November 2013
TABLE OF CONTENTS

COMMISSION DECISIONS
11-20-2013

REVELATION ENERGY, LLC

KENT 2011-71-R

Page 3333

11-22-2013

LONE MOUNTAIN PROCESSING, INC.

KENT 2011-1153

Page 3342

COMMISSION ORDERS
11-05-2013

PIERCE SAND

CENT 2012-128-M

Page 3353

11-05-2013

COLORADO COUNTY SAND &
GRAVEL, LLC

CENT 2013-3-M

Page 3356

11-05-2013

NORTHAMERICAN INDUSTRIAL
SERVICES, INC.

WEST 2012-1177-M

Page 3359

11-05-2013

GLEN ALUM OPERATIONS, LLC

WEVA 2011-2202

Page 3362

11-05-2013

HARRY C. CROOKER & SONS, INC.

YORK 2012-84-M

Page 3365

ADMINISTRATIVE LAW JUDGE DECISIONS
11-05-2013

PAUL D. BENTLEY employed by
BLEDSOE COAL CORPORATION

KENT 2013-307

Page 3369

11-06-2013

ICG KNOTT COUNTY LLC

KENT 2012-575

Page 3383

11-13-2013

LUDWIG EXPLOSIVES, INC.

LAKE 2011-530-RM

Page 3392

11-13-2013

OAK GROVE RESOURCES, LLC.

SE 2009-261-R

Page 3422

11-18-2013

DAVID A. STACHE v. ALVIN J.
COLEMAN & SON, INC.

YORK 2013-41-DM

Page 3432

11-19-2013

ANDALEX RESOURCES, INC

WEST 2008-1151

Page 3453

11-26-2013

PRESLEY TRUCKING COMPANY,
INC.

KENT 2011-205

Page 3471

11-27-2013

AUSTIN POWDER COMPANY, INC.

KENT 2010-1529-M

Page 3474

i

ADMINISTRATIVE LAW JUDGE ORDERS
11-18-2013

ADAM WHITT, EMPLOYED BY
INMAN ENERGY

WEVA 2013-631

Page 3487

11-25-2013

CHEMICAL LIME CO. OF ALABAMA,
LLC

SE 2010-1107-M

Page 3492

ii

Review was granted in the following cases during the month of November 2013:

Secretary of Labor, MSHA v. Big Ridge, Inc., Docket Nos. LAKE 2012-475. (Judge McCarthy,
September 25, 2013)
Secretary of Labor, MSHA v. Maxxim Rebuild Company, LLC, Docket No. KENT 2013-566.
(Judge Miller, October 23, 2013)

No cases were filed in which Review was denied during the month of November 2013.

.

iii

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 20, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
REVELATION ENERGY, LLC

:
:
:
:
:
:
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Docket No. KENT 2011-71-R

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY THE COMMISSION:
This contest proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2006) (“Mine Act”). At issue is whether a Commission Administrative
Law Judge correctly determined that a two-ton rock leaving a mine after a blast and landing in a
residential yard, with no injuries, constitutes an “accident” for purposes of an order issued
pursuant to section 103(k) of the Mine Act, 30 U.S.C. § 813(k).1 For the reasons that follow, we
conclude that the definition of “accident” set forth in section 3(k) of the Mine Act, 30 U.S.C.

1

Section 103(k) of the Mine Act provides:
In the event of any accident occurring in a coal or other mine, an
authorized representative of the Secretary, when present, may issue
such orders as he deems appropriate to insure the safety of any
person in the coal or other mine, and the operator of such mine
shall obtain the approval of such representative, in consultation
with appropriate State representatives, when feasible, of any plan
to recover any person in such mine or to recover the coal or other
mine or return affected areas of such mine to normal.

30 U.S.C. § 813(k).

35 FMSHRC Page 3333

§ 802(k),2 applies to usage of the term in section 103(k) of the Act, and that the term “accident”
in section 3(k) includes events that are similar in nature to, or have a similar potential for injury
or death as, the events specifically listed in section 3(k). Finally, we conclude that the subject
blasting event constitutes an accident within the meaning of sections 3(k) and 103(k).
Accordingly, we affirm in result the Judge’s determination.
I.
Factual and Procedural Background
Revelation Energy, LLC, operates the S-1 Hunts BR Mine, a surface coal mine in Pike
County, Kentucky. On October 7, 2010, during blasting operations, a two-ton rock, which was
about six feet in diameter, was blasted off the mine property. The rock rolled down a hill
through a residential yard and came to rest in a creek near a roadway below the owner’s home.
Nobody was injured.
On October 8, 2010, an inspector with the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) issued Order No. 8247763 pursuant to section 103(k) of the
Mine Act, requiring Revelation to obtain MSHA’s approval before undertaking further activities
or engaging in blasting operations.3 Later that day, the order was modified to permit
implementation of the operator’s plan of action. On October 20, 2010, MSHA terminated the

2

Section 3 of the Mine Act provides in part:
For the purpose of this chapter, the term –
(k) “accident” includes a mine explosion, mine ignition, mine fire,
or mine inundation, or injury to, or death of, any person.

30 U.S.C. § 802(k).
3

The order states in part:
A non injury blasting incident occurred at this surface at
approximately 6:30 PM resulting in a rock about 6 feet in diameter
and weighing approximately 2 tons leaving mine property. . . .

This 103(k) order is issued to protect the safety of all
persons on mine site and off mine site. The mine operator shall
obtain prior approval from an authorized representative of the
Secretary for all actions to investigate and restore operations to
normal. . . .
RE Mot. for Sum. Dec., Ex. 1.

35 FMSHRC Page 3334

order after Revelation revised its ground control plan to include additional blasting precautions
to prevent similar occurrences. S. Br. at 2.
Revelation subsequently contested the order and filed a motion for summary decision
before the Administrative Law Judge asserting that the order was invalid because the blasting
event was not an “accident” within the meaning of section 103(k) of the Mine Act. The operator
contended that the incident did not result in any injuries and was not one of the events listed in
the definition of “accident” set forth in either section 3(k) of the Mine Act or in 30 C.F.R.
§ 50.2(h).4 The Secretary of Labor opposed the motion, arguing that the incident constituted an
accident because it was similar in nature or presented a similar potential for injury as the types of

4

30 C.F.R. § 50.2(h) provides:
Accident means:
(1) A death of an individual at a mine;
(2) An injury to an individual at a mine which has a reasonable
potential to cause death;
(3) An entrapment of an individual for more than 30 minutes or
which has reasonable potential to cause death;
(4) An unplanned inundation of a mine by a liquid or gas;
(5) An unplanned ignition or explosion of gas or dust;
(6) In underground mines, an unplanned fire not extinguished
within 10 minutes of discovery; in surface mines and surface areas
of underground mines, an unplanned fire not extinguished within
30 minutes of discovery;
(7) An unplanned ignition or explosion of a blasting agent or an
explosive;
(8) An unplanned roof fall at or above the anchorage zone in active
workings where roof bolts are in use; or, an unplanned roof or rib
fall in active workings that impairs ventilation or impedes passage;
(9) A coal or rock outburst that causes withdrawal of miners or
which disrupts regular mining activity for more than one hour;
(10) An unstable condition at an impoundment, refuse pile, or
culm bank which requires emergency action in order to prevent
failure, or which causes individuals to evacuate an area; or, failure
of an impoundment, refuse pile, or culm bank;
(11) Damage to hoisting equipment in a shaft or slope which
endangers an individual or which interferes with use of the
equipment for more than thirty minutes; and
(12) An event at a mine which causes death or bodily injury to an
individual not at the mine at the time the event occurs.

