NOVEMBER 2001

COMMISSION DECISIONS AND ORDERS

11-20-2001
11-26-2001
11-28-2001
11-30-2001

Concrete Materials of Montana, LLC
Carroll County Stone, Inc.
Original Sixteen to One Mine, Inc.
Sec. Labor on behalf of John Noakes
v. Gabel Stone Company
11-28-2001 Sec. Labor on behalfofWalter Jackson
v. Mountain Top Trucking, et al.

WEST 2001-413-M
CENT 2001-247-M
WEST 2000-63-M

Pg. 1209
Pg. 1213
Pg. 1217

CENT 2000-75-DM

Pg. 1222

KENT 95-613-D

Pg. 1230

PENN 2000-181-R
WEST 99-353-M

Pg. 1241
Pg. 1266

ADMINISTRATIVE LAW JUDGE DECISIONS

11-28-2001 RAG Cumberland Resources, LP
11-26-2001 Northwest Aggregates

i

NOVEMBER 2001

Review was granted in the following case during the month of November:

Secretary of Labor, MSHA v. Original Sixteen to One Mine, Inc., Docket No. WEST 2000-63-M,
etc. (Judge Zielinski, October 19, 2001)

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

ii

COMMISSION DECISIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

November 20, 2001

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2001-413-M
A.C. No. 24-02087-05502

V.

CONCRETE MATERIALS OF
MONTANA,LLC

BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty, Commissioners

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On October 16, 2001, Chief Administrative
Law Judge David F. Barbour issued an Order of Default dismissing this civil penalty proceeding
for the failure of Concrete M~erials of Montana, LLC ("Concrete Materials") to answer the
Petition for Assessment of Penalty filed by the Secretary of Labor on June 22, 2001, or the
judge's Order to Respondent to Show Cause issued on August 20, 2001. The judge assessed
civil penalties in the sum of$5,369. 1
On November 8, 2001, the Commission received from Concrete Materials a request to
vacate the judge's default order. Mot. In its request, Concrete Materials contends that it failed to
timely respond to the Secretary's penalty assessment petition and the judge's show cause order
because the relevant correspondence was sent to the wrong address. Id. It maintains that on
September·11, 2000, pursuant to 30 C.F.R. § 56.1000, it informed the Department of Labor's
Mine Safety and Heath Administration ("MSHA") that it was closing its South Boulder Grazing

1

The penalties set forth in the Secretary's Petition for Assessment of Penalty equal the
sum of$5,377.
1209

Association Pit. Id. In addition, Concrete ~.faterials contends that. on November 27, 2000, it
informed MSHA that it was opening its Medina Pit and provided the mine's new mailing
address. Id. Concrete Materials asserts that, shortly after its Medina Pit opened, the mine was
inspected and cited by MSHA. Id. It further contends that, after the inspection, all
correspondence from MSHA pertaining to the citations and the judge's show cause order were
mistakenly sent to the mailing address for its South Boulder Grazing Association Pit. Id.
Concrete Materials maintains that this mailing error caused a delay in the Medina Pit manager
receiving the relevant correspondence and, as a result, Concrete Materials failed to timely
respond to the Secretary's penalty petition and the judge's show cause order. Id. Concrete
Materials attached to its request the notices that it allegedly mailed to MSHA. Attach. 1, 2.
The judge's jurisdiction in this matter terminated when his decision was issued on
October 16, 2001. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2);
29 C.F.R. § 2700.70(a). We deem Concrete Materials' request to be a timely filed petition for
discretionary review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130
(Sept. 1988).
We have observed that default is a harsh remedy and that, if the defaulting party can make
a showing of adequate or good cause for a failure to respond to an order, the failure may be
excused and proceedings on the merits permitted. Mohave Concrete & Materials, Inc., 8
FMSHRC 1646, 1647 (Nov. 1986). On the basis of the present record, we are unable to evaluate
the merits of Concrete Materials' position. In particular, we note that, while Concrete Materials
maintains that its Medina Pit was cited by MSHA, the relevant citations identify the cited mine as
the South Boulder Grazing Association Pit. Because of this confusion in the record, and in the
interest of justice, we vacate the default order and remand this matter to the judge, who shall
determine whether relief from default is warranted. See San Juan Coal Co., 23 FMSHRC 800,
801-03 (Aug. 2001) (vacating default and remanding to judge where operator did not answer
Secretary's petition or judge's show cause order because MSHA allegedly failed to send the

1210

documents to the designated company official); Agronics Inc., 21 FMSHRC 475, 475-77 (May
1999) (vacating default and remanding to judge where operator Claimed it did not answer
Secretary's petition or judge's show cause order because documents were allegedly sent to wrong
company official). If the judge determines that relief is appropriate, the case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Chai

I

I

Robert H. Beatty, Jr ., Conunissioner

1211

Distribution
Jeb S. Fischer, Safety Director
Concrete Materials of Montana, LLC
219 Lake Drive
Bozeman, MT 59718
W. Christian Schum~. Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
John Rainwater, Esq.
Office of the Solicitor
U.S. Department of Labor
P.O. Box 46550
Denver, CO 80201-6550
Chief Administrative Law Judge David Barbour
Federal Mine Safety and Health Review Commission
1730 K Street, Suite 600
Washington, D.C. 20006

1212

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

November 26, 2001

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2001-247-M
A.C. No. 03-01232-05523

v.
CARROLL COUNTY STONE, INC.

BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty, Commissioners

ORDER
BY: Jordan and Beatty, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On October 17, 2001, Chief Administrative
Law Judge David F. Barbour issued an Order of Default dismissing this civil penalty proceeding
for the failure of Carroll County Stone, Inc. ("Carroll County Stone") to answer the Petition for
Assessment of Penalty filed by the Secretary of Labor on June 25, 2001, or the judge' s Order to
Respondent to Show Cause issued on August 14, 2001. The judge assessed a civil penalty of
$122 proposed by the Secretary.
On October 30, 2001, the Commission received from Randall Bailey, president of Carroll
County Stone, a request to vacate the judge' s default ~rder. Mot. Bailey, apparently proceeding
without counsel, asserts that, after receiving the penalty assessment petition, he was contacted by
Goldie Smith1 about the possibility of settling the case. Id. Bailey maintains that after he
explained his company's position to Smith, she said she would investigate the matter and get
back to him. Id. Bailey states that Smith did not subsequently contact him. Id.

1

The record indicates that Smith is a paralegal with the Department of Labor. Sec'y Pet.
for Assessment of Penalty at 3.
1213

The judge's jurisdiction in this matter terminated when his decision was issued on
October 17, 2001. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823{d)(2);
29 C.F.R. § 2700.70(a). We deem Carroll County Stone's request to be a timely filed petition for
discretionary review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130
(Sept. 1988). .
We have obseryed that default is a harsh remedy and that, if the defaulting party can make
a showing of adequate or good cause for a failure to respond to an order, the failure may be
excused and proceedings on the merits permitted. Mohave Concrete & Materials, Inc., 8
FMSHRC 1646, 1647 (Nov. 1986). On the basis of the present record, we are unable to evaluate
the merits of Carroll County Stone's position. In particular, it is unclear from the record how the
alleged communication with the Dep·artment of Labor about possible settlement terms would
excuse the operator from its requirement to timely respond to the penalty assessment petition and
the judge's show cause order. Thus, in the interest of justice, we vacate the default order and
remand this matter to the judge, who shall determine whether relief from default is warranted.
See Cent. Mountain Materials, 23 FMSHRC 907, 908-09 (Sept. 2001) (vacating default and
remanding to judge where pro se operator may have mistakenly believed that, having returned
green card, it was not required to answer Secretary's petition); Gen. Rd. Trucking Corp., 17
FMSHRC 2165, 2165-66 (Dec. 1995) (vacating default and remanding where prose operator
apparently confused about Commission's procedural rules). If the judge determines that relief is
appropriate, the case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

Robert H. Beatty, Jr., Commissio er

1214

Chairman Verheggen and Commissioner Riley, concurring in result:
We would grant the request for relief made here by Carroll County Stone, Inc. It is a
matter of record that the company returned the green card in this matter, and we find it had ample
grounds to delay filing an answer. We also note that the company is appearing pro se, and that
the Commission has always held the pleadings of pro se litigants to less stringent standards than
pleadings drafted by attorneys. See Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992)
(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Therefore, we disagree with our colleagues'
conclusion that the merits of Carroll County Stone's position cannot be evaluated. Slip op. at 2.
Nevertheless, in order to avoid the effect of an evenly divided decision, we join our
colleagues in remanding the case. See Pa. Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990),
ajf'd on other grounds, 969 F.2d 1501 (3d Cir. 1992) (providing that the effect of a split
Commission decision is to leave standing the disposition from which relief has been sought).

Theodore f. Verheggen, Chai

James c. Riley, Commissioner

1215

Distribution
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Janice H. Mountford, Esq.
Office of the Solicitor
U.S. Department of Labor
525 South Griffin St., Suite 50 I
Dallas, TX 75202
Randall D. Bailey, President
Carroll County Stone, Inc.
P.O. Box430
Republic, MO 65738
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1216

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006

November 28, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. WEST 2000-63-M
2000-78-M
2000-195-M

ORIGINAL SIXTEEN
to ONE MINE, INC.

BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty, Commissioners

DIRECTION FOR REVIEW AND ORDER

BY: Verheggen, Chairman; Riley and Beatty, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On November 26, 2001, the Commission
received via facsimile from Original Sixteen to One Mine, Inc. ("Original Sixteen") a letter
challenging the decision issued on October 19, 2001 by Administrative Law Judge Michael
Zielinski. In his decision, Judge Zielinski in part vacated and/or dismissed, affirmed, and
approved the settlement of various citations alleging violations of mandatory safety standards.
23 FMSHRC 1158 (Oct. 2001) (ALJ).
The judge's jurisdiction in this matter terminated when his decision was issued on
October 19, 2001. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). In accordance with the Commission' s procedural rules, the filing of a petition for
discretionary review is effective upon receipt, and may be made by facsimile. 29 C.F.R.
§§ 2700.S(d), 2700.70(a). Rule 70(d) also requires that in a petition for discretionary review,
"[eJach iss~e shall be separately numbered and plainly and concisely stated, and shall be
supported by detailed citations to the record, when assignments of error are based on the record,
and by statutes, regulations, or other principal authorities relied upon." 29 C.F.R. § 2700.?0(d);
see also 30 U.S.C. § 823(d)(2)(A)(iii). If the Commission does not direct review within 40 days
of a decision's issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l ).

1217

In its letter, Original Sixteen "petitions for review" of the judge's decision, sets forth
general grounds for requesting the review, and requests an extension of time to file necessary
documentation. Letter from Original Sixteen to Commission of 11/26/01, at I- 2. Original
Sixteen explains that this case involves its first hearing and appeal and that it is unfamiliar with
Commission procedure; that personnel instrumental in the preparation of appropriate
documentation, including its president and corporate manager, have been unavailable after
issuance of the judge's decision; and that its response time has been decreased due to delays in
mail service occurring after September 11, 2001. We construe Original Sixteen's letter as a
request to accept its late-filed petition for discretionary review. See generally Kelley Trucking
Co., 8 FMSHRC 1867, 1868 (Dec. 1986) (construing request for hearing as a request for relief
from final order incorporating by implication a late-filed petition).
Original Sixteen filed its petition with the Commission on November 26, 2001, eight days
past the 30-day deadline, but within the 40-day time period during which the Commission retains
jurisdiction. Its petition also fails to meet the requirements of Rule 70(d). The Commission,
however, has always held the pleadings of prose litigants to less stringent standards than
pleadings drafted by attorneys. Rostosky Coal Co., 21FMSHRC1071, 1072 (Oct. 1999), citing
Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992); Dykhoff, Jr. v. US. Borax Inc., 21
FMSHRC 1279, 1280 (Dec. 1999). The Commission has also entertained late-filed petitions for
discretionary review where good cause has been shown. See, e.g., McCoy v. Crescent Coal Co.,
2 FMSHRC 1202, 1204 (June 1980) (finding good cause where counsel for previously pro se
complainant only obtained judge's decision 10 days prior to deadline for filing petition, and
mailed petition on 30th day). In keeping with these principles, we conclude that Original
Sixteen, which is not represented by counsel, has shown good cause for its late filing. See
generally Dykhoff, 21 FMSHRC at 1280 (reconsidering previous order denying late-filed petition
where pro se miner provided explanation of unfamiliarity with Commission procedure in motion
for reconsideration).
Additionally, in the interests ofjustice, we conclude that Original Sixteen be afforded the
opportunity to conform its petition to the requirements of the Mine Act and our Procedural Rules.
See Rostosky, 21 FMSHRGat 1072-73. Therefore, upon consideration of Original Sixteen's
petition, it is hereby granted for the limited purpose of affording Original Sixteen an opportunity
to amend its petition to comply with the requirements of section 113(d)(2)(A)(iii) of the Mine
Act, 30 U.S.C. § 823(d)(2)(A)(iii), and Commission Procedural Rule 70(d), 29 C.F.R.
§ 2700.70(d).

1218

Original Sixteen must file any amended petition with the Commission, with service upon
the Secretary of Labor, within 20 days. The Secretary may file an opposition to the amended
petition within l 0 days after service.

Theodore F. Verheggen, Chai

-- ·

-

/~/
Robert H. Beatty, Jr., Commissiooer

1219

Commissioner Jordan, dissenting:
Original Sixteen has failed to show good cause as to why its petition for discretionary
review was filed eight days past the 30-day statutory time limit. Consequently, I would deny the
petition as untimely.
Original Sixteen claims that slow mail delivery "due to the events of September 11,
2001" provided "short notice of response time." However, the Commission's docket office has
verified that the October 19 decision was received by the operator on October 26, putting it on
notice as of that date that any petition would have to be received at the Commission by the
November 19 deadline. See Duval Corp. v. Donovan, 650 F.2d 1051 (9th Cir. 1981) (upholding
Commission's denial of petition for reconsideration of dismissal of petition received 31 days
after issue of the ALJ's decision when operator argued that it did not receive decision until six
days after it was mailed).
Original Sixteen also claims that its "President was out of town on business ... shortly
after receiving the decision." Similarly, it states that its corporate manager, who, it asserts,
played an important role in preparation ofMSHA-related paperwork, was out of the office due to
surgery. These vague allegations, even if assumed to be true, do not, in my view provide good
cause as to why Original Sixteen was unable to comply with the 30-day statutory time limit.
Indeed, in neither case are we provided with information about the length of the absence; we do
not know whether the company officials were away for one day or one month.
Although I am mindful of the difficulty encountered by pro se litigants, good cause must
still be shown when a petitioner seeks review of a judge's decision beyond the 30-day statutory
time limit. In this case I would, for the foregoing reasons, deny the petition.

1220

Distribution
Michael M. Miller, President
Original Sixteen to One Mine, Inc.
P.O. Box 1621
Alleghany, CA 95910
Christopher B. Wilkinson, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson St., Suite 1110
San Francisco, CA 94105
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Michael Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1221

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

November 30, 2001
SECRETARY OF LABOR,
MINE SAFETY ANP HEALTH
ADMINISTRATION (MSHA),
on behalf of JOHN NOAKES

v.

Docket No. CENT 2000-75-DM

GABEL STONE COMPANY

BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty, Commissioners

DECISION
BY THE COMMISSION:
In this discrimination case, arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), brought by the Secretary of Labor on
behalf of John Noakes against Gabel Stone Company, Inc. ("Gabel Stone"), Administrative Law
Judge T. Todd Hodgdon awarded back pay to Noakes for Gabel Stone's discrimination against
Noakes. 22 FMSHRC 1160 (Sep. 2000) (ALJ); 23 FMSHRC 171 (Feb. 2001) (AU). The
Commission granted Gabel Stone's petition for discretionary review, but only on the issues of the
mitigation ofNoake~' dam~ges and the amount of the back pay award. Direction for Review
dated March 20, 2001. For the reasons that follow, we affirm the judge's decision as to those
issues.

I.
Factual and Procedural Background
Noakes, a loader operator earning $7.00 per hour, was discharged by Gabel Stone in
December 1998. 22 FMSHRC at 1161; 23 FMSHRC at 175. Immediately after his termination,
Noakes applied for and received unemployment compensation and food stamp benefits through
separate state agencies. Tr. 108-09; S. Penalty Br., Noakes Aff. at 1-2, ifif2-3. Each agency had

1222

job search requirements that Noakes fulfilled. Noakes Aff. at 1-2, i!i/2-3. In addition, he applied
for work through temporary employment agencies. Id. at 2, i!4;'Tr. 216.
In January of 1999, Noakes also began taking classes during evening hours at Southwest
Missouri State University in West Plains, Missouri, towards an associate's degree in computer
science, with the idea of eventually obtaining a bachelor's degree. 23 FMSHRC at 175; Tr. 4648. On February 2, 1999, Noakes obtained a weekend position with Town Square Internet in ·
West Plains, and became a full-time Internet Technician there in June 1999. Tr. 106.
Noakes' discrimination complaint against Gabel Stone was filed on December 14, 1998,
with the Department of Labor's Mine Safety and Health Administration. 22 FMSHRC at 1161.
After a hearing, the judge determined that Noakes' discharge was discriminatory and therefore
violated section 105(c)(1) of the Mine Act. 1 Id. at 1163-67. Though the judge ordered the
parties to confer regarding the back pay due Noakes and the civil penalty to be assessed, they
failed to agree on those issues and subsequently briefed their respective positions. Id. at 116768; 23 FMSHRC at 172.2 In his supplemental decision and final order, the judge rejected Gabel
Stone's claim that Noakes did not present any evidence that he _looked for work to mitigate his
damages. 23 FMSHRC at 174. The judge held that Gabel Stone had failed to carry its burden of
demonstrating that Noakes did not make a reasonable job search, and found that, in any event,
Noakes' affidavit established that he did make a reasonable effort to find, and in fact eventually
found, another job. Id. at 174-75.

1

Section 105(c)(l) provides in part:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights of any
miner ... because such miner . .. has filed or made a complaint
under or related to·[the Act], including a complaint notifying the
operator . .. ofan alleged danger or safety or health violation in a
coal or other mine, ... or because of the exercise by such miner ...
of any statutory right afforded by [the Act].

30 U.S.C. § 815(c)(l).
2

The Secretary attached to her brief an affidavit from Noakes providing details of his
attempts to find work after his discharge. Id. at 173. Gabel Stone filed a motion to strike the
affidavit, which the judge attempted to resolve by having the parties depose Noakes, so that
Gabel Stone would have the opportunity to cross-examine him on the affidavit. Id. at 172-73.
The deposition was never held, however, as Gabel Stone refused to depose Noakes unless the
judge issued all seven of the subpoenas it sought. Id. at 173. The judge refused as to all but two
of the subpoenas, on the ground that the documents already provided to Gabel Stone by the
Secretary clearly indicated that nothing else was available. Id.
1223

The judge also found that Noakes' enrollment in college in January of 1999 was not
sufficient to show, by itself, that Noakes had removed himself from the job market. Id. at 175.
The judge was persuaded by the fact that all of Noakes' classes were at night, and that Noakes,
while taking classes, obtained a part-time day job that eventually blossomed into a full-time job.
Id. The judge concluded that Noakes was entitled to $9,157.60 in back pay, which was the
amount of earnings Noakes lost from the time of his discharge until he secured full-time
employment, less any interim earnings, plus interest. Id. at 176-77. The judge also assessed a
$5,000 civil penalty against Gabel Stone. Id. at 177-79.

