March 2012
TABLE OF CONTENTS
COMMISSION DECISIONS AND ORDERS
3-02-2012

SKYLINE DREDGING AND
EXCAVATING, INC.

WEST 2010-1412-M

Page 533

3-02-2012

MMR CONSTRUCTORS, INC.

CENT 2010-760-M

Page 536

3-07-2012

BILL SIMOLA, employed by UNITED
TACONITE LLC

LAKE 2010-128-M

Page 539

3-13-2012

SAN JUAN COAL COMPANY

CENT 2009-545

Page 553

3-13-2012

BLEDSOE COAL CORPORATION

KENT 2010-1014

Page 556

3-13-2012

RES COAL, LLC

PENN 2010-426

Page 559

3-13-2012

CENTRAL STATE AGGREGATES, LLC

SE 2010-710-M

Page 562

3-13-2012

THOMPSON CREEK MINING COMPANY

WEST 2010-1633

Page 565

3-13-2012

LEHIGH SOUTHWEST CEMENT
COMPANY

WEST 2011-1463-M

Page 568

3-23-2012

CONSHOR MINING, LLC

KENT 2008-562

Page 571

3-29-2012

SAPPHIRE COAL COMPANY

KENT 2011-906

Page 574

ADMINISTRATIVE LAW JUDGE DECISIONS
3-05-2012

HATCH ENTERPRISES, INC.

SE 2010-341-M

Page 577

3-07-2012

PERFORMANCE COAL COMPANY and
NUMEROUS FORMER MASSEY MINES
And their successors

WEVA 2011-1934

Page 587

3-07-2012

OAK GROVE RESOURCES, LLC

SE 2010-1236

Page 594

3-12-2012

PALMER COKING COAL CO., LLP

WEST 2008-934-M

Page 620

3-14-2012

LOUDOUN QUARRRIESDIV/CHANTILLY CRUSHED STONE INC.

VA 2011-268

Page 643

3-16-2012

MINING & PROPERTY SPECIALISTS

VA 2010-585-R

Page 655

3-20-2012

NORTHSHORE MINING COMPANY

LAKE 2010-612-M

Page 663

i

3-26-2012

BLACK BEAUTY COAL COMPANY

LAKE 2008-669-R

Page 677

3-27-2012

BANNER BLUE COAL COMPANY

VA 2010-367

Page 723

3-30-2012

FLORIDA ROCK INDUSTRIES, INC.

SE 2010-401-M

Page 745

ADMINISTRATIVE LAW JUDGE ORDERS
3-29-2012

MCMURRY READY MIX COMPANY

ii

WEST 2011-687-M

Page 767

Review was granted in the following case during the month of March 2012:
Secretary of Labor, MSHA v. Black Beauty Coal Company, Docket No. LAKE 2008-378-R,
et al. (Judge Feldman, February 10, 2012)

Review was denied in the following cases during the month of March 2012:
Secretary of Labor, MSHA v. Pine Ridge Coal Company, Docket No. WEVA 2008-1623.
(Judge Paez, January 31, 2012)
Secretary of Labor, MSHA v. Titan Constructors, Inc., Docket Nos. WEST 2010-53-M,
WEST 2010-54-M. (Judge Manning, February 7, 2012)

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COMMISSION DECISIONS AND ORDERS

34 FMSHRC Page 532

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

March 2, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
SKYLINE DREDGING
AND EXCAVATING, INC.

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Docket No. WEST 2010-1412-M
A.C. No. 24-02140-220439 Q031

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On September 13, 2011, the Commission received from
Skyline Dredging and Excavating, Inc. (“Skyline”) a motion seeking to reopen a penalty
assessment proceeding and relieve it from the order of default entered against it.
On March 18, 2011, Chief Judge Lesnick issued an Order to Show Cause and Order of
Default in response to Skyline’s failure to answer the Secretary’s August 6, 2010 Petition for
Assessment of Civil Penalty. The judge ordered the operator to file its answer within 30 days or
it would be in default. The Commission did not receive Skyline’s answer within 30 days, so the
order of default became effective on April 18, 2011.
Skyline asserts that it did not receive the Order to Show Cause or the Secretary’s
previously filed Petition for Assessment of Civil Penalty because they were sent to the wrong
mailing address. The Secretary does not oppose the motion to reopen, but notes that Skyline
changed its address of record on April 6, 2011, after the petition and order were sent to the
previous address.

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Having reviewed Skyline’s request and the Secretary’s response, in the interest of justice,
we conclude that the Order of Default has not become a final order of the Commission because
the Order to Show Cause was never received by Skyline. Accordingly, this case is remanded to
the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Skyline shall file an Answer to the Show
Cause Order within 30 days of the date of this order.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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Distribution:
Rhonda Hoon
Skyline Dredging & Excavating Inc.
P.O. Box 1849
Columbia Falls, MT 59912
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

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

March 2, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
MMR CONSTRUCTORS, INC.

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Docket No. CENT 2010-760-M
A.C. No. 03-00256-217706

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On October 5, 2011, the Commission received from MMR
Constructors, Inc. (“MMR”) a motion seeking to reopen a penalty assessment proceeding and
relieve it from the order of default entered against it.
On May 3, 2011, Chief Judge Lesnick issued an Order to Show Cause which by its terms
became an Order of Default if the operator did not file an answer within 30 days. This Order to
Show Cause was issued in response to MMR’s failure to answer the Secretary’s October 21,
2010 Petition for Assessment of Civil Penalty.
MMR asserts that it did not receive the Show Cause Order until October 5, 2011, and that
it was in the process of negotiating a settlement agreement with MSHA. The Secretary
originally opposed the motion. However, the Secretary subsequently withdrew her opposition,
and requested that this case be reopened for the limited purpose of allowing the parties to submit
their settlement agreement for approval pursuant to section 110(k) of the Mine Act, 30 U.S.C.
§ 820(k).

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Having reviewed MMR’s request and the Secretary’s response, in the interest of justice,
we grant MMR’s motion and remand this case to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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Distribution:
Holly Hollis
Corporate Counsel
MMR Group, Inc.
P.O. Box 84210
Baton Rouge, LA 70884
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

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

March 7, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
BILL SIMOLA, employed by
UNITED TACONITE LLC

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Docket No. LAKE 2010-128-M

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
DECISION
BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), Administrative Law Judge Jerold
Feldman determined that Bill Simola, an agent of a limited liability company (“LLC”), could be
liable under Mine Act section 110(c).1 32 FMSHRC 421, 424 (Apr. 2010) (ALJ). Pursuant to
29 C.F.R. § 2700.76, Simola sought interlocutory review of the judge’s determination. The
judge certified the matter for interlocutory review, 32 FMSHRC 707, 708 (May 2010) (ALJ),
which the Commission granted. For the reasons that follow, we affirm the judge’s
determination.

1

Section 110(c) of the Mine Act provides, in pertinent part:
Whenever a corporate operator violates a mandatory health or
safety standard . . . , any director, officer, or agent of such
corporation who knowingly authorized, ordered or carried out such
violation, . . . shall be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under
subsections (a) and (d) of this section.

30 U.S.C. § 820(c).
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I.
Factual and Procedural Background
United Taconite, LLC (“United Taconite”) operates the United Plant in Minnesota.
United Taconite is an LLC organized under the laws of the state of Delaware. 32 FMSHRC at
422.
On October 1, 2008, the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) issued a citation and an order to United Taconite under Mine Act section 104(d)(1),
30 U.S.C. § 814(d)(1). Citation No. 6407901 (“the citation”) was issued for an alleged
significant and substantial (“S&S”)2 violation of 30 C.F.R. § 56.11001, which requires that a
safe means of access shall be provided and maintained in all working places.3 Order No.
6407902 (“the order”) alleged an S&S violation of 30 C.F.R. § 56.14107(a), which requires that
moving machine parts shall be guarded to protect persons from injury.4 The Secretary alleged
2

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.”
3

Citation No. 6407901 alleged, in pertinent part:
A safe means of access was not provided to conduct the
maintenance project of replacing the #2 roll motor/reducer unit on
the line 1 roll feeder. This project required a maintenance
mechanic to climb on top of the roll feeder, stand on round smooth
parallel rolls which were at about a 15 degree angle and use a pry
bar to gain clearance to slide the unit from the shaft. The adjacent
#18 reciprocating conveyor was running with the travel rail about
4 feet above the roll feeder surface and with in arms reach of
where the maintenance mechanic was standing using the pry bar.
Pellet Plant Coordinator Bill Simola engaged in aggravated
conduct constituting more than ordinary negligence in that he was
standing on a walkway about 10 feet away observing the project
and equipment in motion and did not ensure the safety of the
miners.

4

Order No. 6407902 alleged, in pertinent part:
A guard was not provided for the south side of the #18
reciprocating conveyors travel rail and wheel to protect persons
from contact with the moving machine parts. . . . Pellet Plant
(continued...)
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that both violations were the result of United Taconite’s unwarrantable failure to comply with
the standards.5
At all relevant times, Bill Simola was the Pellet Plant Coordinator for United Taconite.
On December 21, 2009, the Secretary issued a petition for assessment of civil penalties pursuant
to section 110(c) of the Mine Act seeking to impose personal liability against Simola, as an
agent of United Taconite, for the violations alleged in the citation and order. 32 FMSHRC
at 421.
Simola contested the proposed penalty assessment. He subsequently filed a motion for
summary decision in which he maintained that section 110(c) does not apply to directors,
officers, or agents of an LLC.6
On April 6, 2010, the judge issued an order dismissing Simola’s motion. 32 FMSHRC
421. Construing the motion for summary decision as a motion to dismiss, the judge determined
that the Mine Act was silent on the question of whether agents of LLCs could be held liable
under section 110(c) because the “operation of mines as LLC entities occurred after the
legislation was adopted.” Id. at 422-23. Finding the Mine Act silent on the question, he
deferred to the Secretary’s interpretation of the Mine Act, which treats agents of LLCs the same
as agents for corporations. Id. at 423. In so doing, the judge determined that since “the purpose
of section 110(c) is to pierce corporate-like liability shields, the Secretary’s interpretation that
the provisions of section 110(c) apply to agents of mine operators as . . . limited liability
companies is manifestly reasonable and consistent with the intent of the legislation.” Id.

4

(...continued)
Coordinator, Bill Simola engaged in aggravated conduct
constituting [] more than ordinary negligence in that he was
standing on a walkway about 10 feet away observing the project
and equipment in motion and did not ensure the safety of the
miners.

5

The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, 30
U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused by
“an unwarrantable failure of [an] operator to comply with . . . mandatory health or safety
standards.”
6

Throughout this decision, we will refer only to “agents” of LLCs rather than repeating
“directors, officers, or agents” in each instance. However, the same principles of liability would
apply to directors and officers of LLCs as well.
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II.
Disposition
Simola argues that the language of section 110(c) plainly applies only to agents of
corporations. He asserts that because the Mine Act is clear and unambiguous on this point,
effect must be given to the plain language. Simola relies on Guess, employed by Pyro Mining
Co., 15 FMSHRC 2440, 2442-43 (Dec. 1993), aff’d sub nom. Sec’y of Labor v. Shirel, 52 F.3d
1123 (D.C. Cir. 1995), which he argues held that the Mine Act provides for individual liability of
agents of corporate operators only. He contends that the judge erred because LLCs are not the
same as corporations. Simola also disputes the validity of the Secretary’s 2006 interpretive rule,7
which took the position that agents of LLCs should be treated as agents of corporations. Simola
also maintains that because Congress has had two chances to revise section 110(c) since the
Mine Act’s enactment, but has not done so, Congress has in effect validated the present
language, which applies only to corporate agents.
The Secretary responds that section 110(c) is silent or ambiguous on the issue of whether
it applies to agents of LLCs. She asserts that Congress did not express and “could not have
expressed, any intent with respect to agents of LLCs because, when Congress enacted section
110(c), LLCs effectively did not exist.” Sec’y Br. at 6, 15. The Secretary maintains that because
Congress expressed no intent with respect to agents of LLCs, the question becomes whether her
interpretation is reasonable. The Secretary submits that her interpretation is reasonable, claiming
that her interpretation is consistent with the history and purpose of section 110(c) and that the
terms “corporate operator” and “such corporation” in section 110(c) can reasonably be read to
encompass LLCs. Moreover, the Secretary explains that LLCs generally create the same sort of
shield against personal liability that led Congress to impose personal liability on the agents of
corporations. Accordingly, she argues that the same situations that warrant reaching behind the
corporate shield warrant piercing the LLC shield.
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 Res. Defense Council, Inc., 467 U.S.
837, 842 (1984). If a statute is clear and unambiguous, effect must be given to its language. Id.
at 842-43. Deference to an agency’s interpretation of the statute may not be applied “to alter the
clearly expressed intent of Congress.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)
(citations omitted). Traditional tools of construction, including examination of a statute’s text
and legislative history, may be employed to determine whether “Congress had an intention on
the precise question at issue,” which must be given effect. Coal Employment Project v. Dole,
889 F.2d 1127, 1131 (D.C. Cir. 1989) (citations omitted). The examination to determine

7

MSHA issued an interpretive rule on July 10, 2006, providing that “agents of LLCs
may be held personally liable under Section 110(c) of the Mine Act.” 71 Fed. Reg. 38902,
38903 (July 10, 2006).
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whether there is a clear Congressional intent is commonly referred to as a “Chevron I” analysis.
Id.; see Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996); Keystone Coal Mining
Corp., 16 FMSHRC 6, 13 (Jan. 1994).
If, however, the statute is ambiguous or silent on a point in question, a second inquiry,
commonly referred to as a “Chevron II” analysis, is required to determine whether an agency’s
interpretation of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin,
18 FMSHRC at 584 n.2; Keystone, 16 FMSHRC at 13. Deference is accorded to “an agency’s
interpretation of the statute it is charged with administering when that interpretation is
reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994). The
agency’s interpretation of the statute is entitled to affirmance as long as that interpretation is one
of the permissible interpretations the agency could have selected. See Joy Technologies, Inc. v.
Sec’y of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997); Thunder
Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).
A.

Whether Congress directly addressed the question of whether agents of
LLCs can be liable under section 110(c) of the Mine Act.

Section 110(c) of the Mine Act states in relevant part:
Whenever a corporate operator violates a mandatory health
or safety standard . . . , any director, officer, or agent of such
corporation who knowingly authorized, ordered or carried out such
violation, . . . shall be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under
subsections (a) and (d) [of this section.]
30 U.S.C. § 820(c).
The initial step under a Chevron I analysis is to decide whether Congress directly
addressed the question of whether an agent of an LLC can be held liable under section 110(c).
That provision states that agents of corporations can be held personally liable, but does not
mention agents of LLCs. However, it is important to recognize that Congress could not have
been expected to expressly mention LLCs in section 110(c) because LLCs did not effectively
exist in 1977 when Congress passed the Mine Act.8 Although the legislative history of section

8

The Secretary’s interpretive rule provides the following background on LLCs:
The LLC is a hybrid business entity first recognized in 1977 by the
State of Wyoming. LLCs did not attain any significant popularity
until 1988, however, when the Internal Revenue Service
announced that LLCs could be taxed as partnerships despite their
(continued...)
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110(c) provides valuable guidance as to Congressional intent in passing the provision, the
legislative history likewise does not directly address liability for agents of LLCs.
Simola articulates the issue differently, asking “whether Congress expressed the intent
that section 110(c) be limited to agents of corporations?” Sim. Br. at 10; Reply Br. at 2-3. By
positing the question in this manner, and defining “corporation” pursuant to Delaware state law,9
Simola attempts to persuade us that the clear language of section 110(c) applies only to agents of
typical corporations and not to agents of business entities that share corporate attributes such as
an LLC. Sim. Br. at 6. Relying on the Commission’s decision in Guess, Simola argues that
“[t]he inapplicability of section 110(c) to agents of business entities other than corporations is
well settled,” id. at 4, and since under Delaware law, corporations are clearly distinguished from
limited liability companies, the plain meaning of section 110(c) would preclude application to
agents of LLCs. Id. at 5. However, even if we were to frame the question in the manner that
Simola suggests, we cannot agree that the use of the word “corporation” in this section of the
Mine Act may only be read one way – that is, consistent with the definition of “corporation” as
codified by one state.10
The terms “corporate officer” and “corporation” are not defined in the Mine Act. In the
absence of a statutory or regulatory definition of a term, the Commission applies the ordinary
meaning of that term. E.g., Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec. 2006). In
Webster’s Third New International Dictionary 510 (1993) “corporation” is defined as “a group
of persons or objects treated by the law as an individual or unity having rights or liabilities
distinct from those of the persons or objects composing it.” This definition also applies to LLCs
(but not to partnerships), because of the limited liability shield. Thus, the term “corporate
officer” in the Mine Act can be read to include operators of entities which are corporate in
nature. Stated differently, the text of section 110(c) does not preclude the inclusion of LLCs in
the definition of the word “corporation.”
8

(...continued)
corporation-like liability shield. When the IRS announced in 1997
that LLCs could elect pass-through taxation without regard to the
number of corporation-like characteristics they possessed, the
number of LLCs grew dramatically.

71 Fed. Reg. at 38904.
9

As noted by Judge Feldman, United Taconite is a limited liability company organized
under the laws of the state of Delaware. 32 FMSHRC at 707.
10

Business entities, such as corporations and LLCs, are normally chartered and defined
by the laws of the various states. It would be illogical to allow a state’s definition to control
application of a comprehensive federal law, such as the Mine Act, and to provide a safe haven
from its reach. Accordingly, it is important to examine the actual characteristics of a business
entity rather than just relying on the state-derived definition.
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Where dictionary definitions are relied upon to establish the meaning of a term, and those
definitions show that a term is open to alternative interpretations, the Commission has found the
term to be ambiguous. See Wolf Run Mining Co., 32 FMSHRC 1669, 1680 (Dec. 2010); Island
Creek Coal Co., 20 FMSHRC 14, 19 (Jan. 1998). Similarly, in National Cement Co. of
California, 494 F.3d 1066 (D.C. Cir. 2007), appeal after remand, 573 F.3d 788 (D.C. Cir. 2009),
the D.C. Circuit rejected the Secretary of Labor’s argument that the Mine Act’s jurisdictional
definition of “mine” was clear and unambiguous because both of the relevant statutory terms
used in that section (“private” and “appurtenant to”) were ambiguous under their respective
dictionary definition. 494 F.3d at 1074-75. Consistent with these precedents, we conclude that a
Chevron I “plain meaning” analysis does not apply here, due to the different possible
interpretations of the dictionary definition of “corporation.”
Moreover, Simola reads too much into the Commission’s decision in Guess. In that case,
the Commission rejected the Secretary’s attempt to extend section 110(c) to an agent of a
partnership. 15 FMSHRC at 2443. We concluded that the entity in question was in fact a
partnership, despite its being composed of two corporations. Our acknowledgment of section
110(c)’s application to corporations can hardly be construed as excluding LLCs, since in that
case we had no occasion to consider an entity such as an LLC.
The agent of a limited liability company, like the agent of a corporation, (and unlike the
agent of a partnership) is shielded from personal liability. Although LLCs are hybrid entities, it
is undisputed that LLCs possess the distinctive corporate quality of limited liability, which
Congress specifically intended to address when it enacted section 110(c).
It is important to emphasize that Congress could not have been expected to expressly
mention LLCs in section 110(c) because LLCs did not effectively exist in 1977 when the Mine
Act was enacted. Thus, while it can be said that Congress rejected partnerships from the ambit
of section 110(c), it cannot be said that Congress rejected a structure such as a limited liability
company.11 Put another way, the word “corporation,” as used in the statute, cannot reasonably
be read to include partnerships, but it can reasonably be read to include LLCs.
Hence, examination of the text and legislative history of section 110(c) does not result in
a conclusion that narrowing the definitions of “corporate operator” and “corporation” to how
those terms were used in the Delaware law of corporations in 1977 is the only required
interpretation of the terms. See Bell Atlantic Telephone Co. v. FCC, 131 F.3d 1044, 1049 (D.C.
Cir. 1997). Accordingly, we conclude that section 110(c) is ambiguous or silent on the issue of
whether an agent of an LLC may be held personally liable under the Mine Act.

11

The status of LLCs under section 110(c) has become a significant issue under the
Mine Act because, in recent years, the number of mine operators organized as LLCs has steadily
increased. As of 2006, according to MSHA records, 782 of the nation’s 7287 active mine
operators – approximately 10 percent – identified themselves as LLCs. A number of the nation’s
large operators are LLCs. 71 Fed. Reg. at 38904.
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B.

Whether the Secretary’s interpretation of section 110(c) is reasonable and
entitled to deference.

As explained above, supra, at 5, in cases such as this, where the Mine Act is silent or
ambiguous, the Commission must undertake a Chevron II analysis to determine whether the
Secretary’s interpretation is a reasonable and permissible construction of the statute. 467 U.S. at
843; see also NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S.
251, 257 (1995) (providing that courts will give “controlling weight” to the interpretation of the
agency charged with enforcement of a statutory provision which “fills a gap or defines a term in
a way that is reasonable in light of the legislature’s revealed design”); Wamsley v. Mutual
Mining, Inc., 80 F.3d 110, 115 (4th Cir. 1995) (providing that when the Act is silent on an issue,
the Secretary’s interpretation which reasonably effectuates the health and safety goals of the Act
is controlling).
The Secretary maintains that section 110(c) should be interpreted as providing that an
agent of an LLC may be liable for civil penalties under that subsection. Among other things, the
Secretary points to her 2006 interpretive rule in which she concluded that agents of LLCs should
be personally liable under section 110(c) to the same extent as agents of corporations. 71 Fed.
Reg. 38902.
The legislative history underlying section 110(c) supports the Secretary’s interpretation.
Section 110(c) was carried over without significant change from section 109(c) of the Federal
Coal Mine Health and Safety Act of 1969 (“Coal Act”). 30 U.S.C. § 819(c) (1969). In passing
section 109 of the Coal Act, Congress explained that it wanted to impose liability on individual
agents of corporate operators in order to “penetrat[e] the corporate shield,” stating:
The committee expended considerable time in discussing the role
of an agent of a corporate operator and the extent to which he
should be penalized and punished for his violations of the act . . . .
It was ultimately decided to let the agent stand on his own and be
personally responsible for any penalties or punishment meted out
to him . . . . The committee chose to qualify the agent as one who
could be penalized and punished for violations, because it did not
want to break the chain of responsibility for such violations after
penetrating the corporate shield.
H.R. Rep. No. 91-563, at 11-12 (1969), reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Part I Legislative History of the Federal Coal Mine and Health and Safety Act of
1969, at 1041-42 (1975) (“Coal Act Leg. Hist.”).
In later passing section 110(c) of the Mine Act, Congress stated that it intended to hold
individual officials as well as corporate entities responsible for violations in order to induce
greater compliance with the Mine Act:

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“[s]ince the basic business judgments which dictate the method of
operation of a coal mine are made directly or indirectly by persons
at various levels of corporate structure, [the provision for
assessment of civil penalties is] necessary to place the
responsibility for compliance with the Act and the regulations, as
well as the liability for violations on those who control or
supervise the operation of coal mines as well as on those who
operate them.” In short, the purpose of a civil penalty is to induce
those officials responsible for the operation of a mine to comply
with the Act and its standards.
S. Rep. No. 95-181, at 40-41 (1977) (quoting S. Rep. No. 91-411, at 39, reprinted in Coal Act
Leg. Hist. at 165), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 628-29 (1978).
The Sixth Circuit explained that section 110(c)’s legislative history demonstrated
Congressional intent to provide an additional compliance incentive to certain employees
working within a corporate structure:
In a noncorporate structure, the sole proprietor or partners are
personally liable as “operators” for violations; they cannot pass off
these penalties as a cost of doing business as a corporation can.
Therefore, the noncorporate operator has a greater incentive to
make certain that his employees do not violate mandatory health or
safety standards than does the corporate operator. Subsection
[110(c)] attempts to correct this imbalance by giving the corporate
employee a direct incentive to comply with the Act.
Richardson v. Sec’y of Labor, 689 F.2d 632, 633-34 (6th Cir. 1982), aff’g, Kenny Richardson, 3
FMSHRC 8 (Jan. 1981), cert. denied, 461 U.S. 928 (1983). Thus, Congress intended to impose
personal liability on corporate agents through section 110(c) because otherwise those agents
would generally be protected from liability by the corporate shield and have a reduced incentive
to comply with the Act. Richardson, 689 F.2d at 633-34.
With regard to the question of whether an agent of an LLC should be treated as an agent
of a corporation for purposes of section 110(c), we note that there is universal agreement that an
LLC possesses the distinguishing corporate characteristic of limited liability.12 Moreover, courts

12

See Ruffin v. New Destination, LLC, 773 F. Supp.2d 34, 40 (D.D.C. 2011) (holding that
the general rule that a corporation is regarded as an entity separate and distinct from its
shareholders applies to LLCs); Callison, J. William & Sullivan, Maureen A., Limited Liability
Companies: A State-by-State Guide To Law and Practice § 2:6 (2010) (providing that the
(continued...)
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that have addressed the question whether LLCs should be categorized as corporations have
concluded that this limited liability characteristic may require an LLC to be treated like a
corporation when a statute is silent as to its applicability.
For example, in Meyer v. Oklahoma Alcoholic Beverage Laws Enforcement Comm., 890
P.2d 1361, 1362 (Okla. Ct. App. 1995), the court addressed the issue of whether an LLC was
eligible for a liquor license when the Oklahoma Constitution prohibited corporations from
obtaining liquor licenses but permitted partnerships to acquire them. Noting that this was an
issue of first impression because LLCs had not been in existence at the time of the state
constitution’s enactment, the court ruled that “limitation of liability” was the substantial
characteristic that made the LLC fall under the prohibition against corporate license holders.
890 P.2d at 1363-64. The court reasoned that “business forms that did not ensure such personal
responsibility were excluded from eligibility for licensing.” Id. at 1364. Accordingly, the court
treated the LLC like a corporation even though the Oklahoma constitution limited the exclusion
to a “corporation.” In doing so, the Court stated that the “most important feature” of the LLC is
“the limitation of liability of its members.” Id.
Additionally, “given the similar liability shields that are provided by corporations and
LLCs,” most courts apply corporate law standards to pierce the liability shields of LLCs.
NetJets Aviation, 537 F.3d at 176 (applying Delaware law); see also Ruffin, 773 F. Supp.2d at 40
(providing that the general rule that a corporation is regarded as an entity separate and distinct
from its shareholders applies to LLCs and corporate veil piercing principles apply to the LLC
shield). In McWilliams Ballard, Inc. v. Broadway Mgmt Co., 636 F. Supp.2d 1, 8 (D.D.C. 2009),
the court determined that members of an LLC could be held liable under the corporate doctrine
of piercing the limited liability shield. Accord Taurus IP, LLC v. DaimlerChrysler Corp., 534 F.
Supp.2d 849, 871 (W.D. Wis. 2008) (providing that the corporate veil of a corporation and of a
limited liability company may be pierced when the corporate fiction is used as a means of
perpetrating fraud).13

12

(...continued)
limited liability protection, deriving from a corporation’s nature as a separate legal entity apart
from its members, makes the corporation similar to the LLC). An LLC is an entity that provides
“tax benefits akin to a partnership and limited liability akin to the corporate form.” NetJets
Aviation, Inc. v. LHC Communications, LLC, 537 F.3d 168, 176 (2d Cir. 2008) (citations
omitted); In re Wolverine, Proctor & Schwartz, LLC, 447 B.R. 1, 35 n.26 (Bankr. D. Mass.
2011) (providing that an LLC is a hybrid business entity that offers its members limited liability
as if they were shareholders of a corporation, but treats the entity and its members as a
partnership for tax purposes).
13

Simola argues that case law demonstrates that in other contexts, LLCs are not treated
as corporations. Sim. Br. at 7. None of the three cases cited by Simola are particularly relevant
here, in that they all involve the question of whether an LLC is treated as a corporation for
(continued...)
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Because of the clear legislative intent to pierce the corporate veil and reach agents who
were shielded by limited liability, it is reasonable to conclude that Congress, if given the
opportunity, would have explicitly included LLCs within the scope of section 110(c) as entities
that shield their agents from personal liability.14 Accordingly, it is reasonable to construe section
110(c) as including LLCs within the scope of the liability scheme.
We also note that
[l]egislation is often written in terms broad enough to cover many
situations which could not be anticipated at the time of enactment.
. . . So a statute, expressed in general terms and written in the
present or future tense, will be applied not only to existing things
and conditions, but also prospectively to future things and
conditions. . . . The rule that a statute will operate prospectively . .
. has received frequent application in situations where automobiles
are included in pre-automobile statutes enacted for stage coaches
and carriages. Likewise, radio performances have been held to
come within the meaning of copyright laws, talking pictures have
been held to come within the terms of statutes applying to films,
and telephones have been included within statutes applying to the
telegraph.
Norman J. Singer & J.D. Shambie Singer, 2A Sutherland Statutory Construction, § 49.2 (7th ed.
2008).

13

(...continued)
purposes of diversity jurisdiction under 28 U.S.C. § 1332. General Tech v. Exro LTDA, 388
F.3d 114, 121 (4th Cir. 2004); GMAC Commercial Credit, L.L.C., v. Dillard Dept. Stores, Inc.,
357 F. 3d 827 (8th Cir. 2004); Cosgrove v. Bartolotta, 150 F.3d 729 (7th Cir. 1998). Diversity
jurisdiction cases are inapposite to the situation here, which involves a statute whose purpose is
to pierce a corporate shield so as to impose potential personal liability where public safety and
health is at stake.
14

Simola contends that Congress has effectively ratified its position to restrict section
110(c) to corporations after the rise of LLCs because the Mine Act was revised in 1990 and 2006
and nothing was done to amend that section. We disagree. Neither amendment had anything to
do with the scope of section 110(c), and we decline to read any significance into Congress’
revisions of the Act. Brown v. Gardner, 513 U.S. 115, 121 (1994) (holding that when there is no
evidence to suggest that Congress was even aware of an issue, the re-enactment of the legislation
is without significance); see also Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)
(stating that “[w]e do not read the enumeration of one case to exclude another unless it is fair to
suppose that Congress considered the unnamed possibility and meant to say no to it.”).
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An early Florida Supreme Court case, Taylor v. Roberts, 84 Fla. 654 (1922), is
illustrative of this point. There, the plaintiff challenged an automobile parking violation on the
basis that the ordinance that authorized the regulation of parking only dealt with “hackney
carriages, carts, omnibuses, wagons and drays.” Id. at 657. Automobiles were not in use when
the ordinance was passed. Id. The court ruled, however, that the ordinance evidenced an intent
to regulate “all the then known classes of vehicles using the streets, and the subsequent use of the
streets by a new and different kind of vehicle warrants the extension . . . to the . . . automobile.”
Id.; see also Cain v. Bowlby, 114 F.2d 519, 522 (10th Cir. 1940) (holding that “it is a general
rule in the construction of statutes that legislative enactments . . . apply to persons, subjects and
businesses within their general purview and scope, though coming into existence after their
passage, where the language fairly includes them”). Likewise, because Congress, at the time of
the Mine Act enactment, was including within the purview of section 110(c) all known entities
that shielded its agents from personal liability, it is logical to extend the reach to LLCs, who
share the limited liability shield with corporations.
Similarly, in People of Puerto Rico v. Shell Co. (P.R.), Limited, 302 U.S. 253 (1937), the
Supreme Court considered whether the phrase “territory of the United States” in section 3 of the
Sherman Anti-Trust Act of 1890, 15 U.S.C. § 3, applied to Puerto Rico, an insular dependency,
given that insular dependencies of the United States did not exist when the Sherman Act was
enacted. In holding that Puerto Rico was a “territory” within the meaning of section 3 of the
Sherman Act, the Court said: “Words generally have different shades of meaning, and are to be
construed if reasonably possible to effectuate the intent of the lawmakers; and this meaning in
particular instances is to be arrived at not only by a consideration of the words themselves, but
by considering, as well, the context, the purposes of the law, and the circumstances under which
the words were employed.” Id. at 258. The same principle applies to the Secretary’s
interpretation of the words “corporate operator” and “corporation” in this case.
In addition, the Secretary’s interpretation furthers the safety and remedial goals of the
Mine Act by giving operators a “greater incentive” to comply with the Mine Act. Richardson,
689 F.2d at 633-34. Congress intended the Act to be liberally construed to achieve its primary
purpose, which is to protect the miner. Cannelton Industries, Inc., 867 F.2d 1432, 1437 (D.C.
Cir. 1989). In contrast, Simola’s interpretation excluding agents of LLCs would result in
piecemeal enforcement of responsible agents – allowing some to hide behind a limited liability
shield while other can be cited. See Alcoa Alumina & Chemicals, LLC, 23 FMSHRC 911, 916
(Sept. 2001) (rejecting operator’s interpretation that would have resulted in piecemeal
enforcement).
We conclude that the Secretary’s interpretation, which holds agents of LLCs personally
liable under section 110(c), is consistent with the text of section 110(c) in that section 110(c)
applies to corporate operators and the limited liability shield of an LLC is a corporate
characteristic. The Secretary’s interpretation also is fully consistent with the legislative history,
which indicates that Congress sought to pierce the corporate shield to impose personal liability
on responsible agents that otherwise would not have a personal incentive to comply with the
Mine Act. LLCs share the limited liability shield with corporations and, unlike in partnerships,
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the responsible individuals would be able to evade personal liability because of this limited
liability. The liability shield of LLCs brings the agents of LLCs within the ambit of section
110(c). In light of the purpose of the Mine Act and the legislative history of section 110(c), the
Secretary’s interpretation is reasonable and consistent with the safety-promoting goals of the
statute. We conclude that agents of LLCs may be personally liable for civil penalties under
section 110(c).
III.
Conclusion
For the reasons set forth above, we hereby affirm the judge’s order denying Simola’s
motion to dismiss. We direct that the case proceed pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan.
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
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Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2228
Arlington, VA 22209
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

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

March 13, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
SAN JUAN COAL COMPANY

:
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:

Docket No. CENT 2009-545
A.C. No. 29-02170-188587

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On August 22, 2011, the Commission received from San
Juan Coal Co. (“San Juan Coal”) a motion submitted by counsel seeking to reopen a penalty
assessment proceeding and relieve it from the settlement decision entered against it.
On August 20, 2010, Chief Administrative Law Judge Lesnick issued a Decision
approving a partial settlement for citation Nos. 7290226 and 7290228.1 San Juan Coal asserts
that the partial settlement decision was mistakenly applied to the entire case No. 000188587.
San Juan Coal further states that it maintains its desire to contest the two remaining citation Nos.
6688822 and 6688825. The Secretary does not oppose the request to reopen, and notes that the
settlement agreement only encompassed citation Nos. 7290226 and 7290228.

1

We note that the judge’s decision appears to contain a typographical error on page 2,
referring twice to citation No. 7290226. The second reference should read “Citation No.
7290228.”
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Having reviewed San Juan Coal’s request and the Secretary’s response, in the interests of
justice, we hereby grant the operator’s motion and remand this case to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural
Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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Distribution:
David C. Hales
San Juan Coal Co.
P.O. Box 561
Waterflow, NM 87421
Daniel W. Wolff, Esq.
Crowell & Moring LLP
1001 Pennsylvania Avenue N. W.
Washington, DC 20004-2595
dwolff@crowell.com
Larry Ramey
Conference & Litigation Representative
U.S. Department of Labor
MSHA
P.O. Box 25367
Denver, CO 80225
ramey.larry@dol.gov
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

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

March 13, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
BLEDSOE COAL CORPORATION

:
:
:
:
:
:
:

Docket No. KENT 2010-1014
A.C. No. 15-18376-217047

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On September 14, 2011, the Commission received from
Bledsoe Coal Company (“Bledsoe”) a motion seeking to reopen a penalty assessment proceeding
and relieve it from the order of default entered against it.
On March 16, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show
Cause which by its terms became an Order of Default if the operator did not file an answer
within 30 days. This Order to Show Cause was issued in response to Bledsoe’s failure to answer
the Secretary’s June 18, 2010 Petition for Assessment of Civil Penalty. The Commission did not
receive Bledsoe’s answer within 30 days, so the order of default became effective on April 18,
2011.
Bledsoe asserts that it submitted a timely answer to the Secretary’s Petition for
Assessment on July 1, 2010. The Secretary does not oppose the request to reopen and notes that
the operator’s answer was timely received by the MSHA District 7, Barbourville, KY Office.
However, the answer does not indicate that it was also sent to the Commission, as instructed in
the penalty petition.

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Having reviewed Bledsoe’s request and the Secretary’s response, in the interest of
justice, we hereby reopen the proceeding and vacate the Order of Default. Accordingly, this case
is remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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Distribution:
Jeffrey S. Shell
Safety Director
Bledsoe Coal Corp.
Box 349
Bledsoe, KY 40810
Roy Timothy Cornelius
Conference & Litigation Representative
U.S. Department of Labor
MSHA
3837 S U.S. Hwy 25E
Barbourville, KY 40906
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

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

March 13, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
RES COAL, LLC

:
:
:
:
:
:
:

Docket No. PENN 2010-426
A.C. No. 36-09604-213741

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On October 26, 2011, the Commission received from RES
Coal, LLC (“RES”) a motion seeking to reopen a penalty assessment proceeding and relieve it
from the order of default entered against it.
On March 16, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show
Cause which by its terms became an Order of Default if the operator did not file an answer
within 30 days. This Order to Show Cause was issued in response to RES’s failure to answer the
Secretary’s August 16, 2010 Petition for Assessment of Civil Penalty. The Commission did not
receive RES’s answer within 30 days, so the order of default became effective on April 18, 2011.
RES asserts that it did not receive the Order to Show Cause and that it had timely replied
to the Secretary’s previously filed Petition for Assessment of Civil Penalty. The Secretary does
not oppose the motion to reopen, and notes that the Conference Litigation Representative from
MSHA District 2 has indicated that the operator’s August 24, 2010 answer was timely received.

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Having reviewed RES’s request and the Secretary’s response, in the interest of justice,
we hereby reopen the proceeding and vacate the Order of Default. Accordingly, this case is
remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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Distribution:
Steven J. Bender
Director/Safety & Health
RES Coal, LLC
224 Grange Hall Rd.
P.O. Box 228
Armagh, PA 15920
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

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

March 13, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
CENTRAL STATE AGGREGATES, LLC

:
:
:
:
:
:
:

Docket No. SE 2010-710-M
A.C. No. 08-00956-215059

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On October 17, 2011, the Commission received from Central
State Aggregates, LLC (“Central”) a motion submitted by counsel seeking to reopen a penalty
assessment proceeding and relieve it from the order of default entered against it.
On March 17, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show
Cause which by its terms became an Order of Default if the operator did not file an answer
within 30 days. This Order to Show Cause was issued in response to Central’s failure to answer
the Secretary’s June 16, 2010 Petition for Assessment of Civil Penalty. The Commission did not
receive Central’s answer within 30 days, so the order of default became effective on April 18,
2011.
Central asserts that it did not receive the Order to Show Cause or the Secretary’s
previously filed Petition for Assessment of Civil Penalty because they were sent to the mine’s
physical address, instead of its mailing address. The Secretary does not oppose the motion to
reopen, but directs Central to contact the MSHA assessment center to adjust its Legal ID address
of record.

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Having reviewed Central’s request and the Secretary’s response, in the interest of justice,
we hereby vacate the Order of Default and reopen the proceeding. Accordingly, this case is
remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Central shall file an Answer
to the Show Cause Order within 30 days of the date of this order.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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Distribution:
Denise E. Giraudo, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K Street NW, Suite 1000
Washington, DC 20006
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

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

March 13, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
THOMPSON CREEK MINING COMPANY

:
:
:
:
:
:
:

Docket No. WEST 2010-1633
A.C. No. 10-00531-225678

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On August 4, 2011, the Commission received from
Thompson Creek Mining Company (“Thompson”) a motion seeking to reopen a penalty
assessment proceeding and relieve it from the order of default entered against it.
On May 11, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show
Cause and Order of Default in response to Thompson’s failure to answer the Secretary’s
October 7, 2010 Petition for Assessment of Civil Penalty. The judge ordered the operator to file
its answer within 30 days or it would be in default. The Commission did not receive
Thompson’s answer within 30 days, so the order of default became effective on June 10, 2011.
Thompson asserts that it timely responded to the Order to Show Cause. The Secretary
does not oppose the request to reopen and notes that the Denver Regional Solicitor’s Office
indicated that the operator’s October 25, 2010 answer is in the case file. However, the answer
does not indicate that it was also sent to the Commission, as instructed in the penalty petition.

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Having reviewed Thompson’s request and the Secretary’s response, in the interest of
justice, we hereby reopen the proceeding and vacate the Order of Default. Accordingly, this case
is remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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Distribution:
Rick Swindell
HR/Safety Representative
Thompson Creek Mining Co.
P.O. Box 62
Clayton, ID 83227
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

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

March 13, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
LEHIGH SOUTHWEST CEMENT
COMPANY

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Docket No. WEST 2011-1463-M
A.C. No. 04-04075-260974

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On September 14, 2011, the Commission received from
Lehigh Southwest Cement Co. (“Lehigh”) a motion submitted by counsel seeking to reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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Distribution:
Margaret S. Lopez, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K Street N. W.
Suite 1000
Washington, DC 20006
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

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

March 23, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
CONSHOR MINING, LLC

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Docket No. KENT 2008-562
Docket No. KENT 2008-782

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006). On January 19, 2012, Administrative Law Judge Jerold Feldman issued a
Certification of Interlocutory Ruling pursuant to Commission Procedural Rule 76, 29 C.F.R.
§ 2700.76(a)(1)(i). In his order, the judge certified for interlocutory review by the Commission
his ruling in his Order of November 28, 2011, that a violation that is not attributable to reckless
conduct may not be deemed flagrant under 30 U.S.C. § 820(b)(2) based on the operator’s history
of prior similar violations. Unpublished Order at 2-3 (Jan. 19, 2012). On February 15, 2012, we
issued an order granting review of the Judge’s order of November 28, 2011, with regard to that
issue and ordered briefing.
On March 6, 2012, the Commission received from the Secretary of Labor a motion to
vacate the Commission’s February 15 order. As grounds for the motion, the Secretary states that
she no longer seeks assessment of the three violations at issue as “flagrant” violations. The
Secretary submits that, consequently, the issue directed for review by the Commission is moot.
The Commission has received no opposition from Conshor Mining, LLC.

34 FMSHRC Page 571

Upon consideration of the Secretary’s motion, it is granted. We hereby vacate our
February 15 order granting review. This case is remanded to Judge Feldman for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

34 FMSHRC Page 572

Distribution
Jeffrey K. Phillips, Esq.
Steptoe & Jhonson, PLLC
1010 Monarch Street, Suite 250
Lexington, KY 40513
Edward Waldman, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021

34 FMSHRC Page 573

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

March 29, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
SAPPHIRE COAL COMPANY

:
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:

Docket No. KENT 2011-906
A.C. No. 15-02057-215805
Docket No. KENT 2011-907
A.C. No. 15-02057-215828

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On April 18, 2011, the Commission received from Sapphire
Coal Company (“Sapphire”) two motions1 seeking to reopen two penalty assessments that may
have become final orders of the Commission pursuant to section 105(a) of the Mine Act,
30 U.S.C. § 815(a).2
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the

1

The Commission inadvertently assigned new docket numbers to these motions. These
cases were previously assigned docket numbers KENT 2011-171 and KENT 2011-172.
2

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers KENT 2011-906 and KENT 2011-907, both captioned Sapphire
Coal Company, and both involving similar procedural issues. 29 C.F.R. § 2700.12.
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Federal Rules of Civil Procedure. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges
shall be guided so far as practicable by the Federal Rules of Civil Procedure”); JWR,
15 FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the
defaulting party can make a showing of good cause for a failure to timely respond, the case may
be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc.,
17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Sapphire’s requests and the Secretary’s responses, we find that the
proposed penalty assessments were timely contested, and therefore, did not become final orders
of the Commission. Accordingly, these cases are remanded to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules,
29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/ Michael F. Duffy
Michael F. Duffy, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

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

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ADMINISTRATIVE LAW JUDGE DECISIONS

Federal Mine Safety and Health Review Commission
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

March 5, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner,
v.
HATCH ENTERPRISES, INC.,

Respondent.

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Civil Penalty Proceeding
Docket No. SE 2010-341-M
A.C. No. 08-00088-205943-01

HATCH ENTERPRISES INC.

:
DECISION

Appearances:

Jonathan Hoffmeister, Esq., Office of the Solicitor, U.S. Department of
Labor,61 Forsyth St., S.W., Room 7T10, Atlanta, GA 30303, for Petitioner;
W. Randolph Hatch, President, Hatch Enterprises, Inc., P.O. Box 238, Branford,
FL32008, for Respondent

Before:

Judge Rae

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Hatch Enterprises,
Inc. pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”).
Prior to hearing, Petitioner filed a motion for leave to file the petition out of time. In
response, Respondent filed an objection thereto. On December 2, 2011, I granted Petitioner’s
motion. At issue for hearing was one section 104(d)(1) citation.1 The proposed penalty is
Section 104(d)(1) provides:
If upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health or safety standard, and if
he also finds that, while the condition created by such violation do not cause imminent danger,
such violations is of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator to comply with such mandatory health or
1

(continued...)
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$2000.00. The hearing was held on February 15, 2012 in Gainesville, FL. The parties presented
evidence and made arguments. The record was held open for ten days for Hatch to submit
financial information which was received on February 22, 2012.
I.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Hatch Enterprises, Inc. (“Hatch”) operates a family- run crushed limestone surface mine
in Suwannee County, FL. At the time of this inspection, the mine employed three miners who
worked one shift per day, five days per week. (Ex. S-7 at pg. 3.)The annual man hours worked
was 20,000 to 30,000. (Ex. S-10.)
On October 20, 2009, the mine was inspected by an MSHA certified inspector who
issued a number of citations and an oral imminent danger order. The following violation was
adjudicated at hearing.

The Violation
The narrative portion of the citation with the later amendment reads as follows:
A miner was observed using a cutting torch to cut a piece of metal without the use
of proper eye protection. When observed, the employee had just started cutting
the metal material. Eye protection is provided to employee’s (sic) by the operator
but was not being worn at this time. The miner in question was the
operator’s leadman. Mr. Lambert, leadman, engaged in aggravated conduct
constituting more than ordinary negligence in that he knew that eye
protection was required and needed, but failed to wear it. This is unwarrantable
failure to comply with a mandatory standard.
After review of information and the facts, it is determined that the leadman is an
agent of the operator, therefore, this citation is modified to a 104(d)(1) citation.
(Ex. S-1.)
The standard provides: “Protective clothing or equipment and face shields, or goggles
shall be worn when welding, cutting, or working with molten metal.”30 C.F.R. §56.15007.
Billy Handshoe started his career with MSHA as a certified inspector in 2003 and

remained until 2008 when health issues prevented him from completing his duties. He then
worked for CEMEX as the safety and health supervisor where he conducted approximately 50 to
(...continued)
safety standards, he shall include such finding in any citation given to the operator under this
Act.
30 U.S.C.§814(d).

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100 safety audits and accompanied MSHA inspectors on approximately 14 regular inspections in
the year he was there. In 2009, he returned to MSHA and worked in the Lexington, KY and
Barstow, FL offices until he became the field office supervisor in Knoxville in July 2011. He
was also a blaster for 12 years prior to joining MSHA.
Early in the morning of October 20, 2009, Handshoe met with Mr. Randy Hatch,
President of Hatch Enterprises, in the shop area. Shortly after meeting with Hatch, Hatch
departed and Dewayne Lambert escorted Inspector Handshoe on the inspection. (Tr. 16, 33-34.)
During the health and safety survey he conducted in the shop area, he observed a bench grinder
that was not equipped with a guard for which he issued a citation. (Tr. 17.)When Handshoe
issued the citation on the bench grinder, Lambert responded by commencing to cut a piece of
expanded metal from which to fabricate the guard. As he began to cut the metal with a torch,
Handshoe saw that Lambert was not wearing protective safety goggles (“PPE”) and he
immediately issued a verbal imminent danger order. (Tr. 17-18.) Handshoe then issued this
citation for the failure to wear proper safety equipment. (Tr. 18.)
Hatch poses several arguments in defense of this citation. They contend, Lambert had
only fired up the torch but had not yet begun to cut the metal, therefore the standard was not
violated. Further, it asserts that this grinder is 20 years old and had been in service before the
passage of the Mine Act. It came without a guard and has never been cited by an MSHA
inspector in all the years that it has been in use and therefore the inspector’s citing it was
arbitrary and unnecessary. (Tr. 28, 52.) It contends that Handshoe came to the mine with
something to prove as a new field office supervisor. According to Hatch and Lambert, Handshoe
made some sort of remark that he was going to write every citation he possibly could in order to
increase the penalties as much as possible. (Tr. 38, 63.) This cited violation was the result of the
inspector threatening to order the grinder be taken out of service if the guard was not constructed
immediately. (Tr. 53.) Laboring under the exigency of this situation created the unsafe
environment, not Lambert’s actions. (Tr. 55.) There has not been an accident at this mine in
over 20 years and MSHA has acted arbitrarily in its assessment of this citation. (Tr. 55, 75-76.)
Hatch challenges the characterization of this violation as S&S, an unwarrantable failure or the
result of high negligence. Hatch asserts that Lambert has a standing practice of wearing his
safety goggles on his hat which he pulls down as soon as he needs them. (Tr. 76-77.) Had the
inspector not threatened to shut down production if the condition was not immediately abated,
the proper procedures would have been followed. This unsafe practice was essentially at the
direction of the inspector, not Hatch. (Tr. 55.) Further, they disagree with a finding that Lambert
was a supervisor of the company.
Despite Hatch’s attempts to establish that Lambert had not yet begun cutting when
Handshoe issued this citation, the evidence does not support this. Handshoe observed Lambert
cutting the expanded metal without putting on proper protective equipment to shield his eyes
from sparks. (Tr. 18-19, 70.) Lambert confirmed in his testimony that he had started cutting the
metal, and was not merely lighting the torch, when Handshoe issued his verbal order to cease
cutting. (Tr. 57, 70) At the Closeout Conference held between Randy Hatch and Handshoe,
Hatch stated that Lambert knew better than to use the torch without PPE. (Tr. 36.) Hatch has

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had a discussion with him about it. Hatch also told Handshoe that he intended to conference the
negligence assessment but not the citation. (Ex. S-9.) The evidence establishes that Lambert
was, indeed, in the act of cutting the metal when Handshoe issued the order and the citation. I
note also that it would be a reasonable interpretation of the standard to require one to put on the
PPE before taking the preparatory step of lighting the torch. Once the torch is lit a flame is
present and so too is the danger of sparking.
As for Hatch’s other arguments as to why the violation was improperly charged, they too
fail. Operators are subject to strict liability for a violation of this mandatory standard, thus the
fact that other inspectors did not cite the guard is not a defense to the violation. The
Respondent’s argument that the grinder was grandfathered in, therefore requiring the guard be
constructed immediately was arbitrary and caused this violation is disingenuous. It is the duty of
the inspector to enforce the provisions of the Mine Act which was enacted prior to putting this
20 year old grinder into service. Furthermore, the cited condition was a failure to don PPE when
using the torch cutter. There was nothing preventing Lambert from putting on his PPE before
he started cutting the metal. The Secretary has met her burden of proving the violation was
properly cited.
Significant and Substantial
A violation is significant and substantial (“S&S”) if the violation is “of such a nature as
could significantly and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.” 30 U.S.C. §814(d)(1). There must be “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). Under the National Gypsum
definition, “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 violations; (3) a reasonable likelihood that the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious
nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)(footnote omitted); see also, Buck
Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary,
861 F.2d 99, 103-104 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (De.
1987) (approving Mathies criteria).
In order to meet the requirements of the third, and most difficult to establish, element of
the Mathies formula, the Commission has provided the following guidance:
We have explained further that the third element of the Mathies formula “requires that
the Secretary establish a reasonable likelihood that the hazard contributed to will result in an
event in which there is an injury.” U.S. Steel Mining Co., Inc., 6FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the
contribution of a violation to the cause and effect of a hazard that must be significant and
substantial. U.S. Steel Mining Co., Inc. 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573- 1574 (July 1984).

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This evaluation is made in consideration of the length of time that the condition in
violation existed prior to the citation and the time it would have existed if normal mining
operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is S&S
depends upon the surrounding circumstances of the violation. Texasgulf, Inc, 10 FMSHRC 498
(Apr. 1988); Youghioghen & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
Handshoe testified that he felt the S&S assessment was appropriate because Lambert
acted in reckless disregard for his health and safety in using a cutting torch without eye
protection. Based upon his observations, he believed that Lambert had intended to complete the
cutting task without PPE.(Tr. 15-16.). To construct the guard, it would have taken Lambert
approximately 5 minutes of cutting with the torch. (Tr. 23.)Under these circumstances, it would
be highly likely that the sparking of the torch, as well as the glare, could result in a reasonably
serious injury to his eyes of a permanently disabling nature. (Tr. 20-21.) He based his opinion on
his personal mining experience and as an MSHA inspector, as all mines have torches and
welders on site and he is very familiar with this standard. (Tr. 13-15.)
Hatch asserted that the sparks were more likely to hit Handshoe who was standing
approximately five feet away rather than Lambert because Lambert was kneeling over the metal
facing the floor. (Tr. 17-18.) I defer to the experience of Handshoe and find the violation was
S&S.
Agency/Unwarrantable Failure
Handshoe was initially told by Hatch and Lambert that Lambert was a supervisor when
he conducted the pre-inspection conference. As he started writing citations, he was then told that
Lambert was a lead man, or a rank-and-file miner. Later, Handshoe reviewed his notes and
consulted with the district and determined that Lambert was a supervisor. He then amended the
citation to a section 104(d) violation charging the company with unwarrantable failure by and
through its agent, Lambert. (Tr. 15-16, 26-29 and Ex. S-1.) In order for unwarrantable failure to
be imputed to Hatch, it must be established by the Secretary that Lambert was an agent of the
operator.
Section 3(e) of the Act defines “agent” as “[a]ny person charged with responsibility for
the operation of all or a part of a coal or other mine or the supervisor of the miners in a coal or
other mine.” 30 U.S.C. § 802(e). In considering whether an employee is an operator’s agent, the
Commission has relied, not upon the job title or the qualifications of the miner, but upon his
function, and whether it is crucial to the mine’s operation and involves a level of responsibility
normally delegated to management personnel. Martin Marietta Aggregates, 22 FMSHRC 633,
637-38 (May 2000); REB Enterprises. Inc., 20 FMSHRC at 211; Ambrosia Coal & Constr. Co., 18
FMSHRC 1552, 1560 (Sept. 1996); U.S. Coal Inc., 17 FMSHRC 1684, 1688 (Oct. 1995).

The Commission in Nelson Quarries, Inc., 31 FMSHRC 318 (Mar. 2009) looked to the
Ambrosia Coal query of whether the function of the miner was “crucial to the mine’s operations
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and involved a level of responsibility normally delegated to management personnel.” Ambrosia
Coal at 1560. In Nelson, the Commission upheld the judge’s determination that three employees
were agents within the meaning of the Act based upon their functions at the mine. Specifically,
the Commission focused upon the fact that all three conducted all of the daily examinations, they
supervised and directed the work force assigned to them, they addressed problems the work force
brought to them in attempting to abate citations, the work force treated them and regarded them
as their supervisors, they held themselves out as foremen, and they were designated as the person
in charge of health and safety on the legal identity and start-up and closure reports required to be
filed with MSHA.
Lambert testified that he is the most experienced employee at the mine and can run
everything on site. (Tr. 48-49.) Mr. Hatch is at the mine site for only a short time each day so
Lambert takes over running the mine on a regular basis.(Tr. 50.) When Mr. Hatch does issue
work orders, he gives them to Lambert and Lambert then delegates the tasks to the proper
person(s) to carry them out. Lambert is the one the miners come to for their work assignments.
(Tr. 66-69.) His title is Production Supervisor but he stated when the Hatches are not there,
everything falls to him to run the business. Id. He holds himself out to the other miners as their
supervisor and expects them to comply with his orders. (Tr. 66.) The miners come to him first
with issues or questions which he will resolve without having to consult with the owners. (Tr.
68-69.) He accompanies the MSHA inspectors on regular inspections and is responsible for
ordering whatever work is needed to abate any issued citations.(Tr. 65.)He conducts the pre-shift
examination of the loaders and belts, opens up the office and prepares the paperwork. (Tr. 5859.)When it has been necessary to shut down equipment, he has ordered it himself without
direction from the owner.(Tr. 70.)
Mr. Hatch testified that Lambert is his “right hand man” and referred to him as his
supervisor.(Tr. 81.) In fact, when Handshoe commenced his inspection, he asked Hatch who
from management would accompany him. Hatch responded that Lambert would and said that he
was a supervisor.(Tr 24-25.) Hatch had told Handshoe that he was running for political office at
the time of the inspection and was only at the mine for short periods of time. In fact, he was not
present for days at a time in some instances. When a member of the Hatch family was not there,
Lambert would take charge. (Tr. 29, 81.) Handshoe reviewed prior citations and notes taken at
the time and found that Lambert had regularly attended both pre-inspection and close-out
conferences and had been the company representative joining the MSHA inspector on the
inspections. (Tr. 33.)
The testimony of Lambert and Hatch leaves no question in my mind that Lambert is an
agent by deliberate designation by Hatch as well as by virtue of his daily functions at the mine
which involve a level of responsibility normally delegated to management personnel. Lambert’s
conduct is properly imputed to Hatch. The issue then is whether the level of negligence rises to
the level of unwarrantable failure.

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The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”); [see also Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)] (approving Commission's
unwarrantable failure test).
Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist,
such as the length of time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts are necessary for compliance,
the operator’s efforts in abating the violative condition, whether the violation is obvious or poses
a high degree of danger, and the operator’s knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) . . . ; Cyprus Emerald Res. Corp.,
20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999);
Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coal, Inc., 10 FMSHRC 705,
709 (June 1988). All of the relevant facts and circumstances of each case must be examined to
determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist.
Consol, 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another
important factor supporting an unwarrantable failure determination is the involvement of a
supervisor in the violation. REB., 20 FMSHRC 203, 225 (Mar. 1998).
Handshoe testified that he assessed the violation as unwarrantable failure because
Lambert acted recklessly in cutting with a torch without first donning his PPE. Handshoe was
certain that although he had only been cutting for about 10 to 15 seconds when told to stop,
Lambert would have finished the cutting job, which would have taken about 5 minutes, without
wearing goggles. (Tr. 18-19.) The danger posed by his negligence was obvious as sparks were
flying a distance of three to five feet from the torch and Lambert was in a kneeling position
facing the torch about 18” away from the flame.(Tr. 18-21.) An injury could have occurred
instantaneously had a spark hit him in the eye.(Tr. 22.) Handshoe testified that Hatch had proper
PPE on hand in the shop but he felt the fact that Lambert commenced cutting the expanded metal
without eye protection with Hatch and Handshoe present indicated to him that this was a
common practice. (Tr. 36.) He designated the citation as affecting only Lambert.(Ex. S-1.)
I have taken cognizance of Respondent’s argument that in order to abate the citation
issued for the grinder, Lambert felt compelled to fabricate the guard immediately. There was
testimony that normally, this job would have been given to the welder but he was not present at
the time. (Tr. 69-70.) The choice for Lambert was either to tag out the grinder or do the cutting

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himself then and there. I do not give any credence to the contention that Handshoe directed that
the guards be fabricated immediately or that he insisted that the grinder be removed from the
premises. I also consider the fact that Hatch and Lambert both testified that there has not been
an injury resulting in lost workdays at the mine in over 20 years. (Tr. 64, 75-76.) I have also
considered the fact that no one else was exposed to the hazard created by the violation and there
appear to be no prior citations for similar violations or any indication that the grinder had ever
been cited before putting Respondent on notice of a need for greater efforts at compliance. The
lack of injuries at the mine for a substantially long period of time seems to bear out the fact that
Hatch has made efforts in employing safe work practices.
I find, with the regard to the aggravating factors enumerated by the Commission,
that:(1)the length of time the violation existed was very short – 10-15 seconds;(2) the extent of
the violation was minor as it was one discreet action performed by Lambert and affected only
him and would have continued for at most, five minutes if not stopped by Handshoe;(3) there are
no alleged prior violations or notice of the need for greater compliance with the use of PPE at the
mine;(4) the operator had PPE on site which Lambert donned once told to Handshoe to do so;(5)
the violation was dangerous to Lambert but not obvious to anyone that he would have
commenced cutting without goggles, and; (5) the violation is not of the nature that the operator
could have known Lambert would engage in such conduct. As Handshoe described the events, it
happened very suddenly and unexpectedly. Otherwise, it would be safe to assume, Handshoe
would have forewarned Lambert to use the eye protection if he had any indication that Lambert
did not intend to do so. Handshoe testified that for Lambert to have neglected to put on his
glasses in the presence of Hatch and an MSHA inspector, it must be a commonly accepted
company practice. I find this alone is insufficient evidence to establish a reckless or indifferent
pattern of behavior for unwarrantable failure purposes.
Overall, this violation is dissimilar to those considered by the Commission and its ALJs
as examples of unwarrantable failure. It was not a continuing situation that management left
unabated which posed a danger to miners such as dismantling pumps allowing water to
accumulate in travelways in a mine, failing repeatedly to ensure the use of fall protection when
working at heights, knowingly allowing unsafe access to workplaces to exist, failing to provide
proper training to new miners, etc. Instead, this was stupid and careless conduct by one person
that could not have been predicted or prevented in advance. It does not rise above ordinary
negligence. It is a serious violation and it is the result of moderate negligence taking into
consideration the mitigating factors discussed herein.
II.

PENALTIES

The Mine Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C.
§§815(a) and 820(a). When an operator challenges the Secretary’s proposed penalties, the
Secretary petitions the Commission to assess them. 29 C.F.R. §2700.28. Once petitioned to
assess the penalties, the Commission delegates to the administrative law judges the authority to
assess civil penalties de novo for violations under the Act. Section 110(i), 30 U.S.C. §820(i).

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The administrative law judge is required by the Act to consider the following six statutory
criteria in her assessment of the appropriate penalty:
(1) the operator’s history of previous violations, (2) the appropriateness of such penalty
to the size of the business of the operator charged, (3) whether the operator was
negligent, (4) the effect on the operator’s ability to continue in business, (5) the gravity of
the violation, and (6)the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation. 30 U.S.C. §820(I).
The penalty assessment for a particular violation is within the sound discretion of the
administrative law judge so long as the six statutory criteria and the deterrent purpose of the Act
are given due consideration. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff’d,
736 F.2d 1147 (7th Cir. 1984); Cantera Green, 22 FMSHRC 616, 620 (May 2000).
I have discussed the gravity and negligence involved in the citation above. I have given
the additional statutory criteria consideration as well as the deterrent purpose of the Act in
assessing the penalties below.
Respondent has asserted that the proposed penalty of $2000.00 will affect his ability to
remain in business. He was provided ten days post-hearing in which to provide financial
information to support his position. I have received Ex. R-1 which is a statement of assets and
liabilities and a review of expenses for income tax purposes dated December 2011. Although the
document is not certified from an accountant, I have considered the information. However,
based upon the modification of the citation as set forth above, I find the penalty assessed herein
will not affect the Respondent’s ability to remain in business.
Having considered the six statutory criteria and the stipulated facts, I assess a penalty of
$350.00.
III.

ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. §820(i), I have
modified the citation to a non-unwarrantable failure and have reduced the negligence to
moderate and assess a penalty of $350.00.00. Hatch Enterprises Inc., is ORDERED TO PAY
the Secretary of Labor the sum of $350.00 within 30 days of the date of this decision.2
/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge
Payment should be sent to the Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390
2

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Distribution List:
Jonathan J. Hoffmeister, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth
Street, SW, Room 7T10, Atlanta, GA 30303
W. Randolph Hatch, President, Hatch Enterprises, Inc., P.O. Box 238, Branford, FL 32008

Ex
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34 FMSHRC
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Telephone: (202) 434-9958
Fax: (202) 434-9949

March 7, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
PERFORMANCE COAL COMPANY,
Respondent.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
NUMEROUS FORMER MASSEY MINES2
And their successors.

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CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2011-1934 et al.1
A.C. No. 46-08436-255115-02

Mine: Upper Big Branch Mine-South
CIVIL PENALTY PROCEEDINGS
Docket No.
A.C. No.

Mine:

ORDER LIFTING STAY
ORDER GRANTING MOTION FOR WITHDRAWAL OF CONTESTS
ORDER TO PAY
Appearances:

Derek Baxter, Dana Ferguson, Office of the Solicitor, U.S. Department of
Labor, for the Secretary of Labor.
David Hardy, Christopher Pence, Eric Silkwood, Guthrie & Thomas,
PLLC, for the Respondent.

Before:

Judge Margaret A. Miller and Chief Judge Robert J. Lesnick

These cases are before the Federal Mine Safety and Health Review Commission (the
“Commission”) on petitions for assessment of civil penalties filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration (“MSHA”), against multiple mine
1

Numerous other Performance Coal Company dockets are addressed by this order. The affected
dockets are listed in the attached exhibits and specifically exhibit 5.
2
The mines, along with the docket numbers addressed by this order, are listed in the attached
exhibits. Although this order refers to Performance mines, it is intended to dispose of all the
subject citations and orders contained in the exhibits.

34 FMSHRC Page 587

operators, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §§ 815 and 820 (the “Mine Act”). The cases include, among other things, 48 penalty
dockets, and approximately 928 citations and orders issued at the Upper Big Branch Mine
(“UBB,” or the “mine”) both before and after the April 5, 2010 explosion that resulted in the
deaths of 29 miners. In addition, this order addresses more than one thousand other dockets that
include citations and orders issued at other former Massey Energy Company (“Massey”)
controlled mines. The total proposed penalty for the relevant citations and orders is
$19,855,483.00.3 The parties have reached an agreement and Respondent has filed a motion to
withdraw the contests of the relevant citations and orders included in the above captioned
dockets.4 A telephone hearing was held on the motion on Wednesday, February 29, 2012.5
Subsequently, the Secretary of Labor filed a response to the motion and the Respondent filed an
amended motion with Exhibit 5 attached.
On April 5, 2010, at approximately 3:00 p.m., an explosion occurred at Performance Coal
Company’s (“Performance”) Upper Big Branch Mine - South, resulting in the deadliest US mine
disaster in 40 years. The disaster resulted in the tragic deaths of 29 miners: Carl Acord, Jason
Atkins, Christopher Bell, Gregory Steven Brock, Kenneth Allan Chapman, Robert Clark, Charles
Timothy Davis, Cory Davis, Michael Lee Elswick, William I. Griffith, Steven Harrah, Edward
Dean Jones, Richard K. Lane, William Roosevelt Lynch, Nicholas Darrell McCroskey, Joe
Marcum, Ronald Lee Maynor, James E. Mooney, Adam Keith Morgan, Rex L. Mullins, Joshua
S. Napper, Howard D. Payne, Dillard Earl Persinger, Joel R. Price, Deward Scott, Gary Quarles,
Grover Dale Skeens, Benny Willingham, and Ricky Workman.
The explosion occurred at the longwall section, due to an ignition of methane that was
propagated by coal dust. The explosion occurred at the time of a shift change and resulted in the
deaths of the above-listed miners who, for the most part, were either at the working face or
traveling on mantrips in the mine. Following the retrieval of all 29 victims, MSHA began an
investigation of the explosion and its causes. The investigation was conducted jointly by MSHA
and the State of West Virginia. At the time of the deadly explosion, Massey was the controlling
3

This number does not include the proposed penalty amounts for the “unresolved/still contested”
citations orders that are a part of the split dockets. This amount may be changed in the event
errors are found in any of the attached exhibits and corrections are necessary.
4
In addition to the dockets that are completely disposed of by this order, i.e., those included in
Exhibit Nos. 1, 2 and 3, Respondent has agreed to withdraw its contest of numerous citations and
orders that are included in the dockets that have other “unresolved/still contested” citations and
orders in the same docket. The “resolved” citations and orders in the split dockets are listed in
Exhibit 4. This order grants the Respondent’s motion to withdraw its contest of the citations
listed in Exhibit 4. However, the citations and orders listed in Exhibit 4 will not be formally
disposed of until the “unresolved/still contested” citations and orders that make up the remainder
of the split dockets have been settled and/or adjudicated, at which point the assigned judge can
dispose of the entire docket in one decision/order.
5
At the hearing, the parties agreed that the language in paragraph 13 of Respondent’s motion
refers only to cases outside of the Mine Act and specifically that the language “may not be
considered an adjudication on the merits” is meant to be used only in matters outside the Mine
Act and is not binding on the Commission.

34 FMSHRC Page 588

entity of Performance Coal. However, in June, 2011, Performance, along with other Massey
mines, was purchased by Alpha Natural Resources (“Alpha”).
In the wake of the explosion, MSHA issued hundreds of citations and orders at UBB,
including citations and orders that cited Performance for interfering with the accident
investigation. The citations that were issued as a result of the explosion in April, 2010,
contributory to the accident, are not the subject of this proceeding. Performance has agreed to
accept those citations and orders as issued and pay the penalties proposed by the Secretary. As a
result, the Commission does not have jurisdiction over those citations and orders. However,
there are roughly one thousand citations before us that were issued to Performance prior to and
after the April explosion, and thousands more issued to other Massey mines.
A disproportionate number of the citations and orders that are pending in this matter are
characterized by MSHA as resulting from “high negligence” and are designated as “significant
and substantial,” “unwarrantable failure” and even “flagrant” violations. There were more than
43 open petitions for assessment of penalty for Performance prior to the devastating explosion,
with citations dating as far back as June of 2006. A number of the Performance cases were
stayed based upon a joint request by the parties and a letter, dated May 14, 2010, from the United
States Attorney for the Southern District of West Virginia requesting such a stay. The stay on all
of the subject cases is hereby LIFTED.
It is important to note that Massey, the parent company of Performance at the time of the
explosion, is the same company that owned and operated Aracoma Coal’s Alma #1 Mine, which
experienced a deadly fire in 2006. Following the Aracoma fire, Massey contested every single
piece of paper issued by MSHA. The Aracoma fire eventually resulted in a settlement that
included criminal charges against agents of the mine and an assurance from the mine operator
that it would reduce its violations over the years to come. Aracoma Coal Co., 30 FMSHRC 1160
(Dec. 2008) (ALJ). Chief Judge Robert J. Lesnick questioned whether the agreed upon “penalty
of $1.7 million was adequate in light of Aracoma’s enormous size.” Specifically, he noted the
compensation of the Chairman, Chief Executive Officer, and President of Massey Energy
Company, Aracoma’s parent company, who “received in 2007 a compensation package that
probably exceeded $23 million.” That same CEO received a package from Massey prior to the
buy-out by Alpha that included, among other things, a “$12 million golden parachute,” potential
performance bonuses, and deferred compensation. Howard Berkes, Former Massey CEO Gets
Golden Parachute … And A Blue Truck, NPR, Dec. 7, 2012, http://www.npr.org/blogs/thetwoway/2010/12/08/131891377/former-massey-ceo-gets-golden-parachute-and-a-blue-pickup-truck.
Since its purchase of Massey, Alpha has grown significantly larger, and is able to pay a total
amount of over $200 million for fines, programs, and restitution, while at the same time continue
in business.
In a subsequent Commission decision addressing the Aracoma fire, Commissioner Cohen
decried Massey’s apparent strategy of contesting every citation and order issued by MSHA as an
“outrageous” intentional burdening of the administrative judicial system. Aracoma Coal Co., 32
FMSHRC 1639, 1665 n. 4 (Dec. 2010) (Dissent of Commissioner Cohen). Here, Performance
has continued the Massey practice with its contest of every citation and order written by MSHA
at the mine after April 5, 2010, by filing a separate notice of contest for each. It would appear to

34 FMSHRC Page 589

be a strategy enlisted by the mine to overwork an already overloaded system. Notably, this
intentional burdening of the administrative judicial system to avoid responsibility for mine safety
was a major finding in the McAteer Report, discussed infra. GOVERNOR’S INDEPENDENT
INVESTIGATION PANEL, REPORT TO THE GOVERNOR, UPPER BIG BRANCH – THE APRIL 5, 2010,
EXPLOSION: A FAILURE OF BASIC COAL MINE SAFETY PRACTICES 99-100, 112. (2011) (hereinafter
“McAteer Report”). While Massey contested far more citations and orders after the explosion, it
can be said that, given the number of citations and orders pending before the Commission prior
to the explosion at the Upper Big Branch mine, the burdening of the judicial system was one of
the means Massey employed to avoid responsibility for its actions. Given that the former
Massey mines are now owned by Alpha, we are hopeful that such a strategy will be abandoned.
Following the explosion at Upper Big Branch, former West Virginia Governor, Joe
Manchin, commissioned an independent investigation into the explosion. In May of 2011, the
Investigation Panel’s report, referred to as the McAteer Report, was submitted to the current
governor, Earl Ray Tomblin. Among other things, the report explored the effect of earlier
settlements and consequences in relation to current mine practices and stated that the purpose of
the inspections and investigations into disasters such as that which occurred at Upper Big Branch
is to ensure “that such tragedies don’t happen again.” Id. at 107. The report expresses “genuine
hope,” albeit with reservations, that disasters such as the one at the Upper Big Branch can be
eliminated. Id. Further, the report states that “[t]he disaster at Upper Big Branch was man-made
and could have been prevented had Massey Energy followed basic, well-tested and historically
proven safety procedures.” Id. at 109. The purpose of the agreement reached between the
Secretary and the mines formerly operated by Massey is to take the next step toward preventing
future mine disasters such as the one at UBB.
Here, Alpha has filed a motion on behalf of Performance, as well as the former Massey
operators and mines captioned above, to withdraw its contest of all citations and orders contained
in Exhibits 2 and 4.6 Alpha has agreed to pay the penalties in full for each of the dockets
contained in Exhibit 2, and to pay the penalties in full for the specific citations and orders
included in Exhibit 4. Further, as noted above, as a part of the overall settlement, Performance
has agreed to pay the penalties in full for all citations and orders related to the explosion at the
Upper Big Branch Mine, more than ten million dollars, and pay a total of approximately $209
million as part of the overall settlement. Alpha will pay $46.5 million in restitution to the
families of the 29 victims and another $48 million to fund mining research. According to the
parties, the restitution and research fund, in conjunction with the civil penalties, serves as an
additional deterrent and will encourage future compliance with the Mine Act and its mandatory
standards. Furthermore, as a part of the overall settlement, the former Massey controlled mines,
now under the ownership of Alpha, will make a renewed effort to go forward with an improved
safety record at each mine and, to that end, they have dedicated $80 million dollars to implement
new programs in conjunction with the Mine Safety and Health Administration. Finally, the
agreement does not remove the possibility that criminal charges may be filed against Massey
management.

6

Exhibit 5 serves as a summary of the docket numbers in which the contests are being
withdrawn.

34 FMSHRC Page 590

In support of the proposed agreement, and with regard to the penalty criteria set forth at
30 U.S.C. § 110(i), the Respondent acknowledges that the Secretary accurately evaluated the
gravity and negligence in proposing a penalty for each docket included in the motion. The mines
that are the subject of this order are of the size and have the history as designated in the file for
each. Massey was not only large, but it was the parent company of many large mine operators.
Many of those operators under the former Massey umbrella have an extensive history of
violations. Performance is a large operator on its own, which, even prior to the explosion in
April 2010, had an unusually high number of violations, including serious ventilation and roof
control violations. See Ex. A attached to all penalty petitions. The history of Performance
demonstrates that a number of the citations and orders at issue were not abated and the mine was
issued a significant number of “failure to abate” orders prior to the citations and orders actually
being abated. Respondent asserts that the Secretary considered the unprecedented number of
failure to abate orders issued in assessing the penalties in each case. Finally, Respondent agrees
that the payment of the proposed penalty amount will not adversely affect any of the abovecaptioned operators’ ability to continue in business.
Based upon a review of the facts and the Secretary’s proposed assessment procedures at
30 C.F.R. § 100, the Respondent represents that the agreed upon total civil penalty of
$19,855,483.00 for the citations and orders set forth in Exhibits 2 and 4 is reasonable, and that
payment of this amount will serve to affect the intent and purpose of the Act. In considering the
parties’ proposal, we have looked at the penalty criteria in broad terms and considered all of the
representations made by the parties, including the payments to the U.S. Attorney and the funds
marked for future improvements in safety and health at the former Massey mines. The
Commission currently has no jurisdiction over the citations and orders issued as contributing to
the explosion of April 2010, but we do consider the penalty payment amount for those citations
and orders in addressing the parties’ agreement as a whole. We also consider that, by deciding to
pay the penalties for the contributory violations, Performance has accepted the violations as
established and takes responsibility for those violations.
While we grant the motion proffered by the Respondent, we do so with great caution.
We note that Alpha, on behalf of its former Massey mines, seeks to withdraw the notices of
contest of all of the subject citations and orders, with few conditions. The Commission has noted
that “[i]n determining whether to approve a proposed settlement a judge must consider, inter
alia, whether the amount proposed will accomplish the underlying purpose of a civil penalty - to
encourage and induce compliance with the Mine Act and its standards.” Madison Branch
Management, 17 FMSHRC 859, 867 (June 1995) (citations omitted). In Wilmot Mining Co., the
Commission stated that “[s]ettlement of contested issues and Commission oversight of that
process are integral parts of dispute resolution under the Mine Act. 30 U.S.C. § 820(k) . . . . A
judge’s oversight of the settlement process ‘is an adjudicative function that necessarily involves
wide discretion.’” 9 FMSHRC 684, 686 (1987) (citations omitted). Moreover, in reviewing
settlement agreements, Commission judges must “accord due consideration to the entirety of the
proposed settlement package, including both its monetary and non-monetary aspects . . . [to]
determine whether it is ‘fair, adequate and reasonable’ . . . [and] ‘adequately protects the public
interest.’” 17 FMSHRC at 868 (citations omitted). The Commission has emphasized that a
judge’s approval or rejection of a settlement agreement must “be based on principled reasons.”
Id. at 864 (June 1995) (quoting Knox County Stone Co., 3 FMSHRC 2478, 2480 (Nov. 1981)).

34 FMSHRC Page 591

The Commission looks to the penalty assessed in determining the appropriateness of the
settlement, and the fact that the Secretary has proposed an assessment based upon the statutory
penalty criteria.
The operators associated with the mines captioned above have agreed to pay all of the
proposed penalties in full and to withdraw their contests of the subject citations and orders.
Under Commission Rule 11 “[a] party may withdraw a pleading at any stage of a proceeding
with the approval of the Judge or the Commission.” 29 C.F.R. § 2700.11. The Secretary does
not object to the payment of proposed penalties and withdrawal of contests and agrees that she
has considered all of the penalty criteria in determining the proposed assessment for each citation
and order. Based upon all of the facts and information presented by the parties, we agree that the
Respondent’s request to withdraw its contest of all penalties is appropriate for all of the subject
citations and orders contained in these dockets.
The Federal Mine Safety and Health Review Commission exists to provide due process
of law to the parties that practice before it. Here, the parties have reached a mutual agreement
that, based on the information before us, adequately protects the public interest. Going forward,
it is essential that the April 5, 2010 events at the Upper Big Branch Mine not be forgotten. We
are sorely aware of the fact that no civil or criminal monetary or other penalty can come close to
righting the wrong that those miners suffered, and that the families and friends of those miners
continue to suffer. We are hopeful that, by agreeing to pay the proposed penalties in full and
withdrawing its notices of contests of the subject citations and orders, Performance Coal
Company has taken one step towards holding itself accountable for this terrible tragedy and that
the former Massey mines are taking the necessary steps to assure compliance with MSHA
regulations, thereby providing a safer working environment for all of their miners. Based on the
information before us, the Respondents’ motion is granted.
For the foregoing reasons, the Respondents’ request for withdrawal of the subject
contests is GRANTED, and Alpha Natural Resources Inc., on behalf of the former Massey
mines named on the attached exhibits, is ORDERED TO PAY the Secretary of Labor the total
proposed penalty for all subject citations and orders within 30 days of this order. Upon receipt of
payment, the contest proceedings listed in Exhibits 1 and 3 are DISMISSED.

/s/ Robert J. Lesnick
Robert J. Lesnick
Chief Administrative Law Judge

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge

34 FMSHRC Page 592

Distribution:
Derek Baxter, Dana Ferguson, Office of the Solicitor, U.S. Department of Labor, for the
Secretary of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247
David Hardy, Christopher Pence, Guthrie & Thomas, PLLC, for the Respondent, 500 Lee St.,
East, Suite 800, Charleston, WV 25301

34 FMSHRC Page 593

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Telephone: (202) 434-9933
Fax: (202) 434-9949
March 7, 2012
HILDA L. SOLIS, SECRETARY OF
LABOR, MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.
OAK GROVE RESOURCES, LLC
Respondent

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)
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)

CIVIL PENALTY PROCEEDING
DOCKET NO. SE 2010 - 1236
A.C. NUMBER: 01-00851-230779
MINE: OAK GROVE

DECISION
Before: Judge William Moran
Appearances: Mary Beth Zamer, Esquire
Jennifer Booth-Thomas, Esquire
Office of the Solicitor, United States Department of Labor
Nashville, Tennessee
R. Henry Moore, Esquire, Jackson Kelly, PLLC
Pittsburgh, Pennsylvania
In this proceeding under the Mine Act, Respondent, Oak Grove Resources, LLC, was
issued an Order, citing an alleged violation of 30 C.F.R. § 75.364(b)(2) for failing to conduct an
exam for hazards in at least one entry of each return air course in its entirety before miners enter
the mine. That provision states:
(b) Hazardous conditions. At least every 7 days, an examination
for hazardous conditions at the following locations shall be made
by a certified person designated by the operator: . . . (2) In at least
one entry of each return air course, in its entirety, so that the entire
air course is traveled.
Section 75.364(b)(2) (emphasis added).

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The Order included special findings that the violation was both “significant and
substantial” and an “unwarrantable failure.” Respondent admits that the exam was not
conducted but contends that because there was a prior outstanding citation for the same
deficiency, the Order in issue here was “duplicative” and therefore must be vacated. In addition,
the Respondent asserts that neither of the special findings should be upheld. A hearing was held
in Birmingham, Alabama on July 28, 2011. For the reasons which follow, the Court finds that
the violation was not duplicative and that it was both a significant and substantial violation as
well as an unwarrantable failure on the Respondent’s part.
Findings of fact:
MSHA Inspector Larry McDonald1 issued the Oak Grove mine Citation No. 8518110 on
March 23, 2010.2 Inspector McDonald was at the mine on that day as a result of a section 103(g)
complaint, which alleged that miners had re-entered the mine without it being “made,” that is,
without being examined or inspected in its entirety, prior to their entry, as required by law. Tr.
78. When Inspector McDonald arrived at the mine, he examined the record books for the “Old
Works,” and found that it listed, for March 18, 2010, an inability to inspect due to high water.
Tr. 25. GX 4, the Old Works fireboss (i.e. weekly) report3 for the Thursday day shift for the
same date, which report is part of the weekly examination books. The Inspector stated that, for
March 18th, no air readings were made for the “first east south air courses, 8 south to section one
faces.”4 Tr. 26-27. Of concern to McDonald when he examined those records was that the
certified examiner listed, under notes, “Hazards, unable to make high water.” Tr. 28, GX 4, at
the bottom third of the page. As a result of those hazards, the examiner recorded that he wasn’t
able to enter those areas and consequently could not make readings to enter in the books. Tr.
29. Accordingly, those areas were blank, reflecting that the examiner could not make and record
the air nor the air quality readings. For example, there are no readings for the number 4 entry,
1

Inspector McDonald is a certified mine foreman and certified electrician with some 22
years of coal mine employment. His MSHA experience has been for the past 2 ½ years. Tr. 21.
2

Government Exhibit, GX 2 is the citation Inspector McDonald issued to the mine on
March 23, 2010, Citation Number 8518110. Tr. 21. The exhibit, consisting of 8 pages, contains
the citation, the modifications to it, and the termination. GX 3, is the Inspector’s personal notes
regarding the citation, and consists of 8 pages for the exhibit, with 24 numbered sheets within
those 8 pages.
3

This report was also referred to as the “Old Works fireboss rounds,” which is part of the
weekly examinations. Tr. 25.
4

Within that exhibit, GX 4, for example, the number 273050, represents an air reading.
The other numbers in that exhibit also represent air readings. Tr. 27. The second column
represents the percentage of oxygen reading. Following the other columns across, relating to
273050, 02 percent oxygen is recorded, and 4 percent methane. The same report lists Nelson
Workman as the certified examiner who recorded that information.
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1C, nor for the number 4 fan check, nor for the 10 south number 3 entry, first east south of first
east north. Tr. 29. The absence of those entries demonstrates that the examiner could not in fact
get to those locations to obtain readings. Tr. 30. The same examiner also listed “unable to
make, high water hazard.”5 Tr. 30.
Importantly, the fireboss, weekly, report, GX 4, reflects that it was also signed by mine
foremen, Miller and Ingle. Tr. 33. Those signatures by management are to be signed right after
the certified examiner completes his exam,6 and any listed hazards are to be corrected
immediately. Tr. 33. McDonald affirmed that such mine management individuals have to review
the examiner’s weekly report. Tr. 79. Such examinations are important to make sure that there
is proper air in those areas to keep the methane swept out. Tr. 30. Further underscoring the
importance of these examinations, it is typical for methane to build up in areas that have already
been mined. Tr. 31. McDonald considered it “crucial” to maintain ventilation in these areas
because if there is a methane buildup, that can deplete oxygen levels, presenting significant risks.
Tr. 31.
McDonald was cognizant that the cited section, 30 C.F.R. § 364(b)(2) requires a weekly
examination for hazardous conditions and that at least one entry of each return air course shall be
traveled in its entirety before miners enter the mine. Tr. 36. Therefore, upon examining the
books and noting the examination shortcomings, the inspector asked mine foreman Ingle if the
mine was producing coal. Foreman Ingle informed that they were producing coal. Tr. 31. As
reflected in GX 5, there were 83 miners underground that morning, March 23, 2010. Confirming
that production was indeed occurring, foreman Ingle asked if the mine needed to stop
production, and McDonald advised that was the proper thing to do.7
Turning to GX 5, McDonald agreed that the middle column called “pumper fireboss” and
the name Archie Wilcoxen appears there. Tr. 91. Wilcoxen is assigned as a pumper at the 8
South but the Inspector informed that he did not encounter Wilcoxen in that area. Tr. 91. Then,
5

Specifically, the mine’s certified examiner, Mr. Workman, noted that the ten south
pump was impassable due to high water, that for the eight south faces, there was high water for
all entries going to the faces, and that, for the Number 4 fan, there was high water going to the
fan. Another entry, for March 20, 2010, records that the examiner went back and again tried to
make the Number 4 fan and faces but that those could not be made due to the high water. Tr. 30.
6

The certified examiner who makes the weekly examination is not part of management.
Rather, he is an individual designated by mine management to conduct that exam. Tr. 79.
7

McDonald was challenged about his advice by Mr. Shortt, who inquired if the inspector
was “fixin” to have the miners withdrawn. McDonald advised that it was advice at that point
because he had to go underground and personally examine the area before any order could be
issued. Tr. 34.
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referring to GX 4, the Inspector agreed that it reflects that the areas were attempted to be made
on March 18th and again on March 20th. Tr. 92. The mine’s certified examiner, Mr. Workman,
made it to the 1B point but couldn’t make the 1C. Tr. 92. The Inspector acknowledged that
Workman’s notes reflect that all pumps were running, that some progress was being made and
that water was no longer running over into the intake.8 In any event, Workman’s notes indicate
that the mine was trying to deal with the problem. Despite these distractions,9 it is clear that the
the miners should not have entered the mine.
McDonald then proceeded to go underground to see the area firsthand. With him were
Keith Miller, mine foreman and Randy King, a miners’ representative. Both men were with the

8

Progress or not, such distractions do not diminish from the conditions found by
Inspector McDonald, a week after the exam was to have been made. Other distractions raised by
Respondent’s Counsel included that miner examiner Kilgore, whom McDonald met when
underground on the 23rd, and who traveled with the Inspector, was down there trying to do an
examination. Tr. 94. As Respondent’s Counsel put it “somebody told them to go down to the
area where [the Inspector was] going to do an exam.” Tr. 96. It is fair to assume that this was
not purely coincidental. The Inspector agreed that the next exam was due to be performed on the
25th but the Court notes that the important time frame is the amount of time that had elapsed
without each weekly exam being conducted. Tr. 95. Respondent’s Counsel’s observation
makes the Court’s point that exams are a weekly obligation and that each new weekly failure
creates a new, not a duplicative, violation.
9

Counsel for Respondent continued to raise aspects which the Court considered to be of
no consequence to the gravity or negligence in this matter and which avoid the central point that
the required examination had not been made. Yet, miners were underground and producing coal
despite the fact they should not have been in the mine. These included interesting, but irrelevant
pieces of information, such as that the fault pump, sitting on the surface, is at a higher level
because the coal seam is displaced there. Tr. 93. Although not material, the Respondent’s
Counsel’s point was that, while the Inspector stated that the area was “roofed out,” that area is
lower than where he was standing because of the fault at that location. Responding to questions
about the mine height, the Inspector stated that the 1B was about 55 to 56 inches, that the 1C was
inaccessible, but that in the area on his way to the 1C, it was about 55 to 58 inches and at the
fault pump area it was about 8 feet. The Inspector also agreed that weekly examinations are
often performed through water, and that, at another mine, Shoal Creek, a boat had been used in
making the examination. Tr. 97-99. Other non-points were raised by Respondent’s Counsel,
such as that the inspector who terminated this order had to walk through water and Inspector
McDonald agreement that a preshift exam had been done everywhere that miners were going to
work and travel that day. Tr. 101. Simply stated, this matter is not about a failure to preshift,
nor is it about how conditions had subsequently changed, eventually making it possible to do the
required exam completely. Rather, it is about failure to examine one entry of each return air
course in its entirety and the propriety of the attendant findings.
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inspector the entire time of his inspection.10 Tr. 35. There was awareness that certified examiner
Workman had noted an inability to examine the entirety of the return air course and that
Workman had noted in that regard that he was unable to “make,” i.e. unable to get to, in order to
take readings, the first east south air courses, 8 south of the section 1 faces, the number 4 entry
air station 1 C and the number 4 fan.11 At that number 4 fan, as there are 4 approaches, (north,
south, east and west), and the examiner was to have taken four readings there.12 Tr. 38.
The Inspector found that he couldn’t get to the 1C. Still, while Respondent’s Counsel
inquired whether there was airflow in the direction of 1C, McDonald informed that he was
approaching it from the side. He could not get to the point even to see where the 1C was located.
Tr. 89. Using Joint Exhibit 1, a map of the Oak Grove mine, Inspector McDonald made various
markings on it, which were associated with his testimony.13 He marked his arrival point as “A”
on the joint exhibit. Tr. 42. He then traveled the north track to the first east track, marking “B”
at that location. Tr. 42. McDonald’s intention was to reach the number 4 fan at the number 4
intake shaft area. Tr. 43. He then traveled down the first east to point “C.” At that point he
could travel no further on the man bus. He then entered 8 north, traveling down the 8 north entry
inby. Tr. 44. From there, at point “D,” the party turned left at the 8 south, number 1 section
area. It took about an hour to travel from point “C” to “D” because the mine height is low,
ranging from 42 to 48 inches. Tr. 45. McDonald, who is six feet tall, obviously had to travel
“bent over” in those restricted mine heights. At point “D” the group went to 8 south and then to
point “E,” the 4 intake shaft. Tr. 46. At “E” the inspector intended to take air readings because
it was part of the route in issue. This was an area where examiner Workman had recorded an
inability to make his examination. Tr. 47. At the 4 intake shaft, McDonald took three intake air
readings. Tr. 47.
McDonald then traveled from point “E” to air station 1D where he was able to make
additional air readings. Tr. 47-48. He then traveled to air station 1A, where he took velocity and
air quality readings. Water was present at 1D and 1A, but not so much as to prevent his ability
to take readings those locations. Next he went to 1 B. Along his way there he encountered
murky water and stumbling and tripping hazards, as the 1B is actually an old track and the track
had never been removed. Tr. 49. He also had to deal with 24 inches of water in that area. Tr.
50. McDonald, feeling his way through the water with his feet, stated that he did stumble as he
10

Later, listed as point “C” on the map, mine examiner Chris Kilgore joined McDonald
on his route. Kilgore traveled with the others for the rest of the inspector’s trip. Tr. 44.
11

As the Inspector explained to the Court, the distance between the 1A and 1B and 1C
are about 100 feet apart. To the Court, these seemed like short distances between readings, but
the Inspector explained that each entry location has to have an air station. Tr. 64.
12

Inspector McDonald, using a red marker, traced his travel route on the Oak Grove mine
map. Joint Exhibit 1. Tr. 40.
13

For example, the Inspector marked on Joint Exhibit 1 the location of the bleeder fan.
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proceeded, as did others with him. Tr. 50. At the 1B, he was unable to take air readings because
there were too many stumbling and tripping hazards. The examiner, Chris Kilgore, who was
with him, advised that the water would be getting deeper. Tr. 51. The 1B is one of the areas
within the Old Works 10 South for which there is to be a weekly examination. Tr. 51.
McDonald also stated that when he stopped as he was heading to the 1 B point, the water was 24
inches deep and that he did not go further because examiner Kilgore told him that the water
would become waist deep. Tr. 101, 103. McDonald reiterated that the mine manager told him
that the water would be getting deeper toward the 8 south faces. Tr. 102.14
The inspector then traveled to the air station at 1C, where he was also unable to take
readings because of excessive water height. Tr. 52. At that location the water was about waist
deep. Tr. 52. 1C is another location where weekly readings are required. He then traveled to
the 3 West cut-through, where he was able to take a velocity and air quality reading. Tr. 52.
Next, his travel took him to the 4 east cut-through, where he could take readings. Essentially,
the inspector was trying to take readings at each air station. Those stations are marked on the
map as air station 1A, 1B, etc. and, underground, there is a sign indicating each location. Tr. 53.
McDonald then traveled in the number 1 entry toward the base area. This was marked
with an “F” on the map. Tr. 54. The faces that the Inspector marked on Exhibit 1 as “F” are
known as the 8 south faces or “South 1 face.” Tr. 90. At that location, he was able to take the
necessary readings at the number 2 regulator. Tr. 55. However he encountered water at that
location, as he walked about 100 feet inby, with a depth of about 32 inches. The inspector was
stumbling at that point and the water was up to his thighs, so he was unable to make that base
area. Tr. 55-56. He then traveled to the location marked as “G,” which is where the fault pump
is located.” Tr. 57. At that location, on the left side of the entry, the water was “roofed,”
meaning that water went all the way up to the mine’s roof. Tr. 57. That meant that the water
was at a depth of 6 to 8 feet in that fault pump area. Tr. 57. McDonald informed that the air was
restricted at the fault pump area, where airflow was minimal, but that he otherwise did not find
ventilation problems but the important point is that an air reading is required to be taken at the
fault pump. Tr. 89. This is another area where a weekly examination is required. Tr. 57.
Thus, McDonald was unable to make any of the return entries past the fault line from that
location. Tr. 58.

14

Respondent’s Counsel also asked if the Inspector knew what the water depth would be
if one got to the other side of the dip where the actual faces were and the Inspector replied he did
not know. Tr. 102. Putting aside these additional distractions for the moment and the
Inspector’s testimony concerning his firsthand experience upon encountering the water, it needs
to be recalled that the mine’s own examiner couldn’t examine the entire area. Apparently, this
point was made in an attempt to show that the water wasn’t so deep, but the Court accepts
McDonald’s testimony about the depth of the water he encountered as well as the tripping,
slipping and falling hazards which accompanied his unsuccessful attempt to travel the entirety of
the return air course.
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From there, the Inspector attempted to go to “H,” where the number 4 fan is located,
traveling form the G location, toward the D location and the number 4 fan, but he again
encountered water. He was traveling in an area with a 48 inch roof and dealing with 24 inches of
water at that location. In addition he faced tripping and slipping hazards as he proceeded.
He traveled for three crosscuts, a distance of about 300 feet, under these conditions. Tr. 60.
McDonald was unable to get to the Number 4 fan to take readings because of these conditions.
This is yet another area where readings are required. Tr. 60-61. As there are four approaches at
that location, four readings are required, but the Inspector could not take any of them. Tr. 61.
It was at that point that McDonald issued his Order to Keith Miller. He then retreated, taking the
same path he used to enter the areas, then returning to the elevator and exiting the mine. Tr. 61
62. No one who accompanied the Inspector voiced any disagreement over the issuance of his
order. Tr. 63. Upon cross-examination, McDonald stated that the number 4 fan services the
bottom half of the bleeder. The three active sections as marked on Ex. 1, 12 east, 13 east and the
long wall, are located in that area and they are serviced by two different fans. Tr. 87. Although,
upon cross-examination, McDonald acknowledged that he could have gone to the number 4 fan
on the surface to check the airflow on March 23rd and that he did not do that, the Court notes
that the standard does not talk in terms surface checks as an alternative means of compliance
with that requirement. Rather, the standard requires an examination for hazardous conditions in
at least one entry of each return air course, in its entirety, so that the entire air course is traveled.
McDonald expressed that his Order, citing the violation of 75.364 (b)(2) was based on
the inability to travel all the entries in their entirety, which therefore precluded taking the
required velocity and air quality readings. Tr. 65-66. The last prior complete examination to
that had been at least seven days prior. Tr. 67. The Inspector considered the gravity of the
violation as “highly likely,” because ventilation carries away the methane gas. At this multi-fan
mine, each fan plays a role in that task, for effective mine ventilation. If one fan is not working
properly it impacts the other mine fans. Tr. 67. In this instance the Number 4 fan was
compromised by the restrictions put on it by the water. Tr. 67. The Inspector also believed that
other hazards made the violation highly likely to cause an injury or illness, by virtue of the
water’s depth, its murkiness and the tripping hazards, including slickness and the uneven terrain
one had to travel in that area which were made more difficult by that water’s presence and depth.
Tr. 67. McDonald also marked on the Order that lost workdays or restricted duty were the likely
results by those conditions, exposing the examiner to “getting entangled in stuff, getting tangled
up on a track, breaking his leg down there and possibly striking his head.” Tr. 68. As the mine
examiner customarily travels solo, no one would know of such an injury until he was noted to be
missing at the end of the shift. Tr. 68.
Associated with Inspector Freeman’s earlier citation (i.e. Number 6699704) is GX 7,
which consists of that inspector’s handwritten notes and the Old Works fireboss rounds
connected with that. Tr. 73. Freeman issued his citation at 7:40 that morning, a little more than
an hour after his arrival at the mine. A difference, Inspector Freeman, stating that there were no
known conditions that could cause an ignition, listed the violation as non-S&S. However, unlike
McDonald, Freeman did not go underground to personally view the situation. Tr. 75. Thus,
while Freeman’s violation was based strictly on not entering the weekly routes being made on
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March 4th and 5th, 2010, Inspector McDonald’s citation was a physical examination of the route
coupled with the hazardous conditions that he observed. Tr. 75. Although Inspector McDonald
originally listed on GX 2 the number of persons affected as six, in his testimony on direct at the
hearing he revised that number to two, because the mine would only send two miners down to
deal with the pumps. Tr. 77. When asked if his concern was an inability to get to a particular
location to take air readings or not knowing if the air itself was not moving as intended, the
Inspector advised that he had no way of knowing how much the fan had been jeopardized. His
concern was also the water. He added that as this was an old area of the mine, it had “squeezed”
so that in areas where the mine height had, in the past, allowed one to stand, now in some
locations one would need to crawl. When added to that, one has water and an uneven mine floor
and old, left-behind, materials such as rail and belt lines, the area is full of tripping and
entangling hazards. Tr. 80.
The inspector agreed that, at the fault bore hole pump,15 he could have come at that from
the north16 and got “close” to the area where the water was. Tr. 87. It is true that, for the areas
the inspector was able to reach, he didn’t find any methane in the areas he examined down by the
water, nor did he find low oxygen. Tr. 87.
Similarly, Respondent’s Counsel’s effort to turn to Inspector Freeman’s citation, issued
on March 9th, and which was written as “non S & S” violation, involves a matter which is not in
issue here. On that date the mine had been evacuated because of gas in the atmosphere behind
the seals. This is because section 75.336 requires such an evacuation upon certain levels of
methane and oxygen being present.17 The mine remained down from March 9th through March
23rd because of that seal issue. Tr. 105.
Respondent’s defense began with a subject the Court considers to be irrelevant to the fact
of violation as well as to the attendant special findings. Keith Miller, the mine’s day shift
15

Another distraction, Respondent’s Counsel asks about the bore hole pump, which is on
the surface and employs a sump at the bottom, delivering water to the surface. Tr. 104.
16

The inspector approached this area from the south. Tr. 87, 89.

17

The withdrawal requirement in 75.336 provides: “(c) Except as provided in §
75.336(d), when a sample is taken from the sealed atmosphere with seals of less than 120 psi and
the sample indicates that the oxygen concentration is 10 percent or greater and methane is
between 4.5 percent and 17 percent, the mine operator shall immediately take an additional
sample and then immediately notify the District Manager. When the additional sample indicates
that the oxygen concentration is 10 percent or greater and methane is between 4.5 percent and 17
percent, persons shall be withdrawn from the affected area which is the entire mine or other
affected area identified by the operator and approved by the District Manager in the ventilation
plan, except those persons referred to in § 104(c) of the Act.” Accordingly the mine was
contending with some serious safety issues at that time. The cited violation in issue here cannot
be viewed in ignorance to the nature of this high methane producing mine.
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foreman, identified the areas where coal was being mined on the day in issue, with the point
being that such mining was a significant distance, some 5 to 6 miles, from the return air course
which had not been examined in its entirety. Tr. 114. Miller, who did accompany the Inspector
on the day in issue, March 23, 2010, was then directed to R 6, which depicts the area where the
Order was issued. The essence of this part of Miller’s testimony was apparently to show that
two pumps were working on March 23rd to remove the water. Tr. 119. Miller did admit that
they had prior problems with the 4 intake but added that, at the time he and Inspector McDonald
were down there, they were pumping.18 Tr. 120.

18

Miller stated that he and the Inspector were able to get to the 1B point but that was
“about as far as we got to.” Tr. 121. “C” on R 6. Miller stated that the water was “about 30
inches” at that location. Tr. 121. Miller, referring to “C” on the map, (also described as the 1B
point), stating that the water there was “around 30 inches,” then adding that “it kept on getting
deeper as you went farther, you know.” Tr. 123. In fact, Miller advised the Inspector that it
would continue to get deeper. Miller advised that he was able to walk the area two days later.
Tr. 124. He also stated there was no water until one arrived at point “H.” Thus, he maintained
that there was not water in the rest of the faces. Tr. 124. Miller stated that is the point where the
fault exists. Tr. 124. The fault was marked “F” and Miller stated one agreed one could not go
through there. Tr. 125. Thus, he agreed that on March 23rd he couldn’t get that far, referring to
past the area marked “K.” Tr. 125. While there was water in the faces, Miller stated it was 12 to
14 inches but on the right side of the face. Tr. 125. Referring to point “H” and the number 6
entry. Miller agreed there was water in the number 5 and 6 entries and there was water in an
area identified as “M.” Tr. 126. Miller also acknowledged there were “problems” with the fault
pump running and they took additional steps to get the water out. This included running a
discharge line up to the double overcast and putting additional air pumps and putting electricity
in the area. Tr. 127. As described by his attorney and agreed then agreed to by Miller, all of this
was in their attempt to lower the water at the fault bore hole pump. Tr. 128. From Miller’s
perspective, the “main problem was just getting down there, . . . it was so low getting down to
that area.” Tr. 128. Miller stated the roof was about 40 inches in that area, but that it was six
feet in height where they were wading through water. Tr. 129. Miller also stated that using
waders when encountering water in the course of making examinations was not an unusual
practice. Tr. 129. Essentially Miller expressed that he did not consider the water depth to be
daunting at all for him. Tr. 130. Of course, the mine’s certified examiner and Inspector
McDonald came to a different conclusion about the hazard presented. Miller also stated there
was no low oxygen nor high methane and that there was “still [ ] velocity going down toward the
faces at that point B.” Tr. 130. In terms of considering whether any tripping and falling hazard
was “S & S,” if that risk were to be considered, it would not be about the relative agility between
the Inspector and Mr. Miller. Nor does evidence that air was moving or that it was later
determined that oxygen and methane were not a problem, change the evaluation of whether the
violation was significant and substantial.
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Miller did not dispute that there were “water issues”19 and that the mine was already
“down” at that point in time because of another issue; that is, the previously mentioned methane
behind the seals. Because of that problem, only firebosses and certified people were working in
the mine then. Tr. 134. Although a good part of Miller’s testimony involved the efforts being
made to contend with the mine’s water issues, when refocusing on the issues involved here,
Miller agreed that the examiner could not get to the 10 south faces. Tr. 139. Also, at the number
4 entry, 1-B, and entry 1 C, there are no readings either, Miller agreed. And, all the way down to
the number 4 fan shaft, the examiner was unable to get a reading. Tr. 139. Thus, Miller agreed
that for at least four areas, there was no reading. Tr. 140.
Miller also conceded that the Old Works, which is in 10 south, requires an examination
and readings at certain air stations and that has to be done every seven days. Tr. 141. Miller
agreed that, per R’s Ex. R 1, there was no reading for the first east south air courses, and all the
way down 1C there is no reading and also no reading was made for the Number 4 fan shaft, and
the main north, first east. Tr. 141-142. Miller agreed it was again water that precluded those
exams. Tr. 142. As he put it, “We had water problems and he did not make those air readings.”
Tr. 142. Miller therefore agreed that the examiner was not able to examine the area in the seven
day period. Tr. 142. He agreed that Inspector McDonald came to the mine on the 23rd and the
mine had not been able to examine the Old Works area on that day either. Tr. 142. Further,
Miller agreed that the mine was in production: “Yes. We started that day.”20 Tr. 142. Regarding
the only genuine issue here, Miller agreed the Old Works had not been examined in its entirety.
Tr. 143.
Miller also agreed that GX 5 reflects those miners who were underground on March 23,
2010, and that he was the individual who filled out that document. Tr. 143. Miller’s
handwriting reflects that 83 miners were underground. Those miners began at 7:00 a.m. that
day. Tr. 144. When Inspector McDonald arrived that day, production was underway; that is to
say, the Respondent was mining coal. Tr. 144. Referring to the second page of the Old Works
book, Miller agreed his signature appears there. Tr. 145. Miller stated that, at the time he signed
that page, he had read miner Workman’s entries and he admitted that at the time he read those
entries it noted that Workman was unable to make the examination in areas because of hazards
and high water. Tr. 145. Further, Miller agreed that the examiner’s notes reflected that the 10
south fault pump was impassable due to high water and that for the 8 south faces all entries
going to the faces had high water. Tr. 145- 146. Miller next agreed that miner Workman tried to

19

Indeed, a good part of Miller’s testimony involved all the water issues the mine was
facing at that time. Tr. 134-138. As pointed out on cross examination, there are several blank
spaces on R 1's first page. For example, at first east south air course, there are no readings
reflected. This, Miller agreed, reflects that no reading was made because of the water. Tr. 140.
The water prevented the examiner from reaching those areas. Tr. 140.
20

Miller agreed that production resumed that day because the mine had solved the seal
issues. Tr. 142.
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make an examination on March 22, 2010 too. Normally, the exam is done for this area on a
Thursday. Tr. 146. Aware of the problem, Miller ordered Workman to try and conduct the exam
on a Saturday. Yet, per Mr. Workman’s notes for March 23, 2010, even then he still could not
make the 4 fan and faces due to the high water. Tr. 147.
Referring to Inspector McDonald’s issuance of the violation, Miller agreed he was with
the Inspector on the day of the inspection. Miller agreed that the water at 10 south route, located
at the air station 1B, the water was 24 inches deep.21 Tr. 148. Miller also did not dispute the
accuracy of the report’s statement that “when traveling to the number 2 regulator, accumulations
of water started approximately 50 feet outby and 200 feet inby at the number 2 regulator toward
the old 8 south faces.” Tr. 150. He also agreed that the “water was 32 inches deep and rising
inby the number 2 regulator,” nor did he take issue with the statement in the report that “[w]hen
traveling to the 10 south fault pump, water was roofed on the left side of the entry and
approximately 18 inches from the roof on the right side of the entry.” Tr. 150. Upon being
directed to all the red markings on the Respondent’s Exhibit, Miller stated that all the active
mining was on the other side of the map, at the top of it, from the area where Miller walked with
Inspector McDonald. Tr. 154.
Later, Miller agreed that although he completed a Citation/Order/Review form pertaining
to Order number 8518110, the order in issue here, that form, rather than being filled out right
after he accompanied the inspector, was only completed about a month before the hearing in this
matter. Tr. 169-170. On the form there is a section to address the likelihood of an injury
occurring and the only thing listed is the risk of tripping while walking in the water. Despite that
listing, Miller asserted that was not an admission on his part of any tripping hazard. Tr. 171.
His position did not change though he admitted there were belts, rocks, rails and other objects
one could trip over. Further, on the form, while he listed that no one could get hurt, his theory
was based on the return air course not being an active area of the mine. Yet, admitting that the

21

Miller asserted that he did tell the inspector that he could take a reading at that
location, but that the Inspector told him not to worry about it. Tr. 148. When pressed and asked
if he in fact attempted to make a reading, Miller stated, “Actually, I can’t remember, to be honest
with you, if I did or not.” Tr. 148-149. While he stated he simply could not remember if he
ever actually took a reading at that time, Miller’s reasoning was that he told McDonald he could
have taken a reading on the basis that he did make the area two days later. Tr. 149. However,
Miller admitted that the situation had changed in those two days, as there had been extensive
pumping going on, conceding that they had employed “a couple of air pumps” since the day he
was with the Inspector. Even with that, Miller, not helping his position, offered that two days
later, “there was - - [even] with the air pumps it was still a fair amount of water down there.” Tr.
149. And, of course, after the Inspector issued his order, production was stopped again. Tr. 150.
That action, it may be reasonably concluded, made more time and resources available to deal
better with the water. Supporting this observation, Miller acknowledged that, once they were
closed down, they started pumping more water than they had before the Order had been issued.
Tr. 150.
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area must be made every seven days, he conceded that it is an “important” part of the mine
because one wants to know about the ventilation in that area. Tr. 173-174.
The Respondent also called Gary Shortt, who is currently the senior mining engineer at
the mine, a job entailing activities with the surface, the pumps, ventilation and mine planning
and design. Tr. 183. Shortt informed that on March 15th, the mine was not producing coal due to
atmospheric issues behind the seals but that, around March 22nd, the atmosphere around the seals
became acceptable. It was then that Shortt noticed that there were two areas that had not been
made; the air course of 1 right extension and the number 4 intake area, and the 1 right extension
in the D 5 pump on the 1. Tr. 184-185. Shortt stated he made arrangements to have those areas
examined on the evening shift before the 22nd anticipating that waders might be needed. Tr. 185.
When he arrived at the mine the next morning he learned that one area had been made but that
the number 4 fan area had not. Tr. 185-186. He then instructed that the area be examined
immediately. Tr. 186. Like Miller, Shortt also did not consider the use of waders to be a big
deal. Nor, it must be said, did the government have an issue about the use of waders when
traveling through water during an examination.22 Again, it is important to keep in mind that
McDonald, waders or not, could not make the area, nor could the mine’s certified examiner.
At any rate, a Mr. Kilgore could not make the area and Shortt maintained that he did not report
that failure to anyone. Tr. 187.
Shortt clarified that he did not direct that Kilgore do the examination, but rather that he
only ordered that someone make the area. At any rate, he apparently did order that the area be
examined on March 22nd and when he found, the next morning, that no exam had been done, he
ordered that it be examined immediately. Tr. 195. With obvious reluctance in his testimony to
the admission, he acknowledged that miners began mining on the 23rd at their normal time,
stating, “It was a normal start time [for the production miners]. I didn’t tell them not to go, no.”
Tr. 197. (emphasis added.) In attempting to mitigate his order that production was to resume,
Shortt stated that he “was expecting” that the Old South Works would have been examined the

22

The Respondent also called Larry Pasquale, who is the senior safety supervisor at the
mine. Tr. 204. He accompanied Inspector Boylan when McDonald’s order of March 23rd was
terminated. Pasquale stated that they went to the number 4 fan or intake shaft and walked to the
faces. Tr. 206. As with Respondent’s other witnesses, Pasquale stated there was no problem
walking through the water. Tr. 211. Referring to R’s Ex. 6, Pasquale stated he was referring to
the faces marked as E and H on that. They did encounter water, ranging from ankle to knee
deep, but he maintained there were no tripping or stumbling problems for him or for Boylan. Tr.
207. Pasquale then described the route they took, going from the number 4 intake to the number
3 entry and then to point W. (Actually Respondent’s attorney described his route and Pasquale
agreed.) Then they went to the fault pump area. They went from the green line at BB to the
fault pump and then came back out towards the W. Tr. 209. Then to the fault area, marked as
L, then to an old 10 stopping point at marking K. Pasquale stated the water there was really
deep, as much as up to the thighs. Tr. 209. This was at point E, but neither had trouble walking
through the water there and there was no tripping or stumbling. Tr. 209-210.
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night before, on the 22nd. Tr. 199. Explanations aside, mining resumed, that is miners were in the
mine for production purposes, as of 11 p.m. on the 23rd. Tr. 200.
DISCUSSION.
The claim of duplication23
Respondent contends the Order in issue here, No. 8518110, is duplicative of Citation No.
6699704, as the latter was still pending when the former was issued. Primarily relying upon
Spartan Mining, 30 FMSHRC 699, 717-718, 2008 WL 4287784, (August 28, 2008), Respondent
contends that the duty to comply with the requirements of this standard were subsumed24 within
a previously issued alleged violation of that standard. Oak Grove asserts that the previous
citation and the present order were based upon the same act or omission; the mine’s failure to
examine at least one entry of each return air course in its entirety. Respondent contends that
MSHA should have issued a Section 104(b) order for failure to abate Citation No. 6699704,
instead of issuing the subject order.

23

It is noted that this is not Oak Grove’s first problem concerning compliance with this
standard. Beyond Inspector McDonald’s notation in his Order that the mine had been cited for a
violation of 75.364(b)(2) seven times in the past 2 years, litigation involving the provision has
also occurred. The Commission’s November 10, 2011 decision in Secretary v. Oak Grove
Resources, LLC (“Oak Grove, Commission’s November 2011 decision”) upheld the
administrative law judge’s affirmation of an order, which decision referenced the mine’s
antecedent failure to make the bleeder in its entirety. Also involved was a violation of Section
75.364(a)(2)(iii), which was issued on December 30, 2009. 2011 WL 5905640 at *4. Like
Section 75.364(b)(2), Section 75.364(a)(2)(iii) requires a weekly examination, but it speaks to
bleeders. In a deja vu moment, water accumulations were preventing Oak Grove from meeting
its weekly examination obligation under that standard and, also as here, the miners had safety
complaints over the matter. Then, again as in this case, an MSHA inspector encountered water
accumulations, this time in the bleeder entries, which prevented him from traveling to and
examining the longwall. Some 11 (eleven) measuring point locations could not be examined due
to those conditions, an obstacle that had existed since far more than a week before the
inspector’s discovery of the problem. It is true that the judge was addressing an Order which
alleged a violation of Section 75.334(d) but the prior citation, alleging a violation of Section
75.364(a)(2)(iii) was raised by Oak Grove, and then, as here, it claimed the two matters were
duplicative. However, while affirming the judge, the Commission did not reach the claim of
duplication, finding that the matter had not preserved that issue for review. Oak Grove,
Commission’s November 2011 decision, 2011 WL 5905640 at * 7.
24

Other cases are cited by the Respondent, but ironically they were referenced, and
effectively subsumed, in the Spartan decision.
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The problem with Respondent’s contention is that the prior citation was issued on March
9, 2010, whereas the present order was issued on March 23, 2010. The standard in issue is
entitled “Weekly examination,” and the cited provision within it very clearly requires an
examination at least every 7 days. Accordingly, at a minimum, every 7 days creates a new
obligation to perform the weekly exam. As the interval between the two enforcement actions
exceeded the 7 day maximum interval between examinations, a new violation arose. To suggest
that the duty which arose by the March 23rd failure is subsumed with the March 9th failure,
ignores the weekly examination requirement and there is no dispute that the last complete
examination to the order here had been at least seven days prior. Tr. 67.
Further, Oak Grove misapprehends Spartan Mining’s instruction on the subject. First, in
reviewing the claim of duplication for an entirely different standard than the matter involved
here,25 while the Commission split evenly on the issue, the effect of that was to uphold the
administrative law judge’s determination that the matters were not duplicative. As the members
of the Commission noted in upholding the judge’s determination, “the two violations occurred at
different points in time.” Not only did those upholding the judge depart from the idea that
duplication exists where the method of abatement is the same, they also found that, while
subsuming can occur, as applied in that instance, the duty cited in one regulation was not
subsumed in the other. Instead, those members upholding the judge stated that it has “never
focused on abatement in its analysis,” but rather whether “different actions” were required. Id. at
*17. Here, clearly, different actions are required, namely that, there be an examination “[a]t least
every 7 days” . . . “[i]n at least one entry of each return air course, in its entirety.” 30 C.F.R. §
75.364(b)(2) (emphasis added).
It should also be noted that the other enforcement action, the previous citation that
Respondent looks to in support of its duplication claim here, was not tried in this proceeding, and
that it cited a failure to comply with the proscription against anyone entering an underground
area if there has not been a weekly examination within the previous 7 days. Thus, there is no
evidentiary record to consult if it were accepted for the sake of argument that the present matter
could be subsumed with the prior enforcement action. Last, the words employed in the two
standards suggest that the focus of the standard cited in this case is upon the importance of
examining the entirety of one entry of each return air course while the focus of the earlier
citation is to ensure that no one enters “any underground area of the mine” unless the weekly
exam occurred within the previous 7 days. 30 C.F.R. § 75.364(f)(2) (emphasis added).
Obviously, different evidence would be used to establish the respective provisions.
Having rejected the Respondent’s only basis for attacking the fact of violation, the Court
noting that the Respondent has effectively otherwise conceded the violation, now turns to the

25

Although the Court fully recognizes that Spartan was cited by the Respondent for its
statements on the subject of duplication, it still should be noted that the Commission was dealing
with an electrical fatality and the mine operator being cited both for a failure to lock out
equipment and for failing to remove the equipment from service.
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remaining issues of whether the violation was “significant and substantial” and demonstrated an
“unwarrantable failure” to comply with the cited provision.
The determination that the violation was Significant and Substantial.
A significant and substantial (“S&S”) violation is described in section 104(d)(1) of the
Act as a violation “of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is
properly designated S&S “if, based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
[i]n order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a reasonable likelihood that
the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. MSHA, 52
F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir.
1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies
criteria).
On occasion, the difficulty with finding a violation S&S may arise with the third element
of the Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional guidance:
We have explained further that the third element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is an injury.”
U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984).
We have emphasized that, in accordance with the language of section
104(d)(1), it is the contribution of a violation to the cause and effect
of a hazard that must be significant and substantial. U.S. Steel Mining
Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in consideration of the length of time that the violative condition
existed prior to the citation and the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6
FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
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particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). The Secretary is not required to
establish that it is more probable than not that an injury will result from the violation. U.S. Steel
Mining Co., Inc., 18 FMSHRC 862, 865 (June 1996).
As noted in a recent administrative law judge decision, “[T]he Commission has long held
that “[t]he fact that injury [or a condition likely to cause injury] has been avoided in the past or
in connection with a particular violation may be ‘fortunate, but not determinative.”’ U.S. Steel
IV, 18 FMSHRC at 867 (quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). See
Elk Run Coal Co., 27 FMSHRC 899, 906-07 (Dec. 2005) (holding that absence of adverse roof
conditions at time of or prior to violation does not preclude establishing S&S violation); Blue
Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996) (noting that absence of accidents
involving violative equipment does not preclude S&S finding). The Commission recently
reiterated these principles in Cumberland Coal Resources, LP, 2011 WL 5517385 (FMSHRC
Oct. 5, 2011), [FN6] and Musser Engineering, Inc., 32 FMSHRC 1257 (Oct. 2010). Citing Elk
Run Coal and Blue Bayou Sand & Gravel, the Commission emphasized that the test under the
third prong of Mathies is whether the hazard fostered by the violation is reasonably likely to
cause injury, not whether the violation itself is reasonably likely to cause injury. Cumberland
Coal Res., 2011 WL 5517385, at *5; Musser, 32 FMSHRC 1280-81.” See, Pine Ridge Coal,
2012 WL 601258 at * 9, upholding significant and substantial element for violation of 30 C.F.R.
§ (b)(2).
Respondent notes that the Inspector’s “primary justification for [his] S & S designation
was that of slip and/or trip injuries.” Respondent’s Br. at 15. (emphasis added). Given that,
Respondent contends that no significant and substantial designation can be supported because
the standard in issue is focused on “ventilation issues,” not “slipping and tripping hazards.”
Respondent contends that, to be sustainable, an S & S finding must be related to the intended
purpose of the standard. Alternatively, Respondent asserts that even if one may look outside the
subject addressed by a standard to evaluate whether a violation is “S & S,” here the evidence that
there was such a slipping and tripping hazard was no more than speculative.
It is true that when asked by the Court to sum up his “S&S” determination, Inspector
McDonald stated that it was “S & S” because of the tripping hazards of those miners who would
have to travel the route. He considered the hazard to be both obvious and extensive.26 Tr. 82.