35 FMSHRC Page 3335

events enumerated in section 3(k) of the Mine Act, which, he contends, defines “accident” for
purposes of section 103(k).
On June 30, 2011, the Judge issued a decision concluding that the blasting event was an
accident.5 33 FMSHRC 1555, 1557-60 (June 2011) (ALJ). Relying on the common dictionary
definition of “accident,” the Judge concluded that an accident is an “unexpected and
undesirable” event, and that the blasting event was clearly unexpected and undesirable. Id. at
1559. The Judge stated that the Secretary need not prove that the event is similar in nature or has
a similar potential to cause death or injury as the enumerated items listed in section 3(k). Id. at
1557 n.3, 33 FMSHRC at 1562.
The Commission granted Revelation’s petition for discretionary review.
II.
Disposition
On review, Revelation argues that the blasting event did not constitute an accident and
that, on the basis of MSHA’s Program Policy Manual,6 the Secretary should be limited by his
definition of the term set forth in 30 C.F.R. § 50.2(h). The operator also asserts that the statute is
unconstitutionally vague and that the Secretary’s interpretation violates its due process rights.
We disagree.
This case turns on the meaning of the word “accident” as used in section 103(k) of the
Mine Act. As discussed below, and applying a “Chevron” analysis, we conclude that the plain
meaning of “accident” in section 103(k) refers to the definition of “accident” in section 3(k) of
the Act, that the plain meaning of “accident” in section 3(k) includes more than the specific
events enumerated in section 3(k), and that the scope of section 3(k)’s definition of “accident” is
ambiguous. We accord deference to the Secretary’s reasonable interpretation of “accident” as
including events that are similar in nature to, or have a similar potential for injury or death as,
the events specifically listed in section 3(k).

5

On January 21, 2011, the Judge had issued an order holding that the blasting event was
an “accident” within the meaning of section 103(k) and denying Revelation’s motion for
summary decision. See 33 FMSHRC 1561, 1562 (June 2011) (ALJ). Based on the Judge’s
determination, the Secretary subsequently filed a motion to dismiss the operator’s notice of
contest. Revelation opposed the motion and filed a renewed motion for summary decision. The
Judge’s June 30, 2011, decision granted the Secretary’s motion to dismiss and denied
Revelation’s renewed motion for summary decision.
6

Under the section regarding “Mine Accident and Rescue, Recovery and Preservation of
Evidence,” the PPM states that “the term ‘accident’ is defined in 30 C.F.R. part 50.2(h).” I
MSHA, U.S. Dep’t of Labor, Program Policy Manual, Sec. 103, at 17 (Jan. 2010).

35 FMSHRC Page 3336

Section 103(k) of the Mine Act empowers an authorized representative of the Secretary
to issue such orders as he deems appropriate to insure the safety of any person in a mine in the
event of an “accident” at the mine. 30 U.S.C. § 813(k). Section 3(k) of the Mine Act, which sets
forth definitions “[f]or the purpose of this chapter,” provides that “accident includes a mine
explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30
U.S.C.
§ 802(k).
In considering the meaning of the Mine Act, we must “give effect to the unambiguously
expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 843 (1984). If however, the statute is ambiguous or silent on a point in question, a second
inquiry is required to determine whether an agency’s interpretation of a statute is a reasonable
one. See Chevron, 467 U.S. 843-44; Thunder Basin Coal Co., 18 FMSHRC 582, 584 n.2 (Apr.
1996). Deference is accorded to “an agency’s interpretation of the statute [that] it is charged
with administering when that interpretation is reasonable.” Energy West Mining Co. v.
FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844). The agency’s
interpretation of the statute is entitled to affirmance, as long as that interpretation is one of the
permissible interpretations that the agency could have selected. Joy Technologies, Inc. v. Sec’y
of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997) (citing Chevron,
467 U.S. at 843); Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).
As the Eighth Circuit recently held in a similar case, the “plain text of section 3(k)
suggests that the term ‘accident’ is not limited to the enumerated items contained in the
definition.” Pattison Sand Co. v. FMSHRC, 688 F.3d 507, 513 (8th Cir. 2012). The court
reasoned that the definition uses the word “includes,” which is usually a term of enlargement,
and not of limitation. Id. (citing Burgess v. United States, 553 U.S. 124, 131 n.3 (2008) (citation
omitted)). “When a statute uses the word ‘includes’ rather than ‘means’ in defining a term, it
does not imply that items not listed fall outside the definition.” Id. (quoting United States v.
Whiting, 165 F.3d 631, 633 (8th Cir. 1999)); see Burgess, 553 U.S. at 130; see also American
Coal Co., 35 FMSHRC 380, 386 (Feb. 2013) (quoting Pattison, 688 F.3d at 513). The court
noted that all other definitions in the Act, with one exception, use “means” rather than
“includes,” and that the differentiated use of “means” and “includes” by Congress implied that it
was mindful of the distinct connotations of the two words when it drafted the definition section.
Id. (citing Sosa v. Alvarez–Machain, 542 U.S. 692, 711 n.9 (2004)).
Nonetheless, “[w]hile the text indicates that the term ‘accident’ extends beyond the
definition’s enumerated items, ambiguity remains regarding just how far the definition sweeps.”
Pattison, 688 F.3d at 513. In Pattison, as in this case, the Secretary argued that “accident”
includes events that are similar in nature or have a similar potential to cause death or injury as
the listed items. Id. The court held that under Chevron, the Secretary’s interpretation was
reasonable. Id. The court reasoned that because the Act is remedial in nature, its terms should
be construed broadly. Id. (citing Sec’y of Labor, o/b/o Bushnell v. Cannelton Indus. Inc., 867
F.2d 1432, 1437 (D.C. Cir. 1989)). It explained that the Act’s purpose in protecting miners