II.
Disposition
The scope of the Commission's review of a judge's remedial order, such as a back pay
determination, is one of abuse of discretion. See Secy ofLabor on behalfofReike v. Akzo Nobel
Salt Inc., 19 FMSHRC 1254, 1257-58 (July 1997); see also Miller v. Marsh, 766 F.2d 490, 492
(11th Cir. 1985) (applying standar.d to determination that discriminatee, as full-time student, was
not ready, willing, and available for alternative employment and thus failed to mitigate her
damages). "Abuse of discretion may be found when 'there is no evidence to support the decision
or if the decision is based on an improper understanding of the law."' Reike, 19 FMSHRC at
1258 n.3 (quoting Mingo Logan Coal Co., 19 FMSHRC 246, 249-50 n.5 (Feb. 1997)).
With respect to back pay, the Commission has recognized that, while it "is ordinarily the
sum equal to gross pay the employee would have earned but for the discrimination less his actual
net interim earnings" a discriminatee's award of "back pay may be reduced in appropriate
circumstances where an employee incurs a 'willful loss of earnings."' Secy ofLabor on behalf
ofDunmire v. N Coal Co., 4 FMSHRC 126, 144 (Feb. 1982) (quoting Oil, Chem. &Atomic
Workers Int'! Union v. NLRB, 547 F.2d 598, 602-03 (D.C. Cir. 1976), cert. denied, 429 U.S.
1078 (1977)); see also Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197-98 (1941) ("[s]ince only
actual losses should be made good, its seems fair that deductions should be made not only for
actual earnings by the worker but also for losses which he wilfully incurred."). Pursuant to the
duty to mitigate damages from discrimination,
a discriminatee is not entitled to back pay to the extent that he fails
to remain in the labor market, refuses to accept substantially
equivalent employment, fails diligently to search for alternative
work, or voluntarily quits without good reason.

In order to be entitled to back pay, an employee must at
least make reasonable efforts to find new employment ....
However, ... [the employee is] held ... only to reasonable
1224

exertions in this regard, not the highest standard of diligence.
[T]he principle of mitigation does not require success; it only
requires an honest good faith effort .. ..

NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1317-18 (D.C. Cir. 1972) (citations omitted)
(alterations and emphasis in original) (cited with approval in Ford Motor Co. v. EEOC, 458 U.S.
219, 231 n.16 (1982));3 see also Metric Constructors, 6 FMSHRC at 231-33 (applying
"reasonable efforts" standard to mitigation efforts of four discriminatees).
Failure to mitigate damages is an affirmative defense, and the burden of proving it is
therefore on the operator. See NLRB v. Laredo Packing Co., 730 F.2d 405, 407 (5th Cir. 1984);
Hanna v. Am. Motors Corp., 724 F.2d 1300, 1307 (7th Cir.), cert. denied, 467 U.S. 1241 (1984);
Metric Constructors, 6 FMSHRC at 233; Secretary ofLabor on behalfofJackson v. Mountain
Top Trucking Co., 21FMSHRC1207, 1214 (Nov. 1999). The determination of whether the duty
to mitigate has been met "is made on the basis of the factual background peculiar to each case."
Metric Constructors, 6 FMSHRC at 232.
We have rejected a per se rule that an operator meets its burden simply by showing that _
the complainant attended college during the back pay period. Jackson, 21 FMSHRC at 1214.
We emphasized in Jackson that a complainant's "status as a college student does not necessarily
mean that he must be found to have failed to mitigate his damages during the time he was
enrolled in college." Id. Instead, we have held that to mitigate his damages, a discrimination
complainant attending college is still expected to search for work and quit school if work
becomes available. Id.4

3

"Because the Mine Act's provisions for remedying discrimination are modeled largely
upon the National Labor Relations Act, [the Commission] ha[s] sought guidance from settled
cases implementing that Act in fashioning the contours within which a judge may exercise his
discretion in awarding back pay." Metric Constructors, Inc., 6 FMSHRC 226, 231 (Feb: 1984),
aff'd, 766 F.2d 469 (11.th Cir.) 985). The NLRB continues to apply the same mitigation
standard. See, e.g., Atl. Limousine, Inc. v. NLRB, 243 F.3d 711, 721 (3rd Cir. 2001).
4

Similarly, under other federal discrimination statutes where the employer bears the
burden of proving a failure to mitigate on the part of the discriminatorily discharged employee,
the discriminatee's attendance at school during the back pay period does not automatically
establish that the employee failed to mitigate his damages during the time he was in school. See,
e.g., Miller v. AT&T Corp., 250 F.3d 820, 838-39 (4th Cir. 2001) (Family and Medical Leave
Act); Dailey v. Societe Generate, 108 F.3d 451, 456-57 (2d Cir. 1997) (Title :VII); Hanna, 724
F.2d at 1307-09 (employer's reliance solely on Title VII discriminatee's college attendance to
establish a failure to mitigate rejected). "Rather, the central question ... is 'whether an
individual's furtherance of his education is inconsistent with his responsibility to use reasonable
diligence in finding other suitable employment."' Dailey, 108 F.3d at 456-57 (quoting EEOC v.
Local 638, 674 F. Supp. 91, 104 (S.D.N.Y. 1987)). A discriminatee who ceases her job search
1225

Here, Gable Stone argues that Noakes's college attendance, by itself, established he had
removed himself from the job market and thus failed to mitigate his damages. GSC Br. at 16.
But, as our holding in Jackson set forth above makes clear, this argument must fail. As a
threshold matter, we thus conclude that the judge did not abuse his discretion in rejecting this
argument made by Gable Stone.
On the issue ofNoakes's diligence in searching for substitute employment, the judge
credited Noakes' state:111ents regarding his employment search both in his affidavit5 and in two
state employment agency documents, copies of which had been submitted by Gabel Stone. 23
FMSHRC at 174-75. In his affidavit, Noakes states that he was required, in order to qualify for
unemployment benefits, to engage in at least two employment inquiries each week, and that he
consistently met or exceeded that standard. Noakes Aff. at 1, ~2. Noakes also set forth how he
was required, in order to qualify for food stamps, to register with a "work search organization,"
and that he sought employment through temporary employment agencies and "network[ ed]
through friends and family." Id. at 2, ~3. In the state unemployment agency documents, Noakes
specified the potential employers he had contacted the preceding week. Resp't Ex. 76, 77.
A judge's credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992);
Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). We see no reason to overturn the
judge's cre~iting of Noakes with respect to his job search efforts. Consequently, the evidence
supports the judge's determination that Gable Stone did not carry its burden of showing that
Noakes failed to adequately search for a job. See Sprogis v. United Air Lines, Inc., 517 F.2d 387,
392-93 (7th Cir. 1975) (rejecting failure-to-mitigate claim where employer failed to show that
discriminatee's job search did not include steps reasonable person would take in pursuing
employment, and discriminatee was credited regarding extent of her search).
We also reject Gabel Stone's contention that Noakes failed to show that he diligently
searched for a job between his termination and the January time period covered by his statements
to the state employment agency. GSC Br. at 19, 21. As discussed, Gabel Stone is mistaken
regarding the burden of proof in this instance. In addition, the judge determined that Noakes was
.

-

and attends school after diligent efforts have proven fruitless will not necessarily be found to
have failed to mitigate her damages. See, e.g, Dailey, 108 F.3d at 457.
5

We find unavailing Gable Stone's argument that the judge improperly accepted the
Noakes affidavit. See GSC Br. at 19. After the liability phase of the proceedings below, the
judge pr~perly directed the parties to confer regarding back pay (22 FMSHRC at 1167-68), and
when the parties could not reach any agreement on the issue, properly conducted further
proceedings, which included the filing of the Noakes affidavit by the Secretary. See 23
FMSHRC at 172-73. Gable Stone is hardly in a position to raise the propriety of the affidavit in
light of the fact that the company failed to fully avail itself of the opportunity afforded it by the
judge to cross examine Noakes on his affidavit in a deposition. Id.
1226

diligent in his search for full-time employment (23 FMSHRC at' 174), and the judge's crediting
of Noakes' affidavit is more than enough evidence to support the judge's determination. While
Gabel argues that state employment agency documents it submitted do not address the efforts
Noakes made in the first month or so after his termination, Noakes' affidavit - credited by the
judge as a "convincing[] demonstrat[ion] that [Noakes] made a reasonable effort to find" another
job -does not support Gable Stone's suggestion that Noakes waited a month before beginning
his job search efforts. Se.e id.; Noakes Aff. at 1-2, iJi!2-4.
The evidence also supports the judge's finding that the question whether Noakes would
have chosen a full-time position over school is irrelevant in this case, given that Noakes' classes
were held between 5:30 and 8:30 p.m. 23 FMSHRC at 175. This time period did not conflict
with the 6:00 a.m. to 5:30 p.m. time period Noakes was required by state law to be available for
work in order to qualify for the unemployment benefits. Noakes Aff. at 2 iJ5; see Nord v. US.
Steel Corp., 758 F.2d 1462, 1471 (11th Cir. 1985) (evidence showed that discriminatee's college
attendance did not preclude her from holding down a full-time job); see also Washington v.
Kroger Co., 671F.2d1072, 1079 (8th Cir. 1982) (recognizing that full-time college student can,
by attending classes at night, be full-time employee during the day, and that in such an instance
discriminatee should not be held to have failed to mitigate damages).
Gable Stone also points out that, in the two state employment agency documents, Noakes
declared that he would not have quit school to accept a full-time position that conflicted with his
class schedule at night. GSC Br. at 18. However, the judge correctly held that Noakes'
statements must be understood in the context in which they were provided: he was attending
school in the evening, and had been discharged from a full-time day position. 22 FMSHRC at
175. The statements do not support the notion that Noakes intended that his college attendance
preclude him from working full time, and indeed in each statement Noakes describes his
availability and active search for a full-time day position. Resp't Ex. 76, 77.
Finally, as for whether the statements made by Noakes to the state employment agency
that he would only acc~pt a d~y position that paid at least $6.00 per hour establish that Noakes
unreasonably restricted his job search, Gable Stone did not raise this issue to the judge when it
had the opportunity to do so in response to the judge's request for the parties' positions on back
pay. See GSC Supplemental Br. to ALJ. Section l 13(d)(2)(A)(iii) of the Mine Act provides that
"[e]xcept for good cause shown, no assignment of error by any party shall rely on any question of
fact or law upon which the administrative law judge had not been afforded an opportunity to
pass." 30 U.S.C. 823(d)(2)(A)(iii); accord 29 C.F.R. 2700.70(d). See Shamrock Coal Co., 14
FMSHRC 1300, 1304 (Aug. 1992); Shamrock Coal Co., 14 FMSHRC 1306, 1312-14 (Aug.
1992); Beech Fork Processing, Inc., 14 FMSHRC 1316, 1321 (Aug. 1992). In the absence of an
explanation from Gable Stone why it failed to raise this issue before the judge, we cannot find
good cause to consider Gabel Stone's arguments on the issue.

1227

m.
Conclusion
For the foregoing reasons, we affirm the judge's decision on back pay and mitigation of
.damages.

Theodore F. Verheggen, Chai

Robert H. Beatty, Jr., Commissioner

1228

Distribution
Jason N. Shaffer, Esq.
Donald W. Jones, Esq.
Hulston, Jones, Marsh & Shaffer
2060 East Sunshine
Springfield, MO 65804
Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1229

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

November 28, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of WALTER JACKSON
v.

Docket No. KENT 95-613-D

MOUNTAIN TOP TRUCKING
COMPANY, INC., ELMO MAYES,
WILLIAM DAVID RILEY, ANTHONY
CURTIS MAYES, and MAYES
TRUCKING COMPANY, INC.

BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty, Commissioners

DECISION
BY THE COMMISSION:

In this discrimination proceeding, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. §.801 e~-seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge Jerold
Feldman issued a second Decision on Remand setting the back pay owed Complainant Walter
Jackson for his discriminatory discharge by Mountain Top Trucking Company ("Mountain
Top"), Mayes Trucking Company, Elmo Mayes, and Anthony Curtis Mayes (collectively the
"operators"). 22 FMSHRC 1391 (Dec. 2000) (ALJ). The Commission granted Jackson's
petition for discretionary review ("PDR") challenging the judge's decision. 1 For the reasons that
follow, the judge's decision is affirmed in result.

1

The Secretary of Labor, who originally filed and presented the case on Jackson's behalf
up through the second remand to the judge, neither requested review of the judge's decision nor
filed a brief with the Commission. In addition to the representation provided by the Secretary,
Jackson has been represented by private counsel throughout this case.
1230

I.
Factual and Procedural Background
This is the third time the question of the back pay due Jackson has been before the
Commission.2 Following an evidentiary hearing, the judge determined that the operators'
February 1995 dischargy of Jackson from his position as a truck driver with Mountain Top was
discriminatory and thus violated section 105(c)(1) of the Mine Act. 3 Sec '.Y ofLabor on behalfof
Bowling v. Mountain Top Trucking Co., 19 FMSHRC 166, 181-86 (Jan. 1997) (ALJ). The judge
subsequently held that Jackson's failure to attempt to reopen his temporary reinstatement
application after his layoff from alternative employment he had obtained with Cumberland Mine
Services ("Cumberland") constituted a failure to mitigate damages, and consequently awarded
him back pay only through December 9, 1995, which was 60 days after Jackson's layoff from
Cumberland. 19 FMSHRC 875, 880-83(May1997) (ALJ). On review, the Commission
reversed the judge's failure-to-mitigate determination on the ground that the Mine Act does not
require a discriminatee to seek temporary reinstatement. 21FMSHRC265, 284-85 (Mar. 1999)
(Jackson I).

In his first remand decision on the back pay due Jackson, the judge found that, in the
record originally before him and the Commission, Jackson had not revealed his college
attendance during approximately 3 months of the 16-month back pay period. 21FMSHRC913,
917-18 (Aug. 1999) (ALJ). The judge concluded that Jackson's college attendance was relevant
evidence that should be considered on the mitigation issue, but felt constrained from addressing
it by the limits placed on him by the Commission's remand decision. Id. at 918. Consequently,
the judge awarded Jackson net back pay for the full back pay period, a total of$32,642.00 plus
interest. Id. at 918-19.

2

The history o_f this P._toceeding is recounted in greater detail in Sec '.Y ofLabor on behalf
ofJackson v. Mountain Top Trucking Co., 21FMSHRC1207, 1208-11(Nov.1999) (Jackson II).
3

Section 105(c)(l) provides in part:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights of any
miner ... because such miner . . . has filed or made a complaint
under or related to [the Act], including a complaint notifying the
operator ... of an alleged danger or safety or health violation in a
coal or other mine, ... or because of the exercise by such miner ...
of any statutory right afforded by [the Act].

30 U.S.C. § 815(c)(l).
1231

In reviewing the judge's first remand deci~ion, we agreed that there were legitimate
outstanding issues regarding the extent to which Jackson·was available to work during the back
pay period, including whether Jackson had removed himself from the job market during the time
he attended college. Jackson II, 21 FMSHRC at 1213-14. Consequently, we again remanded the
case to the judge, with instrnctions to reconcile conflicting evidence on those issues and make
credibility resolutions where necessary. Id. at 1214-15.

On the second remand, the judge held a 1-day hearing to take further evidence on
Jackson's efforts to find employment during the back p_ay period, whether he suffered from any
physical impairment during the period that interfered with his ability to work, and the impact, if
any, of his college attendance on his availability for full-time employment. 22 FMSHRC at
1393. At the hearing, Jackson explained that, after losing.his·position with Mountain Top in
February 1995 and being unable to find substitute employment, he enrolled in July 1995 for the
upcoming fall semester at Union College in Barboursville, Ken~cky, approximately 70 miles
from his home. Id. at 1397; Tr. 27-33, 63-64. Jackspn, who had previm~sly obtained an
Associate of Arts degree, had the ultimate goal of teaching math or science in junior or senior
high school. 22 FMSHRC at 1397. Jackson's class schedule required him to attend classes
throughout the day and well into the night on Tuesdays and Thursdays. Id.; Tr. 56.
The evidence regarding Jackson's efforts to find full-time work while he was enrolled in
college was all provided by him. Before he began classes in late August 1995, Jackson started
working full-time as a general laborer with Cumberland. 22 FMSHRC at 1397. Once his classes
began, Jackson at first worked around his class schedule to put in 40 or more hours per week, but
was working less than 40 hours per week when he was laid off from Cumberland in early
October. Id. at 1397-98; CompI. Ex. 1. The only other work Jackson obtained between that time
and fall 1996 was a week-long position in December 1995 with a Cumberland affiliate, the
Garland Company. 22 FMSHRC at 1401; Tr. 37-42,
Contemporaneous evidence of Jackson's job search efforts after his layoff from
Cumberland consists of copies of the completed forms for the period October 1995 to January
1996 that he was obligated-to submit every 2 weeks to receive unemployment benefits from the
Virginia Employment Commission (''VEC"). 22 FMSHRC at 1398-99; Tr. 32-33; Compl. Ex. 3.
Each form listed a single employment "contact" Jackson had made each MQnday, Wednesday,
and Friday he was not working during that time period, for a total of 38 contacts. 22 FMSHRC
at 1399; Tr. 55-56; Compl. Ex. 3.
To shorten his commute and reduce associated expenses, in January 1996 Jackson
transferred from Union College to Southeast Community College ("SCC") in Cumberland,
Kentucky, for the semester that ended in May 1996. Tr. 66-67, 79-83. After January 1996,
Jackson's eligibility for unemployment compensation ceased, so he had no copies of completed
unemployment benefits forms to submit as evidence. Tr. 237-38. For the period after January
1996, Jackson testified that he continued looking for work at the places he had applied to
previously. Tr. 83-84.
1232
·,

.

'

With regard to both Union College and SCC, Jackson testified he would have left school
if necessary to take a full-time position. Tr. 66, 70, 84. He also testified to using the services
provided by the Kentucky Unemployment Insurance Office ("KUIO"), and investigating
employment possibilities to which it referred him. Tr. 57-58. Jackson eventually obtained two
successive positions in late 1996 due to KUIO referrals, the latter of which he still held in
September 2000, at the time of the hearing. Tr. 25-27, 58-63.

In his subsequent decision, the judge initially indicated that he expected Jackson to show
that, having enrolled in ~ollege, he continued looking for a full-time job and would have quit
school if necessary to obtain one. 22 FMSHRC at 1397. After finding that the evidence
presented by Jackson was insufficient to demonstrate that, the judge then addressed the issue
specified by the Commission on remand, which the judge expressed as "the impact of Jackson's
college attendance on his availability for employment." Id. at 1399. The judge rejected
Jackson's assertion that he would have left college for a full-time job, determining that the
weight of the evidence was to the contrary. Id. at 1401. Consequently, the judge concluded that
the back pay period should not include the time during which Jackson was enrolled in college,
and accordingly reduced the net back pay amount the operators owe Jackson to $16,515 .40, plus
interest. Id. at 1402-03.
II.

