregard of it. Simply put, it is obvious that the
facts surrounding their conduct mitigates their negligence. There was no unwarrantable failure.
Accordingly, 104(d)(l) Order No. 7100920 shall be modified to a 104(a) citation to
reflect that the violation was attributable to a moderate degree of negligence. In addition to mine
management's efforts to evacuate or locate colleagues, that included family members, the
difficulties of notification of an early morning accident that occurred on a federal holiday are
additional mitigating factors. In this regard, the Secretary does not dispute that the authorities
were difficult to contact during this holiday period.
The Secretary proposes a civil penalty of$13,000.00. I share the Secretary's concern that
mine operators must not be encouraged to delay notification of an accident because of a desire to
conduct their own rescue. However, I am troubled by the exercise ofMSHA's authority and
control, prior to its arrival at the mine, over the conduct of mine management personnel who
have personal knowledge of the conditions at the accident site. The strict exercise of such
authority may, as in the current case, discourage prompt notification. Depending on the
particular circumstances, mine operators must be permitted to take prudent action in the moments
following a mine accident that furthers the evacuation of victims or helps to determine their
location in the mine. Accordingly, the provisions of section 103(k) recognize that mine operators
must obtain MSHA's prior approval of any plan to recover accident victims "when feasible."
Although the Secretary emphasizes that Wolf Run has not been charged with violating the verbal
103(k) order, the prospect of its issuance had a chilling effect in this case. Thus, the prospect of
the issuance of a 103(k) order in this case is relevant and material.

32 FMSHRC Page 1336

The determination that Wolf Run's notification delay is not attributable to an
unwarrantable failure is based on the totality of the particular circumstances in this case and
should not be broadly construed. fu the final analysis, the goal is achieving the most effective
way to promote the health and safety of both rescuers and victims in the moments immediately
following an accident. There are no easy answers to this difficult dilemma.
Nevertheless, the delayed notification of mine rescue teams in violation of an approved
mine evacuation plan is a violation that is serious in gravity. Given the serious gravity, a civil
penalty of$10,000.00 shall be assessed for 104(a) Citation No. 7100920. This relatively small
reduction of the $13,000.00 proposed penalty balances the Secretary's concern over the prompt
reporting of accidents with the exigent mitigating circumstances that place the propriety of mine
management's actions in this case in the proper perspective.

ORDER
Consistent with this Decision, IT IS ORDERED that 104(a) Citation No. 7100919
in Docket No. WEVA 2007-600 IS AFFIRMED.

IT IS FURTHER ORDERED that Wolf Run Mining Company shall pay a civil penalty
of$1,000.00 in satisfaction of Citation No. 7100919.
IT IS FURTHER ORDERED that the parties' motions to approve partial settlement
ARE GRANTED. Consistent with the parties' settlement terms, IT IS ORDERED that
Wolf Run Mining Company shall pay a total civil penalty of $71,800.00 in satisfaction of the
remaining 13 citations and orders that are in issue in Docket No. WEVA 2007-600.

IT IS.FURTHER ORDERED that 104(d)(l) Order No. 7100920 in Docket No.
WEVA 2008-247 IS MODIFIED to a 104(a) citation to reflect that the cited violation was not
attributable to an unwarrantable failure.
IT IS FURTHER ORDERED that Wolf Run Mining Company shall pay a civil penalty
of$10,000.00 in satisfaction of Citation No. 7100920.

32 FMSHRC Page 1337

Consistent with the total civil penalty assessment of $11,000.00 for the two citations that
were adjudicated in these matters, as well as the parties' settlement terms, IT IS ORDERED that
Wolf Run Mining Company pay, within 45 days of the date of this Decision, a total civil penalty
of$82,800.00 in satisfaction of the 15 citations and orders that are the subject in these
proceedings.
IT IS FURTHER ORDERED that, upon receipt of timely payment, the civil penalty
proceedings in Docket Nos. WEVA 2007-600 and WEVA 2008-247 ARE DISMISSED.

Distribution:
Robert S. Wilson, Esq, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209

R. Henry Moore, Esq, Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty A venue,
Suite 1340, Pittsburgh, PA 15222
/rps

32 FMSHRC Page 1338

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N.W.,SUITE 9500
WASHINGTON, D.C. 20001
Telephone: (202) 577 6809
Facsimile: (202) 434-9949

September 14, 2010

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2009-444-M
A.C. No. 29-02252-184671

v.
Khani Kl 00/Metso Crusher & Screen

KHANI COMPANY, INC.,
Respondent
Appearances:

Ronald M. Mesa, Mine Safety and Health Administration, Dallas, Texas for Petitioner
Naser Alikhani, pro se, Albuquerque, New Mexico

DECISION
Before: Judge William Moran
This case is before the Court upon a petition for civil penalty filed by the Secretary of
Labor, pursuant fo Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (the "Mine Act" or "Act"). The Petition cited Respondent for four (4) alleged
violations of the Act, with a proposed penalty assessment of$100.00 for each citation, resulting
in a $400.00 total proposed assessment. At a point several weeks before the hearing, the
Secretary offered to vacate Citation No. 6465534. A hearing ensued on August 3, 2010 in
Albuquerque, New Mexico and as a preliminary matter, that citation, No. 6465534, was vacated.
Tr. 16.
While the Secretary established prima facie cases for each of the three remaining
citations, the central controversy in this matter involves whether there was jurisdiction under the
Mine Act at the time of the inspection which resulted in the issued citations. Therefore, although
the citations themselves will be discussed, briefly, the decision will focus upon the jurisdictional
question. For the reasons which follow, the Court finds that the violations were established, that
jurisdiction existed at the time of the inspection, and that a civil penalty in the sum of $200.00
(two-hundred dollars) is appropriate.

32 FMSHRC Page 1339

Findings of Fact
The parties entered into a number of stipulations but, understandably from the
Respondent's perspective, the Respondent did not agree with the Petitioner's proposed
stipulation that Respondent's Metso Crusher and screen operation constituted mining and selling
of materials, nor that such activity affected interstate commerce.
MSHA Inspector Lloyd Ferran testified the Respondent's Metso Crusher and screen is
located in Deming, New.Mexico and that he performed an inspection there on April 2, 2009. Tr.
28, 30, 48. Ferran described it as a sand and gravel operation. Respondent's witness, Mr.
Hubble, the superintendent at the mine, agreed that was the nature of the operation. Tr. 147.
Upon arriving, the inspector met Mr. Hubble and there was also a miner's representative present.
Ferran stated that when he arrived at the operation, it was operating. He observed "a couple of
loaders" and "stockpiles." He also observed dust "coming out of the conveyor belts" and he
stated that the conveyor belts were running, that is, they were moving, and he observed materials
stockpiled. Tr. 36, 43. Another indication the operation was active, Ferran heard noise and took
sound level readings. Tr. 38-39. His inspection included examining a track hoe, a Cat 958, a
water tank truck, and the crusher or screen plant. Tr. 41.
Inspector Ferran issued a citation on a front end loader that did not have a ROPS (i.e.
"rollover protection structure") label reflecting the make and model number for which it was
designed. The citation alleged a violation of Section 56.14130(c)(3). Tr. 50, Citation 6465532.
As it turned out, the ROPS was the correct model for the loader, but the wrong ROPS label had
been affixed, an error attributable to the supplier, not the mine operator. Subsequently, the
manufacturer sent a letter to MSHA explaining that the wrong label had been attached to the
ROPS. Tr. 55, 130. The violation was abated by affixing the correct label. Tr. 58. MSHA
ultimately decided there was no negligence on the Respondent's part for the violation and it was
deemed a "paper violation." A $25.00 (twenty-five dollar) penalty is appropriate for this
violation.
Ferran also issued a citation for an alleged parking brake violation. Tr. 61, Citation No.
6465533. That citation involved the same piece of equipment cited for the ROPS issue, as
described above. Tr. 66. The parking brake for the front-end loader in issue was not able to hold
the vehicle on the grade. Tr. 65. The citation referenced Section 56.14101(a)(2), which provision
requires a parking brake capable of stopping and holding the equipment on the maximum grade it
travels. The inspector considered an injury unlikely to occur because the service brake did work.
Yet, he believed that if such an injury did occur it would be fatal. Tr. 66, 69. Also, regarding the
parking brake violation, although the Respondent suggested that the person operating the loader
may not have fully engaged the parking brake during the test of its effectiveness, the critical point
is that the operator did not ask that the test be repeated after the initial failure. Tr. 103. 1

1

MSHA called, as its second witness, Mr. Benny Lara, a supervisor from its Albuquerque
filed office. Mr. Lara issues job assignments to the inspectors who work out of that field office.
32 FMSHRC Page 1340

The Court agrees that the $100.00 (one-hundred dollar) penalty proposed byMSHA is
appropriate.
Ferran' s third citation cited Section 56. 18010, for the lack of an individual holding a
current first-aid training certificate. The Respondent was unable to provide any documentation to
show that it had an employee with such current training. Tr. 73. Ferran accepted the
Respondent's assertion that it had an employee with such training but that the certification had
expired. Because he accepted that such individual had been so trained, but not .re-certified, the
inspector concluded that the gravity should be marked as 'unlikely.' Tr. 74. No defense was
presented to the certification issue. The Court concludes a $75.00 (seventy-five dollar) penalty
is appropriate. 2
Through his questioning of Mr. Ferran, the Respondent tried to establish that while they
were planning to re-open the pit, it was not yet open at the time of the inspection. Tr. 85. These
questions were designed to show that the operation was in the process of setting up, as opposed
to actually producing mined material. Tr. 97, 106, 128.
For its part, the Respondent provided testimony through Mr. Tom Hubble, who, as
previously mentioned, is the mine's superintendent. Apart from its recent resumption of mining
activities, Mr. Hubble stated that the site had, during various periods of time, prior mining
activity, as evidenced by numerous old waste piles that remained there. Tr. 145. Hubble testified
that they were getting the site ready to go into production at the time of the inspection. Tr. 146147. The activity going on at the time of the inspection, as Mr. Hubble described it, was
"reclaim work," that is, activity necessary to perform in order to have the site ready to resume
production. Tr. 149. Apart from the dispute as to whether there was mined material running on
the site's conveyor belts, Hubble agreed that, as part of getting ready to resume mining activity,

Tr. 111-113., Although the Respondent questioned the circumstances leading to Mr. Ferran's
presence at the mine on the day of the inspection, the Court explained that the outcome of this
case would not depend upon any issue of whether Mr. Ferran had been properly assigned to do
the inspection in this matter. Tr. 114. Mr. Lara did identify a March 2, 2009 document identified
as a "Notification of Mine Opening or Closing," which document was signed by Mr. Alikhani.
Tr. 115. Lara also testified that he attempted to have MSHA's Education Field Service ("EFS")
visit the facility to determine if any hazards were present and to see if their paperwork was
complete. Tr. 117-118. No citations are issued when there is an EFS visit. Such a visit did
occur on March 13, 2009, when MSHA's Mr. Steve Bowroznik came to the facility. Tr. 119120. The inspection in issue occurred during the first week of April which was subsequent to the
EFS visit Although the Respondent also requested a compliance assistance visit, or "CAV ,"
MSHA advised that it did not have the manpower to provide that and that the EFS visit occurred
instead. Tr. 124. Mr. Lara did agree that, at least at the time of the EFS visit, the Respondent
was setting up the operation, and not producing mined product. Tr. 128.
2

·subsequently, all the citations in this proceeding were abated and terminated. Tr. 132.
32 FMSHRC Page 1341

he had to run the conveyor belt, in order to ensure that it was operating properly. Tr. 148. Part of
that testing process does involve having material on the belt while it is running and he agreed that
such activity had occurred at some time prior to the inspector's arrival. Tr. 148. Mr. Hubble
could not state an exact date, but he believed that the operation actually resumed production
about 12 to13 days following the inspection in issue here. Tr. 152.

Discussion
As the Mine Act's coverage applies to mine site activities occurring prior to the

commencement of removing minerals from the ground, Khani Company is subject to that
Act for such pre-mining activities. Further, the Respondent's pre-mining activities come
within the United States Constitution's interstate commerce clause.
A. The Mine Act applies to activities prior to mineral removal, such as the set-up of
the mine.
The Respondent agreed that the heart of his dispute in this proceeding is that, while the
mine was getting ready to commence mining at its mine site, the Khani Kl 00 /Metso Crusher &
Screen, it had not actually started mining when the inspection in issue here took place. Tr. 133.
Because 'mining' itself, that is the removal of minerals from the earth, had not yet occurred at the
time of the inspection on April 2, 2009, Khani contends that there was no jurisdiction under the
Mine Act. Mr. Alikhani, President ofKhani Company, acting prose, did not testify, but
contended that as there was no scale present at the operation, and as the mine had not produced
anything that "affected commerce" at the time of the inspection, it could not be cited for mining
violations. Tr. 136
The Court agrees that "mining," in the sense of mineral removal, had not commenced at
the time ofthe,inspection.3 Instead, the Court finds that the mine was in the process of resuming
the removal of minerals from the earth. That is, the operation was preparing to resume
operations. However, while the removal of minerals did not actually resume until approximately
two weeks after the inspection, the law is quite clear, and it has long been well-established that
the Mine Act applies to such pre-mining activities.

3

Mr. Alikhani also contended that the inspection in issue stemmed from MSHA' s
intention to 'get him,' as pay back for its having to vacate some seven citations issued several
years ago against the operation. Tr. 140. Mr. Alikhani agreed that his contention was that
MSHA sought revenge for the embarrassment of having to withdraw those citations and therefore
that the agency had an improper motive in conducting the inspection in issue in this proceeding.
Tr. 141. While the Court accepts that Mr. Alikhani believes that the inspection here stemmed
from such improper purposes, there is no evidence to support that belief. Consequently, the
claim is rejected.
32 FMSHRC Page 1342

A few brief examples demonstrate the Mine Act's coverage to such "pre-mining" or
"set-up"activities. In Sec. v. Royal Cement Co., WEST 2007-844-M, (Dec. 2009), Judge
Manning was faced with the same situation as here; an operation which was preparing to restart
operations, but had not resumed the production of mineral removal. 4 There, the judge noted that
the "Mine Act's use of the language 'used in, or to be used in, the milling of ... minerals'
indicates that, for jurisdictional purposes, a 'mine' includes ... facilities where mineral mining
milling will be taldng place in the future." The judge further noted that the United States Court
of Appeals for the Third Circuit has referred to the 'to be used' language as encompassing
"contemplated use." Id.• citing Lancashire Coal Co. v. Sec'y ofLabor, 968 F. 388 (3rd Cir.
1992). So too, in Sec'y ofLabor v. The Pit, WEST 94-97-M, 16 FMSHRC 2008 (Sept. 1994),
which also involved the inspection of a sand and gravel pit, administrative law judge Arthur
Amchan also relied upon the "to be used in" language employed in the definition of a mine under
the Act, to conclude that coverage applies even if mining has not yet commenced. The judge
noted that such a conclusion makes sense as well because the Act is intended to prevent injuries
and illnesses and that such protection logically applies whether employees are setting up
equipment or engaged in production. *2010.
Here, the Respondent's own witness conceded that the mine was preparing to resume
mining activities and that running equipment such as the front-end loader and the operation of
conveyor belts was part of that process. Certainly it is undeniable that the hazards associated
with those activities are present whether they occur during the mine's set-up for operations to
commence or during the actual process of mineral removal for its sale.

B. The Respondent's activities affect interstate commerce.
The second contention raised by Mr. Alikhani is the claim that the activity in question
"wasn't affecting commerce." Tr. 131. This issue too is not novel and it has been long resolved
that the measure of "interstate commerce" is far broader than the literal words would imply to
non-lawyers.'
Mr. Alik:hani concedes that the equipment at the site ''was transported from Arizona to
New Mexico," but as he did not purchase it in Arizona, he believes that interstate commerce did
not occur. Apart from the fact that purchases are not the determinative factor in assessing the
scope of interstate commerce, the Respondent does not grasp the breadth of the commerce
clause.
·
A few cases illustrate that Khani 's contention is without merit. In Sec'y ofLabor v.
Nicholson, 16 FMSHRC 1967, (September 1994), which case also involved a sand and gravel
4

In fact, the circumstances in Royal Cement were more removed from the resumption of
mining activities than those presented in this litigation, as the company only engaged in premining repairs but it never resumed mining. In contrast, here, Khani did resume mining about
two weeks after the inspection.
32 FMSHRC Page 1343

operation, Judge Weisberger addressed the claim that the activities there did not involve
interstate commerce. There, he noted that the Commission addressed the scope of the Commerce
Clause in Harless Towing Inc., 16 FMSHRC 683 (April 11, 1994). In Harless, the Commission
noted the long history of the broad construction ofthat clause, including the fact that even
commercial activity which is purely intrastate in character has been found to be within its ambit .
"where the activity, combined with like conduct by others similarly situated , affects commerce
among the states." To appreciate the breadth of the coverage of the clause, one need only tum to
Wickard v. Filburn, 317 U.S. 111 (1942) where the Supreme Court held that wheat grown solely
for consumption on the farm where it was grown still affects interstate commerce. As a closer
example, in United States v. Lake, 985 F.2d 265, 267-69, the Sixth Circuit held that a mine
operator who sold all his coal locally and purchased his mining supplies from a local dealer, still
engaged in interstate commerce. This decision, like Filburn, is based on the realization that such
small scale activities when considered with such similar activities by others, has a cumulative
impact on interstate commerce. Thus, the activity is analyzed, not from a microscopic view, but
rather from a telescopic one.
Accordingly, the Court finds that the activity in issue at Khani Company's operation
affects interstate commerce.
CIVIL PENALTY ASSESSMENT
The three citations are affirmed and,as set forth above, civil penalties are imposed for
each of three violations.

ORDER
Khani Company, Inc., Respondent, is ORDERED TO PAY the Secretary of Labor the sum of
$200.00 (two-hundred dollars) within 30 (thirty) days of the date of this decision. 5

w.

..
13~

-~-:

··._·:_. . . .

William B. Moran
Administrative Law Judge

5

Payment should be sent to the Mine Safety and Health Administration, P.O. Box 790390,
St Louis, MO 63179-0390.
32 FMSHRC Page 1344

Distribution:
Mr. Naser Alikhani, 102 Highway 66 East, Albuquerque, New Mexico 87123
Mr. Ronald M. Mesa, CLR, Mine Safety and Health Administration, 1100 Commerce Street,
Room 462, Dallas, TX 75242-0499.

32 FMSHRC Page 1345

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUEN.W., SUITE 9500
WASHINGTON, D.C. 20001 ·
Telephone: (202) 577-6809
Facsimile: 202-434-9949

September 14, 2010

DISCRIMINATION PROCEEDING

GERMAN ALAVEREZ,
Complainant

Docket No. VA 2010-266-DM
NE MD 2010-02
V.

LOUDOUN QUARRIES/DN of
CHANTILLY CRUSHED STONE and
CHANTILLY CRUSHED STONE,
Respondents

Loudoun Quarries Mine ID 44-00071
Chantilly Crushed Stone Mine ID 44-00024

ORDER OF DISMISSAL
Before: Judge William Moran
This case is before the Court upon a discrimination complaint filed with the Commission
pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, as amended,
30 U.S.C. § 815(c)(3) (the Mine Act). Mr. German Alvarez, the Complainant, filed his
complaint on ¥arch 9, 2010, alleging that he was terminated from Loudon Quarries-Div/
Chantilly Crushed Stone and Loudon Qrs-Div I Chantilly Crushed Stone ("Operators" or
"Respondents") on April 27, 2009 "in retaliation for reporting a broken seat in a dump truck to
an inspector from the Mine Safety and Health Administration." Complaint at 1. The
Complainant requested the following relief: "[r]einstatement to his former position; back pay
since [Complainant's] date of termination;
[i]nterest on all back pay awarded; ... costs related to the prosecution of [the] claim; ...
attorney's fees; ... [and] [a]ny other relief deemed appropriate by the Commission."
A hearing in this case commenced on July 29, 2010. The Complainant presented as the
first and, as matters turned out, the only witness in the proceeding. After a time, in the course of
his testimony about his employment at Respondent's mine, the Court inquired of Mr. Alvarez:
Judge Moran: "do you want to go back to work for these people, sir? Is that your hope?"

32 FMSHRC Page 1346

The witness [Mr. Alvarez]: ''No."
Counsel for the Complainant then stated, accurately, that the Complaint set forth, as noted
above, that documents and statements indicated that a return to work was part of the relief sought
by Mr. Alvarez. Tr. 65.
Perplexed by the Complainant's response in the negative, the Court posed the following
question to his counsel, "[I]f [the Court] were to find that [Mr. Alvarez] was discriminated
against, but he doesn't want to go back to work, wouldn't the damages end as of the time he
determines - - he's not entitled to damages after he says I don't want to work for them any more."
Tr.65.
Complainant's Counsel responded, "Agreed." Tr. 65.
Shortly thereafter in the proceedings, the Court returned to the issue of the relief
Mr. Alvarez was seeking, asking:

"Mr. Alvarez, you don't want to go back to work for these people, right?"
Mr. Alvarez responded: "I don't want to go back and work for them." Tr. 67.
The Court then asked of Mr. Alvarez: "Okay, when you were fired on April 28 oflast
year [2009], was there a point in time after the day you're fired when you said I don't want to go
back to work for them any more in your own mind? Do you understand my question?"
Mr. Alvarez responded, "Yes, I do." Tr. 68.
The Court continued, "Okay, was there a point when you said I don't want to go back to
work for them again?"

Mr. Alvarez: "I say that in my mind. I heard from them they don't want to see me any
more, so - - you know, why I think about going back to work in there. They told me they don't
want to see me in there. I don't want to step in this quarry." Tr. 68.
The Court inquired further, trying to ascertain the Complainant's position.
"Okay, I'm not trying to put words in your mouth, but I'm trying to understand this.
On April 28th you're fired, right?"
Mr. Alvarez: "Yes." Tr. 68.
The Court: "You're gone. You're not working there. The next day, did you still hope to
go back to work for them or did you not want to work for them any more after that?"
Mr. Alvarez: "No, I went to look somewhere else. No." Tr. 68.

32 FMSHRC Page 1347

The Court mquired further still, asking the Complainant: "If they had said to you that day
come back to work, would you say yes, fine; or would you say no, I don't want to work for you
[any] more."
Mr. Alvarez responded, "No, I don't want to work with them. No." Tr. 68-69.
Understandably, Complainant's Counsel was surprised by his client's testimony. Counsel
explained that in his conversations with the Complainant, Mr. Alvarez had expressed that he was
seeking to return to work at the Respondents' business.
Because the Complainant's command of English was less than average, as it is not his
native language, the Court inquired yet again to be sure of the Complainant's stance.
The Court: "Do you understand, Mr.Alvarez, you've told me that as of the day- - let's be
more reasonable - - say the day after you're fired, my understanding is that you never wanted to
go back to work for these people after that, even if they had offered you a job back?"
Mr. Alvarez: "No, I don't want to go back to work with them, no." Tr. 70.
The Court then inquired of Complainant's Counsel if Counsel agreed that, even if Mr.
Alvarez were to prevail in his discrimination claim, his damages would be zero. Counsel agreed
with that assessment by the Court, stating, "Right." Tr. 70.
Counsel for Respondents then moved for dismissal, to which Mr. Alvarez's Counsel
responded that he "couldn't expect [the] Court to award Mr. Alvarez a remedy that he is not
seeking.... If he's not seeking his job back, ... I have no good response to that. ... I can't deny
what [Mr. Alvarez] just told your Honor in open court .... It [had been Counsel's] understanding
going forward,that there was, in fact, relief sought, which was return to his job and damages up
until that date." Tr. 71. Complainant's Counsel also agreed with the Court's characterization
that, based on his testimony at the hearing, Mr. Alvarez understood the questions relating to his
employment with the Respondents and that he was unequivocal that he did not want to return to
work for them, at least as of the day following his firing. Tr. 71.
The Court then afforded the Complainant a final opportunity to speak on this issue upon
advising that it had no choice but to dismiss the case. Mr. Alvarez stated: "He know that I told
the Inspector investigator in my testimony that I don't want to come back to work with them. He
know that. It's in the tape and in the testimony." Tr. 72. The Court then explained to the
Complainant that, based upon his testimony, it had no choice but to dismiss the matter and it
asked whether he understood that meant he would lose his case. Mr. Alvarez responded, "Yes."
Tr. 72. The Court then summed up, again, the situation before it:
"The evidence here, based ... [on Mr. Alvarez's testimony] is that you don't want to go
32 FMSHRC Page 1348

back to work for this company ever, and that you did not want to go back to work once you were
fired on April 28, 2009. Is that correct, still?" Mr. Alvarez responded, "Yes." 1 Tr. 72-73.
The Court then announced that the proceeding was dismissed, advising that a formal
Order would follow.

Findings of Fact
As set forth above, the Complainant, German Alvarez, did file a complaint of
discrimination on March 9, 2010, alleging that he was terminated from Loudon Quarries-Div/
Chantilly Crushed Stone and Loudon Qrs-Div I Chantilly Crushed Stone ("Operators" or
''Respondents") on April 27, 2009 "in retaliation for reporting a broken seat in a dump truck to
an inspector from the Mine Safety and Health Administration." Complaint at 1. At that time the
Complainant requested the following relief: "[r ]einstatement to his former position; back pay
since [Complainant's] date of termination; [i]nterest on all back pay awarded; ... costs related to
the prosecution of [the] claim; ... attorney's fees; ... [and] [a]ny other relief deemed appropriate
by the Commission.
At the hearing, the Complainant, testifying as the first, (and in light of his testimony, the
only witness at the proceeding), stated that from the date of his discharge he would not have
returned to the Respondents' employment at any time thereafter. The effect of Complainant's
position is to preclude any damages, making his claim moot.

Discussion
Given the foregoing, the Court has no choice but to dismiss this action. In Sonney v.
Alamo Cement Co., 29 FMSHRC 310 (April 2007) ("Alamo"), Judge Feldman was faced with
the same situation, issuing a dismissal, as the Complainant there was "not seeking any tangible
relief such as lost pay or reinstatement." The judge noted that, in a section 105(c)(3) action, after
one has an opportunity for a hearing, an order is then issued, "based upon :findings of fact,
dismissing or sustaining the complainant's charges and, ifthe charges are sustained, granting
such relief as it deems appropriate, including, but not limited to, an order requiring the rehiring
or reinstatement of the miner to his former position with back pay and interest or such
remedy as may be appropriate." 30 U.S.C. § 815(c)(3). (emphasis added).
Judge Feldman noted that a case is moot when "it is impossible for the court to grant any
effectual relief whatever to a prevailing party."* 313, citing In re Kurtzman, 194 F.3d 54, 58 (2"d
Cir. 1999). The judge went on to observe that the Commission has spoken to the subjects of

1

At that point Mr. Alvarez's Counsel did inquire of his client, "[W]hy did you file the
complaint with the Mine Safety Act? Why did you file a legal matter and proceedings here?
What were you seeking?" Mr. Alvarez responded, "I'm not going to answer that question." Tr.
73.
32 FMSHRC Page 1349

declaratory relief and mootness in Mid-Continent Resources, Inc., where it stated:
The presence of a controversy must be measured· at the time the court acts.
It is not enough that there may have been a controversy when the action
was commenced if subsequent events have put an end to the controversy or
the opposing party disclaims the assertion of the countervailing rights.
A case is moot when the issues presented no longer are "live" or the parties
no longer have a legally cognizable interest in the outcome.

Alamo at *314, citing Mid-Continent Resources, Inc., 12 FMSHRC 949, 955 (May 1990).
In the present matter, as in Alamo, the Complainant is not seeking reinstatement and
recovery of monetary damages resulting from the alleged discrimination is not available, as Mr.
Alvarez was explicit and clear that he would not have returned to work with the Respondents
once he had been discharged.

ORDER
Based on the foregoing, the Court finds that the Complainant's allegations of
discrimination, as set forth in his Complaint, have been superceded by his testimony at the
hearing that, upon being discharged by the Respondents on April 27, 2009, he would not have
returned to the employment of the Respondents, even if offered reinstatement, from that date to
the present. Given the Complainant's stance, that no damages are sought by him, the case has
become moot. Accordingly, the Complaint of Discrimination is hereby DISMISSED.

William B. Moran
Administrative Law Judge

32 FMSHRC Page 1350

Distribution:
Jonathan Kopin, Esq., Kenneth J. Coughlan, Esq., 10 East Baltimore Street, Suite 901,
Baltimore, MD 21202 (for German Alveraz)
Bradford T. Hammock, Esq., Matthew F. Nieman, Esq., Jackson Lewis, LLP, 10701 Parkridge
Blvd., Suite 300, Reston, VA 20191

32 FMSHRC Page 1351

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
72119TH STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

September 17, 2010
PERFORMANCE COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 2010-1190-R
Order No. 4642503; 04/05/2010

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

Mine: Upper Big Branch Mine-South
Mine ID: 46-08436

ORDER GRANTING SECRETARY'S
MOTION FOR SUMMARY DECISION

This matter was initiated by Performance Coal Company ("Performance") in an effort to
gain modification of, or temporary relief from, a 103(k) order issued by the Secretary of Labor
("Secretary") at the Upper Big Branch Mine (the "mine"). The order set forth protocols for entry
into the mine for the accident investigation conducted by MSHA in cooperation with the West
Virginia Office of Miners' Health, Safety and Training ("OMHST"). Prior to the entry of the
order, Performance submitted suggested protocols for the investigation which were rejected by
both MSHA and OMHST. Performance subsequently filed an Emergency Application to
Modify, or Alternatively for Temporary Relief. The motion for temporary relief was denied on
July 7, 2010. Following the filing of additional motions, an order denying a request for an
expedited he~ng was entered on July 21, 2010. Shortly thereafter, on July 23, 2010, the
Secretary filed a motion for summary decision based upon the voluminous material already
contained in the file, including pleadings and affidavits from each party. On August 4, 2010,
Performance filed an opposition to the motion for summary decision alleging that material facts
are in dispute and, even if they are not, the Secretary is not entitled to summary decision as a
matter of law. The Secretary subsequently filed a reply brief. For reasons that follow, I
GRANT the Secretary's Motion for Summary Decision.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

a.

Statement of Undisputed Facts

1.

Between May 3 and May 20, 20 I 0, MSHA and Performance exchanged letters
discussing initial accident investigation protocol guidelines regarding destructive testing
32 FMSHRC Page 1352

and the subdivisions of the underground inspection team. Performance's Memorandum
of Points and Authorities in Support of Emergency Application to Modify, or
Alternatively for Temporary Relief from MSHA's Section 103(k) Order ("Mem. Supp.
of Application"), 3-4, Ex. 4 pp. 1-4.
2.

On May 28, 2010, Performance contacted MSHA by letter and highlighted its objections
to MSHA' s preliminary protocol guidelines, which Performance had gathered from
MSHA' s various letters and from verbal communications with Chief Accident
fuvestigator Norman G. Page. Id. at 4, Ex. 6.

3.

On June 8, 2010, MSHA responded to Performance by letter and stated that MSHA's

accident investigation team wanted to work with Performance as to what should be
included in the protocols. MSHA also stated that the protocols would be completed and
distributed to all parties before the start of the underground inspection. Id. at 4-5, Ex. 7.
4.

Also on June 8, 2010, Performance submitted a draft investigation protocol for MSHA's
review and approval. Id. at 5, Ex. 8. fu its letter accompanying the draft, Performance
stated "[w]e request your approval of this plan and, accordingly, the modification of the
103(k) Order at the appropriate time." Id. at Ex. 8 p. 1. Performance would have
limited the composition of each team underground to two representatives from MSHA,
two from OMHST, two from Performance, and one from the miners' representative.
Performance's draft stated that "[o]nly Team members may go underground," except for
occasional visits by officials from MSHA, OMHST, and Performance. Id. at Ex. 8 ifi! 1,

9.
5.

On June 15, 2010, MSHA rejected Performance's submitted protocol and noted its
deficiencies. Id. at 5, Ex. 10. That same day, OMHST similarly rejected Performance's
submitted protocol. Id. at Ex. 11.

6.

On June 24, 2010, MSHA provided Performance with a copy of its and OMHST's final
joint protocols. Id. at 5, Ex. 12 pp. 3-7. The cover letter that MSHA sent with the

protocols to Performance noted that MSHA had addressed some of Performance's
concerns raised at a June 23, 2010 meeting by modifying the language of the joint
protocols. Id. at Ex. 12 pp. 1-2. The modified provisions included those relating to
photography, destructive testing and dust sampling. Id.
7.

The joint protocols include provisions covering various investigative scenarios; of these
provisions, Performance has objected to particular provisions relating to photography,
dust sampling, mapping, and destructive testing. Id. at 5-6, Ex. 13.

8.

On June 25, 2010, MSHA modified the Section 103(k) order at the Upper Big Branch

Mine-South to reference the joint protocols, stating that the reason for the modification
was to "insure the safety of any person in the mine, including all accident investigation
team members." Id. at Ex. 15 p. 1. The joint protocols allow Performance to request
that certain photographs be taken; to view them underground and promptly receive
32 FMSHRC Page 1353

copies of them; to receive copies of maps; and to receive excess material from dust
samples whenever it is possible. Id. at 6., Ex. 12 pp. 5-6, Ex. 15.
9.

From the time of the accident until some time in June, 2010, MSHA often detected
potentially hazardous levels of carbon monoxide and other fire gases in the mine;
MSHA also detected explosive levels of methane. Secretary's Memorandum of Points
and Authorities and Statement of Undisputed Facts in Support of Motion for Summary
Decision ("Sec'y Mem. Supp. Summ. Dec."), 4.

10.

The Team Leader of MSHA's accident investigation, Norman Page, relied on his
understanding that MSHA considered the existing ventilation system to be fragile due to
the susceptibility of the temporary controls in place at the time. MSHA also saw issues
of potential roof control hazards, poor visibility, water accumulations, and severely
obstructed travelways with abundant trip-and-fall hazards. See Declaration of Norman
G. Page, July 1, 2010 ("Page Deel."),, 14.

11.

Mike Lawless, the expert for Performance and a form.er MSHA employee, was not
involved when the protocols were drafted but believes that there is a stable gas
environment, with predictable straight line methane liberation, that is safe for an
underground accident investigation, including use of digital photography and electronic
mapping and surveying equipment. Declaration of Michael J. Lawless, P.E., C.M.S.P.,
July 13, 2010 ("Lawless Deel."),, 24.

12.

The joint protocols that are being used and were put in place through the amendment to
the 103(k) order are contained in Exhibit C of the Secretary's Opposition to Emergency
Application to Modify, or Alternatively for Temporary Relief from MSHA's Section
103(k) Order and Memorandum of Points and Authority in Support of Motion to
Dismiss for Lack of Jurisdiction ("Sec'y Opp'n Application"). Sec'y Opp'n
Application, Ex. C.

13.

Since the amendment, MSHA has been operating under the auspices of the joint
protocols in its underground investigation. Mem. Supp. of Application, Ex. 17 if 41.

14.

The Joint Protocols limit the number of individuals underground. There are to be
certain types of teams (mapping, dust survey, electrical, photography, flames and forces,
geologic mapping, and evidence gathering), and each team will consist of at least one
MSHA representative and one OMHST representative. Id. at Ex. 14 ,, 1, 2. One
representative each from Performance, the West Virginia Governor's Independent
Investigation Panel, and the miners' representative may accompany each team. Id.

15.

MSHA Accident Investigation Leader Page determined that, in issuing the 103(k) order,
limiting the number of individuals underground and the length of time individuals spend
underground are safety-related concerns, as this minimizes the total number of
individuals exposed to the potentially hazardous conditions. Page Deel., , 4.

32 FMSHRC Page 1354

Performance agrees that quicker and more efficient investigation methods will improve
the safety of investigators. See Mem. Supp. of Application, 9, Ex. 17, 12.
16.

Limiting ignition sources underground in this mine is a safety-related concern that Page
relied on in making his determination regarding the investigation protocols. See Page
Deel., mf 18, 27.

17.

Permissible cameras are not available. Id. at, 27.

18.

In rejecting Performance's request to take its own photographs, MSHA determined to
limit the use of non-permissible cameras underground on the belief that it affects safety.
Id. at, 27.

19.

If Performance had its own cameraman taking pictures underground, MSHA determined
that this would increase personnel underground and the length of time of the
investigation, thus raising safety concerns. Id. at iii! 25, 30. According to the protocols,
Performance may request that MSHA take a photograph where it deems appropriate.

20.

The essential component of the company's transit system, needed for its laser mapping,
is a non-permissible piece of equipment, which means that it is a potential ignition
source. Id. at ii 18. This is a safety-related concern that MSHA raised in restricting the
use of a laser transit system. Id. at , 17.

21.

MSHA restricted use of the laser transit system on safety grounds because MSHA
determined that its use would increase the number of personnel underground or, if the
number of personnel were not increased, would increase the length of time of the
investigation for the people who were underground. Id. at ,, 17, 19, 20. Lawless
agrees that the mapping method Performance seeks to use would require additional
persons underground. See Lawless Deel., i134.

22.

MSHA restricted Performance from taking additional dust samples based on the belief
that it affected safety, as performing a single dust sampling at each sampling point
serves to reduce the amount of time spent by investigators underground. See Page
Deel., ii 24.

23.

The joint protocols do not prohibit Performance from being present at tests conducted
on evidence. See Mem. Supp. of Application, Ex. 14 ii 39. MSHA inserted language on
testing in the joint protocols after a dialogue with Performance, making clear that
Performance will be notified of any tests to be conducted and given an opportunity to
attend and review testing procedures (except for testing on rock dust samples). See id.;
see also Page Deel., ii 7 .1

1

As for destructive testing, Performance has not made clear what relief it seeks. It states that it
wants to "participate meaningfully" in testing, but does not argue how MSHA's testing
procedures fail to provide it with meaningful participation.

32 FMSHRC Page 1355

24.

The joint protocols allow photographs to be taken only by MSHA and OMHST. The
same is true of mapping. The other three entities involved in the investigation are
restricted from doing either. Only MSHA will take dust samples.
Sec'y Opp'n
Application, Ex. C.

25.

Performance, the ininers' representative, and the West Virginia Governors' Independent
Investigation Panel may ask MSHA to take certain photographs, observe all mapping
and receive the results of each at the end of each shift. Id.

b. Conclusions ofLaw

The issues before me on the Secretary's motion for summary decision are both constrained and
simple: Are there genuine issues as to any material fact regarding whether the Secretary abused
her discretion in issuing the subject modification of the 103(k) order; and, if not, did the
Secretary abuse her discretion? For reasons that follow, I find that there are no material facts in
dispute, that the Secretary did not abuse her discretion, and, therefore, that the Secretary is
entitled to summary decision as a matter of law.
Pursuant to Rule 67 of the Procedural Rules of the Federal Mine Safety and Health Review
Commission ("Commission"), a motion for summary decision shall be granted if the entire
record shows: "(1) [t]hat there is no genuine issue as to any material fact; and (2) [t]hat the
moving party is entitled to summary decision as a matter oflaw." 29 C.F.R. § 2700.67(b); see
also Meek v. Essroc Corp,_, 15 FMSHRC 606, 615 (Apr. 1993); Missouri Gravel Co., 3
FMSHRC 2470, 2471(Nov.1981). Summary judgment should not be granted unless it is clearly
shown that a trial is unnecessary. See Wimsatt v. Green Coal Co., Inc., 16 FMSRHC 487 (Feb.
1994) (ALJ). If a material fact is in dipsute, then the ALJ must conduct an appropriate hearing.
Energy West Mining, Co., 16 FMSHRC 1414. (July 1994).
In order to determine what facts may be material, it is necessary to understand how section
103(k) orders, and their respective modifications, operate. Section 103(k) of the Act states:
In the event of any accident occurring in a coal or other mine, an
authorized representative of the Secretary, when present, may issue
such orders as he deems appropriate to insure the safety of any
person in the coal or other mine, and the operator of such mine
shall obtain the approval of such representative, in consultation
with appropriate State representatives, when feasible, of any plan
to recover any person in such mine or to recover the coal or other
mine or return affected areas of such mine to normal.
30 U.S.C. § 813(k). I agree with Commission Judge Hodgdon that "section 103(k) provides that
it is MSHA, not the operator, who is in charge of the investigation." Rockhouse Energy Mining
Co., 26 FMSHRC 599, 602 (July 2004) (ALJ). The Act gives MSHA plenary power to make
32 FMSHRC Page 1356

post-accident orders for the purpose of protection and safety of all persons. Miller Mining
Company, Inc. v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983). MSHA has broad authority to
issue 103(k) orders to effectuate this purpose. Buck Mountain Coal Co., 15 FMSHRC 539 (Mar.
1993) (AU); West Ridge Resources, Inc., 31 FMSHRC 287 (Feb. 2009) (ALJ). This broad grant
of authority is recognized in the legislative history, which states that:
[t]he unpredictability of accidents in mines and uncertainty as to
the circumstances surrounding them requires that the Secretary or
his authorized representative be permitted to exercise broad
discretion in order to protect the life or to insure the safety of any
person. The grant of authority under section [103(k)] to take
appropriate actions and . . . to issue orders is intended to provide
the Secretary with flexibility in responding to accident situations,
including the issuance of withdrawal orders.
S. Rep. No. 95-181, at 29 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978)
(emphasis added).
Given the broad discretion afforded the Secretary, her issuance of a 103(k) order, or subsequent
modification, is reviewable for an abuse of discretion. The case law addressing this standard,
while generally applied in the context of roof and ventilation plan contests, is equally applicable
here. Pursuant to such, and according to the abuse of discretion standard, the Secretary must
show that Norman Page, the MSHA investigation team leader, did not act in an arbitrary and
capricious manner in deciding to issue the 103(k) order and subject modification. See Peabody
Coal Co., 18 FMSHRC 686, 690 (May 1996), aff'd 111 F.3d 963 (D.C. Cir. 1997). The
Commission in Twentymile Coal applied the following guidance in determining if the actions of
a district manager were arbitrary and capricious:
The scope of review under the "arbitrary and capricious" standard
is narrow and a court is not to substitute its judgment for that of the
agency. Nevertheless, the agency must examine the relevant data
and articulate a satisfactory explanation for its action including a
"rational connection between the facts found and the choice
made." In reviewing the explanation, we must "consider whether
the decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment." Normally,
an agency rule would be arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise.

32 FMSHRC Page 1357

30 FMSHRC 736, 754-755, quoting Motor Vehicle Mfr's Ass'n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983).

The material facts in this matter are those that "materially" address whether the Secretary
examined the relevant data and articulated a rational connection between the facts and the
issuance and modification of the 103(k) to "insure the safety of any person in the ... mine." I
find that the undisputed facts, as outlined above and discussed below, sufficiently address all
pertinent matters in this case such that there are no genuine issues as to any material fact.
Performance seeks to have Modification 66 to Order No. 4642503 immediately modified to
permit Performance:
(i) to conduct its investigation using its own photography;
(ii) to conduct its investigation using its own electronic mme
mappmg;
(iii) to conduct its own dust sampling or parallel dust sampling
with MSHA; and
(iv) to participate meaningfully in any destructive testing of
evidence.
Performance's Supplemental Response in Supp. of Application, 2. However, the issue is
whether the Secretary abused her discretion, and is not whether Performance's suggested
protocols are better, or whether Performance would conduct the investigation differently.
Performance does not dispute that it spent a great deal of time supplying information and input
into the protocols prior to the issuance of the modification of the (k) order by MSHA.
MSHA Investigation Leader Page explained that, while MSHA was conducting the
investigation jointly with OMHST, the agencies did consider suggestions from other parties,
including Performance. However, Page explained, MSHA's primary concern is safety, and too
many persons ·underground increases the risk of exposure to potentially hazardous conditions,
further delays the investigation, and increases the amount of time it takes for those persons
underground to exit the mine in the event of an emergency. MSHA considered input from
Performance and modified its protocols to accommodate a number of Performance's requests.
As Page explained, MSHA "must maintain the highest level of safety possible during the
underground inspection so that no inspection team member is placed in unnecessary danger."
Page Deel., if 15. He goes on to state that, while MSHA has determined that the underground
investigation may proceed in a safe manner, "the mine still presents a potentially hazardous
environment in which no individual should stay unnecessarily." Id. Page explained that, in
determining that a limited number of cameras should be underground, he took into consideration
the fact that cameras are not permissible, that gas checks must be made before they are used and
that the inspection will proceed more quickly with only one photographer. In addressing the
issue of mapping, again he considered the issue of permissibility and the number of persons
underground for purposes of safety. The same is true of the dust sampling. Page considered
input from all entities who have an interest in the investigation and made adjustments to the
protocols where appropriate. The joint protocols were agreed to by four of the five entities
32 FMSHRC Page 1358

represented underground, and were only disputed by Performance.
It is the Secretary's duty to systematically evaluate the conditions and practices at the mine and
keep the section 103(k) order in effect until it can be determined that the hazards that caused the
explosion have been corrected and will not recur. In doing so, the Secretary must conduct a
thorough investigation into the cause of the accident. In light of the conditions at the Upper Big
Branch Mine as described in the declaration of Norman Page, I conclude that the Secretary may
insist on protocols that she believes are necessary to insure the safety of the investigation. While
those protocols may not be what Performance wants or expects, they are nonetheless reasonable
and intended to insure the safety of all persons in the mine.
The mine asserts that the protocols, specifically limiting the use of cameras, mapping and dust
samples, are not related to safety. Performance further alleges that the refusal to allow it to take
its own photographs, conduct its own mapping and dust sampling, deprives the mine of its
congressional mandate to conduct its own investigation into the cause of the accident. First, as
noted above, I find that the protocols are related to safety and are reasonable given the
information before Page. Lawless, who was not involved in the creation of the protocols, has a
differing view of what should be included. However, a differing view does not take away from
the reasonableness of the decision made by Page. Second, Performance is not deprived of the
opportunity to fulfill its duty to investigate the cause of the explosion at its mine, as the mine
argues. Not only can the mine gather information while accompanying the MSHA investigation
team, it can conduct an independent investigation when MSHA has completed its investigation
and released the (k) order on the mine. It appears that no discussion of this right took place with
Page, but even so, it does not diminish the reasonableness of his decision in putting the protocols
in place.
Finally, Performance questions Page's credibility by submitting the affidavit of Andrew J.
Neuhalfen. Neuhalfen Deel. Neuhalfen's declaration addresses an incident that occurred during
a mantrip inspection. Page was present for a short time during the inspection and observed
problems with photographers from various parties all attempting to take photographs at the same
time. Neuhalfen, who was one of the individuals taking photographs, disputes that there was any
problem and seeks to blame Page for any disruption that may have occurred. While the facts
surrounding the event described by Neuhalfen may be in dispute, they are not material to the
matter at hand, and the statement ofNeuhalfen is not enough to put Page's credibility at issue.
Addressing every argument raised and each document submitted by Performance is not
necessary in this case. The largest portion of the information submitted by Performance is
irrelevant to the heart of this matter, i.e. whether Page abused his discretion in issuing the
modification of the (k) order to include the investigation protocols. For example, the opinion of
Lawless that this investigation is being conducted differently than other MSHA accident
investigations is meaningless, as each accident investigation has its own special circumstances
that must be addressed when determining how to best proceed. In addition, the many affidavits
identifying impermissible equipment used by MSHA in the investigation have no bearing on the
decision regarding Page's discretion, as he described a "limit" on impermissible equipment as
opposed to a "ban" on such. Further, the opinions of Performance's experts who take issue with
32 FMSHRC Page 1359

the way the investigation is being conducted do not show that Page was any less reasonable in
making his decisions. I find that Page considered the relevant evidence, offered a logical
explanation for his decisions, and did not abuse his discretion with regard to the 103(k:) order.

ORDER

I conclude that the Secretary has met her burden of proving that Page did not abuse his
discretion and that the jomt protocols are rationally connected to safely conducting the accident
investigation. Accordingly, the notice of contest filed by Performance is DISMISSED and the
Secretary's motion for summary decision is GRANTED.

iller~

et.
"strative Law Judge

Distribution: (First Class U.S. Mail)
Robert Luskin, Esq., Patrick Slevin, Esq., Benjamin Wood, Esq., Peter Gould, Esq.,
Patton Boggs, LLP, 2550 M St., NW, Washington D.C. 20037
Derek Baxter, Esq., Robert Wilson, Esq., Keith Bell, Esq., Office of the Solicitor, U.S.
Department of Labor, 1100 Wilson Blvd., Room 2226, Arlington, VA 22209-2296

/svp

32 FMSHRC Page 1360

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

September 21, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2008-1059
A.C. No. 15-12428-149534

V.

SEQUOIA ENERGY, LLC,
Respondent

Prep Plant

DECISION
Appearances: Matthew Nelson, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner;
James Bowman, Midway, West Virginia, for the Respondent.
Judge Feldman

Before:

This civil penalty proceeding concerns a Petition for Assessment of Civil Penalty filed
pursuant to section l lO(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act),
as amended, 30 U.S.C. § 820(a), by the Secretary of Labor (the Secretary), against the
respondent, Sequoia Energy, LLC, (Sequoia). The petition sought to impose a civil penalty of
$40,029.00 for eleven alleged violations contained in 30 C.F.R. Part 77 of the Secretary's
mandatory safety standards governing mining operations at surface coal mines.
Prior to the hearing, the Secretary moved to amend her civil penalty petition by
vacating Citation Nos. 7496254, 7496257 and 7496261. The Secretary also moved to amend
Citation No. 7496260 to include the cited condition in Citation No. 7496257, and to amend
Citation No. 7496262 to include the cited condition in Citation No. 7496261. The Secretary's
motion to amend was granted during an April 5, 2010, telephone conference with the parties.
This matter was heard in Richmond, Kentucky on May 4, 2010, at which time the parties
stipulated that Sequoia is a mine operator subject to the provisions of the Mine Act. At the
hearing, the parties proffered a joint motion to approve the settlement of four additional citations.
Namely, Sequoia agreed to pay the $1,111.00 proposed civil penalty for Citation No. 7496253;
the parties agreed to delete the significant and substantial (S&S) 1 designation from Citation
No. 7496256 and Sequoia agreed to pay a $947.00 civil penalty instead of the $4,689.00

1

Generally speaking, a violation is S&S if it is reasonably likely that a hazard contributed to
by the violation will result in an accident causing serious injury. Cement Division, National
Gypsum, 3 FMSHRC 822, 825 (April 1981).
32 FMSHRC Page 1361

civil penalty initially proposed; Sequoia agreed to pay the $540.00 proposed civil penalty for
Citation No. 7496259; and Sequoia agreed to pay the $745.00 proposed civil penalty for
Citation No. 7496265. Thus, pursuant to the terms of their settlement, Sequoia has agreed to pay
a total civil penalty of $3,343.00 for these four citations.
The remaining citations that are the subject of this proceeding are Citation Nos. 7496260,
7496262, 7496263 and 7496266 for which the Secretary proposes a total civil penalty of
$18,877.00. All four of the cited conditions have been designated as S&S. The parties'
post-hearing briefs have been considered in the disposition of this case.

I. Background
On February 8, 2008, Mine Safety and Health Administration (MSHA) Inspector
Argus Brock inspected a coal preparation plant operated by Sequoia. The preparation plant is in
Harlan, Kentucky. (Tr. 42). The inspection was in response to a complaint that had been filed
with MSHA concerning reported defects on a D9N dozer. However this dozer is not a subject of
the four citations in litigation in this proceeding. (Tr. 44, 96). The preparation plant is a large
facility employing approximately thirty miners who work during two shifts. The first shift
is from 6:00 a.m. until 5:00 p.m. The second shift begins at 5:00 p.m. and ends at 3:00 a.m.
(Tr. 327).
Six refuse trucks are used during the day shift, and four refuse trucks are operated during
the evening shift. Rock material that is separated from coal is loaded into haul trucks from refuse
bins. Refuse haul trucks transport the rocks from the refuse bins at the plant to a refuse pile that
is situated on a hill approximately one quarter of a mile from the preparation plant. (Tr. 37-38,
58-59).
There are lighting systems at the refuse bins and refuse pile sites. The refuse bins are
illuminated with 250 watt white halogen bulbs that are located on each of the four comers of the
refuse bins. The halogen bulbs are aimed towards the ground where the truck beds are positioned
for loading from the bins located above. (Tr. 139-40). The refuse pile is illuminated by two
sources of light each energized by two diesel-powered generators. Each light source consists of
four halogen lights. One light source illuminates the refuse pile at the top of the hill. The other
light source shines down from the top of the hollow to illuminate the access road to and from the
refuse pile. (Tr. 140-41 ).
Brock testified that he had previously met with Sequoia's safety director concerning
Sequoia's failure to correct defects noted in Sequoia's pre-shift examination book. {Tr. 91).
However, Brock conceded that these warning were never documented and Sequoia has denied
that they were previously warned. (Tr. 100).

32 FMSHRC Page 1362

On February 8, 2008, Brock inspected several forty-ton refuse trucks that were in
operation at the plant. Based on his observations, Brock issued the four citations that remain at
issue for defects he observed on three of the refuse trucks. The truck defects noted by Brock
concern inoperable front lights, a defective exhaust pipe, a cracked upper side view mirror, a
missing lower side view mirror, an inoperable back-up alarm, and an accumulation of oil on a
refuse truck hood. Although Brock reviewed the pre-shift examination reports for these three
trucks, Brock did not make copies of the pre-shift reports and he did "[not] recall exactly what
[they] said." (Tr. 104). Brock did not take photographs of any of the cited conditions and
he did not record any information from the pre-shift reports in his contemporaneous notes.
(Tr. 107; Gov. Ex 2). The pre-shift examination reports are not in evidence.
II. Significant and Substantial Framework
As a general proposition, a violation is properly designated as S&S in nature if, based on
the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to by the violation will result in an injury or an illness of a reasonably serious nature.
Cement Division, National Gypsum, 3 FMSHRC at 825. "Jn Mathies Coal Co., 6 FMSHRC 1
(Jan. 1984), the Commission explained:

fu order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to [by the violation] will
result in an injury; and (4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
afj'g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

fu U.S. Steel Mining Co., Inc., 7 FMSHRC at 1129, the Commission explained its
Mathies criteria as follows:
We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (Aug. 1984). We have emphasized that, in accordance
with the language of section I 04(d)( I), 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 (Aug. 1984) (emphasis in
original).