35 FMSHRC Page 3337

would be undermined if the Secretary lacked the power to take remedial measures simply
because all miners fortuitously escaped injury or death in a dangerous mine incident. Id.
Consistent with the court’s reasoning in Pattison, we conclude that the scope of the term
“accident” is ambiguous, and that the Secretary’s interpretation is permissible and entitled to
deference under Chevron.
First, the Secretary’s interpretation is consistent with the language of the Act. The use of
the term “includes” in section 3(k) is a term of enlargement that reasonably includes events that,
while not listed, are similar in nature to, or have a similar potential to cause death or injury as,
the listed items.
Second, the Secretary’s interpretation is consistent with the legislative purpose of the
Act. Section 103(k) constitutes a broad grant of discretionary authority to the Secretary to
protect miners in the event of a mine accident. See Miller Mining Co. v. FMSHRC, 713 F.2d
487, 490 (9th Cir. 1983) (“Section 103(k) gives MSHA plenary power to make post-accident
orders for the protection and safety of all persons.”) (emphasis in original). The Senate Report
states:
The unpredictability of accidents in mines and uncertainty
as to the circumstances surrounding them requires that the
Secretary or his authorized representative be permitted to exercise
broad discretion in order to protect the life or to insure [sic] the
safety of any person. The grant of authority . . . in Section
[103(k)] to issue orders is intended to provide the Secretary with
flexibility in responding to accident situations, including the
issuance of withdrawal orders. . . .
S. Rep. No. 181, at 29 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978).
Reading section 103(k) to give the Secretary authority to protect miners and other
persons in the event of an incident that is similar in nature to, or presents a similar potential for
injury or death as, the events specifically listed in section 3(k) is consistent with Congress’ intent
to give the Secretary broad authority to protect persons in the event of an accident. See also
American Coal Co., 35 FMSHRC at 386 (stating that the determination of “accident” should be
read broadly to carry out Congress’ objective).
We do not accept the operator’s argument that the Secretary, in issuing section 103(k)
orders, should be limited by his definition of “accident” set forth in section 50.2(h). The
definition of “accident” in section 50.2(h) is narrower in scope than the definition of “accident”
in section 3(k) of the Act and defines what constitutes an accident for reporting purposes.
Aluminum Co. of Am., 15 FMSHRC 1821, 1826 (Sept. 1993) (stating that section 50.2(h)’s
definition of “accident” applies for “reporting purposes”); Energy West Mining Co. v. FMSHRC,

35 FMSHRC Page 3338

40 F.3d 457, 459 (D.C. Cir. 1994) (providing that Part 50 “govern[s] a mine operator’s duty to
report accidents, occupational injuries and occupational illnesses.”). Section 50.2 plainly limits
its application to terms “used in this part,” that is, Part 50 of MSHA’s regulations (the reporting
regulations). 30 C.F.R. § 50.2. In contrast, the definition of “accident” in section 3(k) applies
to the entire Mine Act, as section 3 of the Mine Act specifically states that the definition of the
term “accident” set forth in paragraph (k) applies “[f]or the purpose of this Chapter . . . .” 30
U.S.C. § 802. Thus, section 3(k) is the applicable provision for purposes of determining what
constitutes an “accident” under section 103(k).7
We note further that the Secretary’s position has been consistent over time. The
Secretary advanced the same position before the Judge as he did before the Commission, as well
as in Pattison. As the court noted in Pattison, the Commission has expressed agreement with the
Secretary’s longstanding position. 688 F.3d at 513 (citing Aluminum Co., 15 FMSHRC at
1825–26).
We also find unavailing the operator’s remaining argument that the Secretary’s
interpretation of section 3(k) violates its due process rights. Courts have found statutes to satisfy
due process as long as they are sufficiently specific that a reasonably prudent person, familiar
with the conditions the standards are meant to address and the objectives the standards are meant
to achieve, would have fair warning of what the standards require. See Grayned v. City of
Rockford, 408 U.S. 104, 108-10 (1972); Freeman United Coal Mining Co. v. FMSHRC, 108
F.3d 358, 362 (D.C. Cir. 1997). Section 3(k) provides illustrative examples of what constitutes
an “accident,” and, as the Eighth Circuit stated in Pattison, the plain language of the Act,
utilizing the term “includes,” indicates that these examples are non-exhaustive. Thus, a
reasonable person familiar with the language and objectives of section 3(k) would have fair
warning that any event that is similar to what is listed in the statute, or which has the potential to
cause injury or death, may constitute a basis for a section 103(k) order.
Applying the Secretary’s interpretation of section 3(k) to the instant case, we easily
conclude that the blasting event constitutes an “accident.” A blast that unexpectedly causes a
two-ton rock that is six feet in diameter to enter a nearby residential yard outside of the mine site
clearly has a similar potential to cause injury or death as the events listed in section 3(k).
Furthermore, the fact that section 103(k) requires an accident to occur “in a coal or other mine”
does not preclude the Secretary’s application of section 103(k) to the subject blasting event.
Although a separate portion of the accident, i.e., the rock entering the yard, occurred outside of

7

Nor do we find compelling the operator’s argument that the PPM cites Part 50 for the
definition of “accident” and that the Secretary’s interpretation is inconsistent with the PPM. As
the Commission has long recognized, the PPM does not prescribe rules of law and is not binding
on the Secretary or the Commission. D.H. Blattner & Sons Inc., 18 FMSHRC 1580, 1586 (Sept.
1996) (citing Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 (D.C. Cir. 1986)),
aff’d, 152 F.3d 1102 (9th Cir. 1998).

35 FMSHRC Page 3339

the mine, the launching of the rock took place inside of the mine, which amounts to an
“accident” occurring “in a . . . mine.”
III.
Conclusion
For the reasons set forth above, we affirm in result the Judge’s denial of Revelation’s
renewed motion for summary decision and his granting of the Secretary’s motion to dismiss the
notice of contest.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

/s/ William I. Althen
William I. Althen, Commissioner

35 FMSHRC Page 3340

Distribution:
Christopher D. Pence, Esq.
Allen Guthrie & Thomas, PLLC
500 Lee Street, East, Suite 800
P.O. Box 3394
Charleston, WV 25333-3394
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2228
Arlington, VA 22209
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge William B. Moran
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004

35 FMSHRC Page 3341

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 22, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
LONE MOUNTAIN PROCESSING, INC.

:
:
:
:
:
:
:

Docket Nos.

KENT 2011-1153
KENT 2011-1154
KENT 2011-1530

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). These cases come to the Commission on
remand from the United States Court of Appeals for the District of Columbia Circuit. Lone
Mountain Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161 (D.C. Cir. 2013). The Court
directed the Commission to review the Commission’s denial of three motions filed by Lone
Mountain Processing, Inc. to reopen the penalty assessment cases, in light of prior Commission
decisions that an operator’s contest of an underlying citation demonstrates an intent to contest
the penalty. Id. at 1163. Consistent with the Court’s mandate and our precedent, we again deny
all three motions to reopen.
I.
Factual Background
In June 2010, the Mine Safety and Health Administration (“MSHA”) issued 30 citations
to Lone Mountain for a range of violations in connection with a fatality that had occurred at the
Clover Fork No. 1 Mine. In July 2010, Lone Mountain filed timely pre-penalty notices of
contest with the Commission, challenging 11 of the 30 citations.
On August 24, 2010, Lone Mountain received a proposed penalty assessment in the
amount of $21,840. Because Lone Mountain did not contest the proposed assessment, the
assessment became a final order of the Commission on September 23, 2010, pursuant to section
105(a) of the Act. 30 U.S.C. § 815(a). In December 2010, MSHA mailed a notice of
delinquency for nonpayment of the final penalty amount.

