NOVEMBER 2005

COMMISSION DECISIONS AND ORDERS
11-10-2005 Twentymile Coal Company
11-16-2005 Spartan Mining Company
11-17-2005 National Cement Company of California, Inc.
11-30-2005 Eighty-Four Mining Company
11-30-2005 Chestnut Coal Company
11-30-2005 Holliston Sand Company, Inc.

WEST 2000-480-R
WEVA 2002"' H i-R
WEST 2004-182-RM
PENN 2005-241
PENN 2005-245
YORK 2005-138-M

Pg. 715
Pg. 718

SE
2003-160
YORK 2005-87-RM
YORK 2005-22-M
WEST 2004-269-M

Pg. 757
Pg.829
Pg.833
Pg.839

CENT 2006-43-DM

Pg. 874

Pg. 721
Pg. 745

Pg. 748
Pg. 752

ADMINISTRATIVE LAW .JUDGE DECISIONS

11-01-2005 Jim Walter Resources, Inc.
11-04-2005 Tamko Roofing Products
11-21-2005 Hanson Aggregates New York, Inc.
11-28~2005 Carder, Inc.
11-29-2005 Sec. Labor on behalf of Jay Heetland
v. Smasal Aggregates & Asphalt, I.LC.

i

NOVEMBER 2005

Review was granted in the following case during the month of November:
Secretary of Labor, MSHA on behalf of Wendell McClain, et al. V. Misty Mountain Mining Inc.,
and others, Docket Nos. KENT 2005-96-D, etc. (Judge Hodgdon, October 21, 2005)

No cases were filed in which Review was denied during the month of November:

ii

COMMISSION DEQSIONS AND ORDERS

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

November 10, 2005

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

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

V.

TWENTYMILE COAL COMPANY

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000), involves an order issued to
Twentymile Coal Company ("Twentymile") by the Department of Labor's Mine Safety and
Health Administration as a result of a violation of the mandatory training standard at 30 C.F.R.
§ 48.7(c).
Following a decision by the Commission (26 FMSHRC 666 (Aug. 2004)), both the
Secretary of Labor and Twentymile petitioned for court review of the Commission's decision. In
Secretary of La.bar v. Twentymile Coal Co., 411 F.3d 256 (D.C. Cir. 2005), the District of
Columbia Circuit Court of Appeals affirmed the Commission on the question of violation but
vacated the Commission's order setting aside the Secretary's proposed penalty.

In vacating the Commission's decision on the penalty issue the court remanded the matter
to the Commission for proceedings not inconsistent with the instructions contained within the

27 FMSHRC 715

court's opinion. Id. at 262. Accordingly, the Commission reinstates the $1,500 penalty
originally assessed by the judge.

27 FMSHRC 716

Distribution
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center
401 Liberty Ave., Suite 1340
Pittsburgh, PA 15222

Jerold S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
llOO Wilson Blvd., 22"d Floor
Arlington, VA 22209
Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

27FMSHRC717

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

November 16, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALIB
ADMINISTRATION (MSHA)

Docket Nos.

WEVA 2002-111-R
WEVA 2002-112-R

v.
SPARTAN :rvIINING COMPANY
BEFORE: Duffy, Chainnan; Jordan, Subolesl<l, and Young, Commissioners

ORDER
BY THE COMMISSION:
This contest proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"): The Department of Labor's Mine Safety and
Health Administration issued a citation against Cannelton Industries, Inc. ("Cannelton") 1 alleging
a significant and substantial ("S&S") violation of 30 C.F.R. § 75.360(a)(l), requiring preshift
examinations. Administrative Law Judge T. Todd Hodgdon vacated the citation at issue on the
grounds that the operator did not violate the preshift requirement set forth in section 75.360(a)(l)
because of the "pumpers' exception" contained in 30 C.F.R. § 75.360(a)(2). The Commission
affirmed the judge's dismissal. Cannelton Industries, Inc., 26 FMSHRC 146 (Mar. 2004).
In Sec'y of Labor v. Spartan Mining Co., 415 F.3d 82 (D.C. Cir. 2005), the District of
Columbia Circuit Court of Appeals vacated the Commission's decision. The court determined
that the pumpers' exception only applies in "areas where pumpers are scheduled to work or
travel" and that the preshift requirement remains applicable in areas where the pumpers do not
travel, such as where there are energized trolley wires. 415 F.3d at 85 (citing 30 C.F.R.
§ 75.360(a)(2) & (b)(7)). On September 19, 2005, the court issued its mandate in this matter,
returning the case to the Commission's jurisdiction.

1

During the pendency of this appeal, the assets of Cannelton were purchased by the
parent company of Spartan Mining Company. Spartan was substituted as the party in interest by
court order. Sec'y of Labor v. Spartan Mining Co., 415 F.3d 82, 84 (D.C. Cir. 2005).
27 FMSHRC 718

Accordingly, consistent with the instructions of the D .C. Circuit, we hereby remand to the
judge for further proceedings on the issue of violation, an evaluation of the S&S nature of the
violation, if appropriate, and an assessment of any civil penalty.

27 FMSHRC 719

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor West
Arlington, VA 22209-2247
David J. Hardy, Esq.
Spilman, Thomas & Battle, PILC
300 Kanawha Blvd. East
P.O. Box 273
Charleston, WV 25321
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 720

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

November 17, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.
Docket No. WEST 2004-182-RM

NATIONALCEMENTCO?vlPANY
OF CALIFORNIA, INC.
and
TEJON RANCHCORP.

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

DECISION
BY: Duffy, Chairman, and Suboleski and Young, Commissioners
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act" or "Act") and involves a citation alleging a violation of 30
C.F.R. § 56.9300(a). 1 Administrative Law Judge Jerold Feldman granted the Secretary of
Labor's motion for summary decision and held that the access road to the National Cement
Company of California, Inc. ("National Cement") facility in Lebec, California, is a "coal or other
mine" and is thus subject to the jurisdiction of the Mine Act and the Department of Labor's Mine
Safety and Health Administration ("MSHA"). 27 FMSHRC 84 (Jan. 2005) (AIJ). Upon the
subsequent motion of National Cement, the judge certified his interlocutory ruling. 27 FMSHRC

1

Section 56.9300(a) requires that "[b]erms or guardrails shall be provided and
maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to cause
a vehicle to overturn or endanger persons in equipment."
27 FMSHRC 721

157 (Feb. 2005) (AU). The Commission thereafter ordered review of the judge's decision. For
the reasons that follow, we vacate the judge's decision and remand this proceeding to the judge.
I.
Factual and Procedural Background
At issue in this case is an access road leading to a cement plant and quarries on the Tejon
Ranch property ("Ranch"). The Ranch occupies approximately 270,000 contiguous acres of land
that stretch over an area approximately 40 miles by 26 miles in Los Angeles and Kem Counties,
California. 27 FMSHRC at 85.2 It is owned by Tejon Ranchcorp (''Tejon"). Id. The Ranch is
comprised of an operating cattle ranch and other commercial operations. Id. On the southern
portion of the Ranch a variety of commercial activities take place, one of which is National
Cement's cement plant facility in southern Kem County. Id. at 85-86.
In 1966 Tejon entered into a long-term Cement Manufacturing Plant Lease, covering
approximately 5,000 acres of Ranch land, with Pacific Western Industries, Inc. ("Pacific
Western"). Id. at 87; Jt. Ex. 3. The lease was ultimately assigned to National Cement. 27
FMSHRC at 87. Pursuant to the terms of the lease, National Cement extracts minerals such as
limestone, shale, and silica from quarries on the land, and processes them at the facility with
other materials trucked in from off-site sources to produce Portland cement for sale. Id. at 85.
Prior to the construction of the cement plant, there was a network of dirt roads on the
southern portion of the Ranch. Id. at 87. In 1965, Pacific Western began constructing an access
road to the cement plant by using in part some of the existing dirt roads. Id.; Jt. Exs. 5-6. The
resulting access road, which is the road at issue in this case, is a 4.3-mile-long, two-lane road that
runs north from State Route 138 in northern Los Angeles County to the location of the cement
plant. 27 FMSHRC at 86. In 1966, the access road was paved, and the cement plant was
constructed and began operating. Id. at 87. Easement deeds covering the road were entered into
and recorded during that time and were eventually assigned to National Cement. Id.; Jt. Exs. 1-2.
The road is not covered by any federal or state permits required to operate the mine. Contestant's
Mem. in Support of Mot. for Summ. Dec. ("Contestant's Mem."), Ex. 2, <JI 3.
Use of the road is restricted to: (I) Tejon' s employees, vendors, contractors, lessees,
licensees, and visitors; (2) National Cement's employees, vendors, contractors, and visitors; and
(3) those persons authorized to use it by the State of California. 27 FMSHRC at 87. Signs
reflecting this restricted nature of the road, Tejon's ownership, and National Cement's operations
are posted at the road's intersection with State Route 138 and on the initial segment of the road
on the way to the cement plant. Id. at 87-89.
2

The factual record in this case is largely based on the 77 joint stipulations that the
parties submitted to the judge, all of which he set forth in his decision. See 27 FMSHRC at 8598. The parties also submitted a book of Joint Exhibits. Id. at 85.
27 FMSHRC 722

Adjoining the road is fenced-in Ranch land that is acce.s sed by other dirt Ranch roads,
locked gates, and three cattle guard crossings. Id. at 86, 89. The road ends at the cement plant
site, where a gate and guardhouse, only intermittently manned, sit in front of the cement plant.
Id. A sign next to the guardhouse informs those entering that they must check in at the front
office, that MSHA regulates the site, and that those entering must comply with MSHA' s
regulations. Id. at 89-90.
The road provides the only vehicular access to the cement plant, which operates around
the clock, 7 days per week. Id. at 86, 91. The cement plant has a maximum annual production
capacity of 1-1/2 million tons, and operated at approximately 62 % capacity in 2003. Id. at 85.
Tanker trucks, weighing approximately 25,000 pounds, bring raw material loads of
approximately 55,000 pounds to the plant and leave empty. Id. at 91. Similarly, empty tank ··
trucks arrive at the plant and exit with 55,000-pound loads of cement for National Cement's
customers. Id. These trucks run 6 days a week, throughout the day and night, although the ..
customers' truck trips are concentrated between midnight and the early morning hours. Id. The
daily average for tanker-truck round trips on the road is 148. Id. In addition, on average, 84
employee round-trips and 5 non-tank truck deliveries to the cement plant occur daily. Id. 3
While the great majority of traffic on the road is due to the cement plant, the road: is used
by Tejon and its other lessees, licensees, and authorized visitors to gain access to and exit from
other commercial activities at the Ranch. Id. at 85-86, 91. These activities include: management
of ranching operations by Tejon and its lessees (id. at 92, 94); entertainment production
companies, commercial photographers, and others filming motion picture scenes, commercials,
music videos, and taking commercial still photographs (id. at 92-93); and hunting and camping
programs administered by Tejon management (id. at 93-94).4

In addition to providing access to Tejon' s commercial interests in the Ranch, the road is
used by various utility companies to access portions of the Ranch subject to easements those
utilities have entered into with Tejon to accommodate transmission lines and related facilities

3

The written materials in National Cement' s Site-Specific Hazard Training program
include instructions that National Cement' s contractors, vendors, and employees are to follow all
traffic signs and speed limits and are not to pass other vehicles on the access road to the plant.
27 FMSHRC at 91; see It. Ex. 65.
4

The subject road may also become a main traffic artery for an area of the Ranch for
which there are extensive mixed-use development plans. 27 FMSHRC at 94. Tejon wants to use
12,000 acres of the Ranch for a 23,000 unit commercial and residential development that would
include housing, retail, schools, and office facilities. Id. Tejon hopes to obtain the necessary
governmental approvals for the development starting this year, but it recognizes that any number
of impediments to the project could delay, alter, or derail the project, known as Tejon's
"Centennial" development. Id. at 94-95. The subject road is presently being used for accessing
areas of the Ranch in the project planning process. Id. at 95.
27 FMSHRC 723

that serve not only the cement plant, but also other users. Id. at 95-96. Similarly, representatives
of the Federal Aviation Administration use the road to access a communications tower located on
Tejon land adjacent to the cement plant quarry. Id. at 95.
The road is also used by the California Department of Water Resources ("DWR") to
access an aqueduct that DWR constructed in 1970. Id. at 90. fu fact, DWR owns the bridge that
carries road traffic over the aqueduct and maintains the bridge and its approaches. Id. The total
distance of road that DWR is responsible for maintaining is approximately 600 feet, and DWR
has installed speed bumps on both approaches along with warning signs. Id.
Maintenance of the road is otherwise the responsibility of the various parties that use it,
pro rata to their use. Id. at 91. fu practice, however, National Cement has always maintained and
kept it in usable condition. Id. For example, in November 2003, National Cement resurfaced,
sealed, and restriped the road, and installed speed bumps and speed limit signs on the road. Id.
National Cement has not sought Tejon's pre-approval for maintenance to be done on the road.
Id.
In 1992, the lack of berms or guardrails along parts of the road led MSHA to cite
National Cement for an alleged violation of section 56.9300(a). Id. at 96. MSHA soon thereafter
vacated the citation on the ground that National Cement was located at the end of the access road
and had no means to control the users entering the road from State Highway 138 until those users
·
reached the cement plant. Id.; Jt. Ex. 66 at 2.
The road was not the subject of any further citations until February 2003, when MSHA
again alleged a violation of section 56.9300(a). 27 FMSHRC at 96-97; Jt. Ex. 68 . .on this
occasion, the citation was vacated on the ground that National Cement lacked adequate notice
that the road was subject to Mine Act jurisdiction. 27 FMSHRC at 97-98; Jt. Ex. 68 at 3.
In December 2003, MSHA sent a letter to National Cement in order to put it on notice
that MSHA considered the road subject to the Mine Act. 27 FMSHRC at 98; Jt. Ex. 69. On
February 9, 2004, MSHA issued National Cement the citation that is the subject of this
proceeding, Citation No. 6361036, once again alleging a violation of section 56.9300(a). 27
FMSHRC at 86, 98; see Jt. Ex. 70. The citation states:
The mine operator failed to provide berms and guardrails
on the banks of the primary access road to the Lebec Cement Plant.
There were drop offs along the roadway ranging from 6 ft. to
approximately 25 ft. and sufficient to cause a vehicle to overturn or
endanger persons in equipment. The roadway was used
extensively by large over-the-road trucks, delivery vehicles, and
personal vehicles of mine personnel and vend[o]rs. The l[a]ck of
berms or guardrails on the two lane road presented a hazard

27 FMSHRC 724

particularly during inclement weather when vehicles could be
expected to slide and potentially become involved in accidents.
27 FMSHRC at 86-87; Jt. Ex. 70.
National Cement contested the citation, and Tejon intervened. 27 FMSHRC at 84, 87.
After filing their joint stipulations and exhibits, the parties subsequently filed cross-motions.for
summary decision on the issue of whether the road is subject to Mine Act jurisdiction. Id. at' 84.
In determining that the road at issue was a "coal or other mine" under section 3(h)(l) of
the Mine Act, 30 U.S.C.§ 802(h)(l), the judge read subsection (B) according to what he
considered to be its plain meaning. 27 FMSHRC at 98-99. He conclu~ed that the parties' stipulations established that the road was "private," and that under the commonly understood
meaning of the term, the road was "appurtenant" to the cement plant. Id. at 99. The judge
rejected National Cement's argument that its lack of control over the road would prevent it from
ensuring compliance with a section 104(b) withdrawal order, 30 U.S.C.§ 814(b), and held that
National Cement's history of maintaining and improving the road belied the operator's argument
that it does not have the authority under its agreement with Tejon to construct berms or
guardrails, as MSHA would have it do pursuant to section 56.9300(a). Id. at 100. The judge also
found that National Cement's use of the road was frequent and disproportionate as compared
with other users, thus justifying Mine Act oversight of the road. Id. at 100-01. He additionally
found that MSHA's inconsistent enforcement history with respect to the road was not a bar to the
assertion of Mine Act jurisdiction and that MSHA was unlikely to require hazard training on the
part of users of the road who had no connection to the cement plant. Id. at 101-02.
Consequently the judge granted the Secretary's motion for summary decision on the
jurisdictional question and scheduled further proceedings. Id. at 103. The judge's certification
for Commission interlocutory review of the issue raised by the cross-motions for summary
decision mooted that schedule. Id. at 157.

n.
Disposition
National Cement urges the Commission _to apply the plain meaning of the definitional
provisions of the Mine Act and reverse the judge's decision that the road is a "coal or other
mine." NCCC Br. at 17-20, 35. The operator contends that because it does not have the power
to control the road, and because it is not the only user of the road, the road qualifies as neither
"private" nor "appurtenant" to the cement plant as those two terms are used in section 3(h)(l)(B)
of the Mine Act. Id. at 17-28. National Cement also maintains that relevant legislative history
and the structure of the Mine Act compel the same conclusion. Id. at 28-32. It further argues
that, given the Secretary's enforcement history with respect to the road, her interpretation is not
entitled to deference in this case. Id. at 32-35. Intervenor Tejon filed a brief in support of the
operator's position.
27 FMSHRC 725

The Secretary argues for affinnance of the judge's decision because the definition of
"coal or other mine" plainly includes a road such as the one at issue. S. Br. at 15-19. The
Secretary continues that the road is "private" as that term is commonly understood and provides
access to the cement plant, thus making it "appurtenant." Id. at 19-21. The Secretary also
submits that the legislative history supports such an interpretation of the statute and that control
of the road is irrelevant to a determination of whether it is subject to the Mine Act. Id. at 21-30.
The Secretary further contends that nothing in the Mine Act or the enforcement history prevents
the road from being considered part of the mine within MSHA's jurisdiction. Id. at 30-35.
Section 4 of the Mine Act provides in part that "[e ]ach coal or other mine ... shall be
subject to the provisions of this Act." 30 U.S.C. § 803. The term "coal or other mine" is defined
in section 3 of the Act, 30 U.S.C. § 802. Specifically, section 3(h){l) defines it as:
(A) an area of land from which minerals are extracted in nonliquid
form or, if in liquid form, are extracted with workers underground,
(B) private ways and roads appurtenant to such area, and (C) lands,
excavations, underground passageways, shafts, slopes, tunnels and
workings, structures, facilities, equipment, machines, tools, or
other property including impoundments, retention dams, and
tailings ponds, on the surface or underground, used in, or to be
used in, or resulting from, the work of extracting such minerals
from their natural deposits in nonliquid form, or if in liquid form,
with workers underground, or used in, or to be used in, the milling
of such minerals, or the work of preparing coal or other minerals,
and includes custom coal preparation facilities. In making a
determination of what constitutes mineral milling for purposes of
this Act, the Secretary shall 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 establishment.
30 u.s.c. § 802(h)(l).
There is no dispute that the National Cement facility is a "mine" under section 3(h)(l) of
the Mine Act,5 and the parties have stipulated as much. 27 FMSHRC at 85. The issue here is
5

Pursuant to section 3(h)(l)(C), an agreement between MSHA and the Occupational
Safety and Health Administratj.on (OSHA) allocates responsibility between the two agencies for
various types of operations involving the mining and milling of minerals. See 44 Fed. Reg.
22,827 (Apr. 17, 1979), amended by 48 Fed. Reg. 7,521(Feb.22, 1983). Paragraph B.6.a. of that
agreement provides: "[p]ursuant to the authority in section 3(h)(l) [of the Mine Act] to determine
what constitutes mineral milling considering convenience of administration, . .. MSHA
jurisdiction includes . .. cement plants." 44 Fed. Reg. at 22,828.
27 FMSHRC 726

whether Mine Act jurisdiction extends beyond the National C~ment facility to include the 4.3mile-long access road, because that road is, in the words of subsection (B), a "private way[] [or]
road[] appurtenant" to the facility.6 This is the first time the Commission will address the
meaning of section 3(h)(l)(B).7
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 clear and unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 84243; accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990).
The starting point for interpreting the statutory definition of "coal or other mine" is the
language of the definition. See, e.g., Harman Mining Corp. v. FMSHRC, 671 F.2d 794, 796 (4th
Cir. 1981); Justis Supply & Machine Shop, 22 FMSHRC 1292, 1296 (Nov. 2000). Because the
Mine Act does not define "private" or "appurtenant," we first look to the commonly understood
definitions of those terms. See Drillex, Inc., 16 FMSHRC 2391, 2395 (Dec. 1994) (relying on
dictionary definition of "milling" to determine meaning of section 3(h)(l)(C)).
As to whether the subject road was "private," the parties agree on the applicable
definition of the operative term: "intended for or restricted to the use of a particular person or
group or class of persons: not freely available to the public." Webster's Third New Int'l

6

We note that neither the parties nor the judge applied the exact wording of section
3(h)(l) in this instance. Mine Act jurisdiction does not extend to private ways and roads that are
appurtenant to a "mine," but rather extends to private ways and roads that are appurtenant to "an
area of land from which minerals are extracted." See 30 U.S.C. § 802(h)(l)(A) & (B); Bush &
Burchett, Inc. v. Sec'y of Labor, 117 F.3d 932, 936-37 (6th Cir. 1997) (discussing issue in exact
language of statute). While the parties stipulated that the facility constituted a "mine" under
section 3(h)(l), they also are apparently assuming that the entire National Cement facility
qualifies as an "area of land from which minerals are extracted" under subsection (A) thereof.
Given the parties' approach to the issue, we therefore examine the relationship of the road to the
cement plant.
7

The court in Bush & Burchett addressed the meaning of section 3(h)(l)(B) and agreed
with the Secretary that a road and bridge connecting a coal mine to a rail loadout facility did not
fall within the definition of "coal or other mine" under the facts of that case. There, OSHA had
issued three citations alleging violations of the Occupational Safety and Health Act of 1970
("OSH Act") to the contractor responsible for constructing the bridge and its approaches, which
were to be used as part of the 6.5-mile route between the newly constructed surface mine and the
loadout facility. 117 F.3d at 933 & n. l. The Occupational Safety and Health Review
Commission ("OSHRC") rejected the contractor's arguments that the roads to be used as part of
the route were "appurtenant" to an area of land from which minerals are extracted and thus
within MSHA, not OSHA, jurisdiction and the court upheld OSHRC. Id. at 936-39.
27 FMSHRC 727

Dictionary, 1804-05 (1993) ("Webster's"). See NCCC Br. ':lt 21; S. Br. at 19. This definition of
the term makes it clear that a road can be private even if more than one party can use it, as a user
can be a member of a group or class of persons to which use is restricted. Here, the parties by
their stipulations established that the road is not now open to the general public, and is intended
for or restricted to the use of a particular group or class of persons - that is, those that Tejon and
National Cement permit to use it. 27 FMSHRC at 86 (Stip. Nos. 10-11), 87-89 (Stip. Nos. 1621), 99.
Regarding the meaning of the term "appurtenant," the parties again generally agree on the
applicable definition, citing the dictionary definitions relied upon by the judge in his decision.
NCCC Br. at 27; S. Br. at 20-21. The judge found "appurtenant" to be commonly defined as:
"a: annexed or belonging legally to some more important thing (a
right-of-way- to land or buildings); b: incident to and passing in
possession with real estate - used of certain profits or easements."
Webster's Third New International Dictionary 107 (1993). An
"easement appurtenant" is defined as: "~easement created to
benefit another tract of land, the use of easement be~ng incident to
the ownership [or leasehold] of that other tract." Black's La.w
Dictionary 549 (8th ed. 2004).
27 FMSHRC at 99. In concluding that the subject road is "appurtenant" in its entirety, both the
judge and the Secretary rely on the undisputed fact that National Cement holds an easement
interest in the entire road. Id.; S. Br. at 21. Moreover, the Secretary adds that the easement
transfers to successor lessors of the cement plant and thus can be said to pass in possession with
the real estate. S. Br. at 21 (citing Jt. Ex. 2).
Nevertheless, we conclude that the literal interpretation of the specific words used in
section 3(h)(l)(B) offered by the Secretary is not dispositive in determining the meaning of that
provision. To properly construe the phrase "private ways and roads appurtenant" as it is used in
section 3(h)(l)(B), it is necessary to consider the language in the context of the Mine Act. In
ascert.a ining 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. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); see also
Local Union 1261, UMWA, 917 F.2d at 44-45 ("Il the first rule of ... construction is 'Read,' the
second rule is 'Read on!"').
Moreover, in statutory interpretation, the ordinary meaning of the words used in the
statute cannot be applied to produce absurd results. Emery Mining Corp., 9 FMSHRC 1997,
2001(Dec.1987) (citing In re Trans Alaska Pipeline Rate Case, 436 U.S. 631, 643 (1978)). In
particular, the Sixth Circuit recognized that section 3(h)(l)(B) must not be read "contrary to
common sense" and that reasonable limitations must be placed on its breadth in order to avoid

27 FMSHRC 728

"bizarre results." Bush & Burchett, Inc. v. Sec'y of Labor, 117 F.3d 932, 937 (6th Cir. 1997).
Similarly, that court recognized that Congress' use of the phrase "appurtenant to" with respect to
a road's relationship to a mine produced a "nebulous boundary" in determining the scope of
MSHAjurisdiction. Id. at 936-37.
The resolution of whether a particular road is "appurtenant to" a mine facility must take
careful account of the specific factual circumstances and not be based on an inflexible, literal
application of the statute that disregards real, practical implications and leads to an absurd result.
Accordingly, we analyze in some detail the facts in this case, how they relate to the jurisdictional
issue presented, and how the definition of "coal or other mine" must be applied consistently with
the overall structure and purpose of the Mine Act.
In this case, Tejon, pursuant to the terms of the Cement Manufacturing Plant Lease, has
granted the operator of the cement plant facility an easement which permits that operator the
right of access to its facility via the entire road, and the right to grant others such access.8 This is
a non-exclusive easement, however, as Tejon reserves to itself the right to also use the road, and
the right to grant others use of the road, so long as such additional use of the road does not
materially interfere with the cement plant operator's use. 9

8

The lease provides in pertinent part:
11. Easements. Lessor shall grant to Lessee without
further consideration such non-exclusive rights of way and
easements upon the Demised Premises and Lessor's adjacent lands
as may be reasonably necessary and convenient for the erection,
construction, maintenance, and operation of access roads, ... ;
provided, however, the location of any such rights of way and
easements shall be subject to the prior written approval of Lessor,
which Lessor agrees to give so long as such location does not
unreasonably [interfere] with the present or reasonably
contemplated future operations of Lessor or any tenant of
Lessor....
Lessee and the other grantees, if any, of joint-use easements
and rights of way, pro rata in accordance with their respective use
thereof, shall maintain all such easements and rights of way in such
condition as necessary for use thereof by Lessee in the usual
conduct of its business.

Jt. Ex. 3 at 17-18.
9

Pursuant to the Cement Manufacturing Plant Lease, a Memorandum of Easement Deed
("MED") was recorded that describes the easement for the access road. Jt. Ex. 2. In addition to
27 FMSHRC 729

Consequently, parts of the road are used for purposes unrelated to the cement plant as
Tejon permits. 27 FMSHRC at 90, 92-96. This non-ce111ent plant traffic is beyond National
Cement's control. The road leads to several locations other than the cement plant, and this traffic
can enter and leave the road at a number of locations, such as, for instance, when the road is
being used by members of the "Explorer Program" conducted at the Ranch. 10 Id. at 92-96.
While, as the judge found, the vast majority of traffic on the road is to and from the cement plant,
vehicles carrying Tejon employees, contractors, and others that Tejon may permit on the Ranch
property for various purposes also travel over all or part of the road. Id. at 91-95, 100.
The Secretary does not dispute that National Cement cannot control use of the road, and
instead argues that the degree of control National Cement has over the road is not a relevant
consideration to a detennination of whether a road is private and appurtenant under section
3(h)(l)(B). S. Br; at 25-27. The Secretary further suggests that jurisdiction in this instance be
decided only within the context of the citation at issue, and alleges that, because National Cement
could install berms or guardrails where needed, Mine Act jurisdiction over the road is justified in
this instance. Id. at 30-32.
Looking at the Mine Act as a whole, as we must, we do not agree with the Secretary that
National Cement's lack of control over use of the road can be ignored. A finding of Mine Act
jurisdiction over the subject road in this instance would not simply mean that National Cement
would be obligated to install guardrails or berms along the road; such a finding would raise a host
of issues regarding compliance with the Mine Act and Mine Act standards under circumstances
where National Cement could not control other users of the road. As discussed below, a
determination that property is a "coal or other mine" has far-ranging consequences under the Act.
Cf Bush & Burchett, 117 F.3d at 937 (examining ramifications of deciding that road would fall
within Mine Act jurisdiction).

providing a description of the boundaries of the easement, the MED states that "[t]he easement is
for the purpose of enabling Grantee to construct, maintain, operate, inspect, repair, remove and
use an access road and right of way for the purpose of ingress and egress to and from Grantor's
land leased by Grantee under [the aforementioned lease]." Id. at 1 & Ex. A. The MED also
states that the easement runs as long as the lease runs, and that the easement's terms, covenants,
and conditions are contained in a concurrently executed separate Easement Deed, which is
incorporated by reference into the Memorandum. Id. at 1-2. While the parties did not include
that Easement Deed in the Joint Exhibits, the Road Easement Deed that was superceded by the
Easement Deed referred to in the MED was included as Joint Exhibit 1. That earlier easement
reserved to Tejon the right to use and cross over the subject road, "and the right to grant to others
ease~ents in proximity to, crossing or overlapping the right of way and easement herein granted
provided such other easement shall not materially interfere with the use and enjoyment of the
right of way and easement herein granted." Jt. Ex. 1 at 1.
10

The Ranch has approximately 30 miles of paved roads, with significantly more miles
of dirt roads. 27 FMSHRC at 86.
27 FMSHRC 730

First of all, other fundamental terms used in the Mine Act, in both establishing the reach
of health and safety standards and in outlining the enforcement procedures to be followed, are
defined in relation to the term "coal or other mine." For instance, section 3(d) defines "operator"
in the Act to mean "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) (emphasis added). Thus, a conclusion that the entire access road is a
"coal or other mine" might lead to an expansive interpretation of "operator" not intended by
Congress. 11
Similarly, section 3(g) provides that a "miner" is "any individual working in a coal or
other mine." 30 U.S.C. § 802(g). Consequently, if the entire access road is a "coal or other
mine," individuals over whom National Cement has no control - such as, for example, DWR
personnel or a truck driver or explosives expert working for a film company- would each
presumably be considered a "miner" for purposes of MSHA enforcement. There is nothing in the
Mine Act or its legislative history that leads us to believe that Congress would have intended
such an absurd result when it drafted the language of section 3(h)(l)(B).
The concern with such absurd results is not an idle one. Because the Mine Act is a strict
liability statute, any violation of the Act or the mandatory safety and health standards adopted
thereto that occurs on the road would be attributable to the mine operator, regardless of whether
the operator is at fault. See, e.g., Allied Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (Sth
Cir. 1982) (under section 104(a), if conditions exist which violate regulations, citations are
proper); Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982) (under section
l lO(a), operators are liable for violations without consideration of fault).
Below, the judge expressed confidence that the Secretary would not seek to enforce Mine
Act requirements with respect to those users of the road with no connection to National Cement's
operations, such as cattle ranchers. 27 FMSHRC at 102. He also believed that National Cement
could comply with a withdrawal order issued pursuant to section 104(b) of the Act, 30 U.S.C.
11

Here, the facts clearly establish that, for purposes of section 3(d), National Cement
"controls" the access road only to the extent that it is used in conjunction with the activities of
the quarries and the cement plant. National Cement does not and could not exercise control over
non-mining activities that also utilize the access road. The Secretary intimates that in some
situations it may be more appropriate for MSHA to cite Tejon instead of National Cement for a
violation of a standard. S. Br. at 31-32. Citations under the Mine Act may only be issued against
"operators." See 30 U.S.C. § 814(a) ("[i]f ... Secretary ... believes that an operator of a coal or
other mine subject to this Act has violated this Act, or any mandatory health or safety standard,
rule, order, or regulation promulgated pursuant to this Act, he shall ... issue a citation to the
operator"). The Secretary gives no further explanation of what could lead her to conclude that
Tejon should be considered an operator under the Mine Act, so her suggestion provides no
reassurance that the ramifications of asserting Mine Act jurisdiction over the access road have
been thoroughly explored.
27 FMSHRC 731

§ 814(b), by simply turning away its traffic from the road, while non-cement plant related traffic
could continue to use the road. 27 FMSHRC at 100.

Regardless of whether the judge's reading of the Mine Act is correct, 12 on appeal the
Secretary has reaffirmed her authority to hold National Cement strictly liable for all violations,
including those committed by unrelated third parties. See S . Br. at 28-32 (citing Miller Mining
Co. v. FMSHRC, 713 F.2d 487, 491 (9th Cir. 1983)). Thus, as National Cement fears, it appears
that the ~ecretary would issue a citation for Mine Act violations committed by a user of the road
who had no connection to National Cement's operations. Such users could include Tejon ranch
workers and security personnel, the various employees of movie and video production
companies, those leading hunting and camping expeditions, engineers and others involved in the
Centennial development project, DWR staff examining the aqueduct, and FAA employees.
Again, we cannot conclude that Congress intended that the jurisdictional provisions of the Mine
Act should be interpreted to cover workers with no connection to National Cement, particularly
when National Cement has no control over those individuals when they use the access road. 13

12

We note that section 3(h)(l) defines "coal or other mine" in geographic terms. Energy
West Mining Co., 15 FMSHRC 587, 592 & n.9 (Apr. 1993). All activities that occur within a
mine's consequential boundaries are covered by the Mine Act. There is nothing in the Mine Act
which would limit jurisdiction over the access road temporally or functionally, such as only when
the road is being used·in furtherance of National Cement's operations. In addition, under section
103(a) of the Act, each "coal or other mine" is subject to inspection, and if a violation is found
during such inspection, the inspector, pursuant to section 104(a) of the Act, "shall . .. issue a
citation to the operator" of the mine. 30 U.S.C. §§ 813(a), 814(a) (emphasis added). The Mine
Act thus does not allow for discretionary enforcement once a violation is discovered to have
occurred in an area that is a "coal or other mine" under section 3(h)(l).
13

While our dissenting colleague may not believe that the Secretary intends "to enforce
the Act in such a bizarre fashion" (slip op. at 20), this is not the first time the Secretary has taken
the position that an operator is strictly liable for any violation occurring on mine property. See
Extra Energy, Inc., 20 FMSHRC 1, 8 n.11 (Jan. 1998) (Secretary argued that operator is strictly
liable for violations that take place at its mine, including "private ways and roads appurtenant. ·
thereto," "even if it.was the victim of an unrelated party's actions"). In fact, she has done so in
this case. See supra n.11. Furthermore, unlike the dissent (slip op. at 20), we do not read the
Secretary's citation in her brief to Otis Elevator Co. v. Secretary of La.bor, 921 F.2d 1285, 1290
n.3 (D.C. Cir. 1990), to provide any comfort to National Cement. There the court suggested that
there may be a case in which a contractor's connection to a mine is so infrequent or de minimis
that the contractor would not be subject to the Mine Act jurisdiction as an operator. Id.; see also
Northern Illinois Steel Supply Co. v. Sec'y of Labor, 294 F.3d 844, 846-49 (7th Cir. 2002).
There is no suggestion whatsoever in Otis that in such a circumstance the operator of the mine
where the violation occurs would also escape liability under the Act's strict liability standard.
27 FMSHRC 732

Considering 30 C.F.R. Part 56 alone, National Cement.would be potentially liable for
violations of a myriad of Mine Act standards that would apply to parties using the access road for
any number of non-cement plant purposes if we were to uphold MSHA' s jurisdiction over the
access road. While many Part 56 standards are by their nature limited in their application to
mining operations, a significant number are not and are relevant to the various non-cement plant
uses of the access road. See, e.g., 30 C.F.R. Part 56, Subpart C (Fire Prevention and Control),
Subpart D (Air Quality and Physical Agents), Subpart E (Explosives}, Subpart H (includes traffic
safety provisions), Subpart Q (Safety Programs), and Subpart S (Miscellaneous). Moreover,
Subpart Hof Part 56 defines "mobile equipment" as "wheeled, skid-mounted, track-mounted, or
rail-mounted equipment capable of moving or being moved." 30 C.F.R. § 56.9000. That broad
application covers every conceivable vehicle that could be operated on the road by entities other
than National Cement. 14
In deciding whether Mine Act jurisdiction extends to the road, we cannot ignore the
potential application of various Mine Act standards to those users of the road who have no
relation to mining and cannot be controlled by National Cement. Due process requites that an
operator must be in a position to prevent a violation before it can be charged with the violation
under the strict liability of the Mine Act. Cf Miller, 713 F.2d at 491 (operator held liable for
violation that occurred when unknown party entered operator's underground mine and altered
ventilation system); Cyprus Indus. Minerals Co. v. FMSHRC, 664 F.2d 1116, 1119 (9th Cir.
1981) (holding that mine owner can be held liable for violation by its independent contractor
because the owner is generally in continuous control of conditions at mine). Here, given the lack
of control National Cement has over use of the access road by others, National Cem~nt i& in no
position to prevent Mine Act violations by those other users.
Furthermore, ~pplication of the definition of "coal or other mine" must be guided by the
purposes and policies of the Mine Act. See Local Union 1261, UMWA, 917 F.2d at 47-48. It is
significant here that the hazards to which miners and other persons are exposed on the access
road are essentially typical highway hazards - they are not hazards peculiar to quarries, other
mining operations, or traditional mine haulage roads. Indeed, we note that, from the lengthy
videotape evidence submitted, the access road appears to be virtually indistinguishable from
State Route 138 in its composition, layout, and terrain. Jt. Ex. 71. Thus, we conclude that
placing commonsense limitations on Mine Act jurisdiction in this case is consistent with the
purposes and policies of the Act.
Finally, the Secretary points to the legislative history of the Mine Act as support for the
notion that Congress nevertheless intended that the road fall under Mine Act jurisdiction. S. Br.
14

In addition to the requirements of Part 56, the extensive requirements of Part 50
governing notification, investigation, reporting, and recording of accidents, injuries, and illnesses
attributable to any worker's use of the road, regardless of whether the worker had a connection to
National Cement, would also presumably apply, as those regulations use the Mine Act definitions
of "mine" and "miner." See 30 C.F.R. § 50.1 et seq.
27 FMSHRC 733

at 22-25. In discussing the issue of jurisdiction, the Committee responsible for drafting the Mine
Act stated that:
it 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, and it is the intent of this Committee that doubts be
resolved in favor of inclusion of a facility within the coverage of
the Act.
S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 (1978). The
Sixth Circuit in Bush & Burchett, however, specifically rejected the idea that this portion of the
Mine Act's legislative history can be used to extend Mine Act jurisdiction to areas that defy
common sense and lead to bizarre results. 117 F.3d at 937. 15
The Secretary also.argues that National Cement should not be permitted to escape Mine
Act jurisdiction over the road because of agreements it entered into with Tejon. S. Br. at 29. The
Commission has generally refused to let parties' commercial agreements limit the reach of the
Mine Act. See, e.g., Mineral Coal Sales, Inc., 7 FMSHRC 615, 620-21 (May 1985) ("the
operations taking place at a single site must be viewed as a collective whole. Otherwise,
facilities could avoid Mine Act coverage simply by adopting separate business identities along
functional lines, with each performing only some part of what, in reality, is one operation.");
Republic Steel Corp., 1 FMSHRC 5, 11 (Apr. 1979) ("[a} mine owner cannot be allowed to
exonerate itself from its statutory responsibility for the safety and health of miners merely by
establishing a private contractual relationship in which miners are not its employees and the
ability to control the safety of its workplace is restricted.").
Here, however, there is no credible allegation that National Cement's agreements with
Tejon were designed to limit Mine Act jurisdiction over the road. The agreements establishing
the cement plant and the use of the access road predate the enactment of the ·Mine Act (Jt. Exs. 13), and there is no evidence that the agreements were entered into for any reason other than
legitimate business concerns on the part of Tejon and the original cement plant operator.
Moreover, the record establishes that Tejon uses the southern portion of the Ranch to pursue
15

As both parties acknowledge (S. Br. at 23-24 n.8; NCCC Br. at 28), a definition of
"mine" much along the lines of that now found in section 3(h)(1) of the Mine Act, and including
the subsection (B) language at issue here, originated in a predecessor statute to the Mine Act, the
Federal Metal and Nonmetallic Mine Safety Act. See Pub. L. No. 89-577, Sec. 2(b), 80 Stat. 772,
772-73 (1966). There is no explanation in the reports that accompanied that legislation of the
meaning of "private ways and roads appurtenant to." See 1966 U.S.C.C.A.N. 2846 (S. Rep. No.
89-1296). Consequently, the applicable legislative history is of no assistance in determining
whether Congress intended to extend MSHA' s jurisdiction to a road over which the mine
operator substantially lacked the ability to exclude other users, as is the case here.
27 FMSHRC 734

other significant commercial interests, and that the road at issue here is necessary to those uses.
See Contestant's Mem., Ex. 1, fl 5-6.
As discussed above, the definition of "coal or other mine" must be applied to the unique
factual circumstances in this case in a way that avoids absurd or unintended results and is
consistent with the putposes and policies of the Act. Accordingly, we reverse the judge's
conclusion that the entire access road is subject to Mine Act jurisdiction. Interpreting section
3(h)(l)(B)'s extension ·o f Mine Act jurisdiction over "appurtenant" roads in the context of the
Mine Act as a whole, we hold instead that only such portion of the access road over which
National Cement and its customers have exclusive use can be considered an appurtenant road in
this instance. While not established with specificity below, it appears from the record that there
is a point on the road, at or near the last crossroads departing the access road on the way to the
cement plant, beyond which traffic authorized by Tejon but unrelated to National Cement's
facility ceases. 16 On remand, the judge should ascertain that point, reopening the record if
necessary, and Mine Act jurisdiction would extend under section 3(h)(l)(B) only to the segment
of the road between that point and the entrance to the National Cement facility.

16

Our holding does not leave the remainder of the access road unregulated. As in the
case of Bush & Burchett, (see supra n.7), jurisdiction for workplace health and safety would lie
with OSHA, its state counterpart in California, or both. See 29 U.S.C. § 653(b)(l) (OSHA has
jurisdiction to regulate working conditions of those employees whose occupational health and
safety is not regulated by other federal agencies or by state agencies pursuant to the OSH Act);
Cal. Lab. Code § 6307 (Division of Occupational Safety and Health in California Department of
Industrial Relations "has the power, jurisdiction, and supervision over every employment and
place of employment in this state, which is necessary to adequately enforce and administer all
laws and lawful standards and orders, or special orders requiring such employment and place of
employment to be safe, and requiring the protection of the life, safety, and health of every
employee in such employment or place of employment").
27FMSHRC735

Ill.
Conclusion

For the foregoing reasons, we vacate the judge's decision granting the Secretary's motion
for summary decision and remand the case for further proceedings consistent with this decision.