Disposition
The scope of the Commission's review of a judge's remedial order, such as a back pay
determination, is one of abuse of discretion. See Sec '.Y ofLabor on behalfofReike v. Akzo Nobel
Salt Inc., 19 FMSHRC 1254, 1257-58(July1997); see also Miller v. Marsh, 766 F.2d 490, 492
(11th Cir. 1985) (applying standard to determination that discriminatee, as full-time student, was
not ready, willing, and available for alternative employment and thus failed to mitigate her
damages). "Abuse of discretion may be found when 'there is no evidence to support the decision
or if the decision is based on an improper understanding of the law."' Reike, 19 FMSHRC at
1258 n.3 (quoting Mingo Logan Coal Co., 19 FMSHRC 246, 249-50 n.5 (Feb. 1997)).
The Commission has previously held, including more than once in this proceeding, that
"[t]he operator bears the burden of proof with respect to willful loss" of earnings by a
discriminatee seeking back pay. Metric Constructors, Inc., 6 FMSHRC 226, 233 (Feb. 1984)
(citing Oil, Chem. & Atomic Workers Int'/ Union v. NLRB, 547 F.2d 598, 602-03 (D.C. Cir.
1976), cert. denied, 429 U.S. 1078 (1977)), aff'd 766 F.2d 469 (11th Cir. 1985);4 see also
Jackson I, 21 FMSHRC at 284-85. With regard to college attendance, in Jackson !!the

4

"Because the Mine Act's provisions for remedying discrimination are modeled largely
upon the National Labor Relations Act, [the Commission] ha[s] sought guidance from settled
cases implementing that Act in fashioning the contours within which a judge may exercise his
discretion in awarding back pay." Metric Constructors, 6 FMSHRC at 231. The NLRB
continues to require an employer to show that the employee failed to mitigate his damages. See,
e.g., At/. Limousine, Inc. v. NLRB, 243 F.3d 711, 721 (3rd Cir. 2001).
1233

Commission stated that "[t]he burden of proof is on the operators to show that [Jackson] either
did not seek [full-time] employment [during the time he was enrolled in college], or would not
have quit college ifit had become available." 21 FMSHRC at 1214 (citing Brady v. Thurston
Motor Lines, Inc., 753 F.2d 1269, 1274 (4th Cir. 1985)).
· Despite that clear statement, the judge stated that it was sufficient that the operators here
came "forward with eyidence of Jackson's college attendance" for "the burden [to] shift[] to
Jackson to demonstrate that he was ready, willing and able to work, and actively looking for fulltime employment during the back pay period." 22 FMSHRC at 1397. The judge erred in
describing the operator's burden to show a failure to mitigate, particularly as to what must be
shown regarding the impact of a discriminatee's enrollment in school. We plainly stated in
Jackson II that "Jackson's status as a college student does not necessarily mean that he must be
found to have failed to mitigate his damages during the time he was enrolled in college." 21
FMSHRC at 1214.
This clearly means that something more than the mere evidence of college attendance is
necessary to decide the issue in favor of the operators. In Jackson II we required the operators to
additionally establish that either Jackson did not seek full-time employment while in college or
would not have quit college to accept a full-time position. Id. Moreover, a review of the case
law applying the burden of proof we articulated in Jackson II shows that courts look to the
circumstances surrounding the discriminatee's school attendance and availability for full-time
employment. For instance, in Miller v. Marsh, the court took into account evidence that the
discriminatee's commitment to attend law school was unequivocal, which was indicated by,
among other things, her resignation from her alternative employment upon entering school. 766
F.2d at 492. The judge here was therefore mistaken in believing that the operators had no way of
showing that Jackson did not make reasonable efforts to find full-time work while in school, or
would not have quit school to accept a full-time position.
In addition, courts have rejected the notion that the employer meets its burden of proof
simply by establish~g that~he discriminatee's school attendance potentially conflicts with the
ability to hold a full-time job. See Hanna v. Am. Motors Corp., 724 F.2d 1300, 1307-09 (7th
Cir.), cert. denied, 467 U.S. 1241 (1984). In the context of other federal discrimination statutes,
courts have rejected a per se rule that school attendance is incompatible with the duty to mitigate
damages. See, e.g., Miller v. AT&T Corp., 250 F.3d 820, 838-39 (4th Cir. 2001) (Family and
Medical Leave Act); Dailey v. Societe Generale, 108 F.3d 451, 456-57 (2d Cir. 1997) (Title VII);
Huegel v. Tisch, 683 F. Supp. 123, 125-26 (E.D. Pa. 1988) ("there is no per se rule that back pay
is tolled during periods of enrollment in an education program. Rather, the issue is to be
determined in the context of the factual matrix in a particular case."); see also Metric
Constructors, 6 FMSHRC at 232 (determination of whether duty to mitigate has been met "is
made on the basis of the factual background peculiar to each case").5

5

As the judge recognized (22 FMSHRC at 1400), the Fifth Circuit has stated:

1234

On its face, the judge's apportionment of the burden of proving a failure to mitigate
would appear to be an error of law and thus sufficient grounds to hold that he abused his
discretion. See Jackson I, 21 FMSHRC at 284; Reike, 19 FMSHRC at 1258-60. However, the
judge did not stop his analysis of the evidence at this point, but instead went on to acknowledge
the Commission's remand instructions in Jackson 11, recognizing that there is no per se rule that
school enrollment establishes a failure to mitigate, and that the issue must be resolved on a caseby-case basis. 22 FMS~C at 1399. More importantly, the judge also addressed the evidence
which he found to contradict Jackson's assertions that he was looking for a full-time position and
would have quit school if necessary to obtain one. Id. at 1400-01.
The judge, doubting that Jackson had actually applied to the employers he listed on his
Ul1.employment benefits forms, refused to credit Jackson's testimony and other evidence
regarding his job search while enrolled in college, as well as Jackson's statements that he would
have quit school ifhe had obtained a full-time position necessitating that he do so. Id. at 1399,
1401-02. A judge's credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992);
Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has recognized
that, because the judge "has an opportunity to hear the testimony and view the witnesses[,] he [or
she] is ordinarily in the best position to make a credibility determination." In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting
Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), aff'd sub nom. Sec'y ofLabor v.
Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998).
Here, record evidence supports the judge's negative credibility determination. As the
judge pointed out, Jackson was less than forthcoming in this proceeding regarding his college
attendance during the back pay period. 22 FMSHRC at 1401. Jackson did not divulge either
semester of his college attendance during the judge's original consideration of the back pay issue
(21 FMSHRC at 917), and only during the hearing held upon the second remand did he reveal his
SCC attendance. 22 FMSHRC at 1396; Tr. 220-25.
As for his job search, fackson testified that he filed an application at each employment
contact listed on his VEC forms. Tr. 44, 49-51, 78-79. However, Jackson checked the "no" box
next to "application taken" for all 38 of the employment contacts listed on the forms. CompI.

[w ]e take notice that the vast majority of full-time college students
could not also hold down a full-time job, and that in the usual case
when one decides to attend college on a full-time basis, it does
curtail his present earning capacity and effectively removes him
from the employment market.

Brady, 753 F.2d at 1276. Nevertheless, the court went on to examine whether the employer had
shown that the discriminatee did in fact fall within that "vast majority of college students," and
found that it had not. Id. at 1274, 1276.
1235

Ex. 3. Without addressing the conflict between Jackson's testimony and the forms, the judge
found the forms to be an admission by Jackson that he did not file applications with the
employers listed. 22 FMSHRC at 1399, 1401. In addition, the judge found it significant that
Jackson changed his position before the VEC with respect to whether he was available for fulltime work. Id. at 1401. Jackson initially reported to the VEC that he was not available for work
on Tuesdays and Thursday because of school, but after that stated that he was available to work
each day. Id. at 1399; Tr. 230-31; Compl. Ex. 3. Based on the record evidence, we see no reason
to overturn the judge's negative credibility determination.
In addition to refusing to credit Jackson's testimony, the judge drew several inferences to
conclude that Jackson.would not have quit school to take a full-time position. The Commission
has recognized that "the substantial evidence standard may be met by reasonable inferences
drawn from indirect evidence." Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138(May1984).
In considering the evidentiary effect of inferences, the Commission has held that judges may
draw inferences from record facts so long as those inferences are "inherently reasonable and there
[exists] a rational connection between the evidentiary facts and the ultimate fact inferred."
Garden Creek Pocahontas, 11FMSHRC2148, 2153 (November 1989). In cases where more
than one reasonable inference could have been drawn from the record, it is for the trier of fact to
decide between those inferences. See generally 9A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure§ 2528 (2d ed. 1995).

In our opinion, some of the inferences the judge drew are reasonable and rational, given
the nature of the issue. For example, the judge drew a negative inference from Jackson's change
in position before the VEC regarding whether he was available for work each weekday. 22
FMSHRC at 1401. The judge was persuaded that Jackson's initial answer on the VEC form that
he was not available for work on Tuesdays and Thursdays was the more reliable information,
because the later statements were made by Jackson with the knowledge that he could not receive
unemployment benefits if he was not available to work each day. Id. at 1399. The judge also
found noteworthy Jackson's ability to find a brief, full-time position between college semesters
with a Cumberland affiliate, the Garland Company. Id. at 1401. Accordingly, we conclude that
inferences the judge properly drew support his failure-to-mitigate determination.6

6

We do not agree with the judge that, by only searching for a job on the days he did not
have classes, Jackson unreasonably limited his job search. 22 FMSHRC at 1401. There is no
authority for the proposition that a discriminatee must look for work each and every weekday to
avoid being found to have failed to mitigate his damages. All that is required is a reasonable
effort to find substitute employment. See, e~g., Metric Constructors, 6 FMSHRC at 231-33.
Chairman Verheggen finds notable the judge's inference that, because Jackson had taken out a
$4, 100 student loan to attend 1995 fall semester classes at Union College, he was unlikely to quit
school without finishing the semester. 22 FMSHRC at 1401.
1236

While Jackson correctly points out that the operators themselves did little to prove that he
failed to mitigate his damages (PDR at 17, 24),7 employers may chose to use no more than the
discriminatee's own testimony to show his failure to mitigate damages. See Nord v. United
States Steel Corp., 758 F.2d 1462, 1471 (11th Cir. 1985). More importantly, the judge found that
the record as it developed throughout the proceeding was sufficient to disprove the notion that
Jackson was looking for full-time work and would have quit school to take a full-time position. 8
In sum, we hold that, while the judge's initial statements about the burden of proof were
erroneous, sufficient evidence under the applicable abuse of discretion standard supports his
determination that Jackson was not seeking a full-time.position for which he would have quit
school if necessary. We therefore conclude that the judge did not abuse his discretion in
determining that Jackson failed to mitigate his damages while attending college, and affirm the
judge's determination in result. 9

7

Jackson designated his PDR as his opening brief.

8

Jackson argues that he only enrolled in college when all his efforts to find work proved
fruitless, and cites cases in which discriminatees were found not have to failed to mitigate
damages by attending school because, with time, it had become apparent that searching for
alternative employment was futile. PDR at 20-23. Jackson's reliance on this point is
inconsistent with his primary p9sition before the Commission and the VEC, that he was actively
seeking full-time employment,- and would have accepted full-time work even ifhe had to quit
school. Moreover, in the cases Jackson cites, the discriminatees by and large had given up on the
idea of finding immediate full-time employment, and were instead going to school in order to
again become active members of the workforce in the future. See Miller v. AT&T Corp., 250
F.3d at 838-39; Dailey, 108 F.3d at 456-58; Brady, 753 F.2d at 1276; see also Smith v. Am. Serv.
Co. ofAtlanta, Inc., 796 F.2d 1430, 1432 (11th Cir. 1986). Jackson's case is otherwise-he
was hired full-time at Cumberland before he even started classes at Union College.
9

Mountain Top concludes its brief by requesting that the Commission "reverse" the
judge with respect to many of the rulings he made throughout these proceedings, both in favor of
Jackson and in favor of the operators, going all the way back to the judge's original 1997
decision on the merits of Jackson's complaint. Op. Br. at 10. As we previously explained,
because we denied review of the operator's PDR, those rulings are final, and the Commission
lacks jurisdiction to review them. Unpublished Order dated April 4, 2001, at 2.
1237

m.
Conclusion
For the foregoing reasons, we affirm in result the judge's backpay award.

Theodore F. Verheggen, Chai

~.~~
~Jordan,
Commissioner

.

~~ .......~

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I ' 'C:M:- ;;ic:

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Robert H. Beatty, Jr., Commissioner

1238

. .

.

Distribution
Stephen A. Sanders, Esq.
Appalachian Research & Defense Fund
Of Kentucky, Inc.
120 North Front A venue
Prestonsburg, KY 4165;3
Edward M . Dooley, Esq.
512 Richmond Circle
Fairhope, AL 36532
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Com.mission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1239

1240

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

November 28, 2001

RAG CUMBERLAND RESOURCES, LP,
Contestant
v.
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMJNISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No. PENN 2000-181-R
Citation No. 3657290; 7/6/2000
Docket No. PENN 2000-182-R
Citation No. 3657291; 7/6/2000
Docket No. PENN 2000-183-R
Order No. 7076284; 7/6/2000
Docket No. PENN 2000-207-R
Order No. 2840951; 8/2/2000
Docket No. PENN 2000-208-R
Order No. 2840952; 8/2/2000
Docket No. PENN 2000-209-R
Order No. 3657297; 7/20/2000
Docket No. PENN 2000-210-R
Order No. 7078294; 7/20/2000
Cumberland Mine
Mine ID 36-05018

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 2001-63-A
A.C. No. 36-05018-04200

v.
RAG CUMBERLAND RESOURCES LP,
Respondent

Cumberland Mine

DECISION
Appearances:

R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh, Pennsylvania,
for the Contestant/Respondent;
Susan M. Jordan, Esq., Donald K. Neely, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for the
Respondent/Petitioner.
1241

Judge Feldman

Before:

These consolidated contest and civil penalty proceedings arise under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). These matters also
concern a compensation case in Docket No. PENN-2000-204-C brought pursuant to section 111,
30 U.S.C. § 821, by the United Mine Workers of America (UMWA) on behalf of its members.
The compensation case was stayed on January 30, 2001, pending the outcome of these
proceedings. The consolidated hearing was conducted in Fairmont, West Virginia, in two
sessions, from April 3_through April 6, 2001, and from July 24 through July 25, 2001. After the
hearing recess in April 2001, the parties resolved several of the contested citations.
On June 26, 2001, I approved a settlement agreement in Docket No. PENN 2001-94
wherein Rag Cumberland Resources LP (Cumberland) agreed to pay a reduced civil penalty for
Citation Nos. 2840951 and 2840952. These citations are the subjects of the contests in Docket
Nos: PENN 2000-207-R and PENN 2000-298-R. Consequently, Cumberland has moved to
withdraw its contests in Docket Nos. PENN 2000- 207-R and PENN 2000-208-R.
The Secretary moved to vacate Order Nos. 3657294 and 3657297 on March 29 and
July 2, 2001, respectively. These.orders are the subjects of the contests in Docket Nos.
PENN 2000-209-R and Penn 2000-210-R. Consequently, Cumberland has moved to
withdraw its contests in Docket Nos. PENN 2000- 209-R and PENN 2000-210-R.
The remaining contested citations and order in Docket Nos. PENN 200-181-R,
PENN 2000-182-R and PENN 200-183-R, consist of 104(a) Citation No. 3657290 and
related 107(a) imminent danger Order No. 7076284, and, 104(d)(l) Citation No. 3657291.
Docket No. PENN 2001-63-A is the civil penalty case dealing with Citation Nos. 3657290,
3657291 and Order No. 7076284. 1 These citations concern bleeder conditions at the
Cumberland Mine during the afternoon shift on July 5, 2000. The imminent danger order
withdrew mine personnel who went into the bleeder entries during the early morning hours on
July 6, 2000, to make ventilation changes. The specific area of the bleeder system that is in issue
is the eastern perimeter located behind the gob that remained after a number of longwall panels
had been mined. ~e parti~s have filed thorough post hearing briefs and reply briefs that have
been considered in the disposition of these matters.
I. Statement of the Case

The explosive methane range of an air-methane mixture is 5% to 15%. As a general
proposition, The Secretary's safety regulations require that methane concentrations in bleeder

1

At Cumberland's request, on July 31, 2001, Chief Judge Barbour severed contested Citation
Nos. 3657290 and 3657291 from unrelated citations in Docket No. PENN 2001-63 and placed these
contested citations in Docket No. PENN 2001-63-A to facilitate resolution of the issues in these proceedings.

1242

entries shall not exceed 2%.2 These matters concern continued longwall operations during the
afternoon shift on July 5, 2000, after several 3.6% methane readings were obtained at the
surface of the No. 1 exhaust fan shaft that was used to ventilate the eastern perimeter bleeders.
104(a) Citation No. 3657290 alleges a significant and substantial (S&S) violation of the
provisions of 30 C.F.R. § 75.334(b)(l) that require bleeder systems to dilute and move
methane from worked-out areas away from active workings. 104(d)(l) Citation No. 3657291
cites an S&S violation of 30 C.F.R. § 75.363(a) that is attributed to Cumberland's unwarrantable
failure. Section 75.363(a) requires all personnel, except those specified in section 104(c) of the
Mine Act, 30 U.S.C. § 8i4(c), to be withdrawn from mine areas where there are hazardous
conditions that pose an imminent danger. Section 104(c) of the Mine Act, however, permits
persons designated by the mine operator to correct conditions that constitute an imminent danger.
As noted, the explosive range of methane is a 5% to 15% air-methane mixture.
Concentrations below 5% are not explosive because they lack adequate methane. Concentrations
above 15% are not explosive because they lack adequate oxygen. The Secretary asserts the 3.6%
methane reading at the surface of the No. 1 shaft was indicative of potential explosive
concentrations of methane in the travelable bleeders that were not being adequately ventilated
away from the working face. Cumberland contends that the 3.6% methane at the shaft was
representative of approximately 3.6% methane in the travelable bleeder entries, and, that the
methane in the bleeder was being carried away from the working areas.
Significantly, despite repeatedly obtaining abnormally high methane readings of3.6% at
the surface of the No. 1 shaft as early as 3:30 p.m. on July 5, 2000, Cumberland continued
normal longwall operations until midnight without determining if methane concentrations in the
underground bleeder were approaching the 5% explosive range. It would have taken several
hours for a mine examiner to travel the eastern perimeter bleeder entry to take the necessary
methane concentration readings. (Tr. 490-91).
The dispositive question is not, as Cumberland suggests, whether the Secretary
has met her burden of demonstrating methane bleeder concentrations were in the explosive range
on July 5. (C. Reply Br. at 2). Although the burden of proof rests with the Secretary, the
Secretary's prima facie burden. of demonstrating the cited violations occurred is satisfied by
establishing that there was a malfunction in the bleeder system. Having established a
malfunction, the focus shifts to whether 3.6% methane exiting from the bleeder at the surface
should have alerted a reasonably prudent person that underground bleeder readings were required
to ensure that methane adequately was being diluted and carried away from active workings.
As discussed below, the Secretary, relying on the bleeder's ventilation design, as well as
comparisons of previous methane readings at the shaft and in the travelable bleeder, has provided
a reasonable basis for concluding that the 3.6% methane exiting the bleeder at the surface was
indicative of potential explosive levels of methane in the bleeder below. In contrast,

2

The provisions of section 75.323(e), 30 C.F.R. § 75.323(e), the mandatory safety standard governing
methane levels in bleeders, specifies that methane concentrations, determined by readings taken in a split of air
immediately before that split joins another split of air, shall not exceed a 2.0 percent.

1243

Cumberland's assertion that the 3.6% readings at the No. 1 fan were not indicative of explosive
levels of methane in the bleeder entries is conjecture that could have been resolved if
Cumberland had taken underground bleeder readings before continuing active mining. Having
failed to do so, Cumberland's defense that the bleeder conditions on July 5 did not require the
suspension of normal longwall operations because they were not hazardous is not supported by
the evidence.
Consequently, Citation Nos. 3657290 and 3657291 shall be affirmed. However,
as discussed below, 107(a) imminent danger Order No. 7076284, issued after midnight on
July 6, 2000, when Cumberland already had removed all mine personnel, except those persons
designated under section 104(c) of the Mine Act to correct the hazardous condition, shall be
vacated.
Il. Background
A. The Bleeder System
The Cumberland Mine is classified as a "gassy mine" because it liberates approximately
12 million cubic feet of methane per day. As a gassy mine, the Cumberland Mine is subject to
increased Mine Safety and Health Administration (MSHA) inspections pursuant to section 103(i)
of the Mine Act, 30 U.S.C. § 823(i).3 (Tr. 868-69, 1492). These matters concern a set of
bleeder entries on the eastern perimeter of a number of longwall gobs at Longwall Section 42.
(Ex. R-5). 4 The longwall gobs are all interconnected and air flows within and between them.
The term "gob'', as used in this decision, is the area where coal has been extracted from
successive longwall panels, as well as from the development entries between the mined-out
panels, where the roof has collapsed as a consequence of the mining cycle.
The active longwall panel on July 5, 2000, was the 90 butt longwall panel that is located
at the northern end of the gob. Id. At the western perimeter of the gob there is a set of mains
entries. Id. The southern perimeter of the gob is formed by another set of bleeder entries known
as the lB Right bleeders. Id. The split of air from the lB Right bleeders meets the split of air
from the eastern perimeter bleeders at the bottom of the No. 1 bleeder shaft. Id. The No. 1
bleeder shaft is a vertical shaft measuring approximately 600 feet deep from its base in the
southeastern comer of the bleeder system to the surface. (Tr. 494-95; Ex. R-5). At the surface
of the shaft is a bleeder exhaust fan. The No. 1 bleeder shaft is used solely to transport a diluted
air-methane mixture from the bleeder entries underground to the surface and out of the mine.
As a general proposition, the gob liberates high concentrations of methane that must be
safely diluted and carried away from working places where there are potential ignition sources.
Thus, methane concentrations in the gob vary from 0% to 100%. As previously noted, methane
levels in excess of 15% are not explosive because they lack sufficient oxygen. Bleeder entry
systems are designed to dilute methane liberated from the gob in a controlled fashion. The

3

Under Section 103(i), gassy mines are subject to a minimum of one spot inspection every five
working days at irregular intervals.
4

Cumberland and government exhibits will be designated as "R" and "G", respectively.