32 FMSHRC Page 1363

The Commission subsequently reasserted its prior determinations that as part of any S&S
finding, the Secretary must prove the reasonable likelihood of an injury occurring as a result of
the hazard contributed to by the cited violative condition or practice. Peabody Coal Co.,
17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996).
Resolution of whether a particular violation of a mandatory standard is S&S in nature
must be made assuming continued normal mining operations. U.S. Steel Mining, 7 FMSHRC
at 1130. Thus, consideration must be given to both the time frame that a violative condition
existed prior to the issuance of a citation, and the time that it would have existed if normal
mining operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998);
Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986).
III. Civil Penalty Framework
The Commission outlined the parameters of its responsibility for assessing civil penalties
in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:
The principles governing the Commission's authority to assess civil penalties
de novo for violations of the Mine Act are well established. Section 11 O(i) of the
Mine Act delegates to the Commission "authority to assess all civil penalties
provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of
proposing penalties to the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus,
when an operator notifies the Secretary that it intends to challenge a penalty, the
Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 2700.28
and 2700.44. The Act requires that, "[i]n assessing civil monetary penalties, the
Commission [ALJ] shall consider" six statutory penalty criteria:
[1] the operator's history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect of the operator's ability to continue in
business, [5] the gravity of the violations, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
22 FMSHRC at 600 citing 30 U.S.C. § 820(i).
In keeping with this statutory requirement, the Commission has held that "findings of fact
on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5 FMSHRC
287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge's penalty
assessment for a particular violation is an exercise of discretion, which is bounded by proper
consideration for the statutory criteria and the deterrent purposes of the Act. Id. at 294,
Cantera Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that the de novo
assessment of civil penalties does not require "that equal weight must be assigned to each of the
penalty assessment criteria." Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
32 FMSHRC Page 1364

It has neither been contended nor shown that imposition of the civil penalties proposed in
this case will adversely affect Sequoia's ability to continue in business, or, that the penalties
proposed are disproportionate to the size of Sequoia's business. The cited conditions were
abated in a good faith and timely manner. The Secretary has not specifically asserted that
Sequoia's history of violations is an aggravating factor.

N. Findings and Conclusions
i. Citation No. 7496260 2
Brock inspected Sequoia's Volvo A40D No. T9 Refuse Truck. The Volvo A40D has a
vertical exhaust pipe that is located behind the platform used to access the operator's
compartment. The exhaust pipe is connected to the muffler at the approximate height of the
operator's seat in the cab of the truck. (Tr. 143). The exhaust pipe is attached to the muiller
with a clamp. Brock noted that the bottom portion of the exhaust pipe, in the area where the
exhaust pipe was connected to the muffler, had a leak which allowed carbon monoxide to escape.
(Tr. 50, 55). Although the source of the leak was not visible, as it was in between the cab and
the bed, Brock opined the seepage of fumes was apparent because it created a layer of soot on the
side frame of the truck bed behind the exhaust. (Tr. 57, 143). The leak was in close proximity to
the operator's door. As a result, fumes entered the operator's compartment when the truck was
idling. (Tr. 50). Brock testified that he recalled that the truck operator told him that he was
exposed to fumes when he was sitting in the operator's cab while the truck was idling. However,
Brock did not refer to this reported conversation in his contemporaneous notes. (Tr. 54).
The Volvo A40D Refuse Truck has a pair of high and low-beam lights located above the
front bumper on each side of the front grille. (Resp. Ex 4). Each pair of high and low-beams is
secured to the truck in a harness. Sequoia contends the truck had two large additional headlights
attached to t~e frame of the truck at the top comers of the windshield. (See Resp. Ex. 4). Brock
does not recall whether he observed additional headlights at the top of the windshield. (Tr. 6162). However, based on his review of photographs of a refuse haul truck proffered by Sequoia at
the hearing, Brock conceded that these upper lights are more powerful than the headlights as
''they just light up the - - [kind of] the whole area in front of you." (Tr. 106; Resp. Exs. 4-6).
Brock noted that the right (passenger side) high and low-beams were not operational.
(Tr. 64-65). Brock recalled that there was a reference to "lights" in the pre-shift examination
records. However, Brock could not recall exactly what the pre-shift report said. Although the
defective lights are noted in Brock's contemporaneous notes, the notes are devoid of any
references to pre-shift examination reports. (Tr. 104-05; Ex. 2 at 14).

2

As noted, a defective leaking exhaust pipe was initially the sole subject of Citation
No. 7496260. (Gov. Ex. 4). This citation has been modified to include the defective front lights
on the No. T9 refuse truck that was the subject of Citation No. 7496257 that now has been vacated.
(Gov. Ex. 5).
32 FMSHRC Page 1365

As a result of his observations of the defective exhaust and the inoperable headlights,
Brock issued Citation No. 7496260 alleging a violation of the mandatory safety standard in
30 C.F.R. § 77.404(a). This safety standard requires that "mobile and stationary machinery and
equipment shall be maintained in safe operating condition and machinery in unsafe condition
shall be removed from service immediately." Brock designated the defects as S&S in nature and
he attributed the violative conditions to a moderate degree of negligence. The Secretary proposes
a civil penalty of$4,689.00 for Citation No. 7496260.
Willie Fee, Sequoia's service mechanic, testified that he was not aware of any complaints
from the operator of the Volvo A40D Refuse Truck. (Tr. 135-36). Fee examined the truck after
it was cited by Brock. Fee determined the exhaust leak was caused by a broken muffler clamp.
(Tr. 132). Fee confirmed that the leak caused soot to accumulate on the frame of the truck.
(Tr. 145-46). Fee admitted that the leak could be heard when the engine was started. (Tr. 146).
However, Fee claimed the operator was not exposed to fumes because, if the windows were
closed, the operator's cab was a sealed air conditioned compartment. (Tr. 135).
Fee testified that all of the haul trucks are equipped with high and low-beams located
above the front bumper and supplemental upper headlights that are factory installed. (Tr. 138,
153-54). Fee admitted that the right front high and low-beams were inoperable. Fee determined
the defect was attributable to a wiring harness that was grounded against the frame causing
blown fuses.
Fact of the Violation
The Secretary bears the burden of proving all elements of a citation by a preponderance of
the evidence. The cited mandatory safety standard in 30 C.F.R. § 77.404(a) requires mobile
equipment to be maintained in safe operating condition. The Commission has concluded that
equipment is unsafe if a reasonably prudent person, familiar with industry standards and the
factual circumstances surrounding the condition and use of the equipment, would recognize that
the cited hazard required corrective action. Alabama By-Products Corp., 4 FMSHRC 2128,
2129 (Dec. 1982). Here, Fee has admitted that there was a defect in muffler clamp causing a leak
of carbon monoxide (CO) fumes from the exhaust pipe. The leak was in proximity to the
operator cab compartment. The exposure of the operator to CO fumes constitutes a hazardous
condition.
In addition, Sequoia concedes the right front high and low-beams were inoperable due to
a short caused by contact of the wiring harness with the truck frame. Although there apparently
were additional headlights mounted at the upper comers of the windshield, defective high and
low-beam lights result in a diminution of nighttime visibility rendering the vehicle unsafe
under 30 C.F.R. § 77.404(a). Consequently, the evidence supports the cited violation of this
mandatory standard.

32 FMSHRC Page 1366

As noted, a violation is properly designated as S&S if it is reasonably likely that the
hazard contributed to by the violation will result in an injury or an illness of a reasonably serious
nature. The degree of likelihood of serious injury or illness must be evaluated in the context of
continued exposure to the hazardous condition during both the period prior to issuance of the
citation as well as the time the violative condition would have existed if normal mining
operations had continued. Obviously, continued exposure to CO fumes is dangerous, particularly
in view of its odorless nature. It is reasonably likely that such continued exposure will result in
CO poisoning causing serious physical injury or death. Consequently, the defective mu:fller
clamp, alone, provides an adequate basis for designating the cited violation as S&S.
Degree of Negligence
Brock attributed the cited conditions to a moderate degree of negligence. I agree.
However, there are several mitigating factors. Brock could not recall whether driving lights were
installed at the top of the truck. (Tr. 67). Thus, Brock did not refute Fee's testimony that all of
the haul trucks had upper lights installed. Significantly, Brock conceded that ifhe had realized
that the upper lights were installed he might not have cited the inoperable right lower headlights.
(Tr. 67). Although Brock recalled that the left headlights were working, he did not recall which,
if any, additional lights on the truck were operational. (Tr. 61-62).
Although Brock testified that the pre-shift examination referred to "lights," as previously
noted, the pre-shift report has not been proffered in evidence by the Secretary. Moreover, there is
no reference to relevant pre-shift examination reports in Brock's contemporaneous notes.
While the defective lights apparently existed for at least several shifts, there is no evidence that
Sequoia ignored defects reported as a result of pre-shift examinations. Moreover, the lighted
conditions at the refuse bins and refuse pile, along with the supplemental headlights mounted at
the upper comers of the windshield, mitigate the hazard caused by the inoperative right
headlights.
With respect to the condition of the exhaust pipe, Brock does not contend that the
defective exhaust pipe was noted by pre-shift examiners. Although the defect was apparent when
the truck engine was started, there was no visible hole in the exhaust system that made the
condition readily apparent.
With respect to notice, although Brock asserts that Sequoia had been previously warned,
the Secretary does not contend that Sequoia's history of violations reflects an inadequate
emphasis on the importance of maintaining equipment in safe operating condition.
Consequently, although the attribution of moderate negligence is affirmed, there are significant
mitigating circumstances related to the degree of gravity of the cited violation that warrant a
reduction in the civil penalty proposed by the Secretary. Accordingly a civil penalty of
$1,400.00 shall be assessed for Citation No. 7496260.

32 FMSHRC Page 1367

ii. Citation No. 7496262 3
Brock inspected Sequoia's Volvo A40D No. T7 Refuse Truck. The truck normally is
equipped with two pairs of side view mirrors. The upper mirror is a traditional side view mirror
that enables the truck operator to view side areas of the truck. It is approximately four inches
wide and six inches long. It is capable oflateral adjustment. The bottom mirror is adjusted
downward to enable the operator to view the rear wheels of the truck. This mirror is used by the
operator to ensure that a truck does not breach a berm when backing into an elevated area.
Although Brock stated there were berms on elevated roadways in the preparation plant and
different levels at the refuse dump site, Brock did not describe discrete elevated areas at the
refuse bins or the refuse pile where the refuse trucks maneuver to load and unload their contents.
(Tr. 185-86).
Brock observed a crack in the upper left (driver side) side view mirror. Despite the crack,
Brock testified that the upper mirror was still functional. {Tr. 188, 207). The lower left front
mirror was missing. Similar to the No. T9 refuse truck, the right high and low-beam headlights
were not functioning on the No. T7 truck.
As a result of his observations, Brock issued Citation No. 7496262 that now concerns
the defective and missing mirrors and the inoperable right headlights. The citation alleges a
violation of30 C.F.R. § 77.404(a) for failure to maintain the truck in safe operating condition.
(Gov. Exs. 7, 8). Brock designated the cited conditions as S&S in nature, and he attributed the
violative conditions to a moderate degree of negligence. The Secretary proposes a civil penalty
of$4,689.00.
Fee, an experienced refuse truck operator, testified that the upper rather than lower side
view mirror normally is used to dump at the refuse site. {Tr. 209, 216). In this regard,
Brock testified the rock material dumped at the refuse site is crushed and flattened by a dozer.
(Tr. 165). The, level nature of the refuse pile area negates a truck operator's reliance on the lower
side view mirror. (See Gov. Ex. 13). Moreover, Brock conceded that the side view mirrors were
not needed at the refuse bins where the trucks are driven directly under and through the bins. (Tr.
192).

3

As noted , the defective and missing left side mirrors were the sole subject of Citation
No. 7496262. (Gov. Ex. 7). This citation has been modified to include the defective right front
lights on the No. T7 refuse truck that was the subject of Citation No. 7496261 that now has
been vacated. (Gov. Ex. 8).
32 FMSHRC Page 1368

Fact of the Violation
As previously discussed, mobile equipment is properly characterized as unsafe if a
reasonably prudent person familiar with the operation and maintenance of the equipment would
recognize that the condition of the equipment creates a hazard. Alabama By-Products, supra.
Properly maintained side view mirrors are essential for safe operation of mobile equipment.
The factory installation of both upper and lower side view mirrors is a recognition of their
contribution to the safe operation of this heavy duty haulage vehicle.

At the hearing it was noted that the testimony and evidence with respect to the inoperable
high and low-beam headlights on the No. T9 truck are incorporated by reference to the No. T7
truck. As discussed above, the absence of operable right side headlights, despite the presence
of supplemental lights mounted on the top of the truck, constitutes an unsafe condition.
Consequently, the evidence supports the fact of the violation of the mandatory standard in
30 C.F.R. § 77.404(a).

Analysis of the S&S issue in this instance requires a recognition of the unanticipated
variable circumstances during the course of continued mining operations under which this
forty-ton haulage truck will be driven. Side view mirrors protect both the truck operator and
miners who may be exposed to the risk of being struck while working in proximity to this moving
vehicle. It is reasonably likely that the diminution of visibility resulting from the cracked and
missing mirrors will result in an event, i.e., a truck accident, that results in serious or fatal injuries.
In addition, while not currently contemplated, it is likely that this haulage truck will be operated
under circumstances that require a lower side view mirror to ensure that the vehicle does not back
through a berm installed in an elevated area. Consequently, the cracked and missing side view
mirrors, alone, provide an adequate basis for designating the violation as S&S in nature.
Degree of Negligence
Brock attributed the cited conditions to a moderate degree of negligence. Again,
I agree. However, there are also mitigating factors. Although the upper mirror was cracked,
Brock conceded that it was still functional. Although the missing lower side view mirror is not
trivial, it is true that these haulage trucks are not dumping in the vicinity of elevated areas.
Thus, the lower mirror, adjusted to view the position of the rear tires, is not normally relied on.
The same mitigating circumstances concerning the inoperable headlights on the No. T9 truck
discussed above apply to the defective headlights cited on the No. T7 truck.
Consequently, although the attribution of moderate negligence is affirmed there are
significant mitigating circumstances related to the degree of gravity of the cited violation that
warrant a reduction in the civil penalty proposed by the Secretary. Accordingly a civil penalty of
$1,200.00 shall be assessed for Citation No. 7496260.

32 FMSHRC Page 1369

iii. Citation No. 7496263
In addition to the cracked and missing left side view mirrors and the inoperable right side
headlights, Brock observed an accumulation of hydraulic oil in an area located on the right side of
the hood of the Volvo A40D No. T7 Refuse Truck. Brock testified that hydraulic oil is
combustible at temperatures in excess of700 or 800 degrees. (Tr. 227, 250-51).
Brock noted that a turbocharger, approximately eight to ten inches in diameter, was
located on the right upper side of the engine of the T7 truck. A turbocharger supplies fuel to the
engine in a method that increases engine performance. Brock stated the operational temperature
of a turbocharger can be in excess of 1,400 degrees. (Tr. 227, 251). Brock conceded the
temperature on the surface of the hood was not adequate enough to ignite the hydraulic oil. (Tr.
246). Brock also admitted that he did not know if the source of the hydraulic oil was spraying the
oil under the hood in the direction of the turbocharger. (Tr. 244). However, Brock was concerned
that a fire or explosion could result if the oil leak came into contact with the hot turbocharger that
constituted a source of ignition.
As a result of his observations, Brock issued Citation No. 7496263 alleging a
violation of 30 C.F.R. § 77 .1104 for allowing combustible material in the form of hydraulic oil to
accumulate on the hood of the truck. (Gov. Ex. 10). Brock noted that this condition had been
entered in the pre-shift examination book. (Tr. 233-36). The mandatory safety standard in
30 C.F .R. § 77 .1104 prohibits the accumulation of combustible materials in areas where they can
create a fire hazard. Brock designated the oil accumulation as S&S in nature, and he attributed
the violative condition to a moderate degree of negligence. The Secretary proposes a civil penalty
of $5,503.00.
Fact of the Violation
Fee testified that the source of the hydraulic oil was a broken 0-ring on the hose that
supplied hydraulic oil to the radiator fan. (Tr. 269-71). At the trial, Sequoia's representative
stipulated to the fact of the violation although the S&S designation remains in dispute. (Tr. 25253; Resp. Br. at 7).

The thrust of the Secretary's S&S assertion is that it is reasonably likely that the
unpredictable nature and extent of a spraying oil leak caused by a deteriorating 0-ring under a
hood in proximity to a turbocharger will result, given continued operation of the truck, in a fire or
explosion resulting in serious injury to the operator. (Tr. 252). Fee on the other hand asserted
that the radiator was positioned between the oil leak and the turbocharger. Consequently, Fee
opined that the "oil would have to come through the radiator into the engine compartment ... to
get to the turbo." (Tr. 267).

32 FMSHRC Page 1370

Fee's speeulation concerning the path of the leaking oil spray misses the point. The fact
remains that leaking combustible hydraulic oil in proximity to very hot engine components
constitutes a hazardous condition. The unpredictability of the directional flow of this leaking oil
accentuates the degree of hazard. This condition creates the circumstances for the proverbial
"accident waiting to happen." Consequently, it is reasonably likely that the ignition hazard
created by the presence of this hydraulic oil as a source of fuel will result in an event, i.e., fire or
explosion, causing serious or fatal injury to the operator of the refuse truck. Accordingly, the
cited violation is properly characterized as S&S in nature.
Degree of Negligence
The Secretary alleges that this condition existed for several shifts as the condition was
noted in the pre-shift examination book. Moreover, this condition was obvious in that it was
readily observable on the hood of the truck. Consequently, the evidence reflects at least a
moderately high degree of negligence. Given the serious gravity associated with the cited
condition, a civil penalty of $3,500.00 shall be assessed for Citation No. 7496263.
iv. Citation No. 7496266
Brock inspected Sequoia's Volvo A40D No. TlO Refuse Truck. Brock tested the back-up
alarm and determined that it was inoperable. (Tr. 287). The back-up alarm is a device that
sounds when the refuse truck is operated in reverse. (Tr. 288). The back-up alarm is intended to
alert miners who are in the path of a truck traveling in reverse. (Tr. 288). The No. Tl 0 truck is
operated throughout the preparation plant in proximity to people and equipment. (Tr. 289).
Brock was concerned that the absence of an audible back-up alarm will result in a miner
sustaining serious or fatal crushing injuries as a result of being struck by the truck. (Tr. 293).
Broe~ testified that the inoperable back-up alarm was noted in the pre-shift examination
and that Rodney Collett, Sequoia's foreman, told him that he was aware of the defect. Although
Brock's notes reflect a variety of mobile equipment defects "that existed for several months," the
duration of the back-up alarm malfunction is unclear. (Tr. 291; Gov. Ex 2 at 28-30).

As a result of his inspection, Brock issued Citation No. 7496266 citing a violation of the
mandatory safety standard in 30 C.F.R. § 77.410(c) that requires warning devices on mobile
equipment. Brock designated the violation as S&S in nature and he attributed the violation to a
high degree of negligence. The Secretary proposes a civil penalty of $3,996.00.
Fact of the Violation
Sequoia has stipulated to the fact of the cited violation although the S&S designation
remains in dispute. (Resp. Br. at 8). Fee testified that the back-up alarm was muted because it
was covered with mud. Fee opined that the alarm could be heard from ground level although it
was very low. (Tr. 317-18). The condition was abated by cleaning the mud that had accumulated
around the alarm and washing the alarm with water. (Tr. 318-19).

32 FMSHRC Page 1371

Similar to the previous S&S analysis regarding the broken side view mirrors, the hazard
of exposure of unwitting victims to a truck without an adequate back-up alarm requires a
recognition of the unanticipated variable circumstances under which this forty ton haulage truck
will be driven during the course of continued mining operations. The obvious purpose of a
back-up alarm is to warn persons positioned behind the truck who cannot be seen by the truck
operator. Given the vagaries of human conduct with respect to inattention and carelessness,
it is reasonably likely that the hazard created by a non-functioning back-up alarm will result in
serious or fatal injuries to someone positioned behind the truck. Consequently, the inaudible
condition of the back-up alarm is properly designated as an S&S violation.
Degree of Negligence
The Secretary alleges that this condition existed for a significant period as the condition
was noted in the pre-shift examination book. Fee testified that he did not report the back-up
alarm as being repaired, although it was periodically cleaned, because it was a recurring problem.
{Tr. 319-20). Fee reported that he ultimately moved the alarm so that the horn was not facing
outward and exposed to piles of mud when the truck was backed up to dump its load.
Specifically, the horn was positioned in a downward direction to avoid mud from muting the
horn. {Tr. 323-23). Brock conceded that it was not uncommon for the truck to back into
previously dumped material that was muddy and wet thereby preventing the back-up horn
from working. {Tr. 307-18).
The admitted muddy conditions are a mitigating factor, however Sequoia is responsible
for maintaining the alarm in functioning condition. Accordingly, the violation is attributable to a
moderate degree of negligence. Given the serious gravity associated with the cited condition,
a civil penalty of $2,200.00 shall be assessed for Citation No. 7496266.
I note parenthetically, that the previous penalties proposed by the Secretary for violations
concerning Sequoia'-s failure to correct defects on mobile equipment ranged from $60.00
to $400.00 compared to the $3,996.00 to $5,503.00 range currently proposed by the Secretary for
the four adjudicated citations. I recognize the Secretary's concern that Sequoia needs to display
greater efforts to maintain its heavy duty refuse trucks regardless of their operation under adverse
conditions. The imposition of civil penalties from $1,200.00 to $3,500.00 in this case, that are
significantly greater than previous assessments imposed by the Secretary for similar violations,
adequately address the Secretary's concern.

32 FMSHRC Page 1372

As a final note, this decision formalizes the tentative bench decision that was issued at the
culmination of the hearing. (Tr. 336- 60). At that time, I urged the parties to settle these four
citations by incorporating the terms of the tentative decision in their settlement agreement.
(Tr. 337- 40). This approach would have avoided the expenditure of the limited resources of the
Commission and the Secretary in the light of an unprecedented backlog of mine safety cases by
obviating the need for filing briefs and issuing a formal written decision.
Specifically, at the completion of the hearing, the parties were advised:
... We have four citations that we heard today and I will issue a preliminary
decision. . . . I will leave it to the parties to either file briefs agreeing or
disagreeing with the preliminary decision, or, the parties, in the alternative, could
agree to settle the case based on what my recommendations are in the preliminary
decision. . . . By settling the case, neither party has to file a brief and, therefore,
they can spend their energies with regard to other cases that are pending. . . . [If]
the briefs are filed, if [the parties] decide not to accept my recommendation, I can
be convinced that maybe my preliminary decision is wrong ... [and] I'll change
my decision accordingly.
(Tr. 337-39).
At the hearing, Sequoia agreed to settle by adopting the terms of the tentative decision.
(See Resp. Br. at I). Subsequent to the hearing, the Secretary, however, declined to settle by
adopting these terms. Although advised to do so, the Secretary's brief did not even address the
preliminary decision. While I recognize the Secretary's right to a written decision, particularly
ifthere is a desire to raise significant issues on appeal, the tentative decision affirmed the
four citations in issue in virtually every respect with the exception of a reduction in the total
civil penalty., from to $18,877.00 to $8,300.00.4 (See Tr. 338). Resolution of the appropriate
civil penalty to be assessed is committed to the Commission's discretion. 30 U.S.C. § 820(i).
In this regard, the Secretary's brief acknowledged "[the] Administrative Law Judge is
accorded broad discretion in assessing civil penalties under the Mine Act." (Sec'y Br. at 15
citing Cantera Green, 22 FMSHRC at 620 ). Yet the Secretary insisted on briefing this matter.
I urge the Secretary to reconsider whether the pursuit of this matter was a judicious use of
government resources.

4

As a matter of perspective, the Secretary agreed to settle four other citations in this docket
proceeding for a total civil penalty of $3,343.00 rather than the $7 ,085.00 civil penalty initially
proposed.
32 FMSHRC Page 13 73

ORDER

Consistent with this Decision, IT IS ORDERED that Citation Nos. 7496260, 7496262,
7496263 and 7496266 ARE AFFIRMED.

IT IS FURTHER ORDERED that Sequoia Energy, LLC, shall pay a total civil penalty
of$8,300.00 in satisfaction of Citation Nos. 7496260, 7496262, 7496263 and 7496266.
IT IS FURTHER ORDERED that the parties' motions to approve partial settlement
ARE GRANTED. Consistent with the parties' settlement terms, IT IS ORDERED that
Sequoia Energy, LLC, shall pay a total civil penalty of$3,343.00 in satisfaction of the remaining
citations that are in issue in this proceeding.
Consistent with the total civil penalty assessment of$8,300.00 for the four citations that
were adjudicated in this matter, as well as the parties' settlement terms, IT IS ORDERED that
Sequoia Energy, LLC, pay, within 30 days of the date of this decision, a total civil penalty of
· $11,643.00 in satisfaction of the eleven citations that are the subject of this proceeding.

IT IS FURTHER ORDERED that, upon receipt of timely payment, the civil penalty
proceeding in Docket No. KENT 2008-1059 IS DISMISSED.

Administrative Law Judge
Distribution: (Certified Mail)

Matt S. Shepard, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219
Jim Bowman, Sequoia Energy, P.O. Box 99, Midway, WV 25878
/rps

32 FMSHRC Page 1374

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9964 I FAX: 202-434-9949

MACH MINJNG, LLC,
Contestant

September 27, 2010
CONTEST PROCEEDING
Docket No. LAKE 2009-324-R
Citation No. 8414214; 02/12/2009

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

Mach#l Mine
Mine ID 11-03141

DECISION
Appearances: Christopher D. Pence, Esq., and David J. Hardy, Esq., Allen, Guthrie, McHugh &
Thomas, PLLC, Charleston, West Virginia, for the Contestant.
Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor,
Chicago, Illinois, for the Respondent.
Before:

Judge Weisberger

L
futroduction
This case is before me based on a Notice of Contest filed by Mach Mining, LLC,
("Mach") challenging the issuance of Citation No. 8414214, which alleges a violation of30
C.F.R. § 75.364 1•

1

This matter was initially consolidated with a contest of Citation No. 8414211 (Docket
No. LAKE 2009-323-R), which alleged a violation of30 C.F.R. § 75.380(d)(l), requiring that
escapeways be maintained in a safe condition. Citation No. 8414214, the citation contested in
the present matter, originally alleged a violation of30 C.F.R. § 75.363(a), and was subsequently
modified to a violation of30 C.F.R. § 75.364{b){5), which requires an examination of an
escapeway for hazardous conditions. At the conclusion of the hearing held on May 14, 2009, the
Secretary made a motion to amend Citation No. 8414214 again by changing the alleged violated
standard to 30 C.F.R. § 75.364(h), which requires that a record be made of hazardous conditions
found during weekly examinations. After the parties argued the merits of the motion, it was
granted.
32 FMSHRC Page 1375

Pursuant to notice, a hearing was initially held in St. Louis, Missouri, on May 14, 2009.2
The parties were dlrected to file briefs addressing the limited issue of whether the cited area was
a "working section", and thus triggering the requirements of escapeways. 3 Each party
subsequently filed a brief, and a reply. On July 15, 2009, the undersigned issued a partial
decision determining that the cited area was a ''working section."
A conference call was held on November 9, 2009; the parties indicated that they did not
seek an opportunity to present additional evidence relating to the remaining issues regarding
Citation No. 8414211 (Docket No. LAKE 2009-323-R). Subsequently, the parties each filed a
brief and a reply addressing these issues. The parties agreed that if it was found that the
Contestant violated Section 75.380(d)(l), supra, then a hearing should be scheduled regarding
the remaining citation (No. 8414214).
The undersigned issued a decision on February 24, 2010, Mach Mining LLC, 32
FMSHRC 213 ("Mach I") (2010) finding that the Contestant violated Section 75.380(d),4 and
dismissing the contest. On May 13, 2010, pursuant to the agreement of the parties, a hearing was
held on the issues presented in Mach's Notice of Contest (Citation No. 8414214). Each party
submitted a post-hearing brief, and Contestant filed a response in opposition to the Respondent's
brief.
II.
Stipulations

At the May 14, 2009 hearing, the parties filed 44 Joint Stipulations, which were initially
included, in part, in the undersigned's July 14, 2009 Partial Decision. The stipulations, as
pertinent to the issue at bar, are set forth as follows:

***
9.

On February 12, 2009, MSHA Inspector Bobby F. Jones conducted a

2

The record was kept open to allow for the possibility of an additional evidentiary

hearing.
3

Pursuant to 30 C.F.R. § 75.380(b)(l), an operator is required to provide an escapeway
"for each working section." Thus, the existence of a working section is a predicate for the
imposition of all regulatory mandates relating to escapeways, including those set forth in
Sections 75.380(d)(l), and 75.364(h).
4

Specifically, I found that the combination of items present in the escapeway would
thwart the clear purpose of Section 75.380(d) supra (i.e., to allow persons to escape quickly in
the event of an emergency). I also found that the violation was significant and substantial.
32 FMSHRC Page 1376

regular quarterly inspection of Mach #1 Mine, operated by Mach Mining,
LLC. ["Mach"]

10.

While conducting his inspection, Mr. Jones inspected the primary
escapeway to the Headgate (hereinafter ''HG") #4.

***
35.

Contestant began weekly examination of the primary escapeway at HG #4
five weeks prior to the issuance of the subject citations.

36.

Contestant assigned Mine Examiner Dave Adams the task of conducting
the weekly examinations at HG #4 from January 8, 2009, through February
12, 2009.

37.

The concrete blocks existed in the escapeway outby the regulator since on
or about January 6, 2009, when the regulator was created, through
February 12, 2009, when the subject citations were issued.

38.

The pile of gob existed in the escapeway since on or about January 6,
2009, when the regulator was created through February 12, 2009, when
the subject citations were issued.

39.

The take-up track existed in the escapeway since on or about January 6,
2009, when the regulator was created through February 12, 2009, when the
subject citations were issued.

40.

The pallet of crib ties existed in the escapeway since on or about January
6, 2009, when the regulator was created through February 12, 2009, when
the subject citations were issued.

41.

Mine Examiner Adams last conducted a weekly exam of the primary
escapeway prior to the issuance of Cit. No. 8414211 on or about February
9, 2009.

42.

The concrete blocks outby, pile of gob, take-up track, and pallet of crib
ties were present in the primary escapeway at HG #4 since January 6,
2009, when the regulator was created through February 12, 2009, when the
subject citations were issued.

43.

Mine Examiner Dave Adams did, in fact, conduct weekly examinations for
hazardous conditions at the primary escapeway at HG #4 from January 8,
2009, through February 12, 2009.

32 FMSHRC Page 1377

44.

Mine Examiner Dave Adams did not note any hazardous conditions in the
weekly examination records for the primary escapeway at HG #4 during
the period from January 8, 2009, through February 12, 2009.

ID.
Testimony of the Witnesses and the Parties' Positions
On February 12, 2009 MSHA fuspector Bobby Jones inspected the primary escapeway to
the headgate ("HG") #4 at the Mach #1 mine, an underground coal mine. In testimony adduced
at the initial hearing on May 14, 2009,5 he described various hazardous items in the escapeway.
Jones testified at the May 13, 2010 hearing that these items were not noted in the weekly
examination book although they were obvious, extensive, and had existed since HG #4 went into
production. Jones issued a citation alleging a violation of Section 75.364(h), 6 that was significant
and substantial and resulted from Mach's unwarrantable failure.

Essentially, it is Mach's position that it was not in violation of Section 75.364(h), supra,
because it had a "good faith" belief that the cited accumulated materials were not "hazardous
conditions", and therefore were not required to be recorded under the terms of Section 75.364(h),

supra.
Mach relies on the testimony of David L. Adams, the examiner who conducted the
weekly examinations at issue. Adams was asked whether he believed that the cited material
constituted a hazard. He answered as follows: "[n]o, because there was a clear walkway, there
was a lifeline through there that was accessible to the miners. All the materials that's stated in
the citation is nothing that's abnormal for a mine, including the piece of belt structure." [sic] (Tr.
82). 7

5

At the hearing held on May 13, 2010, the transcript and record of the initial proceeding
(docket No. LAKE 2009-323-R) were incorporated into the record of the instant proceeding.
6

Section 75.364(h), as pertinent, provides as follows:
At the completion of any shift during which a portion of a weekly
examination is conducted, a record of the results of each weekly
examination, including a record ofhazardous conditions found during
each examination and their locations, the corrective action taken, and
the results and location of air and methane measurements, shall be
made ...The record shall be made by the person making the
examination or a person designated by the operator...

7

Unless otherwise noted, all transcript page citations refer to the May 13, 2010 hearing.
32 FMSHRC Page 1378

fu further explanation, Adams testified that:
[t]he area that was in question here, the overcast work, the construction work had
just recently been completed. The people that worked this section that would be
escaping through that area, if need be, were familiar with the area. They built it,
so they - - you know, if they had to come through the regulator to escape to the
stairway, they knew the walkway, they knew it was clear. Their biggest obstacle
would be the stairs on the overcast, not the materials that were to the side. (Tr.
82-83).
Also, he indicated that there was a clear path "from the opening in the regulator along the
rib line, for the distance from the regulator to the stairs to the first overcast." Id. At 83.
Last, Adams opined that in the event of smoke and poor visibility miners could pull down a
lifeline and " ... [t]hey would follow the rib line, because if you're lights go out in your house,
instead stumbling through the dark, you're going to find a wall. You're going to find something
familiar. They would follow the same path as what the lifeline would carry them to the
staircase." [sic] (Tr. 84).
Anthony Webb, Mach's Mine Manager testified that no one at the mine felt the
conditions present in the escapeway constituted a hazard. He stated that prior to February 12,
2009, no MSHA official had advised him that the mine's escapeways were not maintained safely,
or that they believed Mach's examiners failed to note hazardous conditions in their reports, or
that its examinations were inadequate.
Webb added that he had inferred that the type of materials found in the escapeway did not
present a hazardous condition because the "same condition existed at the regulator at Headgate
#3 in two previous quarters," which did not result in a citation from two other inspectors. (Tr. 6263). Upon further questioning, Webb admitted that he was specifically referring to several
blocks on both sides of the base of the regulator, but he was not aware of any of additional
materials present at Headgate #3 in those previous inspections. Webb asserted that no one from
MSHA had previously advised him that such items were a hazard.

Discussion
A.

Violation of Section 75.365(d), supra

The parties stipulated that the escapeway included a number of items, including a gob
pile, loose concrete blocks, a take-up track, and a pallet of crib ties that had been present in the
escapeway since January 6, 2009. Moreover, the parties previously stipulated that Adams
conducted weekly examinations of HG #4 from January 8, 2009, through February 12, 2009.

32 FMSHRC Page 1379

I previously found a violation of Section 75.380(d) due to the combination of the pallet of
crib ties, take-up track, pile of gob, loosely strewn concrete blocks on either side of the regulator,
and the presence of water on the floor, which would hinder and delay the emergency evacuation
of miners, especially any who were injured. 8 This finding becomes the law of the case. Despite
the presence of these items in the escapeway for approximately five weeks, the mine examiner
failed to note any of these conditions in his weekly reports. I have taken into account the opinions
of Adams and Webb, that they did not believe the accumulated items constituted hazardous
conditions. However, it is well established that the standards set forth in Title 30, Code of
Federal Regulations ("CFR") impose strict liability upon an operator. Western Fuels - Utah Inc.,
1lFMSHRC278 (Mar. 1989); ASARCO Inc., 8 FMSHRC 1632 (Nov. 1989).
Based on all the above, I find that Mach did violate Section 75.364(h), supra. 9
B.

Significant and Substantial

The violation in the present case was designated "significant and substantial". As set
forth in Elk Run Coal Co., Inc. 27 FMSHRC 899, 904-905 (2005), a violation is "significant and
substantial" if "based upon the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature." See Cement Div., Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981).
In Elk Run, supra, at 905 the Commission quoted the following further explanation it
previously provided in Mathies Coal Co., 6 FMSHRC 1-3 (1984):
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

8

Mach I, supra.

9

I take cognizance of Mach's argument that a proper examination was conducted under
Section 75.364(h) supra, if an examiner reasonably believed that the conditions he observed were
not hazardous. In support of this proposition, Mach cites the following cases: Secretary v. Arch
of Wyoming, LLC, 32 FMSHRC 568 (May 2010) (ALJ); Dumbarton Quarry Associates, 21
FMSHRC 1132, 1134-36 (Oct. 1999) (ALJ); Lopke Quarries, Inc., 22 FMSHRC 899. 911-12
(July 2000) (ALJ).
All these cases were decided by Commission Judges. These do not have precedential
value, and I am not bound by them. To the extent that they are not consistent with my decision,
I choose not to follow them.
32 FMSHRC Page 1380

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.
I previously found a violation of a mandatory safety standard due to the hazardous
conditions that existed in the escapeway. 10 Also, I found that the conditions of the escapeway
constituted a discrete safety hazard. Similarly, I found that based on the combination of
accumulated items in the escapeway, the hazard of stumbling and tripping, and the resultant
impediment to a prompt evacuation in an emergency, especially in the presence of smoke and
low visibility, that it was reasonably likely that a reasonably serious injury to a miner was
reasonably likely to have occurred. I concluded that the materials in the escapeway constituted a
significant and substantial violation of Section 75.380(d){l), supra.
Accordingly, I conclude that if the condition of the escapeway was itself a significant and
substantial violation, then for the same reasons the failure to document and report such
conditions constitutes a significant and substantial violation.
C.

Unwarrantable Failure

The citation at issue identified the violation to be an unwarrantable failure due to the
"extensiveness of these hazardous conditions [which] were obvious to the most casual observer."
Further, according to Jones, the hazardous conditions were not reported in five weekly
examination reports preceding the inspection.
In essence, it is Mach's position that the Secretary was not able to establish that the
violation herein was as a result of it's unwarrantable failure. Mach argues that it acted under a
"good faith" belief by Adams that the cited conditions were not hazardous, and thus were not
required to be recorded. Also, that the citation at bar was the first instance that MSHA had raised
any issue with regard to material in Mach's escapeways.
InJ.O. Coal Company, Inc., 31FMSHRC1346, 1350-1351(Dec.2009) the Commission
set forth the following analysis with regard to unwarrantable failure:
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30
U.S.C. § 814(d), and refers to more serious conduct by and operator in connection
with a violation. In Emery Mining Corp., 9 FMSHRC (Dec. 1987), the Commission
determined that unwarrantable failure is aggravated conduct constituting more than
ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such
conduct as "reckless disregard," "intentional misconduct," or a "serious lack of
reasonable care." Id. at2003-2004;Rochester&Pittsburgh Coal Co., 13 FMSHRC
189, 194(Feb. I99I);seea/soBuckCreekCoa/,Jnc. v. MSHA, 52F.3d 133, 136(7th
Cir. 1995) (approving Commission's unwarrantable failure test).

10

Mach I, supra
32 FMSHRC Page 1381

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 circumstance exist.
Aggravating factors include the length of time that the violation has existed, the
extent of the violative condition, whether the operator has been placed on notice that
greater efforts were necessary for compliance, the operator's efforts in abating the
violative condition, whether the violation was obvious or posed a high degree of
danger, and the operator's knowledge of the existence of the violation. See
Consolidated Coal Co., 22 FMSHRC 340, 353 (March 2000) ("Consol"); Cyprus
Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds,
195 F.3d 42 (D.C. Cir. Corp., 1999); Midwest Material Co., 19 FMSHRC 30, 34
(Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody
Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEngery Mines, Inc., 14
FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., 10 FMSHRC 705, 709
(June 1988).
1.

Extent of the violative condition.

Mach argues that any alleged violation was not extensive. Mach relies on the fact that
Jones had inspected all of Mach's escapeways which totaled approximately 16 miles without
issuing any citations for obstructions, whereas the cited area constituted only 60 feet. However,
according to Jones' testimony that was not impeached, the entire area that he cited was 100 or
120 feet in length. I find that due to the combination of the various accumulated materials that
extended 100 to 120 feet in an escapeway to have been extensive.
2.

The length of time that the violative condition existed.

In essence, it appears to be Mach's position that the fact that the cited conditions have
existed for five weeks should not cause the unwarrantable finding to be applied because Mach
had not been given any notice 11 that the materials constituted a violation. There is not any
dispute that the cited conditions had existed for five weeks prior to their having been cited by ·
Jones. I thus find that the violative conditions had existed and had not been reported for five
weeks prior to Mach's inspection that resulted in the citation at issue.

3.

Whether the operator was placed on notice that greater efforts were
necessary for compliance.

The record does not contain any evidence that MSHA had placed Mach on notice that
greater efforts were necessary for compliance. There is not any evidence of any discussions that
MSHA officials had with Mach concerning greater efforts in this regard, prior to the issuance of

llThe issue of notice is discussed below, IV(C)(3) infra.
32 FMSHRC Page 1382

the citation at issue. Nor is there any evidence in the record that Mach had previously been cited
for existence of materials in the escapeway that would impede a speedy evacuation. I therefore
find that it has not been established that Mach was placed on notice that greater efforts were
necessary for compliance.
4.

Whether the violation posed a high degree of danger.

Mach argues that it did not perceive the conditions as hazardous. In this connection, Webb,
who opined there was not a high degree of danger to miners, presented his reasons as follows:
... [I]f a guy went through that area and he would be feeling along the rib, he
would be going slow anyway. And something like that, ifthe guy bumps up against
the block with his foot he's going to know to pick his foot and step over it. That's
just the nature of coal mining. The guys are prepared for that. (Tr. 68).
He opined further as follows:
The people that worked this section that would be escaping through that area,
ifneed be, were familiar with the area. They built it, so they- -you know, ifthey had
to come through the regulator to escape to the stairway, they know the walkway, they
knew it was clear. Their biggest obstacle would be the stairs on the overcast, not the
materials that were to the side. {Tr. 82-83)
Lastly, Adams testified that in the event oflow visibility and smoke " ... [t]he lifeline is
overhead. They would bring the lifeline - - pull it down to them. They would follow the rib line,
because if you're lights go out in your house, instead stumbling through the dark, you're going to
find a wall. You 're going to find something familiar. They would follow the same path as what
the lifeline ":ould carry them to the staircase." [sic] {Tr. 84)
On the other hand, I found that the record establishes that the violation was significant
and substantial due to the failure to report the existence of a combination of accumulated items in
the escapeway creating tripping and stumbling hazards that would impede a prompt evacuation in
an emergency. (N(B), infra.) For essentially the same reasons, I find that the violation posed a
high degree of danger.

5.

The operator's efforts in abating the violative conditions.

As set forth in LO. Coal, supra, at 1356, the focus on the operator's abatement efforts is
on those efforts made prior to the citation or order. In this connection, the record does not
contain any evidence of any abatement efforts made by Mach prior to the issuance of the citation
therein by Jones.

32 FMSHRC Page 1383

However, it is significant to note that, as set forth inl.O. Coal, supra at 1356, "[a]n
operator's effort in abating the violative condition is one of the factors established by the
Commission as determinative of whether a violation is unwarraritable. Where an operator has
been placed on notice of a problem, the level of priority that the operator places on the abatement
of the problem is relevant. Enlow Fork, 19 FMSHRC at 17. Previous repeated violations and
warnings from MSHA should place an operator on 'heightened alert' that more is needed to
rectify the problem. New Warwick Mining Co, 18 FMSHRC 1568, 1574 (Sept. 1996). As set
forth above, (IV(C) (3) supra)), the record does not establish that Mach had been placed on
notice that it had a problem with hazardous items in escapeways.
Moreover, as set forth in IO. Coal, supra, abatement efforts relate to Mach's good faith
belief that the accumulated items were not hazardous. For the reasons discussed below,
(IV(C)(6)), the record establishes that the "good faith" belief was reasonable. Accordingly, I
conclude that the record establishes the existence of significant mitigating factors lowering the
level of Mach's negligence relating to non-abatement of the violative condition.
6.

Mach's knowledge of the existence of the violation. whether the violative
conditions were obvious. and the reasonableness of the "good faith" belief
that the cited items in the escapeway were not hazardous.
a.

good faith

The Secretary argues, based on the uncontradicted testimony of Jones, that the items he
cited were immediately obvious. Next, the Secretary argues that Mach's "good faith" belief that
these materials were not hazardous, was not objectively reasonable considering the combination
of obstructions in the escapeway. Therefore, it is maintained, that Adams should have
recognized the hazard presented.
As set forth above, (ill infra), Adams explained, based on his experience, the basis for
his belief that the materials cited were not hazardous. He referred to the presence of a lifeline
that was "accessible" to miners and a clear walkway or path. " ... from the opening in the
regulator along the rib line, for the distance from the regulator to the stairs to the first overcast"
{Tr. 83). He also described the materials in the escape as "not normal" and testified as follows:
"There was nothing in the area that wasn't present throughout the mine. Many places in
escapeways you're going to find block, you're going to find crib ties. In your secondary
escapeways, belt lines are present, belt structures are present." {Tr. 86) It is significant to note
his testimony that, prior to February 12, no one from MSHA had told him that the accumulated
items in the escapeway constituted hazardous conditions.
In further support of his belief that there were not hazardous conditions in the escapery
that needed to be reported, he indicated that at the time the conditions were cited he had a son
working on the sections whose "safety depends on me." {Tr. 87). I observed his demeanor, and

32 FMSHRC Page 1384

find his testimony credible in all these regards. Thus an inference might be drawn that he would
not have been motivated to disregard hazardous conditions in the area.
Therefore, I find that Adams, in "good faith," was of the opinion that the cited materials
did not constitute a hazardous condition that had to be reported
b. objectively reasonable under the circumstances.

In evaluating an operator's "good faith" belief, a determination must be made whether it
was "objectively reasonable under the circumstances" IO. Coal, supra, at 1357. In IO. Coal,
supra, at 1359 in remanding the judge's determination that the condition was not as a result of
the operator's unwarrantable failure, the Commission directed the judge to consider" ... the issues
of the operator's knowledge of the existence of the violation and whether the violation was
obvious." While it is clear that the existence of the cited material was patently obvious, the issue
for resolution is whether the hazard was obvious, and whether Mach should reasonably have
known of the hazard. fu I 0. Coal, supra, one of the errors cited by the Commission as having
been made by the Judge was that " ... [he] did not pose the question of whether IO's conduct was
'reasonable' under the circumstances after it had received four MSHA citations on this very
issue." Thus it is most significant to note that in the case at bar, as set forth above N(C), infra,
Mach had not been placed on notice by MSHA that there was a problem with the materials in
escapeways.
I find, considering the lack of notice from MSHA, that the level ofMSHA's negligence is
mitigated regarding what it reasonably should have known concerning the existence of a hazard,
For all the above reason, I find that it has not been established that the level of
Respondent's negligence relating to the violation at bar reached the level of aggravated conduct.
Accordingly, I find that it has not been established that the violation was a result of Mach's
unwarrantable failure.
Conclusion
For all the above reasons, I conclude that the Respondent established that Mach violated
Section 75.364(h), supra, and that the violation was significant and substantial. I also conclude
that it has not been established !Pat the violation was a result of Mach's unwarrantable failure.

32 FMSHRC Page 1385

ORDER
It is Ordered that Citation No. 8414214 be amended to reflect the fact that the operator's
violation of Section 75.364(h), supra, was not the result of its unwarrantable failure. It is further
Ordered that Docket No. LAKE 2009-324-R be Dismissed.

~cib

Administrative Law Judge

DISTRIBUTION: (Certified Mail)
Christopher D. Pence, Esq., and David J. Hardy, Esq., Allen, Guthrie, McHugh & Thomas,
PLLC, 500 Lee Street, East, Suite 800, P.O. Box 3394, Charleston, WV 25333
Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. D~artment of Labor, 230 S.
Dearborn Street, 8th Floor, Chicago, IL 60604

32 FMSHRC Page 1386

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9964 IFAX: 202-434-9949

AMERICAN COAL COMPANY,
Contestant

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

September 28, 2010
CONTEST PROCEEDING
Docket No. LAKE 2010-408-R
Order No. 8418503; 01/19/2010
Galatia Mine
Mine ID 11-02752

DECISION

Appearances: Robert H. Beatty, Jr., Esq., Dinsmore & Shohl, LLP, Morgantown, WV 26501,
for the Contestant
Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor,
Chicago, IL 60604, for the Respondent
Before:

Judge Weisberger
Statement of the Case

This case is before me based upon a Notice of Contest filed by American Coal Company
challenging the issuance by the Secretary of Labor, Mine Safety and Health Administration
("MSHA") of an Order issued under Section 103(k) 1 of the Federal Mine Safety and Health Act
of 1977 ("The Act"). An expedited hearing was held in St. Louis, Missouri. At the conclusion
of the hearing the parties presented oral arguments, and a bench decision was made. The
decision is set forth below, with the exception of the correction of non-substantive matters.
Introduction
American Coal operates the Galatia Mine, an underground coal operation. Coal is
brought to the surface by conveyors and dumped on the New Future Stockpile.

1

Section 103(k), supra provides, as pertinent, as follows:
fu the event of any accident occurring in a coal or other mine, an
authorized representative of the Secretary, when present, may issue
such orders as he deems appropriate to insure the safety of any
person in the coal or other mine, ...

32 FMSHRC Page 1387

The Parties; Witnesses
Michael Rennie, an MSHA supervisor, was at the site on January 19, 2010. He observed
smoldering areas in the lower portion of the pile.
The Secretary also adduced the testimony of Wendell Ray Crick, who has been an MSHA
inspector since 2000, and was previously a miner for approximately 20 years. Prior to his work
as an MSHA inspector he made annual refresher training presentations in various areas including
stockpile safety. In addition, he has eight years experience as a firefighter.
Rennie testified that he arrived at the New Future Stockpile somewhere between 8:00 and
8:30 a.m. on January 19.
At the time that he arrived he picked up a sulphur-like odor which he described as a
burning coal smell. According to him, the odor got stronger as he got closer to the smoking
areas. He indicated that at approximately five different locations, he observed some areas that
were smoking. Accordingly to Rennie, the smoke was about three to five feet in diameter and
rose about eight to ten feet high. He described the smoke as whitish-brownish.
He opined that the hazard was due to the fact that at any time the conditions that he
observed could burst into flame due to the action of oxygen or wind. He also indicated that this
can cause burning in a void area in the stockpile. In general, it was his opinion that, essentially
based on his experience as a firefighter, if there is smoke, there is fire.
He also indicated that at the five areas where he saw smoke, there was a perimeter around
the three to five foot diameter of the smoke that he observed. The perimeter was between eight
inches and two feet and was composed of white ash. He did not see any flames at the smoking
areas that he observed.
Crick issued an order under Section 103(k), supra. The order alleges, inter alia, as
follows:
"Upon inspection of the New Future raw coal stockpile located at the New
Future portal, the stockpile is observed with 5 separate locations smoking
with white colored ash surrounding these areas ... "
Michael Smith, a safety inspector, testified for the company. He indicated that he
traveled with the inspector and he also did not observe any fire.
Discussion
The parties stipulated that the issue of the existence of a fire on the New Future
Stockpile on January 19, 2010, is dispositive of this proceeding; i.e., it will result in either
32 FMSHRC Page 1388

dismissal of the citation or dismissal of the Notice of Contest.
In essence, the Secretary argues that flames are not necessary to support a finding of fire.
The Secretary relies on the testimony of the inspector regarding the presence of smoke, white
ash, and "smoldering" {Tr. 25, 27, 28, 29, 54). He also testified that if oxygen or air "hits" hot
coal or "smoldering ... it can burst into flame at any time." {Tr. 59).
The Secretary argues, in essence that her interpretation that a fire does not require the
presence of flames, should be accorded deference, as it is consistent with the purpose of the Act
to provide for safety of miners and mine safety, and to enable the quick evacuation of miners in
the event of a fire.
The Secretary also relies on two treatises that set forth a discussion of two types of
combustion; one is a fire that requires a flame, and the other is a type of fire or combustion that
does not require a flame. And the Secretary also relies on Phelps Dodge Tyrone Inc., 29
FMSHRC 669 (Aug. 2007) (ALT Manning)(holding inter alia, the flames must be present for
there to be a "fme", that it was ''unplanned" and that it was not extinguished within the time
requirements of30 CFR) aff'd in part, 30 FMSHRC 646 (2008) {the Commission affirmed the
Judge's fmdings that a fire was "unplanned" under Section 502{h){b), but did not make a
majority decision as to whether a "fire" requires the presence of flames).

It is critical to focus in on exactly what is at issue here and what is the framework upon
which a decision must be made. At heart here is the challenge to an order issued by the Secretary
under the authority of Section 103(k) of the Act which states, pertinent, as follows: "In the event
of any accident occurring in a coal mine, an authorized representative of the Secretary, when
present, may issue such orders as he deems appropriate to ensure the safety of any person in the
coal or other mine" (emphasis added).
The plain words of Section, 103(k), supra authorize the Secretary to take action "when
[the secretary's representative is present] in the event of an accident occurring in the mine." The
key question for resolution, as posed by counsel, is what is an accident within the meaning of
Section 103(k), supra. The next step is to look at the Act for a defmition of"accident". Section
3(k) of the Act defines "accident" as including "a mine explosion, mine ignition, mine fire ..."
The Act does not define the term "mine fire." The Secretary has made reference to §30 CFR
75.l 103-4(a)(2)2 and 30 CFR §S0.2(h)(6). 3 The Secretary's regulations are promulgated subject

2

Section 75.l 103-4(a)(2) provides, as pertinent, as follows: " ... Where used, sensors
responding to radiation, smoke, gases, or other indications of fire, shall be spaced at regular
intervals to provide protection...".
3

Subsequent to the hearing, the parties stipulated that the transcript should be amended
to reflect the fact that the Secretary cited Section S0.2(h)(6) and not Section 50.1O(h)(6) as was
set forth in the hearing transcript. Section 50.2(h)(6) provides that "accident" means, as
pertinent, as follows:
32 FMSHRC Page 1389

to notice but under the authority of the Act.
The sections referred to by the Secretary do not relate to the issuance of a Section 103(k)
order no. Mainly they relate to the definition "of fire" as it pertains to regulatory responsibilities
of a mine operator such as reporting an accident, a fire, or having various sensory equipment.
However, once we're dealing with the authority of the Secretary under a section of the Act, the
only controlling definitions are those set forth in the Act, rather than some regulatory definition
or provision that doesn't pertain to a section of the Act.
The Commission has held that in interpreting a statute, the plain meaning of its terms is
controlling. Phelps Dodge, supra, at 651-652. Further, as set forth in numerous commission
cases, in determining the meaning of a term reference is made to its ordinary meaning. Bluestone
Coal Corp., 19 FMSHRC 1025, 1029 (June1997); see also cases cited therein.
In ascertaining the common meaning of a statutory term resort is made to a dictionary. 4 I
note that in Webster's Third New International Dictionary (2002), "fire" is defined as "the
phenomenon of combustion manifested in light, flame, and in heating, destroying and altering
effects." (emphasis added). Random House Dictionary of the English Language, (2nd ed.)
(unabridged) (1996) defines "fire," as is pertinent as "a state, process, or instance of combustion
in which fuel or other material is lighted and combined with oxygen giving off heat, light and
flame" (emphasis added). What is in common in both of these unabridged dictionary definitions
is the fact that the ordinary meaning of "fire" means the production of a flame.
In the case at bar, there was not a flame present in the cited areas, when observed by the
inspector. Applying the common meaning, I don't find any ambiguity with regard to the
language of Sections 103(k), supra, and 3(k), supra.
I have also take into cognizance the Secretary's argument with regard to deference.
However, when it comes to deference, the starting point is the plain meaning of the statute and,
whether there's any ambiguity. Phelps Dodge, supra,_! find that, based on the common meaning
of "fire" that there is not ambiguity in Section 3(k), supra.
As set forth in Akzo Noble Salt v. FMSHRC 212 F 3rd 1301 (D.C. Cir. 2000). The
Secretary's interpretation of a Regulation to be deferred to when it is the fair and

"In underground mines, an unplanned fire not extinguished within 1O minutes of
discovery; in surface mines and surface areas of underground mines, an unplanned fire not
extinguished within 30 minutes of discovery.''
4

The Secretary made some reference to treatises and treatise at various discussions, but
they are not authoritative when it comes to the issue of what is the ordinary meaning of a
statutory term. The only authoritative source for the common meaning of the word set forth in a
statute is a dictionary.
32 FMSHRC Page 1390

"considered judgment." Akzo, supra, at 1304. I can not find any cases that require or hold
that an authoritative interpretation is, as in the case at bar, an argument by counsel and/or
position of a Secretary's witness at trial. 5
Conclusion
Based on the parties' stipulations and for all the above reasons, I find that since the evidence fails
to establish that there was a mine fire, it follows that there was not an "accident" as defined in
Section 3(k), supra. Therefore, I find that there was not any basis to allow for the issuance of an
Order under Section 103(k) of the Act. Thus, as was stipulated to by the parties, the order at
issue is Dismissed.
ORDER
The Order issued by the inspector is dismissed, and the Notice of Contest filed by the operator is
sustained. If further Ordered that this case be Dismissed.