27fMSHRC736

Commissioner Jordan, dissenting:
The majority states that in order to avoid "absurd results," it must find that the
Department of Labor's Mine Safety and Health Administration ("MSHA") has no jurisdiction
over most of an access road leading to a cement plant and quarries owned by National Cement
Company of California, Inc. ("National Cement"). Slip op. at 8-14. Accordingly, miners driving
on the road are bereft of protection under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2000) ("Mine Act"). In reaching their conclusion, my colleagues caution
against an interpretation of the jurisdictional language in the Mine Act "that disregards real,
practical implications," slip op. at 9, and yet they fail to mention, much less analyze, the "real,
practical implications" of a completely unregulated road over which miners working for National
Cement travel daily and where they are exposed to safety hazards. Because I disagree with the
majority's rationale, I dissent and would hold that MSHA has jurisdiction over the entire road at
issue.
My analysis of this jurisdictional question begins, as it must, with the language of the
Mine Act. Section 4 of the Mine Act states in part that "[eJach coal or other mine . . . shall be
subject to the provisions of this Act." 30 U.S.C. § 803. Like other terms used in the statute, the
term "coal or other mine" is defined in Section 3 of the Act, 30 U.S.C. § 802. Specifically,
section 3(h)(l) defines it in relevant part as:
(A) an area of land from which minerals are extracted in nonliquid
form or, if in liquid form, are extracted with workers underground,
[and] (B) private ways and roads appurtenant to such area . . ..
30 U.S.C. § 802(h)(l). Thus, the controlling question in this case is whether the road at issue is
private and appurtenant to an area of land fro~ which minerals are extracted.
Substantial evidence supports the judge's conclusion that the road is private, and the
majority appears to have implicitly adopted this finding. Slip op. at 7-8. 1 The parties, by their
stipulations, established that the road is not now available to the public and is intended for or
restricted to the use of a particular group or class of persons - that is, those that Tejon and
National Cement permit to use it. 27 FMSHRC 84, 86 (Stip. Nos. 10-11), 87-89 (Stip. Nos. 1621), 99 (Jan. 2005) (AU). For example, the signs erected by National Cement at the entrance to
the road warn the public that the·road is private. One states "You Are Now Entering Private
Property Of National Cement Co., Inc." Jt. Ex. 22. The terms of the easement that National
Cement holds in the road actually require the operator to post the road as private. Jt. Ex. 1 at 2.
The road' s use is restricted to those permitted there by National Cement and Tejon, 27 FMSHRC
at 87 (Stip. No. 21), and trespassing is explicitly forbidden. Id. at 88 (Stip. No. 21b, c).; Jt. Exs.
1

The parties agree that "private" means "intended for or restricted to the use of a
particular person or group or class of persons; not freely available to the public." Slip op. at 7-8,
citing Webster's Third New Int'l Dictionary 1804-05 (1993).
27 FMSHRC 737

18, 19. In fact, Tejon admits that the road is private. Sec'y's Mot. for Summ. Dec., Ex. 3 at 3
(Intervenor's Adm. No. 2). Moreover, the agreed upon definition of "private" makes it clear that
something can be private even if more than one party can use it, as the definition contemplates
that a user can be a member of a group or class of persons to which use is restricted.
Substantial evidence also supports the judge's finding that the road is appurtenant. The
parties do not dispute the definitions relied upon by the judge in his decision:
"a: annexed or belonging legally to some more important thing (a
right-of-way- to land or buildings); b: incident to and passing in
possession with reitl estate- used of certain profits or easements."
Webster's Third New International Dictionary 101 (1993). An
"easement appurtenant" is defined as: "an easement created to
benefit another tract of land, the use of easement being incident to
the ownership [or leasehold] of that other tract." Black's Law
Dictionary 549 (8th ed 2004).
27 FMSHRC at 99.
As my colleagues acknowledge, slip op. at 8, it is undisputed that National Cement's
property interest in the road is by way of easement. 27 FMSHRC at 99. Furthermore, the
Secretary points out that the road is incident to, and would pass in possession with the lease from
Tejon pursuant to which National Cement operates the cement plant. Id.; S. Br. at 21 (citing Jt.
Ex. 2). In contrast, National Cement argues that the road is not annexed to the mine in this
instance, as the mine does not control the road, and despite the easement National Cement has to
use the road, the road exists not to exclusively benefit the mine, but rather benefit the larger
Tejon tract of property of which the mine is but a part. NCCC Br. at 27-28.
National Cement argues that the plain meaning of the term "appurtenant" as it applies to
private roads reaches only those private roads over w.hich the mine has exclusive use and control,
but the dictionary definition of that term explains it by way of references that run counter to such
a notion. There is no denying that a "right-of...way to land or buildings," referred to in the first
Webster's definition of the term, can be granted to or otherwise possessed by more than one
party. The same can be said with respect to an "easement," referred to in the second definition.
Indeed, the Memorandum of Easement submitted by the parties describes the "right-of-way
easement" granted as "non-exclusive." Jt. Ex. 2 at 1.
Moreover, Webster's additionally defines "appurtenant" as "belonging, appropriate,
accessory." Webster's at 107. The parties have stipulated that the subject road provides the only
vehicular access to the cement plant for raw materials entering it and cement product exiting it.
27 FMSHRC at 86 (Stip. No. 12). It appears, therefore, that the plant cannot operate without the
road. Accordingly, I do not agree that considerations of exclusive control override the plain
meaning of the term "appurtenant" as it is used in section 3(h)(l)(B). Cf RNS Servs., Inc. v.

27 FMSHRC 738

Sec'y of La.bor, 115 F.3d 182, 186 (3rd Cir. 1997) (refusing to.read a purity requirement into
"coal" as it is used in section 3 definitions). 2
Furthermore, there is nothing in the legislative history of the Mine Act that supports the
notion that Congress intended the Act to cover only those private access roads over which a mine
operator had exclusive use and control. The legislative history, in comparing the definition of
"mine" in the Mine Act with that found in its predecessor statute, the Federal Coal Mine Health
and Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 742 ("Coal Act"), states that "all private
roads" appurtenant to mineral extraction areas were to be included in the definition of "coal or
other mine." S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm.
on Human Res., Legislative History ofthe Federal Mine Safety and Health Act of 1977, at 602
(1978) ("Legis. Hist."). This passage clearly cuts against the restrictive interpretation of
"private" and "appurtenant" urged by National Cement and accepted by the majority.
In addition, when Congress enacted the Mine Act, the Conference Committee stated that
the definition of "mine" should include "roads ... related to the mining activity." S. Conf. Rep.
No. 95-461, at 38 (1977), reprinted in Legis. Hist. at 1316. The road at issue is certainly "related
to mining activity," as it provides the sole means of access to the cement plant and is used almost
continuously by heavy trucks carrying materials and products to and from the plant. 27
FMSHRC at 91 (Stip. Nos. 39-42).
pespite the fact that both the plain meaning of the statutory terms and the legislative
history of the Mine Act support MSHA' s jurisdiction over the road, the majority reads a third
criterion into the Mine Act jurisdictional language (private and appurtenant and exclusive use)
under the protective guise of the "absurd results" doctrine. Slip op. at 8-14. In effect, the
majority's ruling changes the language of the Mine Act, "read[ing] into the statute a drastic
limitation that nowhere appears in the words Congress chose .. . ." Hercules, Inc. v. EPA, 938
F.2d 276, 280 (D.C. Cir. 1991). See also Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275,
1280 (10th Cir. 1995); Asarco, Inc. - Northwestern Mining Dept. v. FMSHRC, 868 F.2d 1195,
1197 (10th Cir. 1989). Relying on the necessity to avoid "absurd results," the majority holds that
only the portion of the road over which the operator has "exclusive use can be considered an
appurtenant road in this instance." Slip op. at 15. The occasional and sporadic use of the road by
others should not deprive the National Cement trucks of Mine Act protection - that is the absurd
result occurring here.3

2

I note that National Cement chose to acquire a cement plant on leased property with
road access pursuant to a non-exclusive easement. The Commission has generally refused to
permit the design of employers' commercial relationships to limit the reach of the Mine Act
where it would otherwise apply. See Mineral Coal Sales, Inc., 7 FMSHRC 615, 620-21 (May
1985).
3

Although my colleagues cite Bush & Burchett, Inc. v. Secretary of La.bar, 117 F.3d 932
(6th Cir. 1997), when they suggest that, despite their holding, the access road would be regulated,
27 FMSHRC 739

The Secretary's reminder that mine operators have ft:equently been held liable even for
violations for which they were not at fault, S. Br. at 28-32, is interpreted by the majority as an
indication the Secretary is prepared to cite National Cement for a violation that might be
committed by a user of the road who had no connection to National Cement's operations. Slip
op. at 12. The specter of National Cement receiving a citation, for example, because of a
condition observed on the vehicle of an employee of a movie and video production company
causes my colleagues great discomfort. As well it should. In fact, I share their concern about the
· fairness of such an enforcement action. But I see no evidence that the Secretary intends to
enforce the Act in such a bizarre fashion. Indeed, citing to Otis Elevator Co. v. Sec'y of Labor,
921F.2d1285, 1290 n.3 (D.C. Cir. 1990), the Secretary acknowledges authority stating that there
may be occasions when an entity's contact with a mine is "so attenuated as to remove it from
MSHAjurisdiction." S. Br. at 31.4
Accordingly, I am reluctant to join the majority in basing my decision in this matter on
the proposition that the Secretary may cite "workers with no connection to National Cement."
Slip op. at 12. The Secretary simply has not indicated any intent to cite National Cement to
address conditions it is not in a position to correct.
In any event, other than with respect to the road itself, MSHA's regulation of
transportation under 30 C.F.R. Part 56 is largely drafted to apply only to mine vehicles and
equipment, so the regulations should not reach non-mine users of the road. See 30 C.F.R. Part
56, Subpart H ("Loading, Hauling, and Dumping"). Thus, the majority's concerns are not only
misplaced but possibly unfounded. Many of the regulations apply only to vehicles that would not

slip op. at 15 n.16, their reliance is misplaced. That case involved a construction site located on a
haul road and bridge. 117 F.2d at 935. The court ruled that the worksite was covered by the
Occupational Safety and Health Act instead of the Mine Act. Id. at 940. The violations at issue
did not involve road conditions; rather, they included alleged safety violations at the construction
worksite itself (e.g., rung spacing on a ladder, fire extinguishers, fall protection, etc.). Bush &
Burchett, Inc., 17 OSHC 1531, 1538, 1540, 1542 (1995). My colleagues have failed to point out
any regulation promulgated by the Occupational Safety and Health Administration that would
require the installation of a berm or guardrail on the road at issue here, and indeed, I have been
unable to locate one.
Also, although my colleagues appear to suggest that the Court upheld the ruling of the
Occupational Safety and Health Review Commission that the road was '"appurtenant' to an area
of land from whjch minerals are extracted," slip op. at 7 n.7, the court expressly refused to
address that issue, because it found the road to be public, not private. 117 F.3d at 936-37 n.6.
4

My colleagues are not reassured by the Secretary's citation to Otis, because, according
to them, the case involved a contractor, rather than an operator. Slip op. at 12 n.13. However,
under section 3(d) of the Mine Act, 30 U.S.C. § 802(d), such a contractor performing services at
a mine is an operator.
27 FMSHRC 740

be driven by non-cement plant users of the road or reference activities that would only occur
within the confines of the cement plant itself. Those regulations which do apply to all vehicles
require nothing out of the ordinary of their drivers and recognize different standards are
appropriate for different vehicles. See, e.g., 30 C.F.R. § 56.9101 ("Operators of self-propelled
mobile equipment shall maintain control of the equipment while it is in motion. Operating
speeds shall be consistent with conditions of roadways, tracks, grades, clearance, visibility, and
traffic, and the type of equipment used.").
My colleagues reject the "literal interpretation" of the statutory language offered by the
Secretary because it is "necessary to consider the language in the context of the Mine Act." Slip
op. at 8. However, the context chosen by the majority appears to be one of operator convenience,
rather than of miner safety. The majority gives lip service to an interpretation "consistent with
the purposes and policies of the Act" but never discusses the safety implications of its decision
and the lack of protection it creates for miners traveling on the road. Inexplicably, and with no
citation to the record nor with any explanation, the majority opines that "the hazards to which
miners . .. are exposed on the access road are essentially typical highway hazards - they are not
hazards peculiar to . . . traditional mine haulage roads." Slip op. at 13. I fail to see how the
miners driving these trucks are not at risk for some of the same hazards found on mining roads. 5
In fact, the potential dangers that miners driving trucks could face on the road, described by
MSHA Assistant District Manager Ronald Goldade (Sec'y's Mot. for Summ. Dec., Ex. 5 (Aff. of
Goldade) at 1-2), are addressed by MSHA regulations regarding haulage roads found in Part 56
Subpart H ("Loading, Hauling, and Dumping"). See, e.g., 30 C.F.R. § 56.9100 (''Traffic
Control"); 30 C.F.R. § 56.9101 ("Operating Speeds and Control of Equipment"); 30 C.F.R. §
56.9300 ("Berms or Guardrails").
Permitting concerns about future National Cement liability for non-mining related activity
to guide the outcome of this case is letting the tail wag the dog. The majority lists a speculative
5

The citation issued in this case (for a violation of 30 C.F.R. § 56.9300, requiring berms
or guardrails) describes a situation typically found on mine haulage roads. It states:
The roadway was used extensively by large over-the-road trucks, delivery
vehicles, and personal vehicles of mine personnel and vendors. The lack
of berms or guardrails on the two lane road presented a hazard particularly
during inclement weather when vehicles could be expected to slide and
potentially become involved in accidents.
27 FMSHRC at 86-87; Jt. Ex. 70. In addition, although the majority focuses on the type of road
at issue, the type of truck used by National Cement has been identified by MSHA as particularly
hazardous. ("[L]arge haulage vehicles with a high center of gravity and relatively narrow wheel
track width are more susceptible to overturning than small utility trucks." Safety Standards for
Loading, Hauling, and Dumping at Metal and Nonmetal Mines, 49 Fed. Reg. 49,202, 49,209,
(proposed Dec. 18, 1984)).
27 FMSHRC 741

parade of horribles that could be created if jurisdiction were.found here. It fails to focus on the
ongoing use of the road by heavy mine trucks and fails even to mention the concrete reality of the
dangerous situations that have already occurred on this road. The parties stipulated that most of
the traffic on the road is for cement-plant related purposes. 27 FMSHRC at 91 (Stip. No. 38). In
fact, the judge found that " [n]on-National Cement use of the road is dwarfed by National Cement
traffic." Id. at 101. National Cement trucks run 6 days per week, with an average 148 roundtrips made daily by the tanker trucks. Id. at 91 (Stip. No. 42). As many as 33,887 trucks travel
up the mine road annually. Jt. Ex. 64. The trucks weigh approximately 25,000 pounds empty as
they arrive at the plant and approximately 80,000 pounds loaded as they leave. 27 FMSHRC at
91 (Stip. No. 39). In addition, there are also an average of 84 employee round trips and 5
deliveries to the cement plant daily. Id. (Stip. No. 43). Accidents have occurred on the road,
including the rollover of one heavy truck and the partial rollover of another. Sec'y's Mot. for
Summ. Dec., Ex. 5 (Aff. of Goldade); Id., Ex. 6 (National Cement Accident Report & Mem.
from Randy Logsdon dated Sept. 8, 2003); Id., Ex. 7 (Contestant's First Supplemental Resp. to
Interrog. No. 19). Furthermore, miners have made numerous complaints to MSHA regarding the
road conditions. Id., Ex. 5 (Aff. of Goldade).
It appears that my col1eagues, in addressing the interpretive and jurisdictional questions
raised by this case, have not focused on the concerns outlined above. Thus, while basing their
entire analysis on the "absurd results" exception to the plain meaning doctrine of statutory
interpretation, they completely ignore an equally important canon of statutory construction
stating that remedial legislation should be construed broadly so as to effectuate its purpose, and
that therefore questions of interpretation should be resolved to ensure consistency with the
safety-promoting purposes of the Mine Act. See Rock ofAges Corp. v. Sec'y of Labor, 170 F.3d
148, 155 (2d Cir. 1999); RNS Servs. Inc., 115 F.3d at 186-87.
Finally, my colleagues restrict jurisdiction to that part of the road where National Cement
has exclusive use, but appear unable to cite to any part of the record demonstrating that such
exclusive use in fact exists ("While not established with specificity below, it appears from the
record that there is a point on the road ... beyond which traffic ... unrelated to National
Cement's facility ceases," slip op. at 15, is as clear as the majority could get on this point). Thus,
they are merely presuming that there actually is a portion of the road where other individuals
(with no connection to National Cement's work) could be banned or would not venture. This is
pure speculation.6 However, what is established is that heavy trucks are making 148 round trips
6

National Cement has consistently protested throughout this litigation that it does not
have exclusive control over the road. See, e.g., Contestant's Mem. in Support of Mot. for Summ.
Dec. at 1, 2, 4, 21. See also id. at 6 ("National Cement does not and cannot control who travels
on the 4.3 mile portion of the road lying between the highway and the entrance to the
plant ...."). Also, according to the National Cement plant manager, "[o]n its northern end, on
the eastern side of the Lebec Plant, the road continues beyond the cement plant in a northeasterly
direction." Id., Ex. 2 at 1, 'i 4 (Aff. of Byron E. McMichael). Tejon also stated that "the actual
ranch road continues on past where the paved portion ends near the cement plant, and serves
27 FMSHRC 742

on the road every day, that some miners have complained ~f dangerous conditions and that, due
to the majority's decision, there is no legal entity with the authority to impose safety measures
that could prevent accidents and possibly save lives. Accordingly, I respectfully dissent.

other purposes and persons unrelated to the cement plant, as it has for many years .... " Sec'y's
Mot. for Summ. Dec., Ex. 3 at 3 (Intervenor's Adm. No. 1); see also Jt. Ex. 10 (map of area).
Accordingly, I am puzzled by the majority's assertion that "it appears from the record that there
is a point on the road, at or near the last crossroads departing the access ro~d on the way to the
cement plant, beyond which traffic authorized by Tejon but unrelated to National Cement's
facility ceases." Slip op. at 15. The majority's holding would appear to lead to a kind of
"floating jurisdiction" for MSHA, because if National Cement has exclusive use over a different
portion of the road in the future, it seems as if jurisdiction will subsequently attach there as well.
27 FMSHRC 743

Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. D~partment of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Michael T. Heenan, Esq.
Margaret S. Lopez, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P .C.
2400 N Street NW, 5th Floor
Washington, DC 20037
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W., Suite 110
Washington, D .C. 20004
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

27 FMSHRC 744

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

November 30, 2005
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2005-241
A.C. No. 36-00958-48507

v.
EIGIITY-FOUR MINING COMPANY

BEFORE: Duffy;Chainnan; Jordan, Soboleski, and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On August 12, 2005, the Commission received from
Eighty-Four Mining Company ("Eighty-Four") a motion made 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 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 Com.mission. 30 U.S.C. § 815(a).
On January 28, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to Eighty-Four for a citation issued to the
company by MSHA on July 21, 2004. Mot. at Ex. 1. Eighty-Four states in its motion that it had
already timely contested the citation, which is the subject of Docket No. PENN 2004-232-R.
Mot. at 1. This proceeding is·currently on stay before Commission Administrative Law Judge
David Barbour. Eighty-Four states that it failed to timely contest the proposed penalty
assessment at issue because of "inadvertence and mistake." Id. at 2. The Secretary states that
she does not oppose Eighty-Four's request for relief.

27 FMSHRC 745

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

27 FMSHRC 746

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., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 747

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

November 30, 2005
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA)

Docket No. PENN 2005-245
A.C. No. 36-07059-42383

v.

Docket No. PENN 2005-246
A.C. No. 36-07059-44995

CHESTNUT COAL COJ\.fl>ANY
Docket No. PENN 2005-247
A.C. No. 36-07059-51978
Docket No. PENN 2005-248
A.C. No. 36-07059-58839
Docket No. PENN 2005-249
A.C. No. 36-07059-61229
BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). 1 On August 17, 2005, the Commission received from
Chestnut Coal Company ("Chestnut") motions made by counsel to reopen five 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

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers PENN 2005-245, PENN 2005-246, PENN 2005-247, PENN
2005-248, and PENN 2005-249, all captioned Chestnut Coal Company and all involving similar
procedural issues. 29 C.F.R. § 2700.12.
27 FMSHRC 748

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 November 10 and December 8, 2004, and March 9, June 8, and July 6, 2005, the
Department of Labor's Mine Safety and Health Administration ("MSHA") issued proposed
assessments to Chestnut. Mot. at 1, Ex. (the fi ve motions to reopen filed by Chestnut are simil~,
and citations herein are to all five motions). In its motions, Chestnut states that the employee
responsible for processing proposed penalty assessments for the company was familiar with
contest procedures that existed prior to 2004, i.e., returning a "green card" to MSHA. Mot. at
Aff. This employee was unaware of new contest procedures that require a plain white printout to
be returned to MSHA. Id. The employee discovered his error when he consulted with
Chestnut' s attorney. Id. ·c hestnut further states that it had intended to contest the proposed
penalties. Id. The Secretary states that she does not oppose Chestnut' s requests for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

27 FMSHRC 749

Having reviewed Chestnut's motions, in the intere~ts of justice, we remand these matters
to the Chief Administrative Law Judge for a determination of whether good cause exists for
Chestnut's failure to timely contest the penalty proposals and whether relief from the final orders
should be granted. If it is determined that such relief is appropriate, these cases shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

27 FMSHRC 750

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., 22nd Floor West
Arlington, VA 22209-2247
Chief Adn1inistrative Law Judge Robert J. Lesnick
· Federal Mine Safety & Health Review Commission
601 New Jersey A venue, N.W., Suite 9500
Washington, D.C. 20001-2021

27FMSHRC751

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

November 30, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. YORK 2005-138-M
A.C. No. 37-00093-52286

V.

HOLLISTON SAND COMPANY, INC.

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

ORDER
BY: Duffy, Chairman; Suboleski and Young, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On August 25, 2005, the Commission received from ·
Holliston Sand Company, Inc.("Holliston Sand") a letter requesting that the Commission reopen ·
a penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On March 11, 2005, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Holliston Sand the proposed penalty assessment at issue. In its letter,
Holliston Sand addresses the merits of the citation underlying the proposed assessment. The
company offers no explanation, however, for its failure to timely contest the proposed
assessment. The Secretary states that she does not have enough information to determine
whether reopening may be warranted.
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
27 FMSHRC 752

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
h~sh 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 Holliston Sand's letter, in the interests of justice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether good cause exists for
Holliston Sand' s failure to timely contest the penalty proposal and whether relief from the final
order should be granted. If it is determined that such relief is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission' s Procedural Rules, 29 C.F.R. Part 2700.

·~
Michae~Chairm~

27 FMSHRC 753

Commissioner Jordan, dissenting:
I would deny the operator's request for relief from the final order. Pursuant to Rule 60(b)
of the Federal Rules of Civil Procedure, we have previously afforded a party relief from a final
order on the basis of inadvertence or mistake. Slip op. at 2. However, Holliston Sand has failed
to provide any explanation to justify its failure to timely contest the proposed penalty assessment.
See Tanglewood Energy, Inc., 17 FMSHRC 1105, 1107 (July 1995) (denying request to reopen
final Commission order where operator failed to set forth grounds justifying relief). Accordingly,
I find no grounds upon which relief could be granted in this case, and would deny the company's
request and dismiss these proceedings without prejudice.

27 FMSHRC 754

Distribution
Cannine Iacuone
Holliston Sand Company, Inc.
P.O. Box 1168
Slatersville, RI 02876
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 755

27 FMSHRC 756

ADMINISTRATIVE LAW JUDGE DEQSIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

November 1, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. SE 2003-160
A.C. No. 01-01322-00004
No. 5Mine

JilvI WALTER RESOURCES, INC.,
Respondent

UNITED MINE WORKERS
OF AMERICA,
Intervenor
DECISION
Appearances:

Edward H. Fitch IV, Esq., Mark R. Malecki, Esq., Keith E. Bell, Esq.,
Paul D. Knothe, Esq., James F. Bowman, U.S. Department of Labor,
Arlington, Virginia, on behalf of the Petitioner;
David M. Smith, Esq., Kevin W. Patton, Esq., Maynard, Cooper & Gale,
P.C., Birmingham, Alabama; Timothy M . Biddle, Esq., Thomas C. Means,
Esq., Crowell & Moring, L.L.P., Washington, D.C., on behalf of the
Respondent;
Judith E. Rivlin, Esq., United Mine Workers of America, Fairfax,
Virginia; Thomas F. Wilson, United Mine Workers of America,
Birmingham, Alabama, on behalf of the Intervenor

Before:

Judge Barbour

This case is before me on a petition for assessment.of civil penalty filed by the Secretary
of Labor ("Secretary") on behalf of her Mine Safety and Health Administration ("MSHA")
against Jim Walter Resources, Inc. ("JWR"), pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977. 30 U.S.C. §§ 815, 820 ("Mine Act" or "Act"). The
Secretary seeks the assessment of civil penalties for eight alleged violations of mandatory safety
standards for underground coal mines. 30 C.F.R. § 75.l et seq. The alleged violations are set
forth in one citation issued pursuant to section 104(a) of the Act and one citation and six orders
issued pursuant to section 104(d) of the Act. 30 U.S.C. §§ 814(a), 814(d). The enforcement
actions arise out of the Secretary's investigation of two explosions that occurred at JWR' s No. 5
Mine ("the mine") on September 23, 2001. The explosions took the lives of 13 miners and
injured several others. The Secretary views each of the alleged violations as directly contributing
27 FMSHRC 757

to the cause of the explosions and/or t~e resulting deaths and injuries. She alleges the conditions
constituting the violations were significant and substantial ("S&S") contributions to mine safety
hazards and, in seven instances, were the result of JWR's unwarrantable failure to comply with
the standards. She seeks civil penalties that total $435,000. 1
Following the filing of the petition, JWR denied the violations and contested the
Secretary's S&S and unwarrantable assertions. In addition, the United Mine Workers of
America ("UMWA") entered the case as an intervenor.
The parties engaged in extensive pretrial discovery. As discovery neared its final stage,
the company filed summary decision/judgement motions and motions in limine. The motions
were denied. Jim Walter Res., Inc., 26 FMSHRC 623 (July 2004) (ALT) (order denying motion
for summary decision); Jim Walter Res., Inc., 26 FMSHRC 734 (Aug. 2004) (ALT) (order
denying motion for reconsideration or certification); Jim Walter Res., Inc., 26 FMSHRC 754
(Sept. 2004) (Commission's order denying petition for interlocutory review); Jim Walter Res.,
Inc., 26 FMSHRC 830 (Oct. 2004) (AI.J) (order denying motions in limine and summary
judgement). The case was tried in Birmingham, Alabama. During the course of the trial 65
witnesses testified and 396 exhibits were entered into evidence. There are 9,528 pages of
transcript. 2
·
I.

FACTUAL BACKGROUND

The mine, which began operating in 1978, is al) underground bituminous coal mine
located in Tuscaloosa County, Alabama. During the first two quarters of 2001, it produced
slightly more than 500,000 tons of coal each quarter and, at the time of the accident, it employed
318 contract miners and 70 salaried miners. Gov't Ex. 10 at 2. Eighty percent of the coal was

1

The Secretary proposed civil penalties of $55,000 for all of the alleged violations
except one, for which a penalty of $50,000 was proposed.
2

Originally Docket Nos. SE 2003-161 and SE 2003-174 were consolidated with Docket
No. SE 2003-160. Prior to the hearing, the parties agreed that, of 18 alleged violations at issue in
Docket No. SE 2003-161, 17 could be settled. They further agreed that the sole remaining
alleged violation in Docket No. SE 2003-161, Citation No. 7328084, should await a final
Commission decision in Docket No. SE 2003-160. Therefore, the allegations concerning
Citation No. 7328084 were removed from Docket No. SE 2003-161 and placed in Docket No. SE
2003-161-A, which was stayed. The parties' settlement of Docket No. SE 2003-161 was
approved on June 1, 2005 and the case was dismissed. Docket No. SE 2003-174, contained eight
alleged violations, of which the parties were able to settle seven. On July 14, 2004, I approved a
partial settlement of the case and effectively stayed the remaining portion of the case, noting that,
at the parties' request, a determination on the allegations concerning the remaining citation,
Citation No. 7679648, would be deferred until the decision in Docket No. SE 2003-160 issued.
See E-mail dated March 15, 2005 (Docket No. SE 2003-174).
27 FMSHRC 758

produced by longwall mining. The longwall panels were developed by continuous mining
machine ("continuous miner") sections.
In September 2001, the mine contained a longwall unit and two development units. The
longwall unit was functioning on the H panel. The two development units were the No. 4
Section and the No. 6 Section. Each section had four entries. From left to right heading inby, the
No. 1 Entry was a return entry, the No. 2 Entry was an intake entry as well as a track entry, the
No. 3 Entry was an intake entry as well as a belt haulage entry, and the No. 4 Entry was a return
entry. Id. ; Tr. 12 at 173; see also Gov't Ex. 15. Brattices separated the intake belt entries from
the returns, and on the No. 4 Section there were overcasts at the section's mouth. Tr. 12 at
172-74.

Only coal from the Blue Creek Seam was produced at the mine: The seam is extremely
soft and when it was mined, it tends to liberate high quantities of methane. In general, the seam
was thick enough to allow entry heights between 6 and 7 feet. The roof strata above the Blue
Creek Seam consisted of the "Middleman," a strata of silty shale that in general was 6 to 7 feet
thick; above the "Middleman" was another coal seam, the Mary Lee Seam, which usually was 10
to 16 inches thick; above the Mary Lee Seam was the main roof of sandy shale and sandstone.
Gov' t Ex. 10 at 25; Tr. 12 at 171-72.
Roof control was governed by the approved roof control plan. As pertinent to the events
at issue, JWR was using 72-inch-long, fully grouted resin bolts as a primary means of roof
support. The bolts were supplemented as needed with 10-foot-long, non-tensioned cable bolts
with 4-foot grouted length. Gov't Ex. 10 at 24. Although under the plan, the maximum width of
entries and crosscuts was 24 feet, entries and crosscuts typically were mined 20 to 21 feet. Id.
The mine is very gassy. In the months before the accident, samples and air quality
measurements indicated that the mine liberated over 17,000,000 cubic feet of methane per day
("cfmd"). In the 3 weeks leading up to the accident, the No. 4 Section, the section where the
explosions originated, liberated 1,400,000 cfmd. Gov't Ex. 10 at 32 ..
The mine was ventilated by an exhaust system. Air entered the mine through four intake
shafts and exited through two return shafts. As previously noted, the No. 4 Section and the No. 6
Section were ventilated with dual return aircourses, and air used to. ventilate the faces coursed up
the No. 2 and No. 3 Entries and returned through the No. 1 and No. 4 Entries. Gov't Ex. 10 at
30-32.
Surface to underground communication was accomplished via a mine-wide telephone
system. A central telephone was located in the surface CO room. From that telephone the CO
room supervisor was able to call all of the underground telephones in the mine.3 Each
3

The exact number of underground telephones is not clear. The CO room supervisor,
Harry House, believed there might have been more than 20 telephones. Tr. 5 at 352.
27 FMSHRC 759

underground telephone was equipped with an audible speak~r system. If the telephone was not
answered, the person on the surface could make &n audible page. Tr. 5 at 352. However, the
page did not guarantee miners would be contacted in that it was possible for them to be working
outside hearing range of the page.
A.

The Accident4

The explosions originated in the No. 2 Entry on the No. 4 Section, in the vicinity of
Survey Station No. 13333 ("SS 13333"). At the time of the accident, SS 13333 was located three
crosscuts outby the face of the No. 2 Entry. Gov't Ex. 10 at App. L. The intersection of the
crosscut and the entry where SS 13333 was located initially was supported by 72-inch, fully
grouted resin bolts and metal straps. The roof support in the intersection met the requirements of
the roof control plan.
Nothing unusual was noticed in the intersection for some time after the No. 2 Entry was
driven. Id. at 4. The first sign of anything out of the ordinary was seen by Burt Duvall, the No. 4
Section coordinator, during the day shift on Friday, September 21.5 Duvall noticed small cracks
in the roof and water dripping from the roof. Duvall believed that further roof support was
required so he instructed Greg Brown, the day shift section foreman, to have cable bolts installed.
As a result, approximately 16 10-foot-long cable bolts were placed in the roof. Gov't Ex. 10 at 4.
That same day, during the afternoon shift, the belt was moved up to the second crosscut
outby the face of the No. 2 Entry. In addition, the battery charging station was moved up to the
third crosscut outby the face, between the No. 1 and No. 2 Entries, adjacent to the SS 13333
intersection. There were yield pillars on either side of the battery charger. The afternoon shift
section foreman, Michael Buchanan, noticed water dripping from the roof at the SS 13333
intersection. Gov't Ex. 10 at 4.
With the movement of the belt and battery charging station, coal was ready to be
produced at the faces of the No. 4 Section. As a result, mining took place on the next two shifts
(the midnight shift and the day shift of September 22). The roof at the SS 13333 intersection was
observed by the mine foremen on the midnight and day shifts. Although water continued to drip
from the roof, the foremen did not think the situation was hazardous. Gov't Ex. 10 at 4.
The September 22 afternoon shift was devoted to maintenance work. Included in the
work was the rock dusting of the section belt entry. Gov't Ex. 10 at 4. Foreman Michael

4
·

Because of the nearly simultaneous nature of many of the events, a strictly
chronological description of the accident is not possible.
5

There were three shifts at the mine: (I) day shift, (2) afternoon or evening shift, and (3)
midnight or owl shift.
27 FMSHRC 760 ·

Buchanan did not detect any worsening of roof conditions at the SS 13333 intersection during the
shift. Id.
No work was scheduled for the next shift, the midnight or owl shift, on September 23.
Albert "Jack" Dye, Jr., a precision mason, was scheduled to work on the owl shift from 11:00
p.m. on September 22 to 7:00 a.m. As part of his duties, Dye conducted the preshift examination
for the oncoming day shift of September 23. Dye traveled in the track entry (the No. 2 Entry) of
the No. 4 Section as far as the power center. He found and reported no hazards. Tr. 3 at 393-95.
To Dye, the rock dust that existed in the No. 2 Entry looked like a "light snowfall." Id. at 398. It
was "adequate," but he believed that more "probably'' was neeqed. Id. at 399. Dye observed
water dripping around the roof bolt holes, approximately 30 to 40 feet outby the SS 13333
intersection. Gov't Ex. 10 at 4; Tr. 3 at 400.
John Puckett was the section foreman on the September 23 day shift. Puckett also
noticed a small amount of water dripping from the roof bolt holes near the SS 13333 intersection.
However, Puckett saw nothing indicating the roof was moving or unstable. Tr. 4 at 153. Puckett
assigned his crew to, among other things, repair the continuous mining machine and move
supplies into a newly e stablished supply hole in the crosscut between the No. 3 and No. 4
Entries, three crosscuts outby the face. Id. at 206-07.
Later that day, around 1:30 p.m., Puckett conducted an examination for the oncoming
shift. As he traveled toward the faces of the No. 4 Section, Puckett noticed the left rib was
sloughing between the battery charger and the power center. Gov't Ex. 10 at 5; Tr. 4 at 137.
Continuing his examination, Puckett entered the No. 1 Entry. Looking through a crosscut toward
the No. 2 Entry, he noticed a yield pillar with sloughing ribs in the entry inby the battery charging
station. He also noticed a small hole in a stopping. Tr. 4 at 138. Puckett called Duvall. Puckett
told him die ribs needed additional support and that the stopping should be repaired before
mining took place on the section. Gov' t Ex. 10 at 5; Tr. 4 at 139, 140.
Puckett instructed the electricians to move the continuous miner into the No. 1 Entry so
the scoop could clean the sloughage in the No. 2 Entry and cribs could be built. Puckett called
Dave Blevins, the afternoon shift foreman, to verify that Blevins understood that cribs would be
needed. Tr. 4 at 155-56. Later in the shift, Puckett and another miner, David Terry, were in the
No. 2 Entry near SS 13333 and Puckett asked Terry, who had been working in the area, about the
sloughage. Terry told Puckett that it had been taking place "on and off all day." Id. at 220.
Puckett observed the water that was dripping in the SS 13333 intersection. The amount "hadn' t
changed from the morning." Id. at 221.
The foreman of the oncoming evening shift was Tony Key. Before he went underground
on the afternoon of September 23, Key spoke with Duvall who told him that he had spoken with
Puckett and had learned the ribs of the yield pillar were sloughing in the area of the battery
charging station. Puckett also spoke with Key when Puckett called out his preshift examination.
Key recorded Puckett's report. Puckett remembered telling Key about the rib sloughage and the

27 FMSHRC 761

fact that a stopping was damaged in the crosscut between the No. 1 and No. 2 Entries in the
vicinity of SS 13333. Id. at 239. Although Puckett did not remember saying it, Key maintained
that Puckett mentioned the roof was "working," or words to that effect, and Key wrote "top
working" in the preshift examination report. Gov't Ex. 10 at 6; Tr. 6 at 47-48. Duvall instructed
Key to build cribs at the four corners of SS 13333 and to build cribs on 5-foot centers on both
sides of the No. 2 Entry from the battery charging station to the power center. Id.; Tr. 6 at 45.
The afternoon shift began around 3:00 p.m. Thirty-two persons went underground, four
of whom were supervisors. As usual, foreman Dave Blevins intended to begin his shift at the
bottom of the service shaft in case one of the work crews needed more supplies sent to its work
areas. Gov't Ex. 10 at 7. Tony Key's job was to supervise work on the No. 4 and No. 6
Sections. Key assigned Mike Mele, a longwall machine helper, and Gaston "Junior" Adams, a
longwall machine operator, to install cribs in the No. 2 Entry near the SS 13333 intersection. Tr.
6 at 56. Dennis Mobley and Charles Nail, electricians, were assigned to do maintenance work on
equipment on both sections. Id. at 75. Skip Palmer, a motorman, was to transport roof control
supplies to the No. 4 Section. Miners Robert Tarvin, Jerry Short, and John Knox were assigned
to rockdust the belt entry beginning in Sub Main B. Benny Franklin, the longwall foreman, was
to supervise activities at the longwall. Charles Ogletree and Jimmy Dickerson were to do
maintenance work on the longwall, and George Corbin, an electrician, was to join them later in
the shift. Three other miners, Sammy Riggs, Charles Smith, and Terry Stewart were to work on
stopping construction in the H panel tailgate. Gov't Ex. 10 at 6.6
Before the assigned crews headed for the sections, Tony Key discussed the roof
conditions in the vicinity of the SS 13333 intersection with Puckett. Gov't Ex. 10 at 7; Tr. 6 at
113. Puckett told Key to look at the ribs and roof to see if the roof bolts were "taking any
weight." Tr. 6 at 113.
Tony Key and his crew arrived on the No. 4 Section shortly after 4:00 p.m. Key left the
manbus, and he and Mele walked up the track entry toward the faces. Key heard the roof
popping and-cracking, and he saw trickles of coal falling off the ribs at various places. Key also
saw a smaJJ slip in the roof at the SS 13333 intersection. The slip extended across the track, into
the crosscut between the No. 1 and No. 2 Entries. Id. at 58, 117-19. Key and Mele saw water
dripping from the roof. Gov't E~. 10 at 7; Tr. 6 at 117. To Key, the roof bolts did not appear to
6

Other miners who were to work during the shift were: Christopher "Chris" Key, a
fireboss/pumper; Clarence "Bit" Boyd and Nelson Banks, Jr, who were assigned tasks in 2 East;
Tom Connor, Alvin Bailey, and Lonnie Willingham, who were assigned to work in the F panel
headgate area; belt foreman Gene Robertson, who was assigned to supervise belt work on the 1
East and 2 East belts; Joseph Sorah, Vonnie Riles, Raymond Ashworth, and Bill Hallman, who
were assigned to repair a section of the 2 East belt; Stewart Sexton, Rick Rose, and Wendell
Johnson, who were assigned to belt maintenance on the 1 East belt; and Randy Jarvis, who was
assigned to work primarily in H panel.

27 FMSHRC 762

be taking excessive weight. Tr. 6 at 117. However, Key felt the roof was deteriorating. He
ordered cribs built in the No. 2 Entry starting about 50 feet outby the SS 1333~ intersection. Id.
at 57-58.
After giving the work order, Key traveled to the battery charging station where he saw the
stopping with·the hole. The scoop battery was hung from roof bolts on chains and charging
cables were connected to the battery. The charging cables were not energized. At about this
time, Mele began to transport crib blocks inby on the track. Key went inby one crosscut to the
power center where he observed sloughage along the left rib. Key left Adams and Mele, and Key
walked to the faces of the.No. 1 and No. 2 Entries to check for methane. Id. at 119-20. At both
faces, the methane concentration was minimal. Gov'tEx. 10 at 7.
Returning from the face of the No. 1 Entry, Key met Nail and Mobley. They had traveled
to the vicinity of the last open crosscut of the No. 1 Entry to move the continuous miner to the
face of the entry so mining could begin on the next shift. Nail energized the miner and
proceeded to the face. Meanwhile, Mele brought some crib blocks to Adams who was in the
process of building the first crib. Gov't Ex. 10 at 7-8; Tr. 1 at 274-75.
Tony Key called Blevins from the telephone at the power center to tell him that materials
were needed to repair the hole in the brattice. Tr. 6 at 52. Key then sent Nail and Mobley to the
No. 6 Section to do needed repair work. Key checked again on the stopping adjacent to the
battery charging station. The hole was bigger. Key also noticed that the slip in the roof extended
into the No. 1 Entry. Gov't Ex. 10 at 8.
Tony Key re-entered the No. 2 Entry and proceeded to the location where Adams was
building the crib. Key started to help Adams. Mele, who had finished bringing up the crib
blocks, also started to help. Tr. 6 at 56-57. As the work continued, conditions rapidly
degenerated. Water began to pour steadily from the roof and small rocks fell. Key, Adams, and
Mele backed up a few steps. They heard sounds that indicated possible roof bolt breakage. At
approximately 5:17 p:m., a large rock fe11, then the roof in the entire intersection crashed down.
The fall obscured the battery and the charger. Key thought the equipment might be under·
the fallen rock. Key, Adams, and Mele walked outby the fall. Id. at 59. Key believed that
electrical power to the section should be de-energized and the fall should be reported to MSHA.
He told Adams and Mele that he was going to a telephone to call out a report, and he started
outby. Gov't Ex. 10 at 8; Tr. 6 at 59-62.
1.

The First Explosion

Minutes later Tony Key heard a loud detonation. He was picked up and hurled down the
entry by the force of the air rushing outby. He lost his hard hat and cap lamp. His back was
injured. Tr: 6 at 63-64. Mele was blown outby too. He also had his hat and lamp blown off.
Mele was burned and his back and ribs were injured. Tr. 1 at 211-12. Palmer, who was at the
27 FMSHRC 763

end of the track, was blown off his feet and down the track entry. He was without his hat and
lamp. Gov't Ex. 10 at 89; Tr. 1 at 355. Adams was pinned under debris.
Following the explosion, Key, Mele, and Adams were separated. Their visibility was
severely limited by dust in the atmosphere, and it was difficult for them to breath. Key could not
see Adams or Mele, but he heard Adams say that he could not move. Tr. 6 at 69-70. Mele, who
could see Adams, observed blood coming from Adams' mouth and ears. Tr. 1 at 212. Mele
borrowed Adams' hat and lamp, but so much dust was swirling in the atmosphere it was difficult
to see, even with the lamp. Key glimpsed a faint light and moved toward it. Key found Mele.
Id. at 212-13. Mcle's ribs were hurt and Mele thought he had been burned. Gov't Ex. 10 at 8.
Mele told Key that Adams was partially covered by rocks from the fall. Key heard Adams
moaning. He also heard the locomotive running at the end of the track outby. Key and Mele
locked arms and following a cable in the track entry they walked toward the locomotive. Id. at 9;
Tr. 1at213-14; Tr. 6 at 70-71. They wanted to find help for Adams.
Tarvin, Short, and Knox were in the Sub Main B area of the mine. They had been sent
there to rockdust the belt. Before they could begin rockdusting, they noticed the air had reversed
direction. Knox took a locomotive and traveled inby toward the No. 4 Section to investigate why
the air changed. Tarvin and Short stayed where they were. Gov't Ex. 10 at 9; Tr. 1 at 427-30.
Franklin, Dickerson, Corbin, Ogletree, and other miners working in the longwall section
also were aware something had happened. Each either heard a noise or felt his ears pop. Gov't
Ex. 10 at 9; see, e.g., Tr. 2 at 10-11. A few minutes after the explosion, the computer printout in
the CO room indicated communication errors on the No. 4 Section and 4 East. Gov't Ex. 10 at 9.
On the longwall section the air became very dusty. Corbin thought a crew was
rockdusting inby. As the atmospheric dust became thicker, Franklin tried to call inby and have
the miners stop dusting. Franklin could not reach anyone. Franklin and his crew then took a
mantrip and proceeded toward the main line track to find out what had happened. Tr. 2 at 11-12.
Meanwhile, as Tony Key and Mele made their way toward the locomotive and out of the
No. 4 Section, the dust in the atmosphere had become so thick that the men could not see the
locomotive's lights, which were on. When they reached the locomotive, the dust thinned
somewhat. The men found Palmer who was getting to his feet. Key wanted to telephone the
surface to request help for Adams and report the explosion. Key, Mele, and Palmer boarded the
locomotive and headed outby. Gov't Ex. 10 at 9-10; Tr. 1 at 215-17; Tr. 6 at 71-73.
They were slowed by debris on the tracks. When Tony Key saw the lights from two cap
lamps approaching, he stopped the locomotive, got off, and walked to meet the men. It was Nail
and Mobley. Mobley told Key that he could not proceed much further in the locomotive because
an overcast was damaged and debris was blocking the track. Key asked Nail to de-energize the
high voltage electrical circuit to the No. 4 Section: Gov't Ex. 10 at 9-10; Tr. 6 at 74-77.