26

The Inspector later reiterated that reason as the basis for his “S & S” finding, when the
Court posed a hypothetical to him regarding the air station at 1C, which was one of the locations
the inspector was unable to reach. The hypothetical asked McDonald to assume that normally
one would access the area by a boat but to assume that on this occasion the water was so high
that a boat could not be used because of lack of space between the height of the water and height
of the roof. McDonald stated that under that hypothetical he still would have issued the violation
for not being able to access 1C and he agreed it would not be based on any tripping and falling
(continued...)
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Before reaching the issue of whether slipping and tripping hazards can be addressed by
30 C.F.R. § 75.364, the Court first makes the finding that the Inspector’s testimony was
anything but speculative on that question, and further finds that it was persuasive on the issue.
Clearly, there were slipping and tripping hazards abundant as Inspector McDonald waded
through the water in the entry, as he attempted to make it in its entirety. In contrast,
Respondent’s witness, Miller, in his testimony could “not remember” if there was any stumbling
or the Inspector dropping his clipboard, although Miller allowed “I mean, he might have
[stumbled] but [he didn’t] remember [McDonald] falling or tripping.” Tr. 121. Miller added,
regarding the slipping or sliding issue, “We just walked up there to it, you know. I mean, I don’t
remember any - -.”
Tr. 122. And again, later, in terms of any slipping or tripping in these
conditions, Miller couldn’t “remember it happening.” However, he added, “It’s a possibility it
could have happened.”
Tr. 128. Though he maintained that, for him, it posed no slipping or
tripping hazard, Miller acknowledged that the old track rail remained in the area. Tr. 122.
Turning to the mine water itself, Miller agreed that the water was dark and that one can’t see the
bottom, that there are objects in the water, including rocks, belts, and old tracks. Tr. 152. In
fact, Miller acknowledged that he was walking around the rib, holding onto the rib as he was
making his way along, “Yeah. I just put one hand on the rib and stayed alongside the rib.
That’s correct.” Tr. 152. This technique was done to help guide him through the water, he
admitted.
Notwithstanding the foregoing, the Court finds despite the record evidence establishing a
significant slipping and tripping hazard, such conditions cannot form the basis for a “S & S”
finding where a section 75.364(b)(2) violation is alleged, because that is not the focus of that
standard.27
However, it is noted that other administrative law judges have reached a contrary
conclusion. In Consolidation Coal Co., 15 FMSHRC 1408, 1993 WL 411806 (July 1993 ALJ) ,
dealing with the same provision, 30 C.F.R. § 75.364, the judge, considering the depth of the
water, the fact that it was cloudy or muddy, the extent of the accumulation, the presence of two

26

(...continued)
hazard under the hypothetical. However, the Inspector stated that he would not consider that
violation to be “S & S.” Thus, he agreed that his foremost concern was the tripping and falling
hazard that made it “S & S.” Tr. 109.
27

In retrospect, perhaps MSHA should have also cited the Respondent for violating
another standard, perhaps relying upon the Mine Act’s safeguard provision at Section 314(b).
Unlike surface aspects of coal mines, there does not seem to be a specific provision addressing
underground safe travel access such as those at 30 C.F.R. § 77.205 (a) or (b). Those subsections
for surface areas of mines provide: “Travelways at surface installations. (a) Safe means of
access shall be provided and maintained to all working places. (b) Travelways and platforms or
other means of access to areas where persons are required to travel or work, shall be kept clear of
all extraneous material and other stumbling or slipping hazards.”
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pipes in the water, and the fact that mud and rocks occur naturally on the floor of mines,
concluded that the accumulation of water cited constituted a hazardous condition that should
have been reported. 15 FMSHRC at * 1413. The judge continued, having found that the
Contestant did violate Section 75.364, and that the violation did contribute to the hazard of
slipping or tripping. In evaluating the third element of the Mathies formula, the judge took note
of the “depth of the water; the fact that the bottom could not be seen through the water; the
presence of 2 pipes in the water; the uncontradicted testimony of . . . an MSHA Inspector who
inspected the site on February 7, 1993, and observed, in the area cited, planks and crib blocks
lying on the floor in the center of the entry on the right side . . . and [ ] uncontradicted testimony
that . . . he had observed a canvas lying on the floor covered with mud which made it extremely
slippery when wet.” The judge concluded that “[w]ithin the above framework, . . .it has been
established that an injury producing event i.e., slipping or tripping, was reasonably likely to have
occurred [and that] . . . due to the nature of the items in water, that should a person have tripped
or slipped, there was a reasonable likelihood of an injury of a reasonably serious nature. . . .
[and] [t]hus, [he] concluded that it [w]as established that [the] violation [ ] was significant and
substantial. Id. at *1415.
This Court’s conclusion that a slipping and falling hazard cannot form the basis for a
significant and substantial finding in connection with a Section 75.364 violation does not mean
that the violation was not S & S in this case, as there is other, substantial evidence, to support
that conclusion. The inspector is not a lawyer, nor a jurist. His critical contribution to making
the determination of whether a violation is S & S comes from the facts he observes and his
knowledge bases concerning the hazards attendant to the violation. Thus, whether a violation is
S & S does not rise or fall on a given inspector’s legal analysis; it is for the Court to apply the
evidence from the hearing and make that legal determination. The Court made note of this
observation at the hearing. Tr. 220.
As the Respondent itself concedes, Inspector McDonald’s testimony regarding his
“S & S” finding was not limited to slipping or tripping issues.28 Id. at 15. Respondent observes
that the Inspector did testify that he was also concerned that the Number 4 fan was compromised
by the restrictions put on it by water and that there was no way of knowing if the fan was
affected. R’s Br. at 18, citing Inspector’s testimony at Tr. 67, 79-80. However, the Respondent
asserts that there was “no evidence that the cited condition actually had an effect on the
ventilation, or the No. 4 fan.” Id. Respondent notes that both the Inspector and Mr. Miller
conducted some air readings during the attempt to conduct the weekly inspection and that those
readings did not reveal methane or oxygen problems. Acknowledging that the Inspector testified
that there were airflow problems at the borehole pump, Respondent points out that no tests of air
velocity were taken there, nor did he test the No. 4 fan on the surface. Tr. 89. Respondent

28

Again, Inspector McDonald also stated that the focus of his order was on the inability
to reach certain areas in order to make the required readings. Tr. 81. Still, the Inspector
acknowledged that his Order only mentions the tripping and falling hazard and did not include
ventilation concerns. Tr. 90.
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characterizes McDonald’s concerns over potential issues with the fan as speculation and
discounts such concerns, even if valid, as of minimal concern because the active workings would
not be affected by such issues. Id. Last, Respondent concludes its contention that the violation
was not shown to be S & S by noting that the evidence at the hearing established that the
ventilation was not compromised and even had that been the case, with air traveling down the
No. 6 entry and then ventilating the faces, any ventilation issues would have been detected at the
1-B air station. Id. at 19.
However, Miller admitted that, even though there was no active mining in the areas cited
by the Inspector, he was not contending that it was not important to take those air readings. Tr.
155. He agreed such readings were in fact important to take. Tr. 155. He also agreed it was
important to take those readings every week. Tr. 155. Asked by the Court why taking those
reading is important, Miller stated “[j]ust to see if there is hazards back there, that if there is low
oxygen or high methane. Those are not the only concerns either. One is also examining the roof
conditions, as someone could get hurt by such conditions as the fireboss makes his exam once a
week. Tr. 156. As noted earlier, Miller admitted that the area must be made every seven days,
and he conceded that it is an “important” part of the mine because one wants to know about the
ventilation in that area. Tr. 173-174.
As the Secretary notes, when Inspector McDonald arrived at the mine on March 23,
2010, in response to the Section 103(g) miner complaint, a complaint based on the very grounds
for which the Inspector later issued his Order here, he examined the mine’s record books, finding
that the weekly exam for March 18th listed several areas which the examiner could not carry out
his examination for the Old Works 10 South and returns weekly exam, because of excessive
water. Thus, initially it was the mine’s certified examiner, not an MSHA Inspector, who could
not examine all the required areas. That examination requires air, oxygen and methane readings
at specified locations. These readings are critical to assess whether the mine’s ventilation plan is
working properly, informing whether there is proper air quality and to determine if methane is
being swept out. And while Inspector McDonald may have been mistaken in evaluating the
slipping and tripping aspects in reaching his view that the violation was S & S, as noted earlier,
he spoke to other safety concerns about the violation as well. In this respect, he stated that the
gravity of the violation was “highly likely,” because ventilation carries away the methane gas.
At this multi-fan mine, each fan plays a role in that task, for effective mine ventilation. If one
fan is not working properly it impacts the other mine fans. Tr. 67. In this instance the Number 4
fan was compromised by the restrictions put on it by the water. Tr. 67. Further, when asked if
his concern was an inability to get to a particular location to take air readings or not knowing if
the air itself was not moving as intended, the Inspector advised that he had no way of knowing
how much the fan had been jeopardized. Tr. 75-80.
Inspector McDonald added, in response to further questions, that if one can’t take
measurements at the fans and the other measurement places, one is then without any readings,
and that means one will not know if something has occurred in those areas to change the air
readings. The readings offer assurance that nothing has changed. For example, the brattice
could be out at some location and thereby altered the mine ventilation. Tr. 84. If the ventilation
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is altered, a situation made graver if one is unable to know of such a change, one could, in an
area such as the Old Works, have low oxygen and high methane. As the Old Works is located
right below the long wall gobs, if the fan were altered, that low oxygen, high methane situation
could occur. Tr. 84. Under such conditions, if one had the low oxygen, and high methane
drifting down, an explosion level of methane could occur and one would not know of it because
of the incomplete weekly exam. As another example of the hazard which could develop,
McDonald related that there have been instances when a weekly examiner has encountered low
oxygen on his route and died.29 Tr. 84.
Inspector McDonald’s concerns over the threats associated with the failure to make the
entire entry were not mere conjecture. As the Commission noted in its Oak Grove, November
2011 decision, this mine is subject to spot inspections because it liberates more than a million
cubic feet of methane every 24 hours. 2011 WL 5905640 at *1. In that decision, the
Commission noted that Oak Grove failed to take the required air measurements at the “specific
locations identified in the mine ventilation plan,” areas that, as here, those areas could not be
accessed because of water accumulations.
As noted, the Court views Inspector McDonald’s other statements to be sufficient, (i.e.
those statements apart from his slipping and sliding concerns), regarding his determination that
the violation was significant and substantial and it so finds it as such.30 Having found that the
violation occurred and, based on Inspector McDonald’s testimony as well as that of Keith Miller,
that there was a clearly identified measure of danger to safety contributed to by the violation, the
first two Mathies elements were established. Further, both Inspector McDonald’s testimony, and
Miller’s too, established the reasonable likelihood that, at this ultra-gassy mine, the hazard
contributed to will result in an injury and that it would be an injury of a reasonably serious

29

While the inspector acknowledged that examiners carry a detector which will alarm if
methane or low oxygen is encountered, that depends upon the detector being properly
maintained. Tr. 88.
30

Addressing the predecessor to regulatory provision at issue here, 30 C.F.R., Section
75.305, and also upholding the significant and substantial element associated with it, the judge in
Kaiser Steel Corp, 5 FMSHRC 2224 (December 1983) “I further find that such a violation is of a
significant and substantial nature as those terms are defined in Cement Division, National
Gypsum Company, 3 FMSHRC 822 (April 1981). That is, a finding of whether a violation is
“significant and substantial” depends on whether there existed a reasonable likelihood that the
hazard contributed to or would have resulted in an injury of a reasonable serious nature. The
purpose of the weekly inspection provided for in standard 75.305 is to detect hazardous
conditions such as deteriorating roof conditions, air currents being blocked off and reversed, and
methane accumulations. Any of these conditions could cause serious injury or death to miners in
the area, if undetected.” at Id. at * 2229.
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nature. The Court’s determination that the violation was significant and substantial is especially
true, when viewed in the context of the undisputed evidence identifying the multiple areas
McDonald was unable to access.
Although the foregoing represents the basis for the Court’s significant and substantial
finding, some additional observations are in order. The cited provision has a long history in
terms of coal mine safety. The importance of the provision in issue here was recognized in the
Coal Mine Health and Safety Act of 1969.
In enacting the 1969 Coal Act, Congress expressed the importance of the same matter
before this Court. By that statutory provision being directly included in that Act, Congress made
a clear statement of the importance of this safety practice and in so doing elevated the
requirement which later was echoed as a mandatory safety standard.
Congress provided:
In addition to the preshift and daily examinations required by
this section, examination for hazardous conditions, including tests
for methane, and for compliance with the mandatory health or
safety standards, shall be made at least once each week by a certified
person designated by the operator in the return of each split of air
where it enters the main return, on pillar falls, at seals, in the main
return, at least one entry of each intake and return aircourse in its
entirety, idle workings, and, insofar as safety considerations permit,
abandoned areas. Such weekly examination need not be made during
any week in which the mine is idle for the entire week, except that such
examination shall be made before any other miner returns to the mine.
Section 303(f), Federal Coal Mine Health and Safety Act of 1969, Public Law 91-173, 91st
Congress, S.2917, December 30, 1969 (emphasis added).
That statutory provision then appeared in the proposed and final rule, repeating it as a
mandatory safety standard for underground coal mines. See, proposed rule at Fed. Reg. Vol 35,
12911, at 12923, and final rule at Fed Reg. Vol 35, 17890, at 17901, November 20, 1970.
No surprise, the statutory provision from 1969 Coal Act was continued with the Federal
Mine Safety and Health Act of 1977 and its amendments, also appearing at Section 303(f), 30
U.S.C. § 863. Accordingly, given the Congressional statement of the importance of this
requirement for more than 40 years, it would not be unreasonable to view any violation of the
provision as presumptively significant and substantial.

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The determination that the violation was an Unwarrantable Failure
The unwarrantable failure terminology derives from section 104(d)(1) of the Mine Act and
refers to more serious conduct by an operator in connection with a violation. 30 U.S.C. § 814(d).
In Emery Mining Corp., the Commission determined that an unwarrantable failure is aggravated
conducted constituting more than ordinary negligence. 9 FMSHRC 1997, 2001 (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, 13 FMSHRC at 194; see also Buck Creek Coal, 52 F.3d at 136 (approving the
Commission's unwarrantable failure test).
Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist, such
as the length of time that the violation has existed, the extent of the violative condition, whether
the operator has been placed on notice that greater efforts are necessary for compliance, the
operator's efforts in abating the violative condition, whether the violation is obvious or poses a
high degree of danger, and the operator's knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20
FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest
Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(Feb. 1994); Peabody Coal, 14 FMSHRC at 1261; BethEnergy Mines, Inc., 14 FMSHRC 1232,
1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the
relevant facts and circumstances of each case must be examined to determine if an actor's conduct
is aggravated or whether mitigating circumstances exist. Consolidation Coal Co., 22 FMSHRC at
353.
Inspector McDonald confirmed that if no exam is conducted, no one is to enter the mine,
other than certified people, until the mine is made in its entirety. Tr. 68. McDonald’s Order also
listed the negligence as a “reckless disregard.” Tr. 69. In so marking that assessment of
negligence, the Inspector listed the citation of MSHA Inspector Steve Freeman, citation number
6699704, issued March 9, 2010, and that the information was duly recorded in the examinations
book for that date. That information and the citation put the Mine on notice about its failure to
make their weekly examination routes.31 Tr. 69-70. As management had countersigned the
books, they were aware that the water was present.32 Tr. 70, 82 McDonald stated that it was the

31

The citation was issued to Oak Grove’s Larry Pasquale. Tr. 70, GX 6. This is among
the stipulations in this case. It reflects that the March 9, 2010 Order is a final order of the
Commission. In fact, Inspector McDonald was present at the mine’s safety office when
Inspector Freeman issued the citation. Tr. 72.
32

Once again, to be complete, McDonald affirmed that his focus was upon both tripping
and falling hazards as well as the inability to reach required areas to make the required readings.
(continued...)
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mine’s duty to remove the high water to the point the entries could in fact be examined in their
entirety, so that the required air and air quality readings could be made. Tr. 70. As just noted,
associated with that earlier citation (i.e. No. 6699704) is GX 7, which consists of Inspector
Freeman’s handwritten notes and the Old Works fireboss rounds connected with that. Tr. 73.
Freeman issued his citation at 7:40 that morning, a little more than an hour after his arrival at the
mine.33
As with its S & S analysis, Respondent asserts that the Secretary failed to prove that any
aggravated conduct was associated with the violation. R’s Br. at 20. Maintaining that neither the
extent nor the duration of the violation was extensive, Respondent curiously first reminds the
Court that, at least from Respondent’s perspective, this was the same condition that had been
previously cited by Citation No. 6699704, as asserted in its argument that the matter at hand is
duplicative. Having asserted that, Respondent then, shifted its argument, maintaining that the
condition only existed for “essentially one shift.” R’s Br. at 22.
With the exam needed to be done no later than the afternoon shift on March 22nd,
Respondent concedes that did not happen but that the absence of an exam only existed for a short
time. Of course, the claimed “short duration” of the violation did not happen in a vacuum. There
was, after all, some history here, namely the 103(g) complaint. Nor was the mine’s action
attributable to some proactive safety step taken by the operator, as Inspector McDonald issued his
Order and the miners were then evacuated from the mine.34
Respondent also contends that the violation did not present any danger, maintaining that
the Commission has relied upon such an evaluation and whether a “high degree of danger” exists,
to support an unwarrantable failure finding.35 Because the evidence did not establish a hazardous
condition with the ventilation and failed to show that the condition “actually affected the
ventilation,” Respondent maintains no unwarrantable failure was demonstrated. R’s Br. at 23.
However, this may be equally attributable to good fortune. Further, as noted, the after-the-fact
32

(...continued)
The latter was also part of his determination that the violation was “S & S.” Tr. 85.
33

A difference, which the Respondent attempts to make much of, Inspector Freeman,
stated that there were no known conditions that could cause an ignition and listed the violation as
non-S&S. However, unlike McDonald, Freeman did not go underground to personally view the
situation. Thus, while Freeman’s violation was based strictly on not entering the weekly routes
being made on March 4th and 5th, 2010, Inspector McDonald’s order rested upon a physical
examination of the route and the observed hazardous conditions that existed. Tr. 75.
34

Confusing an “S & S” analysis with the unwarrantable failure issue, Respondent argues
that the cited condition was “far away from the active areas of mining.” R’s Br. at 22.
35

Respondent cites IO Coal, 31 FMSHRC at 1356 for the proposition that a high degree
of danger is considered in the unwarrantable failure analysis. R’s Br. at 22.
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determination approach, not applicable to an S & S analysis, is even less pertinent to the
negligence and unwarrantable evaluation.
Respondent also urges that it had “no reason to believe that greater efforts were required
beyond the pumping procedures” it was implementing. In this regard it notes that the earlier
citation for the problem was not marked as “S & S” and it believes that this translates into a lack of
notice that it should have been on “heightened alert” to increase its compliance efforts. It points to
its diligent efforts to remove the water from the area with all the pumps it had employed to deal
with the problem. In an observation that the Court believes undercuts the Respondent’s
contention, Respondent notes that its own examiners could not “conduct the requisite examinations
for the faces of 10 South on March 11th [nor a week later on March] 18th [and that both] Mr. Shortt
and Mr. Miller ordered that the examinations be conducted on March 20.” Even then, Respondent
admits, “water impeded [the mine’s own] examiners from conducting the examinations.” R’s Br.
at 24. Of course, the condition cited by Inspector McDonald was not the only problem present, as
the mine had been shut down because of the “atmospheric issue behind the seals.” By its account,
Mr. Shortt had ordered that the exam in issue be conducted before production resumed on the
midnight shift on March 23, 2010 and it was on the morning of March 23rd that he then discovered
that the exam had not been done. This recounting omits that it was not simply that the exam had
not been done but that it could not be done. Shortt, it contends, did not know that the exam had
not, nor could not have, been done and that his mistake did not rise to any reckless disregard or
unwarrantable failure on the mine’s part. R’s Br. at 25. Shortt, Respondent contends, simply did
not know that the exam was not done.
Last, Respondent maintains that it took “reasonable steps to abate the purported violation,”
and that such reasonable efforts by the mine bears upon the unwarrantable analysis. R’s Br. at 26.
Oak Grove, it contends had taken “significant steps” both to pump out the water accumulations
and to attempt the required weekly examinations. In this regard it points to the various pumps it
had installed to address the water accumulations and its unsuccessful attempts to do the required
examinations. Viewing its efforts as diligent, it maintains that the steps it took were inconsistent
with a conclusion that its failure was unwarrantable.
In addressing the unwarrantable failure contention, the Secretary notes that the Inspector
found both Mine Foreman Keith Miller’s signature and General Mine Foreman David Ingle’s
signature on the March 18th Old Works 10 South exam, along with the certified mine examiner’s
signature for that date. Ineluctably this meant that those two foreman were fully aware that the
weekly exam could not be completed or, an equally bad conclusion, that they simple signed the
report without ever looking at it. Whether the information identifying the problems was simply
ignored or the foremen didn’t look at it, as they were supposed to, the purpose of management’s
signature is to make them aware of the problems noted in the examination and to attend to them
immediately. Upon finding the problem, Inspector McDonald then asked if the mine was then
producing coal and Ingle advised that in fact they were. The miners were then withdrawn and the
Inspector went underground to determine if the Old Works 10 South could still not be examined.
Upon doing so, he found that a number of areas could not be made, as previously described.

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It is noteworthy that Inspector McDonald’s ensuing Order , in which he listed the areas
which could not be made for the return air course, noted that the certified examiner identified such
areas on March 18 and again on March 20, 2010, and that such problems, though identified, were
countersigned by members of management. Inspector McDonald then included in his Order that a
“HIGH NEGLIGENCE” Citation (# 6699704) had been issued on March 9, 2010 “for entering the
mine with weekly routes not being made and not being made in its entirety.” Further, Inspector
McDonald’s Order pointed out that the mine had been “cited for a violation of 75.364(b)(2) seven
times in the past 2 years.” Order No. 8518110. Given the history, including the recent history by
virtue of Inspector Freeman’s prior citation for the same failure, that the problem was clearly
identified by the mine’s certified examiner and that two management officials signed off on the
examiner’s report which listed the problem, this demonstrates a serious lack of reasonable care on
mine management’s part for which it was clearly on notice of the obvious and extensive violation
of the provision.
Accordingly, based on the foregoing, the Court affirms the violation, finding that it was
both significant and substantial and an unwarrantable failure on the part of Respondent Oak Grove
Resources LLC.
PENALTY
The principles governing the authority of Commission administrative law judges to assess
civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the
Mine Act delegates to the Commission and its judges the authority to assess all civil penalties
provided in the Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. 815(a), 820(a). When an operator notifies the Secretary that it intends to
challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §
2700.28. The Act requires that, in assessing civil monetary penalties, the Commission shall
consider the six statutory penalty criteria: [1] the operator's history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation. 30 U.S.C. 820(i).
The parties have stipulated that Oak Grove demonstrated good faith in the abatement of the
Order, and that the proposed penalty will not affect the Respondent’s ability to remain in business.
GX 1, the R 17 history report, covering March 23, 2008 through March 22, 2010, was admitted,
with the notation that this history of violations includes the March 9, 2010 citation but that it was
not a final order as of the date of the time captured in this history report. Tr. 17. The Court has
considered the appropriateness of such penalty to the size of the business; Oak Grove was assigned
13 points out of 15 possible mine points and 8 controller points out of a possible 10 points.
Accordingly, the Respondent is a large mine. The negligence and gravity have already been
extensively discussed.
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ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), the Court assesses a
civil penalty of $70,000.00, the same amount as specially assessed. Oak Grove Resources, LLC is
hereby ORDERED TO PAY the Secretary of Labor the sum of $70,000.00 within 30 days of the
date of this decision.

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

Distribution: (First Class U.S. Certified Mail)
Mary Beth Zamer, Esquire
Jennifer Booth-Thomas, Esquire
United States Department of Labor
618 Church Street, Suite 230
Nashville, TN 37219-2456
R. Henry Moore, Esquire
Jackson Kelly, PLLC
Three Gateway Center
401 Liberty Avenue, Suite 1340
Pittsburgh, PA 15222

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

March 12, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
PALMER COKING COAL CO., LLP
Respondent.

:
:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS:
Docket No. WEST 2008-934-M
A.C. No. 45-03338-113621
Docket No. WEST 2009-1164-M
A.C. No. 45-03338-191588
Docket No. WEST 2010-1764-M
A.C. No. 45-03338-229589
Mine: Morgan Kame Terrace

DECISION
Appearances: Amanda Slater, Esq, U.S. Department of Labor, Denver, Colorado on behalf of
the
Secretary
William Kombol, Manager, Palmer Coking Coal, Co., LLP, Black Diamond,
Washington on behalf of Palmer Coking Coal, Co., LLP
Before:

Judge David F. Barbour

These cases are before the Court on consolidated Petitions for Assessment of Penalty
filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977. 30 U.S.C. § 815(d). The petitions allege that Palmer Coking Coal Co., LLC
(“Palmer”) is liable for five violations of the Secretary’s Mandatory Safety Standards for Surface
Metal and Nonmetal Mines. 30 C.F.R. Part 56. The Secretary proposes penalties of $5,280 for
the violations. The parties presented testimony and evidence at a hearing in Tacoma,
Washington.1

1

At the hearing the Court noted that in her prehearing report counsel for the Secretary
stated she planned to vacate the citation alleging the sole violation at issue in Docket No.
WEST 2009-1164. Tr. 5. Palmer agreed that vacation of the citation was appropriate. Id. The
Court stated that it too agreed, and that it would order vacation and dismiss the docket in this
decision. Id.
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STIPULATIONS
At the commencement of the proceeding, counsel for the Secretary and the company’s
representative and general manager, William Kombol, agreed:
1. That Palmer . . . is the owner and operator of the Morgan Kame Terrace [Mine];
2. That Palmer exhibited good faith in abating each of the violations at issue.
Tr. 8.
HISTORY OF PREVIOUS VIOLATIONS
After these stipulations were entered, counsel for the Secretary introduced computer
generated records showing the number of violations issued at the mine 15 months prior to the
subject violations. Tr. 10-11. The print-outs reveal that the mine has an applicable previous
history of 15 violations. Gov’t Exh. 17. By any measure, this is a small history.

THE MINE AND MSHA’S INSPECTIONS
At the time he testified, Anthony Turcotte was the acting health and safety manager of
the Kettle River Operation of Kinross Gold Corporation, a Washington facility at which gold is
mined and processed. Tr. 11. Turcotte had worked for Kinross for approximately one and one
half years. Tr. 12. Before that, Turcotte worked for MSHA as a mine inspector. He started with
MSHA in October, 2005, and he left in October, 2009. Id. Prior to joining the agency, Turcotte
had considerable experience in surface and underground mining, much of it as an equipment
operator. Tr. 13. As an MSHA inspector Turcotte visited both surface and underground mines.
He estimated that he conducted between 60 and 75 inspections a year. Tr. 14.
Palmer’s Morgan Kame Terrace Mine is a sand and gravel surface facility. It is located
in King Country, Washington. Tr. 14. Turcotte believed that material extracted at the mine was
used for cement, for road building, and for “similar type activities.”2 Id. Turcotte inspected the
mine twice, once in December 2005, and again on October 4, 2006. Tr. 14. During the course of
the inspections Turcotte saw Caterpillar front-end (“loaders”) and other smaller loaders

2

Kombol testified that product from the mine was never delivered by the company
outside of Washington state, but he agreed that customers from other states could order product
through a vendor in Renton, Washington. Tr. 165.
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operating at the mine. Turcotte testified that the Caterpillar loaders were manufactured in
Illinois.3 Tr. 15.
When Turcotte visited the mine in December, 2005, he was not yet a fully authorized
inspector. He accompanied MSHA Inspector Gary Tolman. Traveling with Tolman was part of
Turcotte’s training. Tr. 59-60. While at the mine in December, Tolman and Turcotte were
accompanied by Peter West, Palmer’s safety manager. Tr. 64. When Turcotte returned to the
mine on October 4, 2006, he did so as a full-fledged inspector and as MSHA’s sole
representative. During the course of the October inspection Turcottte was again accompanied by
West. Tr. 15-16. It was during this inspection that Turcotte served Citation No. 6396248 (Gov’t
Exh. 1) on Palmer’s long time owner and mine manager, Kombol.4 Tr. 16-17.
CITATION NO.
6396248

DATE
10/4/06

30 C.F.R. §
56.9300(a)

The citation states:
The berms of the [M]ain [H]aul [R]oad and the Morgan
Terrace intersection were not maintained where a drop[-]
off existed of sufficient grade or depth to cause a vehicle
to overturn or endanger persons in equipment. The large
rocks which were on the corner of the Morgan Terrance
intersection and Main [H]aul [R]oad were knocked off the
the drainage ditch below by passing slurry dump trucks.
The slurry dump trucks travel the Morgan Terrance road
4-5 times a day to dump slurry into the drainage ditch.
The unbermed area was approximately 80-90 feet long
and the drainage ditch was approximately 12 feet below
the roadway[. The ditch] . . . had approx[imately] 1-2 feet of
standing water. Tire tracts were observed along the edge

3

In its answers to the Secretary’s petitions, Palmer stated that it “dispute[d the
Secretary’s] assertion that . . . [the mine was] subject to the Act or that [the mine’s] products
enter[ed] into and affect interstate commerce.” See e.g. Petition of Palmer for Relief, V at 2
(January 5, 2010). Palmer did not specifically raise the issue of jurisdiction at the hearing.
However, had Palmer maintained its challenge, the company would have lost. The ability of out
of-state customers to order product from the mine (Tr. 165) and the use at the mine of equipment
manufactured out-of-state (Tr. 15) means that the company and its mine clearly affected
interstate commerce and came within the compass of the Act. It also means that MSHA
rightfully inspected the mine.
4

At the time of the hearing, Kombol had been the manager for approximately 28 years.

Tr. 110.
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of the unbermed roadway above the drainage ditch. The
[M]ain [H]aul [R]oad, which intersects the Morgan
Terrace [R]oad, was used daily by plant equipment and
dump trucks to drive to the plant from the scale house,
main shop and equipment ready line. The Mine
Manager[,] Bill Kombol[,] stated that he travels the
Main [H]aul [R]oad and the Morgan Terrace [R]oad
one to two times per week to conduct visual safety
inspections throughout the plant. The mine operator has
engaged in aggravated conduct constituting more than
ordinary negligence in that the hazardous condition was
open and obvious, the same location had been cited on a
previous inspection and the mine operator failed to take
the corrective actions to correct the hazard. This
violation is an unwarrantable failure to comply with a
mandatory standard. Historically in the mining
industry vehicle overturns from elevated roadways has
been known to cause injuries of a serious nature.
Gov’t Exh. 1.
Turcotte testified that he issued the citation because, “In the area along the Maine Haul
Road in the Morgan Terrance Road intersection, I found that the rocks that were in place were
knocked off of the roadway and were not sufficient to impede equipment from going off of the
roadway.”Tr. 17. Turcotte cited the company for a violation of section 56.93009(a), a standard
requiring berms to be provided and maintained on the banks of roadways where a drop-off exists
of sufficient depth to cause a vehicle to overturn or endanger persons. Tr. 18. Turcotte believed
that a drop-off would be of sufficient grade or depth to cause a vehicle to overturn if it was
“nearly vertical or . . . would cause the piece of equipment to tip.” Tr. 34. According to
Turcotte, drop-offs like that existed along the Morgan Terrace Road and the Main Haul Road
intersection. Id., Tr. 34.
Turcotte drew a diagram of the Main Haul Road and the Morgan Terrance Road. Gov’t
Exh. 19. He noted on the diagram that the Main Haul Road began off a public county road at the
back entrance to the mine. Tr. 19–20. (The county road is depicted and labeled on the left side
of the diagram. Gov’t Exh. 19.) The Main Haul Road ran into the mine and past the mine’s wash
plant, which is located on the south side of the haul road. Tr. 20. Further along, the Morgan
Terrace Road intersected with the Main Haul Road on the haul road’s north side. Turcotte
testified that the Morgan Terrace Road then continued on and entered private property. Kombol
thought it ultimately lead to Kombol’s residence. Tr. 20-21. According to Turcotte, the road,
which was subject to two way traffic, was regularly used by slurry trucks. The trucks traveled
along the road to reach the point where slurry was dumped. Tr. 25, 28, 144. Turcotte testified
that roads at the mine generally were approximately 15 feet wide (Tr. 27; Gov’t Exh. 1 at 3),

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which he described as “pretty narrow.”5 Tr. 28. Turcotte agreed, however, that at the point
where the Main Haul Road intersected the Morgan Terrace Road, the road was approximately 30
feet wide. Tr. 83.
Turcotte took a photograph of the intersection of the Main Haul Road and the Morgan
Terrace Road while he was standing on the Main Haul Road facing the Morgan Terrace Road.
Tr. 29; Gov’t Exh. 2 at 1. In the photograph two vehicles (a truck and an SUV) can be seen.
Gov’t Exh. 2 at 1. Turcotte stated that vehicles were parked on the Morgan Terrace Road
heading away from the Main Haul Road. Tr. 29. He also stated that a drop-off about which he
was concerned was to the right of the vehicles, near the intersection. Id., 31. He recalled that the
drop-off was difficult to see because vegetation had grown along its sides.6 Id. None the less, he
maintained that the drop-off was nearly vertical and that it had one to two feet of standing water
at its bottom. Tr. 30. Turcotte did not recall the exact depth of the drop-off, but he stated that it
was “significant enough that it would need a berm.” Tr. 97.
Trucotte also photographed tire tracks that ran along the right side of the Morgan Terrace
Road when heading away from the Main Haul Road. Tr. 30; Gov’t Exh. 2 at 2. In Turcotte’s
opinion the tracks came “dangerously close” to the edge of the road. Tr. 30. He described the
tracks as passing, “within inches of the road’s edge.” Id. He believed the tracks were made by
slurry trucks and that the trucks had to “take the corner tightly” when they turned from the Main
Haul Road onto the Morgan Terrace Road. Id.
Turcotte testified that there were no berms along the Morgan Terrace Road where the
drop-off existed. Referring to his contemporaneous notes, Turcotte stated that approximately 80
to 90 feet of the road should have had berms. Tr. 31; Gov’t Exh. 1. Turcotte thought berms were
also required at and near the intersection where the Morgan Terrace Road left the Main Haul
Road. He could not mandate them beyond these points because he had no authority to require
them on private property. Tr. 25, see also Tr. 82. However, he could and he did require them on
mine property because some of the rocks formerly serving as berms had been pushed or had slid
off the side of the road and into the drop-off, or into the “ditch,” as both Turcotte and Kombol
sometimes called the drop-off.7 Tr. 32; Gov’t Exh. 2 at 4; see also Tr. 98-99. Other rocks had
been pushed or had slid off the side of the road and part way down its bank. Tr. 87.

5

Turcotte’s recollection was challenged by Kombol, who testified that for most of its
distance the Main Haul Road was approximately 35 feet wide. Tr. 119.
6

The Court notes that the drop-off is more apparent in a photograph Tucotte took after
the alleged violation was abated by berming the area. Tr. 31-32; Gov’t Exh. 2 at 3.
7

Turcotte testified that he could not tell how many rocks ended up “in the ditch” because
the vegetation “was too thick.” Tr. 105. Kombol, on the other hand, was certain that there were
no rocks at the bottom of the drop-off, that all of the rocks except one were where they were
originally placed. Tr. 124.
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Turcotte acknowledged that rocks had been purposefully placed along the road to abate a
previous citation for missing berms, a citation issued by Inspector Gary Tolman in December,
2005. Tr. 88. Tolman approved of Palmer using the rocks as berms, something that Turcotte
would not have done because Turcotte believed that, “[R]ocks do not serve [as] berms under the
standard.” Id., see also Tr. 104. Turcotte did not recall whether or not he questioned Tolman
about Tolman’s decision to allow Palmer to use rocks along the road. Tr. 95.
In Turcotte’s opinion a berm could be located on either a road’s shoulder or its bank, “As
long as the berm has a substantial base, . . . and is at least [the] mid axle height of the largest
piece of equipment that travels the [road.]” Tr. 95. He further explained that during his training
to become an inspector he learned that: “Earthen material has been proven historically to be a
better protective device along roadways.” Tr. 96. He acknowledged however that such “earthen
material” was not an exclusive berming agent and that other materials could be used for berm
construction. Tr. 96. In any event, Turcotte emphasized that his actions were governed by the
regulatory definition of “berm,” which states that the word:
[M]eans a pile or mound of material along an
elevated roadway capable of moderating or limiting
the force of a vehicle in order to impede the vehicle’s
passage over the bank of the roadway.
30 C.F.R. § 56.2, Tr. 89. Turcotte believed that the individual rocks used by Palmer with
Tolman’s approval would be “ineffective” in impeding a vehicle’s passage over the bank of the
roadway. Tr. 90. Moreover, they were not “sufficiently placed to impede a vehicle from going
off the roadway.” Tr. 32.
Turcotte found that if mining continued it was reasonably likely that a vehicle would
overtravel the road and overturn. When it happened, the vehicle’s driver was reasonably likely
to suffer at least a permanently disabling injury. Gov’t Exh. 1. He stated that “statistically [these
are] the type[s] of injuries that occurred in . . . similar accidents.” Tr. 35. He noted that the road
was traveled frequently each work day and the extent of the unbearmed area meant that there
was an increased chance that a vehicle would leave the road and go over the unbermed edge. Tr.
38-39. Further, the steep nature of the drop-off increased the likelihood that a vehicle would
overturn once it left the road. Tr. 40.
The inspector also found that the alleged violation was caused by Palmer’s high
negligence and unwarrantable failure. He believed that the lack of berms in the cited areas was
visually obvious and he noted that Kombol traveled past the area “one or two times per week,”
something that Kombol acknowledged. Tr. 40, 166; see Gov’t Exh. 1 at 5. Turcotte also
observed that Palmer was placed on notice that berms were required in December, 2005 (Tr. 41
42), and that Tolman then “reviewed the [cited] standard with the accompanying person from the
mine, [and] discussed the standard[’s] requirements and the abatement [with the person.]” Tr. 42.

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To abate the alleged violation cited by Turcotte, the company put earthen berms along
the shoulder of the cited areas. The dirt was approximately 36 inches high (Tr. 34), which
Turcotte believed was sufficient to impede all vehicles that used the road. Tr. 33. See e.g., Gov’t
Exh. 2 at 5.
For his part Kombol maintained that only one rock had slipped out of place since
December, 2005. It was about two feet off the side of the road and down the bank. According to
Kombol, all of the other rocks were “adjacent to the shoulder of the road.” Tr. 169.
Kombol testified that the rocks were deliberately put on the bank of the road rather than
on the shoulder “to prevent a vehicle from traveling off the bank.” Tr. 169; see also Tr. 125. He
repeatedly emphasized that to the best of his recollection, on October 4, 2006, the rocks were
“precisely where [Palmer] placed them in December[,] 2005.” Tr. 124, 135. In Kombol’s view,
the only problem was at the corner of the intersection where one rock had slipped down the
bank. However, this was not a serious problem because trucks traveled very slowly as they
turned onto the Morgan Terrace Road. Tr. 140, 163. Therefore, the defect in the berm was not
especially hazardous. Tr. 163.
Kombol acknowledged that prior to December, 2005, no berms existed along any of the
mine’s roads. Kombol stated:
[The] roads in the previous 20 years hadn’t been
bermed. We were issued a citation so we went
ahead and bermed them. Nobody in our operation
and none of the previous inspectors had ever
considered them to be a problem but Tolman did
so we bermed them.
Tr. 133.
THE VIOLATION
As previously noted, the standard requires that: “Berms 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.” Citation No. 6396248 charges
that, “The berms of the [M]ain [H]aul [R]oad and the Morgan Terrace intersection were not
maintained where a drop [-] off existed of sufficient grade or depth to cause a vehicle to overturn
or endanger persons in equipment.” To prove a violation of the standard the Secretary has to
show that “the . . . berms . . . [did] not measure up to the kind that a reasonably prudent person
would provide under the circumstances” and she must do so “in the context of the preventive
purpose of the statute.” United States Steel Corporation, 5 FMSHRC 3 at 5 (January 1983). In a
case where some material purporting to act as a berm is present, the Secretary does not need to
establish that the berm material would prevent a vehicle from overtraveling the road. Rather, she
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must show that the material would not allow for the reasonable control and guidance of a
vehicle’s motion. See Dannen & Jansen, Inc., 18 FMSHRC 1796, 1816.
The Court concludes that the Secretary proved that at the cited intersection and along the
road rocks which had once acted as a berm were no longer where they were originally placed
and were insufficient in number and location to impede vehicles using the road – including the
slurry trucks – from going off of the road and over the drop-off. Tr. 17, 25, 28, 144. The Court
fully credits Turcotte’s testimony in this regard. Further, the photographs of the cited area taken
by Turcotte during the October 4 inspection clearly show that while some rocks were present off
the side of the road and down the bank, they were insufficient in number, size, and location to
control and guide a vehicle should the vehicle start to leave the road.8 Gov’t Exh. 2 at 1 and 2;
See Tr. 90-94, 149. Indeed, the lack of adequate berming is so patently obvious it is highly
improbable that as Kombol contended all but one of the rocks was where they were placed in
December, 2005. For this reason, the Court credits Turcotte’s testimony that most of the rocks
had been pushed or had slid off the side of the road and down its shoulder and that some had
ended up in the “ditch.” Tr. 32, 87, 98-99, Gov’t Exh. 2 at 4. In addition, it is obvious to the
Court that Turcotte was right in his belief that once a vehicle overtraveled the road and went
over the drop-off, the vehicle was in danger of overturning. Tr. 97.
Even if Kombol was correct and only one rock at the corner of the intersection had
slipped down the bank (Tr. 143, 163), the Court would find the company in violation of the
standard because the “slip” would have created a gap in the berm material at the intersection and
would have left nothing to help the driver of an overtraveling vehicle regain guidance and
control of the vehicle before going over the drop-off and into the “ditch.” The Court finds
Kombol’s belief that the defect was not particularly hazardous because trucks moved slowly
past the area inapposite to the issue of whether there was a violation of the standard at the
intersection. Tr. 163. Even the driver of a slow moving vehicle can suffer a lapse in judgement
and overtravel a road.
S&S AND GRAVITY
As a general proposition, a violation is properly designated as a significant and
substantial contribution to a mine safety hazard (an S&S violation) if, based on particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to by
the violation will result in an injury or an illness of a reasonably serious nature. Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1
(January 1984), the Commission explained.

8

Although Turcotte implied that had the rocks been more numerous and been located at
the edge of the road rather than down the bank, he would not have found a violation, the Court
draws no conclusions from his testimony. See Tr. 90-94, 149. The hypothetical scenario laid out
by Turcotte was just that – hypothetical. The Court must determine the validity of the violation
based on facts that actually existed on October 4, 2006.
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In order to establish that a violation of a mandatory
safety standard is [S&S] under National Gypsum,
the Secretary . . . must prove: (1) the underlying
violation of a mandatory safety standard; (2) a
discrete safety hazard – that is a measure of
danger to safety – contributed to by the violation;
(3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question
will be of a reasonably serious nature.
6 FMSRHC at 3-4; see also Austin Power v. Secretary, 861 F.2d 99, 103-104 (5th Cir. 1988),
aff’g 8 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985), the Commission
explained part three of its Mathies criteria as follows:

`

[T]he third element of Mathies . . . “requires that the
Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which
there is an injury.” U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have
emphasized that, in accordance with the language of
section 104(d)(1), it is the contribution of a violation
to the cause and effect of a hazard that must be
significant and substantial. U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1866, 1868 (August 1984)
(emphasis in original).

The Commission subsequently reasserted its prior determination that as a part of any
S&S finding, the Secretary must prove the reasonable likelihood of an injury occurring as a
result of the hazard contributed to by the cited violative condition or practice. Peabody Coal Co.,
17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc.,18 FMSHRC 508 (April 1996).
However, the Secretary is not required to show that it is more probable than not that an injury
will result from a violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).
Resolution of whether an inspector’s S&S finding is proper must be made assuming
continued normal mining operations. U.S. Steel Mining Co., 18 FMSRHC 1541, 1550
(September 1996). Thus, consideration must be given to both the time that a violative condition
existed prior to the issuance of a citation, and the time that it would have existed if normal
operations had continued. Bellefonte Lime Co., 20 FMSRHC 1250 (November 1998); Halfway,
Inc., 8 FMSRHC 8, 12 (January 1986). Further, the question of whether a particular violation is
S&S must be based on the particular facts surrounding the violation. Texas Gulf, Inc., 10
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FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (December
1987). Finally, the Commission and the Courts have held that the opinion of an experienced
MSHA inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland
Coal Co., 20 FMSHRC 175, 179 (December 1998); see also Buck Creek Coal, Inc. v. MSHA, 52
F.3d 133, 135-136 (7th Cir. 1995).
The gravity of a violation is not synonymous with its S&S nature. 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 (September 1996).
The Court concludes that Inspector Turcotte properly found the violation to be S&S.
Tracking the Commission’s explanation of the term “S&S,” the Court notes that there was a
violation of section 56.9300(a) and that the violation, the lack of berms above a steep drop-off on
a well traveled road, contributed to the hazard that a vehicle – most likely a slurry truck –
turning onto the road and continued along it would go off the road’s shoulder and over the bank.
Because most of the rocks that served as berms were pushed or had slipped down the shoulder,
there was little in place to restrain the vehicle and alert the driver to take corrective action. By
the time the driver realized that the truck was off of the road, it would be on its way to the
bottom of the drop-off and in danger of overturning.
Moreover, given the unchallenged testimony that slurry trucks used the road (Tr. 25, 28,
144), the fact that other vehicles also used the road at times [9], and Turcotte’s credible
description of tire tracks that passed dangerously close to the edge of the road (Tr. 30), the Court
concludes that during the time the road lacked adequate berms and during the time it would have
lacked them as mining continued, it was reasonably likely a vehicle would have left the road,
plunged down the bank and that the driver would have suffered at least a reasonably serious
injury.10 In addition, although the Court credits Kombol’s statement that trucks traveled slowly
when they turned onto the Morgan Terrace road (Tr. 163), it finds that with no adequate berm
present, even a slow moving vehicle would be prone to go off the road and down the road’s bank
if it traveled too close to road’s edge, and the Court is mindful of Turcotte’s credible testimony
that tire tracks indicated vehicles passed dangerously close to the edge. Tr. 30.

9

The Court notes Kombol’s testimony that he traveled past the cited area once or twice a
week. Tr. 166. The Court also notes Turcotte’s identification of an SUV as being on the road
during his inspection. Tr. 29; Gov’t Exh. 2 at 1
10

The potential gravity of the likely injury was augmented by Turcotte’s uncontested
testimony that there was one foot to two feet of standing water at the bottom of the drop-off. Tr.
30. The Court judicially notes that operators of vehicles that have overturned and landed in such
shallow water have been unable to extricate themselves and have drowned.
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The Court also concludes that the violation was very serious. If because of the lack of a
berm a slurry truck or other vehicle left the road, was unable to correct its movement, traveled
over the drop-off, and overturned, the driver was likely to suffer a serious injury or even to be
killed.
UNWARRANTABLE FAILURE AND NEGLIGENCE
The term “unwarrantable failure” is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987).
Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or “serious lack of reasonable care.” Id.; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 193-194 (February 1991). Aggravating factors include the length
of time that the violation has existed, the extent of the violative condition, whether the operator
has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts
in abating the violative condition, whether the violation was obvious or posed a high degree of
danger and the operator’s knowledge of the existence of the violation. See Consolidation Coal
Co., 22 FMSHRC 340 (March 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(February 1994); Windsor Coal Co, 21 FMSRHC 997,1000 (September 1999); Consolidation
Coal Co., 23 FMSHRC 588, 593 (June 2001).
The Secretary’s regulation at 30 C.F.R. §100.3(d) provides that:
Negligence is conduct, either by commission or omission,
which falls below a standard of care established under
the Mine Act to protect miners against the risks of
harm. Under the Mine Act, an operator is held to a
high standard of care. A mine operator is required to be
on the alert for conditions and practices in the mine that
affect the safety or health of miners and to take steps
necessary to correct or prevent hazardous conditions
or practices. The failure to exercise a high standard of
care constitutes negligence.
The Secretary also states that “moderate” negligence is when “[t]he operator knew or should
have known of the violative condition or practice, but there are mitigating circumstances.” 30
C.F.R. § 100.3, Table X. While her characterizations do not bind the Court, they provide an
analytical framework to assess Palmer’s degree of negligence.
Turcotte found that the violation was due to Palmer’s unwarrantable failure and high
negligence, but the Court finds that it was due to neither. Gov’t Exh. 1. Turcotte’s findings were
premised on the fact that Palmer was told in December, 2005 that berms were required, that the
lack of adequate berms was visually obvious and that Kombol passed the area one of two times
per week. Tr. 40. Kombol disputed the alleged visibility of rocks, although he agreed that he
passed the cited area once or twice a week. Tr. 166.
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Considering all of the factors, the Court concludes that mitigating circumstances warrant
finding that the violation was due to Palmer’s moderate neglect. The Secretary concedes that
Palmer’s use of rocks as berms was approved by Tolman. The rocks were put in place
approximately 10 months before Turcotte’s inspection. It is clear that in those ten months the
“berms” approved by Tolman degraded, and it is reasonable to assume that their condition
deteriorated over time as they were subject to changes in the weather and to passing traffic. The
gradual progression of the berms from compliance in December, 2005, to noncompliance in
October, 2006, suggests that the violation was not the result of Palmer’s intentional disregard of
the need for berms or of is indifference. Although Kombol passed the cited area once or twice a
week as he traveled the road (Tr. 166), both Turcotte and Kombol agreed that vegetation grew up
and obscured many of the rocks. Like the degradation of the berms, the growth of the vegetation
did not happen all at once but occurred gradually over time, starting in the spring of 2006. By
the time Turcotte came to the mine in October, 2006, almost all of the rocks had been pushed or
had slipped out of place and their location had been hidden. Tr. 124. 134-135. Palmer’s failure
to detect that many of the rocks were no longer where they had been in December 2005,
constituted a failure to exercise reasonable care. However, given the fact that there was no
showing Palmer should have been aware that the rocks might be pushed or might slip and no
showing that a reasonable operator in similar circumstances would have cut or otherwise
defoliated the vegetation, Palmer’s failure was mitigated. The likely gradual displacement of the
rocks and their measured disappearance under a cover of the growing vegetation meant that the
inadequacy of the berms easily could be overlooked by someone who repeatedly passed their
locations.
CITATION NO.
6396249

DATE
10/4/06

30 C.F.R. §
56.9300(a)

The citation states:
The Main Access road through the yard from the shop to
the Main Haul road did not have berms where a drop[-]off
existed of sufficient grade or depth to cause a vehicle to
overturn or endanger person in equipment. The unbermed
portion of the roadway was approximately 65-70 feet long
and was elevated approx. 3-4 feet. The area was excavated
approx. 2 months ago, backfill was put in to establish the
roadway but berms were not installed. The roadway was
used daily by plant equipment and dump trucks to drive
from the plant to the scale house, mail shop and equip
ment ready line. Mine Manager Bill Kombol stated that
he travels the roadway one or two times per week to
conduct visual safety inspections throughout the plant.
The mine operator has engaged in aggravated conduct
constituting more than ordinary negligence in that the
hazardous condition was open and obvious and the
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mine operator failed to take corrective actions to
correct the hazard. This violation was an unwarrantable
failure to comply with a mandatory safety standard.
Historically in the mining industry vehicle overturns
from elevated roadways has been known to cause
injuries of a serious nature.
Gov’t Exh. 3.
At the hearing there was a dispute between Turcotte and Kombol as to whether the area
cited was along a separate road, the Shop Access Road, or was along a continuation of the Main
Haul Road. See Tr. 45, 118. Inspector Turcotte testified that the cited area was along the Shop
Access Road. Tr. 45, Gov’t Exh. 19. Kombol stated that the cited area was along a continuation
of the Main Haul Road. Tr. 118. The dispute was one of nomenclature only. What is certain
from the testimony of both men and from the exhibits is that the cited area was along a road that
turned off of the Main Haul Road and lead to the mine’s shop and office. See e.g., Tr. 45, 47,
118; Gov’t Exh. 19. Although the Court recognizes that the road could in fact be viewed as a
continuation of the Main Haul Road, it also could be viewed as a separate road, and for the sake
of clarity when discussing the citation, the Court will refer to the road as the Shop Access Road.
Turcotte labeled the Shop Access Road on Government Exhibit 19. Tr. 45; Gov’t Exh.
19. He indicated with a green line where there was an elevated part of the road and where there
were no berms. Tr. 46; Gov’t Exh. 19. He testified that the road was uses primarily to reach the
mine’s shop and office. Tr. 47.
Turcotte photographed the conditions that he cited along the Shop Access Road. Gov’t
Exh. 4. He testified that one of the photographs showed where material had been used to elevate
the road. Tr. 49, Gov’t Exh. 4 at 1. He stated that there was a “nearly vertical” three to four foot
drop-off along one side of the road, a drop-off that he believed was sufficient to cause a vehicle
to overturn if the equipment operator “misjudged the shoulder” and went off of the road. Tr. 50;
see also Tr. 106. Turcotte estimated that the areas cited were approximately an eighth of a mile
or less from the mine office, and that approximately one half of the Shop Access Road lacked
adequate berms. Tr.56. 108. Because of constant traffic to and from the shop and mine office,
Turcotte testified that the road was traveled by mine personnel on a “regular” basis. Tr. 46.
Indeed, on the day of the inspection he had saw front end loaders and employees’ personal
vehicles using the road. Id. After referring to his contemporaneous notes, Turcotte testified that
the road was 15 feet wide and that its shoulders were soft. Tr. 50, 54. The condition of the
shoulders made it more difficult for vehicles to recover if they overtraveled the road. Tr. 54.
Turcotte acknowledged that operators of the equipment wore seat belts, therefore he did
not expect overturned vehicles to result in fatal injuries. Still, various types of spinal injuries
were reasonably likely. Tr. 55. According to Turcotte, the hazards conditions were eliminated
when Palmer installed berms along the road. Tr. 53; Gov’t Exh. 4 at 3.
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For his part, Kombol maintained that the “drop-off” about which Turcotte was concerned
existed on one side of the road only, and that it was not a vertical drop but rather a slope of
between 30 and 45 degrees. Tr. 121, 127. He further maintained that the incline resulted in a
difference of elevation of 12 inches to 18 inches between the top of the road and the bottom of
the incline, not three to four feet. In Kombol’s opinion the incline was insufficient to cause a
vehicle to overturn if the vehicle ran off of the road. Tr. 128; 142-143; Gov’t Exh. 4 at 1. What
Turcotte described as a “drop-off,” Kombol’s described as “a very mild slope . . . protected by a
shoulder.” Tr. 135.
Kombol testified that the company abated the condition by simply smoothing out the
incline. He was sure that the company did not add berm material along the side of the road, and
he described Turcotte’s contrary testimony as “not true.” Tr. 128.
In addition to the elevated portion of the road, Turcotte recalled another area that
required a berm, an excavated area on one side of the road. Tr. 51. Turcotte testified that the
excavation was between 6 to 8 feet deep, and was approximately 20 feet from the edge of the
road. Tr. 52, 107. Turcotte circled the area in green on Government Exhibit 19. Tr. 51; Gov’t
Exh. 19. Turcotte testified that the side of the road bordering the excavation lacked a berm ( Tr.
51; Gov’t Exh. 4 at 2) and that there was nothing to stop a vehicle that ran off the road from
falling into the excavation. Tr. 51.
Because the excavated area was adjacent to the road and because of the significant
number of vehicles that traveled the road and past the excavation daily, Turcotte stated that it
was reasonably likely a vehicle would go off the road and fall into the excavation. Id. He also
speculated that if a vehicle pulled off of the road in the fog to let another vehicle pass, the
vehicle that pulled off could easily be driven into the excavation by mistake. Tr. 55. Turcotte
found that the alleged violation was S&S.
Turcotte described the cited areas as “open and obvious.” Tr. 56. Turcotte recalled that
Kombol said he traveled the cited parts of the road one to two times a week. Id. Turcotte also
noted that the company had been cited for violations of section 56.9300(a) by Inspector Tolman
in December, 2005. Id., see also Tr. 68-70; Gov’t Exh. 4. For all of these reasons Turcotte
conclude that the alleged violation was due to the company’s unwarrantable failure and high
negligence. Id.; Gov’t Exh. 3.
Kombol agreed that the excavated area existed, but he maintained that it was located on
the side of the road opposite from where Turcotte placed it. Tr. 121, 129; Gov’t Exh. 18. Instead
of a depth of 6 to 8 feet, Kombol estimated the area was approximately 3 to 4 feet deep. Tr. 129;
Gov’t Exh. 19. Kombol also testified that the excavated area was approximately 63 feet to 100
feet from the edge of the road. Tr. 131; see also Tr. 136, 143. As for Inspector Turcotte’s
contention that Kombol should have known of the lack of berms because he traveled the road
once or twice a week, Kombol agreed that he traveled the road just as Trucotte testified, but he
maintained that when he did, he did not see anything amiss. He stated, “I [drove] through there
and I . . . look[ed] around. It look[ed] good to me.” Tr. 161. Moreover, according to Kombol, in
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August, 2006, three months prior to Turcotte’s October, 2006 inspection, two other MSHA
inspectors visited the mine. Kombol testified the inspectors drove the same roads as Turcotte
and that conditions were “almost the same” as during Turcotte’s inspection. Tr. 139. Yet, the
inspectors issued no citations for inadequate berms. Id. If the violation existed, Kombol
questioned how it could be the result of the company’s unwarrantable failure given the fact that
the company was not cited in August. Tr. 140. Kombol believed that a logical inference to draw
from the lack of citations prior to Turcotte’s visit was that the company was “doing a good job”
in maintaining the berms. Tr. 160, 162.
Kombol noted that the company had a safety committee and that minutes of the
committee’s meetings were recorded by safety manager, West. The company introduced into
evidence copies of West’s minutes of the meetings of January through September, 2006. Resp.
Exh. 8; see Tr. 153. On January 4, 2006, shortly after Tolman’s citation was issued, West wrote,
“We agree that all b[e]rms are good and road[s] that are not being used are blocked.” Resp. Exh.
8. On February 9, 2006, West wrote, “B[e]rms and blocked roads are in place.” Id. On March 6,
2006, West wrote that another employee told him that “[A]ll non-used roads are blocked and all
b[e]rms are good.” Id. Kombol noted that although the minutes dated August 4, 2006, mention
violations found by MSHA inspectors on August 4, 2006, no violations of section 56.9300(a)
were mentioned in the notes because MSHA’s inspectors found no such violations. Tr. 156;
Resp. Exh. 8. According to the minutes, on August 9, 2006, West was told by another miner that
“[t]he b[e]rms [were] in place.” Resp. Exh. 8. On September 4, 2006, in minutes of the last
safety meeting before Turcotte’s October inspection, West wrote that the
“[b]erms were good.” Id.
THE VIOLATION
The Court finds that the testimony establishes that significant portions of both sides of
the Shop Access Road were elevated but not in such a way that berms were required. The Court
does not accept Turcotte’s testimony that the road was elevated so as to cause a “nearly vertical”
drop of between three to four feet. Tr. 50. Turcotte photographed the areas that lacked berms
(Gov’t Exh. 4 at 1, 2) and the photographs suggest that Kombol was right when he testified the
difference in elevation was between 12 to 18 inches, rather than three to four feet, and that the
difference produced a “mild slope,” one that was not likely to cause an overtraveling vehicle to
overturn or to endanger those in the vehicle’s cab. Tr. 128; see Gov’t Exh. 4 at 1, 2. The limited
and gradual nature of the slop can also be inferred from the fact that, as Kombol maintained, the
allegedly dangerous condition was not abated through the installation of berms, but rather, as the
citation states, through smoothing out or “sloping” the road. Gov’t Exh. 3; Tr. 128. In all
likelihood this would not have happened had the three to four foot “nearly vertical” drop
described by Inspector Turcotte existed. Tr. 50.
Further, the Court finds that although there was an excavated area, it was not sufficiently
adjacent to the Shop Access Road to require the road to be bermed. The Court recognizes that
the witnesses disagreed as to the depth of the excavated area, Turcotte maintained it was 6 to 8
feet deep (Tr. 52, 107) and Kombol maintained it was 3 to 4 feet deep. Tr. 129. Under either
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version the area was deep enough to cause a vehicle to overturn and to endanger those in the
vehicle. The Court also recognizes that the witnesses disagreed as to location of the excavated
area, Turcotte stating it was on the east side of the Shop Access Road, and Kombol placed it on
the west side. Tr. Tr. 51-52, 121,129; Gov’t Exh. 1. Since the Shop Access Road was traveled in
both directions, it is not critical who was correct. Rather, it is the distance of the excavated area
from the edge of the road that is decisive. Turcotte testified that the distance was 20 feet from
the edge. Tr. 50, 107. Kombol maintained that it was at its closest approximately 63 feet from
the edge and that because the excavated area did not run exactly parallel to the road that at its
farthest it was approximately 100 feet from the edge. Tr. 131; Gov’t Exh. 4 at 4; see also Tr.
136, 143. The Court credits Kombol’s version of the facts. Not only was his testimony more
definite, the photo taken after the condition was abated shows a distance far greater than the 20
feet testified to by Trucotte. Gov’t Exh. 4 at 4. The Court concludes from this that there was
sufficient distance between the edge of the road and the excavated area for a vehicle that
overtraveled the road to stop before it reached the excavation and its attendant dangers.
For these reasons, the Court finds that the excavated area did not pose a hazard to
vehicles traveling the road adjacent to it, and the Court concludes that the Secretary did not
establish the violation of section 56.9300(a) that is alleged in Citation No. 6396249.
CITATION NO.
8556174

DATE
7/12/10

30 C.F.R. §
56.14100(b)

The citation states:
The ground plug was missing from the energized
110 volt drop light cord . . . located on the North
wall of the shop. The drop light is used in the
shop area while working on equipment. Without
the energized system being grounded and with
persons working with the energized light a
serious injury could occur.
Gov’t Exh. 10.
MSHA Inspector Gary Hebel is assigned to the agency’s Kent, Washington office. He
has been employed by MSHA since 1998. Tr. 171. Prior to working for the agency, Hebel had a
long career as an electrician and an electrical foreman for various engineering firms and metal
mines. Tr. 171-172. Hebel conducts between 70 and 75 mine inspections a year. Tr. 172-174.
Hebel testified that he inspected Palmer’s mine on July 12, 2010, and that during the inspection
he was accompanied by Palmer miner, Troy Box. According to Hebel, he and Box visited
“Everywhere people work[ed] and travel[ed].” Tr. 175.
During the inspection Hebel had occasion to cite the company for a violation of 30
C.F.R. §56.14100(b), which states in part that, “Defects on any equipment . . . that effect safety
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shall be corrected in a timely manner to prevent the creation of a hazard to persons.” Hebel
issued the citation when he noticed a defective plug on a drop light cord. Tr. 176. He described
the cited equipment as “a mobile light on the end of [a] cord.” Id. He stated that the cord was
designed to be and was plugged into a receptacle that carried 110 volts of electricity. Id.
Hebel took photographs of the cord and its plug. Gov’t Exh. 11. One of the photographs
shows that the ground prong was in fact missing from the plug. Tr. 177, Gov’t Exh. 11. Another
shows the cord’s ground wire. Still another shows a replacement plug with a ground prong. See
Gov’t Exh. 11. The replacement plug was installed to abate the cited condition. Id. Hebel
explained that plugs are manufactured with a ground prong but that as the plugs are used,
“normally [the prongs] get broke off.”11 Tr. 178. Hebel was certain that the ground prong did not
break off when he unplugged the cord to inspect it. Tr. 180; see also Tr. 195. Rather, it had
broken off earlier. Id.
Kombol testified that it was standard procedure for miners to check ground prongs prior
to using any plug. Tr. 203. The goal was to ensure that the equipment powered via the plugs and
cords as well as the cords themselves were properly grounded. Id. Kombol stated that the shop’s
main mechanic, Jack Hope, told him that the ground prongs did not fit well into the receptacles
at the mine and as a result the prongs frequently broke off “on their own accord” when they were
pulled out of the connectors. Tr. 203. In Hope’s view, this had been a problem since “they
started manufacturing [the plugs] overseas.” Id.
Hebel testified that the drop light was used by mechanics when doing maintenance work
on mobile equipment at the shop. Tr. 178-179. The light gave the mechanics better and more
precise illumination. Tr. 178; Gov’t Exh. 10 at 2. The ground prong protected the mechanics or
other miners using the light from severe shock caused by a short.12 Tr. 170.
When Hebel found the defective plug, the cord was plugged in, which indicated to Hebel
that the light was used when the plug was defective and that the defect was not corrected in a
timely manner. Tr. 179. (“You have to plug it in to make it work.” Tr. 184.) In other words,
Hebel believed someone used the defective cord and did not repair the defect. Id. However, at
the time of the inspection Hebel was told that management personnel did not know the plug was
defective, and he was assured that “[Palmer did] yearly continuity resistance tests on their
equipment and if they . . . found [the defect], they would have pulled [the equipment] out of
service.” Tr. 180-181.