35 FMSHRC Page 3342

On January 18, 2011, Lone Mountain received a second proposed assessment in the
amount of $212,054. Because Lone Mountain did not contest the second proposed assessment, it
became a final order on February 17, 2011. In April 2011, MSHA mailed Lone Mountain a
notice of delinquency for nonpayment of this second final penalty amount.
On June 6, 2011, Lone Mountain filed two motions requesting that the two final orders
be reopened. Lone Mountain’s motions included an affidavit from its safety manager, asserting
that on two separate occasions in August 2010 and January 2011, the proposed assessments were
misplaced by Lone Mountain in the process of forwarding them from one of its offices to
another. The motions did not explain, or even acknowledge, that the same failure had been
repeated five months apart, or that it took the operator nine months and four months,
respectively, to file these motions to reopen after the assessments had become final orders of the
Commission. The motions also failed to address the fact that MSHA had mailed the operator
delinquency notices in December 2010 (a month before the second proposed assessment was
delivered) and April 2011. In his affidavit, Lone Mountain’s safety manager assured the
Commission that in order to avoid a repeat of this error, he would henceforth travel to the other
office himself to collect the proposed assessments. Aff. at 3.
The Secretary opposed the motions to reopen and argued, among other things, that the
fatality and the large penalty amounts should have alerted the operator to the consequences of its
inadequate internal procedures. The Secretary questioned whether the operator was acting in
good faith, in light of its delinquency record and its repeated disregard of proposed penalty
assessments.
In September 2011, while the first two motions were pending before the Commission,
Lone Mountain filed a third motion to reopen another proposed assessment. This proposed
assessment had been delivered in July 2011, a month after the previous motions to reopen were
filed. Unlike the prior motions, Lone Mountain had not timely contested the underlying citations
resulting in this third assessment.1 Nonetheless, it contended that it was important to reopen the
final order because the penalty amount was $262,500.
Although the third motion mentioned the two previous motions pending before the
Commission, Lone Mountain provided the same excuse for failing to timely contest the proposed
assessment – another affidavit by the same safety manager, again claiming that the proposed
assessment had been misplaced during delivery between the operator’s two offices. There was
no reference in the motion or the affidavit to the safety manager’s prior assurances that he would
collect the proposed assessments himself. Nor was there any indication of an attempt to correct
the asserted repeated failures in the internal mail system and the lack of any procedures to follow
up on proposed assessments and file timely contests.
1

In its first two motions, Lone Mountain erroneously referred to 13 previously contested
citations and orders. We clarify that two of the 13 were actually not included in the two
proposed assessments for which these motions were filed. Lone Mountain’s third motion to
reopen contained four underlying citations which were not timely contested.

35 FMSHRC Page 3343

After consideration of all the facts and arguments, we concluded that Lone Mountain had
failed to establish entitlement to extraordinary relief. We found that the operator had been put
on notice of its obligations but had neglected to fix the problems with its internal procedures.
Because the operator made no showing of good cause or exceptional circumstances warranting
reopening, we denied its motions to reopen. Lone Mountain Processing, Inc., 33 FMSHRC
2373, 2376 (Oct. 2011).
Lone Mountain filed a petition for review with the D.C. Circuit, seeking review of the
Commission’s October 11, 2011 order. The Court subsequently remanded the case to the
Commission for an explanation of whether our denial of the motions was consistent with
Commission precedent that a contest of the underlying citation evidences an intent to contest the
penalty. Lone Mountain, 709 F.3d at 1163-64.
II.
Legal Principles Applicable to Motions to Reopen Final Penalty Assessments
Section 105(d) of the Mine Act allows operators to challenge a citation or order within 30
days of receipt regardless of whether a proposed penalty assessment has been issued. 30 U.S.C.
§ 815(d). In accordance with the statute, Commission Procedural Rule 20 permits operators to
contest a citation within 30 days of receipt, before the Secretary of Labor issues a proposed
assessment. 29 C.F.R. § 2700.20.
Separately, under section 105(a) of the Mine Act, the Secretary must notify a mine
operator of the proposed civil penalty for the issuance of any citation or order. 30 U.S.C.
§ 815(a). In turn, an operator who wishes to contest a proposed penalty must notify the
Secretary no later than 30 days after receiving the proposed penalty assessment. If the operator
fails to notify the Secretary within the 30-day period, the proposed penalty assessment becomes
a final order of the Commission by operation of the statute. Id. Commission Procedural Rule 21
explicitly states that the filing of a notice of contest of an underlying citation does not constitute
a challenge to a subsequently issued proposed penalty assessment, which must be filed as a
separate notice of contest. 29 C.F.R. § 2700.21; see Marfork Coal Co., 29 FMSHRC 626, 636
(Aug. 2007).2
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission finds guidance in Rule 60(b) of the Federal
Rules of Civil Procedure under which a party may be relieved from a final order of the
Commission upon a showing of mistake, inadvertence, surprise, excusable neglect, or other
2

MSHA’s notice of the proposed penalty assessment specifically informs operators that
filing a prior notice of contest does not relieve them of the obligation to timely contest the
proposed assessment.

35 FMSHRC Page 3344

reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be
guided so far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at
787.
Due to the extraordinary nature of reopening a penalty that has become final, the operator
has the burden of showing that it is entitled to such relief, through a detailed explanation of its
failure to timely contest the penalty and any delays in filing for reopening:
An operator seeking to reopen a proceeding after a final
order is effective bears the burden of establishing an entitlement to
extraordinary relief. At a minimum, the applicant for such relief
must provide all known details, including relevant dates and
persons involved, and a clear explanation that accounts, to the best
of the operator's knowledge, for the failure to submit a timely
response and for any delays in seeking relief once the operator
became aware of the delinquency or failure. . . .
Higgins Stone Co., 32 FMSHRC 33, 34 (Jan. 2010).
In reviewing an operator’s explanation, we consider the entire range of factors relevant to
determining mistake, inadvertence, surprise, excusable neglect, or other good faith reason for
reopening. No precise formula exists for weighing the factors, and the analysis is conducted on
a case-by-case basis. However, key factors are readily identifiable.3

3

The Commission has provided guidance to operators on its website with regard to
factors that will generally be considered in determining whether to grant relief:
The Commission has considered a number of factors in
determining whether good cause exists: the error does not reflect
indifference, inattention, inadequate or unreliable office
procedures or general carelessness; the error resulted from
mistakes that the operator typically does not make; procedures to
prevent, identify and correct such mistakes have been adopted or
changed, as appropriate; in cases where receipt of the penalty
assessment is an issue, the operator maintains proper addresses
with MSHA. Motions for relief must identify and explain: why a
timely contest was not filed; how and when you first discovered
the failure to timely contest the penalty and how you responded
once this was discovered. . . .
FMSHRC, Requests to Reopen, http://fmshrc.gov/content/requests-reopen (last visited
November 18, 2013).