1244

Secretary' s mandatory safety regulations require that methane concentrations shall not exceed
2.0% in a bleeder split of air to be measured before that split of air joins another split of air.
30 C.F.R. § 75.323(e). There are no other limits on methane concentrations in bleeders in the
Secretary' s regulations. (Tr. 818). However, MSHA has an informal, unwritten policy that
methane concentrations below 4.5% in bleeder entries do not constitute an imminent danger.
(Tr. 269, 402, 405, 419).
At Cumberland' s longwall section, prior to beginning mining of the 90 butt panel on
June 6, 2000, methane liberated from the gob into eastern perimeter was diluted from fresh air
traveling in a southerly direction to the No. 1 Bleeder shaft. Upon commencement of mining of
the 90 butt panel, the No. 2A Bleeder shaft and exhaust fan, located in the northeastern
comer of the eastern perimeter of the bleeder system, became operational. (Ex. R-5). Thus,
as of June 6, 2000, methane from the gob in the eastern perimeter bleeder entries was diluted by
fresh air that was split and directed to the surface by either the No. 1 Bleeder shaft or the No. 2A
Bleeder shaft. (Tr. 188-89, 1121 , 1553).
As of June 6, 2000, air principally entered the bleeders at the northern end from the
headgate of the 90 butt panel through entries known as the No. 1 and No. 2 sweeteners, as well as
from the tailgate (also known as the 82 butt entries) through a regulator known as "Fred' s Hole."
(Tr. 1956-62). As air travels through the No. 1 and No. 2 sweeteners and Fred's Hole in a
southerly direction in the eastern bleeders, it is split near a location in the vicinity of bleeder
evaluation points (BEPs) 18 and 18A. (Tr. 192-4; Ex. R-5). BEPs are locations where there are
regulators that control the amount of methane exiting the gob into the bleeder entries where the
methane is diluted with fresh air and carried to the surface. (Tr. 1687). In the vicinity of BEPs
18 and 18A, some of this bleeder air is split and directed to the No. 2A bleeder shaft and some of
the air goes to the No. 1 bleeder shaft. In essence, these two bleeder shafts compete for the air
traversing through the eastern perimeter bleeders. (Tr. 1689-90).
As air travels through the eastern bleeders, air from the gob is vented into the bleeders
·at various BEP locations designated by numbers in descending order from north to south,
specifically BEP Nos. 21, 20, 18, 18A, 8, 7 and 6. (Ex. R-5). As noted, at these locations the air
coming out of the gob through regulators into the bleeder contains higher levels of methane. It is
the function of the bleeder system to dilute these high methane levels with fresh air coursing the
bleeder entries.
Between June 6 and July 5, 2000, BEPs 6, 7 and 8 were adjusted to their most closed
positions, although air continued to come out of them. (Tr. 1671-72, 1676, 1910-11).
Cumberland maintains they were closed because the methane released from the gob at these
locations was creating lowered oxygen levels in areas of the eastern bleeders where miners were
required to travel to pump water from the bleeder. (Tr. 1723-24, 1912). Although the BEP
locations were approved by MSHA under the ventilation plan, Cumberland maintains MSHA
approval for closing the regulators was not required because their closures were merely

1245

adjustments performed within the operator's discretion. 5 (Tr. 902, 1672-73, 1808). During this
period Cumberland also installed check curtains in entries across from BEP 22 to BEP 18. (65455, 982). The closure of BEPs 6, 7 and 8, and the installation of check curtains from BEP 22 to
BEP 18 prior to July 5, 2000, reduced the rate of methane that was being liberated into the
eastern perimeter entries, consequently reducing the methane concentrations in the No. 1 shaft.
The Secretary asserts these actions bottled up methane in the gob rather than properly ventilating
methane from the gob. In this regard, the Secretary contends that such actions, over time, could
result in an accumulation ofunliberated methane that would eventually back-up from the bleeder
system into working ateas. (Tr. 621-24, 631, 762, 765, 780, 977,981-82, 992, 1732, 1734-35,
2016-18).
In addition to the methane concentrations exiting the gob at the BEPs along the eastern
perimeter, methane also is ventilated from the southeast comer of the gob at locations in the
vicinity of what were formally BEPs 3 and 4. (Ex. R-S). The southeast comer of the gob is the
area of lowest pressure because of its proximity to the No. 1 fan. Consequently, Cumberland
contends methane from this area tends to travel more easily into the bleeders and out the No. 1
shaft to the surface. (Tr. 899-900, 1800-01, 1819). There are also openings from the gob into
the IB Right bleeders in the southern perimeter. (Ex. R-S).
There were water accumulations in the eastern bleeders south ofBEP SA. Although
Cumberland had set up a pumping system, this area of the bleeder remained inaccessible.
Because of elevations in the mine floor, it was not expected that water levels would rise to the
roof completely blocking air to the No. 1 shaft. Since June 6, 2000, the water levels south of
BEP SA had remained relatively constant in that the water gauge at the No. 1 fan, that measures
fan resistance evidencing a possible blockage of the bleeders, remained fairly constant.
However, Cumberland noted that the water gauge at the No. 1 bleeder fan had begun to rise in
the days preceding July 5 reflecting a possible increase in the accumulated water in the vicinity
ofBEP SA. (Tr. 1970).
B. Ventilation of the Longwall on July 5, 2000
As previously noted'l,~he 90 butt longwall panel began retreat mining on June 6, 2000.
It had retreated approximately l SOO feet by July 5, 2000. The longwall face was ventilated by
coursing intake air down the headgate entries and directing the air across the longwall face.
After sweeping the face, the air traveled along the edge of the gob in the tailgate entry, and into
the No. 2 entry of the 82 butt where some of the air traveled inby back into the bleeders through
Fred's Hole, and some of the air traveled outby in the No. 2 entry of the 82 butt. (Ex. R-5).
Initially, the tailgate (the No. 1 entry of 82 butt) was an intake entry that joined the air sweeping
the face at the tailgate and traveled into the bleeder system through Fred's Hole or back out
through the No. 2 entry of the 82 butt to the Mains on the western perimeter. Id. Although air

5

As discussed infra, while adjustments to regulators may not require MSHA approval, the closing of
regulators that, in effect, void MSHA's approved BEP locations, may constitute a modification of the
ventilation plan that requires MSHA approval. Cumberland has not been charged with a violation of its
approved ventilation plan.

1246

enters Fred's Hole to ventilate the bleeders, Fred Hole is actually located in the gob rather than in
a bleeder entry. (Tr: 1751, 1904-05).
On July 3, 2000, a problem developed with the face ventilation on the longwall after
air velocities at the face had dropped. This occurred because the resistance in the No. 2 entry of
82 butt had increased because of roof falls associated with the retreat of the 90 butt panel. The
resistance to the return air flow resulted in a diminution of air flowing across the face. {Tr. 1120,
1125, 1554, 1557-58). Consequently, an air change.was made on July 3, 2000, to change the
longwall tailgate air in the No. 1 entry of 82 butt from intake air to return air. (Tr. 1118, 1120,
1554, 1558-59). The air change resulted in increased air flow across the longwall face. After the
air change, the velocity of air at Fred's Hole was 49,000 cfm. (Tr. 1903, 1987-88).
The longwall face ventilation is designed to maintain pressure on the gob immediately
behind the longwall shields. This prevents methane.from the gob immediately behind the
shields from coming out into the longwall face. {Tr. 1173). At the end of the face the air is split.
Some of the air is directed toward the bleeder and the remaining air exits out the tailgate as return
air. The area at the end of the face where the air is split is known as a ''T-split." {Tr. 1802, 183436). A properly functioning T-split, in conjunction with a properly functioning bleeder system,
maintains pressure differentials that are intended to prevent methane from the gob from backing
up into the working face. (Tr. 1835-37).
C. Events of July 5 and July 6, 2000
During the day shift on July 5, 2000, MSHA Inspector Ronald Hixson was at the
Cumberland Mine to participate in an ongoing MSHA inspection. Hixson reviewed the weekly
examination books in the mine office. The normal methane concentration at the No. 1 bleeder
shaft was approximately 1.6%. (Tr. 183-85). Hixson noticed that the methane readings at the
No. 1 bleeder fan had been higher than normal during the previous two weeks. For example, the
examination book entries reflected normal readings of 1.6% on May 18; 1.6% on May 24; 1.6%
on May 30; and 1.4% on June 6. (Tr. 183-85; Ex. G-7). More recent readings were consistently
higher in the 1.8% to 1.9% range. There was a 1.8% reading on June 14; a 1.9% reading on
June 22, a 1.89% reading on June 30; and a 1.9% reading on July 3, 2000. (Ex. G-7).
At approximately 12 noon on July 5, Hixson traveled to the No. I bleeder fan with
Michael Konosky, Cumberland's safety representative. Konosky took readings with his
Exotector. The results indicated methane was exiting the fan shaft at concentrations from 1.8%
to 2.2%. Hixson also took a bottle sample of air for laboratory analysis. The results, which were
not known until July 13, showed 3.6% methane. (Tr. 212-13; Ex. G-2). Hixson left the mine at
approximately I :30 p.m. on July 5. At the time of Hixson's departure, he had no knowledge of
bleeder sh~ft methane readings above the 1.8% to 2.2% range. (Tr. 206, 207-09, 469).
To ensure proper functioning of the bleeder system, the exhaust fans are monitored by
water gauge pressure readings. The water gauge measures the degree of resistance caused by
water accumulations that block bleeder entries. As water levels rise, resistance in the bleeder
system rises causing the bleeder shaft fan to exert more pressure (work harder) to overcome

1247

the resistance. Since the water gauge at the No. 1 fan had been rising, Fred Evans, Cumberland's
mine foreman, convened a meeting on the morning of July 5, 2000, to discuss the increase in fan
pressure. (Tr. 1 i32, 1562-63, 1970). Evans was concerned that the increase in pressure could
cause too much methane to be drawn out of the gob at too fast a rate, thus increasing the
concentration of methane in the bleeder. Evans was also concerned that the water pumps in the
eastern perimeter south ofBEP 5A may not have been working properly. In addition to water
accumulations, a high water gauge reading could indicate other causes of increased resistance in
the gob areas behind the longwail face or in the tailgate entry of the 82 butt. (Tr. 1795).
As a result of the meeting, Evans dispatched Jason Hustus, a Cumberland engineer, to the
No. 1 shaft to obtain methane reading. At approximately 3:30 p.m. on July 5 Hustus obtained a
methane reading of3.6% at the No. 1 shaft. Evans knew that Hixson and Konosky had obtained
a 1.8% methane reading of at the No. 1 shaft earlier that same morning. Evans asked Hustus to
recalibrate his methane detector and sent Hustus back for another reading. Once again Hustus
obtained a reading of 3.6%.

a

Evans informed Gary DuBois, manager of engineering, and Robert Bohach, manager of
safety, of Hustus' methane readings. At approximately 6:00 p.m. DuBois and Bohach went to
the No. 1 shaft and took several methane readings of 3.6%. (1137-38, 1778). Concerned, they
went to the 32-1 surface gob vent hole that is located in close proximity to the No. 1 shaft.
(Ex. R-5). Gob bore holes are drilled from the surface into the strata above longwall panels to
vent methane directly from the gob to the surface. Dubois and Bohach determined the bore hole
was closed. They opened the surface hole and methane began to flow out. They tried to start a
pump that was connected to the bore hole, but it was not operating. They notified a surface
electrician to repair it.
After opening the bore hole, Dubois and Bohach returned to the No. 1 shaft where they
once again obtained readings of 3 .6% methane. (Tr. 1142, 1568, 1779). Dubois and Bohach
returned to the portal to discuss what they believed was the appropriate course of action. They
felt the high methane at the No. I shaft was caused by the high water gauge reading that resulted
in too much methane being pulled out of the southeastern comer of the gob. They decided that
changes to the No. 1 fan bl~de setting as well as air changes underground had to be made.
Changing the fan blade would reduce the pressure the fan was pulling on the bleeder entries. A
change in the fan pressure would require air changes underground, such as opening the
sweeteners, to compensate for the reduced air pressure.
There are methane sensors on the longwall shearer, at the tailgate and at midface. The
sensors on the shearer momentarily de-energize the shearer if levels of methane exceed 1%. The
sensors at the tailgate and at midface shut down power on the face if methane exceeding I% is
detected. If methane was baking up from the gob, it usually would first be detectible at the face
in the vicinity of the tailgate.
There were approximately 100 miners working underground with approximately
12 miners on the longwall section during the afternoon shift that began at 4:00 p.m. on July 5,
2000. Among the miners working at the longwall was Timothy W. Hroblak, who is a UMWA
safety committeeman. Hroblak has been employed at the Cumberland Mine since May 1979.
(Tr. 105). Hroblak testified that beginning at approximately 7:00 p.m., there were intermittent
power shut downs triggered by the methane sensor at the tailgate. (Tr. 109). The face crew
1248

could not determine the cause of the problem as the 1% methane detected by the sensor would
dissipate within a few minutes after which power could be restored. (Tr. 109, 111-12, 149, 155).
Hroblak went to the face and took several methane and air velocity reading that were all within
normal limits below 1%. (Tr. 111-12 150, 151-52, 155, 375-76). Given the normal methane
and air velocity readings at the face during the afternoon shift, Dubois and Bohach decided to
make the ventilation adjustments at the start of the midnight shift since section 75.324, 30 C.F.R.
§ 75.324, requires keeping all personnel, except those making ventilation air changes, from going
underground.
At approximately 8 p.m. on July 5, during the middle of the shift, the miners on the
longwall were advised that there would be no "hot seat" changes because the midnight crew
would be kept out of the mine so that air changes could be made. A "hot seat" change requires
an afternoon shift member to remain at his work station until he is relieved by an arriving
midnight shift employee. (Tr. 110, 113-15, 117, 1162).
Dubois and Bohach continued to monitor the conditions at the No. 1 fan as normal
longwall operations continued. For example, Dubois obtained 3.6% methane readings at the
No. 1 shaft at 7:30 p.m. and 10:30 p.m. (Tr. 1784, 1827-28). Dubois and Bohach decided they
would withdraw miners from the mine if methane levels at the No. 1 fan rose above 4%. They
based their decision on MSHA's informal policy of not considering methane levels ofless than
4.5% to be an imminent danger; on the fact that a 4% concentration provided a 1%--~argin of
error below explosive levels; on the fact that methane readings at the face were withiilviormal
limits despite several tailgate sensor shut downs; and the fact that the distance from the bottom of
the number of the No. 1 shaft to the working section was over 9,000 feet. (Tr. 1150, 1152, 115859, 1351, 1790, 1826, 1829, 1893-96, 1953).
At midnight, at the end of the July 5, 2000, afternoon shift, Dubois and Bohach had a
meeting with mine safety committee members who were exiting the mine, or who were arriving
for work. (Tr. 117, 1160-61). They told the committeemen that there were problems at the No. 1
bleeder fan. The committeemen were informed, for the first time, that Cumberland had obtained
3.6% methane readings at the No. 1 bleeder shaft as early as 7:00 p.m. Hroblak and qther
committeemen became upset that normal mining had continued. Hroblak believed the amount of
methane exiting the bleeder shaft was approximately half the methane concentrations at BEP SA
because the amount of methane exiting the fan was diluted by air from the lB right bleeder entry
in the southern perimeter. (Tr. 127). Thus, Hroblak believed the amount of methane in the
bleeder eastern perimeter entries could have been in the explosive ra!·;.ge between 5% and 7%.
(Tr. 127-28). Hroblak stated that, had he known of the conditions at the surface of the bleeder
shaft, he would have exercised his rights as a union safety committee member by immediately
withdrawing all hourly personnel from the mine. (Tr. 128, 139). Upon leaving the mine, at
approximately 12 midnight, Hroblak telephoned inspector Hixson to report the conditions at the
mme. (Tr. 123-24, 226-27, 1160, 1161-62).
Consistent with the provisions of section 75.324, the July 6, 2000, midnight shift was not
permitted to enter the mine because of the ventilation changes that were to be made. Power to
the mine was de-energized and management personnel and several hourly employees entered

1249

the mine to begin corrective action. The hourly employees were used as runners to relay
communications from the bleeder entries to a telephone located in a headgate entry of the
90buttpanel. (233, 1851, 1899, Ex. R-5).
On the surface, Dubois went to the No. 1 bleeder shaft and changed the louvers at the
main fan and the back-up fan to reduce the amount of pressure the fan was pulling. He also
tested the back-up diesel generator. Adjusting the louvers, which took approximately 15 to
20 minutes, was completed at approximately 1:00 a.m. (Tr. 1161, 1163-64, 1787, 1789-90,
1845). Before leaving the No. 1 fan Dubois obtained another methane reading of 3.6%.
(Tr. 1789). Dubois assigned a foreman to remain at the No. 1 shaft to continue monitoring
the methane concentrations.
To evaluate the bleeder conditions, Cumberland management personnel Roger Peelor and
Robert K.imutis traveled to BEP 5A, the farthest point inby the travelable bleeders, to measure
the air flow and methane before air changes were made. (Tr.1582). It took approximately
1Yz hours to walk to BEP SA. (Tr. 1691-92, 1703). Peelor testified he took methane readings at
approximately 1:30 a.m. at BEP 5A that ranged from 3.6% to 3.8% methane. (Tr. 1682, 169091). Peelor and Kimutis then adjusted the regulators at the No. 2A bleeder shaft to direct more
air towards the No. 1 shaft. (Tr . 1574, 1683). This involved sliding the regulator doors by hand
about one inch towards a more closed position that resulted in an approximate 8,000 cfm change
in the air flow. (Tr. 1574, 1710-11 , 1901).
Peelor and K.imutis also changed the openings at the No. 2 and No. 3 sweeteners by
knocking out blocks that controlled the flow of air into the bleeders. (Tr. 1709). The blocks
were removed gradually while air at the longwall face was monitored to ensure adequate air
velocity Jas maintained. Once it was determined that ventilation of the face was not adversely
affected, the sweeteners were opened further and the opening at Fred's Hole was restricted.
(Tr. 1709, 1899-1900).
Opening the sweeteners permitted more fresh intake air to flow into the eastern perimeter
bleeders. {Tr. 1166-67, 1574-75, 1577, 1689-90, 1693-94, 1962, 1982). Adjusting the regulator
at the base of the No. 2A bleeder shaft decreased the air going into that shaft and increased
the air flow to the No. 1 shaft. (Tr. 1578, 1595, 1693-94, 1982). Restricting the regulator.at
Fred's Hole reduced the amount of methane coming into the bleeder system at that location,
diverting more methane tolhe southeast corner of the gob. {Tr. 1167-68, 1692, 1714). The
regulator at Fred's Hole is normally closed once the active longwall panel had retreated a
distance of approximately 2,000 feet. (Tr. 1500-02, 1906).
At approximately 1:30 a.m., Hixson, in response to the information provided by Hroblak,
arrived at the Cumberland Mine while the air changes were in progress. (Tr. 229, 1179). Hixson
met Bohach on the surface. Bohach told Hixson that the last reading at the No. 1 fan was 3.6%
and that men were underground making air changes. (Tr. 234-35, 490). Methane readings were
being teJephoned to Bohach in the mine office every 15 to 20 minutes by employees stationed
at the fan. Shortly after Hixson arrived at the mine, methane levels at the No. 1 fan reportedly
had risen from 3.6% to 3.8%. (Tr. 231, 240, 1176, 1333-34). A subsequent reading taken
at the fan between 2:30 and 2:45 a.m. was reported to Bohach as having increased to 4.2%.
Bohach informed Hixson of the reading. (Tr. 240, 491, 1334, 1777).