~~

Avram Weisberger
Administrative Law Judge

Distribution: (CERTIFIED MAIL)
Robert H. Beatty, Jr., Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Morgantown, WV
26501
Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South
Dearborn Street, Chicago, IL 60604
/Ip

5

Moreover, I take cognizance of the Secretary's Inspector who opined that a fire could
start up at any time. He does have extensive experience as firefighter. However, the record does
not contain evidence of any extensive experience with regard to coal fires, or that the chemical
factors, or physical factors relating to coal fires, are the same as fires that a fireman would
normally encounter. Also, it has not been established that the inspector is an expert relating to
coal combustion. Therefore, I do not accord much weight to his above opinion.

32 FMSHRC Page 1391

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

September 28, 2010
DISCRIMINATION PROCEEDING

MICHAEL R. LEE,
Complainant,

Docket No. WEST 2009-1063-DM
Case No. RM-MD 2008-13

v.

Mine ID: 24-01-01467
Troy Mine

GENESIS, INC.,
Respondent.

DECISION
Appearances: Michael R. Lee, pro se, Troy, Montana, Complainant;
Karen L. Johnston, Esq., Jackson Kelly, PLLC, Denver, Colorado, on behalf of
Respondent.
Judge Paez

Before:

This case is before me upon a complaint of discrimination filed by Michael R. Lee
("Lee") against Genesis, Inc. ("Genesis"), pursuant to section lOS(c) of the Federal Mine Safety
and Health Act of 1977 (the "Act" or "Mine Act"), 30 U.S.C. § 815(c).

I. Procedural Backeround
Lee filed a complaint on August 20, 2008, with the Mine Safety and Health
Administration ("MSHA"), pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C.
§ 815(c)(2). 1 1:3Y letter dated June 4, 2009, MSHA informed Lee that, based on the information
1

Section105(c)(2) of the Mine Act states, in relevant part:
Any miner ... who believes that he has been discharged, interfered with,
or otherwise discriminated against by any person in violation of this
subsection may, within 60 days after such violation occurs, file a
complaint with the Secretary alleging such discrimination. Upon receipt
of such complaint, the Secretary shall forward a copy of the complaint to
the respondent and shall cause such investigation to be made as [s]he
deems appropriate.... If upon such investigation, the Secretary
determines that the provisions of this subsection have been violated, [s]he
shall immediately file a complaint with the Commission, with service
upon the alleged violator and the miner, ... alleging such discrimination
or interference and propose an order granting appropriate relief
30 U.S.C. § 815(c)(2).
32 FMSHRC Page 1392

gathered during its investigation of his complaint of discrimination, it had determined that a
violation of section 105(c) of the Mine Act did not occur. Lee, without the assistance of counsel,
initiated this case on June 23, 2009, under section 105(c)(3) ofthe Act, 30 U.S.C. § 815(c)(3). 2
Lee alleges he was terminated from employment at Genesis for complaints he made regarding
health and safety at the Troy Mine. Lee also alleges that Genesis denied him his safety bonus
and that Genesis attempted to have Lee's unemployment benefits denied. 3 A hearing was held in
Coeur d'Alene, Idaho, pursuant to section 105 of the Act, 30 U.S.C. § 815. At the conclusion of
the hearing, the parties were permitted to submit written post-hearing briefs.4
Genesis acknowledges that Lee engaged in a protected activity and suffered adverse
action. However, Genesis asserts there is no causal connection between the two and that Lee was
terminated based on poor performance. Therefore, the general issue before me is whether Lee's
termination was motivated in part by the protected activity, or whether Genesis would have taken
action based on Lee's unprotected activity alone.
For the reasons stated below, Complainant's discrimination claim is dismissed.

II. Fin dines of Fact
2

Section 105(c)(3) of the Mine Act states, in relevant part:
Within 90 days of the receipt of a complaint filed under paragraph (2), the
Secretary shall notify, in writing, the miner, applicant for employment, or
representative of miners of his determination whether a violation has
occurred. If the Secretary, upon investigation, determines that the
provisions of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's determination, to
file an action in his own behalf before the Commission, charging
discrimination or interference in violation of paragraph (1 ).
30 U.S.C. § 815(c)(3).
3

During the hearing, Lee did not present any evidence regarding his alleged safety
bonus. However, in a letter dated September 28, 2008, to the Montana Department of
fudustry, Lee states he was paid a safety incentive after his termination. (Compl. Ex. C95.) Regardless, the safety incentive is discretionary. (Compl. Ex. B-101.) Further, Lee
admitted that Genesis unsuccessfully contested Lee's receipt of unemployment benefits,
as Lee in fact received unemployment benefits from the State of Montana. (Tr. 16, 217;
Compl. Ex. D.)
4

After the hearing, Lee submitted a Post-Hearing Statement on January 27, 2010.
Genesis submitted a Post-Hearing Brief on January 26, 2010, and a Response to
Complainant's Post-Hearing Statement on February 3, 2010. Lee submitted a Reply
Statement on April 2, 20 I 0.
32 FMSHRC Page 1393

Genesis operates the Troy Mine in Montana where Lee worked. The Troy Mine is an
underground mine that produces copper and silver concentrate. {Tr. 28.) This mine does not use
the sophisticated technology that more modem mining operations have adopted. Rather, the
Troy Mine employs an older system of crushers and float circuits that filter out the valuable ore
from the rock and debris using mechanical and chemical processes.
The process begins with the extraction of copper and silver ore that is embedded in rock.
Once this ore is extracted from the ground, it is crushed, travels on a conveyor belt to a secondary
crusher, and then travels to the fine ore bin. {Tr. 28, 248.) From the fine ore bin, the rock is
conveyed to the concentrator, which contains the grinding circuit and the flotation circuit. {Tr.
248.) The particles exit the grinding circuit through cyclones, which separate out the heavier
debris using centrifugal force, and then enter the float circuit as slurry, which is a mixture of
water and finer particles. (Tr. 115, 249-50.) The flotation circuit is located in the "ball mill"
area of the mine and consists of two circuits - the rougher circuit and the cleaner circuit, which
are used to separate out the copper and silver ore from the slurry. {Tr. 251-52.) The flotation
operator is required to adjust the amount of chemicals added to the slurry in response to the
changes in "feed grade" - i.e., the percentage of valuable ore flowing into the circuits. {Tr. 256.)
The floatation operator also has the responsibility to continually evaluate slurry moving through
the rougher circuit and determine through visual inspection whether the "reagent" levels-i.e.,
chemical substance levels-need to be adjusted. (Tr. 176, 258-59.) This whole process is aimed
at extracting as high a percentage of copper and silver ore from the mined rock as possible.
Not long after Lee was hired, Genesis installed an on-stream analyzer to assist in realtime analysis of the feed grade traveling through the flotation circuit. {Tr. 256.) As the slurry
leaves the mill, it goes to the refuse or "tailings area" for thickening and then goes through a
system of pipes over the length of several miles to the tailings pond. {Tr. 30, 253-54.) If the
copper and silver ore is not recovered from the slurry before it reaches the tailings, then it is
forever lost. {Tr. 254-55.) Thus, the ore recovery rates from the floatation circuit achieved by a
flotation operator are critical to the profitability of the mining operation. Indeed, during the
entire milling process, a number of samples are taken at various points on each shift for analysis
at the mill assay lab to determine whether a proper rate of ore recovery is taking place. (Tr. 25556.) The Genesis mill installed an on-stream analyzer in the fall of2006, and it became
operational in June 2007. {Tr. 256-57.) A flotation operator's performance is based upon
recovery rate measurements. {Tr. 86-87.) The flotation operator is part of a four-person team
that also includes a tailings operator, a grinding operator, and a grinding helper. (Tr. 254.) The
Troy Mine had a day shift and a night shift. (Tr. 119.)
Michael Lee worked as a miner over a period of approximately twenty-five years before
he was hired by Genesis. {Tr. 24.) Genesis first hired him on January 23, 2007, as a temporary
employee at the Tech I level. {Tr. 26.) Lee's brother, who worked for Genesis, recommended
Lee for the job, and Lee was at times on the same four-person team with his brother during his
employment with Genesis. (Tr. 265-66, 457-58.) In March 2007, Genesis offered Lee a
permanent job working in the secondary crusher and, occasionally, in the ball mill. (Id.) Lee
was promoted to Tech 2 shortly after he was offered permanent employment. (Tr. 26; Ex. R-2.)
A few months later, Lee was moved to the concentrator and promoted to Tech 3. {Tr. 27, 268;
32 FMSHRC Page 1394

Ex. R-2.) Mill Manager Steve Lloyd testified that he "expected a lot" out of Lee because of his
prior experience (Tr. 280.) Lee was employed in a similar mining operation in Alaska for several
years just prior to his employment with Genesis, though that mining operation was heavily
computerized unlike the Troy Mine (Tr. 146-47, 279-80.) Lee had been terminated from the
position at the Alaska mine because he failed a drug test. (Tr. 148.)
The record establishes that Lee engaged in protected activity. In the spring of2007, Lee
complained about dim lighting in the secondary crusher, and he provided maintenance supervisor
Clint Jensen with a list oflight fixtures needing repair. (Tr. 36-37.) Lee testified they were not
fixed for several months. {Tr. 37.) Steve Lloyd addressed the repair himself. (Tr. 310.) Later,
in July 2007, Lee observed an ignition switch problem on a tailings pickup truck. (Tr. 164.) Lee
called a mechanic to fix the problem and marked the issue on a vehicle preshift safety card. (Tr.
164.) However, he did not have any verbal communications with anyone in management
regarding the condition. (Tr. 164-65.) Lloyd testified that he did not learn of this issue until he
read Lee's prehearing documents in this matter. (Tr. 311.) In October 2007, Lee left a note for
Lloyd pointing out the failure of an emergency stop button. (Tr. 45; Ex. R-6.) Lloyd corrected
the condition, responded to the note, and thanked Lee for bringing the issue to his attention. (Tr.
165; Ex. R-6.) During the fall of2007, Lee marked "no safe access" on his pre-shift cards for
several days because he observed an open flame from a heater in a reagent storage area withir: 15
feet of the chemical storage area. {Tr. 50.) This issue was abated by red-tagging and shutting off
the heater. (Tr. 320.) In a November 21, 2007, meeting, Lloyd informed Lee that he was not
getting promoted to Tech 4 because he needed more experience. (Tr. 337; Ex. R-7.) However,
Lee received his promotion approximately one month after this meeting. (Tr. 339; Ex. R-2.)
Lee testified that, over time, he became more aware of safety issues in his workplace.
(Tr. 225.) For example, on a preshift card, Lee wrote down that he felt there should be a horn on
the regrind mill. (Tr. 358.) However, because it is not required by MSHA and did not appear to
provide any greater measure of safety, Steve Lloyd denied this request. (Tr. 359.) Additionally,
Lee provided Lloyd with a handwritten note regarding the sumps' identification tags and
switches. (Tr. 359-60.) Lloyd told Lee that only one sump was not identified properly, but he
also acknowledged Lee's concern over the switch problem and replaced it. (Tr. 360.)
In January 2008, Lee was assigned to shovel snow off of a roof. (Tr. 55.) While doing
so, he pointed out that the ladder used to climb up to the roof was "rickety" and that there was no
fall protection. (Tr. 57; Compl. Ex. B-14.) About ten minutes later, Lee was instructed to come
down off the roof. (Tr. 58.) In February 2008, Lee found a note in the garbage can in Clint
Jensen's office identifying an unsafe spot in the mine due to a fallen rock. (Tr. 64, 67; Compl.
Ex. F-135.) Lee contacted the district manager ofMSHA and gave a statement regarding this
note, but did not tell anyone at Genesis that he was doing so. (Tr. 69-70, 173; Compl. Ex. F.)
During this time, Lee was working as a float operator and had been assigned to that position for
approximately five months. (Tr. 283.) Lee was the primary float operator beginning in January
2008. (Tr. 282.)

Steve Lloyd testified that in March 2008 he removed Lee from flotation operator as a
''wake-up call" to show he was concerned about Lee's performance. (Tr. 283.) Lloyd stated that
32 FMSHRC Page 1395

in a performance meeting he made it clear to Lee that his current results were unacceptable, as
Lee had the lowest recovery numbers of all four crews. (Tr. 280, 284.) Lee testified that he did
not view this change as a punishment or demotion. (Tr. 97; Compl. Ex. B-13.)
In April 2008, Lee was moved to the ball mill in order to get additional training on the
float circuit. (Tr. 463.) Also in April 2008, Mike Roby and Steve Lloyd addressed Lee's phone
usage. (Tr. 81-82.) Lee was given a written warning to limit his personal phone calls on
company time. (Tr. 81-83.) On May 30, 2008, Lloyd held a meeting with Lee to discuss
performance expectations. (Tr. 293.) Clint Jensen and team leader and tailings operator Mike
Roby were also present. .(Id.) Lloyd communicated to Lee that he wanted Lee to do his best and
to do as well as his peers, but Lloyd testified he did not give Lee specific recovery percentages
because these numbers tend to fluctuate. (Tr. 293-94; Compl. Ex. B-35.) Lee went back on the
flotation operator circuit in June 2008 and had the highest recovery of the month. (Tr. 295;
Compl. Ex. A-d-1, 2.) In June 2008, another team leader, Kelly Cannon, had recovery numbers
three points lower than other crews. (Tr. 294.) However, Cannon had only one week of flotation
experience at that time. (Id.)
In July 2008, Lee's recovery numbers on two shifts were fifteen points below that of
other crews. (Tr. 76, 103, 300; Ex. R-4.) As Mike Roby testified, low recoveries mean monetary
loss, because more copper and silver ore are lost as refuse in the tailings. (Tr. 462.) Lloyd
believed Lee's performance problem was due, in part, to the fact that he did not rely on the
analyzer and did not "pan his circuit" - i.e., did not place slurry from a float circuit in a pan and
swirl it around to separate out the copper or silver ore to see how much is being recovered and
use this information to adjust the amount of chemicals added to the float circuit. (Tr. 444.)
Lloyd and Lee both testified that Lloyd spent time teaching Lee how to properly pan a circuit;
however, Lee admitted he still had difficulty perfecting this technique. (Tr. 439-40, 442.) Also,
Mike Roby believed Lee's performance was impacting the rest of the crew because Lee's crew
members were becoming very negative. (Tr. 486.) For example, Lee was involved in a "heated
argument" with his brother when they were on the same four-person team. (Tr. 494.) Lee also
had shouting matches with Clint Jensen and Jeff Franke, another Genesis employee. (Tr. 303.)
Additionally, Lee admitted to a disagreement with Mary Jo Moore that brought her to tears. (Tr.
128-31.) Lee even stated, "[t]hat is the only incident that I remember where I had intimidated
somebody to tears." (Tr. 130-31.)

Lee was the day shift float operator on July 18, 2008, when a power bump (or loss of
electricity) occurred that caused the mill water pumps to stop running. (Tr. 206-07.) Lee
testified that if the mill water pumps go down, the float operator has to "start running" to limit
the loss of copper and silver ore to the tailings. (Tr. 208.) Steve Lloyd testified that Lee did not
respond to the bump "like the rest of the crew." (Tr. 370; Compl. Ex. B-36.) Lee did not jump
up and run to drain his flotation cells, and he did not turn off his reagents. (Tr. 369.) After this
incident, around July 24, 2008, Lloyd decided to terminate Lee. (Tr. 415.) Lloyd testified that he
did not consider giving Lee a few days off rather than firing him, because he stated he was
"actively counseling" Lee beginning in April 2008. (Tr. 419.) During the "counseling sessions,"
Lloyd did not give Lee any documentation and did not keep any documentation in a personnel
file. (Tr. 419, 421.) Lee testified that Genesis's apparent policy, as conveyed to the state
32 FMSHRC Page 1396

unemployment division, was that mill employees who could not demonstrate competency at the
Tech 4 level would be demoted to Tech 3. (Tr. 131-32; Ex. B-19, 20.) On August 4, 2008,
Lloyd, along with Jensen, Roby, and Vic White, the human resources manager, held a meeting
with Lee where he was informed that his employment at Genesis was being terminated for poor
performance and spending too much time in the break room. (Tr. 75-76.)

III. Principles of Law
Section 105(c)(l) of the Mine Act provides in pertinent part:
No person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherwise
interfere with the statutory rights of any miner ... because such
miner ... has filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the operator's agent
... of an alleged danger or safety or health violation.
30 U.S.C. § 815(c)(l).
Under established Commission law, a complainant in a section 105(c) proceeding
establishes a prima facie case of a violation if a preponderance of the evidence proves (1) that he
engaged in a protected activity and (2) that the adverse action was motivated in any part by the
protected activity. Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998);
Sec '.Y ofLabor on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-800 (Oct.
1980), rev'd on other grounds, sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981 ).
The mine operator may rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part motivated by the protected activity. Id.
If the mine operator cannot rebut the prima facie case, it nevertheless may defend affirmatively
by proving that it also was motivated by the miner's unprotected activities and would have taken
the adverse action in any event based on unprotected activities alone. Driessen, 20 FMSHRC at
328-29; Pasula, 2 FMSHRC at 2800; Sec '.Y ofLabor on behalf ofRobinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).
In evaluating whether a complainant has proven a causal connection between protected
activities and adverse action, the following factors are to be considered: (1) knowledge of the
protected activity; (2) hostility or animus toward protected activity; (3) coincidence in time
between protected activity and the adverse action; and (4) disparate treatment. Secy ofLabor on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other
grounds, 709 F. 2d 86 (D.C. Cir. 1983).
In analyzing a business justification as an affirmative defense for an adverse action, the
Commission has held that:

32 FMSHRC Page 1397

[t]he proper focus, pursuant to Pasula, is on whether a credible justification
figured into motivation and, if it did, whether it would have led to the adverse
action apart from the miner's protected activities .... [T]he narrow statutory
question is whether the reason was enough to have legitimately moved that
operator to have disciplined the miner. Cf R-W Service System, Inc., 243 NLRB
1202, 1203-04 (1979) (articulating an analogous standard).

Chacon, 3 FMSHRC at 2516-17.

IV. Further Findines of Fact and Conclusions of Law
Because Genesis neither contests that Lee engaged in a protected activity when he made
several safety complaints nor contests that Lee suffered adverse action when his employment was
terminated, the only issue to be decided is whether the adverse action was motivated, at least in
part, by Lee's protected activity, or whether Genesis would have taken the adverse action for
unprotected activity alone.

A.

CAUSAL CONNECTION
1. Knowledge of Protected Activities

Steve Lloyd, who ultimately made the decision to terminate Lee, did not dispute that he
was aware of Lee's safety complaints. In fact, Lee frequently went to Lloyd with his safety
concerns. However, Lloyd was not aware of two of Lee's complaints: Lee's statement to MSHA
regarding the note found in Jensen's garbage can and the pickup truck ignition switch problem.
Lee admitted he did not inform anyone in management of these two complaints, and Lloyd
testified he did not know about these complaints until after Lee initiated this discrimination
proceeding. Moreover, Lloyd testified, in response to numerous questions, that none of Lee's
safety concerns were in any way part of his decision to terminate Lee's employment. Lloyd
stated that the ;reason he terminated Lee was due to Lee's poor performance. (Tr. 308.)
Moreover, Lee testified that he had great respect for Lloyd and believed Lloyd was a good
manager and truly concerned about safety, as evidenced by his actions in response to Lee's safety
complaints. (Tr. 223.) I find Lloyd to be a very credible witness and credit his testimony about
his being unaware of Lee's safety concerns reported to MSHA. Nevertheless, I determine that
Genesis had knowledge of Lee's other protected activities, given Lee's history ofreporting safety
issues to Lloyd.
2. Hostility
Lee continued to receive promotions during his tenure at Genesis, even after making
safety complaints. There is no evidence that Lee received any written warnings or demotions.
Lloyd stated he "actively counseled" Lee to help Lee perform his job to the best of his ability.
Additionally, Lee was personally thanked by Lloyd for bringing safety violations to his attention.
While Lee testified that Clint Jensen seemed to be upset with him at times, there is no evidence
that Jensen, or any other member of management, treated Lee with any hostility after making the
32 FMSHRC Page 1398

complaints or solely because of Lee's concerns. Moreover, Lee was permitted to take vacation
even though he did not follow proper procedure for requesting time off. (Tr. 341.) Even though
Lee did not receive his Tech 4 promotion when originally scheduled, after gaining more hands-on
experience, he was promoted. Also, Lee did not consider being taken off the flotation circuit in
March 2008 to be an adverse action.
Lee further alleges that Genesis informed, and continues to inform, potential employers
that Lee is not eligible for rehire, which is preventing Lee from obtaining employment.
Specifically, Lee stated that he believes Genesis was "blacklisting" him. (Tr. 239.) On crossexamination during the hearing, Lee addressed the allegation:
Q:
Other than the comment from this woman [at the trucking
company where Lee applied for a job] that Genesis stated you were
not eligible for rehire, [are there] any other facts that cause you to
conclude that you're being, as you said, blacklisted by Genesis?
A:

No other facts, no.

(Tr. 241.) On redirect, Lee admitted he made assumptions and had "no way of knowing what
Genesis is telling potential employers." (Tr. 242.) Other than this unsupported testimony, Lee
offered no other evidence of Genesis's alleged blacklisting. I credit Lloyd's testimony as to his
lack of knowledge about Lee's discussions with MSHA, as well as his reasons for terminating
Lee due to performance. Because Lee was let go by Genesis due to its stated issues with his
performance, I believe that informing potential employers that Lee is ineligible for rehire at
Genesis is a reasonably accurate statement based on the actions Genesis took regarding
terminating Lee's employment. Considering all the evidence adduced at hearing as a whole, I
determine that neither Lloyd nor Genesis's management exhibited hostility or animus towards
Lee due to his protected activities.
3. Coincidence in Time
For the first thirteen months of Lee's employment, Genesis did not issue him any
reprimands or take any disciplinary action against him. During those thirteen months, Lee made
his safety complaints to management. Lee first brought a safety concern to Genesis's attention
only a few months after he began employment at Genesis. The last "protected activity" that
anyone at Genesis knew about prior to Lee's termination was in January 2008 when Lee was
shoveling snow on a roof. Lee was not terminated until seven months later in August 2008. In
other cases where adverse action was found to be motivated, in part, by a protected activity, the
employees experienced adverse actions less than two months - usually within a few days - after
engaging in a protected activity. See Pasula, 2 FMSHRC 2786; Robinette, 3 FMSHRC 803;
Chacon, 3 FMSHRC 2508; Driessen, 20 FMSHRC 324; Sec '.:Y ofLabor on behalf of Gatlin v.
Kenamerican Res., Inc., 31 FMSHRC 1050 (Oct. 2009). Here, no such coincidence exists. I,
therefore, determine that there is no coincidence in time between Lee's protected activity and the
adverse action taken against him.

32 FMSHRC Page 1399

4. Disparate Treatment

In examining the disparate treatment factor, the Commission has stated that, "[t]ypical
forms of disparate treatment are encountered where employees guilty of the same, or more
serious, offenses than the alleged discriminatee escape the disciplinary fate which befalls the
latter." Chacon, 3 FMSHRC at 2512. Here, little evidence was offered as to whether other
employees were disciplined or demoted based on performance. Both parties admitted that Lee
was taken off of his flotation circuit to get more hands-on experience. And even Lee admitted
that he did not perceive this event as a disciplinary action or demotion. While the evidence may
tend to show that no other Genesis employee had been fired recently (see Tr. 509), Lloyd credibly
testified that there were high performance expectations of Lee because of his prior experience.
Even though the other crews' recovery numbers all varied, Lee's numbers were more contrasting
than his experienced-operator peers. Lloyd testified that Kelly Cannon was not disciplined for
his low numbers because he had little experience, whereas Lee had significant flotation circuit
experience. Lloyd's testimony on these facts was not undermined by cross-examination. Cannon
was not guilty of the same, or more serious, offense as Lee. Lee had more experience and his
recovery numbers were significantly lower.
Moreover, Lloyd testified that members of Lee's team, including Lee's own brother as
well as the team leader, had complained about Lee's lackadaisical approach to his work, such as
remaining in the ball mill for long periods oftime instead of actively checking the floatation
circuits. Lloyd testified that he believed this affected the morale of the team, as testimony
already reflected that Lee had interpersonal problems with some of his coworkers, some of which
resulted in crying and in shouting matches. Lloyd also was aware that Lee had been using the
company telephone to call his girlfriend in Alaska, and she also had been calling Lee at work on
the company phone line. Although Lloyd did not discipline Lee for this, he did reiterate to Lee
that these actions needed to stop. It is reasonable for Lloyd to have considered these other
incidents in combination with the fluctuation in Lee's performance to decide to terminate Lee.
Notwithstanding the scant evidence on the discipline Genesis meted out to other employees for
performance i~sues, I determine that the evidence presented does not establish that Lee suffered
disparate treatment.
Consequently, in considering the above four factors, I determine that Lee has failed to
prove a causal connection between his protected activities and the adverse action of his
termination by Genesis.

B.

AFFIRMATNE DEFENSE

Genesis asserts as an affirmative defense a business justification for terminating Lee. The
Commission has stated that, "[i]f a proffered [business] justification survives pretext analysis ...
, then a limited examination of its substantiality becomes appropriate." Chacon, 3 FMSHRC at
2516. Here, I credit the testimony of Steve Lloyd who testified he had high performance
expectations for Lee because of his many years experience- specifically, his experience at a
more technologically advanced mine with a more difficult flotation circuit. (Tr. 280.) Lloyd
expected Lee to "set the standard" on recovery and to help define how to make the flotation
32 FMSHRC Page 1400

circuit better, rather than "create the average." (Id.) With regard to the July 18, 2008, power
bump incident, Lloyd credibly testified that Lee did not respond to the bump "like the rest of the
crew," in that he did not jump up and run to drain his flotation cells or turn off his reagents. (Tr.
369-70; Compl. Ex. B-36.) According to Mike Roby, instead of responding to the power bump
Lee continued to sit and eat, and Roby relayed that information to Lloyd. {Tr. 370.) Lee did not
contradict Lloyd's testimony regarding this incident.
Moreover, the record revealed other problems Lee experienced. Employees were allowed
one five-minute phone call per shift. {Tr. 83.) Lee asserts that all of his calls were made on his
breaks but that he did make long distance calls to his girlfriend in Alaska. (Tr. 84, Compl. Ex. B16.) Lee asserts that he stopped making phone calls after Mike Roby held a meeting with the
whole crew and admits that he received a written warning. (Tr. 82, 84, Compl. Ex. A.) Also,
Lee made plans to go to Alaska in December 2007 and marked his vacation in the flotation
operator's log book to try to find a replacement. {Tr. 194.) However, Lee did not talk to Clint
Jensen or Steve Lloyd about taking vacation. (Tr. 341, Compl. Ex. B-34.) Even though his
vacation was not authorized under the normal policy, Lee was permitted to take vacation because
he had already purchased plane tickets. (Tr. 341-42.) At the hearing, Lee testified that he could
not remember ifhe purchased plane tickets before noting his vacation request. (Tr. 195.)
Additionally, Lee testified that, on average, he would spend a maximum of 2.5 hours over
the course of a 12-hour shift in the control room and/or break room. (Tr. 197.) However, Steve
Lloyd testified that several people, including Lee's brother, Joe, and Patty Regh, informed him
that Lee would actually spend five to six hours in the break room. (Tr. 299.) Joe Lee and Patty
Regh did not testify at the hearing even though Lee acknowledged that he could have subpoenaed
them to either corroborate his testimony or cross-examine them. (Tr. 512.) The excessive time
in the break room was a major concern for Lloyd because, in order to do well at the Genesis Mill,
an operator needs to keep after the circuit and watch it carefully. (Tr. 299.) Lloyd also testified
that Lee's attitude was affecting other crew members in that they felt it unfair that Lee was
spending so much time in the break room. (Tr. 302.) Lloyd felt that ifhe reassigned Lee, Lee's
attitude would continue to be a problem. (Tr. 302.) Indeed, Lloyd had already reassigned Lee in
a previous month and though Lee showed he could do the job well in June, by July his numbers
had slipped below average and there was no evidence of a change in Lee's attitude. Mike Roby's
testimony regarding Lee's attitude supported Lloyd's assertions.
As stated above, low recovery numbers create a negative financial impact on the
company. A recovery percentage just three points lower than the other average numbers over the
course of one month can mean almost $100,000 in lost revenue. {Tr. 296.) The alleged
justification of poor performance would have motivated Genesis for terminating Lee. The
potential monetary loss for Genesis in July 2008 could have been up to $500,000. Based on this
calculation and the fact that Lee did not impeach or contradict this evidence, I find that Genesis's
disciplinary action was not "so out of line with normal practice that it was a mere pretext" to a
"discriminatory motive." Id. While being mindful as to not substitute for the operator's business
judgment, surely such a large monetary loss in such a short amount of time is enough to
discipline an experienced employee. Accordingly, Lee's unprotected activity of spending
multiple hours in the break room, which led to his low recovery numbers, motivated Genesis to
32 FMSHRC Page 1401

terminate Lee's employment. Genesis has established it would have taken adverse action for an
unprotected activity alone.
Moreover, I find Lee to be less credible because, throughout his testimony, he frequently
forgot dates of events and could not remember pertinent facts relating to incidents. (See Tr. 26,
34, 43-44, 46, 52-53, 82-85, 160, 179-80, 200, 206.) Lee's credibility is further diminished by
the fact that he would not directly answer questions posed by Genesis's counsel, and his
testimony was weakened significantly by cross-examination. (See Tr. 197, 204, 207, 225, 23435.)
For all of the reasons discussed above, I conclude that Lee did not prove, by a
preponderance of the evidence, a prima facie case with regard to the adverse action being
motivated, in any part, by the protected activity. Additionally, I conclude that Genesis prevailed
in its affirmative defense. Therefore, Lee has failed to establish that Genesis discriminated
against him in violation of section 105(c) of the Mine Act.

V. Order
In light of the foregoing, it is hereby ORDERED that Complainant's discrimination
claim be DISMISSED.
.

a__G~
AlanG.Paez

~

Administrative Law Judge
Distribution: (Certified Mail)
Michael R. Lee, 140 Little Lane, Troy, Montana 59935

Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202
/ac

32 FMSHRC Page 1402

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Telephone: (202) 233-3880
Fax: (202) 434-9949

September 28, 2010

RS & W COAL COMPANY,
Contestant

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

CONTEST PROCEEDINGS
Docket No. PENN 2010-523-R
Citation No. 7006738, 0510512010
Docket No. PENN 2010-524-R
Order No. 7004057, 05/25/2010
Mine: RS & W Drift Mine
Mine ID: 36-01818

ORDER OF DISMISSAL
Before: Judge McCarthy
The cases before me involve a§ 104(a) Citation No. 7006738 and related§ 104(b) Order
No. 7004057 issued as a result ofR S & W's failure to provide the Mine Safety and Health
Administration (MSHA) with a certified mine map after having temporarily closed the R S & W
Drift Mine. RS & W filed a notice of contest of the Citation and Order by letter dated June 4,
2010, and filed a Motion for an Expedited Hearing. On June 9, 2010, I issued an Order Denying
Contestant's Motion for Expedited Hearing and set this matter for hearing on July 13, 2010.
In the interim, on June 10, 2010, Contestant was served with the Secretary's proposed
penalty assessment for Citation No. 7006738. 1 Thereafter, on June 21, 2010, the Secretary filed a
Motion to Stay and Continue Hearing Date pending the filing of a Petition for Assessment of
Civil Penalty, provided that Contestant filed a notice of contest to the proposed penalty assessment. RS & W objected to the relief requested in the Secretary's Motion. On July 2, 2010,
I issued an Order granting the Secretary's Motion to Stay and Continue the Hearing Date,
pending the filing of a Petition for Assessment of Civil Penalty.
Contestant RS & W, however, did not contest the Secretary's proposed penalty assessment. Therefore, by letter dated September 16, 2010, the Secretary moved to dismiss this contest
proceeding because R S & W did not contest the Secretary's proposed assessment of penalty as
required by the statute and applicable regulations.

1

Sec. I 04(b) orders are not assessed civil money penalties. Accordingly, no penalty was
assessed for Order No. 7004057.
32 FMSHRC Page 1403

The relevant provisions of section 105(a) and (b)(l)(A) of the Mine Act provide as
follows:
SEC. 105. (a) 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 l lO(a) for the violation cited
and that the operator has 30 days within which to notify the Secretary that he
wishes to contest the citation or proposed assessment of penalty. A copy of such
notification shall be sent by mail to the representative of miners in such mine. If,
within 30 days .from the receipt of the notification issued by the Secretary, the
operator fails to notify the Secretary that he intends to contest the citation or the
proposed assessment of penalty, and no notice is filed by any miner or representative of miners under subsection (d) of this section within such time, the citation
and the proposed assessment of penalty shall be deemed a final order of the
Commission and not subject to review by any court or agency. Refusal by the
operator or his agent to accept certified mail containing a citation and proposed
assessment of penalty under this subsection shall constitute receipt thereof within
the meaning of this subsection.
(b)(I )(A) If the Secretary has reason to believe that an operator has failed to
correct a violation for which a citation has been issued within the period permitted
for its correction, the Secretary shall notify the operator by certified mail of such
failure and of the penalty proposed to be assessed under section 11 O(b) by reason
of such failure and that the operator has 30 days within which to notify the
Secretary that he wishes to contest the Secretary's notification of the proposed
assessment of penalty. A copy of such notification of the proposed assessment of
penalty shall at the same time be sent by mail to the representative of the mine
employees. If, within 30 days from the receipt of notification of proposed assessment of penalty issued by the Secretary, the operator fails to notify the Secretary
that he intends to contest the notification of proposed assessment of penalty, such
notification shall be deemed a final order of the Commission and not subject to
review by any court or agency. Refusal by the operator or his agent to accept
certified mail containing a notification of proposed assessment of penalty issued
under this subsection shall constitute receipt thereof within the meaning of this
subsection.
Similarly, the applicable procedural rules of the Commission provide
as follows:
§ 2700.25 Proposed penalty assessment.

32 FMSHRC Page 1404

The Secretary, by certified mail, shall notify the operator or any other person
against whom a penalty is proposed of the violation allege~ the amount of the
proposed penalty assessment, and that such person shall have 30 days to notify the
Secretary that he wishes to contest the proposed penalty assessment.

§ 2 700.26 Notice of contest of proposed penalty assessment.
A person has 30 days after receipt of the proposed penalty assessment within
which to notify the Secretary that he contests the proposed penalty assessment. A
person who wishes to contest a proposed penalty assessment must provide such
notification regardless of whether the person has previously contested the underlying citation or order pursuant to § 2700.20. The Secretary shall immediately
transmit to the Commission any notice of contest of a proposed penalty assessment.

§ 2700.27 Effect of failure to contest proposed penalty assessment.

If, within 30 days from the receipt of the Secretary's proposed penalty assessment,
the operator or other person fails to notify the Secretary that he contests the
proposed penalty, the Secretary's proposed penalty assessment shall be deemed to
be a final order of the Commission not subject to review by any court or agency.
Applying the foregoing statutory provisions and procedural rules to the facts at issue, l
find that RS & W did not file the requisite notice of contest to the Secretary's proposed penalty
assessment. Accordingly, that proposed penalty assessment became a final order of the Commission that is no longer subject to review.
Accordingly, the contests of Citation No. 7006738 and Order No. 7004057 are
DISMISSED,, and the civil penalty proposed is due and owing.

!Jm~ f! J'lf~

ThomasP.M~

Administrative Law Judge
Distribution:
Jennifer K. Welsh, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630 East, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Randy Rothermel, Owner, R S & W Coal Co., Inc., 207 Creek Road, Klingerstown, PA 17941

/cp
32 FMSHRC Page 1405

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

September 29, 2010
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CNIL PENALTY PROCEEDING
Docket No. CENT 2007-273-M
A.C. No. 03-01875-62140

v.

PARK.STONE,
Respondent

Mine: Park Stone

ORDER DENYING RESPONDENT'S REQUEST
TO REOPEN PENALTY ASSESSMENT
ORDER TO PAY
This case is before me pursuant to an order of the Commission dated, September 7, 2007,
remanding these matters for further consideration and determination as to whether the operator,
Parkstone, is entitled to relief under Rule 60(b) of the Federal Rules of Civil Procedure. 1 In
particular, Rule 60(b)(I) provides relief from a final judgment in cases where there has been a
"mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(l).
This matter arose because Parkstone failed to notify the Secretary of Labor ("Secretary")
that it wished to contest the proposed penalties within 30 days of receipt of the proposed penalty
assessments. Parkstone alleges that it failed to respond to the penalty assessment because it
mistakenly believed the citations were dismissed as part of other litigation. However,
Parkstone's request to reopen was filed almost two years after the assessment became a final
Commission order, and thus, would be untimely. 2 Nevertheless, Parkstone's additional claim of
MSHA's lack of jurisdiction is not time-barred. Sea-Land Serv., Inc. v. Ceramica Europa IL

1

While the Commission is not obligated to adhere to the Federal Rules of Civil
Procedure, the Commission has found guidance and has applied "so far as practicable" Rule
60(b). 29 C.F.R. § 2700.l(b).
2

Under Fed. R. Civ. P. 60(b)(I), any motion for relief must be made within a reasonable
time, and in the case of mistake, inadvertence, or excusable neglect, not more than one year after
the order was entered.
32 FMSHRC Page 1406

Inc., 160 F.3d 849, 852 (1st Cir. 1998); Omer v. Shala/a, 30 F.3d 1307, 1310 (10th Cir. 1994).
Parkstone asserts that the activities involved are not subject to Mine Act jurisdiction and the
citations should be vacated. The Secretary opposes reopening the proposed penalty assessment
and states that Parkstone's jurisdictional claim is not meritorious.

In prior litigation, specifically, Docket No. CENT 2005-96-M, in which the citations in
that case were dismissed, Parkstone agreed and stipulated that MSHA has jurisdiction in the "pit"
area of Parkstone's operation.3 (See Stipulations and Motion to Approve Settlement Agreement,
signed and dated Augtist 16, 2006). Parkstone further agreed that the products of its mine, 0301875, enter commerce or affect commerce within the meaning of sections 3(d), 3(h), and 4 of
the Mine Act. Id.
Section 3(h)(l) of the Mine Act defines "coal or other mine" as "an area ofland from
which minerals are extracted ... and lands ... structures, facilities, equipment, machines, tools,
or other property ... used in, or to be used in, or resulting from, the work of extracting such
minerals ... or used in, or to be used in, the milling of such minerals." 30 U.S.C. § 802. Section
4 of the Mine Act states that each mine, "the products of which enter commerce, or the
operations of products of which affect commerce ... shall be subject to the provisions of this
Act." 30 U.S.C. § 803.
First, Parkstone's jurisdictional claim is based on the assertion that the "mine site [sic] is
located on private property and operated by family members owning the property with no
employees." (Motion at 1). Parkstone states that the Secretary sent Commission Judge
Jacqueline Bulluck a document stating that "[t]he following factors, among others, shall be
considered in making determinations of what constitutes mineral mining under 3(h)(l) and
whether a physical establishment is subject to either authority by MSHA or OSHA: ... the
number of individuals employed in each process." (emphasis added) (Motion at 2). However,
that document, a prehearing report, actually stated, in relevant part, ''what constitutes mineral
milling undet 3(h)(l)...."(emphasis added).
The twelve citations in the case at hand all involve the mining areas, the "pit" or
equipment used in the pit and mining operations, or record-keeping and reporting. None of the
citations mention the "garden" area that Parkstone asserts is not subject to MSHAjurisdiction.
The pit area is undisputedly a mineral extraction area, and the products of the pit area enter
commerce and affect commerce within the meaning of the Mine Act. Additionally, the pit water
pump is equipment used in the work of extracting minerals. Therefore, the number of
individuals employed is not a jurisdictional consideration and MSHA properly issued the
citations and Parkstone is subject to the Mine Act jurisdiction. Accordingly, Parkstone's request
to reopen based on mistake is time-barred as discussed above.

3

Parkstone states that when the citations were dismissed in Docket No. CENT 2005-96M, it mistakenly believed the citations in the case at hand (Docket No. CENT 2007-273-M) were
also dismissed.
32 FMSHRC Page 1407

Even if the request to reopen was not time-barred, Parkstone has not made a showing of
extraordinary circumstances. See Liljeberg v. Health Senlices Acquisition Corp., 486 U.S. 847
(1988); Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 501 U.S. 380
{1993). Parkstone's conclusory statement that it believed the underlying citations in this case
were part of another case lacks sufficient detail. The statement does not demonstrate
extraordinary circumstances, and does not provide an adequate basis to reopen.
Also, Parkstone has not identified any facts that, if proven on reopening, would constitute
a meritorious defense. See FG Hemispheres Associates, LLC v. Democratic Republic Of Congo,
447 F.3d 835 {D.C. Cir. 2006). The only defense suggested by Parkstone is lack of jurisdiction,
which, as discussed above, is not meritorious
Based on the foregoing, Parkstone's request to reopen the penalty assessment is
DENIED. Parkstone is ORDERED TO PAY the proposed penalty assessment of $1,081.00
within 30 days of this order.4 Upon receipt of payment, this matter is DISMISSED.

?~~
Robert J. Lesnick
.
Chief Administrative Law Judge

Distribution: {Certified)
Carl E. Parks, President, Parkstone, 196 Saint Elizabeth Road, Morrilton, AR 72110
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., 22nd Floor, Arlington, VA 22209-2296
Myra James, Chief, Office of Civil Penalty Compliance, MSHA, U.S. Department of Labor,
1100 Wilson Blvd., 25th Floor, Arlington, VA 22209-3939

lame

4

Payment should be sent to: U.S. Department of Labor, Payment Office/MSHA, P.O. Box
790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.
32 FMSHRC Page 1408

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001
202-434-9981/Tele 202-434-9949/Fax

September 29, 2010
CIVIL PENALTY PROCEEDING

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

Docket No. SE 2008-356
A.C. No. 40-03217-139758-02

V.

MOUNTAINSIDE COAL COMPANY,
Respondent

Harris Branch/Tackett Creek Surface Mine

DECISION
Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
Tommy D. Frizzell, Jacksboro, Tennessee, on behalf of Mountainside Coal
Company.
Before:

Judge Zielinski

This case is before me on a Petition for Assessment of a Civil Penalty filed by the
Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The Petition alleges that Mountainside Coal Company is liable for one
violation of the Secretary's Mandatory Safety Standards for Surface Coal Mines and Surface
Work Areas of Underground Coal Mines, 1 and proposes the imposition of a civil penalty in the
amount of$35,500.00. Mountainside challenges an order, issued pursuant to section 104(b) of
the Act, for its failure to timely abate the violation. A hearing was held in Knoxville, Tennessee,
and the parties filed briefs after receipt of the transcript. For the reasons set forth below, I find
that Mountainside committed the violation, but that it was not significant and substantial
("S&S") or the result of an unwarrantable failure, and impose a civil penalty in the amount of
$1,500.00. I also vacate the section 104(b) Order.
Findings of Fact - Conclusions of Law
Mountainside Coal Company operates a surface coal mine in Claiborne County,
Tennessee. The mine is very large and includes several different job sites, some up to four miles
apart. On August 21, 2007, Stanley Sampsel, an inspector employed by the Secretary's Mine
Safety and Health Administration, conducted an inspection of the mine's Jellico Seam job site.
Around noon, he observed very dry and dusty conditions on the haul road, and measured the
thickness of the dust layer at from two to three and one-half inches. Haul trucks traveling the

I

30 C.F.R. Part 77.
32 FMSHRC Page 1409

road were stirring up a considerable amount of dust. Ex. G-3, G-4. There was virtually no wind,
and the dust clouds raised by the trucks extended for a considerable distance. Sampsel believed
that the dust clouds significantly impaired the visibility of the truck drivers and any vehicle or
equipment operators that might use the haul road. At 1:00 p.m., he issued Citation No. 7469449,
alleging that Mountainside failed to control the haul road dust. Ex. G-2. The penalty
subsequently assessed for that violation was paid by the operator.
Sampsel left the mine about 2:00 p.m., in order to complete paperwork associated with
the inspection. He then visited a nearby marketplace where he encountered several miners who
informed him that dust was a problem at the mine, especially during the second shift, and that the
haul roads were watered only when an inspector was there. Sampsel decided to return to the
mine that evening. He arrived at the Tackett Creek site about 7:00 p.m. Overburden was being
removed at the Tackett Creek site. A loader was operating in a pit area, removing material and
dumping it into haul trucks, which transported it to a dump site. Two trucks alternated
loading/dumping, traveling a haul road to the dump site and returning to the pit, partially on a
different road. A dozer, located at the dump site, pushed the dumped material and occasionally
maintained the haul road by clearing it of rocks that had fallen off the trucks.
Sampsel drove to a position just off the haul road, where he observed trucks generating
large clouds of dust. He testified that the dust remained suspended from five to ten minutes,
depending upon wind conditions, and he measured the dust on the roadway to be one to three
inches thick. Tr. 28. He concluded that the dust significantly reduced the visibility of equipment
operators in the area and, at 7:30 p.m., issued Citation No. 7469453 for failure to control dust.
The time he had fixed for abatement of the violation, 30 minutes, passed, and he did not perceive
any effort on the part of the operator to address the problem. Sampsel then issued Order No.
7469454, pursuant to section 104{b) of the Act, withdrawing the miners from the site until the
condition was abated.
Mountainside timely contested the order and the civil penalty assessed for the citation.
Citation No. 7469453
Citation No. 7469453 alleges a violation of30 C.F.R. § 77.1607{i), which requires that
"Dust control measures shall be taken where dust significantly reduces visibility of equipment
operators." The violation was described in the "Condition and Practice" section of the Citation as
follows:
The haulage roads dump area and pit were not being properly maintained. Dust
control measures were not being taken where road dust significantly reduced
visibility for the equipment being operated on the roadways, dump and pit areas of

32 FMSHRC Page 1410

the Tackett #1 job. The road dust ranged from one to three inches deep on the
active roadway (at times visibility was near zero).
Ex. G-5.
Sampsel determined that it was highly likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that two persons were affected, and that
the operator's negligence was high. The citation was issued pursuant to section 104(d)(l) of the
Act, and alleged that tlie violation was the result of the operator's unwarrantable failure to comply
with the mandatory standard.2 A specially assessed civil penalty in the amount of $35,500.00 was
proposed for this violation.
The Violation
The weather in the area of the mine had been very hot and dry for an extended period, and
mobile equipment traveling on the roadways created dusty conditions that required considerable
attention. Typically, water trucks were used to treat the roadways at the beginning of the day shift
and following the noon break. Tr. 36-37. Once treated, dust was controlled for a period oftwoto-four hours. Tr. 34, 36-37. There was a dedicated water truck driver on the day shift. On the
evening shift, 5:30 p.m. to 3:30 a.m., a water truck was operated by the foreman or a utility man,
as time permitted. Alan King, the second shift foreman, conducted his preshift examination of the
Tackett Creek site around 3:00 p.m. He then followed his standard routine. He met with his
utility man, Lewis Gaylor, and they proceeded to conduct preshift examinations at other job sites
and erect light plants for the night's work. By about 8:00 p.m., they had :finished erecting light
plants at the King Mountain site, and Gaylor was dispatched to fill the water truck and begin
watering the roads.
As noted above, Sampsel had arrived at the Tackett Creek site around 7:00 p.m., and at
7:30 p.m., he observed a layer of dry powdery dust from one to three inches deep on the haul road.
The large haul trucks traveling the road raised dust clouds that trailed out behind them for some
distance. The dust clouds raised by the trucks are depicted in photographs taken shortly before the
citation was issued. Ex. G-6, G-7. Sampsel had been sitting in his parked vehicle, a Jeep, on the
side of the haul road when dust raised by a passing haul truck reduced his visibility to near zero.
Tr. 39, 54.
Respondent makes much of the fact that Sampsel did not ride with the haul truck drivers,
or inquire whether their visibility was reduced by the dust. Tr. 66, 160. However, it is not
necessary that Sampsel have actually ridden in the truck to determine whether the operator's
visibility was significantly reduced. Sampsel had ridden in such trucks, and was capable of

2

The parties stipulated that the predicate section 104(d)(l) order, Order No. 7550843,
issued on June 3, 2005, was in paid status and that there had not been an intervening "clean"
inspection of the mine. Tr. 8-9.
32 FMSHRC Page 1411

making that assessment by observing the dust cloud. Tr. 60. Andy Michael, one of the haul truck
drivers, agreed that the trucks were raising dust clouds, but testified that his visibility was not
significantly impaired. Tr. 169-71. However, that broad conclusory statement was made in
response to a leading question, and I accord it little weight. Obviously, a dust cloud behind a
truck would not impair the driver of that truck's visibility. However, on occasions when the
trucks passed each other, both drivers' visibility would have been significantly impaired for a
brief time. In addition, there were other equipment operators traveling the roads, some operating
smaller vehicles like the Jeep that Sampsel was driving. The foreman and utility man traveled to
the various job sites, and it is possible that other individuals, e.g., a mechanic would be at the site.
I find that Mountainside failed to employ measures to control dusty conditions that
significantly limited the visibility of equipment operators at the Tackett Creek site. Accordingly,
I find that the standard was violated.
Significant and Substantial
An S&S violation is described in section 104(d)( 1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: ( l) the underlying violation of a mandatory safety standard; (2) a discrete
safety h.azard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary ofLabor, 861
F.2d 99, 103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).
In US. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to

32 FMSHRC Page 1412

will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)( 1), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75(July1984).
This evaluation is made in terms of"continued normal mining operations." U.S. Steel,
6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial
must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498
(Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
The fact of the violation has been established. A measure of danger to safety was
contributed to by the dusty conditions, which limited visibility of equipment operators. The
Secretary contends that the dusty conditions could have resulted in a collision involving a large
haul truck, and there is little question that such a collision would have resulted in a reasonably
serious injury. As is often the case, the primary issue in the S&S analysis is whether the violation
was reasonably likely to result in an injury causing event, i.e., a collision.
While Sampsel determined that the violation was "highly likely'' to result in an irtjury, his
testimony regarding abatement reflects that he must have regarded the probability of serious injury
as considerably lower. As noted in the discussion of the 104(b) Order, infra, he allowed 30
minutes for the violation to be abated, and would readily have extended the time if he had been
informed that efforts were being undertaken to address the condition, e.g., that the water truck was
on the way or was being filled. Tr. 45. Consequently, he would have allowed mining operations
to continue for an hour or longer.
Sampsel was concerned about a possible collision between a haul truck and a slower
moving loader or dozer. Tr. 40-41. In fact, he specified that two persons were affected by the
violation because a collision between two large vehicles would likely result in injuries to both
drivers. Id. However, the truck drivers' visibility was not impaired by dust trailing their vehicles
and, as a picture taken by Sampsel demonstrates, the trucks raised considerably less dust as they
slowed when they entered the pit or dump area, where the loader and dozer were located. One of
the pictures that Sampsel took of a haul truck that had slowed to enter the pit shows that it raised
some dust, but it is questionable whether it was of sufficient quantity to constitute a hazard. 3
Tr. 27-28; Ex G-6.
It also appears that Sampsel's estimate that the dust clouds remained suspended for fiveto-ten minutes was vastly overstated. The haul trucks traveled at a speed of approximately
20 miles-per-hour ("mph") while moving between the pit and dump areas, and Sampsel estimated

3

Sampsel testified that dust was prevalent in all areas, including the pit, but that he did
not recall to what extent the loader operator's visibility may have been limited. Tr. 99.
32 FMSHRC Page 1413

that the dust clouds extended 200 feet behind the trucks. Tr. 27-29; Ex. G-3, G-4, G-7. He
estimated that the dust cloud raised by the truck depicted in a photograph as slowing at the pit area
extended for 100 feet. Tr. 27-28. A truck traveling at 20 mph is moving at a rate of 1,760 feetper-minute ("fpm"); at 10 mph it travels 880 fpm; and, at 5 mph it travels 440 fpm. A dust cloud
extending 100 feet behind a truck moving at 5 mph, would indicate that the dust remained
suspended for approximately 15 seconds. The result would be the same for a dust cloud
extending 200 feet behind a truck moving at 10 mph. While Sampsel' s time and distance
estimates were, no doubt, rough, they do indicate that dust clouds raised by the trucks remained
suspended for considerably less than a minute, and most likely ceased to be hazardous prior to
that. Moreover, because of lower speeds, less dust was raised in the pit and dump areas where
other vehicles were more likely to be encountered. In addition, as noted previously, a truck
driver's vision was not impaired by the dust cloud raised by his own truck. Consequently, it was
highly unlikely that a haul truck would strike another vehicle. Although the trucks did pass each
other occasionally, those instances were rare because trucks returning to the pit traveled on a
different part of the haul road for a portion of the trip. Tr.164-67; Ex. R-5. When the trucks
passed, both drivers' visibility would have been impaired for a brief period of time,
e.g., 5-10 seconds, but it is highly unlikely that any other vehicle would have been in the vicinity.
Given all of these factors, I find that while it is possible that a collision and serious injury
could have occurred as a result of the violation, the Secretary failed to carry her burden of
establishing that it was reasonably likely that a serious injury would occur in the normal course of
continued normal mining operations. In find that the violation was unlikely to result in a
permanently disabling injury and that it was not S&S.
Unwarrantable Failure - Negligence
In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated the
law applicable to determining whether a violation is the result of an unwarrantable failure:

The unwarrantable failure terminology is taken from section 104(d) of the
Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack ofreasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) ("R&P"); see
also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)]
(approving Commission's unwarrantable failure test).
Whether conduct is "aggravated" in the context of an unwarrantable failure
analysis is determined by looking at all the facts and circumstances of each case to
see if any aggravating factors exist, such as the length of time that the violation has

32 FMSHRC Page 1414

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 Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ... ; Cyprus
Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds,
195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan.
1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody
Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14
FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., 10 FMSHRC 705,
709 (June 1988). All of the relevant facts and circumstances of each case must be
examined to determine if an actor's conduct is aggravated, or whether mitigating
circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to
a high standard of care, another important factor supporting an unwarrantable
failure determination is the involvement of a supervisor in the violation. REB
Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).
The Citation was issued pursuant to section I 04(d)(l) of the Act, which requires that the
violation be both S&S and the result of an unwarrantable failure. 30 U.S.C. § 814(d)(l). Having
found that the violation was not S&S, it is technically unnecessary to decide whether it resulted
from an unwarrantable failure. However, it is necessary to address the issue of negligence, which
is alleged to have been high. Because the S&S findings herein may, or may not, become fmal, the
issue of unwarrantable failure will be addressed for the sake of judicial economy.
The Secretary contends that Mountainside's negligence rose to the level of unwarrantable
failure because it had been put on notice of the need for enhanced compliance efforts by the
earlier issued citation, that the condition was obvious, and that it presented a high degree of
danger to mi1,1ers. Sec'y. Br. at 18-21. The argument has appeal, but none of the points are
without qualification.
As to notice, Sampsel knew that King typically conducted his preshift examination with a
day shift foreman, and believed that he had consulted with Roger Kidd, the day shift foreman to
whom the earlier dust citation had been issued at the Jellico Seam job site. Tr. 35-36. However,
King testified that he conducted his preshift examination with a different day shift foreman, and
had no knowledge of the issuance of the earlier dust citation until the following day. Tr. 129, 132.
The Secretary argues that the operator, Mountainside, was aware of the earlier issued citation
through Kidd, and should have assured that King was aware of it. While the Secretary may be
technically correct, the argument fails to address the practical problems with the notice argument.
Given the short period of time that elapsed following issuance of the first citation, and the lack of
actual communication between Kidd and King, I place little weight on the notice factor.
As noted above, I have found that the violation was not S&S, based partially on Sampsel' s
testimony that he would have readily extended the time for abatement if he had been advised that

32 FMSHRC Page 1415

some effort was being made to address the condition. That appears to be inconsistent with his
determination that the condition was highly likely to result in a serious injury. For the reasons
stated in the S&S analysis, I find that the condition did not pose a high degree of danger to miners.
The Secretary contends that large dust clouds generated by the haul trucks were obvious to
anyone at the site. However, King was not at the Tackett Creek site when the cited condition
developed. When King conducted his preshift examination of the site, the roads were in good
condition. Tr. 106, 121-22. Sampsel had been at the Tackett Creek site during the day shift, and
did not observe any problems with the roads. Tr. 33. After conducting his preshift examination,
King met with Gaylor, and proceeded to other job sites to erect light plants. They had finished
erecting light plants at the King Mountain site, and Gaylor was dispatched to fill the water truck
and water the roads. Tr. 107, 125. King was about to travel to the Tackett Creek site when he
was advised of Sampsel' s actions.
The Secretary argues that King was familiar with the general conditions, the long-standing
drought, and knew, or should have known that hazardous dusty conditions would develop at the
site if watering was not done shortly after the second shift commenced. That is a fair argument,
and justifies a finding of moderate negligence on the part of Mountainside. However, in my
opinion, given King's earlier observations, it does not satisfy the Secretary's burden to establish
that Mountainside's negligence was high or the result of an unwarrantable failure.
Order No. 7469454
Order No. 7469454 was issued pursuant to section 104(b) of the Act, which provides that
an inspector may require all persons not involved in abatement activities to be withdrawn when an
operator has failed to timely abate a violation and it has been determined that the time for
abatement should not be extended. 4 The Order effectively prohibited all work at the site, except

4

Section 104(b) of the Act provides:

If, upon any follow-up inspection of a coal or other mine, an authorized
representative of the Secretary finds (1) that a violation described in a citation
issued pursuant to subsection (a) has not been totally abated within the period of
time as originally fixed therein or as subsequently extended, and (2) that the
period of time for the abatement should not be further extended, he shall
determine the extent of the area affected by the violation and shall promptly issue
an order requiring the operator of such mine or his agent to immediately cause all
persons, except those persons referred to in subsection (c), to be withdrawn from,
and to be prohibited from entering, such area until an authorized representative of
the Secretary determines that such violation has been abated.
30 u.s.c. § 814(b).