35 FMSHRC Page 3345

We have repeatedly and unequivocally held that a failure to contest a proposed
assessment as a result of an inadequate or unreliable internal processing system does not
establish grounds for reopening an assessment. Oak Grove Res., LLC, 33 FMSHRC 103, 104
(Feb. 2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining
Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec.
2008); Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008).
Further, we have emphasized the importance of the operator’s explanation of the time it
took to file for reopening after receipt of a notice of delinquency. In Highland Mining Co., the
Commission advised operators:
In the future, to save time and conserve its resources, the
Commission will ordinarily analyze the question of whether the
request to reopen was filed in a reasonable time in the following
manner. Motions to reopen received within 30 days of an
operator’s receipt of its first notice from MSHA that it has failed to
timely file a notice of contest will presumptively be considered as
having been filed within a reasonable amount of time.
Motions to reopen filed more than 30 days after receipt of
such information from MSHA should include an explanation for
why the operator waited so long to file for reopening. The lack of
such an explanation is grounds for the Commission to deny the
motion.
31 FMSHRC at 1316-17.
Of course, the good faith of the operator’s actions is also a factor. Pioneer Inv. Servs.
Co. v. Brunswick Associated Ltd. P’ship, 507 U.S. 380, 395 (1993); FC Hemisphere Assocs.,
LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir. 2006); Oak Grove Res.
LLC, 33 FMSHRC 1130, 1132 (June 2011). An operator’s detailed recounting of the
circumstances should demonstrate that the operator acted at all times in good faith and without
any purpose of evasion or delay, taking into account the nature of the violation, the amount of
the penalty, the circumstances of receipt and processing of the notice, whether errors were within
the operator’s control, and the reasons for any delay in filing the motion itself, especially after
notice of a delinquency.
We also consider MSHA’s acquiescence or opposition to the motion. We do this not
simply to ascertain MSHA’s position, but also to determine if MSHA’s response contributes to
the analysis of the multitude of factors related to the operator’s failure to contest the penalty in a
timely manner.
The Commission also takes into account, as we did in reaching our initial decision, that
the filing of a contest of an underlying citation is an indication of an initial intent to contest the
subsequent proposed assessment. E.g., Oldcastle Stone Prods., 31 FMSHRC 1103, 1104 (Oct.

35 FMSHRC Page 3346

2009). The Commission has not held that a challenge to the citation creates a presumption, rebuttable
or irrebuttable, of a right to reopen after failing to contest the penalty. The filing of a challenge to the
underlying citation is a factor and, indeed, in many cases may be an important factor. However, all
factors relevant to reopening are weighed. The challenging of a citation does not inevitably excuse the
failure to contest the penalty.
III.
Disposition
In accordance with the Court’s remand, the Commission has again considered Lone
Mountain’s motions to reopen, in light of Lone Mountain’s contest of 11 citations issued in June 2010,
that were among the citations that were assessed in the proposed assessments issued in August 2010
and January 2011.4 The filing of those 11 notices of contest is clearly outweighed by the
overwhelming evidence establishing that, in accordance with the Commission’s precedent, the
operator in this case should not be relieved of the responsibility for the final orders imposed following
its default.
First, as stated above, a primary factor considered by the Commission is whether the operator’s
failure to file a timely contest resulted from “inadequate or unreliable office procedures.” Our
previous decision rested on our affirmative finding that Lone Mountain’s failures “represent[ed] an
inadequate or unreliable internal processing system.” 33 FMSHRC at 2375. The identical problem
assertedly occurred three separate times in less than a year, and Lone Mountain, despite its safety
manager’s assurances, took no effective action to correct its internal processing system deficiencies.
Its failure to provide a reliable system was held to be dispositive.
In support of its motion to reopen Docket No. KENT 2011-1153, the operator submitted the
affidavit of Lone Mountain’s Safety Manager, Wilburn Howard, dated June 2, 2011 in which Mr.
Howard stated in part:
Lone Mountain received the proposed assessments for Assessment
Case Numbers 000228827 and 000243808, but the sheets were sent to
Patrick Leedy our Chief Engineer, who then forwarded them to me by
courier. Mr. Leedy and I are located in different office buildings
approximately 10 miles away. During the delivery of these
assessments they were misplaced. We are changing the way of
delivery of these assessments in which I will personally travel to our
office weekly to collect these assessment sheets to avoid a repeat of this
error. [emphasis added]
4

Lone Mountain did not contest any of the four citations that were assessed a total civil
penalty of $262,500 mailed by MSHA in July 2011 and addressed in its third motion to reopen.
Therefore, the factor of a prior contest of the underlying citations does not come into play with
respect to that motion.

35 FMSHRC Page 3347

In support of its motion to reopen Docket No. KENT 2011-1154, the operator submitted an
identical June 2, 2011 affidavit in which Mr. Howard again represented that:
We are changing the way of delivery of these assessments in which I
will personally travel to our office weekly to collect these assessment
sheets to avoid a repeat of this error. [emphasis added]
Approximately a month and a half after Mr. Howard executed the above-referenced affidavits,
Lone Mountain was served on July 20, 2011 with the proposed assessment it seeks to reopen in
Docket No. KENT 2011-1530. In support of its motion to reopen, the operator submitted an affidavit
from Mr. Howard dated September 15, 2011. Despite the prior representations Mr. Howard made to
this Commission that the operator was changing its internal processing system to avoid future
problems, in the most recent affidavit Mr. Howard stated:
The proposed assessment sheet for A.C. Number 000261203 was
addressed to Patrick Leedy our Chief engineer. According to the
“Retrieve Report” provided by the Civil Penalty Office, the
assessments sheet was delivered and signed or by “S. Roddy” on July
20, 2011. Susie Roddy is a secretary of Lone Mountain. After
signing, Ms. Roddy would have placed this information in Patrick
Leedy’s mailbox, who would have then forwarded it to me by courier.
During the delivery of these assessments they were apparently
misplaced or may have been sent to the wrong location. [emphasis
added]
Clearly, the operator had taken no action to rectify the problem. Its final affidavit, which is
inconsistent with the assurances in the two previous affidavits, undermines its credibility and leads us
to question its sincerity in making its initial assurances of procedural reform.
Second, in addition to the fatal defect found in its internal processing system, Lone Mountain
did not explain its failures to respond to MSHA’s delinquency letters in a timely fashion. Under
Commission precedent set forth above, an operator that fails to move to reopen within 30 days after
learning that it did not file a timely challenge to a proposed assessment must provide sufficient
explanation for the delay. In this case, Lone Mountain waited six months and two months after
receiving its first two delinquency notices before filing its motions to reopen. Then, even though the
Secretary pointed out Lone Mountain had failed to justify those delays, Lone Mountain never
provided any further explanation. It did not simply provide an insufficient excuse for failing to file for
months after receipt of notices of delinquency – it failed to provide any excuse at all.
Third, Lone Mountain failed to establish that its motions to reopen were filed in good faith, a
factor specifically challenged by the Secretary in her response. The Secretary highlighted Lone
Mountain’s repeated failures to meet deadlines in this case, and its outstanding delinquency total of
approximately $550,000 (which includes the penalties involved in the first two motions to reopen), in
arguing that Lone Mountain may not have filed the motions in good faith. Lone Mountain did not
rebut the Secretary’s argument. We have held that silence in the face of a delinquency history with