27 FMSHRC 764

Near the mouth of the section, at the damaged overcast, the intake air was short circuiting
into the return aircourse. Although Key could not tell which overcast was damaged, he
concluded that the ventilation was seriously disrupted. Tr. 6 at 79-80.
As Nail traveled to de-energize the high voltage circuit, Key and Mobley proceeded outby
on foot to find a working telephone. On their way out, they met Knox who had come to the
mouth of the No. 4 Section on his locomotive. Key and Mobley told Knox what had happened.
They boarded the locomotive with Knox, and the three men traveled outby to a telephone at the 3
East turn. Id. at 81-82. .Knox told Key that he did not believe the telephone was working, but
Key tried it while Knox went to another telephone in the area to call the CO room. Gov't Ex. 10
at 10; Tr. 6 at 83-85.
At about 5:45 p.m., Tony Key reached Harry House in the CO room. 7 Key maintained·
that he told House about the roof fall, the explosion, and the damaged overcast and stoppings.
He also told House that Adams was injured and emergency help was needed. Tr. 6 at 83-85, 149.8
Communication between Key and House was unclear and somewhat garbled, and Key's call
ended abruptly. Tr. 5 at 398.9 House tried to reach Key again through a mine-wide page, but
Key could not hear the page. Gov't Ex. 10 at 11. 10
Knox came back and told Key that the other telephone was not working and that he and
Mobley were going to the No. 4 Section to help Adams. The two miners then headed toward the
No. 4 Section on a personnel carrier. Gov't Ex. 10 at 11; Tr. 6 at 86-87. Key did not tell them to
evacuate the mine because he knew they were going to help Adams. Tr. 6 at 87.
Back in the CO room, House tried to page Will Tanniehill, an afternoon shift foreman
(House did not know that Tanniehill was not working). After failing to reach Tanniehill, House

7

House had been CO room supervisor at the mine since March 2001. Prior to 2001 he
served in the same capacity at other JWR mines. Tr. 5 at 337-39.
8

Key stated he did not recall saying anything about a fire underground. Tr. 6 at 86.

9

A short time later Key again called House. Key maintained that someone other than
House answered. Key did not know who. Key told the person that power to the mine should be
disconnected. Tr. 6 at 89 ("I told whoever I talked to, to knock the power on the mines").
However, power never was totally disconnected because, on the way out of the mine, Key
noticed the block light system was working. Id.

°

1

Frankie Lee, who supervised Harry House, explained that the telephones were placed
at strategic locations throughout the mine and that, by dialing a certain group of numbe,rs, it is
possible for the CO room supervisor to page all telephones. The page was heard simultaneously
at all underground telephones. Such a page was referred to as a "mine-wide page." Tr. 3 at
279-80.
27 FMSHRC 765

tried to page Gene Robertson, a belt foreman, whom House believed was working underground.
At about 5:48 p.m., House called 911. The call went to the Tuscaloosa County Sheriff's Office
and North Star Paramedic Services in Tuscaloosa. House stated that there was a fire, men were
injured, and help was needed. Tr. 5 at 375-76. The call ended abruptly. Gov't Ex. 10 at 11.
House continued trying to reach Tanniehill through a mine-wide page. Blevins, who was .
still at the service shaft bottom, answered. Blevins asked House what was going on. House told
Blevins that there had been an explosion and a roof fall, miners were injured, and they needed
help. Tr. 5 at 359-60. House also testified that he told Blevins there had been damage to
ventilation or that some brattices were destroyed. Id. at 360. House recalled Blevins responding
"We're on our way," which House understood to mean that Blevins and other miners were going
to help Adams. Id. at 361. Blevins then left the bottom of the service shaft in a manbus and
headed for the No. 4 Section.
Stuart Sexton, who was working with Wendell Johnson and Rick Rose splicing the 1 East
belt, heard House paging Robertson on a nearby telephone. Sexton told Johnson to call House.
Johnson picked up the telephone and spoke with House. Tr. 2 at 109-10. Because Johnson did
not identify himself, House thought that he was speaking with Robertson. House testified that he
told Johnson there had been an explosion and roof fall, brattices were destroyed, and injured men
needed help. Tr. 5 at 369-70. However, Johnson told Sexton and Rose that House said there was
a fire or ignition on the No. 4 Section and he wanted all available miners to go to the area to help
with the situation. Tr. 2 at 111, 174. 11 Johnson, Sexton, and Rose finished up what they were
working on and traveled to the 2 East belt to get the other members of the belt crew. Id.
While this was happening, Knox and Mobley proceeded toward the No. 4 Section. When
they reached it they left the locomotive on which they had been riding at the No. 4 Section
switch, and traveled on foot inby where they encountered Palmer, Mele, and Nail. Mele told
Knox that there had been a roof fall and explosion, Adams was inby, and he was hurt. Because
Mele and Palmer were injured, Knox told them to leave the mine. Tr. 1at218-19. At about 5:55
p.m., Knox, Nail, and Mobley traveled into the No. 4 Section. Shortly before 6:00 p.m., Mele
and Palmer walked outby to the locomotive at the No. 4 Section switch. Gov't Ex. 10 at 12.
They boarded the locomotive, started outby, and a short time later saw Tony Key, whom they
picked up. The three continued outby toward the E panel switch. Tr. 1 at 223-24.
In the CO room, House called deputy mine manager Trent Thrasher at home. House told
Thrasher that there had been an explosion, miners we~e injured, one injured man was left on the
section, and help was needed to evacuate and get the injured man out. Tr. 12 at 223-24.
Thrasher asked if all the miners were on their way out of the mine, and House said he was getting
the miners out. Id. at 224. Thrasher immediately left for the mine. He called House from the

11

"Ignitions" were referred to frequently during the course of the hearing. Although the
word was never specifically defined, it was clear the witnesses were referring to methane that had
ignited and had continued to bum or had caught something else on fire.
27 FMSHRC 766

road and asked specifically about the longwall crew. House replied that they were "on their way
out." Id. at 225.
House also called mine superintendent Jesse Cooley and told him that there had been an
explosion, a roof fall, brattices were destroyed, and miners were injured. Cooley asked if
everyone was out of the mine, and House replied that he was in the process of getting people out.
Tr. 5 at 382-83. Shortly after his conversation with Cooley, House was called by Tarvin who
told House about the large amount of dust in the atmosphere. Tarvin asked if a stopping had
failed. According to Tarvin, House told him "yes," miners had been hurt, and the track should be
kept clear because the injured miners were on their way out of the mine. Id. at 433-34.
Dale Byram, JWR's manager of safety and training, who was not at the mine, called
House. House told Byram that there was an explosion or ignition, ventilation contrqls were
damaged, and miners were injured. Byram alerted the company's rescue team. Gov't Ex. 10 at
13; Tr. 12 at 381-82.
Meanwhile, Chris Key, Boyd, and Banks finished their work at the 2 East sump. Banks
left the other two and traveled inby on his manbus to find out whether electrical power was reset
on all the belt drives. Chris Key and Boyd walked toward the longwall area of 2 East to get a
water pump. They saw Riggs, Stewart, and Smith. Riggs told Chris Key that there had been an
ignition and that he was going to help. Tr. 2 at 288. Boyd went with Riggs. Chris Key followed
Riggs on the track. Id. at 288, 306-08; Gov't Ex. 10 at 13. They were going to the No. 4 Section
to find out what had happened. Tr. 2 at 308-09.
Gene Robertson's crew (Ashworth, Sorah, Riles, and Hallman) was working on a
damaged belt near the 2 East belt header. Sexton traveled to where they were working and told
Robertson that there was a page for him and that Johnson had picked up the phone and had been
told there was a fire on the No. 4 Section and miners were needed to help. Id. at 113. Robertson
told everyone to get on the manbus, and the crew traveled toward the No. 4 Section. Id. at 115.
Tarvin and Short, who also had boarded a locomotive, were taking rock dust to a storage
area when they met Blevins coming from another direction on a manbus. Tarvin stated that
Blevins told him the mine was on fire and he and Short had to help fight it. Blevins ordered
Tarvin and Short to get two fire extinguishers from the locomotive and to board the manbus.
Tr. 1 at 437-38. As Blevins, Tarvin, and Short started inby on the manbus, the belt crew arrived
and their manbus followed Blevins toward the No. 4 Section. Gov't Ex. 10 at 13.
Once Banks arrived at .the E panel, he continued inby toward the No. 4 Section. Riggs,
Smith, and Stewart arrived after Banks. Chris Key and Boyd arrived next. The miners saw Tony
Key lying against a rib. Palmer was sitting on the locomotive and Mcie was standing beside it.
Gov't Ex. 10 at 13. Boyd got off Chris Key's manbus and spoke to Mele, who told Boyd that
Adams was hurt and where Adams was located on the No. 4 Section. Riggs said that he was
going inby to the No. 4 Section to help Adams. Boyd told Chris Key and Mcie that he too was
27 FMSHRC 767

going to help. Tr. 2 at 313. Chris Key responded that he would take Palmer, Mele, and Tony
Key out of the mine. Id.
Boyd got on Riggs' manbus and he proceeded inby with Riggs, Smith, and Stewart.
Chris Key helped the three injured miners onto his manbus and, around 6:05 p.m., he headed out
of the mine. Gov't Ex. 10 at 14. Mele was certain that before Tony Key left the area with Mele
and Palmer, neither Tony Key nor anyone else told any of the miners to evacuate the mine. Tr. 1
at 224. Mele was not surprised by Tony Key's failure to order an evacuation. Key was "in too
much of a shock" to say much of anything. Id. at 229.
In Sub Main B, Blevins saw Chris Key's manbus approach and Blevins stopped and
walked to the manbus to speak with Tony·Key. Tony Key told Blevins that Adams was hurt,
there had been a roof fall and an explosion, ventilation was damaged, and there was the
possibility of another explosion. Tr. 6 at 91, 161-62. Sexton and the belt crew members arrived
and Sexton got off the belt crew manbus to speak with Tony Key. Robertson got off his manbus
and came to where Tony Key and Blevins were. Sexton believed Key told Robertson that there
had been an explosion. Tr. 2 at 118. Chris Key told Blevins that he was taking the injured
miners out of the mine. Id. at 293. Blevins instructed the miners who had stopped to move their
manbuses to a spur in the track so the injured miners could continue out of the mine. Id. at
121-22.

According to Tarvin, who spoke with Blevins at the 459 switch, Blevins knew that
Adams was injured and he thought there was a fire on the No. 4 Section. Tr. 1 at 436-37.
Blevins told the miners at the switch that they needed to go fight the fire and that they should put
on their self-rescuers so they could travel to the section. Id. at 443-44. 12 Blevins asked for three
volunteers to go with him to the No. 4 Section. Ashworth, Sorah, and Johnson got on Blevins'
manbus. Id. at 443-44, 446-49; Tr. 2 at 120-21. However, both Tarvin and Sexton testified they
declined Neither wanted to go inby to fight a fire. Tr. 1at445; Tr. 2 at 120-21.
Blevins asked Robertson to go to the nearest telephone to call House and make sure that
he knew the injured miners were on their way out of the mine and they required medical
assistance. According to Sexton, Blevins added, "When you get through doing that, come back."
Tr. 2 at 121. Blevins then set off for the No. 4 Section. Tarvin, Short, and Hallman waited at the
D panel switch for Robertson to return. Gov't Ex. 10 at 5.
At about the same time, House received a telephone call from Tarvin advising him that
Tony Key had reported an overcast was out on the 4 Section track. House told Tarvin to stop
Blevins and tell Blevins to call the CO room. Tarvin said that Blevins already had gone toward
the No. 4 Section. Tr. 5 at 379-80.
12

A little before this, as Blevins and Riles stood at the 495 switch, Blevins asked Riles if
he smelled smoke. Riles replied that he did and asked Blevins where it was coming from.
Blevins said that he was going to find out. Tr. 5 at 143-44, 181-82.
27 FMSHRC 768

Benny Franklin and the rest of the longwall crew stopped at the H panel tailgate switch
and Franklin called House from the telephone located there to ask about the dust the crew had
encountered on the longwall. House said there was a problem and told Franklin to exit the mine
with his crew and anyone else he saw. Tr. 3 at 41-42. Franklin maintained that he told the crew
they were going to leave the mine. However, one miner stated that there·was still power on at the
power center, so Franklin told the electrician to "back up, and we'll turn the vacuum breaker off,
which terminates our power to our power center." Id. at 43; see also Tr. 2 at 70; Tr. 3 at 55-56. 13
After knocking the power, Franklin and his crew traveled toward the bottom. When they
reached the 459 switch they stopped to let a manbus pass. Franklin could not see who was on the
bus but he was told it was an injured miner. Tr. 3 at 60-61. Franklin and his crew then waited
for another bus to pass. It was Robertson and his crew. Franklin recalled Robertson saying to
him that there was a fire on the No. 4 Section. Id. at 61. Robertson said that he was going to c_all
House and get further instructions. Franklin saw Robertson go to a nearby telephone, but he did
not know if Robertson was able to reach House. Id. at 61-62.
About 6:10 p.m., Banks, Riggs, Smith, Boyd, and Stewart arrived at the No. 4 Section
switch. The miners started walking the track entry into the section. To do so, they had to pass
through the debris from the damaged ventilation controls. Gov't Ex. 10 at 15. In addition to
Adams, other miners on the No. 4 Section by this time or a few minutes later were Knox,
Mobley, Nail, Johnson, Sorah, Ashworth, and Blevins.
2.

The Second Explosion

At approximately 6:15 p.m., a second explosion, much larger than the first, occurred on
the No. 4 Section. 14 The explosion, which started in the No. 2 Entry, within seconds propagated
into all four entries, into the No. 6 Section, the 5-9 Shaft area, and 3 East. Adams and the 12
miners who had gone into or toward the No. 4 Section to assist him or to fight a fire were killed.
Only Ashworth survived the immediate effects o~ the explosion, and he died the next day.
Almost all of the miners who were underground felt the effects of the second explosion.
At the D panel switch, Tarvin, Short, and Hallman were knocked into a nearby crosscut by the

13

However, according to Ogletree, Franklin told Corbin and Dickerson that there was an
explosion on the No. 4 Section and miners were injured. Tr. 2 at 349. Further, Ogletree
maintained that, at the 459 switch, Franklin said to his crew "Let's go on [to the No. 4 Section]
and get those [injured] guys" and Ogletree told Franklin he would not go. Id. at 350 ("I told him
I wanted to invoke my individual safety rights"). Ogletree understood that men who went inby
would use their self-rescue devices. If he used his self-rescue device to go into No. 4 Section,
Ogletree wondered what he would use to come out. Id.
14

Approximately 55 minutes elapsed between the first and second explosions.
27 FMSHRC 769

surge of air. The atmosphere was so dusty they could hardly_see. They held onto one another's
belts and followed the track to the 459 switch. Tr. 1 at 449-50.
Miners from the longwall crew and the belt crew who were at the 459 switch also were
knocked off their feet by the force of air. The atmosphere in the switch area was dust-filled, and
all of the miners except Corbin began to travel outby to get out of the mine. Corbin joined
Franklin and Robertson at the F panel headgate switch telephone. The three men decided to leave
the mine and get the mine rescue team. Gov't Ex. 10 at 6; Tr. 2 at 21-22. Chris Key and those
with him felt their ears pop and they continued toward the bottom to get out. Tr. 2 at 319.
Randy Jarvis, who was in the H panel tailgate, heard a rumble. The air reversed direction
for a short time. Jarvis thought an overcast had failed. The air around him was thick with dust.
Jarvis called the CO room and asked House what happened. House told Jarvis to leaye the mine.
Tr. 3 at 182-83.
Connor, Bailey, and Willingham were sitting in a supply car near the end of the track in
the F panel headgate. They heard a loud noise, the air reversed direction, returned to normal, and
the atmosphere filled with dust. The miners heard House paging Blevins. Connor called the CO
room and House said that he did not have time to explain what had happened but that Connor and
the others should inunediately exit the mine, which they did. Gov't Ex. 10 at 16-17; Tr. 2 at
374-77.
Chris Key brought Tony Key, Mcie, and Palmer to the surface around 6:25 p.m. The
injured miners were taken by ambulance to a hospital. Tarvin, Short, and Hallman now had
reached the F panel headgate switch, where Tarvin called House from a telephone. Tarvin told
House that there had_been an explosion. Tr. 1 at 451. Tarvin, Short, and Hallman began walking
outby to leave the mine. They met Jarvis and they told him to come with them, that there had
been an explosion. The four men reached-the surface around 7:00 p.m. Gov't Ex. 10 at 17; Tr. 1
at 452-54.
3.

Rescue and Recovery Efforts

Nineteen miners exited the mine. Thirteen were missing. MSHA and UMW A officials
were notified. A rescue effort began almost immediately. Senior management officials arrived
and took charge of the rescue attempt. MSHA, UMWA, and state officials also arrived. MSHA
promptly issued a 103(k) order, giving the agency control over the rescue and recovery
operation. 15

15

Section 103(k) provides that in the event of an accident an MSHA official may "issue
such orders as he deems appropriate to insure the safety of any person in the ... mine, and the
operator ... shall obtain the approval of [MSHA] ... of any plan to recover any person in ...
[the] mine ... or return affected areas of ... [the] mine to normal." 30 U.S.C. § 813(k).
27 FMSHRC 770

At approximately 8:05 p.m., a rescue team entered the mine. In addition, an escape
capsule was lowered down a shaft in the event that any miners had reached the shaft bottom and
were waiting there to get out.. As the rescue team proceeded inby on a manbus, members of the
team smelled smoke and stopped frequently to take gas tests of the atmosphere. The CO level
was high. The team also encountered debris and damaged stoppings.
As the team moved into 4 East, debris on the track prohibited the manbus from proceeding
further. The team members continued on foot, and they found Ashworth sitting against a rib.
Two of the team members took Ashworth out of the mine. See Gov't Ex. 10 at 18-19.
One crosscut inby, members of the team found Sorah and Johnson. The men were located
on a manbus. Both were dead. A short time later, team members found Blevins under the same
manbus. He too had died in the accident. Shortly after midnight, the team moved into the No. 6
Section hoping to find surviving miners. The team encountered smoke and donned breathing
apparatuses. The team tested for gas and found a high level of CO. As the team continued to
move inby, it encountered burning crib blocks, which the team tried unsuccessfully to extinguish.
Gov'tEx. 10 at 19.
Meanwhile, a second rescue team entered the mine and headed toward 3 East. The two
teams met and worked together to try to extinguish the fire while a third rescue team was sent in
to relieve the first team. Around 6:00 a.m. on September 24, the first team left the mine. Gov't
Ex. 10 at 20. While the first team was moving out of the mine, the second team discovered that
the ventilation controls in the No. 1 and No. 2 Entries at the mouth of the No. 4 Section were
destroyed. The team also observed smoke issuing from the No. 1 Entry of the No. 4 Section .. Gas
tests revealed a very high CO content, as well as 3.1 % methane. They believed there was a fire on
the No. 4 Section. When they reported their findings to the surface command center, those in
charge of the rescue effort concluded no one remaining underground could have survived and the
rescue effort became a recovery effort. Gov't Ex. 10 at 20.
Later that day, it was determined that before the bodies of the victims could be recovered,
the fires had to be extinguished by sealing and flooding the mine. On the morning of September
25, water was pumped into the mine through the 5-9 Shaft. All told, 30 million gallons were put
into the mine. Put another way, 1.0,000 gallons of water per minute fell into the mine from the
surface, V2 mile above the shaft bottom. See Tr. 7 at 293-94. The force of the water scoured the
entries at the bottom of the shaft making them wider than before the explosions and some of the
coal from the ribs was drawn further into the mine as the water rushed to fill the mine's sections.
Id. at 290-92. The water flooded 3 East, the No. 6 Section and all but a small inby and uphill
portion of the No. 4 Section.
By September 29, the flooding operation was completed. On October 20, pumping
operations began to remove the water. As the water was pumped out, temporary seals were built
and repairs were made outby. The seals were progressively moved inby and ventilation was reestablished. Gov't Ex. IO at 21.

27 FMSHRC 771

By November 3, the recovery effort had advanced to just inby the mouth of the No. 4
Section. The area of the No. 4 Section switch, where the bodies of Sorah, Johnson, and Bleviris
were located, was ventilated. The bodies were brought to the surface on the early afternoon of
November 3. On November 7, the recovery team moved into the No. 4 Section. The bodies of
the nine remaining victims (Adams, Nail, Mobley, Knox, Banks, Riggs, Stewart, Smith, and
Boyd) were found that afternoon near SS 13333. They too were brought to the surface. Gov't Ex.
10 at 21.
Ventilation on the No. 4 Section was entirely re-established by November 17, and on
November 21, final pumping operations commenc~d.
B.

The Investigation

Prior to the recovery of the bodies and the re-establishment of ventilation on the No. 4
Section, MSHA began investigating the cause or causes of the explosions. Ray McKinney,
MSHA District 5 Manager at the time of the accident, headed the MSHA investigation team.
Members of the investigation team included personnel from MSHA Districts 2, 5, and 6,
personnel from the Health Technology Center, and personnel from the Secretary's Office of the
Solicitor. On October l, investigation team members began collecting records and other
information from the MSHA District 11 Office and from JWR. In addition, people with relevant
information about the accident were identified and interviews, both non-·confidential and
confidential, were conducted.
A thorough examination and inspection of the mine was undertaken by accident
investigation teams. MSHA's witnesses who were part of the investigation team almost without
exception testified that JWR was "very cooperative ... honest and diligent" with regard to the
investigation. See, e.g., Tr. 8 at 46. The teams included representatives of MSHA, JWR, the
UMWA, and the State of Alabama. The affected areas of the mine were mapped thoroughly. In
addition, physical evidence was gathered and in some instances tested by MSHA.
Among the physical evidence was mine dust, which was collected by seven sampling and
mapping teams. The teams were composed of MSHA inspectors, company personnel, and
UMWA members. The samples were collected by MSHA inspectors, the samples' locations were
mapped, and the samples were transported to Mt. Hope, West Virginia where they were analyzed
and tested by MSHA. Approximately 648 samples were gathered, of which 310 were collected in
areas most immediately affected by the explosions.
On December 11, 2002, following completion of the investigation, MSHA issued a report
(Gov't Ex. 10) detailing its findings regarding the causes of the explosions. In addition to the

27 FMSHRC 772

report, the Secretary cited JWR for the eight violations that are. at issue and that she alleges
contributed to the accident. 16
II.

THE ISSUES AND BURDEN OF PROOF

Despite the voluminous record, the fundamental issues are simple. Each of the citations
and orders allege that JWR violated a mandatory safety standard. It is the Secretary's burden to
prove the alleged violations by a preponderance of the evidence. If she does, the Commission, or
in the first instance, the judge, must assess a civil penalty. 30 U.S.C . § 820(a). In assessing a
penalty the Commission must consider the statutory civil penalty criteria: JWR's history of
previous violations; the appropriateness of the penalty to the size of JWR' s business; JWR' s
negligence, if any; the effect of the penalty on JWR's ability to continue in business; the gravity of
the violation; and the good faith o( JWR in attempting to achieve rapid compliance after
notification of the violation. 30 U.S.C. § 820(i). It is also the Secretary's burden to prove each of
these criteria by a preponderance of the evidence, except for the criterion related to JWR' s ability
to continue in business. On that issue, JWR bears the burden. In re: Contests of Respirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd, Sec'y of La.bar v.
Keystone Coal Mining Corp., 151F.3d1096 (D.C. ~ir. 1998); ASARCO Mining Co.,
15 FMSHRC 1303, 1307 (July l993kGarden Creek Pocahontas Co., 11FMSHRC2148, 2152
(Nov. 1989); Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987); Broken Hill Mining Co.,
19 FMSHRC 673, 677 (Apr. 1997). Because there may be instances where it is difficult, even
impossible, to obtain the direct evidence necessary to prove facts at issue, the Secretary may meet
her burden by inferences. Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984).
However, the inferences must be "inherently reasonable and there . .. [must be] a logical and
rational connection between the evidentiary facts and the ultimate fact[ s] inferred." Id.; accord
Garden Creek, 11 FMSHRC at 2153.
ID.

THE AI.LEGED VIOLATIONS

There are four categories of violations. The first category relates to the control of the roof.
The second category relates to the incombustible content of mine dust. The third and fourth
categories relate to the miners' evacuation of the mine and their participation in fire drills. I will
analyze the evidence and resolve the issues by category.

16

According to William Crocco, who at the time of the explosions was MSHA's
Accident Investigation Program Manager and who drafted much of MSHA' s investigation repoq,
the report and the alleged violations represent the consensus of MSHA' s investigation team.
Tr. 7 at 486, 494-95.
27 FMSHRC 773

A.

The Citation Relating to Roof Control

Citation No. 7328083 charges a violation of 30 C.F.R. § 75.202(a) in that the roof at SS
13333 in the No. 2 Entry of the No. 4 Section was not adequately supported. 17 Section 75.202(a)
requires in part that "[t]he roof ... of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to falls of the roof .... " 30 C.F.R.
§ 75.202(a). The citation also asserts that the 13 miners were fatally injured as a result of the
violation and that the.violation was S&S and due to JWR's moderate negligence. Gov't Ex. 3.
The alleged violation elicited a considerable amount of testimony, pertinent portions of which are
set forth below.
l.

The Testimony

At the No. 5 Mine, the primary means of roof control for a developing section was the use
of 6-foot fully grouted resin bolts installed on 5-foot centers. The 6-foot bolts were supplemented
17

The citation, which was issued pursuant to section 104(a) of the Mine Act, 30 U.S.C.
§ 814, states:
On September 23, 2001, two separate explosions occurred
in 4 Section resulting in fatal injuries to thirteen miners. The
accident investigation revealed the roof in the No. 2 entry of 4
Section at the intersection of Survey Station 13333 was not
supported or otherwise controlled to protect persons from hazards
related to a fall of roof in that area. On Friday, September 21, a
crack in the roof was observed, a noise was heard and water was
observed dripping from some roof bolt holes at this location. The
section coordinator directed the section foreman to have
supplemental roof support (cable bolts) installed through the
intersection. About sixteen, 10-foot long cable bolts were installed
during [the] day shift on Friday. Methane, water, broken coal and
broken shale were encountered above the anchorage zone of the
primary roof supports (72-inch fully grouted resin bolts).
Competent roof was not encountered in the anchorage zone of
many of the cable bolt holes, rendering the cable bolts ineffective.
An.unintentional roof fall occurred in'that area on September 23.
As the mine roof fell, methane was liberated from the strata into
the mine entries. Arcing of a scoop battery that was damaged by
the roof fall ignited the methane. The explosion damaged critical
ventilation controls, disrupted the airflow and injured four miners.
A second explosion resulted in fatal injuries to miners.
Gov'tEx. 3.
27 FMSHRC 774

on an "as needed" basis with cable bolts and various other means of supplemental support,
including straps and cribs. See JWR Ex. 185 at 2, 4-9; Tr. 4 at 80-81; Tr. 8 at 435-36; Tr. 11 at
264-65. Although prior to the accident, 8-foot, 10-foot, and 12-foot cable bolts were occasionally
used at the mine, the predominant and usual method of supplemental support was the use of 10foot bolts. Tr. 12 at 212-13; see, e.g., Tr. 13 at 168 (testimony of roof bolter William Prisock that
it was the only length with which he worked). These roof control practices were largely
successful in holding the roof in place and, prior to September 23, few roof falls occurred at the
mine.
Regarding general conditions, roof bolter Terry Eulenstein testified that the roof usually
was stable, but that water and methane were encountered at time~. Tr. 11at267. Michael
Goggins, a general inside laborer, added that water was not considered a hazard, but "you
need[ed] to keep an eye on it." Tr. 5 at 315. In addition to water, the roof occasionally exhibited
faults, joints, and fractures, but these were not "day-to-day" occurrences. Tr. 12 at 287.
Robert Howell, a company engineer with a PhD in engineering, testified that in the mid to
late summer of 2001, continuous miner operators on the right side of the No. 4 Section had to
limit cuts because of roof problems in unbolted areas of the faces. As a result, about a month
prior to the explosions, Howell called the JenMar Company and asked if there were roof support
products that could be used to allow longer cuts. Tr. 13 at 183-84. 18 JenMar representatives came
to the mine and examined the section's roof. Using a stratoscope they looked for cracks or
fractures. They found none. Id. at 185-86. Nor did they find indications of lateral separation in
the roof. As a result, the representatives did not recommend any changes in the company's roof
control equipment or procedures. Tr. 12 at 219.
Prisock, who worked on the No. 4 Section, testified that several weeks prior to the
accident, he installed roof bolts in the intersection of a crosscut and the No. 2 Entry at SS 13333.
Prisock put in two rows of 6-foot resin grouted bolts on 4-foot centers and then went back and
installed two 10-foot cable bolts at 6-foot intervals between the rows. Tr. 13 at 120. Prisock
installed a total of six 10-foot bolts. Tr. 6 at 418; Tr. 13 at 120-21, ·123. 19 The cable bolts were
used to give added strength to the roof because the No. 2 Entry eventually would be used as a
bleeder entry, and the roof had to stand a long time. Tr. 13 at 215.
On September 20, Ricky Parker, the chairman of the mine' s UMWA safety committee,
passed through the No. 2 Entry at SS 13333. Parker, who was accompanying MSHA Inspector
Jarvis Westery, detected no problems with the roof. Tr. 6 at 327. Indeed, practically all of the

18

JenMar, one of the largest roof bolt manufacturers in the United States, provided
technical support to mine operators upon reque'st. Tr. 13 at 248.
19

Installing the resin grouted bolts on 4-foot centers exceeded the requirements of the
roof control plan, which provided for the installation of the 6-foot bolts on 5-foot centers. JWR
Ex. 185 at 6; see Tr. 4 at 79.
27 FMSHRC 775

witnesses agreed that prior to September 21, the condition of the roof in the No. 2 Entry of the
No. 4 Section at the intersection of SS 13333 was unremarkable. See, e.g., Tr. 6 at 425.
As mining advanced, it was decided to move the battery charging station to a short
crosscut between the No. 1 and No. 2 Entries at the intersection. On the morning of September
21, Prisock returned to the area to install extra 6-foot bolts. The bolts were to be used as battery
hangers. Tr. 13 at 124. While there, Prisock noticed some loose rock peeling from the roof, and
he decided to add some more 6-foot bolts and two IO-foot bolts to make sure the rock stayed put.
Id. at 125-27; JWR Ex. 224. Addition of the bolts to the area was part of Prisock's ordinary
duties as a roof bolter, and after he finished Prisock thought the roof in the intersection looked
normal. Tr. 13 at 128. Prisock told his foreman, Bruce Mabe, that he had added the extra bolts.
Id. at 128-29. Although Prisock described the main roof above the Mary Lee Seam as not "that
hard" (id. at 129), he felt that it was "more solid" (id. at 130) than the immediate roof and that the
IO-foot cable bolts had adequately anchored into the main roof. Id. at 131. In fact, Prisock
believed that each of the IO-foot bolts had anchored almost 4 feet into the main top. Id. at 132.
Later that day, Greg Brown, the day shift section foreman, checked the roof in the area at
the start of the shift. Brown noticed some roof water. It was something he had seen before. Tr. 6
at 432-34. Prisock too had seen roof water on other sections. He did not find it unusual. Tr. 13 at
144. Also on September 21, Hershell Robbins, a miner on the evening shift, noticed the water.
Like Brown and Prisock, Robbins did not regard it as anything about which to be concerned. Tr.
6 at 31. Roof bolter Wayne Bonner agreed. Tr. 4 at I08.
During the day shift, Brown met with Burt Duvall, the day shift section coordinator, at the
SS 13333 intersection. Before the meeting, Duvall too noticed roof water, or as he put it, "a little
bit of dampness." Tr. 5 at 194. He heard a thump and saw a "slight hairline crack." The crack
was "no bigger than what . . . could [be] draw[n] with a pen." Id. at 193; Tr. 6 at 384. Duvall
asked Brown to have additional cable bolts placed in the intersection "as a precaution" (fr. 6 at
384) because the power was going to be moved up later that day and because of the length of time
the roof had to remain intact. Tr. 5 at 194. Brown assigned roof bolters David Terry and Wayne
Bonner to install more IO-foot cable bolts in the area. Tr. 4 at 47-48, 52.
Terry installed eight additional 10-foot bolts and Bonner installed eight. Both men felt the
bolts were well anchored in the main roof. Tr. 4 at I08, 112; ~r. 5 at 59-60; JWR Ex. 121.
According to Brown, who conducted on-site supervision of the roof bolting, the 10-foot cable
bolts anchored in 2 to 3 feet of solid top, that is, 2 to 3 feet above the Mary Lee Seam. Tr. 6 at
386.20 As the holes for the bolts were drilled, water came out of the holes like a mist. Brown
20

Bonner's testimony was somewhat different in this regard. He stated that the bolts
anchored 1 to 2 feet above the Mary Lee Seam (Tr. 4 at 52-53) and that the top, although "solid,"
was "not as solid as you would normally desire." Tr. 4 at 52. On a scale of 1 to 10, Bonner rated
the hardness of the top as "4." Id. at 55, 89. Nonetheless, Bonner testified that all of the cable
bolts that he installed on September 21 were well and solidly anchored. Id. at 108, 112. They
27 FMSHRC 776

testified this was something not normally seen, but it was not unprecedented. Id. at 432 ("[W]e
had [it] on other areas of the section."). The water "quit after a while." Id. Neither Terry nor
Bonner said anything to Brown about the bolts and neither reported the bolts were not anchoring
in solid top. Tr. 4 at 103; Tr. 6 at 387, 429-30. Eric Barnes, a member of the UMWA safety
committee, for a time also observed the bolts being installed. Barnes did not complain about the
number of bolts installed or that they anchored insufficiently. Tr. 6 at 430. After the bolting was
concluded, Brown did not think that cribs needed to be installed, nor did anyone suggest their
installation. Tr. 6 at 434.
During the evening shift on September 21, other cracks in the roof of the entry were
noticed by Darrell Lynn, a ram car operator on the shift. The cracks extended across the entry. In
addition, water resumed coming from the roof. Tr. 3 at 291-93, 298. According to Mike
Buchanan, the evening shift section foreman,' the cracks continued to be small and hairline, and
the water dripped, not flowed, from the roof. The roof itself was solid and unbroken . Tr. 13 at
22. Buchanan saw no signs of excessive sloughing or other evidence that the ribs were taking
weight. Id. at 32, 34-35. Buchanan had been told by the shift coordinator that supplemental roof
support had been installed on the previous shift, and he did not feel there was any need for
additional roof support. In Buchanan's opinion, with the addition of the supplemental support, the
roof was in essentially the same condition it had been on September 20. Certainly, cribs were not
needed. Id. at 34. Buchanan therefore directed that the scoop charger and battery be ~oved up to
the short crosscut adjacent to the SS 13333 intersection. Id. at 20-21.
On September 22, Bruce Mabe, who conducted the preshift examination for the oncoming
day shift, described the roof conditions on the No. 4 Section as "nothing out of the ordinary." Tr.
12 at 517. The roof bolt plates were not bending and the adjacent pillars were not sloughing
excessively. Id. at 518.21 Water was coming from the roof, but Mabe did not believe the water
posed a hazard and he did not mention it on his preshift report. Id. at 534-35.
Day shift foreman Brown recalled no change in the roof condition from the previous day.
Tr. 6 at 436. During the shift no additional roof bolts or other supplemental roof support were

aJso were, in his opinion, "safely installed," and he believed that, once he was finished bolting,
he left no hazards for his coworkers. Id. at 109, 112.
21

On the other hand, Ronnie Hyche, a mason who also worked as a roof bolter and who
worked on the September 22 day shift, stated that in the last long crosscut between the power
center and the face he heard noises indicating the roof was "working" and "setting down. Tr. 6 at
189. Hyche also maintained water was "pouring" from the roof. Id. Hyche's heightened
descriptions were at odds with almost every other witness who saw the roof on the section that
day. Moreover, he agreed that his testimony was about an area- approximately 100 feet inby the
cited area and that he had no idea what was or was not happening at SS 13333. Id. at 192-93.
The area about which Hyche testified was not commented on by other witnesses.
27 FMSHRC 777

installed nor were any needed. Id. at 437. Like almost everyone else, Brown mentioned the roof
water at SS 13333. Id. at 385.
Buchanan did the preshift examination for the evening shift on September 22. T he ribs
showed no evidence they were taking weight. Buchanan continued to believe that the roof did not
present a hazard and there was no need for additional roof support. Tr. 13 at 31-34.
Joseph Cybulski, an MSHA supervisory mining engineer who participated in MSHA' s
accident investigation and who appeared as an expert witness for the Secretary, confirmed the
consensus view of the on-site observers as to the roof's basically unchanged condition between
September 21 and September 23. He testified that MSHA concluded the roof conditions did not
deteriorate significantly between September 21 and the September 23 day shift. Tr. 11 at 402.
However, on the afternoon of September 23, things changed dramatically and for the
worse. All of the witnesses spoke of rapidly deteriorating conditions. Tony Key, who worked on
the evening shift on September 23, arrived at the mine around 2:00 p.m. Key went to the mine
office and spoke with Duvall about work for the evening. Tr. 6 at 44-45. John Puckett had
completed the preshift examination for Key's oncoming shift. Puckett told Key to look at the ribs,
the roof bolt plates, and the roof bolts to see if the ribs, plates, and bolts were taking weight. Id. at
113. Key, who recorded Puckett's preshift report conditions, wrote "top working" in the
hazardous conditions section of the report. Id. at 46-48.22 Duvall told Key the ribs were
sloughing in the No. 2 Entry. Duvall wanted to build cribs down the entry and around the
intersection adjacent to SS 13333. Key understood that Duvall had sent for additional cribbing
material. Id. at 111. Therefore, when Key started work on September 23, his priority was to
further support the roof and ribs in the No. 2 Entry. Key felt he had an appropriate number of men
and supplies to deal with the situation. Id. at 111, 114.
Key traveled into the mine with his crew, Nail, Mobley, Mcie, and Adams. They went to
the No. 4 Section where Key heard sporadic noises coming from the roof and ribs. Tr. 6 at 49-50.
Key proceeded to the battery ch~ging station. Id. at 51. He noticed a crack in the brattice in the
short crosscut. The crack ran from the upper right corner of the brattice to the lower left corner.
In addition, a hole had developed in the brattice. Key believed that either the floor was heaving or
the roof was setting down or both things were happening. Key knew the brattice would need to be
repaired and he ordered materials for the repair. Id.
Key then traveled to the power center at SS 13348. The roof looked good there, and he
heard no noises coming from it. He took a methane reading which showed minimum methane.
Key next traveled to the supply hole and a few minutes later went to the faces of the No. 1 and

22

Key maintained that he used those words because Puckett mentioned ribs rolling and
Key associated ribs rolling with deteriorating top since the two normally happened together. See
Tr. 6 at48.

27 FMSHRC 778

No. 2 Entries. A~ each of these places his methane detector registered minimal amounts of the
gas. Tr. 6 at 54-55.
At SS 13333 Key looked at the roof. Although it did not appear that the roof bolts were
talcing weight, more water was coming from the roof, small diagonal cracks had appeared, and the
ribs were sloughing. Because of these conditions and the situation with the brattice, Key, who
agreed with Duvall that cribs should be built in the intersection, assigned Adams and Mele to
build them in conformance with a map that Duvall had drawn. Tr. 6 at 56-58. As Key recalled,
the map indicated that at least 10 cribs were needed. Id. at 56. Cribbing material had been
brought into the section and was on a flat car at the end of the track. There was not enough
material to build all of the cribs indicated on Duvall's map, but there was enough to build some
and the crew started building outby the charging station in the No. 2 Entry, near the intersection of
SS 13333. Key felt this was the safest place to start, and he intended to have the crew continue
constructing cribs by working inby. Id. at 58.
Key thought the cribs would adequately address the situation. There was no sign that a
roof fall was imminent. However, at approximately 5: 15 p.m., after the third crib was
constructed, the roof inby started "aggressively working." Tr. 6 at 58-59. Roof bolts popped, ribs
rolled, rocks fell, and water poured. Id. at 59. Mcie and Adams stepped out of the intersection
and got behind some equipment. Suddenly, the roof came down "like the World Trade Center."
Id. at 61.23
After the fall and the explosions, the SS 13333 intersection was not observed again until
the accident investigation. MSHA supervisory mining engineer Cybulski went to the No. 4
Section on November 19, 2001. During the course of the investigation, Cybulski made seven trips
. underground, most of them to the No. 4 Section. Tr. 11 at 299-300. Cybulski, who helped map·
the roof of the section, observed joints running northwest to southeast across No. 4 Section. See
Gov't Ex. 24A (App. U).24 Jointing was sparse at the mouth of the section but increased as one
moved in by toward the accident site. Tr. 11 at 301. In the vast majority of the areas where he saw
jointing, the roof had stayed up. Id. at 363. For example, he saw a 2-inch-wide joint inby the fall,
but the roof in the area was stable. Id. at 365-66.