11

He also testified that the ground prongs are sometimes purposefully snapped off so the
plugs will fit two-hole receptacles. Tr. 201.
12

Hebel testified that although without a ground prong miners using the light would have
some protection from a short circuit because the light could still ground and its electrical system
shut down, with a ground prong the miners would have more protection because the system
would ground and shut down almost instantaneously. Tr. 197
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In Hebel’s opinion the fact that the prong was missing was “pretty obvious.” Tr. 185.
The defect should have been detected as part of the work place examination of equipment that
takes place before equipment was used. Id. Hebel looked at the company’s work place
examination records. The condition of the light cord’s plug was not reported. Tr. 200
Hebel testified that if the light and cord continued to be used with the defective plug, “the
extension cord would short . . . [which] could result in a fatal injury, as it only takes five mili
amps or less to stop a heart.” Tr. 181. Or, if the light’s bulb broke and a mechanic touched the
electrical components inside the light, the person could suffer a serious shock. Tr. 182-183. One
person, most likely the mechanic using the light, was exposed to the hazard. Id. Because he
concluded that a serious injury was “more reasonably likely than not,” Hebel found that the
condition of the plug was an S&S violation. Tr. 181; See also Tr. 199. He testified that at the
close of the inspection he discussed the alleged violation with Troy Box. Hebel was under the
impression that Box agreed that the citation was warranted. Tr. 183; Gov’t Exh. 18.
THE VIOLATION
As noted, section 56.14100(b) requires that defects on equipment that “affect safety shall
be corrected in a timely manner to prevent the creation of a hazard to persons.” When
determining whether the standard has been violated the evidence must be evaluated in the light
of what a “reasonably prudent person, familiar with the mining industry and the protective
purpose of the standard, would have provided in order to meet the protection intended by the
standard.” See e.g., Cannon Coal Co., 9 FMSHRC 667. 668 (April 1987); Quinland Coal, Inc., 9
FMSHRC 1614-1618 (September 1987). Ideal Cement Co., 12 FMSHJRC 2409, 2415
(September 1990). Apply this test, the Court finds that the Secretary easily established the
violation. There is no dispute about the defect. The ground prong of the plug was missing just
as Hebel testified and just as Government Exhibit 11 shows. Tr. 176; Gov’t Exh. 11. As Hebel
stated, the lack of a ground prong created the hazard of a short circuit resulting in a shock injury
to or in the electrocution of a miner using the light. Tr. 181, 182-183. A reasonably prudent
person familiar with the mining industry and the electrical hazards associated with it would have
ensured that the plug had a ground prong.
In addition, it was incumbent on the Secretary to show that Palmer’s failure to be aware
of and to correct the defect was unreasonable, which means that the Secretary had to offer
evidence as to when the defect occurred or when Palmer should have been aware of the defect.
Oil-Dri Corporation of Georgia, 34 FMSHRC __, SE 2008-793M, etc. (February 14, 2012)
(Judge Rae) at 16. The Court has no problem in finding the Secretary successfully bore her
burden of proof. The most logical inference to draw from Herbel’s unrebutted testimony that the
cord was plugged in when he found it (Tr.179) and from his credible testimony that he was
certain the ground prong did not break off when he unplugged the cord (Tr. 180; also see
Tr. 195), is that the prong was missing when the droplight was last used. Herbel testified that it
was “normal” for the ground prong to “get broke off” (Tr. 178), and Kombol testified that he was
told by the company’s main mechanic about how frequently prongs broke off. Tr. 203. Given
the company’s knowledge of the unreliability of the prongs, it was incumbent on Palmer to
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ensure that a prong was always in place before the cord was used. Indeed, according to Kombol,
the company recognized this by making it a policy at the mine for miners to make sure that
ground prongs were present before they used affected equipment. Id. Either this did not happen
in the case of the drop light, or, if it did, a miner used the equipment anyway. Given all of this,
the only conclusion the Court can reach is that the defect was not corrected in a timely manner.
S&S AND GRAVITY
Hebel found that the violation was S&S, and the Court agrees. Just as Hebel testified, as
mining continued the light and its cord would be subject to continuing use, and it was reasonably
likely that the resulting stains and stresses on the light and cord would lead to a short in the
cord’s wiring. Without a ground prong to immediately shut down the power it was equally likely
that the miner using the light would suffer a serious or even a fatal injury. Tr. 181-183; see also
Tr. 199.
In addition to being S&S, the violation was serious. The Court has been instructed to
focus on “the effect of the hazard if it occurs.”Consolidation Coal Co., 18 FMSHRC 1541, 1550
(September 1996). The Court concludes that the inspector’s unrefuted testimony that a serious
electrical injury or a death could result from the equipment shorting is determinative of the
violation’s gravity. Tr. 179-181.
NEGLIGENCE
Although at the time he cited the violation Hebel found that it was the result of Palmer’s
“low” negligence (Gov’t Exh. 10), his testimony establishes that the company’s negligence was
at least moderate. Palmer should have detected the missing prong and corrected the condition.
Herbel’s belief that the condition was “pretty obvious” (Tr. 185) was confirmed by the
photographic evidence. Gov’t Exh. 11. Moreover, Herbel’s opinion that the hazardous condition
should have been detected and reported by the work place examiner was not countered by
Palmer. Indeed, the fact that the company recognized the hazard and the importance of
protecting its miners through properly grounded equipment was emphasized by Kombol’s
testimony. Tr.203. Herbel looked at the company’s work place examination books to determine
whether the defect had been noted. Nothing was recorded. Tr. 200. The fact that Palmer failed
to detect and correct the “pretty obvious” (Tr. 185) defective condition - a condition about which
it cautioned its miners - means that Palmer failed to meet its required standard of care.
CITATION NO.
8556175

DATE
7/12/10

30 C.F.R. §
56.12004

The citation states:
The energized 16-3 SO type cable powering the Metal Cutting
Band Saw located in the [w]ash plant parts trailer had pulled out
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of the motor approximately ½" allowing the inner conductors
to be exposed to mechanical damage. No visible damage could
be seen to the conductors at this time. Persons use the saw one
or more times a week. With the inner conductors exposed to
damage and with persons using the system a serious injury
could occur.
Gov’t Exh. 12.
Hebel testified that during his July 12 inspection, he found that a cable powering a band
saw had pulled out one half inch from the saw motor’s metal housing exposing the cable’s inner
conductors to possible damage. Tr. 185-186. Hebel readily acknowledged however that at the
time he saw the condition neither the inner conductors nor the cable’s outer jacket appeared
damaged. Tr. 186, 189. Hebel explained that the inner conductors about which he was
concerned were the cable’s interior wires. They were insulated, but “not as good as the outer
jacket . . . of the cable.”Id. Herbal identified a photograph he took that showed “where the cable
. . . [that powered the band saw had] pulled out of the motor housing, exposing the inner
conductors to the . . . sharp metal of the motor[’s] housing.” Tr. 188; Gov’t Exh. 13. The
situation concerned Hebel because the band saw cable carried 110 volts of electricity, the
exposed interior conductors were near the sharp metal edges of the housing, and the band saw
housing was subject to “a lot of vibration” when the saw was used. Tr. 188.
Although Kombol stated he did not contest the fact that the cable had pulled out the
housing, he testified that he was told that only 1/4th inch of the cable’s conductors was exposed,
not ½ inch as Hebel contended. Tr. 204. Kombol agree with Herbal that the cable’s inner
conductors appeared to be fully insulated. Id.
According to Hebel, the band saw was energized at the time he observed the condition.
Tr. 189. If the saw was used and the insulation of the exposed inner conductors was damaged by
being rubbed by vibrations against the sharp metal of the housing, the naked conductors could
touch the metal housing and cause a short circuit that could seriously injure the band saw
operator. Tr. 190, 191. The saw was operated approximately one time a week.Tr. 191. Hebel
believed that because of the vibrations to which the cable was subject, “It was just a matter of
time before [the insulation on the inner conductors would wear away and] somebody would
receive a shock.” Id. Hebel testified that as mining continued it was “more reasonably likely
than not” that an accident would occur. “[S]ooner or later,” he testified, the cable would short.
Tr. 192.
Herbel stated that the cable’s condition was “easily seen.” Tr. 190. Yet the condition
was not reported, nor was the condition corrected. Hebel knew it was not reported because he
looked at the company’s work place examination records. Tr. 200.

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THE VIOLATION
Section 56.12004 requires in pertinent part that: “Electrical conductors exposed to
mechanical damage . . . be protected.” Palmer does not dispute that the violation existed as
charged (Tr. 204) and the testimony fully supports Hebel’s allegation that on July 12, 2010, the
conductors carrying power to the band saw located in the wash plant’s parts trailer were exposed
to mechanical damage because the cable had pulled out of the band saw motor’s metal housing.
Tr. 188; Gov’t Exh. 13. As a result, the conductors, which carried 110 volts of electricity, were
exposed to the sharp edges of the housing’s opening. Tr. 188. When considering the existence of
the alleged violation, the question of whether the conductors were exposed for a half inch as
Hebel believed (Gov’t Exh. 12), or one quarter inch as Kombol testified (Tr. 204), is immaterial.
Under either situation the interior electrical conductors of the cable were exposed to the edges of
the housing and were subject to being rubbed against the edges as the saw operated. Hebel’s
testimony in this regard was not disputed. Tr. 190. Nor was his testimony that such exposure
could cause an electrical short circuit. Tr. 191. Because there was nothing to protect the
conductors except the insulation that wrapped around them – insulation, the Court notes, that
was much less durable than the outer insulation of the cable – the Court finds that the violation
existed as charged.
S&S AND GRAVITY
Hebel found that the violation was S&S in that it could fatally injure one miner. Gov’t
Exh. 12. The record supports his finding. Gov’t Exh. 12. As Hebel observed, the conductors
carried 110 volts of electricity (Tr. 188), and it is common knowledge that exposure to 110 volts
of electricity can cause ventricular fibrillation leading to serious injury or death. All that had to
happen was for the insulation on an inner conductor to be worn away by the vibrating saw and
for the bare metal of the conductors to contact the saw motor’s housing. The housing would be
energized and when the band saw operator touched the housing, he would be serious injured or
killed. Tr. 191. Hebel put it well when he testified that is was “just a matter of time” before such
an accident occurred and that Court agrees with Hebel that as mining continued a serious or fatal
injury was reasonably likely. Id. Further, given the likely results of the expected accident, the
Court finds that the violation was serious.
NEGLIGENCE
The Court also agrees with Hebel that the violation was due to Palmer’s moderate
negligence. In Hebel’s opinion the fact that the cable pulled out of the housing and exposed the
conductors was “easily seen.” Tr. 190. A photograph of the violation supports his assessment.
Gov’t Exh. 13. Palmer does not take issue with the fact that the condition went unreported in its
work place examination book. Tr. 200. The Court infers from Hebel’s testimony that the lack of
a report indicates that the condition might have been of recent origin, mitigating the company’s
negligence to some extent (Id.), and the Court concludes that the record supports Herbel’s
moderate negligence finding.

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ASSESSMENT OF CIVIL PENALTIES
The Mine Act requires the Court to consider six criteria in assessing appropriate penalties
for found violations. The criteria are: (1) the operator’s history of previous violations, (2) the
appropriateness of such penalty to the size of the business of the operator, (3) the negligence of
the operator, (4) the effect of the penalty on the operator’s ability to continue in business, (5) the
gravity of the violation, and (6) the good faith of the operator in attempting to achieve rapid
compliance after notification of the violation. 30 C.F.R. §820(I).
As noted at the start of the decision, the Secretary introduced into evidence computer
print-outs showing that the mine’s applicable history of previous violations is small. Tr. 10-11;
Gov’t Exh. 17. The parties also agreed that Palmer is a small operator. Tr. 223. The company
offered no evidence to establish that any penalties assessed will affect its ability to continue in
business, and the Court concludes that they will not. Finally, the parties concurred that Palmer
demonstrated good faith in abating the subject violations. Tr. 8.
CITATION NO.
6396248

DATE
10/4/06

30 C.F.R. §
56.9300(a)

PROPOSED PENALTY
$2,000

The Court has found that the violation existed, that it was very serious and that it was due
to Palmer’s moderate negligence. Given these findings and the other civil penalty criteria, the
Court assesses a civil penalty of $1,000.
CITATION NO.
6396249

DATE
10/4/06

30 C.F.R. §
56.9300(a)

PROPOSED PENALTY
$2,800

The Court has found that the Secretary failed to prove a violation. Therefore, a penalty
can not be assessed.
CITATION NO.
8556174

DATE
7/12/10

30 C.F.R. §
56.14100(b)

PROPOSED PENALTY
$117

The Court has found that the violation existed, that it was serious and that it was due to
Palmer’s moderate negligence. Given these findings and the other civil penalty criteria, the
Court assesses a civil penalty of $250.
CITATION NO.
8556175

DATE
7/12/10

30 C.F.R. §
56.12004

PROPOSED PENALTY
$263

The Court has found that the violation existed, that it was serious and that it was due to
Palmer’s moderate negligence. Given these findings and the other civil penalty criteria, the
Court assesses a civil penalty of $250.

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ORDER
For the reasons set forth above Citation No. 6396248 IS MODIFIED from a citation
issued pursuant to section 104(d)(1) of the Act, 30 U.S.C. §814(d)(1), to a citation issued
pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a), and the inspector’s negligence finding
IS CHANGED from “High” to “Moderate.” Citation No. 6396249 IS VACATED. The
inspector’s negligence finding for Citation No. 8556174 IS CHANGED from “low” to
“moderate and the citation IS AFFIRMED. Citation No 8556175 IS AFFIRMED. Further, if
the Secretary has not already vacated Citation No. 6480349, she IS ORDERED to do so within
40 days of the date of this decision.13 Within the same 40 days Palmer IS ORDERED to pay a
civil penalty of $1,500 for the violations found above. Upon the vacation of Citation No.
6480349 and payment of the civil penalty, these proceedings ARE DISMISSED.

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge
Distribution: (Certified Mail)
Amanda Slater, Esq., Amanda Slater, Esq., Department of Labor, Office of the Solicitor, 1999,
Broadway, Suite 800, Denver, CO

80202-5708

William Kombol, Manager, Palmer Coking Coal Company, LLP, P.O. Box 10, 31407 Highway
169, Black Diamond, WA 98010
/sa

13

See n.1 supra.
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Telephone No.: (202) 434-9950
Fax No.: (202) 434-9949

March 14, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
LOUDOUN QUARRRIES- DIV/
CHANTILLY CRUSHED STONE INC
Respondent

:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No.VA 2011-268
A.C. 44-00071-245642

Loudoun Qrs - Div/ Chantilly Crushed

DECISION
Appearances: Willow E. Fort, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, for the Petitioner
Joshua E. Schultz, Esq., Law Offices of Adele L. Abrams, P.C., Beltsville,
Maryland, for the Respondent
Before:

Judge Koutras
STATEMENT OF THE CASE

This civil penalty proceeding pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 802, et seq. (2000), hereinafter the “Mine Act,” concern two Section 104(a)
non-significant and substantial (S&S), citations served on the respondent on December 8 and 9,
2010, for alleged violations of mandatory safety standards 30 C.F.R. §§ 56.14100(b) and
56.12005.
A hearing was held on November 9, 2011, in Winchester, Virginia, and the parties
appeared and participated fully therein. The parties waived the filing of briefs, and presented
their respective arguments on the hearing record. I have considered their arguments in the course
of this decision.
The Alleged Violations
Citation number 8578147 is a Section 104(a) non-S&S violation. It was issued on
December 8, 2010, and alleges a violation of 30 C.F.R. § 56.14100(b). It states as follows
verbatim (Exhibit G-l):
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When checked there were no brake lights working on the 992 C
Cat front end loader. The loader was on the ready line next to the
shop to be used when needed. The loader was checked by
company employee before inspection and no brake lights was not
noted. This condition put at risk a rear end collision with no
warning of slowing or stopping which could result in lost work
time injury if a collision occurred. S/N 42X00800
Citation number 8578148 is a Section 104(a) non-S&S violation. It was issued on
December 9, 2010, and alleges a violation of 30 C.F.R. § 56.12005. It states as follows verbatim
(Exhibit G-l-4):
At the repair shop was found a company pickup truck that was
parked on an 120 volt electrical cord that was plugged in to the
heater on the truck engine. This condition put at risk employees of
a shock hazard that may be using the cord later and the cord
damaged by the sharp rocks the truck was parked on.
MSHA Inspector David Nichols testified regarding his mining experience, which
included maintenance and repair of mining machinery, ownership of a welding business, and
working with electricity and fiber optic communications. He has served as an inspector for nine
years and received training at the Beckley Mine Academy. He visited the mine on December 7,
2010, in preparation for his inspection the next day and he reviewed the mine files and prepared
his regular inspection information form and discussed it with plant manager, Rick Hoffman. He
issued no citations that day and returned the next day to conduct his inspection (Tr. 27-31).
Mr. Nichols confirmed that he issued Citation No. 8578147, after finding that both of the
992c front-end loader brake lights were not working (Tr. 32, 36; Ex. G-l, and photographic
exhibit G-3). The machine was parked in the “ready line” area where equipment is parked and
available for use as needed, and where spare parts may be obtained for equipment repairs (Tr.
32-34).
Mr. Nichols stated that based on his past mining experience, equipment on the ready line
would have been looked over and made ready for service and to insure that everything is
functional, and all the safety defects are corrected. This would be done in order to insure the
availability of dependable equipment that could quickly be returned to production (Tr. 35).
Mr. Nichols concluded that the operator had an opportunity to look at the loader before
placing it on the ready line because he knew that he would inspect the equipment at that location
and had started the equipment because it was a cold evening. The equipment operator informed
him that it was preshifted “to make sure everything was good” (Tr. 36-37).
Mr. Nichols stated that after observing the inoperative brake lights, the equipment
operator informed him that he did not check them because he did not have a second person
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available to assist him in observing the lights. Mr. Nichols confirmed that during his close-out
conference with plant manager, Rick Hoffman, he informed him that if the loader were needed it
would have been inspected and the brake lights problem would have been discovered (Tr. 3840).
Mr. Nichols believed the inoperable brake lights presented the possibility of a collision
with equipment that is slowing and stopping. However, he determined that the gravity level was
“unlikely” because the loader would be located in the pit and basically driving into the pit and
leaving in the evening, and would necessarily be following other equipment (Tr. 41).
Mr. Nichols believed that any hazardous rear-end collision could possibly result in head
or neck whip lash injuries. However, he considered the fact that mine management has a good
seat belt policy that is well enforced, and that any injury would result in sore muscles and two or
three lost work days (Tr. 42). He further concluded that the violation was the result of moderate
negligence mitigated by the fact that it has a very good preshift inspection policy (Tr. 44).
In response to bench questions, Mr. Nichols stated that the machine back-up alarms and
seat belts were in working order, and no one would be on foot in the pit area where it would be
operated. He confirmed that he extended the abatement time in order to allow the respondent to
order and receive a required light switch and that the respondent has a good reputation for
terminating citations as soon as possible (Tr. 47-49).
On cross-examination, Inspector Nichols confirmed that there is no requirement for an
equipment ready line. However, any equipment in that area must be preshifted before it is taken
off the ready line and placed into service, and it is not considered to be into service until it is
needed.. He did not know how long a piece of equipment can remain on the ready line (Tr. 6263).
Mr. Nichols stated that the loader was not in operation at the time of his inspection, and
he did not know whether it was intended to be placed in service before he inspected it. However,
the engine was running and the shop employee informed him that he had “checked it out”. Mr.
Nichols did not ask the employee if he conducted a preshift inspection, and the loader was taken
out of service until the brake lights were repaired (Tr. 64-67).
Mr. Nichols believed that the difference between a walk-around check of a vehicle and a
full MSHA required preshift is basically terminology, and would depend on the individual
performing this task. He stated he was informed that the loader was ready for him to inspect, and
not that it was ready to be put in service. He did not believe there should be a difference because
“our standards only specify one type of an inspection of equipment, whether it’s been put in
service or whether I’m there to inspect it, either one” (Tr. 69). He confirmed that there is no
preshift inspection required before a vehicle is inspected by an inspector. He confirmed that
there was no evidence that the loader was operated by anyone with defective brake lights and he
did not know how long they were defective (Tr. 70-71).

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Jesus Vega, Respondent’s equipment operator, confirmed that he was working at the
mine on December 8, 2010, and his supervisor, Johnny Taylor, instructed him to check out the
Euclid 96 and 97, and the 992c Dozer. He confirmed that he started the Dozer but was not
instructed to perform a preshift examination and he did not perform one because that was the
responsibility of the operator of that piece of equipment and he did not operate it that day (Tr.
88-91).
Mr. Vega stated that he did not check the Cat 992 loader brakes because he cannot check
them by himself and needed help and he did not conduct a full preshift examination because he
did not operate the machine. He confirmed that when he performs a full preshift inspection he
includes the brake lights because the driver is present to observe whether the brake lights are
operable (Tr. 92-93). He stated that he is trained to perform a full equipment preshift inspection
examination when he is the operator. He explained the procedures he follows to conduct the
examination, included inspecting the equipment brake system. He confirmed that the full
examination takes one hour (Tr. 94-96”).
Mr. Vega stated that on the day of the inspection he started the cited loader, checked the
engine oil, transmission, hydraulics, and the antifreeze, and turned the lights on to insure they
were operative, but he did not conduct a full preshift examination because he did not operate the
loader that day. He was not planning to use it, was not instructed to use it, and did not move it.
He did not fill out a preshift inspection form which is normal if a full preshift examination is
done. He confirmed that he started four vehicles which took one-half hour, and that a full
preshift takes one hour (Tr. 96-99). Mr. Vega stated that his supervisor instructed him to start the
equipment because Inspector Nichols was coming. He turned on the loader lights but did not
check the brake lights because he had no one to help him (Tr. 99-101).
Johnny Taylor, head quarry pit foreman for 15 to 18 years, testified that there has never
been an area called a “ready line,” but there is an “available” area. He stated that the area
characterized by MSHA as a “ready line’’ is an area where equipment that is not in use is parked
together with equipment that is taken for use. The equipment that is not used on any day remains
parked (Tr. 103-104).
Mr. Taylor stated that the parked equipment is not ready for immediate use until it is
preshifted and is ready for use. A preshift is required if the equipment is scheduled for use,
regardless of the operational time (Tr. 105). He confirmed that he was present during the
inspection. He stated that the loader is a spare and may be used if needed, but only after it is
preshifted and it is infrequently used. He believed that it was not used during the week of
December 8 because it had not been inspected (Tr. 107).
Mr. Taylor stated that Mr. Rick Hoffman, his supervisor, instructed him to start the
parked equipment which was not to be used, including the loader, and four of five pieces of pit
equipment for the inspector to look at. He then instructed Mr. Jesus Vega and employee Juan
Maple to start the equipment and check it out because of the cool weather, but he did not advise
them that they were to operate the loader or to preshift it because it was not intended to be used
(Tr. 109).
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Mr. Taylor confirmed that he trained equipment operator Jesus Vega to conduct full
preshift examinations that take 45 minutes to perform, as well as the preparation of the required
check list forms confirming the examinations. The training took place during personal safety
meetings and video presentations with Mr. Taylor’s crews, including Mr. Vega (Tr. 110-119;
Exhibit R-2 through R-5). He stated that in order to fully preshift the loader it would have to be
taken to the pit to check the parking brake because of the road grade where it would be
operating. That preshift would have included checking the brake lights (Tr. 111).
Inspector Nichols confirmed that he issued Citation No. 8578148, after observing a
pickup truck parked on a 120 volt extension cord used to heat the truck heater while parked, just
outside the shop on the gravel parking lot, and he photographed the truck (Tr. 50; Exs. G-1-4, G3-2). He explained that an extension cord is generally hung up over the outside truck mirror
pursuant to company policy as a reminder to drivers not to drive over a cable and jerk it loose.
When not in use, the extension cord is normally kept outside of the shop (Tr. 52).
Mr. Nichols stated that the cited Section 30 C.F.R. § 56.12005, language requiring a
power conductor to be “properly bridged or protected” is intended to protect the cable insulation
from being crushed or cut if it were run over. Any damage to the cable insulation would expose
anyone picking it up to an electrical shock hazard. He explained that the standard requires a
structure, such as one using 2 x 4 or 2 x 6 wood placed on either side of the cable to protect it
temporarily if someone were to run over it (Tr. 52-55).
Mr. Nichols determined the gravity level as “unlikely” in that the cited occurrence was
rare and the respondent has a policy in place to prevent it. He believed that the truck operator
failed to notice that he had backed over the top of the cable that was under the rear tire
approximately twenty feet where anyone could pick up the brightly colored yellow cord and
drape it over the truck rear-view mirror. He stated the truck was used to transport tables that
were used for his safety meeting that morning (Tr. 55-56).
Mr. Nichols stated that the hazard presented by running over the extension cord included
damage to the inside conductors, and ground, and outer insulation cuts caused by the gravel that
could later expose someone to a 120 volt electrical shock hazard (Tr. 57).
Mr. Nichols described the hazards associated with the breaking of the outer extension
cord insulation, including a fatal shock from the 120 volt cord, as well as damage to the inside
cord conductors that are not visible and could do damage to the ground circuit which could result
in an electrical shock if anyone touched the cord (Tr. 57-59).
Mr. Nichols stated that the cited cord was tested to insure that the inside and outside
conductors were in good shape through a visual check of the cord exterior and a continuity test
by an electrician on the interior of the cord. He stated that he based his “moderate” negligence
finding on the respondent’s cord hanging policy, the fact that the cord was not damaged, and the
annual continuity tests conducted by the operator on all of its electrical cords (Tr. 60).
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On cross-examination, Inspector Nichols believed the phrase “to protect a power
conductor” means insulated or isolated from damage. He stated that bridging or hanging up a
cord, as well as putting it in a piece of conduit and burying it in the gravel are examples of
protection (Tr. 72, 74).
Mr. Nichols stated that he found no evidence of any damage to the cord, and he
confirmed that his gravity finding of “unlikely” was based on the fact that the cord was a new
heavy duty and heavy insulated cord with no cuts and was tested and found to be “OK” (Tr. 75,
Exhibit G-2-2).
Mr. Nichols concluded that the cord was heavy due to its size and gauge. He confirmed
that the power conductors are inside of the cord and that the heavy insulation helps to protect the
conductors “to certain extents, except when you run over it”, and that it “probably helped”
protect the conductors in this case.
Mr. Nichols attributed the lack of damage to the cord to the tact that it was the first time
it was run over, and he did not take it out of service because it was tested and checked and no
damage was found. He then terminated the citation and the cord was in compliance and allowed
to be used (Tr. 77).
On re-direct examination, Mr. Nichols stated that the size of the truck parked on the cited
cord can damage a heavy duty extension cord, and if any danger is not visible from the outside, it
can still be damaged, and it must be tested to determine that damage has occurred (Tr. 81).
Discussion and Findings and Conclusions
The cited mandatory safety standard 30 C.F.R. § 56.14100(b), with respect to Citation
No. 8578147, states as follows:
Defects 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 petitioner asserts that the evidence establishes that the loader brake lights were
inoperative and not functional when the inspector observed them and the loader was examined
before the inspector viewed it. The petitioner pointed out that the employee who inspected the
loader did not see the brake lights because he was not provided another employee to assist him,
but that the loader was nonetheless preshifted (Tr. 86).
The petitioner argues that although a violation may not be supportable if it were
impossible to discover the brake lights defect, in the instant case the respondent instructed its
employees to start the loader in order to insure that it is in order in the event it was needed and
put into use (Tr. 127).

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Petitioner asserts that the respondent started the equipment in order to make it ready to be
inspected, and since the transmission fluid, hydraulics, all lights with the exception of the brake
lights, were checked, it was not impossible to check them after the loader was started and
checked (Tr. 128).
Petitioner concludes that it was unlikely that the loader would have been preshifted and
discovered the defect before taking it from where it was parked and using it in the pits, where it
would be hazardous to operate without brake lights. Petitioner dismisses the respondent’s
assertions that the loader was not being preshifted, but was just “looked at”, and did not require a
full preshift examination (Tr. 130).
The respondent asserts that the petitioner has not shown how long the defects existed,
that it was operated with any defect, that a full preshift inspection was made to discover the
defect, and that the defect would not be discovered and timely corrected during a preshift
inspection before the loader was next put in operation (Tr. 85).
The respondent argues that it has a system in place designed to stay in compliance with
Section 56.14100(b), by preshifting all vehicles before they are put in service to insure that
defects are corrected in a timely manner. Respondent maintains that vehicles are routinely
looked at when inspectors are on site through a cursory walk-around of the vehicle, and that the
loader was started and warmed up for the inspector to look at. However, the full preshift
examination pursuant to the respondent’s established policy to insure that defects are detected
was not performed on the loader. If it were to be put in operation, as it is normally done when a
preshift is performed, a full preshift would have been performed (Tr. 133).
Respondent further argues there was no loader hazard exposure or any indication that it
was ever driven with defective brake lights. Further, there is no showing how long the hazard
existed, or that it was ever a hazard to persons or that the hazard would not be corrected under
the respondent’s preshift policy which the petitioner acknowledges is strong (Tr. 133-134).
The respondent cited several decisions decided by Commission judges concerning the
interpretation and application of Section 56.4100(b). Petitioner’s counsel confirmed that she was
aware of the cases and discussed them with the respondent’s counsel. She believed that cases
concerned situations where there was a true impossibility that the operator could have discovered
the defect (Tr. 126).
The respondent’s counsel stated that this was not true, and that the cited cases involved
vehicles that were driving around the mine, and if the brake lights were defective they would
have been noticed by other miners and would have actively created a hazard. In the instant case,
the loader was never driven and if it were put into operation, it would have been corrected in a
timely manner before it created hazards to persons (Tr. 134).
Contrary to the petitioner’s argument that the loader was preshifted before the inspector
found the inoperative brake lights, the respondent’s credible testimony and evidence reflects that
although the loader, as well as other vehicles, were started and warmed up because pit foreman
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Taylor’s supervisor Rick Hoffman was aware that the inspector was on site and would probably
inspect them, I cannot conclude that loader operator Jesus Vega’s rather brief preparatory work
of checking loader fluids and lights constituted a full preshift examination that normally would
take one hour. Consequently, I find there is no credible evidence that the loader was preshifted
pursuant to the respondent’s established procedures that are not in dispute.
Regardless of the characterization of the area where the cited loaders, as well as other
vehicles, were parked as a “ready line”, the inspector agreed that there was no requirement for
such a designation, and he conceded that any parked equipment had to be preshifted before it
was moved and placed in service. In this regard, I conclude and find that Section 56.12005 does
not require that all parked equipment not in service must be maintained and ready for use at all
times. On the facts of this case, I conclude and find that the inspector’s preemptive and
premature issuance of the violation in absence of any evidence that a full regular preshift
examination was performed on the loader, which would have put the respondent on notice that a
defect had to be taken care of, did not afford the respondent with a reasonable opportunity to
perform a preshift, discover the defect, and timely repair it.
I find no evidence to support the petitioner’s assertion that it was unlikely that the loader
would have been preshifted and the defect discovered. I credit the testimony of Mr. Taylor that
the loader was a spare that was not used during the week of the inspection, is used infrequently,
and that if it were needed to be placed in service, it would be preshifted. I also credit his
testimony regarding a rather extensive training program for its equipment operators. That
program was conceded to be “a very good preshift inspection policy” by the inspector (Tr. 44).
I further find that the cited loader back-up alarms and seat belts were in working order,
and that it was not in operation when the inspector inspected it. Further the inspector did not
know whether the loader was intended to be placed in service before he inspected it, and he did
not ask the operator if he had preshifted the loader, and the operator did not inform him that it
was ready to be put in service (Tr. 69).
I also take note of the fact that when the inspector initially observed the loader while it
was parked with the engine running, he concluded that the operator had “pre-inspected it”, and
simply asked him if he had “checked everything out” (Tr. 65-66). I find credible and persuasive
operator Vega’s testimony that he had not planned to put the cited loader in operation, that he
was not instructed to put it in service, and that he did not prepare a preshift inspection report that
he would normally submit after preshifting a vehicle.
I find the inspector’s belief that the difference between a “walk-around check” of a
vehicle and a full MSHA required preshift is “basically terminology”, that depends on the person
performing the task to be rather contradictory (Tr. 67-68). On the facts of this case, it would
appear to me that the loader operator and the inspector differed as to what had taken place with
regard to the vehicle inspection.
Based on all of the aforementioned circumstances, and after consideration of all of the
arguments advanced by the parties, I conclude and find that the petitioner has not established by
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a preponderance of the evidence that the respondent did not correct the cited defect in a timely
manner within the meaning of Section 56.14100(b). Accordingly, the citation IS VACATED,
and the proposed civil penalty assessment IS DENIED.
The cited safety standard 30 C.F.R. § 56.12005, with respect to Citation No. 8578148,
states as follows:
Mobile equipment shall not run over power conductors, nor shall
loads be dragged over power conductors, unless the conductors are
properly bridged or protected.
In support of this alleged violation, the petitioner cites the photograph of the truck parked
on top of the regular heavy-duty electrical cord, and points out that this is a non-S&S citation
with moderate negligence (Tr. 86; Exhibit G-2-3).
The petitioner argues that in the event the extension cord were run over, any damage
would not be detected unless the vehicle was stopped to visually examine any damage to the
outside of the cord. In the event of any undetected interior cord damage, anyone subsequently
using it would be exposed to an electrical 120 volt shock hazard, particularly if the cord were
exposed to wet and cold weather while it were in use. The petitioner rejects any suggestion that
the cited extension cord was properly protected and concludes that it could be run over many
times and used continually (Tr. 131-132).
The respondent argues that the inspector agreed that a power conductor is protected when
it is insulated, and that the cited extension cord was a heavy-duty cord with heavy insulation.
Under the circumstances, the respondent concludes that the cord was protected in accordance
with the requirements of Section 56.12005, which states that a power conductor must be bridged
or protected (emphasis added) (Tr. 135).
After careful consideration of the arguments presented by the parties, I conclude and find
that the petitioner’s position is supportable and correct. Although the regulatory word
“protected” invites the defense advanced by the respondent, that any self-insulated heavy duty
power conductor inherently provides adequate protection against hazardous cable damages, it is
REJECTED.
I take note of the inspector’s testimony that the size and gauge of a power cord provides
some measure of protection, but only if the cord is not run over. In the instant case, the inspector
considered the absence of any cord damage, after it was further examined and tested, in his
determination that the violation was not significant and substantial.
I find credible the inspector’s testimony that given the size of the truck that was parked
on the cord, it could have damaged the cord. Further, conceding the fact that the cord was a
heavy duty insulated cord with no visible indications of any external damage, and passed a
continuity test, I find credible the inspector’s belief that any inside cord damages to the
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conductors and grounding circuits, which are not visible and readily detectable, would expose
anyone handling the cord to an electrical shock hazard.
I conclude and find that running or parking over a power conductor cord presents a
realistic potential for interior cord damage that would not be immediately visibly detected, and
that any subsequent and continued use of the cord, without correcting the defect, by persons who
may not be aware that the cord was run over, would expose them to potential shock hazards.
I further conclude and find that in the context of any normal working environment with
the presence of mobile equipment, it would be unlikely that an equipment operator who may
have inadvertently run over a power cord, or dragged a load over it, would immediately stop the
vehicle or discontinue his work to perform more than a cursory visual examination of the cord.
Indeed, in the instant case, the truck was clearly parked over the cord in full view of anyone
passing by, with no corrective action until the inspector found it
I credit and adopt the inspector’s interpretation that Section 56.12005 requires some
independent physical protection other then the cord itself, and his examples of the use of
temporary bridging, conduit, or hanging or suspending a power cord off the ground, as a
practical and reasonable means of compliance. On the facts of this case, the lack of protection,
other than the cord, constituted a violation of Section 56.12005. Accordingly, the violation IS
AFFIRMED. The proposed civil penalty assessment that I find reasonable, is likewise
AFFIRMED.
History of Prior Violations
Exhibit A to the petition for assessment reflects the absence of any repeat violations of
Section 56.12005, during the prior inspection period of 17-18 days and 50 inspection hours.
Exhibit G-5, the petitioner’s violation assessment history report from June 27, 2007, to October
2, 2009, reflects no prior violations of Section 56.12005. All of the 19 assessed violations were
Section 104(a) citations, 16 of which were non-S&S violations with penalties of $100 each, and
the remaining three were S&S violations with penalties of less than $500. Under the
circumstances, I cannot conclude that the respondent’s history of violations is such as to warrant
any increase in the civil penalty assessed for the violation that has been affirmed.
Good Faith Compliance
The record reflects that the violation was rapidly abated in good faith in 15 minutes after
the truck was moved and the extension cord was inspected and found undamaged.
Gravity
Based on the inspector’s non-S&S determination that any injury was unlikely, which I
adopt and affirm, I conclude and find that the violation was minor.

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Negligence
The inspector’s moderate negligence finding was based on the respondent’s cord hanging
policy, its annual cord continuity tests, and the fact that the cord was not damaged. The
inspector’s moderate negligence finding IS AFFIRMED.
Size of Business and Effect of Civil Penalty Assessment on the Respondent’s Ability to Remain
in Business
In the absence of any evidence to the contrary, I conclude and find that the respondent is
a small mine operator and that the penalty assessed in this matter will not adversely affect its
ability to remain in business.
In view of the foregoing findings and conclusions, IT IS ORDERED that Section 104(a)
non-S&S Citation No. 8578147, December 8, 2010, for a violation of 30 C.F.R. § 56.14100(b),
IS VACATED, and the proposed civil penalty assessment IS DENIED.
In view of the foregoing findings and conclusions, IT IS ORDERED that Section 104(a)
non-S&S Citation No. 8578148, December 2, 2010, for a violation of 30 C.F.R. § 56.12005, IS
AFFIRMED.
The respondent IS ORDERED to pay a civil penalty in the amount of $100, for the
violation. Payment shall be made within thirty (30) days of the date of this decision, and remitted
by check made payable to “U.S. Department of Labor/MSHA”, P.O. Box 790390, St. Louis, MO
63179-0390. Upon receipt of payment, this matter is DISMISSED.

/s/ George A. Koutras
George A. Koutras
Administrative Law Judge

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Distribution:
Willow Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite
230, Nashville, TN 37219
Joshua Schultz, Esq., Law Offices of Adele L. Abrams, PC, 4740 Corridor Place, Suite D,
Beltsville, MD 20705
/kss

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949

March 16, 2012
MINING & PROPERTY SPECIALISTS,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
MINING & PROPERTY SPECIALISTS,
Respondent

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

CONTEST PROCEEDING
Docket No. VA 2010-585-R
Citation No. 8170070;09/07/2010
Derby Wilson Mine
Mine ID 44-07127 4FT
CIVIL PENALTY PROCEEDING
Docket No. VA 2011-251
A.C. No. 44-07127-244720 4FT
Derby Wilson Mine

DECISION UPON REMAND
Appearances:

M. RosAnn Beaty, US Department of Labor/MSHA, Norton, VA
Benjamin D. Chaykin, Esquire, U.S. Department of Labor, Office of the

Solicitor,
Arlington, Virginia
Harry Meador, Mining and Property Specialists, Inc., Big Stone Gap, Virginia
Before:

Judge William Moran

This case is before the Court upon remand from the Commission. The Secretary sought a
$100.00 (one hundred dollar) civil penalty and the Court, upholding the violation, assessed a
penalty of $1.00 (one dollar) instead. The finding of violation was not questioned by the
Commission, but in its Remand the Commission directed the undersigned to further “explain
how his application of the statutory penalty criteria to the facts in each case supports his penalty

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determination.”1 Remand at 5. As only the penalty was questioned, Mining & Property
Specialists, “MAPS,” will be referred to as the Respondent, though it was also a Contestant.
To refresh one’s recollection about the nature of this single violation, Respondent was
cited for violating 30 C.F.R. Section 75.512. That section provides:
All electric equipment shall be frequently examined, tested, and
properly maintained by a qualified person to assure safe operating
conditions. When a potentially dangerous condition is found on
electric equipment, such equipment shall be removed from service
until such condition is corrected. A record of such examinations
shall be kept and made available to an authorized representative
of the Secretary and to the miners in such mine.
(emphasis added)
At the hearing, there were no factual disputes in need of resolution. MAPS conceded that
the record book was not at the mine site itself. It contended that all the inspector had to do was
to drive to MAPS’ office where it would be made immediately available for the inspector’s
review, or that it was willing to send a facsimile of the record book to the mine when requested
by the Inspector. The Secretary contended that the requirement that “a record of such
examinations shall be kept and made available to an authorized representative of the Secretary
and to the miners in such mine” must mean that the records be located at the mine site, not at a
nearby, but off mine site, location. The Court found, and the Commission did not take issue
with, the determination that MAPS was not in compliance.
With no issue other than the explanation of the penalty assessed, the Commission
identified specific deficiencies that the Court needed to address. While requiring that the Court
address each of the statutory criteria, some were particularly identified.
Negligence
The Commission stated that the “The negligence criterion merits particular
consideration,” as it was unable to “ascertain what level of negligence the judge ascribed to
MAPS [MINING & PROPERTY SPECIALISTS] and how this affected [the Court’s] penalty

1

Two dissenting Commissioners believed that the Court’s decision was supported by its
conclusion regarding the operator’s negligence and affording greater weight to that criterion.
Remand at 6, citing Spartan Mining Co., 30 FMSHRC 699, 724-725 (Aug. 2008). In that
decision, the judge departed from the Secretary’s assessment of the gravity and negligence,
affording greater weight to those factors. The dissenting Commissioners noted that the Court’s
negligence analysis was influenced by MAPS good faith belief that its offer to fax the documents
from its central office made the documents “available” under the standard. Id. at 6.
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determination.” Remand at 4. In particular it was noted that the Court found a good faith, though
erroneous, view by MAPS of its obligations under the cited provision, but the Commission
directed that the Court particularly address the Secretary’s assertion that the inspector who
issued citation “had spoken with MAPS employees at another mine about the requirement that
inspection records for the personnel carriers at those mines needed to be maintained at the mine
site.” The Commission notes that the Court’s view of this assertion could impact “the issue of
whether MAPS had notice of MSHA's position regarding maintenance of inspection records
offsite, [and that this] could affect the level of negligence.” Remand at 4.
Specifically addressing this concern, the Court notes that the issuing Inspector, Richard
Whitt, testified that he spoke to MAPS employees about the issue of maintaining the electrical
examination records for the electric vehicle on other occasions prior to issuing the citation in
issue. However, assuming they occurred, these conversations were at other mines, were only part
of several other, unrelated, topics the Inspector discussed with those employees, and resulted in
no citation being issued, although the Inspector stated that the absence of records at the mine site
existed for those prior occasions. Further, these conversations were not made to any supervisory
or management person for MAPS. Respondent called one of its non-supervisory employees as a
witness at the hearing and he could not recall such prior conversations having occurred.2 On this

2

Although the Court believes that the summary above accurately describes the testimony,
more detail is included here. The record at the hearing disclosed that on April 28, 2010,
Inspector Whitt was at Looney Creek Mine and that MAPS employees were there, working as
contractors. Tr. 22. The notes relied upon by the Inspector were from that date, whereas the
citation at issue here was issued to MAPS nearly four months later, on August 28, 2010. Tr. 23.
On that April date, Whitt stated that he spoke with MAPS employees about black lung and other
matters unrelated to the concerns here. Tr. 23. It was only on the following day, during his
continued inspection that Whitt inspected a “three wheel ride” and requested to see the electrical
examination for that ride, whereupon he was advised that it was at MAPS’ office, and not at the
mine. The Inspector stated that he advised the MAPS employees that in the future he expected
the book to be available at the mine. Tr. 25 and GX 4, the Inspector’s notes from April 28,
2010. As the Inspector’s notes made no reference to his claimed warning, the government
conceded that the exhibit, GX 4, was of no value to this matter, and the exhibit was withdrawn
by it.
Next was GX 5, another exhibit of marginal, if any, value. This time it was the
inspector’s notes from May 11, 2010, when he was again at the Looney Creek mine. The
inspector could not recall the names of the MAPS employees he spoke with on that date, but
again the conversation with those employees was initially about Black Lung and respirable dust.
However, the inspector stated that he also spoke with the MAPS employees about the
requirement to have the exam book at the mine site. Tr. 31. While the notes refer to the
Inspector speaking to MAPS employees, there is no mention of the availability issue in them.
Also, the Respondent, in objection to the testimony, stated it was unable to determine if the ride
(continued...)
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record, addressing the Commission’s concern, it can not be said that MAPS had any prior notice
of the Inspector’s interpretation. If anything, assuming that prior warnings occurred, MAPS, had
the non-supervisory employees even relayed the Inspector’s alleged comments to management,
would have been lulled into believing that the matter was a non-issue, as no citation was issued

2

(...continued)
in question was a MAPS vehicle and there was no evidence at the hearing that the ride was in
fact MAPS’ equipment. No evidence was introduced on the vehicle’s ownership.
Following that was GX 6. This exhibit pertained to the inspector’s notes from June 11,
2010, when he was yet again at the Looney Creek Mine. Tr. 36. The Inspector stated that he
again addressed the issue to MAPS’ employees of the requirement that the exam book must be
at the mine site, although he added that the conversation was directly only with Rodney
Hamilton. Tr. 64-65. There were, to say the least, problems with this contention too. In a
double hearsay remark, the Inspector asserted that Hamilton told him that Mr. Meador didn’t
believe he had to have the book at the site. Tr. 37. A major problem with this assertion, as noted
by the Court at the hearing, is that GX 6, like the preceding exhibits that had been presented by
the government, makes no reference to any of the alleged discussions of the issue in this case.
Tr. 38. Yet, the notes do reference the Inspector’s discussion with MAPS employees about other
matters, unrelated to the subject of this case. In addition, though this was now the third time the
Inspector asserted that he had raised the matter, at least with MAPS’ employees, no citation had
been issued for any of those events. Tr. 38. Following that exhibit, was GX 7, which pertains to
the inspector’s contact with MAPS’ employees on June 11, 2010. Tr. 40. As with the other
exhibits, GX 7 makes no reference to the issue at hand nor of any of the conversations the
Inspector referred to during his testimony. Tr. 40.
Finally, GX 8, issued August 12, 2010, was introduced. This Exhibit involves the
citation, No. 8170070, issued to Mr. Meador on that date. Tr. 41. The abatement date, listed as
August 16th, is technically accurate, but misleading, because the Inspector stated that the exam
book was actually delivered to MSHA on August 13th. However because the Inspector was off
work that day and the weekend ensued, the abatement date was not entered until the following
Monday. Tr. 43-44. In the Inspector’s notes from that date, as reflected in GX 9, it relates that
he asked to see MAPS’s exam book for the battery powered ride but that the records were not
present at the mine. It was then that Whitt issued the citation which is the subject of this case.
Tr. 46. The Inspector stated that the book must be at the mine site, and then referenced his
earlier statement that he had advised MAPS’ employees of this requirement at the Looney Mine.
Tr. 46. On the date he issued the citation, Whitt was at the Respondent’s Derby Mine. He
found nothing wrong upon his examination of the ride in issue. The problem arose when, upon
finding that the ride itself had no problems, he requested to examine the electrical book for it.
Tr. 49. In his testimony, he then presented reasons why the book must be at the site. These
included being able to review when it was last inspected and whether any problems were found.
A collateral benefit, the Inspector believed that having the book at the site diminishes the risk of
alteration of the records. Tr. 49. At that point, the government rested. Tr. 50.
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for any of the prior events, though the circumstances were indistinguishable from the event
which prompted the citation involved here to be issued.
Further, the Respondent, being unsophisticated in these matters, could not have
reasonably known nor should have known that its practice was violative. It seemed, reasonably
to MAPS that having the records a few miles from the mines it serviced was sufficient.
Respondent was mistaken, but for a first time event as here, the Court determines that no
negligence was involved. MSHA, as the government conceded, has never issued any policy
statement informing the regulated community of its interpretation of “availability” and this was
the Respondent’s first violation. As the Court informed Respondent at the hearing, the low
penalty it was assessing would be more significant in the event of a repeat violation, now that the
Respondent fully understands the obligation under the standard.
Accordingly, on this record at least, the Court finds that MAPS did not have any prior
notice of the Secretary’s view of the compliance requirements for this standard and it concludes
that MAPS’ negligence was minimal, approaching the vanishing point, especially when coupled
with the other considerations leading to MAPS’ conclusion that it was sufficient to keep the
records at its close-by mine office.
Maps’ efforts to act promptly and in good faith to abate the violation
In its Remand Order, Commissioner Young noted that the “decision does not discuss at
all the operator's efforts to act promptly and in good faith to abate the violation, despite the Act's
requirement that he do so. The Commissioner observed that MAPS “offered to have the
inspection records faxed to the inspector from its office” and that he considered the operator’s
“offer to make them immediately available in this manner might serve as virtually instantaneous
abatement.” Remand at n.4.
Discussing Commissioner Young’s concerns, the Court notes that the Inspector agreed
that the MAPS office is about a 15 to 20 minute drive from the mine site. Tr. 64. Respondent’s
administrative manager, Doris Dillon, testified that the recordkeeping for the man trips is
subcontracted by One Wire, Inc. which provides a certified electrician to do that work. Tr. 91.
Those records, in turn, are kept at Respondent’s office and this has been the practice for the past
5 or 6 years. Prior to that the records had been kept in the vehicles themselves, but they were
subject to becoming lost or damaged. Tr. 91-92. Ms. Dillon stated that if anyone, such as
MSHA, needed to see those records, she could produce them in “just a few minutes.”3 Tr. 93.

3

While Respondent tried to have Ms. Dillon testify regarding her interpretation of the
regulatory requirements, the Court sustained the objection to that effort, explaining the issue was
for the Court. Tr. 96-97. The Court added that the regulations’ reference to availability at the
“mine office” did not seem to help the Respondent in any event, as Respondent’s office did not
appear to fit that term as it has no Mine ID. Tr. 97. As pointed out on cross-examination, there
(continued...)
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Also regarding good faith, Respondent’s employee Christopher Belcher did acknowledge
that on August 12th, the Inspector issued Respondent a citation for not having the electrical book
at the mine site. Tr. 85. However, Belcher noted that the records could be made available “real
fast” as the Respondent’s office is very close to the mines they service. Tr. 87. He added that
Respondent had experienced problems with keeping the records in the vehicles themselves
because they would get torn up, lost or damaged and that this prompted them to start keeping
them at the R’s office.4 Tr. 87.
Upon consideration, the Court concludes that, while incorrect in its belief that
compliance could be achieved by having the records kept at the nearby office, the Court agrees
that MAPS offered “nearly instantaneous” abatement and that its believe that keeping the records
at its office was held in good faith, and was not a ruse. However, apart from its good faith, as the
record established, there can be times when an MSHA inspector could be at a mine site where
MAPS does work and that it is possible that the MAPS’ office could be closed when such
inspections occurred during a evening shift inspection at a mine.
Gravity
In its proposed assessment, MSHA assessed 16 points attributable to gravity. Ten (10) of
those points were for likelihood, with that number representing that it was “unlikely” to occur.
The severity of any injury factor was given 5 points, a figure representing “lost workdays or
restricted duty” would be involved. Finally, for the number of persons affected, one point was
assigned, representing that one person would be affected. In the Court’s estimation, the gravity
here is minuscule. It is hard to determine why “no likelihood” was not selected, given that there
was in fact nothing wrong with the ride and that the only offense was not having the record at the
mine site, though it could have been, at least in this instance, transmitted via facsimile
immediately. Similarly, how lost workdays could result is a mystery, given the type of violation
and the circumstances involved here. It follows that, in the Court’s estimation, that there was no
likelihood of any occurrence and that no lost workdays would be involved, that zero points
would have been a more appropriate number to apply for both of those factors. Accordingly, no
points should have been ascribed to the gravity criterion. Further, one should not lose sight of
the fact that this violation was not about equipment in a state of disrepair, nor even about a

3

(...continued)
are times when MAPS employees may be at a mine site and the Respondent’s office would be
closed. Tr. 100. At such times the records would not be available, at least not immediately
available.
4

It would be difficult to contend that MAPS employee Belcher was a part of
management. Tr. 57-60. The Inspector noted that an additional reason for requiring the records
be maintained at the mine is that they are to be available to miners as well, not simply for
MSHA. Tr. 63.
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failure to keep proper records about that equipment. Rather, it was about a “presentation failure”
only. MAPS had the records and nearby, but they were not at the mine site and therefore not
immediately available at any time of the day or night for MSHA’s review. While the Court does
not apply “points” in determining an appropriate penalty, it does evaluate the elements which
make up the gravity evaluation. Doing that, it finds that the gravity associated with this violation
to be as minimal as its assessment of MAPS’ negligence.
Discussion of the remaining statutory criteria
Appropriateness of penalty to size of business:
Respondent was ascribed four (4) points for this criterion, making it a small operator.
This is not in dispute.
History of previous violations:
Respondent received 0 points, for history of violations.
Effect on operator’s ability to continue in business.
There was, understandably, no contention that the $100. proposed penalty could adversely affect
MAPS’ continued business operation.
Conclusion:
Upon further consideration of the penalty criteria, as discussed above, the Court again concludes
that a $1.00 (One dollar) penalty is appropriate under these rather unique circumstances and thus
it again Orders Mining and Property Specialists to pay the imposed civil penalty.5

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

5

Payment should be sent to the Mine Safety and Health Administration, U.S. Department
of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
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Distribution:
Benjamin D. Chaykin, Esquire, U.S. Department of Labor, Office of the Solicitor,
1100 Wilson Boulevard, 22nd Floor West, Arlington, Virginia 22209-2247
M. RosAnn Beaty, U.S. Department of Labor/MSHA, Post Office Box 560, Norton, Virginia
24273
Harry Meador, Mining and Property Specialists, Inc., 1912 Wildcat Road, Big Stone Gap,
Virginia 24219

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER
875 GREENTREE ROAD, SUITE 290
PITTSBURGH, PA 15220
TELEPHONE: (412) 920-2682
FAX: (412) 928-8689

March 20, 2012
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
NORTHSHORE MINING COMPANY,
Respondent.

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2010-612-M
A.C. No. 21-00209-214371

Mine: Northshore Mine

DECISION
Appearances:

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn Street, Suite 844, Chicago, IL for the Secretary
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway
Tower, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA for the
Respondent

Before:

Judge Harner

This civil penalty proceeding was held pursuant to the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 802 et seq. (2000), (the “Act”). This case involves only one citation.
The parties presented testimony and documentary evidence at the hearing held in Duluth,
Minnesota, on July 6, 2011. Briefs have been filed by both parties and they have been duly
considered.
BACKGROUND AND SUMMARY OF EVIDENCE
Northshore Mining Company (“Northshore” or “Respondent”) is engaged in the
operation of a surface mine that extracts iron ore. Its operation is located in St. Louis County,
Minnesota. The mine is subject to regular inspection by the Secretary’s Mine Safety and Health
Administration (“MSHA”) pursuant to section 103(a) of the Act, 30 U.S.C. § 813(a).

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At the hearing, the parties entered into the following stipulations: Tr. 11-121
1.

Northshore is an “operator” as defined in Section 3(d) of the Mine Act, at
the mine at which the citation at issue in this proceeding was issued. 30
U.S.C. § 802(d).

2.

Northshore is subject to the jurisdiction of the Mine Act.

3.

This proceeding is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its administrative law judges
pursuant to Sections 105 and 113 of the Miners Act. 30 U.S.C. §§ 815 and 823.

4.

The individual whose signature appears in Block 22 of the citation at issue
in this proceeding was acting in his official capacity and was an authorized
representative of the Secretary of Labor when the citation was issued.2

5.

Payment of the proposed penalty for the subject citation will not affect
Northshore’s ability to remain in business.

6.

A duly authorized representative of the Secretary served the citation and
the termination of the citation upon Respondent’s agent at the date and
place stated therein as required by the Mine Act and the citation and
termination may be admitted into evidence to establish its issuance.

7.

The parties stipulate to the authenticity of all exhibits, but not to the truth
or the relevance of the matters asserted therein.

8.

The Assessed Violation History Report reflecting the history of violations
of the Respondent is an authentic copy and may be admitted as a business
record of MSHA. See Exhibit 1.

9.

Citation Number 6493272 is an authentic copy of the citation at issue in
this proceeding. See Exhibit 3.

10.

Northshore demonstrated good faith in the abatement of the citation.

1

Tr. followed by a number(s) indicates a reference to the appropriate page numbers of the
official transcript. The Secretary’s exhibits are designated by numbers and Respondent’s
exhibits are designated by letters.
2

The signature in Block 22 of the citation is John C. Koivisto, an inspector with MSHA.
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As previously noted, this docket contains only one citation (Citation No. 6493272) that is
alleged to be a violation of the Secretary’s mandatory health and safety regulations. For the
most part, there is no dispute as to the salient facts underlying the citation.
A. Respondent’s Equipment at Issue
This matter involves the operation of a P&H Model 2800XPC Electric Cable Shovel (the
“Shovel”), which has been designated by Respondent as #103.3 The Shovel is a very large piece
of equipment, approximately fifty-five to sixty feet in height that was manufactured by P&H
specifically for Respondent. Tr. 115. The Shovel sits on tracks which allow it to move forward
or backward. Tr. 35. The Shovel housing sits on a main center pan which allows the shovel to
rotate either clockwise or counterclockwise; and a large bucket attached to the Shovel’s front
permits the bucket to load ore onto trucks. Tr. 35, 38-39. The Shovel has an enclosed housing
cabin on top containing the various controls and the operator’s cab. Tr. 35. This cab is accessed
by climbing up two sets of stairways from ground level. Tr. 116-117. The Shovel has propel,
swing, hoist, crowd and gear functions and is electrically powered by 7200 volts on a trailing
cable4 that comes from Respondent’s main electrical switch house. Tr. 34-36, 40; Ex. 9. The
Secretary’s Exhibits 4-8 and Respondent’s Exhibit F-2 depict the Shovel and its various
components.
Specifically at issue in this case is the disconnecting of electrical power when mechanical
work, such as repairing or replacing the teeth on the bucket, has to be performed on the Shovel.
Tr. 42, 136. Mechanical maintenance is performed frequently on the bucket, occurring as much
as two to three times per day or ten to twenty times per week. Tr. 136. As noted, the power to
the Shovel is provided by a 7200 volt trailing cable from the main switch house. Tr. 40. Once
the electrical power cable reaches the Shovel, it is then routed to a main transformer power line
which controls the Shovel’s work functions and to an auxiliary transformer power line which
controls the Shovel’s lights, heat, air conditioning, etc., the so-called housekeeping functions of
the Shovel. Tr. 44. Each of these lines has a knife blade switch which, when opened, shuts off
electrical power to the respective main or auxiliary transformer lines.5 Tr. 83-84.
After Respondent acquired the Shovel from P&H, Ryan Bush, Respondent’s Electrical
Coordinator, Dean DeBeltz, its then Safety Representative, and Jeff Lamourea from P&H
developed a policy to be followed when various maintenance or repair activities were being
performed on the Shovel. Tr. 127. The policy provided that before the bucket could be repaired,
3

Respondent has other P&H Electric Cable Shovels that it uses in its operation and that bear
different number designations. Tr. 45.
4

Koivisto described the trailing cable as “a big extension cord that connects the shovel all the
way back to the switch house.” Tr. 40.
5

Although not necessarily similar to the knife blade switches of the Shovel, Exhibit 11 depicts a
simplified knife blade switch in its open position showing a visual disconnect from the power
source. Tr. 87.
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the control supply circuit breaker and the relay supply circuit breaker should be locked out, a test
start should be performed, and then each person working on the Shovel would put his own lock
on a lock box. Tr. 129-130. This policy was set forth in the control room located on the first
level of the Shovel. Ex. A. Exhibits 8 and F-8 depict the control supply circuit breaker and the
replay supply circuit breaker utilized by Respondent in “locking out” the Shovel while
mechanical work was performed on the bucket. Tr. 39.
B. The Citation
On January 19, 2010, as a result of an E01 inspection, MSHA Inspector John C. Koivisto
(“Koivisto”) issued Citation No. 6493272 to Northshore for a violation of 30 C.F.R. § 56.12016.
The citation, Ex. 3, alleges that:
Company #103, P&H Model 2800 Electric Cable Shovel: On 1/11/10 a bull gang
mechanic was observed working on the “Dutchman” portion of the shovel bucket.
A spot-check of the shovel lock-out indicated that he6 had locked out the “control
supply circuit breaker” and the “relay supply circuit breaker” as per company
procedure. Subsequent investigation revealed that only control power was deenergized and locked out versus main power. This condition exposed personnel
to moving machine hazards. Company personnel involved in developing this
procedure, reportedly were un-aware of the hazard of locking out only control
power. The company shovel lockout procedure has reportedly been in effect for
about 1 year.
The inspector found that an injury was reasonably likely to occur, that the injury could
reasonably be expected to be fatal, that the violation was significant and substantial, that one
person would be affected, and that the violation was a result of moderate negligence on the part
of the operator. The Secretary proposed a civil penalty in the amount of $1,026.00.
The regulation alleged to be violated is 30 C.F.R. § 56.12016 which provides as follows:
Electrically powered equipment shall be deenergized before mechanical work is
done on such equipment. Power switches shall be locked out or other measures
taken which shall prevent the equipment from being energized without the
knowledge of the individuals working on it. Suitable warning notices shall be
posted at the power switch and signed by the individuals who are to do the work.
Such locks or preventive devices shall be removed only by the persons who
installed them or by authorized personnel.
On January 21, 2010, the citation was terminated by MSHA when Northshore “ceased
the practice of only locking out control power and began requiring lockout of main power on
1/19/10. The written company procedure has also been updated.” Ex. 3, B.
6

This is an obvious reference to the gang mechanic.
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C. The Secretary’s Evidence
Koivisto testified that he has been employed by MSHA as a mine inspector since July
2005. Tr. 21. He has a Bachelor’s Degree in Biology from the University of Minnesota at
Duluth and a certificate in safety and health administration from a local community college. Tr.
22. Before coming to work for MSHA, he worked for many years at taconite plants, including
approximately twenty-seven years at Hibbing Taconite Company, where he held various
positions of increasing responsibility in the safety area. Tr. 22-23. Although Koivisto is not an
electrical expert, he did receive training in basic electrical principles at the MSHA training
facility in Beckley, West Virginia.7 Tr. 26-27.
As to the citation at issue, Koivisto testified that on January 11, 2010, which was a
Monday, he was on a regular inspection of the Northshore Mine when he observed one
individual working on the Dutchman portion of the Shovel’s bucket. Tr. 29. Koivisto was
accompanied on his inspection by Dean DeBeltz (“DeBeltz”) from Northshore’s Safety
Department. Tr. 29. Koivisto did not observe any problems with the mechanical work being
done on the Dutchman and he and DeBeltz then went up into the Shovel and looked at the two
lock-outs in place to prevent the shovel from moving and discussed Respondent’s procedure. Tr.
30. Specifically, the procedure used by Northshore, and observed by Koivisto that day, involved
the control supply circuit breaker (“CSCB”) and the relay supply circuit breaker (“RSCB”) being
locked out. Tr. 30. This procedure is called locking out control power. Tr. 32. Koivisto
testified that he didn’t think much more about this the remainder of that work week, but the next
time he was in his office on January 19, 2010, it struck him that “something wasn’t right with
[Northshore’s] lock out; that how could they be locking out main power with two little breakers,
which I later learned were what, 110- and 240-volt breakers like you would have on a lighting
panel.” Tr. 31. He then discussed the procedure used by Northshore with a colleague inspector
who is the electrical expert in his office and this inspector also agreed that the procedure was not
correct. Tr. 31.
Later that same day, January 19, Koivisto returned to Respondent’s facility and met again
with DeBeltz and also with Ryan Bush (“Bush”), the Electrical Coordinator, and Terry Nanti
(“Nanti”), Area Manager of Maintenance. Tr. 29, 31-32. Koivisto told them of his concerns that
main power was not being locked out and that the CSCB and RSCB were locking out control
power only. Tr. 31-32. Some discussion ensued about Respondent’s procedure and Koivisto
finally told them that he was issuing a citation. Tr. 32.
Koivisto testified at the hearing that he believed Respondent’s procedure in locking out
only the two circuit breakers presented a safety hazard, as there could be an inadvertent or
unplanned activation or energy on an electrical current that would result in movement of the
7

Exhibit 2 is an excerpt from the training manual Koivisto received at the Beckley academy. As
noted therein, MSHA does not have a program policy on § 56.12016.
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Shovel. Tr. 41. He further testified that, at the time, he believed that the violation was
“significant and substantial” because usually when this type of shovel equipment is taken down
for maintenance, there are many employees present doing a variety of maintenance tasks. Tr. 42.
As further support for his conclusion, he stated that the procedure was in place for a year and
that employees do not always follow procedures, especially when there are several of them, and
they could be harmed if the main power was not locked out. Tr. 42. At the hearing, Koivisto
testified that he now believed it “unlikely” that an incident would have occurred, but that it was
still a violation of a safety standard.8 Tr. 43.
Koivisto further testified that he assessed the degree of negligence as “moderate” because
Northshore officials had established a procedure when they got the new equipment9 which they
believed was correct, i.e. locking out control power rather than main power. Tr. 43-44.
The Secretary called William J. Helfrich (“Helfrich”) as its expert witness. Helfrich is
MSHA’s Chief of the Mine Electrical Systems Division, a position he has held since 1991. Tr.
74; Ex. 10. This section of MSHA is responsible for supporting MSHA inspectors and the
industry as a whole with respect to electrical regulations. Tr. 74. Helfrich, who is an electrical
engineering graduate of Pennsylvania State University and a registered professional engineer in
the state of Pennsylvania, has been employed by this division of MSHA since 1975. Tr. 76-77;
Ex. 10. His extensive experience includes, inter alia, various mine accident investigations,
testing of electrical equipment and instructing other engineers concerning electrical issues. Tr.
74-75, 79; Ex. 10. He has familiarity with lock-out/tag-out procedures for shovels, including
those manufactured by P&H. Tr. 78. Significantly, Helfrich has been involved in the discussion
and drafting of MSHA’s electrical regulations since at least 1977 or 1978. Tr. 75-76; Ex. 10.
Helfrich credibly testified that the rationale in enacting mandatory standard § 56.12016 is
to ensure that persons who are performing mechanical work on electrical equipment can make
sure that the equipment is de-energized even though such persons may not be knowledgeable as
to the electrical components of the equipment. Tr. 81-82. In this regard, he noted that there are
two hazards that are protected by this standard: accidental movement and electrocution. Tr. 82.
Thus, he testified that the standard is intended to cover both mechanical (movement) and
electrical hazards. Tr. 81-82.