35 FMSHRC Page 3348

nearly identical facts militates against the grant of extraordinary relief. Oak Grove Res., LLC, 33
FMSHRC at 1132.
It is thus apparent that the facts and our precedent impose significant barriers to granting
extraordinary relief in this case. Against this backdrop, we now turn to the D.C. Circuit’s admonition
that we should have explained why we had ruled in some prior cases that operators’ challenges to
citations justified granting motions to reopen, but that the contest of the citations in Lone Mountain did
not warrant relief. 709 F.3d at 1164. As set forth below, those cases are substantially distinguishable
from Lone Mountain and do not support reopening when compared to the number and weight of
factors against reopening.
In Oldcastle Stone Prods., the operator was inexperienced with MSHA contest procedures and
asserted that it did not know it had to contest the proposed assessment in addition to contesting the
underlying citation. Oldcastle’s counsel discovered the delinquency one month after the proposed
assessment became a final order of the Commission (before receiving any notices from MSHA) and
filed a motion to reopen within one week. 31 FMSHRC at 1104. We determined that Oldcastle had
demonstrated an intent to contest the proposed penalty and reopened the citation. Id. at 1104-05.
Oldcastle did not involve a defect in the operator’s internal processing of penalty assessments.
Rather, it claimed ignorance of a requirement to also contest the penalty where it had contested the
citation. In Oldcastle, we re-opened the penalty for one citation which had been contested and refused
to reopen those where no contest had been filed, consistent with the operator’s excuse. Id. at 1104. It
is also noteworthy that Oldcastle discovered its failure on its own and acted promptly to seek
reopening, unlike the present case.
In contrast to Oldcastle, Lone Mountain is an experienced operator that was fully aware of the
procedures for contesting proposed assessments. Lone Mountain does not argue that it was unaware
of the contest procedures; it maintains instead that it repeatedly misplaced the critical paperwork.
Unlike the instant case, Oldcastle did not involve a deficient internal processing system, unexplained
delays in filing motions to reopen, and no response to the Secretary’s allegation of bad faith.
The other two cases cited by the Court – McCoy Elkhorn Coal Corp., 33 FMSHRC 1 (Jan.
2011), and Phelps Dodge Sierrita, Inc., 24 FMSHRC 661 (July 2002) – arose in a very different
context from Lone Mountain. Both of those cases involved inadvertent payments of proposed
penalties where each operator argued that it intended to contest the proposed assessments.
Commission case law establishes that the payment of a proposed penalty forecloses the operator from
challenging the underlying citation and the penalty itself unless the operator can show that the
payment was inadvertent. See, e.g., Ranger Fuel Corp., 12 FMSHRC 363, 370 (Mar. 1990). Thus,
the operators’ prior challenges of the underlying citations in the two cases were significant only
because they supported the operators’ claims that the penalty payments had been inadvertent. Because
the instant case does not involve an inadvertent payment issue, the holdings in the two cases do not
apply to this case. Likewise, neither McCoy Elkhorn nor Phelps Dodge involved major factors such as
deficient internal processing systems, unexplained delays in filing motions to reopen, or allegations of
bad faith.

35 FMSHRC Page 3349

In again denying Lone Mountain’s motions to reopen, the Commission is not departing from
precedent. We have carefully considered all the facts and arguments to decide whether extraordinary
relief is warranted, including the contests of 11 of the citations. Having done so, we find Lone
Mountain’s failures to be far more significant, including the grossly deficient internal processing
procedures, unexplained delays in filing motions to reopen after learning it had missed deadlines
through receipt of delinquency notices, and its failure to establish that the motions were filed in good
faith. The fact that Lone Mountain challenged some of the underlying citations does not overcome its
numerous failures to file timely penalty contests and its lack of adequate explanations of those failures.
A different result is not warranted by Commission precedent regarding contests to underlying citations.
IV.
Conclusion
For the reasons set forth above, we again conclude that Lone Mountain has failed to establish
that it should be granted extraordinary relief because of mistake, inadvertence, excusable neglect, or
other just cause. Because of its repeated failures to meet its obligations, its lack of adequate
explanations for its delays, and its inability to demonstrate that its motions were filed in good faith,
Lone Mountain falls far short of establishing good cause for granting relief.
Accordingly, we again deny Lone Mountain’s motions to reopen.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

/s/ William I. Althen
William I. Althen, Commissioner

35 FMSHRC Page 3350

Distribution:
Marco M. Rajkovich, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
3151 Beaumont Centre Circle, Suite 375
Lexington, KY 40513
Melanie J. Kilpatrick, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
3151 Beaumont Centre Circle, Suite 375
Lexington, KY 40513
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 3351

COMMISSION ORDERS

35 FMSHRC Page 3352

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 5, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
PIERCE SAND

:
:
:
:
:
:
:

Docket No. CENT 2012-128-M
A.C. No. 23-02347-262760

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On March 21, 2013, the Commission received from Pierce
Sand a motion seeking to reopen a penalty assessment proceeding and relieve it from the default
order entered against it.
On August 1, 2012, the Chief Administrative Law Judge issued an Order to Show Cause
which by its terms became a Default Order if the operator did not file an answer within 30 days.
This Order to Show Cause was issued in response to Pierce Sand’s failure to answer the
Secretary of Labor’s November 18, 2011 Petition for Assessment of Civil Penalty.
Pierce Sand asserts that it timely answered the Show Cause Order and submits a copy of
the answer date-stamped by the Commission as received on August 27, 2012. Pierce Sand states
that the answer was mistakenly only applied to a companion case, Docket No. CENT 2012-129M. The Secretary does not oppose the request to reopen, and agrees with the operator’s
contentions.