1250

Hixson telephoned his supervisor Robert Newhouse to discuss the bleeder shaft
methane concentrations. (Tr. 240, 385 711). Newhouse telephoned Acting District Manager
Kevin Stricklin. After evaluating the situation, Hixson was directed to issue an imminent danger
order that would require Cumberland to immediately stop its air changes and remove everyone
from the mine. (Tr. 385, 388, 711-12). At approximately 3:10 a.m., Hixson verbally issued a
107(a) imminent danger withdrawal order requiring everyone, including personnel making air
changes, to leave the mine and vacate the No. 1 shaft area until the methane conditions had
stabilized. (Tr. 239, 1335, 1778; Ex. G-3). Hixson was concerned that methane conditions were
rising despite the fact that longwall operations had been suspended and no methane was being
generated off the long\¥all face. (Tr. 534-35).
After the imminent danger order was verbally issued, readings at the fan dropped from
4.2% to 3.8%. (Tr. 1179, 1430). The next fan reading was taken at approximately 6:00 a.m.
on July 6 by MSHA inspectors after the mine had ceased operations for over six hours. The
methane exiting the fan at that time was 2.8%. (Tr. 1186). It took more than two hours for the
miners underground to arrive at the surface because of the lengthy distance to be traveled.
(Tr. 490-91). The last men underground exited the mine at 6:30 a.m. (Tr. 266).
Imminent Danger Order No. 7076284 was formally written and served on Cumberland
by Hixson at approximately 9:00 a.m. on the morning of July 6. (Tr. 239; Ex. G-3, p. l ).
The imminent danger order was modified at 2:00 p.m. on July 6, 2000, to allow teams of
company and MSHA personnel to go underground to evaluate the bleeder conditions. Methane
concentrations exiting the fan had declined to 2.1 % at that time. (Tr. 1190-91; Ex. G-3, p.3).
The imminent danger order was modified again at 9:30 p.m. on July 6 to allow Cumberland to
make additional ventilation adjustments underground. (Ex. G-3, p.4).
Citation No. 3657290 citing an alleged significant and substantial (S&S) violation of the
mandatory safety standard in section 75.323(e) was issued to Cumberland by Hixson at 4:30 p.m.
on July 6. Section 75.323(e) requires that methane concentrations in a bleeder split of air, before
that split joins another split of air, shall not exceed 2.0%. Although Citation No. 3657290
attributed the cited violation to Cumberland's reckless disregard, the citation was issued under
section 104(a) of the Mine Act, 30 U.S.C. § 814(a), and it did not allege an unwarrantable failure.
(Ex. G-4).
Citation No. 3657290 was modified on July 7, 2000, to substitute section 75.334(b)(l),
30 C.F.R. § 75.334(b)(l), as the violated mandatory safety standard. Section 75.334(b)(l)
requires bleeder systems to dilute and move methane-air mixtures away from active workings
and into a return air course, or, to the surface of the mine. Simply put, section 75.334(b)(l)
requires bleeder systems to function properly.
Finally, 104(d)(l) Citation No. 3657291 was issued by Hixson at 6:00 p.m. on July 6
citing an S&S violation of the provisions of section 75.363(a), 30 C.F.R. § 75.363(a), that
specify, if conditions pose an imminent danger, all persons, except those referred to in section
104(c) of the Mine Act (persons designated by the operator to correct the condition), immediately
must be withdrawn from the mine. The cited violation was attributable to Cumberland's
unwarrantable failure.

1251

ill. Findings and Conclusions
A. 104(a) Citation No. 3657290
1. Fact of Violation
As a threshold matter, in defense of the subject citations, Cumberland asserts the 2%
methane limit in bleeder splits of air in section 7 5 .323(e) does not apply to a bleeder shaft.
(C. Br. at 23-27). Thus, Cumberland seeks to undermine Citation No. 3657290, issued on July 6,
2000, because the citation initially alleged a violation of section 75.323(e). Section 75.323
provides:
(e) Bleeders and other return air courses. The concentration of
methane in a bleeder split of air immediately before the air in the
split joins another split of air, or in a return course other than as
described in paragraphs (c) and (d) of this section, shall not exceed
2.0 percent.
The Secretary's mandatory standard in section 75.323(e) addresses the method of
obtaining representative methane readings in components of bleeder systems to ensure the air
coursing through the bleeder contains not more than 2% methane. Thus, not surprisingly, the
standard requires methane concentration measurements to be taken in splits of air be/ore the
concentration of methane in these splits of air is diluted or otherwise altered by an additional split
of air. As Cumberland states in its posthearing brief, "[t]he air from the lB Right bleeders meets
the air from the eastern perimeter bleeders at the bottom of the No. 1 bleeder shaft, a shaft from
the surface used solely to transport air from the bleeder entries out of the mine." (C. Br. at p.2).
To obtain accurate methane concentrations in IB Right, and in the eastern perimeter
of the bleeder, it is clear that section 75.323(e) requires methane readings to be taken in both
1B Right and the eastern perimeter before these two splits of air meet. When these splits meet,
they feed a new split of air- - the No. 1 bleeder shaft. The only method of obtaining a
representative methane sample in the bleeder shaft is to measure the methane concentration
before the air in the shaft joins another split of air - - the atmosphere. Moreover, it reasonably
can be argued that the No. 1 bleeder shaft is a "return air course" as contemplated by section
75.323(e).
Accordingly, I am not persuaded by Cumberland's assertion that the 3.6% to 4.2%
methane concentrations in the shaft on July 5 and July 6 are irrelevant, or otherwise entitled to
little evidentiary weight, because such readings are not prohibited by section 75.323(e), the only
regulatipn concerning permissible methane levels in bleeders. On the contrary, it is difficult to
understand Cumberland's contention that the 2% limit in section 75.323(e) is inapplicable
because it was on actual notice that section 75.323(e) does in fact apply to bleeder shafts.
In this regard, Cumberland was previously cited on December 20, 1996, in Citation No. 7013734,
for an excess of2% methane in the No. 1 bleeder shaft. (Ex. R-6). The citation was issued after
several bottle samples revealed methane of 2.2%, 2.84%, and 2.7% at the surface of the No. 1
shaft. The citation was terminated on October 23, 1997, after Cumberland made numerous
1252

adjustments to its bleeder system over a ten month period, when methane in the shaft had been
reduced from 2.5% to 1.7%. (Ex. R-6, p.2-7). Finally, the fact that the Secretary's mandatory
safety standards impose a 2% methane limit in bleeder shafts was acknowledged succinctly by
Roger Peelor, Cumberland's Senior Mining Engineer, when he testified that operating with 3.6%
methane in a bleeder shaft is prohibited because ''[i]t's the law." (Tr. 1726).
fu an apparent effort to avoid Cumberland's assertion that a bleeder shaft is not
"a split of air" as contemplated by section 75.323(e), the Secretary modified Citation
No. 3657290 on July 7, 2000, to reflect an alleged violation of section 75.334(b)(l).
Citation No. 3657290 states:

The ventilation and bleeder system used for the longwall section
and active gob failed to properly remove methane as required.
There was 3.6% to 4.2% methane being coursed through the No. 1
Bleeder shaft. The methane concentration at 6:30 p.m. on 7/5/00 at
the fan was 3.6%. The Company failed to make corrections
immediately. They allowed the afternoon shift to continue to work
until the end of their production shift. The persons exited the mine
and corrections started around 12 midnight. The split exceeded the
2% limit.
(Ex. G-4, p.1 ). The July 7 citation modification added the following additional conditions:

.... It has been determined·that the bleeder system for the longwall is not
functioning properly for the following reasons:
1. Methane exceeding 2.0% has been detected exhausting from the No. 1 bleeder
fan.
2. Water has accumulated to the point that the airflow in the bleeder system has been
obstructed.
3. BEP 6 BEP 7 have been closed without prior approval.
4. Low oxygen levels have been found in the travelable bleeder entry.
(Ex. G-4, p.3).
Section 75.334(b)(l) provides:
During pillar recovery a bleeder system shall be used to control the
air passing through the area and continuously dilute and move
methane-air mixtures and other gases, dusts and fumes from the
worked-out area away from active workings and into a return air
course or to the surface of the mine.
(Emphasis added).
fu applying section 75.334(b)(l) to the facts of this case, we start with the longstanding
proposition that the "language of a regulation . . . is the starting point for its interpretation." Dyer

1253

v. United States, 832 F. 2d 1062, 1066 (91h Cir. 1987)(citing Consumer Prod. Safety Comm'n v.
GTE Sylvania, Inc, 447 U.S. 102, 108 (1980)). Where .the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meaning or unless such meaning would lead to absurd ·
results. Utah Power & Light Co., 11FMSHRC1926, 1930 (Oct. 1989); Consolidation Coal Co.,
15 FMSHRC 1555, 1557 (Aug. 1993). The plain language of section 75.334(b)(l) requires that
bleeder systems both continuously dilute and move methane-air mixtures away from active
workings.
Notwithstandi~g the question of whether there is a 1: 1 ratio between methane in the No. 1
shaft and methane in the eastern perimeter bleeder, the undisputed facts support the conclusion
that methane in the bleeder was not being adequately diluted and carried away from the working
face. Cumberland concedes the rising water gauge at the No. 1 shaft was indicative ofrestrictive
air flow caused by water accumulations located inby BEP 5A, increased resistance caused by an
increase in the gob area, and/or deteriorating conditions in the tailgate of the 90 butt panel caused.
by the panel's retreat. (C. Br. at 7). Indicia ofrestrictive air flow support the conclusion that the
bleeder was not functioning properly.

Moreover, Cumberland's actions in this case reflect that the bleeder system was
malfunctioning. Namely, before MSHA arrived at the mine, Cumberland took numerous
methane readings during the afternoon shift at the No. 1 fan; Cumberland initiated air changes
at the start of the next shift on midnight July 6; Cumberland adjusted the louvers on surface
at the No. I fan; Cumberland adjusted the regulator at the base of the No. 2A bleeder shaft;
Cumberland closed the regulator at Fred's Hole; and Cumberland opened the regulators on two
sweeteners. In addition, in view of the restrictive air flow in the bleeder, activation of the tailgate
sensor on several occasions during the July 5 afternoon shift is a further indication that methane
was migrating back from the gob towards the working face. In short, the evidence in this case
provides an ample basis for concluding that Cumberland's bleeder system was not adequately
diluting and coursing methane through the bleeder system. Accordingly, the Secretary has
satisfied her burden of demonstrating a violation of section 75.334(b)(l).
2. Significant and Substantial
In its Posthearing Brief, Cumberland has elected not to further argue the S&S designation
in Citation No. 3657290 iffhe cited violation of section 75.334(b)(l) is affirmed. (C. Br. at p.19,
n.8).
A violation is properly designated as significant and substantial in nature if, based on the
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). The issue of whether a
particular violation of a mandatory safety standard is S&S in nature must be resolved by
assuming continued normal mining operations. U.S. Steel Mining, 7 FMSHRC 1125, 1130
(Aug. 1985). Consideration should be given to both the time the violative condition existed
before the citation was issued and the time it would have existed if normal mining operations had
continued. Bellefonte Lime Co., 20 FMSJIB.C 1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 12.
(Jan. 1986).

1254

The Secretary presented significant evidence to support her S&S designation concerning
the hazards associated with a malfunctioning bleeder system in proximity to potential ignition
sources generated during active longwall operations; When bleeder systems malfunction,
methane can build to 5% to 15% explosive levels. These explosive levels of methane can back
up through the tailgate into the working face where sparks generated during the coal extraction
process are not uncommon. It is reasonably likely that an explosion at the longwall face would
result in serious or fatal injuries.
Cumberland asserts there is a 1: 1 ratio of methane concentrations between the No. 1 shaft
and travelable eastern perimeter bleeders. The Secretary asserts the ratio is 1:2 in the No. 1 shaft
as compared to the BEP 5A area of the bleeder. Cumberland did not take actual methane
readings in the bleeder entries on July 5, 2000. Thus, at best, Cumberland contends the 3.6%
methane at the shaft's surface was representative of the methane concentrations in the eastern
bleeder. Cumberland's weekly examination records reflect that methane concentrations at the
shaft were rising in the weeks preceding July 5, 2000. Rising methane concentrations are an
indication that methane is not being effectively diluted and moved away from working places. In
this regard, Peelor testified that the mine cannot continue to operate with 3.6% methane at the
shaft not only because "[i]t's the law" but also because "there are hazards involved with that ...
[w ]ith methane, you have a potential fuel. If you allow it to go unchecked, it can go into the
explosive range." (Tr.1725-28). Thus, it is apparent that the abnormally high methane readings
in the No. 1 shaft were indicative of a serious explosive hazard. Accordingly the S&S
designation in Citation No. 3657290 shall be affirmed.
3. Negligence
The Secretary attributes the improperly functioning bleeder system to Cumberland's
reckless disregard. The Secretary contends that to address its rising methane concentrations in
the bleeder, Cumberland closed BEPs 6 and 7 in an effort to "bottle up" the methane in the gob
by impeding it from flowing into the bleeders. Cumberland asserts it closed the BEPs to improve
the oxygen levels in the travelable bleeder entries. The Secretary acknowledged there were low
levels of oxygen in the travelable bleeders in her July 7 modification of Citation No. 3657290.
(Ex. G-4, p.3).
Although the closing~of BEPS 6 and 7 may have constituted a modification of
Cumberland's ventilation plan that required MSHA approval, Cumberland was not cited for
failing to follow its approved ventilation plan. Therefore, Cumberland's failure to consult
MSHA before closing BEPs 6 and 7, when viewed in isolation, is not relevant to the issue of
Cumberland's degree of culpability with respect to the violation of section 75.334(b)(1 ). The
closure of these BEPs is relevant to the issue of negligence if the Secretary can demonstrate the
closure of these regulators contributed to the high methane in the bleeders.
In _determining the degree of negligence to be attributed to Cumberland with respect to its
ineffective bleeder system, it is noteworthy that the July 5 bleeder problems occurred shortly
after the July 3 air change that converted the intake air in the No. 2 tailgate entry to return air.
It is reasonable to conclude that this adjustment, that was taken to maintain proper air velocity
along the longwall face, ultimately necessitated additional bleeder adjustments, such as opening
sweeteners, to increase the fresh air flow to the bleeders. Bleeder systems by nature require
ongoing monitoring and adjustment after significant ventilation changes are made. In view of the

1255

recent conversion of the No. 2 tailgate entry from intake to return air, it is not surprising that the
bleeder's ventilation system required additional adjustments. Thus, the Secretary has not
established, by a preponderance of the evidence, that Cumberland's closure of two BEP sites was
a significant cause of the bleeder malfunction. In this regard, it is noteworthy that methane
readings in the No. 1 shaft were within normal range in the days preceding July 5, 2000, after
BEPs 6 and 7 had been closed. The record, therefore, supports no more than a moderate degree
of negligence rather than the recklessness alleged by the Secretary.
4. Civil Penalty
The Secretary has proposed a $6,000 civil penalty for Citation No. 3657290. The parties
have stipulated that Cumberland is a large operator with a favorable violation history, that it
abated the cited violations in a timely manner, and that payment of the proposed penalties will
not impair its ability to continue in business. Although the cited violation of section 75.334(b)(l)
is serious in gravity, the reduction in the degree of negligence attributable to Cumberland from
reckless disregard to moderate warrants a moderate reduction in the proposed civil penalty.
Accordingly, a $5,000 civil shall be imposed for Citation No. 3657290.

B. 104(d)(l) Citation No. 3657291
1. Fact of Violation

Citation No. 3657291, issued by Hixson, cites a violation of the mandatory safety
standard in section 75.363(a) that is attributed to Cumberland's unwarrantable failure. Citation
No. 3657291 states:
An accumulation of methane was detected at the No. 1 bleeder
shaft. The methane ranged from 3.2 to 3.6% as detected at 6:30
p.m. on 7/5/00. The company failed to correct the condition
immediately. The company also failed to remove [all persons
except] those persons referred to in section 104(c) of the Act. The
men were allowed to continue working their production shift until
11 :30 p.m.'-It was after the men exited the mine that corrections
were started. The methane was detected by a certified mine
official. 6
Section 75.363(a), the cited mandatory standard, provides:
Any hazardous condition found by the mine foreman or equivalent
mine official, or other certified persons designated by the operator
for the purpose of conducting examinations under this subpart D,
shall be posted with a conspicuous danger sign where anyone

6

Hixson testified that he inadvertently omitted the above bracketed words "all persons except" when
he issued Citation No. 3657290. (Tr. 310-12). Cumberland does not claim that this clerical error in the
citation misled or otherwise prejudiced it in its preparation for trial.

1256

entering the areas would pass. A hazardous condition shall be
corrected immediately or the area shall remain posted until the
hazardous condition is corrected. If the condition creates an
imminent danger, everyone except those referred to in Section
104(c) of the Act shall be withdrawn from the area affected to a
safe area until the hazardous condition is corrected. Only persons
designated by the operator to correct or evaluate the condition may
enter the posted area.
(Emphasis added).
Section 75.363(a) has two components. This safety standard requires hazardous
conditions to be corrected immediately or to be dangered-off, and, if the hazard constitutes an
imminent danger, everyone except those persons designated under section 104(c) of the Mine Act
shall be removed from the affected area where the imminent danger exists. In this case it is not
feasible to use a danger-off sign because hazardous bleeder conditions effect the entire mine.
Thus, the question is whether the bleeder conditions during the afternoon shift of July 5, 2000,
could be properly characterized as a hazard that must be corrected immediately because it
constituted an imminent danger.
Analyzing whether the bleeder conditions on July 5 constituted an imminent danger is a
matter of degree. For example, as previously noted, on December 20, 1996, MSHA issued to
Cumberland Citation No. 7013734 for a violation of section 75.323(e) for methane in the subject
No. 1 bleeder shaft in excess of2.0% methane. (Ex. R-6, p.l). The citation was issued after
several bottle samples revealed methane of2.2%, 2.84%, and 2.7%. The bleeder violation,
which was attributed to a moderate degree of negligence, was designated as non-S&S. After six
extensions of the abatement termination date, the citation was terminated 10 months later on
October 23, 1997, when methane in the shaft had been reduced from 2.5% to 1.7%. (Ex. R-6,
p.2-7). Although the December 1996 bleeder shaft condition was designated as non-S&S, I note
that the 2.8% methane in the shaft in December 1996 is 28.5% less than the 3.6% methane at the
shaft's surface on July 5, 2000.
Although there was 3.6% methane in the shaft, we will never know the methane
concentrations at BEP SA diiring the July 5 afternoon shift because Cumberland did not obtain
any readings in the travelable bleeder entries. Resolution of the imminent danger question must
be viewed in the context of whether 3.6% methane in the shaft should have alerted a person
exercising reasonable care to acquire additional knowledge of the fact in question (taking
readings to determine whether there was explosive methane in the bleeder entries) or to infer its
existence. See Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981) (quoting United States v. Sweet
Briar, Inc., 92 F. Supp. 777, 780 (W.D.S.C. 1950).
Although there is no official MSHA policy, as a general proposition, MSHA considers
methane levels in bleeder entries of 4.5% or more to be an imminent danger. (Tr. 820-21; Ex. R3). At the hearing, Cumberland conceded it would have withdrawn all personnel from the mine
if the methane readings at the No. 1 shaft rose above 4%. (Tr. 1794, 1829, 1953). Thus, the
question is whether Cumberland should have believed there was a reasonable possibility of
explosive methane in the travelable bleeders.