8

This testimony of Koivisto establishes that the violation alleged is not significant and
substantial as it was “unlikely” that an incident could have occurred.
9

Although not entirely clear, Respondent apparently put into service three new Model 2800
shovels about a year before the instant citation was written and that it began to apply the new
procedure at that time. Tr. 33.
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To de-energize the shovel, Helfrich testified that two steps have to be taken. Tr. 207.
First, the shovel has to be disconnected from its power source10 and second, there has to be either
visual confirmation that the conductors are separated or the line has to be tested with a meter to
insure that there is no electrical current present. Tr. 207.
When asked if he had an opinion on Respondent’s policy of locking out the CSCB and
RSCB, Helfrich testified that the intent of the regulation was that the main power cable was deenergized and, therefore, locking out the CSCB and RSCB was insufficient because there was no
visual determination that the circuit was open and therefore de-energized. Tr. 83, 85-86, 88-89.
Helfrich also opined that Respondent’s policy of locking out the CSCB and RSCB was
inadequate because given the complexity of the equipment, any number of faults could occur that
would cause the equipment to start up and move. Tr. 86. Specifically, he listed lightening
strikes, water, rodents, vibration and defective wiring insulation. Tr. 88-89.
Finally, Helfrich testified as to general electrical principles. Tr. 95. He testified that “deenergization” means “dead” or no power, relying on the definition of the term in the dictionary
of the Institute of Electrical and Electronics Engineers. Tr. 95. Helfrich also testified that the
best practices policy of MSHA with respect to lock-out/tag-out is to not rely on control power,
but always lock out main power. Tr. 96.
D. The Respondent’s Evidence
Ryan Bush, Respondent’s Electrical Coordinator, testified that he has occupied his
current position for a year and half and had previously held the position of Electrical Planner.
Tr. 112-113. In his current position, he is responsible for supervising a crew of twelve
employees who perform electrical tasks, including maintenance of the electrical components on
the shovels. Tr. 112. Bush has a two-year degree in electronics from Eveleth Vocational
Technical College. Tr. 114. Bush testified that Respondent had a total of four 2800 shovels at
its mine and three of them were the newer XPC models that had been built by P&H for
Respondent’s operation. Tr. 115. With the help of Lamourea of P&H, Bush and DeBeltz
developed a procedure for locking out the CSCB and the RSCB when employees were working
on the bucket teeth, which procedure had been posted adjacent to the circuit breakers. Tr. 127128, Ex. A, pp. 3-4, F-7. Prior to the citation being written, this procedure called for employees
performing mechanical work on the bucket to lock out the CSCB and RSCB, run a test start of
the shovel and put their individual locks on a box near the circuit breakers. Tr. 130-133; Ex. F11, F-12, F14. Bush also testified that when the bottom stairway that runs from the ground to a

10

Helfrich noted that the North Central MSHA District had allowed the Respondent to
disconnect the main transformer line only in lieu of disconnecting the trailing power cable from
the switch house, while maintaining power in the auxiliary line, apparently in deference to the
harsh weather conditions in winter. Tr. 90, 100, 207. Helfrich testified that by disconnecting the
main transformer line by using the knife blade switch, the motive power of the shovel was deenergized. Tr. 207- 208.
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mid-point walkway on the shovel11 is in a down position, the shovel can be started but cannot
move to perform crowd, propel or hoist functions as the brakes will not release. Tr. 117-121.
Before the shovel can operate and during operation of the shovel, the first or bottom stairway
must be pulled up level with the walkway. Tr. 117.
Bush testified that on the day the citation was written, he tried to explain the procedure to
Koivisto and show him the electrical prints, but he did not think that Koivisto was too interested.
Tr. 134-135. He did not recall telling Koivisto that the procedure only locked out control power,
but when asked by Respondent counsel if the procedure de-energized the main transformer, he
replied, “In a functionality of it, yes, it does.”12 Tr. 134.
Bush also testified that a method of de-energizing the shovel was to turn off the knife
blade switch, but that such a procedure was more difficult as it required appropriate clothing and
carried a risk of arcing. Tr. 135-136. He also stressed that only an electrician or an electrical
technician could turn off the knife blade switch, whereas a mechanic or other qualified employee
could lock out the circuit breakers. Tr. 147-148. The procedure of turning off the knife blade
switch presents operational problems for Respondent since the dipper on the Shovel has to be
locked out up to twenty times per week for maintenance and an electrician must perform the
task, even if he must be summoned from other areas of Respondent’s operation. Tr. 136. In this
latter instance, Respondent would have to assess the importance of the repair of the Shovel
versus the electrician’s need in other areas of Respondent’s operation. Tr. 147-148. Finally,
Bush testified that there are two knife blade switches, the first one controls the hoist, crowd,
propel and the other functions, while the second auxiliary knife blade controls the heat and light
functions of the Shovel. Tr. 148.
Brian Gsell testified as the Respondent’s expert witness. Gsell currently works for
Kilgore Engineering as a Senior Electrical Engineer where he typically performs post-failure
evaluations of electrical equipment in various industries not limited to mining. Tr. 167-169; Ex.
E. He holds a Bachelor’s Degree in Electrical Engineering Technology from the University of
Hartford (1981) and a M.S. degree in Engineering Science from Rensselaer Polytechnic Institute
(1992) and has twenty-nine years of experience in the electrical engineering field. Tr. 169-170;
Ex. E. Since 2003, Gsell has specialized in the investigation of residential, commercial and
industrial accidents involving electrical system or component failures and damage. Ex. E. He is
a licensed electrical engineer in the state of Texas. Tr. 170; Ex. E. His employer, Kilgore
Engineering, is a forensic engineering firm which specializes in litigation issues, both for
plaintiffs and defendants. Tr. 168, 170-171.
In preparation for his testimony, Gsell testified that he was provided documentation
regarding the Shovel, including 200 pages of electrical schematics, which show how the system
11

There is a second stairway on the shovel which goes from the mid-point walkway to the
operator’s cab.
12

I note that this is an equivocal answer and does not establish that the Shovel was de-energized.
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is controlled. Tr. 172. He also physically inspected the Shovel three or four times. Tr. 172-173.
When asked by Respondent’s counsel during the hearing if he came to a conclusion as to
whether locking out the CSCB and RSCB “de-energized” the Shovel, Gsell testified “that it is
not possible to produce mechanical movement of that machine while those two breakers are
locked and tagged out.” Tr. 173. On follow-up, when asked if the circuits were in fact deenergized, he replied, “They de-energize a number of circuits throughout the machine […]” Tr.
173. Respondent introduced into evidence Exhibit D, which is an electrical schematic showing
the two knife switches (marked “A” and “B”) and the pre-citation lockouts of the CSCB and
RSCB. Ex. D. Gsell testified in detail that with both the CSCB and RSCB locked out, it was
impossible to produce mechanical movement of the shovel. Tr. 177-188.
During both his direct and cross-examination, Gsell opined that if the CSCB and RSCB
were locked out, there would have to be a large number of faults or errors in the circuit for
movement to occur. Tr. 189-194. On cross-examination, he characterized the likelihood as an
“extremely low probability.” Tr. 194. He also testified on cross-examination that with the
trailing cable de-energized or the knife blade switch that controls the shovel functions opened,
there would be no electrical energy or concern with faults producing movement. Tr. 195-197.
When asked if he would touch a de-energized circuit, Gsell replied that he would, but when
asked if he would touch the load side of the vacuum contactor with the CSCB and RSCB locked
out, he testified that he would want to verify that there was no power present before doing so.
Tr. 195-196.
LEGAL ANALYSIS AND CONCLUSIONS
A. Analysis
In interpreting the meaning of a statute, the Commission has recognized that “[w]hen the
meaning of the language of a statute or regulation is plain, the statute or regulation must be
interpreted according to its terms, the ordinary meaning of its words prevails and it cannot be
expanded beyond its plain meaning.” Western Fuels-Utah, Inc., 11 FMSHRC 278, 283 (Mar.
1989); Consolidation Coal Co., 18 FMSHRC 1541, 1545 (Sept. 1996). It is a cardinal principle
of statutory and regulatory interpretation that words that are not technical in nature “‘are to be
given their usual, natural, plain, ordinary, and commonly understood meaning.”’ Western Fuels,
11 FMSHRC at 283 (citing Old Colony R.R. Co. v. Commissioner of Internal Revenue, 284 U.S.
552, 560 (1932)). It is only when the plain meaning is doubtful that the issue of deference to the
Secretary's interpretation arises. See Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984)
(deference is considered “only when the plain meaning of the rule itself is doubtful or
ambiguous”) (emphasis in original); Azno Nobel Salt, Inc., 21 FMSHRC 846, 852 (Aug. 1999).
In pertinent part here, 30 C.F.R. § 56.12016 mandates that all electrically powered
equipment be de-energized before mechanical work is done. It is clear and unambiguous that
this includes locking out the power switches and taking any other measures necessary to prevent
the equipment from energizing without the knowledge of those working on it. The plain,
common-sense interpretation of this regulation is that the equipment should be de-energized so
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that those working on it have no reason to fear movement that could result in their injury. I note
that the Dictionary of Mining, Minerals and Related Terms13 defines “deenergize” as “[t]o
disconnect any circuit or device from the source of power.” (Emphasis added)14. See also
Youghiogheny & Ohio Coal Company, 3 FMSHRC 1073, 1078 (1981)(ALJ). Finally, this
definition is also consistent with Helfrich’s discussion of the definition found in the dictionary of
the Institute of Electrical and Electronics Engineers. See Tr. 95.
Respondent argues, however, that the same result can basically be achieved by locking
out the control power to the CSCB and RSCB by pulling the circuit breakers. It states that
although the CSCB still receives some energy, the RSCB locks out all functions of the Shovel,
making it virtually impossible to create movement. Expert witness Gsell testified that if this
procedure is utilized, a lot of faults and errors must take place in order for movement to occur
and described this scenario as having an “extremely low probability.” Tr. 184-195. Therefore, it
claims that, although the CSCB is not completely locked out, Respondent has essentially
achieved the same result by locking out the two circuit breakers, which also saves it time.
Further, Respondent claims that, because the Secretary has expressed the fear of physical injury
due to energized moving parts, 30 C.F.R. § 56.14105 would have been the correct regulation to
cite, and it does not require equipment to be locked out while being maintained.15
I disagree that Respondent has met the standards set in 30 C.F.R. § 56.12016 by disabling
the CSCB and the RSCB rather than locking out the knife blade switches to both. First, the
regulation mandates that the equipment be de-energized prior to work being performed.
Respondent’s witness testimony all seems to recognize that the Shovel is not completely deenergized; rather, it believes that it is de-energized enough. Tr. 134, 173, 195-196. However,
this ignores the plain language of the regulation which demands de-energization, not partial deenergization. Further, although there was much testimony that pulling the circuit breakers
13

See “Deenergize.” Dictionary of Mining, Minerals and Related Terms, EduMine (Originally
compiled by the U.S. Bureau of Mines), <http://xmlwords.infomine.com/xmlwords.htm>.
14

This definition is also similar to the Merriam-Webster dictionary which defines “de-energize”
as “to disconnect from a source of electricity: shut off power to.”

15

30 C.F.R. § 56.14105 is titled “Procedures during repairs or maintenance” and states as
follows:
Repairs or maintenance of machinery or equipment shall be performed only after the
power is off, and the machinery or equipment blocked against hazardous motion.
Machinery or equipment motion or activation 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. (Emphasis added)
Thus, it would appear that even in this standard, the lack of electrical power is important to
protect miners.
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essentially locked out the equipment and movement functions were unlikely, Respondent’s
witnesses also admitted that the equipment was receiving power, as it was not disconnected from
the power source. Further, and telling, Respondent’s expert witness testified that he would need
verification that there was no power running to the Shovel before he would even touch particular
parts of it. See Tr. 195-196. Finally, this expert witness conceded that enough faults could
occur, although it was not likely (“extremely low probability”), that movement could occur. See
Tr.194.
Second, the regulation demands that either the power switches be locked out or, in the
alternative, measures be taken to prevent the equipment from being energized. 30 C.F.R. §
56.12016. Neither is accomplished by Respondent’s procedure. Because the lock out of the
power switches or knife blades require the presence of an electrician, Respondent has chosen the
alternative method of pulling the circuit breakers. However, as shown above, this does not
prevent the Shovel from being energized. In fact, Bush testified that the Shovel can be started
under this method. This plainly conflicts with the regulation’s intent to ensure that equipment is
de-energized for maintenance and repairs.
What is arguably ambiguous about the standard is exactly to what injuries the regulation
applies. Respondent argues that under Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189 (9th Cir.
1982), 30 C.F.R. § 56.12016 applies only to the hazard of electric shock, not to injuries caused
by mechanical movement. However, the Commission has never explicitly followed the logic of
this case and I do not agree that it should. In Phelps Dodge, the Court found that the Secretary
had abused her discretion in reading the regulation, then 30 C.F.R. § 55.12-1616, to apply to
movement of the equipment. Id. at 1193. It reasoned that because the regulation was found
under the heading “Electricity” and found between regulations “whose purpose is manifestly to
prevent the accidental electrocution of mine workers,” the instant regulation does not address the
hazards of accidental movement. Id. at 1192. Moreover, it concluded that another code section
provided for this protection and the language of § 55.12-16 inadequately expresses an intention
to reach the situation as described. Id. at 1193.
Given all of the facts, circumstances and testimony herein, I find a violation
notwithstanding Phelps Dodge. First, in his dissent in that case, Circuit Judge Boochever
adeptly acknowledges that the language of the statute is clear and unambiguous, and it does not
in any way limit the regulation to situations involving electric shock.17 Phelps Dodge, 681 F.2d
at 1193. Nor did he believe that principles of fair warning were in any way offended, as the

16

This was the predecessor standard to § 56.12016.

17

I note that in Empire Mining Partnership, 29 FMSHRC 317 (2007)(ALJ), ALJ Barbour was
tempted to make the same ruling based on the ruling of ALJ Amchan in James M. Ray, employed
by Leo Journagan Construction Co., Inc., 18 FMSHRC 892 (1996)(ALJ) and the persuasive
nature of the Phelps Dodge dissent. The issue was never reached, however, as the Secretary had
pled in the alternative.
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words sufficiently warn that the regulation is applicable to electrical equipment regardless of the
threat of electric shock. Id. at 1194.
Second, the ALJ decision in Phelps Dodge was a short bench decision in which ALJ
Merlin relied heavily on the expertise of the inspector. Id. at 460-461. Although it is not
explicitly clear from the decision, it would imply that no experts were called to testify. In the
instant case, however, we do have the benefit of expert testimony and MSHA expert Helfrich
had been involved in the discussion and drafting of most of the electrical regulations since at
least 1977 or 1978. Tr. 75-76; Ex. 10. At hearing, he gave clear, uncontradicted testimony that
the standard was designed with the intent to prevent injury from both mechanical movement and
electrical hazards. Tr. 81-82.
Finally, I note that while 30 C.F.R. § 56.12016 and 30 C.F.R. § 56.14105 have many
overlapping characteristics, they do not in any way preclude one another. The former falls
within the category of “Electricity” which would seem to imply that it applies to electrical
equipment. Therefore, if an operator follows the lock out and tag out procedures described in the
standard so that a miner performing mechanical work cannot be harmed by electric shock or
mechanical movement created by electricity flowing through the machine, it is in compliance
with this statute. The latter standard requires that repairs or maintenance can only be performed
when the power is off, except to the extent that motion is necessary for adjustment or testing and
then only when miners are protected from such hazardous motion. In this way, the regulations
actually work together to create a safer working atmosphere rather than creating a situation
where the operator is forced to comply with one or the other. The argument to the contrary is
unpersuasive. For the foregoing reasons, I decline to follow the logic of Phelps Dodge and find
that 30 C.F.R. § 56.12016 relates to accidental movement as well as electrical shock.
As a final argument, Respondent claims that forcing it to lock out the CSCB and RSCB
by turning the knife blade switches will necessarily reduce efficiency in the mine because a
certified electrician is needed to perform this task, while any experienced miner may pull the
circuit breakers. It argues that, at times, it will have to balance the importance of maintenance to
the Shovel with the need for electricians in other areas of the mine. While I appreciate the need
for efficiency in the mine, it is established that, when the safety of the miners is concerned, some
efficiency must be sacrificed. See generally Morris Sand and Gravel, 16 FMSHRC 624, 630
(1994)(ALJ)(Preventative safety measures must not be sacrificed in the interests of production
and continuing operations); Plateau Resources Limited, 5 FMSHRC 605, 607 (1983)(ALJ).
Based on all of the foregoing, and noting particularly that Respondent’s practice of
locking out the CSCB and the RSCB will not insure against accidental movement, I find that the
Secretary has met her burden of establishing a violation of 30 C.F.R. § 56.12016. I also find that
the violation is non-significant and substantial as there would be little likelihood of an incident
occurring if Respondent’s method of locking out the circuit breakers were utilized. This finding
is supported by the testimony of Inspector Koivisto.

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Negligence “is conduct, either by commission or omission, which falls below a standard
of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §
100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine
that affect the safety or health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices.” Id. MSHA considers mitigating circumstances which may
include, but are not limited to, actions taken by the operator to prevent or correct hazardous
conditions or practices. Id. Low negligence exists when “[t]he operator knew or should have
known of the violative condition or practice, but there are considerable mitigating
circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of
the violative condition or practice, but there are mitigating circumstances.” Id. High negligence
exists when “[t]he operator knew or should have known of the violation condition or practice,
and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 2011 WL 2745785
(2011)(ALJ).
From the testimony, Respondent knew that it was not de-energizing the Shovel by pulling
the circuit breakers rather than locking out the knife blade switches. In plain terms, the method
used was instead a work around of the language of the statute to increase efficiency at the Mine.
This, in and of itself, would indicate high negligence on the part of the operator. However, I
believe that Respondent had a good faith belief that this method would be highly unlikely, if
ever, to result in an injury to a miner. Therefore, mitigating circumstances exist to justify
moderate rather than high negligence. In this manner, Citation No. 6493272 remains as issued
by the Secretary.
B. Penalty
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Act are well-established. Section 110(i) of the
Act delegates to the Commission and its judges the authority to assess all civil penalties provided
in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. The Act requires, that in assessing civil monetary penalties, the Commission
[ALJ] shall consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect of the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. § 820(i).

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I have considered all of the above factors and find that a penalty of $500 is
appropriate under the circumstances herein. I note specifically the size of the operator’s
business and the negligence of the operator, particularly its decision to consider
operational efficiency over the safety of miners.
ORDER
Based on the criteria in Section 110(i) of the Act, 30 U.S.C. § 820(i) and having found
that a violation exists, I assess a penalty of $500.00. The Respondent, Northshore Mining
Company is hereby ORDERED to pay the Secretary of Labor the sum of $500.00 within 30
days of the date of this decision.18
/s/ Janet G. Harner
Janet G. Harner
Administrative Law Judge
Distribution:
Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South
Dearborn Street, Chicago, IL 60604
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222

18

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-3577/FAX 303-844-5268

March 26, 2012
BLACK BEAUTY COAL COMPANY,
Contestant,
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

v.

BLACK BEAUTY COAL COMPANY
Respondent.

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CONTEST PROCEEDING
Docket No. LAKE 2008-669-R
Order No. 6681046; 09/11/2008
Air Quality #1 Mine

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2009-304
A.C. No. 12-02010-174468-01
Docket No. LAKE 2009-305
A.C. No. 12-02010-174468-02
Docket No. LAKE 2009-598
A.C. No. 11-03017-191233
Docket No. LAKE 2009-608
A.C. No. 11-02408-191230
Docket No. LAKE 2009-684
A.C. No. 11-03017-194327
Docket No. LAKE 2009-698
A.C. No. 11-02408-194324
Air Quality #1 Mine
Wildcat Hills Mine
Gateway Mine

DECISION
Appearances:

Matthew M. Linton, Esq, and Nadia A. Hafeez, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;
Arthur M. Wolfson, Esq., and Dana M. Svendsen Esq., Jackson Kelly,
PLLC, Pittsburgh, Pennsylvania, and Denver, Colorado, for Respondent.

Before:

Judge Manning

34 FMSHRC Page 677

These cases are before me on a notice of contest and petitions for assessment of civil
penalty filed by the Secretary of Labor, acting through the Mine Safety and Health
Administration (“MSHA”), against Black Beauty Coal Company (“Black Beauty”) pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and
820 (the “Mine Act”). The parties introduced testimony and documentary evidence at a hearing
held in Evansville, Indiana, and filed post-hearing briefs.
Black Beauty operates several large underground coal mines in southern Illinois and
southern Indiana. A total of eleven section 104(a) citations and four 104(d)(2) orders of
withdrawal were adjudicated at the hearing The Secretary proposed a total penalty of
$316,216.00 for these citations and orders. Three additional citations settled at the hearing.
I. BASIC LEGAL PRINCIPLES
A.

Significant and Substantial

The Secretary alleges that the violations discussed below were of a significant and
substantial nature (“S&S”). An S&S violation is a violation “of such nature as could significantly
and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30
U.S.C. § 814(d) (2006). 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). In order to establish the S&S nature of a violation, the
Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC
1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin
Power Co., Inc. v, Sec’y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the most difficult to apply. The element is
established only if the Secretary proves “a reasonable likelihood the hazard contributed to will
result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129
(Aug. 1985). An S&S determination must be based on the particular facts surrounding the
violation and must be made in the context of continued normal mining operations. Texasgulf, Inc.,
10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will
cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing
Musser Engineering, Inc. and PBS Coals, Inc. 32 FMSHRC 1257, 1281 (Oct. 2010)).
The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the “focus of the seriousness of the violation is not necessarily
on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on
the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996). The Commission has emphasized that, in accordance with the language of section
104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a violation to the cause and effect of a

34 FMSHRC Page 678

hazard that must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC 1573, 1575
(July 1984). With respect to citations or orders alleging an accumulation of combustible materials,
the question is whether there was a confluence of factors that made an injury-producing fire
and/or explosion reasonably likely. UP&L, 12 FMSHRC 965, 970-971 (May 1990). Factors that
have been considered include the extent of the accumulation, possible ignition sources, the
presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at 970-71;
Texasgulf, 10 FMSHRC at 500-503.
B.

Negligence and Unwarrantable failure

The Secretary defines conduct that constitutes negligence under the Mine Act as follows:
Negligence is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to
protect miners against the risks of harm. Under the Mine Act, an
operator is held to a high standard of care. A mine operator is
required to be on the alert for conditions and practices in the mine
that affect the safety or health of miners and to take steps necessary
to correct or prevent hazardous conditions or practices. The failure
to exercise a high standard of care constitutes negligence.
30 C.F.R. § 100.3(d). The Commission has defined an unwarrantable failure as aggravated
conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997,
2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining
Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d. 133, 136 (7th
Cir. 1995). Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is
determined by looking at all the facts and circumstances of each case to see if any aggravating
factors exist, such as the length of time that the violation has existed, the extent of the violative
condition, whether the operator has been placed on notice that greater efforts are necessary for
compliance, the operator’s efforts in abating the violative condition, whether the violation is
obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the
violation. See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar
violations are relevant to an unwarrantable failure determination to the extent that they serve to
put an operator on notice that greater efforts are necessary for compliance with a standard.
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

34 FMSHRC Page 679

II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A.

Docket No. LAKE 2009-304, Air Quality #1 Mine
1.

Order No. 6669341

On August 19, 2008, at 9:00 a.m. MSHA Inspector Anthony M. DiLorenzo issued Order
No. 6669341 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.400 of
the Secretary’s safety standards. Order No. 6675150 states:
Combustible material in the form of loose coal, coal fines, and coal
dust have been allowed to accumulate on the 2 Main East Belt tail
located between crosscut 43 and crosscut 44 on the intake brattice
line side. One pile measuring 5 feet in length by 18 inches in
width by 8 inches in depth was observed under the tailpiece and
another pile measuring 5 feet in length by 2.5 feet in width by 10
inches in depth was observed with evidence showing the belt was
rubbing in this pile for approximately 4 feet in length. The
operator, Jason Nelson (Section Foreman), showed more than
ordinary negligence by allowing the belt to run under this known
condition until the arrival of MSHA to the area. This violation is
an unwarrantable failure to comply with a mandatory standard.
(Ex. G-1). Inspector DiLorenzo determined that an injury was reasonably likely to occur and
that such an injury could reasonably be expected to result in lost workdays or restricted duty.
Further, he determined that the violation was S&S, the operator’s negligence was high, and that
ten persons would be affected.
Section 75.400 of the Secretary’s regulations requires that “[c]oal dust, including float
coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and
electric equipment therein.” 30 C.F.R. § 75.400. The Secretary proposed a penalty of $41,574
for this alleged violation.
a. Background Summary of Testimony
Inspector DiLorenzo testified that the order was issued in an active section of the mine.
(Tr. 15). He used a tape measure to determine the size of the accumulations. (Tr. 16). He
observed more than ten people inby the cited area. DiLorenzo’s concern was that a fire could
start and miners would be overcome by smoke inhalation. (Tr. 17). The combustible material
was in contact with the moving belt. He testified that the belt continuously running on top of the
accumulations would create frictional heat. (Tr. 19). He determined that the belt was running
along four feet of one of the piles. There was no fire suppression system in the area. (Tr. 21).

34 FMSHRC Page 680

The section foreman and section mechanic were standing close to these accumulations
working on a remote switch when the inspector arrived. After the belt was shut down, the
section foreman advised Inspector DiLorenzo that “he had been having problems with this
remote line and the belt training and that he was going to clean that side [of the tail piece]
afterwards.” (Tr. 22). The travelway side of the tail piece had already been cleaned. DiLorenzo
testified that he did not “believe that just cleaning half of the accumulations and then allowing
the belt to run knowing that there’s accumulations in contact with the belt” amounts to
reasonable care. He marked the negligence as “high.” In addition, it is the inspector’s belief that
Black Beauty was not adequately maintaining its belt lines because it had received many
citations alleging violations of section 75.400 along belts. DiLorenzo testified that MSHA
inspectors had advised Black Beauty that it needed to take greater “efforts to get a handle on the
situation along their belt lines.” (Tr. 23). He further testified that the Air Quality #1 Mine has
about 17 miles of belts and an insufficient number of people to maintain them. (Tr. 24, 27). The
belt that was rubbing against the accumulations had several splices that were in need of repair,
which increased the hazard. He admitted, however, that Black Beauty vulcanizes the splices in
its belts. (Tr. 39).
Production coal was not loaded onto the belt during the previous shift but it is possible
that scoops could have dumped coal onto the belt during cleanup on that shift. (Tr. 34).
Inspector DiLorenzo testified that it is possible the accumulation he cited could have been
created in 20 minutes or it could have been present during the previous shift. (Tr. 43).
Jason Nelson was the section foreman on the day of the inspection. (Tr. 48). Mr. Nelson
testified that when he arrived underground that morning he performed his typical safety checks
during his onshift examination. When he checked the tail piece he noticed that coal had been
spilling at that location. He did not believe that these accumulations were in contact with the
belt. (Tr. 54). He testified that he started shoveling the accumulated coal. (Tr. 51). There had
been problems with the belt that morning. It would surge and then slow down. The section
mechanic believed that there was a problem with the remote switch for the belt. (Tr. 52). The
remote line functions as a stop-and-start switch for the belt. The section mechanic shut down the
belt to work on the switch. (Tr. 55). Nelson had not completed shoveling the area when the
inspector arrived but he would have completely cleaned up the accumulations in about ten
minutes. (Tr. 57). Nelson testified that the section mechanic was in the area to repair the remote
line and that he, Nelson, was present to shovel up the coal accumulations. Nelson said he was
not involved in shutting down the belt and the belt would have been shut down by the mechanic
even if the inspector had not arrived. (Tr. 56). Nelson further testified that smoke from a fire at
the tail would have traveled out the return and not to the working section.
Nelson testified that he arrived on the section at about 7:30 a.m. and that he discovered
accumulation at about 8:30 a.m. (Tr. 60). The belt had been started at the end of the previous
shift. He had been shoveling for about ten minutes when the inspector arrived. He stated that he
did not observe the belt running in accumulations. (Tr. 61).
Joseph H. Robinson was the senior electrician and mechanic at the time the order was
issued. He stated that when he arrived on the section on August 19, he noticed that the belt was
surging. (Tr. 66). He called his supervisor, Jason Nelson, to come over to look at the belt.

34 FMSHRC Page 681

Robinson testified that Nelson noticed there were accumulations at the tail. As a consequence,
Nelson started shoveling up the accumulations and Robinson started troubleshooting. Id.
Robinson testified that he discovered there was a short in the twist lock plug and told Nelson.
Robinson testified that he walked to the breaker to shut down the belt and left to find a
replacement for the plug. (Tr. 67). He had to walk outby the area to shut down and lock out the
power to the belt. Nelson was still shoveling when he returned. At this point, Robinson observed
Inspector DiLorenzo and he said, “Federal is here.” (Tr. 70, 73-74). Robinson testified that he
said this, not to warn Nelson of the presence of an MSHA inspector, but to warn him that there
was an extra person on the section. Robinson testified that he did not shut the belt down because
an MSHA inspector was present. (Tr. 71). Robinson agreed that there was a coal accumulation
at the tail. (Tr. 72).
b. Summary of the Parties’ Arguments
The Secretary argues that the evidence establishes that, when Nelson became aware an
MSHA inspector was present, he ordered that the belt be shut down. The belt was being shut
down as he walked up to the tail piece and he did not observe anyone shoveling. Given these
facts and assuming continued mining operations, it was reasonably likely that a fire would have
started that could cause burns and smoke inhalation. DiLorenzo observed places where the belt
had been running in the accumulations. Nelson had allowed the belt to continue running even
though it was in contact with the accumulations. This mine had a history of accumulation
violations and MSHA inspectors had previously discussed this issue with mine management.
The Secretary maintains that the conditions created a serious fire hazard. The rotating
conveyor belt supplied a frictional heat source for the coal and coal dust and a fire would have
started if the condition had been allowed to continue. This was especially true in this instance
because the belt contained several splices in need of repair. The Secretary states that the credible
evidence establishes an S&S violation of section 75.400. She also argues that the evidence
establishes that the violation was an unwarrantable failure because the accumulation was obvious
and the section foreman was aware of its existence. Nelson cleared the travelway side of the belt
but he failed to clear the intake side. By clearing only one side of the belt, Nelson allowed the
belt to continue running and rubbing in the accumulation. In addition, past discussions with
MSHA about accumulation problems serve to put an operator on heightened awareness that it
needed to improve its compliance with section 75.400.
Black Beauty argues that the violation was not S&S. The particular facts of this case do
not support a finding that there existed a reasonable likelihood that the hazard contributed to by
the violation would have resulted in an injury or illness of a reasonably serious nature. Black
Beauty maintains that there was no ignition source. Inspector DiLorenzo did not observe the belt
running in the accumulations; he merely believed that the belt “had been rubbing in the
accumulations.” (Tr. 21). His testimony should not be credited on this issue. In addition, the
violation was not extensive. The inspector agreed that the accumulations could have developed
very quickly and that Nelson had shoveled up the accumulations on one side of the belt. Finally,
assuming continued normal mining operations, the material would have been cleaned up within
minutes.

34 FMSHRC Page 682

Black Beauty also argues that the violation was not the result of its unwarrantable failure
to comply with the safety standard. The order was issued because the inspector believed that
Nelson would have allowed the condition to continue if he had not arrived. The evidence
establishes, however, that the belt was shut down by Robinson so that he could repair the remote
line and that Nelson was in the process of removing the accumulations. Thus, the evidence
establishes that Black Beauty was actively in the process of removing the hazard.
c. Discussion and Analysis
I find that the Secretary established a violation of section 75.400. As Black Beauty
concedes, the accumulation violated that standard. I find that the Secretary did not establish that
the violation was S&S, however. I agree with the Secretary that she is not required to establish
that it is more probable than not that an injury will result from a violation. U.S. Steel Mining
Co., 18 FMSHRC 862, 865 (June 1996). Reviewing the particular facts surrounding the
violation in this instance in the context of continued mining operations, I find that an injury was
unlikely. I credit the testimony of Jason Nelson and Joseph Robinson. Nelson credibly testified
that he had been cleaning up the accumulations. Robinson, the mechanic, shut down the belt to
troubleshoot the surging problem. I find that the evidence establishes that, if the inspector had
not arrived, the belt would have been repaired and the accumulations cleaned up in a very short
period of time. Given that the belt was shut down, no hazard was present. I do not credit the
evidence that Nelson ordered the belt be shut down when he became aware that the inspector was
on the section. The gravity was moderate.
I also find that the violation was not the result of Black Beauty’s unwarrantable failure to
comply with the safety standard. The accumulations had been present for a short period of time;
the operator was in the process of abating the violation when the inspector arrived; and the
violation did not present a high degree of danger. The violation was rather obvious and
extensive, but given that clean up had commenced, I find that Black Beauty’s conduct did not
rise to the level of aggravated conduct. The operator’s negligence was moderate. A penalty of
$8,000 is appropriate.
2.

Order No. 6681297

On November 20, 2008, MSHA Inspector Philip Douglas Herndon issued Order No.
6681297 under section 104(d)(2) of the Mine Act for an alleged violation of section 75.402 of
the Secretary’s safety standards. The order alleges:
The MMU-001 was not properly rockdusted within 40 feet from
the faces of #3, #4, #7, and #8 including cross cuts #4 to #5, #3 to
#4. The unrockdusted areas have existed for a minimum of 12 to
16 hours prior to the issuance of this order and have existed while
production continued through these areas by evidence of the
existing mine cycle. This violation is the result of the operator’s
unwarrantable failure to comply with a mandatory standard and
demonstrates more than ordinary negligence.

34 FMSHRC Page 683

(Ex. G-10). The inspector found that an injury or illness was unlikely to occur but that any
injury would result in lost workdays or restricted duty, that the violation was not S&S, that ten
people would be affected, and that the violation was a result of high negligence on the part of the
operator. Section 75.402 provides, in part, that all underground areas of a coal mine “shall be
rock dusted to within 40 feet of all working faces. . . .” The Secretary has proposed a civil
penalty in the amount of $4,000.
a. Background Summary of Testimony
Inspector Herndon has been an inspector for MSHA for approximately four years. Prior
to that he worked in coal mines starting in 1982. Herndon was familiar with the Air Quality #1
Mine, because it was one of the mines where he had worked and because he had visited it “on a
regular basis” as an inspector. (Tr. 77) Herndon described Air Quality as a large, gassy room
and pillar mine. (Tr. 77-78). Pursuant to a regular E01 spot inspection of Mechanized Mining
Unit Number 1 (“MMU-001”), Herndon issued seven citations or orders on November 20, 2008
in that unit. (Tr. 79). Citation No. 6681297 was issued because the area was not rockdusted to
within 40 feet of the working face. (Tr. 80).
Herndon determined that faces 3, 4, 7, and 8 and crosscuts 4 to 5 and 3 to 4 were not
rockdusted and there was zero incombustible content material in the area. (Tr. 80-81). Herndon
designated this order as not S&S because, at the time, he did not find an ignition source. (Tr.
81). Herndon still found this to be an unwarrantable failure because a large area was not
rockdusted, mining activities would be continuing in the area, and the violative condition was
completely overlooked and unreported by the supervisors and examiners on MMU- 001. (Tr. 82;
Ex. G-16). Calling the violation “very extensive and extremely obvious,” Herndon designated it
as high negligence, finding no mitigating circumstance for the lack of attention paid to the
problem (Tr. 84-85). The manager of the mine apologized to Herndon for the violations, offering
no excuse. (Tr. 85-86). Herndon required that the areas be rock dusted and that mine personnel
be retrained to make sure they understood their responsibilities. (Tr. 86).
Kimberly Jean Orr, an outby utility worker, testified that her job involved accompanying
inspectors once or twice a week. (Tr. 92-93). Orr has approximately seven years of mining
experience, including rockdusting experience. (Tr. 92). After explaining the distinction between
hand dusting and machine dusting, Orr testified that it is common to hand dust and then
subsequently machine dust an area. (Tr. 93-95). Orr testified that she accompanied Herndon on
his inspection and that Toby Heiden was the section foreman at that time. (Tr. 95). Orr testified
that the entries were lightly hand dusted, and likely had been partly washed of their dust by the
“head spray” of the continuous mining machine. (Tr. 96-99). Orr testified that the “curtain had
been rolled up so they could bring the sling duster in to dust.” (Tr. 97). Orr testified that the
amount of rock dust that was on the rib at the time would not be noticeable to an average person
unless they were standing close. (Tr. 100).
b. Summary of the Parties’ Arguments
The Secretary argues that the areas were never rock dusted, and even if they were hand
dusted, it was inadequate because the surfaces were black, instead of the white of a properly rock

34 FMSHRC Page 684

dusted surface. (Sec’y Br. 13-14). The Secretary further argues that the extent of the violations
constituted an unwarrantable failure because all of the inspected areas were either overlooked or
ignored by mine supervision. (Sec’y Br. 14). In support of this argument, the Secretary points to
a mine examiner’s date, time, and initials on the black surface of the ribs, indicating that
although an agent of the mine witnessed the black, undusted surfaces, no measures were taken to
abate the condition. (Sec’y Br. 14).
Black Beauty argues that the order should be vacated because no violation of standard
75.402 occurred. (BB Br. 8). Black Beauty supports its argument by the light coating of dust
that Orr testified about. (BB Br. 8). Black Beauty argues that it was in the process of complying
with the standard because the crew was preparing to machine dust prior to the mining of any coal
and that Inspector Herndon was mistaken. (BB Br. 9).
Black Beauty also argues that the unwarrantable failure finding is inappropriate, even if a
violation is found. (BB Br. 9). As additional support, Black Beauty refers to the machine
dusting that was about to occur, based on Orr’s testimony that the curtain had been rolled up in
preparation for machine dusting and the low degree of danger due to the lack of an ignition
source. (BB Br. 10).
c. Discussion and Analysis
The order is affirmed as written. I credit the testimony of Inspector Herndon and find
that the cited area was not properly rock dusted to within 40 feet of the working faces as
described in the order. I find that any hand dusting that may have occurred was insufficient to
provide any protection at the time of the inspection. I credit the testimony of Inspector Herndon
that the cited areas were black in color and that the incombustibility content was very low. I also
find that the violation was the result of Black Beauty’s unwarrantable failure to comply with the
safety standard. The violation had existed for a considerable length of time, the violation existed
over a large area and was very obvious, and the operator knew that the condition existed.
Preshift examiners had to have been aware of the condition and, indeed, one mine examiner’s
date, time and initials were written on a black undusted surface. Black Beauty may well have
undertaken some initial steps to rock dust in the cited areas, but its actions were insufficient to
correct the obvious conditions in a timely manner. Black Beauty’s failure to rock dust in these
areas demonstrated aggravated conduct constituting more than ordinary negligence. I find that
its negligence was high but that the gravity was low. A penalty of $5,000 is appropriate.
3.

Order No. 6681046

On September 11, 2008, MSHA Inspector Glenn E. Fishback issued Order No. 6681046
under section 104(d)(2) of the Mine Act for an alleged violation of section 75.400 of the
Secretary’s safety standards. The order alleges, in part:
Obvious and extensive accumulations of combustible materials in
the form of loose coal, coal fines, and float coal dust were allowed
to accumulate along the energized 2 Main East conveyor belt

34 FMSHRC Page 685

entry. The accumulations of combustible materials were allowed
to accumulate from the 2 Main East header inby to the #48 x-cut.
(Ex. G-17). The order includes further details as to the amount of accumulations between each
crosscut. The inspector found that an injury was potentially fatal, though unlikely to occur, and
that the violation was not S&S. The inspector further found that the violation was the result of
high negligence on the part of the operator. The Secretary has proposed a civil penalty in the
amount of $23,825.
a. Background Summary of Testimony
Inspector Glenn Fishback was recently promoted to an MSHA roof control specialist for
District 8. (Tr. 103). Before his promotion, Fishback was a regular coal mine inspector. (Tr.
103). He has worked for MSHA for a total of three and a half years. (Tr. 104). Before joining
MSHA, he worked in the mining industry for twenty-eight years. (Tr. 104). Fishback is familiar
with the mine because he has inspected it numerous times. (Tr. 105). Fishback described the
mine as a gassy room and pillar mine, subject to spot inspection every five days. (Tr. 105-6).
Inspector Fishback issued the order because of the amount of accumulations of loose
coal, coal fines, and float coal dust found on the Main East conveyor belt, in violation of MSHA
standard 75.400. (Tr. 108-9). The accumulations began at the belt header, the dumping point
from the drive to crosscut 48. (Tr. 110). The crosscuts were on 70-foot centers at the time. (Tr.
110). Fishback estimated the total length of the area to be 3500 feet, describing this as atypical,
with a “catastrophic” number of accumulations. (Tr. 112).
Inspector Fishback testified that the belt line was running and miners were dumping coal
on it at the time of inspection. (Tr. 114). Fishback explained that the hazard posed by the
accumulations was an explosion, a fire, or smoke inhalation from a fire, any of which can be
potentially fatal. (Tr. 116-17). Fishback testified that the accumulations were up to the level of
the conveyor belt in some places, two feet or so off the ground. (Tr. 117). Fishback, despite
designating the situation as not S&S, marked it for “high negligence” given that “some examiner
should have noticed these conditions,” and as an “unwarrantable failure” because “the operator
should have known it existed” due to the record books, the length of the condition’s existence,
and how “obvious and extensive” the condition was. (Tr. 118-19). To Fishback, this
demonstrated a “total disregard” for maintenance and inadequate examinations. (Tr. 121).
Finally, Fishback testified that the removal of the accumulations took a “significant effort.”
(122-23). On cross-examination, Fishback testified that, along the 3500 foot conveyor belt, he
was unable to find an ignition source. (Tr. 123).
Travis Kyffin, belt maintenance and examiner at the Air Quality #1 Mine, was a full time
examiner at the time of the inspection. (Tr. 140). His duties included conducting onshift and
preshift examinations of belt lines. (Tr. 141). Kyffin testified that the third shift was typically a
maintenance shift, and a belt line would not be walked by an examiner during that shift. (Tr.
142). Kyffin testified as to the difference between a hazardous and a nonhazardous condition,
and provided examples of each. (Tr. 143). Kyffin testified that on September 10, 2008, he was
working the second shift. (Tr. 144). During this shift, he examined the 2 Main East belt line and

34 FMSHRC Page 686

recorded “[p]ressings from the drive at crosscut 11 and spill on the return side from 48 to 49,”
which was recorded as cleaned. (Tr. 146). Kyffin testified that, because the third shift was a
maintenance shift, his onshift examination on September 10 would have been the last time an
examiner walked that belt line before day shift on September 11. (Tr. 146-47).
On cross-examination, Kyffin testified that he was using a golf cart for the inspection and
that this did not inhibit his ability to inspect the belt line. (Tr. 150-51). Kyffin testified that he
did not see anything he would classify as a hazard or as a violation during his most recent
inspection. (Tr. 153).
Gary Campbell, Mine Superintendent at Air Quality in September of 2008, testified that
on September 11, 2008, he received a phone call stating that the 2 Main East belt had been shut
down pursuant to a (d)(2) order. (Tr. 155). Campbell went underground and walked the 10 to 12
crosscuts by himself, but was unable to find anything that he thought would “deem a belt being
shut down.” (Tr. 157-58).
Campbell testified that he then called Ron Madlem, then Safety Manager at Air Quality,
to accompany him for further inspection of the belt line. (Tr. 160-61). Campbell testified that he
did not see anything that warranted a 104(d) order. (Tr. 164). During the joint inspection with
Madlem, Campbell encountered Tom Culberson, the dayshift mine examiner, doing his belt line
examination. (Tr. 165). When Culberson asked him what he should write, Campbell testified
that he told Culberson to “write what you see.” (Tr. 166). Madlem left for a previously
scheduled meeting at MSHA’s offices and Campbell went to find Fishback to “see what we had
to do to . . . get this belt line back running.” (Tr. 166).
Upon questioning Fishback and Mary Jo Bishop, the MSHA Assistant District Manager
for District 8, Campbell was told to clean up four areas. (Tr. 167). After relaying this
information to Terry Courtney and being assured that people were working on them, Campbell
walked the belt line with Bishop and Fishback for about 15 crosscuts or so before going to check
on the progression of the cleanup. (Tr. 169). Campbell testified that he then was instructed by
Fishback that there were four more spots to clean up, which he again passed on to Courtney. (Tr.
172).
Campbell testified that he then asked Bishop and Fishback whether he could run the belt
while rock dusting was going on. (Tr. 174). Campbell testified that his request was refused and
that Bishop said, “No, you can’t. It will make it hard for the D to stick.” (Tr. 174-75). Campbell
estimated that to rock dust the entire belt line and adjacent crosscuts would take approximately
fifteen hours. (Tr. 176).
Before returning to the surface, Campbell checked to make sure people were cleaning the
specified areas, which Campbell testified “they were just finishing up.” (Tr. 176-77). Upon
returning to the surface, Fishback and Bishop issued Campbell the order, which he testified
identified additional crosscut numbers that were not “brought up underground.” (Tr. 178).
Campbell disputed MSHA’s claim that any potential fire would affect ten miners, testifying that
the regulator at the end of the tail piece and the block curtain in the roadway would prevent most
smoke from flooding the section, assuming a fire ever got to that point despite the other safety

34 FMSHRC Page 687

mechanisms in place. (Tr. 179-82). Campbell testified that Fishback never returned to look at
the areas he had specified needed to be cleaned. (Tr. 189).
Ronald Madlem confirmed that he received a call from Campbell and accompanied
Campbell on a joint inspection of the belt line. (Tr. 199). Madlem testified to encountering
Culbertson when he and Campbell were walking. (Tr. 202). Madlem testified that he was
surprised when he saw a copy of Order No. 6681046, because the conditions described did not
reflect what he observed when he walked the belt line. (Tr. 204).
On cross-examination, Madlem testified that just by looking, a person could tell the
difference between a piece of rock and a piece of coal. (Tr. 207). Madlem also testified that
Fishback had a habit of issuing additional orders before the work on the first order was done;
“the list seemed to expand as time went on and that’s why things took so long.” (Tr. 209).
Thomas R. Culbertson testified that he made an onshift examination of the 2 Main East
belt on September 11, 2008. (Tr. 212). Culbertson testified that the belt was shut down because
of the order when he began his examination. (Tr. 213). He examined the belt and found it to be
“in good condition,” without any hazards. (Tr. 214). Culbertson encountered Madlem and
Campbell, and then, after being told to write down “whatever you see,” continued his
examination. (Tr. 214). Culbertson confirmed listing two hazards pertaining to bolting. (Tr.
216). Culbertson testified that he did not see anything that would constitute a hazard in violation
of an MSHA safety standard. (Tr. 218-221).
b. Summary of Parties’ Arguments
The Secretary argues that the evidence unambiguously supports Fishback’s determination
of a highly negligent unwarrantable failure regarding a condition that could cause death. They
argue that (1) the coal accumulations were dangerous and potentially fatal; (2) Black Beauty’s
failure to clean up the coal accumulations was highly negligent; and (3) Black Beauty’s failure to
clean up the accumulations was an unwarrantable failure.
The danger presented by the coal accumulations is premised on the possibility of a deathcausing fire or explosion. Additionally, “smoke inhalation could cause a fatal injury.” (Sec’y
Br. 17). The Secretary’s allegation of high negligence is argued based on the “obviousness of
the accumulations” and the notice given to Black Beauty of prior violations of the same safety
standard. (Sec’y Br. 17). The Secretary argues that the company was unable to offer evidence
that would rebut or mitigate its failures. (Sec’y Br. 17).
The Secretary argues that the extent of the condition means that the accumulations
likely built up over more time than just the previous shift, as Black Beauty alleges as a defense.
(Sec’y Br. 18). Finally, referring to Fishback’s separate citation of Black Beauty for inadequate
examination records, the Secretary argues that Black Beauty cannot “use this very failure as its
primary defense to challenge whether accumulations existed at all.” (Sec’y Br. 19). Black
Beauty contested the inadequate examination records in a hearing on the merits before Judge
Feldman, whose decision was pending at the time the present case was briefed. (Sec’y Br. 18).

34 FMSHRC Page 688

Black Beauty argues that the unwarrantable failure and high negligence findings are
inappropriate because those designations were based on several false premises. (BB Br. 12). In
support of its argument, Black Beauty asserts that “Fishback’s opinion that the cited condition
was extensive is not credible” and “was exaggerated and the product of an overzealous effort to
establish the propriety of a 104(d) order that was disputed by Black Beauty and recognized as
questionable by another MSHA official.” (BB Br. 12).
The other MSHA official to whom Black Beauty refers is Mary Jo Bishop, who,
according to Campbell’s testimony, commented that allowing the belt line to be turned back on
after the areas were cleaned but before rockdusting, “would make it hard for the [104(d) order] to
stick.” (BB Br. 12-13). Black Beauty argues that this meant that she believed the order was
suspect. (BB Br. 12).
Black Beauty argues that Fishback’s belief that the beltline had been traveled in its
entirety by an examiner on the preceding midnight shift was erroneous because that shift was a
maintenance shift so no onshift examination of the belt was required. (BB Br. 13). Black
Beauty also contends that Inspector Fishback incorrectly assumed that the accumulations had
been present for a lengthy period of time. (BB Br. 14). Black Beauty calls Fishback’s position
that the conditions he observed existed for at least a week “entirely speculative, unfounded, and
contradicted by the evidence,” pointing to the detection and correction of accumulations on the 2
Main East beltline on nine separate occasions during the week preceding the Order. Id. Black
Beauty relies on the “substantial coal production” which occurred between the most recent
examination of the whole belt line and the issuance of the Order. (BB Br. 14). Black Beauty
argues that “Campbell’s account of the facts should be credited over Inspector Fishback’s as
[Campbell’s] testimony was corroborated by Mr. Madlem and Mr. Culbertson,” whereas Ms.
Bishop did not testify to corroborate Mr. Fishback’s account. (BB Br. 13).
c. Discussion and Analysis
I find that the preponderance of the evidence establishes the following facts. The most
recent examination of the beltline occurred during the onshift examination for the afternoon shift
on September 10, which occurred at about 6:30 p.m. that evening. (Tr. 146). The examiner
observed what he called pressings from the drive to crosscut 11 and a spill at crosscuts 48-49.
(Tr. 146; Ex. G-22). Coal had been produced on the afternoon shift until about 1:00 a.m. (Tr.
182; Ex. R-21). Coal production did not resume again until September 11 at about 7:00 a.m.
(Tr. 183; Ex. G-21). When Campbell and Madlem walked the belt line shortly after Inspector
Fishback had shut it down, they only observed material at crosscuts 27-28, some spillage at
crosscuts 24-25, some spillage at crosscuts 15-17, and a rib roll at crosscut 27. (Tr. 200-01).
None of the material they observed was in contact with the belt or any roller or structure. (Tr.
116). They testified that the beltline was white in color, with some grey areas, which indicated
to them that the area was adequately rockdusted. (Tr. 158, 164, 201).
At that point, Inspector Fishback indentified four areas that he believed needed to be
cleaned. (Tr. 167-68). After these areas were cleaned, Inspector Fishback walked the beltline a
second time. Campbell met with the inspector and he identified four additional areas that he
believed needed to be cleaned. Those areas were then cleaned by Black Beauty. When

34 FMSHRC Page 689

Campbell asked the inspector if the belt could be restarted, he was advised that the belt could not
be restarted. When the order was reduced to writing numerous additional areas were required to
be cleaned that had not been previously identified.
I find that the Secretary established a violation of section 75.400, but that the violation
was not the result of Black Beauty’s unwarrantable failure to comply with the safety standard.
The beltline had not been examined in its entirety by Black Beauty since about 6:30 p.m. on
Saturday, September 10. Coal was produced for the remainder of the afternoon shift on
September 10. Inspector Fishback erroneously believed that the beltline had been examined
during the shift before his inspection. The previous shift was a maintenance shift, however, and
MSHA’s safety standard requires such examinations only during shifts in which coal is
produced.1 As a consequence, the inspector’s belief that Black Beauty’s onshift examiner had
observed the same conditions that he observed is erroneous. I do not credit the inspector’s
opinion that the conditions he observed had existed for at least a week because this opinion is not
supported by the evidence. He simply had no knowledge of the condition of the beltline during
the immediately preceding days and conditions could have changed significantly. Black
Beauty’s records show that accumulations found during the most recent onshift examination had
been cleaned up. (Tr. 146; Ex. G-22).
I find that the Secretary did not establish that the accumulations existed for a significant
length of time. The record shows that Black Beauty cleaned up accumulations that existed
following the previous onshift examination. It cannot be determined how long the conditions
existed, but it is doubtful that all of them were created since the previous onshift examination.
The accumulations did not present a high degree of danger. The gravity of the violation was
serious but it was not S&S. Inspector Fishback traveled the beltline several times and added
areas that he believed needed cleaning with each trip. Whether the violation was obvious is in
dispute. I find that the violation was obvious and extensive at the time of the MSHA inspection
but it must be remembered that Black Beauty had not completed the onshift examination for that
shift. Black Beauty has a significant history of violations of section 75.400. Such a history
should put an operator on notice that greater efforts are necessary to comply with the safety
standard. It is not clear how many of these previous violations involved accumulations along
beltlines, but there can be no dispute that MSHA had been putting greater emphasis on
eliminating accumulations along beltlines at underground coal mines since the fire at the
Aracoma Alma Mine in January 2006.
I find that it was not established that the violation was the result of Black Beauty’s
unwarrantable failure to comply with section 75.400. The company did not show indifference or
reckless disregard toward the need to reduce and eliminate accumulations of combustible
materials. Its preshift and onshift examinations conducted along its belts and at the header and
Inspector Fishback issued Order No. 6681047 alleging a violation of section 75.362(b) for the
failure of Black Beauty to perform an adequate examination during the previous shift. Judge
Jerold Feldman vacated that order “because Black Beauty was not required . . . to conduct an onshift examination of the belt haulage way during the September 11, 2008, midnight maintenance
shift.” Black Beauty Coal Co., 34 FMSHRC ____, slip op. at 9, No. LAKE 2009-72 (Feb. 10,
2012) (petition for discretionary review granted March 21, 2012).
1

34 FMSHRC Page 690

drive motors may not have been sufficiently thorough to discover and remove all accumulations.
I find that Black Beauty’s negligence was moderate. Because the violation was serious and
extensive, a penalty of $10,000 is appropriate.
B.

Docket No. LAKE 2009-305 and -304, Air Quality #1 Mine
1. Citation Nos. 6682240, 6682241, 6682242, and Order No. 6682243

On Monday, December 8, 2008, Inspector Glenn E. Fishback issued Citation Nos.
6682240 and 6682242 under section 104(a) of the Mine Act for alleged violations of section
75.400 of the Secretary’s safety standards and Citation No. 6682241 for an alleged violation of
section 75.202(a) of the standards. Fishback also issued Order No. 6682243 under section
104(d)(2) of the Act for an alleged violation of 75.362(b) of the safety standards. The citations
and order were issued between 1:00 a.m. and 6:00 a.m. on Monday morning.
Citation No. 6682240 alleges that:
Obvious and extensive accumulations of combustible materials in
the form of loose coal, coal fines, and float coal dust (Black in
color and dry) were allowed to accumulate on the energized
Wheatland slope conveyor belt tail located in entry #5 crosscut #1.
The accumulations measured approximately 2 feet in width by 2
feet in depth and 8 feet in length and the belt was observed running
in these accumulations. Directly above this area a second area
measuring approximately 4 feet in length by 8 inches wide by 5
inches in depth was observed with the belt running in it. The main
structure frame work had float coal dust measuring approximately
2 inches to 3 inches in depth for an approximant distance of 38 feet
on all of the frame work.
(Ex. G-23). The inspector found that an injury was highly likely to occur and result in lost
workdays or restricted duty, that the violation was S&S, that ten people would be affected, and
that the violation was the result of high negligence on the part of the operator. The Secretary has
proposed a civil penalty in the amount of $63,000.
Citation No. 6682241 alleges that:
A loose coal rib gapped away from the solid pillar 4 to 5 inches
measuring approximately 36 feet long, 4 feet in height, and 4
inches to 16 inches in thickness was observed along the 2 Main
West belt between crosscut number 63 and crosscut number 64.
This rib was located on the travelway side of the belt. This area is
routinely traveled by mine examiners 3 shifts per day 6 days a
week.

34 FMSHRC Page 691

(Ex. G-24). The inspector found that an injury or illness was reasonably likely to occur and
could reasonably be expected to be permanently disabling, that the violation was S&S, that one
person would be affected, and that the violation was the result of high negligence on the part of
the operator. Section 75.202(a) of the Secretary’s regulations requires that “[t]he roof, face and
ribs of areas where persons work or travel shall be supported or otherwise controlled to protect
persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.” 30 C.F.R. §
75.202(a). The Secretary proposed a civil penalty in the amount of $12,248.
Citation No. 6682242 alleges that:
Combustible materials in the form of loose coal and coal float dust
were allowed to accumulate along and under the energized 1st
Main North Conveyor belt from crosscut number 1 to crosscut
number 3. The accumulations measured approximately 3 inches to
2 1/2 feet in depth by 6 1/2 feet in width, and 160 feet in length.
This area is traveled 3 shifts per day 6 days per week.
(Ex. G-30). The inspector found that an injury or illness was reasonably likely to occur and
could reasonably be expected to result in lost workdays or restricted duty, that the violation was
S&S, that ten people would be affected, and that the violation was the result of high negligence
on the part of the operator. The Secretary has proposed a civil penalty in the amount of $34,652.
Order No. 6682243 (LAKE 2009-304) alleges that:
An inadequate onshift examination was conducted for the 8:30 PM
to 11:30 PM examination on 12/07/2008 for the second shift
production. Citation numbers 6682240, 6682241, and 6682242
were issued under this 104(d)(2) order. Obvious and extensive
accumulations of combustible material in the form of loose coal,
coal fines and float coal dust (Dry and black in color) and the
conveyor belt running in this material were observed by MSHA on
this date. The examination record for the 8:30 PM to 11:30 PM
examination of these affected areas in the citation listed showed no
hazards listed. This violation is an unwarrantable failure to comply
with a mandatory standard. Management will have a meeting with
all mine examiners to terminate this 104(d)(2) order.
(Ex. G-34). The inspector found that an injury or illness was reasonably likely to occur and
could reasonably be expected to be fatal, that the violation was S&S, that ten people would be
affected, and that the violation was the result of high negligence on the part of the operator.
Section 75.362(b) of the Secretary’s regulations requires that “[d]uring each shift that coal is
produced, a certified person shall examine for hazardous conditions along each belt conveyor
haulageway where a belt conveyor is operated. This examination may be conducted at the same
time as the preshift examination of belt conveyors and belt conveyor haulageways, if the
examination is conducted within 3 hours before the oncoming shift.” 30 C.F.R. § 75.362(b). The
Secretary has proposed a civil penalty in the amount of $53,858.

34 FMSHRC Page 692

a. Background Summary of Testimony
On December 8, 2008, Inspector Fishback was conducting an inspection of Air Quality
#1 Mine. (Tr. 223). As a result of this inspection, Fishback issued Citation No. 6682240, a
104(a) citation for an accumulation of combustible materials in the form of loose coal fines on
the Wheatland slope tailpiece. (Tr. 223). Fishback testified that the Wheatland slope conveyor
belt carried the majority of coal out of the mine, that it was elevated about 2 or 2 1/2 feet off of
the mine floor, and that it was the last belt coal traveled on when coming out of the mine. (Tr.
224). Fishback described the accumulations as being approximately 2 feet in width by 2 feet in
depth and 8 feet in length, and that the belt was observed running in these accumulations. (Tr.
225). In other words, the belt was “energized.” (Tr. 225).
Fishback observed two ignition sources where the conveyor belt was rubbing the tail
piece and on the structure of the framework. (Tr. 227). Fishback testified that the accumulations
were black, meaning that no rock dust was present and making ignition more likely to occur.
(Tr. 227). Fishback then went on to explain his modification of the initial “highly likely”
designation to “reasonably likely” and the change from “lost work days” to “fatal” based on the
accumulations and the ignition sources. (Tr. 228). He explained his “high negligence”
designation on the basis of the amount of accumulations and the estimated number of shifts the
accumulations took to develop. (Tr. 229). Fishback testified that his S&S classification of the
alleged violation was because, “if there was an injury, it would be of a reasonably serious
nature.” (Tr. 230).
Fishback testified that other potential ignition sources, such as the area’s electrical
equipment and the tail roller turning in the accumulations, could also start a fire. (Tr. 231-32).
Fishback testified that the accumulations should have been obvious to Black Beauty’s examiners.
(Tr. 233).
Fishback issued Citation No. 6682241, a 104(a) order when he discovered that a loose rib
had gapped from a solid pillar 4 to 5 inches, measuring 36 feet long, 4 feet in height, and 3 to 16
inches in thickness. (Tr. 233-34). Fishback testified that Section 75.202(a) requires the mine to
substantially support, if not correct, the roof and ribs where men work or travel. (Tr. 234).
Fishback testified that he believed permanently disabling injuries were reasonably likely,
given that the alleged violation was on the travelway side of the belt where the belt examiner
walks every shift. (Tr. 234). Fishback testified that part of the reason he determined it was an
S&S violation was because, when the condition was abated, the loose rib was pulled down by a
pry bar with very little effort. (Tr. 236-37).
Fishback issued Citation No. 6682242, a 104(a) citation for accumulations of
combustible material along the energized First Main North conveyor belt from crosscut 1 to
crosscut 3. (Tr. 237). Fishback testified that he designated the violation as S&S due to the
mine’s history of violations and the fact that they were already on notice for violations of 75.400.
(Tr. 238). Fishback testified to the presence of additional potential ignition sources in the area,
including the electrical cables going to the drive motors and the drive motors themselves. (Tr.
238). Fishback testified that the drive area has a fire suppression system, but that it only covered

34 FMSHRC Page 693

about 60 feet of the area, leaving about 100 feet of the 160-foot area without any fire protection.
(Tr. 240).
Fishback issued Order No. 6682243, a 104(d)(2) order for an alleged violation of
75.362(b). Fishback testified that the purpose of the onshift exam is to provide information to
the mine operator and to MSHA on the conditions of the coal mine in its entirety. (Tr. 252).
Inspector Fishback testified that the area at issue in Citation No. 6682240 was required to be
examined onshift because it was a running conveyor belt. (Tr. 252-53). Fishback testified that
there would be three shifts in a 24-hour period at the mine and that each shift is required to have
an onshift examination. (Tr. 253). Fishback next testified that the area cited in Citation No.
6682241 was also required to be examined onshift three times a day because the belt line there
was also running. (Tr. 254). The area involved in Citation No. 6682242 was also required to be
examined onshift three times a day. (Tr. 254).
Fishback testified that, although there was an exam conducted at the right time, there
were no violations or hazards listed in the examination book, despite the accumulations that had
developed as described in Citation No. 6682240. (Tr. 255-56). The examination book, under
“Actions Taken or Remarks” said “needs cleaned,” signifying that the examiner had found
accumulations that needed to be cleaned. (Tr. 256-57). Fishback testified that this entry was not
sufficient to meet the requirements of an onshift exam because the comment should have been
listed under “Hazardous Condition,” in the exam book. Accumulations are hazards that need to
be listed as such and taken care of immediately. (Tr. 257-58). Similarly, there was no recording
of a loose rib in the examination book, in violation of the requirement to conduct a proper onshift
examination. (Tr. 259). Finally, Fishback testified in regard to Citation No. 6682242 that the
onshift book did not describe the extensiveness of the violation. (Tr. 262).
Fishback determined that the violation of section 75.362(b) was the result of Black
Beauty’s high negligence because of the history of past accumulation violations at the mine, and
an unwarrantable failure of management to comply because management signs off on the onshift
examination reports, and is responsible for ensuring the accuracy of the reports. (Tr. 265-67).
On cross-examination, Fishback testified that only accumulation violations that constitute
hazards need to be put in the onshift exam record. (Tr. 270). Fishback testified that he did not
know the ignition temperature of coal at the mine. (Tr. 276-77). Fishback testified that, on a
given onshift examination, the belt examiner only travels one direction, and that sometimes a rib
may be gapped only on one side. (Tr. 283).
On redirect examination, Fishback testified that, with continued mining, the belt could
have started rubbing the accumulations at any point. (Tr. 294). Mine examiners should be overinclusive rather than under-inclusive in terms of what violations and hazards they record in their
onshift exam books in order to protect the health and safety of miners. (Tr. 296). Fishback
testified that a fire suppression system would not have stopped a potential ignition with respect
to Citation No. 6682240 and that there was “a substantial amount” of the area addressed in
Citation No. 6682241 that would not have been under the fire suppression system. (Tr. 297-99).
Inspector Fishback testified that there is a separate fire suppression system at each belt head.