35 FMSHRC Page 3353

Having reviewed Pierce Sand’s request and the Secretary’s response, we conclude that
the Default Order did not effectively become a final order of the Commission because the
operator filed a timely response to the Show Cause Order. Accordingly, this case is remanded to
the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

/s/ William I. Althen
William I. Althen, Commissioner

35 FMSHRC Page 3354

Distribution:
Bob L. Pierce
Pierce Sand Gilford
220 South Oak
Stanberry, MO 64489
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 3355

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 5, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
COLORADO COUNTY SAND &
GRAVEL, LLC

:
:
:
:
:
:
:
:

Docket No. CENT 2013-3-M
A.C. No. 41-04375-300222-01

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On May 21, 2013, the Commission received from Colorado
County Sand & Gravel, LLC (“Colorado County”) a motion seeking to reopen a penalty
assessment proceeding and relieve it from the default order entered against it.
On January 30, 2013, the Chief Administrative Law Judge issued an Order to Show
Cause which by its terms became a Default Order if the operator did not file an answer within 30
days. This Order to Show Cause was issued in response to Colorado County’s failure to answer
the Secretary’s October 11, 2012 Petition for Assessment of Civil Penalty. The Commission did
not receive Colorado County’s answer within 30 days, so the default order became effective on
March 4, 2013.
Colorado County asserts that it contested six citations in A.C. No. 000300222 and
believed they were all included in Docket No. CENT 2013-4-M. Colorado County further states
that it did not receive the Petition for Assessment of Civil Penalty or the Order to Show Cause.
It did not discover that Citation No. 8679247 was not included in Docket No. CENT 2013-4-M
until it received a motion to approve settlement agreement. The Secretary does not oppose the
request to reopen.
The judge’s jurisdiction in this matter terminated when the default occurred. 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)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not

35 FMSHRC Page 3356

direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Consequently, the judge’s order here has become a final
decision of the Commission.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy
and that, if the defaulting party can make a showing of good cause for a failure to timely
respond, the case may be reopened and appropriate proceedings on the merits permitted. See
Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Colorado County’s request and the Secretary’s response, in the interest
of justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case
is remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

/s/ William I. Althen
William I. Althen, Commissioner

35 FMSHRC Page 3357

Distribution:
Jennifer Pavlas
Accounts Payable Manager
Colorado County Sand & Gravel, LLC
P.O. Box 866
El Campo, TX 77437
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 3358

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 5, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
NORTHAMERICAN INDUSTRIAL
SERVICES, INC.

:
:
:
:
:
:
:
:

Docket No. WEST 2012-1177-M
A.C. No. 26-00500-293069 1WA

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On June 27, 2013, the Commission received from
NorthAmerican Industrial Services, Inc. (“NorthAmerican”) a motion seeking to reopen a
penalty assessment proceeding and relieve it from the default order entered against it.
On February 5, 2013, the Chief Administrative Law Judge issued an Order to Show
Cause which by its terms became a Default Order if the operator did not file an answer within
30 days. This Order to Show Cause was issued in response to NorthAmerican’s perceived
failure to answer the Secretary’s August 22, 2012 Petition for Assessment of Civil Penalty.
NorthAmerican asserts that it timely answered the penalty petition and encloses a copy
mailed to MSHA on September 20, 2012. NorthAmerican further states that it responded to the
Show Cause Order by email to the Commission’s Docket office on February 7, 2013. The
Secretary does not oppose the request to reopen, and notes that MSHA received
NorthAmerican’s answer to the penalty petition.

35 FMSHRC Page 3359

Having reviewed NorthAmerican’s request and the Secretary’s response, we conclude
that the Default Order did not effectively become a final order of the Commission because the
operator filed a timely response to the Show Cause Order. Accordingly, this case is remanded to
the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

/s/ William I. Althen
William I. Althen, Commissioner

35 FMSHRC Page 3360

Distribution:
Bill Youngs
Director of Compliance
North American Industrial Services
3350 W. Directors Row Suite 600
Salt Lake, UT 84104
byoungs@naisinc.com
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 3361

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 5, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
GLEN ALUM OPERATIONS, LLC

:
:
:
:
:
:
:

Docket No. WEVA 2011-2202
A.C. No. 46-08812-260211

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On May 2, 2013, the Commission received from Glen Alum
Operations, LLC (“Glen Alum”) a motion seeking to reopen a penalty assessment proceeding
and relieve it from the default order entered against it.
On August 13, 2012, the Chief Administrative Law Judge issued an Order to Show Cause
which by its terms became a Default Order if the operator did not file an answer within 30 days.
This Order to Show Cause was issued in response to Glen Alum’s perceived failure to answer
the Secretary’s September 1, 2011 Petition for Assessment of Civil Penalty.
Glen Alum asserts that it timely answered the penalty petition and submits a copy of the
answer date-stamped by the Commission as received on September 23, 2011. Glen Alum also
submits a copy of its email to the Commission on August 16, 2012, in response to the Show
Cause Order. The Secretary does not oppose the request to reopen.

35 FMSHRC Page 3362

Having reviewed Glen Alum’s request and the Secretary’s response, we conclude that the
Default Order did not effectively become a final order of the Commission because the operator
filed a timely response to the Show Cause Order. Accordingly, this case is remanded to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

/s/ William I. Althen
William I. Althen, Commissioner

35 FMSHRC Page 3363

Distribution:
Craig W. Hundley, Esq.
Flaherty, Sensabaugh & Bonasso, PLLC
200 Capitol Street
P.O. Box 3843
Charleston, WV 25338-3843
chundley@minereg.com
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 3364

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

November 5, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
HARRY C. CROOKER & SONS, INC.

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Docket No. YORK 2012-84-M
A.C. No. 17-00576-277211

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On March 8, 2013, the Commission received from Harry C.
Crooker & Sons, Inc., (“Crooker”) a motion seeking to reopen a penalty assessment proceeding
and relieve it from the default order entered against it.
On July 24, 2012, the Chief Administrative Law Judge issued an Order to Show Cause
which by its terms became a Default Order if the operator did not file an answer within 30 days.
This Order to Show Cause was issued in response to Crooker’s failure to answer the Secretary of
Labor’s February 16, 2012 Petition for Assessment of Civil Penalty. The Commission does not
have a record of receiving Crooker’s answer within 30 days, so the default order became
effective on August 24, 2012.
Crooker asserts that it sent its timely answer to the Show Cause Order to the Department
of Labor and to the Commission. The Secretary does not oppose the request to reopen and notes
that MSHA received Crooker’s answer on August 24, 2012.
The judge’s jurisdiction in this matter terminated when the default occurred. 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)(A)(i); 29 C.F.R. § 2700.70(a). 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)(1). Consequently, the judge’s order here has become a final
decision of the Commission.