32 FMSHRC Page 1416

use of the water truck to correct the cited condition. Sampsel issued the Order because he
believed that no effort had been made to address the dusty conditions in the 30 minutes that had
been allowed for abatement.

In order to present a prima facie case that a section 104(b) withdrawal order was properly
issue~ the Secretary must prove that the originally cited condition continued to exist after the
period allowed for abatement expired. Mid-Continent Resources. Inc., 11 FMSHRC 505, 509
(Apr. 1989). The operator may rebut the Secretary's prima facie case by showing that the
conditions in the citation had been abated within the period allowe~ but that they recurred. The
operator may also challenge the reasonableness of the time period set for abatement, or the
Secretary's refusal the extend the period. Energy West Mining Co., 18 FMSHRC 565, 568 (Apr.
1996). The burden is on the operator ''to bring to MSHA's attention any specific abatement
measures justifying extension of the abatement period." Energy West Mining Co. v. FMSHRC,
111 F.3d 900, 904 (D.C. Cir. 1997). In evaluating whether an inspector has abused his discretion
in issuing a section I 04(b) withdrawal order, in lieu of extending the abatement period, the
following factors should be considered: I) the degree of danger that extension would have caused
to miners; 2) the diligence of the operator in attempting to meet the time originally set for
abatement; and, 3) the disruptive effect that an extension of time, or a failure to extend the time,
would have had upon operating shifts. Youghiogheny and Ohio Coal Co., 8 FMSHRC 330, 339
(Mar. 1986).
There is little question that the cited condition continued to exist when the 30-minute
period set for abatement had expired. The water truck had not yet arrived at the site. However, it
is also apparent that Mountainside had acted diligently in addressing the condition. Gaylor had
arrived at the water truck's location before he was aware that a citation had been issued. From
that point, it should have taken approximately two hours to abate the condition, 60-75 minutes to
conduct a preshift examination of the truck, fill it with 12,000 gallons of water and drive it to the
Tackett Creek site, and 40-45 minutes to water the roads. Tr. 148-50. The haul road had been
watered, and' the Order was terminated at 9: 10 p.m., one hour and forty minutes after the citation
had been issued. Tr. 44; Ex. G-10. Consequently, the condition was abated about as
expeditiously as it could have been, given the circumstances that existed when the citation was
written. It does not appear that the degree of danger to miners was such that a longer period of
abatement would have been inappropriate. While approaching darkness would have rendered the
situation more dangerous, Sampsel readily acknowledged that he would have extended the time
for abatement if he had simply been informed that the water truck was being filled or was on the
way.
This is a close case. However, two considerations convince me that the Order should not
be sustained. First, the original time set for abatement was somewhat arbitrary. Sampsel' s
testimony on the reasonableness of the time he set for abatement was inconsistent. He believed
that 30 minutes would have been a reasonable time to abate the condition, if a truck loaded with
water had been at the site. Tr. 42, 91. However, he acknowledged that he did not know where
Mountainside's water trucks were located, and did not ask. Tr. 88. Nor did he discuss with the

32 FMSHRC Page 1417

operator the amount of time that would be required to abate the condition. Tr. 87-88. Sampsel
conducted a safety run when he arrived at the site, and should have been aware that there was no
water truck present, and that more than 30 minutes would be required to abate the condition.
Ex. R-1at5.
Second, I do not accept Sampsel's testimony that he was not aware of any effort on the
part of Mountainside to address the condition. There was an effective communications system at
the mine site, and Sampsel had access to it. All of the miners had CB radios, and could readily
communicate with each other. Sampsel also had a CB radio, and generally knew which
frequencies the miners used when he was on the site. Tr. 90. The evidence regarding
communications between Sampsel and the miners is conflicting. Sampsel described
communications with King prior to issuance of the order, but King denied communicating with
Sampsel until after the order had been issued. Tr. 43-44, 125, 139. Haul truck driver, Michael,
testified that he advised Sampsel, by CB radio, that the water truck was on the way before the job
was shut down. 5 Tr. 159, 170, 174. There also were radio communications regarding Gaylor's
location and the status of his efforts to get the water truck loaded and driven to the site. Tr. 11011, 146-47. Sampsel acknowledged that he did not recall all of the conversations on the radio that
night. Tr. 90.
While Sampsel may not have been advised directly by King about the status of the water
truck, he was, or should have been, aware that the truck was being filled and brought to the site.
With the ready availability of radio contact between and among Sampsel and all of the miners on
the site, if Sampsel was unaware that the water truck was being filled and brought to the site, his
lack of knowledge would have to have been, at least in part, self-imposed. Sampsel readily
acknowledged that he would have extended the time for abatement. Under the circumstances, I
find that the operator met its burden of bringing to MSHA's attention information that would have
justified an extension of the abatement period, and that the violation was promptly abated.
Upon consideration of the above, Order No. 7469454 will be vacated.
The Appropriate Civil Penalty
Mountainside is a medium-sized operator, with a medium to large-sized controlling entity.
The assessment data reflects that it averaged 0.5 violations per inspection day during the relevant
period, a relatively low incidence of violations. Mountainside does not contend that payment of
the proposed penalty will affect its ability to continue in business. The violation was promptly
abated.
Citation No. 7469453 is modified to a citation issued pursuant to section 104(a) of the Act
and is affirmed. The gravity of the violation was found to be less serious than alleged, including

5

Much of Sampsel's testimony is couched in terms that he was not informed by King
about the status of the water truck. See, e.g., Tr. 44,
32 FMSHRC Page 1418

that it was not S&S. In addition, the operator's negligence was found to be moderate. A specially
assessed civil penalty of $35,500.00 was proposed by the Secretary. The lowering of the levels of
negligence and gravity justify a significant reduction in the proposed penalty. I impose a penalty
in the amount of$1,500.00 upon consideration of the above and the factors enumerated in section
1 lO(i) of the Act.
ORDER
Order No. 7469454 is VACATED. Citation No. 7469453 is modified to a citation issued
pursuant to section 104(a) of the Act and is AFFIRMED, as modified, and Respondent is
ORDERED to pay a civil penalty in the amount of$1,500.00, within 30 days.

Distribution (Certified Mail):
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Tommy Frizzell, 280 Tionesta Drive, Jacksboro, TN 37757

32 FMSHRC Page 1419

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

October 6, 2010
CONTEST PROCEEDING

SUMITOMO METAL MINING
POGO,LLC,
Contestant

Docket No. WEST 2010-429-RM
Citation No. 6478675; 12/04/2009

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

Pogo Mine
Mine ID 50-01642

ORDER
This case is before me on a motion to reverse the dismissal of the above captioned case.
This case was dismissed by Order dated August 19, 2010. The Commission was informed that
the operator, Sumitomo Metal Mining Pogo, LLC ("Sumitomo"), had paid the penalty relating to
the contest case. However, Sumitomo filed a motion to reopen the penalty assessment with the
Commission on April 2, 2010, and the Secretary of Labor ("Secretary") informed the
Commission that she did not oppose the request to reopen. By Order dated September 30, 2010,
the Commission granted Sumitomo' s request to reopen and directed the Secretary to file a
petition for assessment of penalty. That penalty proceeding, which includes Citation No.
6478675, is assigned as Docket No. WEST 2010-940-M.

An operator may initiate a contest proceeding by filing of a Notice of Contest pursuant to
section 105(d) of the Mine Safety and Health Act of 1977 ("Act") and Commission Procedural
Rule 20. 30 U.S.C. § 815(d); 29 C.F.R. § 2700.20. This proceeding challenges the issuance or
modification of a citation or order. The notice of contest of a citation or order "does not
constitute a challenge to a proposed penalty assessment that may subsequently be issued by the
Secretary under section 105(a) of the Act, 30 U.S.C. § 815(a), which is based on that citation or
order." 29 C.F.R. § 2700.21(a).
An operator may also contest a proposed penalty assessment for a citation or order
pursuant to section lOS(a) of the Act and Commission Procedural Rule 26. 30 U.S.C. § 815(a);
29 C.F.R. § 2700.26. "A contest of the proposed penalty assessment prompts the filing of a civil
penalty proceeding and places into issue not only the proposed penalty, but the fact of violation
and any special :findings contained in the citation or order." Chestnut Coal, 29 FMSHRC 107,
108 (Feb 2007) citing Quin/and Coals, Inc., 9 FMSHRC 1614, 1620-23 (Sept. 1987); 29 C.F.R.
32 FMSHRC Page 1420

§ 2700.2l(b). This can result in two separate proceedings before the Commission involving the
same parties and the same demand for relief
Because there is an open penalty proceeding, "[t]he contest proceeding no longer serves
any useful pwpose, practically or legally. As a general principle, duplicative litigation is to be
avoided in the federal courts, as it undoubtedly is in other courts and adjudicative bodies. See
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)." Chestnut
Coal, 29 FMSHRC at 108 (Feb 2007).
I

In light of the foregoing, Sumitomo's Motion to Reverse the Dismissal is DENIED. The
operator may contest any penalty assessment for this citation and is not precluded from raising all
factual and legal questions in the penalty proceeding. 29 C.F.R. § 2700.21.

~·~

Robert J. Lesnick
Chief Administrative Law Judge

Distribution:
Dana M. Svendsen, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO
80202
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., Room 2220, Arlington, VA 22209-2296
Keith E. Bell, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor West, Arlington, VA 22209-2247
Thomas Paige, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor East, Room 2226, Arlington, VA 22209-3939
Myra James, Chief, Office of Civil Penalty Compliance, MSHA, U.S. Dept. Of Labor, 1100
Wilson Blvd., z5t1t Floor, Arlington, VA 22209-3939
lame

32 FMSHRC Page 1421

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Telephone: (202) 434-9958 ·
Fax: (202) 434-9949

October 7, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2009-663-M
A.C. No. 14-01477-191032
Docket No. CENT 2009-664-M
A.C. No. 14-01635-191033

V.

NELSON QUARRIES INC.,
Respondent
Mine: Plant 1 & 5

DECISION
ORDER TO PAY
This case is before me on two petitions for assessment of civil penalties filed by
the Secretary of Labor, acting through the Mine Safety and Health Administration
("MSHA"), against Nelson Quarries, Inc., pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.§ 815 and 820 (the "Mine Act" or
"Act"). The two violations were issued by MSHA under section 104(a) of the Mine Act,
one at Plant #1, and the second one at Plant #5. The Secretary proposed assessed
penalties of$460.00 and $100.00, respectively.
Th~ parties waived their right to 20 days notice in order to be heard on September
16, 2010 in Springfield, Missouri. The parties presented testimony and documentary
evidence at the hearing and entered into certain stipulations that were accepted by the
Court and entered into evidence as Ct. Ex. A.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Nelson Quarries, Inc. ("Nelson") operates the five limestone quarries known as
Plant numbers 1 through 5 in various counties in Kansas. They employ three crews of
miners. Nelson blasts, drills, extracts and crushes limestone at each of these sites. They
bid on contracts and use whichever quarry is closer to the customer to supply the product.
Because there are five plants and three crews, there are at least two plants not in
operation at any one time. Nelson operates its plants intermittently and seasonally. The
parties stipulate that Nelson is an operator of the two plants in question here and that the
mine known as Plant #1 meets the definition of a mine under the Act subject to the

32 FMSHRC Page 1422

jurisdiction of the Federal Mine Safety and Health Review Commission ("the
Commission"). (Ct. Ex. A).
Inspector Bellfi is a journeyman MSHA mine inspector with previous experience
as a member of a mine safety committee at two mines subsequent to serving as highway
patrolmen for the State of Nevada for 12 years. On May 18, 2009, he conducted
inspections of Plant #1 and Plant #5, and as a result issued citations nos. 6447701 and
6447705, respectively.
A. Plant#l

1. Citation No. 6447701
On May 18, 2009, Inspector Bellfi issued citation no. 6447701, Ex. S-1, to Nelson for
a violation of section 56.14132(a) of the Secretary's regulations. The citation alleges that:
The backup alann for the Ford F350 welding truck, KS plate PJF841, was not
maintained in a functional condition in that the backup alann did not operate
when inspected. The vision from the drivers seat is obstructed by the location of
the Miller welding unit attached the (sic.) bed of the truck. The welder is usually
by himself performing maintenance and there is little foot traffic at the mine. A
fatal injury could occur from this type of hazard.
The inspector found that it was unlikely that an injury would occur but if it did, it
would affect one person and could reasonably be expected to cause a fatality. The
operator's negligence was assessed as moderate. The Secretary has proposed a penalty of
$460.00.
2. The Violation:
The standard, 30 U.S.C. § 56.14132, states, in pertinent part:
Manually-operated horns or other audible warning devices provided on
self-propelled mobile equipment as a safety feature shall be maintained in
functional condition.
When the operator has an obstructed view to the rear, self-propelled
mobile equipment shall have- an automatic reverse-activated signal alann;
a wheel-mounted bell alarm which sounds at least once for each three feet
of reverse movement; a discriminating backup alarm that covers the area
of obstructed view; or, an observer to signal when it is safe to back up.
The parties stipulated that the alann did not function when it was inspected and
that the rearview mirror and the rear window of the truck were obstructed by a Miller
welder mounted behind the cab. (Ct. Ex. A).

32 FMSHRC Page 1423

Inspector Bellfi testified that he was met by Forman Clift and Mr. Perez of
Nelson Quarries when he arrived to conduct his inspection. Mr. Bellfi testified that he
observed that Nelson had a welder mounted on an F350 pickup truck directly behind the
cab obstructing the rearview mirror. (See photo Ex. S-4). He testified that the driver of
the truck would have a blind spot directly behind the truck and would be unable to see a
pedestrian in that area even when using the side view mirrors. (Tr. 34-36). Bellfi spoke
with the operator of the welding truck and was informed by him that he usually worked
alone when operating the welder. Although there were several people on foot in the
mine, Bellfi could not place someone working for any period of time directly behind the
truck. Based upon this information, Bellfi assessed the number of persons affected by the
violation as one and the gravity as unlikely. (Tr. 28-29 and 36-37). The degree of
negligence was assessed as moderate because there was no indication on the pre-shift
examination that the backup alarm was not functioning and the operator stated that he did
not advise management of that fact. Bellfi found these to be mitigating factors justifying
a reduction in negligence from high to moderate. (Tr. 38-39).
With the regard to the nature of an ensuing injury, the inspector testified that
based upon his 12 years as a highway patrolman and his review of a MSHA fatalgram
involving a similar truck lacking a backup alarm, he felt an accident would result in a
fatal crush-type injury. (Ex. S-2). He explained how a vehicle of any size traveling at a
slow rate of speed would knock a pedestrian down rather than throw him up and over the
vehicle; it would then take the pedestrian's feet out from under him and roll over him,
causing a fatality. (Tr. 30-34).
Forman Clift testified that he was present when the welding truck was inspected
and he had no knowledge that the backup alarm was not functioning. He further testified
that the welder worked either by himself or with one helper and the plant is shutdown
when he performs his work. (Tr. 94-95). The welder is located across the bed of the
truck directly behind the cab. Mr. Clift acknowledged that despite the truck being
equipped with side view mirrors, there is still a blind spot behind the truck. Although, he
felt the truck had a "pretty good panoramic view." (Tr. 97). He pointed out that the
typical mining truck is significantly larger than a Ford pickup truck and would have a
larger blind spot. (Tr. 97-99).
Jason Schmidt, Nelson's mechanic, testified that he was contacted by Clift on the
day of the inspection and asked to investigate the cause of the alarm failure. The wires
for the alarm system are located in the back of the truck bed. When Schmidt touched
them together they worked intermittently but the connector had corroded. He stated that
corrosion causing loose wires is an "everyday common problem" and can be caused by
hitting a bump in the road, wind, weather and the like. (Tr. 119-120). However,
inspections for corrosion of wires were conducted only when the vehicle needed an oil
change every six to seven thousand miles. (Tr. 120-121). The operator told Schmidt that
the alarm had worked earlier that morning. He made the necessary repairs in a timely
manner. (Tr. 114-117). Mr. Schmidt estimated the weight of the truck at 7 ,000 pounds
and the weight of the welder at 2,000 pounds. (Tr. 122).
32 FMSHRC Page 1424

Nelson argues that the negligence should be assessed as low and the resulting
injury as less than fatal, the rationale being that a Ford F350 pickup truck is substantially
smaller than the usual mine vehicle and that Nelson was not aware of the malfunctioning
alarm prior to the inspection.
I find neither of these arguments persuasive. The standard requires that the alann
shall be maintained in a :functional condition. Although the backup alarm may have
worked when the pre-shift examination was performed, (although the examination report
was not submitted into evidence), knowing that corrosion of wires is an everyday
common occurrence causing the alarm to work intermittently at best, I find moderate
negligence on Nelson's part in its failure to inspect the wiring more frequently than every
six or seven thousand miles. The argument that the severity of an injury should be
assessed at something less than fatal because a truck/welder combo weighing just barely
less than two tons is lighter than the usual mining vehicle is beyond absurd. I find the
testimony of Inspector Bellfi, as a MSHA investigator and 12 year veteran of the
highway patrol, credible and controlling on this issue. Although, common sense alone
would lead to the conclusion that the human body could not survive being rolled over by
a vehicle of9,000 pounds.

B. Plant #5
1. Citation No. 6447705
Nelson Quarries, as stated above, operates five plants on an intermittent basis
depending upon the location of their customer and the season. On January 25, 2009,
Nelson filled out a Notification of Commencement of Operations, Closing or Moving
form indicating that they were closing Plant #5 at Cherryvale from February 2, 2009 until
February 28, 2009. (Ex. S- 9, at 5). Inspector Bellfi traveled to the plant on May 18,
2009, an~ found what he believed to be a closed mine and issued the citation, (Ex. S-5),
which states:
The operator failed to notify the nearest MSHA office of the correct start date of
mining operations. A notification form was filed at the Topeka field office
indicating that the mine would commence mining operations on 2/28/2009. The
crushing plant was moved to the location but not constructed. The mine was not
operating as of the attempted inspection date 5/18/2009. No notification was
given to MSHA to indicate mining would not commence by the original date
submitted.
The inspector believed that the property at the time of the inspection was under
the jurisdiction of the Occupational Safety and Health Administration ("OSHA") because
it was temporarily closed, and issued the citation based upon his lost time and effort
traveling to the property for an inspection. Because the mine was not operating, the
violation was a paper one. Inspector Bellfi assessed moderate negligence because the

32 FMSHRC Page 1425

weather had been extremely wet preventing Nelson from bringing the plant on line as
anticipated. The Secretary proposes a penalty of $100.00.
2. The Violation
Section 56. l 000 of 30 U.S.C. provides:
The owner, operator, or person in charge on any metal and nonmetal mine shall
notify the nearest Mine Safety and Health Administration and Metal and
Nonmetal Mme Safety and Health District Office before starting operations, of
the approximate or actual date operation will commence. The notification shall
include the mine name, location, the company name, mailing address, person in
charge, and whether the operations will be continuous or intermittent.
When a mine is closed, the person in charge shall notify the nearest district office
as provided above and indicate whether the closure is temporary or permanent.
The parties stipulated that when Inspector Bellfi arrived at Plant #5, the crusher
was present but not set up and had not been, between February 28, 2009 and May 18,
2009. It was further agreed that there had been no drilling, blasting or extracting of
limestone during this time period and that Nelson was the operator this mine with Mine
ID No. 14-01635. (Ct. Ex. A).
Inspector Bellfi testified that the Nelson had operated Plant #5 for some time as a
limestone quarry. As stated above, Nelson operates mobile and intermittent plants
depending upon the weather and orders placed by customers. Plant #5 was due to be
closed for 26 days according to the Mine Notification form submitted by Nelson. (Ex. S6). Plant #5 is approximately three hours away from the Topeka field office. (Tr. 44).
When the inspector arrived on the property on May 18 and found the crusher in pieces
and only a.loader and stockpile present, he concluded that the mine was closed and that
he lacked jurisdiction to conduct an inspection. (Tr. 46-48). At one point, he testified
that he saw customers pulling up and loading their trucks with product from the stockpile
but later he testified that he did not see any customers purchasing limestone. (Tr. 46 and
85). As support for his belief that OSHA rather than MSHA had jurisdiction over the
property, he cited the Interagency Agreement Between the Mine Safety and Health
Administration, U.S. Department ofLabor, and the Occupational Safety and Health
Administration, U.S. Department ofLabor (the "Agreement"). 1 (Ex. S-7). Inspector
Bellfi stated that somewhere in the Agreement, it states that a loader and a stockpile do
not qualify as a mine and are under OSHA's jurisdiction. (Tr. 48, 52-53). Further, the
workers present at that time would not fall under the protection of the Mine Act (Tr. 59).
Only when there is mining activity does MSHA have jurisdiction over the facility; a plant
1

Interagency Agreement Between the Mine Safety and Health Administration, US. Dept. ofLabor, and the
Occupational Safety and Health Administration, U.S. Department ofLabor, U.S. Dept. of Labor (March 29,
1979), http://www.osha.gov/pls/oshaweb/owadisp.show document?p table=MOU&p id=222
("Interagency Agreement").

32 FMSHRC Page 1426

being setup would be mining activity. (Tr. 78-80). When only a stockpile and loader
remain on the property, jurisdiction reverts back to OSHA according to the Agreement.
(Tr. 82).
When Inspector Bellfi informed personnel of the citation, the response was that it
had been very wet. Forman Clift also testified that it rained continuously that spring
delaying the setting up of the crusher. (Tr. 100). He also stated that plants maybe
inoperable from a few days to as long as six months, but that they have never been asked
by MSHA for notification on a weekly basis when a plant is temporarily idle. (Tr. 101103). Mr. Schmidt testified that during the period of February to May, he was called out
to Plant #5 of several occasions to repair different pieces of equipment including water
pumps set up to remove the rain water in the quarry. (Tr. 114).
Numerous Mine Notification forms were submitted by the Secretary for Plant #5
and other Nelson mines as evidence of Nelson's being well aware of the requirement to
file such notices and amended notices of movements of plants, temporary closures and
openings of the quarries, changes of address or other changes in identification or nature
of mining. (Ex. S-9). In fact, page 4 of Ex. S-9 is the form filled out on June 25, 2009,
following the issuance of this citation which indicates a closing date of February 28,
2009, and an opening date of August 3, 2009. Page 3 of Ex. S-9 is a revised form
prepared the same day indicating an unknown opening date and page 2 is the final form
dated July 31, 2009, informing MSHA of the opening date of August 10, 2009.
The Agreement between OSHA and MSHA does not delineate jurisdiction
between the two agencies by the presence of a loader or stockpile nor does it state that
jurisdiction bounces back and forth between the two agencies depending upon whether a
mine is temporarily closed for seasonal or other reasons. The Agreement is, in fact,
inclusive, rather than exclusive, in defining MSHA's jurisdiction. It states that the
general principle is that the Secretary will apply the Mine Act and the standards
promulgated there under to protect miners from unsafe or unhealthful conditions. MSHA
has jurisdiction over mines and mills except when "the provisions of the Mine Act either
do not cover or do not otherwise apply to occupational safety and health hazards on mine
or mill sites (e.g. hospitals on mine sites) or where there is statutory coverage under the
Mine Act but there exists no MSHA standards applicable to particular working
conditions on such cites, then the OSHAct will be applied to those working conditions."
(Emphasis added) See Interagency Agreement, citing 30 U.S.C.§ 815. The Agreement
cites Mine Act section 3(h) which defines a mine over which MSHA has jurisdiction as
"lands, structures, facilities, equipment and other property used in, or to be used in, or
resulting from mineral extraction." Id. There is also a provision under the Act directing
the Secretary of Labor, in determining what constitutes mineral milling, to give due
consideration to the convenience of administration resulting from the delegation to one
Assistant Secretary of all authority with respect to the health and safety of miners
employed at one physical site. When doubts result as to whether jurisdiction lies with ·
OSHA or MSHA, those doubts will be resolved in favor of the Congressional intent that
the facility will be included within the coverage of the Mine Act. OSHA's jurisdiction is
32 FMSHRC Page 1427

carved out as an exception to MSHA' s jurisdiction and applies to brick, clay pipe,
refractory plants, ceramic plants, fertilizer product operations, concrete batch, asphalt
batch, not mixed plants; smelters and refineries whether or not on mine property and salt,
cement and gypsum board plants not on mine property.
The evidence shows that Plant #5 has been in operation under Mine ID No
1401635 since December 2004 as an intermittent/mobile limestone mine. (Ex. S-9).
Plant #5 has been under the jurisdiction of the Mine Act and has been subject to regular
inspections continually since that time. The property still had a workable quarry on it, the
pumps were in operation draining the water in preparation of extracting minerals, there
was a loader and cranes, and there was a stockpile resulting from prior mineral extraction
present on May 18, 2009. There had not been a reversion of jurisdiction to OSHA at any
time. That having been said, the fact that the property was under MSHA's jurisdiction
does not address the issue of whether Nelson complied with the standard of notifying
MSHA of an accurate expected opening date of its operation. This standard was
promulgated to ensure inspections are conducted during times at which it can be verified
that the operator is adequately protecting the safety and health of the miners. It also
serves to conserve MSHA's expenditure of resources by avoiding travel to mines located
far from the field offices when not in operation. See MSHA, Comment and
Recommendations; Notification of Legal Identity, and Notification of Commencement of
Operations and Closing of Mines, 72 Fed. Reg. 35730 (proposed June 29, 2007). The
process by which an amended notification could have been provided to MSHA was
extremely simple. Nelson could have called or faxed in a revision to the initial
notification. The fact that they had done numerous such notifications in the past
confirms that they were well aware of the necessity for doing so and the means by which
it could have been accomplished.
Nelson argued that the mine was not closed when Inspector Billfi came on May
18, 2009. In support of this position, they offered the self-serving testimony of Mr.
Schmidt, the mechanic, to say that he was called to the site multiple times to service
equipment located there between February and May. However, Nelson did not produce
any work orders~ inspection reports indicating equipment needing repair, invoices for
parts purchased or any specific dates, times and/or repairs done to lend credence to this
very vague testimony. Furthermore, the MSHA notification forms they submitted on June
25, 2009, amending the cited notification, indicate that the mine was closed from
February 28, 2009, the originally proposed opening date, until August 10, 2009. (Ex. S9, at 2-3). Finally, Forman Clift simply stated to the inspector on May 19 that the mine
was not yet open because of inclement weather all winter and spring.
From these facts, I conclude P.iant #5 was still closed on May 18, 2009, when
Inspector Billfi issued the citation. I further find that having given an estimated opening
date of February 28, 2009, Nelson violated the standard by not providing a revised notice
of opening shortly thereafter with a more accurate estimated opening date.

32 FMSHRC Page 1428

II.PENALTY
The Mine Act section 11 O(i) delegates to the Commission and its judges
"authority to assess all civil penalties provided in the Act." 30 U.S.C. § 820(1). The Act
delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) and
830(a). Therefore, when an operator notifies the Secretary that it intends to challenge a
penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §
2700.28. The administrative law judge then has the authority to assess de novo the
appropriate penalties taking into consideration the six statutory penalty criteria:
(1) the operator's history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator's ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 u.s.c. § 820(1).

In keeping with this statutory requirement, the Commission has held that
"findings of fact on the statutory penalty criteria must be made" by its judges. Sellersburg
Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), affd, 736 F.2d 1147 (7th Cir. 1984). Once
findings on the statutory criteria have been made, a judge's penalty assessment for a
particular violation is an exercise of discretion, which is "bounded by proper
consideration of the statutory criteria and the deterrent purpose[s]. .. [of] the Act." Id. at
294; Camera Green, 22 FMSHRC 616, 620 (May 2000).
The parties' stipulation provides that the proposed assessment will not affect the
operator's ability to continue in business. (Ct. Ex. A.). I accept this stipulation based
upon the evidence presented.
I also find that the operator abated the citations in good faith in a timely manner.
The history shows a number of citations, none of which have been significant or
substantial, and I find that the following penalties are appropriate in the case given the
statutory criteria:
Citation No. 6447701: I assess a penalty of $460.00 as proposed by the Secretary
based upon the negligence and gravity as discussed above.

Citation No. 6447705: I assess a penalty of$100.00 as proposed by the Secretary
based upon the negligence involved as discussed above.

32 FMSHRC Page 1429

III. ORDER
Based on the criteria in section 110(1) of the Mine Act, 30 U.S.C. § 820(1), I
assess a penalty of$560.00 for the two violations in this docket. Nelson Quarries, Inc. is
ORDERED TO PAY the Secretary of Labor the sum of$560.00 within 30 days of the date
of this decision. 2

~

Administrative Law Judge

Distribution:
Paul M. Nelson, Representative for Respondent, P. 0. Box 334, Jasper, MI 64755
Hillary Smith, Conference & Litigation Representative, US Department of Labor,
MSHA, P.O. Box 25367 M/NM, Denver, CO 80225-0367

2

Payment should be sent to the Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390

32 FMSHRC Page 1430

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
7211gtt' STREET, SUITE 443
DENVER, CO 80202~2500

303--844-3577/FAX 30~~5268

October 18, 2010
CONTEST PROCEEDINGS

TWENTYMILE COAL COMPANY,
Contestant

Docket No. WEST 2008-788-R
Order No. 7622426; 03/12/2008

v.

Docket No. WEST 2008-1093-R
Order No. 6686312; 05/06/2008

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

Docket No. WEST 2008-1094-R
Order No. 6685313; 0510612008
Foidel Creek Mine
Mine ID No. 05-03836

CNIL PENALTY PROCEEDINGS

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

Docket No. WEST 2009-333
A.C. No. 05-03836-169779-01

v.

Docket No. WEST 2009-579
A.C. No. 05-03836-175445-01

TWENTYMILE COAL COMPANY,
Respondent

Docket No. WEST 2009-1174
A.C. No. 05-03836-189502-01
Foidel Creek Mine

DECISION
Appearances:

R. Henry·Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania,
for Twentymile Coal Company;
Jennifer A. Casey, Esq., and Kim R. Rogers, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, and Larry R. Ramey,
Conference & Litigation Representative, Mine Safety and Health
Administration, Denver, Colorado, for the Secretary of Labor.

Before:

Judge Manning

32 FMSHRC Page 1431

These cases are before me on notices of contest filed by Twentymile Coal Company
("Twentymiie") and petitions for assessment of civil penalty filed by the Secretary of Labor
("Secretary"), acting through the Mine Safety and Health Administration ("MSHA") pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and
820 (the "Mine Act"). The parties introduced testimony and documentary evidence at a hearing
held in Steamboat Springs, Colorado, and filed post-hearing briefs.
Twentymile operates the Foidel Creek Mine, a large underground coal mine in Routt
County, Colorado. The mine extracts coal in panels using a longwall system. As discussed
below, the parties settled many of the citations at issue in these cases. Order Nos. 7622381,
6686312, 6686313, 7622426, 8456774, and 8456778, issued under section 104(d)(2) of the Mine
Act, were adjudicated at the hearing.

I. ORDER NO. 7622381; WEST 2009-579

A. Back2round.
On December 12, 2008, Inspector James Preece issued Order No. 7622381 under section
104(d)(2) of the Mine Act, alleging a violation of 30 C.F.R. § 75.360(a)(l) as follows, in part:
A certified person designated by the operator did not make a
preshift examination within 3 hours preceding the beginning of any
8-hour interval during which a miner was scheduled to work
underground between the No. 2 to 3 entry crosscut, 7 Main North
(6o+56). The following conditions existed: (1) the last preshift
examination (rock belt) was certified by date, time, and initials 1210-2008; (2) a miner was working in the area taking down
equipment doors between the entries and installing Kennedy
, stopping; (3) hazardous conditions existed in the crosscut ....
(Ex. G-1 ). The inspector determined than an injury was reasonably likely and that any injury
would reasonably be expected to be permanently disabling. He determined that the violation was
significant and substantial ("S&S") and that the company's negligence was high. Section
75.360(a)(l) provides, in part, that "a certified person designated by the operator must make a
preshift examination within 3 hours preceding the beginning of any 8-hour interval during which
any person is scheduled to work or travel underground." The Secretary proposes a penalty of
$5,645.00 for this order.
Inspector Preece testified that he began his inspection in the area of the rock belt. Dianna
Scott Ponikvar, a senior safety representative for Twentymile, accompanied the inspector.
Ponikvar informed the inspector that the belt was not in operation. After his examination, they
traveled to the 7 Main North between the Nos. 2 and 3 crosscut entries, where they encountered
Tim Torres in a crosscut. Inspector Preece testified that Torres told him that he was in the area to

32 FMSHRC Page 1432

remove a set of equipment doors and install a Kennedy stopping. (Tr. 21; Ex. G-3, p. 3). The
inspector noticed materials, including aluminum panels, a foam pack, and a hydraulic jack used
to build a Kennedy stoppings were in the area. (Tr. 22-23).
Inspector Preece testified that he observed hazardous loose material, broken ribs, and the
improper storage of the foam pack at this location. (Tr. 22-25; Ex. G-2). He stated that the ribs
were broken in the area above the location of the stored building materials. The most recent
preshift examination had taken place on December 10, 2008. (Tr. 30). Based on what he
observed, the inspector immediately issued several citations for the hazardous conditions but he
did not issue the subject order until he discussed the matter with Matt Wade, the mine foreman.
Preece testified that Wade advised him that the building materials were placed in the crosscut by
miners on the midnight shift. (Tr. 23). Because moving the materials into the area took some
time and the construction of a ventilation device affects mine safety, Inspector Preece concluded
that the delivery of materials in the crosscut was a scheduled activity and that mine management
directed the work. (Tr. 55). Inspector Preece testified that Torres told him that he had been
assigned by Wade to build the stopping doors. (Tr. 29; Ex. G-3, p. 2). Wade told the inspector
that he had not examined the area and he did not check the books to see when the last preshift
was performed. Id.
Ms. Ponikvar testified that the rock belt has not been used since November 29, 2008. (Tr.
70-71). fu the course of the inspection, she entered the subject crosscut with the inspector. fu the
crosscut they observed the supplies that were being staged for the removal of an equipment door
and the installation of a Kennedy stopping. (Tr. 72-74). While they were in the crosscut, Torres
entered the area from the opposite side, i.e., the 7 Main North travelway. (Tr. 77-78; Ex. TCC1). Ponikvar testified that Torres entered the crosscut to confirm that the necessary supplies were
present for the planned work. (Tr. 81).

Mr. Wade testified that he sent Torres to the crosscut to make sure that all equipment and
supplies needed for the work to be performed were present. (Tr. 95-98, 101). He stated that
Torres was not going to be working in the area and that the equipment doors were going to be
removed and the Kennedy stopping was going to be installed the following day. Id. According
to Wade, it takes an entire crew to perform this work; a solitary miner would be unable to do it.
(Tr. 98).

B. Summary of the Parties' Areuments Concernine the Violation.
The Secretary argues that preshift examinations are critically important because it is the
primary means of detecting developing hazards in a mine, such as a bad roo£ The goal of
preshift examinations is to protect miners from easily preventable accidents. Twentymile failed
to comply with the safety standard because the last examination occurred two days earlier.
Twentyrnile violated the safety standard on two separate occasions. First, Twentymile exposed
miners to hazards when it assigned them to deliver supplies to the crosscut. It is highly unlikely
that miners performed this work on their own without being ordered to do so by management.

32 FMSHRC Page 1433

Consequently, it was a scheduled activity that required a preshift examination. Second, Torres
entered the area to begin the process of removing the equipment doors and installing the
Kennedy stoppings. Management scheduled this activity as well.
At the hearing, the Secretary moved to plead in the alternative that Twentymile violated
section 75.36l{a). (Tr. 101). That provision, entitled "supplemental examination," states, in
part, ''before anyone enters an area in which a preshift examination has not been made for that
shift, a certified person shall examine the area for hazardous conditions .... " The Secretary
contends that in the event the court finds that no work had been scheduled in the subject crosscut
that required a preshift examination, Twentymile was nevertheless required to perform a
supplemental examination for hazardous conditions before anyone entered the crosscut. It is
clear that mine management directed miners to enter the area to deliver the supplies and directed
Torres to enter the area to check on the supplies. As a consequence, a supplemental examination
was required.
Twentymile argues that no violation of section 75.360(a)( 1) occurred. Preshift
examinations are required three hours prior to an eight-hour cycle in areas of the mine (1) where
miners are normally required to work or travel; or (2) where work or travel is scheduled prior to
the beginning of the examination. A preshift was not required because no work or travel was
scheduled to occur in the crosscut prior to the start of the examination period. No work was
being performed in the crosscut at the time of the inspection. Torres was not actively working to
remove the equipment door or to install the stopping at that time, nor was he scheduled to do so.
Wade testified that he instructed Torres to drop off a scoop in the 7 Main North travelway Entry
No. 2, adjacent to the crosscut, in anticipation of the performance of work the next day. {Tr. 9596). Torres simply walked into the crosscut to make sure the supplies were present. It would
take more than one miner to remove the equipment door and install the stoppings.
Twentymile maintains that the Secretary also did not establish a violation of the standard
with respect to, the dropping off of supplies in the crosscut. Wade testified that the persons who
dropped off the supplies may have performed an examination and the Secretary did not prove
otherwise. {Tr. 104). In any event, dropping off supplies is not work that requires a preshift
examination.
Twentymile argues that the Secretary's attempt to plead in the alternative at the hearing
after the testimony had been completed should be denied. No explanation was given for the
unreasonable delay in seeking an alternative ground for recovery. The request was untimely.
This attempt to change her theory of the case amounts to legally recognizable prejudice that
merits denial of the motion to amend.
C. Discussion.

I find that the Secretary established a violation of section 75.360(a)(l). The evidence
establishes that on the previous midnight shift, miners gathered supplies to be used in

32 FMSHRC Page 1434

constructing the stopping and delivered them to the subject crosscut. A preshift examination was
not performed prior to the delivery of this material. The safety standard requires the operator to
make a preshift examination within three hours preceding the beginning of any 8-hour interval
during which any person is scheduled to work or travel underground. Although other areas of the
mine were preshifted, the crosscut was not. Clearly, miners had to work or travel in the crosscut
to perform this work. The miners would have delivered the materials upon the direction of
management. Consequently, the work was scheduled by the mine operator. These miners would
have been exposed to any hazards in the crosscut, as discussed below. Twentymile argues that a
certified person may have performed a supplemental examination of the area. There is no proof
that such an examination was performed, however.
In addition, Mr. Torres traveled through the crosscut in the presence of the inspector and
Ms. Ponikvar. He went into the crosscut to make sure supplies were present to install the
stopping. I credit the testimony of the company's witnesses that Torres did not intend to start the
work of removing the equipment door or installing the stopping. Although his exposure to any
hazards was not very great, he traveled to the area at the direction of his supervisor. 1

D. Si2nificant and Substantial.
Inspector Preece determined that a number of hazards were present in the crosscut, as
listed in the order of withdrawal. He issued section 104(a) citations for these alleged hazards.
The inspector alleged that the rib in one area of the subject crosscut was not being supported or
controlled. He stated that the outby side of the crosscut had a loose hanging rib measuring 13
inches in thickness, 10 feet in height, and 8 feet in length. (Tr. 23; Ex. G-9). He also alleged that
the presence of the foam pack violated the mine's ventilation plan because it was not in a
designated storage area.
Inspector Preece was concerned that Torres would start removing the equipment door in
the crosscut. · Removing the door would create a significant hazard because the doors were
secured by stoppings which were helping to support the loose rib. (Tr. 25). If the loose rib were
to fall on a miner it could reasonably be expected to cause debilitating injuries. (Tr. 32-33). By
not conducting a preshift exam, the operator and its miners would not know what hazards were
present in the crosscut before work began.
Twentymile maintains that the evidence establishes that the rib was supported by wire
mesh. (Tr. 74; Ex. G-2). Ponikvar testified that the rib did not create a hazard to miners working
in the area. Id. The presence of the foam pack, while it might have been a technical violation,
did not create a hazard. Twentymile also contends that the Secretary failed to establish that there
was a reasonable likelihood that any hazard present would result in an injury. Mr. Torres was
1

Because I find that the Secretary established a violation of section 75.360(a)(l). I do not
resolve the issue whether it was appropriate for the Secretary to plead a violation of section
75.36l(a) in the alternative after all evidence on this order had been presented.
32 FMSHRC Page 1435

going to be in the crosscut for a very short time and he was not scheduled to remove the doors or
build the stopping. (Tr. 95-98). Due to the nature of the work, it would require a crew of men to
remove the equipment door.
A S&S violation is described in section 104(d)( 1) of the Act as a violation "of such nature
as could significantly and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is properly designated S&S "if,
based upon the particular facts surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature."
Cement Div., Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
[i]n order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: ( 1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
The Commission provided additional guidance with respect to the third element of the
S&S test:
We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(l ), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984) (emphasis added); U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574-75(July1984).

U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985) This evaluation is made in
consideration of the length of time that the violative condition existed prior to the citation and the

32 FMSHRC Page 1436

time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27
FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. The question
of whether a particular violation is S&S must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (Dec. 1987).
Looking only at the activities of Mr. Torres on December 12, I find that the Secretary did
not establish that the violation was S&S. Torres was simply walking into the crosscut to see if
materials were present for the crew to perform the scheduled work the following day. But for the
presence of the inspector, he would have been in the crosscut for an extremely short time. It is
highly unlikely that he would have sustained any sort of injury. The inspector based the S&S
determination, in part, on his belief that Torres was going to start removing the equipment door.
As stated above, I find that the evidence establishes that Torres was in the area only because he
was directed to park a scoop near the crosscut and then enter the crosscut to check if the
necessary supplies were present. I cannot assume that Twentymile would not have conducted a
preshift examination before a crew commenced the work of removing the equipment door the
following day.
Nevertheless, the inspector also cited Twentymile because the materials to be used to
construct the Kennedy stopping were delivered the previous shift. It is clear that a preshift
examination was not performed. In addition, there is absolutely no evidence that a supplemental
examination was conducted. Whenever a supplemental examination is conducted, the examiner
must certify by initials, date, and time that the examination was made. 30 C.F.R. § 75.36l(b).
No such certification was found in the area. Preshift examinations had been performed in the 7
Mine North, but there is no evidence that the subject crosscut was examined.
I find that the Secretary established that the violation was S&S. There was a violation
that created a discrete safety hazard. I find that it was likely that the hazard contributed to by the
violation would result in an injury of a reasonably serious nature. I base this finding on the fact
that significant work had been performed on the previous midnight shift when supplies and
materials were delivered to the crosscut. The miners would have been in the crosscut for some
time dumping rather heavy material in the area. (Ex. G-2, p. 3). Such activities exposed the
miners to any hazards that were present. The rib that was of concern to the inspector was
partially supported by wire mesh. (Tr. 74-75; Ex. G-2, p. 2). Nevertheless, based on the
testimony of the inspector, I find that much of the rib was not adequately supported. 2 ''The
preshift examination requirement is unambiguous and is of fundamental importance in assuring a
safe working environment underground." Buck Creek Coal Co., Inc., 17 FMSHRC 8, 15 (Jan.
1995).

2

Preece testified that the supplies for constructing the stopping had been placed directly
under the loose rib he was concerned about. Ponikvar testified that the alleged loose rib was on
the opposite side of the crosscut. The photographs do not resolve this conflict. My S&S finding
is not dependent on a resolution ofthis conflict in the testimony.
32 FMSHRC Page 1437

E. Unwarrantable Failure.
The term "unwarrantable failure" is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or the "serious lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 194 (Feb. 1991). 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 was obvious or posed a high degree of
danger, and the operator's knowledge of the existence of the violation. See Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23
FMSHRC 588, 593 (June 2001). All of the relevant facts and circumstances of each case must
be examined to determine if an actor's conduct is aggravated, or whether mitigating
circumstances exist. Consolidation Coal Co., 22 FMSHRC at 353.
The Secretary argues that the violation was properly designated as an unwarrantable
failure because Twentymile could have easily determined whether a preshift examination was
conducted by reviewing the record books. When the shift foreman failed to determine whether
the crosscut had been preshifted, he placed any miners who entered the crosscut into a potentially
hazardous position. The Secretary also notes that Twentymile has been cited for violating the
safety standard 13 times in the previous two years. (Tr. 37-38).
Twentymile contends that the violation should not have been designated as an
unwarrantable failure. The extent and duration of the violation was very limited. Torres traveled
to the crosscut by way of the 7 Main North No. 2 entry, which had been preshifted. The only
area that he traveled through that had not been examined was the crosscut and he went there only
to make sure that the supplies were present. ln addition, no hazards were present in the crosscut.
When Torres entered the crosscut, Ponikvar and Inspector Preece were already present. Under
these circumstances; there was no aggravated conduct.
I find that the violation was not the result ofTwentymile's aggravated conduct but was
the result of its ordinary negligence. The violation existed for a short period of time and miners
were only in an area that had not been preshifted for a short time. Although Twentymile has
received previous citations for violations of section 75.360(a)(l), the circumstances here were
unusual and I find that it had not been placed on notice that further efforts were necessary to
ensure compliance. The violation was not particularly obvious. I agree with the Secretary that
compliance with 75.360(a)(l) is critically important and that performing preshift examinations is
a fundamental safety practice in the mining industry. I find that, in this instance, the failure of
the company to perform the examination was a result of simple, ordinary negligence rather than
reckless, intentional, or indifferent conduct. This order is MODIFIED to a section 104(a)
citation with moderate negligence. A penalty of$2,000.00 is appropriate for this violation.

32 FMSHRC Page 1438

II. ORDER NO. 6686312; WEST 2009-333
A. Back2round.
On May 6, 2008, fuspector Barry Grosely issued Order No. 6686312 under section
104(d)(2) of the Mine Act, alleging a violation of 30 C.F.R. § 75.400. The order alleges that:
fu the belt entry (#3-entry) of the Main North #1 and #2 main
conveyor belt line, from the Portal to crosscut 34 and including the
#2 tripper drive area of the #2 Main north belt, the operator
allowed combustible material to accumulate. The affected area
from the portal to crosscut 34 is about 3400 feet in length.
(Ex. G-10). The order goes on to state that the adjoining crosscuts also contained combustible
material. The order states that in this delineated area, accumulations of float coal dust were on
the ribs, roof, floor, belt hardware, pipes and hoses, drive motors, belt structures, and electrical
control boxes. The order states that the float coal dust ranged in thickness from a couple of
sheets of paper to as much as 1/16 of an inch thick or more. The float coal dust was described as
being dry and dark grey to black in color. The inspector determined than an injury was
reasonably likely and that any injury would reasonably be expected to be permanently disabling.
He determined that the violation was S&S and that the company's negligence was high. Section
75.400 provides, in part, that"[ c]oal dust, including float coal dust deposited on rock-dusted
surfaces ... shall be cleaned up and not be permitted to accumulate in active workings, or on
diesel-powered and electric equipment therein." The Secretary proposes a penalty of $50,700.00
for this order.
fuspector Grosely testified that coal was being produced when he arrived at the mine on
May 6 but that there had been minimal production on the previous shift. {Tr. 115, 140-41 ). He
reviewed the.preshift examination books and noted that there were entries in the books regarding
accumulations. Inspector Grosely started his inspection in the transfer building and drive
building on the surface. He issued three citations for accumulations of float coal dust and coal
fines in those areas. {Tr. 121-22). He then traveled into the mine through the portal for the No. 3
Entry. This entry was the main conveyor belt entry and it was on intake air. {Tr. 124). He
testified that he immediately noticed accumulations of float coal dust and, as he traveled further
inby, the accumulations became "more pronounced." (Tr. 123, 125-26). The accumulations
existed from the portal to Crosscut 34, a distance of3,400 feet. (Tr. 126).
fuspector Grosely stated that the accumulations were heavier in the crosscuts along the
entry. {Tr. 123, 127). Air moves through the belt entry at a rate of 350 feet per minute and the
inspector believes that this high velocity caused most of the rock dust that is injected into the
entry to travel down the belt line. (Tr. 127-30). As a consequence, there was less rock dust in
these crosscuts.

32 FMSHRC Page 1439

Inspector Grosely estimated that the float coal dust had accumulated to a depth of I/16th
of an inch in some locations. (Tr. 134-36). Inspector Grosely testified that when he rubbed his
hand across the top of electrical installations, the float coal dust "flowed like water" and
appeared to be very fine. (Tr. 127). He testified that he believes that these accumulations were
more than what are typically generated during a normal production cycle at the mine. (Tr. 137).
The inspector believes that the extensiveness of the accumulations, combined with the fact that
minimal production had occurred on the immediately preceding shift, demonstrated that the
conditions he observed had existed for more than one shift and that the accumulations in the
crosscuts had existed for a very long period of time. (Tr. 140-41 ).
Grosely further testified that the accumulations were obvious and extensive. (Tr. 126,
151 ). He stated that a person without experience in the mining industry could have identified the
seriousness of the condition. (Tr. 151, 156). On that basis, he determined that the violation was
the result of Twentymile's unwarrantable failure to comply with the requirements of the safety
standard. Inspector Grosely testified that the violation was S&S, because, if mining operations
had been permitted to continue, it would have been reasonably likely that a fire or explosion
would have occurred, resulting in at least permanently disabling injuries to miners. (Tr. 142,
150-51).
Allan Meckley, a mine foreman for Twentymile, testified that the company had
established a rock dusting protocol that included a permanent pressurized bulk rock dusting line
in the belt entry. (Tr. 233). Hoses connected to the dust line were used by rock dusting teams to
rock dust the entry and the associated crosscuts. (Tr. 235). The belt is rock dusted two to three
times a week. (Tr. 238). The company's preshift examination books reveal that the examiners
did not note any hazards or violations from May 4 to May 6, 2008, in the cited entry. (Ex. G-13).
Some of the examiners did insert comments indicating conditions which, while not rising to a
violation or a hazard, would benefit from additional rock dust. Id. The company took action to
address the conditions observed by the examiners. For example, in response to these comments
in the preshift books, rock dusting was performed on May 5 from Crosscut 78 to the tail of the
No. 2 belt, and was progressing toward Crosscut 55. (Tr. 237; Ex. G-13). Rock dusting
continued on the morning of May 6. At the same time that Inspector Grosely was inspecting the
mine on May 6, Fireboss Tim Bertram examined the No. 1 and No. 2 belts and indicated that the
area from the portal to Crosscut 20 could use dust. (Ex. G-13). Mr. Bertram testified that he did
not believe that the condition constituted a hazard or a violation of the safety standard. (Tr. 270).
Six different mine examiners inspected the entry and, although they all suggested that more rock
dust be applied, none of them believed that a hazard existed. (Ex. G-13).
Michael Dezeeuw, a respirable dust sampler in the company's safety department, testified
that the mine has a concrete floor the first 400 feet into the mine and at the belt drives. (Tr. 20910). Concrete is used in these areas to make it easier to keep the area clean of coal dust. He
testified that the rock dust at the Foidel Creek Mine is often grey in color. He accompanied
Inspector Grosely during the inspection. He observed the same conditions as the inspector.
Dezeeuw testified that the dust in the area was light to dark grey in color. He believes that the
32 FMSHRC Page 1440

darker material was a mixture of rock dust and float coal dust. (Tr. 214). He did not consider
these accumulations to present a hazard and he would not have described it as a hazard in the
examination book. Id. There was no methane along the belt line.
Dezeeuw further testified that, in his opinion, an explosion or fire was highly unlikely
along the belt. {Tr. 215). There were not any significant ignition sources. There was some dust
inside electrical boxes, but not enough to propagate a fire or an explosion. The electrical boxes
were not required to be permissible. The equipment the needed to be greased was in an area
where the floor was concrete and the walls were covered with shotcrete. {Tr. 218). He admitted
that there was a belt fire at the mine some time prior to 1999. (Tr. 233). The mine's carbon
monoxide monitoring system will detect the presence of smoke and shut down the system. (Tr.
226). The mine contains about eight and a half miles of conveyor belts.