34 FMSHRC Page 694

(Tr. 303). He also testified that there was no methane gas detected during his December 8, 2008,
inspection. (Tr. 304).
Randall L. Hammond is the supervisor of safety compliance at the mine. (Tr. 307). The
job requires Hammond to maintain and review safety and production records. (Tr. 307).
Hammond has about 28 years of experience in the mining industry. (Tr. 308). He was
previously the Director of the Indiana Bureau of Mines and holds a Bachelor of Science degree
in Mining Engineering Technology. (Tr. 308). Hammond testified that, during the 12-hour
weekend shifts, it is typical to use only the South side, not the Wheatland side, “because there
were less belts that had to be run, and that would save on power.” (Tr. 312). Hammond testified
that the citations and orders at issue all refer to areas on the Wheatland side, which would have
been idle during the weekend shifts. (Tr. 313). According to computerized records, 1,542 tons
of coal went out the South portal, and zero tons went out the Wheatland side up through
midnight on December 7, 2008. (Tr. 315). No coal went out the Wheatland side. (Tr. 316).
Based on the clock-in times of Brian L. Nord and Eugene Merrimon III, Hammond
testified that these two miners conducted a preshift examination rather than onshift examinations
on December 7, 2008. (Tr. 320). Hammond also testified that a belt in contact with accumulated
material is less obvious when the belt is not running, such as during a preshift examination
conducted during a maintenance shift. (Tr. 321).
On cross-examination, Hammond testified that he was not at the mine on December 7 or
8, 2008. (Tr. 322). Hammond testified that, if an examiner sees a spill of sufficient quantity on
the beltline, he is required to mark it down in the examination book. (Tr. 325). In reviewing the
belt and roadway exam books, Hammond confirmed that there was no evidence that the
Wheatland Slope was cleaned, although it was marked as “needs cleaned.” (Tr. 326-27).
On redirect examination, Hammond testified that the “needs cleaned” entry in the exam
book on December 7 was a carryover from the December 6 examination, simply a copy of what
was previously written. (Tr. 331). On recross examination, Hammond testified that there was no
record of the Wheatland Slope being cleaned for at least three shifts. (Tr. 333).
Terrance Kiefer, an examiner at the mine, testified that, at the beginning of an onshift
examination, he and his examination partner would examine different belts. (Tr. 336-37). A full
onshift examination would take about three and a half to four hours. (Tr. 337). After the onshift
exam was complete, the examiners would preshift other areas of the mine in advance of an
oncoming shift. (Tr. 337). On December 6, 2008, Gary Ball was Kiefer’s fellow examiner. (Tr.
338). The records for December 6 indicate an onshift examination was conducted but no preshift
examination. (Tr. 337). Kiefer inspected parts of the 1 Main North and 2 Main West Slopes and
Ball inspected the Wheatland Slope and the rest of the Main West Slope. (Tr. 339). On crossexamination, Kiefer testified that, if he or another examiner discovered a hazard that required
some attention, they would have to correct the hazard and enter it as a hazard in the preshift
report. (Tr. 341-42).
Chad Barras, Midwest Safety Director for Peabody Energy, the parent company of Black
Beauty Coal, was next to testify. (Tr. 342-43). Prior to working for Peabody, Barras worked for

34 FMSHRC Page 695

MSHA as a ventilation engineer, whose job included reviewing mine plans and inspecting mines
for proper ventilation systems. (Tr. 343). Barras testified that in December of 2008, the belt
lines at the mine were equipped with fire detection systems, including carbon monoxide (“CO”)
sensors, spaced 1,000 feet apart. (Tr. 345). These CO sensors set off surface alarms at 10 parts
per million (“ppm”) pursuant to what was then a new regulation. (Tr. 345). Barras testified that
10 ppm was an extremely low concentration of CO relative to what would cause a fire or an
explosion. (Tr. 346).
Barras also testified that he knew of no instance where float coal dust led to an explosion
without the presence of methane. (Tr. 347-48). In addition to the fire detection system, there
was also a fire suppression system at the Mine. (Tr. 348). Miners are also required to carry
personal CO detectors that alarm at 50 ppm. (Tr. 349). There are caches of self-contained self
rescuers (“SCSR’s”) located along the belts at the Mine. (Tr. 349). A SCSR is a self-contained
apparatus that, upon being breathed into, scrubs out the CO from a miner’s exhaled breath,
maintains the oxygen, and adds a supplemental amount of oxygen to keep the miner breathing
the normal 20 to 21 percent of oxygen. (Tr. 349-50).
Barras testified that miners are trained to put on the SCSRs when their personal CO
detectors reach 50 ppm. (Tr. 350). Barras testified that the ignition temperature of coal at the
mine is approximately 880 degrees Fahrenheit, and that the “reject” coal, about 60 percent of the
coal mined, would have an even higher ignition temperature because it is about 65 percent rock.
(Tr. 351-52). Barras was unsurprised by the findings of an MSHA study that said from 1980
2005, there were 63 reportable mine fires along belt lines, none of which resulted in fatalities or
reportable lost-time injuries. (Tr. 355; Ex. R-35 p. 6). Barras reported that the CO systems are
extremely accurate and sensitive. (Tr. 355). The 2006 Aracoma Alma Mine fire, which resulted
in two fatalities was, in Barras’s opinion, attributable to the anomalous removal of ventilation
controls and the ignoring of alarms. (Tr. 356-57).
Barras testified that additional safety measures were put into place subsequent to the
Aracoma disaster as mandated by the 2006 Miner Act, including more SCSR’s, rescue chambers,
and lifelines in both primary and secondary escapeways. (Tr. 357-58). Barras disagreed with the
assertion in Citation Nos. 6682240, 6682242, and Order No. 6682243, that ten persons would be
affected because “we don’t have ten people over that way” during normal mining operations.
(Tr. 362-63). On cross-examination, Barras confirmed that the mine was on a five-day spot
inspection due to its high methane levels. (Tr. 366). On redirect examination, Barras explained
that preventive safety actions are taken when methane levels reach a low threshold, long before
they reach dangerous levels. (Tr. 373-74).
b. Summary of the Parties’ Arguments
Citation No. 6682240
The Secretary argues that the violation was S&S. (Sec’y Br. 20). The Secretary points to
Fishback’s testimony of two ignition sources: the belt rubbing the tail piece and the structure of
the framework at two different locations. (Sec’y Br. 20). The Secretary also argues that the
potential for a fire was exacerbated by the apparent lack of rock dust and the practice of running

34 FMSHRC Page 696

the belt lines during the maintenance shift. (Sec’y Br. 20). The Secretary also points to
Fishback’s analysis that the fire suppression system would be inadequate to stop a fire because
the location of the potential fire would be a “substantial distance from the main fire suppression
system.” (Sec’y Br. 20).
The Secretary compares the conditions at the mine to those that caused the Aracoma
Mine fire in June of 2006. (Sec’y Br. 21). The Secretary argues that given the extensive
accumulations, the presence of ignition sources, the amount of time the condition was allowed to
exist, and the significant quantities of methane at the Mine, the Court should find that the
violation was S&S. (Sec’y Br. 21).
The Secretary also argues that the violation showed high negligence by Black Beauty
because it “knew or should have known of the violative condition or practice, and there are no
mitigating circumstances.” (Sec’y Br. 22). This assertion is based on Fishback’s testimony that
it would have taken several shifts for the amount of accumulations present to accumulate. (Sec’y
Br. 22).
Black Beauty stipulates to the finding of a violation, but contests the finding that the
violation was S&S. (BB Br. 18). Black Beauty argues that, assuming normal mining operations,
a fire would be prevented before its inception through a combination the CO monitoring systems,
the fire brigade, and the presence of a temperature-sensitive fire suppression system. (BB Br.
18). Black Beauty analogizes the facts to those in Mach Mining LLC 33 FMSHRC 763 (March
2011) (ALJ), where “this Administrative Law Judge rejected the S&S designation for an
accumulations violation on a slope belt when similar systems were present.” (BB Br. 18).
Black Beauty argues against a finding of high negligence, asserting that, contrary to
Fishback’s conclusion, the Wheatland Slope was not running during the preshift examination.
(BB Br. 19).2 Black Beauty also argues that the accumulation was small when compared with the
48-inch width of the belt, and therefore not extensive. (BB Br. 19).
Citation No. 6682241
The Secretary argues that the violation was S&S and the result of high negligence on the
part of Black Beauty. (Sec’y Br. 23). The Secretary bases this argument on the potential of a
loose rib to cause permanently disabling injuries, the likelihood of injury, and the number of
people in danger of injury. (Sec’y Br. 23).
The Secretary’s high negligence designation was the result of Black Beauty being on
notice due to its previous loose rib and roof issues for which it had received citations. (Sec’y Br.
23). The Secretary further argues that the rib gap widened over time and could have fallen at any
time, given how loose it was. (Sec’y Br. 23).
2

In its brief, Black Beauty argued that this citation, as well as other section 104(a) citations at
issue in these cases, should not be characterized as an unwarrantable failure. As the Secretary
did not allege an unwarrantable failure, I have considered its arguments when considering the
high negligence allegation.

34 FMSHRC Page 697

Black Beauty stipulates to the fact of a violation. (Sec’y Br. 22). However, Black
Beauty contests the findings of S&S and high negligence. (BB Br. 20). Black Beauty argues
against the S&S designation on the basis that there was not a reasonable likelihood that the
hazard would result in an injury, given the low volume of people passing through the area. (BB
Br. 20). In support of its argument that a high negligence finding was inappropriate, Black
Beauty asserts that MSHA did not meet its burden of establishing that it was “more likely than
not” that the observed condition existed at the time of the examination. (BB Br. 21). Black
Beauty also argues that, because Fishback was not present at the time of the examination, his
belief that the condition existed at that time was speculative and thus insufficient to support an
unwarrantable failure finding. (BB Br. 21).
Citation No. 6682242
The Secretary argues that the S&S designation was justified by the mine’s history and the
fact that the mine had already been put on notice for its extensive history of violations of section
75.400. (Sec’y Br. 24). The Secretary also argues that the mine has a history of belts becoming
misaligned, which would become a potential ignition source. The Secretary cites Buck Creek
Coal, 52 F.3d 133, 136 (7th Cir. 1995) and Amax Coal Company, 19 FMSHRC 846, 850 (May
1997) in refutation of Black Beauty’s argument that the fire suppression system at the mine
would make a fire less likely. (Sec’y Br. 25). The Secretary points to over 200 accumulation
violations cited at the mine in the fifteen months before this inspection in support of its high
negligence designation. (Sec’y Br. 25).
Black Beauty stipulated to the violation but did not agree to stipulate as to the gravity or
negligence designations. (Sec’y Br. 24). Black Beauty argues the S&S designation was
inappropriate because Fishback’s nonspecific reference to past conditions “is entitled to no
weight because he did not . . . explain why such instances would be relevant to the condition he
observed” the day of the inspection. (BB Br. 22). Additionally, Black Beauty argues that,
because the Secretary did not present evidence that an actual ignition source was present, the
S&S finding should be deleted. (BB Br. 23).
Black Beauty argues that the high negligence determination should also be deleted. (BB
Br. 24). Black Beauty argues that the condition did not pose an immediate hazard at the time it
was found and, in the course of normal operations, it would likely have been corrected during the
midnight shift. (BB Br. 24). Black Beauty also argues that the Secretary’s “passing and non
specific reference to past history of section 75.400 violations” cannot be used to support a high
negligence finding. Id.
Order No. 6682243
The Secretary argues that the violation was S&S, demonstrated high negligence and a
lack of reasonable care, and was an unwarrantable failure. (Sec’y Br. 28-29). The Secretary
argues that section 75.362(b) required the mine examiner to list the conditions set forth in
Citation Nos. 6682240, 6682241, 6682242 as hazardous conditions in the onshift examination
book. The operator’s failure to discover these hazards and correct and record them created a
serious S&S violation. The Secretary also relied on the mine’s history of improper belt

34 FMSHRC Page 698

maintenance and cleaning, the amount of the accumulations, and the amount of time it must have
taken for the accumulations and the loose rib to develop. (Sec’y Br. 28). The Secretary also
noted Fishback’s statement concerning a lack of managerial follow-up when designating the
citation S&S. (Sec’y Br. 28).
The Secretary argues that Black Beauty was highly negligent because of its awareness of
the continual problem of loose ribs and roof issues, as well as management’s prior meetings
about past violations with MSHA personnel and company management personnel. (Sec’y Br.
29). The same argument is made with respect to the accumulation violations. The Secretary
argues that Black Beauty displayed a lack of reasonable care and showed “unwarrantable failure”
because of the obviousness of the conditions, the mine’s prior notice of numerous accumulation
citations, the potentially fatal consequences of the underlying accumulations, and the abject
failure of the mine to identify the conditions in the examination reports. (Sec’y Br. 29).
In response, Black Beauty argues that the order should be vacated because no onshift
examination of the Wheatland belt line occurred between 8:30 and 11:30 p.m. (BB Br. 17).
Black Beauty argues that the onshift examination cannot be inadequate where no onshift
examination even occurred and was not required. (BB Br. 18).
c. Discussion and Analysis
Citation No. 6682240
I find that the Secretary established that the violation was S&S. I reach this conclusion
for several reasons. The accumulations were black in color and extensive around the belt tail.
The combustible material was dry and consisted of loose coal, coal fines, and float coal dust. A
similar condition existed further up the beltline and the belt was running in these accumulations.
The structural framework was covered with float coal dust that was several inches deep.
Although Black Beauty had a CO monitoring system in place, such a system would not always
detect a rapidly building fire quickly enough to prevent a fire from spreading and injuring
miners. In addition, the evidence establishes that the entire area was not adequately protected by
the fire suppression system.3
I find that it was reasonably likely that the hazard contributed to by the violation would
have resulted in an injury of a reasonably serious nature. In reaching this decision, I have relied
on the Commission’s decision in AMAX Coal Co., 19 FMSHRC 846, 850 (May 1997). In that
case the Commission was not persuaded by the operator’s argument that the presence of fire
detection systems, self-contained rescuers, and firefighting equipment minimized the risk of
injury to miners from a fire. See also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir.
1995). Only a few miners would have been affected by this violation.

3 The present case is factually distinguishable from Mach Mining.

In that case, I found that the
accumulations were wet, the cited area was near the surface, and the air traveling through the
cited area was flowing in an outby direction. I also found that the conditions had existed for a
short period of time.

34 FMSHRC Page 699

I find that the negligence of Black beauty was moderate. Inspector Fishback erroneously
believed that the Wheatland Slope belt was running at the time of the applicable preshift
examination that occurred between 8:30 and 11:30 p.m. in advance of the oncoming maintenance
shift. The evidence demonstrates that the belt was idle at that time.4 In addition, if there had
been contact between accumulations and the belt, it would not have been obvious because the
belt was not running. A penalty of $30,000 is appropriate for this violation.
Citation No. 6682241
I find that that it was not established that the violation of section 74.202(a) was S&S or
the result of Black Beauty’s high negligence. The facts show that it was not reasonably likely
that the violation would have contributed to an accident in which there was an injury, assuming
continued mining operations. A measure of danger to safety was contributed to by the failure to
properly support or take down the loose rib. An injury to a miner struck by the rib falling would
most likely be reasonably serious. Therefore, the primary issue in the S&S analysis is whether
the violation was reasonably likely to result in an injury-causing event. The likelihood of an
injury-producing event must be evaluated by considering the likelihood of two specific events
occurring simultaneously, material falling from the loose rib and the presence of a miner directly
beside it. See Freedom Energy Mining Co., 32 FMSHRC 1809, 1821 (Dec. 2010) (ALJ).
Although the loose rib was sizable, it was in an area that was not frequently traveled. Although
it was possible that the loose rib would fall at some point, it is also possible that an examiner
would have pulled it down before it deteriorated much further. In addition, the likelihood that it
would fall at the exact moment when an examiner was in the area was remote at best.
The Commission and courts have observed that the opinion of an experienced MSHA
inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co.,
20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36
(7th Cir. 1995). Inspector Fishback certainly qualifies as an experienced MSHA inspector.
However, while it is possible that a miner could have been injured as a result of the violation, I
find that the Secretary has failed to prove that it was reasonably likely that an injury-causing
event would occur. The violation was serious.
I also find that the company’s negligence was moderate. The inspector presumed that the
same conditions existed at the time of the preshift examination. In fact, he had no knowledge
whether the condition existed at that time. The Secretary did not establish that it was more likely
than not that the condition observed by Inspector Fishback existed at the time of the Black
Beauty’s prior examination. See Enlow Fork Mining Co., 19 FMSHRC 5, 13 n. 10 (Jan 1997).
Indeed, he testified that a rib can “gap quickly.” (Tr. 283). The Secretary also relies on the fact
4

The Air Quality #1 Mine is a slope mine. The coal seam is close enough to the surface that
men and materials enter the mine down a sloped entry from the surface. Similarly, the mined
coal exits the mine on conveyor belts that travel up the slope. At this mine, there are two slope
entries that are used to transport coal out of the mine: the Wheatland Slope and the South Slope.
The credible evidence demonstrates that the South Slope was operating over the relevant
weekend and that the Wheatland Slope was idle. I credit the evidence presented by Black
Beauty on this issue.

34 FMSHRC Page 700

that the mine had been issued numerous citations for violations of section 75.202 for “roof and
rib issues.” (Tr. 236). The condition was not extensive and did not pose a high degree of
danger. Although the Secretary’s arguments have some merit, I find that, taken as a whole,
Black Beauty’s negligence was moderate. A penalty of $11,000 is appropriate.
Citation No. 6682242
I find that the Secretary did not establish that the violation was S&S. Clearly, there was a
violation of section 75.400 which created a measure of danger to safety. In addition, if a fire
were to start one or more miners could suffer smoke inhalation injuries. I find, however, that the
Secretary did not establish that there existed a reasonable likelihood that the hazard contributed
to by the violation would have resulted in an event in which there was an injury. The
accumulations were not in contact with the belt and there were no ignition sources present.
Although it was certainly possible that a belt could become misaligned and rub against the
support structure, there was no showing that such an event was reasonably likely to occur before
the accumulations were cleaned up. I credit Black Beauty’s evidence that the belt had not been
running over the weekend. There was also no showing that the electrical equipment in the area
was a likely ignition source.
The evidence establishes that the accumulations extended for a distance of 160 feet but
the fire suppression system did not extend that entire distance. Although I have considered this
fact, it is not determinative of the S&S issue. The likelihood of a fire in the unprotected area was
not significant, as discussed above. The violation was serious.
To support her high negligence allegation, the Secretary relies primarily on previous
violations of section 75.400. For example, Inspector Fishback testified about a huge
accumulation on September 11, 2008, in which combustible materials were present for a distance
of 3,500 feet along a belt entry where the belt was running. In addition, the Belt & Roadway
Inspection Report for the shift that ended at 3:30 p.m. the day before the citation was issued
states that the “stationary roller on take up needs cleaned.” (Tr. 241; Ex. G-33, p. 3). The
Secretary relies on this report to prove management’s knowledge of the condition.
I find that this violation was the result of Black Beauty’s moderate negligence. The
evidence shows that the 1 Main North belt was idle during the 8:30 to 11:30 p.m. preshift
examination. The following shift, when the citation was issued, was a maintenance shift so an
onshift examination had not been conducted. The above-referenced notation in the Belt &
Roadway Inspection Report does not support a finding of high negligence in this situation
because the accumulation mentioned in that report could well have been cleaned up before
production resumed. The condition listed did not present a significant hazard at that time. I
recognize that this mine received a high number of citations alleging violations of section 75.400
along belt lines. After the Aracoma fire in 2006, MSHA began to more rigorously enforce
section 75.400 along belt entries in underground coal mines and most underground coal mines
were issued many citations as a result. Basing a high negligence finding on such a history is not
warranted in this instance. I find that a penalty of 15,000 is appropriate for this violation.

34 FMSHRC Page 701

Order No. 6682243
Order No. 6682243 is vacated. All of the beltlines cited by Inspector Fishback were on
the Wheatland side of the mine. These belts were the Wheatland Slope Belt, No. 2 Main West
Belt, and the 1 Main North belt. The order alleges that Black Beauty’s onshift examination of
these belts was inadequate. The evidence shows that on Sunday, December 7 a small production
crew was using only the South Side belts, with the result that the Wheatland belts were idle
during this time and no onshift examinations were made along these belts. Although preshift
examinations were made in advance of the maintenance shift that started at 11:00 p.m. on
December 7, such exams only cover the drives, tails, and heads of such belts.
Section 75.362(b) requires onshift examinations during production shifts along belts that
are being operated. The belts in question were idle because a partial production crew was using
the South Side belts. I credit the evidence presented by Black Beauty that belts that are not being
used are idled to save on electricity costs. As a consequence, no onshift examination occurred on
December 7. Inspector Fishback erroneously believed that the mine was in full production the
afternoon of Sunday, December 7 and that an onshift examination of the Wheatland belts
occurred during the shift. The examination that occurred during this period was a preshift
examination for the oncoming midnight maintenance shift and not an onshift examination.
Government Exhibit 27, which the inspector used to support Order No. 6682243, is actually a
preshift examination report rather than an onshift report. (Tr. 319-21). As stated above, the
inspector started his inspection shortly after the start of the midnight maintenance shift. Because
I find that no onshift examination occurred on December 7 in the cited areas and that such an
examination was not required by section 75.362(b), the order is VACATED.
2. Citation No. 6682067
On November 29, 2008 Inspector Danny L. Franklin issued Citation No. 6682067 under
section 104(a) of the Mine Act for an alleged violation of 75.202(b) of the Secretary’s safety
standards. The citation alleges:
By evidence of equipment tire tracks, person or persons have traveled through an area of
unsupported mine roof measuring approximately 10 by 11 feet. The area was very
obviously dangered off prior to the tracks being made in the rock dust and on the rock,
which has fallen from the roof, by evidence of the rock dust on the danger flagging. This
condition existed between number 4 and 5 entries of the 2 Main East entries, two
crosscuts inby spad number 35574, crosscut number 65. Training must be conducted and
safety meetings on the hazards of unsupported mine roof. Documentation must be
presented in order for this citation to be terminated.
(Ex. G-42). The inspector found that a fatal injury was reasonably likely to occur, that the
violation was S&S, that one person would be affected, and that the violation was the result of
high negligence on the part of the operator. Section 75.202(b) provides, in part, that “[n]o person
shall work or travel under unsupported roof. . . . The Secretary has proposed a civil penalty in
the amount of $13,268.

34 FMSHRC Page 702

a. Background Summary of Testimony
On November 29, 2009, Inspector Franklin was conducting an inspection of Air Quality
#1 Mine accompanied by Gary Campbell. (Tr. 424). Franklin has worked for MSHA for four
years. (Tr. 376). Before that, he worked in underground mines starting in 1973. (Tr. 376).
Franklin testified that rock had fallen from the roof onto the floor, that red danger ribbons were
hanging off the affected area, and that the two middlemost of the four grouted roof bolts were
damaged. (Tr. 425). Franklin testified that he saw fresh tire tracks in the area that looked like
they belonged to the vehicle that carries the mine examiners. (Tr. 426). Franklin based his
designations of S&S and fatal on his belief that rock had already fallen and this condition
demonstrated a lack of adequate support that might result in a second roof fall that could result in
crushing injuries. (Tr. 427). Franklin testified that the violation was reasonably likely because
the condition was a violation of a mandatory standard and there were no other markers, other
than the red flags, to indicate the danger to miners. (Tr. 429). Franklin expressed concern about
the adequacy of the mine’s safety training. (Tr. 430).
Gary Campbell, mine superintendant, testified that the area was not active, but rather was
a return area that was infrequently traveled. (Tr. 439-40). Campbell testified that not going
under an unsupported roof was a “golden rule” at the mine, and to violate it would be punishable
by termination from employment. (Tr. 444). Campbell testified that he thought a mine examiner
had driven through the area, seen the rock on the ground, and was concerned about avoiding
having the “moon buggy” get stuck and missed the hanging flags when looking down at the rock.
(Tr. 444-45). Mr. Campbell also testified that it was common for mine examiners to use
discarded ribbon to flag danger areas and that fact may offer an explanation for why the ribbon
was covered with rock dust. (Tr. 445-46).
b. Summary of the Parties’ Arguments
The Secretary argues that the citation should be affirmed as written. (Sec’y Br. 33-34).
The Secretary argues that the tracks of a mine examiner’s vehicle show that an examiner drove
beneath the unsupported roof. (Sec’y Br. 34). The Secretary argues that such “conscious
disregard for an obvious safety violation” is evidence of Black Beauty’s high negligence. (Sec’y
Br. 34). Finally, the Secretary argues that, given that the roof had already fallen, it was
reasonably likely to fall again and cause an injury. (Sec’y Br. 34).
Black Beauty argues that the S&S finding is inappropriate and should be deleted because
there was a low level of exposure to the hazard given the speed with which an individual
examiner would be traveling through the area. (BB Br. 29). Black Beauty argues that a
confluence of an actual roof fall and a person being at the location at the time of the fall was not
reasonably likely to occur. (BB Br. 29). Finally, Black Beauty argues that the high negligence
finding is excessive and should be reduced because, even assuming an individual traveled
through the area with the flagging present, this would have been an “anomalous isolated incident,
not reflective of defective training or indifference on the part of management.” (BB Br. 30).

34 FMSHRC Page 703

c. Discussion and Analysis
There are many similarities between facts presented in this citation and the facts in the
loose rib citation discussed above (No. 6682241). For similar reasons, I find that the present
violation is not S&S. It was highly unlikely that this violation would contribute to a situation in
which there was an injury. The loose roof was in a remote, infrequently traveled area of the
mine. The violation was serious.
I find that the violation was the result of Black Beauty’s high negligence, however. The
violation was obvious and at least one examiner had driven right by it. The condition was
marked with danger ribbons, but this warning had been ignored. The examiner, who was an
agent of the operator, was indifferent to the danger posed by the condition. A penalty of $12,000
is appropriate for this violation.
3. Citation No. 6682048
On November 17, 2008 Inspector Franklin issued Citation No. 6682048 under section
104(a) of the Mine Act for an alleged violation of 75.370(a)(1) of the Secretary’s safety
standards. The citation alleges:
The company’s Approved Ventilation Plan was not being followed on the 4 Main North
travelway for 4,000 feet. This road is the alternate escapeway and is traveled regularly by
miners working on 3 different working sections. The travelway is dry and has visible dust
suspended in the air when mantrips, personal vehicles and other mobile equipment travel
this roadway. The approved Ventilation Plan requires that haulage roads be watered or a
wetting agent applied to control respirable dust.
(Ex. G-38). The inspector found that an injury was reasonably likely to occur and result in
permanent disability, that the violation was S&S, that ten people would be affected, and that the
violation was the result of high negligence on the part of the operator. Section 75.370(a)(1)
provides, in part, that the mine “operator shall develop and follow a ventilation plan approved by
the [MSHA] district manager.” The Secretary has proposed a civil penalty in the amount of
$37,416.
a. Background Summary of Testimony
On November 17, 2008, Inspector Franklin was conducting a spot inspection of Air
Quality #1 Mine. (Tr. 378). Franklin was accompanied by Todd Armstrong, an outby utility
employee with the mine, and Franklin informed then-superintendent Gary Campbell of his
reason for being at the mine. (Tr. 378). Franklin testified that the 4 Main North travelway, the
area for which he issued this citation, was an active working section of the mine. (Tr. 379).
Inspector Franklin explained that the Mine’s ventilation control plan calls for the application of
water, calcium chloride, or other chemicals to outby travelways to abate respirable dust. (Tr.
380).

34 FMSHRC Page 704

Franklin testified that the violation was apparent by the thick dust in the air. (Tr. 381).
Franklin estimated that the condition had existed for about eight hours. (Tr. 382). Franklin
explained that the danger presented by the suspended dust was the development of black lung.
(Tr. 383). Inspector Franklin justified his S&S determination because it was a violation of the
mandatory standard, an illness was reasonably likely to occur, and such illness was likely to be
of a serious nature. (Tr. 382). Franklin classified the citation as high negligence because he felt
it was obvious and extensive. (Tr. 384).
On cross-examination, Franklin testified that, although there was no specific benchmark
measurement for a dangerous amount of dust, it was obvious that abatement procedures were
necessary in this instance. (Tr. 386). Franklin testified that he did not know whether the dust he
observed was coal dust, rock dust or road dust. (Tr. 388).
Todd Armstrong had eight years total coal mining experience. (Tr. 395). Armstrong
testified that he traveled the 4 Main North travelway in a fourteen-man mantrip with Franklin.
(Tr. 395-96). Armstrong testified that when he was asked by Franklin to stop the mantrip several
times, he did not observe any visible dust. (Tr. 397). Armstrong testified that Franklin picked
up dust or dirt to test it for dryness during two of these stops. (Tr. 399-400). Armstrong testified
that, upon Franklin expressing his opinion that the dust was too dry and would need to be
watered, Armstrong contacted Eric Carter, the assistant mine manager. (Tr. 402-3). Armstrong
testified that Carter said he would take care of it. (Tr. 403). Armstrong testified that travelways
are usually watered once a day and must be neither too wet nor too dry. (Tr. 404). Armstrong
disagreed with the inspector that the travelway was too dry. (Tr. 404-5).
Eric Carter testified that, as part of his job, he coordinates outby work, including watering
roadways. (Tr. 415). Carter confirmed receiving the call from Armstrong saying that Franklin
wanted the travelway watered, but never indicated whether there was going to be a citation. (Tr.
412-13). Carter testified that preshift examiners would note when a road needed to be watered.
(Tr. 416). Upon reviewing the preshift examination for that day, Carter testified that it gave no
indication that the 4 Main North needed watering. (Tr. 417).
b. Summary of the Parties’ Arguments
The Secretary argues that the citation is “straightforward—the approved ventilation plan
requires that the mine apply water to control ‘dust’ and the mine failed to do so.” (Sec’y Br. 31;
Ex. G-40 p. 7). The Secretary argues that Franklin’s observations concerning the amount of
visible dust are virtually undisputed because Black Beauty failed to offer credible testimony to
the contrary, and Black Beauty relies solely on unsubstantiated oral denials of the condition by
its miners. (Sec’y Br. 31).
The Secretary argues that the finding of high negligence should be upheld because
management knew or should have known about the dry and dusty condition of the travelway
given that multiple employees, including three foremen, passed through the area not long before
Franklin. (Sec’y Br. 31). Finally, the Secretary argues that the S&S designation should be
upheld because any amount of coal dust may be damaging to a miner’s lungs to some degree and
inspectors must err on the side of caution. (Sec’y Br. 31-32).

34 FMSHRC Page 705

Black Beauty first argues that the citation should be vacated because no violation
occurred. (BB Br. 26). In support of this argument, Black Beauty points out that the ventilation
plan does not contain a specific requirement relating to dust along travelways and the plan does
not provide any benchmark amount of dust that must be controlled or an increment of time for
when water needs to be applied. (BB Br. 26). Black Beauty argues that it complied with the
requirement by regularly watering the travelway and that the travelway was not dusty at the time
of inspection. (BB Br. 26-27).
Black Beauty argues that, if a violation is found, the S&S designation is inappropriate.
(BB Br. 27). Black Beauty argues that Franklin offers no evidence to substantiate his opinion
that the amount of dust he found was damaging. (BB Br. 27). Black Beauty argues that even if
there were excessive dust, the short period of exposure would be insufficient to give rise to black
lung disease. (BB Br. 27-28). Finally, Black Beauty argues that the dust Franklin purported to
observe did not constitute “respirable dust” under the statutory definition. (BB Br. 28).
c. Discussion and Analysis
I find that the Secretary established a violation of section 75.370(a)(1). Under a section
entitled “Dust Control Provisions” is a subsection entitled “Methods Employed Outby the
Working Sections.” (Ex. G-40 pp 6-7). The subsection under that heading, entitled “Additional
Dust Control Measures Used and Maintained,” the plan provides for “calcium chloride, water, or
other suitable chemical treatment.” Id. at 7. Although this provision of the ventilation plan is
rather cryptic, it is clear that dust in the outby areas of the mine is required to be controlled by
the use of chemicals or water. Roadways would be included within the common meaning of an
outby area. The inspector determined that, given the amount of dust he observed, the cited
roadway had not been treated sufficiently to control the dust. I credit the inspector’s testimony
that the roadway was dry and dusty and that it should have been watered more frequently.
I find that the Secretary did not establish that the violation was S&S. Black Beauty
waters the roadways daily. Although this was insufficient on November 17, there was no
showing that the roadways are consistently dry and dusty or that miners are subjected to dusty
conditions on a regular basis. There is also no showing that this dust was respirable dust, as
opposed to nuisance dust. Although it is probably unhealthy to be exposed to such dust on daily
basis, there was no showing that this type of exposure was a common occurrence at the time. It
was not reasonably likely that the hazard contributed to by this violation would result in an injury
or illness. The violation was not very serious.
I find that there was no justification for the high negligence determination of the
inspector. Although management employees may have passed through the area, the evidence
reveals that the dust only became obvious when the inspector ordered the vehicle to be stopped
so he could observe the conditions. The violation was not particularly noticeable or serious.
Black Beauty’s negligence was moderate. A penalty of $5,000 is appropriate for this violation.

34 FMSHRC Page 706

C.

Docket No. LAKE 2009-698, Gateway Mine

1. Citation Nos. 8415648 and 8415650
On June 19, 2009, Inspector Robert Lee Bretzman issued Citation Nos. 8415648 and
8415650 under section 104(a) of the Mine Act for alleged violations of section 75.517 of the
Secretary’s safety standards. Citation No. 8415648 alleges:
The trailing cable supplying 480 Volts to the Lee Norse Roof
Bolter, company number 412 was not insulated adequately and
fully protected. Two separate places in the cable were damaged;
one of the damaged cables had inner conductors that were also
damaged. These damaged places were repaired with vinyl plastic
tape covering the outer jacket. Both repairs were not made
properly.
(Ex. G-57). The inspector found that a fatal injury was reasonably likely to occur, that the
violation was S&S, that one person would be affected, and that it was the result of moderate
negligence on the part of the operator. Section 75.517 provides that “[p]ower wires and cables
. . . shall be insulated adequately and fully protected.” 30 C.F.R. § 75.517. The Secretary
proposed a civil penalty in the amount of $6,458.
Citation No. 8415650 alleges:
The trailing cable supplying 480 volts to the Lee Norse Roof
Bolter, located on Unit #3, was not adequately protected. Four
splices or repairs were inspected; all four splices had vinyl (plastic)
electrical tape applied on the inner layer of the repair.
(Ex. G-58). The inspector found that this violation posed the possibility of fatal injury, though
he designated it as unlikely to occur and not S&S. The inspector believed the violation to be the
result of moderate negligence on the part of the operator. The Secretary proposed a civil penalty
in the amount of $1,304.
a. Background Summary of Testimony
Inspector Bretzman has over 30 years of general mine experience, has various educational
qualifications relating to mine safety, and has inspected the Gateway Mine at least six times.
(Tr. 493-94). On June 19, 2009, Bretzman was accompanied by Inspector Kenneth Benedict and
Mr. Kevin Thome, maintenance supervisor, on his regular inspection of Unit 3. (Tr. 495-97).
Bretzman testified that the cable at issue in Citation No. 8415648 was improperly repaired
through the use of vinyl plastic tape at two locations. (Tr. 497). After the repaired areas were
opened up, the inspector discovered that the outer jacket was damaged at both locations and the
inner insulated conductors were also damaged at one of these locations. Bretzman explained that
the operator should have first removed the outer jacket of the cable before applying any tape and
followed the instructions on the cable splice kit. (Tr. 499-500; Ex. G-61). Simply covering a

34 FMSHRC Page 707

damaged area with vinyl tape is not sufficient. Black Beauty did not remove any of the outer
jacket or follow any of the instructions that came with the cable splice kit. (Tr. 501). Although
the tape provided insulation value, it would not seal up the damaged area sufficiently to keep
water out. (Tr. 502).
He designated the violation as S&S because the tape used by the operator would not have
properly sealed the cable, resulting in a potentially fatal electrocution hazard if the cable were
pulled through wet conditions and water were to get into the area where the inner conductors
were damaged. (Tr. 502-03). He testified that the water could carry the current to the surface of
the cable and that such accidents have occurred at mines. Because of the high amperage, a miner
could be fatally injured if he were to receive such an electric shock. The cable was not wet at the
time of his inspection. Bretzman explained his designation of moderate negligence by testifying
that he believed that the mechanics who repaired the cable did not understand the hazard. (Tr.
505). He admitted that the mining industry has been repairing damaged trailing cables with vinyl
tape for years. (Tr. 515).
Inspector Bretzman testified that he returned to the same roof bolter later the same day
and examined the trailing cable for a second time. (Tr. 507). He asked the operator to cut open
an existing splice in the cable and discovered that there was a layer of vinyl tape under the rubber
tape. (Tr. 508). There were four areas where splices were improperly completed in that manner.
Inspector Bretzman testified that the mechanics improperly wrapped vinyl tape around the
insulated inner conductors. He said that mechanics often do that in case they ever need to cut
open the splice to see if there is an electrical fault in the splice. (Tr. 511). The inspector said
that it was improper because, by putting vinyl directly on the insulated power conductors, a
proper water-proof seal may not be created. Id. The splices were not wet.
On cross-examination, Bretzman testified that he frequently orders mine operators to cut
open trailing cable splices so he can examine them if he sees something that he does not believe
is correct. (Tr. 520). He admitted that the instructions for the cable splice kit permit a layer of
vinyl tape to be installed against the inner conductors. (Tr. 523). He further stated, however,
that the purpose of placing vinyl tape on the insulated inner conductors is to get them to “lay in
there nice and neat so you can [apply the rubber tape] nice and neat.” (Tr. 527). His concern
was that the mechanic wrapped the vinyl tape up on the tapered ends of the outer jacket. (Tr.
527, 529-30).
The Secretary also called Michael Tite, another coal mine inspector, to testify about these
citations. Inspector Tite was not present when the citations were issued and he did not see the
cited conditions. He corroborated Inspector Bretzman’s testimony by testifying that, in order to
correctly make a repair to a damaged cable jacket, the mechanic should remove the entire jacket
around the damaged area, taper the ends of the jacket and then follow the taping instructions set
forth in the cable splice kit. (Tr. 569). He testified that just wrapping some tape around the
damaged area does not meet the safety standard. He relied on section 11.0 of the cable splice kit
instructions in giving his testimony. (Tr. 570; Ex. 61 p. 13). These instructions state, under the
heading “Repairing Damaged Cable Jacket,” “11.1 Remove damaged cable jacket and taper
jacket approximately 1” (25mm)”. (Ex. 61 p. 13). The instructions go on to describe the other
steps necessary to complete the repair.

34 FMSHRC Page 708

Inspector Tite testified that simply covering the damaged area with vinyl tape does not
sufficiently “vulcanize the [tape] to the outer jacket and will not exclude moisture . . . .” (Tr.
570). He stated that if moisture gets into the damaged area, a miner holding the cable would
very likely receive an electric shock, which could be fatal. The circuit breaker for the roof bolter
is designed to protect the cable and not people, so a person could receive a lethal shock even
though the roof bolter is protected by a breaker. (Tr. 572). He admitted that, if the roof bolter
were grounded and the grounding system were working perfectly, a miner would not receive a
fatal injury. (Tr. 578). But, if there were many splices in a cable or other less than perfect
conditions exist, the grounding system might not adequately protect a miner.
With respect to Citation No. 8415650, Inspector Tite testified that Black Beauty should
not have applied vinyl tape as the first layer of tape when splicing the trailing cable. Inspector
Tite relied, in part, on a video tape played by the Secretary at the hearing. The video showed
rubber splicing tape being applied rather than vinyl tape as the first layer in the splice. He
admitted that the instruction allow a “small amount” of vinyl tape to be used to “bind” the
insulated power conductors together in section 10.1. (Tr. 574, 584; Ex. G-61 p. 12).
The company called Kevin Thome, maintenance supervisor at the mine, as its first
witness. (Tr. 588-89). Thome has approximately 33 years of mining experience. (Tr. 589).
Thome was present for the issuance of both citations. (Tr. 590-91). He testified that when the
inspector removed the tape from the cable a small cut was visible that was about the size of the
end of his little finger. (Tr. 595). The inner conductors were not visible. Inspector Bretzman,
ordered that about three inches of the outer jacket be removed around each of the damaged areas.
In one location, the insulation around an inner conductor was damaged. This damage would not
have been visible without removing the outer jacket. (Tr. 597). Thome testified that a prudent
electrician would not use vinyl tape to repair a cable if the insulation on one of the inner
conductors were damaged. Id. Thome stated that the person repairing a cable is trained on
proper procedure but is also allowed a certain amount of discretion in determining when a cable
is sufficiently damaged that it needs more than a layer of vinyl tape. (Tr. 607). Prior to the
present citation, the Gateway Mine had never received a citation for using vinyl tape when
repairing a damaged outer jacket on a trailing cable. (Tr. 606). The area where this roof bolter is
used is never wet or muddy. With respect to Citation No. 8415650, Thome testified that it was
normal practice to apply vinyl plastic tape to the insulated conductors when splicing a trailing
cable. (Tr. 599).
Gary Wilhelm, maintenance manager at the mine, has about 25 years experience working
at underground coal mines. (Tr. 482). He testified that one of his duties was to choose which
maintenance products should be used at the mine, including splicing kits. (Tr. 612). Wilhelm
was also in charge of implementing cable jacket repair techniques. He chose the splicing kit
manufactured by 3M because it is reliable and easy to obtain. (Tr. 613). The vinyl tape that is
used at the mine is 3M Temflex 1700 Vinyl Electrical Tape that is included in the cable splice kit
and is also purchased separately. (Ex. R-60). This tape is rated at 600 volts. Wilhelm testified
that Temflex tape is moisture and water resistant when applied in half laps and it binds well to
the outer jacket of the cables. (Tr. 615-16; Ex. R-60).

34 FMSHRC Page 709

Wilhelm testified that the miners who handle cables are required to wear gloves which
provide protection from electrical hazards. (Tr. 617-18). Also, some boots that the miners wear
provide similar protection. (Tr. 618). Wilhelm testified that the power center for the cables
include a ground-fault circuit interrupter (“GFCI”). (Tr. 620-21, 642). If the grounding system
in the cables stops functioning, the breaker is automatically tripped. It is designed to protect
people and not just the cable. (Tr. 622). Wilhelm also testified that cables are inspected for
damage on a weekly basis. (Tr. 654). He believed that it was not reasonably likely that the
conditions cited by Inspector Bretzman would result in any sort of injury. (Tr. 623). With
respect to Citation No. 8415650, Wilhelm testified that, when he showed the inspector the splice
kit instructions that permitted the use of vinyl tape when constructing a splice, the inspector
replied that he did not believe the instructions were correct. (Tr. 624). He testified that he
believes, based on conversations with 3M representatives, that the Temflex should be applied as
“strain relief between the internal leads and the external jacket.” (Tr. 626-27).
Wilhelm testified that the instructions in the splice repair kits recommended the use of
Temflex tape when splicing a cable. (Tr. 625-26). Wilhelm said that the 3M kits were MSHAapproved, and that he was not aware of any MSHA guidance rescinding that approval. (Tr. 627
28). Black Beauty played a 3M video which showed the use of vinyl tape inside a splice for
strain relief. (Tr. 629; Ex. R-63).
b. Summary of the Parties’ Arguments
The Secretary argues that Citation No. 8415648 should be upheld because the observed
damage to the cable and the failure to properly repair and adequately insulate this damage
violates section 75.517 of the safety standards. (Sec’y Br. 39). The Secretary argues that the
inspector’s determinations on gravity and S&S should be affirmed because the inspector testified
that miners have been shocked in similar circumstances and that the mine should have known to
properly repair the cable. (Sec’y Br. 39).
With respect to Citation No. 8415650, the Secretary argues that it is clear that the
operator applied the wrong tape as the inner layer of the splice, which violates the safety
standard. She maintains that the citation should be affirmed as written by the inspector.
Black Beauty argues that Citation 8415650 should be vacated because no violation of
section 75.517 occurred, given that the cable splice kit was approved by MSHA and the miners
followed its directions. (BB Br. 39, 41, 43). In the alternate, Black Beauty argues that the
citation should be vacated for lack of notice, arguing that a safety standard cannot be what the
Secretary meant “but did not adequately express.” (Sec’y Br. 43). Black Beauty argues that the
inspector’s decision to cite the use of Temflex tape for the cable repair in Citation No. 8415648
“amounts to nothing more than enforcement of his personal preferences,” not MSHA standards.
(BB Br. 44). Black Beauty argues that, if a violation is found, the S&S finding should be deleted
and the negligence finding should be modified to “none” because the inspector assumed
conditions of wetness and damage to the Temflex tape, neither of which were present on the date
of inspection. (BB Br. 44).

34 FMSHRC Page 710

c. Discussion and Analysis
Citation No. 8415648
The safety standard at issue is broadly worded to cover a wide range of circumstances. It
simply states that “[p]ower wires and cables . . . shall be insulated adequately and fully
protected.” The Secretary’s Program Policy Manual (“PPM”) is instructive. It first requires
that “damaged insulation on insulated power wires and cables (including trailing cables) and
damaged jackets on power cables (including trailing cables) be repaired.” (Ex. R-73; V MSHA
U.S. Dept. of Labor, Program Policy Manual, Part 75 at 66). There is no dispute that Black
Beauty repaired the trailing cable where it was cut. The issue is whether it was adequately
repaired. The PPM goes on to state:
Tapes or other materials that are used to form the outer jacket of
approved permanent splices may be used to replace damaged areas
of outer jackets of trailing cables. Outer jackets shall be replaced
in such manner so as to prevent moisture from entering the cable.
Id.
The evidence establishes that the tape Temflex tape used by Black Beauty is water
resistant, provides excellent mechanical protection, and is rated for up to 600 volts when it is
applied in a half-lapped manner. (Tr. 616, Ex. R-60). This tape is authorized by MSHA to be
used when splicing cables as part of the splice kit. Mr. Wilhelm credibly testified that the tape is
used for all types of cable repairs and is also used when splicing two trailing cables. Indeed,
Inspector Bretzman acknowledged that the electrical tape used by Black Beauty can be part of
the top layer of an electrical splice. (Tr. 518). There is no question that the vinyl tape used was
properly applied in half lap layers and that it covered the damaged area in the cable completely.
The tape had not been damaged since it had been applied. Kevin Thome removed the vinyl tape
from the trailing cable at the inspector’s request. At one location there was only a small cut in
the outer jacket and the insulated inner conductors were not exposed.
The cable splicing kit instructions recommend that a damaged cable jacket be cut away
when a cable jacket has sustained significant damage and that the splicing kit be used to repair
the damage. (Ex. G-61 p. 13). In addition, Mr. Thome testified that a prudent electrician would
not use vinyl tape to repair a cable if the insulation on one of the inner conductors is damaged.
(Tr. 597). The 3M splice kit used by Black Beauty has been approved by MSHA. (Tr. 521,
627). The instructions were included in the splice kit. Black Beauty uses an easy-to-apply rule
when repairing damaged cable jackets. If the damage appears to be superficial, such as a nick, it
carefully wraps the area with Temflex vinyl tape. If the damage is such that the inner insulated
conductors may have been damaged, then the damaged area of the cable jacket is removed and
repaired as set forth in the cable splice kit’s instructions. Given the language of the safety
standard, the guidance in the PPM, and the instructions that came with the cable splice kit, I find
that such an approach is reasonable and that it does not violate the safety standard if it is

34 FMSHRC Page 711

followed.5 As discussed with respect to the next citation, vinyl tape is one of the types of tape
that is “used to form the outer jacket of approved permanent splices.” (PPM at 66).
Black Beauty should err on the side of caution, however. When the cited cable was cut
open for inspection, the damage in one of the two areas cited by the inspector included damage
to the insulation on an inner conductor. In such an instance, I find that simply using vinyl
electrical tape to cover the area does not “adequately and fully protect” the area from further
mechanical damage and from an electric shock hazard. Although the vinyl tape is moistureresistant, it does not provide as good a seal as the original jacket or an area where a full splice
has been installed. Additional stress on the cable and exposure to moisture can create a situation
which creates an electric shock hazard. On this basis, I find that the Secretary established a
violation of the safety standard.
I find that the violation was S&S. I credit the testimony of Black Beauty’s witnesses as
to the dry conditions in the area where the roof bolter operated and as to the GFCI system that is
part of the roof bolter. If the grounding system is not working, the circuit breaker will trip,
greatly reducing shock hazard. Nevertheless, given that the damaged inner conductor was
hidden and unknown to Black Beauty, the hazardous condition would not have been corrected
until the trailing cable was replaced. I find that, given the stress that is put on a trailing cable as
it is moved and reeled on and off the roof bolter, it was reasonably likely, assuming continued
mining operations, that the hazard contributed to by the violation would result in an injury of a
reasonably serious nature. The gravity was serious.
I also find that Black Beauty’s negligence was low. It has been repairing minor damage
to trailing cables by using vinyl electrical tape for years without receiving a citation or even a
comment from MSHA to indicate that such a procedure might not always meet the requirements
of the safety standard. In this instance, the damage to the insulation on the inner conductor was
hidden and would not necessarily have been expected with such a minor cut in the cable jacket.
Black Beauty must more carefully examine damaged areas on cable jackets to make sure that
insulation on inner conductors has not been damaged before it simply uses vinyl electrical tape to
make repairs. A penalty of $4,000 is appropriate.
Citation No. 8415650
Inspector Bretzman instructed Mr. Thome to cut open four splices on the trailing cable on
the same roof bolter involved in the previous citation. The splices were neither wet nor damaged
when the inspector ordered that they be cut open. In addition, once they were cut open there was
no sign of water or other damage to the insulated internal conductors. The inspector issued the
citation because vinyl electrical tape had been used inside the splice. Mr. Wilhelm, at a meeting
on the surface after the citation was issued, tried to convince the inspector that the instructions
5 If the Secretary believes that the type of electrical tape used by Black Beauty should not be

used to repair nicks or cuts in trailing cables, she must engage in rulemaking to reflect such a
change or, at a minimum, amend her PPM to state that vinyl electrical tape cannot be used to
repair nicks and small cuts in electric cables.

34 FMSHRC Page 712

for the approved 3M splice kit provides for the use of vinyl tape inside the splice. Indeed, the
instructions for the 3M Mining Cable Splice Kit 3100 specifically provide for the use of Temflex
Vinyl Electrical Tape to bind and secure the underlying insulated conductors when splicing two
cables. (Ex. R-61). Vinyl tape is apparently applied to provide strain relief between the
insulated internal conductors and the external jacket. After the vinyl tape is applied, the outer
jacket is constructed using rubber splicing tape and heavy duty mining tape. Id. Inspector
Bretzman’s only concern with the splices he examined was the fact that the operator applied
vinyl electrical tape as the first layer in making the splice. It became apparent during Inspector
Bretzman’s testimony that, if the vinyl tape had not covered part of the tapered ends of the cable
jackets that were being spliced together, he would not have issued the citation. He believed that
only a small amount of vinyl tape should have been used and that it should not have extended out
onto the tapered ends of the cable jackets at each end.
The evidence demonstrates that the method and materials used by Black Beauty to splice
trailing cable did not violate the safety standard. Accordingly, this citation is vacated. Nothing
in the safety standard, the 3M cable splice kit instructions, or the PPM can be interpreted to
conclude that the splices the inspector examined failed to meet the requirements of section
75.517. The vinyl tape was present to provide strain relief and it was completely covered by the
rubber splicing tape and heavy duty mining tape, as described in the cable splice kit instructions.
(Ex. G-61, p. 12). There was no showing that the splices constructed by Black Beauty did not
completely seal the area inside the splice from moisture. The citation is VACATED.
2. Citations Nos. 8414855 and 8414858
On June 17 and 19 respectively, Inspector Kenneth Benedict issued Citation Nos.
8414855 and 8414858 under section 104(a) of the Mine Act. Citation No. 8414855 was issued
for a violation of 75.604 of the Secretary’s safety standards and alleges:
The 480 volt AC trailing cable supplying power to the #403 roof
bolter located on Unit #3 has 3 permanent splices that are not
effectively insulated and sealed so as to exclude moisture. The 3
splices have areas where the insulation has been worn off exposing
the inner leads. These splices are close to the bolter and would be
sliding on a guide assembly on the bolter that is damaged allowing
the cable to slide on the frame of the bolter.
(Ex. G-62). The inspector found that this violation was reasonably likely to result in fatal injury,
was S&S, would affect one person, and was the result of moderate negligence on the part of the
operator. The Secretary proposed a civil penalty in the amount of $4,689. Section 75.604
provides:
When permanent splices in trailing cables are made, they shall be:
(a) Mechanically strong with adequate electrical conductivity and
flexibility;
(b) Effectively insulated and sealed so as to exclude moisture; and
(c) Vulcanized or otherwise treated with suitable materials to

34 FMSHRC Page 713

provide flame-resistant qualities and good bonding to the outer
jacket.
(d) Made using splice kits accepted or approved by MSHA as
flame resistant.
30 C.F.R. § 75.604.
Citation No. 8414858 was issued for an alleged violation of section 75.503 of the
Secretary’s safety standards and alleges:
The company #412 roof bolter located on Unit #3 is not being
maintained in a permissible condition. (1) There are three bolts that
hold the cable reel cage in place that are coming in contact with the
480 volt AC trailing cable. (2) There is an upright bar that the
cable wraps around that is not insulated. When tested by a
qualified electrician with an ohm meter the bolts and the bar show
continuity with the frame of the machine. (3) The cable guide that
the cable passes through at the reel compartment has an insulated
roller missing allowing the cable to come in contact with the frame
of the machine.
(Ex. G-65). The inspector found that this violation was reasonably likely to result in a fatal
injury, was S&S, and would affect one person. The inspector believed the violation to be the
result of moderate negligence on the part of the operator. Section 75.503 provides that the
“operator of each coal mine shall maintain in permissible condition all electric face equipment
required . . . to be permissible which is taken into or used inby the last open crosscut of any such
mine.” 30 C.F.R. § 75.503. The Secretary proposed a civil penalty in the amount of $9,634.
a. Background Summary of Testimony
MSHA Inspector Benedict has close to 39 years mining experience and worked at the
Gateway Mine for a few years, under a different operator, before working for MSHA. (Tr. 538).
Benedict explained the issuance of Citation No. 8414855 as stemming from his observation that
the cables “had quite a bit of abuse” that had exposed the “inner leads . . . damaging the outer
jacket of insulation.” (Tr. 540). This exposure, he testified, allows moisture to get into the taped
area, presenting the hazard of electrocution. (Tr. 540-41). The copper wire in these inner leads
was not exposed. (Tr. 557). The damaged areas were close to the reel for the cable on the roof
bolter. He issued another citation for a permissibility violation on the same roof bolter. (Tr. 542;
Ex. G-77). Benedict testified that Black Beauty’s only safety mechanism was the “breakers that
are supposed to kick when the cables come in contact with the . . . ground,” but that if a miner
was any closer to the exposed cable than the breaker, the miner would be electrocuted.” (Tr.
544).
Inspector Benedict next explained why he issued Citation No. 8414858. (Tr. 546). He
found three bolts in the cable reel that were not insulated and a bar on the cable reel that was not
insulated. This citation was issued on the same roof bolter that Inspector Bretzman cited for

34 FMSHRC Page 714

improper repairs to a trailing cable, Citation No. 8415648, discussed above. The damaged areas
on the trailing cable were close to the reel and he believed that if there were a fault, the current
could flow to the frame of the roof bolter and electrocute someone. (Tr. 549). Benedict testified
that an Ohmmeter reading showed that there was continuity between three uninsulated bolts and
the frame of the roof bolter, which meant that “any bare cable” that touched the bolts would
energize the frame of the machine, electrocuting anyone who touched it. (Tr. 548-49). It is not
uncommon for a circuit breaker to fail. (Tr. 550).
Inspector Tite testified that the conditions described in the two citations were reasonably
likely to cause a fatal injury. (Tr. 574-75). He agreed with Inspector Benedict’s S&S
determinations. (Tr. 576-78). He admitted that three events would have to occur
simultaneously: a portion of the bare copper wire would need to be exposed, the bare wire
would need to come in contact with the reel, and a miner would need to be touching the roof
bolter. (Tr. 575). He testified that it was reasonably likely that these three events would occur at
the same time. (Tr. 585).
Mr. Thome testified that there was no methane present in the areas where the roof bolters
were operating. (Tr. 600). He also testified that all employees are required to wear gloves,
which provides some protection from electric shock. (Tr. 601). In addition, the cable closest to
the reel is not handled by miners as frequently as the middle section of the cable.
Mr. Wilhelm testified that everyone wears gloves in the mine; it is company policy. He
further testified as to the GFCI circuits that protect the trailing cables on roof bolters. (Tr. 634).
These GFCI are specifically designed to protect people working with the roof bolters and the
associated trailing cables. (Tr. 635). It checks the continuity of the grounding system.
b. Summary of the Parties’ Arguments
The Secretary argues that Citation No. 8414858 should be upheld because the exposed
bolts and bar on the cable reel could have made contact with the improper cable splices and
repairs and electrocuted a roof bolter operator. (Sec’y Br. 39-40). The Secretary argues that
Citation No. 8414855 should be similarly upheld because the damaged trailing cable could come
in contact with the uninsulated parts on the reel and energize the roof bolter, which would
reasonably likely cause a fatal shock to a miner operating the roof bolter. (Sec’y Br. 43).
Black Beauty stipulates to the fact of violation for Citation Nos. 8414855 and 8414858,
but contests the findings of injury, gravity, severity, and S&S. (Tr. 553). Black Beauty argues
that the Secretary failed to establish the reasonable likelihood of fatal injury in Citation No.
8414855, given that the inner conductors were not damaged, the area was dry, and the cited
splices were unlikely to be handled by miners. (BB Br. 49). Based on these conditions, and on
its assertion that the violation identified by Citation No. 8414858 would have been discovered on
the next permissibility examination of the equipment, Black Beauty argues that the a fatal
accident was not reasonably likely to occur. (BB Br. 50).

34 FMSHRC Page 715

c. Discussion and Analysis
Citation No. 8415655
Black Beauty is only contesting the inspector’s gravity and S&S determinations. As
stated above, Black Beauty argues that the Secretary failed to establish the reasonable likelihood
of a fatal injury given that the inner conductors were not damaged, the area was dry, and the
cited splices were unlikely to be handled by miners. The evidence establishes that the insulated
inner conductors were dry and were not damaged in any way. It is also clear that miners would
rarely handle the cable because it is supported by hangers and the cited portions of the cable
were close to the roof bolter. In addition, the circuit was equipped with GFCI protection, which
will quickly trip the power in the event of any imbalance in the power.
I find that the violation was serious and that a fatal injury was possible, but that the
violation was not S&S. The Secretary did not establish the third element of the Mathies S&S
test. Redundancy in electrical circuit protection is required in all electrical installations. In this
case, the inner conductors were insulated, the area was dry, and the circuit was equipped with
GFCI protection. There was no evidence that this ground fault protection system was not
functioning properly. Such circuits are specifically designed to protect people from electric
shock hazards. While it was possible that someone could receive a shock or even a fatal injury
from the conditions described in the citation, such an event was not very likely. A penalty of
$4,000 is appropriate.
Citation No. 8415658
The roof bolting machine at issue in this citation is the same one as cited by Inspector
Bretzman in Citation Nos. 8415648 and 8415650, discussed above. Although I vacated Citation
No. 8415650, I determined that Black Beauty violated section 75.517 in Citation No. 8415648.
All three of these citations were issued on the same day.
Black Beauty is only contesting the inspector’s gravity and S&S determinations. The
Secretary argues that the three exposed bolts on the cable reel could have easily come into
contact with the improperly made splices and improperly made repairs on trailing cable. I find
that the Secretary established the S&S nature of this citation. As stated above, one of the repairs
made with Temflex tape was to an area on the trailing cable where the inner insulated conductors
had been damaged. As discussed above, Black Beauty was not aware that one of the inner
conductors had been damaged and it was not likely that such damage would have been
discovered before the trailing cable was replaced. Citation No. 8415658 adds one more element
to the S&S equation. I find that, given the stress put on a trailing cable as it is moved and reeled
on and off the roof bolter, it was reasonably likely, assuming continued mining operations, that
the hazard contributed by the violation would result in an injury of a reasonably serious nature.
I find that Black Beauty’s negligence was moderate. A penalty of $10,000 is appropriate.