23

Prior falls involving roofs supported with 10-foot cable bolts were almost unheard of.
Roof bolter William Prisock testified that in his experience 10-foot cable bolts always had been
effective in holding the roof. Tr. 13 at 113-14. Cybulski confirmed that he was aware of only
one other fall in the No. 4 Section involving a bolted area, and it occurred after the explosions.
Tr. 11 at 389-90.
24

Cybulski described joints as natural fractures in the roof rock. Tr. 11 at 302. In
Cybulski' s opinion, joints might or might not warrant additional roof support. However, the
situation needed to be evaluated because "the more rock is fractured, the less stable it is." Id. at
304.
27 FMSHRC 779

When Cybulski reached the area of the fall, he helped measure the height of the fall with a
laser range finder. The fall cavity extended 25 feet above the roof line. Tr. 11 at 367. Based on
Cybulski' s experience in mining he believed that the fall initially extended somewhat less than
25 feet into the roof but that, following the fall, the roof continued to deteriorate deepening the
cavity. 25 According to Cybulski, debris from the fall consisted of slabs of rock that ranged
between 3 feet and 1 foot in size. Cybulski confirmed that he believe_d there was a failure of the
main roof higher than the intersection of the main roof and the Mary Lee Seam. Id. at 367-68. In
addition, Cybulski saw one or two cable bolts that were still hanging and partially exposed near
the edges of the fall. Id. at 372. The other bolts were buried in the debris. See id. at 372-73.26
Cybulski testified the purpose of the cable bolts was to suspend the intermediate roof,
which was held together by the 6-foot bolts, from the main roof. Tr. 11 at 313-14. For this to
happen, the cable bolts had to be securely anchored in the main roof. Id. at 315. 27 Cybulski did
not dispute the accuracy of the measurements contained in the notes of Paul Tyma, the MSHA ·
geologist who accompanied Cybulski on his December 11 visit to the No. 4 Section. In the notes,
Tyma indicated that he found the Middleman Seam at the "edge of the roof fall" area (id. at 370)
to be approximately 5-feet thick and the Mary Lee Seam to be approximately 12 to 15-inches
thick (id. at 370-76). At this location 10-foot cable bolts would reach almost 4 feet above the
Mary Lee Seam. Id. at 376. Cybulski also agreed that he and the agency had no idea of how
many cable bolts, if any, were insufficiently anchored in competent roof. Id. at 378. Cybulski
maintained, however, that on September 21, the bolts used in the fall area at best anchored into
only 1 to 2 feet of competent top, and that this was inadequate to hold the roof.28
In Cybulski's opinion, additional roof control measures had been required. Id. at 317-18,
325, 333-34. The cracks visible in the roof and the water coming from the roof should have

25

Robin Dzurino, a JWR engineer at the time of the explosions, accompanied Cybulski
and MSHA geologist, Paul Tyma. Dzurino helped measure the fall area. Tr. 12 at 817. He
thought that _the fall was 50-feet wide from west to east and 92-feet long from north to south. As
he recalled, the cavity extended approximately 23 feet above the roof line, a distance that was
13 feet above the longest roof bolt. Id. at 819-20.
26

Because of the height of the cavity and the debris that covered and damaged almost all
of the affected roof bolts, none of the witnesses could state that the bolts had failed to hold the
roof. See, e.g., Tr. 4 at 112-14.
27

Cybulski explained that once a cable bolt was anchored "the [M]iddleman [Seam] and
Mary Lee [Seam] start[ed] to sag a little and [came] in contact with the bearing plate that is on
the head of the cable bolt providing the support." Tr. 11at315-16.
28

Cybulski relied in part on a NIOSH Information Circular which he testified stated that,
at a minimum, cable bolts should anchor 4 feet into competent top. Tr. 11at312, 320-21.
27 FMSHRC 780

indicated this to JWR personnel. Test holes should have been.drilled. They would have shown
how much competent roof could be reached with 10-foot bolts. As a result, longer cable bolts
could have been used, or if the longer bolts were not available, cribs could have been constructed.
Id. The cribs might have changed the size and extent of the fall, or even have prevented it. Id. at
336. In addition, by taking the load from the roof, the cribs might have provided a visual warning
that the roof was taking weight. Id. at 340-41. Cybulski agreed, however, that test holes and
longer cable bolts were not required under the roof control plan. Nor did the plan require at least
4 feet of anchorage in the main roof if cable bolts were used. Id. at 320, 400.
The company's expert witness in roof control, Syd Peng, chairman and professor of the
Department of Mining Engineering at West Virginia University, made three post-accident visits to
the site of the fall. Tr. 13 at 265. He also reviewed the results of JenMar's August 2001 visino
the No. 4 Section, the roof control plan, and the transcripts of the testimony of witnesses to the
roof conditions on the No. 4 Section, including the testimony of the section's roof bolters. Peng
found no evidence that the roof bolts failed to hold the roof. rr. 13 at 266-67. Peng concluded
that the fall was due to the existence of concentrated joint swarms (several cracks concentrated in
a localized area) that were unknown to JWR because they are high in the roof and became visible
only after the accident. Id. at 273-74; JWR Ex. 226 at 2. In Peng's opinion, the fall occurred
when large blocks of the roof fell along vertical joints. Tr. 13 at 286. In Peng's view the 6-foot
fully grouted resin bolts had formed a "beam" in the roof, which was anchored into the main roof
by the 10-foot cable bolts. Id. at 278-79.29 Peng believed that the initial fall originated at least
2 feet above the 10-foot cable bolts and that the larger cavity was created by additional falls that
occurred after the explosions. Id. at 285-86. In Peng' s opinion even 12-foot bolts would not have
held the roof in place because the fall originated at a level either concurrent with the end of the
12-foot bolts or higher, which was above the anchorage zone of the bolts. Id. at 294-95; see also
id. at 319-20.
Peng concluded that the roof had quickly deteriorated on September 23, and he doubted
that anything could have prevented the fall. Even if cribs had been used at the SS 13333
intersection, the roof would probably have fallen between the cribs. Tr. 13 at 306-07. Peng also
noted that, prior to the fall, two similar fault areas were mined through successfully, that in
securing the areas JWR used procedures like those used at SS 13333, and that there were no roof
control problems in either of the areas. Tr. 13 at 290-91.
2.

The Violation

The Commission has held that section 75.202(a) is a broadly worded standard and,
therefore, "the adequacy of particular roof support or other control must be measured against the
test of whether the support or control is what a reasonably prudent person, familiar with the

29

Peng noted that under the roof control plan roof bolts were required to be anchored
into the main roof above the Mary Lee Seam only in the No. 4 Entry, which was a longwall gate
entry. Tr. 13 at 281; JWR Ex. 185 at 9.
27 FMSHRC 781

mining industry and the protective purposes of the standard, would have provided in order to meet
the protection intended by the standard." Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987)
(cited in Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1277 (Dec. 1998)). The Commission
has emphasized that, in the context of a particular alleged violation, "the reasonably prudent
person test contemplates an objective - not subjective - analysis of all the surrounding
circumstances, factors and considerations bearing on the inquiry in issue." 9 FMSHRC at 668.
Because the essential nature of a mine's roof- its strata and its propensity to maintain
stability- in most instances is relatively constant, the actions of a reasonably prudent operator
always are informed by the operator's past experience with the roof. In this way the mine's roof
control history plays prologue to the operator's present control efforts, and the reasonableness of
the operator's actions or lack thereof is gauged in part against the operator's and the industry's
past experience given the particular conditions the operator knew or should have known existed.
By citing the company for a violation of section 75.202{a), the Secretary is asserting that
given all of the information the company knew or should have known prior to the fall, the
company did not act as a reasonably prudent operator in attempting to support the roof. As one of
the Secretary's counsels stated, "[I]n essence, it's the Government's position that all that could
have been done was not done at a time that was appropriate." Tr. 4 at 120.
The Secretary argues that the company knew, beginning on September 21, that roof
conditi~ns were deteriorating. The Secretary acknowledges the company tried to meet the

conditions by adding cable bolts, but she asserts the measures the company took were not
"reasonably sufficient." S. Br. at 11. The cable bolts only anchored in 1to2 feet of solid top. In
the Secretary's view they should have anchored into at least 4 feet of top. 30 In the Secretary's
view, 'The fact that ... nothing else was done to support the intersection until it was too late to do
so, establishes the violation of section 75.202(a)." S. Br. 11-12.
After listening to and reviewing the testimony and the exhibits and after considering all of
the parties' arguments, I reject the Secretary's arguments and conclude that JWR personnel acted
reasonably in attempting to control the roof in the cited area. The picture that emerges from the
record was not of a company unmindful or neglectful of conditions that cried out for the
installation of cribbing, longer cable bolts, a combination of both, or other procedures on
September 21, 22, or 23. Rather, it is of a company that, relying on past experience and the
evidence before it, responded reasonably to conditions as they developed until, on September 23,
its efforts were overwhelmed by a precipitous and massive roof failure.

30

The Secretary points to plant engineer Robert Howell's testimony that manufacturers
of cable bolts state that, to achieve full strength in holding the roof, cable bolts need to be
anchored in solid top for up to 1/3 to 112 their length. Tr. 13 at 212; S. Br. at 11-12. However, I
note Howell also stated without contradiction that he conducted tests that achieved full strength
when a little less than 115 of a 12-foot bolt anchored in solid top. Tr. 13 at 212.

27 FMSHRC 782

In concluding that JWR personnel acted reasonably, I reject the Secretary's view that,
"[g]iven the cited roof conditions and the lack of anchorage of [the] cable bolts into solid top
according to the manufacturer's specifications and industry practice, it should have occurred to
... [Burt] Duvall and ... [Greg] Brown that [the] bolts were not going to be effective in
supporting the roof' and that "given their collective experience in mining ... [they] should have
take[n] additional steps to support the roof in .. . [the SS 13333 intersection] with standing
support." ~· Br. at 13. The problem with the Secretary's contention is that a preponderance of the
evidence does not support it. Unable to point to a specific violation of the roof control plan and
unable to point to any course of action that with certainty would have prevented the fall, the
Secretary has chosen to cast a wider net and cite the company under the broader and more
amorphous requirements of section 75.202(a). However, and as the Commission has noted, even
though the standard for compliance with that regulation essentially is one of reasonableness, it is
the objective nature of all the surrounding circumstances and considerations that determines the
outcome. Canon, 9 FMSHRC at 668. In my view these circumstances and considerations fully
support the company's reasonableness.

To understand JWR's response to the roof conditions at the SS 13333 intersection, it is
important to note that prior to September 21, there were no significant observable problems with
the roof in the cited area and no indication that roof control measures other than those which took
place during development were necessary. In this regard, I fully credit miner Ricky Parker's
testimony that when he and Inspector Westery traveled under the roof in the cited area on
September 20, he observed no problems with the roof. Tr. 6 at 327-28.31 Thus, it is not surprising
that Parker described the condition of the roof as it then existed as "good." Id. at 330. In this
regard, I also note Cybulski's observation during his deposition that he found no indication of a
need for supplemental roof support prior to September 21. Tr. 11at408-09.
Because the reasonableness of the company's response to the subsequent changes in the
roof's condition must be evaluated, in part, in terms of the company's knowledge of the roof in
the cited area, it is also important to review what the record reveals about the state of the
company's knowledge as the first shift entered the mine on September 21. First, JWR personnel
knew that during development, because the entry would eventually be used as a bleeder, the roof
had been strengthened by installing 10-foot cable bolts and straps in the subject area. Second,
JWR personnel knew that for the same reasons the 6-foot fully grouted resin bolts that constituted
the usual developmental support were installed on 4 rather than 5-foot centers. Tr. 13 at 109,
120-23, 215. Third, management was aware that the roof had remained virtually unchanged for
several weeks after it was developed. Fourth, mine personnel knew that several weeks before the
roof fall JenMar representatives had come to the mine to study the roof in the No. 4 Section, that
on-site analysis revealed no cracks or separations, and that no change in roof support procedures

31

I note as well that Westery issued no citations for violations connected with the roof,
which he was obliged to do had he detected any. Tr. 6 at 329-30.
27 FMSHRC 783

or materials was recommended. Fifth, JWR was aware the use of 10-foot cable bolts had been
successfully used to hold the mine's roof in the past. 32 Tr. 12 at 214-15, 219; Tr. 13 at 185-86.
On September 21, when Duvall saw a small crack and dampness on the roof and heard a
bump or thump (Tr. 5 at 193-94), he decided in an exercise of caution, to add additional 10-foot
cable bolts to the roof to better control it. The water, crack, and noise signaled to Duvall that the
roof might come to be less stable if supplemental support was not provided. See id. at 58, 124.
Using 10-foot cable bolts as supplemental support was a logical choice given their favorable
record. In addition, Prisock' s testimony established, and mine management knew, that prior to
September 21, 10-foot cable bolts already had solidly anchored in the mair:i roof of the affected
area. Tr. 13 at 131. These cable bolts anchored above the Middleman Seam and, as Chuck
Stewart, then the general manager of purchasing at the mine, observed, typically control of the
Middleman Seam meant control of the roof. Tr. 15 at 1018-19.33 These facts indicate that use of
the 10-foot bolts on September 21 was a reasonable choice.
The question then is whether as of September 21, it was unreasonable for the company to
fail to do more (i.e., install cribs) or to do something else (i.e., use 12-foot or 14-foot cable bolts)
or to do a combination of other things (i.e., use cribs, longer bolts, and more substantial straps) to
support the roof, and I conclude it was not. Certainly, the presence of water dripping from the
roof did not put the company on notice that it needed to do more than install additional 10-foot
cable bolts. As was stated over and over by numerous witnesses, water was not uncommon at the
mine. See, e.g., Tr. 6 at 432-33; Tr. 12 at 517-18, 605. Miners and mine management reasonably
did not consider its presence to signify a necessarily hazardous roof. See, e.g., Tr. 12 at 534-35.34

32

There had been faulty roof areas previously in other areas of the mine, and JWR
always had mined through them successfully by using 6-foot fully grouted resin bolts
supplemented by 10-foot cable bolts. Tr. 12 at 214-15; Tr. 13 at 181-82, 290-91 ; see also JWR
Br. at 1-3. In fact, then assistant mine manager Trent Thrasher knew of no roof falls prior to the
accident in areas supported with 10-foot cable bolts. Tr. 12 at 214.
33

I recognize that there was some equivocal testimony about whether IO-foot cable bolts
had sufficiently anchored in the roof prior to September 21. For example, roof bolter Terry
Eulenstein, a UMWA witness, exhibited ambiguity when asked. At the hearing he testified that
he had experienced difficulty getting IO-foot cable bolts to anchor properly in the main roof, but
when he was deposed, he stated that he had not. See Tr. 11 at 269-70. On the other hand,
Ronnie Hyche testified that in his experience "[10-foot cable] bolts always anchored good in the
main top." Tr. 6 at 201. Despite such conflicts, the testimony predominantly supports the
conclusion that the 10-foot cable bolts had been successfully anchored prior to September 21 and
that they had held the roof when they were used.
34

Terry, Bonner, Brown, and Hyche all testified that roof water had been encountered
before and that the measures JWR took were adequate to control the roof where it occurred. Tr.
4 at 85-86, 107-10; Tr. 5 at 43-46, 57; Tr. 6 at 193-94, 431-33.
27 FMSHRC 784

Rather, as Goggins stated, it was something "you need[ed] to keep an eye on" (Tr. 5 at 315),
which is exactly what the company was doing when it ordered installation of the additional
IO-foot cable bolts.
Further, although the noise heard by Duvall and the small crack he saw might (or might
not) have signaled that the roof was becoming less stable, given JWR's successful past history of
using 10-foot cable bolts and given the additional roof support that already had been installed in
the area (the 4-foot center bolting pattern and the supplemental cable bolts), it was not
unreasonable for Duvall to fail to order more than the installation of additional 10-foot cable
bolts. In short, there was no indication that anything more was needed.
I further conclude that, on September 21, once the decision to install the additional
supports was made and once the cable bolts were installed, it was reasonable for JWR to do
nothing further regarding supplemental support. In response to DuvalJ's decision to add more
cable bolts, roof bolters Bonner and Terry, under the direct supervision of section foreman Greg
Brown, installed the additional 10-foot bolts. Bonner and Terry believed the bolts were well
anchored and that the area was safe. Tr. 4 at 108-09; Tr. 5 at 57, 60; see also Tr. 5 at 79-80; Tr. 6
at 386.35 Brown, who was standing with Bonner and Terry when the bolts were installed and who
was watching and assisting with the drilling also believed the bolts had anchored into 2 to 3 feet
of solid roof. Tr. 6 at 386, 428-29. Neither Bonner nor Terry, the two miners with the most
intimate knowledge of the roof, stated to Brown that the roof strata was "soft." Id. at 387. Nor
did either express concerns about the anchorage of the bolts. The same is true of Eric Barnes, the
UMWA safety committeeman, who observed the bolting process for part of the time it was
.underway. See id. at 387, 429.
Given the fact that JenMar had scoped the roof on the.section and found no slips or faults,
that the company had a history of successfully relying on cable bolts to hold the roof in similar
situations,36 that there were no visible or audible sounds signifying the need for support different
from that being used, and that the roof bolters most immediately involved with the situation did
not indicate the need for other support, I conclude that it was not unreasonable for the company to
act as it did on September 21 and to rely solely on the 10-foot cable bolts.

35

As previously noted, Bonner testified the top ''wasn't as hard as it should have be((n,"
and that the top was "questionable" (Tr. 4 at 108, 109), but he also testified that the bolts were
satisfactorily anchored into the top, and at his deposition, which was closer to the events at issue,
he stated he felt that he had placed the bolts in "competent roof." Id. at 110.
36

MSHA Inspector Donald Greer testified that 6-foot resin bolts and 10-foot cable bolts
when used in combination had been routinely effective in supporting the roof. Tr. 12 at 605-06.
Moreover, Duvall testified that to his knowledge there never had been a prior roof fall at the
mine when 10-foot cable bolts, or even 8-foot cable bolts, had been used. Tr. 5 at 240-41; see
also Tr. 4 at 248; Tr. 5 at 40-41; Tr. 13 at 310.
27 FMSHRC 785

In reaching this conclusion, I have found the testimony of the roof bolters to be especially
compelling. William Prisock testified that the bolts he placed prior to September 21 anchored
"close to four feet" into the main roof. Tr. 13 at 132. His testimony was not refuted. Although
Bonner testified the top into which the bolts anchored was sometimes softer than he would have
liked (Tr. 4 at 52-54), both he and Terry described the bolts as "well anchored" in "competent
top" and both believed the intersection was safe and not a hazard. Tr. 4 at 51-52, 108-10; Tr. 5 at
47, 60. For this reason, I conclude that Bonner's later observation as to the consistency of the roof
(Tr. 4 at 108, 109) is not a critical factor making use of the 10-foot bolts unreasonable at the time.
I also find the fact that at the time neither Bonner nor Terry spoke to their supervisor or to their
fellow miners about any safety concerns for the roof or about a need for different and other roof
control measures to further support the roof buttresses the reasonableness of JWR' s reliance on
the 10-foot cable bolts. Tr. 6 at 430-31.37

Moreover, it is reasonable to assume that if miners believed the roof support methods they
were using in the cited area were inadequate, they would have reported it to Brown, yet there is no
testimony, aside from Linn's uncorroborated assertion, that any of them communicated with
Brown about the control methods they were using. See Tr. 5 at 125-26; Tr. 6 at 430. The miners'
silence on the topic is especially telling in the case of Bonner and Terry, roof bolters who were not
only engaged in work that was vital to the safety of others, but was equally vital to their own well
being. Cybulski was of the opinion that a reasonable roof bolter would have stated to his or her
supervisor that he or she was not getting enough anchorage when using the 10-foot bolts. Tr. 11
at 403-04. If so, a logical corollary is that the lack of such a statement indicates the opposite.
The Secretary argues that in fact the cable bolts were not anchored "sufficiently in
competent top." S. Br. at 11. She notes the testimony of Cybulski that 4 feet of anchorage is
necessary to obtain maximum strength from the bolt and the testimony of Howell that
manufacturers' specifications require 113 to 1/2-length of the bolt to anchor into solid top to
37

Continuous miner helper Nobel Linn, who worked on the September 21 day shift,
testified that he, Terry, Bonner, and Brown discussed the roof in the No. 2 Entry during the
course of the shift that day, that Brown suggested the use of longer cable bolts but that tlie
consensus view was to use steel rails supported with cribs, and that Brown stated sufficient
material was not available and would have to be ordered. Tr. 5 at 100-01. I do not find Linn's
story credible. There is no confirming testimony from Terry or Bonner, and Brown stated he did
not recall a conversation with Linn and that, in any event, cribbing material was stored in the
supply hole, although he was not certain how much was available. Tr. 6 at 385-87. Also, as
JWR points out, Linn did not mention a concern about the adequacy of the roof support to his
UMWA safety committee representative whom he saw that day on the section. JWR Br. at I-24
(citing Tr. 5 at 110). Nonetheless, even were I to credit Linn's version of the conversation, it
would not mean that what was done to support the roof was per se unreasonable. Roof support
that is "best" or "better" is not necessarily roof support that is exclusively reasonable, and the
question before me is the reasonableness of JWR's action under all of the circumstances.

27 FMSHRC 786

develop full strength. Id. at 12; Tr. 13 at 212. Of course, as previously noted, Howell also
testified, in seeming contradiction to manufacturers' specifications, that he had achieved full bolt
strength with a little less than 1/5 of a cable bolt anchored in solid top. Tr. 13 at 212. However,
even if the cable bolts used in the SS 13333 intersection did not obtain maximum strength, the
failure to use longer cable bolts did not necessarily make the use of 10-foot bolts unreasonable.
Adequate support depends upon the circumstances. Given what the record reveals about the prior
history of roof support at the mine, the signs of roof deterioration available to JWR on September
21, the roof bolters' belief that they had sufficiently anchored the bolts, and the lack of any
complaints or concerns from them regarding the way the bolts anchored, I conclude there was no
reason to suspect that the 10-foot bolts were not providing adequate support. It bears repeating
that my inquiry is directed not at whether the most effective roof support was used by JWR, but
whether, under all of the circumstances, the support which was used was reasnnable.
Having concluded that JWR acted reasonably through the installation of the supplemental
supports on September 21, I now must consider the company's actions between September 21 and
the September 23 roof fall. After the supplemental cable bolts were installed, the condition of the
roof remained essentially unchanged during the next shift on September 21 (the evening shift).
Mike Buchanan, the supervisor on the shift, observed small "hairline" cracks and water coming
from the roof at SS 13333, but he saw no signs that the ribs were taking weight. Tr. 13 at 21, 25,
56-57. It was Buchanan's conclusion that cribs were not needed. Buchanan's decision to have
the battery charger and battery moved into the intersection of SS 13333 lends weight to the
reasonableness of his belief. Id. at 21-22. Only a recklessly negligent person would have
purposefully moved equipment under roof he believed was insufficiently supported, and there is
no indication that Buchanan was such a person.
The record also supports the conclusion that September 22 came and went without any
meaningful change in the roof's condition. Bruce Mabe, who made the preshift examination for
the day shift, described the roof on the No. 4 Section as "nothing out of the ordinary." Tr. 12 at
517. Mabe saw no evidence that the roof bolts were "loading up" and taking weight. Id. at 518.
The roof bolt plates were not bent. The adjacent ribs were not sloughing excessively. Id. Brown,
who worked the day shift, recalled no change in the roof's condition (Tr. 6 at 436-37), a statement
whose credibility is buttressed by the fact that Brown did not direct further roof bolts to be
installed. Id. Buchanan, who did the preshift examination for the evening shift, continued to
believe the roof did not present.a hazard and that there was no need for additional roof support.
Tr. 13 at 34. Even the Secretary's witness, Cybulski, stated that his investigation of the accident
led him to conclude that the roof had not deteriorated between September 21 and the first shifts on
September 23. Tr. 11 at 402.
However, and as previously noted, on the afternoon of September 23, conditions began to
change fast. On the day shift, signs of deterioration were observed in the SS 13333 intersection.
While conducting the preshift examination for the oncoming shift, Puckett saw ribs sloughing in
the short crosscut adjacent to SS 13333 and a crack and a small hole in a nearby brattice. Tr. 4 at
227-28. It was evident to Duvall that more was needed to control the situation, and he advised
27 FMSHRC 787

Tony Key that cribs, the next logical step in JWR' s arsenal of roof and rib control measures,
should be built. Tr. 6 at 45-47. Puckett's preshift report confirmed this need. 38 The testimony of
Duvall and Key establishes that JWR was aware there was a problem requiring additional and
different support and that the company, through Duvall, responded to the problem by ordering the
installation of that support.
Key's testimony that his first priority when he started the evening shift on September 23
was the installation of cribs in the No. 2 Entry of the No. 4 Section is entirely credible. Key had
his work orders and the orders conformed to what Duvall believed was needed. Tr. 6 at 45. Key
and his crew (Nail, Mcie, Mobley, and Adams) traveled underground. When they arrived on the
section, Key noticed the damage to the brattice. After visiting the power center and taking
methane readings there and at the faces, Key instructed Mele and Adams to start building cribs by
beginning outby and moving progressively in by. Id. at 56-58. Key acted safely and reasonably by
having the men begin work only after he had checked the section for methane and to start their
work at what he believed was the safest place. Id. at 58.
There is no indication that Key dawdled in taking reasonable remedial steps to address the
deteriorating situation. Rather, once he was on the section, he moved in a logical and timely
fashion to make sure installation of the cribs proceeded safely. Unfortunately, the roof conditions
degraded so rapidly there was insufficient time to build the cribs, and it is impossible to know
whether the prior installation of longer cable bolts, more cribs, or other measures would have

38

When Puckett orally called out the report, it was recorded in writing by Tony Key who
was scheduled to work on the evening shift. Among the things Key wrote in the report were the
words "top working" in the "hazardous conditions" section. Tr. 6 at 47-48. There is a dispute
whether Puckett actually told Key the roof was "working" or whether Puckett was talking about
the adjacent rib (the yield pillar), and Key interpreted what Puckett said as relating to the roof
because excessive rib sloughage and unstable roof conditions frequently occur together. Id. at
46-48; Tr. 5 at 203-07; see JWR Br. at 1-18. However, resolving the dispute is not important
when deciding whether or not JWR personnel acted reasonably because whatever Puckett meant,
Duvall, Key's supervisor, clearly understood that the situation was fast changing and that it
called for additional and different support, i.e., cribs. Tr. 5 at 204, 209-10.
27 FMSHRC 788

resulted in a different outcome.39 I therefore conclude that JWR's actions on September 23 also
were reasonable.
Because JWR personnel acted reasonably in the face of the circumstances they knew or
should have known existed ·on the No. 4 Section, the company did not violate section 75.202(a).
B.

The Citation and Orders Relating to the Incombustible Content of Mine Dust

Citation No. 7328081 charges a violation of 30 C.F.R. § 75.403 in that, of 123 dust samples
collected during the accident investigation throughout 3 East, 4 East, the No. 4 Section, the No. 6
Section, and the connecting entries of Shaft 5-9, 121 of the samples did not meet the regulatory
requirements for incombustible content of the combined coal dust, rock dust, and other dust. The
citation also specifically notes that none of 31 band samples taken in an area of the No. 4 Section
inby the previously flooded area ("inby the toe of the water") met the requirements of the
regulation. 40 The citation contains an S&S finding. It also asserts that the 13 miners were fatally

39

In this regard, it should be emphasized that there is no way to accurately determine the
height at which the fall originated, except that it originated above the anchorage zone of the
10-foot cable bolts and, as Peng persuasively testified, almost certainly above the anchorage zone
of 12-foot bolts. Tr. 13 at 285-86, 295, 319-20. It also may well have originated above the
anchorage zone of 14-foot cable bolts. In any event, such issues are beside the point in that the
fundamental question is not what JWR could or should have done but whether what it did was
reasonable. As Stewart observed, "if you look at the accident in hindsight ... something
different might have helped" but, as he also recognized, the proper perspective regarding the
alleged violation is to view events as of the time they occurred and from the vantage point of
those involv~d. Tr. 15 at 1166. When this is done, I agree with Stewart that, based on what
miners and management officials "saw and knew," their actions were "prudent," that is to say,
reasonable. Id.
40

Citation No. 7328081 states in part:
On September 23, 2001, two separate explosions occurred
in 4 Section, resulting in fatal injuries to thirteen miners. During
the investigation, a total of 123 mine dust samples were collected
throughout 3 East, 4 East, 4 Section, 6 Section and the connecting
entries for Shafts 5-9. These band samples were subjected to a
laboratory·incombustible analysis. The results revealed that 121
(98.4%) of the sample results did not meet the regulatory
requirements for incombustible content of the combined coal dust,
rock dust and other dust of at least 65% in the intake air courses
and at least 80% in the return air courses. None of the 31 band
samples taken in the inby area of 4 Section met the regulatory
requirements. This area of 4 Section was not flooded during
27 FMSHRC 789

injured as a result of the violation, that the violation was due to JWR' s unwarrantable failure to
comply with section 75.403, and that the company's negligence was high. Gov't Ex. 1.
Section 75.403 states in part:
Where rock dust is required to be applied, it shall be distributed upon
the top, floor and sides of all undergr~mnd areas of the coal mine and
maintained in such quantities that the incombustible content of the
combined coal dust, rock dust, and other dust shall be not less than
65 per centum, but the incombustible content in the return aircourses
shall be no less than 80 per centum.
30 C.F.R. § 75.403.
Order No. 7328088 charges a violation of 30 C.F.R. § 75.360(b)(3) in that an adequate
preshift examination was not conducted in the No. 4 Section for the afternoon shift of September
22, because inadequate rock dust was not identified by the examiner.41 The order contains an S&S

recovery operations and was the location where both explosions
originated. This was also the area where coal dust became the
primary fuel for the second explosion. The condition contributed
to the severity and extent of the second explosion that resulted in
fatal injuries.
Gov'tEx. 1.
41

Order No. 7328088 states:
On September 23, 2001, two separate explosions occurred
in 4 Section, resulting in fatal injuries to thirteen miners. The
accident investigation revealed that an adequate preshift
examination was not conducted in 4 Section where persons were
scheduled to perform maintenance work during the oncoming
afternoon shift on September 22, 2001. A hazardous condition
consisting of inadequate rock dust existed, but was not identified
by the examiner. The condition was obvious, widespread, and in
the areas traveled by the examiner. During the investigation, mine
dust samples were collected throughout 4 Section. These band
samples were subjected to a laboratory incombustible analysis.
The results revealed that approximately 97% of the sample results
did not meet the regulatory requirements for incombustible content
of the combined coal dust, rock dust and other dust. None of the
31 band samples taken in the inby area of 4 Section met the
27 FMSHRC 790

finding. It also asserts that the 13 miners were fatalJy injured as a result of the violation, that the
violation was due to JWR's unwarrantable failure to comply with section 75.403, and that the
company's negligence was high. Gov't Ex. 5.
Section 75.360(b)(3) in part requires preshift examinations in:
Working sections and areas where mechanized mining
equipment is being installed or removed, if anyone is scheduled to
work on the section or in the area during the oncoming shift. The
scope of the examination shall include the working places.
30 C.F.R. § 75.360(b)(3).
Order No. 7328104 charges a violation of 30 C.F.R. § 75.362(a)(l) in that an adequate onshift examination was not conducted for the afternoon shift of September 22, because inadequate
rock dust was not identified by the examiner on the No. 4 Section where two mechanics were
assigned to work.42 The order contains an S&S finding. It also asserts that the 13 miners were

regulatory requirements. The average incombustible content was
less than 40%, indicating a condition significantly below the
regulatory requirements that should have been recognized by a
prudent mine examiner. This area of 4 Section was not flooded
during recovery operations and was the location where both
explosions originated. This was also the area where coal dust
became the primary fuel for the second explosion. The condition
contributed to the severity and extent of the second explosion that
resulted in fatal injuries. The Order will not be terminated until
hazard recognition training is provided for certified mine
examiners at the No. 5 Mine.
Gov'tEx. 5.
42

Order No. 7328104 states:
On September 23, 2001, two separate explosions occurred
in 4 Section, resulting in fatal injuries to thirteen miners. The
accident investigation revealed that an adequate on-shift
examination was not conducted in 4 Section where two mechanics
were assigned to work during the afternoon shift on Septembet 22,
2001. A h~ardous condition consisting of inadequate rock dust
existed, but was not identified by the examiner. The condition was
obvious, widespread and in the areas traveled by the examiner.
During the investigation, mine dust samples were collected
27 FMSHRC 791

fatally injured as a result of the violation, that the violation was due to JWR' s unwarrantable
failure to comply with section 75.403, and that the company's negligence was high. Gov't Ex. 6.
Section 75.362(a)(l) states in part:
At least once during each shift or more often if necessary for
safety, a certified person designated by the operator shall conduct an
on-shift examination of each section where anyone is assigned to
work during the shift and any area where mechanized mining
equipment is being installed or removed during the shift. The
certified person shall check for hazardous conditions.
30 C.F.R. § 75.362(a)(l).
Order No. 7328105 charges a violation of section 75.360(b)(3) in that an adequate preshift
examination was not conducted for the day shift on September 23, because: (1) the examiner did
not inspect the areas where miners were scheduled to perform maintenance and to roof bolt on the
No. 4 Section but rather limited the examination to electrical installations; and, (2) the examiner
did not identify obvious and widespread inadequate rock dust. 43 The order contains an S&S

throughout 4 Section. These band samples were subjected to a
laboratory incombustible analysis. The results revealed that
approximately 97% of the sample results did not meet the
regulatory requirements for incombustible content of the combined
coal dust, rock dust and other dust. None of the 31 band samples
taken in the inby area of 4 Section met the regulatory requirements.
The average incombustible content was le~s than 40%, indicating a
condition significantly below the regulatory requirements that
should have been recognized by a prudent mine examiner. This
area of 4 Section was not flooded during the recovery operations
and was the location where both explosions originated. This was
also the area where coal dust became the primacy fuel for the
second explosion. The condition contributed to the severity and
extent of the second explosion that resulted in fatal injuries. The
Order will not be terminated until hazard recognition training is
provided for certified mine examiners at the No. 5 Mine.
Gov't Ex. 6.
43

Order No. 7328105 states in part:
On September 23, 2001, two separate explosions occurred
in 4 Section, resulting in fatal injuries to thirteen miners. The
27 FMSHRC 792

finding. It also asserts that the 13 miners were fatally injured as a result of the violation, that the
violation was due to JWR's unwarrantable failure to comply with section 75.360(b)(3), and that the
company's negligence was high. Gov't Ex. 7.
Order No. 7328106 charges a violation of section 75.360(b)(3) in that an adequate preshift
examination was not conducted for the afternoon shift of September 23, because the examiner did

accident investigation revealed that an adequate preshift
examination was not conducted in 4 Section where persons were
scheduled to perform maintenance work and install roof bolts
during the oncoming day shift on September 23, 2001. The
examination was incomplete in that an examination of the working
places was not conducted where miners were scheduled to roof bolt
the unsupported face areas. The main mine fan had been off during
the previous shift, creating the pot<?ntial for methane accumulations
in the long crosscuts between No. 2 and No. 3 Entries as well as in
the face areas. The examiner was not made aware of these
circumstances and was instructed by mine management to limit the
examination to the electrical installations only. In addition, a
hazardous condition consisting of inadequate rock dust existed, but
was not identified by the examiner. The condition was obvious,
widespread and in the areas traveled by the examiner. During the
investigation, mine dust samples were collected throughout 4
Section. These band samples were subjected to an incombustible
analysis. The results revealed that approximately 97% of the
sample results did not meet the regulatory requirements for
incombustible content of the combined coal dust, rock dust and
other dust. None of the 31 band samples taken in the inby area of 4
Section met the regulatory requirements. The average
incombustible content was less than 40%, indicating a condition
significantly below the regulatory requirements that should have
been recognized by a prudent mine examiner. This area of 4
Section was not flooded during recovery operations and was the
location where both explosions originated. This was also the area
where coal dust became the primary fuel for the second explosion.
The condition contributed to the severity and extent of the second
explosion that resulted in fatal injuries. The Order will not be
terminated until hazard recognition training is provided for
certified mine examiners at the No. 5 Mine.
Gov'tEx. 7.
27 FMSHRC 793

not identify obvious and widespread inadequate rock dust. 44 '.fhe order contains an S&S finding. It
also asserts that the 13 miners were fatally injured as a result of the violation, that the violation was
due to JWR's unwarrantable failure to comply with section 75.360(b)(3), and that the company' s
negligence was high. Gov't Ex. 8.

1.

Citation No. 7328081

Section 75.403 requires rock dust to be distributed on the top, floor, and sides of all
underground areas of a coal mine and maintained in such quantities that the incombustible content
of the combined coal dust, rock dust, and other dust is not less than 65%, and the incombustibJe
content in the return aircourses is not less than 80%. The regulation, which restates section
305(d)(2) of the Mine Act (30 U.S.C. § 865(d)(2)), first was set forth as section 304(d)(2) of the
Federal Coal Mine Health and Safety Act of 1969 (the "Coal Act"). 30 U.S.C. § 864(d)(2) (1976).
44

Order No. 7328106 states:
On September 23, 2001, two separate explosions occurred
in 4 Section, resulting in fatal injuries to thirteen miners. The
accident investigation revealed that an adequate preshift
examination was not conducted in 4 Section where persons were
scheduled to install cribs during the oncoming afternoon shift on
September 23, 2001. A hazardous condition consisting of
inadequate rock dust existed, but was not identified by the
examiner. The condition was obvious, widespread and in the areas
traveled by the examiner. During the investigation, mine dust
samples were collected throughout 4 Section. These band samples
were subjected to a laboratory incombustibility analysis. The
results revealed that approximately 97% of the sample results did
not meet the regulatory requirements for incombustible content of
the combined coal dust, rock dust and other dust. None of the 31
band samples taken in the inby area of 4 Section met the regulatory
requirements. The average incombustible content was less than
40% indicating a condition significantly below the regulatory
requirements that should have been recognized by a prudent mine
examiner. This area of 4 Section was not flooded during recovery
operations and was the location where both explosions originated.
This was also the area where coal dust became the primary fuel for
the second explosion. The condition contributed to the severity
and extent of the second explosion that resulted in fatal injuries.
The Order will not be terminated until hazard recognition training
is provided for certified mine examiners at the No. 5 Mine.

Gov'tEx. 8.
27 FMSHRC 794

Because the Coal Act established numerical minimal levels for the incombustible content
of the combined dust, it was an axiom of coal mine safety law that a violation of section 304(d)(2)
and/or its implementing regulation could be established only by numerical results from valid dust
samples - results that proved the required minimum level of incombustible content had not been
reached. In one of its earliest decisions, the Commission's predecessor, the Interior Board of Mine
Operations Appeals, found that:
Since Congress specifically delineated percentages ... [a violation of
section 304(d)(2)] must be supported by more than the mere visual
observation of an inspector. Unless samples support an alleged
violation ... it cannot be sustained.

Hall Coal Co., Inc., 1IBMA175, 178 (Aug. 22, 1972); see also Newsome Brothers, Inc., 1 IBMA
190, 192-93 (Sept. 29, 1972) (invalidating alleged violation based "solely upon the visual
observation of the inspector").
The Commission's judges long have followed the same principle in Mine Act cases. See,
e.g., Consolidation Coal Co., 22 FMSHRC 455, 466 (Mar. 2000) (ALT), rev.'d on other grounds,
23 FMSHRC 588 (June 2001). The Secretary also has recognized the principle. Reiterating that
observation alone is insufficient to support a violation, she has instructed her inspectors to
"[c]ollect samples to substantiate the violation when citing inadequate rock dust." Coal General
Inspection Procedures Handbook, 4-12 (Apr. 1, 1969).45
In most instances when the agency collects and analyzes dust samples, its purpose is to
determine the incombustible content of the dust as of the moment the samples are collected. After
analysis of the samples, if a sufficient percentage of the samples indicates the dust content does not
meet required minimum levels, a citation charging a violation of section 75.403 is issued. The
alleged violation relates back to the time of sampling.
The citation at issue presents a very different scenario. The agency is not alleging the
sample results indicate a violation as of the time the samples were collected. Rather, it is alleging
the results indicate a violation that existed almost 2 months before the samples were taken, that is
to say, immediately before the roof fell on September 23.46 In other words, the Secretary is

45

Kevin Stricklin, an MSHA district manager who participated in the collection of
samples following the accident, referred to the agency's implementation of the principle when he
agreed that MSHA's decision to charge JWR with a violation of section 75.403 "[came] from the
samples." Tr. 7 at 280.
46

Collection of the samples began far outby in unaffected areas of the mine on
October 13, 2001 and progressed inby as affected areas were recovered. Sampling ended on
December 13, 2001. Samples for the No. 4 Section and the outby affected areas were not taken
until almost 2 months after the first explosion. See Tr. 7 at 307-10.
27 FMSHRC 795

asserting that the sample results represent pre-existing conditions. There is nothing wrong with
such an assertion, provided the Secretary can prove that conditions relating to the mine dust did not
change between the time of the alleged violation and the samples' collection; or, alternatively,
provided the Secretary can prove that although conditions changed, the sample results nonetheless
are sufficiently representative of results that would have been obtained had the samples been
collected at the time of the alleged violation.
In the context of this case, for the sample results to be sufficiently representative, the
samples must reflect the particular characteristics they would have had if they had been taken
immediately prior to the roof fall. They need not consist of identical amounts of combined
moisture, coal dust, rock dust, and other dust that then existed. H that were required, the changing
conditions to which all miners are subject would ensure that post-event samples rarely - perhaps
never - could establish a violation. .But to carry her burden of proof, the Secretary must be able to
show by a preponderance of the evidence that no intervening events fundamentally changed the
samples' contents and, thus, that the samples are sufficiently like those that would have been
collected at the time the violation allegedly occurred.