B. Discussion.
1. Significant and Substantial.

Twentymile is not contesting the violation in this instance, but it contends that the
Secretary did not establish that the violation was S&S. The Secretary maintains that the
conditions observed by Inspector Grosely met all four elements of the Commission's S&S test.
Twentymile allowed float coal dust to accumulate over a large area of the No. 3 belt entry. A
discrete safety hazard existed. The Secretary argues that Inspector Grosely reasonably
determined, based on the particular conditions he observed, that there was a reasonable
likelihood that miners working in the area would be injured and that such an injury would be of a
reasonably serious nature.
The Secretary contends that ignition sources likely to propagate a mine fire or explosion
were present in the belt entry. Rollers are spaced every six to ten feet along the top of the belt
line and every ten feet along the bottom. {Tr. 132-33). About 65 rollers fail at the mine every
working day. (Tr. 133, 144). Bearings on rollers can fail without any notice. {Tr. 133, 145,
224). When such a failure occurs, there is a potential for sparking and heating of the metal
components. Sparking and heat can cause a fire or ignition. Indeed, the Secretary notes that
Inspector Grosely observed a failed belt roller during his inspection and he shut down the subject
belt line until the accumulations_ could be removed. {Tr. 133-34; Ex. G-12, pp. 4-5). He also
testified that he observed areas where the belt was rubbing against belt hangers. {Tr. 142-43).
The belt operates at a speed of 800 to 900 feet per minute. The Secretary argues that the speed of
the belt, combined with defective belt rollers and the rubbing of belts against metal parts, has a
potential to generate heat. The presence of float coal dust in this environment not only creates a
fire hazard, but also enhances the probability of a mine explosion. {Tr. 142-43, 147-48).
Twentymile argues that the Secretary did not establish the third element of the
Commission's Mathies test because the necessary preconditions for an explosion or fire did not
exist. The presence of numerous monitoring and prevention systems further served to safeguard

32 FMSHRC Page 1441

the belt entry from fire or explosion. To propagate an explosion, float coal dust must be
suspended in the air. This occurs as a result of a methane explosion. It is uncontested that there
was no methane in the belt entry. The inspector admitted that, ill the absence of detectable levels
of methane, a methane explosion in the belt entry was unlikely. (Tr. 200-01 ). The belt entry was
very humid, making it less likely that the float coal dust would go into suspension. Also, the
inspector did not sample the dust to see what percentage was rock dust.
Twentymile contends that the absence of necessary preconditions for a fire also made any
ignition of float coal dust very unlikely. The belt rollers are regularly inspected for damage and
the air is regularly tested for the presence of oxygen, carbon monoxide and methane. The belt
was equipped with belt slip monitoring devices that automatically shut down the drive belt if the
belt malfunctions. Moreover, the belt line was equipped with a fire suppression system and
water sprays to reduce the presence of float control dust in the event excessive heat is detected.
For the reasons set forth below, I find that the Secretary established that the violation was
S&S. There is no doubt that float coal dust had settled over a large area. The float coal dust had
settled throughout the entry for a distance of 3,400 feet. It covered every surface and had also
settled into the crosscuts. I credit the inspector's testimony that the float coal dust accumulation
was more than would be typically generated in one production cycle. The key issue is whether
there was a reasonable likelihood that the hazard contributed to by the violation would result in
anmJury.
When evaluating the reasonable likelihood of a fire, ignition, or
explosion, the Commission has examined whether a "confluence of
factors" was present based on the particular facts surrounding the
violation. Texasgu.lf, Inc., 10 FMSHRC 498, 501 (April 1988).
Some of the factors include the extent of the accumulations,
possible ignition sources, the presence of methane, and the type of
,equipment in the area. Utah Power & Light Co., 12 FMSHRC
965, 970-71 (May 1990).
Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997).

The float coal dust was disbursed over a wide area and was about as thick as a couple of
sheets of paper. The accumulations were heavier in the crosscuts. Along the floor of the mine,
the float coal dust was on top of rock dust. The rock dust used at the mine is often grey in color
rather than white. It is not entirely clear when the float coal dust was deposited, but it was
deposited over a number of shifts. The dust was very fine. Some of the accumulations were dry,
but the environment in the entry was very humid.
It is important to understand that the area cited by the inspector was at the portal of the
mine and was not near the longwall face. There was no methane detected in the area and,
assuming continued mining operations, it was unlikely that methane would accumulate in this

32 FMSHRC Page 1442

area of the mine. The entries were on intake air and velocity of the air was quite high as it passed
through this area.
When asked about ignition sources, the inspector testified that he saw several potential
ignition sources. He saw evidence that the belt had been rubbing against the belt hangers for an
extended period of time. A number of belt rollers had "belt string" wrapped around them. This
string is produced as the edge of the belt becomes frayed from rubbing against the metal
structure. He stated that float coal dust can saturate the string and bum if it gets caught in a
defective belt roller. A belt roller can fail without much warning. fuspector Grosely also
believed that the electrical components along the entry could become an ignition source. Finally,
some of the bearings in the belt system had been over-greased and this grease could bum if it
came in contact with defective rollers.
I find that it was unlikely that the electrical equipment would cause the float coal dust to
bum. The cables, boxes, and other electrical components were in good operating order. There is
no evidence that they were overheating or were likely to overheat. The fact that some dust was
found inside electrical boxes does not help establish that it was likely to ignite.
Although there was a chance that a defective roller could ignite float coal dust, I find that
it was unlikely it would start a fire that could create a hazard to miners. The belts used to convey
coal and rock at mines today are fire retardant and will not bum under normal circumstances.
There is no evidence that piles of loose coal and coal fines had accumulated under the belt, or
under or near rollers such that a localized ignition of float coal dust could start a fire that would
spread. The same is true where the belt was rubbing against metal components. If such a hot
spot ignited a small amount of float coal dust at that location, it was unlikely that this event
would start a mine fire. The rollers are checked during preshift examinations and are replaced on
a frequent basis. A carbon monoxide monitoring system continuously monitors the belt entry. It
is designed to detect any combustion or heat along the belt at an early stage. The belt is also
equipped with a belt slip monitoring system that automatically shuts down the drive in the event
of belt slippage.
The Secretary relies, in large part, on the belt fire at the Aracoma Coal Company's Alma
No. 1 Mine. (Tr. 147). That fire presented a different situation from the present case, however.
The water sprays at the belt drive, where the fire started, had been turned off and stoppings
separating the escapeways from the belt entry were missing. (Tr. 185). These conditions did not
exist in the present case. There have been no fatalities and no reportable injuries resulting from
any reportable belt fire since at least 1979 other than the Aracoma fire. See Cumberland Coal
Resources, LP, 31FMSHRC137, 149 (Jan. 2009) (ALJ) (reversed on other grounds, 32
FMSHRC 442 (May 2010)).
The key issue when evaluating a citation or order involving float coal dust is the
possibility that the dust will be put into suspension in the mine atmosphere. By far the most
common way for float coal dust to be put into suspension is from a methane explosion. The

32 FMSHRC Page 1443

methane explosion need not occur in the immediate area of the float coal dust. The explosion
can occur at the working face, for example, and the force of the blast can travel a long distance
along the entries of the mine. This force can then cause the float coal dust to fill the mine
atmosphere. The force of a methane explosion can also severely disrupt the mine's ventilation
system and cause the air to stop flowing through entries. If the air stops flowing, the float coal
dust will not be disbursed or diluted, but will stay suspended in the air. When float coal dust is
suspended in the air, the exposed surface area of the dust particles increases exponentially,
thereby making the dust extremely volatile. The suspended float coal dust can then provide fuel
for a methane explosion occurring at the face to continue down the entries for a considerable
distance beyond the presence of the methane. In addition, other ignition sources in the
immediate area of the coal dust can ignite the suspended float coal dust.
Because float coal dust is highly explosive when it is suspended in the air, applying the
Commission's S&S test to such accumulations presents a challenge. The third element of the
test requires a showing that there is a reasonable likelihood that the hazard contributed to will
result in an injury. At any given time in any given underground coal mine it is unlikely that there
will be a serious methane ignition or explosion that will put an accumulation of float coal dust
into suspension. It is reasonably likely, however, that there will be at least one serious methane
ignition or explosion over the life of a gassy coal mine. If such an event occurs, the consequences
are catastrophic and the presence of an accumulation of float coal dust can significantly increase
the hazard to miners. The Secretary is not required to establish that it is more probable than not
that an injury will result from a violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June
1996).
It is undisputed that there was no methane present in the cited entries of the mine and
there is no evidence that methane had ever been detected in these entries. It is also undisputed
that the mine liberates significant quantities of methane. The mine typically liberates between
500,000 and 1,000,000 cubic feet of methane per day. As a consequence, the mine is usually on
a 10-day spot inspection cycle. 3 Thus, there is always a potential for rapid buildup of methane in
the mine, notwithstanding the mine's ventilation system and other controls, which could lead to
an explosion.
The Commission has held that the opinion of an experienced MSHA inspector that a
violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC
175, 178-79 (Dec. 1998); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th Cir.
1995). I credit the testimony of Inspector Grosely in this regard. I also credit Inspector
Grosely's testimony that there was insufficient rock dust in the cited area to mitigate this hazard.
It is important to note that, under the logic ofTwentymile's argument, an accumulation of
float coal dust would not be considered to be S&S so long as methane or other combustible

3

At the time of this inspection, the mine was on a.15-day spot inspection cycle because it
was not liberating as much methane in the months proceeding the inspection.
32 FMSHRC Page 1444

materials, such as loose coal and coal fines, were not present along with an ignition source. This
argument fails to recognize that the presence of such conditions would likely create an imminent
danger. If, upon entering a mine, an MSHA inspector discovered extensive accumulations of
float coal dust, detected the presence of more than a trace amount of methane, and found one or
more ignitions sources, he would be justified in issuing an imminent danger order. A condition
does not need to rise to the level of an imminent danger or anything close to an imminent danger
to be considered S&S.
Considering the factors set forth in Enlow Fork, I find that the violation was S&S. The
accumulations were extensive and obvious. Insufficient rock dust was present to render the float
coal dust inert. Although there was no methane in the subject entries, the mine is a gassy mine
subject to spot inspections. As a consequence, methane could build up rapidly and unexpectedly
in an area of the mine closer to or at the longwall face. Such a rapid buildup of methane could
reasonably be expected to be exposed to ignition sources that would detonate the methane. In
addition, there were ignition sources in the area that could independently ignite float coal dust if
it were suspended in the mine atmosphere by a methane explosion further inby. I find that the
Secretary established the third and fourth elements of the Mathies S&S test. It is the contribution
of a violation to the cause and effect of a hazard that must be S&S. It was reasonably likely that
the hazard contributed to by the violation would result in an event in which there was a serious
llljury.

2. Unwarrantable Failure.
The Secretary maintains that the violation was caused by the operator's unwarrantable
failure to comply with the safety standard. The conditions observed by the inspector were
obvious and extensive. She argues that the deteriorating conditions along the entry would have
been noticeable to a layperson. Twentymile applied more than nine tons of rock dust to abate the
condition. In addition, the condition had existed for a considerable length of time. The operator
also had ample notice regarding the need for greater efforts to comply with section 75.400.
Twentymile was cited about 45 times for alleged violations of this standard during the 15 months
preceding the issuance of the subject order. In addition, Inspector Grosely issued a citation for a
similar violation along the No. 7 belt line in October 2006.
Twentymile contends that the violation was not the result of its unwarrantable failure to
comply with the standard. Management was unaware of the extensive nature of the
accumulation. The preshift examiners did not find any violations or hazards in advance of the
May 6 inspection. Because the examiners did not mark the accumulation as a hazard,
management was not aware of any hazard present. Some of the examiners noted in the remarks
section of the preshift book that the area "could use" rock dust, but there were no hazards noted.
The general mine foreman and a representative from the safety department visited the area and
did not believe that a hazard existed. Actions were taken to address the dust in the entry. For
example, rock dusting was performed from the 78 crosscut to the tail of the No. 2 belt on May 5.
Rock dusting was continuing on the morning of the inspection. Thus, Twentymile diligently

32 FMSHRC Page 1445

followed up on any reports in the examination book that additional dusting was recommended.
Twentymile had installed a permanent pressurized rock dusting system in the belt entry, which
demonstrates the importance it places on keeping the belt entries safe.
The preshift examination reports contain the following information in the ''remarks"
section with respect to float coal dust in the cited belt entry. In all cases, the report states "Safe at
time of exam" at the beginning of the remarks section.
May 4 - 6:18 p.m. to 7:25 p.m., "Accumulations at Tripper #1, appears to need dust." On
the same line it says, "Dusted XC 78 to tail 5-5-08 MSB"
May 5 - 2:00 a.m. to 3:05 a.m., there were no entries noting the presence of float coal dust
or recommending that rock dust be applied.
May 5 - 10:00 a.m. to 10:55 a.m., "Need rock dust from portal to XC 23" and "XC 55 to
tail could use dust." There is another notation stating, "5-5-08 in progress MSB." It is
not entirely clear what area the "in progress" notation was referring to because there were
other items needing correction noted in the remarks section of the examination book.
May 5 - 6:10 p.m. to 7:02 p.m., there were no entries noting the presence of float coal
dust or recommending that rock dust be applied.
May 6 - 2:00 a.m. to 3:08 a.m., there were no entries noting the presence of float coal dust
or recommending that rock dust be applied.
May 6 - 10:00 a.m. to 10:43 a.m., "Could use dust portal to XC 20."
(Ex. G-13).
Inspector Grosely believes that the conditions he observed at about 10: 10 a.m. on the
morning of May 6 would have been present at the time of the 2:00 a.m. examination conducted
by Charles Craig, yet nothing was noted in the preshift examiner's book. 4 (Tr. 169). Grosely
also took into consideration that there had been little production during the graveyard shift that
ended on May 6. As a consequence, he believes that the cited conditions had existed for more
than one shift. (Tr. 140-41, 173).

4

Timothy Bertram started his examination some time before 10:00 a.m. on May 6,
behind the inspector. That is, Bertram entered the portal after Inspector Grosely with the result
that he had not yet examined those areas inspected by Grosely. (Tr. 270-71 ). He did not believe
that the conditions he saw created a hazard to miners. (Tr. 270). He did note that rock dust
should be applied from the portal to crosscut 20. He saw that as a condition that needed to be
addressed rather than as a hazard to miners.
32 FMSHRC Page 1446

Allen Meckley, a mine foreman with Twentymile, testified that the "in progress" notation
in the May 5 morning shift examination book means that the crew was in the process of applying
rock dust in the areas noted in the examination book. (Tr. 237). He stated that the area cited by
the inspector is dusted, on average, about two to three times per week.
Dennis Bouwens, an outby coordinator for Twentymile, testified that the order of
withdrawal was inappropriate. (Tr. 249). He does not believe that the cited condition created a
hazard. (Tr. 249-50). He testified that Twentymile was being "proactive" by applying rock dust
along the belt further iriby the area cited by the inspector. (Tr. 252). Once the order was issued,
he had the crew that was rock dusting along the belt entry redirect their efforts further outby to
address the area cited by the inspector. (Tr. 253).
I find that the Secretary established that the violation was the result of a serious lack of
reasonable care by Twentymile. In the shifts prior to Inspector Grosely's inspection, none of the
preshift examiners considered the accumulation of float coal dust to be hazardous and did not
even note the condition in the examination book. Mr. Bertram noted that the belt entry "could
use dust," but the person who examined the entry at 2:00 a.m. on May 6 before Inspector Grosely
conducted his inspection did not enter anything in the preshift book. In addition, nothing was
entered for the examination that took place at 6: 10 p.m. on May 5. As stated above, I credit the
testimony of Inspector Grosely that the float coal dust accumulated over several shifts. I find that
the accumulation of float coal dust should have been noted by these examiners. Their failure to
do so demonstrated a serious lack of reasonable care. A preshift examiner acts as the agent of a
mine operator when he is performing his examinations and his conduct is imputable to a mine
operator for unwarrantable failure purposes. Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 197 (Feb. 1991).
As stated above, the accumulations were quite obvious and extensive. The conditions
were hazardous and were S&S. The operator had been put on notice that greater efforts were
necessary for· compliance. Inspector Grosely issued Twentymile an unwarrantable failure citation
in October 2006 for float coal dust along the No. 7 belt entry. (Tr. 154; Ex. G-10). He warned
the operator that they must "remain vigilant to remedy this volatile condition." (Tr. 155).
Twentymile was cited about 45 times for violations of section 75.400 in the 15 months prior to
the issuance of the subject order. 5 Id. In addition, MSHA instituted a belt initiative in October
2006. MSHA notified Twentymile at that time that the agency intended to focus on belt lines
during upcoming inspections. (Tr. 151-53). In examining an unwarrantable failure finding
related to section 75.400, the Commission has recognized that:
past discussions with MSHA about an accumulation problem serve
to put an operator on heightened scrutiny that it must increase its
efforts to comply with the standard. Enlow Fork Mining Co., 19

5

About 13 of the citations and orders are final Commission orders. (Ex. G-23). It is not
clear how many of these involve float coal dust accumulations.
32 FMSHRC Page 1447

FMSHRC 5, 11-12 (Jan. 1997). Likewise, a high number of past
violations of section 75.400 serve to put an operator on notice that
it has recurring safety problem in need of correction and the
violation history my be relevant in determining the operator's
degrees of negligence. Peabody, 14 FMSHRC at 1263-64.

Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001).
I find that Twentymile's failure to apply rock dust in the cited area constituted aggravated
conduct but it did not demonstrate reckless, intentional, or indifferent conduct. As the Secretary
noted in her brief, Twentymile applies rock dust from the :furthest inby position, with crews
working outby against the flow of the air. (S. Br. 17; Tr. 235). Twentymile was applying rock
dust further inby when Inspector Grosely entered the mine. Although it is not clear when or on
what shift additional rock dust would have been applied in the area cited by the inspector, it is
likely that the entries would have been rock dusted at some point after Mr. Bertram's entry in the
examination book was noted by a foreman. 6 The violation was the result ofTwentymile's serious
lack of reasonable care. The negligence was high. A penalty of$50,000.00 is appropriate.

III. CITATION NO. 6686313; WEST 2009-333
A. Back2round.
On May 6, 2008, Inspector Barry Grosely issued Order No. 6686313 under section
104(d)(2) of the Mine Act, alleging a violation of30 C.F.R. § 75.360(a)(l). The order alleges
that:
In regards to the pre-shift examination conducted on May 6, 2008,
on the graveyard shift for the day shift during the hours of02:00 hrs
and 3:08 hrs along the Main North #1 and #2 main line conveyor
belt from the head roller at the main transfer building to crosscut 46 in the #3 belt entry, the operator failed to conduct an adequate
preshift examination.
(Ex. G-11 ). The order goes on to state that hazardous conditions were present but that the
examination book was "absent of any postings ofhazardous conditions." The order further stated
that allowing the condition to "go uncorrected would reasonably likely result in an accident
causing serious injury or illness." The Secretary proposes a penalty of $50, 700.00 for this order.

6

The Secretary criticized Twentymile' s practice of noting the need for rock dust in the
''remarks" section of the examiner's report rather than in the "hazardous conditions" section. I
need not weigh in on this issue because it is clear that the most recent examiners' reports did not
note the accumulations in either section of the record book.
32 FMSHRC Page 1448

At the hearing, the Secretary modified this order to a section 104(a) citation with high negligence.
(Tr. 160).
Inspector Grosely testified that the failure ofTwentymile's preshift examiner to recognize
an obvious, hazardous condition during a preshift examination and to properly record this hazard
violated the safety standard. {Tr. 163-65, 169). The hazardous condition the inspector was
concerned about was the accumulation of float coal dust discussed above. He stated that the
examiner who performed the examination at about 2:00 a.m. on May 6 did not perform an
adequate preshift examination because the float coal dust was not noted in the book. {Tr. 169; Ex.
G-13 p. 1). The float coal dust had been noted in the examination book for the examination that
took place between 10:00 a.m. and 10:55 a.m. on May 5, however. (G-13 p. 4). It was obvious to
the inspector in examining the conditions along the belt line that rock dust had not been applied to
the cited area in response to the May 5 notation in the examiner's book. The inspector believed
that the conditions would have been worse by 2:00 a.m. on May 6. (Ex. G-10).
The Secretary argues that the examination made by Charles Craig at 2:00 a.m. on May 6
was inadequate. Mr. Craig testified that the cited area did not need to be rock dusted. {Tr. 263).
The Secretary points to his testimony that he would "possibly'' report float coal dust as a hazard in
the preshift book if the accumulations were "an eighth of an inch or greater" and "appeared
black." Id. He admitted that the eighth of an inch guideline was one of his own making that other
examiners might not use. {Tr. 266-67). Mr. Bertram, the examiner who conducted an
examination soon after Inspector Grosely entered the mine on May 6, concluded that rock dust
was needed from the portal to crosscut 20. (Tr. 270; Ex. G-13 p. 2). The Secretary contends that
it was Twentymile's inability to recognize the hazardous condition and take steps to record the
hazard that caused the inspector to issue the order of withdrawal.
Twentymile argues that the proper test is whether a reasonably prudent person, familiar
with the mining industry and the protective purposes of the standard, would have recognized the
hazardous conditions that the regulation seeks to prevent. Utah Power &Light Co., 12 FMSHRC
965, 968 (May 1990) ajf'd 951F.2d292 (10th Cir 1991). Several experienced mine examiners, as
well as Meckley, DeZeeuw, and Bouwens, all determined that the accumulation of float coal dust
did not present a hazard to miners. These individuals all have extensive experience and they all
walked through the cited area. In addition, the Secretary has not provided the mining community
with any guidance to indicate how much float coal dust must be present in order to violate section
75.400 and how much rock dust Is sufficient to eliminate the hazard. As a consequence, examiner
Craig used an eighth of an inch as a guideline. Given Craig's experience and reasoned judgment
and the subjectivity of the standard, it is Twentymile's position that no violation occurred.

32 FMSHRC Page 1449

B. Discussion.
1. Violation.
The Commission has determined that preshift examinations are fundamental in assuring a
safe work environment for the miners. Enlow Fork Mining Co., 19 FMSHRC 5, 15 (Jan. 1997);
Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). "The preshift examination is intended to
prevent hazardous conditions from developing." Id. The preshift examiner must look for all
conditions that present a hazard and this responsibility is not restricted to S&S conditions. Id. at
14. It is not violations that the examiner is required to find, but rather conditions that present a
potential hazard to miners.
As stated above with respect to Order No. 6686312, I determined that the presence of the
accumulations of float coal dust in the cited belt entry presented a hazard to miners. Rock dust
had not been applied to the float coal dust to render it safe. The mine liberates extensive
quantities of methane. For these same reasons, I find that the Secretary established a violation of
section 75.360(a)(l). Given the obvious nature of the violation, I find that a reasonably prudent
person, familiar with the mining industry and the protective purpose of the safety standard, would
have recognized that this hazard needed to be recorded in the preshift examination book. The
examiner who performed the preshift examination at 2:00 a.m. on May 6 did not note that there
was float coal dust present or that rock dust was needed in the area. It is clear that the mine
examiners at Twentymile had not all been sufficiently rigorous when inspecting areas of the mine
for accumulations of float coal dust.

2. Si&nificant and Substantial.
Twentymile contends that the S&S designation is unfounded because an injury causing
event was unlikely. The Secretary bears the burden of proving the four elements of the Mathies
S&S test and the Secretary failed to establish the fourth element. The Secretary maintains that the
violation was S&S. Inspector Grosely was concerned that Twentymile's preshift examiners failed
to conduct adequate examinations because of their inability to recognize the hazards presented by
accumulations of float coal dust. She maintains that it is crucial for the preshift examiner to
record hazardous accumulations in the log book because mine foremen use these records when
scheduling work.
For the reasons set forth with respect to Order No. 6686312, I find that the Secretary
established that the violation was S&S. By failing to perform an adequate examination and
recording the hazard presented by the float coal dust, the subject preshift examiner contributed to
a serious safety hazard. A foreman looking at the examiner's report for 2:00 a.m. on May 6 would
not know rock dust was needed in the No. 3 belt entry because there was no such notation. I find
that it was reasonably likely that the hazard contributed to by the violation would result in an
accident in which there would be a serious injury.

32 FMSHRC Page 1450

As stated above, the Secretary modified this order to a section 104(a) citation with high
negligence. (Tr. 160). In support of the high negligence determination, the Secretary relies on
Inspector Grosely' s testimony that Twentymile has a history of citations for inadequate preshift
examinations. In October 2006, Grosely issued a section 104(d)(l) order charging Twentymile
with a failure to conduct a proper preshift examination after he discovered excessive coal
accumulations along the No. 7 beltline. (Tr. 176-77). He testified that he advised mine
management that the examiners needed to be more vigilant about identifying and correcting coal
accumulations. (Tr. 155). Potentially hazardous conditions were either not identified at all or
were listed in the "remarks" section of the report rather than in the "hazardous conditions
observed" section. He was also concerned that it is often difficult to discern from the subsequent
notations in the log book whether accumulation hazards had been corrected. The Secretary also
relies on the five section 75.360 violations Twentymile received between February 2007 and May
2008. (Ex. G-7). Finally, the Secretary relies on the fact that Grosely testified that the conditions
he observed on May 6, 2008, were obvious and extensive.
I find that the Secretary did not establish that the violation was the result of more than
ordinary negligence. It is true that MSHA provided Twentymile with some notice that greater
efforts were necessary to keep belt entries clear of accumulations. This action was taken as part of
MSHA' s belt initiative. As a result, Twentymile removed tons of material from the floor of its
belt entries long before the present inspection. This belt initiative was not specifically directed to
accumulations of float coal dust. I find that Twentymile's employees who were in the No. 3 entry
in the days and hours preceeding Grosely's inspection genuinely believed, in good faith, that the
accumulation of float coal dust that they observed did not present a hazard to miners. As a
consequence, the preshift examiners, including Mr. Craig, did not believe that they needed to
report it in the hazardous conditions section of the preshift record book. I find that Twentymile
was negligent with respect to this violation but its negligence did not rise to the level of high
negligence. A penalty of $5,000.00 is appropriate.

IV. ORDER NO. 7622426; WEST 2009-333
A. Backeround.
On March 12, 2008, Inspector Art Gore issued Order No. 7622426 under section 104(d)(2)
of the Mine Act, alleging a violation of30 C.F.R. § 75.400. The order alleges that:
Float coal dust was deposited on rock dusted surfaces in the
longwall return (20 Right No. 1 Entry) from survey point 42+50 to
25+50, a distance of 1700 feet. The float coal dust was deposited
on the floor, ribs, and supplemental supports. This entry was
examined by a foreman on 3/08/2008 and documented in the weekly

32 FMSHRC Page 1451

examination book under hazards as the location could use rock dust
and no corrective action was documented.
(Ex. G-15). The order goes on to state that the entry was also examined on 3/11/2008 and
3/12/2008 and mining continued on the section. The Secretary proposes a penalty of $70,000.00
for this order.
Inspector Gore, who was accompanied by Inspector Carol Miller, began his inspection by
traveling to the No. 1 Entry tailgate longwall return. He was at the mine for a methane spot
inspection. He tested for methane during his inspection, but he did not detect any problems with
methane. (Tr. 283). The inspection party traveled to the longwall face and entered the tailgate
entry. He testified that he immediately noticed that the tailgate was black. (Tr. 284). The
inspection party walked into the tailgate a few hundred feet and it was still black. He advised
Dianna Ponikvar that he was probably going to issue a withdrawal order because of these
conditions. (Tr. 284). Inspector Gore testified that there was dark coal dust everywhere. It was
on the floor, on the ribs, and on the cans, which are used for supplemental roof support. Coal dust
had also accumulated in the crosscuts. The inspector also observed that the trickle duster was not
working at that time. This duster blows rock dust into the air curr_ent so that rock dust will mix
with any coal dust that has accumulated. Gore testified that the float coal dust that he observed
was "heavy." (Tr. 286). He said that it was "triple" the amount necessary to establish a violation.
(Tr. 287). Inspector Gore walked up the tailgate in the direction of the air current for a distance of
about 1,700 feet. Beyond that point he said that the conditions looked "pretty good." (Tr. 288).
Inspector Gore reviewed weekly examination records, preshift examination records, and
the dates, times and initials ("DT & f') he found in the entry. The weekly examination book
contained an entry dated March 8, 2008, that stated that the entire tailgate area for the No. 1 Entry
needed rock dusting. (Tr. 291-93, 328-29; Ex. G-21). The examination book noted that
corrective action was taken on March 11, but the area dusted did not include the area cited by the
inspector. (Tr. 2.92-93, Ex. G-21). Inspector Gore concluded that Twentymile continued to mine
for at least eight shifts between the time the need for rock dusting was noted in the examination
book and the time of his inspection on March 12. The fact that the electric trickle duster was not
operating at the time of the inspection also led the inspector to determine that the violation was
the result ofTwentymile's unwarrantable failure to comply with the safety standard. (Tr. 285-86).
Dennis Bouwens, outby coordinator, testified that he performed the weekly examination
on March 8. He noted that he thought that more rock dust was needed but he did not believe that
the conditions he observed created a hazard. (Tr. 327-29). The highest methane level he detected
was less than one percent during his examination. (Tr. 328). Although he wrote "could use rock
dust" in the examination book, the coal dust he found did not present a hazard. {Tr. 329). The
area was very humid. He also testified that arrangements to rock dust the area had been made.
(Ex. TCC-31 ). On March 6, a pallet of rock dust, which is about a ton, had been delivered to the
tailgate. (Tr. 342; Ex. TCC-31 ). The night shift crew installed 40 supplemental support
structures, known as "cans," from the location of the rock dust pallets in an outby direction. On

32 FMSHRC Page 1452

March 7, beginning where the night crew left off, the day shift installed 39 additional support
cans. He further testified that the cans were installed in preparation for rock dusting. On March
10, additional rock dust was delivered to the tailgate and a slinger duster was filled. Id. He also
said that the slinger duster was used during the day shift of March 11 and an additional load of
rock dust was delivered to the area. Rock dusting continued during the night shift from survey
station 27+00 outby. As a consequence, the tailgate was rock dusted from point 27+00 to the
mouth of the section.

B. Discussion. ·
1. Si&nificant and Substantial.
Twentymile is not contesting the violation, but it contends that the Secretary did not
establish that the violation was S&S. The Secretary maintains that the testimony of Inspector
Gore establishes that float coal dust had been in suspension in the tailgate and in sufficient
amounts to propagate an explosion or fire. (Tr. 298-99). It is clear that the float coal dust did not
accumulate during a single shift. Indeed, the Secretary argues that the conditions observed by
Inspector Gore on March 12 were more hazardous than those noted in the March 8 weekly
examination. Assuming continued normal mining operations, the hazard presented a risk of an
ignition, fire, or explosion.
The Secretary contends that, although the longwall was not in operation at the time of the
subject inspection, the longwall had operated for at least eight shifts between the reporting of the
float coal dust hazard in the March 8 weekly examination book and Inspector Gore's inspection.
As soon as Inspector Gore entered the tailgate entry from the longwall face, he noticed that the
tailgate was black with float coal dust. (Tr. 284). Potential ignition sources existed in the
longwall face, both during production shifts and at times when the longwall was down for repair.
Moreover, the mine liberates a significant amount of methane during the normal production cycle.
The roof strata at the Foidel Creek mine contains significant amounts of quartz, which can create
a spark as the longwall shearer passes through it. (Tr. 317-18).
Twentymile contends that the Secretary merely established that an accident "could occur"
and failed to establish that a serious accident was reasonably likely to occur. The Commission has
explicitly rejected a finding of an S&S violation based on the "potential" that an injury could
occur. Texas Gulf, Inc., 10 FMSHRC 498, 500-01(April1988); Zeigler Coal Co., 15 FMSHRC
949, 953-54 (June 1993). Twentymile argues that the Secretary has failed to establish that an
explosion or fire was more than a remote possibility. A necessary precondition to a float coal dust
explosion is a methane gas ignition that puts the dust into suspension. The evidence establishes
that there was very little methane in the area. Bill Bennett, the longwall coordinator, measured
0.1 percent methane in the tailgate. (Tr. 337). There was a methane monitor in the tailgate and a
carbon monoxide monitor on the longwall.

32 FMSHRC Page 1453

Both Bouwens and Bennett testified that the float coal dust was grey because rock dust
was mixed in with the coal dust. (Tr. 329, 348). Much of the rock dust was applied from the
trickle duster located in the tailgate. Although Inspector Gore believed that the longwall shearer
was a potential ignition source, Bennett testified that since he started working at the mine in 1991,
there has not been a single methane ignition caused by the longwall shearer or by a rock fall. As a
consequence, there was little if any chance of a float coal dust explosion borne of a methane
ignition. Twentymile also discounts the other ignition sources cited by Inspector Gore. These
included cutting torches, pumps, and failing roof bolts. The area was extremely humid, which
acts to prevent suspension by making the coal dust particles adhere to each other. (Tr. 330).
For the same reasons as discussed above with respect to Order No. 6686312, I find that the
Secretary established that the violation was S&S. Float coal dust is highly explosive when it is
suspended in the mine atmosphere. I credit the inspector's testimony that the accumulations were
heavy. The accumulations were in that part of the tailgate that is adjacent to the longwall face.
As discussed above, the mine is on a spot-inspection schedule because of the amount of methane
liberated.
The float coal dust had obviously been accumulating for some time because the report of
the weekly examination made on March 8 notes that the tailgate "could use rock dust." (Ex. G21 ). Bouwens, who performed the weekly examination, testified that he did not believe that the
float coal dust he observed created a hazard to miners. (Tr. 328). He testified that the
accumulations were not black in color at that time. The weekly examination book indicates that,
while rock dust was applied to other areas in the tailgate, rock dust was not applied to the area
cited by Inspector Gore until after he issued his order ofwithdrawal. 7 (Tr. 333; Ex. G-21).
There was clearly a discrete safety hazard contributed to by the violation and I find that
there was a reasonable likelihood that the hazard contributed to by the violation would have
resulted in a serious injury or fatality. The Secretary is not required to establish that it is more
probable than not that an injury will result from the violation. U.S. Steel Mining Co., 18
FMSHRC at 865. The accumulation had existed in some form for several days. I believe that it
was unlikely that the cited accumulations would have ignited on their own because there were no
ignition sources in the tailgate. Nevertheless, it was reasonably likely that a significant methane
ignition in the longwall face would cause the float coal dust in the tailgate to go into suspension
thereby intensifying the explosion. I have taken into consideration the high humidity in the
tailgate entry. The float coal dust was in the area of the tailgate closest to the longwall face. I
credit the testimony of Inspector Gore that there are a number of ignition sources at the face. The
fact that the mine has not experienced a significant methane ignition at the face is not dispositive.
A sudden release of methane can occur at the face without warning. Such an event is reasonably

7

The electrically operated trickle duster in the tailgate is designed to spray rock dust into
the air during production shifts and maintenance shifts. It is not clear from the record how well
this device was operating during the time between March 8 and March 12. (Tr. 300). The trickle
duster was not required by the mine's ventilation plan.
32 FMSHRC Page 1454

likely at some point over the life of a mine. It is also reasonably likely that the mine's ventilation
system will not be capable of rapidly diluting such a large buildup of methane and that the
methane will be ignited by an ignition source along the longwall face.

2. Unwarrantable Failure.
The Secretary argues that her unwarrantable failure determination should be affirmed
because float coal dust was distributed over a ''vast area" and the dust had been present for a
significant period of time without any abatement efforts. Mine management had knowledge of
these conditions and ordered that rock dust be applied in other locations in the tailgate further
away from the longwall face. The accumulations were present for a distance of ten crosscuts from
the entrance of the tailgate at the longwall face. The operator had applied rock dust from that
point to the outby end of the tailgate. fuspector Gore did not observe any evidence that rock
dusting was in progress at the cited location. There were no pallets of rock dust present. (Tr. 31617). The sling duster that the operator contends was being used to dust the area was not in the
entry at the time of the inspection but was moved into the area after the order was issued. (Tr.
359). The Secretary also contends that the sling duster would not have been an effective means to
apply rock dust in the affected area because the cans used as supplemental roof support were
stacked in the center of the entry. (Tr. 358).
Twentymile contests the unwarrantable designation because it acted reasonably under the
circumstances to ensure the safety of miners. The float coal dust observed by the inspector did not
present a hazard. The area was grey in color, which reflected the presence of rock dust. The
trickle duster was in operation most of the time and hand dusting typically occurs when center
cans are installed. (Tr. 344-46, 350-52). Bouwens credibly testified that he would have taken
immediate steps to have the cited area rock dusted if he believed that the accumulations were
hazardous when he conducted his weekly examination on March 8. Twentymile also contends
that most of the tailgate had been rock dusted by the time Inspector Gore conducted his
inspection. The area cited by Inspector Gore had to be hand dusted because of the presence of the
center cans. Rock dust had been brought into the area for this purpose. (Tr. 337, 342).
Whether this violation was the result of the operator's unwarrantable failure is a close
issue. On one hand, the float coal dust was relatively heavy and was present over a large area in
the tailgate near the longwall face. Float coal dust had been accumulating in this area since at
least March 8 without being abated. On the other hand, Twentymile had applied rock dust to the
vast majority of the tailgate. It had to install supplemental support along the center of the entry
and then apply rock dust by hand in the cited area. I credit Twentymile's witnesses with respect to
the preparations that had been made.
As stated earlier in this decision, factors to be considered include the length of time that
the violation has existed, the extent of the violative condition, whether the operator has been put
on notice that greater efforts for compliance are necessary, the operator's efforts in abating the
violative condition, whether the violation was obvious or posed a high degree of danger, and the

32 FMSHRC Page 1455

operator's knowledge of the existence of the violation. Based on these factors, I find that the
violation was the result of a serious lack of reasonable care by Twentymile and was therefore
unwarrantable. I base this conclusion on the fact that the violation was serious, it existed in a
large area of the tailgate, it had been in existence for several shifts, management was aware of the
condition, and management had been put on notice that greater efforts to comply with the standard
were necessary. Twentymile's failure to apply rock dust in the cited area constituted aggravated
conduct but it did not demonstrate reckless, intentional, or indifferent conduct. The negligence
was high. A penalty of$50,000.00 is appropriate.

V. ORDER NO. 8456778; WEST 2009-1174
A. Back&round.
On May 7, 2009, Inspector Art Gore issued Order No. 8456778 under section 104(d)(2) of
the Mine Act, alleging a violation of30 C.F.R. § 75.1507(a)(l l)(ii) as follows:
The 23 Right Section MMU 009-0 refuge alternative is placed just
outby Crosscut No. 7+80, in the No. 1 entry, close to the right side
rib looking inby. In the crosscut is approximately 8.19 tons of loose
coal and debris that have been pushed against the stopping. This
condition would place the deployed chamber directly against these
combustible materials.
(Ex. G-17). The inspector determined than an injury was unlikely but that any injury would likely
result in lost workdays or restricted duty. He determined that the violation was not S&S and that
the company's negligence was high. Section 75.1507(a)(l l)(ii) provides, in part, that a mine's
"Emergency Response Plan (ERP) shall include the following for each refuge alternative and
component: (11) suitable locations for the refuge alternatives and an affirmative statement that
the locations ar~ - (ii) where feasible, not placed in areas directly across from, nor closer than 500
feet radially from, ... fuel, oil, or other flammable or combustible materials storage." The
Secretary proposes a penalty of $4,000.00 for this order.
Inspector Gore testified that he examined the refuge alternative (the "chamber") for the 23
Right Section MMU 009-0 during his quarterly inspection. (Tr. 363, 400). The longwall section
was close to being completed and the chamber was located in the No. 1 entry just outby crosscut
7+80, which was not far from the Six Main North Shaft, an escape shaft. (Tr. 363, 392, 397).
Gore testified that the chamber was a Strata refuge chamber. In order to deploy this type of
chamber, a miner must break the seal on the door, loosen the latches, open the door about 180
degrees, unroll the deflated tent inside so that it is extended to its full length of 45 feet, and inflate
the tent. (Tr. 366-368, 399). The optimal way to deploy the tent is straight out from the door.
(Tr. 368). Gore testified that the chamber, when not deployed, is about 25 feet long, 5 to 6 feet
wide, and 4 feet tall. {Tr. 387). The chamber weighs at least a couple of tons and must be moved

32 FMSHRC Page 1456

with heavy equipment. (Tr. 375, 387). The chamber is frequently moved as the longwall retreats
out of the section. {Tr. 387-88).
Inspector Gore indicated that the chamber at issue was located on the right side of the
entry, about three feet from the rib, as one looked inby. He testified that the proximity of the
chamber to the rib would have prevented a miner from opening the chamber door the last 10 to 20
degrees necessary to open the door to its full extent. (Tr. 367). As a result, Gore believed that the
tent, when deployed, would come in contact with the chamber door and have to be deployed at an
angle rather than straight out from the door. {Tr. 367-69). He acknowledged on crossexamination, however, that the tent could be rolled out of the chamber while the door was only
open 90 degrees. {Tr. 393). The door to the chamber was facing inby and the lifeline, which
should normally go to the door, went from the back of the chamber, over the top, and was
connected to the door. (Tr. 364-65). According to the inspector, if a miner were using the
lifeline, he would run into the back of the chamber before finding the door. Id.
Gore testified that refuge chambers are normally put in crosscuts rather than in entries, but
he acknowledged that this is not a regulatory requirement. (Tr. 365, 393-94). The inspector
estimated that about 8.9 tons of loose coal were piled against a stopping and that this pile would
have been adjacent to the refuge tent if it were deployed at an angle. (Tr. 365-66, 369, 371). He
did not know whether the coal was wet. (Tr. 388-89, 393).
Gore testified that he issued the subject order based on the conditions he observed. He
said that the chamber was not in a suitable location because the door could not be opened all the
way, the chamber was in a roadway rather than in a crosscut, and the tent would be immediately
adjacent to combustible materials. (369-70, 373-75, 395). He agreed that, no matter where the
chamber was placed, it would be immediately adjacent to coal. Gore testified that he issued an
unwarrantable failure order because of the numerous refuge chamber citations he had previously
issued, the public meetings that were held to discuss the critical nature of refuge chambers, and
what he termed as a "total lack ofreasonable care" demonstrated by the operator. (Tr. 370-71).
Inspector Gore testified that the chamber should have been placed in a crosscut that was
otherwise empty and that the location should have been selected based on the condition of the ribs
and roof, the likelihood of damage caused by other equipment, and the presence of accumulations
or fire hazards. (Tr. 373). He determined that the violation was not S&S because the mine had
two fresh air escapeways and it was unlikely that both of these escapeways would become
unusable during an emergency. (Tr. 376). Gore determined that the operator's negligence was
high because he had discussed refuge chambers with mine management and he does not believe
that they take these chambers seriously. (Tr. 377). Based on conversations he had with miners,
he did not believe that the chamber had been in the cited location for a long period of time. (Tr.
375).
Jack Reed, a longwall utility foreman, testified for Twentymile. He testified that in May
2009, the subject longwall panel was just about completed and preparations had begun to move

32 FMSHRC Page 1457

the longwall to a new section. (Tr. 405). Due to the lack of room in the Nos. 2 entry, a scoop was
used to move the chamber from the No. 2 entry to the No. 1 entry. (Tr. 405-06). This move
occurred between 6:00 and 8:00 a.m. on May 6. Once moved, the chamber was about 700 feet
from the Seven Main North entries. (Tr. 406). Prior to the move, a loader was used to clean up
the area where the chamber was going to be placed. This cleanup was necessary because the area
was very wet and muddy. (Tr. 409-10). As a result of this cleanup, material was piled up inby the
new location of the chamber. Reed testified that the piles were not coal or any other combustible
material but were chunks of mud and debris. (Tr. 409, 415). A scoop was used for this work
because the area was too small to use a loader to transport the material to a belt. (Tr. 410). Reed
also testified that the door on the chamber only needs to be opened 90 degrees to pull the tent out,
but he was not sure if the door needed to be opened wider to inflate the tent. (Tr. 410-11 ).
Chad Day, a longwall utility manager, testified for Twentymile. He testified that he
worked at the mine on the preceding shift. He noted that a large amount of water had collected in
front of the chamber. (Tr. 419). He was concerned that the presence of the water could prevent
miners from deploying the tent in the event of an emergency. {Tr. 410). As a consequence, he
instructed the scoop operator to move the chamber outby 50 feet from its location. {Tr. 419-20).
Moving the chamber took about an hour. The chamber was moved to the side of the entry so that
the entry could still be used for passage. After the move, the muddy muck in the crosscut was just
inby the new location for the chamber. {Tr. 420). He did not believe that the muddy material
would interfere with the chamber being deployed and the tent inflated. {Tr. 421 ). He did not
know whether the piled material was roadway muck or coal. {Tr. 425-26).
Dianna Ponikvar testified that the refuge chamber cited by Inspector Gore could have
easily been deployed and inflated in the location it was found at the time of the inspection. (Tr.
428-29). She accompanied the inspector and she testified that the chamber was situated in a
position that, when deployed, the door to the tent would have been on the inby end of the tent on
the comer and not close to the rib. Id. She testified that, although refuge chambers are to be used
as a last resort, J'wentymile takes these chambers very seriously. Mine examiners and face bosses
examine the chambers five to six times a day; mine personnel receive rescue chamber training
annually; and the chambers in the Three North Main are protected with cribbing and barricades.
(Tr. 429-30). She admitted that miners commonly refer to refuge chambers as "coffins" and she
said that, in the event of an emergency, she would exit the mine using a designated escapeway.
{Tr. 432-33).
The Secretary argues that Twentymile violated the cited regulation by placing the chamber
in a position that would have prevented proper deployment of the tent in the event of an
emergency. The order should be affirmed because the chamber was in a roadway rather than in a
crosscut, loose coal was piled in an area adjacent to the chamber that would interfere with the
deployment of the tent, and the door to the chamber could not be fully opened due to the
chamber's proximity to the rib.

32 FMSHRC Page 1458

Twentymile argues that the order should be vacated. First, section 75.1507(a) merely
establishes what must be included in a mine' s ERP. The cited subsection contains a requirement
for a plan provision that, as applicable here, chambers not be placed in areas directly across from,
no closer than 500 feet radially from "fuel, oil, or other flammable or combustible materials
storage." This regulation does not provide an independent basis for liability. Second, the
accumulated material referred to by the inspector was actually mud and other roadway material
that had been piled up. It was not coal or any other combustible material. Third, in the
alternative, ifthe material is found to be coal, it is clear that the regulation's reference to
"combustible material" does not include coal or coal storage, but rather contemplates other more
volatile materials for which there are specialized underground storage procedures. Finally,
contrary to the Secretary's position, the cited regulation does not contemplate that, in determining
suitable locations, the mine should address the potential for interference with deployment of the
chamber. The chamber could be properly deployed given the position of the chamber in the entry.
I find that the Secretary failed to establish a violation of the cited regulation. First, the
regulation, entitled "Emergency Response Plan; refuge alternative," is simply a list of what must
be included in a mine's ERP. There has been no showing that the ERP adopted and approved by
MSHA for the Foidel Creek Mine violated section 75.1507 in anyway. 8 In addition, assuming
that the regulation can be directly applied as a mandatory safety standard, it has not been
established that the chamber was near "fue4 oil, or other flammable or combustible storage."
Whether the material near the chamber contained coal or not, it cannot be construed as
"flammable or combustible storage." It was a pile of material that was scooped up from the
bottom of the roadway to provide a flat place to place the chamber. More importantly, I find that
it was not established that the material was :flammable or combustible. Although it is likely that
some coal was in the material, I credit the testimony ofTwentymile's witnesses that the pile of
material was mostly mud and debris scooped up from the mine floor. I credit the testimony of
Twentymile's witnesses that the chamber could be deployed at the location cited by the inspector.
Consequently, this order is vacated.

VI. ORDER NO. 8456774; WEST 2009-1174
A. Back2round.
On May·7, 2009, Inspector Art Gore issued Order No. 8456774 under section 104(d)(2) of
the Mine Act, alleging a violation of30 C.F.R. § 75.360(d) as follows:
There is no initials, date and time to certify that the required
examination was conducted for the refuge alternative for 23 Right
Section MMU 009-0 for the day s~ft. The last DT & I entry in the
8

The cited section states that an ERP shall prohibit refuge chambers from being placed
in the vicinity of"belt drives, take-ups, transfer points, air compressors, explosive magazines,
seals, entrances to abandoned areas, and fuel, oil, or other flammable or combustible storage."
32 FMSHRC Page 1459

book provided at the refuge chamber is 05-06-2009 by JR, however
there is no time notation. The next entry is 05-06-2009 at 2:25 PM
byLM.
(Ex. G-16). The inspector determined that an injury was unlikely but that any injury would likely
result in lost workdays or restricted duty. He determined that the violation was not S&S and that
the company's negligence was high. Section 75.360(d) states that the "person conducting the
preshift examination shall check the refuge alternative for damage, the integrity of the tamperevident seal and the mechanisms required to deploy the refuge alternative, and the ready
availability of compressed oxygen and air." The Secretary proposes a penalty of$4,000.00 for
this order.
Inspector Gore testified there was a logbook at the chamber where examiners recorded the
results of their examinations. As amended, the logbook showed that an examination had been
made at 10:00 p.m. on May 6, 2009, but that no examination had been made during the day shift
on May 7. (Tr. 377, 381-82; Ex. G-19 p. 2). These examinations are required to be made on the
same time intervals as regular preshift examinations. Gore testified that the person conducting the
examinations should check to make sure that nothing would interfere with the deployment of the
chamber and should also make sure that the chamber is in a suitable location. (Tr. 383-84). Gore
also stated that he checked the examination books for the mine and could not find any notation
that indicated that this examination had been made. (Tr. 400-02; Ex. TCC 44).
Mr. Reed testified that he conducted an examination of the chamber on May 6 and placed
the date and his initials in the logbook, but that he forgot to put the time of his examination, which
was 10:00 p.m. {Tr. 411-12; Ex. G-19 p. 2). He did put the date, time, and his initials at other
areas that he examined along the entry. {Tr. 412-13). Mr. Day testified that he conducted an
examination of the chamber on May 7, but he did not put an entry in the logbook for the chamber
because he got distracted by moving the chamber away from the water hazard. (Tr. 423, 425-26;
Ex. G-19, p. 2)., He testified that he also forgot to enter his examination into the prehsift
examination book. {Tr. 424, 427; Ex. TCC 44). He admitted that he 'just spaced it." {Tr. 426).
Day testified that he did put the date, time and his initials at other locations in the area, such as at
the support cans, the longwall recovery chute, and the crib storage area. (Tr. 424). Ms. Ponikvar
testified that mine examiners and face bosses examine the chambers five to six times a day. She
agreed that on this occasion no examination of the chamber was recorded in either the chamber
log book or the preshift book. {Tr. 431-32).
The Secretary contends that the lack of an entry in the logbook at the refuge chamber
demonstrates that Twentymile did not conduct the required preshift examination of the chamber
prior to the beginning of the day shift. Based on the surveyor's manual, the last preshift was
conducted on May 6, 2009, at 2:25 p.m., almost 18 hours prior to Inspector Gore's inspection.
Section 75.360 requires that a preshift examination be conducted within three hours preceding the
beginning of the shift. She argues the preshift examinations are critical to ensure that the chamber
is in safe operating condition.

32 FMSHRC Page 1460

Twentymile argues that it did not violate section 75.360(d). Although the examinations
were not certified in the record book, it is undisputed that Jack Reed performed an examination of
the refuge chamber at 10:00 p.m. on the night of May 6, 2009. His testimony should be credited
in this regard. His testimony is corroborated by his entry in the log maintained on the surface that
he conducted the examination between 9:35 p.m. and 10:03 p.m. in 23 Right. He wrote that he
preshifted the "barricade chamber," remarking that "area safe at time of exam." (Ex. TCC-44).
Mr. Day testified that he performed an examination on May 7 and had the chamber moved
because it was in a wet area. He admitted that he did not record his examination at the refuge
chamber or in the preshift examiner's report on the surface.
The Secretary relies on the log books to establish that no examinations were conducted.
Inspector Gore's order of withdrawal states that the last DT & I entry in the book provided at the
refuge chamber is "05-06-2009 by JR;" however, there is no time notation. A time "10:00 p.m."
was subsequently placed by this entry without an objection from the inspector. (Tr. 382; Ex. G-19
p. 2). "JR" refers to Jack Reed. The order goes on to state that the next entry is "05-06-2009 at
2:25 PM by LM." At the hearing, the inspector indicated that this "next entry" was actually the
previous entry. (Tr. 378). He stated that he was at the mine at 8:05 a.m. on May 7, so more than
12 hours had passed since the refuge chamber had been examined. The refuge chamber should
have been preshifted at 3:00 a.m. on the morning of May 7. (Tr. 379). The inspector testified that
he did not see dates or initials at any other location near the chamber. Chad Day testified that he
did conduct an examination early in the morning of May 7, but he failed to enter the DT & I in the
logbook. (Tr. 423, 425-26).
I credit the evidence that shows that Mr. Reed conducted an examination at 10:00 p.m. on
May 6. Thus, the only issue is whether an examination was made prior to the day shift on May 7.
There are no written records showing that such an examination was made. Mr. Day testified that
he, in fact, made the examination but that he forgot to record it because he got involved in moving
the refuge chamber to a location that was not so wet. (Tr. 423). He testified that "during my
preshift exam; I walked up to the refuge chamber and saw water in front and sloughage off to the
side, that would inhibit the refuge chamber from being extracted due to the water hole." (Tr.
419). He stated that he did conduct an examination of the chamber. (Tr. 421-22, 423). I found
his testimony to be entirely credible.
The cited safety standard requires that the person conducting the preshift examination
check the refuge alternative for damage, the integrity of the tamper-evident seal and the
mechanisms required to deploy the refuge alternative, and the ready availability of compressed
oxygen and air. There is no question that he conducted a preshift examination of the area in the
early morning hours of May 7, 2009, and I credit his testimony that his examination included the
refuge chamber. I also find that his examination included the items set forth in the safety
standard. The standard requires that an examination be performed and does not require that the
results of the examination be recorded. Consequently, I vacate this order of withdrawal.

32 FMSHRC Page 1461

VII. SETTLED CITATIONS
At the hearing, the parties proposed to settle the remaining citations in these cases. In
WEST 2009-333, the parties propose to settle five section 104(a) citations. The parties propose to
reduce the negligence in Citation Nos. 7622564 and 7622565 to "moderate." The remaining
citations remain unchanged. In WEST 2009-1174, the parties proposed to settle Order No.
8460288, which remains unchanged. I have considered the representations and documentation
presented and I conclude that the proposed settlement is appropriate under the criteria set forth in
Section l lO(i) of the Act.. The motion to approve settlement is GRANTED.