34 FMSHRC Page 716

3. Citation No. 8414334
On July 8, 2009, Inspector Bobby F. Jones issued Citation No. 8414334 under section
104(a) of the Mine Act for an alleged violation of section 75.400 of the Secretary’s safety
standards. The citation alleges:
When inspected the Unit #2—No. 5 belt was observed with
accumulations of coal and float coal dust from the No. 5 belt drive
located at 96 x-cut to the 130 x-cut. These accumulations ranged
from 2 inches to 24 inches in depth and 2 inches to 2 feet in width
at numerous locations along both sides.
(Ex. G-68). The inspector found that an injury of lost workdays or restricted duty was possible,
though unlikely to occur, that the violation was not S&S, that 18 people could be affected, and
that the violation was the result of moderate negligence on the part of the operator. The Secretary
has proposed a civil penalty in the amount of $4,329.
a. Background Summary of Testimony
Inspector Jones has worked for MSHA for four years. (Tr. 657). Before that, he worked
in the mining industry for 28 years. (Tr. 657). Jones issued the citation for accumulations of
coal and float coal dust of varying depths along the belt line, which Jones testified could result in
a mine fire. (Tr. 660). He determined that 18 miners would be affected by the violation. He
described the unit as a “fishtail” unit with nine miners on each side. Id. The mine brings the
ventilation up an entry and it is split to supply air to two faces. In such a configuration, the left
and right side have their own ventilation so “they can run two units on one belt.” (Tr. 661). He
analogized the hazard to a house fire. if there were ten people in the house at the time, they
would all be affected by the fire. He determined that 18 people would be affected because the
miners from both sides would tend to gather at the regulator. (Tr. 665). The mantrips and
SCSR’s are at that location.
Bruce Waldman, Safety Manager at the mine, has 33 years of experience working at
underground mines, and has been a safety manager for the past 10 years. (Tr. 474). He testified
that the CO sensors are monitored “24/7” by a security guard. (Tr. 669). Waldman testified that
the people who check the CO monitors are also equipped with monitors that detect methane,
oxygen, and CO. (Tr. 671). There was no methane in the area at the time the citation was
issued. Waldman testified that the miners are aware of the location of the primary escapeway
and they would meet at that location. (Tr. 676-77). On the date the citation was issued, the
feeder was at crosscut 157. (Tr. 679). The belt is ventilated with neutral air, which is directed
by check curtains and stoppings to the return. (Tr. 680-81; Ex. R-70, p. 13). This configuration
prevents any contaminants in the belt air, including smoke, from entering the working sections.
Belt air does not ventilate the face. Due to the air pressure and the fact that the isolation curtains
were fully intact, it would be impossible for smoke from the belt entry to travel up into where the
miners were working. (Tr. 682). Waldman disagreed that 18 people would be affected because
check curtains would keep air that passed over the cited area away from both working units. Id..
At most, the examiner and another miner in the neutral air would be affected. Id. He admitted

34 FMSHRC Page 717

that if the intake stopping lines went out, the smoke could get into the working section. (Tr.
687).
b. Summary of the Parties’ Arguments
The Secretary argues that, because the escape map is kept at the work bench where belt
air flows, all miners would have to come into contact with the smoke on their way to the escape
map. (Sec’y Br. 45). The Secretary argues that both nine-miner crews would be affected by
exposure to smoke if a fire were to occur. (Sec’y Br. 45).
Black Beauty argues that only one person, an examiner, would be affected if a fire were
to occur, not 18 miners. (BB Br. 37). In support of this argument, Black Beauty points to the
location of the miners and quotes from an MSHA Handbook, which instructs inspectors to “enter
the . . . number of persons who could or would be affected if the anticipated event occurred.”
(BB Br. 36).
c. Discussion and Analysis
Based on the evidence, I find that only one or two miners would have been affected by
the cited conditions in the event of smoke or fire. I credit the evidence presented by Mr.
Waldman on this issue. The No. 5 belt leads to Unit No. 2, which includes two different mining
crews of nine miners each. There was no methane in the area. The cited belt is ventilated with
neutral air which exhausts to the secondary escapeway. The evidence establishes that the miners
gather near the power center in the intake air. Although in a worst case scenario all of the miners
could be affected, it was not particularly likely. In all other respects the citation is affirmed. A
penalty if $4,000 is appropriate.
D.

Docket No. LAKE 2009-608, Gateway Mine

1. Citation No. 4269996
On June 1, 2009, Inspector James Dean Rusher issued Citation No. 4269996 under
section 104(a) of the Mine Act for an alleged violation of section 75.400 of the Secretary’s safety
standards. The citation alleges:
There is an accumulation of combustible material in the form of
spilled hydraulic oil that is mixed with loose coal fines and coal
dust. This material was found on both the left and right boom,
front of the main frame and hydraulic pump compartment in depths
up to about 1/4" to 3/8". This machine was energized and in use in
the No. 3 unit, in the No. 9 entry at tag No. 84+00, MMU 002-0.
(Ex. G-54). The machine cited was the No. 403 roof bolter. (Tr. 455, 484). The inspector found
that an injury was reasonably likely to occur, resulting in lost workdays or restricted duty, that a
violation was S&S, that two people would be affected, and that the violation was the result of
moderate negligence on the part of the operator. The Secretary has proposed a civil penalty in
the amount of $5,961.

34 FMSHRC Page 718

a. Background Summary of Testimony
Inspector Rusher has been with MSHA for 33 years, the majority of which he worked as
an inspector. (Tr. 450). Prior to MSHA, Rusher worked in the mining industry for 12 to 13
years. (Tr. 450).
Inspector Rusher testified that he marked the violation as reasonably likely because the
hydraulic oil mixed with coal dust and coal fines would be even more combustible than oil in
isolation because coal will burn at a lower temperature. (Tr. 457-58). Rusher testified that there
were several ignition sources in the area, including spontaneous combustion due to heat and lack
of air movement, the friction of the bearings from the pump motors, electrical conduits, and
sparks flying from the drill holes of the auger installation. (Tr. 458). Rusher then related both
his firsthand experience of a spark causing an ignition in a similar situation and reports of similar
accidents resulting from such conditions. (Tr. 459-60). Rusher stated that an accident would
likely result in lost work days or restricted duty because the miners could have been burned and
would have inhaled smoke. (Tr. 461-62). Rusher designated moderate negligence because the
other equipment “was reasonably clean.” (Tr. 464).
Bruce Waldman accompanied Rusher on his June 1, 2009 inspection of Unit 3. (Tr. 476).
Based on his review of the onshift examination report, Waldman testified that no methane was
found in the active section where Unit 3 was mining. (Tr. 479; Ex. R-58). No permissibility
citations were issued. (Tr. 481). The equipment was warm, but not hot.
Gary Wilhelm, maintenance manager at the mine, testified that he had never seen the
surface temperature of the roof bolter higher than 100 to 150 degrees Fahrenheit. (Tr. 485). The
hydraulic oil used at the mine has a flashpoint of 392 degrees Fahrenheit. (Tr. 485-86; Ex. R
53). A running motor on the roof bolter would not be an ignition source. The roof bolter is
equipped with a fire suppression system. (Tr. 488). Welding would not be performed on the
roof bolter until it was moved to an outby area and it was cleaned of oil. Id.
b. Summary of the Parties’ Arguments
The Secretary argues that the accumulations were obvious and substantial. (Sec’y Br.
36). Given that the roof bolter machine was operating when Rusher discovered the condition,
management placed an obviously dangerous piece of equipment into active use. (Sec’y Br. 36).
Numerous ignition sources contribute to the Secretary’s argument that the violation could result
in an ignition causing serious injury. (Sec’y Br. 36).
Black Beauty stipulates to the fact of violation, the number of persons affected, and the
negligence designation. (Tr. 655). Black Beauty argues that, because the S&S finding is “not
supported by the facts,” it should be deleted. (BB Br. 32). Black Beauty argues that the absence
of methane, and the presence of a fire suppression system and a methane monitor show that the
occurrence of an injury was unlikely. (BB Br. 32-33). Finally, Black Beauty argues that
Rusher’s “vague recollection” of an occasion of a fire and his “speculative ignition sources” fail
to establish any condition that would cause a reasonable possibility of ignition. (BB Br. 33).

34 FMSHRC Page 719

c. Discussion and Analysis
I find that the Secretary did not establish that this violation was S&S. I credit the
testimony of Mr. Waldman and Mr. Wilhelm on this issue. It was unlikely that any welding
would occur, at least not until the roof bolter was cleaned. I find that there were no ignition
sources that were reasonably likely to create a fire or smoke. Heat from the engine was unlikely
to ignite the hydraulic oil, even with the presence of coal dust on the roof bolter. See, generally,
Highland Mining Co., 30 FMSHRC 1097, 1100 (Nov. 2008) (ALJ). The third element of the
Mathies S&S test was not established. It was not reasonably likely that the hazard contributed to
by the violation would have resulted in an event in which there was an injury. The violation was
only moderately serious. A penalty of $5,000 is appropriate.
III. SETTLED CITATIONS
A number of the citations at issue in these cases settled, either prior to the hearing or at
the conclusion of the hearing. By order dated January 25, 2011, I approved the settlement of
Citation No. 6678961 in Docket No. LAKE 2009-598, Citation Nos. 4269991, 4269992,
42269993, 4269995, and 4270000 in Docket No. 2009-608, and Citation Nos. 8414856 and
6675880 in Docket No. LAKE 2009-698. The settlement amount of $35,392 was ordered to be
paid for those citations.
At the hearing, the parties agreed to settle three additional citations. The parties agreed to
reduce the proposed penalty for Citation No. 6678958 in Docket No. LAKE 2009-598 from
$2,901 to $2,176 and modify the citation to delete the S&S designation. The parties agreed to
reduce the proposed penalty for Citation No. 6678965 in Docket No. LAKE 2009-684 from
$1,203 to $902 and modify the citation to delete that S&S designation. The parties agreed to
reduce the proposed penalty for Citation No. 8415654 in Docket No. LAKE 2009-698 from
$7,578 to $7,199 and reduce the gravity from fatal to permanently disabling. The total amended
penalty for these settled citations is $10,277. I have considered the representations and
documentation submitted and I conclude that this proposed settlement is appropriate under the
criteria set forth in Section 110(i) of the Act.
IV. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I have reviewed the Assessed Violation History Reports, which are
not disputed. (Ex. G-71). At all pertinent times, Black Beauty Coal Company was a large mine
operator and the controlling company, Peabody Energy Corporation, was also a large operator.
The violations were abated in good faith. The penalties assessed in this decision will not have an
adverse effect on Black Beauty’s ability to continue in business. (Joint Stip. ¶ 12). The gravity
and negligence findings are set forth above.

34 FMSHRC Page 720

IV. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
30 C.F.R. §

Citation/Order No.

Penalty

LAKE 2009-304
6669341
6681297
6681046
6682243

75.400
75.402
75.400
75.362(b)

$8,000.00
5,000.00
10,000.00
Vacated

75.400
75.202(a)
75.400
75.370(a)(1)
75.202(b)

30,000.00
11,000.00
15,000.00
5,000.00
12,000.00

75.400

5,000.00

75.517
75.517
75.604
75.503
75.400

4,000.00
Vacated
4,000.00
10,000.00
4,000.00

LAKE 2009-305
6482240
6682241
6682242
6682048
6682067
LAKE 2009-608
4269996
LAKE 2009-698
8415648
8415650
8414855
8414858
8414334

SUBTOTAL
CITATIONS SETTLED AT HEARING

123,000.00
$10,277.00

TOTAL PENALTY

$133,277.00

34 FMSHRC Page 721

.

For the reasons set forth above, the citations are AFFIRMED, MODIFIED, or
VACATED as set forth above. Black Beauty Coal Company is ORDERED TO PAY the
Secretary of Labor the sum of $133,277.00 within 40 days of the date of this decision.1 The
contest proceeding is DISMISSED.

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

Distribution:
Matthew M. Linton, Esq. and Nadia A. Hafeez , Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708 (Certified Mail)
Arthur M Wolfson, Esq., Jackson Kelly, 3 Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222 (Certified Mail)
Dana M. Svendsen, Esq., Jackson Kelly, 1099 18th Street, Suite 2150, Denver, CO 80202-1958
(First Class Mail)
RWM

1

Payment should be sent to the Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

34 FMSHRC Page 722

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Telephone No.: (202) 434-9950
Fax No.: (202) 434-9949

March 27, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
BANNER BLUE COAL COMPANY
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. VA 2010-367
A.C. 44-06685-217167-02
PAW PAW MINE
Docket No. VA 2010-368
A.C. 44-07046-217172
LOCUST THICKET MINE

DECISION
Appearances: Robert E. Motsenbocker, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, for the Petitioner
Robert Huston Beatty, Jr., Esq., Dinsmore and Shohl, Morgantown, West
Virginia, for the Respondent
Before:

Judge Koutras
STATEMENT OF THE CASE

These civil penalty proceedings pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 802, et seq. (2000), hereinafter the “Mine Act,” concern three Section 104(a)
significant and substantial (S&S) citations served on the respondent on February 28, 2010, and
March 2, 2010, and one Section 104(a) non-S&S citation served on the respondent on February
25, 2010. A hearing was held on September 8, 2011, in Abingdon, Virginia, and the parties
appeared and participated fully therein. The parties filed post-hearing briefs, and I have
considered their arguments in the course of this decision.
The Alleged Violations
Docket No. VA 2010-367
Section 104(a) S&S Citation No. 8171200, March 2, 2010, 30 C.F.R. § 75.512, states as
follows (Ex. P-5):
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The cathead provided for the Stamler Feeder Co. No. 1 was not
being maintained to assure safe operating conditions. The cathead
was not latched down to prevent the cathead from being
accidentally pulled out under a load. The cable from the cathead
extended 3.5 feet into the travelway along the section power
center. This creates a tripping hazard that could pull the cathead
out while energized. Miners travel this area to the circuit breaker
for the feeder and other circuit breakers at the section power
center.
Section 104(a) S&S Citation No. 8171201, March 2, 2010, 30 C.F.R. § 75.512, states as
follows (Ex. P-6):
The cathead provided for the Cogar Feeder Co. No. 2 was not
being maintained to assure safe operating conditions. The cathead
was not latched down to prevent the cathead from being
accidentally pulled out under a load. The cable from the cathead
extended 3 feet into the travelway along the section power center.
This creates a tripping hazard that could pull the cathead out while
energized. Miners travel this area to the circuit breaker for the
feeder and other circuit breakers at the section power center.
Section 104(a) S&S Citation No. 8171198, February 28, 2010, 30 C.F.R. § 75.503, states
as follows (Ex. P-8):
The 482 S&S scoop Co. No. 2 being used on the 002 MMU was
not being maintained in permissible condition. The receptacle on
the batteries had the insulator missing from the brass connector on
the inside of the receptacle. This condition exposes miners to the
hazards of electrical shock or burns when plugging the batteries up
for use or for charging.
Docket No. VA 2010-368
Section 104(a) non-S&S Citation No. 8167700, March 25, 2010, 30 C.F.R. §
75.360(a)(l), states as follows (Ex. P-23):
On 02-25-2010 the roadways and travelways where employees
were scheduled to work and travel had not been completely
examined, by a certified pre-shift examiner, within the established
8 hour interval. The evening shift interval established at this mine
is between 20:00 and 23:00 each day the employees normally
work. The scheduled pre-shift examination for this shift was not
completed until 00:35 the following day (02-26-2010). The
evening shift employees were brought outside through the intake
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entry following the evening shift examiner. He made an
examination of the area for them, even though it was after the
established 8 hour interval. The owl shift employees were held
outside until all the required examinations where they work or
travel had been completed.
MSHA Inspector William Ratliff testified that he has served as an inspector for four
years and eight months and has a respirable dust sampling certificate that enables him to sample
dust and conduct regular mine inspections. He identified the Section 104(a) Citation No.
8171200 that he issued on March 2, 2010, and explained his MSHA training at the mine
academy and his 24 years in underground mining as a shop foreman, mine foreman, and weekly
examiner (Tr. 6-10; Ex. 5).
Mr. Ratliff identified Exhibits 6 and 7, as his notes relate to the citation, as well as a
subsequent citation issued during his inspections on the evening and midnight shifts. He stated
that the respondent’s representative, Randy Sutherland traveled with him during his inspection
(Tr. 11-16).
Mr. Ratliff stated that he issued the citation after finding that the cathead, which is an
electrical plug used to power the Stamler Feeder used to crush coal and feed it onto a conveyor
belt, was not latched to prevent it from inadvertently or accidentally coming out under a load. He
explained that the cathead is the male part, similar to a plug that plugs into a receptacle, which is
the female part (Tr. 16-17).
Mr. Ratliff stated that the cathead latch consisted of thin metal that was worn and “was
not catching the way it should.” He confirmed that Mr. Sutherland observed the condition and
voiced no objection. Mr. Ratliff believed that the condition would reasonably likely cause an
injury because the unlatched cathead could cause the cable that extended into the travelway to be
pulled out to the side while under load if someone tripped over it, and anyone pulling on the
cable to the side could cause the cathead to rock out of the receptacle and expose the person
pulling the cathead from the receptacle to severe burns or shock from an electrical arc (Tr. 19
21).
Based on the aforesaid findings, Mr. Ratliff determined that the violation was S&S and
that the condition of the latch was a violation of Section 75.512, which requires electrical
equipment to be maintained in a safe operating condition. He believed that one person traveling
alongside the cathead could possibly trip and be exposed to the hazard. He confirmed that the
violation was terminated in 15 minutes after the latch was repaired by bending it so that it could
latch down the cathead (Tr. 23-26, Ex. 5).
Mr. Ratliff testified that he issued a second Section 104(a) citation, Citation No.
8171201, on the same day after finding the cathead on the Cogar Feeder number 2 that was in
close proximity to the first cited cathead location. It was not latched down and could be pulled
out sideways under a load. He stated that the latch condition was identical to the other cited
cathead and the latch was not engaged because it was worn (Tr. 27-29; Ex. 6).
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Mr. Ratliff stated that the cathead power cable was located three feet into the same
travelway as the prior violation and that a miner walking down the travelway would be exposed
to the same severe hazardous injuries that were reasonably likely to occur by tripping over the
cable. He confirmed that one person traveling along the power center would be exposed to injury
(Tr. 29-31).
Mr. Ratliff determined that the violation was a result of moderate negligence because the
catheads are plugged in by the section electrician who observes them at that time as well as
during his weekly inspections. He confirmed that his notes reflect that the conditions of both
cited catheads existed for less than one day. The violation was terminated after the latch was
bent, so that it would catch the lip on the cathead, similar to the first citation (Tr. 31-35; Ex. 7).
Mr. Ratliff stated that electricians and equipment operators, resetting circuit breakers,
would be using the travelways, but conceded that the majority of the circuit breakers on the
power box are on the opposite side of the area where the catheads are plugged in (Tr. 96-97).1
On cross-examination, Mr. Ratliff stated that he has eleven years of experience as an
underground mechanic, and is a State of Virginia certified maintenance foreman. He confirmed
that none of his previous 24 years of mining experience was as a maintenance person, and that he
is not a certified electrician, and is not certified to work on catheads, power cables, or to do other
electrical work (Tr. 37-39).
Mr. Ratliff stated that his statement that Mr. Sutherland did not object to his findings is
not reflected in his inspector’s notes, and that his findings that the latches on both cited catheads
contained “thin metal and were worn” are not in his notes. He agreed that the conditions of the
latches contributed to the failure of the latches to latch. He indicated that this is an important
factor in upholding the citations; however, he did not record the conditions in his notes (Tr. 44,
49).
Mr. Ratliff believed that the latch on the bottom of the receptacle was the only method to
prevent the cathead from coming out of the receptacle. Referring to the cathead photograph, he
identified a steel bar going through the top of the receptacle box latch below the black square
portions of the photograph. He agreed that in order to plug the cathead into the receptacle it has
to first fit under the steel bar that he believed is used for leverage in order to allow the device at
the top of the cathead to go under, and wraparound, and snap down on the bottom of the cathead.
Mr. Ratliff did not believe that the steel bar in the receptacle would prevent it from being pulled
out and the unsecured latch would not prevent the cathead from being pulled out. He explained
that the steel bar “is used for leverage to pull the latch down to latch.” He further stated, that “the
latch is what actually holds the cathead in place” (Tr. 52-54, 57).
Note: For demonstration purposes and cross examination, Respondent’s counsel produced a
cathead that is identical to the two that were cited by Inspector Ratliff, and a receptacle that is
similar, and photographs of each device (Exs. R-10, R-l 1), and they were admitted for the record
without objection (Tr. 34-36, 55).
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Mr. Ratliff stated that the latches on both cited catheads were repaired by bending the
metal so that the catheads could be latched as stated in the citations, but was not reflected in his
notes. He confirmed that the latches needed to be replaced (Tr. 60-62). With respect to the
Stamler Cathead, his notes reflect that injury would be likely due to the condition of the latch
and not a tripping hazard (Tr. 67).
Mr. Ratliff stated that there was a 3 ½ foot travelway between the Stamler Cathead power
center and the mine rib, and a 3 foot travelway between the Cogar Cathead area and the rib. He
agreed that the widest travelway would more likely be used by miners, but he did not know
whether the travelways on the other side of the two he described would be wider or narrower. He
confirmed that an electrician would normally be the only person using the travelways where the
catheads were located (Tr. 69-71).
Mr. Ratliff could not recall the seam height during his inspection, but confirmed that they
could not stand up and had to wear knee pads, and he spent most of his time “duck walking” and
could not walk normally. The travelways would be alongside the power center and he did not
issue any citation for obstruction of the travelway because there was no obstruction, but someone
could trip over the cables. Although car operators checking their circuit breakers could use the
travelways, they could also use the back side of the power center to the receptacles and would
not have to pass the area where the catheads were located (Tr. 73-77).
Randy Sutherland, testified that he is a certified first class mine foreman and was a
certified electrician when the citations were issued by inspector Ratliff, and since 2005 has
served as an outby foreman performing maintenance of the belt lines, preshifting, and changing
rollers. When he served as a certified electrician he had occasion to plug and unplug catheads
similar to the one cited in this case. During belt maintenance, he de-energized the belt power
systems that contain plugged-in catheads, and moved and locked them periodically (Tr. 100
103).
Mr. Sutherland confirmed that he traveled with Mr. Ratliff during his regular inspection
and that he was served with both citations at 3:10 and 3:15, on the owl shift. He stated that he
was familiar with the cited catheads and has plugged and unplugged them when there is a power
move as the section is advancing. The Cogar Feeder was the only feeder that was in use on the
production belt line at that time. The Stamler Feeder was a spare one that was available if
something happened to the cogar (Tr. 105-107).
Mr. Sutherland stated that the Stamler Feeder was located on the left side of the power
box looking inby toward the working faces, and it was “powered up.” He explained that there are
more power breakers where the majority of the catheads plug in on the right side where they are
located in order to provide wider travelways, and that there was approximately six feet of
walking space between the power center and coal rib on the right side where most of the miners
travel. He confirmed that both of the catheads were plugged into the left side of the power box,
and the cables from the power box to the feeders were lying on the ground at the left rib location
going inby, looking toward the face (Tr. 108-112).
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Mr. Sutherland explained and demonstrated that after de-energizing the Stamler Feeder
Cathead, Mr. Ratliff “just lifted it up, and that’s the only way it will come out.” He confirmed
that Mr. Ratliff made no attempt to grab the cathead without lifting it up and pulling it to the
right and to the left. He stated that based on his experience with the catheads, one could not have
been moved to the right or to the left without being lifted first and disconnected, and he has
never seen one disconnected to the right or left without first being lifted up. After it is lifted up,
it can be moved right or left (Tr. 116-117).
Mr. Sutherland stated that an electrician would be the only one on the left side of the
power box where the cathead cables are plugged for trouble shooting any feeder or continuous
miner problems that are powered at that location. No other equipment was plugged in at that
time, and the shuttle cars are plugged in at the opposite right side of the catheads in question (Tr.
119).
Mr. Sutherland stated that the section seam height was 44 inches and no one was able to
walk straight up. He stated that he used kneepads and that he and Mr. Ratliff crawled and “duck
walked” while bent over, and that the miners around these power centers got around by similar
methods. An electrician who came into the feeder areas to plug in or unplug the catheads would
have to crawl into the space in order to do so (Tr. 121).
Mr. Sutherland believed that in the event the lower cathead latch was unlatched it would
not come out and be disconnected if it was hit from the left or right, because of a latch at the top
that is secured by a steel bar demonstrated in photographic Exhibits R-10 and R-l 1 (Tr. 121
122).
Mr. Sutherland stated that both of the catheads were not latched down before Mr. Ratliff
cited them and he could not recall anyone making any adjustments to the latches. He stated that
he re-energized the breakers after Mr. Ratliff checked them and latched both of the catheads with
the bottom latches, and he never used any channel locks to bend either of the latches. He stated
that electrician, Mike Clevenger was present while he set the breakers, pushed the latches and
closed them, and neither he nor Mr. Clevenger made any adjustments to the bottom latches in
any manner. He further stated that the citations were abated when he latched both catheads down
(Tr. 122-126).
On cross-examination, Mr. Sutherland stated that the purpose of a latching system is to
prevent the cathead from being pulled out, and he did not believe there was any danger in pulling
a cathead out under a load because it cannot cause an arc and he has never seen this happen (Tr.
131).
In response to bench questions, Mr. Sutherland stated that it would be stupid for anyone
to pull out an energized cathead, and that if it were not latched, anyone could inadvertently pull
it out without first de-energizing it. However, he explained that the cathead monitoring system
will de-energize it if anyone pulled it out, and that if anyone tripped over a cable and it came out,
the cathead would be disconnected and de-energized (Tr. 131-132).
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Eddie Taylor, maintenance superintendent at the time Citations 8171200 and 8177206
were issued, testified that the cathead and receptacle used for courtroom demonstration were the
same type as the one on the feeder box and he explained the circuits, ground monitors, and the
cathead connection procedures (Tr. 138-142).
Mr. Taylor stated that the term “cathead” is a slang term for a male receptacle plug (Tr.
139). Utilizing the demonstration cathead, he stated that it has two latching mechanism devices
consisting of a solid steel bar at the top, and a latching device at the bottom and he demonstrated
how they operate to secure the cathead after the plugs and receptacle are mated. He explained
that the cathead has to be raised up and slid under the top bar and then pushed down and engaged
into the bottom spring loaded latch that was cited by the inspector (Tr. 143-144).
Mr. Taylor stated that one purpose of the top steel bar is to provide leverage to facilitate
the mating of the receptacle plugs, and that a second purpose is to “make the latching mechanism
at the bottom work properly” (Tr. 145). He stated that the bottom latch alone would not
sufficiently latch the receptacle without the top bar, and that the bottom latch “first locks it in
place where it cannot move” (Tr. 145).
Mr. Taylor explained that the first step for unplugging the cathead is to de-energize the
power and release the bottom latch by pulling it up to clear the bottom ground monitor pins,
which are unplugged as the receptacle is raised. As it is raised, the ground monitor pins are
pulled out and the receptacle power is de-energized (Tr. 146-147).
Mr. Taylor did not believe it was possible to unplug the cathead from the receptacle by
kicking the power cable lying on the ground as long as the steel bar is securely in place by the
meshing of the lugs and latches that hold it tightly in place. In the event the cable plug was to
“kick out,” the ground monitor would de-energize the power. He confirmed that the ground
monitoring system is inspected by an electrical inspector weekly pursuant to Virginia state law
and monthly by MSHA (Tr. 149-150).
MSHA Inspector William Ratliff testified that he issued Citation No. 8171198, for a
violation of mandatory safety standard Section 75.503, after finding that the insulator of the
scoop battery receptacle was missing. The insulator is located on the inside of the receptacle and
is intended to prevent the positive and negative parts of the battery from touching and causing
“extreme arc and fire.” The cited standard requires equipment to be maintained in a permissible
condition (Ex. P-8; Tr. 157-159).
Mr. Ratliff stated that electrician David Smith and section foreman Terry Stiltner traveled
with him and after pointing out the missing insulator to Mr. Smith, he did not disagree. Mr.
Ratliff believed the missing insulator presented an electrical shock or burn hazard, and he stated
this in his notes (Ex. P-9). He also believed it was reasonably likely that this would occur if
anyone unplugging the battery came in contact with the negative and positive conductors without
an insulator (Tr. 159-161).

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Mr. Ratliff believed the cited condition would have existed for at least one week because
it takes an extended period of time to damage an insulator, and a weekly examination would
have detected the condition because once the battery plugs are removed from the receptacle
anyone could observe the insulator inside the receptacle. He confirmed that the citation was
terminated after the receptacle was replaced (Tr. 164).
On cross-examination, Mr. Ratliff stated that his notes reflected that the missing insulator
was located at the left side of the scoop operator’s position, and he identified photograph Exhibit
R-13, as the same type of receptacle that he cited and pointed out the location of the missing
insulator (Tr. 165-169).
Mr. Ratliff stated that the insulator “had been damaged to the point that it was missing.”
When asked to explain the type of damage, he replied, “I did not see an insulator.” He confirmed
he never performed any electrical work on a scoop battery insulator, receptacle, or plugs (Tr.
170-171).
Mr. Ratliff confirmed that his experience as a mechanic did not include performing any
electrical work and that his belief that an insulator prevents the negative and positive portions of
the insulator from coming together is based on his mechanical experience. Although his notes
reflect that the insulator was missing and damaged, he assumed that it was missing because it
may be damaged (Tr. 171-173). Referring to photographic Exhibit R-13, of the receptacle, Mr.
Ratliff identified the negative as the outer portion, or far ring surrounding the insulator, and the
positive as the smaller inside ring (Tr. 174).
Mr. Ratliff stated that his notes reflect that the cited condition existed for more than one
day, and he based his conclusion on his experience as a scoop operator. His notes do not reflect
that he reviewed the permissibility records. Also, he did not know when the last scoop
permissibility examination was conducted. He confirmed that he terminated the citation four
days after he issued it during his next inspection (Tr. 182-184). He stated that the scoop
receptacle was removed and replaced and he was not present when this was done. He confirmed
that when he inspected the scoop, it was parked and the power circuit breaker was taken out by
the scoop operator (Tr. 188-189).
Electrician David Smith testified that citation No. 8171198 was served on him by
Inspector Ratliff. He stated that Mr. Ratliff informed him that the insulator for the 482 scoop
battery receptacle was missing from the brass connector inside the receptacle. The scoop was
used on the day shift, but it was idle and parked with the pump motor shut off when it was
inspected. However, the scoop was energized because the breaker was on (Tr. 199-201).
Mr. Smith confirmed that he was familiar with the scoop receptacle insulator and that
after Mr. Ratliff informed him he would conduct a scoop permissibility inspection, he decided to
take company electricians, Eugene Keene and Earl Steel, with them. After the catheads were
disconnected, Mr. Ratliff looked into the scoop battery receptacle area with his flash light and
informed him that the insulator was broken (Tr. 203-204).
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Mr. Smith stated that he instructed Mr. Keene to replace the receptacle and to bring the
one cited by Mr. Ratliff to the surface. Mr. Smith identified Exhibit R-13, as a photograph of the
cited receptacle that was removed from the scoop and he confirmed that the receptacle used for
demonstration purposes at the hearing was the same one shown in the photograph. He identified
it because of its damaged dust covered bell cap (Tr. 208-209).
Mr. Smith identified a statement signed by Mr. Keene and Mr. Steele on February 28,
2010, stating that the receptacle that they removed from the cited scoop, after a replacement was
installed, did not have a missing insulator (Ex. R-l 5). Mr. Smith stated that he prepared the
statement because the insulator was not broken or missing and he intended to contest the
violation. After viewing photographic Exhibit R-l 3, petitioner’s counsel agreed that the insulator
was not missing (Tr. 210-216).
Eddie Taylor testified that he was the Paw-Paw mine maintenance superintendent when
Citation No. 8171198 was issued. He was familiar with the cited 482 scoop and has performed
work on battery receptacles. He identified photographic Exhibit R-l4, as a mating plug for the
scoop receptacle and he explained the orientation of the plugs, their functions, and the
connection process (Tr. 221-226).
Referring to the photographic exhibit and the inside of the receptacle, Mr. Taylor
identified three circular rings. He stated that the outer ring is the positive plate, the inside ring is
the negative potential, and the “brownish area” between the two as the insulator between the
positive and negative potentials (Tr. 226). He stated that Mr. Ratliff’s identification of the
insulator outer ring as the negative polarity is erroneous. He explained that the inner ring is the
negative, the outer ring is the positive, and that the insulator protects the two polarities from
coming together (Tr. 228-229).
Mr. Taylor stated that the insulator is held in place by a resin compound that provides
additional insulation and that it cannot be removed intact unless it was damaged. Based on his
electrician and maintenance experience, he has never seen any insulator plugs come completely
out or missing. Although he was not present when the cited receptacle was removed, it was his
opinion that the receptacle, he examined at the hearing, was permissible and serviceable (Tr.
231-232).
On cross-examination, Mr. Taylor stated that an insulator is intended to prevent the scoop
from shorting out in the event of an arc if the negative and positive polarities came together. He
confirmed that the receptacle has no identifying part or serial number associated with any
particular scoop (Tr. 233-234).
On re-direct examination, Mr. Taylor stated that he was aware of arcing caused by poorly
connected receptacle plugs, but was unaware of a broken insulator creating an arc. He observed
no evidence of any arcing on the receptacle in question, and if the insulator was missing, it
would be highly unlikely that the male and female plugs could create enough of an arc to create a
burn hazard (Tr. 236).
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MSHA Inspector Donald Hale testified that he has 29 years of mining experience and has
served as an inspector for four years. He confirmed that he issued Citation No. 8167700 on
February 25, 2010, after arriving at the mine and reviewing the mine record books on the surface
and finding no record entry that the required preshift examination for Mr. Prater’s section had
been called out or recorded in the books (Tr. 240-245).
Mr. Hale stated that the preshift inspection should have been made between 8:00 p.m.
and 11:00 p.m., three hours before the scheduled shift. The surface crew informed him that the
inspection had not been called out and needed to be reported before 11:00 p.m., before the
incoming owl shift was prepared to go underground. Mr. Hale stated that the surface person,
responsible for receiving and recording the called out inspection, confirmed that it had not been
done (Tr. 147-249).
Mr. Hale stated that the owl shift had not gone underground and that part of the second
shift worked more than eight hours and was still underground. Mr. Hale explained that since the
preshift for that crew had to be done before the end of their shift, and because they worked one
hour over the eight-hour interval at 11:00 p.m., that the shift had to be preshifted. He stated that
he held the incoming owl shift on the surface until all of the required examinations were
completed (Tr. 250).
Mr. Hale stated that the violation was not significant or substantial because the failure to
conduct and record the pre-shift inspection was unlikely to cause an injury or illness. He
determined that the violation was the result of high negligence because Mr. Prater knew that the
preshift inspection had to be made and he failed to do so. Mr. Hale stated that he terminated the
violation the following day after the second shift and owl shift examiners completed their
required pre-shift examinations (Tr. 250-251).
Mr. Hale stated that he discussed the matter with Mr. Prater after he came to the surface
on February 25, 2011, and informed him that he would issue a violation and serve it on him at
that time. Mr. Hale stated that Mr. Prater informed him that he did not have time to conduct the
preshift examination, stated “you caught me,” and offered no other excuses. Mr. Hale stated that
15 miners were underground even though the pre-shift inspection had not been made (Tr. 252
254).
On cross-examination, Mr. Hale discussed his note taking procedures, but failed to
explain why he prevented the owl shift from going underground, and keeping them on the
surface until the required inspections were made. Also, he failed to reference discussions with
mine management regarding prior citations. (Tr. 256-261).
Mr. Hale confirmed that Mr. Prater conducted a preshift examination on his section. He
explained that Mr. Prater was also obligated and required to conduct a preshift examination of
the areas on his section where miners work or travel and that he was responsible to preshift the
area from the mine face area all the way to the surface because he was the foreman in charge (Tr.
261-263).
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Mr. Hale confirmed that it was standard mine practice to have someone preshift the outby
areas, but it was different in this case because no one was available to inspect the outby areas
and Mr. Prater should have been aware of this. He conceded that Mr. Prater may not have been
aware that no one else was available (Tr. 264).
Mr. Hale explained that if Mr. Prater completed his preshift examination, the remaining
areas to preshift would be the travelway and the belt lines, areas normally done by someone in an
outby area. He confirmed that Mr. Prater conducted his examination as he was bringing his men
off the section and he believed that his examination was complete and adequate and he did not
cite him for an inadequate preshift examination (Tr. 265).
David Jackson testified that he is a certified mine foreman and served as the third shift
crew boss on the evening the citation was issued. He stated that he arrived at the mine at
approximately 10:30 p.m., to prepare to go underground. He informed his crew at the time that
they could not go underground because the outby areas had not been completed (Tr. 305).
Mr. Jackson stated that shortly after 11:00 p.m. he observed Mr. Prater coming to the
surface, but did not speak to him and had no conversations with him prior to that time. Mr.
Jackson confirmed that he completed his preshift examination at 12:30 a.m., and called it out to
outside person Sam Campton. The area he examined was safe and clear, and the area examined
by Mr. Ramsey was also reported (Tr. 309-312).
DISCUSSION AND FINDINGS AND CONCLUSIONS
Docket No. VA-2010-367
Citations 8171200 and 8171201, relate to two catheads (plugs) that were unlatched in
violation of 30 C.F.R. § 75.512. The cited regulatory standard states as follows:
All electric equipment shall be frequently examined, tested, and
properly maintained by a qualified person to assure safe operating
conditions. When a potentially dangerous condition is found on
electric equipment, such equipment shall be removed from service
until such condition is corrected. A record of such examinations
shall be kept and made available to an authorized representative of
the Secretary and to the miners in such mine.
The petitioner argues that the cited Stamler Feeder Cathead was not latched to prevent it
from coming apart while under a load because the latch was worn. With respect to the Cogar
Feeder Cathead, the petitioner asserts that it was not latched down and could be decoupled
sideways while energized because the latch was worn and bent and would not catch on the
cathead.

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The respondent concedes that the two cited unlatched equipment catheads violated
Section 75.512. Under the circumstances, the violations ARE AFFIRMED. However, the
respondent denies that the cited conditions were S&S.
Significant and Substantial
An S&S violation is described in Section 104(d)(1) of the Mine Act as a violation “of
such nature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard.” A violation is properly designated S&S “if based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard that is, a measure of
danger to safety contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be
of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); See also, Buck Creek Coal,
Inc. v. FMSHRC, 52 F.3d 133,135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y, 861 F.2d 99, 103
104 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further that the third element of the Mathies
formula “requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(1), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); US Steel Mining Co., Inc., 6
FMSHRC 1573, 1574-1575 (Jury 1984).
This evaluation is made in terms of “continued normal mining operations.” U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is
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significant and substantial must be based on the particular facts surrounding the violation.
Texasguff, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007 (Dec. 1987).
The respondent concedes that the bottom latches on both cited catheads were not fully
latched down and secured. I conclude and find they were not properly maintained as required by
Section 75212, and the fact of violation satisfies the first prong of the Mathies test.
With respect to the second Mathies prong requiring a discrete safety hazard contributed
to by the violation, I conclude and find that the unexpected pulling out of a cable cathead under
load while it is energized and not fully and securely latched down by the latching mechanisms,
intended for that purpose by a person tripping over the cable, presented a discrete electrical
safety hazard. I also find that the cited conditions existed for one day in one case, and less then
one day in the other case, and that both violations were abated and terminated within 15 minutes
in each case.
The third and fourth Mathies prongs require a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury, and a reasonable likelihood that
the injury will be of a reasonably serious nature. The focus of the inspector’s concern was that
someone on the travelway would trip over the cathead cable causing it to disconnect from the
power receptacle under load and exposing someone in the proximity of the cathead power source
to electrical shock or burn hazards. He issued no tripping hazard citation.
The inspector testified that the catheads extended 3 feet and 3 ½ feet into the travelway
(Tr. 69). Although he could not recall the height of the coal seam, I credit the testimony of Mr.
Sutherland, that it was approximately 44 inches. They both confirmed that no one could walk the
area standing erect, and the inspector confirmed that he spent most of his time bent over and
“duck walking” (Tr. 72-73). Mr. Sutherland testified credibly that he had to crawl and use knee
pads in that area and that an electrician would be crawling on his hands and knees to access the
cathead circuit breakers (Tr. 120-121).
Given the low coal seam height where the cable catheads were located, and the credible
testimony establishing that anyone in the travelway would be crawling or “duck walking”, I
conclude and find that it was highly unlikely and improbable that anyone in that position would
trip over the cable with such force as someone walking upright and in full stride, so as to
disconnect a rather large and heavy cathead, as demonstrated in the court room, from its power
receptacle and contribute to any hazard exposure.
The inspector’s citations reflect that one person would be exposed to the hazard, and he
identified that person as the one tripping over the cable (Tr. 20-21, 24). He confirmed that
anyone would have to be near, or next to, the catheads when they disconnected, and that anyone
three feet away who may trip and disconnect the cable would not be exposed to any hazard (Tr.
79).

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There is a dispute as to whether or not the completely unlatched cathead latches would
readily result in a disconnection if they were dislodged side-to-side by anyone tripping over the
cable. The inspector, who is not an electrician, believed that the correct procedure to disconnect
the cathead after it is de-energized, is to lift it straight up, rather than down, so that the circuit
breaker monitor lead can come out (Tr. 51).
Mine foreman electrician Sutherland and maintenance superintendent Taylor believed
that the catheads were secured at the top by a steel bar holding the top latch in place (Tr. 121
122). They believed the catheads had to be lifted upward in order to disconnect them and deenergize the circuits. Mr. Sutherland testified that after de-energizing the cathead, the inspector
had to first lift it up and out, and made no attempt to move it from right to left, and Mr.
Sutherland has never, in his experience, observed a cathead disconnected to the right or left
without first lifting it up (Tr. 116-117).
I credit the testimony of Mr. Taylor and Mr. Sutherland that in order for a heavy cathead
that is latched only at the top with a steel bar that holds it securely in place to be disconnected, it
must be pulled directly out and upward, similar to the procedure described by the inspector when
he disconnected the cathead after he de-energized it by lifting it up, and apparently made no
attempt to freely move it from side-to-side, with the unlatched bottom latch to confirm that it
could be done. On the facts of this case, and based on my findings and conclusions concerning
the prevailing conditions, I conclude and find that it was highly unlikely the catheads could have
been readily dislodged from side to side by anyone tripping over a cable.
With regard to the likelihood of any serious injury exposure, the inspector agreed that a
disconnected de-energized cable and cathead lying on the ground would be inert and not
energized under load, and would not present an electrical hazard to anyone (Tr. 22, 79).
Although the cable may present a tripping hazard, he did not issue any tripping citation.
The inspector speculated that anyone “could be close, could be a distance” to the cathead
power source (Tr. 97). Although he testified that electricians or equipment operators resetting
circuit breakers would be in the area, he conceded that the cathead feeder circuits were located at
an opposite side area and that an electrician would be the only likely person there, and he did not
know how close anyone would be to the cathead power source if anyone were to trip over the
cable (Tr. 96-97).
I find no credible evidence establishing that anyone was close to or would have been
close to the cathead power sources and exposed to any injury in the unlikely event the catheads
were unexpectedly disconnected by the unlikely tripping event. I find it unlikely that the one
person who would be at the cable in the travelway, and who may have caused the cathead
disconnections, would at the same time be the person exposed to any hazard or injury.
After careful consideration of all of the arguments and evidence presented in this case, I
cannot conclude that the third and fourth prongs required by the Mathies test have been
established by a preponderance of the credible evidence. In view of the prevailing conditions
when the inspector observed the unlatched catheads and in the context of continuing mining
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operations, I find it highly unlikely and improbable that the partially unlatched catheads would
have contributed to, or resulted in, any injury of a reasonably serious nature. I find no credible
evidence of the presence of any confluence of factors that could have come together and resulted
in any serious injuries. Accordingly, the significant and substantial (S&S) violations ARE
MODIFIED to non-significant and substantial (Non-S&S) violations.
Negligence
The inspector determined that both citations were the result of moderate negligence
because an electrician was the person who plugged and unplugged the catheads when they
worked on them and he was responsible for inspecting them on a weekly basis (Tr. 32-33).
The inspector confirmed that the unlatched condition on both catheads had existed for
one day or less, but nonetheless believed that the electrician should have known about the
conditions (Tr. 33). Although he could not recall when the last weekly examination was done or
how long the conditions had existed unnoticed, given the condition of the latches, I find it
improbable that they occurred right before the inspector issued the violations. Accordingly, in
the absence of any considerable mitigating circumstances warranting the reduction of the
inspector’s negligence determinations from moderate to low, I agree with his determinations that
the respondent knew or should have known about the violative conditions and his moderate
negligence findings ARE AFFIRMED.
Citation No. 8171198
This citation concerns an alleged violation of mandatory permissibility safety standard 30
C.F.R. § 75.503, which states as follows:
The operator of each coal mine shall maintain in permissible
condition all electric face equipment required by Sections 75.500,
75.501, 75.504 to be permissible which is taken into or used inby
the last open crosscut of any such mine.
The petitioner argues that the citation is supportable because the inspector discovered a
missing insulator inside the cited scoop battery receptacle which would allow the battery plug to
contact the power lead (contact between positive and negative terminals), creating a hazard of
extreme arcing resulting in shock or burn injuries.
The respondent maintains that the conditions cited by the inspector in support of the
citation did not exist, and that the petitioner has failed to prove a violation. Respondent asserts
that the cited battery receptacle was in permissible condition, and assuming that a violation is
established, Respondent concludes that it was not S&S.
The respondent relies on the fact that three electricians, David Smith, Eugene Keene, and
Earl Steele, observed the receptacle and its insulator at the time it was cited by the inspector and
concluded that the insulator was intact and not missing. Mr. Smith felt strongly that the
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insulation was not missing and instructed Mr. Keene and Mr. Steele to replace the receptacle in
order to terminate the violation and to retain the cited one and bring it to his office.
A photograph of the cited receptacle that was removed and given to Mr. Smith (Ex. R
13), as well as the actual receptacle, was produced at the hearing and was authenticated by Mr.
Smith (Tr. 208-211). A February 28, 2010, statement signed by Mr. Keene and Mr. Steele and
given to Mr. Smith confirming that the cited receptacle they removed and brought to the surface
was the one they replaced for the inspector and that the insulator was not missing was received
in evidence over the hearsay objection of petitioner’s counsel (Tr. 211). I re-affirm my bench
ruling accepting the statement as relevant evidence, noting that hearsay is acceptable pursuant to
the Commission’s rules. Further, I take note of the fact that after viewing the photograph of the
cited receptacle, Petitioner’s counsel agreed that the insulator was not missing (Tr. 216).
The respondent asserts that the inspector’s testimony should be viewed by considering
his lack of experience with electrical components reflected by his misidentification of the
location of the insulator’s positive and negative components, and by reversing the actual polarity
during his explanatory testimony concerning the function of the insulator (Tr. 175, 224-228).
The inspector’s citation, on its face, states that the receptacle insulator was missing. His
inspection notes, in relative part, states that the insulator was missing and damaged (Ex. G-9 at
5-6). The inspector testified that the insulator was “damaged to the point that it was missing”,
that he “did not see an insulator”, and in explaining his contradictory notes that the insulator was
missing and damaged, he stated that he assumed that it was missing because it may be damaged
(Tr. 171-173). He confirmed that he did not review the permissibility records, did not know
when the last permissibility examination was conducted and conceded that he never performed
any electrical work on a scoop battery receptacle or insulator (Tr. 170-171).
After careful consideration of all of the testimony and evidence adduced with respect to
this citation, I conclude and find that the petitioner has failed to establish by a preponderance of
the credible evidence that the cited scoop was not maintained in permissible condition in
violation of Section 75.503, because of the alleged missing battery receptacle insulator.
I conclude and find that the inspector’s testimony in support of his contention that the
insulator was missing to be contradictory, particularly in light of his equivocal testimony that it
was either damaged or may have been damaged, and his contradictory notes that it was missing
as well as damaged. I find no credible evidence to support either conclusion regarding the
condition of the insulator.
I find that the inspector’s lack of electrical expertise, as demonstrated by his mistaken
identification and explanation of the critical components of the insulator, is less than credible
than the testimony of maintenance superintendent, Eddie Taylor, whose testimony regarding the
correct insulator polarity and electrical expertise, and his observation and conclusion that the
receptacle he observed at the hearing was permissible and serviceable (Tr. 231-232).

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I am further persuaded by the consistent and credible testimony of Mr. Smith regarding
the condition of the insulator and his credible efforts in securing the chain of custody with
respect to the cited receptacle to support what he believed was an invalid citation, as well as the
petitioner’s counsel’s agreement during the hearing that the receptacle insulator was not missing.
During his cross-examination of Mr. Eddie Taylor, Petitioner’s counsel inferred that the
lack of any insulator identification markings cannot establish any direct connection with any
particular scoop (Tr. 233). Mr. Taylor agreed, and explained that an insulator usually has a part
number, but is not serialized, and he can actually examine it (Tr. 233-234). Counsel did not
pursue the question further.
I conclude and find that the absence of any insulator identification markings does not
ipso facto rebut the respondent’s credible evidence that the receptacle cited by the inspector,
with the insulator intact, was the same one produced at the hearing.
Based on all of the aforementioned findings and conclusions, Citation No. 8171198, IS
VACATED, and the proposed civil penalty assessment IS DENIED.
Docket No.VA 2010-368
Citation No. 8167700, concerns the failure of the section foreman to conduct the required
preshift examination as required by 30 C.F.R. § 75.360(a)(l), which requires that it be made
within 3 hours preceding the beginning of any 8-hour interval during which any person is
scheduled to work or travel underground.
In addition to their post-hearing briefs, counsels for the parties presented oral arguments
on the record with respect to this citation (Tr. 280-301). Respondent conceded that the failure of
section foreman, Danny Prater to complete the required preshift examination until an hour and
thirty-five minutes after it was required to be completed, constituted a violation of 30 C.F.R. §
75.360(a)(l). See also, (Resp’t Post-hearing Br. at 29).
The focus of the respondent’s contest is on the inspector’s “high” negligence finding and
his failure to consider any mitigating circumstances. In support of its request to reduce the
negligence level of the non-S&S citation from high to low, Respondent cites the language found
in the petitioner’s civil penalty assessment criteria found at 30 C.F.R. § 100.3, Table X, where
the justification for a high negligence finding is based on the fact that “the operator knew or
should have known of the violative condition or practice, and there are no mitigating
circumstances” (emphasis supplied). Respondent further relies on the language found at 30
C.F.R. § 100.3(d), which states that mitigating circumstances “may include, but are not limited
to, actions taken by the operator to prevent or correct hazardous conditions or practices.”
Respondent asserts that the most important circumstance in this case is crew chief David
Jackson’s decision to order his men not to go underground and to remain on the surface until he
completed his preshift examination, and that he did so in order to protect his crew from any
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possible hazardous conditions. Respondent concludes that Mr. Jackson’s action serves as a
mitigating circumstance justifying a reduced negligence finding.
Respondent further points out that section foreman, Prater completed his preshift
examination on the way out of the mine in order to ensure safe passage for his crew while
returning to the surface, while at the same time, Mr. Jackson and his electrician were heading
into the mine to examine the remaining areas. Since mine personnel were made aware of a
possible violation and worked promptly to fix the problem, Respondent concludes that these
actions should also be considered a mitigating circumstance (Tr. 288-297; Resp’t Post-hearing
Br. at 29).
The petitioner acknowledges the fact that the respondent has conceded the fact of a
violation which resulted from section foreman Prater’s failure to timely complete his preshift
examination, and that the inspector’s examination of the mine records establishes that the
required preshift was not completed and reported as required.
Petitioner’s counsel argued that while it is true that Mr. Jackson’s crew was on the
surface preparing to go underground and were prevented from doing so, foreman Prater’s 15
man crew was still underground and exposed to an area that had not been preshifted. Counsel
agreed that even though Mr. Prater conducted an examination as he traveled to the surface, the
fact remains that his crew worked for approximately two hours beyond 11:00 p.m., without being
preshifted (Tr. 283-286).
Petitioner’s counsel further argued that Mr. Prater’s efforts to protect his crew by
conducting an examination on his way out of the mine to the surface, in advance of his crew
coming out, is totally unconnected to the fact that the violation was issued for his failure to
preshift the section when that citation was issued (Tr. 299-300).
The inspector believed that a mitigating circumstance for the failure of Mr. Prater to
conduct his examination ‘‘would be a reasonable excuse for not doing so” when the violation
actually occurred. He did not believe the actions by Mr. Prater and Mr. Jackson mitigated the
violation because the circumstances prompting the issuance of the violation concerned Mr.
Prater’s crew that was still underground when the required preshift examination was in fact not
made (Tr. 301).
I take note of the inspector’s credible and unrebutted testimony that when he discussed
the matter with Mr. Prater after he exited the mine, Mr. Prater admitted that he did not complete
his examination and stated “I have not had time to get it completed,” and that “you caught me,”
and that no further excuses were offered (Tr. 252-253).
After careful consideration of the arguments advanced by the parties, I conclude and find
the petitioner has the better part of the argument and the respondent’s position is rejected. The
respondent’s reliance on the petitioner’s civil penalty assessment formula and guidelines, found
in Part 100, of Title 30, Code of Federal Regulations, proposing recommended penalty
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assessments do not control a judge’s discretion after hearing a case de novo, and rendering a
decision on the merits.
I accept the petitioner’s arguments that the mitigating circumstances suggested by the
respondent are not related to the violative conditions that prevailed at the time of the initial
inspection that prompted the inspector to issue the citation. I reject the respondent’s arguments
that the actions of Mr. Jackson and Mr. Prater, after-the-fact with respect to their efforts to insure
the safety of the miners preparing to enter and leave the mine, are acceptable and reasonable
mitigating circumstances warranting a lower negligence finding.
.
The fact remains that 15 members of Mr. Prater’s crew were still underground when the
initial preshift examination was not completed and Mr. Prater’s actions, after-the-fact, to
complete the examination on his way out of the mine, well after the time that it should have been
completed, were expected or required, and should not excuse or reward him for his failure to
complete the required preshift, particularly in view of his admissions that he had no time to
complete the examination. With regard to Mr. Jackson, while one can expect nothing less from a
responsible crew chief, I cannot conclude that it mitigates the negligence of the foreman
responsible for the initial violative condition.
Based on the foregoing, the citation IS AFFIRMED. Further, the respondent’s request to
lower the negligence IS DENIED, and the high negligence determination by the inspector IS
AFFIRMED. The inspector’s non-S&S determination, which is not contested, IS AFFIRMED.
History of Prior Violations
The petitioner presented no additional information regarding the respondent’s history of
prior violations other than Exhibit A attached to its petition for assessment of civil penalties
which reflects seven prior citations of 30 C.F.R. § 75.512, and no prior violations of 30 C.F.R.
30 § 75.360(a)(l). However, no further information was presented with respect to the violations,
and I cannot conclude that the respondent’s violation history warrants any additional increases in
the penalties that are assessed for the violations that have been affirmed.
Good Faith Compliance
The parties stipulated that the respondent timely contested the violations, and I conclude
and find that it abated the cited conditions in good faith.
Gravity
Citations Nos. 8171200, 817201, and 8167700, have been affirmed as non-S&S citations,
and I consider them to be non-serious violations.

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Negligence
Based on the aforesaid findings and conclusions, Citation Nos. 8172200 and 8171201,
were the result of moderate negligence by the respondent (Docket No. VA 2010-367). Citation
No. 8167700 was the result of high negligence by the respondent (Docket No. VA-2010-368).
Size of Business and Effect of Civil Penalty Assessments on the Respondent’s Ability to Remain
in Business
Based on the stipulated mine production of approximately 187,780 tons of coal in 2009,
and 185,016 tons in 2010, I conclude and find that the respondent is a small operator. The parties
stipulated that payment of the proposed civil penalty assessments will not adversely affect the
respondent’s ability to remain in business.
Proposed Settlements of Remaining Violations Docket No. VA 2010-367
The parties filed a motion for approval of a proposed settlement of the following two
remaining Section 104(a) S&S violations and one non-S&S violation in this docket.
Citation No.
8171430
8171205
8171206

30 C.F.R. Section
75.1103-1(b)
75.410(a)(1)
75.1606(a)

Assessment
Settlement
$745.00
$334.00
$3,405.00
$460.00
$3,405.00
$460.00
Total Settlement $1,254.00

The parties filed a motion for approval of a proposed settlement of the following five
remaining Section 104(a) S&S violations and one non-S&S violation in this docket.
Citation No.
8167694
8167696
8167697
8167698
8173815
8173818

30 C.F.R. Section
77.205
75.1103-1(b)
75.220(a)(1)
75.400
77.410(a)(1)
77.410(a)(1)

Assessment
Settlement
$1,203.00
$540.00
$634.00
$285.00
$1,412.00
$634.00
$1,530.00
$687.00
$362.00
$300.00
$807.00
$362.00
Total Settlement $2,808.00

In support of the proposed settlements and amended civil penalty assessments, the
petitioner recognizes there are legitimate factual and legal disputes with respect to the level of
negligence and the severity of injuries associated with the alleged violations. The petitioner
concludes that the settlement compromises are consistent with her enforcement responsibility,
are in the public interest, and will further the intent and purpose of the Mine Act.
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Upon consideration of the motions and supporting representations presented by the
parties, I conclude and find that the petitioner has reviewed and considered the factual evidence
surrounding the alleged violations, and has advanced reasonable mitigating circumstances in
support of the proposed settlements, including the six statutory civil penalty criteria set forth in
Section 110(i) of the Mine Act. Accordingly, I conclude and find that the proposed settlements
are reasonable and in the public interest. The motions ARE GRANTED, and the settlements
ARE APPROVED.
It is ORDERED that Citation No. 8171430, be MODIFIED to reduce the degree of
negligence from moderate to low; that Citation Nos. 8171205 and 8171206 be MODIFIED to
reduce the degree of negligence from moderate to low, and reduce the severity of injury from
fatal to lost workdays/restricted duty. The respondent is ORDERED to pay a civil penalty
assessment of $1,254.00, for these violations within thirty (30) days of the date of this decision
(Docket No. VA 2010-367).
It is ORDERED that Citation Nos. 8167694, 8167696, 8167697, 8167698, and 8173818,
be MODIFIED to reduce the degree of negligence from moderate to low. The respondent is
ORDERED to pay a civil penalty assessment of $2,808.00, for these violations within thirty
(30) days of the date of this decision (Docket No. VA 2010-368).
It is ORDERED that Citation Nos. 8172200 and 8171201, are AFFIRMED and
MODIFIED to Section 104(a) non-S&S moderate negligence violations. The respondent is
ORDERED to pay a civil penalty assessment of $500.00 for each violation ($1,000.00 total)
within 30 days of the date of this decision (Docket No. VA 2010-367).
It is ORDERED that Section 104(a) S&S Citation No. 8171198, February 28, 2010, 30
C.F.R. § 75.503, is VACATED, and the proposed civil penalty assessment is DENIED (Docket
No. VA 2010-367).
It is ORDERED that Citation No. 8167700 be AFFIRMED as issued as a Section
104(a) non-S&S high negligence violation. The respondent is ORDERED to pay a civil penalty
assessment of $2,106.00 for this violation within 30 days of the date of this decision (Docket No.
VA 2010-368).
The respondent is ORDERED to pay a total civil penalty assessment of $7,168.00, in
satisfaction of all of the aforesaid violations issued in these matters. Payment shall be made
within thirty (30) days of the date of this decision, and remitted by check made payable to U.S.
Department of Labor/MSHA, P.O. Box 790390, St. Louis, MO 63179-0390. Upon receipt of
payment, these matters are DISMISSED.
_/s/ George A. Koutras____
George A. Koutras
Administrative Law Judge

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Distribution:
Robert R. Beatty, Jr., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310, Morgantown,
West Virginia, 26501
Brian D. Mauk, Trial Attorney, U. S. Department of Labor, Office of Solicitor, 211 7th Avenue
North, Suite 420, Nashville, Tennessee 37219
/kss

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, DC 20001-2021
Telephone No.: 202-434-9950
Telecopier No.: 202-434-9981

March 30, 2012
:
CIVIL PENALTY PROCEEDING
:
:
Docket No. SE 2010-401-M
:
A.C. No. 08-01194-207900
:
v.
:
:
FLORIDA ROCK INDUSTRIES, INC.,
:
MINE: Tampa Sales Yard
Respondent
:

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

DECISION
Appearances: Jonathan Hoffmeister, Esq., Office of the Solicitor, U.S. Department of Labor,
Atlanta, Georgia, on behalf of the Secretary of Labor;
William Doran, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
Washington, D.C., for Florida Rock Industries, Incorporated.
Before:

Judge Zielinski

This case is before me on a Petition for Assessment of Penalty filed by the Secretary of
Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815(d). The petition alleges that Florida Rock Industries, Incorporated, is liable for two
violations of the Secretary’s Mandatory Safety and Health Standards for Surface Metal and
Nonmetal Mines,1 and proposes the imposition of civil penalties in the total amount of
$9,800.00. A hearing was held in Tampa, Florida, and the parties filed post-hearing briefs
following receipt of the transcript. For the reasons that follow, I find that Florida Rock
committed the violations, but that they were not significant and substantial or the result of
Florida Rock’s unwarrantable failure, and impose civil penalties in the total amount of $750.00.
Findings of Fact - Conclusions of Law
At all times pertinent to the violations at issue, Florida Rock operated a facility referred
to as the Tampa Sales Yard, on the shores of Tampa Bay, in Hillsborough County, Florida.
Crushed stone was shipped to the facility from a quarry at Calica, near Playa del Carmen,
Mexico. The stone was either sold directly to customers, or washed to Department of
Transportation specifications and stockpiled for sale. Eight employees worked at the site, from
6:00 a.m. to 3:00 p.m., five days a week. Occasionally, when a ship was being unloaded, work
1

30 C.F.R. Part 56.
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was performed at night and on weekends. In 2009, when the subject inspection occurred, ships
arrived every month or two.
On October 14, 2009, Billy Ray Handshoe, an MSHA inspector, inspected the facility.
He issued a number of citations and orders. Florida Rock timely contested the civil penalties
assessed for the two violations at issue in this proceeding, each of which is discussed below.
Citation No. 6596602
Citation No. 6596602 was issued at 10:00 a.m., on October 14, 2009, pursuant to section
104(d)(1) of the Act.2 It alleges a violation of 30 C.F.R. § 56.20003(a), which requires that
“Workplaces, passageways, store-rooms, and service rooms shall be kept clean and orderly.”
The violation was described in the “Condition and Practice” section of the citation as follows:
The metal storage building, located at the shop area, was not being
kept clean and orderly. Approx. 20-40 one-inch metal poles were
located in the middle of the floor/walkway. This condition
exposed miners to a trip/slip fall hazard. Footprints were observed
on the metal poles. This metal storage shed has been accessed
frequently during the past week by management. The mine
supervisor admitted that . . . his footprints [were] on the metal
2

Section 104(d)(1) of the Act provides:
(d)(1) If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has been a
violation of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation do not cause
imminent danger, such violation is of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard, and if he finds such violation to be caused
by an unwarrantable failure of such operator to comply with such
mandatory health or safety standards, he shall include such finding in
any citation given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within 90 days
after the issuance of such citation, an authorized representative of the
Secretary finds another violation of any mandatory health or safety
standard and finds such violation to be also caused by an unwarrantable
failure of such operator to so comply, he shall forthwith issue an order
requiring the operator to cause all persons in the area affected by such
violation, except those persons referred to in subsection (c) to be
withdrawn from, and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that such violation
has been abated.