The Secretary argues that she has established the reliability of the dust samples and that
JWR has failed to show how "changed conditions in the mine would have altered the percentage of
incombustible content in the relevant areas overall." S. Br. at 79. She asserts that, "In the absence
of evidence demonstrating . .. changes in the mine site would render the dust samples
meaningfully dissimilar to the conditions before the explosion, the samples establish a violation"
of the cited standard. Id. at 80.
Not surprisingly, JWR counters that the Secretary has failed to furnish the proof necessary
to show that the company did not maintain the mine in compliance with section 75.403. JWR Br.
II-1. JWR maintains the Secretary has failed to meet her burden because the post-explosion
samples have no probative value. Rather than reflect conditions existing immediately prior to the
roof fall, they are "samples of a mine environment so radically and materially different from preexplosion conditions that are legally at issue ... [they] lack any legal relevance." Id. at II-14. The
company also sets forth a systematic and concerted evaluation of what it claims are manifold
inadequacies in the testimony of the Secretary's expert witness on the dust issue, Clete Stephan.
Id. at II-38-54.
a.
Changed Conditions
The testimony is replete with descriptions of the rock dusting and coal dust reduction
program that was in effect at the No. 5 Mine and of its use on the No. 4 and No. 6 Sections. See
Tr. 4 at 322-23; Tr. 5 at 210-13, 234-35, 312-13; Tr. 6 at 399; Tr. 12 at 188-92; Tr. 13 at 15, 60;
Tr. 15 at 982. While the adequacy of the rock dust applications is at issue, there is really no
dispute that most parts of the areas were in fact rock dusted.
In addition to this testimony, the general visual appearance of the areas indicated the
presence of varying amounts of rock dust. The descriptions of the areas ranged from "white" (Tr. 3

27 FMSHRC 796

at 495, 512 - miner Joe Phillips describing the roof and ribs of the No. 6 Section on September 21
and 23; Tr. 13 at 27-30- foreman Mike Buchanan describing entries in the No. 4 Section on
September 22) to "dark grey" and "black" (Tr. 3 at 339-40 - miner Eddie Maxwell describing
areas on the No. 4 Section on September 21).
However, following the explosions a visually dramatic change in these conditions was
noted by every witness who saw the sampled areas. Whatever had been their look and condition
prior to the explosions, everything in the affected areas - the ribs, the floor, the roof, and.the
equipment - was covered with a coating of soot and/or coal dust. Fresh coal littered the floors and
was exposed on many ribs. No rock dust was visible. The result was that the affected areas, and
especially the No. 4 Section, were blacker than night, and without digging into the floor or taking
away surface dust from the roof and ribs, rock dust could not be seen.
The testimony describing this change was compelling. Dale Byram, JWR' s manager for
safety and training who went underground approximately 3 hours after the second explosion, stated
that, as the rescue team he was leading proceeded inby, he began to see light grey dust on the track.
The closer the team came to the No. 4 Section, the darker in color the mine surfaces became and
debris from the explosion became noticeable. Tr. 12 at 395, 397. For example, at the 3 East
turnout he saw a significant amount of debris, including a large pod duster that had been blown
from one side of the track to the other. Id. at 398-99. As the crew arrived at what would have been
the entrance to the No. 6 Section, the debris on the track forced the crew to abandon the manbus
and proceed on foot. Id. at 399. Everything from 3 East inby was "solid black." Id.
Approximately 42 days later, after the mine had been flooded and the water had been
removed, Byram was able to view all of the No. 4 Section. The changed conditions were even
more dramatic than they had been immediately following the explosions. In addition to the
"consistent blackness everywhere" and "total destruction" (Tr. 12 at 422), Byram could see that
coal had been scoured froin the pillars and that metal doors were wrapped around steel pipes
"much like you see in a tornado." Id. at 423. A ram car was mangled. Stoppings were blown out.
Everything was covered with a sooty layer of black. The only evidence of rock dust was seen when
the black layer was broken through and scraped away. Id. at 424.
Terry Eulenstein, a company roof bolter, who participated in the collection of dust samples,
also described the No. 4 Section as "black" and a place of "total destruction." Tr. 11 at 277.
Eulenstein's testimony was echoed and supplemented by union safety committeeman Ricky Parker,
who took part in the post-accident investigation. Parker noted that the roof, ribs, and floor were so
black that light from his and others' cap lamps was simply swallowed up and absorbed by the
darkness. Fresh coal was everywhere in the area, including coal from sloughed ribs. Tr. 6 at

27 FMSHRC 797

334-35, 351.47 Parker thought that conditions before and after the explosions were as different as
night and day. Id. at 349.
Another union safety committeeman, Eric Barnes, who had been on the No. 4 Section on
September 21 and who revisited it on November 1, also thought the section was "totally different."
Tr. 2 at 520. Like many others, Barnes noted that equipment was destroyed, ribs were blown away,
and particles of coal of al) sizes littered the section. Id. at 520-22. Roof bolter David Terry, who
was on the No. 4 Section and in the affected areas before and after the explosions, agreed as to the
totality of the change, and he stated that hardly "a grain" of rockdust was visible anywhere. Tr. 5 at
78. In fact, conditions on the No. 4 Section were so different, John Puckett, the day shift foreman
who was last on the section on September 23, stated if the mine had looked on September 23 as it
did following the explosions and flooding, his crew "would have probably called ... [MSHA] and
the [union] safety committee before we got to the section, ifl had even tried to make them go." Tr.
4 at 252.
Trent Thrasher, who was the deputy mine manager at the time of the explosions, and who
went underground during the course of the investigation, saw that the ribs had sloughed and rolJed
out into the entries and that coal was scattered everywhere from the intake shaft to the faces. Tr.
12 at 187-88. Gary Toxey, then a member of the union, who was part of the team collecting dust
samples, described the rib s)oughage on the No. 4 Section, both in the area that had been flooded
and in the area inby the toe of the water as "astronomical." Tr. 12 at 683, 705.48 Some of the
equipment on the section was buried in 18 to 24 inches of rubble. Tr. 12 at 353-54.
MSHA Inspector Donald Greer, who was underground before and after the explosions,
stated that the mine looked like nothing he had seen before. He noted the absence of observable
rock dust and the fact that in some places, the ribs had been blown away near their tops so that the
entry cross sections were trapezoidal rather than rectangular. Tr. 12 at 599-600.
Given the overwhelming testimony of these eyewitnesses, I find that the conditions in
which the samples were collected following the explosions were fundamentally different from
those that existed immediately prior to the roof fall. However, this finding does not doom the

47

Chuck Stewart, the company's assistant mine manager, who went to the No. 4 Section
in early November also saw the post-accident sloughage. Tr. 15 at 913-20; see JWR Ex. 260. As
Stewart recalled, some of the sloughed coal extended at least two thirds of the way into the
entries. Tr. 15 at 917-18.
48

Toxey' s description of the amount of sJoughage was at odds with that of Kenneth
Murray, an MSHA District Manager and a member of MSHA' s investigation team. Murray
described the No. 4 Section as having a "bit" of sloughage. Tr. 9 at 57-58. However, under
either scenario, it is clear that post-explosion sloughage was present in the affected area.

27 FMSHRC 798

alleged violation, providing the Secretary can show by a preponderance of the evidence that despite
the changed conditions the sample results are sufficiently representative of what they would have
been had the samples been collected immediately prior to the roof fall.
b.

The Representative Nature of the Samples

After a thorough review of the record, I conclude that the Secretary has not made such a
showing. In fact, she has not even come close. Rather, the record establishes beyond doubt that
forces unleashed by the explosions, water that was pumped into and out of the mine, and the
sloughing of the Blue Creek Seam changed the content of the dust that was sampled so that the
collected mix of rock dust, coal dust, and other dust was different after the explosions than it was
immediately before the roof fell. The record also confirms that the Secretary failed to show, as was
her burden, that despite these changes the results were fundamentally the same as they would have
been if the samples had been collected prior to the roof fall. Indeed, as will be discussed, the
testimony and exhibits offered by the Secretary fail to provide a basis for answering with a
requisite degree of certainty many critical questions regarding the effect of the events on the
samples, and the resulting inconclusive nature of the Secretary' s case defeats her efforts to prove
the violation.
To understand what happened to the rock and coal dust included in the samples, it is
necessary to review what is known about the effe.cts of the events that occurred during and
following the explosions. First, it is indisputable that existing rock dust on the No. 4 Section and
elsewhere in the sampled areas was moved by the explosions' forces and by the flow of water
when the mine was flooded. In addition, it is indisputable that draining the water from the mine
also moved and removed rock dust from the formerly flooded and sampled areas.
Second, it is indisputable that forces from the explosions, the flooding of the mine after the
explosions, and the sloughing of the coal ribs after the explosions moved existing coal dust and
added new coal dust to the sampled areas. It is equally indisputable that draining the water moved
and removed coal dust from the formerly flooded and sampled areas.
Clete Stephan was the Secretary's primary witness regarding the samples. Stephan was
instrumental in the agency' s decision to cite JWR for the violation of section 75.403 based on the
post-accident samples. See Tr. 7 at 223-24. With regard to rock dust, Stephan agreed that the
shaking of the ribs that accompanied the explosions would have redistributed "some" rock dust
located on the surface of the ribs. Tr. 10 at 293-95. Further, he agreed that during the first
explosion, rock dust on the section was lifted and moved, but he maintained that because the forces
generated by the first explosion were "small," "very little" of the rock dust was moved off of the
No. 4 Section. Tr. 11at158-59, 161-62. He also believed that although forces of the second
explosion lifted more rock dust, "the dust lifted in the vicinity of the face [was] left within about
two hundred feet of where it was initially picked up." Id. at 162.

27 FMSHRC 799

However, Stephan's opinions are suspect. Given the totality of the testimony, it is equally
plausible that forces from the explosions put much rock dust in the sampled areas into suspension
and that this dust traveled out of the sampled areas, in some instances far out of them. I note that
miners outby the No. 4 Section following the first explosion invariably commented about dust that
soon appeared around them. Benny Franklin, the longwall production supervisor, testified that the
dust in the air was so thick he had to find a second phone from which to call out of the mine. As
Franklin remembered, visibility was extremely restricted, and it was hazardous to stand in the dust
at the first phone. Tr.· 3 at 55. In fact, the dust was so thick in the air that those working on the
longwall thought miners inby were rockdusting and that the rock dust was traveling outby over
them. See, e.g., Tr. 3 at 39, 50. Other miners who were outby the No. 4 Section following the first
explosion agreed that, as they got closer to the section, the dust in the air increased. See, e.g., Tr. 2
at 290-91, 311.
Nor was transportation of the rock dust limited to underground areas. Rock dust was blown
completely out of the mine. Section foreman Mike Buchanan described the surface area around the
top of the 5-9 Shaft on the day after the explosions as having "rockdust all over the ground where it
blew out." Tr. 13 at 42-43. Chuck Stewart confirmed this and added that some thought it looked
as though it had snowed. Tr. 15 at 966-67. According to Buchanan, the rock dust was 1/8- to
1/4-inch deep around the top of the shaft, and 118-inch deep to a minimal amount up to 1,000 feet
away from the shaft. Tr. 13 at 43-44. There is no testimony disputing Buchanan's and Stewart's
descriptions of the rock dust, and Martin Hertzberg, an expert witness who appeared on behalf of
the company, persuasively testified that the rock dust around the 5-9 Shaft was evidence of how the
explosions' forces could transport dust gre_at distances. Tr. 15 at 863.
I conclude that the eyewitness testimony of those both underground and above as to the

presence of rock dust that appeared soon after the explosions undermined Stephan's opinion that
"very little" dust was moved off the No. 4 Section by the explosions. The rock dust came from
somewhere. The record confirms that rock dust in the sampled areas was picked up by the
explosions' forces, yet one searches the record in vain for scientifically reliable evidence
establishing how much rock dust was picked up and the distance it was moved. Indeed, Stephan
admitted that MSHA did not calculate the explosions' forces (Tr. 11 at 100), a calculation that
would seem to have been critical to any scientific determination of the distance that dust - rock
and/or coal dust - was transported. The fact that it is impossible to determine the amount of rock
dust that was put into suspension and the ex.tent that it was moved is one of the unresolved issues
that undermines the Secretary's case.
The same is true of coal dust. Trent Thrasher believed forces from the explosion blew coal
dust out of the areas sampled. See Tr. 3 at 39, 50.49 Stephan agreed that as a mine's atmosphere
49

Thrasher, like many of the witnesses, used the generic term "dust" to refer to both rock
dust and coal dust. It is clear, however, from the context of the testimony, that Thrasher, like the
other witnesses who used the general term, believed that coal dust, in addition to rock dust, was
moved by forces unleashed by the explosions.
27 FMSHRC 800

expands during an explosion, dust (including coal dust) is picked up off the mine floor, knocked
off the surfaces of the mine' s roof and ribs, and put into suspension. Tr. 11 at 95. Once coal dust
is placed in suspension it is moved by the atmosphere. Martin Hertzberg logically explained, "the
distance that the dust gets thrown .. . depends on how big the explosion is." Tr. 15 at 438. "[C]oal
dust ... can get transported hundreds of feet to thousands of feet, depending upon the dimensions
of the·explosion." Id. at 439; see also JWR Bxs. 253, 254 (pictorial and video depiction of coal
dust propelled by explosion).
Stephan did not disagree that dust was in fact raised by the first explosion and that the
amount of dust suspended and transported outby by the first explosion depended on the magnitude
of the forces created by the explosion. He also did not disagree that MSHA made no calculations
regarding these forces. Tr. 11 at 81-84. He testified that to some extent dust located inby the end
of the track before each explosion was propelled outby by each explosion. Id. at 87. He agreed
during his deposition that the liberation of coal and coal dust from the ribs "would contaminate the
area with respect to conditions that existed before the roof fall." Tr. 10 at 219. He added that, to
some extent - perhaps to a great extent- dust samples "that included ... dust that's liberated from
the ribs by the first explosion ... would not be representative of pre-roof fall conditions." Id. He
further agreed that there was no way to know after the explosion how much the liberated dust
affect.e d the samples. Id. at 219-20.
In addition, Stephan acknowledged that the second explosion transported dust a far greater
distance than the first explosion (Tr. 11 at 8, 78), and that the dust would have been transported
outby in all four entries of the No. 4 Section. Id. at 78. He testified that some dust transported in
the second explosion also had been transported in the first explosion, and because the forces from
the second explosion were greater, dust not moved by the first explosion was in fact moved by the
second. Id. at 81-82. Stephan acknowledged that MSHA made no calculations as to how much
dust was transported by either of the explosions. Id. at 83. However, he was of the opinion that
some dust inby the end of the track on the No. 4 Section was pushed or propelled outby the end of
the track after the second explosion. Id. at 87. The fact that it is impossible to determine from the
record the amount of coal dust that was put into suspension and the distance it was moved is yet
another unresolved issue that undermines the Secretary's case.
In addition to being unable to determine how much rock and coal dust was put into
suspension by the explosions and how far it was moved, the government was unable to establish to
a reasonable degree of certainty how the dust settled after the explosions. Stephan even conceded
the dust could have been in compliance before the first explosion and settled in such a way that it
was explosive. Tr. 11at7-8.
To this must be added the fact that the explosive forces in and of themselves resulted in the
liberation of coal dust that was not present before the roof fall. Witnesses for both the company
and the Secretary agreed that equipment and other objects were hurled by the explosions' forces
into the ribs and that the impacts fractured the ribs and freed coal dust. See, e.g., Tr. 8 at 262-65

27 FMSHRC 801

(Jim Langley); Tr. 10 at 214-17 (Stephan); Tr. 14 at 603 (Jack Tisdale);50 see also Tr. 11at260-61.
As MSHA Inspector Jim Langley aptly noted, the friable nature of the Blue Creek Seam virtually
ensured coal dust would be liberated. Tr. 8 at 262, 268.
In addition, the nature of the Blue Creek Seam meant that coal dust was continually added
to the sampled areas between the last explosion and the dates the samples were collected. Almost
every witness who traveled underground commented upon the presence of post-explosion
sloughage in the sampled areas. See, e.g., Tr. 15 at 913-20 (testimony of Chuck Stewart regarding
No. 4 Section); Tr. 12 at 683, 705 (testimony of Gary Toxey regarding No. 4-Section); Tr. 9 at
57-58 (testimony of Kenneth Murray regarding No. 4 Section); Tr. 8 at 271-72 (Langley); Tr. 12 at
524-26 (Mabe). True, there was disagreement as to the am0unt of sloughage. As has been
previously noted, Toxey's description of the sloughage as "astronomical" (Tr. 12 at 683) was at
. odds with Kenneth Murray's description of the No. 4 Section as exhibiting a "bit" of sloughage.
Tr. 9 at 57-58. However, under either scenario, it is clear that post-explosion sloughage was
present in the affected area.
It is also clear that the post-explosion sloughage produced "sampleable" coal dust. Murray,
the MSHA field office supervisor who co-authored the part of the MSHA accident report dealing
with dust, thought that most of the dust produced by the sloughage was too large to pass through a
20 mesh sieve and, therefore, was too large to be included as part of the samples. Tr. 9 at 59.
Stephan echoed Murray's opinion and stated that sloughage occurring after the second explosion
would not have affected samples because coal usually sloughs in blocks or clumps and not particle
sizes that pass through a 20 mesh screen. Id. at 538-39.51
However, I reject Murray's and Stephan's opinions and find for a fact that sloughage
occurring after the second explosion liberated coal dust that was included in the samples. Miner
Ricky Parker, who was chairman of the union safety committee at the time of the explosions, and
who, unlike Murray and Stephan, had experience working with the Blue Creek Seam, described the
coal as so soft, it could be dislodged from the ribs with one's fingers and turned to dust by
squeezing. Tr. 6 at 338-39. Even more persuasive was a video offered into evidence by JWR
depicting the pulling of ribs at the No. 5 Mine and the collection of resulting dust that was sifted
through a 20 mesh screen. JWR Ex. 217. As the supporting testimony of JWR engineer James
Jones established and as the video clearly shows, sloughage produces coal dust of a size that can be
sampled. Tr. 12 at 778-91. It is logical to conclude that at least some of such dust was included in
the samples that were collected following the explosions.

50

While Stephan's testimony pertained to dust liberated from the ribs by the forces
unleashed by the first explosion, it is clear that the second explosion, which was far more
powerful and extensive, would have had an even greater impact, something that Stephan
acknowledged. Tr. 11at81-82.
51

However, Stephan was not entirely consistent on this point. He also testified that he
did not think "very much" screenable coal dust would be produced. Tr. 10 at 216-17.
27 FMSHRC 802

It is apparent that MSHA had no idea how much coal d~st was produced by the sloughage
and how much was included in the samples. Stephan agreed that the amount of sloughage between
the second explosion and the taking of the samples was "important, relevant and unknown" (Tr. 10
at 212-13), and he conceded in his deposition that, "[t]he liberation of coal and coal dust from the
ribs would contaminate the area with respect to conditions that existed before the roof fall." Id. at
219. He also agreed there was no way to know bow much the liberated dust affected the samples.
Id. at 219-20.
From this review of the record, I conclude that measurable coal dust was liberated in the
sampled areas during and after the explosions, that some of the dust was included in the samples,
and that the Secretary does not know and cannot establish to a requisite degree of certainty how
much this dust affected the sample results. It is another unresolved issue.
The effect of flooding and draining on the samples taken in the formerly flooded area also
is unknown. Murray agreed the water coursing in and out of the mine would have moved and
rearranged the coal dust and rock dust particles and removed them from areas where they
previously existed. Tr. 9 at 180-81. Therefore, coal dust conditions in the flooded areas would
have been "different" from those that existed prior to the explosions. Id. at 181. Murray could not
say whether the difference was "large," "small," or "otherwise." Id. at 183-84. Kevin Stricklin, a
member of MSHA' s investigation team, testified that rock dust and coal dust were pumped out of
the mine along with the water. Stricklin did not know if rock dust and coal dust amounts were the
same after the water was gone. Tr. 7 at 271, 278-79. Nor did he know if flooding and draining the
mine "changed the mine conditions by changing the dust composition of the area." Tr. 7 at 277-79.
Stephan agreed there was no evidence as to the content of the water that was pumped from
the mine. Tr. 11at91-92. However, he maintained that the flooding actually was beneficial to
JWR because moisture was added to the incombustible content (Tr. 11 at 153-56) and because the
rock dust, being heavier than the coal dust, was more likely to settle out and remain when the water
was drained. Tr. 9 at 560.52 But Stephan's opinions in this regard were not based on·any
measurements or simulations, on-site or off. As Stephan himself testified, none of the accident
investigations in which he participated involved mines that had been flooded following explosions.
Tr. IO at 28-29. To put the matter plainly, MSHA simply did not know and could not tell the
extent to which pre-accident dust conditions were altered by the flooding process. True, the
Secretary offered guesses, but I cannot find that the samples taken outby the toe of the water are
sufficiently representative based on guesses. Thus, the effect of the flooding on the composition of
the dust is something that cannot be determined with any requisite degree of certainly. It is another
unresolved issue.
There are two final points regarding the samples that must be made. Stephan, and thus
MSHA, relied in part on two "scientific" principles to confirm the existence of the alleged

52

This opinion contrasted with Stephan's earlier agreement that the water would have
been "equally as likely to remove rockdust as it would be to remove coal dust." Tr. 9 at 556.
27 FMSHRC 803

violation. First, Stephan believed that because some coal and coal dust was burned away by the
heat of the second explosion, the incombustible content of the dust sampled in the area affected by
the flame of the explosion actually was higher than its pre-explosion content. Therefore, the
samples taken within the zone of the flame were even further out of compliance than the results
indicated. See Tr. 11 at 165.
While this theory might have offered some inferential support for the existence of the
violation if it was established as scientifically credible, it was not. The record reveals that Stephan
and other MSHA officials felt that further research was needed to verify the principal and that
Stephan asked for and received the assistance of the National Institute of Occupational Safety and
Health (''NIOSH''). See Tr. 10 at 96. As JWR points out, and as Stephan himself recognized,
NIOSH experiments on the issue were not conducted under conditions equivalent to those
involving the explosions at the No. 5 Mine. Lacking other scientific support the principal remains,
on the basis of this record, an unsubstantiated theory, one that can have no effect on my conclusion
regarding the existence of the violation. See JWR Br. at II-49-50. 53
Second, Stephan explained that all of the samples were subjected to alcohol coke tests. If
the tests revealed the presence of large to extra large amounts of coke, Stephan believed that it was
an indication the incombustible content of the samples was less than 50% and therefore indicative
of non-compliance. See Tr. 10 at 79, 81; see also Tr. 9 at 275. Stephan felt the alcohol coke test
results were "very critical ... for making decisions about where the incombustibl~ content was
prior to an explosion." Tr. 10 at 79-80.
However, Stephan also testified that prior to coming to a final conclusion regarding the
significance of coke in the samples, he felt that consultation with NIOSH was required. As a
result, Kenneth Cashdollar of NIOSH, collaborated with Stephan and others at MSHA on the
significance of post-explosion coke. Tr. 10 at 97.
As part of this collaboration the sample results were reviewed, and it was noted that some
samples showing large amounts of coke had incombustible contents above 50%, even above
65%.54 These results surprised Cashdollar, who felt that more testing was needed. Tr. 8 at 358-62,
385-86.
When Stephan was asked about these "anomalous" results, he conceded that "under some
conditions," coking can occur when the sampled dust has an incombustible content of more than

53

Indeed, Stephan seemed to agree. He testified, "[W]e cannot draw any conclusions
regarding what may occur under other conditions." Tr. 11 at 119.
54

Several of the samples which had large to extra large amounts of coke showed
incombustible contents ranging from 65.3% to 70.1 %. Kenneth Murray agreed these results
seemed at odds with the principle that coke only formed if the dust was 50% or less
incombustible. Tr. 9 at 292-95; see also Tr. 8 at 360-62.
27 FMSHRC 804

50% (Tr. 10 at 107), but he maintained that only a few tests showed these results, whereas "the
knowledge that [MSHA had] . . . [came] from thousands of experimental tests." Tr. 10 at 107-08.
When questioned further, Stephan admitted, he had no knowledge of the thousands of experimental
tests. Id. at 185-87.
On the basis of the record, I find the Secretary's theory regarding the presence of coke in
the samples is unsubstantiated and it will not influence my conclusion regarding the existence of
the violation. See JWRBr. at Il-49-50.55
Accordingly, I conclude that the Secretary has failed to prove: (1) that conditions·relating to
the incombustible content of the mine dust did not change between the time immediately prior to
the roof fall and the samples' collection; and (2) that the sample results are sufficiently '
representative of results that would have been obtained at the time of the alleged violation.
Therefore, I find that the Secretary has failed to establish the alleged violation.

In reaching these conclusions I am not ruling on likely causes of the explosions or on
culpability for them. I am simply ruling on the issue before me - whether the Secretary has proved
the alleged violation of section 75.403 by a preponderance of the evidence.
2.

Order Nos. 7328088, 7328104. 7328105. and 7328106

Except for the charge in Order No. 7328105 that the preshift examination for the oncoming
day shift on September 23, 2001 was incomplete because the examination was limited by mine
management to electrical installations, all of the orders allege that variously required examinations
on September 22 and September 23 were not adequate because "inadequate rock dust existed but
was not identified by the examiner." Gov't Exs. 5, 6, 7, 8. The orders further allege that the
"inadequate rock dust" is established by the same sample results as the alleged violation of secti9n
75.403.
I have concluded that the Secretary failed to prove a violation of section 75.403 because,
inter alia, she did not show that the sample results were sufficiently representative of conditions
that existed at the time of the alleged violation. In view of this conclusion, the question arises
whether the Secretary can nonetheless establish violations of sections 75.360(b)(3) and
75.362(a)(l) by showing the examiner failed to identify "a hazardous condition consisting of
inadequate rock dust." Although it might be possible to do so in theory, in these particular
circumstances the answer is "no." The alleged inadequate examinations are too closely tied to the
sample results to survive the results' invalidation. The language of the orders specifically cites the
results, and the testimony of the Secretary's witnesses Kenneth Murray and Kevin Stricklin make
clear that, but for the results, the agency never would have cited JWR for the alleged failures to
55

Even if I found the principles scientifically reliable, it would not overcome the
deficiencies in the Secretary's case and change my ultimate conclusion that the Secretary did not
establish the sample results were sufficiently representative.
27 FMSHRC 805

identify inadequate rock dust during the examinations. See Tr. 9 at 991-92, 102, 106-07; Tr. 7 at
437-38. For these reasons the orders must be vacated as they relate to the alleged failures of the
examiners to detect such conditions.
This leaves the allegation in Order No. 7328105 regarding the alleged improper liniitation
of the September 23 preshift examination to electrical installations. Under section 75.360(b)(3),
among the locations where the preshift examiner is required to conduct an examination are
"[w]orking sections and areas where mechanized equipment is being installed or removed, if
anyone is scheduled to work on the section or in the area during the oncoming shift."
The record reveals that on September 23, Dye conducted the preshift examination for day
shift on the No. 4 Section and No. 6 Section. Dye worked on the owl shift (11:00 p.m.,
September 22, to 7:00 a.m., September 23). Dye's supervisor was Randy Hagood. Tr. 3 at 380-81.
When Dye arrived at the mine, he could not immediately begin the examination because the fan
was being inspected in order to make sure it was functioning properly (a "fan check"). Hagood
told Dye to wait until the fan check was completed. Tr. 3 at 380-82.
Dye did not go underground to begin the examination until around 2:00 a.m. or 3:00 a.m.
Dye testified that Hagood told him to examine what Dye described as "electrical parts," which Dye
understood to be "power centers and scoop chargers." Tr. 3 at 383. Dye asked Hagood if he was
supposed to "make a complete check of the section" and Hagood responded, "No, just electrical
installations.'' Id. at 384. When Dye went underground he believed that no one would be working
on the No. 4 Section during the shift. Id.
Once underground, Dye recalled entering the No. 4 Section at the end of the track and
proceeding inby along the No. 2 Entry. Dye examined the scoop battery charger and proceeded
further inby along the No. 2 Entry to the power center. See Gov't Ex. 83C. Dye examined these
areas. Dye did not examine anything inby the power center, including any of the face areas. Tr. 3
at 395. Dye retraced his steps, and exited the mine. At about 6:30 a.m., he reached the surface.
Dye completed a written preshift report indicating that he had inspected the scoop battery
charger and the power center and that he traveled in the No. 2-Entry (the track entry). Tr. 3 at
393-94. The report was signed by Dye and later by the oncoming shift foreman, Burt Duvall. Id.
at 394. Dye testified that he did not speak with anyone about the examination.
On September 23, John Puckett was scheduled to supervise the maintenance crew on the
No. 4 Section during the day shift. According to Puckett, one of the things he did when he reached
the mine was to check the preshift report and make certain a preshift examination had been
conducted for his shift. Tr. 4 at 126.56

56

Puckett claimed that he intended to sign the preshift report to indicate he reviewed the
report, but he later realized he neglected to do so. Tr. 4 at 132.
27 FMSHRC 806

Puckett was aware that he would be responsible for work on the No. 4 Section. The work
had been scheduled on the Thursday before Sunday, September 23. Tr. 4 at 126-28. Puckett
thought the work would include roof bolting as well as maintenance work. He did not know the
specific maintenance duties that would be assigned to his crew because those changed as the needs
of equipment changed, but he knew that whatever the duties, they would take place on the No. 4
Section. Id. at 127.
Puckett also knew the areas that Dye had examined before Puckett entered the mine.
Puckett stated when a preshift examiner did not know where miners would be assigned to work,
they frequently limited the preshift to "the power center areas, the charger areas, any place that
power is going to be restored." Tr. 4 at 131. When Puckett saw that Dye had restricted the preshift
examination, Puckett decided to conduct a "supplemental preshift" examination after he reached
the No. 4 Section. Id.
Once Puckett and his crew arrived at the section, Puckett led his crew up the No. 2 Entry.
He had them wait at the power center while he examined the faces and conducted the rest of the
supplemental preshift examination of the areas that had not been inspected by Dye. Id. at 132-36.
The power center was located well inby the mouth of the No. 4 Section. See Gov't Ex. 83D.
Puckett maintained that he called Duvall to report the conditions he found during the supplemental
preshift examination. Tr. 4 at 142.57
Section 75.360(b)(3) requires the preshift examination to be conducted in "[w]orking
sections and areas where mechanized mining equipment is being installed or removed, if anyone is
scheduled to work on the section or in the area during the oncoming shift," and further specifies
that "[t]he scope of the examination shall include the working places." A "working place" is
defined as "[t]he area of a coal mine inby the last open crosscut." 30 C.F.R. § 75.2. The Secretary
argues that JWR personnel knew that miners were scheduled to work on the No. 4 Section on
September 23, and that although the job duties to be performed on the section may have changed,
the location of the work did not. Therefore, the Secretary alleges the failure of JWR to preshift
examine the working places before Puckett's crew went underground violated the standard. S. Br.
at 63-64.
JWR asserts that although Dye limited his preshift examination to the electrical
installations in the track entry, when the work plans for his crew changed and he understood the
57

However, the nature of Puckett's "supplemental" examination is open to question.
Later in his testimony Puckett stated that he believed he had conducted two examinations on the
No. 4 Section, a supplemental preshift examination and an on-shift. Tr. 4 at 161. He maintained
that he called-out the results of his supplemental preshift examination, but he agreed the results
were recorded as an on-shift examination, not a preshift examination. When he was asked if he
combined the two examinations, he stated that he had and "[t]here was no reason not to." Id. at
166.

27 FMSHRC 807

crew was supposed to roof bolt the faces, he conducted a supplemental preshlft of the faces and
other unexamined areas before the miners were to go there. JWR Br. at ID-16. The company also
notes that due to the continuing power outage on the No. 4 Section, the miners on Puckett's crew
never in fact worked at the faces. Id. According to JWR, since the record reveals that the preshift
was conducted in places where miners actually worked, there was no violation of section
75.360(b)(3). Id. at 17.
Analysis must begin with the words of the regulation, which requires an examination for
hazardous conditions (i.e., a preshift examination) in "[w]orking sections ... if anyone is
scheduled to work on the section ... during the oncoming shift." 30 C.F.R. § 75.360(b)(3).
"Working section" is defined as "[a]ll areas of the coal mine from the loading point of the section
to and including the working faces." 30 C.F.R. § 75.2. The standard also states that the scope of
the examination shall include the "working places," which, as the Secretary notes, is defined as ·
"[t]he area of a coal mine inby the last open crosscut." Id. Dye admitted that he did not examine .
the faces. Therefore, if anyone was "scheduled to work on the section" prior to Dye's examination,
the standard was violated.
Puckett testified that prior to going underground on September 23, he understood that he
and his crew were scheduled to work on the No. 4 Section. He further stated that the work was
scheduled on the Thursday prior to Sunday, Sept~mber 23. He believed the work would include
roof bolting and maintenance work. Tr. 4 at 126-30. Puckett's testimony, which was not refuted,
was entirely credible. Based on it, I find that JWR scheduled miners to work on the No. 4 Section
prior to Dye's preshift examination, and I conclude that Dye's failure to examine "[a]ll areas of
[the No. 4 Section] ... from the loading point of the section to and including the working faces"
(30 C.F.R. § 75.2), which includes "[t]he area of the ... mine inby the last open crosscut" (id.),
violated section 75.360(b)(3).
Having found a violation of the standard, I must now consider the inspector's findings
relating to the S&S nature of the violation and JWR's unwarrantable failure to comply with section
75.360(b)(2). Further, since a civil penalty is required to be assessed for the violation, I must
consider two of the civil penalty criteria for which there are no stipulations: the gravity of the
violation and the negligence of JWR in allowing the violation to exist.
3.

S&S and Gravity

An S&S violation is described in section 104(d)(l) of the Mine Act as a violation "of such
nature as could significantly and sub~tantially 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'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

27 FMSHRC 808

In Mathies Coal Co., 6 FMSHRC 1(Jan.1984), the Commission explained its
interpretation of the term "S&S" as follows:
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 (71h Cir.
1995); Austin Power, Inc. v. Sec'y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125 (August 1985), the Commission explained

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 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 (Aug. 1984); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
7 FMSHRC at 1129 (emphasis in original).
The question of whether any particular violation is S&S must be based on the particular
facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). Further, any
determination of the S&S nature of a violation must be made in the context of continued normal
mining operations. U.S. Steel, 7 FMSHRC at 1130; Halfway, Inc., 8 FMSHRC 8, 12 (January
1986).
The Secretary argues, and I agree, that the violation was S&S. First, there was a violation
of section 75.360(b)(3).
Second, there was a discrete safety hazard that was contributed to by the violation in that
had normal mining operations continued, power would have been restored, and miners would have
27 FMSHRC 809

been sent foiward to the face areas to roof bolt or to other areas of the section for maintenance
work. Tr. 4 at 127. This was prevented by a continued disruption of the power, but the disruption
was abnormal, and JWR was working to put the power back online as the day shift commenced. It
is true that Puckett's "supplemental" examination covered areas not covered by Dye, but miners
already had entered and advanced well into the section before Puckett's examination began. Given
the gassy nature of the mine the failure to conduct the full preshift examination before miners were
on the section significantly and substantially contributed to exposing the miners to a methanerelated accident. Any. such accident was reasonably likely to result in serious, indeed fatal, injuries.
Third, there was a reasonable likelihood that the hazard would result in an injury causing
event Section 75.360(a){l) prohibits persons other than the preshift examiner from entering or
remaining in an underground area unless a preshift examination has been completed. 30 C.F.R.
§ 75.360(a)(l). A working section where miners have been assigned to work is designated by
section 75.360(a)(3) to be one of those underground areas. The No. 4 Section was such an area,
and Puckett's testimony makes clear that miners entered the area before it was examined.
According to Puckett, he had the crew wait at the power center while he examined the areas that
Dye had not visited. Tr. 4 at 13Z-33, 135. As previously noted, the power center was located well
in by the mouth of the section. Thus, miners entered one of the nation's gassiest mines and
proceeded inby to a section that had not been completely examined after the fan had been off and
ventilation had been disrupted. This meant that miners were on the section before the methane and
ventilation tests required by section 75.360 were made. Given the propensity of the mine to
liberate methane, and the fact that electric and diesel equipment was in place and that the power
would have been restored had normal operations continued, I find that it was reasonably likely the
failure to conduct a complete preshift examination significantly and substantially contributed to the
danger of the miners being involved in a methane-related ignition or explosion. The fact that
power was off does not lessen the reasonable likelihood of injuries arising from the violation since
JWR was working to restore the power and in the course of normal operations would have done so.
Fourth, bums and suffocative and percussive type injuries frequently are associated with
methane-related ignitions or explosions. Therefore, it was reasonably likely the injuries would be
of a reasonably serious nature.
Gravity and S&S 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). I conclude that hazards presented
by the failure to completely preshift examine the entire No. 4 Section at this mine were indeed
serious as indicated by the discussion above regarding the type of injuries that could have occurred.
While I recognize the gravity of the violation was mitigated somewhat by Puckett's
"supplemental" examination {Tr. 4 at 166), the fact remains that until that examination was
completed, Puckett's crew was for some time exposed to the hazards of a less than fully examined
section. Given the nature of the mine, the lack of ventilation prior to the shift, and the presence of

27 FMSHRC 810

electric and diesel equipment, the mitigation does not remove the violation from the serious
'category.
4.

Unwarrantable Failure and Negligence

Unwarrantable failure is "aggravated conduct, constituting more than ordinary negligence,
by a miner operator in relation to a violation of the Act." Emery Mining Corp., 9 FMSHRC 1997,
2004 (Dec. 1987). 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,.193-94 (Feb. 1991); see also Rock ofAges
Corp. v. Sec'y of Labor, 170 F.3d 148, 157 (2d Cir. 1999); Buck Creek Coal, Inc. v. MSHA,
52 F.3d 133, 136 (7111 Cir. 1995) (approving Commission's unwarrantable failure test). Moreover,
the Commission has examined the conduct of supervisory personnel in determining unwarrantable
failure and recognized that a heightened standard of care is required of such individuals. See
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (Dec. 1987) (section foreman held to
demanding standard of care in safety matters); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov.
1995) (heightened standard of care required of section foreman and mine superintendent).
JWR's failure to ensure the No. 4 Section was completely examined before miners were
sent to work on the section was indicative of a serious lack of reasonable care. Puckett knew the
preshift examination was incomplete for the No. 4 Section. Tr. 4 at 131. He understood miners
were assigned to work on the No. 4 Section. Id. at 130. Nonetheless, Puckett, a representative of
mine management and a person with a heightened standard of care, allowed miners to enter the
section before a complete examination was conducted. Even though Puckett conducted the rest of
the examination after the crew halted at the power center, placing miners on the section and thus in
harm's way before the preshift examination was completed represented a failure of compliance that
was unwarrantable.
It also was highly negligent. Randy Hagood, Dye's supervisor and a JWR management
official, should have known on the Thursday before September 23, that the No. 4 Section had been
designated as a place that miners would be assigned to work. It was his responsibility to assign
Dye accor~ngly, yet he chose to give Dye instructions that effectively restricted Dye's preshift
examination. Hagood, as supervisor, is held to a high standard of care, and here he failed to meet
it.

Further, Puckett, being a management official and certified examiner, also is held to a high
standard of care. In view of what Puckett knew about the restricted nature of Dye's examination
and the fact that miners were assigned to work on the section, his failure to see that the entire
section was examined before leading his crew onto the section was another major departure from
the standard of care JWR's supervisors were required to meet.

27 FMSHRC 811

5.

Civil Penalty Assessment

The criteria that must be considered in assessing a penalty have been enumerated above.
Slip Op. at 17. The Commission has repeatedly instructed its judges on the importance of
considering all of the criteria and of making findings of fact regarding the criteria so as to provide
the parties and the Commission with notice as to the bases upon which the penalties are assessed.
See, e.g., Douglas R. Rushford Trucking, 22 FMSHRC 598, 600-01 (May 2000).
The parties have stipulated that the proposed penalties for the alleged violations will not
adversely affect JWR's ability to continue in business, that JWR is a large operator, and that the
company should be credited for good faith, timely abatement. Stipulations 6, 7, 9 (Sept. 7, 2004).
They also have stipulated that a computer printout from September 23, 1996 to September 23,
2001 "is the history of prior violations for the No. 5 Mine for the purposes of [this proceeding]."
Id. at 8. The printout lists a total of 2,184 paid violations. This is a large history.
Order No.
7328105

Date
12/11/02

30C.F.R. §
75.360(b)(3)

Proposed Assessment
$55,000

I have found that the violation was serious in view of the types of injuries to which it could
have engendered. I also have found the violation was due to the high negligence of JWR
management personnel. Given these findings, the company's large size, its large history of
previous violations, its good faith, timely abatement, and the fact that the assessment will not
adversely affect its ability to continue in business, I conclude that a penalty of $2,500 is appropriate
for the violation.58
C.

The Order Relating to the Lack of Evacuation of Miners

Order No. 7328082 charges a violation of 30 C.F.R. § 75. l 101-23(a) in that, after the first
explosion on the No. 4 Section, miners were not evacuated from the mine. The order asserts that
mine management personnel knew the explosion had damaged critical ventilation controls and that
the section foreman believed a second explosion was possible, yet miners were r:iot alerted to the
problem.59 The order contains an S&S finding. It also asserts the 13 miners were fatally injured as

58

In assessing the penalty I note the inadequate preshift examination did not contribute to
the fatalities that resulted from the explosions and that other violations of section 75.360 cited
pursuant to section 104(d) of the Act have been assessed by the Secretary at similar amounts.
See Attachment to Stipulations (printout of previous history).
59

Order No. 7328082 states:
On September 23, 2001, two separate explosions occurred

in 4 Section, resulting in fatal injuries to thirteen miners. The
accident investigation revealed a proper evacuation procedure was
27 FMSHRC 812

a result of the violation, the violation was due to JWR' s unwarrantable failure to comply with
section 75. l 101-23(a), and the company's negligence was high. Gov't Ex. 2.
At the time the alleged violation occurred, section 75.l 101-23(a) required in part:
Each operator of an underground coal mine shall adopt a
program for the instruction of all miners in the location and use of
fire fighting equipment, location of escapeways, exits, and routes of
travel to the surface, and proper evacuation procedures to be
followed in the event ofan emergency. .. .
(1) The approved program of instruction shall include a
specific fire fighting and evacuation plan designed to acquaint
miners on all shifts with procedures for:
(i) Evacuation of all miners not required for fire fighting
activities;
(ii) Rapid assembly and transportation of necessary men, fire
suppression equipment, and rescue apparatus to the scene of the fire;
and
(iii) Operation of the fire suppression equipment available in
the mine.
(2) The approved program of instruction shall be given to all
miners annually, and to newly employed miners within six months
after the date of employment.
30 C.F.R. § 75.1101-23(a) (emphasis added).

not followed after the first explosion on 4 Section. Miners were
not evacuated from the mine after an explosion damaged critical
ventilation controls. These conditions were known by, and
communicated to, management personnel, including the CO Room
Supervisor. The section foreman believed there was -a possibility
of a second explosion and did not effectively communicate this
information to other miners.
Miners from other areas of the mine responded to the
emergency on 4 Section believing either an ignition or a fire had
occurred. These miners were unaware an explosion had occurred
and a second explosion was possible. Miners underground were
not alerted to the problem through the mine wide telephone paging
system. Also, management directed 7 additional miners to join the
13 miners already in 4 Section.
Gov'tEx. 2.
27 FMSHRC 813

1.

Section 75.1101-23(a)

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. Id.; Rock ofAges C01p., 20 FMSHRC 106, 111(Feb.1998), affd, 170 F.3d 148, 161 (2d
Cir. 1999); Central Sand and Gravel Co., 23 FMSHRC 250, 253-54 (Mar. 2001); Consolidation
Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993); Utah Power & Light Co., 11FMSHRC1926,
1930 (Oct. 1989).
In my pre-hearing order denying JWR's motion for summary decision on the applicability
of section 75.1101-23(a) and the fire fighting and evacuation plan, I concluded that MSHA
properly cited JWR for a violation of section 75.l 101-23(a) because "the meaning of the standard
is plain" and the term "emergency" referred to in the standard is inclusive of an explosion.
26 FMSHRC at 626-28 (citing Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (Nov. 1981); Alabama
By-Products Corp., 4 FMSHRC 2128, 2130 (Dec. 1982) (recognizing the language of many
standards is "simple and brief in order to be broadly adaptable to myriad circumstances")).
Based on the regulation's plain language, it followed that JWR had adequate notice of the
regulation's requirements. See Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997)
(holding that adequate notice provided by unambiguous regulation). Further, applying an objective
standard of notice, I concluded that a reasonably prudent mine operator would have recognized that
an explosion is a type of emergency event referenced in the standard. 26 FMSHRC at 626-28
(citing U.S. Steel Corp., 5 FMSHRC 3, 4 (Jan. 1983); Ideal Cement Co., 12 FMSHRC 2409, 2416
(Nov. 1990); Lanham Coal Co., 13 FMSHRC 1341, 1343 (Sept. 1991); BHP Minerals Int'l Inc.,
18 FMSHRC 1342, 1345 (Aug. 1996)). I stated:
In evaluating whether a reasonably prudent person familiar with the mining
industry and the protective purposes of the standard at issue would have recognized
the applicability of the standard to the cited facts at issue, the Commission has
analyzed a number of factors including the ordinary definition of the terms of the
text of the regulation at issue, the consistency of the Secretary's enforcement, and
whether MSHA has published notices regarding its interpretation of the standard in
question.
26 FMSHRC at 627 (quoting Western Industrial, Inc., 24 FMSHRC 269, 270 (Mar. 2002) (ALJ)
(citing Allen Lee Good d.b.a. Good Const., 23 FMSHRC 995, 1005 (Sept. 2001); Island Creek
Coal Co., 20 FMSHRC 14, 24-25 (Jan. 1998); Morton Int'!, Inc., 18 FMSHRC 533, 539 (Apr.
1996); U.S. Steel Mining Co., 10 FMSHRC 1138, 1141-42 (Sept. 1988); Alabama By-Prods.
Corp., 4 FMSHRC 2128, 2131-32 (Dec. 1982))). I determined that JWR had been provided notice
27 FMSHRC 814

of the standard's requirements by MSHA's published abstract of section 75.1101-23, which
explicitly stated the standard "requires each operator of an underground coal mine to adopt a
program for mine evacuation in the event of an emergency, such as fire or explosion."
26 FMSHRC at 626 (quoting 60 Fed. Reg. 23,567 (May 8, 1995)). In addition, I considered the
definitions of "explosion" and "fire" in the Dictionary of Mining, Mineral and Related Terms, U.S.
Dept. of Interior, Bureau of Mines 402, 429 (1968), which indicate that fires and explosions can be
interrelated events. 26 FMSHRC at 627-28.
Having held that section 75.1101-23(a) applied to explosion-related emergencies and that
JWR had been provided adequate notice of the standard's requirements, I stated that the next
question was whether JWR followed its MSHA-approved fire fighting·and evacuation plan on
September 23. I observed that the Secretary would have to prove the alleged violation of the plan
at trial. Id. at 628. 60
In JWR's post-hearing brief, the company again urges reconsideration of the issue, which I
again deny. At the time I ruled on the motion I felt it was correct to read the stand_ard's reference
to an "emergency" as applicable to an explosion, and I think so now. At the time I ruled on the
motion I also felt the Secretary would have to prove at trial that particular portions of JWR's
adopted and approved plan were applicable and were violated, and I think so now.
I conclude, however, that there is an important distinction between the applicability of the
standard to explosions and other emergencies and the applicability of the approved and adopted
plan to the facts of a particular case. As I read the standard, it was not restricted to fires only.
Rather it provided that an operator shall either expressly or implicitly include provisions relating to
explosions in its adopted plan.61 Lacking such express or implied provisions, a plan adopted under
the standard does not ipso facto apply to explosions. Nor would it make sense for it to do so, since
a fire evacuation program might be considerably different from an explosion evacuation program
and vise versa.
2.