VIII. APPROPRIATE CIVIL PENALTIES
Section 1 lO(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I have reviewed the Assessed Violation History Reports. (Ex. G-23).
Twentymile had about 281 paid violations at the Foidel Creek Mine during the 15 months
preceding March 11, 2008, about 196 paid violations in the 15 months preceding May 5, 2008,
about 355 paid violations during the 15 months preceding December 11, 2008, and about 514 paid
violations in the 15 months preceding May 6, 2009. Twentymile is a large mine operator as is
Twentymile's parent company, Peabody Energy. The violations were abated in good faith. The
penalties assessed in this decision will not have an adverse effect on Twentymile's ability to
continue in business. The gravity and negligence fmdings are discussed above.

IX. ORDER
Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation/Order No.

30 C.F.R. §

Penalty

75.400
75.360(a)(l)
75.400
77.1605(k)
70.101
70.101
75.403
75.403

$50,000.00
5,000.00
50,000.00
1,657.00
3,143.00
2,473.00
705.00
601.00

75.360(a)(l)

2,000.00

WEST 2009-0333
6686312
6686313
7622426
7291922
7284349
7284351
7622564
7622565
WEST 2009-0579
7622381

32 FMSHRC Page 1462

WEST 2009-1174
8456778
8456774
8460288

75.1507(a)(l l)(ii)
75.360(d)
75.1725(a)

Vacated
Vacated
27,959.00

TOTAL PENALTY

$143,538.00

For the reasons set forth above, I enter the following: Order No. 7622381 is MODIFIED
to a section 104(a) citation with moderate negligence; Order No. 6686312 is AFFIRMED;
Citation No. 6686313 is MODIFIED to a moderate negligence citation; Order No. 7622426 is
AFFIRMED; Order No. 8456774 is VACATED; and Order No. 8456778. is VACATED.
Twentymile Coal Company is ORDERED TO PAY the Secretary of Labor the sum of
$143,538.00 within 40 days of the date of this decision. 9 Upon payment of the penalty, these
proceedings are DISMISSED.

Richard W. Manning
Administrative Law Judge
Distribution:
Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202 (Certified Mail)
Larry R. Ramey, Conference & Litigation Representative, Mine Safety and Health
Administration, P.O. Box 25367~ Denver, CO 80225-0367 (First Class Mail)
R. Henry Moore, Esq., Jackson Kelly, 3 Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222 (Certified mail)

RWM

9

Payment should be sent to the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
32 FMSHRC Page 1463

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5266/FAX 303-844-5268

October 18, 2010
CIVIL PENALTY PROCEEDINGS

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

Docket No. SE 2009-68-M
A.C. No. 22-00582-163187-01
Docket No. SE 2009-69-M
AC. No. 22-00582-163187-02

V.

BLUE MOUNTAIN PRODUCTION CO.,
Respondent

Mine: Jasper Creek

DECISION

Appearances: Melanie L. Paul, Office of the Solicitor, U.S. Department of Labor, Atlanta,
Georgia, for Petitioner;
Larry Evans, Oil-Dri Corporation, Ochlocknee, Georgia, for Respondent.
Before:

Judge Miller

These cases are before me on petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Blue Mountain Production Co., pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The case involves
two violations in Do-cket No. SE 2009-68-M with a penalty of$2,l 76.00, and six violations in
Docket No. SE 2009-69-M with a $600.00 penalty. The citations were issued by MSHA under
section 104(a) and (d) of the Mine Act at the Jasper Creek mine. The parties presented
testimony and documentary evidence at the hearing held on August 26, 2010 in Memphis,
Tennessee. At the conclusion of the hearing, a decision on the record was entered and is set
forth in part below. Necessary edits have been made to the transcript language.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Blue Mountain Production Company ("Blue Mountain" or the "mine"), is the owner and
operator of the Jasper Creek Mine located in Blue Mountain, Mississippi. Stip. 1-9; (Tr.11-13).
The mine agrees that it is subject to the jurisdiction of the Mine Safety and Health
32 FMSHRC Page 1464

Administration and that the Administrative Law Judge has jurisdiction to issue this decision. In
August, 2008, Billy Randolph, Michael Evans and Michael Smallwood, all MSHA inspectors,
conducted regular inspections of the Jasper Creek Mine. As a result of the inspections, the eight
citations contested herein were issued. At hearing, one citation was modified and the mine
operator agreed to pay the citation as modified.
Transcript pages 209- 211:
I make the following :findings of fact and conclusions of
law. I accept the parties' stipulations regarding the jurisdiction of
the commission and the jurisdiction of the Mine Safety and Health
Administration, and the other stipulations that are entered into the ·
record as evidence.
. . . The mine agrees that it is subject to the jurisdiction of
the Mine Act and that this Court has jurisdiction to issue this
decision. Two inspectors, actually three, Inspector Randolph and
Inspector Mike Evans both went to the mine on Sunday, August
10th, and ... Inspector Smallwood who went to the mine the next
day on August 11, 2008. All three of these inspectors were
involved in issuing the citations that are before me.
I have two docket numbers. . . . [First,] I'm going to
address SE 09[-]68. . . . [I]n this case[,] . . . because of the
defenses raised by Blue Mountain[,] I [will] remind the parties that
this is a strict liability statute.
The Federal Mine Safety and Health Review Commission
and the courts have uniformly held that mine operators are strictly
liable for violations of safety and health hazards. When a violation
of the mandatory safety standard occurs in a mine, the operators
automatically are assessed a civil penalty.
In addition, the Secretary is not required to prove that a
violation creates a safety hazard unless it is included as part of the
standard that is cited [or it has been designated as S&S] .... The
Mine Safety and Health Act imposes no general requirement that a
violation of MSHA regulations be found to create a safety hazard
in order for a violation -- for a valid citation to be issued.

A. Docket No. SE 2009-68-M
This docket includes two citations, both issued by Billy Randolph on August I 0, 2008.

32 FMSHRC Page 1465

i. Citation No. 7751837
This citation was issued for a violation of30 C.F.R. § 56~14107(a), which requires that
"[m]oving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury." The citation described the violation as follows:
A obvious and serious hazard existed to three employees working
at ground level where an approximate 14 inch drive belt pulley
was operating located waist high and easily accessed. Amputating
and crushing injuries would likely result if one contacted the
moving machine part. There was no guard at all on the east side of
the hopper car unloading belt discharge. Foot prints were visible
immediately at the unguarded discharge roller, no barricades or
warning signs were posted.
The belt line had operated
approximately 15 minutes Friday and had operated approximately
20 minutes today and was planned to operate another two hours.
The mine operator permanently removed the belt line from service.
This is the forth (sic) time this standard has been cited in the past
two years at this mine site. The Plant Manage[r] (Danny Yancey)
engaged in aggravated conduct constituting more than ordinary
negligence in that he was aware that the head pulley guard was
missing and the employees worked in the area when the machinery
was in motion. This violation is an unwarrantable failure to
comply with a mandatory standard.
Randolph determined that the violation was reasonably likely to result in a permanently
disabling injury, that the violation was significant and substantial, that one employee was
affected, and that the negligence was high. A civil penalty in the amount of$2,000.00 has been
proposed for this violation.

a. The Violation
Transcript pages 212-214:
[T]he primary thrust of most of the testimony today was
regarding this particular violation. Inspector Randolph, who is an
experienced mine inspector and a field office supervisor, along
with Inspector Trainee Michael Evans, arrived at the mine on a
Sunday.
And together as they entered into the mine, they
immediately saw four persons from the mine standing in the area
of a belt conveyor. . . . Three were standing. One was on the

32 FMSHRC Page 1466

Bobcat.
[The inspectors] immediately saw that part of the belt was
unguarded, that material was coming off the belt, that the Bobcat
was operating and they could see the guards were not on the belt
where they were intended to be. The belt was about 25 feet long.
Two men were standing on the side where . . . Mr.
Randolph and Mr. Evans took pictures, and both [inspectors]
questioned the supervisor Mr. Yancey about the missing guard. . .
Inspector Randolph and Inspector Evans testified that the
workers were [near the conveyor.] Mr. Evans said six feet from
the conveyor, and Mr. Randolph said anywhere from 10 to 15 feet.
Mr. Yancey . . . said a little bit farther away. [The
unguarded portion was] . . . near the discharge roller, and I
reference[] Exhibit 9A, which shows the unguarded portion of the
conveyor.
[I]t is obvious from the photograph and from the
inspector's testimony that the guard at one time was in that
location guarding that tail pulley but for some reason was not
[installed in place on the day of the inspection].
This particular conveyor had been borrowed from another
mine and put together on Friday and operated [for] several hours
[on that day] and then again on Sunday at both times without . . .
any guard near the discharge portion, the discharge roller of the
conveyor.
There were other unguarded parts of the conveyor as well,
but the inspector testified that he -- it was his policy to cite the
conveyor belt and not each individual [unguarded area]. The belt
was about waist high. The inspectors could see over the guards
that were already [in place and had a clear view of the area where
the guards were missing].
[The inspectors] could also see tripping and slipping
hazards including the soft sandy material on the ground and the
pieces of wood and track that were sticking out from below the
conveyor.
[Randolph and Evans observed] ... tracks or marks on the
ground near the unguarded area. There is no -- no one really
knows who was standing . . . next to the unguarded area, but

32 FMSHRC Page 1467

nevertheless, the important part is that it was accessible to anyone
who. wanted to walk up to it.
Based on his vantage point, Randolph believes that Yancey could see the guard, and was
aware that the belt had been dumping. Yancey testified that he did not see the area that had the
missing guard and that the inspector misinterpreted the conversation regarding the guard.
Transcript Page 211 :
[T]he commission interprets safety standards to take into
consideration ordinary human carelessness.
In the case of
Thompson Brothers Coal, the commission held that the [guarding]
standard must be interpreted to consider whether there is a
reasonable possibility of contact and injury including contact
stemming from inadvertent stumbling or falling, momentary
inattention, or ordinary human carelessness. [Thompson Bros. Coal
Co., 6 FMSHRC 2094, 2097 (Sept. 1984).]
Human behavior can be erratic and unpredictable. So, for
example, someone might attempt to perform minor maintenance or
cleaning near an unguarded tail pulley without first shutting it
down.
In such an instance, the employee's clothing could become
entangled in a moving part and a serious injury would result.
Guards are designed to prevent just such an accident. The fact that
no employee was in the immediate area does not take away from
the violation.
Government Exhibit 9C shows the rotating shaft, which was not guarded on left side.
That area, particularly the bearing, which is required to be greased, and the bolt heads, will
easily catch a sleeve and pull a miner into the unguarded portion of the shaft located on the
discharge pulley.
Inspector Evans testified that he observed footprints very close to the conveyor and
surmised that someone had been working in the area. (Tr. 139). Mine witnesses testified that no
one was in the immediate area of the unguarded pulley on the day of the inspection. Either way,
the area was easily accessible and, based on the history of such injuries at plants throughout the
United States, it is not a defense that no person was next to the unguarded area at the time it was
observed by the inspector. "Even a skilled employee may suffer a lapse of attentiveness, either
from fatigue or environmental distractions." Great Western Electric Co., 5 FMSHRC 840, 842
(May 1983).
Mr. Yancey and the company witnesses testified that the belt was being tested on

32 FMSHRC Page 1468

Sunday; however, the evidence does not support that the conveyor was in place for such a test
run, nor were there barricades or signs warning individuals to stay away from the unguarded area
during any test. Further, the company witnesses testified that no one had conducted an
inspection of the conveyor prior to starting it up.
For the above reasons, I find that the Secretary has proven a violation of the cited
mandatory standard.

b. Significant and Substantial
A significant and substantial ("S&S") violation is described in section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is
properly designated S&S "if, based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:

In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be
of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99,
103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021(Dec.1987) (approving
Mathies criteria).
As noted above, I find that there is a violation of the mandatory safety standard as alleged
by the Secretary. I find, further, that the violation contributed to the hazard of a miner getting
caught in the ungaurded areas of the belt or pulley and being pulled in or entangled. Third, the
hazard contributed to will result in an injury as a result of being pulled into the belt, pulley, or
the drive. As the inspectors explained, the unguarded areas were out in the open and available
for anyone to approach and work around. Further, there were a number of tripping hazards
adjacent to the unguarded belt. Randolph explained why the pinch point and the area missing
the guard would be accessed in the normal course of mining by persons at the mine. He
explained that if the bearing freezes it is necessary to get close to examine and grease the
bearing, or to run water on the bearing to cool it. Further, if material is spilling off of the belt
then a miner would enter the area to adjust the hopper. In his view, a number of people would be

32 FMSHRC Page 1469

in the area that was not guarded. Finally, entanglement in the pinch point would result in an
injury that is serious and potentially fatal.
Transcript pages 215-217:
[I]n order to establish that a violation of the mandatory safety
standard is significant and substantial, the Secretary of Labor must
prove first that there is a violation, which I have already indicated
that there is ... a [clear] violation of the [guarding] standard in this
case, that there is -- second, a discrete safety hazard that is a major
danger to safety contributed to by this violation.
And the safety hazard here is unguarded moving parts that
could pull someone in or otherwise injure them should they fall or
become entangled in the belt. The next part of the test, part three,
a reasonable likelihood that the hazard contributed to will result in
injury is the most difficult part of the significant substantial
[elements] for the Secretary to prove.
But in this case, . . . the Secretary has met her burden.
[T]here was a major pinch point on top of the discharge pulley. If
anyone got entangled into it, it would mean amputation or serious
injury. The location of the belt was right at waist high. It was
easy to access.
There was nothing guarding, barricading, or blocking
anyone from going toward the pinch point or the unguarded pulley.
There was no -- there were three miners on foot in the area, a
fourth on a piece of equipment. There had been no meeting or
warnings [to] stay away from that particular part of the [belt].
And it is reasonably likely that someone would walk into
that area and be -- and be injured. Anyone would walk in the area
to look at it to make sure it is discharging properly, to clean it up.
Other[] reasons explained by Inspector Randolph [include
that a miner] ... might be in the area to run water on the area or to
cool it down or to grease it, clean up the spill, adjust the hopper.
So there were a number of reasons. It was easily accessible, and
there were a number of reasons why someone might go in the
area.
[I]f they did get caught in that belt, the injury would be
serious. Therefore, I find that this is a significant and substantial
violation as cited by the inspector. . . . [T]he mine argues it was
32 FMSHRC Page 1470

not S and S because it was not accessible [in] that no one had
reason to go over [to that area], but I ... [have] already articulated
my reasons for agreeing with [the inspectors]-- I credit Inspector
Randolph and Inspector Evans ... in that regard.
The Commission and courts have observed that an experienced MSHA inspector's
opinion that a violation is significant and substantial is entitled to substantial weight. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek coal Inc. v.
MSHA, 52 F.3d. 133, 135-136 (7th Cr. 1995). Inspector Randolph qualifies, without question, as
an experienced MSHA inspector. He described the violation as significant and substantial and
explained that unguarded portions of the belt are reasonably likely to lead to an event that causes
serious injury.
The question of whether a particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). I find that the facts of this
violation clearly lead to a finding that it was significant and substantial.
c. Unwarrantable Failure
The term ''unwarrantable failure" is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or the "serious lack ofreasonable care." Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189,194 (Feb. 1991). 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 was obvious or posed a high degree of
danger, and the operator's knowledge ofthe existence of the violation. See Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23
FMSHRC 588, 593 (June 2001). All of the relevant facts and circumstances of each case must
be examined to determine if an actor's conduct is aggravated, or whether mitigating
circumstances exist. Consolidation Coal Co., 22 FMSHRC at 353.
The day the subject citation was issued, Randolph and Evans described the condition as
obvious and as having existed for an extended period of time. Nothing had been done to abate
the violation, no warnings or barricades had been posted and the violation posed a high degree of
danger to the miners. In addition, two of the three men who were on foot observing the
conveyor were supervisors.
Evans observed three men standing at the conveyor as it was operating and another man
on a bobcat, all approximately 5-6 feet from conveyor. Evans learned that two of the men
standing near the conveyor (i.e., Yancey, the plant manger, and Jones, a team leader) were
supervisors. Further, Evans learned that the person who set up the conveyor on the previous
32 FMSHRC Page 1471

Friday was also a supervisor. Evans explained that he immediately noticed the missing guards,
particularly the missing guard in the head area where the shaft was turning and creating an
entanglement hazard. In addition Evans saw that a guard was missing on other side of the
conveyor at the drive head, leaving the drive roller exposed for about five feet.
Evans asked the plant manager, Yancey, ifhe knew the guards were missing. Evans
remembers that Yancey indicated that he was aware that the area needed to have the guards that
were missing. Evans also learned that the belt had been running about 30 minutes on Sunday
before the inspectors arrived, and had run several hours on Friday. Evans later took statements
from both Palmer and Jones, both supervisors. He learned that neither of the two of them had
performed a safety inspection nor had they directed any miner to conduct a safety inspection
prior to starting up the belt.
Evans determined that the violation was the result of high negligence based on the
circumstances at the time, with no mitigating factors. Yancey was in charge and another
supervisor was present, yet no warnings were given to other employees to stay back from the
unguarded areas, no meeting was held prior to starting up the conveyor, and no barricades were
erected. When the inspectors arrived, the employees and supervisors present were facing the
conveyor and looking in the direction of the head drive where the guard was missing, and should
have noted the missing guard and taken some action.
Yancey testified that he was not aware that the head pulley guard was missing. He said
that he didn't tell Randolph that he knew that it was a violation, or that he knew the head guard
was off, nor did he tell Evans that he knew it was of£ He recalls that Evans questioned him
about the missing guard and whether he knew that the head pulleys on conveyors needed to be
guarded. He responded that he did know that they needed to be guarded. Yancey testified that
he did not inspect the conveyor prior to putting it in operation and, from his vantage point, he
was not able to see the area where the guard was missing. Although Yancey testified that he did
not see that the guard was missing, the inspectors saw it immediately upon leaving the office
and moving into the work area. Therefore, I credit the testimony of Randolph and Evans that the
missing guard was obvious to anyone who was working in the area. I find that the violation is
an unwarrantable failure as designated by the inspectors and assess the proposed penalty of
$2,000.00.
ii. Citation No. 7751841
This citation was issued for a violation of 30 C.F.R. § 56.12018, which requires that
"[p]rincipal power switches shall be labeled to show which units they control, unless
identification can be made readily by location." The citation described the violation as follows:
A hazard exists to miners performing work on electric powered
equipment and electrical circuits in that the principle power
switches were not labeled to show which units they control. This
is the third time that this standard has been cited in the past two
years at this mine site.
32 FMSHRC Page 1472

Randolph determined that the violation was not significant and substantial, that one
employee was affected, and that the negligence was high. A civil penalty in the amount of
$176.00 has been proposed for this violation.

a. The Violation
Randolph credibly testified that the power switch box on the wall at the kit kat conveyor
could be easily accessed by workers, maintenance persons, and contract electricians. The power
switch was occasionally used to cut power to equipment in this area so that work could be
performed on the equipment or as the need may arise to de-energize the belt. In failing to
identify the breaker, the mine ran the risk that the wrong breaker would be thrown, thereby
energizing and starting the belt or equipment without notice which would, in turn, result in a
fatal accident. Randolph reviewed the records and discovered that this particular power switch
box had been cited three times in the past for not having all of the switches labeled.
The operator defends this violation by asserting that the unlabeled switches were circuit
breakers, not principal power switches. However, I credit Randolph's testimony that this is a
central power switch by virtue of the fact that the various switches tum off power to different
parts of the conveyor area. He explained that a circuit breaker also turns off the power and is a
power switch.
Transcript pages 219-220:
There's no question [the power switch] could not be
identified by location based on Inspector Randolph's [unrefuted]
testimony. Randolph determined that the power switch box on the
wall at the kit kat conveyor did not have all of the power -- all of
the switches labeled.
And he testified that it was in clear violation of this
mandatory standard.... [T]he mine's defense to this violation is
that it was not a switch, not a principal power switch. [The mine]
also argues that the three that were labeled . . . [to abate the
violation after the citation was issued] -- at least one of them was
not a principal power ... [switch].
I don't find that argument persuasive.... [Instead], I credit
the testimony of Inspector Randolph, who is also a certified
electrician that these were principal power switches [in that they
could de-energize large portions of the area by throwing the
switch] and that they were not labeled.
. . . Inspector Randolph did not designate this as significant
and substantial. One employee was affected, but he did indicate
32 FMSHRC Page 1473

that the negligence was high. I agree with Inspector Randolph,
that the negligence was high. He indicated that the mine had been
cited for this before. It is a simple thing.
The box is right there. It should have had all of the labels
on it that are ... [required]. . .. I affirm the violation, including
the negligence finding of the inspector and assess a 200-dollar
penalty for the violation.

B. Guarding Violations in Each Docket
Four of the six citations at issue in the docket addressed below, and one of the two
citations in the docket addressed above, allege that Blue Mountain failed to adequately guard
moving machine parts. Blue Mountain argues that it did not receive fair notice ofMSHA's
determination that its guarding was inadequate. The Jasper Creek Mine has been inspected at
least annually for the past ten years. Blue Mountain contends that many of the missing guards
cited by Inspector Randolph and Inspector Smallwood have been missing since MSHA began
inspecting the mine. The lack of guards in the three separate areas discussed below had not been
cited by any inspector until Inspector Randolph and Inspector Smallwood did so in this case.
Section 56.14107(a) provides that "[m]oving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels,
couplings, shafts, fan blades, and similar moving machine parts that can cause injury." The
standard makes clear that guarding is required but leaves unanswered what is required to protect
persons from coming into contact with moving machine parts. The standard was written broadly
to effectuate its protective purpose and cover a wide range of moving machine parts. Blue
Mountain is not arguing that the cited areas did not come within the purview of the standard.
The Secretary must provide fair notice of the requirements of a broadly written safety
standard. The language of section 56.14107(a) is "simple and briefin order to be broadly
adaptable to myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (Nov. 1981);
Alabama By-Produets Corp., 4 FMSHRC 2128, 2130 (Dec. 1992). Such broadly written
standards must afford notice of what is required or proscribed. U.S. Steel Corp., 5
FMSHRC 3, 4 (January 1983). In "order to afford adequate notice and pass constitutional
muster, a mandatory safety standard cannot be 'so incomplete, vague, indefinite, or uncertain
that [persons] of common intelligence must necessarily guess at its meaning and differ as to its
application"' Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990)(citation omitted). A
standard must "give a person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly." Lanham Coal Co., 13 FMSHRC 1341, 1343
(Sept.1991).
When faced with a challenge that a safety standard failed to
provide adequate notice of prohibited or required conduct, the
Commission has applied an objective standard, i.e., the reasonably
prudent person test. The Commission recently summarized this
32 FMSHRC Page 1474

test as "whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would
have recognized the specific prohibition or requirement of the
standard."
Id. (citations omitted). In other words, a safety standard cannot be construed to mean what the
Secretary intended but did not adequately express. "The Secretary, as enforcer of
the Act, has the responsibility to state with ascertainable certainty what is meant by the standard
he has promulgated." Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976).

The mine operator argues that, with regard to the three guarding violations discussed
below, the machines have not had guards for many years and have not been cited, leaving the
operator to believe that it was in compliance with the applicable guarding standard. Blue
Mountain argues that it is entitled to reasonable notice from MSHA of its intention to require
additional guarding before civil penalties may be assessed. The Secretary contends that the
citations should be affirmed because Blue Mountain did not meet the burden of proof for its fair
notice defense.
Transcript page 223-224:
The remaining violations are guarding violations. And as
to those guarding violations, the mine has raised the issue of fair
notice, which deserves a little discussion before we go forward
with those. But let me first note on the record that Citation
Number 7751843 has been modified to allege a violation of
56.1411 -- 112B. And the operator accepts it as modified, and a
100-dollar penalty is assessed as suggested by the Secretary.
. . . I want to address briefly the fair notice issue that came
up in the remaining guard[ing] violations. Blue Mountain argues
that it did not receive fair notice of MSHA's determination that
several areas, particularly three areas were not guarded that should
have been guarded.
And then raising the . . . fair notice issue, Blue Mountain
contends that many of the guards ... -- that these guards were seen
or inspected by previous inspectors in the past 12 to 15 years, and
no one has ... [deemed them] a violation.
Essentially, when a mine operator raises the issue of fair
notice, it is raising the issue of whether or not the standard is
specific, that it gives them notice as to what is required.
The fact that other inspectors walk by it can lead them to
believe that no guarding is necessary. However, the fact other
32 FMSHRC Page 1475

inspectors walk by ... [a violation without citing it] is not enough
to allege a fair notice argument. Just because a mine inspector
[may] walk[] by a violation [without issuing a citation] does not
relieve the mine operator of its duty to follow the standard.
C. Docket No. SE 2009-69M

i. Citation No. 6133232
This citation was issued for a violation of 30 C.F.R. § 56.14107(a), which requires that
"[m ]oving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury." The citation described the violation as follows:
A hazard exist to miners working in Rotex shaker screen area. A
guard was not provided to prevent crushing injuries from pinch
points between the shaker screens and the hanger brackets adjacent
to the travel way.
Smallwood determined that the violation was not significant and substantial and the negligence
was moderate. The Secretary proposes a penalty of $100.00

a. The Violation
Inspector Smallwood arrived at the mine on Monday, August 11th. Smallwood has been
an inspector for two and one-half years and has a total of 23 years of mining experience. When
he first arrived at the mine, he conducted interviews regarding the unwarrantable violation issued
the previous day by Inspector Randolph. He then began his inspection and observed the Rotex
screening system. Smallwood testified that the machine moves rapidly and that there is a
walkway next to the system which is traveled each day. In his opinion, a miner can trip or fall
into the pinch poirit, which is easily accessible from the walkway. He opined that the violation is
only obvious when the machine is on and moving. Exhibit 15(a) is photograph of the area that
shows the shaker screen and support bracket. People travel in the area to do maintenance and
checks.
Transcript pages 227-228:
The guard was not provided to prevent crushing injuries
from [the] pinch point between the shaker and the hanging bracket
adjacent to the travel way. . . . [T]he mine said only two of the
[four] -- only two were required to be guarded and that is[,
according to Inspector Smallwood,] . . . because two were near a
travel way ....
Inspector Smallwood indicated that the screening system
32 FMSHRC Page 1476

moves rapidly, and ... it is next to a walkway. Trip and fall
hazards would put someone right into the pinch point. And he
indicated that is the reason he designated this as a violation.
He did say that because there was good visibility and it
may not be likely that someone would fall into this particular area,
he designated it as non-S and S. And the -- the injury indicated
would be primarily cuts and bruises from falling into it.
He [indicated] ... moderate negligence because it had not
been brought to the attention of the mine in the past. I find that
Inspector Smallwood did, based on his credible testimony,
establish a violation as set forth. And in this case, his testimony
was -- the important part of his testimony [for purposes of fair
notice is] ... that the hazard . . . is obvious when the machine is
operating.
It is not so obvious when it is not moving. In that case, a
mine inspector may well walk by it if it is not moving, but the
mine operator is there each and every day to see it and should be -a reasonable person would know that these areas next to the
walkway should be guarded [given the nature of the pinch points].
At this point the fair notice defense does not apply, and I find that there is a violation.
The inspector has credibly testified that there are moving machine parts that may be contacted
and cause injury. Hence, a violation is established. There is no evidence that an inspector has
observed this screening section in operation but there is evidence that a reasonably prudent
person who watches the machine operate would understand that a guard is necessary. Therefore,
I find that th~ operator has not met his burden in asserting the defense of fair notice and assess
the proposed penalty of $100.00.
ii. Citation No. 6133235
This citation was issued for a violation of 30 C.F.R. § 56.12016, which requires that:
[e]lectrically powered equipment shall be deenergized before
mechanical work is done on such equipment. Power switches shall
be locked out or other measures taken which shall prevent the
equipment from being energized without the knowledge of the
individuals working on it. Suitable warning notices shall be posted
at the power switch and signed by the individuals who are to do
the work. Such locks or preventive devices shall be removed only
by the persons who installed them or by authorized personnel.
The citation described the violation as follows:
32 FMSHRC Page 1477

The electrically powered Kat Kit conveyor was not locked and
tagged out of service while repairs to the tail pulley were in
process. Employees working on this equipment were exposed to
the possibility of injury, if the conveyor was started without
workers knowledge. The employee had a emergency stop button
depressed, making the chance of an accident unlikely.
Smallwood determined that it was not significant and substantial, that one employee was
affected, and that the negligence was moderate. A civil penalty in the amount of$100.00 has
been proposed for this violation.

a. The Violation
Smallwood testified that depressing the emergency stop button is not a replacement for
turning off the power at the source and locking it and tagging it out of service so that it is not
accidently started while work is being performed. In this case, guards were being installed on
the conveyor when Smallwood observed the violation. Smallwood is aware of an accident that
occurred in the weeks prior to the citation in which the emergency stop malfunctioned and
equipment started inadvertently causing injuries to a miner.
The mine argues, and Yancey testified, that the emergency stop button is a way to
comply with the standard based upon the fact that the emergency stop is a switch that is used to
tum off/on the power. According to Yancey, the emergency stop button was depressed and the
worker had the button in his sight at all times and, therefore, the chances of it starting without his
knowledge were non-existent and the intent of the standard was met.
Transcript pages 221-222:
·[Citation] 6133235 .
. . . [This] citation was [issued] for a violation of [section]
56[-]12016, which requires electrical power equipment to be
de-energized before mechanical work is done. This is essentially
lock-out, tag-out standard.
. . . I don't think there is any question about the facts.
There was an employee working on the kit kat conveyor, which is
pictured on Exhibit 1 lA and B. An employee was placing guards
to ... [abate another] citation, and he had stopped the belt -- the
conveyor with the emergency stop button.
Instead of going to the main power source locking ... [it]
and tagging out, . . . [he used the emergency stop button]. . . . [I
find this to be a very serious violation.] Lock-out, tag-out is
32 FMSHRC Page 1478

something that should be known by everyone at this point in the
Mine Act.
Inspector Smallwood indicated that the negligence was
moderate and that this was not an S and S violation. There is no
question that there was a violation. It was not locked-out and
tagged-out. . . . [T]he mine believes that the E -- the emergency
stop button was depressed [,] [s]o the belt could not possibly start,
and that was an alternative to the lock-out, tag-out. I don't find
that argument persuasive, and I agree with Inspector Smallwood
that, in fact, it was not locked and tagged out according to the
requirements and the standard, and the violations existed. And I
find the gravity to be a little higher than the inspector assessed, and
I assess a 300-hundred dollar penalty for this violation.
m. Citation No. 7751838
This citation was issued for a violation of30 C.F.R. § 56.12004, which requires
"[e]lectrical conductors shall be of a sufficient size and current-carrying capacity to ensure that a
rise in temperature resulting from normal operations will not damage the insulating materials.
Electrical conductors exposed to mechanical damage shall be protected." The citation described
the violation as follows:
A potential shock and bum hazard existed to miners that would use
the Bob Cat (250 NT) welding machine located under the
Bentnoite (sic) Silo. The portable welding machine was ready to
be used if needed and was not locked and tagged out of service.
The electrode cable had one inch of exposed bare copper
conductor that could be contacted.
Randolph determined that it was not significant and substantial, that one employee was affected,
and that the negligence was moderate. A civil penalty in the amount of $100.00 has been
proposed for this violation.

a. The Violation
Randolph explained that he cited the portable welding machine due to the exposure of the
copper wire conductor inside the insulating jacket of the electrode cable. The machine was
ready for use. If the cable had been picked up by the exposed areas, then a short circuit would
have occurred and shock and bum hazards would have existed. Randolph observed the
condition shown in Government Exhibits 10(a) and 1O(b). The mine operator argues that since
the welder is portable, it is not subject to the standard.
Transcript pages 222-223:

32 FMSHRC Page 1479

[Randolph] issued this citation and this violation because there was
a nick or a cut in the [cable of the] welding machine located -- a
portable welding machine located in the Bentonite silo.
There is no question the photographs shows that there was
a nick or a cut in the cable and that ... the nick or cut exposed the
bare copper and conductor that could be contacted by anyone
picking up [the cable] to the machine.
If the welding leads were energize[d] or if that cable were
energized, it could result in an electrical - in an electrocution or
short circuit causing injury to the person using the equipment. One
inch of it was exposed. It was ready to be used, although it was
not in use at the time.
It could short circuit, causing shock hazard, and the injury
would be very serious. But it was not -- it was the opinion of
Inspector Randolph that it was not likely to happen because it was
a small exposed part. He designated moderate negligence. . ..

[Randolph] doesn't know when [the cut in the cable] ...
occurred, but . . . [it was easily visible]. He designated the
So I -- I credit Inspector
negligence as moderate[.]
Randolph's testimony and find that there was a violation of the
standard as he cited and assess a 200-dollar penalty for the
violation.
iv. Citation No. 7751840
This citation was issued for a violation of 30 C.F.R. § 56.14107(a), which requires that
"[m]oving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury." The citation described the violation as follows:
A hazard exists to miners working on the tray conveyor located in
the Kit Kat Filling area in that the drive pulley shaft was not
guarded. Miners in the area are exposed to broken hand and
broken arm injuries.
Randolph determined that it was not significant and substantial, that one employee was affected,
and that the negligence was moderate. A civil penalty in the amount of$100.00 has been
proposed for this violation.

a. The Violation

32 FMSHRC Page 1480

Randolph observed the kit kat conveyor belt on the date of the inspection when it was not
operating. He could see that the trays placed on the conveyor were sitting on top of moving
parts. He determined that the location of the trays presented a hazard where miners' fingers
could be caught as they lifted the tray to move it from the belt. The miners are told to wait until
the belt stops to pick up the tray but it is possible that, when in a hurry, they will lift the tray
without waiting for the belt to stop. In that case, they could easily catch their fingers or sleeves
and become entangled in the belt. It is Randolph's view that it is difficult to see the pinch points
unless the belt is stopped and the trays are removed, such as they were on August 11.
The mine argues that the conveyor moves slowly and the chances of getting caught in the
moving parts is negligible. It also argues that the pinch points that are not covered by the trays
are guarded and the other moving parts are guarded by the trays themselves. The operator's
arguments do not change the fact of the violation, since the pinch points exist and workers have
their hands near those points when removing trays. If the miners contact the moving belt parts
under the tray, the miners would suffer an injury, possibly the loss of a finger. The arguments of
the operator go to the gravity of the violation which has been marked as moderate. Finally, the
mine argues that the conveyor has been without a guard for many years and has not been cited by
MSHA.
Transcript pages 228-229:
Inspector Randolph determined that the violation was not
significant and substantial but that [the area under the trays] . . .
needed to be guarded . . . . I don't think there is any dispute that
there were guards around the tray area, but the issue was the area
under the tray.
When workers lift the trays off the belt, they could catch
their hands or fingers in[] the pinch point below. And that is the
area that he required to be guarded. Again, because this area is
covered by trays and the inspector would have to be there in order
to see someone lifting the tray off to know that, in fact, that there
was a pinch point that could cause a problem, I do not find that fair
notice applies ... [in this instance].
The mine operator is in a far better position to look at this
and know, and a reasonable person should know that this area
should contain a guard to protect the hands and fmgers of persons
lifting the trays off the conveyor.
I credit the testimony of Inspector Randolph and find that
there is a violation of the guarding standard and agree and assess
the penalty of 100-dollars as proposed by the Secretary.
v. Citation No. 7751842
32 FMSHRC Page 1481

This citation was issued for a violation of 30 C.F.R. § 56.14107(a), which requires that
"[m ]oving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury." The citation described the violation as follows:
A hazard exists to miners working near the Kit Kat Feed conveyor
in that a guard was not provided for a exposed rotating shaft
between the speedreducer and the drive pulley. Entanglement
hazards resulting in broken bones and lost work days.
Randolph determined that the violation was not significant and substantial, that one employee
was affected and that the negligence was moderate. A civil penalty in the amount of $100.00 has
been proposed for this violation.

a. The Violation
Randolph described this area, which is elevated, as being above the feed conveyor and
accessible only by ladder. The unguarded area is shown in Government Exhibit 13(a). The
location has one bearing that must be greased but it has an extended grease line that makes it
possible for work to be done without getting too close to the moving part. A worker may be
required to access the point to grease the machine once each month, and a worker conducting a
safety inspection of the area would be required to climb the ladder and walk past the area several
times each week. Due to the speed of the rotating shaft, it would quickly pull a worker who
comes in contact with it into the moving parts, thereby causing severe injuries.
This case is a close call for the use of the "fair notice" defense. Yancey argues on behalf
of the company that he traveled the area with mine inspectors, that the area is accessed by ladder,
is hardly traveled, and that the mine has a safety device for greasing the equipment which keeps
the worker away from any moving part. Two inspectors observed this violation and agreed that
it was obvious, and that a reasonable person should have seen the violation and provided a guard
over the moving area.
Transcript pages 229-230:
[Randolph testified] that a guard is not provided for a[n] exposed
rotating shaft between the speed reducer and the drive pulley.
Entanglement hazards resulting in broken bones and lost work
days [would result in the event a miner came into contact with the
moving machine part].
The photograph of this particular violation shows that the
violation -- that the unguarded place is very clear. . . . Exhibit
BA, shows that the unguarded moving portion of this machine is
obvious.

32 FMSHRC Page 1482

I don't know why an inspector would go by and not cite
this. [However,] Mr. Yancey did testify that he personally was in
this area[, which is accessed by a ladder,] with an MSHA inspector
and no one mentioned to him that this particular area should be
guarded.
[I agree with Randolph that] ... it should be guarded. And
it does present a hazard[,] ... [i]t has pinch points, moving parts
that [could cause injury and therefore] should be guarded. This is
-- this is the citation that I believe the fair notice defense would
come into play.
This is one of those cases where it does look obvious from
the photographs ... [yet inspectors failed to cite it for many years].
Since the area is elevated, set back from the walkway, and not traveled often, a
reasonable person may not know that the area should be guarded. Given Yancey's clear and
convincing testimony that he passed the position many times with an inspector and a guard was
not mentioned, he understood that one was not needed. Therefore, in this case, the operator has
shown the fair notice defense applies and, for that reason, I vacate the citation.
vi. Citation No. 7751843
This citation was issued for a violation of30 C.F.R. § 56.14107(a). At hearing, I granted
the Secretary's motion to amend the citation to an alternative section of the regulations. The
operator agreed to the amendment and agreed to pay the violation as amended. Randolph
determined that it was not significant and substantial, that one employee was affected, and that
the negligence was moderate. A civil penalty in the amount of$100.00 has been proposed for
this violation. The violation has been admitted and the $100.00 penalty is assessed.

II. PENALTY

The principles governing the authority of the Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section l lO(i)
of the Mine Act delegates to the Commission and its judges "authority to assess all civil
penalties provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
the penalty. 29 C.F .R. § 2700.28. The Act requires, that "in assessing civil monetary penalties,
the Commission [ALJ] shall consider" six statutory penalty criteria:
[l] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
32 FMSHRC Page 1483

effect on the operator's ability to continue in business, [5] the
gravity of the violation, and (6] the demonstrated good faith of the
person charged in attempting to achieve rapid ·compliance after
notification of a violation.
30 u.s.c. § 820(i).
I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator's size and ability to continue in business and that the violations were abated in good
faith. The history shows few violations in the past, thus justifying the low penalties in this
matter. The size of the operator is large and I accept the Secretary's finding of negligence for
each citation discussed above. Further, I find that the Secretary has established the gravity as
described in the citations and assess the following penalties:
Citation No. 7751837:
Citation No. 7751841:
Citation No. 6133232:
Citation No. 6133235:
Citation No. 7751838:
Citation No. 7751840:
Citation No. 7751842:
Citation No. 7751843:

$
2,000.00
200.00
$
100.00
$
300.00
$
$
200.00
100.00
$
- Vacated$
100.00

III. ()JlllE.Jl
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. §' 820(i), I assess the
penalties listed above for a total penalty of $3,000.00. Blue Mountain Production Co. is hereby
<>RDERED to pay the Secretary of Labor the sum of $3,000.00 within 30 days of the date of
this decision. 1 ·

1

Payment should be sent to the Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P .0. Box 790390, St. Louis, MO 63179-0390.
32 FMSHRC Page 1484

Distribution:
Larry R. Evans, Oil-Dri Corporation of America, P.O. Box 380, Highway 3 North, Ochlocknee,
GA 31773

Melanie L. Paul, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth St., S.W.,
Atlanta, GA 30303

32 FMSHRC Page 1485

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-434-9980
Telecopier No.: 202-434-9949

October 25, 2010
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2008-1138-M
A.C. No. 35-03298-149593

v.
THREE WAY PORTABLE CRUSHING,
INC.,
Respondent.

Mine: Portable

DECISION
Appearances: John D. Pereza, Certified Mine Safety Professional, U.S. Department of Labor,
Vacaville, CA, on behalf of the Secretary
Wendell H. Lux, Three Way Portable Crushing, 6330 Hannony Road, Sheridan,
OR, on behalf of Three Way Portable Crushing
Before:

Judge Barbour

This is a civil penalty proceeding brought pursuant to Sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C. §§ 815, 820.
The Secretary of Labor ("Secretary") on behalf of the Mine Safety and Health
Administration ("MSHA"), petitions for the assessment of a civil penalty of $946.00 for one
alleged violation of Section 56.3131, a mandatory safety standard applicable to surface metal and
nonmetal, including open pit, mine operators. The alleged violation is set forth in a citation
issued pursuant to Section 104(a) of the Mine Act. 30 U.S.C. § 814(a). 1

1

The citation was originally issued pursuant to Section 104(d)(l ), but was subsequently
modified to a 104(a) citation.

32 FMSHRC Page 1486

Three Way Portable Crushing, Inc. ("Three Way Portable") is a six or seven-man
crushed stone operation that removes and crushes basalt stone once it has been shot from the high
wall. (Tr. 54; 156) Three Way Portable began working at the quarry on January 07, 2008 and
planned to operate there for approximately fifteen days. (Gov. Ex. 7) Weyerhaeuser owns the
quarry where Three Way Portable was working and Weyerhauser developed the high
wall.(Tr. 160-161) MSHA Inspector Anderson conducted a regular inspection of the
quarry on January 15, 2008 and January 16, 2008. (Tr. 169)2 Inspector Anderson issued
Citation No. 6430303 based on an alleged violation of Section 56.3131, which requires that loose
materials be stripped back from the top of the quarry wall in places where persons work and that
fall-of-material hazards be corrected. 3 The company contested the penalty assessed for the
alleged violation. The matter was assigned to me by the Chief Judge and was heard in
Salem, Oregon.

STIPULATIONS
The parties have agreed to the following stipulations:

1.

Three Way Portable .. .is engaged in the mining of washed rock in
the United States, and its mining operations affect interstate
commerce, and is subject to the Federal Mine Safety and Health

Section 104(a) states in pertinent part:

If, upon inspection or investigation, the Secretary or his
authorized representative believes that an operator of a ...
mine subject to this Act has violated ... any mandatory health
or saf.ety standard ... or regulation promulgated pursuant to
this Act, he shall, with reasonable promptness, issue a citation
to the operator.
2

Anderson is an MSHA mine inspector with six years of prior experience
inspecting mines and 23 years of prior experience working in open pit mines with high
walls. (Tr. 23) He has experience with both high wall failures and rock falls. (Tr. 41)
3

30 C.F.R. § 56.3131 states:

In places where persons work or travel in performing their
assigned tasks, loose or unconsolidated material shall be sloped
to the angle of repose or stripped back for at least 10 feet from
the top of the pit or quarry wall. Other conditions at or near the
perimeter of the pit or quarry wall which create fall-of-material
hazard to persons shall be corrected.
32 FMSHRC Page 1487

Act of 1977, 30 U.S.C. § 801, et seq.
2.

The history of violations as shown in Exhibit A of the Petition for
Assessment accurately reflects that of Three Way Portable....

3.

The area referred to in citation 6430303 is a pit or quarry.

4.

The pit or quarry wall was about two-hundred (200) feet high.

5.

There was loose, unconsolidated material on the pit or quarry wall.

6.

The pit [or] quarry wall was not sloped to the angle of repose.

7.

Th top pit or quarry wall had not been stripped back for at least ten
(10) feet.

8.

Richard Holub, foreman, was on site the day of the inspection
which resulted in the subject citation.

9.

The mine is located about five (5) miles past the locked gate on the
access road to the quarry.

10.

The citation was abated in a timely manner.

11.

The mine size is small.

(Joint Ex. 1.)

. CONTENTIONS RELATING TO CITATION NO. 6430303
Inspector Anderson, testifying on behalf of the Secretary, stated that he issued
Citation No. 6430303 after observing a violation of the mandatory safety standard in
Section 56.3131, which requires that loose material on quarry walls be stripped back in work
areas and that fall-of-material hazards be corrected. 30 C.F.R. § 56.3131. Anderson was
accompanied during the inspection by the pit foreman, Rick Holub; Rodric B. Breland, an
MSHA Supervisor-Inspector conducting a routine review of Inspector Anderson; and an MSHA
trainee. {Tr.25; Tr. 70-71; Tr. 169.) During his inspection, Inspector Anderson noticed that the
high wall, measuring approximately 200 feet, had loose material on it. {Tr. 23; Gov. Ex. 4.)
Rocks, dead trees and other unconsolidated material had not been stripped back and were
hanging on the face of the high wall. (See Tr. 26.)
Inspector Anderson testified that he observed a load operator on the left side of the pit
repairing a 2.5 or 3.0 foot berm approximately 20 to 25 feet from the high wall. (Tr. 24; Tr. 57.)
32 FMSHRC Page 1488

These estimates were agreed to by Holub during the inspection. {Tr. 24; Tr. 130; Gov. Ex. 4.)
Inspector Anderson did not see the load operator go behind the berm area or see the operator exit
the loader while working on the berm. {Tr. 36.) He determined that only one person was affected
by the violation based on the fact that he observed only the load operator working under the
high wall. (Tr. 43.) Inspector Anderson testified that he saw the load operator digging for
material for the berm to the right of the high wall and marked the location on
Exhibit 5. (Tr. 48; Gov. Ex. 5.)
Inspector Anderson considered the high wall hazardous because the loose material on top
of the high wall presented a fall-of-material hazard to loaders driving down the travel
way. (Gov. Ex. 4.) Anderson stated that loose material was likely to fall off the high wall,
bounce off the full bench-like structures on the wall and get projected out from the base of the
wall at speeds fast enough to cause a fatality. {Tr. 42.) Supervisor-Inspector Breeland affirmed
Inspector Anderson's assessment of the likelihood of injury. {Tr. 78.) Breeland testified that he
had done an inspection in Colorado involving a fatality caused by the fall of materials from a
high wall. (Tr. 77-78.) A small boulder had rolled down the high wall to the road. {Tr. 78.) It hit
a loader below and broke through the front windshield with so much force that the seat and the
operator were hurled out of the back of the loader. (Id.) Anderson determined that the
approximately 2.5 or 3.0 foot berm being erected was inadequate protection against this
hazard. (Tr. 24-26.) Supervisor- Inspector Breland testified that he also found the berm
inadequate. {Tr. 73.) Anderson recommended that the height of the berm be increased and that
the berm be moved farther away from the high wall. (Tr. 48-49.) The operator abated the
violation by erecting an approximately 6 foot berm about 50 to 75 feet from the high wall and by
moving workers out of the area near the high wall. (Tr. 49-50.)
Inspector Anderson concluded that the violation of Section 56.3131 was significant and
substantial based on his determination that a mandatory standard had been violated, there was a
discrete danger to persons, injury was reasonably likely to occur and any injury that occurred was
likely to be serious. {Tr. 43.)
Inspector Anderson determined that injury from a fall of material was reasonably likely to
occur due to weather conditions such as wind and the freezing and thawing of materials on the
high wall, the close proximity of the berm being constructed to the high wall and the close
proximity of the high wall to the areas where he was digging materials for the berm. (Tr. 37; 43.)
Inspector Anderson found high negligence because the berm was placed too close to the high
wall and was incomplete at the time of inspection. (Tr. 44.)
Rod Klenski, a load operator for Three Way Portable, testified on
behalf of the company. Klenski stated that he and Holub were using a 966F loader
and a 966G loader to both repair the berm in question and dig out rock to feed into the
crusher plant. (Tr. 110; 114-115; 120.) He stated that approximately 100 feet of the berm was
missing. (Tr. 114.) Klenski, who constructed the original 2.5 to 3.0 foot berm located
20 to 25 feet from the high wall, believed that the berm provided adequate protection against a

32 FMSHRC Page 1489

fall-of-material hazard (Tr. 111.) Holub testified that he told workers to dig on either end of the
high wall and not go anywhere near the high wall. (Tr. 131.)
Wendell H. Lux, Secretary for Three Way Portable, disputed the estimates, originally
agreed to by Rick Holub during the inspection, and argued that the original berm was actually at
least 4.0 feet tall and 50 feet away from the high wall. (Tr. 150) Lux theorized that part of the
berm was missing when the inspection began because a road construction contractor working in
the pit removed it over the weekend for use as fill material for pipes. (Tr. 159 -160) He testified
that this had happened in the past. (Id.) The company operated at a reduced level on Monday,
January 14, 2008 and did not replace the berm that Monday. (Tr. 172.)

RESOLUTION OF THE ISSUES
CITATION NO. 6430303
Citation No. 6430303 states:
The material at the top of the high wall at the cross over road quarry was not
strip[p]ed back 10 ft from the top of the quarry and there was loose and
unconsolidated materials including, rocks, and dead trees hanging on the face of
the wall. The high wall was estimated to be about 200 ft. in height and was not
benched in the area of concern. At the time of inspection a front end loader was
observed installing a berm within about 20 ft. from the toe of the high wall. Dave
Hansen/President, and Wendell Lux/ Secretary stated that they were aware of the
hazardous condition of the high wall and directed employees to install the berm.
The loader was directed to dig materials from the shot muck from each end of the
pit. Due to the close proximity of the loaders travel way, if materials were to fall
from the wall it could result in a fatal injury. Owners Dave Hansen and Wendell
Lux engaged in aggravated conduct constituting more than ordinary negligence in
that they were aware of the hazardous condition of the high wall and allowed the
front end loader operator to travel within approximately 20 ft. of the hazardous
high wall area. This violation is an unwarrantable failure to comply with a
mandatory standard.
Note: A 6 ft. barrier was erected to eliminate access to the hazardous area.
Termination due time will be set to allow operator reasonable time to correct the
hazard.
·
Note: All measurements were agreed upon by the foreman.
(Gov. Ex. 4.)4

4

As previously noted, the citation was modified from a 104(d)(l) citation to a 104(a)
citation.
32 FMSHRC Page 1490

THE VIOLATION
I conclude that the Secretary has established a violation of the first part of
30 C.F.R. § 56.3131, which requires that loose material be sloped to the angle of repose or
stripped back at least 10 feet from the top of the quarry wall. The parties stipulated that there
was loose material on the approximately 200 foot high wall and that the material had not been
sloped to the angle of repose or stripped back at least 10 feet. Inspector Anderson's testimony
.that he observed a load operator repairing a berm near the toe of the high wall during his
inspection is sufficient evidence to establish that persons travel in the area while performing their
assigned tasks. (Tr. 24.)
I conclude that the Secretary has also established that Three Way Portable violated the
second sentence of Section 56.3131, which requires that fall-of-material hazards at the base of a
quarry wall be corrected. 30 C.F.R. § 56.3131. The parties contest whether there was a berm
under the high wall prior to the day of inspection. However, even ifthe 2.5 to 3.0 foot berm had
been in place under the hlgh wall prior to the inspection it would have been inadequate. Given
Inspector Anderson, s 23 years of experience working in open pit mines with high walls and his
personal experience with both high wall failures and minor rock falls, I credit his testimony that a
2.5 to 3.0 foot berm placed 20 to 25 feet from the high wall was inadequate protection against a
fall-of-material hazard and that a berm of approximately 6 feet placed 50 to 75 feet from the wall
was necessary.
During the inspection Anderson estimated that the berm was 2.5 to 3.0 feet and located
20 to 25 feet from the high wall. These estimates were recorded on the citation he issued and
confirmed by Rick Holub, foreman for the company, during the inspection. At the hearing
Wendell Lux then claimed that the berm was actually at least 4 feet tall and 50 feet away from
the high walt I find Wendell Lux, s argument that the Secretary incorrectly estimated the size and
placement of the berm unpersuasive. The Secretary's estimates were made contemporaneously
with the inspection and confirmed by Three Way Portable's foreman, Rick Holub. Wendell Lux
is the only witness for the respondent who disputed the estimates.

NEGLIGENCE
Though Inspector Anderson modified the citation from a 104(d)(l) citation to a 104(a)
citation his negligence finding remained high. Anderson determined the degree of negligence
was high based on the fact that the berm being erected was too close to the high wall, part of it
was not in place when the inspectors arrived and Holub was aware that miners were erecting the
berm. I conclude that the company was moderately negligent. As Holub admitted, Three Way
Portable operated on Monday, January 14, 2008 without completing the berm and had not
completed the berm by the time the inspection occurred. I credit Holub's testimony that miners

32 FMSHRC Page 1491

were instructed not to work under the high wall because as foreman he is in a position to know
where workers were performing their duties. The only two persons working under the high wall
were erecting a safety berm. Further, the company had a partial berm erected which provided
some notice and protection to Three Way Portable miners. These facts support a finding of
moderate, not high negligence.

S&SGRAVITY
An S&S violation is a violation "of such nature as could significantly and substantially
contribute to the cause and effect of a ... mine safety or health hazard." 30 U.S.C. § 814(d).
A violation is properly designated S&S, "if, based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement Div., Nat 'l Gypsum Co., 3 FMSHRC
822, 825 (April 1981). As is well recognized, in order to establish the S&S nature of a violation,
the Secretary must prove: ( 1) the underlying violation; (2) a discrete safety hazard - that is, a
measure of danger to safety- contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will
be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4(January1984); accord
Buck Creek Coal Co., 52 F.3d 133, 135(7th Cir. 1995); Austin Power Co. v, Sec'y ofLabor, 861
F.2d 99,103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves "a reasonable
likelihood the hazard contributed to will result in an event in which there is an injury." U.S. Steel
Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985). Further, an S&S determination must be based
on the particular facts surrounding the violation and must be made in the context of continued
normal mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S. Steel, 7
FMSHRC at 1130.

Finally, the S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the "focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry,
but rather on the effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHRC 1541,
1550 (Sept. 1996).
The Secretary has proven that a violation of Section 56.3131 occurred. It has been
established that the violation contributed to a fall-of-material hazard for miners using the loader
travel way. Specifically, the danger was that loose material could fall off the high wall, bounce
off the full bench-like structures and get projected out from the base of the wall at speeds fast
enough to cause a fatality.
The Secretary has also established that the safety hazard identified was reasonably likely
to cause injury. Inspector Anderson determined that the loose materials and inadequate berm

32 FMSHRC Page 1492

contributed to a fall-of-material hazard for loaders traveling near the high wall. I credit the
testimony of Inspector Anderson and Supervisor-Inspector Breeland that this hazard was
reasonably likely to cause injury. Inspector Anderson has over 23 years of experience with open
pit mines and Supervisor-Inspector Breland offered persuasive testimony regarding a fatality at
another mine caused by material falling from a high wall. Government Exhibit 1 clearly shows
at least one uprooted tree dangling down the face of the high wall. This photographic evidence
lends further support to Inspector Anderson's assessment of the likelihood of injury. In light of
this evidence, I credit Inspector Anderson's finding that injury was reasonably likely, even
though Three Way Portable operated at the site for only about 15 days and is a very small six or
seven-man operation.
The Secretary has proven that the hazard would cause reasonably serious injury. Given
Inspector Anderson and Supervisor-Inspector Breeland's experience, I credit their testimony that
loose material falling from the top of the high wall could cause serious injury or even
a fatality. For the reasons above, I find that the violation was both significant and substantial and
senous.