30 U.S.C. § 814(d)(1).
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poles. Management are the only persons that carry a key to the
storage shed. The mine recently had a cook out and used the poles
for tent supports. During the discussions, it was discovered that
the yard manager, Hershel Burton, was the person that placed the
poles in the middle of the floor. Manager Burton and Supervisor
Mendoza engaged in aggravated conduct constituting more than
ordinary negligence in that manager Burton created the hazard and
supervisor Mendoza was aware of the hazzard and both failed to
correct the slip/trip hazard. This violation is an unwarrantable
failure to comply with a mandatory standard.
Ex. G-1.
Handshoe determined that it was reasonably likely that the violation would result in an
injury requiring lost work days or restricted duty, that the violation was significant and
substantial (“S&S”), that one person was affected, that the operator’s negligence was high, and
that the violation was the result of the operator’s unwarrantable failure to comply with the
mandatory standard. A civil penalty, in the amount of $2,700.00, was assessed for this violation.
The Violation
The metal storage building referred to in the citation was a Conex shipping container that
had been placed on blocks and was located on a corner of the property, in the vicinity of an oil
containment facility and a repair shop. The container is depicted in photographs introduced by
Florida Rock. Ex. R-1, R-2. It was long and narrow, with doors on one end. Shelves had been
constructed along the sides of the container, leaving a four-foot wide walkway down the center.
There was no illumination in the container. It was used to store sales receipts and related
paperwork, samples of material, and supplies used for community services events, including
chairs, tables, and a tent.
Florida Rock hosted approximately three community service events each year. It
sponsored two Ocean Conservancy International Coastal Cleanup events, and one elementary
school class trip designed to educate students on geology and similar matters. A tent was set up
for such functions, and a barbeque lunch was supplied. An Ocean Conservancy event was held
on Saturday, October 3, 2009. Following the lunch, and departure of the guests, Respondent’s
employees dismantled the tent, and returned it, along with tables and chairs, to the storage
container. When almost everyone had departed, the only items remaining were approximately
30-35, one-inch-diameter, steel tent poles.
Hershel Burton, Respondent’s yard manager, had them placed in his truck, and told the
others to leave and enjoy the rest of the day. He took the poles to the storage container,
intending to return them to the shelves where they were typically stored. However, volunteers
who had returned other items to the container had placed things where the poles were normally
kept. In light of the hour, and the fact that he would need some help to move some of the items,
Burton decided to place the poles on the floor of the container. He carried the poles into the
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container a few at a time, and laid them in the four-foot-wide aisle between the shelves. He took
care to assure that they were “pinned down,” which he described as being “pinned between two
shelves.” Tr. 136. He intended to have employees rearrange the items in the storage shed the
following Monday, which would have cleared the floor. However, he forgot about the poles, and
they remained as he had originally placed them until the day of the inspection, eleven days later.
Pictures of the inside of the storage container depicting the poles on the floor, and its condition
after they had been properly stored, were introduced into evidence. Ex. G-3, R-4.
On October 13, the day before the inspection, a scale clerk asked Saul Mendoza, the yard
supervisor, to retrieve an empty file storage box from the container. Mendoza unlocked the door
and saw the poles on the floor. He testified that he entered the container, grabbed a hold of a
shelf, found secure footing on the poles, took two steps and retrieved the folded-up box with one
hand, departed the container, locked it and left. Tr. 213-17, 236-38. Because it was
approximately 3:30 p.m., the end of the work day, he intended to have the poles properly stored
the next day. However, two employees called in sick that day, and he had to perform some of
their duties. Tr. 213-14.
On October 14, Handshoe inspected the Tampa Sales Yard, accompanied by Mendoza.
When they arrived at the storage container, Mendoza unlocked it and Handshoe observed the
poles lying on the floor. He believed that the poles presented a serious slip and fall hazard to
anyone who might attempt to traverse them. They were uneven, appeared unstable, and the steel
surface of the poles would be very slippery for anyone whose boots were wet or oily. Tr. 19-20,
25-28. He considered that a person walking through the nearby oil containment area or the shop
might get oily residue on his boot. Wet conditions, e.g., rain, would also create an enhanced
potential for a slip and fall injury. Handshoe also determined that persons entering the storage
container would be carrying something in or out, and their hands would be occupied. Their sight
lines would be compromised and, unable to brace themselves, their chances of falling and
suffering a serious injury would be high. Tr. 24-26, 28-29.
Handshoe saw what appeared to be footprints on the poles, and asked who had accessed
the container. Mendoza replied that he had entered the container the previous day. Handshoe
testified that there were multiple footprints on the pipes, reflecting several different sole
configurations. Tr. 17, 22, 27, 82-84. He pointed out two prints in a photograph as being
different, and indicated that others were smudged. Tr. 82-84; Ex. G-3. Based upon the
footprints, he concluded that the container had been accessed “frequently.” Tr. 54.
Florida Rock argues that the floor of the container was clean and orderly, because the
poles were carefully stacked in a secure manner. However, Mendoza’s testimony contradicted
that argument, and confirmed that the pipes presented a hazard. While he stated that the
condition was not hazardous, his actions in bracing himself when he walked on the pipes while
retrieving the file box evidenced that he perceived that the surface was unstable. Tr. 236-37. He
further explained that “the way the poles were sitting in there, they would slide across the
ground. The way the poles were shifting, that’s why I stepped on it lightly at first.” Tr. 237-38.
Burton, too, indicated that the poles were not entirely secure, stating that “they were pretty stable
and relatively heavy. They wasn’t moving around too bad.” Tr. 111-12. Pictures of the
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condition confirm Handshoe’s assessment that the poles presented an uneven and unstable
surface that posed a hazard to persons attempting to use the walkway. I find that the passageway
in the storeroom had not been kept clean and orderly. Consequently, the condition violated the
standard.
Significant and Substantial
The Commission recently reviewed and reaffirmed the familiar Mathies3 framework for
determining whether a violation is S&S. As explained in Cumberland Coal Res., 33 FMSHRC
2357, 2363-65 (Oct. 2011):
The S&S terminology is taken from section 104(d) of the
Mine Act, 30 U.S.C. § 814(d), and refers to more serious
violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat’l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the
Commission further explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v.
MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v.
Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria). An evaluation of the reasonable likelihood of
injury should be made assuming continued normal mining
operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836
(Aug. 1984).
....
....

3

Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984) .
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The Commission recently discussed the third element of
the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc.,
32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an
S&S violation for using an inaccurate mine map). The
Commission held that the “test under the third element is whether
there is a reasonable likelihood that the hazard contributed to by
the violation, i.e., [in that case] the danger of breakthrough and
resulting inundation, will cause injury.” Id. at 1281. Importantly,
we clarified that the “Secretary need not prove a reasonable
likelihood that the violation itself will cause injury.” Id. The
Commission also emphasized the well-established precedent that
“the absence of an injury-producing event when a cited practice
has occurred does not preclude a determination of S&S.” Id.
(citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and
Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June
1996)).
The fact of the violation has been established. The remaining elements of the S&S
determination are in dispute. Florida Rock argues that the violation did not contribute to a
discrete safety hazard, reiterating its position that the poles presented a stable walking surface.
In finding that the condition violated the standard, that position was rejected. It is, therefore,
necessary to identify the discrete safety hazard contributed to by the violation and assess whether
it was reasonably likely to result in a reasonably serious injury.
In Cumberland, the Commission emphasized that the “clear identification” of a discrete
safety hazard contributed to by a violation is a critical step in the S&S analysis, because it is the
hazard contributed to, rather than the violation, that must be found reasonably likely to result in a
reasonably serious injury. 33 FMSHRC at 2368. Florida Rock did not advance a specific
definition of the safety hazard contributed to by the violation. The Secretary argues that since
the container had been accessed and was open to access, the violation contributed to a discrete
safety hazard identified as “miners accessing the storeroom would have to navigate the poles
covering the floor, with the attendant increased risk of injuries due to a slip or trip fall.”4 Sec’y.
Rp. Br. at 4.
The Secretary’s definition of the hazard incorporates her arguments on the violation issue
regarding access to the container, i.e., that at least two persons, Mendoza and Burton, had
entered the storage container and traversed the poles, and that the container was generally
accessible by anyone at the yard through use of a third key available in the office. As noted
below, I find that exposure to the hazard was far more limited. I find that the discrete safety
hazard contributed to by the violation was an uneven and unstable surface in the storeroom
passageway that presented a risk of slipping or tripping to any miner attempting to traverse it.
4

The Secretary argues that no discrete safety hazard would have been contributed to by
the violation only if it had been established that “no one had or ever would access the storeroom
with the poles on the floor.” Sec’y. Rp. Br. at 3-4.
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In general, the likelihood of a safety hazard resulting in a reasonably serious injury is
largely dependent upon the nature of the hazard and the degree of miners’ exposure to it. A
highly dangerous condition, e.g., an open hole in a walkway elevated 20 or more feet in the air,
could present a high probability of a fatal or permanently disabling injury if even one miner
could have encountered it. A more benign condition, like the poles here at issue, might be
traversed safely by a miner taking appropriate precautions, as Mendoza did. It might produce a
relatively minor injury to one less cautious, or it could result in a sprain or fracture. For such
conditions, the likelihood of the hazard resulting in a reasonably serious injury would largely be
a function of the number of persons encountering it. If it existed in a well traveled area for as
much as one shift, such that numerous miners could be expected to encounter it, a reasonably
serious injury could almost certainly be expected. On the other hand, if only one or two miners
might have been exposed to the condition, the likelihood of the hazard resulting in a reasonably
serious injury would be substantially lower.
The violative condition did not pose a high degree of danger to miners. While the pipes
presented an uneven surface, and were somewhat unstable, the condition was not so severe that a
slip, trip or fall would have been the inevitable result of a person encountering it. Moreover, if a
slip or fall occurred, any injury suffered could have been minor. Handshoe’s assessment of the
hazard presented by the pipes was based on his visual observation. He did not attempt to step on
them or otherwise test the stability of the pipes. Tr. 19-20, 25, 79. Mendoza took two steps on
the pipes while steadying himself by holding onto shelving, and did not find them highly
unstable. Tr. 217, 237-39. He did not slip or trip and did not suffer an injury.
The violative condition existed from October 3 to October 14, eleven days. It may have
continued for some unspecified period of time if Mendoza, like Burton, failed to have it
corrected. Mendoza testified that he discovered the condition late on October 13, and that his
intention to have it corrected the next day was thwarted by the unexpected absence of two
employees. Neither the time that he discovered it, nor the absence of the employees, were
verified by independent evidence, e.g., time sheets for October 14. While it is possible that the
task of correcting the hazard had faded from Mendoza’s consciousness, in the absence of
evidence to the contrary, I credit his testimony and find that the hazard would have been
corrected within a day or two of October 14.
Mendoza actually stepped on the pipes, exposing himself to the hazard. Burton placed
the pipes in the container on October 3, but it is unclear whether he walked on them when he did
so. The Secretary argues that Burton walked on the poles when he made repeated trips into the
container. However, Burton testified that he walked the poles to the container, carrying three-tofour at a time, held them in the middle and set them down. Tr. 110-11. He was not asked
exactly how he placed the poles on the floor, and was not asked whether he stepped on poles
when he did so. He may well have elected to slide the poles length-wise into the space between
the shelves. Handshoe stated that Burton told him that he “threw” the poles into the container.
Tr. 63. I cannot find, by a preponderance of the evidence, that Burton stepped on the poles when
he placed them into the container. There is no direct evidence that he did so, and it seems
unlikely that he would have, because as poles were placed on the floor, partially filling the space
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between the shelves, they would have been able to roll freely and would have been substantially
more unstable than when they filled the four-foot space.
There is no credible evidence that anyone, aside from Mendoza, entered or would have
entered the container after the poles had been placed there. The door to the container was
locked. Burton and Mendoza each had a key. Both testified that no one asked for a key to the
container between October 3 and the inspection, and that, to their knowledge, no one other than
Mendoza had entered, or had any reason to enter, the container during that time period. Tr. 116,
137, 215.
The Secretary maintains that the container was accessible to any of the yard employees,
because there was a third key kept in the office that was available to anyone. Mendoza and
Burton testified that the key to the container lock that had been kept in the office also fit a lock
on a gate at another sales yard, and that the office key was frequently borrowed by persons
needing access to that yard. They stated that as of October 2009, the office key had been
missing, although they could not specify when it went missing. Tr. 112-13, 132-33, 215-16.
Handshoe testified that he remembered very well that Mendoza told him that there was a third
key in the office and that anyone wanting to access the container could just go and get it. Tr. 88.
However, he recorded in his field notes, and reiterated in the citation, that only the two managers
had keys. Tr. 51-53; Ex. G-1, G-2. Handshoe testified that he was very much interested in how
many keys there were, because access to the container was an important consideration in the
S&S analysis. If he deemed it important, as he should have, then it is difficult to understand why
he would have recorded, with seeming certainty, that only Mendoza and Burton had keys.5 I find
that during the pertinent time there were only two keys available, and that they were held by
Mendoza and Burton. Yard employees had no access to the container unless they obtained a key
from Burton or Mendoza, and no one had done so during the pertinent time period.6
The only evidence that anyone other than Mendoza had entered the container after the
pipes had been placed on the floor was Handshoe’s determination that there were “multiple”
footprints of different sole configurations on the pipes, and his conclusion that they indicated
that the container had been accessed frequently. Tr. 22, 54, 82-84. I find that evidence
unpersuasive. The pipes are fairly depicted in photographs, and do not appear to bear multiple
distinct footprints. While Handshoe attempted to point out “distinctive” footprints on one of the
photographs, it is difficult, if not impossible, to identify any footprints with any degree of
confidence. Tr. 82-84; Ex. G-3, R-4. As Respondent points out, marks on the pipes may have
5

Handshoe may have recorded information about a potential third key in
a form that he filled out following the inspection concerning possible proceedings against
individual agents of Florida Rock. That form was turned over to counsel for Respondent at the
hearing, but was not introduced into evidence. Tr. 50-53.
6

The Secretary correctly notes that the “office” key was apparently in someone’s
possession and that neither Burton nor Mendoza knew who that person was. However, if such a
person retained the key, he would not have been employed at the yard and would not have used
the key to access the container.
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pre-existed their placement in the container, e.g., they may have been stepped on prior to being
placed into Burton’s truck.
A further difficulty with the “multiple access” argument is that there does not appear to
have been any reason why anyone else would have entered the container. There were only three
reasons that the storage container would have been accessed; 1) to obtain the community service
event supplies; 2) to store or retrieve a sample of material; and 3) to store or retrieve records.
There were no other community service events held in the pertinent time frame and, if one would
have been held, presumably the poles would have been removed to facilitate erection of the tent
and access to other supplies. The stone samples had been in the container for a “long time,” and
entry of the container by lab personnel was unlikely. Tr. 135, 141. A scale clerk would place
records in the container only three or four times per year.7 Tr. 114, 129. It is unlikely that a
scale clerk would have accessed the container while the pipes were on the floor. Moreover, it is
far from certain that anyone intent on placing a box of records in the storage container would
have attempted to traverse the poles. The poles were placed on the floor because other items had
been placed on the shelves where they had been stored. As shown in photographs of the
condition, boxes of records had been placed on the floor of the container, and there appears to
have been open floor space next to the boxes near the entrance to the container. Ex. G-3, R-4. It
is entirely possible, if not likely, that a person tasked with placing a box of records in the
container would have placed the box on the floor, alongside or even on the pipes, which could
have been done without encountering the hazard.
Considering the length of time that the hazard existed, and would have existed under
continued normal mining operations, the fact that it was not highly dangerous to miners, and that
no one except Mendoza encountered or would have encountered the hazard, I find that it was
unlikely to have resulted in a lost work days or restricted duty injury and that the violation was
not S&S.8
From a broader perspective, the poles were in a locked container that was accessed by
only one person while the hazard existed. That person suffered no injury, having taken
reasonable precautions when he chose to encounter the condition. While a reasonably serious
injury was possible, no injury occurred or was likely to occur, and any injury might well have
been very minor. Under the circumstances, it would be difficult to characterized the violation as
one of the “more serious violations” arising under the Act.

7

Handshoe knew that one of the reasons for access to the container was to store records,
but he made no attempt to find out how often that occurred. Tr. 55.
8

I am mindful of Commission precedent that the opinion of an experienced MSHA
inspector that a violation is S&S is entitled to substantial weight. See, e.g., Harlan Cumberland
Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998). However, I disagree with Handshoe’s
determinations of S&S for the violations at issue, for the reasons stated.
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Unwarrantable Failure - Negligence
In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated
the law applicable to determining whether a violation is the result of an unwarrantable failure:
The unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more
serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference," or a
"serious lack of reasonable care." Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”);
see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th
Cir. 1995)] (approving Commission's unwarrantable failure test).
Whether conduct is “aggravated” in the context of an
unwarrantable failure analysis is determined by looking at all the
facts and circumstances of each case to see if any aggravating
factors exist, such as the length of time that the violation has
existed, the extent of the violative condition, whether the operator
has been placed on notice that greater efforts are necessary for
compliance, the operator’s efforts in abating the violative
condition, whether the violation is obvious or poses a high degree
of danger, and the operator’s knowledge of the existence of the
violation. See Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000) . . . ; Cyprus Emerald Res. Corp., 20 FMSHRC 790,
813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir.
1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997);
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992);
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992);
Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of
the relevant facts and circumstances of each case must be
examined to determine if an actor’s conduct is aggravated, or
whether mitigating circumstances exist. Consol, 22 FMSHRC at
353. Because supervisors are held to a high standard of care,
another important factor supporting an unwarrantable failure
determination is the involvement of a supervisor in the violation.
REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).
The Secretary argues that the violation was the result of Florida Rock’s unwarrantable
failure because Burton, its manager and agent, created the violative condition, and neither he, nor
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Mendoza, also Florida Rock’s agent, took any affirmative steps to remedy the hazard. Florida
Rock argues that a number of mitigating factors render its negligence no more than moderate,
including that the poles were stacked in a locked container that was rarely accessed, that only
Burton and Mendoza had keys, that the condition was not extensive or highly dangerous, and
that the actions of Burton and Mendoza do not rise to the level of reckless disregard, indifference
or serious lack of reasonable care.
Operator’s knowledge - Abatement efforts
Both Burton and Mendoza knew about the violative condition. Burton had created it 11
days earlier, and Mendoza discovered it the day before the inspection. Both were managers and
agents of Florida Rock, which is charged with their knowledge. Neither had taken any
affirmative steps to remedy the condition prior to issuance of the violation. However, I accept
Burton’s explanation that his failure to act was due to a simple lapse in memory, rather than a
conscious decision to subordinate safety concerns to production or other efforts. Mendoza
gained knowledge of the condition late on October 13, the day before the inspection. He
deferred initiating corrective action because Florida Rock’s work day had ended. His intention
to correct the condition the following day was thwarted by the unexpected absence of two
employees.9
Obviousness - Extensiveness - Notice of need for additional compliance efforts
The violative condition was confined to the walkway inside the locked storage container.
I disagree with the Secretary’s argument that the condition was extensive and obvious. It was
not extensive in the sense that numerous persons were exposed to it, or that it covered a large
area such that it should have been observed. It could not be observed unless the locked container
door was opened. Only at that point could the condition be said to be obvious. In any event, I
find neither factor is particularly relevant to the analysis in light of Burton’s and Mendoza’s
admitted knowledge of the condition. Although the Secretary argues that, Burton and Mendoza
should have been on notice that additional compliance efforts were necessary because of their
training,
I find no evidence of such notice. The parties stipulated that Florida Rock had no history of
violations during the pertinent time period. Ex. G-11. In fact, Florida Rock had no previous
housekeeping violations. Tr. 127-28; Ex. R-16.
Length of time violation existed.
The violative condition would have existed from October 3 until October 14 or 15, when
Mendoza would have taken steps to correct it. Unlike in other contexts, where a violation’s
existence for more than one shift can be a significant aggravating factor, here the condition was
confined to a locked container where miners did not normally work or travel. It was allowed to
exist because Burton forgot to have the condition attended to. Its existence after 3:30 p.m. on
9

As noted previously, in the absence of evidence to the contrary, I credit Mendoza’s
explanation for his failure to remedy the condition on the morning of October 14.
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October 13 was also attributable to Mendoza’s decision to defer remedial efforts to the next day,
and then to further defer them when workers called in sick. On the facts of this case, considering
that the condition was virtually inaccessible to persons engaged in routine work activities, I find
that the length of time factor is only slightly aggravating.
Danger to miners
The violative condition did not pose a high degree of danger to miners primarily because
of its inaccessibility, but also because of the nature of the condition. The container was locked,
was typically accessed less than ten times per year, and was accessed only once during the time
the violative condition existed. Mendoza exercised care, steadied himself by holding onto a
shelf, and took two steps to retrieve an empty box. No other persons entered the container and
none would have under continued normal mining conditions. The most likely reason for
accessing the container, to place a box of records in it, may well not have resulted in a person
encountering the hazard.
Conclusion
The most significant factors weighing in favor of a finding of unwarrantable failure are
that Respondent’s agents created and knew of the violative condition, but had taken no
affirmative steps to abate it. That it was allowed to exist for 11 days is a slightly aggravating
factor. Several factors: extensiveness, obviousness, and notice that greater compliance efforts
were necessary, are essentially neutral. Weighing against a finding of unwarrantability, is the
fact that the condition posed a very low degree of danger to miners primarily because it was in a
virtually inaccessible location.
On balance, the above factors do not strongly suggest a finding of unwarrantibility.
Florida Rock argues that the actions of Burton and Mendoza cannot properly be characterized as
aggravated conduct. I agree that the agents’ knowledge of the condition and inaction should not
be considered a strongly aggravating factor on the facts of this case. As noted above, the first 10
days that the condition existed were attributable to Burton’s failure to recall the need to correct
the condition. It was out of sight, in the locked storage container on a corner of the property, and
only he and one other supervisor had a key to the lock. He did not subordinate abatement efforts
to production, and it would be difficult to characterize his simple act of forgetfulness as
aggravated conduct. Similarly, Mendoza’s decision to defer abatement efforts to the next day,
and then to further defer them because of the absence of employees, would be difficult to
characterize as aggravated conduct, considering the inaccessibility of the violative condition.
Based upon the foregoing, and considering all the pertinent factors, on the facts of this
case I find that the violation was not the result of Florida Rock’s unwarrantable failure to comply
with the standard, and that its negligence was moderate. A different outcome would be called
for if the condition had existed in a normal work area, where miners could be expected to
encounter it in the exercise of their work assignments.

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Order No. 6596610
Order No. 6596610 was issued at 1:30 p.m., on October 14, 2009, pursuant to section
104(d)(1) of the Act. It alleges a violation of 30 C.F.R. § 56.14100(b), which requires that
“Defects on any equipment . . . that affect safety shall be corrected in a timely manner to prevent
the creation of a hazard to persons.” The violation was described in the “Condition and
Practice” section of the Order as follows:
Defects affecting safety were being reported on mobile equipment
pre-shift examination, but management has failed to correct such
hazards in a timely manner. Numerous defects on two separate
pieces of equipment have been reported to management for several
shifts. This condition exposed miners to serious injuries should an
accident occur due to defects reported. Management reviews preshifts on a daily basis. One out of the two was tagged out of
service to prevent usage until repairs can be made. Management
has engaged in aggravated conduct by failing to repair defects on
mobile equipment in a timely manner. This violation is an
unwarrantable failure to comply with a mandatory standard.
Ex. G-4.
Handshoe determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that one person was affected, and that
the operator’s negligence was high. The Order was issued pursuant to section 104(d)(1) of the
Act, and alleged that the violation was the result of the operator’s unwarrantable failure to
comply with the mandatory standard. A civil penalty, in the amount of $7,100.00, was assessed
for this violation.
The Violation
In preliminary discussions with management, Handshoe typically inquires about work
place examinations and defects on mobile equipment. Burton informed him that some defects
had been reported on mobile equipment, and Handshoe asked to see records relating to the
reports. He examined records of pre-operational inspections of equipment, and noted that a
broken step on a loader had been reported on several occasions. Tr. 31. The parties stipulated
that the broken step had been reported on October 6, 7, 8, 9, and 13. Jt. Stip. 16. He also noted
that several reports indicated that headlights on a small yard tractor were not working. Tr. 31;
Ex. G-7. He inspected the loader and found that the step had not been repaired. The step was
suspended below a small work platform and facilitated access to the platform, which was
approximately three feet off the ground. Photographs of the condition, as cited and postabatement, were introduced into evidence. Ex. G-8. Handshoe issued a citation for the

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condition.10 He also inspected the tractor and found that the headlights were not working. He
allowed Mendoza several minutes to try and get them to work, but he was unsuccessful. A
citation was not issued for the tractor because it had been tagged-out of service, albeit for a
different reason.
Handshoe concluded that the broken step and the malfunctioning headlights were defects
affecting safety that had not been corrected in a timely manner to prevent the creation of a
hazard to persons. Florida Rock contends that the defects did not affect safety and, in any event,
were timely corrected.
The small work platform on the loader was too high to simply step up onto. The broken,
missing step dictated that alternate means would have to be found by anyone attempting to reach
it. One possibility was presented by the proximity of the rear tire, the lugs on the tread of which
might have been judged to present a sufficient foothold. Ex. G-8. A person attempting that
route, or some other route, could slip and suffer an injury. Consequently, the defect affected
safety, at least on occasions when access to the platform might be attempted. However, that
finding does not dictate that it was a defect that required that the loader be taken out of service,
i.e., that the defect be immediately corrected to prevent the creation of a hazard to persons.
Florida Rock contends that the sole reason to access the work platform was to reach the
loader’s air filter, a task that was performed only by service personnel who typically brought
their own equipment, such as ladders and work platforms. Mendoza confirmed that he reviewed
the pre-operational inspection reports and was aware that the step had been reported as broken.
Tr. 218, 224. He did not believe that the defect affected safety, because no one in his operation,
i.e., no employees at the yard, used the step, or would be expected to use the step. Tr. 219-22.
He had operated the loader, and been trained on it. All pre-operational inspection tasks were
performed from the ground, or from the operator’s cab, which was accessed by separate steps on
either side of the loader. Tr. 219-22. The broken step and work platform could be used to access
the air filter compartment, but that was a task performed by service personnel, not miners at the
yard.11 Tr. 220-21. Service personnel were scheduled to work on the loader on October 26, at
which time the broken step would have been repaired.12 Tr. 222; Ex. R-17.

10

Citation No. 6596601, which is not at issue in this proceeding, alleged a violation of
30 C.F.R. § 56.14100(b). Ex. G-9. Handshoe determined that the violation was unlikely to
result in a lost work days or restricted duty injury, that the violation was not S&S, that the
operator’s negligence was high and that one person was affected.
11

Mendoza testified that the air filter compartment could also be reached from a deck
which was part of a system of steps leading to the operator’s cab. Tr. 221, 242-44.
12

A replacement step had been ordered and had been received on October 13. It had not
been installed because bolts required to attach it to the work platform were rusted and had to be
cut off. Tr. 223. The step was replaced on October 14, following issuance of the order.
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Mike Rice, who was being trained for the position of yard supervisor at the time of the
inspection, was reviewing and signing off on the equipment pre-operational inspection reports,
and was aware of the reports of the broken step on the loader. Tr. 148-49. He did not view it as
a hazard or a safety issue because he believed that Florida Rock yard employees had no reason to
use the step. He described the pre-operational inspection of the loader and explained that all
access to engine and transmission compartments was from the ground. Tr. 150-56. A latch to
the upper right of the work platform opened a door that provided access to the air filter, a task
not performed by yard employees. The air filter was changed by Florida Rock’s service
personnel who had ladders and platforms that were used to access various parts of the loader.
Tr. 157. He believed that the step would most likely have been repaired on October 26 during
the next scheduled servicing of the loader.
Edil Villatoro operated the plant and various equipment in the yard. He had operated the
loader on October 7, 8 and 9, and had noted the broken step on the pre-operational inspection
reports. Tr. 185; Ex. R-12. He confirmed that Florida Rock’s policies required that if a safety
hazard was discovered during a pre-operational inspection, the equipment could not be operated,
and had to be tagged-out for repair. Tr. 183-84. He did not consider the broken step to be a
safety hazard because he had never used it, and did not need to use it to perform his preoperational inspection or for any other reason. Tr. 186-93. He also confirmed that had never
accessed the air filter or vents higher on the body of the machine.
Julio Perez, an equipment operator at the yard, testified that, except for accessing the
operator’s cab of the loader, all pre-operational tasks were performed from the ground. He had
never used the step in question and had never seen anyone use it, with the possible exception of a
mechanic. Tr. 201-09.
I accept the unrebutted testimony of Respondent’s witnesses, and find that the broken
step leading to the work platform on the loader was not accessed by any of Florida Rock’s yard
employees. Service personnel may have used the platform to gain access to and change the air
filter during scheduled preventive maintenance. However, those same personnel would have
repaired the step. The part was on hand, and the loader was scheduled for servicing on October
26, 2009. The broken step was not a defect affecting the safety of Florida Rock’s employees.
To the extent that it was a defect affecting safety, it would have been corrected timely, such that
it would not have presented a hazard to miners. I find that the standard was not violated with
respect to the broken step on the loader.
Florida Rock makes similar arguments as to the headlights on the yard tractor. It was a
relatively small piece of equipment used for various light duty tasks, such as cleaning up spills of
material and unloading deliveries of supplies trucked to the yard.13 It is depicted in photographs
13

The Secretary argues that the tractor would have been used when yard employees
worked at night to unload a ship. However, Burton explained that yard employees stayed on
shore and “operated the off-loading system.” Tr. 125. The tractor was a very light-duty piece of
equipment that appears particularly unsuited to a high volume material handling task. Absent
(continued...)
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introduced by Respondent. Ex. R-13, R-14. The tractor was used only occasionally,
approximately five times between September 23 and October 14, and the pre-operational
inspection and daily report sheets indicate that it was typically operated less than three hours on
days it was used. Tr. 234; Ex. R-15. It had been operated for only 16.2 hours from September 2
through October 8, 2009. Ex. R-15. Beginning in September, problems with the tractor’s
headlights were being reported on some of the inspection sheets.
Perez conducted the pre-operational inspection on September 23, and noted that the
headlights were not working. Tr. 204-05; Ex. R-15. He operated it during daylight, did not
believe that the headlight malfunction was a safety issue, and did not take the tractor out of
service. Tr. 204-05. Villatoro operated the tractor on September 26. He did not note any
problems with the headlights during the pre-operational inspection, and had no recollection of
there being a problem with the headlights. Tr. 194-96; Ex. R-15. Another miner operated the
tractor on September 30 and October 1, and noted that the headlights were not working.
Ex. R-15. He did not take the tractor out of service, and apparently concluded that the defect did
not affect safety, most likely because it was operated in daylight. Rice operated the tractor on
October 8, and reported no problem with the headlights. Tr. 159-61; Ex. R-15.
The inconsistent functionality of the headlights was attributable to a defective ground
relay discovered following the inspection. The headlights on the tractor were controlled by two
switches. One was an on/off switch and the other switched the lights between high and low
beams. Tr. 176. Operators tended to throw the headlight switches at the same time, which
resulted in the beam switch being on “high beam” when the headlight switch was in the “on”
position. Tr. 228. With the switches in those positions, the headlights would not function, and
Mendoza was unable to demonstrate to Handshoe that the headlights were functional. After the
inspection, Mendoza discovered that the malfunction occurred only when the headlights were in
“high beam” mode. He took a picture of the tractor following the inspection on October 14,
which showed the headlights functioning. Tr. 233; Ex. R-14. No repairs had been made before
the picture was taken. Tr. 244-45. Later, it was determined that a ground relay for the high
beams was defective. Tr. 244. Rice also testified that the headlights were functional on October
14. Tr. 162.
Apparently, some equipment operators knew how to operate the headlights, or the switch
happened to be in the low-beam position when they were checked. Villatoro and Rice found no
problems with the lights when they checked them on September 26 and October 8. However,
Perez, and at least one other operator were not able to get the lights to work. Tr. 175; Ex. R-15.
Mendoza also was unable to get the lights to function until after the inspection.
The problem with the headlights would have been a defect affecting safety only if the
tractor was operated during darkness or periods of significantly reduced visibility. Rice testified
that there would have been no reason to operate the tractor under such conditions. Tr. 177. He
13

(...continued)
evidence to the contrary, I find that it would not have been used during the ship unloading
process.
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and Mendoza pointed out that the tractor would not have been operated during inclement
weather because it had no operator’s cab. Tr. 177, 230. Mendoza was confident that the tractor
had not and would not be operated in the dark without functioning headlights. Tr. 230, 247-48.
His belief was based upon a number of considerations, including, the fact that the tractor was not
often used, and was used for short periods of time for tasks that typically needed to be performed
later in the day or could be deferred. He was also confident that the operators had been properly
trained, and would, as they had in the past, follow instructions not to operate equipment when to
do so would present a hazard. Rice opined that there was no reason that the tractor would have
been operated in the dark. Tr. 177. He also believed that equipment operators would function as
they had been trained, and would tag the tractor out and not operate it in darkness if the
headlights were not functioning. Tr. 159.
While the vast majority of the yard’s working hours occurred during daylight, in months
like October when the inspection was conducted it was dark for the first hour or so of the work
day. Tr. 208. Villatoro and Perez testified that the tractor was occasionally operated while it
was dark, although it was never operated in the dark while the headlights were not working. Tr.
195-96, 204-08. Rice conceded that the tractor was used for deliveries, that deliveries came at
all times of the day though not generally in the early morning, and that the tractor was available
for use at all times. Tr. 178-79.
The inspection was conducted during daylight hours, and it does not appear that
Handshoe was able to take into account the effect of illumination on the property. Because of
the facility’s proximity to the port of Tampa, the Department of Homeland Security required that
the area be illuminated at night, and there were lights mounted on poles around the perimeter of
the facility. Tr. 165-66. Shadows of those light poles are visible in an overhead photograph of
the facility. Ex. R-1. There is virtually no evidence in the record as to the intensity of those
lights, how they were controlled, or to what extent they provided illumination in areas where the
tractor was likely to be operated. Villatoro indicated that there was illumination in”some places”
around the facility. Tr. 196. Because they were intended to provide lighting for security
purposes, it is likely that the lights were of relatively high intensity and would have provided
considerable illumination in areas near the perimeter of the facility.
Considering the testimony of Villatorro and Perez, it is apparent that there were
occasions when it would have been desirable to operate the tractor in darkness, or when visibility
was reduced, e.g., at dawn or when fog was in the area.14 Because of the defective ground relay,
the operator may not have been able to get the headlights to function. Depending upon where
the tractor was to be operated, illumination provided by security lighting may not have been
sufficient to avoid exposing the operator to a hazard. At least two of the tractor’s operators did
not know how to configure the switches to make the headlights function. The condition had
existed since September 23, and apparently would have continued to exist for some extended
period of time because Florida Rock had not taken, and had not planned to take, any steps to

14

Because the tractor did not have a cab for the operator’s position, it would not have
been operated in inclement weather.
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correct the problem.15 While an equipment operator who was unable to get the tractor’s
headlights to function may have been able to defer the task requiring use of the tractor, or may
have tagged the tractor out of service, it is possible, particularly in borderline situations, that he
would have elected to operate the tractor despite the fact that the headlights were not
functioning. As the Secretary points out, the Commission has, in other contexts, instructed that
the vagaries of human conduct must be taken into account in the construction of mandatory
safety standards involving miners’ behavior. See Thompson Bros. Coal Co., 6 FMSHRC 2094,
2097 (Sept. 1984).
I find that the malfunctioning headlights on the yard tractor constituted a defect affecting
safety and that Florida Rock did not timely correct the defect to prevent it from becoming a
hazard to miners.16 Accordingly, the standard was violated.
Significant and Substantial
The fact of the violation has been established. As the Secretary observes, because
of the wording of the standard, the first and second Mathies factors are merged. Consequently, it
is necessary to identify the discrete safety hazard contributed to by the violation and to determine
whether it was reasonably likely to result in a reasonably serious injury.
The Secretary identified the hazard as follows: “the tractor operator would lack
headlights at a time when headlights were needed, with the attendant risk of the tractor hitting
someone or being hit by something due to reduced visibility.” Sec’y. Rp. Br. at 8. I accept that
definition of the hazard contributed to by the violation, with a slight alteration. The hazard
contributed to was that a miner would operate the tractor without functioning headlights when
headlights were needed, with the attendant risk of the tractor hitting someone or being hit by
something due to reduced visibility. The tractor, which is depicted in several photographs, was
relatively small, and had an unprotected operator’s compartment. Large pieces of mobile
15

The defective ground relay may have been repaired during scheduled maintenance on
the tractor. However, there is no indication as to whether or when such maintenance would have
occurred. The loader apparently was serviced after 500 hours of operation. If the tractor was on
a similar schedule, it could have been months before such maintenance would have been
performed.
16

Florida Rock argues that the malfunctioning headlights were not a defect affecting
safety, and that no discrete safety hazard was contributed to by the alleged violation because the
Tampa Sales Yard is “primarily” a day-time operation and “typically” does not operate the
tractor during hours and weather conditions that would require the use of headlights. Resp. Rp.
Br. at 8-9. In support, it cited Nelson Brothers Quarries, 24 FMSHRC 980 (Nov. 2002) (ALJ),
where the absence of headlights on a front end loader was found not to be a violation of section
56.14100(b). However, there it was “undisputed” that no mine operations were conducted after
dark. Id. at 988. Here, as noted above, the tractor was occasionally operated in darkness or in
conditions of reduced visibility. Consequently the defect affected safety and was not timely
repaired to avoid a hazard to miners.
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equipment operated at the facility, e.g., the loader and customer trucks, and a collision involving
the tractor, even with a smaller vehicle such as a pick-up truck, could result in very serious
injuries to the operator. Pedestrians also traveled about the facility, and malfunctioning
headlights would impair the ability of the operator to see a pedestrian, as well as a pedestrian’s
ability to see the tractor. A serious injury could be expected if the tractor struck a pedestrian.
The primary issue in the S&S analysis is whether the hazard contributed to by the violation was
reasonably likely to result in an injury causing event.
I find it highly unlikely that the tractor would have been operated in darkness or
conditions of reduced visibility when headlights were needed but were not functional. For the
reasons discussed above, the occasions when it would have been desirable to operate the tractor
in darkness or reduced visibility were extremely rare. The tractor was not used in a production
capacity. It was used only occasionally for short periods of time, primarily on tasks that were
performed later in the day.
On the rare occasion when it would have been desirable to operate the tractor in
conditions of reduced visibility, if the operator could not get the headlights to function, he most
likely would have deferred operation of the tractor, or tagged it out for repair. As Handshoe
concluded, the equipment operators did a good job of conducting pre-operational inspections of
equipment and noting any defects. They were trained to conduct such inspections and to tag
equipment out of service if they discovered a defect affecting safety. The loader had been tagged
out because of low tire air pressure the day before the inspection and, on the day of the
inspection, the tractor had been tagged out for a defective muffler that was blowing exhaust in
the operator’s face. Equipment operators had tagged equipment out in the past for safety defects.
Tr. 231, 249.
Considering the vagaries of human conduct, a decision to operate the tractor under such
circumstances would not result from inadvertent action or momentary inattention. However, an
error in judgment could have resulted in operation of the tractor when it should not have been
operated. That possibility justified the finding of a violation. However, it is not sufficient to
establish that an injury causing event was reasonably likely. In Thompson, consideration of the
vagaries of human conduct justified a finding of a reasonable possibility of contact and injury
sufficient to establish a violation of the guarding standard there at issue. However, the
Secretary’s contention that the violation was S&S was rejected, and the Secretary did not seek
review of that finding. 6 FMSHRC n.3 at 2095. While it is possible that an operator would have
made such an error, it is far from likely that he would have done so. See Amax Coal Co.,
18 FMSHRC 1355, 1358-59 (Aug. 1996) (to prove S&S nature of violation, Secretary must
prove that it is reasonably likely that an injury producing event will occur, not that one could
occur).
I find that the hazard contributed to was unlikely to result in an injury causing event, and
that the violation was not S&S.

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Unwarrantable failure - negligence
Handshoe believed that the failure to timely repair defects on mobile equipment was a
major failing of management. As he described it, the equipment operators were doing a good job
of reporting defects, but management was not following through and having the defects repaired.
While Handshoe stated in his order that numerous safety defects had been reported, he conceded
that there were only two, the broken loader step and the malfunctioning tractor headlights.
Tr. 67. I have found that Respondent did not violate the standard with respect to the loader step.
Consequently, that aspect of the order will not be considered in the unwarrantibility analysis.
Operator’s knowledge - Abatement efforts
Mendoza, Florida Rock’s agent, reviewed the pre-operational inspection forms and knew
that the defect on the tractor had been reported on September 23 and 30 and October 1.17
Ex. R-15. While no problem with the headlights had been reported when the tractor was
operated on September 26 and October 8, the recurrent reports of malfunctioning headlights put
Florida Rock on notice of the defect. It is less certain that Mendoza knew that the defect
affected safety. The tractor had not been tagged out of service when the headlight malfunction
was noted, undoubtedly because it had been operated in daylight. Both Mendoza and Rice
believed that the tractor would not be operated in conditions of low visibility if the headlights
were not functioning. Nevertheless, Mendoza should have been aware that there were occasions,
however, rare, when the tractor might have been operated in conditions of reduced visibility, and
that a miner might choose to operate the tractor in such conditions if he was unable to make the
headlights function. Since no efforts to correct the defect had been initiated, Florida Rock is
charged with knowledge of the violative condition. 18
Obviousness - Extensiveness - Notice of need for compliance
The defect affecting the tractor’s headlights, which was reported during the preoperational inspections, was an obvious condition. However, in light of the apparently rare
occasions that the tractor might have been operated in conditions of reduced visibility, the
“violative condition,” i.e., failure to timely repair a defect affecting safety so as to prevent
creating a hazard to persons, was not particularly obvious. There was only one defect on mobile
equipment that had the potential to affect safety, and that would have been only on rare
occasions. Consequently, the violative condition was not extensive. There is no contention that
17

Rice was a trainee during the pertinent period. Since Mendoza reviewed the same
reports that he did, it is unnecessary to decide whether Rice was also an agent of Florida Rock.
18

It is important to keep in mind that the standard at issue did not require that
equipment like headlights be functional at all times, or even that defects on mobile equipment be
corrected. The standard required that defects affecting safety be corrected in a timely manner so
as to avoid creating a hazard to persons. Consequently, in order to charge Respondent with
knowledge of the violative condition, more must be shown than simple knowledge that there was
a problem with the headlights.
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Florida Rock had been put on notice that greater compliance efforts were necessary.
Length of time violation existed.
The violative condition was the failure to correct a defect affecting safety in a timely
manner so as to prevent the creation of a hazard to persons. The problem with the headlights
was first reported on September 23. While there were subsequent reports that noted no
problems with the headlights, other reports put Mendoza and Florida Rock on notice that the
problem continued to exist. By the time of the inspection, steps should have been taken to
correct the problem in order to avoid exposing miners to a hazard. Under continued normal
mining operations, it may have continued for months.
Danger to miners
The violative condition did not pose a high degree of danger to miners. Had it been
established that Florida Rock failed to address “numerous” safety defects, as stated in the order,
a different conclusion could have been drawn. The same is true if the tractor had been used in
production such that it typically would have been operated during the dark early morning hours.
On the rare occasion that the tractor might have been operated in conditions of reduced visibility,
and the operator would have been unable to get the headlights to function, and the security
lighting did not provide sufficient illumination in the intended work area, it is likely that use of
the tractor would have been deferred, or it would have been taken out of service.
Upon consideration of all of the pertinent factors, Florida Rock’s negligence with respect
to the violation, i.e., the failure of supervisor/agents to address the reports of headlight
malfunctions on the tractor, did not rise to the level of gross negligence or deliberate
indifference. I find that the violation was not the result of Florida Rock’s unwarrantable failure,
but that its negligence was high.
The Appropriate Civil Penalties
Section 110(i) of the Act provides, that in assessing civil penalties, the Commission must
consider the operator’s history of previous violations, the appropriateness of the penalty to the
size of the business of the operator charged, whether the operator was negligent, the effect on the
operator’s ability to continue in business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after notification of a
violation. 30 U.S.C. § 820(i). The determination of the proper civil penalty is committed to the
Administrative Law Judge’s discretion, which is bounded by the statutory criteria of section
110(i) of the Mine Act as well as the deterrent purpose of the Mine Act’s penalty assessment
scheme. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir.
1984).
The Tampa Sales Yard is a small mine, and it had no history of violations during the
pertinent time period. Ex. G-11. Florida Rock does not contend that payment of the proposed
penalties would affect its ability to continue in business. Florida Rock demonstrated good faith
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in promptly abating the violations. The negligence and gravity factors have been addressed with
respect to each violation.
Citation No. 6596602 is affirmed. However, it was found not to be S&S and was not the
result of Florida Rock’s unwarrantable failure. Rather its negligence was moderate. A specially
assessed civil penalty of $2,700.00 was proposed by the Secretary. Considering the reductions
in the level of negligence and gravity, the factors enumerated in section 110(i) of the Act, and
guided by the Secretary’s penalty assessment regulations, I impose a penalty in the amount of
$250.00.
Order No. 6596610 is affirmed as a violation. However, it was found not to be S&S, and
was not the result of Florida Rock’s unwarrantable failure. The violation was unlikely to result
in permanently disabling injury, and Florida Rock’s negligence was high. A specially assessed
civil penalty of $7,100.00 was proposed by the Secretary. Considering the reductions in the
levels of negligence and gravity, the factors enumerated in section 110(i) of the Act, and guided
by the Secretary’s penalty assessment regulations, I impose a penalty in the amount of $500.00.
ORDER
Citation No. 6596602 and Order No. 6596610 are modified to citations issued pursuant
to section 104(a) of the Act, and are AFFIRMED, as modified. Respondent is ORDERED to
pay civil penalties in the total amount of $750.00 within 45 days.

/s/ Michael E. Zielinski
Michael E. Zielinski
Senior Administrative Law Judge
Distribution (Certified Mail):
Jonathan Hoffmeister, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
SW, Atlanta, GA 30303
William Doran, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 2400 N. Street, N.W.,
Fifth Floor, Washington, D.C. 20037

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ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th Street, Suite 443
DENVER, CO 80202-2500
303-844-3577/FAX 303-844-5268

March 29, 2012
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
MCMURRY READY MIX COMPANY,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. WEST 2011-687-M
A.C. No. 48-01203-245465
Crusher #1

ORDER GRANTING, IN PART, THE SECRETARY’S MOTION FOR SUMMARY
DECISION AND ORDER DENYING RESPONDENT’S MOTION
FOR SUMMARY DECISION
This case is before me upon a petition for assessment of civil penalty under section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Mine Act”). It
involves a single citation issued to McMurry Ready Mix Company (“McMurry”) at its Crusher
#1 site, a portable sand and gravel plant, for an alleged violation of 30 C.F.R.
§ 56.9300. The Secretary of Labor has moved for summary decision on the basis that there
exists no genuine issue of material fact as to whether McMurry violated the standard when it
provided rub-rails that were nine inches high on the truck scale at the mine. McMurry has
moved for summary decision on the basis that the citation was issued in error, that 30 C.F.R. §
56.9300 does not apply to scales, and that it lacked fair notice that the standard would apply to
its scale.
I. JOINT STIPULATIONS OF FACT
The parties entered into detailed stipulations of facts for the purpose of summary decision.
The relevant stipulations are set forth below.
1.
At all times relevant to this proceeding, McMurry was an “operator” as defined in
Section 3(d) of the Federal Mine Safety and Health Act of 1977 (the “Mine Act”).
2.

McMurry owns and operates portable sand and gravel plants in Wyoming.

3.

Crusher #1 is one of those portable sand and gravel plants.

4.
On November 30, 2010, Crusher #1 was located three miles west of Guernsey,
Wyoming on the north side of Highway 26.

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5.
On November 30, 2010, Crusher #1 was a “mine” as defined by Section 3(h) of the
Mine Act, and its mining services affected interstate commerce.
6.

McMurry’s Crusher #1 is assigned Mine I.D. No. 48-01203.

7.
McMurry is subject to the jurisdiction of the Mine Act, and the Administrative Law
Judge has jurisdiction in this matter.
8.
On November 30, 2010, MSHA Inspector Coby Wilkes issued McMurry Citation No.
6456059.
9.
Citation No. 6456059 alleges that McMurry was in violation of 30 C.F.R. §
56.9300(b) on November 30, 2010 because the guardrail on one of the edges of the elevated
scales was not at least mid-axle height of the largest self-propelled mobile equipment which
usually travels over the scales.
…
12.
At the time of the inspection on November 30, 2010, both edges of the scales were
equipped with a sturdy metal bumper which was nine inches high.
13.

The citation was written for only one of the two edges of the scales.

14.
At the time of the inspection on November 30, 2010, the edge at issue had neither a
berm nor a guardrail which was mid-axle height of the largest self-propelled mobile equipment
which usually travels the roadway.
15.

The scales were 10 feet 10 inches wide and 115 feet long.

16.
On the side of the scales at issue, the drop-off, measured from ground to platform,
ranged in height from 35 to 40 inches.
17.

The drop-off on the other side of the scales is not at issue.

18.

Joint Exhibits 2-4 are photographs of the scales taken from three different positions.

19.

Joint Exhibits 2-4 depict what they purport to depict.

20.

Joint Exhibit 4 is a photograph of a semi-tractor on the scales.

21.
Semi-tractors like the one pictured in Joint Exhibit 4 are the largest, self-propelled
equipment that travels on the scales.
22.

A stoplight stands near the trailer at the end of the scales.
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23.

That stoplight is pictured in Joint Exhibits 2 and 3.

24.
The scales are regularly used to weigh the product mined and processed by McMurry
as it is leaving the mine to be delivered to a purchaser.
25.
McMurry stipulates that, if Citation 6456059 were affirmed, the $100 penalty would
be appropriate and would not impair its ability to remain in business.
26.
On August 22, 2007, MSHA inspected a scale at McMurry Crusher #3, Mine I.D.
#48-01518.
27.
Following the inspection, Citation No. 6305593 was issued for a violation of 30
C.F.R. § 56.9300(b) for not having guard rails on the scales at the scale house.
28.
According to the termination document, that citation was terminated the same day
after, “[g]uarding and a tire bumper were installed on the scales at the scale house bringing this
violation into compliance.”
29.
Following an MSHA inspection on July 21, 2010, McMurry Crusher #3 mine, I.D. #
48-01418 was issued Citation No. 6455327 for violation of 30 C.F.R. § 56.9300(b).
30.
The inspector noted in Box 8 of Citation No. 6455327 that the outside guards on the
elevated scales were only 6 ½ inches high and there was a drop off of 3 feet on each side of the
scales.
31.
Citation No. 6455327 was terminated on August 17, 2010 when, “[a]n additional
guardrail was installed along the sides of the scales, bringing this violation into compliance.”
32.
Rub-rails are intended to guide vehicles and provide a visible, audible, and/or tactile
indication to the driver of the edge of the travelway.
33.
At a hearing in MSHA v. Knife River Corporation, Northwest in Portland, Oregon on
May 5, 2011 two MSHA inspectors testified that they were not aware of any instances in which
(1) a truck had over-traveled an elevated truck scales and overturned, or (2) a truck driver had
been injured as a result of traveling the side of any elevated scales.
II. BRIEF SUMMARY OF THE PARTIES’ ARGUMENTS
A.

Secretary of Labor

The Secretary argues that there is no genuine issue of material fact as to whether McMurry
violated the standard of 30 C.F.R. § 56.9300(b) when it failed to provide berms or guardrails of
sufficient height along an edge of an elevated scale used by vehicles at its mine and that
McMurry had sufficient notice that the standard applied to elevated truck scales.
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The Secretary argues that in satisfaction of the elements required to prove a violation of the
standard, the scale at McMurry’s Crusher #1 was part of a roadway, had a drop-off of sufficient
grade or depth to cause a vehicle to overturn or endanger persons in equipment, and was not
equipped with berms or guardrails that were at least mid-axle height of the largest self-propelled
mobile equipment that usually traveled the roadway. The Secretary argues that the rub-rails
along the edges of the elevated scale were noncompliant. Mid-axle of semi-tractors like the one
pictured in Joint Exhibit 4, the largest self-propelled mobile equipment traveling the scale, was
approximately 22 inches. The height of the sturdy metal bumper at the edge of the scale was
only nine inches high.
The Secretary further argues that the Operator was on notice that the scale violated 30 C.F.R.
§ 56.9300(b). The Operator had notice that the scale was a roadway and that the rub-rails did not
meet the standard through prior enforcement because another of McMurry’s mines, Crusher #3,
was issued a citation for violation under circumstances where the scale was equipped with a rubrail that was less than mid-axle height. Further, Program Policy Letter P10-IV-01 (the “PPL”),
which was intended to clarify the standard, was mailed to mine operators and posted on the
MSHA website after it was issued August 26, 2010.
B.

McMurry Ready Mix Co.

McMurry argues that summary decision in its favor is appropriate. First, it argues that the
cited standard does not apply to truck scales. Second, it argues that it did not have adequate
notice that the cited standard would apply to the scale at the Crusher #1 mine.
McMurry has three points to support its first argument that 30 C.F.R. § 56.9300 does not
apply to truck scales. First, McMurry argues that a truck scale is not a roadway. Second, it
argues that even if scales are considered to be a “roadway,” the cited standard does not require
berms or guardrails on McMurry’s scale because the standard is not intended for scales that are
equipped with rub-rails. Third, McMurry asserts that MSHA’s policy letter No. P10-IV-1 cannot
be used to establish enforceable standards for determining when a rub rail is insufficient
protection and when a mid-axle height berm or guardrail is required.
McMurry’s second argument is that it was not given fair notice that the cited standard
applied to the truck scales at the Guernsey site. It argues that the plain language does not clearly
indicate that truck scales are covered by the “berms and guardrails” standard; instead the
standard covers “roadways.” It also argues that MSHA has a long history of non-enforcement. It
notes that from the time of the installation at Crusher #1 in July 2008 up to the November 30,
2010 inspection, MSHA has inspected the truck scales and has never issued a citation. MSHA
had also determined in August 2007 at the same site, but at the Crusher #3 mine, that a truck
scale equipped with a rub-rail similar to the one in this case had not violated 30 C.F.R. §
56.9300(b). Finally, MSHA issued a video on its website entitled “Workplace Exams – How to
Recognize Common Hazards,” which depicted rub-rails installed on a truck scale that are similar
to those for which the citation was issued.

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III. DISCUSSION AND ANALYSIS OF THE ISSUES
Commission Procedural Rule 67 sets forth the grounds for granting summary decision, as
follows:
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a
matter of law.
29 C.F.R. § 2700.67(b).
The safety standard at issue provides:
(a) Berms 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.
(b) Berms or guardrails shall be at least mid-axle height of the
largest self-propelled mobile equipment which usually travels
the roadway.
30 C.F.R. § 56.9300. The Commission established three elements that must be analyzed in a
case involving scales. Lakeview Rock Products, Inc., 33 FMSHRC ____, No. WEST 2010
1856-RM (December 16, 2011); 2011 WL 6740384). The three elements are:
(1) Whether the scales are part of a roadway;
(2) Whether each scale has a drop-off of sufficient grade or depth
to cause a vehicle to overturn or endanger persons or
equipment; and
(3) Whether the scales are equipped with berms or guardrails that
are at least mid-axle height of the largest self-propelled mobile
equipment that usually travels the roadway.
A.

The First Element

The first element of 30 C.F.R. § 56.9300 is whether the scales are part of a roadway. Part 56
the Code of Federal Regulations does not define “roadway.” In cases considering the first
element, according to the plain meaning of the word, scales are a roadway if the scales are part
of the entire route traveled by trucks on the trek to the consumer and are not merely equipment.
In APAC-Mississippi, Inc., 26 FMSHRC 811, 814-15 (Oct. 2004) (ALJ), the judge
determined that “in harmony with the dictionary definitions, i.e., the common meanings of the
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terms at issue, the entire route traveled by the trucks is to be considered a roadway.” Id. Under
the facts in that case, the route consisted of “traveling from the two-way road, along a ramp and
scale in the same line, and continuing from the scale in the same direct line down the next
portion of the ramp back to the road.” Id. (emphasis in original).
In Carder, 27 FMSHRC 839, 858 (Nov. 2005) (ALJ) an operator was cited for violating 30
C.F.R. § 56.9300 because a scale lacked guardrails or berms. The citation was vacated because
the operator did not have notice that guardrails would be required for the scale.. Id. However,
the scale was found to fit within the scope of the safety standard. Id. The scale was a roadway
with a drop-off of sufficient grade or depth that could cause a truck to overturn or endanger
persons in the truck. Id.
In Knife River Corporation, 32 FMSHRC 912, 914 (July 2010) (ALJ), Judge Pricilla Rae
relied on the dictionary definition of “roadway,” and rejected the notion that scales were not a
roadway and were merely “equipment” that must be driven over at 5 mph. Id. The scales were
an essential part of the “commercial trek from the pit to the consumer.” Id. The common
meaning of the term roadway encompassed the entire route traveled by the trucks, including the
scales. Id. The judge determined that the language in the safety standard was sufficiently clear
to be enforceable. Id.
I find that the stipulations establish that the scale at Crusher #1 is part of the roadway. This
scale was an essential part of the “commercial trek from the pit to the consumer.” Knife River
Corp., at 914. The scale at McMurry’s Crusher #1 mine is not merely a piece of stand-alone
equipment; it is undisputed that the scale is regularly used to weigh the product mined and
processed by McMurry as it is leaving the mine to be delivered to purchasers. Jt. Stip. 24. The
entire route traveled by the trucks is to be considered a roadway. See APAC-Mississippi, Inc., 26
FMSHRC at 814. The route at Crusher #1 consists of traveling onto the scale, stopping at the
stoplight for weighing, then continuing onto the main roads to leave the mine for delivery. See
Id. at 815; Jt. Ex.2-4; Jt. Stip. 18-20. Consequently, I find that the scale at issue in this case is
part of the roadway.
B.

The Second Element

The second element is whether the scale has a drop-off of sufficient grade or depth to cause a
vehicle to overturn or endanger persons or equipment. In Lakeview Rock Products, the
administrative law judge determined that rub-rails, similar to those installed on the scale at
McMurry’s Crusher #1, would prevent a vehicle from overturning and harming its occupants and
vacated the citation on that ground. 33 FMSHRC 1538, 1545 (June 2011). The Commission
explained that the ALJ should have first considered whether the drop-off was sufficient to cause
a vehicle to overturn before determining whether the rub-rails would function to keep a vehicle
on the roadway. The Commission held that this second element must be considered
independently from an analysis of the adequacy of rub-rails. Thus, when analyzing this element
I must consider whether the scale has a drop-off of sufficient grade or depth to cause a vehicle to
overturn or endanger persons or equipment without taking into consideration the presence of the
rub-rails.
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In Knife River Corp., the judge vacated the citation because the Secretary did not meet the
burden of showing that this second element was met: that the depth and grade of the drop-off
were such that a hazard existed. 32 FMSHRC at 915. The Secretary had alleged the scales were
36 inches at their highest point while the operator argued they were only 26.5 inches. Neither
party provided any “expert’s statement, case law, or any other authoritative guidance as to how
or why a 26.5 to 30 inch elevation for some undetermined distance on the scales is of sufficient
depth as to pose a danger of a vehicle overturning or endangering persons in equipment.” Id.
McMurry argues in its Motion for Summary Decision that the cited standard does not require
berms or guardrails on its scale because the standard is not intended for a scale that is equipped
with rub-rails. McMurry Mot. at 7-12. However, the Commission has clearly stated that a judge
must first analyze this second element before considering whether rub-rails would have any
effect.
The parties have stipulated that the scale at the Crusher #1 ranged in height between 35 and
40 inches. Jt. Stip.16. Thus, the critical question in this matter is whether this drop-off was “of
sufficient grade or depth to cause a vehicle to overturn or endanger persons or equipment.”
Lakeview Rock Products, 2011 WL 6740384 at 4.
The parties have not stipulated that 35 to 40 inches meets the criteria of the second element
set forth in Lakeview Rock Products. It is clear that McMurry has directly contested the
Secretary’s assertion that this drop-off poses a hazard. McMurry Mot.16. Because there exists
an unresolved dispute about this fact, the proper course is to proceed to an evidentiary hearing to
determine whether the drop-off at the scale of Crusher #1 was of a sufficient grade or depth to
cause a vehicle to overturn or endanger persons or equipment, without considering the effect of
the rub-rails. As a consequence, there is a “genuine issue” as to “material fact” on this issue.
29 C.F.R. § 2700.67(b)(1).
C.

The Third Element

The third element for consideration is whether the scale was equipped with berms or
guardrails that were at least mid-axle height of the largest self-propelled mobile equipment that
usually travels the roadway. Lakeview Rock Products, 2011 WL 6740384 at 3. In this case, the
rub-rails were only nine inches in height. Jt. Stip.12. The parties have stipulated that semitractors like the one pictured in Joint Exhibit 4 are the largest, self-propelled equipment that
travels the subject scale. Jt. Ex. 4; Jt. Stip. 18-20. Joint Exhibit 4 clearly shows that the rub-rails
installed are far short of the required mid-axle height.
Guardrails are only required by the safety standard if the second element discussed above is
satisfied. If the Secretary establishes at an evidentiary hearing that the drop-off is of sufficient
grade or depth to cause a vehicle to overturn or endanger persons or equipment, then the
evidence in the joint stipulations has established this third element.

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D.

Fair Notice of the Requirements of Safety Standard

In making its argument that it was not provided with fair notice that the cited standard
applied to the subject truck scale, McMurry relied on evidence that it attached to its motion. The
Secretary disputes most of this evidence. The Secretary disputes McMurry’s assertion that
during an August 2007 inspection of Crusher #3, MSHA determined that a scale equipped with a
similar rub-rail did not violate the safety standard. Sec’y Opposition at 3-4. The Secretary also
disagrees with the conclusions McMurry draws from the photograph it attached to its motion as
Exhibit F. She notes that the photograph is not authenticated in the declaration of J. David
Hornbeck or in any other document. The Secretary questions what the photograph depicts
because it does not look like a rub-rail or any other similar railing. Id.
I agree with Judge Rae’s conclusion in Knife River Corp., that the subject safety standard is
“sufficiently clear and the language is meant to apply to a variety of circumstances.” 32
FMSHRC at 915. In addition, the Secretary’s PPL, dated August 26, 2010, states that the
Secretary interprets the safety standard to include elevated truck scales. Lack of fair notice of
the applicability of a safety standard is an affirmative defense. McMurry bears the burden of
proof on this issue. Determining whether an operator lacked fair notice depends on the specific
facts at issue. The mere fact that an operator has not been previously cited for a violation of the
standard is not sufficient. I find that there appear to be genuine disputes of material fact with
respect to this notice issue and that summary decision cannot be granted.
IV. ORDER
For the reasons set forth above, the Secretary’s motion is GRANTED IN PART. I find that
the scale at Crusher #1 was a roadway as that term is used in the safety standard. I also find that,
if the Secretary is able to prove that the scale at Crusher #1 had a drop-off of sufficient grade or
depth to cause a vehicle to overturn or endanger persons or equipment, then McMurry violated
the safety standard because the scale was not equipped with a berm or guardrail that was at least
mid-axle height of the largest self-propelled mobile equipment that usually travels the roadway.
There are genuine issues of material fact as to whether the drop-off created a hazard of
overturning or endangered persons in equipment. McMurry’s motion for summary decision is
DENIED.
Unless the parties settle this case or reach further stipulations, an evidentiary hearing will be
necessary on the second element set forth in Lakeview Rock Products, as discussed above, and
on the issue whether the Secretary provided fair notice that the safety standard applies to truck
scales.
/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge

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Distribution:
Pamela Mucklow, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 800, Denver, CO 80202-5708
Joshua Schultz, Esq., Law Office of Adele Abrams, 4740 Corridor Place, Suite D, Beltsville,
MD 20705
RWM

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