The Violation

After listening to all of the testimony and after carefully reviewing the documentary
evidence, it is clear to me that the plan adopted by JWR and approved by the Secretary did not
require that miners be evacuated after the first explosion on September 23. The crux of the
Secretary's case is her argument that "section V.[a.8] requires miners to 'be evacuated if a fire
cannot be extinguished or brought under positive control."' S. Br. at 22. She goes on to argue that

60

Subsequently, I denied JWR's motion for reconsideration or certification of the issue
to the Commission. 26 FMSHRC 734.
61

I again note the Secretary's observation in her abstract of the standard, that the
. standard "requires each operator ... to adopt a program for mine evacuation in the event of an
emergency such as a fire or explosion." 60 Fed. Reg. 23,567 (emphasis added).
27 FMSHRC 815

"miners [are] not capable of extinguishing an explosion or btjnging it under positive control, and
so evacuation was required." Jd. 62
As JWR has repeatedly pointed out, the plan which it adopted and the Secretary approved
states that "Miners shall be evacuated if afire cannot be extinguished or brought under positive
control." Gov't Ex. 34 at section V.a.8 (emphasis supplied). Nothing in the language of section
V.a.8 or the provisions surrounding it indicates these words are used in the plan in other than their
most commonly accepted manner. A ''fire" that "cannot be extinguished or brought under positive
control" is the thing specified in the plan that triggers an evacuation. There is no reference to any
other initiating circumstance. Nor is one implied from the context within which the requirement is
stated in tbat part V refers only to situations involving fires. 6~ Therefore, I find that both the plain
meaning of the evacuation provision and the overall context in which it appears require evacuation
only in the event of "fire." In other words, as used in section V.a.8 of the adopted plan, "fire" does
not mean "explosion." 64
This does not end the matter, for the plan might have required an evacuation of all miners
in the event of an "emergency" other than a fire or even in a general emergeQcy situation, such as
that referenced in section 75.1103-23(a). But, it did not. It bears repeating that the only event
explicitly or implicitly indicated as requiring an evacuation is a "fire" that "cannot be extinguished
or brought under positive control." 65

However, during the cross-examination of witnesses who testified a~out an explosion
at the mine in 1993, the Secretary's counsel asked questions implying that the extent of damage
to ventilation, not the fact of explosion, was an essential component of determining the
provision's applicability. See Tr. 14 at 171-72; Tr. 15 at 1179.
62

63

It is clear that, until this dispute arose, JWR never considered the plan to apply to
anything other than fire situations, and if the Secretary considered the matter at all, she seemingly
believed that to be the case as well. I find the testimony of mine foreman Burt Duvall involving
the 1993 explosion at the mine instructive. The explosion disrupted ventilation and injured
miners, and Duvall' s first priority was to go into the area to help get injured miners out. Other
miners rushed to the area of the explosion to assist Duvall in his rescue efforts. The firefighting
and evacuation plan then in effect was substantively the same as it was in 2001 (see JWR Ex.
236), yet MSHA issued no citations for miners going into the area of the explosion following its
occurrence. Tr. 5 at 248-57, 260-61, 279; see also Tr. 14 at 96-99.
64

Interestingly, the Secretary would have me apply a "plain meaning" rule of
interpretation to section 75.1101-23(a), but not to a plan drafted pursuant to it.
65

Another part of the plan, entitled "Evacuation Procedures," requires evacuation in the
event of a CO alarm signal. Gov't Ex. 34 at sections Il.d & 11.e. In this case, although a
communication error signal indicated that the CO sensor had stopped communicating with the
computer at the mine surface, the error signal was different from an alarm signal indicating an
27FMSHRC 816

Therefore, I conclude that while explosions and fires are both the kind of emergencies
referenced in section 75.1101-23(a) and while both may be "covered" by a plan drafted in
accordance with that section, the plan has to either expressly or impliedly reference them in
specifying what is required. As noted above, the plan adopted and approved for the No. 5 Mine
had no express directive for evacuation in the event of an explosion. Nor was such a provision
implied. For this reason, I conclude that JWR did not violate section 75.1101-23(a) as alleged.66
I want to emphasize that, in reaching this conclusion, I am not finding that a provision
requiring miners to evacuate in the event of an explosion was undesirable from a safety standpoint.
One may have been highly desirable, to say the least. In fact, one may have been necessary to fully
effectuate miner safety. I am only finding that such a provision was not included in the plan either
expressly or impliedly and that the Secretary cannot at this late date supply through an
administrative law judge's decision something she wishes she had insisted on more than 6 years
ago. It is not the role of the Commission's judges to write or re-write plans that should have been
the result of a "bilateral" process involving the parties' "consultation, discussion, . . . negotiation
and . . . mutual agree[ment]." Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987).
D.

The Order Relating to the Lack of Fire and Emergency Dri1ls

Order No. 7328085 charges a violation of 30 C.F.R. § 75.1101-23(c) in that fire and
emergency drills were not conducted at intervals of no more than 90 days. The order asserts that
the lack of tr~ning regarding proper evacuation procedures affected the miners' response to the
situation in the mine on September 23.67 The order contains an S&S finding. It also asserts the 13

emergency. See Tr. 5 at 384-88, 393-98.
66

The plan contains many specific provisions relating to fire fighting and rescue.
Sections I.3 and V.a. l provide for the rapid assembly and transportation of fire suppression
equipment, rescue apparatus, and personnel to the scene of a fire. Section II.4 states that "[t]he
supervisor will assign men to carry necessary supplies such as first aid supplies, maps, necessary
tools and brattice materials." Section II.3 states that "[a] supervisor or designated person will
assemble all men promptly and lead the way during the evacuation." (Emphasis added). I note
that Key and House were trying to help Adams, who remained injured on the No. 4 Section, and
Blevins was intending to fight a fire. Tr. 1 at 436-437; Tr. 5 at 143-44. In view of the fire
fighting and rescue provisions, I conclude that the attempts by miners and management officials
to help Adams and fight a fire were not contrary to the plan.
67

Order No. 7328085 states:
On September 23, 2001, two separate explosions occurred
in 4 Section, resulting in fatal injuries to thirteen miners. The
accident investigation revealed the operator failed to conduct fire
and emergency drills at intervals of not more than 90 days.
27 FMSHRC 817

miners were fatally injured as a result of the violation, the violation was due to JWR's
unwarrantable failure to comply with section 75.1101-23(c), and the company's negligence was
high. Gov't Ex. 4.
At the time the alleged violation occurred, section 75.1101-23(c) required in part:
Each operator of an underground coal mine shall require all
miners to participate in fire drills, which shall be held at periods of
time so as to ensure that all miners participate in such a drill ... at
intervals of not more than 90 days ....
( 1) The operator shall certify by signature and date that the
fire drills were held in accordance.with the requirements of this
section. Certifications shall be kept at the mine and made available
on request to an authorized representative of the Secretary.
(2) For purposes of this paragraph (c), a fire drill shall consist
of a simulation of the actions required by the approved fire fighting
and evacuation plan described in paragraph (a)(l) of this section.
30 C.F.R. § 75.l 101-23(c).

Interviews of underground miners and a review of mine records
indicate that no such drills had been conducted since March, 2001.
The lack of training and simulation relative to proper evacuation
procedures to be followed in the event of an emergency, affected
the miners' response to the emergency situation of September 23.
Gov't Ex. 4 (emphasis added). The Order was subsequently modified as follows:
A further review of the fire drill and escapeway walk
records indicates that some miners received some related training.
However, complete fire drills, including all miners every 90 days,
had not been conducted during the period from March 2001 to
September 23, 2001. Therefore, the statement, "Interviews of
underground miners and a review of mine records indicate that no
such drills had been conducted since March, 2001" is modified to
reflect the following: "Interviews of underground miners and a
review of mine records indicate that few such drills had been
conducted since March, 2001."
Gov't Ex. 4A (emphasis added).
27 FMSHRC 818

1.

Section 75.1101-23(c)

Although the parties dispute the meaning of the standard, I conclude that its language is
clear and its terms must be enforced as written. See Dyer, 832 F.2d at 1066; Ut(J,h Power & Light,
11 FMSHRC at 1930. Under the standard's provisions, an operator is required to ensure that all of
its miners participate in fire drills at least every 90 days and to certify in writing that each miner
has participated. The requirements of participation and certification are separate, and, although
they are topically related, non-compliance with the certification requirement does not automatically
establish non-compliance with the participation requirement. While the lack of certification can be
an indication of non-participation, to establish non-participation the evidence must be examined in
its totality.
The standard also is clear as to what constitutes a fire drill. It states that a drill "shall
consist of a simulation of actions required by the approved fire fighting and evacuation plan."
30 C.F.R. § 75.l 101-23(c)(2). The ordinary connotation of the word "shall" is "must," and it is a
term of legal significance in that it is mandatory or imperative, not precatory. Exportal Ltda. v.
United States, 902 F.2d 45, 50 (D.C. Cir. 1990). As used in section 75.1101-23(c)(2), the term
"consist" means "to become composed or made up." Webster's Third New International
Dictionary Unabridged at 484 (1993). "Simulation" is defined as "the act or process of
simulating: imitation, pretense . .. "and "simulate" means "to give the appearance or effect of:
feign, imitate ... to have the characteristics of: resemble ... to make believe: pretend." Id. at
2122. Nothing in the language of the standard indicates that the words "shall," "consist," and
"simulation" are used in an unorthodox manner. Therefore, I conclude that under section
75.l 101-23(c) a fire drill is an on-site imitation of actions specified by the approved plan to be part
of the drill. Or, as the Secretary terms it, the required drill is a "hands-on simulation." S. Br. at
40.68

.

2.

Parties' Arguments

The order alleges that JWR violated section 75.l 101-23(c) because few miners received
complete fire drills between March 2001 and September 23, 2001. Gov't Exs. 4 & 4A. Consistent
with the order, the Secretary argues that JWR violated section 75.1101-23(c) by failing to conduct
fire drills within the required time periods, i.e., at intervals of not more than 90 days. S. Br. at 40.
As noted, in the Secretary's view, the 90-day fire drills must _b e "simulations" for which other firerelated education or training cannot be substituted. Id. at 41.

68

Based on the regulation's plain language, it follows that JWR had adequate notice of
its requirements. See Bluestone, 19 FMSHRC at 1029.
27FMSHRC 819

JWR's Exhibit 164 lists the names of 163 miners. JWR Ex. 164.69 JWR stipulated that the
company did not have records headed "Fire Drill" for 130 of the 163 miners listed on Exhibit 164
"for the ninety days before the accident." Tr. 8 at 160. Extrapolating from this stipulation, and
focusing on the period from January 1 to September 23, 2001, the Secretary asserts that, although
7 days remained in the last 90-day cycle, "it is implausible to think that JWR would have ...
provided drills for 130 miners who were not drilled in the previous two [90]-day cycles." S. Br. at
40 & n.31 (citing JWR Ex. 164). The Secretary argues that JWR's failure to produce records of
fire drills for many of.its miners is aprimafacie violation of the standard. Id. at 41. She submits
that the absence of records allows an adverse inference against JWR that such fire drills did not
take place. Id.
JWR responds that, during the accident investigation, MSHA removed fire drill records
without providing JWR copies, receipts, or a Bates stamp tracking system and that MSHA
misplaced those records. JWR Br. at V-2, V-6-7, V-11, V-15 n.8 (citing Gov't Ex. 4A as evidence
ofMSHA's mishandling of fire drill records). JWR states that, consequently, "no one knows what
fire drill records exist or existed at the time of the accident." Id. at V-2. fu addition, JWR argues
that, according to precedent involving analogous standards, even if some of its miners had not
participated in fire drills, a violation would not be established. Id. at V-9-11.
3.

The Violation

fu its most fundamental formulation, the issue before me is whether JWR violated the
requirement of the standard that all miners participate in fire drills at not more than 90-day
intervals. By focusing on the standard and by determining whether the evidence conforms to its
requirements, it is possible to resolve the issue.

Turning first to the plain meaning of the regulation, I find that "all miners" means exactly
what it says. I am not persuaded by JWR's negatively stated argument to the contrary, i.e., a
violation would fail to be established if the evidence showed that some of the company's miners
had not participated in fire drills. JWR Br. at V-9-11. JWR relies upon Southwestern Illinois Coal
Corp., 5 FMSHRC 1672, 1675 (Oct. 1983) (citing North American Coal Corp., 3 IBMA 93, 107
(1974)), a case that involved interpretation of the phrase "shall be required to wear ... safety belts
and lines" as used in the surface coal protective clothing standard, 30 C.F.R. § 77.1710(g). See
5 FMSHRC at 1672-73. fu Southwestern, the Commission held the regulation did not state that a
mine operator must "guarantee" that belts and safety lines be actually worn, therefore, "when an
operator requires its employees to wear belts when needed, and enforces that requirement, it has
discharged its obligation under the regulation." Id. at 1675. The Commission specifically
restricted its holding to the regulation at issue in that case. Id. Here, however, section
75.1101-23(c) states that "[e]ach operator ... shall require all miners to participate" and "ensure

69

The list was compiled by Stanley Blankenship, MSHA' s special investigation
supervisor. It is headed "JWR Hourly Employees [Who] Did Not Participate in Fire Drill From
January 1 through September 23, 2001." JWR Ex. 164; Tr. 8 at 150-51, 153-54.
27 FMSHRC 820

that all miners participate" in fire drills every 90 days. Unlike Southwestern, the operator's
obligation is not discharged by merely requiring training because under section 75.1101-23(c)(l)
the operator is also required to certify the training. The term "certify" means to "confirm,"
"assure," or "guarantee." Webster's at 367. Thus, section 75.l 101-23(c) provides for the
protection of miners by directing that mine operators certify that the required fire drills were
conducted for all, not merely some, of its miners.
Having concluded that the standard applies to each and every miner, the next step is to
determine the nature of the "fire drill" in which all miners are required to participate. Section
75.1101-23(c)(2) states that "a fire drill shall consist of a simulation of the actions required by the
approved ... plan." (Emphasis added). Therefore, I must look at the plan. As I have noted
previously, once the plan is adopted by the operator and approved by the Secretary, its provisions
are binding and enforceable as though they were mandatory safety standards. 26 FMSHRC at 628.
The plan for the No. 5 Mine is far from a model of clarity.70 In fact, it is poorly drafted and
confusing. Nevertheless, it is the plan JWR adopted and the Secretary approved so its provisions
·
must be applied. Under the heading ''Fire Drills (part V) the plan mingles the duties of fire
fighting with those of a fire drill. However, a careful reading of part V reveals specific duties that
designated miners and supervisors are required to perform during a drill. For example, "[m]iners
are assigned by occupation to handle the different types of fire fighting equipment." Gov't Ex. 34
at section V.a. In this regard, the electrician must "[p]ull power and man fire extinguishers," the
miner operator must "[m]an [a] fire hose," etc. Id. Under the plain language of the standard, this
means that, during a fire drill, there must be an on-site simulation of a response to a mine fire.
Therefore, during the drill the ·miners must go through the motions of actually carrying out the
duties specified in the plan.
The plan also requires miners to "be acquainted with procedures for rapid assembly and
transportation of necessary personnel, fire suppression equipment, and rescue apparatus to the
scene of the fire during the first fire drill conducted each year," and it requires the section foreman
to "acquaint the miners with these procedures." Id. at section V.a. l. This means that during the

° For example, under the heading "Fire Drills" the plan specifies- the jobs to which
various personnel remaining in the fire area are assigned "in the event of an actual fire." Gov't
Ex. 34 at section V.a.2. Further, the plan surprisingly fails to specify that evacuation is part of
the drill. As already discussed, the plan states that "Miners shall be evacuated if a fire cannot be
extinguished or brought under positive control," another provision that only comes into effect in
the event of an actual fire. Id. at section V.a.8. However, this latter gap in the plan is, to a large
extent, filled by 30 C.F.R. § 75.383(c) entitled "Escapeway maps and drills," which plainly
allows that practice escapeway drills "may be used to satisfy the evacuation specifications of the
fire drills required by§ 75.1101-23," and the record contains numerous documents showing that
practice escapeway walks were conducted at the mine. E.g., JWR Exs. 6, 14, 50, 53, 69, 70, 94,
136, 158, 198, 199.
7

27 FMSHRC 821

first quarter of each year, at least, the on-site simulation must _include verbal instruction from the
section foreman in the assembly and transportation requirements.
Further, the plan requires all miners not assigned to specific jobs during a drill to assemble
at a posted evacuation map. Id. at sections V.a.3 & V.a.7. This means, as part of the same on-site
simulation, unassigned miners must physically travel to the posted evacuation map.
The plan also specifies the instruction of new miners on their first day of employment in the
use of self-rescuers and annual re-instruction of all miners thereafter, and imposes a duty on the
section foreman to review the proper use of the self-rescuer with miners who need instruction
during a fire drill. Id. at section V.a.6. This means that, during the same fire drill occurring in the
appropriate quarter and thereafter, the section foreman must demonstrate - presumably orally and
physically - the use of self-res~uers to miners who require it.
Did all miners participate in an on-site imitation of the actions specified in the plan?
Credible testimony establishes they did not. Tarvin, who worked at the mine for 20 years, stated
that fire drills at the mine "were more of a discussion" than a simulation of fighting a fire. Tr. 1 at
489-90. Corbin, who worked for JWR since 1997, testified that he could recall no "physically [sic]
hands-on fire drill" taking place in ·2001 . Tr. 2 at 38. Jarvis too stated that he could not recall any
instance prior to the explosions in which he was required to "simulate" or "act out" actions
required by the p~an. Tr. 3 at 213. In like measure, Dye, who worked for JWR at the mine since
1981, testified that he did not participate in an "actual hands-on simulation" of fighting a fire. Id.
at 403. Bonner, who worked for JWR at the mine since 1979, also did not recall participating in
any "hands-on" fire drills prior to the accident, although he noted that since September 23, 2001,
such drills have been "extensive." Tr. 4-at 56. Randy Clements, a JWR employee since
approximately 1980, testified that in the 6 months prior to the explosions he had not participated in
a fire drill that simulated what he was "to do under the firefighting and evacuation plan." Id. at
341. Goggins, who started working at the mine in 1999, maintained that between 1999 and
September 2001, he did not participate in a "hands-on" fire drill. Tr. 5 at 289. Finally, Robbins,
who began work at the mine in 1996, stated that he could not recall "a fire drill where [he]
simulated the duties ... [he] would be expected to carry out if there were a fire." Tr. 6 at 14.
I find that the credible testimony of these miners establishes that JWR violated the standard by
failing to ensure their participation in the type of simulated fire drills required by the standard at
least every 90 days.
The plan also states that "[a] record of each fire drill will be maintained on the attached
form [and that] [t]hese complete forms will be located on the surface in the safety office." Gov' t
Ex. 34 at section V.a.4. No form was attached to the copy of the plan that was entered into
evidence as the official exhibit. See id. It is clear, however, that JWR's practice was to make
available to MSHA forms that MSHA accepted as appropriate certification. During the course of
the investigation the company submitted to MSHA numerous different documents that served as its
fire drill records. See .Gov' t Ex. 35 (single exhibit containing forms entitled "Fire fighting, Escape
and Evacuation Plan Washer Facilities," "Fire Fighting, Escape and Evacuation Plan All Surface
27 FMSHRC 822

Facilities Other than Washer," ''Fire Drill Record Underground LongwaJI," "Fire Drill Outby
Crews," and "Fire Drill Section Crews"); Tr. 8 at 21-22. While these forms may or may not have
included the form stated to be attached to the plan, they do not reflect the type of fire drill that I
conclude was required by the regulation and the plan, i.e., an imitation of fire drill activities
specified by the plan or, as the Secretary terms it, a "hands-on simulation," and I do not find that
the records overcome the credible testimony of Tarvin, Corbin, Jarvis, Dye, Bonner, Clements,
Goggins, and Robbins - testimony that establishes they did not participate in the type of drills the
standard requires. Going further, I infer from the testimony of these witnesses that there was a
general lack of on-site simulations at the mine. There are too many miners with simil':lf credible
testimony for them to represent isolated instances.
I recognize, of course, that JWR argues its fire drills included escapeway walks, hands-on
training and demonstration of fire fighting equipment, safety meetings, group discussions, role
playing and putting out mock fires, using self-rescuers, instruction on the danger of methane, and
first aid training, and that together these activities constituted drills that complied with the
standard. JWR Br. at V-2-3. I also recognize that JWR represents this training took place at daily,
weekly, 6-week, and 90-day intervals, and annually during annual refresher training. Id. at V-3,
V-12-14. I conclude, however, that although many of the subjects included in the plan may have
been covered, these "drills" did not meet the simulation requirement of the standard and the plan.
There is too much testimony about a lack of the type of drills that I conclude was required for me
to hold otherwise.

Not surprisingly, JWR points to MSHA's PPM as sanctioning its fire drill practices. The
PPM lists examples of the types of training that meet section 75.1101-23's requirements for fire
drills as follows:
Various types of training will constitute a fire drill, e.g.,
demonstrations (surface or underground), hands-on training, group
discussions, and task-oriented training. Firefighting plans will be
acceptable if the fire drills as outlined in such plans satisfy the intent
of this regulation, which includ~s making all miners familiar with
firefighting procedures to be followed at the mine.

***
All fire drills required by paragraph (c) of this Section need not be
held underground. The evacuation portion of the drill need not be
held at the same time as the firefighting portion of the drill.
JWR Ex. 146 (excerpt of V MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 75, at
105-06 (1994)). The PPM, however, is not binding on the Secretary and does not have the same
force and effect of law as a mandatory safety standard. D. H. Blattner & Sons, Inc., 18 FMSHRC
1580, 1586 (Sept. 1996); King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981); see also

27 FMSHRC 823

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 (D.C. Cir. 1986) (reversing
Commission which improperly regarded the Secretary's general statement of enforcement policy as
binding).71 Nor can the provisions of the PPM change the compliance responsibilities of the
operator when the meaning of the standard is clear. See Mingo Logan Coal Co., 133 F.3d 916,
No. 97-1392, 1998 WL 3613, at 3 (4th Cir. 1998) (unpublished per curiam opinion).

I conclude, therefore, that the record supports finding that JWR violated section
75.1101-23(c) by failing to conduct the kind of simulated fire drills required by the standard.
4.

S&S and Gravity

JWR contends that if section 75.l 101-23(c) was violated, the violation was only technical

because no miner lost his life on September 23 due to a lack of fire drill training. JWR Br. at
V-17-18.
With regard to the question of S&S, the Secretary has established that there was a violation
of section 75.1101-23(c), satisfying the first Mathies element. 6 FMSHRC at 3-4. The remaining
Mathies elements require, inter alia, that the violation be proven to have contributed to a discrete
safety hazard that is reasonably likely to result in serious injury. Id. In this case, the facts show
that JWR' s mine is one of the gassiest mines in the country (Tr. 1 at 82; Tr. 9 at 16; Tr. 15 at 32)
and the mine experiences occasional fires. 72 If JWR failed to train its miners in how to fight a fire.•

71

I find unavailing JWR's argument that MSHA assured the mine's compliance with
section 75.l 101-23(c) during quarterly "AAA" inspections by auditing its fire drill records and
that the mine had never been cited for, nor had MSHA questioned the quality of, its fire drills.
JWR Br. at V-4-5, V-11, V-14 & n.8. The evidence shows that MSHA did not consistently
document its exalnination of fire drill records during the second quarter. Moreover, the records
or lack thereof, do not outweigh the statements of those who testified to a lack of required drills.
Further, the fact that JWR had not been previously cited for a violation of section 75.l 101-23(c)
does not prevent the Secretary from alleging a violation in this case. The Commission has
repeatedly held that a lack of previous enforcement of a safety standard does not constitute a
defense to a violation and that estoppel does not generally apply against the Secretary. U.S. Steel
Mining Co., Inc., 15 FMSHRC 1541, 1546-47 (Aug. 1993) (citing King Knob Coal Co.,
3 FMSHRC 1417, 1421-22(June1981); Bulk Transp. Serv., Inc., 13 FMSHRC 1354, 1361 n.3
(Sept. 1991)); see also Emery Mining Corp. v. Sec'y of Labor, 744 F.2d 1411, 1416 (10th Cir.
1984) (courts invoke the doctrine of equitable estoppel against the government with great
reluctance).
72

Tr. 1 at 523-28, 543-44 (Tarvin stating that in the 1993 explosion miners put out the
fire); Tr. 2 at 301, 309, 317 (Chris Key stating that there have been many ignitions and he has
fought fires); Tr. 3 at 265-68 (Lee stating that a few weeks prior to the September 23 accident,
there was a small ignition on the No. 4 Section and it was promptly extinguished using a water
hose, fire extinguishers, and rockdust); Tr. 5 at 94-95, 109 (Linn stating that about 2 weeks prior
27 FMSHRC 824

the likelihood of the miners exhibiting ineptitude in fire suppression techniques when confronted
with a fire, the likelihood of their confusion in how to respond to a fire, and even the likelihood of
panic in the event of a fire would be increased. However, while I conclude that JWR did not
provide all miners with the on-site simulated fire drills required by the standard, it is clear the
company regularly instructed its miners through other exercises in fire fighting practices and
techniques.73 Thus, the violation at issue does not relate to the company's failure to conduct all
training in how to confront a fire or in how to respond to a fire emergency. Rather, it relates to the
failure to conduct the type of on-site, hands-on drills required by the standard and the plan. Given
the other types of instruction and training that JWR's miners received, I conclude that it was not
reasonably likely that the lack of training specified in the standard would result in an injury, and
that the violation was not S&S.
I further conclude that the violation was only moderately serious. Certainly, I agree with
the company that the record confirms no miner lost his life on September 23 due to a lack of fire
drill training. JWR Br. at V-17-18. Nevertheless, the focus of the gravity criteria is on the effect
of the hazard if it occurs (Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996)), and it is
conceivable that the effect of not conducting on-site, hands-on fire drills for all miners could have
had serious consequences in the event of a fire.

to the September 23 accident, the face ignited so he and his partner used the water hose and fire
extinguishers to fight the fire until the scoop arrived with rockdust to put it out); Tr. 5 at 218-21,
230, 255, 263-65 (Duvall recalling the 1993 explosion/fire as well as two ignitions/fires on the
No. 4 Section and one ignition/fire on 6 Section in the months prior to the September 23
accident); Tr. 5 at 460 (Darrell Key acknowledging that ignitions have occurred over the years);
Tr. 6 at 412-13, 459-72, 478 (Brown recalling an ignition on the No. 4 Section in early
September 2001); Tr. 9 at 88-89 (Murray stating the mine had spontaneous combustion problems
and a history of occasional ignitions).
73

I credit the testimony of supervisors who signed the company's fire drill records,
stating that drills which the company considered compliant with the standard were regularly
conducted on a quarterly basis. Tr. 3 at 71-87 (Franklin stating that he conducted fire drills with
his crew on a regular basis, including during 2001); Tr. 4 at 181-83, 189-93 (Puckett stating that
he conducted fire drill training regularly, perhaps every 90 days); Tr. 6 at 366-67, 403-04,
457-58, 478-80 (Brown stating that fire drills were conducted quarterly and that he recorded all
of them); Tr. 12 at 504-06 (Mabe stating that fire drills were conducted on a regular basis as
required by the regulations). See also Tr. 5 at 229, 231 (Duvall stating that foremen and crews
were keeping up with fire drill training requirements every 90 days); Tr. 12 at 235, 246, 284-85,
360 (Thrasher stating that miners received fire drill training every 90 days). I also note the
testimony of virtually every miner witness that he received much of this training.

27 FMSHRC 825

5.

Unwarrantable Failure and Negligence

Regarding unwarrantable failure, I find that JWR's action in failing to conduct the type of
fire drills required by the standard and the plan did not exhibit "reckless disregard" for the
company's compliance responsibilities. The record supports finding that JWR honestly believed
that it was complying, a belief abetted in no small part by the PPM and the Secretary's failure to
previously cite the company for not conducting proper drills. As discussed above, JWR's
supervisors credibly testified about what they believed were compliant fire drills, i.e., company
personnel honestly believed that other training, such as group discussions and instruction,
constituted an alternative means of compliance. In addition, according to section 75.383(c), JWR's
escapeway walks satisfied the evacuation specifications of fire drills required by section
75.1101-23, and JWR's annual refresher training included the topic of firefighting and evacuation.
Therefore, I conclude that JWR's violation of section 75.1101-23(c) was not an unwarrantable
failure to comply with the standard.
Even so, I conclude that JWR was moderately negligent for failing to comply with the
requirements of a standard that is clear on its face. It is the operator's responsibility to adopt a plan
and to conform to it after its approval. Here, JWR did not conform, and in failing to abide by its
plan it exhibited a lack of care required by the circumstances.

6.

Civil Penalty Assessment

As discussed earlier, the parties stipulated that the proposed penalties will not adversely
affect JWR's ability to continue in business, JWR is a large operator, and the company should be
credited for good faith, timely abatement. Stipulations 6, 7, 9 (Sept. 7, 2004.). In addition, as
previously found, the company has a large history of prior violations.
Order No.
7328085

Date
12/11/02

30C.F.R. §
75.1101-23(c)

Proposed Assessment
$55,000

I have found the violation was moderately serious and JWR was moderately negligent.
Given these findings, the company's large size, its large history of previous violations, its good
faith, timely abatement, and the fact that the assessment will not adversely affect its ability to
continue in business, I conclude that a penalty of $500 is appropriate for the violation.74
IV.

A FINAL WORD

In reaching this decision, I have tried to be careful to rule and to render an opinion only on
the specific issues that are before me. Also, I have tried to be mindful that the events and
74

This assessment is in the range of other assessments proposed by MSHA for
moderately serious violations that resulted from the company's moderate negligence. See
Attachment to Stipulations (printout of previous history).
27 FMSHRC 826

conditions of September 23, 2001 will impact the lives of those involved for so long as they live.
In this regard, the case represents the resolution of disputes as to whether certain of those events
and conditions were engendered by violations of the Mine Act. Under the Act, such disputes are
resolved through the hearing process - a process that, at times, can be rancorous and acrimonious.
I am compelled to observe, however, that in this instance all of those involved, i.e., the parties'
counsels, representatives, witnesses, and technical support personnel, never lost sight of the
under~ying tragic circumstances...which brought us together. Each person conducted herself or
himself so as to accord full respect to the memory of those who lost their lives and empathy and
understanding for the sorrow of those left behind. In this way, each person paid tribute to what
Congress has termed the mining industry's "most precious resource -the miner." 30 U.S.C.
§ 801(a).

ORDER
Citation No. 7328083, Citation No. 7328081 and Order Nos. 7328088, 7328104, 7328106,
and 7328082 are VACATED. Order No. 7328105 is VACATED IN PART to the extent it refers
to an incomplete preshift examination due to the failure to detect the presence of inadequately
inerted mine dust and i& AFFIRMED IN PART to the extent it refers to an incomplete preshift
examination due to the failure to preshift examine the areas of the No. 4 Section where miners
were scheduled to roof bolt and perform maintenance work. Order No. 7328085 is AFF1RMED
but MODIFIED to a citation issued pursuant to section 104(a) of the Act. 30 U.S.C. § 814(a).
The inspector's S&S finding js DELETED. His gravity and negligence findings are MODIFIED
to conform with my findings.
JWR is ORDERED to pay a total civil penalty of $3,000 in satisfaction of the violations in
question. Payment is to be made to MSHA within 30 days of the date of this proceeding. Upon
receipt of full payment, this proceeding is DIS:MISSED.

j)fVid-f ~vl'-David F. Barbour
Administrative Law Judge

27 FMSHRC 827

Distribution (Certified Mail):
Edward H. Fitch IV, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson
Boulevard, 22nd Floor West, Arlington, Virginia 22209-2296
David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 2400 AmSouth/Harbert Plaza, 1901 Sixth
Avenue North, Birmingham, Alabama 35203-2618
Timothy M. Biddle, Esq., Crowell & Moring, L.L.P., 1001 Pennsylvania Avenue, N.W.,
Washington, D.C. 20004-2595
Judith E. Rivlin, Esq., United Mine Workers of Am(!rica, UMWA Headquarters, 8315 Lee
Highway, Fairfax, Virginia 22031-2215

27 FMSHRC 828

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

November 4, 2005
T AMKO ROOFING PRODUCTS,
Contestant

CONTEST PROCEEDINGS
Docket No. YORK 2005-87-RM
Citation No. 6027243;03/0l/2005

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

Docket No. YORK 2005-88-RM
Citation No. 6027244;03/02/2005
Docket No. YORK 2005-89-RM
Citation No. 6027245;03/02/2005
Tamlco Frederick
Mine ID 18-00750

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

CIVIL PENALTY PROCEEDING
Docket No. YORK 2005-115-M
A.C. No. 18-00750-54441

v.
TAMKO ROOFING PRODUCTS,
Respondent

Frederick Grinding Plant

DECISION
Appearances:

Brian J. Mohin, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, on behalf of the Secretary of Labor;
Tonya Osborne, Esq., and Kathleen Pontone, Esq., Miles & Stockbridge,
P.C., Baltimore, Maryland, on behalf ofTamko Roofing Products.

Before:

Judge Melick

These cases are before me pursuant to Section 105 (d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S .C. § 801 et seq. "the Act", to challenge three citations issued to Tamk:o Roofing
Products (Tamk:o) by the Secretary of Labor and the civil penalties proposed for each. The general
issue before· me is whether the violations have been committed as alleged and, if so, what is the
appropriate civil penalty for such violations. Additional specific issues are addressed as noted.
At hearing, the Secretary moved to settle Citation No. 6027243 and Tamko agreed to pay the
proposed penalty in full. The proposed settlement was accepted at hearing and an order directing
27 FMSHRC 829

payment will be incorporated in the decision herein.
Citation No. 6027244 alleges a violation of the mandatory standard at 30 C.F.R. § 56.12028
and charges, in essence, as follows:
A continuity and resistence test had not been performed on the ground electrode and its
adjacent ground field area. Plant supervisor stated that it had not been done for over two
years according to the record. Testing needs to be done to assure grounding system is
working properly to prevent serious injury.
The cited standard, 30 C.F.R. § 56.12028, provides as follows:
Continuity and resistance of grounding systems shall be tested immediately after installation,
repair and modification; and annually thereafter. A record of the resistance measured during
the most recent tests shall be made available on a request by the Secretary or his duly
authorized representative.
The facts supporting the alleged violation are essentially undisputed. Tamko purchased the
grinding plant at issue on May 5, 1994 from the previous owner/operator, Florida Rock Industries
(Florida Rock). It is undisputed that at the time of the inspection herein and the issuance of the
citation at bar on March 2, 2005, more than one year had elapsed since the test had last been
performed in compliance with the cited standard. Tamko nevertheless argues that the computation
of time for the "annual" testing required by the cited standard should commence with the date it
assumed ownership i.e. on May 5, 2004, and not on the last date of testing which was performed by
Florida Rock, the previous owner/operator. Under this computation of time, Tamko would therefore
have had until May 2005 to complete the testing and there would have been no violation of the cited
standard.
The Secretary argues, on the other hand, that annual testing within the meaning of the cited
standard means just that and that ownership of the grinding plant is irrelevant. She argues that under
her interpretation of the standard the requisite tests must be performed within a year of the previous
tests. I find that I am in agreement with the Secretary on this issue. I find no ambiguity in the
requirement that the test be performed annually, i.e. within 365 days of the prior testing. See
Secretary v. Cactus Canyon Quarries of Texas, Inc., 23 FMSHRC 280, 289 (AL.I March 2001).
There is no exception or waiver in the standard to account for a change in mine ownership. Clearly,
the objective of maintaining safe conditions requires that testing be performed annually without
exception as to ownership of the mine.
Under the circumstances, I find that the Secretary has proven the violation as charged. The
inspector's findings that injuries were "unlikely" as a result of the violation and that the operator was
chargeable with "low" negligence are undisputed. Under the circumstances, I find that the
Secretary's proposed minimal penalty of $60.00 is appropriate for the violation.

27 FMSHRC 830

Citation No. 6027245 alleges a violation of the standard at 30 C.F.R. § 56.14107(a) and
charges as follows:
The east approach of the take-up pulley and counter-weight of the inclined belt conveyor was
not guarded. PuJley and counter-weight was [sic] within 6 feet of the ground, do [sic] to the
build-up of spillage. Guards were provided on all other approaches. The pulley and counterweight were only being suspended by tension of the conveyor belt and no safety cable or
chains were provided. Employees approaching the east side of the take-up pulley are
exposed to the ·hazard of moving machine parts and the falling of the counter-weight in the
event that the belt brakes [sic].
The cited standard provides that "[m] oving machine parts shall be guarded to protect persons
from contacting gears, sprockets, chains, drive, head, tail and take-up pulleys, fly wheels, couplings,
shafts, fan blades, and similar moving parts that can cause injury." The cited standard, in part (b),
also provides an exception to the above requirement in that "guards shall not be required where the
exposed moving parts are at least seven feet away from walking or working surfaces."
As noted, the citation at bar actually charges two violations. The first alleged violation
concerns a lack of guarding at the take-up pulley. Tamko argues that the cited take-up pulley was
at least seven feet away from any walking or working surface and maintains that under the exception
noted above, there was no violation. According to Inspector Richard Burkley of the Department of
Labor's Mine Safety and Health Administration (MSHA), there was spillage on the ground
approximately one and one half feet horizontally from the counterweight and about one foot in
height. Standing on top of the spillage with his arms raised, Burkley had an MSHA colleague
estimate the distance from the top of the spillage to the bottom of the cited roller. Burkley' s
colleague, apparently knowing Burkley' s height and approximate arm length, thereby estimated that
it was about six feet between the top of the spillage and the bottom of the cited pulley. Burkley
therefore concluded that the exposed moving parts on the cited take-up pulley were less than seven
feet from the walking or working surface below.
Robert McNally, Tamko' s general manager, has a Bachelor of Science degree in engineering
from the United States Military Academy and a Masters degree in Business Administration from
Baylor University. McNally credibly testified that, using a 10 foot tape measure, he measured from
the bottom of the take-up pulley to the slab below and found the distance to be seven feet. Using the
same tape, he measured eight and a half feet from the top of the spillage to the bottom of the cited
take-up pulley. In light of such actual measurements, in contrast to MSHA' s rough estimates, I must
give greater weight to the testimony of Mr. McNally. Accordingly, I find that the take-up pulley was
at least seven feet from any walking or working surface. The exception to the requirement for
guarding set forth in the cited standard therefore applies and I conclude that the
take-up pulley at issue was not in violation of that standard.
Tamko argues, with respect to the second violation alleged in the citation, that the counterweight was not a "similar moving part" within the meaning of the cited standard. Under the rule of
statutory and regulatory construction, ejusdem generis, when specific examples set forth in a statute
or regulation are followed by general words, the general words are construed to embrace only objects
27 FMSHRC 831

similar in nature to the specific examples. Garden CreekP~cahontas Company, 11FMSHRC2148
(November 1989); 2A Sutherland Statutes and Statutory Construction§ 47.17 (6th ed.). .Clearly,
counterweights are not of the same or similar nature as the· specific items listed in the standard i.e.
"gears, sprockets, chains, drive, head, tail, and take-up pulleys, fly wheels, couplings, shafts, [and]
fan blades" all of which have the potential for creating dangerous pinch points and/or entanglements.
Counterweights. are therefore not within the scope of items covered by the standard. Accordingly,
there was no violation of the standard as alleged and the citation must be vacated.

Civil Penalties
Under Section·11 O(i) of the Act, the Commission and its judges must consider the following
factors in assessing a ~ivil penalty: the history of violations, the negligence of the operator in
committing the violation, the size of the operator, the gravity of the violation, whether the violation
was abated in good faith and whether the penalties would effect the operator'_s ability to continue in
business. The record shows that the operator is small in size with a minor history of violations.
There is no dispute that the violations were abated in a timely and good faith manner and no
evidence has been presented as to the effect the penalties would have on the operator's ability to
continue in business. l;.Jnder the circumstances, the Secretary's proposed penalty of $60.00 for the
violations charged in Citations No. 6027243 and 6027244 are appropriate.

ORDER
Citation No. 6027245 is vacated. Citations No. 6027243 and 6027244 are hereby affirmed
and Tamko Roofing Products is directed to pay civil penalties of $60.00 for each violation within
40 days of the date of this decision. Contest Proceeding Docket No. YORK 2005-89-RM is
accordingly granted. Contest Proceedings Docket Nos, YORK 2005-87-RM and YORK 2005-88RM are accordingly dismissed.

Distribution: (Certified Mail)
Brian J. Mohin, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Kathleen Pontone, Esq., Miles & Stockbridge, P.C., 10 Light Street, Baltimore, :MD 21201-1487
/lh

27 FMSHRC 832

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

November 21, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 2005-22-M
A.C. No. 30-00048-44703

v.
HANSON AGGREGATES
NEW YORK, INC.,
Respondent

Jordanville Plant

SUM1\1ARY DECISION
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
Hanson Aggregates New York, Inc., pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The petition alleges a violation of the Secretary's
·
mandatory health and safety standards and proposes a penalty of $9,100.00. For the reasons set
forth below, I affirm the citation and assess the penalty proposed.

Procedural Back&round
The parties have submitted the case on cross motions for summary decision. The
Commission rule governing summary decisions, Rule 67(b), 29 U.S.C. § 2700.67(b), provides
that: "A motion for summary decision shall be granted only if the entire record . .. shows: (1)
That there is no genuine issue as to any material fact; and (2) That the moving party is entitled to
summary decision as a matter of law." The parties have stipulated to the facts, so the first
requirement of the rule is met. Based on the stipulated facts, I conclude that the Secretary is
entitled to summary decision as a matter of law.

Stipulated Factual Backuound
On the morning of March 23, 2004, an accident occurred at Hanson's Jordanville Plant in
Herkimer, New York, as several Hanson employees were in the process of setting up a 75 ton
P & H mobile crane on a ramp leading to the mine's primary crusher. The feeder and hopper
assembly on the primary crusher were scheduled for repair, and the crew needed the crane to lift
the feeder and hopper off the crusher.