REMAINING CIVIL PENALTY CRITERIA
The Act requires that I assess a civil penalty for the violation. It also requires that
in doing so, I consider the statutory civil penalty criteria. 30 U.S.C. § 820(i).

HISTORY OF PREVIOUS VIOLATIONS
Three Way Portable's history of previous violations reflects very few prior violations.
I find, based on the record in this case, the applicable history of previous violations is a
mitigating factor. Therefore, I will reduce the penalty based in part on Three Way Portable's
prior history.·

The parties have stipulated that Portable is a small mine. (Joint Ex. 1) Accordingly, I will
assess a lesser amount than I would for medium or large operations.

ABILITY TO CONTINUE IN BUSINESS
There is no evidence the size of any penalty assessed will adversely affect Three Way
Portable's ability to continue in business, and I find it will not. Therefore, when assessing a
penalty, I will neither increase nor decrease it on account of this criterion.

32 FMSHRC Page 1493

GOOD FAITH ABATEMENT
Finally, the parties agreed that the alleged violation was abated in good faith by Three
Way Portable and in a timely manner.(Joint Ex. 1.) The company's prompt good faith abatement
supports a reduction in penalty.
CIVIL PENALTY ASSESSMENT
Given the civil penalty criteria discussed above, I assess a civil penalty of$600.00.
ORDER
Consistent with this Decision, it is ORDERED that Citation No. 6430303 is AFFIRMED
except that the inspector's negligence finding is MODIFIED from "high" to "moderate."
Within 40 days of the date of this decision, Respondent is ORDERED to pay civil penalties
totaling $600.00 for the violation found above. Upon payment of the penalty and modification of
the citation, this proceeding is DISMISSED.

David F. Barbour
Administrative Law Judge

Distribution:

John D. Pereza, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
2060 Peabody Road, Suite 610, Vacaville, CA 95687
Wendell H. Lux, Three Way Portable Crushing, 6330 Harmony Road, Sheridan, OR 97378

/ca

32 FMSHRC Page 1494

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 I FAX: 202-434-9949

September 1, 2010
CONTEST PROCEEDING

FREEDOM ENERGY MINING
COMPANY,
Contestant

Docket No. KENT 2010-1352-R
Citation No. 8241282; 07/26/2010

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

Mine: #1
Mine ID: 15-07082

ORDER GRANTING SECRETARY'S MOTION FOR SUMMARY DECISION
ORDER DENYING CONTESTANT'S CROSS MOTION FOR SUMMARY DECISION
ORDER DENYING CONTESTANT'S MOTION FOR EXPEDITED HEARING
ORDER TO PRODUCE REQUESTED RECORDS
Statement of the Proceedings
This Notice of Contest proceeding concerns Citation No. 8241282 filed by the
Respondent against the Contestant pursuant to section 103(h) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 813(h). The July 26, 2010 Citation, as written, alleges as
follows:
The operator failed to produce/provide records requested by MSHA special
investigators during the performance of the investigators (sic) official duties under
Sectioll 110 of the Federal Mine Act. On June 23, 2010, written request for
specific documents were given to the operators (sic) legal counsel, (Jonathan
Ellis, Esquire of Steptoe and Johnson). Again these records were requested on
July 1, 2010, by the District Manager. On July 9, 2010, a letter received from
J ef:frey K. Phillips Steptoe and Johnson, Attorneys of Law states that Freedom
Energy is not willing to produce the coal production reports requested. Section
103 (a) and (h) of the Federal Mine Safety Act requires the operator to furnish
information requested by the Secretary of Labor that she has determined necessary
in carrying out provisions of the Federal Mine Act.
The violation was not cited as significant and substantial, but alleged to result from the
operators's high negligence.

32 FMSHRC Page 1495

I.

Procedural Background
A.

The 104(d)(2) Orders

In the two months preceding issuance of the July 26, 2010 Citation at issue, MSHA
issued three section 104(d)(2) orders against Contestant.
Specifically, on May 17, 2010, MSHA issued 104(d)(2) Order No. 8241080 alleging that
combustible materials consisting of loose coal, coal fines, and coal dust have been allowed to
accumulate on the No. 20 conveyor belt. The violation was cited as significant and substantial
resulting from the operator's high negligence and constituting an unwarrantable failure to comply
with a mandatory safety standard.
Also on May 17, 2010, MSHA issued 104(d)(2) Order No. 3515431 alleging failure to
comply with the approved ventilation plan for the 001 MMU, despite the section 103(i) spot
inspections every five days. The Order, which was to remain in effect until ventilation plan
changes had been approved by the District Manager, found that the totality of violations existing
during this and previous inspections demonstrated a routine practice of mining without sufficient
ventilation at the working faces. The violation was cited as significant and substantial resulting
from the operator's high negligence and constituting an unwarrantable failure to comply with a
mandatory safety standard.
On June 10, 2010, MSHA issued 104(d)(2) Order No. 8241268 alleging a violation of30
C.F.R. 75.400 for accumulations ofloose coal in various locations along the entire length of the
#17-B belt conveyor, and debris in the neutral entries from the end of the track up to the section
power center. The Order found that the totality of violations found during this and previous
inspections demonstrated a·routine practice of allowing accumulations of loose coal, coal dust,
and debris to exist in the active workings of this mine, noting that this was the 277th occurrence
in the last two years. The violation was cited as significant and substantial resulting from the
operator's high negligence and constituting an unwarrantable failure to comply with a mandatory
safety standard.
B.

MSHA's Section 110 Investigation, Request for Records, and Subsequent
Correspondence With Contestant

As a result of foregoing 104(d)(2) orders, MSHA Special Investigator Alan Howell began
a section 110 investigation, consisting of interviews and document review. 1 On June 23, 2010,
pursuant to this investigation, Special Investigator Howell wrote Jonathan Ellis, counsel for
Sidney Energy Company d/b/a Freedom Energy Mining Company for Mine #1, and specifically
1

Section 11 O(c) of the Mine Act imposes personal liability on individual corporate agents
if they knowingly authorized, ordered, or carried out a violation of a mandatory health or safety
standard or an order issued under the Act.
32 FMSHRC Page 1496

requested the following information:
Massey Energy Production Reports, dates ranging from May 10, 2010 to May 20,
2010 from the Freedom Energy Mining Company, #1, 001 Section Name,
Address, Phone numbers and hours worked (time sheets) of all employees
working on the 001 Section during this time frame, and the Massey Energy
Production Reports for the 010 Section for the dates on June 8, 2010 to June 11,
2010.
Special Investigator Howell's letter further stated that MSHA's authority to seek records under
section 103(a) of the Act mandates that "[a]uthorized representatives of the Secretary ... shall
make frequent inspections and investigations in coal or other mines each year for the purpose of
( 1) obtaining, utilizing and disseminating information relating to health and safety conditions, the
cause of accidents and the causes of diseases and physical impairments originating in such
mines." Special Investigator Howell requested that Respondent provide the requested records by
close of business June 25, 2010, otherwise the matter would be considered for legal action under
section 108 of the Act. 2
By letter dated July 9, 2010, counsel for Contestant sent an e-mail and attached a reply
letter to James Poynter, the Acting District Manager at MSHA in Pikesville, Kentucky regarding
the investigation of ventilation and accumulations issues at Freedom Energy #1 mine, and more
specifically Special Investigator Howell's demand for time sheets and coal production reports.
Contestant's July 9 letter unequivocally asserted that "Freedom Energy is not willing to produce
coal production reports."3 Contestant's July 9 letter further stated that "[p]roduction reports are
not required to be created or maintained" and that section 103(h), referenced in other recent
MSHA correspondence, directs that a coal operator "shall establish and maintain such records,
make such reports, and provide such information, as the Secretary ... may reasonably require
from time to time to enable him to perform his functions under [the Mine] Act." (emphasis in
original). In addi1ion, Contestant indicated that MSHA had not demonstrated to Freedom Energy
that the requested coal production reports are necessary for MSHA to perform any functions
relating to an investigation of ventilation and accumulations in the 001 Section or how the
production reports are relevant to MSHA's investigation. Accordingly, Contestant advised

2

Section 108 of the Act deals with injunctions and authorizes the Secretary to institute a
civil action for permanent or temporary injunctive relief in federal district court whenever a mine
operator or agent, inter alia, violates or refuses to comply with any order or decision issued under
the Act, including a civil penalty assessment order; interferes with, hinders or delays that
Secretary in carrying out the provisions of the Act; or refuses to furnish any information or report
requested by the Secretary in furtherance of the provisions of the Act.
3

That letter erroneously cited section 103(d) of the Act, instead of 103(b), as authorizing
the Secretary to sign and issue subpoenas for production of relevant documents. Section 103(b)
deals with public hearings.
32 FMSHRC Page 1497

MSHA that the production reports would not be supplied.

C.

The Citation at Issue, Contestant's Motion for Expedited Hearing, and
Additional Correspondence

The Secretary responded to Contestant's July 9 letter by issuing the July 26, 2010
Citation No. 8241282, which gave Contestant 15 minutes to terminate the Citation. Contestant
alleges that MSHA failed to give counsel notice of the Citation until well after the termination
time expired.
By letter dated July 26, 2010, MSHA's Acting District Manager Poynter wrote Sidney
Coal Company, fuc. President Charles I. Bearse, ill, concerning Contestant's refusal to comply
with the request for coal production reports in the section 110 investigation. Poynter's July 26
letter referenced a prior July 1 letter from him advising Contestant that MSHA was seeking
certain documents pursuant to its right to investigate matters occurring under the Mine Act. 4
Poynter's July 26, 2010 letter specifically advised that section 103 gives MSHA the right to
demand that operators produce records reports and information the Secretary deems to be
reasonably required to enable her to perform her functions under the Act. Poynter's July 26
letter also advised that one of the required functions under the Act is the investigation of
allegations of willful violations by agents of an operator; that the response from Contestant's
counsel refused to produce the coal production reports; that a summary of time and attendance
records had been provided; and that the Act requires that an operator produce original documents
for examination and copying by MSHA when requested, not a partial or selective summary,
which is non-responsive and unacceptable. Poynter's July 26 letter further advised that
continued noncompliance has led MSHA to consider these violations for the civil penalty
provisions of section 11 O(b) of the Mine Act, which authorizes a daily civil penalty of up to
$7500 for every day you fail to comply with our citation. Poyi1ter's July 26 letter closed by
stating that if Contestant has not produced the requested documents by close of business on July
22, 2010, MSHA will implement section 11 O(b) of the Act to propose civil penalties for each day
that Contestant fails to comply with the request for document production.
Poynter's July 26, 2010 letter, like the instant Citation, was not served on counsel, even
though the letter itself acknowledges that counsel represented Contestant in the instant matter. 5
On July 29, 2010, Contestant filed with the Commission a Motion for Expedited Hearing
"because of MSHA' s unreasonable attempt to impose a monetary penalty." Contestant argued,

4That July 1, 2010 letter was not included in the record submitted by either party in this
proceeding.
5

1 am troubled by the fact that it appears that MSHA knowingly skipped counsel in this
matter, and MSHA is admonished that it should not skip counsel in any matter that it knows a
Contestant or Respondent is represented by counsel.
32 FMSHRC Page 1498

inter alia, that whether or not Contestant was obligated to produce the requested documents
under the Mine Ad is a legal question, that no safety issues are implicated by the non-production,
and that the threatened daily penalty is unnecessary, arbitrary and punitive. Contestant further
argued that if MSHA is permitted to impose a daily penalty of $7 ,500, Contestant is exposed to
more than $200,000 in fines by August 27, 2010. Consequently, Contestant argued that an
expedited hearing is proper because unique or extraordinary circumstances are present that result
in continuing harm or hardship.
By email dated July 30, 2010, counsel for the Solicitor wrote counsel for Contestant, with
copy to MSHA Special Investigator Howell and the MSHA District Office. Counsel for the
Solicitor indicated that since MSHA had not received an answer from Contestant concerning
resolution of this matter, MSHA was starting the process for daily penalties for non-production.
Counsel for Contestant's email reply to all that same day, confirmed confidence in the legal
position taken in Contestant's July 9 letter to Poynter, and confirmed that Contestant was not
inclined to disseminate the coal production reports that MSHA demanded.

D.

The August 4, 2010 Conference Call with the Undersigned

On August 4, 2010, I convened a conference call with counsel for the Solicitor and
counsel for Contestant. In response to my questioning, counsel for the Solicitor explained why in
her view, the coal production reports were relevant, necessary and reasonably requested in order
for Special Investigator Howell to complete his section 110 investigation. She indicated that the
documents were contemporaneous and kept in the ordinary course of business and would show
who was responsible for what goes on in the working sections of the mine on the dates in
question. Counsel for the Solicitor stated that she was filing forthwith a Motion for Summary
Decision Concerning Notice of Contest and Memorandum in Support, with attached declarations
and other supporting documents, which mooted Contestant's Motion for Expedited Hearing,
particularly since no daily penalty had yet been assessed. Counsel for the Solicitor further
indicated that ~he had offered to keep the documents that had been requested confidential for
purposes of the Freedom of Information Act, but such offer was rejected by Respondent.
Counsel for Contestant argued that the company-created coal production reports were not
required under the Act, that the Secretary cannot independently determine what documents need
to be turned over, and that perhaps the documents could be turned over in redacted form. When
the Secretary objected to Contestant's unilateral determination of redaction issues, I indicated
that any redaction or privilege issues would be subject to my in camera inspection.

II.

The Secretary's Motion for Summary Decision

On August 5, 2010, the Secretary filed with the Commission her Motion for Summary
Decision Concerning Notice of Contest and Memorandum in Support, with attached Declarations
from Special Investigator Howell and MSHA Ventilation Specialist Brian Dotson.

Special Investigator Howell declares, among other things, the following:

32 FMSHRC Page 1499

•
•

•

•

•

•

•
•
•

•

that his section 110 investigation of the three 104(d)(2) orders against
Contestant requires an inquiry into what information was available to
certain agents of the operator at the time of the violations;
that he has past mining experience working in various counties around
Eastern Kentucky as superintendent, electrician, section foreman and
equipment operator;
that he is aware of the contents of records kept by Freedom Energy,
including production and time and attendance records, because of his prior
coal mine employment, his work in prior investigations concerning
Freedom Energy, his work on other investigations relating to mines owned
or controlled by AT Massey, and his work with prior managers who
worked for Massey operations in this area, including Freedom Energy;
that as part of his section 110 investigation, he determined that the
production reports for the period of May 10-20, 2010 were
contemporaneous documents produced by managers and agents of the
operator, which provided information relevant to the operation of the
working sections and the belts carrying coal out of the mine while active
mining was occurring;
that he requested production records that were kept in the usual course of
business and were made contemporaneously by agents of the operator at
the time of the violations, and that such records are regularly produced by
operators during investigations under the Act;
that although the timing and attendance records were produced, the
production records were not produced, despite several reasonable requests
for these documents, and that reason given for non-production was that
such records were not required to be maintained under the Act and the
Secretary had not established that the request was reasonable;
that MSHA and counsel for the Secretary continue to explain to counsel
for the contestant that the Act requires production of records, whether
required to be maintained or not, when requested by the Secretary;
that the delay in producing the requested records has hindered his
investigation under section 110 and caused lost time and resources for
himself and counsel;
that the continued refusal to produce the coal production reports
establishing actions taken during production shifts around the time of the
May 17, 2010 violations, causes harm to the Secretary, who must
determine, which director(s), officer(s) or agents(s) of the operator, if any,
authorized, ordered or carried out such violations, and causes potential
harm to agents of the operator, who may be incorrectly cited for personal
responsibility for said violations, but exculpated by production of such
reports;
that based on the nature of the violations, which are of the type that could

32 FMSHRC Page 1500

•

cause serious accidents and death, it is critical that MSHA discover if
particular management officials knew of the conditions or had information
tending to give them knowledge; and
that an accurate evaluation of the actions of management during the
relevant time period cannot be completed without the contemporaneous,
coal production reports.

Declarant Dotson avers that prior to his employment with MSHA, he worked for Massey
Energy in a variety of positions, including mine superintendent; that he is aware of the
production records used at mines owned and operated by Massey Energy; and that the Freedom
#1 mine is under the control of Massey Energy's Sidney division. He further declares that as
mine superintendent, he would review coal production records containing information relevant to
operation of the ·section and coal belts on a daily basis, and he would make daily resource
allocation decisions, based in part, on coal production records. On information and belief, he
avers that the requested records may be relevant to the negligence of mine management for the
cited violations at issue.
Based on the foregoing declarations and her understanding of applicable Commission
law, the Secretary argues that her Motion for Summary Decision should be granted in this
Contest proceeding because there are no genuine issues as to any material fact and she is entitled
to judgment as a matter oflaw. The Secretary argues that sections 103(a) and (h) of the Mine
Act require the operator to furnish information requested by the Secretary that she has
determined necessary in carrying out the provisions of the Mine Act. The Secretary emphasizes
that under section 103(h) of the Act, the operator must produce records related to investigations
when requested by the Secretary, whether or not those records are required to be maintained by
the operator. The Secretary points out that the production records in question were kept in the
usual course of business and were made by agents of the operator at a time well-nigh
contemporaneous with the violations. The Secretary argues that the requested records document
actions that were taken or conditions that existed during working shifts at the time of the
violations, and will assist in identifying managers and agents, if any, who knew or should have
known of the violations and failed to act based on circumstances that could amount to aggravated
conduct constituting more than ordinary negligence, which is necessary to establish section
110(c) liability. The Secretary argues that many directors, agents, and/or officers of Contestant
are potentially liable for the violations under section 110 of the Act; that MSHA has an
affirmative obligation to investigate such potential liability; and that the requested production
records are relevant to issues presented concerning production and agent responsibility under the
Act, including the actual mining cycles that occurred, the length of time the conditions were
present, and the persons present at the time the violations occurred, who knew or should have
known of their existence. Accordingly, the Secretary requests that Citation No. 8241282 be
upheld.

32 FMSHRC Page 1501

III.

The Contestant's Response and Cross Motion for Summary Decision

On August 18, 2010, Contestant filed its Response in Opposition the Secretary's Motion
for Summary Decision Concerning Notice of Contest, with attached Affidavit of Jatnes F.
Pinson, Jr.
Affiant Pinson avers as follows:
•
•
•
•
•

•

•
•

•

•

that he has been superintendent for Contestant since July 2008, and
employed by a Massey Energy subsidiary since 1994;
that he is familiar with and reviewed the coal production reports for
Contestant dated May 10-20 and June 8-11, 201 O;
that he had reviewed the three section 104(d)(2) orders set forth above;
that Contestants's May and June 2010 coal production reports contain
some information that has no relevance to said orders;
that said coal production reports contain some information that is
redundant and the satne as information contained in pre-shift inspection
reports, on-shift inspection reports, and/or belt examination reports;
that said coal production reports contain some information that should not
be disclosed to individuals who are not employed by Contestant, including
information pertaining to the mine's cut sequence;
that based upon his investigation, he does not believe that Contestant has
previously turned over coal production reports to MSHA;
that he was a supervisor of Brian Dotson for some of the time that Dotson
was employed by a Massey Energy subsidiary, that during such time,
Dotson did not work for Freedom Energy Mine Company, and that Dotson
ceased employment with any Massey subsidiary in 2005;
that the coal production reports at issue are different from, and contain
additional information than, those used when Dotson was employed with a
Massey subsidiary through 2005;
that he does not recall meeting MSHA Special fuvestigator Howell until
the summer of2010, that he has never seen Howell underground at
Freedom Energy Mine Company; and that he has no knowledge that
Howell has ever been given access to, or looked at, the coal production
reports at issue.

Based on the foregoing affidavit, Contestant essentially cross moves for summary
decision, conceding that there is no genuine issue as to any material fact. Contestant does point
out, however, that it is unclear whether that Secretary seeks summary decision on the "high"
negligence designation or simply on the dissemination of the coal production reports. fu this
regard, Contestant argues that there is no basis for finding that it knew or should have known of
the violative practice by refusing to provide a production report, and, since there are mitigating
circumstances for the non-production, the high negligence designation is baseless.

32 FMSHRC Page 1502

Contestant advances two principal arguments on cross motions for summary decision.
First, it asserts that the Secretary's demand the coal production reports is ultra vires because it
exceeds an express statutory limitatio~ on the Secretary's powerto demand information from
coal operators. Second, Contestant argues that the Secretary's demand for coal production
reports violates the Fourth Amendment.
With regard to the first argument, Contestant notes that the Secretary relies almost
entirely upon section 103(h), with passing reference to section 103(a) of the Act, neither of
which, in Contestant's view, require a coal operator to furnish all information "requested by the
Secretary of Labor that she has determined necessary in carrying out the provisions of the Federal
Mine Safety Act." Nowhere has Congress bestowed on MSHA such unfettered discretion to
dictate what a coal operator must turn over during an MSHA investigation. Rather, the
information must be necessary to enable the Secretary to perform her functions under the Act,
Contestant argues. Contestant further contends that "[t]he Secretary has, to date, steadfastly
refused to explain how the requested records are necessary to her discharge of her statutory duty,
saying instead only that she has a secret reason that she cannot reveal." Contestant notes that it
was not until the Secretary filed her Motion for Summary Decision that Contestant learned that
the three section 104(d)(2) orders gave rise to the special investigation, and Contestant argues
that the time sheets, pre-shift inspection reports, on-shift inspection reports, and belt books,
which were already turned over, contain all the relevant information that it is obligated to
disclose to MSHA. 6
With regard to its second argument, Contestant argues that the Supreme Court in
Donovan v. Dewey, 452 U.S. 594, 599 (1981 ), held that searches under the Mine Act do not
violate the Fourth Amendment as long as they are authorized by law or necessary for the
:furtherance of federal interests. Contestant argues that the Secretary's production demand 1) is
not authorized by law because it exceeds her statutory authority to require production of
information, and 2) does not further federal interests because she has refused to identify
specifically w}J.y she seeks the information instead of stating only that she has a secret reason for
requesting it. In addition, Contestant argues that since the "heavy regulation" of the Mine Act
does not require Contestant to maintain the sought-after records, the operator maintains a
reasonable expectation of privacy in those records, akin to the third prong of Dewey, where
random, infrequent, or unpredictable inspections may trigger a warrant requirement to protect
against unbridled discretion of executive or administrative officers. Response at 8-10. In
conclusion, Contestant argues that the Mine Act does not give the Secretary the power to demand
that Contestant produce the sought-after records. Rather, to gain access to Contestant's
"proprietary" coal production reports, the Fourth Amendment and applicable case law require a
warrant, Contestant argues.

6

Contestant challenges the evidentiary basis for the Secretary's claim (Motion at 6) that
the operator has produced similar production records during regular inspections of the mine has a
pattern of disclosing production reports.
32 FMSHRC Page 1503

IV.

Analysis With Findings and Conclusions

A.

Applicable Legal Principles

Under Commission Rule 67(b), 29 C.F.R. § 2700.67(b), a motion for summary decision
shall be granted only if the entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, show 1) that there is no genuine issue as to any
material fact, and 2) that the moving party is entitled to summary decision as a matter oflaw.
Section 103(h) of the Act states in pertinent part that "[i]n addition to such records as are
specifically required by the Mine Act, every operator of a coal or other mine shall establish and
maintain such records, make such records, and provide such information, as the Secretary ...
may reasonably require from time to time enable him to perform his functions under this Act ...
. 30 u.s.c. § 803(h). 7
Section 110(c) of the Mine Act provides that whenever a corporate operator violates the
mandatory health or safety standard or knowingly violates or fails or refuses to comply with any
order issued under this Act or any order incorporated in a final decision issued under this Act,
except an order incorporated in a decision issued under subsection (a) or section 105(c), any
director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out
such violation, failure or refusal shall be subject to the same civil penalties, fines, and
imprisonment that maybe imposed upon a person under subsections (a) and (d).
As set forth in the Secretary's Motion, to establish Section l lO(c) liability, the Secretary
must prove that an individual knowingly violated the law. Warren Steen Constr., Inc., 14
FMSHRC 1125, 1131 (July 1992), citing United States v. Int'! Minerals & Chem. Corp., 402
U.S. 559, 563 (1971)). A knowing violation occurs when an individual "in a position to protect
employee safety and health fails to act on the basis of information that gives him knowledge or
reason to know of the existence of a violative condition." Kenny Richardson, 3 FMSHRC 8, 16
(Jan. 1981). Section l lO(c) liability is predicated on aggravated conduct constituting more than
ordinary negligence. Beth Energy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992). That is, as
a predicate to individual liability, a corporate operator's agent must be privy to knowledge or
information that gives him reason to know of the existence of a violative condition under
circumstances wherein his failure to act amounts to aggravated conduct constituting more than
ordinary negligence. Johnson Paving Company, Inc., and William T. Pinson, 31 FMSHRC 1246,
1255 (Oct. 2009) (ALJ Barbour).

7

The legislative history of the Mine Act states that the Secretary's detenninations
concerning requests for records should be final and the request should minimize the burden on
operators consistent with her need to efficiently and effectively perform her enforcement
responsibilities. Senate Report, No. 95-181, page 28, 95th Congress 151 Session, as reported in
U.S. Code Cong. & Admin. News 1977, page 3428.

32 FMSHRC Page 1504

B.

Application of Legal Principles to the Facts

Contrary to Contestant's arguments that the Secretary's production demand exceeds her
statutory authority and does not further federal interests, I find that under Section 103(h) of the
Act, the Secretary's demand for coal production reports is a request that is reasonably required by
the Secretary from time to time to enable her to perform her functions under the Act. Section
103(h) of the Act specifically states "[i]n addition to such records as are specifically required by
the Mine Act, every operator of a coal or other mine shall establish and maintain such records,
make such records, and provide such information, as the Secretary ... may reasonably require from
time to time enable him to perform his functions under this Act .... " 8
The coal production reports, although not specifically required by the Act, have been
created and maintained by Freedom Energy in the ordinary course of business, and are reasonably
necessary for the Secretary to perform her functions under the Act. One such function, clearly
communicated to the Contestant in the Secretary's July 26, 2010 letter, is the investigation of
allegations of willful [or knowing] violations by agents of the operator. Similarly, Citation No.
8241282 essentially informs Contestant that the requested records were required to be produced
under section 103(h) so that the Special fuvestigator could perform official investigative duties
under section 110.
Furthermore, I find that the Secretary clearly advised Contestant during the August 4,
2010 conference call with the undersigned, and again in the instant Motion for Summary
Decision, that the contemporaneous production records taken during working shifts on the dates
surrounding the 104(d)(2) orders, are relevant to identify managers and agents who knew or had
information that would lead them to know of the violations occurring on May 17 and June 10,
2000. I further find that the Secretary has established that the requested coal production records
are relevant to the special investigation. The Secretary's affidavits establish that the records are
relevant to conducting an investigation under section 110 and that the Secretary is required to
perform such an investigation. Specifically, Special fuvestigator Howell's declaration establishes
that production reports produced by managers and agents of the operator provide information
relevant to the operation of the working sections of the mine and the belts carrying coal out of the
mine while active mining transpired. Declarant Dotson, a former mine superintendent at mines
owned and operated by Massey Energy, states that he reviewed coal production records
containing information relevant to operation of the section and coal belts to make daily resource
8

Contestant argues that it not required to turn over business records that are not required
to be kept by the Act. Contestant does not point to any authority that allows for such an
exemption to the requirements of section 103(h). fu fact, section 103(h) explicitly states that, "in
addition to such records as are specifically required by this Act, every operator of a coal or other
mine shall establish and maintain such records, make such reports, and provide such
information, as the [Secretary} may reasonably require ...." (emphasis added). fu these
circumstances, I reject Contestant's argument under Chevron USA Inc. v. Nat 'l Res. Defense
Council, 467 U.S. 837 (1984), that its contrary interpretation is clear and unambiguous.
32 FMSHRC Page 1505

allocation decisions, and therefore, the requested records may be relevant to the negligence of
mine management for the cited violations in the section 104(d)(2) orders.
Although Contestant attempts to counter the import of such declarations
with a rather vague and nonspecific affidavit from Mr. Pinson to the effect that the coal
production reports are different from those used since 2005 and contain some irrelevant,
redundant, or proprietary information, I find the declarations of Special htvestigator Howell and
Mr. Dotson sufficiently probative to establish the relevancy of the requested information to the
section 110 investigation at issue. Furthermore, I find that Contestant has not raised any specific,
legitimate and substantial confidentiality interest, and even had it done so, it has sought no
accommodation from the Secretary. 9 In fact, the Solicitor stated during the conference call that
the Secretary offered to keep the coal production reports confidential for Freedom of Information
Act (FOIA) purposes, but Contestant rejected any such accommodation. Nor has Contestant
submitted the coal production reports for in camera inspection, which I indicated that I would
order should counsel raise privilege or redaction issues. In sum, I conclude that the Secretary's
request for coal production reports satisfies the "reasonably required" standard of section 103(h)
oftheAct.
I also reject the Contestant's argument that the Secretary's request for coal production
records is an unreasonable search and seizure under the Fourth Amendment and must be
predicated on a warrant. In Donovan v. Dewey, 452 U.S. 594, 599 (1981 ), the Supreme Court
established that inspections of commercial property may be unreasonable "[I] if they are not
authorized by law or [2] are unnecessary for the furtherance of federal interests .... [or] [3] if
their occurrence is so random, infrequent, or unpredictable that the owner, for all practical
purposes, has no real expectation that his property will from time to time be inspected by
government officials." As explained above, the Secretary's production demand does not violate
the Fourth Amendment since it is authorized by law under section 103(h) of the Act and
necessary to further a federal interest, the attribution of appropriate individual liability during a
section 110 investigation predicated on 104(d)(2) orders. In addition, given the heavy regulation
under the Mine Act, and the specific language of section 103(h) and section 110(c) of the Act,
the Contestant lacks a reasonable expectancy of privacy, under the third prong of Dewey, in
contemporaneous business records that may show who had knowledge of violations for Section
110 investigation purposes, which investigations are required by statute from time to time,
particularly in the context of extant 104(d)(2) orders. Because the operator of a mine in such a
pervasively regulated industry cannot have a reasonable expectation of privacy in business
records to which Congress has allowed the agency access, a warrantless demand for such records
does not violate the Fourth Amendment. Cf. Peabody Coal Co., 7 FMSHRC 183 (Feb. 14, 1984)
(no search warrant necessary for special investigator to require mine operator to produce certain
accident and illness reports required to be kept under the Act, in response to section 103(g)
investigative request that was not a regular inspection and could not be predicted). As noted
above, the fact that the instant production records were not required, but have been created and

9

Cf. Pennsylvania Power and Light, 301 NLRB 1104, 1105-1106 (1991 ).
32 FMSHRC Page 1506

maintained by the operator, makes no difference under the express language of section 103(h)
because they have been shown to be reasonably necessary for the Secretary to perform her
investigative functions under section 110 of the Act.
Finally, I note that Contestant has challenged the "high" negligence designation set forth
in the July 26, 2010 Citation at issue. I find that the operator's level of negligence was cited
appropriately. In reaching this conclusion, I have considered the fact that MSHA is alleged to
have skipped counsel when issuing Citation No. 8241282 and its July 26, 2010 letter to
Contestant. Nevertheless, by July 26, 2010, through both said Citation and letter, Contestant was
apprised that the coal production reports were requested pursuant to section 103(h) so that the
MSHA special investigator could perform investigative functions under section 110. In the
August 4, 2010 conference call, counsel for the Solicitor again made clear that the requested coal
production reports were relevant, necessary and reasonably requested in order for Special
Investigator Howell to complete his Section 110 investigation and establish who was responsible
for working sections of the mine on the dates in question and attribute appropriate individual
agent liability, if any, under section 110(c) of the Act. Counsel for the Solicitor further made this
pmpose clear in her instant Motion for Summary Decision. Thus, counsel for Contestant's
representations in Contestant's August 18 Response at 5 that "[t]he Secretary has, to date,
steadfastly refused to explain how the requested records are necessary to her discharge of a
statutory duty," is a factual contention that lacks evidentiary support under Fed. R. Civ. P.
l l(b)(3), applicable in this forum by§ 2700.l(b) of the Commission's Procedural Rules. Rather,
to date, the Contestant has refused to abate the cited violation and has hindered the Secretary's
time-sensitive investigation under section 110 of the Act. See Howell Declaration at 3.
Having considered the entire record, I conclude that Respondent's adamant and continued
refusal to provide the requested records and work towards an accommodation with the Secretary
is designed to frustrate the imposition of potential individual liability for the section 104(d)(2)
violations being investigated and warrants a finding of high negligence. Accordingly, I find a
reduction in the challenged negligence designation is not warranted.

ORDER
fu light of the foregoing, the Secretary's Motion for Summary Decision is GRANTED,
the Contestant's Cross Motion for Summary Decision is DENIED, the Contestant's Motion for
Expedited Hearing is DENIED given my disposition of the Cross Motions for Summary
Decision and the fact that no daily penalty under section 11 O(b) has yet been imposed, and the
Contestant is ORDERED to produce the contemporaneous coal production reports for the dates

32 FMSHRC Page 1507

requested immediately to prevent any potential daily penalties under section 11 O(b) of the Act
from continuing to accrue should the Secretary seek to impose penalties under that section of the
Act for Contestant's continued intransigence.

~rt"l.tw I. t(t'~
Thomas P. McCarthy
Administrative Law Judge
Distribution: (Certified Mail)
Jeffrey K. Phillips, Esq. Steptoe & Johnson, PLLC, Bank One Center, 8th Floor, P.O. Box 1588,
Charleston, WV 25326-1588
Mary Sue Taylor, Esq., Office of the Solicitor, US Department of Labor, 618 Church St., Suite
230, Nashville, TN 37219-2456
/cp

32 FMSHRC Page 1508

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

September 13, 2010
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.

CARMEUSE LIME & STONE,
Respondent

CNIL PENALTY PROCEEDING

Docket No. KENT 2009-949-M
A.C. No. 15-07101-179364

Maysville Mine

ORDER GRANTING THE SECRETARY'S MOTION
FOR WITHDRAWL OF THE MOTION TO DISMISS
This captioned proceeding is before me upon a petition for assessment of civil penalty
filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (the Act) filed
against Carmeuse Lime & Stone (Carmeuse). 30 U.S.C. § 815(d). The petition seeks to impose
a civil penalty of $138.00 in satisfaction of Citation No. 6510263. This citation alleges a
violation of mandatory safety standard in 30 C.F.R. § 57.15005 that requires safety belts to be
worn where there is a danger of falling. Specifically, the citation states, in pertinent part, "[a]
vendor/subcontractor employee from Excel Air & Oil Equipment, Inc., [Excel] was observed
standing atop the Mobiltrans HD 30 bulk oil tank while not using suitable fall protection. He
was installing a flow meter in one of the delivery lines .... "
On May 7, 2010, the Secretary filed a motion to dismiss this case, based on the erroneous
belief that the case should be dismissed because Excel was a contractor. On May 13, 2010, the
Secretary filed a motion to withdraw her original motion to dismiss because she now believes
that Excel is a vendor. On May 25, 2010, Carmeuse filed a motion in opposition to the
Secretary's motion to withdraw her motion to dismiss admitting that Excel is a contractor.
Section 3(d) of the Mine Act provides that a mine operator includes any independent contractor
performing services at a mine. 30 U.S.C. § 802(d).

Whether Excel is a vendor or a contract is a distinction without a difference. Excel is an
independent contractor (mine operator) as contemplated by section 3(d) by virtue of the
performance of its services at the mine.
32 FMSHRC Page 1509

The Court of Appeals for the D.C. Circuit held that the Secretary's decision to cite the
owner-operator of a mine and/or its independent contractor, is an exercise of her prosecutorial
discretion that is unreviewable. Secy ofLabor v. TwentymileCoal Co., 456 F.3d 151 (D.C. Cir.
2006). Consequently, the Secretary may cite Carmeuse for alleged safety violations of its
independent contractor Excel. Accordingly, IT IS ORDERED that the Secretary's motion to
withdraw its motion to dismiss IS GRANTED.

-----~c= c: <I:; £.1
Jerold Feldman
Administrative Law Judge
Distribution:
Melody S. Wesson, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
135 Gemini Circle, Suite 212, Birmingham, AL 35209
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222
/rps

32 FMSHRC Page 1510

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

September 17, 20 l 0
CNIL PENALTY PROCEEDINGS

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

Docket No. KENT 2008-592
A.C. No. 15-09636-139419
Docket No. KENT 2008-784
A.C. No. 15-09636-144081

v.
BLUE DIAMOND COAL COMPANY,
Respondent,

Docket No. KENT 2009-6
A.C. No. 15-09636-161762 A

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
GARY L. JENT, Employed by BLUE
DIAMOND COAL COMPANY,
Respondent.

Mine: #77

ORDER DENYING RESPONDENT'S DISPOSITIVE MOTION ON FINDINGS OF
FACT AND CONCLUSIONS OF LAW PREVIOUSLY DECIDED
ORDER DENYING RESPONDENT'S MOTION TO EXCLUDE
WITNESS MICHAEL GAUNA
This proceeding is brought by the Secretary of Labor against Respondent, Blue Diamond
Coal Company, pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977
(''the Act"), 30 U.S.C. § 815(d), and 29 C.F.R. §§ 2700.25-.31. On July 23, 2010, Respondent
filed its Dispositive Motion on Findings of Pact and Conclusions of Law Previously Decided
("Motion for Collateral Estoppel"). Respondent filed its prehearing report on August 3.
Pursuant to a request by the Secretary, her prehearing report deadline was extended to August 11
due to counsel for the Secretary being out of town for several hearings. Due to a death in my
family, I held a teleconference with counsel for all of the parties on August 9, 2010, to reschedule
this matter's hearing date for October 26-29, 2010. Given counsel for the Secretary's hearing
schedule coupled with the new October hearing date, I also permitted the Secretary to file both
her prehearing report and response to Respondent's motion by August 17, 2010. The Secretary
filed her response on August 11 and her prehearing report on August 17. Respondent filed the
Motion to Exclude Witness Michael Gauna ("Motion to Exclude Witness") on August 23, 2010.
The Secretary responded to the Motion to Exclude Witness on September 2, 2010.
32 FMSHRC Page 1511

I. MOTION FOR COLLATERAL ESTOPPEL
Respondent argues that collateral estoppel bars relitigation of whether it failed to
maintain 9,000 cubic feet per minute ("CFM'') at the last open crosscut ("LOCC''). (Resp't Mot.
for Collateral Estoppel 3-4.) That issue underlies Order No. 4220150, which is in dispute in this
case. In making its argument, Respondent relies on Administrative Law Judge Michael E.
Zielinski's opinion in Blue Diamond Coal Co. (Blue Diamond/), 32 FMSHRC 581 (May 2010)
(ALJ). Respondent stresses that Blue Diamond I considered whether the violation underlying
Order No. 7521769 was highly likely to result in a fatal injury because the absence of the
permanent stopping resulted in the failure to maintain 9,000 CFM at the LOCC. (Resp't Mot. for
Collateral Estoppel 2.) Respondent observed that Judge Zielinski made findings of fact and
conclusions oflaw regarding the amount of air at the LOCC. 1 (Id. at 2-3.) Because Order No.
4220150 in this case alleges the failure to maintain 9,000 CFM at the LOCC, Respondent argues
it should not have to relitigate this issue. 2 (Id. at 3-4.) Respondent further asserts that the
remaining elements of collateral estoppel are satisfied. (Id. at 3.)
The Secretary responds that the issues presented in Blue Diamond I and in the present
matter are not the same, as they involve different legal standards. (Sec'y Resp. to Mot. for
Collateral Estoppel 4-5.) The Secretary emphasizes that Blue Diamond I evaluated
Respondent's missing and improperly constructed stoppings at several locations in the mine,
whereas the underlying violation in this case concerns the ventilation at the face of the mine. (Id.
at 5.) The Secretary also argues that Judge Zielinski purposefully chose not to resolve the facts at
issue in Order No. 4220150. (Id. at 5-6.)
In assessing an assertion of collateral estoppel, the Commission has stated that the
"[i]dentity of issue is a fundamental element that must be satisfied before collateral estoppel may
be applied." Bethenergy Mines, Inc., 14 FMSHRC 17, 26 (Jan. 1992) (citing Continental Can
Co., U.S.A. v: Marshall, 603 F.2d 590, 594 (7th Cir. 1979)). In the context of issue preclusion,
'"[i]ssues are not identical if the second action involves application of a different legal standard,
even though the factual setting of both suits be the same.'" 18 Charles Alan Wright et al.,

1

In support of this contention, Respondent attached to its motion a copy of Blue
Diamond I indicating the findings it believed were pertinent to resolving this issue. I have
considered this information and do not agree that the issues involved in these two orders are the
same for the purposes of collateral estoppel.
2

Respondent also quoted Order No. 7521769, stating '"Order #4220150 is issued for
failure to comply with the approved ventilation plan on the 011/MMU (failure to maintain 9,000
cfm at the last open crosscut)."' (Resp't Mot. for Collateral Estoppel at 2.) Order No. 7521769's
mere reference to Order No. 4220150 for failure to maintain 9,000 CFM at the LOCC does not
dispose of this issue. As discussed below, the issues involved in Order No. 4220150 and Order
No. 7521769 are not the same.
32 FMSHRC Page 1512

Federal Practice and Procedure§ 4417, at 449 (2d ed. 2002) (quoting Peterson v. Clark Leasing
Corp., 451 F.2d 1291, 1292 (9th Cir. 1971)).
To apply collateral estoppel, the issues in the previous and the present actions must be
identical beyond reasonable doubt. In 2001, the Commission assessed whether collateral
estoppel may apply to an order specifically alleging a failure to identify kettle bottoms by
location based on a nearly contemporaneous citation for roof defects involving multiple
conditions, such as kettle bottoms. Eagle Energy, Inc., 23 FMSHRC 1107, 1110-11, 1115 (Oct.
2001). The Commission.reasoned that "it is apparent from comparing the uncontested citation
and the contested orders ... that there is a lack of identity of issues." Id. at 1115.
Citing only general points of law regarding collateral estoppel, Respondent has not
demonstrated the required identity of issues. Here, the previous order charged Respondent with
failing to maintain permanent stoppings under 30 C.F.R. § 75.333(b)(2). The present order
alleges that Respondent breached its ventilation plan under§ 75.370(a)(l). Judge Zielinski
discussed the air flow at the LOCC only insofar as it related to whether No. 7521760 constituted
an S&S violation resulting from an unwarrantable failure to comply with § 75.333(b)(2). Blue
Diamond I, 32 FMSHRC at 583-91. Judge Zielinski did not evaluate the breach of the
ventilation plan alleged in the order at issue in this case. Id. at 584. He stated that "[Order No.
4220150] is not at issue in this proceeding." Id. Instead, he discussed the airflow at the LOCC
"in tenns of the missing stopping" at issue in Order No. 7521760. Id. at 5. Because these two
orders involve incongruent factual allegations and different legal standards, Respondent's motion
must be denied in accordance with Eagle Energy. Indeed, taken to its logical conclusion, to rule
to the contrary would suggest that the Secretary has the broad power to invoke collateral estoppel
against operators based on past related citations and orders.

II. MOTION TO EXCLUDE WITNESS
Respondent argues that one of the Secretary's witnesses, Michael Gauna, should be
excluded from the hearing. (Resp 't Mot. to Exclude Witness 1.) Respondent contends that the
introduction of Mr. Gauna as a witness constitutes an unjustified, last-minute delay because the
Secretary had not disclosed him as a possible witness until her August 17 prehearing report. (Id.
at 1.) Moreover, the Secretary's prehearing report is Respondent's only source of information
concerning Mr. Gauna. (Id. at 1-2.) According to Respondent, scheduling the witness
depositions took great effort, and given the timing of Mr. Gauna's disclosure, it would be
prejudiced ifl allowed Mr. Gauna's testimony. (Id. at 2.)
The Secretary responds that she must rely on Mr. Gauna's testimony to counter the
testimony of Respondent's expert witness, Dr. David Newman. (Sec'y Resp. to Mot. to Exclude
Witness 2.) The Secretary had not even heard of Respondent's intent to call Dr. Newman until
July 2010 after Respondent had deposed all of the Secretary's witnesses. (Id. at 1.) Within two
weeks of receiving Respondent's prehearing report identifying Dr. Newman as a witness, the
Secretary concluded she would need Mr. Gauna to address Dr. Newman's assertions. (Id. at 2.)

32 FMSHRC Page 1513

The Secretary argues that because I rescheduled this case's hearing for a later date, Respondent
will not be prejudiced. (Id.) The Secretary further asserts that denying Mr. Gauna's testimony
will hurt her response to Dr. Newman and preclude my consideration of relevant evidence. (Id.
at 3.)
Under 29 C.F.R. § 2700.55, the administrative law judge has broad power to rule on
evidentiary issues. Although the Secretary did not alert Respondent about calling Mr. Gauna
until August 17, Respondent has more than a month before the hearing date to depose him.
Moreover, the Secretary will call Mr. Gauna in response to Dr. Newman, of whom the Secretary
did not receive formal notice until August 3. Barring the testimony of Mr. Gauna would limit the
availabil~ty of relevant evidence that would be helpful to my understanding of the case. Based on
these facts, I deny Respondent's motion.
I am, nevertheless, sensitive to the demands of scheduling depositions. I am also aware
that Congress's recent supplemental appropriations bill has given the Secretary extra resources.
Therefore, the Secretary shall make Mr. Gauna available for deposition as early as possible
before the hearing date.

ID. ORDER
Respondent's Motion for Collateral Estoppel is DENIED. Respondent's Motion to
Exclude Witness is DENIED. fu addition, the Secretary shall make Mr. Gauna available for
deposition by Respondent at the earliest date possible.

~~0
Alan G. Paez
Administrative Law Judge

Distribution List: (Via Facsimile and U.S. Mail)
Tom Grooms, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219-2440
Melanie Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, 2333 Alumni Park Plaza,
Suite 310, Lexington, KY 40517
Randall S. May, Esq., Barret, Haynes, May & Carter, P.S.C., 113 Lovern Street, P.O. Box 1017,
Hazard, KY 41701-1017
/jts

32 FMSHRC Page 1514

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

October 27, 2010
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR, MSHA
on behalf of HARRY LEE BECKMAN,
Complainant

Docket No. WEVA 2009-1526-D
Case No. MORG-CD-2008-10

v.
Mountain View Mine
Mine ID: 46-09028

METTIKI COAL (WV), LLC,
Respondent

ORDER GRANTING METTIKI'S MOTION
TO FILE REPLY BRIEF
AND

ORDER DENYING SECRETARY'S
MOTION TO STRIKE
The hearing in this discrimination matter, brought by the Secretary of Labor ("Secretary")
on behalf of Harry Lee Beckman against Mettiki Coal, LLC ("Mettiki"), was conducted on
July 21 through July 23, 2010. Simultaneous post-hearing briefs were filed on October 14, 2010.
On October 20, 2010, Mettiki filed a Motion for Leave to File Reply Brief. The Secretary
opposes Mettiki's motion.
While not a matter of right, motions for leave to file reply briefs are liberally granted.
Accordingly, IT IS ORDERED that Mettiki's Motion for Leave to File Reply Brief
IS GRANTED. IT IS FURTHER ORDERED that reply briefs shall be filed simultaneously
on November 15, 2010. If the Secretary declines to file a reply brief, the Secretary's counsel
should so advise my office atjlevine@finshrc.gov on or before November 15, 2010.
Also for consideration is the Secretary's October 20, 2010, Motion to Strike Appendix A
of Mettiki 's Post-Hearing Brief concerning MSHA' s investigation report of a February 17, 2006,
fatal diesel-powered locomotive accident that occurred at a different Mettiki mine. The accident
occurred when the operator of the locomotive was struck by a longwall shield that protruded
from a parked lowboy railcar that was located adjacent to the path of the locomotive. Mettiki
seeks to include this accident report to demonstrate its heightened awareness of the hazard posed
by locomotive accidents. (Mettiki Br. at 44, fu. 35).
The Secretary seeks to strike this accident investigation report because it was not
admitted into evidence at the hearing. Mettiki opposes the Secretary's Motion to Strike because
the accident report is a public document available on MSHA's website.

32 FMSHRC Page 1515

The accident report is distinguishable from the locomotive accident in this case that
concerned a rear-end collision with a lowboy. However, it is relevant since the accident was
described in testimony at the hearing. (Hrg. Tr. 938-39). It is also relevant as an illustration that
the unsafe operation of a diesel-powered multi-ton locomotive is hazardous.
As noted by Mettiki, the accident report is a public document, the contents of which were
referenced in testimony. Moreover, the Secretary does not assert that it is prejudiced by the
inclusion of this document in Mettiki's brief. Finally, it is surprising that the Secretary would
seek to strike the accident report because it merely states the obvious, i.e., the hazardous nature
of locomotive accidents. Moreover, it is troubling that the Secretary would take a restrictive,
rather than an inclusive, approach to the evidence that should be considered in this matter.
Accordingly, IT IS ORDERED that the Secretary's Motion to Strike IS DENIED.

Administrative Law Judge
Distribution: (Electronic and Certified Mail)
Samuel Lord, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209
Willa B. Perlmutter, Esq., Crowell & Moring, LLP, 1001 Pennsylvania Ave, NW,
Washington, DC 20004
/jel

1516

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE CHIEF ADMINISTRATIVE IJ>..W JUDGE
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021
TELEPHONE: 202-434-9958 I FAX: 202-434-9949

October 15, 2010
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY ANDHEALTH
ADMINISTRATION, (MSHA),
on behalf of Jose A. Chaparro,
Complainant,

Docket No. SE 2010-434-DM
SE MD 2010-02

Mine: CAB Aggregates

v.
COMUNIDAD AGRICOLA
BIANCHI, INC.,
Respondent,
Reynat Jimenez,
Respondent,
Manuel Menendez
Respondent,
Eduardo Martinez
Respondent

ORDER
Before: Judge Barbour

Order Denyine Respondents' Motion to Dismiss,

On October 07, 20 I 0 Respondents filed a Motion to Dismiss. The Secretary filed a
responsive motion on October 13, 2010. Respondents make two arguments in their Motion
to Dismiss. First, the Respondents argue that the claims against Reynat Jimenez, Supervisor
of the Mine; Manuel Menendez, President ofCommunidad Agricola Bianchi, Inc. ("CAB");
and Eduardo Martinez, Chairman of the Board of Directors for CAB as individuals;
should be dismissed because these individuals are neither "operators" nor "persons" under the
Federal Mine Safety and Health Act of 1977 ("Mine Act" or "Act"),
30 U.S.C. §§ 815, 820. Respt. Mt. to Dismiss 6. The Secretary contends that
the individual respondents are "operators" or "persons" under the
32 FMSHRC Page 1517

Mine Act. See Sec. Opp'n To Respt. Mt. to Dismiss 5. The Secretary also argues that
Respondents' Motion to Dismiss should be denied because it is actually a motion for summary
decision and does not meet the summary decision standard set forth in Commission Rule 67. Id.

The Federal Rules of Civil Procedure provide guidance on the standard for motions to
dismiss since the Commission's procedural rules do not supply
a standard. See 29 C.F.R. § 2700.l(b)(2008). A 12(b)(6) motion to dismiss for failure to state a
claim raised in a motion rather than in a pleading, as was the case here,
is treated as a motion for summary judgment. Fed. R. Civ. P. 12(c). In order to prevail on
summary decision under Commission Rule 67 Respondents must demonstrate that there is no
genuine issue of material fact and that Respondents are entitled to judgment as a matter of law.
I find that the Respondents' motion is actually a Motion for Summary Decision and that the
motion does not meet the summary decision standard because there is a genuine issue of material
fact regarding whether Mr. Jimenez, Mr. Menendez, and Mr. Martinez are "operators" or
"persons" under the Act. For the reasons stated above, I deny Respondents' Motion to Dismiss.
However, this order does not foreclose litigation of this issue at the hearing. The Secretary is still
required to demonstrate that Mr. Jimenez, Mr. Menendez, and Mr. Martinez are "operators" or
"persons" within the meaning of the Act.
Second, Respondents argue that the Secretary's July 26, 2010 Motion for Leave to
Supplement and Amend the First Amended Complaint was untimely filed. Respt. Motion to
Dismiss 5. However, I already found the Secretary's motion to be both timely and
non-prejudicial when I granted the motion in my July 14, 2010 Order and Respondents have not
given me cause to revisit that ruling.

Secretary's Motion in Limine to Admit into Evidence the Deposition Transcripts of Reynat
Jimenez, Eduardo Martinez, and Manuel Menendez and Respondents' Request to
Admit into Evidence the Deposition Transcript of Jose A. Chaparro

On October 04, 2010 the Secretary filed a Motion in Limine to Admit the Deposition
Transcripts of Reynat Jimenez, Eduardo Martinez, and Manuel Menendez. In the motion the
Secretary requests that their deposition testimony be admitted both against them as individual
respondents and against CAB. Sec. Mot. in Limine 2. She argues that Rule 32 of the Federal
Rules of Civil Procedure permits the use of depositions against a party or its agents for any
purpose and that use of the depositions would make the hearing more efficient by eliminating the
need for certain testimony. Respondents contend in their responsive motion that admitting the
deposition testimony would be inefficient, but request that if the deposition testimony of Jimenez,
Martinez, and Menendez is admitted the deposition testimony of Jose A. Chaparro also be
admitted. Respt. Resp. Mot. 3. On October 14, 2010 the Secretary orally advised the Court that
she opposes the Respondents' request to admit the deposition testimony of Chaparro.

32 FMSHRC Page 1518

It is not unusual in a proceeding such as this for a party to use deposition testimony for
impeachment pmposes, and, of course, the parties may avail themselves of the opportunity
throughout the course of the forthcoming hearing. What is unusual is to enter a deposition into
evidence. In fact, the Federal Rules of Evidence, which frequently guide Commission
proceedings, in general allow the admission of such testimony into evidence only if the moving
party can show the declarant is unavailable as a witness. Fed. R. Evid. 804(b). Here, each of the
deponents apparently is available to testify in person, and it is well established that in person
testimony, if available, is preferred to deposition testimony. Being guided by these principles,
I conclude that the parties' motions to admit the deposition transcripts as evidence should be
denied, and that the case should proceed in the normal manner with both sides presenting their
cases through the direct testimony of witnesses before the presiding judge. For this reason,
I deny the Complainant's motion and the Respondents' request.

Respondents' Motion in Limine and (sic] to Take
Administrative Notice of Puerto Rico Statute
On October 14, 2010 Respondents filed a Motion in Limine and [sic] to Take
Administrative Notice of Puerto Rico Statute. In the motion Respondents requested that I take
judicial notion of the three Puerto Rican statutes cited in his motion. The Secretary orally advised
the Commission that she opposes the Respondents' Motion in Limine. The Secretary's objection
is noted, but I have determined that the court will take judicial notice of these laws as requested
by the Respondents. The relevancy, if any, of these laws to the issues at hand and their effect, .
if any, on the applicability of Mine Act, remains an open question.