1257

MSHA ventilation expert John Urosek testified that an excess of 2% methane exiting the
bleeder fan "tells you there is a problem with the bleeder system." (Tr. 1029). The methane
levels in the No. 1 shaft during the afternoon shift on July 5 were consistently at 3.6%. The
methane spiked to between 3.8% and 4.2% in the early morning hours of July 6. The Secretary
asserts these amounts of methane exiting a bleeder shaft were unheard of except in emergency
situations. (Tr. 1725-28). Urosek testified he had never known of these levels of methane
exiting a bleeder fan in an operating coal mine. (Tr. 1009). Even Peelor admitted he could·not
recall working in a mine when there was 4.2% methane in the bleeder shaft. (1725).
BEP 5A is located inby in the eastern perimeter more than one mile from the active
longwall face. (Tr. 1803-04, Ex. R-5). Abnormally high concentrations of methane at BEP 5A
is an indication that methane from the gob is migrating back toward the working face rather than
being diluted and carried away to the surface. The Secretary's witnesses contend there is an
approximate 2: 1 ratio between the methane at BEP 5A and the methane at the No. 1 shaft.
(Tr. 562, 681-82, 714, 719, 721, 724). Their conclusion is based on both the design and
operation of Cumberland's bleeder system, as well as comparisons of contemporaneous
BEP 5A and No. 1 shaft methane results.
With respect to the bleeder design, the eastern perimeter vents the greatest concentrations
of methane consisting of methane that is liberated during active mining of the 90 butt panel.
(Tr. 305). Air traveling down the lB Right entry (the southern perimeter) joins and dilutes the
air from the eastern perimeter before it enters the No. 1 bleeder shaft. (Tr. 497-98). The
Secretary's assertion that the lB Right air dilutes the eastern perimeter air is supported by
Cumberland's weekly examination records. For example, during the period June 14, 2000,
through June 30, 2000, methane at BEP SA was 3.5%, while methane in lB Right for the same
period averaged only .6%. (Tr. 558-59, 562; Ex. G-7). Given the 3.6% methane at the No. 1
shaft on July 5, after the eastern perimeter air was mixed and diluted with lB Right air, the
Secretary argues that it is likely that methane in the eastern perimeter outby BEP SA in the
direction of the longwall face, beyond where air currents strongly travel towards the fan,
exceeded the 5% explosive range for methane. (Tr. 242,-43, 496-98, 505, 564, 714, 719, 721,
724, 1024).
A comparison ofB~_P 5A and No. 1 bleeder shaft readings support the Secretary's
claimed 2:1 ratio. For example, Cumberland's weekly examination records reflect average
methane concentrations of 3.5% at BEP 5A, and 1.8% at the No. 1 bleeder fan, during the period
June 14, 2000, through June 30, 2000. (Tr. 558-59, 562; Ex. G-7).
Cumberland maintains there is a 1: 1 ratio of methane at the No. 1 shaft and BEP SA.
Cumberland bases its conclusion on an uncorroborated BEP SA methane reading of 3.8% by
Roger Peelor at approximately 1:30 a.m. on July 26 2000, that is similar to the 3 .6% methane
obtained at the fan. However, other pairs of methane readings do not support Cumberland's
claimed J:l ratio. For example, when the first team ofMSHA and Cumberland personnel went
underground during the morning of July 6, 2000, methane at BEP SA was 2.6% while methane at
the No. 1 shaft was 2.2% methane. (Tr. 1049-SO; Ex. G-3). Using the July 6, 2000, readings as
an example, the BEP SA methane is 18% greater than the concentration at the fan. Using this
ratio, the 3.6% methane at the No. 1 fan on July 5 would be indicative of 4.2S% at BEP SA.
Significantly, 4.2S% methane in the bleeders is greater than the 4.0% that Cumberland admitted
would justify withdrawing personnel from the mine.
12S8

While it is not clear whether or not methane levels actually exceeded 4.5% in the
bleeders, it is clear that 3.6% at the fan was significant enough to raise serious concerns. Thus,
Cumberland should have obtained bleeder readings to ensure there were no explosive levels of
methane. In the absence of actual readings, Cumberland was obliged to err on the side of caution
and infer the existence of a hazardous condition that warranted the immediate removal of all
personnel except those designated under section 104(c) of the Mine Act who were necessary to
evaluate and correct the potentially dangerous bleeder condition. Accordingly the Secretary
bas demonstrated the fact of occurrence of a section 75.363(a) violation.
2. Significant and Substantial
As previously noted, Cumberland has elected not to further argue the S&S designation in
Citation No. 3657291 ifthe cited violation of section 75.363(a) is affirmed. (C. Br. p.19, n.8).
Having found that the bleeder conditions on July 5 constituted an imminent danger because there
was a reasonable likelihood of explosive levels of methane in the bleeder system during active
longwall mining it is clear that the S&S criteria have been met. Consequently, the Secretary's
S&S designation shall be affirmed.
3. Negligence
The Secretary attributes Cumberland's violation of section 75.363(a) to an unwarrantable
failure. The term unwarrantable failure is taken from section 104(d) of the Mine Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc.v. MSHA 52 F.3d 13, 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 ~~rcumstances of each case to see if aggravating factors exist such as
the operator's knowledge of-the existence of the violation, the length of time the violation
existed, the extent of the violative condition, and whether the violation is obvious or poses a high
degree of danger. All relevant facts and circumstances must be examined to determine if the
operator's conduct is aggravated, and whether mitigating circumstances exist. Eagle Energy Inc.,
23 FMSHRC 829, 834 (Aug. 2001) (citations omitted).
As early as the morning of July 5, 2000, Fred Evans, Cumberland's mine foreman, knew
there were problems with the bleeder system based on the rising water gauge at the No. 1 bleeder
shaft. Despite evidence of abnormally high readings of 3 .6% methane at the shaft obtained by
Hustus at approximately 3:30 p.m., as well as several additional 3.6% methane results obtained
by Dubois and Bohach beginning at 6:30 p.m., Cumberland allowed longwall operations to
continue and the miners were not advised of the potential hazard until the end of their shift. The
fact that the methane sensor at the tailgate was activated during the afternoon shift on July 5 was
an additional indication that the bleeder system was not effectively moving methane away from
the working place.
1259

Moreover, the violation posed a very high degree of danger. There was a significant
possibility that rising methane levels inby BEP SA could accumulate in the bleeder system and
back up to the longwall face if the bleeder problem was not corrected immediately. (Tr. 127,
998-99, 1024). Potential ignition sources at the longwall face included sparks generated by the
longwall shearers. (Tr.127, 1001, 1024-25). There were also numerous pieces of electrical
equipment located in the face area. (Tr. 1024). In the event of an ignition, the explosion likely
would have caused fatalities given the enormous quantity of explosive methane that could
accumulate in the eastern perimeter bleeder that was more than 9,000 feet in length.
In short, it is clear that the violation was obvious, rather than undetected, given the
repeated abnormally high methane readings in the bleeder shaft. The violation was allowed to
continue to exist for an ·extended period of time throughout the July 5 afternoon shift. Finally,
the violation was extremely dangerous. Additionally, Cumberland's failure to disclose the
bleeder problem to its hourly employees is a further indication that its conduct was unjustified.
In sum, Cumberland's conduct on July 5, 2000, is a classic case of the aggravating factors that
are the hallmarks of an unwarrantable failure. Accordingly, the Secretary has demonstrated
that Cumberland's violation of section 75.363(a) was unwarrantable.

4. Civil Penalty
The Secretary has proposed a civil penalty of $5,000 for 104(d)(l) Citation No. 3657291.
However, Commission judges make de novo findings with respect to the penalty criteria in
section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), based on the record in adjudicatory
proceedings, and they are not bound by the Secretary's proposed civil penalties. Sellersburg
Stone Co., 5 FMSHRC 287, 291 (March 1983), aff'd, 736 F.2d 1147 (71h Cir. 1984).
As previously noted, the parties have stipulated that Cumberland is a large operator; that
it has a favorable violation history; that it abated the cited violations in a timely manner; and that
payment of the proposed civil penalties will not impair its ability to continue in business. With
respect to the seriousness of the gravity of the violation, it is clear that Cumberland was worried
about the bleeder's safety qµring the July 5 afternoon shift. Its degree of concern is demonstrated
by the actions of Evans whe repeatedly directed Hustus, Bohach and DuBois to obtain additional
methane readings at the No. 1 fan after Hustus' initial 3.6% reading at approximately 3:30 p.m.
In fact, Evans apparently could not believe the high methane concentrations first detected by
Hustus because Evans ordered Hustus to recalibrate his methane detector before Hustus was sent
back to the shaft to obtain additional readings.
Despite continued high levels of methane exiting the bleeder, Cumberland's safety
concerns were not communicated to the miners who continued to work the longwall. MSHA
ventilation expert Urosek testified he had never known of methane levels in the 3.6% range
exiting a bleeder shaft in an operating coal mine. (Tr. 1009). Peelor admitted he could not recall
working in a mine when there was 4.2% in a bleeder shaft. (1725). Consequently, it is
understandable that Hroblak testified that he would have exercised his rights as a UMWA safety
committeeman and withdrawn all hourly personnel from the mine if he had known there was
3.6% methane in the bleeder shaft. (Tr. 128, 139). Under these circumstances, it is clear that

1260

Cumberland's failure to disclose the abnormally high methane concentrations exiting the bleeder
to the safety committeemen enabled Cumberland to complete the afternoon production shift
without interruption before making the necessary ventilation changes in the bleeder.
A fundamental purpose of the Mine Act is to encourage mine operators"... with the
assistance of the miners" to identify and eliminate unsafe conditions and practices in the
Nation's mines. 30 U.S.C. § 80l(e). This statutory goal is thwarted ifmine operators are not
dissuaded from withholding safety related information from miners to avoid production shut
downs. Thus, Cumberland's failure to disclose the bleeder conditions during the afternoon shift
on July 5, 2000, is an aggravating factor that warrants an increase in civil penalty.
Finally, with regard to negligence, the totality of circumstances evidencing Cumberland's
failure to suspend production despite its knowledge of the potentially hazardous bleeder
conditions demonstrates Cumberland's violation of section section 75.363(a) is attributable to a
reckless disregard. Accordingly, a civil penalty of $10,000 shall be imposed for 104(d)(l)
Citation No. 3657291.
C. 107(a) Imminent Danger Order No. 7076284
Imminent Danger Order No. 7076284, was verbally issued by Hixson at 3:30 a.m. The
order withdrew all persolUlel who were then underground to make air changes to alleviate the
high methane concentrations in the bleeder. Order No. 7076284, which was formally issued in
writing at 6:30 a.m. on July 6, 2000, states:
This imminent danger order is being issued to the mine due to
methane that is exiting the mine through the No. 1 bleeder shaft.
The methane detected measured from 3.2% to as high as 4.2%. All
persons including persons involved in the air change must be
removed from the underground portions of the mine. The
sampling of the No. 1 bleeder shaft must be done from a remote
location.
Order No. 7076284 was issued pursuant to section 107(a) of the Mine Act, 30 U.S.C.
§ 817(a). Section I 07(a) in pertinent part, provides:
If upon any inspection or investigation of a coal or other mine
which is subject to this Act, an authorized representative of the
Secretary finds that an imminent danger exists, such representative
shall determine the extent of the area of such mine throughout
which the danger exists, and issue an order requiring the operator
of such mine to cause all persons, except those referred to in
section 104(c), to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the
Secretary determines that such imminent danger and the conditions
or practices which caused such imminent danger no longer exist.

(Emphasis added).

1261

Section 104(c) of the Mine Act, 30 U.S.C. § 814(c), concerns persons designated by the
operator or the Secretary who are not subject to withdrawal orders. Specifically, section 104
provides, in pertinent part:
(c) The following persons shall not be required to be withdrawn from, or
prohibited from entering, any area of the coal or other mine subject to an order
issued under this section:
(1) any person whose presence in such area is necessary, in the
judgment of the operator or an authorized representative of the
Secretary, to eliminate the condition described in the order[.]
(Emphasis added).
As an initial matter, there is an apparent inconsistency in the Secretary's prosecution of
104(d)(l) Citation No. 3657291 that, by its terms, cited Cumberland for not withdrawing all
personnel except those 104(c) persons who were necessary to correct the cited hazardous
condition, and imminent danger Order No. 7076284 that withdrew the same persons Citation
No. 3657291 would have allowed underground. Obviously, had Hixson arrived at the
Cumberland Mine prior to midnight on July 5, 2000, when longwall operations continued despite
high bleeder shaft methane readings, Hixson would have been justified in issuing a 107(a)
imminent danger order suspending normal mining operations and withdrawing all personnel from
the mine. The issue here, however, is the propriety of a 107(a) withdrawal order issued after all
persons involved in active mining had already been withdrawn, and only those persons
designated by the operator under section 104(c)(1) of the Mine Act to correct the potential hazard
were underground.
Resolution of this issue requires analysis of the statutory provisions of section 107(a).
The first inquiry in statutory construction is "whether Congress has directly spoken to the precise
question in issue." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (April 1996). If a statute is
clear and unambiguous, effect must be given to its language. Chevron, 467 U.S. at 842-43;
accord Energy West Milling Co. V. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994).
Here, section 107(a) explicitly exempts 104(c) persons from imminent danger orders.
Section 104(c) delegates the authority to either the judgment of the operator, or, to the Secretary,
to determine when and who to send into the mine to correct hazards. By its terms, section 104(c)
does not require the operator to secure the Secretary's approval before it designates those persons
it deems necessary to evaluate and correct a dangerous condition. .
Although the statute grants the operator the discretion to exempt persons necessary to
evaluate or correct hazardous conditions from the Secretary's withdrawal orders, the operator
may not abuse its discretion by sending persons into mines who themselves are unnecessarily
exposed to unacceptable levels of danger. Thus, the focus shifts to whether Cumberland abused
its discretion after midnight on July 6, 2000, when it sent a team of ten men, comprised of seven
management employees and three hourly miners, to evaluate the bleeder system and make
ventilation changes.

1262

At the time Hixson withdrew air-change personnel at 3:30 a.m. he reasonably concluded
there was a substantial probability of explosive methane levels in the travelable bleeders based
on shaft readings ranging from 3.6% to 4.2% methane. Thus, determining whether Cumberland
abused its discretion when it sent personnel underground requires an analysis of potential sources
of ignition. The ignition sources are limited to those present in the bleeder system as
Cumberland had already suspended active mining and de-energized the longwall section.
As a preliminary matter, the Secretary asserted at the hearing that a stray bullet hitting the
No. 1 shaft, or lightening striking the shaft, were ignition sources that warranted the 107(a)
withdrawal order. These ·assertions were dismissed at the hearing because such sources of
ignition, while possible, are highly improbable, and do not pose an imminent threat.
The Secretary relies on the possibility of a roof fall as a potential source of ignition.
Although an unanticipated roof fall can occur at any time, the operative time period is the several
hours personnel were underground to implement the air changes. To demonstrate Cumberland
abused its 104(c) discretion requires a showing of some degree of imminence. The Commission
has noted that the word "imminent" is defined as "ready to take place," "near at hand,"
"menacingly near," or "impending." Utah Power & Light Co., 13 FMSHRC 1627 (October
1991 ). The Secretary has failed to identify any specific roof conditions that were in danger of
imminent collapse. General speculation that a roof fall may occur before the air changes can be
completed is not a basis for concluding that Cumberland abused its discretion when it sent
personnel underground to make ventilation changes.
The Secretary also relies on potential sparks from doors on regulators, from tools to
remove concrete block, and from bolts from spad guns, as potential ignition sources. In
response, in its Reply Brief, Cumberland relies on a September 9, 1996, memorandum from
Raymond A. Mazzoni, a mechanical engineer assigned to MSHA's Roof Control Division,
concerning laboratory analysis of cable bolt sparks as a possible methane ignition source. In the
memorandum Mazzoni concluded"... the risk of a methane ignition from cable bolt sparks was
very remote." (C. Reply Br. at 22). This conclusion was drawn from tests demonstrating the
spark temperature from a cable bolt was too low, the particle size was too small, and the duration
of the spark was too short, to ignite methane.
~

To clarify the September 9, 1996, memorandum, the Secretary proffered a November 8,
2001, signed declaration by Mazzoni that cable bolts are distinguishable from roof bolts because
they are made of flexible strands of cold-drawn steel rather than solid, hot-rolled steel bars.7
Thus, the Secretary asserts the memorandum's conclusion, that the ignition potential for cable
bolts is remote, does not apply to roof bolts. In any event, the Secretary does not contend that
roof bolting was occurring in the bleeders during the air changes. In the final analysis, the
Secretary has not shown that the ignition potential of a bolt being installed by a spad gun is
greater than the ignition potential created by installation of a cable bolt.

7

The September 9, 1996, memorandum, which was not introduced by Cumberland at trial, was
considered over the objections of the Secretary. However, the Secretary was provided with the opportunity to
respond to the memorandum. The Secretary did so by offering Mazzoni's November 8, 2001, declaration.

1263

As noted, the operative period for considering potential ignition sources is the period
necessary to make the air changes. While sparks are common at the face during normal mining
operations, speculation that a rare occurrence, such as a spark from opening a door or a regulator,
or, a spark generated from a spad gun, may occur in the bleeder during an air change does not
support the conclusion that there was an impending threat. In this regard, I credit the testimony
of Peelor and Dubois that, in their experience, they had never seen sparks generated from moving
regulator doors or hanging curtains or moving blocks. (Tr. 1696, 1699, 1810 1853). Moreover,
miners making air changes in areas with explosive concentrations of methane are on a heightened
state of alert to avoid actions that potentially could create ignition sources.
Thus, the Secretary has not shown more than a remote likelihood of ignition sources in
the bleeder entries in the early morning hours of July 6, 2000, when air changes were being
made. Consequently, the Secretary has not shown that Cumberland abused the discretion
committed to it by section 107(a) when it sent persons underground to evaluate and correct the
potentially hazardous bleeder conditions.
In reaching this conclusion, I recognize the Secretary's belief that it would have been
more prudent to wait until methane conditions at the fan shaft had improved before initiating the
air changes. In hindsight, the bleeder methane dissipated and the Secretary's belief proved to be
correct. However, when viewed prospectively, delaying implementation of the air changes
ultimately could have increased the risk if methane concentrations in the bleeder had continued
to rise.
In the final analysis, Cumberland's decision to send personnel underground to make air
changes in its bleeder system after midnight on July 6, 2000, when active mining had been
suspended and all other personnel had been withdrawn from the mine, was within the scope of its
authority under section 107(a) of the Mine Act. The evidence does not reflect that Cumberland
abused its authority. Accordingly, 107(a) imminent danger Order No. 7076284 shall be
vacated.

ORDER
1. Cumberland's request to withdraw its contests in Docket Nos. PENN 2000-207-R and
PENN 2000-208-R because of its settlement of Citation Nos. 2840951 and 2840952 in Docket
No. PENN 2001-94 IS GRANTED. ACCORDINGLY, the contests in Docket Nos. PENN
2000-207-R and PENN 2000-208-R ARE DISMISSED.
2. The Secretary's request to vacate Order Nos. 3657294 and 3657297 IS GRANTED.
ACCORDINGLY, the contest proceedings in Docket Nos. PENN 2000-209-R and Penn 2000210-R ARE DISMISSED .
. 3. In view of the above, IT IS ORDERED that 104(a) Citation No. 3657290
IS MODIFIED to reflect the cited violation was attributable to Cumberland's moderate degree
of negligence. ACCORDINGLY, Citation No. 3657290 IS AFFIRMED as modified and the
contest in Docket No. PENN 2000-181-R IS DENIED.