27 FMSHRC 833

When the accident occurred, the crew had extended the crane's outriggers and roped off
the working radius of the crane, and the crane operator, Robert Kimball, was setting up the crane.
The crane operator raised the crane's boom approximately 71°, and he extended the boom about
fifty feet. The supervisor of the crew, Dean Robertson, was the designated signal or ground man.
At the time of the accident, Mr. Robertson was standing to the side of the crane.
As Mr. Kimball extended the crane's hydraulic boom, he apparently failed to lower or
extend the auxiliary hoist line. A hoist ball with a hook was secured to the crane's auxiliary hoist
line. The extending boom eventually pulled the hoist ball tight against the tip of the boom,
snapping the auxiliary hoist line. Such an occurrence is commonly kiiown as "two-blocking."
The hoist ball and hook fell and struck Dean Robertson, killing him instantly. The forces
involved in separating the ball and the hook from the auxiliary hoist line and the reactionary
movement of the boom caused the assembly to be thrown out and away from the head sheave a
few feet.
After the accident, MSHA issued Citation No. 6002658 to Hanson. MSHA later
modified the citation to allege that Hanson violated 30 C.F.R. § 56.1421 l(c) in that:
A fatal accident occurred at this operation on March 23, 2004,
when a mine foreman was struck by a metal ball and lifting hook
that detached from the auxiliary hoist cable of a crane. The
auxiliary hoist cable's weight ball and hook contacted the end of
the boom causing the cable to break (two-block condition). The
crane's anti-two block device either was not activated or
malfunctioned and there was no other functional means to prevent
accidental lowering. The victim, who was performing the task of a
signal man at the time of the accident, was exposed to the hazard
of the hoist' s ball and hook suddenly falling.
Section 56.1421 l(c) provides that "[a] raised component must be secured to prevent accidental
lowering when persons are working on or around mobile equipment and are exposed to the
hazard of accidental lowering of the component."

Facts and Conclusions of Law
Hanson argues that it did not violate the regulation. It maintains that the Secretary has
stipulated that it used all of the load locking devices that it could have and that an anti-two-block
device is not required by the regulation. Further, the Respondent asserts that a reasonably
prudent person familiar with the mining industry would not have understood the requirement of
the regulation as urged by the Secretary. The Secretary counters that the meaning of the
regulation is plain on its face and that Hanson clearly violated the regulation. I hold that the
Secretary's position is correct.

27 FMSHRC 834

Section 56.142ll(c) can be broken down into four elements. It requires that: (1) raised
components; (2) be secured to prevent accidental lowering; (3) when persons are working on or
around mobile equipment; and (4) exposed to the accidental lowering of the component. The
parties have stipulated that the raised component was the hook and ball originally secured to the
auxiliary hoist line. (Stipulated Material Fact (SMF)16.) They further agree, as set out in the
stipulated narrative, that Robertson was working around the crane and that he was exposed to the
accidental lowering of the hook and ball. Thus, the issue in this case is whether the hook and
ball were secured to prevent accidental lowering.
Section 56.14211(d), 30 C.F.R. § 56.1421 l(d), sets out the method for securing raised
components against accidental lowering. It states that: "Under this section, a raised component
of mobile equipment is considered to be blocked or mechanically secured if provided with a
functional load-locking device or a device which prevents free and uncontrolled descent."
In this connection, the parties have agreed that the crane was equipped with an anti-twoblock device, that the load braking system on the crane's auxiliary hoist was working properly
when the accident occurred, and that the ball and hook were properly rigged or secured to the
auxiliary hoist line. (SMF 5, 7 and 12.) In addition, they have agreed that the load brake on the
auxiliary hoist line constitutes a "load locking device" or a device that "prevents free and
uncontrolled descent." (SMF 14.) They have further agreed that load brakes, anti-two-block
devices and proper rigging are the only load locking devices that Hanson could have used to
prevent the free and uncontrolled descent of the hook and ball. (SMF 15.) Finally, they have
stipulated that based on tests conducted by MSHA following the accident, MSHA could not
determine whether the anti-two-block device was working properly and consistently on the day
of the accident. (SMF 6.)
Because MSHA was unable to determine whether the anti-two-block device was working
properly on the day of the accident, the company argues that the Secretary has failed to prove the
violation. It asserts that it had two load locking devices in working condition, when it was only
required to have one, and, therefore, it complied with the regulation. This contention, however,
ignores the failure of the anti-two-blocking device.
Respondent's arguments might be pertinent if the crane had only been equipped with a
load brake and proper rigging. Then, if the Secretary were contending that the crane should have
been equipped with an anti-two-block device, it would be relevant that the regulation does not
specifically require an anti-two-block device, or that MSHA's Program Policy Manual
discussion of the rule mentions such a device only in connection with using a crane to hoist
personnel. But here, the crane was already equipped with an anti-two-block device. Thus, these
arguments are beside the point.
The crane was equipped with a Microguard 424 Rated Capacity Indicator (Microguard
system), a computerized system with anti-two-block elements. Those elements included two
anti-two-block switches or devices, one for the main hoist line and one for the auxiliary hoist
27 FMSHRC 835

line. (SMF 22.) The M.icroguard system has two modes: the "rigging/travel mode" and the
"work mode." (SMF 23.)

If the crane approached a two-block condition while in "rigging/travel mode," the antitwo-block switch for the hoist approaching the two-block condition should trip or open, and the
M.icroguard would display a red warning light. (SMF 24.) If the crane approached a two-block
condition while in ·~work mode," one or both of the anti-two-block switches should trip or open,
and the Microguard would activate hydraulic cut valves, depending upon whether one or both
hoists are approaching a two-block condition, sound an audible alarm and display a red warning
light. When activated, the hydraulic cut valves would essentially shut the crane down,
hydraulically preventing a two-block condition from occurring. (SMF 25.)
MSHA was unable to detennine whether the Microguard system was in "rigging/travel
mode" or "work mode" when the accident occurred. (SMF 3.) And if anyone from the company
knows, that information has not been volunteered. Further, there is no evidence that a red
warning light was displayed, that an audible alarm sounded, or that the crane was shut down.
Nevertheless, it seems a logical inference that if the crane had shut down, this case would not be
before me.
It is possible, however, to arrive at the following conclusions: (1) The crane was in the
"rigging/travel mode," the anti-two-block switch for the hoist did not trip or open and/or the red
warning light was not displayed; (2) The crane was in the "work mode," the anti-two-block
switches did not trip or open and/or the hydraulic cut valves were not activated, the audible alarm
was not sounded and the red warning light was not displayed; or, (3) The crane was in either the
"rigging/travel mode" or the "work mode," the hydraulic cut valves were activated, the audible
alarm was sounded and/or the red warning light was displayed and the crane operator ignored
them.
It seems unlikely that condition No. 3 occurred without there being any evidence of it. 1
As noted above, if the hydraulic cut valves had been activated, the crane would have shut down
whether the operator ignored the situation or not, and the accident would presumably have been
prevented. Further, bystanders would have noticed the shut down. Similarly, if an audible alarm
had sounded, bystanders would have heard it. Moreover, when MSHA tested the anti-two-block
device after the accident, it worked when crane's boom was at 50° and below, but it did not work
consistently when tested above 50°. (SMF 6.) When the accident occurred, the crane's boom
was at approximately 71° according to the stipulated narrative. Thus, I find that a preponderance
of the evidence, and the logical inferences to be drawn therefrom, supports a conclusion that the
anti-two-block device did not function properly.
It is not enough that the crane was equipped with an anti-two-block device, if it did not

1

The parties have stipulated that operator error was a root cause of the accident. (SMF
17.) However, no information beyond that enigmatic statement is provided.
27 FMSHRC 836

function properly. In Mettiki Coal Corp., 13 FMSHRC 760 (May 1991), a case involving an
improperly functioning lockout device on a circuit breaker, the Respondent argued that "since the
Secretary's regulations do not require that a breaker be equipped with a lockout device and the
failure to have such a device would not violate section 77.507, then having a modified lockout
device cannot be deemed to violate the safety standard." Id. at 768. Like Hanson, Mettiki also
argued that MSHA's interpretation of the regulation did not meet the "reasonably prudent
person" test. Id. The Commission rejected these arguments and held that:
A reasonably prudent person would have recognized that the
standard required that the No. 34 breaker, a switch used by Mettiki
to lock out the belt motor circuit, be equipped with a functioning
lockout device and that the improperly installed lockout device on
the switch was in violation of section 77.507.

Id. at 769 (emphasis added); accord Western Fuels-Utah. Inc., 19 FMSHRC 994, 999 (June
1997).
Hanson makes the same arguments in this case. They must be rejected for the same
reasons. I find that a reasonably prudent person would recognize that section 56.1421 l(c)
requires that if the crane is equipped with an anti-two-block device as a means of preventing
accidental lowering, it be equipped with a functioning anti-two-block device and that the failure
of the device to fU;nction is in violation of the regulation. This is particularly apparent in this case
where the device is designed, as its name indicates, to prevent "two-blocking."
Accordingly, I conclude that the Respondent violated the regulation as alleged.

Civil Penalty Assessment
The Secretary has proposed a penalty of $9,100.00 for this violation. However, it is the
judge's independent responsibility to determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section 1 lO(i) of the Act, 30 U.S.C. § 820(i). Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, lnc.,18
FMSHRC 481, 483-84 (Apr. 1996).
In connection with penalty criteria, the parties have stipulated that the violation was
abated in good faith, that the penalty proposed for the violation will not affect Hanson's ability to
continue in business and that the Jordanville Plant is a small mine. (SMF 1, 20, 32.)
Furthermore, the Assessed Violation History Report shows that Hanson's Jordanville Plant has a
very good history of prior violations. (SMF 27, App. A.) In addition, the negligence involved in
this violation was "low." Finally, the gravity of the violation was very serious in that it resulted
in the death of a miner.

27 FMSHRC 837

Taking all of these factors into consideration, I conclude that the $9,100.00 penalty.
proposed by the Secretary is appropriate. Accordingly, that is the penalty that will be assessed.
Order

In view of the ·above, the Secretary's Motion for Summary Decision is GRANTED and
the Respondent's motion is DENIED. Citation No. 6002658 is AFFIRMED. Hanson
Aggregates New York, Incorporated, is ORDERED TO PAY a civil penalty of $9,100.00 within
30 days of the date of this decision.

1.r-11!~

Administrative Law Judge

Distribution: (Certifie~ Mail)
Keith Bell, Esq., U.S. Department of Labor, MSHA, 1100 Wilson Blvd., 22nd Floor, Arlington,
VA22209

Brian Hendrix, Esq., Mark N. Savit, Esq., Patton Boggs, Ll.P, 2550 M. Street, NW, Washington,
DC 20037
/sb

27 FMSHRC 838

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

November 28, 2005

CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 2004-269-M
A.C. No. 05-04209-21545
Crusher Operation #2
Docket No. WEST 2004-270-M
A.C. No. 05-04612-21601-01

v.

Docket No. WEST 2004-271-M
A.C. No. 05-04612-21601-02
Crusher Operation #5
Docket No. WEST 2005-133-M
A.C. No. 05-04558-43192
Docket No. WEST 2005-218-M
A.C. No. 05-04558-48439
Dredge Operation # 1

CARDER, INC.,
Respondent

Docket No. WEST 2004-326-M
A.C. No. 05-04116-24225
Docket No. WEST 2005-132-M
A.C. No. 05-04116-43159
Docket No. WEST 2005-160-M
A.C. No. 05-04116-45725
Dredge Operation #3
Docket No. WEST 2004-491-M
A.C. No. 05-04581-35054 ·

27 FMSHRC 839

Docket No. WEST 2005-134-M
A.C. No. 05-04581-43233
Screening Operation/
Dredge Operation

DECISION
Appearances:

Gregory Tronson, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, for Petitioner;
Mike Ausmus, Carder, Inc., Lamar, Colorado, for Respondent.

Before:

Judge Manning

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Carder, Inc., ("Carder"), 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"). A hearing was held in Lamar,
Colorado.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Carder operates several sand and gravel pits in Prowers County, Colorado. The citations
are grouped in this decision by operation rather than by docket number.

A. Crusher Operation No. 2
1. Citation No. 6298298, WEST 2004-269-M
MSHA Inspector Steven Ryan inspected Carder's Crusher Operation No. 2 on May 8,
2003. Inspector Ryan issued Citation No. 6298298 under section 104(a) of the Mine Act alleging
a violation of 30 C.F. R. § 56.14105. The body of the citation states, as amended:
A front end loader operator was observed cleaning out loose
material from the return end of the primary hopper discharge
conveyor [that was] being turned on and off at the start-stop
controls next to the hopper by another employee upon signals from
the front end loader operator cleaning the conveyor of material.
The power was not off and the conveyor belt was not blocked from
motion while the work was being performed. The company has a
lockout policy. An oral 107(a) imminent danger order was given
to Uraldo Bargus, another front end loader operator at the site.

27 FMSHRC 840

The inspector determined that it was highly likely that someone would be injured as a result of
this condition and that, if an injury were to occur, it would be permanently disabling. He
determined that the violation was of a significant and substantial nature ("S&S") and that
Carder's negligence was moderate. The cited safety standard provides:
Repairs or maintenance of machinery or equipment shall be
performed only after power is off and the machinery is blocked
against hazardous motion. Machinery or equipment motion is
permitted to the extent that adjustments or testing cannot be
performed without motion or activation, provided that persons are
effectively protected from hazardous motion.
The Secretary proposes a penalty of $750.00 for this citation.
Inspector Ryan testified that the primary feed hopper is where the raw riiined rock is fed
into the plant. (Tr. 12). The rock leaves the hopper through a conveyor system under the hopper
which delivers the rock to a crusher. (Tr. 13). When Inspector Ryan arrived at the crusher
operation, the plant was energized but it was not running. He observed two miners on one side
of the feed hopper and another miner on the other side of the hopper, who was standing at the
stop/start control panel. (Tr. 16). The loader operator was "reaching in and cleaning material"
off the "return end of the belt going back to the self-cleaning tail pulley," which was under the
guard. He was using his bare hands to remove loose rock. The other miner was giving signals to
the miner at the stop/start switch to jog the start button so that the conveyor would move slightly
as the other miner was cleaning. Id.
Inspector Ryan told the miners to stop working because there have been serious accidents
at other plants when this same procedure was used. He issued the citation in conjunction with
an imminent danger order. (Tr.IO; Ex. G-1). Ryan testified that he has personally investigated
two accidents in which miners were injured while cleaning belts using the same procedure. (Tr.
17). To comply with the standard, equipment should have been turned off and the moving parts
should have been blocked against motion while the cleaning was performed. He states that
start/stop buttons are not fail-safe and the belt could have started moving without notice. (Tr.
18). In addition, the miner at the start/stop switch could accidently tum the belt on while the
loader operator was reaching in to clean the belt. (Tr. 19).
Inspector Ryan believes that the miner could have been seriously injured if the belt bad
started moving without his knowledge. He determined that the violation was S&S because he
has investigated serious accidents under very similar circumstances. Indeed, he testified that he
investigated a serious accident in which an employee got "caught up" in a conveyer belt at one of
Carder's other operations a few months later. (Tr. 21-22, 25).
Mike Ausmus, Carder's general manager, testified that the stop/start switch consists of
two separate buttons, one for on and one for off. (Tr. 33-34). He stated that the switch is

27 FMSHRC 841

designed so that arcing will not occur between the poles whi~h may accidently energize the
circuit. ·He has never seen a start/stop switch of this type malfunction. (Tr. 35). Ausmus said
that cleaning the belt was necessary so that it could be repaired.
I find that the Secretary established a violation. There is no dispute that power was on
and the belt was not blocked against motion. Adjustments were not being made and the
conveyor was not being tested. I also find that the violation was extremely serious and S&S.
The miner cleaning the belt could have been seriously injured if the other miner accidently
energized the conveyor with the start/stop switch. The miner operating the switch had been
working for Carder for one day and he apparently did not speak English. (Tr. 30-31). As
Inspector Ryan stated, "steel has no mercy." (Tr. 20).
A violation is classified as S&S "if based upon the 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." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a four-part test for
analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining
operations." U. S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). 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 (April 1988). The Secretary must establish: (1) the
underlying violation of the safety standard; (2) a discrete safety hazard, 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. The Secretary is not required to show that it is more probable than not
that an injury will result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June
1996).
I find that the Secretary established all four elements of this test. There was a violation of
the safety standard that created a discrete safety hazard. The violation presented a reasonable
likelihood that the hazard contributed to by this violation would result in an injury of a
reasonably serious nature, assuming continued normal mining operations.
I also find that Carder's negligence was moderate to high. The citation is affirmed and a
higher penalty of $1,500.00 is appropriate.
B. Dred&e Operation No. 1
1. Citation No. 6311844, WEST 2005-133-M
MSHA Inspector Brad Allen issued Citation No. 6311844 under section 104(a) of the
Mine ~ct alleging a violation of 30 C.F. R. § 56.14112(a)(l). The body of the citation states:

27 FMSHRC 842

A guard on the diesel motor driven water pumps located on the rear
of the dredge was not being maintained. The guard on the front of
the motor fell off and was laying down, fully exposing the moving
machine parts. Employees working/traveling near this area were
exposed to the possibility of injury from entanglement hazards
and/or pinch points. Employees work and travel this area several
times daily.
The inspector determined that it was reasonably likely that someone would be injured as a result
of this condition and that, if an injury were to occur, it would be permanently disabling. He
determined that the violation was S&S and that Carder's negligence was moderate. The cited
safety standard provides that "[g]uards shall be constructed and maintained to withstand the
vibration, shock, and wear to which they will be subjected during normal operation." The
Secretary proposes a penalty of $177.00 for this citation.
Inspector Allen testified that he issued the citation because the guard covering the water
pump for the motor on the dredge had apparently vibrated loose. (Tr. 41; Ex. G-3). The guard
was replaced to abate the citation. The photo that the inspector took before the condition was
abated shows that the guard had fallen. Inspector Allen determined that the violation was serious
and S&S because a miner travels throughout the dredge and, if his clothing were to become
entangled in the moving machine parts, he would likely suffer a_permanently disabling injury.
(Tr. 42). This employee's duties "required him to travel all the way around the dredge
throughout the day." Id. He stated that it was three feet "into the pulleys" from the travelway.
Id. He also stated that the "moving machine parts are frequently accessed by the dredge
operator." (Tr. 43). Allen estimated that the cited condition was about 25 feet from the dredge
operator's cab. (Tr. 58).

Mr. Ausmus testified that a preshift examination had been performed on the dredge at the
start of the shift and the guard was in place. (Tr. 68). He further stated that, contrary to the
inspector's testimony, the dredge operator does not walk around the dredge all day. Instead, he
remains in the operator's cab which is about 40 feet from the cited condition. Id. The dredge
operator must monitor gauges constantly and he only leaves the cab for short periods of time. Id.
Ausmus testified that the dredge operator does not walk near the diesel motor because there is
nothing there that he needs to do. (Tr. 69).
I find that the Secretary established a violation of section 56.14112(a)(l). Inspector Allen
cited that safety standard because the guard was in the position that it would be if it fell out of
place. (Ex. G-3, Photo 1). A miner who needed to remove the guard to perform repairs would
not have placed the guard in the position shown in the photograph. Thus, the guard was not
being maintained to withstand the vibration, shock, and wear it was subjected to. I find that the
Secretary established a prima facie case and that Carder did not offer any evidence to contradict
the inspector's assumption that the guard fell out of place.

27 FMSHRC 843

The Commission and the courts have uniformly held _that mine operators are strictly liable
for violations of safety and health standards. See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (lO!h
Cir. 1989). "[W]hen a violation of a mandatory safety standard occurs in a mine, the operator is
automatically assessed a civil penalty." Id. at 1197. The Secretary is not required to prove that a
violation creates a safety hazard, unless the safety standard so provides.
The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety hazard in order for a
valid citation to issue. If conditions existed which violated the
regulations, citations [are] proper.

Allied Products, Inc., 666 F.2d 890, 892-93 (5th Cir. 1982) (footnote omitted). The negligence of
the operator and the degree of the hazard created by the violation are taken into consideration in
determining the amount of the penalty. Thus, if a safety standard is violated, a penalty is
assessed even if there was no injury and the chance of an injury was not very great.
I find that the violation was neither serious nor S&S. The moving machine parts which
the guard protected were recessed three feet from the walkway. In addition, I credit Ausmus's
testimony that the dredge operator does not walk by the diesel motor with any frequency. In
addition, there has been no showing that there were any tripping or stumbling hazards in the area.
Thus, I find that it was highly unlikely that the dredge operator or his clothing would get caught
in moving machine parts. I also find that Carder's negligence was low. Carder established that
the cited condition existed for a short period of time and there has been no showing that anyone
knew that the guard had fallen out of place. A penalty of $20.00 is appropriate.

2. Citation No. 6311846, WEST 2005-133-M
Inspector Allen issued Citation No. 6311846 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states:
The engine powering the work boat contained exposed moving
machine parts that are not guarded. The alternator pulley, main
pulley and drive belts are open and exposed on the left side.
Employees are exposed to the possibility of injury if they were
accidently to contact the moving machine parts. The moving
machine parts are placed along a travel way that is regularly used
and the work boat is used at least twice daily, making the chance of ·
accidental contact reasonably-likely.
The inspector determined that it was reasonably likely that someone would be injured as a result
of this condition and that, if an injury were to occur, it would be permanently disabling. He
determined that the violation was S&S and that Carder's negligence was moderate. The cited
safety standard provides that "[m]oving machine parts shall be guarded to protect persons from
27 FMSHRC 844

contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings,
shafts, fan blades, and similar moving parts that can cause injury." The Secretary proposes a
penalty of $177.00 for this citation.
Inspector Allen testified that the alternator pulley, main pulley, and drive belts were open
and exposed on the left side of the engine. (Tr. 46; Ex~ G-5). The work boat is used ~or
transportation to and from the barge. Anyone who operated the boat or was a passenger in the
boat would be exposed·to the hazard. Allen believed that the violation was S&S because it was
reasonably likely that someone would be injured as a result of the condition and that the injuries
would be permanently disabling. The inspector believed that miners could stumble or fall into
the moving machine parts. (Tr. 62). The opening in front of the cited moving parts between the
guard for the fan and the housing for the engine was about three inches. (Tr. 63; Ex. G-5, photo
1). The inspector believed that the motor had been recently installed and the guard for the left
side was inadvertently left off. (Tr. 49).
Carder admits that the cited condition violated the safety standard. (Tr. 60). Mr. Ausmus
testified that the exposure to the hazard was minimal. (Tr. 70). He believed that miners would
walk by the exposed area to get into the boat before the engine was started and would walk by
after the engine was shut off but that miners would not be in the area while the motor was
running. Ausmus also believed that the frame of the engine and the guard around the fan
provided sufficient protection for the area. He said that there was "maybe an inch of room." Id.
I find that the cited condition created a serious safety hazard. Although the opening in
front of the moving machine parts was not wide, the parts were nevertheless exposed. Several
people travel on the boat at least twice a day. I do not credit Ausmus's testimony that the engine
is always off when miners travel near the moving parts. It is reasonably likely that someone
would stumble and get his fingers caught in the moving parts. Although the injuries may not be ·
permanently disabling, they would be serious. The Secretary established that the violation was
S&S. Carder's negligence is moderate to low because the engine had only been recently
installed. A penalty of $100.00 is appropriate.

3. Citation No. 6311848, WEST 2005-218-M
Inspector Allen issued Citation No. 6311848 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states:
The self cleaning tail pulley on the Kolberg stacker conveyor was
not adequately guarded. The guarding provided on the south side
consisted of a loosely hung piece of conveyor belt, leaving
openings of one and a half foot wide, and contact less that one foot
away to the moving machine parts as well as a six inch by six inch
opening on the rear of the bearing block. The moving machine
parts were approximately 28 inches above ground level. This
27 FMSHRC 845

condition exposed employees to the possibiliiy of an injury if they
were accidently to contact the moving machine parts. The pulley is
not placed along a regularly used travel way and no foot prints
were observed in the area making the chance of accidental contact
unlikely.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if ·a n injury were to occur, it would be permanently disabling. He determined
that the violation was not S&S and that Carder's negligence was high. The Secretary proposes a
penalty of $500.00 for this citation.
Inspector Allen testified that when the conveyor is operating, a lot of water falls in the
area so miners would not usually be in the area. (Tr. 53; Ex. G-6). He designated the negligence
as high because Mr. Ausmus admitted that he observed the condition the previous day. (Tr. 54,
65). Allen believes that Ausmus should have recognized that the condition created a hazard.

Mr. Ausmus objected to the $500.00 penalty for the citation because the inspector
admitted that the condition was unlikely to cause an injury. Ausmus believes that, because the
cited area was in an inaccessible location, a miner would have to intentionally put his arm in the
opening in order to injure himself. He also contends that this stacker conveyor had been
previously inspected by MSHA in the same condition and no citations were issued. (Tr. 71).
I find that the Secretary established a non-S&S violation. I credit Inspector Allen's
testimony that it was unlikely that the guard was in the cited condition during previous MSHA
inspections. I find that Carder's negligence was moderate because, although Ausmus may have
previously observed the cited condition, he did not believe that a guard was crucial because the
tail pulley was in a rather inaccessible location. A penalty of $60.00 is appropriate.

C. Dredee Operation No. 3
1. Citation No. 6311828, WEST 2005-160-M
Inspector Allen issued Citation No. 6311828 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14130(i). The body of the citation states:
The seat belt on the John Deere front-end loader . . . company
number 373 did not meet the requirements of SAE J386. The belt
strap was worn frayed, and the right side of the belt contained a
tear approximately one and one half inches long, creating a hazard
to the operator of the loader by eliminating the ability of the
seatbelt to function properly in the event of an accident. The
loader is used on a daily basis in a fairly level area and light traffic,
making the chance of an accident unlikely.
27 FMSHRC 846

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was moderate. The
cited standard provides that "[s]eat belts shall be maintained in functional condition and replaced
when necessary to as.sure proper performance." The Secretary proposes a penalty of $300.00 for
this citation.
Inspector Alleri testified that the seatbelt, while not completely ineffective, was not being
properly maintained. (Tr. 83; Ex. G-9). He determined that the violation was not S&S because
the loader is used in a flat area where there is little traffic. He concluded that it was unlikely that
the loader would be in an accident. Mr. Ausmus testified that he does not disagree with the
citation but that he contests the special assessment of $300.00. (Tr. 125).
I affirm the citation as written. I find that a penalty of $60.00 is appropriate taking into
consideration the gravity and negligence designated by the inspector.

2. Citation No. 6299980. WEST 2004-326-M
Inspector Allen issued Citation No. 6299980 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14132(a). The body of the citation states:
The horn on the John Deere front-end loader, company number 404
... was inoperable. The front-end loader was not being operated at
the time, but was on the ready line. There was no record or tag to
indicate it was taken out of service. The defective horn had been
identified on the pre-operation checklist.
The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was low. The
cited standard provides that "[m]anually-operated horns . .. provided on self-propelled mobile
equipment as a safety feature shall be maintained in functional condition." The Secretary
proposes a penalty of $91.00 for this citation.
Inspector Allen determined that the condition was S&S because there was foot traffic in
the area where the loader would operate. (Tr. 86). The loader was not being operated at the time
of his inspection, but it was not tagged out. The pre-operation checklist indicated that the horn
had been operable for three days. Allen determined that the negligence was low because the
defect had been identified and documented.

Mr. Ausmus testified that the defect had been noted and the loader was not being used.
(Tr. 117). Because only three people work at the mine, it is not necessary for the operator to tag
out the loader. Only two of these employees would operate the loader and they both knew that
27 FMSHRC 847

the horn was not working. (Tr.. 118). The mechanics had been notified that the horn needed to
be repaired, but they had not been able to fix it by the time of the inspection.
I find that the Secretary established a violation. Although the loader apparently had not
been used, it was available for use. Because the loader was not tagged out, one of the two
employees who use the loader may well forget that the horn was not working and operate the
loader in the defective condition. Because there has been no showing that the loader was used
with the defective horn, I find that the violation was not S&S. Carder's negligence was low. A
penalty of $20.00 is appropriate.
3. Citation No. 6299981. WEST 2004-326-M
Inspector Allen issued Citation No. 6299981 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14 lOO(b). The body of the citation states:
The John Deere front-end loader ... company number 404 ...
contained a defect that affected the safety of persons. The brake
lights were defective and not maintained in a functional condition.
Vehicular traffic was observed in the area while the loader was in
operation. Miners were exposed to the possibility of injury due to
the inability of another equipment operator to know when the
loader is stopping.
The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was low. The
cited standard provides that "[d]efects on any equipment, machinery, and tools that affect safety
shall be corrected in a timely manner to prevent the creation of a hazard to persons." The
Secretary proposes a penalty of $91.00 for this citation.
The evidence on this citation was the same as for the previous citation. For the same
reasons, I find that the Secretary established a non-S&S violation with low negligence. A penalty
of $20.00 is appropriate for this violation.
4. Citation No. 6299982, WEST 2004-326-M
Inspector Allen issued Citation No. 6299982 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.11002. The body of the citation states:
There were no handrails provided on the top of the tank for the
diesel fuel trailer company number 537. Employees working on
top of the tank were exposed to the possibility of a fall injury of
approximately eight feet eight inches to the ground below. A
27 FMSHRC 848

miner mounts and dismounts the tank once a week to check tank
levels. Failure to provide handrails and the rough walking surface
makes the chance of an accident reasonably likely.
The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would be fatal. He determined that the
violation was S&S and that Carder's negligence was moderate. The cited standard provides that
"[c]rossovers, elevated walkways, elevated ramps, and stairways shall be of substantial
construction provided with handrails, and maintained in good condition." The Secretary
proposes a penalty of $217.00 for this citation.
Inspector Allen testified that there were no handrails provided on the top of the tank for
the diesel fuel trailer. (Tr. 91; Ex. 13). He further testified that employees told him that they
"were required to go up there at least once a week to check the levels of the tank." Id. They
gained access to the top of the trailer by climbing the ladder at the rear of the trailer. (Tr. 10708). Allen stated that the area was not a smooth walking surface. He determined that the
violation was S&S based on the conditions he observed and the fact that miners have fallen to
their deaths in similar circumstances. (Tr. 93).

Mr. Ausmus testified that the ~ank trailer cited by Inspector Allen has been in the same
location for four years without handrails and has never been cited by any MSHA inspector. (Tr.
119). He assumes that other inspectors observed the condition. Id. He also testified that there is
no need for employees to walk on the top of the tank to check fuel levels. (Tr. 119-20).
I.find that the Secretary established a violation. I credit the testimony of Inspector Allen
that the top of the tank trailer was used as a walkway when employees needed to check fuel
levels. As a consequence, I find that the top of the trailer was an elevated walkway.
In some situations a citation should be vacated if the cited condition has been previously
inspected by MSHA without any enforcement action being taken. Prior inconsistent enforcement
of a safety standard at a mine is a factor that the Commission considers when evaluating whether
a mine operator has received fair notice of the Secretary's interpretation of an ambiguous safety
standard. Good Construction, 23 FMSHRC 995, 1006 (Sept 2001). In this case, however, it is
not clear whether an MSHA inspector has actually inspected the trailer. Mr. Ausmus was not
sure if the trailer had been previously inspected but he assumed it had. (Tr. 119). In addition,
previous MSHA inspectors may not have known that miners walk on top of the trailer tanks to
check fuel levels. Consequently, I find that Carder did not establish this affirmative defense.
I also find that the Secretary established that the violation was S&S. The Secretary met
all four elements of the Mathies S&S test. Because employees must regularly walk up on the top
of the tank trailer, it was reas_onably likely that the hazard contributed to by the violation would
result in an injury of a reasonably serious nature. Employees may not have to go up on the tank

27 FMSHRC 849

on a weekly basis, but they travel there enough to create a hazardous situation. The top of the
tank has the potential to be slick if it is wet or if the employee's boots are muddy. (Tr. 109).
Because the condition had existed for four years and the application of the standard to the
top of a tank trailer is somewhat ambiguous, I find that Carder's negligence was low. A penalty
of $80.00 is appropriate.
5. Citation No. 6299983, WEST 2004-326-M
Inspector Allen issued Citation No. 63299983 under section 104(a) of the Mine Act
alleging a violation of 30 C ..F. R. § 56.11002. The body of the citation states:
There were no handrails provided on the top of the tank for the
diesel fuel trailer company number 538. Employees working on
top of the tank were exposed to the possibility of a fall injury of
approximately eight feet ten inches to the ground below. A miner
mounts and dismounts the tank once a week to check tank levels.
Failure to provide handrails and the rough walking surface makes
the chance of an accident reasonably likely.
The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would be fatal. He determined that the
violation was S&S and that Carder's negligence was moderate. The Secretary proposes a penalty
of $217.00 for this citation.
The evidence presented for this citation was identical to the evidence for the previous
citation. The two tank trailers were immediately adjacent to one another. (Ex. G-13, G-14).
Consequently, I find that the Secretary established a S&S violation with low negligence. A
penalty of $80.00 is appropriate.
6. Citation No. 6299985, WEST 2004-326-M
Inspector Allen issued Citation No. 63299985 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.11002. The body of the citation states:
There were no handrails provided on top of the portable generator
set, unit number 488. The opening was four feet long and the
height from ground level was three feet and eight inches. The
opening was located over the right rear fender. Employees
working on top of the elevated work deck were exposed to the
possibility of a fall injury. A miner mounts and dismounts the
trailer once a week to service the motor which is mounted on it.

27 FMSHRC 850

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Catder's negligence was moderate.
The Secretary proposes a penalty of $135.00 for this citation.
The·generator cited by Inspector Allen is mounted on the back of a truck bed. The cited
area is the fender above the rear wheels of the truck bed. (Tr. 95, Ex. G-15). The fender is flat in
that location so that persons can stand on it and a tread is present. It was almost four feet above
the ground. Allen believed that a miner would be in the cited location twice a day to start and
stop the generator and to provide any maintenance on the generator. Inspector Allen believed
that it was reasonably likely that a miner would fall from the trailer and injure himself because a
miner must walk on.the trailer on a regular basis. (Tr. 96-97). Serious accidents have occurred
in similar circumstances at other mines.

Mr. Ausmus testified that the generator trailer had been at the mine for two years. (Tr.
121). He stated that miners can reach all of the controls for the generator from the ground. The
top of the radiator is so high that employees must use a ladder to check the fluid level. He
implied that miners do not have to get up on the generator trailer during their work day.
I find that the Secretary established a violation. The photographs show that there were
stairs leading up to the cited area. I find that the top of the fender was an elevated walkway as
that term is used in the safety standard. Because I credit the uncontroverted testimony of
Inspector Allen, I find that the violation was S&S and that Carder's negligence was moderate. A
penalty of $120.00 is appropriate.

7. Citation No. 6299987, WEST 2004-326-M
Inspector Allen issued Citation No. 6299987 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.12032. The body of the citation states:
The inspection cover plate was missing for the number seventeen
circuit inside the electrical breaker box located on the northwest
end of the scale house trailer. Miners could come in contact with
the one hundred and ten volt ac current that was exposed.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was low. The cited
standard provides that "[i]nspection and cover plates on electrical equipment ~nd junction boxes
shall be kept in place at all times except during testing or repairs." The Secretary proposes a
penalty of $60.00 for this citation.

27 FMSHRC 851

Inspector Allen testified that there was one cover plate missing on a breaker box in the
scale house. (Tr. 98; Ex. G-16). The breaker box was in a section of the scale house that Carder
leased to another company, but the box controlled the power for the entire building. Allen was
told that Carder miners flip the switches in tI:ie breaker box when there is a power outage.
Inspector Allen testified that it was unlikely that anyone would be injured as a result of this
·
·
violation. (Tr. 99-100).
Mr. Ausmus testified that the citation should be vacated because the breaker box was in
an area of the scale house controlled by another company. There is a locked door between the
two areas of the scale house so the exposure to Carder employees "would be zero." (Tr. 120).
I find that the Secretary established a violation but the safety hazard created by the
violation was de minimis. As the inspector testified, a miner would have to purposefully stick a
tool into the small opening to sustain an injury. The violation was not serious and Carder's
negligence was quite low. A penalty of $20.00 is appropriate for this violation.
D. Crusher Operation No. S
1. Citation No. 6299958, WEST 2004-270-M
Inspector Allen issued Citation No. 6299958 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.4230(a)(l). The body of the citation states:
The John Deere front end loader, company number 384 ... did not
have a fire extinguisher on the equipment. This creates a potential
hazard to miners trying to escape in the event of a fire. No other
fire extinguishing equipment was provided on this equipment.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was moderate. The
cited standard provides that "[w]henever a fire or its effects could impede escape from the
equipment, a fire extinguisher shall be on the equipment." The Secretary proposes a penalty of
$60.00 for this citation.
Inspector Allen was concerned that if the loader were to catch on fire, the loader operator
would have a difficult time escaping from the vehicle. (Tr. 128). A diesel fuel tank was under
one door and a hydraulic tank near the other door. "Because there was a fire promulgator under
both exits, [Carder] needed a fire extinguisher for the miner to be able to escape from that piece
of equipment." Id. The inspector did not believe that the violation was serious or S&S because a
fire 'was unlikely. (Tr. 129). Not every piece of mobile requires a fire extinguisher, just those in
which a fire would impede escape. Id. In this case, there was a tank of combustible liquid
adjacent to the each door of the loader. (Tr. 154).

27 FMSHRC 852

Mr. Ausmus testified that, because the loader had two doors, there would always be a way
for the loader operator to escape. (Tr. 173). He believes that a fire would most likely start in the
engine compartment and it would be highly unlikely that both doors would be engulfed with
flames. (Tr. 154-55). Ausmus noted that subsection (a)(2) of the safety standard provides that
"[w]henever a fire or its effects would not impede escape from the equipment but could affect the
escape of other persons in the area, a fire extinguisher shall be on the equipment or within 100
feet of the equipment."
I find that the Secretary established a violation. I agree with Mr. Ausmus that in most
instances a fire would not impede the loader operator from exiting the loader. Nevertheless, if a
fire were to break out quickly both tanks could catch fire and the miner would need to be able to
use the extinguisher to help him escape. The inspector admitted that it was not likely that the
extinguisher woulq ever have to be used.
I find that Carder's negligence is quite low. MSHA inspectors have inspected Carder's
facilities on a regular basis. No inspector has ever advised Carder that some of its self-propel1ed
equipment may require a fire extinguisher even if the equipment has two doors. I find that a
penalty of $20.00 is appropriate.

2. Citation No. 6299959, WEST 2004-270-M
Inspector Allen issued Citation No. 6299959 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.4201(a)(2). The body of the citation states:
The fire extinguisher located on the Caterpillar 96F front end
loader, company number 532 ... had not received a maintenance
check in the last twelve months (since October 1999), creating a
potential hazard to employees trying to use it to extinguish a fire.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury ~ere to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was moderate. The
cited standard provides that "[a]t least once every twelve months, maintenance checks shall be
made of mechanical parts, the amount and condition of the extinguishing agent and expellant,
and the condition of the hose, nozzle, and vessel to determine that the fire extinguishers will
operate effectively." The Secretary proposes a penalty of $60.00 for this citation.
Inspector Allen testified that the "last proof' of any inspection of the fire extinguisher
was in October 1999. (Tr. 131). He did not believe that the violation was serious because the
loader was in good repair. Mr. Ausmus testified that, because a fire extinguisher was not
required to be on the loader, there could be no violation of section 56.42l(a)(2). (Tr. 156-57,
174-75).

27 FMSHRC 853

I find that the Secretary established the violation. H a mine operator places a fire
extinguisher on a piece of equipment, it must meet MSHA's testing and maintenance
requirements. A miner will assume that an extinguisher will function when fighting a fire. There
was no showing that his extinguisher w.as not working properly. The violation was not serious or
of an S&S nature. Carder's negligence was moderate. A penalty of $60.00 is appropriate.
3. Citation No. 6299961, WEST 2004-270-M
Inspector Allen issued Citation No. 6299961 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states:
The hopper feed conveyor contains two idlers that are not guarded.
The open and exposed idlers are eighteen inches and forty-eight
inches above the mine floor, respectively. This condition exposed
employees to the possibility of injury if they were accidently to
contact the moving machine parts. The idlers are not ... along a
regularly used travelway, making the chance of accidental contact
unlikely.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be permanently disabling. He determined
that the violation was not S&S and that Carder's negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.
Inspector Allen testified that the idler rollers were not guarded but that the rollers were
not close to a travelway. (Tr. 132; Ex. G-20). A miner or his clothing could become entangled
in the rollers. (Tr. 134). He admitted that MSHA has determined that conveyor belt rollers are
not considered to be moving machine parts for purposes of the standard. (Tr. 158). The
inspector testified, however, that this policy applies to "material-carrying rollers," not return or
idler rollers. (Tr. 160). The plant was not operating while the inspector was at the plant.

Mr. Ausmus testified that two miners work at the plant, one in a loader and the other in
the operator's station. (Tr. 159). As a consequence, miners are not walking around the plant
while it is operating. Ausmus also testified that, during previous inspections, some MSHA
inspectors have told him that return rollers do not have to be guarded and others have told him
that guards are required. (Tr. 175). Ausmus stated that one inspector told him that "there's not a
pinch point on the return roller." Id. Ausmus believes that when one inspector gives Carder "a
clean bill of health" for a certain condition, it is unfair for another inspector to issue a citation for
the same condition. (Tr. 176). Ha condition is inspected and "accepted by an inspector," does it
mean that the inspector did "not do his job?" (Tr. 177).
As stated above, 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 brief in order to be
27 FMSHRC 854

broadly adaptable to myriad circumstances." Kerr-McGee Corp. , 3 FMSHRC 2496, 2497
(November 1981); Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (December 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 (November 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 (September 1991).
When faced with a challenge that a safety standard failed to
provide ad~quate 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
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). To put it another way, 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. (JSHRC, 528 F.2d 645, 649 (5th Cir. 1976).
The Commission addressed this issue with respect to the Secretary' s guarding standard in
Good Construction. In that case, the mine operator contended that it did not have adequate
notice of the requirements of 30 C.F.R. § 56.14107(a) because the language of the safety standard
"does not provide reasonably clear guidance regarding how any particular moving part should be
guarded, allows inconsistent interpretation by inspectors, and is unconstitutionally vague based
on the fact that other MSHA inspectors never cited these same conditions over the past 18 years."
Good Construction 23 FMSHRC at 1002. The moving machine parts were guarded, but the
MSHA inspector determined that the guarding was insufficient. The Commission remanded the
case to the administrative law judge for consideration of the notice issue.
In the present-case, Carder believes that it has been led astray by MSHA's policy
statements and prior inconsistent enforcement. MSHA's program policy manual provides that
conveyor belt rollers are not to be construed as moving machine parts that must be guarded under
the standard "where skirt boards exist along the belt." The Secretary takes the position that the
statement in the policy manual applies only to "material-carrying rollers, not return rollers return idlers." (Tr. 160). In addition, the cited idlers were not protected by a skirt board.

27 FMSHRC 855

I find that the standard applied to the cited idlers and_that Carder had fair notice of the
requirements of the standard. Although the statement in the program policy manual is subject to
differing interpretations, it is clear that the statement does not apply to the idlers cited by MSHA
in this case. These return rollers were exposed moving machine parts that are similar to those
specifically mentioned in the standards. The Secretary has often applied this standard to return
rollers. See e.g. Heritage Resources Inc., 21FMSHRC626, 632 (June 1999) (ALT); and Asphalt
Paving Co. , 27 FMSHRC 123, 124 (Feb. 2005) (ALT). In Heritage Resources a miner was killed
when he became entangled in a return roller and in Asphalt Paving a miner was injured when his
arm was pulled into a return roller. Unguarded return rollers are a known hazard in the mining
industry. I find that a reasonably prudent person familiar with the mining industry and the
protective purposes of section 56.14107(a) would have recognized the cited return rollers were
required to be guarded. Mr. Ausmus's testimony with respect to prior MSHA inspections is too
vague for me to find that Carder was a victim of prior inconsistent enforcement. The cited idler
was near the tail pulley in an area where cleaning would be required.
It was not reasonably likely that anyone would be injured by the violation. The return
rollers were in a rather remote area. In addition, with only two employees, the risk of injury was
reduced. The condition did create some measure of danger to employees.