JJ~d/./l-- L

DavidF.~~

Administrative Law Judge -.._,_

Distribution:
Allison Bowles, Esq., Marc G. Sheris, Esq., U.S. Department of Labor, Office of the Solicitor,
201 Varick Street, Room 983, New York, NY 10014
Rafael Sanchez Hernandez, Esq., First Bank Building, Suite 320, 1519 Ponce de Leon Ave.,
San Juan, Puerto Rico 00909
/ca

32 FMSHRC Page 1519

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE lAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, DC 20001-2021

October 27, 2010
DISCRIMINATION PROCEEDING

JUSTIN NAGEL,
Complainant

Docket No. WEST 2010-464-DM
WEMD09-11

v.
NEWMONT USA LIMITED,
Respondent

Mine ID: 26-02512
Leeville Mine

ORDER CERTIFYING INTERLOCUTORY DISCOVERY RULING
TO THE COMMISSION
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
FOR FAILURE TO COMPLY WITH DISCOVERY ORDERS
AND REPEATED LACK OF CANDOR WITH TRIBUNAL
ORDER STAYING DISMISSAL PENDING COMMISSION RULING
ON CERTIFIED INTERLOCUTORY DISCOVERY ORDER
This matter is before me upon a discrimination complaint filed by Justin Nagel
("Complainant") pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of
1977, as amended. Section 105(c)(l) of the Act prohibits operators from discharging or
otherwise discriminating against miners who have engaged in safety-related, protected activity.
A discrimination complaint under section 105(c )(3) of the Act may be filed by the complaining
miner if the Secretary, after investigation conducted pursuant to section 105(c)(2) of the Act, has
determined that the provisions of section 105(c)(1) of the Act have not been violated.
Complainant Justin Nagel appears prose in this matter, as the Secretary of Labor decided not to
pursue Nagel's discrimination allegations under section 105(c)(2).
To facilitate the Commission's review of this matter, a detailed outline of the salient
procedural motions and Administrative Law Judge (ALJ) orders leading up to my dismissal of
this proceeding is set forth below.

I. Procedural Background
A.

The Complaint and Order to Answer

On January 5, 2010, Complainant Nagel filed a complaint of discrimination under section
32 FMSHRC Page 1520

105(c)(3) of the Federal Mine Safety and Health Act ofl977, as amended. On January 6 and
February 16, 2010, the Commission sent a letter requesting certain material from Complainant
before the case could be processed. More specifically, Complainant was requested to provide
proof that he had served Responded with a copy of his Complaint. On March 16, 2010, Chief
Judge Lesnick issued an Order to Respondent to Answer the Complaint.

B.

Order Denying Respondent's Motion to Dismiss

On March 26, 2010, Respondent filed a Motion To Dismiss for failure to state a claim
upon which relief could be granted. On April 30, 2010, the Complainant filed a letter with the
Commission explaining his service of the Complaint and attaching as Exhibit A, a copy of an
audio recording of a meeting that Complainant had with Respondent's management
representatives Thayne Church, Monty Holland, and Mike Woodland concerning certain events
surrounding his termination on or about August 20, 2009. On May 28, 2010, Chief Judge
Lesnick issued an Order Denying Respondent's Motion to Dismiss.
On June 2, 2010, this discrimination proceeding was assigned to me. On July 2, 2010, I
issued a Pre-Hearing Order in this proceeding. Also on July 2, 2010, I issued an Order
Consolidating Cases and Denying Complainant Motion for Temporary Reinstatement.
On June 10, 2010, Respondent served its Answer on Complainant. 1

C.

Initial Conference Calls, Extension for Time to Procure Counsel, and Order
Confirming Discovery Schedule and Trial Dates

On August 3, 2010, I participated in a conference call with Mr. Nagel and Respondent's
counsel to discuss issues related to this matter, particularly Mr. Nagel's request for an extension
of time to obtain an attorney and file a pre-conference statement. His request for an extension of
time was granted during the conference call. At that time, Mr. Nagel indicated that he was "very
close" to obtaining an attorney based on several referrals. Respondent's counsel indicated that
discovery from Mr. Nagel was due on August 16, 2010. Mr. Nagel indicated that he thought he
would have an attorney by that time. Accordingly, I scheduled another conference call for
August 17, 2010.
On August 17, 2010, I participated in another conference call between Mr. Nagel and
counsel for Respondent. Mr. Nagel indicated that he had been unsuccessful in obtaining an
attorney to represent him in this matter despite contact with the referrals and with two state bar
associations. Nevertheless, he expressed confidence that he could obtain an attorney by August
31, 2010. Otherwise, he assured the Court that he was prepared to proceed prose and represent
himself at trial, which was scheduled for October 25 and 26, 2010 in Elko, Nevada.

1

Upon inquiry from my office this date that the Answer had apparently not been filed with
the Commission, Respondent filed its Answer with the Commission on October 27, 2010.
32 FMSHRC Page 1521

Respondent's counsel argued to the Court that Mr. Nagel's responses to discovery were
inadequate and non-responsive. Counsel further indicated that Respondent had been served with
discovery requests from Mr. Nagel. Based on the discussion at the conference call concerning
the issues of legal representation, outstanding discovery, and trial dates, I informed the parties
that I would issue an order codifying the parties' agreements and my instructions.
On August 19, 2010, I issued an Order Confirming Conference Call Agreements and
Discovery Schedule. That order set this matter for trial, as follows:
A conference call will be held on August 31, 2010 at 4:00 pm E.S.T. (2:00 pm
M.S.T., 1:00 pm P.S.T.) to discuss Mr. Nagel's continuing efforts at obtaining
counsel, the status of discovery, and any remaining pre-hearing issues related to this
matter.

Mr. Nagel has agreed to acquire legal representation by August 31, 2010, or to
continue to represent himself in this matter.
Mr. Nagel shall provide full and complete responses to Newmont's discovery
requests no later than September 14, 2010. Privileged information, and the names
of other miner witnesses, need not be disclosed at this time.
Newmont shall provide responses to Mr. Nagel's discovery requests no later than
September 21, 2010.
Newmont will take Mr. Nagel's deposition on September 28, 2010 in Spokane,
Washington [later changed to Elko, Nevada].
A hearing on the merits will take place in Elko, Nevada, on October 25-26, 2010. A
Notice of Hearing containing further details will be issued to the parties after the
August 31, 2010 conference call.
The parties are hereby ORDERED to comply with the above schedule and
agreements.

D.

Complainant's inability to Procure Counsel
and Agreement to Proceed Pro Se

On August 31, 2010, I held a conference call with the parties. Complainant Nagel
indicated that despite his best efforts, he had been unable to obtain counsel in this matter and he
would represent himself.

E.

The Onslaught of Procedural Motions and ALJ Orders

32 FMSHRC Page 1522

On September 9, 2010, Respondent filed a Motion For Partial Summary Decision or to
Strike or Limit Certain Claims. On September 22, 2010, Complainant Nagel filed a response.
On September 27, 2010, I issued an Order Conditionally Limiting Certain Claims and Granting
Partial Summary Judgment on certain claims. My Order set forth the claims of interference and
discrimination at issue in this case.

On September 20, 2010, Complainant filed a Motion to Dismiss [Counsel] for Ethics
Violations. On September 23, 2010, Complainant filed a Motion to [Amend] and Correct
Motion to Dismiss [Counsel] for Ethics Violations. On September 24, 2010, Counsel for
Respondent filed a Statement in Opposition to Complainant's Motion to Dismiss Patton Boggs
for Ethics Violation[s]. On September 30, 2010, Complainant filed a Disciplinary Referral with
the Commission. On October 5, 2010, counsel for Respondent filed a Statement in Opposition to
Complainant's Disciplinary Referral.
During a conference call between the parties on September 24, 2010, Respondent
requested that they be allowed to hire private security for the scheduled September 28, 20 l 0
deposition of Complainant, and that all participants in said deposition submit to a reasonable
search upon entry. I orally granted that request, as reasonable, to be followed up by written
Order, which Order Granting Respondent's Request For Security issued on October 13, 2010.
On October 20, 2010, I issued an Order Denying [Complainant's] Motion to Require Respondent
to Reduce its Oral Motion for Security to Writing.
In the interim, on September 24, 2010, Respondent filed a Motion to Compel Production
of Recorded Conversations that Complainant had made with representatives of Newmont
management concerning discussions or meetings related to allegations of interference and
discrimination, as alleged in his Complaint.
On September 28, 2010, Complainant was deposed by Counsel for Respondent. During
the deposition~ counsel for Respondent asked Complainant how many tape recordings of
conversations Complainant had with Respondent's management about issues in this case.
Complainant answered that he thought that he had five tapes in his possession.
On October 5, 2010, Complainant filed a notarized Affidavit pursuant to Commission
Rule 80, requesting that I withdraw and recuse myself from hearing this matter on the grounds of
bias and impossibility for a fair trial.
On October 13, 2010, Complainant Nagel filed his Response to Newmont's Motion To
Compel Production of Recorded Conversations.
On October 14, 2010, Complainant Nagel filed a Motion for Partial Summary Judgment.
On October 14, 2010, Respondent filed its Opposition. On October 14, 2010, Complainant filed
a Response to the Opposition. On October 15 and 21, 2010, respectively, Complainant Nagel
filed Amendment to Partial Summary Judgment and [Second] Amendment to Partial Summary

32 FMSHRC Page 1523

Judgment, with 2008 employee handbook attached. As further set forth below, on October 21,
2010, I issued an Order Denying Complainant's Motion for Partial Summary Judgment.
In the interim, on October 15, 2010, Complainant served Respondent with a motion
entitled "Motion to Review Decision of Releasing the Number of Tapes and Strike from
Deposition Record." In his motion, Complainant states that he incorrectly stated the number of
tapes in his possession during his deposition in order to "protect the integrity of criminal
investigation and any informants that may or may not be on audio recordings." This motion
eventually was filed with the Commission on October 21, 2010, although the motion had been
brought to my attention as Exhibit B to Respondent's Response to Complainant's Motion for
Continuance and Motion to Dismiss, discussed below. I denied Complainant's Motion in my
October 22, 2010 Order Denying Motion to Strike Testimony From Deposition Record.
Also on Friday, October 15, 2010, I convened a conference call with the parties to discuss
settlement prospects and any outstanding discovery matters. Respondent's counsel indicated that
Mr. Nagel had not provided Respondent with a copy of his affidavit motion that I recuse myself.
I informed the parties that my clerk would send Respondent a copy. My clerk did so.
Because I was concerned this pro se Complainant had made one-party consent recordings
that may be illegal under Nevada law and implicated Fifth Amendment self-incrimination issues,
I further informed the parties that I had researched Nevada law and concluded that the act of
producing in-person recordings, which are legal in Nevada, raised no Fifth Amendment privilege
against self-incrimination. Accordingly, I ordered Nagel to produce all in-person recordings, but
not any telephone recordings, as the later appeared to be illegal under Nevada law {see Lane v.
Allstate Insurance Co., 969 P.2d 938 {Nev. 1998)), and the act of production itself implicated
self-incrimination concerns. I also ordered Nagel to provide answers to interrogatories 13 and
15. I informed the parties that my written Order compelling discovery would issue on Monday,
October 18, 2010.
During the conference call on October 15, 2010, Mr. Nagel agreed to overnight copies of
the five audio recordings to Respondent's counsel for delivery on Monday, October 18, 2010.
Complainant Nagel assured the Court and Respondent that he would do so. Mr. Nagel further
agreed to provide answers to interrogatories 13 and 15 by said date. To preclude premature
disclosure of any potential miner witnesses under Commission Rule 62, the parties agreed to a
redaction procedure, which was incorporated into the terms of my Order compelling discovery.
On October 18, 2010, I issued my Order Partially Granting [Respondent's] Motion to
Compel Production of Recorded Conversations and Order Granting [Respondent's] Motion To
Compel Answers to Interrogatories 13 and 15. On October 18, 2010, I also issued an Order
Denying Complainant's Motion for Recusal.
On October 18, 2010, Complainant Nagel did not provide Respondent's counsel with
answers to Interrogatories 13 and 15 or provide Respondent's counsel with the in-person audio
recordings, as he had agreed to do during the conference call with the undersigned on October
32 FMSHRC Page 1524

15, 2010.
On October 19, 2010, Complainant Nagel filed a Motion for New Hearing Date. In his
motion, Complainant Nagel requested that the upcoming hearing in this matter, scheduled for
October 25-26, 2010 in Elko, Nevada, be postponed.

F.

Respondent's Instant Motion to Dismiss

On October 19, 2010, Respondent filed a Response to Complainant's Motion for
Continuance and the instant Motion to Dismiss. Respondent opposed Complainant's request that
the hearing be postponed and moved to dismiss this proceeding due to Mr. Nagel's repeated
failure to comply with my Orders pursuant to Commission Rule 59. Respondent argues that
Complainant has demonstrated a pattern of unwillingness to comply with direct orders from the
undersigned and is not likely to abide by my orders or Commission procedural rules in any future
proceeding, including the impending hearing, no matter when it may be scheduled. Because the
Complainant has demonstrated clear contempt of my direct orders and Commission rules,
Respondent argues that this discrimination proceeding should be dismissed.
More specifically, the Respondent argues that when a party refuses to comply with an
order directing the production of discoverable information, the Judge has the authority under
Commission Rule 59 to "make such orders with regard to the failure as are just and appropriate,
including ... dismissing the proceedings in favor of the party seeking discovery." Respondent
argues that Complainant has continually abused the discovery process and refused to abide by my
orders and Commission procedural rules. While the Respondent acknowledges that dismissal is
considered a harsh sanction, Respondent argues that Complainant has demonstrated that he
considers himself to be above the authority of this tribunal, and therefore un-sanctionable. As a
result, Respondent contends that any sanction short of dismissal is insufficient to remedy the
continual contempt that the Complainant has demonstrated for the authority of this tribunal and
Commission rules and procedures.
In its Motion to Dismiss, Respondent enumerates how the Complainant's alleged
contempt for ALJ authority is evidenced by the following instances of refusal to comply with
ALJ orders. I set forth Respondent's specific arguments below:

1.

Refusal to Respond to Interrogatories Despite [Judge] Orders

Respondent contends that the Complainant has refused to respond to
Respondent's interrogatories, despite four separate orders to do so. Respondent notes
that Newmont issued its interrogatories to Mr. Nagel on July 15, 2010. Respondent
states that after Mr. Nagel neglected to respond to two interrogatories, Nos. 13 and
15, the ALJ required him to do so. The Respondent states that during a conference
call held on September 24, 2010, the ALJ issued his third order to Mr. Nagel to
respond to Respondent's interrogatories Nos. 13 and 15. (See Ex. A, attached to

32 FMSHRC Page 1525

Respondent's Motion). Respondent further notes that on September 29, 2010, the
Respondent e-mailed the Complainant, alerting him to the fact that his ordered
responses were still outstanding. Id. Respondent further notes that during the
conference call on October 15, 2010, the ALJ issued, for the fourth time, an order
requiring the Complainant to provide the outstanding interrogatory responses. (See
Ex. B, attached to Respondent's Motion). Respondent asserts that as of October 19,
2010, six days prior to trial, the Complainant has yet to respond to the AI.J's orders.

2..

Refusal to Complywith [ALJ] Order by
Untruthfully Responding to Deposition Questions

The Respondent argues that the Complainant refused to truthfully answer
deposition questions under oath because he disagreed with the AI.J's order to
respond to the questions posed. Specifically, Respondent notes that during his
deposition, Mr. Nagel was asked about the tape recordings that he made of
conversations with Newmont supervisors and management while he was employed
at Newmont. Respondent states that Mr. Nagel refused to answer questions
pertaining to those tapes. Respondent notes that pursuant to prior agreement, the
parties contacted the ALJ, who ordered that Mr. Nagel respond to the questions, and
Mr. Nagel provided answers during the deposition. (See Tr. 214:5-15, 217:1-10,
attached as Ex. C to Respondent's Motion). Respondent points out that subsequent
to the deposition, on October 15, 2010, Mr. Nagel moved to strike his deposition
testimony responsive to the questions at issue because he had not truthfully answered
the questions regarding the number of tape recordings that he has in his possession.
(See Ex. D, attached to Respondent's Motion). Respondent argues that Mr. Nagel
has taken the position that he was not required to give a truthful answer at deposition
because he disagreed with the ALJ order. Id.
Respondent argues that Mr. Nagel has likewise demonstrated contempt for
the discovery process and procedures by refusing to truthfully answer deposition
questions. · Respondent argues that in his deposition testimony, Mr. Nagel
specifically stated, under oath, that he intended to call six miner-witnesses at trial.
(See Ex.Cat Tr. 239:21-25, attached to Respondent's Motion). Respondent notes,
however, that in his recently filed pre-hearing statement, 2 Mr. Nagel identifies nine
separate unnamed individuals as confidential miner witnesses. (See Ex. E, attached
to Respondent's Motion). Respondent states that in order for Newmont to
successfully prepare its case for trial, it has the right to depose Mr. Nagel's miner
witnesses within the 48 hours prior to trial. Since Mr. Nagel cannot truthfully
provide the number of witnesses that Newmont is required to depose, Respondent
argues that it has been disadvantaged in its deposition scheduling and trial

2

Complainant Nagel did not file his pre-hearing statement with my office at the
Commission, he just served Respondent.
32 FMSHRC Page 1526

preparation,
3.

Refusal to Comply with [ALJ] Order
to Produce Tape Recordings

Despite expressly agreeing to comply, Respondent argues that Complainant
has also refused to abide by my Order to produce the tape recordings that he made
ofconversations with Newmont management representatives. Respondent notes that
during the (October 15, 2010] conference call with the Court, the ALJ informed Mr.
Nagel that he was requiring Mr. Nagel to produce the tape recordings at issue. (See
Ex. F, attached to Respondent's Motion). Respondent states that during this call, Mr.
Nagel expressly agreed to have the tapes delivered overnight to Newmont's counsel
by Monday, October 18, 2010, which was exactly one week before trial. Respond
further states that after the conference call, Mr. Nagel further indicated his
compliance with my order in e-mail correspondence with Newmont's counsel
regarding the manner of transcription of the tapes. (See Ex. G, attached to
Respondent's Motion).
Respondent confirms that on Monday, October 18, 2010, after the tapes did
not arrive in the morning delivery, Newmont's counsel contacted Mr. Nagel to
request the relevant delivery information and tracking numbers. (See Ex. H, attached
to Respondent's Motion). According to Respondent, after several hours, Mr. Nagel
responded, indicating that the tapes had not been sent because he is "Appealing the
Judges (sic) Decision to the Commission." Id. Respondent states that Newmont is
not aware that any appeal has been filed. 3
Respondent argues that this alleged instance of contempt is particularly
troubling given the short amount of time that Newmont was given to transcribe and
redact relevant information on the tapes prior to trial, which is scheduled for October
25 and 26, 2010. Respondent further argues that it is clear from Mr. Nagel's
pre-hearing statement, filed on October 19, 2010, that he intends to use the tape
recordings, or evidence derived from the tape recordings, at trial. (See Ex. E,
attached to Respondent's Motion). By way of example, Respondent notes that the
first paragraph ofMr. Nagel's statement appears to have quotations derived from tape
recordings, upon which Mr. Nagel intends to rely. (Id. "I don't care if you're
recording this.").
Respondent argues that although the above illustrations by no means
represent an exhaustive list of the myriad examples of Mr. Nagel's contempt and
frustration ofjudicial authority, such instances demonstrate that Mr. Nagel has little

3

As explained below, on October 25, 2010, Complainant Nagel filed "Petitions of
Discretionary Review, Order to produce recordings."
32 FMSHRC Page 1527

respect for, or intention of abiding by, the Judge's orders in this matter. Respondent
reiterates that Mr. Nagel has been issued repeated orders to comply with discovery,
and continually has agreed to comply with such orders in word, and then has flat-out
refused to comply. Respondent argues that Mr. Nagel has demonstrated that ifhe
does not agree with this tribunal, he is not bound by its authority, nor, apparently, is
he bound by the oath he took prior to the deposition. Consequently, Respondent
argues that Mr. Nagel has demonstrated that any sanctions issued to him for failure
to comply with the Judge's Order will be disregarded, ignored or overlooked.
Accordingly, Respondent argues that the only appropriate response to Mr. Nagel's
constant refusal to fairly participate in this proceeding is to dismiss the matter for
repeated failures to comply with the Judge's orders.
Finally, Respondent states that despite Mr. Nagle's actions, Newmont is
prepared to go forward with the scheduled trial date. However, should the Judge
determine that a postponement is appropriate, Newmont asks that it be conditioned
as follows: First, that no further postponements be allowed, and second, that Mr.
Nagel be advised that any further failure to comply with Judge's Orders will result
in the dismissal of the case. fu conclusion, Respondent argues that the ALJ should
deny Complainant's Request to Postpone the Hearing and grant the Respondent's
Motion to Dismiss.

G.

Pre-Hearing Statements, Additional Conference Calls,
and Additional Orders

On October 19, 2010, the parties filed their respective Pre-Hearing Statements.
On October 20, 2010, I convened a 90-minute conference call with the parties. I
indicated that I would issue an Order on October 21, 2010, Denying Complainant's Motion for
Continuance. I again ordered Mr. Nagel to comply with my discovery orders. I indicated that
my office had not received any Motion to Compel Discovery from Complainant Nagel. He
indicated that perhaps he did not send my office a copy, just Respondent.4 Nevertheless, on the
conference call, I went through each of the discovery requests that Mr. Nagel indicated that
Respondent had not complied with, and resolved them, reserving the right to draw adverse
inferences against Respondent at trial for any non-production or failure to preserve evidence.
I also asked Mr. Nagel to explain what the five tapes involved. Mr. Nagel explained that
the tapes involved the following: a conversation that he had with management representative
Monty Holland and Shane Eisenbarth concerning his reported safety concern regarding alleged
improper disposal of pressurized paint cans; the grievance meeting concerning his disciplinary

4

0n October 20, 2010, Respondent filed its Responses to Complainant's Motion to

Compel Discovery. To date, my office has received no Motion to Compel Discovery from
Complainant Nagel.
32 FMSHRC Page 1528

warning for allegeci failure to guard an open hole at the waste breaker; the grievance meeting
concerning his alleged failure to receive proper training; a conversation he had with supervisor
Gilbert Liguizmo, concerning Respondent's alleged failure to give Nagel a pay upgrade; and a
conversation he had with management representatives Mike Woodland, Thayne Church and
Monty Holland concerning his alleged failure to water roads (the missing water truck incident),
which Respondent claims led in part to his termination on August 20, 2010. Accordingly, these
tapes concern events surrounding critical allegations of interference and discrimination as alleged
in Nagel's section 105(c)(3) complaint. See also my September 27, 2010 Order Conditionally
Limiting Certain Claims and Granting Partial Summary Judgment, which described the
allegations of interference and discrimination at issue in this matter.
During the October 20, 2010 conference call, I informed the parties that Complainant's
Motion for Partial Summary Judgment, as amended, would be denied and that an Order to that
effect would issue the next day. As noted above, that Order issued on October 21, 2010.
During that same conference call on October 20, 2010, Complainant Nagel again agreed
to tum over the tapes and overnight them to Respondent. As explained below, he again reneged
on this agreement the next day.
On October 21, 2010, I issued an Order Denying Complainant's Motion for Continuance.
I noted that the critical events at issue in this discrimination proceeding were at least 14 months
old and in some cases more than two years old. I further noted that back on August 19, 2010, I
issued an Order Confirming Conference Call Agreements and Discovery Schedule. I found that
the parties have had sufficient time to complete discovery and prepare for trial. I then explained
in detail, why I was denying each reason advanced by Complainant for a continuance. After
denying each one of Complainant's reasons for a continuance, I concluded that further delay in
this matter was contrary to the public interest and the interests of all parties in a timely resolution
of their dispute.
On October 21, 2010, I also issued an Order Denying [Complainant's] Motion to Strike
Testimony from Deposition Record.
On October 21, 2010, Complainant Nagel finally provided Respondent with answers to
Interrogatories 13 and 15. He also provided Respondent with a list of miner witnesses, since the
parties were two business days before trial.
On October 21, 2010, I convened another conference call with the parties. Respondent
explained that Mr. Nagel again had refused to overnight the tapes as he had agreed to do. Mr.
Nagel explained that he was refusing to tum over the tapes because was appealing my decision to
the Commission. I explained to Complainant Nagel, as set forth in my October 21, 2010 Order
Denying Complainant's Motion for Continuance, that interlocutory review is governed by
Commission Rule 76, and that any interlocutory review by the Commission, assuming that it is
granted, shall not operate to suspend the hearing, unless otherwise ordered by the Commission.

32 FMSHRC Page 1529

Nevertheless, Mr. Nagel refused to comply with my Order to tum over the audio tapes to
Respondent because he was appealing my Order to the Commission.

H.

The Orders to Show Cause Why Dismissal Is Not Appropriate for Failure to
Comply with Discovery Orders, Complainant's Submission of Cause Not To
Dismiss, and Respondent's Response To Complainant's Reasons Not To Dismiss
Accordingly, during the conference call on October 21, 2010, Complainant was

ORDERED TO SHOW CAUSE by email to the Court and Respondent by noon E.S.T. on
October 22, 2010, why this proceeding should not be dismissed for failure to comply with my
discovery order to produce the audio tapes. A final conference call was scheduled for noon
E.S.T. on October 22, 2010. My conference call Order to Show Cause was followed up by
written ORDER TO SHOW CAUSE WHY DISCRIMINATION PROCEEDING SHOULD

NOT BE DISMISSED FOR FAILURE TO PRODUCE AUDIO TAPES CONCERNING
ALLEGED ACTS OF INTERFERENCE AND DISCRIMINATION AS ORDERED BY
THE COURT.
By attachment to e-mail sent to the Court and Respondent at 6:39 E.S.T. on Thursday,
October 21, 2010, Complainant Nagel submitted his explanation for Cause Not to Dismiss. He
argued as follows:
Under 29 C.F .R. 2700.56(e) states that discover must be completed 20 days prior to
the scheduled hearing date. For good cause shown the Judge may extend or shorten
the time of discovery. Both Newmont and I are still in discovery. On or about
October, 15 2010 Judge McCarthy ruled ofNewmont's Motion to compel recordings.
Under Commission Rule 2700.70 Any person adversely affected by a Judge's
decision or order may file with the Commission a petition for discretionary review
withll,i 30 days of the decision or order. I have stated I'm pursing this option and I'm
within 30 days. I have 30 days to appeal Judge McCarthy's decision. Judge
McCarthy stated something about rule 76 criminal procedure, this is civil court.
There is no 30 C.F .R 2700 as stated in the order for security. I know who the U.S.
Marshals and the Elko County Sheriff are. I have 30 days to ask the commission to
review the order. There is a thin line between coercion and corruption. To the extent
that I wasted time with a Disciplinary referral, If the court would up hold it's laws I
wouldn't have to do their job for them.
Respectfully,
Justin Nagel 10-21-2010
Complainant Nagel failed to appear or participate in the final conference call with the
undersigned and Respondent at noon E.S.T. or 9 a.m. Pacific time, on October 22, 2010. The
undersigned and Respondent's outside and in-house counsel waited for Mr. Nagel to call in for
twenty minutes and my office tried to reach him by phone leaving voice messages, but received

32 FMSHRC Page 1530

no response, until Monday, October 25, as set forth below. Accordingly, at 1:45 p.m. E.S.T. on
October 21, 2010, I sent the following email to the parties:
Good afternoon gentlemen,
Complainant Justin Nagel did not appear for the conference call scheduled for 12
noon E.S. T. today. I have received Mr. Nagel' s response to my Order to Show Cause
why this matter should not be dismissed. Given Mr. Nagel 's refusal to tum over the
audio tapes concerning critical allegations ofinterference and discrimination alleged
in his complaint, I have concluded that Respondent cannot receive a fair hearing in
this matter. Accordingly, the hearing scheduled for October 25 and 26, 2010 in
Elko, Nevada is cancelled. My Order concerning Respondent's Motion to Dismiss
will issue by close of business on Monday, October 25, 2010. 5
On Saturday, October 23, 2010, counsel for Respondent sent the following email to the
my office and Complainant Nagel concerning the events ofFriday, October 22, 2010.
Dear Judge McCarthy
I am writing to relay to the Court the following information, which I believe
may be material to its ruling on Respondent's Motion to Dismiss. We have copied
Mr. Nagel on this email so that the parties and the Court do not engage in any ex
parte communications regarding potentially substantive information.
On Tuesday, October 19, my associate, Caroline Davidson-Hood, emailed
Mr. Nagel, and copied the Court, informing him that we intended to hold depositions
of his miner witnesses on Friday October 21, and that he may attend the depositions,
ifhe so chose. On Wednesday October 20, Mr. Nagel responded to that email, noting
that the day and date didn't match, and asked on what day we would hold depositions.
My colleague noted the mistake and responded that depositions would be held on
Friday the 22nd of October. Aside from noting the mismatched day and date, Mr.
Nagel did not give any indication that he planned on attending the deposition. The
relevant email string is displayed below.
On Thursday October, 21, after Mr. Nagel had issued his list of miner
witnesses, after the Court had issued its Order to Show Cause Why not to Dismiss
the Case, and after the Court scheduled a conference call for all parties at 9:00am
Pacific Time [noon E.S.T.] October 22, Respondent determined that formal

5

Given the subsequent events and filings in this case discussed below, I notified the
parties by email on October 25 and 26, that my Order concerning Respondent's Motion to
Dismiss would not issue until Wednesday, October 27, 2010.
32 FMSHRC Page 1531

depositions on Friday morning would be impractical, because the employees listed
as witnesses were members of a crew that would not be coming to work until Friday
evening, and therefore we could not serve any of the Newmont employees for
depositions until after the time had passed for the previously scheduled depositions.
Moreover, it appeared impractical to conduct depositions during a conference call
with the Court which would determine the status of the hearing and the necessity to
conduct any depositions at all. Therefore, I decided that it was more efficient to
cancel the depositions and attempt to speak to the employees once they had arrived
at the mine on Friday night, if we needed to speak to them at all.
Because of the number ofissues that had arisen, it was not until the afternoon
on Friday October 22, 2010, that my paralegal contacted the courthouse to cancel the
room reservation that we had made for depositions. At that time, the woman at the
courthouse stated that "the dark haired guy" that we deposed last time, had showed
up at the courthouse at 8:00 am for depositions and waited around until 9:00 am
before he left.
Newmont and its counsel would like to state for the record, that although we
did not inform Mr. Nagel that we would not be holding depositions on Friday
morning, we had no indication from him that he intended to attend them. Moreover,
we had expected him to be a party on the conference call on Friday, at which time
each party would be fully aware of whether the hearing, and therefore the
depositions, would go forward. As of this writing, the undersigned has not received
any oral or written communication from Mr. Nagel regarding the events described
above.

If it is a fact that Mr. Nagel did go to the courthouse on Friday morning for
depositions, we regret if any miscommunications caused him any inconvenience.
However, we had no way of knowing that he would be there, not only because he
didn't inform us of his intention, but also because we expected that he would be
aware that depositions would not be held during a conference call scheduled with the
court, in which he was required to participate. Regardless of any possible
miscommunication regarding the depositions, Mr.Nagel was aware ofthe conference
call and simply failed to participate or notify the Court of the reasons for his failure.
In its last filing with the Court, Respondent noted that Mr. Nagel's failure to
appear at the October 22 conference call could, without more, constitute a ground for
dismissal of this matter. However, as we also pointed out in that filing, there are
numerous additional bases on which dismissal can, and should, be based in this
matter.

32 FMSHRC Page 1532

Should the Court desire additional information regarding this matter, Ms.
Davidson-Hood and I will be available for a conference all at the Court's
convemence.
Respectfully,
Mark N. Savit
Patton Boggs LLP
Counsel for Respondent
On Monday, October 25, 2010, during the preparation of this Order, the undersigned
received the following email from Complainant, with copy to Respondent's counsel.
I apoligize [sic] for missing the confrence [sic] call. I was at the court house [sic]
with the witnesses to be disposed [sic]. I left my call in information and was hoping
to obtain it from Mr. Savit at 8 :00 am when the deposition was scheduled. Only
myself and the witnesses show up.
Respectfully, Justin Nagel
Shortly, thereafter, I received the following email from Respondent's counsel, with copy
to Complainant Nagel.
Judge McCarthy,
Just to make sure the record contains all pertinent information, we did not notice any
witnesses for deposition, so no witnesses would have been there unless Mr. Nagel
brought them with him. The court employee who gave us the information has told us
that he appeared to be there by himself. We can check further if the court wishes.
Respectfully,
Mark N. Savit
Patton Boggs LLP
Also on Monday afternoon E.S.T., the undersigned received Newmont's Response to
Complainant's Reasons Not to Dismiss. In essence, Respondent again moves to dismiss this
matter under the Court's broad authority to manage the course of the proceedings under
Commission Rules. See e.g., Rules 55, 56, 59, 66, and 80. Respondent's arguments reemphasize Complainant Nagel's continual lack of candor to the Court and repeated refusal to
comply with direct orders to turn over the tapes. Respondent further argues that Complainant's
asserted justification in response to the Order to Show Cause, i.e., that he is unwilling to comply
with my orders to produce the tapes because he has filed an appeal of said orders with the
Commission, is procedurally improper under Commission Procedural Rule 76 governing
interlocutory review. Respondent points out that Complainant Nagel has neither submitted a

32 FMSHRC Page 1533

motion to the Judge seeking certification of his interlocutory appeal on the discovery order to
produce the tapes, nor has the judge certified that appeal upon his own motion. Thus,
Respondent argues that Complainant Nagel's direct appeal to the Commission has not met any of
the requirements laid out in Rule 76, and is procedurally improper in direct violation of
Commission rules of procedure.
Respondent further argues that even if Complainant Nagel had properly applied to the
Commission for interlocutory review, he was still obligated to comply with the direct order of the
court to tum over the tapes. Respondent notes, as the Judge previously advised Complainant,
that Rule 76(a)(2) expressly states that, "[i]nterlocutory review by the Commission shall not
operate to suspend the hearing unless otherwise ordered by the Commission." Since the
Commission has issued no order suspending proceedings, Respondent argues that Nagel had a
duty to release the tapes so that Respondent could prepare for the scheduled hearing date.
Respondent argues that as result of Complainant Nagel's failure to do so, the Respondent has
been prejudiced and proceeding with the hearing has been rendered impractical.
Further, Respondent argues that even if Complainant Nagel properly sought certification
of this matter for interlocutory review, said certification would have been properly denied by the
Judge and the Commission because it presented a routine issue of discovery as to whether tapes
should be produced before trial, and therefore was not of sufficient weight and importance to
interrupt the normal course of the proceeding in order to appeal for a decision of the
Commission. Respondent relies on Commission precedent holding that interlocutory review is
not appropriate where the issue has been determined in a prior Commission decision or the issue
is not a controlling question oflaw. See United States Steel Mining Co., 16 FMSHRC 1043
(May 1994); Northwestern Resources Co., 22 FMSHRC 255 (Feb. 2000). Respondent notes that
the tapes have been deemed non-privileged and relevant by the Judge, and Commission rules
state that all relevant, non-privileged evidence is admissible. See Rule 63; cf Rule 56(b)
governing scope of discovery. Respondent further notes that Nagel has refused to produce the
tapes because he believes that they may be relevant for some potential, future, criminal
proceeding against Respondent in support of charges that have not yet been filed. Respondent
argues that such tangential and irrelevant justifications do not trump the well-established
Commission rule that non-privileged relevant evidence is admissible. Thus, Respondent argues
that the question oflaw governing the admissibility of the relevant evidence is well-established
and it is neither a controlling question in this matter, nor will it immediately materially advance
this proceeding.
In sum, Respondent argues that this case should be dismissed for Complainant Nagel's
continuing lack of honesty and candor, his failure to participate in relevant proceedings, and his
gamesmanship in causing delay and waste in order to gamer more time to prepare for trial.
Respondent emphasizes that Nagel has not only refused to follow procedural rules and the direct
order of the ALJ, but his continuing and constant misrepresentations demonstrate that no amount
of delay or relief short of dismissal is appropriate. Accordingly, Respondent requests dismissal
for Complainant's continual misconduct.

32 FMSHRC Page 1534

I.

Complainant's Petitions For Discretionary Review

On October 25, 2010, Complainant Nagel filed Petitions for Discretionary Review, Order
to produce recordings, with attached exhibits. It is confusing, rambling, and at times
incomprehensible. Despite Respondent's arguments to the contrary, consistent with my practice
of liberally construing the pleadings of this pro se Complainant, I treat it as a motion for
certification of my interlocutory discovery ruling to the Commission under Rule 76. 6 I hereby

6

Commission Procedural Rule 76 provides as follows:

§ 2700.76 Interlocutory review.
(a) Procedure. Interlocutory review by the Commission shall not be a matter of right but
of the sound discretion of the Commission. Procedures governing petitions for review of
temporary reinstatement orders are found at§ 2700.45(f).

(1) Review cannot be granted unless:
(i) The Judge has certified, upon his own motion or the motion of a party, that his
interlocutory ruling involves a controlling question of law and that in his opinion
immediate review will materially advance the final disposition of the proceeding;
or
(ii) The Judge has denied a party's motion for certification of the interlocutory
ruling to the Commission, and the party files with the Commission a petition for
interlocutory review within 30 days of the Judge's denial of such motion for
certification.
(2) Jn the case of either paragraph (a)(l)(i) or (ii) of this section, the Commission,
by a majority vote of the full Commission or a majority vote of a duly constituted
panel of the Commission, may grant interlocutory review upon a determination
that the Judge's interlocutory ruling involves a controlling question oflaw and
that immediate review may materially advance the final disposition of the
proceeding. Interlocutory review by the Commission shall not operate to suspend
the hearing unless otherwise ordered by the Commission. Any grant or denial of
interlocutory review shall be by written order of the Commission.
(b) Petitions for interlocufory review. Where the Judge denies a party's motion for
certification of an interlocutory ruling and the party seeks interlocutory review, a
petition for interlocutory review shall be in writing and shall not exceed 15 pages.
A copy of the Judge's interlocutory ruling sought to be reviewed and of the
Judge's order denying the petitioner's motion for certification shall be attached to
the petition.
(c) Briefs. When the Commission grants interlocutory review, it shall also issue an
order which addresses page limits on briefs and the sequence and schedule for
filing of initial briefs, and, if permitted by the order, reply briefs.
32 FMSHRC Page 1535

certify that my discovery orders to tum over the tapes involve a controlling question oflaw that
will materially advance final disposition of this proceeding. Indeed, as explained below,
Complainant's repeated refusal to tum over the tapes, which concern the heart of this case, has
resulted in my dismissal of this matter. Certainly, in light of this dismissal, there can be no doubt
that my interlocutory ruling has materially advanced the final disposition of this matter.
On October 26, 20 I 0, Complainant Nagel filed another Petition for Discretionary Review
concerning my October 13, 2010 Order Granting Respondent's Request for Security. I decline to
certify that interlocutory ruling for interlocutory review as my Order does not materially advance
the final disposition of this proceeding, and has been rendered moot because the deposition has
already occurred.
II. Order Granting Respondent's Motion to Dismiss

Commission Procedural Rule 59 provides that if a party fails to comply with an order
compelling discovery, the Judge may make such orders as are just and appropriate, including
dismissing the proceeding in favor of the party seeking discovery. For good cause shown, the
Judge may excuse an objecting party from complying with the discovery request. 7
Commission Procedural Rule 66(a) requires that "[w ]hen a party fails to comply with an
order of a Judge ... an order to show cause shall be directed to the party before the entry of any
order of default or dismissal."

(d) Scope of review. Unless otherwise specified in the Commission's order
granting interlocutory review, review shall be confined to the issues raised in the
Judge's certification or to the issues raised in the petition for interlocutory review.
7

Specifically, Commission Rule 59 provides, as follows:

§ 2700.59 Failure to cooperate in discovery; sanctions.
Upon the failure of any person, including a party, to respond to a discovery
request or upon an objection to such a request, the party seeking discovery may
file a motion with the Judge requesting an order compelling discovery. If any
person, including a party, fails to comply with an order compelling discovery, the
Judge may make such orders with regard to the failure as are just and appropriate,
including deeming as established the matters sought to be discovered or
dismissing the proceeding in favor of the party seeking discovery. For good cause
shown the Judge may excuse an objecting party from complying with the request.

32 FMSHRC Page 1536

As detailed above, on October 18, 2010, I issued my Order Partially Granting
[Respondent's] Motion to Compel Production of Recorded Conversations and Order Granting
[Respondent's] Motion To Compel Answers to Interrogatories 13 and 15. I cited Commission
Rule 59, thereby warning Complainant that failure to comply with my order compelling
discovery of the audio tapes may result in dismissal of his case. As further outlined above, I then
issued Orders to Show Cause why this proceeding should not be dismissed. Accordingly, the
procedural requirements for dismissal of this proceeding as a discovery sanction have been met.
Given the severity of the sanction, the issue remains whether dismissal is just and
appropriate, i.e., related to the particular claim at issue and not an abuse of discretion. See Keefer
v. Provident Life and Accident Insurance Co., 238 F. 3d 937 (8th Cir. 200l)(dismissal of action as
discovery sanction under Fed. R. Civ. P. 37(b)(2)(A) was not abuse of discretion given order
compelling discovery, willful violation of that order, and prejudice to other party); see also
Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1977) (dismissal of case as sanction under Fed. R.
Civ. P. 37(b)(2)(A) for repeated discovery violations not abuse of discretion). Based on the
totality of circumstances, I find that dismissal is just and appropriate here as a sanction for
Complainant's repeated failure to comply with discovery Orders and lack of candor with the
tribunal, which has interfered substantially with a fair hearing in this matter, unduly burdened the
record, and caused additional work, delay, and expense through refusal to comply with discovery
Orders and Commission rules.
In determining whether dismissal is a just sanction for a party's failure to obey a
discovery order under Fed. R. Civ. P. 37(b)(2)(A), district courts generally consider the following
factors: the culpability of the non-complying party; the degree of actual prejudice to the party
seeking discovery; the amount of interference with the judicial process; whether the noncomplying party was warned in advance that dismissal would be a likely sanction for
noncompliance; and the efficacy oflesser sanctions. See e.g., EB! Securities Corporation, Inc. v.
Hamouth, 219 F.R.D. 642, 647 (D. Colo.) citing Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21
(10th Cir. 1992).
Applying these factors, I find that Complainant's noncompliance with my discovery
orders was repeated and deliberate. Complainant repeatedly failed to respond to two of
Respondent's interrogatories until two business days before trial, despite being ordered on
several occasions to do so. Complainant admitted in his motion to strike deposition testimony
that he incorrectly stated the number of tapes in his possession during his deposition. Most
importantly, however, Complainant refused to comply with multiple discovery orders to produce
the tape recordings, despite promising to do so, thereby demonstrating forthright lack of candor
with this tribunal.
Specifically, during the October 15, 2010 conference call, I explained the basis for my
impending October 18 Order compelling discovery of the tapes. I ordered Complainant to
provide copies of the tapes to Respondent by overnight mail for morning delivery on October 18,

32 FMSHRC Page 1537

2010. Complainant agreed to do so and the parties agreed to a redaction procedure for the names
of miner witnesses. Complainant then broke his promise to this tribunal and Respondent.
Complainant was served with my written Order to compel production of the recorded
conversations on October 18, 2010. Complainant did not produce the tapes. During a
subsequent conference call on October 20, 2010, I again ordered Complainant to provide copies
of the tapes to Respondent by overnight mail. Complainant again promised this tribunal and
Respondent that he would do so. Complainant again breached his promise.
On the October 21, 2010 conference call, Complainant Nagel stated that he was refusing
to comply with my Order to turn over the audio tapes to Respondent because he was appealing
my Order to the Commission. In doing so, Complainant Nagel failed to comply with
Commission Rule 79 governing interlocutory review of my discovery orders, even though he was
informed of this rule and further informed that the Commission's grant of such review shall not
operate to suspend the hearing, unless otherwise ordered by the Commission. Nevertheless, Mr.
Nagel persisted in his refusal to turn over the tapes. Moreover, he failed to participate in the final
conference call before trial.
There is no doubt on this record, that the tapes withheld from discovery relate to events
that comprise the gravamen of Complainant's allegations ofinterference and unlawful discipline,
suspension and termination. In fact, during the October 20, 2010 conference call, Mr. Nagel
acknowledged that the tapes involved the following critical events relative to his protected
activity and allegations of interference and discrimination: a conversation that he had with
management representatives Monty Holland and Shane Eisenbarth concerning his reported safety
concern regarding alleged improper disposal of pressurized paint cans; the grievance meeting
concerning his disciplinary warning for alleged failure to guard an open hole at the waste
breaker; the grievance meeting concerning his alleged failure to receive proper training; a
conversation he had with supervisor Gilbert Liguizmo concerning Respondent's alleged failure to
give Nagel a pay upgrade; and a conversation he had with management representatives Mike
Woodland, Thayne Church and Monty Holland concerning his alleged failure to water roads (the
missing water truck incident), which Respondent claims led, in part, to his suspension and
termination.
Since the tapes concern events surrounding critical allegations of interference and
discrimination as alleged in Nagel's section 105(c)(3) complaint, I find that Respondent would
be prejudiced significantly by not having an opportunity to review the tapes before trial and
adjust its defense strategy or settlement posture accordingly. As set forth in my October 18, 2010
Order Partially Granting (Respondent's] Motion to Compel Production ofRecorded
Conversations and Order Granting [Respondent's] Motion To Compel Answers to Interrogatories
13 and 15, the Commission's discovery rules are construed liberally to permit wide-ranging
discovery of all information reasonably calculated to lead to the discovery of admissible
evidence, but discoverable information need not be admissible at trial. Thus, a request for
discovery should be considered relevant if there is any possibility that information sought may be

32 FMSHRC Page 1538

relevant to the subject matter of the action and discovery should ordinarily be allowed unless it is
clear that information sought can have no possible bearing upon subject matter of action, or it is
protected by privilege. See e.g., Billy Brannon v. Panther Mining, LLC, 31 FMSHRC 717 (May
2009) (ALJ Barbour) (granting motion to compel audiotapes of mine conversations involving the
complainant and other miners made during the time frame of the alleged discrimination).
That standard is clearly met here. Respondent was prejudiced in the preparation of its
defense and evaluation of settlement, particularly given the number of tapes at issue and their
nexus to critical allegations of interference and discrimination alleged in the Complaint.
Furthermore, Complainant's repeated disregard of my discovery orders to turn over the tapes
interfered with the judicial process, necessitating cancellation of the hearing to ensure a fair trial
for Respondent.

It also cannot be overlooked, that the Court has bent over backwards to ensure that this
pro se Complainant could receive a fair trial, and has acted consistent with Supreme Court and
Commission precedent generally holding the pleadings of pro se litigants to less stringent
standards than pleadings drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (prose litigant's complaint held to less stringent standards than complaint drafted by
attorneys); Tony M. Stanley, emp. by Mgt. Consultants, Inc., 24 FMSHRC 144, 145 n.l (Feb.
2001) (same); Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992)(Commission
recognized that courts generally consider the special circumstances of litigants untutored in the
law).
Consistent with this precedent, the undersigned granted Complainant an extension of time
to procure counsel after the Secretary decided that his Complaints (09-06 and 09-11) lacked
merit. When Complainant was unable to retain counsel, the Court, consistent with Commission
precedent, permitted Complainant to proceed prose, which is his right under section 105(c)(3),
even though his case would have been best served by legal counsel or non-legal representative,
who could cle(lfly articulate his position in timely and responsive pleadings that were properly
served, and engage in meaningful discovery and settlement negotiations. Cf Jaxun v. Asarco, 29
FMSHRC 616, 621 (Aug. 2007). The undersigned then broadly construed Complainant's
allegations in my September 27, 2010 Order Conditionally Limiting Certain Claims and Granting
Partial Summary Judgment on certain claims. The undersigned then examined Complainant's
acts of recording under Nevada law with an eye toward protecting any privilege against selfincrimination that may be implicated. See my October 18, 2010 Order Partially Granting
[Respondent's] Motion to Compel Production of Recorded Conversations and Order Granting
[Respondent's] Motion To Compel Answers to Interrogatories 13 and 15. Furthermore, as
outlined above, Complainant has on several occasions failed to properly file his motions with this
tribunal, however, I have treated his motions as properly filed. See e.g., my Order Denying
Motion to Strike Testimony from Deposition Record. Finally, over the objection of Respondent,
and consistent with my practice of liberally construing the pleadings of this prose Complainant, I
have treated Complainant's "Petitions for Discretionary Review, Order to produce recordings,"

32 FMSHRC Page 1539

with attached exhibits, as a motion for certification of my interlocutory discovery ruling to the
Commission under Rule 76.
But there is a limit to how far this tribunal can go, and Complainant exceeded that limit
here, even though acting pro se. The Complainant's repeated refusals to comply with my
discovery orders to turn over the tapes, despite promising on numerous occasions that he would
do so, placed Respondent at a significant disadvantage from unfair surprise and unnecessary
expense during trial preparation, and took away the possibility of a fair trial because the
discoverable matter concerned the crux of Complainant's case. Given the subject matter of the
tapes, their number, and their nexus to the critical allegations of unlawful interference, discipline,
suspension, and termination, a lesser sanction under Rule 59, i.e., deeming as established the
matters sought to be discovered, would strike at the heart of Complaint allegations in any event,
thereby precluding both meaningful relief sought by Complainant and a practical, fair trial for
Respondent.
In these circumstances, in the exercise of my discretion, I find that a lesser sanction
would have neither cured the prejudice to Respondent, deterred additional misconduct by
Complainant, nor provided an effective or practical sanction. After all, courts are not constrained
to impose the least onerous sanction available, but exercise discretion to choose the most
appropriate sanction under the totality of circumstances. Keefer, 238 F.3d at 941. Given
Complainant Nagel's repeated lack of candor and refusal to turn over the audio tapes concerning
critical allegations of interference and discrimination alleged in his Complaint, I concluded that
Respondent could not receive a fair hearing in this matter and I was compelled to cancel the
hearing.
Finally, Complainant was warned in advance that dismissal would be a likely sanction for
continued noncompliance with my discovery orders to provide copies of the tapes, absent good
cause shown: As emphasized above, my October 18, 2010 written discovery Order Partially
Granting [Respondent's] Motion to Compel Production of Recorded Conversations, specifically
cited Commission.Rule 59, thereby warning Complainant that failure to comply with my order
compelling discovery may result in dismissal of his case. Thereafter, during conference calls on
October 18 and 20, 2010, when Complainant Nagel promised to overnight the tapes and then
reneged on his agreement, Nagel was made aware that dismissal would be a likely sanction for
continued non-compliance. Thereafter, during the conference call on October 21, 2010, I issued
an oral Order to Show Cause why this proceeding should not be dismissed. On October 22,
2010, I issued my written Order to Show Cause why this proceeding should not be dismissed for
failure to produce audio tapes concerning alleged acts of interference and discrimination as
ordered by the Court. Accordingly, the procedural requirements for dismissal of this proceeding
as a discovery sanction were satisfied.
Thereafter, Complainant submitted his explanation for cause arguing that the parties were
still in discovery, that he had 30 days to appeal my Order compelling production of the tapes, and

32 FMSHRC Page 1540

that ifthe Court would uphold its laws, Complainant Nagel would not have to do the Court's job
for it. Complainant Nagel then failed to participate in the final conference call with the Court.
Having carefully reviewed Complainant Nagel's submission, I find that his explanation
does not constitute good cause under Rule 59, which provides that for good cause shown, the
Judge may excuse an objecting party from complying with the discovery request. I find no good
cause to excuse Complainant Nagel from complying with the discovery request for the audio
tapes. First, contrary to his contentions, discovery has ended. Complainant has simply failed to
comply with my repeated rulings to turn over the tapes because he seeks review before the
Commission. Second, as Respondent correctly points out, Complainant inappropriately relies on
Rule 70 concerning petitions for discretionary review of final case disposition from the judge, as
opposed to petitioning under Rule 76 for interlocutory review of my discovery orders.
Nevertheless, consistent with my practice of liberally construing the pleadings of this pro
se Complainant, I have treated Complainant's "Petitions for Discretionary Review, Order to
produce recordings," with attached exhibits, as a motion for certification of my interlocutory
discovery ruling to the Commission under Rule 76. In light of my Order granting Respondent's
Motion to Dismiss this proceeding, there can be no doubt that my interlocutory ruling will, and in
fact has, materially advanced the final disposition of this matter. However, I stay the effect of
my dismissal pending Commission ruling on the certified interlocutory discovery Order.

In sum, based on the totality of circumstances, dismissal is a just and appropriate sanction
for Complainant's repeated failure to comply with my discovery Orders and for his repeated lack
of candor with this tribunal, which has interfered with the judicial process and precluded
Respondent from obtaining a fair trial. Complainant's noncompliance with my discovery orders
was repeated and deliberate. Furthermore, Complainant repeatedly failed to respond to two of
Respondent's interrogatories until two business days before trial, despite being ordered on
several occasions to do so. In addition, Complainant admitted in his motion to strike deposition
testimony that he incorrectly stated the number of tapes in his possession. Most importantly,
Complainant refused to comply with multiple discovery orders to produce the tape recordings,
despite repeatedly promising to do so. His lack of candor with this tribunal was willful and
deliberate. Since the tapes concern events surrounding critical allegations of interference and
discrimination alleged in Complainant's section 105(c)(3) complaint, Respondent was prejudiced
significantly by not having an opportunity to review the tapes before trial and adjust its defense
strategy or settlement posture. Complainant's conduct interfered with the judicial process and
forced cancellation of the hearing. Complainant was warned times in advance that dismissal
would be a likely sanction for his repeated noncompliance with my discovery orders and failure
to honor his agreements with this tribunal and Respondent. Given the subject matter of the tapes,
which strike at the core of this case, lesser sanctions are inappropriate.
In light of the foregoing, IT IS ORDERED that Complainant's October 26, 2010
"Petitions of Discretionary Review, Order to produce recordings," with attached exhibits, is
treated as a motion for certification of my interlocutory discovery ruling to the Commission
32 FMSHRC Page 1541

under Rule 76. !HEREBY CERTIFY that my discovery orders to tum over the tapes involve a
controlling question of law that will materially advance final disposition of this proceeding.
Indeed, as explained herein, Complainant's repeated refusal to tum over the tapes, which concern
the heart of his case, has resulted in my dismissal of this matter.
IT IS FURTHER ORDERED that Respondent's Motion to Dismiss is hereby
GRANTED and the case is DISMISSED.
IT IS FURTHER ORDERED that the dismissal is STAYED pending the
Commission's ruling on the certified interlocutory discovery ruling.

-oflf\'(1 t, ]11 'trt,t,,l~.

Thomas P. McC~
Administrative Law Judge
Distribution:
Justin Nagel, P.O. Box 182, Rathdrum, ID 83858
Richard Tucker, Newmont Mining, 1655 Mountain City Hwy., Elko, NV 89801
Donna Vetrano Pryor, Esq., Mark Savit, Esq., Patton Boggs LLP, 1801 California Street, Suite
4900, Denver, CO 80202
Commissioners

/cp

32 FMSHRC Page 1542
G:D' U.S. GOVERNMENT PRINTING OFFICE: 2010-366-038/83605