1264

4. IT IS FURTHER ORDERED that 104(d)(l) Citation No. 3657291 IS AFFIRMED.
ACCORDINGLY, the contest in Docket No. PENN 2000-182-R IS DENIED.
5. IT IS FURTHER ORDERED that 107(a) Order No. 7076284 IS VACATED.
ACCORDINGLY, the contest in Docket No. PENN 2000-183-R IS GRANTED.
6. IT IS FURTHER ORDERED that RAG CUMBERLAND RESOURCES LP
SHALL PAY a civil penaltyof$15,000.00 is satisfaction of Citation Nos. 3657290 and
3657291. Payment is to be made within 40 days of the date of this decision. Upon timely receipt
of payment, the civil penalty proceeding in Docket No. PENN 2001-63-A IS DISMISSED.

Jerold Feldman
Administrative Law Judge

Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301 Grant St., 201h Fl.,
Pittsburgh, PA 15219-1410 (Certified Mail)
Susan Jordan, Esq., Donald K. Neely, Esq., Office of the Solicitor, U.S. Department of Labor,
The Curtis Center, Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
(Certified Mail)
Judy Rivlin, Esq., United Mine Workers of America, 8315 Lee Highway, Fairfax, VA 220312215 (Certified Mail)

/hs

1265

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE ·
FALLS CHURCH, VIRGINIA 22041

November 26, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVlL PENALTY PROCEEDING
Docket No. WEST 99-353-M
A. C. No. 45-03334-05508

V.

NORTHWEST AGGREGATES,
Respondent

DuPont Pit

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2000-481-M
A. C. No. 45-03334-05518 A

V.

RICHARD INWARDS, employed by,
NORTHWEST AGGREGATES,
d/b/a, GLACIER NORTHWEST,
Respondent

DuPont Pit

DECISION
Appearances: Deia W. Peters, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle,
Washington, on behalf of Petitioner;
John M. Pa:Y.ne, Esq., Davis, Grimm & Payne, Marra & Berry, Seattle,
W ashingtorr, on behalf of Respondent.
Before:

Judge Zielinski

These cases are before me on Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor against Northwest Aggregates and Richard Inwards pursuant to sections 105 ·
and 1 IO(c) of the Federal Mine Safety and Health Act of 1977 (the "Act"). 30 U.S.C. §§ 815 and
820(c). The petitions allege that the corporate operator and individual agent of the operator are
each liable for two violations of mandatory safety and health standards. The Secretary proposes
civil penalties totaling $10,000.00 as to Northwest and $6,500.00 as to Inwards. A hearing was
held in Tacoma, Washington on June 12-13, 2001. Following receipt of the transcript, the parties
submitted briefs.

1266

For the reasons set forth below, I find that Northwest committed the violations alleged
and impose civil penalties totaling $3,250.00. I further find that the Secretary failed to prove that
Inwards was liable for the violations in his individual capacity and vacate the citations issued to
him.

Background
On or about February 10, 1999, MSHA was notified by phone that an accident had
occurred on February 5, 1999 at Northwest Aggregates' mine, the DuPont pit. It was reported
that a front end loader had been partially covered by a slide of material down the pit wall and that
the operator had been pinned in the cab. On February 11, 1999, Herbert Bilbrey, an MSHA
inspector, went to the DuPont pit to investigate the accident. After conversing with witnesses
and observing the scene, he issued citations to Northwest Aggregates alleging violations of
mandatory health and safety regulations for failure to inspect and test ground conditions and
using unsafe mining methods. Subsequently, a special investigation was conducted, which
resulted in identical violations being charged against Northwest's superintendent, Richard
Inwards, in his individual capacity. Those same charges were also made against Mark Snyder,
the excavation crew foreman. However, the Secretary elected not to proceed against Snyder and
the petition filed against him was dismissed on her motion.

Findings ofFact
Northwest Aggregates mines sand and gravel in the area around Tacoma, Washington.
Mining operations were conducted for many years at two locations, the Steilacoom pit and the
DuPont pit, which are located 7-8 miles apart. The minerals were deposited hy glacier
movement approximately 10,000 years ago and are very clean, i.e., there are minimal amounts of
fines, or foreign material. The materials at the Steilacoom pit had approximately 1% fines and at
the DuPont pit 3-4% fines. Deposits with less than 5% fines are classified as free draining
granular deposits. The Steilacoom pit has been in operation since 1977 and the DuPont pit,
comprising some 600 acres, opened formally in 1996. The DuPont pit operates under a permit
that allows only 30 acres to be actively worked at one time, 10 acres being cleared, 10 acres
being mined and 10 acres being reclaimed. The excavation portion of the operation, the pit, is
located about one mile from the mine's offices.
The first step in the mining process involves clearing of the overburden using a bulldozer.
The underlying sand and gravel is then scooped up with large front end loaders, CAT model
992's, and dumped onto a conveyor belt that transports the material from the pit area. The 992
loaders are very large machines. Northwest ordered the loaders with oversized, 23 foot wide,
buckets. The buckets are 8 feet deep at the throat and 7 feet nine inches high. The distance from
the teeth of the bucket to the front of the 8 foot diameter rear wheels is 23 feet. The operator sits
about 13 feet above ground level. Two 992's are operated on two shifts and one dozer operates at
the top of the pit, clearing overburden and pushing sand and gravel down the pit wall to the
loaders. The material is generally free running, that is, it readily slides down the slope of the pit
1267

wall to its natural angle of repose. This movement is referred to as sloughing and the loose
material lying at the base of the wall is referred to as "the slough."
The mining method used by Northwest involves the use of loaders to mine the slough,
i.e., scoop up the loose material that has sloughed down to the base of the pit wall. The loader
operators were to "fan out," mining as wide an area as they could. Under normal conditions, the
free running material would continue to slough to its natural angle of repose, and by the time they
returned to an area newly sloughed material would be available. If, for some reason, the material
in a particular area did not slough readily, or overhangs or ridges of unsloughed material
appeared on the pit wall, the operators were supposed to avoid that area until it sloughed or call
for the dozer to push material off the top and down the face of the pit wall, essentially forcing the
material to slough. The loader and dozer operators, as well as the excavation foreman, Mark
Snyder, and other employees had radios and could contact each other at will. The loaders dug
downhill at an approximately 5 degree angle and as progress was made the pit wall became
increasingly high. At the time of the accident on February 5, 1999, the wall was about 100 feet
high. One of the dangers posed by a wall that high is that there is a large area of the slope in
which hangups of material may occur. That material will eventually break loose, or slough, and
can cause other material to slough resulting in a large amount of material sliding down the face
of the wall to where the loader operators are working.
To avoid such dangers the loader operators were to fan out and mine the slough over a
wide area at the base of the wall, thereby allowing time for the material to slough naturally, such
that overhangs and hung up material would be eliminated by the time they returned to an area. In
addition, the loader operators were to watch the high wall for such developments and avoid
working below those areas until the material sloughed. They could also use their radios to
contact the dozer operator or the excavation foreman to request that the dozer push material off
the top of the wall, which would generate a slough. This mining method was used at the
Steilacoom pit and also at other sand and gravel mines in the same area where the materials were
similar to those being mined by Northwest. Stephen Dmytriw, a licensed civil engineer, certified
MSHA safety instructor, an instructor at the Colorado School of Mines and a retired MSHA
inspector, testified as an expert witness in civil engineering, mining techniques, slope stability
and rock mechanics. He described the nature of the materials being mined and the mining
method used by Northwest and several other sand and gravel mines in the area. In his opinion,
the mining method used by Northwest was appropriate and safe and was identical to that used by
other mines in that area.
On the morning of Friday, February 5, 1999, the day shift loader operators, William
Wallace and Jack Zinski, reported for work at their normal time, approximately 6:00 a.m. It was
raining .and they commenced mining in the DuPont pit. About 7:00 a.m., they took a break to
attend a weekly safety meeting of the excavation crew conducted by foreman Snyder. Following
the meeting they returned to work. Zinski was mining on the left side of the approximately 400
yard wide pit wall and Wallace was mining on the right. Snyder had directed him to mine in that
area earlier in the week, Tuesday or Wednesday, because the material there had a higher sand

1268

content and the mine needed more sand. As Wallace mined the area, he did not fan out widely.
Rather he mined an area only about 2-3 buckets, i.e. approximately 60 feet wide. He removed
the loose slough at the bottom of the wall and used his bucket to remove some of the
consolidated material at the base of the wall. A large slough occurred, burying the bucket of his
loader and engulfing the front wheels. He tried to back the loader out, but was unable to do so,
and called Zinski on his radio requesting help in digging his loader out of the slough. Zinski,
who had just scooped a load of material, responded immediately, dumping his load as he
proceeded toward Wallace. In the short time it took Zinski to reach Wallace a second major
slough occurred that engulfed Wallace's loader and forced the windshield of the loader out ofits
frame pressing Wallace's chest against the back of the seat. Wallace could not breath.
Fortunately, Zinski reached him quickly and was able to pull the windshield out of the material,
which relieved the pressure enough for Wallace to breath. Zinski, other crew members, Snyder
and Inwards, all of whom responded to radio calls for help, were able to extricate Wallace and
his loader. Wallace was taken to a medical facility to see if he suffered any treatable injury.
While this was the first incident in which an loader operator had suffered an injury
because of sloughing material, it was not the first time a loader had been partially engulfed.
Wallace's loader had been partially engulfed in the summer of 1998. He had mined a fairly
narrow area, creating a pocket, and material sloughed over his bucket and down around the front
wheels of his loader, which had to be freed by the other loader. On other occasions, Snyder and
Inwards had each seen Wallace mining too narrow an area, i.e., failing to fan out sufficiently, and
had cautioned him and instructed him to mine a wider area. A loader operator on the second
shift had also had his equipment partially engulfed on two occasions. He also had mined in a
narrow area, creating a pocket. Snyder was not informed about those incidents until the second
had occurred. Management officials and miners characterized the practice of mining in too
narrow an area as digging into a "death trap." The danger created by that technique was that
greater instability of the bank would be created and material could slough down around the sides
of the loader as well as from the face, or front.
When Bilbrey conducted his investigation on February 11, 1999, six days after the
incident, he spoke with man~ement employees, including Inwards and Snyder, the loader
operators, Wallace and Zinski, and visited the pit. The equipment was not there at the time and
no mining was being done, ostensibly because there was an abundance of material. He was told
that the area had been altered somewhat, in that the floor of the pit had been filled in such that
the bank, then approximately 90 feet high, was slightly lower than it had been at the time of the
accident. He took pictures of the pit area, including the location of the accident. He concluded
that the bank, or high wall, was not in a stable condition because there were portions of the face
that were not at the angle of repose. Conflicting statements were made that the dozer had been
unavailable to push material down to the loaders from one to several weeks prior to the accident.
He was told by Snyder that the mine had no policy on designating persons to inspect and test
ground conditions and that no one had been specifically designated to do so.

1269

He concluded that Northwest had violated two mandatory health and safety standards and
issued citations for each. Following a special investigation, those violations were also issued
against Inwards in his personal capacity.

Conclusions ofLaw-·Further Factual Findings
Citation No. 4531826
Citation No. 4531826 alleged a violation of 30 C.F.R. § 56.3130, which requires the use
of mining methods ''that will maintain wall, bank, and slope stability in places where persons
work or travel in performing their assigned tasks." The conditions he observed were noted on the
citation as:
Mining methods were not used that would maintain the wall, bank and slope
stability in the pit where two 992 Cat front-end-loaders work daily on two shifts.
An about 90 [foot tall] wall of sand and gravel was being mined single bench and
the ground could not be controlled. On 2/5/99 an employee was engulfed in his
992 from the wall, pushing the windshield in his lap and burying him chest high in
cab in material. The mine operator knew the ground conditions were bad and
used a dozer to push material over until about 2-3 weeks ago. This is not the first
time a front end loader has been covered up by the high wall. This violation is an
unwarrantable failure to comply with a mandatory standard and presents a high
degree of risk to miners in the pit. (The citation was modified on March 17, 1999
to add the following language.] Dick Inwards and Mark Snyder engaged in
aggravated conduct constituting more than ordinary negligence in that they did not
implement mining methods that maintained wall, bank and slope stability.
He determined that as a result of the violation it was highly likely that a fatal injury would
occur, that one person would be affected, that the violation was significant and substantial, and,
that the operator's negligence was high.

The Violation
In an enforcement proceeding under the Act, the Secretary has the burden of proving an
alleged violation by a preponderance of the evidence. In re: Contests ofRespirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), ajf'd., Secretary ofLabor v.
Keystone Coal Mining Corp., 151F.3d1096 (D.C.Cir. 1998); ASARCO Mining Co.,
15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(Nov. 1989); Jim Walter Resources Inc., 9 FMSHRC 903, 907 (May 1987).

1270

Bilbrey issued the citation because he concluded that Northwest was not following its
mining method on February 5, 1999. 1 His primary consideration was that the dozer had not been
available to push material down to the loaders for at least a week and as a result the bank had
become unstable and collapsed around Wallace's loader. He based his determination on his
observations of the high wall on February 11, 1999 and conflicting statements made during the
course of his investigation that the dozer had not been used to push material to the loaders for 1-2
weeks or 4-6 weeks prior to the accident. It is somewhat unclear who made these statements, but
one source relied upon 'Yas Victor Ghilerghi, the assistant superintendent. Ghilerghi was a young
college graduate who had been working for Respondent for approximately one year and was
"learning the mining business." There is no evidence that he had any significant contact with the
excavation operation.
Bilbrey observed the high wall on February 11, 1999, and thought that it was unstable.
He noted some hangups and concluded that most of the sloughed material had come down
naturally as opposed to having been pushed down by a dozer. He felt that the conditions verified
statements to the effect that the dozer had not been used to push material for weeks prior to the
accident. However, there was some evidence that the condition of the wall on February 11, 1999,
had been altered since February 5, 1999. The loader operators, who were present during
Bilbrey's inspection, stated that the bottom had been filled, in raising the elevation of the floor
some 15 feet. It was unclear whether there had been material pushed off the top of the wall.
There were relatively fresh dozer tracks on the top of the bank, but they were parallel to the wall,
not perpendicular as they would have been for the pushing of material. Notably, the area
identified as having been where the accident occurred was, in Bilbrey' s opinion, in a safe
condition with material at or near its angle of repose.
Zinski, Wallace and Snyder, however, testified that the dozer was working near the top of
the bank around the time of the accident and had been pushing material to Zinski the day before
the collapse. While there was some disagreement, it is apparent that a dozer can push material
down the bank at a considerably faster rate than a loader can remove it. Consequently, Zinski
was satisfied that the natural slough, augmented by the material pushed down the bank by the
dozer the day before, had produced enough sloughed material for him to mine on the day of the
accident. Wallace also testified that he had called for a dozer on prior occasions and that

There seems to be little ql!estion that the mining method ostensibly used by
Northwest was appropriate. Bilbrey so testified. Dmytriw also offered expert opinion that, given
the nature of the material, using front end loaders to mine the slough, fanning out and pushing
material from the top of the bank with a bulldozer when necessary, was a perfectly safe mining
method. ~hat mining method was employed not only by Northwest, but also by several other
surface sand and gravel mines in the area. Northwest's management personnel testified that its
mining method had been used for decades without serious incident and that it had never been
cited by MSHA for using an improper mining method in any of the once or twice yearly
inspections of its operations.

1271

material had been ·pushed to him in response, but that he had not called for a dozer to push
material to him on February 5, 1999. It should be noted that Wallace had filed a lawsuit against
Northwest as a result of the incident. The status of the case at the time of the hearing was that it
had been dismissed without prejudice to its re-filing.
I credit the testimony of Snyder and Zinski, which was consistent with that of Wallace,
likely an adverse witness, that the dozer was .active in the area and had pushed material down the
day before. Consequently, I reject Bilbrey's conclusion, perhaps justifiable in light of the
conflicting statements made on the day of his inspection, that the dozer had not been available for
weeks prior to the accident.
Although not noted by Bilbrey in the citation, the Secretary contends that Wallace was
instructed to mine in a narrow area and his ability to fan out was restricted. The evidence on
whether Wallace's ability to fan out was restricted and whether he raised concerns about it was in
direct conflict. I decline to accept that argument as a cause of the accident. Wallace's testimony
was somewhat inconsistent with respect to his mining efforts on and around the date of the
accident. He testified that the area he had been instructed to mine in was narrow, restricting his
ability to fan out until he dug down to Zinski's level and reached the base of the high wall. He
testified further that the wall collapsed before he reached the base of the wall, but also admitted
that he had gotten into the base of the wall before the collapse. The descriptions of the scene
provided by those who rescued him indicated that he had dug into the high wall, beyond the
natural slough line. Even if he had been instructed to mine in a relatively narrow area, the critical
inquiry would still center on Wallace's ability to recognize unstable conditions and call for the
dozer to push material down the bank to alleviate them.
Wallace also testified that the dozer was unavailable to push material to him that week.
However, it is apparent from his testimony as a whole that his reference to "unavailability"
described any situation where the dozer operator was doing something other than pushing
material to Wallace, not that the dozer would or could not have responded had Wallace requested
that material be pushed to alleviate unstable conditions where he was working. For example,
Wallace stated that the dozer·was pushing material to Zinski, a few hundred yards away, on the
day before the accident and, presumably, could easily have responded to a request for assistance.
However, Wallace claimed that the dozer had been "unavailable" to push material to him for
about a week. Significantly, there is no evidence that he requested that the dozer push material to
him that week and he testified that, on February 5, 1999, he did not request that a dozer push
material to remedy unstable conditions in the area where he was mining and, in fact, stated that
he did not observe any unstable conditions prior to his loader being engulfed.2

2

Wallace did testify that he had told Snyder earlier that week that the bank was too
high and should be lowered by the dozer. Snyder denied that Wallace had raised any concerns
with him. The height of the bank, in itself, would not present a dangerous or unstable condition.
Witnesses described mining significantly higher banks at other sites without incident. Raising a
general complaint about the height of the bank is markedly different than requesting a dozer to
1272

Despite my rejection of the Secretary's contentions, it is clear that unsafe mining methods
were being used on February 5, 1999 and that a violation was proven. However, the violation
was attributable to Wallace's disregard of Northwest's established mining method, not the
systemic unavailability of a dozer.
As Respondents themselves vigorously argue, Wallace was mining in a relatively narrow
area. Unstable conditions developed because the wet material did not readily slough to its angle
of repose. He failed to note the development of the instability, or mistakenly thought that the
conditions did not pose a hazard. He did not raise the issue at the safety meeting. He did not
cease mining in that area until the material sloughed naturally. Rather, he continued to mine the
narrow area, did not use his radio to request that the dozer operator push material down to him,
and actually worked into the consolidated material at the toe of the bank. He mined into a pocket
and created unstable conditions that resulted in an extensive collapse of material around his
loader that could easily have killed him.

It is well settled that under the Act mine operators are subject to a strict liability standard,
i.e., an operator is liable for a civil penalty even though its supervisory employees are without
fault with respect to the violation of a mandatory health and safety standard. ASARCO, Inc. v.
FMSHRC, 868 F.2d 1195 (l01h Cir. 1989) (aff'g 8 FMSHRC 1632) and cases cited therein. That
the violation was the result of an individual miner's actions does not absolve Northwest of
liability for the violation. It does, however, affect the unwarrantable failure analysis. Northwest
is, therefore, liable for the violation cited in Citation No. 4531826.

Significant and Substantial
A "significant and substantial" (S&S) violation is described in Section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A violation is properly designated
S&S "if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co, 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
viol_ation; (3) a reasonable. likelihood that the hazard contributed to will result in
an injury; and (4) a rea~onable likelihood that the injury in question will be of a
reasonably serious nature. (footnote omitted)

remedy an unstable condition.
1273

See also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (71h Cir. 1999); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), ajf'g, AustinPower, Inc., 9 FMSHRC 2015, 2021
(Dec. 1987) (approving Mathies criteria).