I find that Carder's negligence was low. It is clear the Carder believed that these rollers
were not required to be guarded. A penalty of $20.00 is appropriate.

4. Citation No. 6299962, WEST 2004-270-M
Inspector Allen issued Citation No. 6299962 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states:
The cone feed conveyor contains a return idler that is not
adequately guarded in that the guard contained several openings
and the idler was readily accessible. The idler is sixty-eight inches
above the mine floor. This condition exposed employees to the
possibility of injury if they were accidently to contact the moving
machine parts. The idler is not ... along a regularly used
travelway, making the chance of accidental contact unlikely.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be permanently disabling. He determined
that the violation was not S&S and that ·Carder's negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.
The evidence presented with respect to this citation is essentially the same as the evidence
for the previous citation. (Tr. 135-37, 160-61, 175-77; Ex. G-21). Carder raised a general issue
with respect to this and other citations concerning the need to protect against intentional
27 FMSHRC 856

misconduct by an employee. Carder believes than the only way for a miner to be injured by the
cited condition is for him to intentionally put himself in harm's way. Carder's position fails to
consider human error. The Commission interprets safety standards to take into consideration
"ordinary human carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (September
1984). In that case, 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." Id. Human behavior can be erratic and unpredictable. 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
the moving parts and a serious injury could result. Guards are designed to prevent just such an
accident. There is a history of such injuries at crushing plants throughout the United States.
"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).
For the reasons set forth above, I find that the Secretary established a non-S&S violation
and that Carder's negligence was low. A penalty of $20.00 is appropriate.
5. Citation No. 6299963, WEST 2004-270-M
Inspector Allen issued Citation No. 6299963 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states:
The screen feed conveyor contains a return idler that is not
guarded. The idler is fifty-four inches above the mine floor. This
condition exposed employees to the possibility of injury if they
were accidently to contact the moving machine parts. The idler is
not ... along a regularly used travelway, making the chance of
accidental contact unlikely.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be permanently disabling. He determined
that the violation was not S&S and that Carder's negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.
The evidence presented with respect to this citation is essentially the same as the evidence
for the previous two citations. (Tr. 137-39, 162-63, 175-77; Ex. G-22). For the reasons stated
above, I find that the Secretary established a non-S&S violation and that Carder's negligence was
low. A penalty of $20.00 is appropriate.

27 FMSHRC 857

6. Citation No. 6299964, WEST 2004-270-M
Inspector Allen issued Citation No. 6299964 under.section 104(a) of the Mine Act
alJeging a violation of 30 C.F. R. § 56.9300(a). The body of the citation states:
No berms or guardrails were provided on the banks of the elevated
scale roadway adjacent to the scale house, where a thirty-two to
thirty-six inch drop off exists. This condition creates a vehicular
overturn hazard. The scales are used daily to weigh over the road
haul trucks.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was low. The safety
standard provides that "[b]enns or guardrails shall be provided and maintained on the banks of
roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or
endanger persons in equipment." The Secretary proposes a penalty of $60.00 for this citation.
Inspector Allen testified that Carder' s customers use the scale roadway. (Tr. 140; Ex. G23). Several trucks entered and exited the property during his inspection. He determined that an
accident was unlikely because trucks move very slowly over the scale. (Tr. 141). He determined
that Carder's negligence was low because its managers were not aware that the standard would
apply to the scale. (Tr. 142).
Mr. Ausmus testified that the scale has been in its present position for several years
through many MSHA inspections without guardrails or berms. (Tr. 176-77). The condition had
not been previously cited by MSHA nor had an MSHA inspector suggested the guardrails be
installed. Anyone entering or leaving the property would see the scale, as shown on the
photographs taken by Inspector Allen. (Ex. G-23).
I find that the citation should be vacated because Carder was not provided with adequate
notice that guardrails were required on the scale. The scale has been present for many years and
perhaps as long as 15 years. (Tr. 164). The scale would be quite obvious to anyone entering the
property. A reasonably prudent person familiar with the mining industry and the protective
purposes of section 56.9300(a) would not have recognized that the cited scale was covered by the
standard given the lack of enforcement at the mine and the fact that truck drivers drive over the
scale at a very low rate of speed. I further find that, putting aside the notice issue, the scale fits
within the scope of the safety standard. The scale is a roadway where a drop-off exists of
sufficient grade or depth that could cause a truck to overturn or endanger persons in the truck.
By issuing the citation, MSHA put Carder on notice that guardrails are required. The citation is
vacated.

27 FMSHRC 858

7. Citation Nos. 6299965 through 6299976, WEST 2004-270-M
Inspector Allen issued Citation Nos. 6299965 through 6299976 under section 104(a) of
the Mine Act alleging violations of 30 C.F. R. § 50.30(a). The body of Citation No. 6299965
states:
The MSHA #7000-2 (Quarterly Employment Report) for the 1st
Quarter'2001 (January, February and March) was not completed
properly in that the employment and employee hours for the mine
were not reported correctly.
The inspector determined that there was no likelihood that someone would be injured as a result
of this condition. He determined that the violation was not S&S and that Carder's negligence
was moderate. The regulation provides, in part, that "[eJach operator of a mine in which an
· individual worked during any calendar quarter shall complete a MSHA form 7.000-2 in
accordance with the instructions and criteria in§ 50.30-1. .. ." The Secretary proposes a penalty
of $60.00 for each citation. Each of the 12 citations charging a violation of section 50.30(a) are
identical, except that they cite a different calendar quarter. (Exs. G-24 through G-36).
Inspector Allen stated that he issued the citations following an audit of Carder's recordkeeping compliance. (Tr. 143). The audit revealed that Carder made the same mistake on the
7000-2 form in 12 consecutive quarters. A separate citation was issued for each quarter. (Tr.
144). Inspector Allen described the mistake as follows:
We identified during the course of the audit that the mine operator
was not reporting hours for the scale-house person. [Carder has] a
roving scale-house person that would bounce around for the
different mines, and they were not tracking the hours to associate
with each mine ID.
(Tr. 145). The same mistake was made with respect to Mike Ausmus, the general manager.
Inspector Allen testified that Carder has a unique situation because it has "people that travel to
[four] different mine Ids and it' s a little difficult to track it." (Tr. 16).
Mr. Ausmus testified that he was surprised that he received these citations because Carder
has been reporting hours worked the same way for a long time. Carder was never_advised by
MSHA that it was not correctly reporting hours worked. Ausmus testified that the scale-house
employee works about 40 hours a week in the summer, but does not usually work at all during
the winter months. (Tr. 178-89). Ausmus testified that he is at the No. 5 crusher about 10 hours
a week. (Tr. 178). When Mr. Ausmus asked Inspector Allen why the alleged reporting violation
was not included in one citation, he replied that it is MSHA's policy to issue a separate citation
for each quarter. (Tr. 166).

27 FMSHRC 859

The Secretary is authorized to assess proposed penalties for violations of Part SO.
Consolidation Coal Co., 14 FMSHR.C 956, 963-65 (June 1992). Inspector Allen did not refer to
a specific provision of section 50.30-1 that was violated. Nevertheless, section 50.30-l(g)(3)
requires mine operators to "[s]how the total hours worked by all employees during the quarter
covered." (Emphasis added). "Hours worked" includes work performed by employees who only
work part of their time at the No. 5 crusher. It does not appear that Carder's employment records
had been previously audited. In Consolidation Coal, the Commission recognized the Secretary's
authority to issue a separate citation for each calendar quarter.
I find that the citations should be affirmed as non-serious citations. I find that Carder's
negligence was very low because it believed that the hours were being correctly reported. Carder
relied on an administrative assistant to calculate and report the employment and hours worked.
(Tr. 146). A penalty of $10.00 for each citation is appropriate.

8. Citation No. 6299957, WEST 2004-271-M
Inspector Allen issued Citation No. 6299957 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14100(b). The body of the citation states:
The John Deere front end loader, company number 384 ...
contained defects that affected the safety of persons. The horn and
the lights were defective and not maintained in a functional
condition. Miners and other vehicular traffic were observed in the
area while the loader was in operation. Miners were exposed to the
possibility of injury due to the inability of the loader operator to
warn others in the event of an emergency. The mine operator was
not aware of the defects on the loader.
The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would be permanently disabling. He
determined that the violation was S&S and that Carder's negligence was moderate. The
Secretary proposes a penalty of $154.00 for this citation.
Inspector Allen testified that the operator of the cited loader was loading a truck when he
arrived for the inspection. (Tr. 149). Use of the loader with an inoperable horn and lights
presented a serious safety risk to employees. When Mr. Ausmus attempted to turn on the lights
during the inspection, sparks were created under the dashboard. (Tr. 150). No defects were
noted in the pre-operational checklist. Inspector Allen could not determine how long the loader
had been in this condition because the loader operator did not speak English. (Tr. 151).

Mr. Ausmus testified that there was sparking when he turned the key for the loader. (Tr.
179). He believes that the problem developed at that moment. Ausmus contends that the
sparking indicated a short in the electrical system that caused the horn and lights to malfunction.
27 FMSHR.C 860

(Tr. 180). The citation is not fair because MSHA did not give Carder an opportunity to fix the
problem.
Carder argues that the standard requires that safety defects be corrected in a timely
manner. Because it was not given the opportunity to correct the problem that developed at the
time of the inspection, the citation should be vacated. Inspector Allen believes that the loader
operator knew that there was a problem with his equipment because he parked the loader and
started using another loader as soon as the inspector arrived at the mine. (Tr. 150-51, 167-68).
I find that the Secretary did not meet its burden of proof with respect to this citation. The
pre-operational checklist for the cited loader did not indicate that the horn and lights were not
working. If there was sparking under the dash when Ausmus and Allen inspected the loader, it is
possible that the lights and horn had been working that shift. See Lopke Quarries, Inc., 23
FMSHRC 705, 714-15 (July 2001). Consequently, I vacate this citation.
9. Citation No. 6299960. WEST 2004-271-M
Inspector Allen issued Citation No. 6299960 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14100(b). The body of the citation states:
The Caterpillar 966F front end loader, company number 532 ...
contained defects that affected the safety of persons. The brake
lights were defective and not maintained in a functional condition.
Vehicular traffic was observed in the area while the loader was in
operation. Miners were exposed to the possibility of injury due to
the inability of another equipment operator to know when the
loader is stopping. The mine operator was not aware of the defects
on the loader.
The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was moderate.
The Secretary proposes a penalty of $114.00 for this citation.
Inspector Allen testified that there was a possibility of a collision between vehicles at the
mine as a result of this violation. (Tr. 152). The defect was not noted on the pre-operational
checklist. He admitted that it was possible that the brake lights stopped working during the shift.
(Tr. 172). Mr. Ausmus testified that the citation was unfair because the defect was not noted on
the pre-operational checklist. (Tr. 181). He stated that the brake lights must have malfunctioned
during the shift. Ausmus believes that everything was working at the start of the shift. He
admitted that when he spoke to the loader operator after the citation was issued, he merely asked
him whether he did a preshift exam and whether everything checked out. (Tr. 182). The loader
operator spoke broken English.
27 FMSHRC 861

I find that the Secretary established a non-S&S violation of the standard. Carder did not
effectively rebut the Secretary's evidence of a violation. It is not at all clear that the loader
operator checked the brake lights at the start of the shift. Although there was a possibility that
the hazard contributed to by the violation would result in an injury, such an injury was not
reasonably likely. Carder's negligence was moderate. A penalty of $60.00 is appropriate.

E. Screening Operation/Dredge Operation
1. Citation No. 6311741, WEST 2004-491-M
Inspector Allen issued Citation No. 6311741 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.16006. The body of the citation states:
The oxygen and acetylene tanks being transported on the company
number 170 maintenance truck were observed in the upright
position with no protective covers provided over the valve stems.
Employees working in this area were exposed to the possibility of
injury, should the cylinders tip over or receive an impact on the
valve body causing fire and/or projectile hazards.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it could be fatal. He determined that the violation
was not S&S and that Carder's negligence was moderate. The cited standard provides, in part,
that "[v]alves on compressed gas cylinders shall be protected by covers when being transported
or stored . .. ." The Secretary proposes a penalty of $60.00 for this citation.
Inspector Allen testified that the valves for the compressed gas cylinders were not
protected as required by the standard. (Tr. 186; Ex. G-40). He observed the cylinders being
transported in the cited condition while on the truck. (Tr. 189). The cylinders were secured to
the truck. (Tr. 213). He stated if the valves were "impacted and knocked off, those compressed
gas cylinders [had] the potential to become a rocket." (Tr. 187, 214). The violation could also
propagate a fire. (Tr. 188). There were covers available at the mine.

Mr. Ausmus testified that Inspector Allen admitted that the cylinders could not tip over
and there was nothing overhead that could fall onto the valves. (Tr. Il. 8). Ausmus believes that
there was no safety hazard conn_ected with the cited condition.
As stated above, the Secretary is not required to prove that an alleged violation created a
safety hazard. I find that the Secretary established a non-S&S violation. It was highly unlikely
that the violation would result in an injury. The gravity was quite low and Carder's negligence
was moderate. A penalty of $40.00 is appropriate.

27 FMSHRC 862

2. Citation No. 6311743, WEST 2004-491-M
Inspector Allen issued Citation No. 6311743 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.12004. The body of the citation states:
The power conductors feeding power from the 12 volt DC battery
to the engine on the work boat were not insulated and/or provided
[with] adequate protection. The conductors had mechanical
damage near both electrical connections at the battery. A diesel
fuel tank is located in the near vicinity to the damaged conductors.
Employees working in and around this area were exposed to the
possibility of shock and/or fire.
The inspector detennined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was moderate.
The safety standard provides, in part, that "[e]lectrical conductors exposed to mechanical damage
shall be protected." The Secretary proposes a penalty of $154.00 for this citation.
Inspector Allen testified the conductors were damaged near where they were attached
with lugs to the 12 volt battery. (Tr. 190; Ex. G-42). He stated that having broken wires in the
conductors can create arcing and sparking if the battery is moved. The battery was on·the bottom
of the boat and was not secured. (Tr. 224). He also stated that the conductors could overheat
since their current-carrying capacity was reduced. One of the conductors was "almost broken
clear off where it entered into the lug that mounts to the battery." (Tr. 218). The work boat is
used on a daily basis. A fuel tank was near the battery. (Tr. 191). Inspector Allen determined
that the violation was S&S because of the proximity of the fuel tank. (Tr. 192). On crossexamination, Inspector Allen admitted that one of the cited conductors was the ground conductor
and that he did not .Icnow what would happen if that conductor failed. (Tr. 221). Allen stated that
he issued the citation because the conductors were damaged. (Tr. 222-23).

Mr. Ausmus testified that the conductor that concerned Mr. Allen was the ground
conductor. (Tr. II 9). The conductor on the ground can be a bare wire because the ground goes
to the frame of the equipment. There is no possibility of sparking from the ground conductor.
Mr. Ausmus introduced the ground cable (negative cable) as Exhibit R-1 and the positive cable
as Exhibit R-2. (Tr. II 11).
I find that the Secretary established a violation. Both conductors were badly damaged at
the point where they entered the lugs. Although this condition created a potential hazard,
Inspector Allen' s testimony as to the likelihood that someone would be injured by the violation,
assuming continued nonnal mining operations, was not very convincing. The Secretary did not
show that it was reasonably likely that sparking would occur, that sparking would cause a fire, or

27 FMSHRC 863

that a miner would be shocked by the condition. I find that the violation was not S&S and that
Carder's negligence was moderate. A penalty of $60.00 is appropriate.
3. Citation No. 6311745, WEST 2004-491-M
Inspector Allen issued Citation No. 6311745 under section 104(a) of the Min~ Act
alleging a violation of 30 C.F. R. § 56.14100(a). The body of the citation states:
The work boat used daily during the shift has not received an
inspection by the equipment operator before being placed in
operation on that shift. Several safety defects were found and cited
... on the work boat that should have been identified if a proper
pre-operational check had been made.
The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would ·result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was moderate.
The safety standard provides that "[s]elf propelled mobile equipment to be used during a shift
shall be inspected by the equipment operator before being placed in operation on that shift." The
Secretary proposes a penalty of $154.00 for this citation.
Inspector Allen determined that the preshift examination had not been performed after
talking with Leonard Smart, the lead man on the shift. (Tr. 193). Smart told him that no preoperational check had been performed.
Mr. Ausmus testified that the work boat cannot be classified as self-propelled mobile
equipment under section 56.14100 because section 56.14000 defines "mobile equipment" as
"[w]heeled, skid-mounted, track-mounted, or rail-mounted equipment capable of moving or
being moved." (Tr. 225; Tr. II 12). A boat does not fit within this definition.
I agree with Mr. Ausmus that a boat is not mobile equipment as that term has been
defined by the Secretary. The safety standard applies to self-propelled mobile equipment.
Consequently, the citation .is vacated.

4. Citation No. 6311746, WEST 2005-134-M
Inspector Allen issued Citation No. 6311746 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14103(b). The body of the citation states:
The broken window on the Collidge dredge impaired the operator's
visibility for safe operation and/or created a hazard to the
equipment operator. Numerous cracks running both vertically and

27 FMSHRC 864

horizontally existed, creating a spider web effect. There [are] other
windows that are intact, making the chance of an accident unlikely.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was moderate. The
cited standard provides, in part, that "[i]f damaged windows obscure visibility necessary for safe
operation, or create a hazard to the equipment operator, the windows shall be replaced or
removed." The Secretary proposes a penalty of $425.00 for this citation.
Inspector Allen testified that he issued this citation because a window on the dredge was
cracked. He stated that it looked like an object had struck the window. (Tr. 196; Ex. G-44). Mr.
Ausmus testified that a dredge is not mobile equipment as that term is defined by the Secretary
and that the citation should be vacated. (Tr. 226-28; Tr. II 12).
Section 56.14103 is entitled "Operators Stations." Subsection (a) states that "[i]f
windows are provided on operators' stations of self-propelled mobile equipment, the windows
shall ...." Subsection (c) also limits its applicability to self-propelled mobile equipment.
Subsection (b) cited by Inspector Allen does not make any direct reference to self-propelled
mobile equipment. Nevertheless, the entire standard clearly applies only to windows on
operators' stations of self-propelled mobile equipment. This subsection requires the replacement
of damaged windows on such equipment but does not require the replacement of windows at
other locations at a mine. The preamble to section 56.14103 states "[t]his final standard sets
forth several safety requirements relating to the operator's station on self-propelled mobile
equipment." 53 Fed. Reg. 32507 (August 25, 1988). I find that the dredge did not fit within the
Secretary's definition of mobile equipment. Consequently, this citation must be vacated.

5. Citation No. 6311747, WEST 2004-491-M
Inspector Allen issued Citation No. 6311747 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states, in part:
The drive shaft between the engine and the main pump located on
the Coolidge dredge contained exposed moving machine parts that
were not adequately guarded. The existing drive shaft guarding
contains a twenty one inch by fifty nine inch opening and is open
and exposed on the bottom side. There are also two seven .inch by
nine inch lids on the top side that are not secured and were easily
opened. . . . The moving machine parts are along a travel way that
is not regularly used... .
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be permanently disabling. He determined
27 FMSHRC 865

that the violation was not S&S and that Carder's negligence was moderate. The Secretary
proposes a penalty of $425.00 for this citation.
Inspector Allen testified that the rotating drive shaft was exposed to accidental contact.
(Tr. 198; Ex. G-45). There were also lids on the top side of the shaft which could be opened. He
testified that the drive shaft was about 30 inches above the walking surface. (Tr. 200). He took
the photograph of the alleged violation while he was on his knees with the camera pointing up.
(Tr. 201, 230-32).
Mr. Ausmus testified that the cited area was about 40 feet from the operator's station and
that there is no reason for him to be anywhere near this area while the dredge is running. (Tr. Il
13). He testified that the bottom of the existing guard protecting the drive shaft was about 18
inches above the deck of the dredge. (Tr. Il 14). He states that any greasing of the drive shaft is
performed while the dredge is shut down. The lids on the top side were closed and are only
opened for greasing operations.
I find that the Secretary established a technical violation of the safety standard. Moving
machine parts, that were within seven feet of an infrequently used walkway, were exposed. To
become entangled in the parts, a miner would have to be down on the deck kneeling or on his
hands and knees. I find that the existing guard would protect miners walking by the shaft. The
lids above the shaft were designed so that they could not flip open. I find that the gravity was
very low. Because this technical violation was not obvious, Carder's negligence was extremely
low. A penalty of $10.00 is appropriate.

6. Citation No. 6311748, WEST 2004-491-M
Inspector Allen issued Citation No. 6311748 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 47.41(a). The body of the citation states, in part:
The [mine] operator failed to ensure that a five gallon container of
a hazardous chemical has a label that was located in the fuel area.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was moderate. The
standard provides, in part, that the "operator must ensure that each container of a hazardous
chemical has a label." The Secretary proposes a penalty of $60.00 for this citation.
Inspector Allen stated that the cited container contained gasoline. (Tr. 202; Ex. G-46).
The container was a red five gallon metal can. (Tr. 233). Mr. Ausmus testified that MSHA has a
safety standard which provides that a gasoline container that is emptied every night is not
required to be labeled. (Tr. Il 15-16).

27 FMSHRC 866

The Secretary established a technical violation. Mr. Ausmus raised a defense, but he did
not present any credible evidence that the can was emptied every night. The violation was not
serious. The container in the photograph is a typical metal gasoline can. (Ex. G-46). It is highly
unlikely that a miner would mistake the container for anything other than a gasoline can. For the
same reasons, Carder's negligence is very low. A penalty of $10.00 is appropriate.
7. Citation No. 6311749, WEST 2004-491-M
Inspector Allen issued Citation No. 6311749 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.4102. The body of the citation states, in part:
Excessive amounts of engine oil had been allowed to accumulate
under the engine (a pool approximately three feet Jong by four feet
wide) and the dirt around the genset was oil soaked for a distance
of approximately six feet wide by twelve feet long, on and around
the plant's Caterpillar generator that supplies the plant [with]
power.
The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was moderate.
The safety standard provides that "[f]lammable or combustible liquid spillage or leakage shall be
removed in a timely manner or controlled to prevent a fire hazard." The Secretary proposes a
penalty of $154.00 for this citation.
Inspector Allen testified that the accumulation created a serious fire hazard. (Tr. 203-04;
Ex G-47). He testified that miners were exposed to the hazard on a daily basis. He admitted that
it was possible that the oil line at the generator had broken the day before. (Tr. 235). Fuel was
stored in the area and, since he did not issue a citation for failure to post a No Smoking sign, it is
safe to assume that the area was posted. (Tr. 236). The inspector believes that a spillage of
flammable liquid must be cleaned up as soon as it is discovered. (Tr. 237).
Mr. Ausmus testified that the night before the MSHA inspection, a hose broke on the
generator which caused excessive amounts of oil to spill on the ground. (Tr. II 16). He believes
that the generator was not being used at the time of the inspection. Ausmus contends that a mine
operator must be given a reasonable amount of time to clean up a spill of flammable liquid. In
addition, there were "No Smoking" and "No Open Flames" signs posted in the area. (Tr. II 17).
I agree with Mr. Ausmus that, under the safety standard, a mine operator must be given a
reasonable amount of time to clean up the spill before a violation is established. A mine operator
must take steps to ensure that the danger is immediately mitigated, however. There is no dispute
that the oil spill described by Inspector Allen existed. Inspector Allen stated that it was possible
that the spill could have occurred the previous day, but Carder employees did not advise him o(
27 FMSHRC 867

that fact at the time of his inspection. He could not recall if the generator was operating at the
time of his inspection. (Tr. 235). On the other hand, Mr. Ausmus only "believed" that miners
were not using the generator at that time. (Tr. II 16). Although Carder generally outlined a
defense at the hearing, it did not present sufficient evidence to rebut the Secretary's prima facie
case. There were no warning signs or instructions given to keep away from the generator. I find
that the Secretary established an S&S violation and that Carder's negligence was moderate. A
penalty of $100.00 is appropriate.

8. Citation No. 6311750, WEST 2004-491-M
Inspector Allen issued Citation No. 6311750 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). At the hearing, Mr. Ausmus stated that he did
not have any objections to the citation and he admitted that the guarding on the generator set was
not adequate. (Tr. II 17). Consequently, the citation is affirmed as written. The Secretary's
proposed penalty of $203.00 is appropriate.

9. Order No. 6311751, WEST 2005-134-M
Inspector Allen issued Order No. 6311751 under section 104(g)(l) of the.Mine Act
alleging a violation of 30 C.F. R. § 46.ll(b)(4). The body of the citation states, in part:
Three commercial over-the-road truck drivers at the mine have not
received site-specific hazard awareness training. The mine
operator was aware of the training requirements.
The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would be fatal. He determined that the
violation was S&S and that Carder's negligence was high. The regulation provides that mine
operators must provide site-specific hazard awareness training to "[c]ustomers, including
commercial over-the-road truck drivers." The Secretary proposes a penalty of $1,700.00 for this
citation.
Inspector Allen testified that he observed three over-the-road truck drivers lined up at the
pit getting ready to have their trucks loaded with product. (Tr. 208; Ex. G-51). When he talked
to the drivers, none of them had been given the required safety training. He considered the
violation to be S&S because an untrained person at a mine site is a hazard to himself and others.
He believed that this mine presented unusual hazards because it is a dredge site. He felt that
en~apment in a sand pile was a real possibility if the pile were to fail. (Tr. 209). Inspector Allen
believed that Carder's negligence was high because the lead man was not paying attention to new
truckers. Carder has been in operation for about ten years and it had knowledge of this training
requirement.

27 FMSHRC 868

Allen admitted that there were no Carder employees at the scale house and that there was
a sign posted at the entrance to the mine. (Tr. Il 5). The scale house was on the opposite side of
the dredge pond from the area where the trucks were lined up. The drivers did not adhere to the
signs at 'the entrance of the mine.

Mr. Ausmus testified that Carder has posted a sign at the entrance of the mine which
reads: "Customers & Visitors Must Report to Scale Office Before Entering Property." (Tr. Il
17-18; Ex. R-3). Ausmus contends that, because no miners were manning the scale house,
drivers who were new to the property just drove around to where they saw activity. (Tr. II 18).
In doing so, these drivers disregarded the sign posted at the entrance to the mine. Ausmus
contends that if these drivers had remained at the scale house, someone would have driven
around the pond to greet them and given them the required hazard training. Carder had four
employees at the mine that day. Ausmus further testified that, as soon as the lead man noticed
the trucks, he would have asked them if they had the required training. If they said no, he would
have escorted them back to the scale house to provide the training. (Tr. II 19).
I credit the testimony of ~spector Allen. He testified that the lead man told him that he
thought the truckers had already been trained and that he was not paying any attention to new
truckers. (Tr. 209). Inspector Allen's notes corroborate this testimony. (Ex. G-51). I find that
the Secretary established an S&S violation of the training regulation. I also find that Carder's
negligence was high because Carder's employees were not paying attention to this requirement.
Carder should have expected new truckers would travel to the area of the mine where people
were located rather than sit at the scale house. The lead man should have asked each unfamiliar
driver whether he had received any hazard training. The Secretary proposed the penalty under
her special assessment regulations. I am reducing the penalty to $1,000.00 ta1cing into
consideration the civil penalty criteria. This mine has no history of previous violations.
10. Citation No. 6311753, WEST 2004-491-M
Inspector Allen issued Citation No. 6311753 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.11003. The body of the citation states, in part:
The twelve foot ladder located on the #1 oversized conveyor was
not maintained in good condition. The ladder had two of the rungs
bent and a crack was observed in the right side frame that
penetrated approximately one third of the way through....
Employees seldom us_e this ladder, ma1cing the chance of an
accident unlikely.
The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be fatal. He determined that the violation
was not S&S and that Carder's negligence was moderate. The standard provides that "[l]adders

27 FMSHRC 869

shall be of substantial construction and maintained in good condition" The Secretary proposes a
·
penalty of $60.00 for this citation.
Inspector Allen testified at to the condition of the ladder. (Tr. 210-12; Ex. G-50). He
believed that the ladder could easily fail with a miner on it. The ladder was not in use and he was
not sure if there were other ladders available in the area. (Tr. II 6).

Mr. Ausmus testified that there was another ladder in perfect condition in the area that
miners could use. (Tr. II 20). In addition, the ladder was used to access a platform. If the ladder
were properly placed, the bent rungs would be above the level of the platform and no miners
would be required to step on them.
I find that the Secretary established a violation. Although the hazard was not very great,
it was possible that the violation could contribute to an injury. The violation was not serious.
Carder's negligence was moderate. A penalty of $60.00 is appropriate.

F. Citation Nos. 6311742, 6311830, and 6311847
Carder agreed to withdraw its contest of the above citations at the start of the hearing. As
a consequence, these citations are affirmed as written.

II. APPROPRIATE CIVIL PENALTIES
Section l lO(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. The individual operations have the following history of previous
paid violations during the 24 months preceding these inspections: Crusher No. 2 - no reported
history; Dredge Operation No. 1 - three; Dredge Operation No. 3 - six; Crusher Operation No. 5 four; Screening Operation/Dredge Operation - no reported violations. Carder is a small operator
and its mines are small. All of the violations that were affirmed in this decision were abated in
good faith. The penalties assessed in this decision will not have an adverse effect on Carder's
ability to continue in business. My gravity and negligence findings are set forth above. Based on
the penalty criteria, I find that.the penalties set forth below are appropriate.

m. ORDER
Based on the criteria in section 1lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation No.

30 C.F.R. §

Penalty

56.14105

$1,500.00

WEST 2004-269-M
6298298

27 FMSHRC 870

Citation No.

30C.F.R. §

Penalty

WEST 2004-270-M
6299958
6299959
6299961
6299962
6299963
6299964
6299965
6299966
6299967
6299968
6299969
6299970
6299971
6299972
6299973
6299974
6299975
6299976

56.4230(a)(l)
56.4201(a)(2)
56.14107(a)
56.14107(a)
56.14107(a)
56.9300(a)
50.30(a)
50.30(a)
50.30(a)
50.30(a)
50.30(a)
50.30(a)
50.30(a)
50.30(a)
50.30(a)
50.30(a)
50.30(a)
50.30(a)

$20.00
60.00
20.00
20.00
20.00
Vacated
10.00
10:00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00

56.14100(b)
56.14100(b)

Vacated
60.00

56.14132(a)
56.14100(b)
56.11002
56.11002
56.11002
56.12032

20.00
20.00
80.00
80.00
120.00
20.00

56.16006
56.14112(b)
56.12004
56.14100(a)

40.00
203.00
60.00
Vacated

WEST 2004-271-M
6299957
6299960
WEST 2004-326-M
6299980
6299981
6299982
6299983
6299985
6299987
WEST 2004-491-M
6311741
6311742
6311743
6311745

27 FMSHRC 871

Citation No.

30 C.F.R. §

Penalty

6311747
6311748
6311749
6311750
6311753

56.14107(a)
47.41(a)
56.4102
56.14107(a)
56.11003

10.00
10.00
100.00
203.00
60.00

56.14100(b)

60.00

56.14112(a)(l)
56.14107(a)
56.14112(a)(l)

20.00
100.00
60.00

56.14103(b)
46.ll(b)(4)

Vacated
1,000.00

56.14130(i)

60.00

56.14107(a)

60.00

WEST 2005-132-M
6311830
WEST 2005-133-M
6311844
6311846
6311847
WEST 2005-134-M
6311746
Order No. 6311751
WEST 2005-160-M
6311828
WEST 2005-218-M
6311848

TOTAL PENALTY

$4,206.00

Accordingly, the citations contested in these cases are AFF1RMED, MODIFIED, or
VACATED as set forth above and Carder, Inc., is ORDERED TO PAY the Secretary of Labor
the sum of $4,206.00 within 30 days of the date of this decision.

Richard W . Manning
Administrative Law Judge
27 FMSHRC 872

Distribution:

Gregory Tronson, Esq., Office of the Soli~itor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)
Mike Ausmus, Carder, Inc., P.O. Box 732, Lamar, CO 81052-0732 (Certified Mail)

RWM

27 FMSHRC 873

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

November 29, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JAY HEEILAND,
· Applicant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. CENT 2006-43-DM
MSHA No. SC MD 2005-13

v.

Portable Plant #1/Palo Quarry

SMASALAGGREGATES & ASPHALT, LLC,:
Respondent

Mine I.D. 23-02197

DECISION AND ORDER GRANTING TEMPORARY REINSTATEMENT

Appearances:

Lydia Tzagoloff., Office of the Solicitor, U. S. Department of
Labor, Denver, Colorado, for Applicant;
Robert C. Johnson, Esq., Husch & Eppensberger, Kansas City,
Missouri, for Respondent.

Before:

Judge Manning

This case is before me on an application for temporary reinstatement brought by the
Secretary of Labor on behalf of Jay Heetland against Smasal Aggregates & Asphalt, ILC,
("Smasal Aggregates") under section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §815(c)(2) (the "Mine Act"). The application was filed on or about November
4, 2005 and Smasal Aggregates requested a hearing within ten days of receipt of the application.
The application alleges that Smasal Aggregates discriminated against Heetland when he was
terminated from his employment on July 28, 2005, because he made safety complaints to
company management about his working conditions on July 27 and 28, 2005. The application
states that the Secretary has determined that the underlying discrimination complaint filed by
Smasal was not frivolously brought. A hearing in this temporary reinstatement proceeding was
held on November 22, 2005. For the reasons set forth below, I find that the applicant established
that Heetland's discrimination complaint was not frivolously brought.

II. SUMMARY OF THE EVIDENCE
On or about August 15, 2005, Heetland filed a complaint of discrimination with the
Department of Labor's Mine Safety and Health Administration ("MSHA"). Heetland was the
only witness who testified in this temporary reinstatement hearing. He testified that he started
27 FMSHRC 874

working for Smasal Aggregates in April 2004 as an equipment operator. On July 26, 2005,
Smasal Aggregates ' employees started making preparations to clean off 10 to 12 feet of
overburden on top of limestone that was to be mined. (Tr. 8). The area to be cleaned was near
the edge of a highwall that dropped about 30 feet to the floor of the pit. The overburden
consisted of loose, unconsolidated material which had been previously blasted. Heetland
constructed eight foot high berms along the edge of the haul truck route being constructed to the
area. He was concerned about the "tight conditions" in the area and expressed these concerns to
another equipment operator.
On July 27, 2005, Heetland was assigned to operate a track hoe to scoop up overburden
and dump the material into trucks. (Tr. 11). As Heetland started loading haul trucks, he became
concerned about the working conditions. When Mike Smasal, owner/operator of Smasal
Aggregates, came to the area, Heetland complained about these working conditions.
Specifically, he complained that he was operating too close to the edge of the highwall and there
was not sufficient room for the haul trucks and track hoe to safely operate. Mr. Smasal did not
respond to his complaints but merely stated that the rock had to be removed. (Tr. 13).
The track hoe is an excavator that is mounted on caterpillar tracks. Heetland testified
that, in operating the track hoe, he was required to reach out with the boom on the front of the
track hoe, scoop up material, pivot the body of the track hoe, and dump the load into a waiting
haul truck. (Tr. 12-13, 35-36). Because the material he was digging was blasted rock, it was
loose and unconsolidated. _Heetland testified that as he scooped up the material, it would roll out
from under the track hoe. Heetland' s track hoe was positioned facing the edge of the high wall
with the tracks perpendicular to that edge. He had to extend the boom as far forward as possible
so that the bucket could scoop up rock at the "very edge of the highwall." (Tr. 12). Heetland
stated that as he removed the loose material with the bucket, rock rolled "back from out
underneath [the] tracks [of the track hoe]." Id. As he worked, the front ends of the tracks would
stick out 18 to 24 inches "into mid air over this probably 45-degree slant with a 30-foot drop-off
underneath that." (Tr. 13). Heetland was concerned that, if his track hoe started sliding as rock
rolled out from under the tracks, the track hoe could easily keep sliding down the loose rock
toward the edge of the highwall. As he worked, the front of the tracks were sometimes about 20
feet from that edge and he believed that there would be nothing to stop the track hoe from falling
30 feet to the pit floor. if the track hoe started sliding. (Tr. 27, 38, 41-45). He could sometimes
feel the track hoe drop a few inches as the material under him settled. (Tr. 46-48).
The highwall rose 30 feet above the pit floor. Because the track hoe was on top of the
_overburden that was to be removed, Heetland stated that he was operating another 10 to 12 feet
above that. Heetland estimated that, as he worked, the overburden that was adjacent to the edge
of the highwall would become sloped at an angle of about 45 degrees. (Tr. 28). He believed that
if the track hoe started sliding, the loose rock would act like "ice" and the track hoe would
"shoot" right over it. (Tr. 29).

27 FMSHRC 875

Heetland continued to work in spite of his concerns. (Tr. 14). When Mike Smasal
returned later that day, Heetland told him that he did not like working so close to the edge of the
highwall because it is uns~fe. (Tr. 14). Smasal told Heetland that "we have just got to work
through it." (Tr. 15). Heetland testified that the haul trucks that he was loading also had to come
close to the edge of the highwall. Near the end of the shift, Heetland talked to Mr. Smasal agajn
about the unsafe working conditions. Heetland complained that there were too many big pieces
of equipment operating in a confined area close to the edge of the highwall. At that time,
Heetland was working near the outer wall of the mine where another highwall rose above the
area were the miners were working. (Tr. 15). Heetland testified that Mike Smasal replied "just
get over it ... that's what we pay you to do." (Tr. 16). As Heetland was leaving the mine at the
end of his shift, Mr. Smasal asked him if he had banged up the ~age on the skid loader. Heetland
replied that he had not operated the skid loader for several months.
When Heetland returned to work on July 28, he was assigned to operate the track hoe at
the same location. Some words were exchanged between Heetland and Smasal. Apparently,
Smasal told Heetland that he would be "swinging out over the edge again." (Tr. 17). Heetland
replied that Smasal should operate the track hoe if he thinks "it's so safe and so easy." (Tr. 18).
Heetland operated the track hoe until about 11:00 a.m. that day. At that time the haul truck
drivers had to back down the road toward him. He was concerned that if a truck's brakes or
transmission failed, it would run right into him and he would be "over the edge.~' (Tr. 19).
Heetland testified that he gathered the truck drivers and told them "we have got to figure out a
safe way to do this." Id. When Mike Smasal came down, he wanted to know why the men were
not working. Heetland testified that he told Smasal that they were trying to figure out how to
work safely because the overburden was not being removed in a safe manner. Id. When Smasal
replied that "we have got to do this in a safe manner," Heetland started laughing because he had
been after Smas al about this for a day and a half. Smasal then told Heetland that "if you are
going to have that kind of attitude, you just go home." (Tr. 20). When Heetland asked if he
could operate other equipment, Smasal told him to go home.
When Heetland arrived at his house, he left a message that he wanted to talk to Rick
Miller, a superintendent with Smasal Aggregates. In the early afternoon, Miller arrived at
Heetland's house. Heetland testified that Miller told him that he would be better off if he worked
somewhere else and he tried to talk him into quitting. (Tr. 22). When Heetland refused to quit,
Miller told him that the company did not have a position for him anymore. When ~eetland
asked him why, he was told that he did not get along with management and he was too abusive to
equipment. Id.
Heetland called MSHA on July 28 about the conditions described above. He filed his
complaint of discrimination with MSHA in August 15, 2005. He did not ask for temporary
reinstatement at that time because he did not want to work under the same conditions. (Tr. 26).
When he heard that the crew was no longer working near the edge of the highwall, he asked
MSHA to seek temporary reinstatement.

27 FMSHRC 876

II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Section 105(c)(2) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [MineJ Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as.a result of their participation." S. Rep. No.
181, 951h Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 623 (1978) ("Legis. Hist.'-').
Section 105(c)(2) provides, in pertinent part, that the Secretary shall investigate each
complaint of discrimination "and if the Secretary finds that such complaint was not frivolously
brought, the Commission, on an expedited basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending final order on the complaint." The Commission
established a procedure for making this determination at 29 C.F.R. § 2700.45. Subsection (d)
provides that the "scope of a hearing on an application for temporary reinstatement is limited to a
determination as to whether the miner's complaint was frivolously brought."
''The scope of a temporary reinstatement proceeding is narrow, being limited to a
determination by the judge as to whether a miner's discrimination complaint is frivolously
brought." Secretary of Labor on behalfof Price v. Jim Walter Resources, Inc. , 9 FMSHRC
1305, 1306 (Aug. 1987), a.ff' d sub nom. Jim Walter Resources Inc. v. FMSHRC, 920 F.2d 738
(11th Cir. 1990). Courts and the Commission have equated the "not frivolously brought"
standard contained in section105(c)(2) of the Mine Act with the "reasonable cause to believe
standard" at issue in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). It has also been
equated with "not insubstantial." Jim Walter Resources, 920 F.2d at 747. Congress indicated
that a complaint is not frivolously brought if it "appears to have merit." (Legis. Hist. at 624-25).
The Commission has frequently acknowledged that it is often difficult to establish a
"motivational nexus between protected activity and the adverse action that is the subject of the
complaint." Sec'y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.
1999). Applicant relies on the proximity in time between safety complaints and his termination,
Smasal Aggregates' knowledge of his safety complaints, and the words that were spoken
between Heetland and mine management. (Tr. 59-60). The Secretary contends that she
established that the discrimination complaint was not frivolously brought.
Smasal Aggregates contends that the Applicant's discrimination complaint is frivolous on
the basi~ physical facts presented during the hearing. (Tr. 60). Heetland testified that he was
often working near the outside perimeter wall as he was excavating "which means that the ability
for his excavator to slide forward and into a lower level was virtually nil." I(i.. Smasal
Aggregates also maintains that Heetland's complaint concerning the safety of the truck roadway
27 FMSHRC 877

lacked merit because he does not have any direct know ledge ~f those conditions. His complaint
also assumes that one of the haul trucks will suffer a mechanical failure and he presented no
evidence that the trucks had any mechanical problems. Smasal Aggregates asks that ·this
temporary reinstatement case be dismissed.
I find that the applicant established that the underlying discrimination complaint was not
frivolously brought. Heetland' s safety concerns about the position of his track hoe relative to the
edge of the highwall were "not insubstantial" and they "appear to have merit." I find that the
Secretary established that Heetland had an ho!J.est, good faith belief that his operation of the track
hoe near the edge of the highwall on July 27 and 28 put him in serious danger. Whether there
was no possibility of sliding when he was working immediately adjacent to the outside perimeter
wall remains to be seen. Moreover, Heetland also had to work near the edge of the highwall
when he was not adjacent to the outsid~ perimeter wall. After Heetland continued to complain to
management about his safety concerns, he was sent home and was told that the company no
longer had a position for him. I base my decision in this case entirely on Heetland's evidence
concerning the working conditions for the track hoe and I have not considered his testimony
concerning safety hazards on the roadway used by the haul truck drivers.

ill. ORDER
For the reasons set forth above, Smasal Aggregates & Asphalt, !LC, is hereby
ORDERED to immediately reinstate Jay Heetland to the position he held prior to his termination
from employment on July 28, 2005, at the same rate of pay and benefits for that position, or to a
similar position with the same or equival_e nt duties, at the same rate of pay and benefits. The
Secretary SHALL COMPLETE as quickly as possible her investigation of the underlying
discrimination complaint.

Richard W. Manning
Administrative Law Judge
Distribution:
Lydia Tzagoloff, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Fax 303-844-1753 and Certified Mail)
Robert C. Johnson, Esq., Husch & Eppensberger, I.LC., 1200 Main Street, Suite 2300, Kansas
City, MO 64105-2122 (Fax 816-421-0596 and Certified Mail)
RWM
27 FMSHRC 878
G:X:)· U.S. GO VERNMENT PRINTING O FFICE: 2005-320-961/25306