In US. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
stated further as follows:
We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." US. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. US. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); US. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75(July1984).
This evaluation is made in terms of "continued normal mining operations." US. Steel
Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
1007 (Dec. 1987).
The violation was S&S. The use of an unsafe mining method contributed to creation of a
hazard, an unstable high wall, that resulted in a reasonable likelihood that an injury would occur
and that the injury would be serious. While the Secretary need not prove that the hazard
contributed to resulted in an accident or actually will result in an injury causing event, Arch of
Kentucky, 20 FMSHRC 1321, 1330 (Dec. 1998), the hazard contributed to here actually did
result in a serious, life threatening, injury to Wallace.

Unwarrantable Failure

In Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999), the Commission reiterated
the law applicable to determining whether a violation was 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. fu Emery Mining Corp., 9 FMSHR.C 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." Id. at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991);
see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)
1274

(approving Commission's unwarrantable failure test). The Commission has
recognized that a number.of factors are relevant in determining whether a
violation is the result of an operator's unwarrantable failure, such as the
extensiveness of the violative condition, the length of time that the violative
condition has existed, the operator's efforts to eliminate the violative condition,
and whether an operator has been placed on notice that greater efforts are
necessary for compliance. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Peabody C9a/Co., 14 FMSHRC 1258, 1261 (Aug. 1992). The
Commission also considers whether the violative condition is obvious, or poses a
high degree of danger. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44
(Aug. 1992) (finding unwarrantable failure where unsaddled beams "presented a
danger" to miners entering area); Warren Steen Constr., Inc., 14 FMSHRC 1125,
1129 (July 1992) (finding violation aggravated and unwarrantable based on
"common knowledge that power lines are hazardous, and ... that precautions are
required when working near power lines with heavy equipment"); Quin/and
Coals, Inc., 10 FMSHRC 705, 709 (June 1988) (finding unwarrantable failure
where roof conditions were "highly dangerous"); Kitt Energy Corp., 6 FMSHRC
1596, 1603 (July 1984) (conspicuous nature of the violative condition supports
unwarrantable failure finding).
I do not find that the violation was the result of an unwarrantable failure by Northwest.
The primary bases for Bilbrey's determination that the operator's negligence was high and that
the violation was an unwarrantable failure were his conclusions that the dozer had not been
available to push material to the loaders for a period of weeks prior to Wallace's accident and
that other similar events had occurred in the past. The availability of a dozer was an important
component of Northwest's mining method. While the material tended to slough naturally, it was
often necessary to push material down the bank to eliminate unstable hangups of material and
augment the natural slough. The unavailability of the dozer for an extended period of time
would, indeed, be evidence of high negligence. However, as noted above, I have found that the
dozer was, in fact, available to push material and had been used the day before the accident.
Wallace also admitted that he had not called for a dozer to push material to him. With the
availability of the dozer, Northwest's mining method was appropriate.
The fact that there had been past instances where loaders had been partially engulfed does
not alter this conclusion. The weight of the evidence as to the cause of those incidents was that
the operators had deviated from Northwest's established mining method, i.e., had mined in too
narrow an area creating an unsafe pocket.3 Those incidents had been appropriately dealt with by

3

There was evidence that .t he dozer was "unavailable" at the time of some of the
prior incidents. However, .a s with Wallace's testimony, the references to unavailability reflect
only that the dozer and/or the dozer operator were doing things other than pushing material to the
involved loader operator atthe time. There was no evidence that the loader operators had called
for a dozer to push material to alleviate an unstable condition, or that such requests were not
1275

Northwest. While the miners were not formally disciplined for their actions, they were, in
essence, reprimanded. It would also have been reasonable to assume that the occurrences would
have impressed upon the involved operators the very real dangers posed by deviations from the
established mining method. Northwest was on notice that Wallace had, on two prior occasions,
mined in too narrow an area. At least in retrospect, it could be faulted for not taking more
aggressive actions to deter such conduct. However, its failure to do so does not amount to high
negligence or aggravated conduct.4
It is significant that Northwest, which had used the same mining method for decades, bad
not been cited by MSHA for unsafe mining methods in any prior inspection. Lack of prior
enforcement is not relevant to the determination of a violation but is relevant evidence on the
issue of negligence. See, US. Steel Mining Co., Inc., 15 FMSHRC 1541, 1547-47 (Aug. 1993).
I find that Northwest's negligence was low to moderate and that the violation was not the result
of its unwarrantable failure.

Citation No. 4531825
Citation No. 4531825 alleged a violation of30 C.F.R. § 56.3401, which provides, in
pertinent part:

§ 56.3401 Examination of ground conditions.
Persons experienced in examining and testing for loose ground shall be
designated by the mine operator. Appropriate supervisors or other designated
persons shall examine and, where applicable, test ground conditions in areas

honored.
4

Bilbrey also placed weight on the fact that the loader operators had made
complaints about the operation several months before and occasionally thereafter. The
conditions complained of, however, were related to the purchase of the new CAT 992's with the
oversized buckets. When operated on a slight downgrade, i.e., digging down at 4-5 degrees, the
rear wheels would hop when the loader was backed upgrade with its bucket full, jarring the
machine and operator and requiring travel at a lower speed. The rear wheels also lost traction
more easily and the machine was unable to back quickly away from the slough. In response,
calcium chloride and water were put into the rear tires, creating more weight at that end of the
loader. The operators were not entirely satisfied with that solution, however, and preferred to
work on flat or level ground. Continued complaints about mining "downhill" were rejected,
because ·there was nothing else that could be done about the problem and mining downhill was
necessary to efficiently extract the material. While safety may have been a concern, it appears
that the operators' complaints were grounded on performance issues, i.e., the uncomfortable .
bouncing and related increases in cycle time -- the time required to scoop a bucket of material,
travel to the conveyor, dump it and return to get another load.
1276

where work is to be performed prior to work commencing, after blasting, and as
ground conditions warrant during the work shift. * * * ·
The conditions he observed were noted on the citation as:
The mine operator failed to designate a person or persons experienced in
examining and testing for loose ground conditions at the pit. The pit foreman,
Mark Snyder, stated that he was in charge of the pit and he did no such exam nor
did he assign these duties. The ground conditions change rapidly with the heavy
rains this time of year. The pit was not examined prior to work commencing and
as ground conditions warrant. An employee was covered up with material from
the wall operating a 992 front end loader on 215199. This violation is an
unwarrantable failure to comply with a mandatory standard. Mine pit runs two
shifts. Failure to comply with this standard presents a high degree of risk to
miners. [The citation was modified on March 17, 1999 to add the following
language.] Pit foreman, Mark Snyder, engaged in aggravated conduct constituting
more than ordinary negligence in that he was in charge of the pit and did not
assign these duties of inspecting the ground conditions to anyone nor did he do the
inspections himself.
He determined that as a result of the violation it was highly likely that a fatal injury would
occur, that one person was affected, that the violation was significant and substantial, and, that
the operator's negligence was high.
The Violation

Northwest had no formal policy, written or unwritten, of designating individuals to
conduct examinations and testing of ground conditions either prior to the commencement of
work or as conditions warranted during the work shift. Snyder was generally at the pit once a
day or more, but there is no claim that his visits were made prior to work commencing or as
dictated by changing ground'_Conditions and he had not gone to the pit on February 5, 1999, prior
to the accident.
Northwest's defense to this charge is that, by virtue of their job descriptions, the loader
operators were supposed to continuously survey the high wall for unsafe conditions and, if the
natural slough of material was insufficient, move to another area and call for the dozer to push
material to eliminate the instability. This duty to keep an eye on the high wall was periodically
reinforced at safety me·etings. Consequently, Northwest argues, the loader operators had been
designated to examine ground conditions and were doing so at the time.
This is clearly an after-the-fact justification, and an inadequate one. It is apparent that
Northwest had made essentially no effort to comply with the regulation. Inwards and Snyder
initially told Bilbrey that such examinations were not being done and that no one had been
1277

designated to do them, including the loader operators. 5 fuwards admitted to Bilbrey that he was
unaware of the specific regulation prior to the inspection, though he was aware of a regulation
requiring miners to examine their workplace before beginning work. Bilbrey described a proper
ground conditions examination as involving visual inspection of the entire high wall from the top
and bottom to detect separations and other unsafe conditions, such as overhangs. No evidence
was introduced to challenge Bilbrey's description of a proper examination. Assuming that the
loader operators visually observed the high wall in the area they were removing material from,
something they would presumably do in any event for their own safety, it is clear that Northwest
had not designated anyone to conduct a proper ground conditions examination prior to work
commencing and as conditions indicated and that such examinations and testing were not being
done at the time of the accident.
Northwest argues that the loader operators were knowledgeable as to slough patterns,
wind and weather conditions, ground conditions, break-offs, aggregate composition and
excavation techniques and that they were appropriately designated by Snyder. However, while
they had experience as miners in observing high walls as they worked, it is questionable that they
had sufficient training or experience in conducting proper examinations of ground conditions,
and testing them as indicated, to satisfy the standard. Dmytriw, an expert in the field of civil
engineering and slope stability, testified that the material would slough naturally under most
conditions, but, that it would slough less readily when it was wet. If it was saturated to the point
that water would come off the wall, he opined that it would be very unstable and should not be
mined. Wallace, one of the individuals Northwest relies upon as having been qualified to
examine and test ground conditions, thought that the material sloughed more readily when wet.
Bilbrey' s notes also indicate that Wallace told him that it was raining heavily when the shift
started on February 5, 1999, such that water was coming off the wall. Yet this unsafe condition
was apparently not recognized or mentioned at the safety meeting.
Northwest could have achieved compliance with the regulation by designating all
members of the crew to examine and test ground conditions, if they possessed the requisite
qualifications.6 However, it is apparent that the loader operators had not been designated to
conduct proper examination(of ground conditions as required by the regulation and were not, in
fact, conducting such examinations. While Northwest does not argue that Snyder had been
designated to examine and test ground conditions, the same is true as to him. While he did visit
the pit, generally on a daily basis, and would observe conditions there, including the high wall,
there is no evidence that he had been designated to examine and test ground conditions as

5

Snyder testified that his statement that Northwest had no policy on designating
individuals to examine ground conditions was addressed only to formal written policies. I reject
that explanation. The statement itself was not qualified in any way and was consistent with other ,
statements made by Snyder.
6

The Secretary argues that designating all of the miners to conduct examinations
and testing of ground conditions is, in essence, designating no one.
1278

required by the regulation. There was no claim that he visited the pit prior to work commencing
and he had not been to the pit on February 5, 1999, prior to the accident. Northwest violated the
regulation.
Significant and Substantial
The violation was S&S. Failure to conduct a proper examination of ground conditions,
and test where indicated1 prior to work commencing and as conditions warrant, under continued
normal mining operations would contribute to a hazard, the development of unstable conditions
in the high wall. Particularly as the high wall reached heights of 100 feet, there was a
considerable area over which hangups or other unstable conditions could develop. Bilbrey noted
several such conditions when he observed the high wall on February 11, 1999. Weather
conditions, most importantly the amount of rainfall, varied considerably and would affect the
development of unstable conditions as the natural sloughing property of the material varied. The
development of unstable conditions on a high wall would pose a reasonable likelihood that an
injury would result and that the injury would be of a reasonably serious nature.
Northwest argues that the February 5, 1999, accident was entirely the result of Wallace's
improper mining actions and that there is no evidence that a proper examination of ground
conditions would have disclosed those unstable conditions. That argument misses the mark. As
noted above, the Secretary need not prove that the hazard contributed to resulted in an accident or
actually will result in an injury causing event. Arch ofKentucky, supra. Wallace's accident,
aside from confirming the obvious - that an injury resulting from the hazard of unstable ground
conditions in the high wall would likely be serious - has minimal bearing on whether the
violation was S&S. 7
Northwest also argues that the absence of any prior injuries from unstable ground
conditions precludes a conclusion that an injury would be reasonably likely to occur as a result
of the hazard contributed to. However, the absence of prior injuries is only one factor in the
evaluation. The determination of whether a violation was S&S must be made assuming
continued normal mining operations and I am convinced that the hazard contributed to by the
7

In any event, it is not at all clear that Northwest's assP.rtion is correct. There is
evidence of unusually heavy rainfall on the morning of February 5, 1999, such that water was
coming off the high wall, an unstable condition. Even though the scene of the accident had been
altered somewhat by the time ofBilbrey's February 11, 1999 inspection, he did observe several
conditions that indicated instability in the high wall. The fact that the area where the accident
occurred appeared to be at the angle of repose is hardly remarkable. It was material sloughing to
its angle ofrepose that engulfed Wallace's loader. Even though Wallace's continued digging
into the face of the wall no doubt exacerbated any unstable conditions, it is entirely possible that
a proper examination and, if indicated, testing of ground conditions on the morning of February
5, 1999, would have identified unstable conditions and avoided the subsequent accident.

1279

violation posed a reasonable likelihood of a reasonably serious injury occurring.

Unwarrantable Failure
Northwest and its managefs, particularly Snyder and Inwards, should have been aware of
the regulation and taken steps to comply with it. While the operator's negligence was at least
moderate, I cannot agree with Bilbrey's conclusio_n that the violation was a result of Northwest's
unwarrantable failure. The violation was longstanding, but, it had not been the subject of prior
enforcement action and was not, in itself, a highly dangerous condition. The observations by the
loader operators, foreman and superintendent were not sufficient to satisfy the requirements of
the regulation. However, they did partially address the goal of inspecting for dangerous
conditions. The prior instances of sloughs partially engulfing loaders were reasonably thought by
Northwest to have been attributable to miners' deviations from established mining methods, not
to any failure to examine ground conditions. The absence of enforcement action over a period of
several years is a significant mitigating factor. Compare the facts in this case with those in Wiser
Construction, 18 FMSHRC 1641 (Sept. 1996) (ALJ), where a similar violation was held to be
the result of an unwarrantable failure where the operator had violated an imminent danger order
issued some six months earlier and had had prior discussions with MSHA officials identifying
the violative practice subsequently cited.

Individual Liability
The Act provides that a director, officer or agent of a corporate operator may be subject to
civil penalties in his individual capacity for knowingly authorizing, ordering or carrying out a
violation of the Act. 30 U.S.C. § 820(c). The legal standards governing individual liability were
summarized in a recent Commission decision, Target Industries, Inc. 23 FMSHRC 945, 963
(Sept. 2001) (Commissioner Beatty):
Section 110(c) provides that, whenever a corporate operator violates a
mandatory health or safety standard, a director, officer, or agent of such corporate
operator who knowingly authorized, ordered, or carried out the violation shall be
subject to an individual civil penalty. 30 U.S.C. § 820(c). The proper legal
inquiry for determining liability under section 110(c) is whether the corporate
agent knew or had reason to know of a violative condition. Kenny Richardson,
3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d 632 (6th Cir.
1982), cert. denied, 461 U.S. 928 (1983); accord Freeman United Coal Mining
Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C.Cir. 1997). To establish section
110(c) liability, the Secretary must prove only that an individual knew or had
reason to know of the violative conditions, not that the individual knowingly
violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July
1992) (citing United States v. lnt'l Minerals & Chem. Corp., 402 U.S. 558, 563
(1971)). A knowing violation occurs when an individual "in a position to protect
employee safety and health fails to act on the basis of information that gives him

1280

knowledge or reason to know of the existence of a viol~tive condition." Kenny
Richardson, 3 FMSHRC at 16. Section 110(c) liability is predicated on
aggravated conduct constituting more than ordinary negligence. BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992). * * *
I find that the Secretary has failed to prove that Inwards was individually liable for the
violations. As to the unsafe mining methods charge, Northwest's mining method was
appropriate and safe. It was Wallace' s deviation from it that resulted in the violation. The
Secretary's theory as to Inwards was based upon allegations that he had instructed Snyder to
direct Wallace to mine in a narrow area where his ability to fan out was restricted. However, the
only evidence to support that contention was that Inwards had been observed overseeing the pit
for a few minutes around the time that Wallace had been directed to mine in that area8 and
statements allegedly made by Snyder to Wallace. Both Snyder and Inwards denied that Inwards
had any involvement in directing Wallace where to mine. Snyder testified that it was his
determination that Wallace should mine in the area where there was a greater concentration of
sand based upon his knowledge from observing the stockpiles that Northwest was low on sand.
Even if Wallace had been instructed to work in a narrow area, restricting bis ability to fan out, no
safety hazard would have been presented as long as the dozer was available to push material
augmenting the natural slough.
The Secretary also relies upon statements allegedly made by Snyder to the loader
operators that their continued complaints about the °loaders and mining downhill had been
transmitted to Inwards and that he refused to take further action beyond having calcium chloride
put into the rear tires. However, as noted above, those complaints were not prompted by safety
concerns and Inwards' failure to further address them was dictated by legitimate business
considerations. There was nothing more that could be done about the weight balance of the
loaders and switching to smaller buckets would have cut production. Likewise, mining at a slight
downward angle of approximately 5 degrees was necessary to effectively mine the deposit.
Neither the loaders, nor the practice of mining downhill posed significant safety risks if
Northwest' s mining methoq_was followed.
The charge that Inwards failed to assure that qualified individuals were designated to
properly examine and test ground conditions carries more weight. Inwards should have been
aware of the regulation and made sure that it was complied with. However, he had been in a
position of authority for many years during which Northwest had conducted operations in
essentially the same manner. He was personally aware that MSHA inspectors had inspected
Northwest's mines on numerous prior occasions and had never issued a citation for failure to
comply with that regulation or otherwise indicated that Northwest's compliance was lacking.
Under the circumstances, I do not find that Inwards' failure to assure that qualified individuals
8

Inwards had broken his ankle in November of 1998 and began working on a parttime basis in late January, being driven to work by his wife. He was not cleared to return to work
full-time until February 11, 1999, the date ofBilbrey's inspection.
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had been designated to conduct proper examinations of ground conditions and perform testing
where indicated, was due to aggravated conduct. Rather it was due to ordinary negligence.
Accordingly, the citations issued to Inwards in his individual capacity will be vacated.
The Appropriate Civil Penalty
Northwest's DuPont pit is a medium sized mine, with approximately 77,161 hours
worked per year and its controlling entity is also a medium sized operation with 1,050, 112 hours
worked per year. It has a moderate history of violations, with 38 violations having been issued
over 32 inspection days.in the 24 months preceding the issuance of the subject citations.
Respondent did not argue in its brief that payment of the proposed civil penalties would threaten
its ability to continue in business. In light of these facts, I find that neither payment of the
proposed civil penalties, nor payment of the reduced civil penalties imposed by this decision, will
impair Respondent's ability to continue in business. I also find that the civil penalties imposed
below are appropriate to the size of Respondent's business.
The proposed civil penalty for Citation No. 4531825 was $4,500.00. The violation was
sustained. However, the violation was held to have been the result of low to moderate
negligence and not the result of Respondent's unwarrantable failure. Taking into consideration
all of the factors required to be assessed under§ l lO(i) of the Act, I impose a civil penalty of
$750.00 for this violation.
The proposed civil penalty for Citation No. 4531826 was $5,500.00. The violation was
sustained. However, the violation was held to have been the result of moderate negligence and
not the result of Respondent's unwarrantable failure. Taking into consideration all of the factors
required to be assessed under§ l lO(i) of the Act, I impose a civil penalty of $2,500.00 for that
violation.

ORDER
The citations issued to Inwards in his individual capacity, Citations No'd. 4531825A and
4531826A, are hereby VACATED and the petition in Docket No. WEST 2000-481-M is hereby
DISMISSED.
Citations No' d. 4531825 and 4531826, issued to Northwest are hereby affirmed, as
modified, and Northwest is directed to pay a civil penalty of $3,250.00 within 45 days.

~·
'

~-----=-...:....::.:__

Michael E. Zier
i
Adminislrative Law Judge

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Distribution:
Deia W. Peters, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101 -3212 (Certified Mail)
John M. Payne, Esq., Davis, Grimm & Payne, Marra & Berry, 1111 Third Avenue, Suite 1865,
Seattle, WA 98101 (Certified Mail)
\mh

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: *U.S. GOVERNMENT PRINTING OFFICE:2001-492-135/52455

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