35 FMSHRC Page 3365

In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or
other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc.,
15 FMSHRC 782, 786-89 (May 1993).
Having reviewed Crooker’s request and the Secretary’s response, in the interest of
justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is
remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

/s/ William I. Althen
William I. Althen, Commissioner

35 FMSHRC Page 3366

Distribution:
Richard Perkins
Safety Director
Harry C. Crooker & Sons, Inc.
103 Lewiston Rd.
P.O. Box 5001
Topsham, Maine 04086
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 3367

ADMINISTRATIVE LAW JUDGE DECISIONS

35 FMSHRC Page 3368

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue, N.W Suite 520N
Washington, DC 20004-1710
Telephone No.: 202-434-9933

November 5, 2013

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
PAUL D. BENTLEY, Respondent,
employed by BLEDSOE COAL
CORPORATION

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CIVIL PENALTY PROCEEDING

Docket No. KENT 2013-307
A.C. No. 15-19132-308412A
Abner Branch Rider

ORDER GRANTING MOTION FOR SUMMARY DECISION1
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of
Labor, Nashville, Tennessee for Petitioner;
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC,
Lexington, Kentucky for Respondent Bentley
Marco M. Rajkovich, Esq., Rajkovich, Williams, Kilpatrick & True,
PLLC, Lexington, Kentucky for Respondent Bledsoe Coal

Before:

Judge Moran

Introduction. This matter arose in the wake of a fatality, which occurred when a miner
was fatally crushed by a very large rock,2 which slid out from a rib. An investigation ensued,
with MSHA issuing citations and orders, separately, to Bledsoe Coal and to Mr. Paul Bentley,
the mine’s first shift foreman. Mr. Bentley, like Bledsoe itself, was issued a section 104(d)(1)
citation and a (d)(1) order, which initially alleged that he “knowingly authorized, ordered, or

1

Counsel for Mr. Bentley and Counsel for the Secretary have filed a joint motion to sever.
At the time of the hearing, this docket had been consolidated with docket KENT 2011-481, because the
citations and orders issued arose out of the same events. Subsequently, post-hearing, and at the Court’s
suggestion, the Joint Motion to Sever the two dockets was filed and that Motion is hereby GRANTED.
The severance allows the Court to issue its decision without waiting to issue its decision in KENT 2011481, which matter may yet settle.
2

The rock was estimated to weigh 9.3 tons. Tr. 247.

35 FMSHRC Page 3369

carried out violations of the 30 C.F.R. §75.202(a) and 30 C.F.R. § 75.362(a)(1).3 The former
standard requires the roof, face and ribs to be supported or otherwise controlled to protect
persons from falls, while the latter requires an on-shift exam of working areas to check for
hazardous conditions. A hearing was held in this matter commencing on May 14, 2013.
At the close of the government’s case, Counsel for Respondent Bentley moved to have the
110(c) charges against his client dismissed. Having heard that evidence, the Court concluded
that the charges against Mr. Bentley had not been proven and it so informed the parties of this
conclusion during a conference call on July 10, 2013. This Order memorializes that
determination. Accordingly, for the reasons that follow, the 110(c) actions against Mr. Bentley in
this proceeding are hereby DISMISSED.
Section 110( c) actions
Section 110( c) of the Mine Act provides: "Whenever a corporate operator violates a
mandatory health or safety standard … , any director, officer, or agent of such corporation who
knowingly authorized, ordered or carried out such violation, … shall be subject to … civil
penalties." 30 U.S.C. § 820(c). The Commission has stated that “[t]he 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 that an individual knew or had reason to know
of the violative condition, not that the individual knowingly violated the law. Warren Steen
Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United States v. Int'l Minerals &
Chem. Corp., 402 U.S. 558, 563 (1971)). A knowing violation thus occurs when an individual
"in a position to protect employee safety and health fails to act on the basis of information that
gives him knowledge or reason to know of the existence of a violative condition." Kenny
Richardson, 3 FMSHRC at 16. The Commission has explained that "'[a] person has reason to
know when he has such information as would lead a person exercising reasonable care to acquire
knowledge of the fact in question or to infer its existence."'Id. (citation omitted). In addition,
section 110( c) liability is generally predicated on aggravated conduct constituting more than
ordinary negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992). Sec. v.
Matney, employed by Knox Creek Coal Corp., 34 FMSHRC 777, at * 783, 2012 WL 1799023
(April 2012).
Findings of Fact
As noted, on January 22, 2010 Mr. Travis Brock, a continuous miner operator, was
fatally injured when a large rock, described as a “slickenside,” slid out from a pillar, crushing
him. MSHA Inspector Charles Ramsey was the lead investigator for the fatality investigation.

3

A few days before the hearing, the government moved to add a third charge against Mr. Bentley,
adding the claim that he performed an inadequate preshift exam on January 22, 2013.

35 FMSHRC Page 3370

The investigation began on the day of the fatal accident. With Ramsey at the mine that day were
MSHA Assistant District Manager Jim Langley, MSHA Supervisor Ron Burns, John Boylen,
MSHA roof control specialist. On the following day, MSHA’s Dr. Sandlin Phillipson joined the
MSHA investigation. More than five months after the investigation began, MSHA issued the
citation and order which are the subject of the action against Mr. Bentley. As stated in the
Introduction, above, those are Citation No. 8355746, a section 104(d)(1) alleging a violation of
30 C.F.R. §75.202(a) and Order No. 8355777, alleging a violation of 30 C.F.R. §75.362(a)(1).4
At the hearing, the government moved to add, in its action against Mr. Bentley, Order No.
8355747, citing 30 C.F.R. §75.360(b), and alleging that Mr. Bentley was also culpable under
section 110(c) for an inadequate preshift exam.
Though not one of the violations against Mr. Bentley, by way of pertinent background
information, Citation No. 8355745, a section 104(a) citation was issued to Bledsoe Coal alone,
alleging an inadequate roof control plan, per 30 C.F.R. § 75.220(a)(1). Inspector Ramsey stated
that he issued that citation because of the slickenside5 which fatally injured miner Brock, as well
as for the numerous loose ribs he found on the section. All of the citations and orders issued in
connection with the fatality involved the 001 MMU (mechanized mining unit), located at the
mine’s 8 Mains. The Inspector stated that where there is a change in mining conditions, there is
an obligation to have the roof control plan address those changes. No one disputes that duty
exists. In the area of the fatality, the coal seam became very small,6 as little as 6 inches, and
then it quickly became very high. Tr. 59. Such seam changes can lead to hazardous rib
conditions; other times such hazardous conditions may not develop.
Inspector Ramsey then turned to Citation No. 8355746, the section 104(d)(1) citation
alleging inadequate support of the ribs, and for which both Bledsoe Coal and Mr. Bentley were
each cited. That citation asserted loose coal/rock ribs at: “#32 Crosscut on the sides and inby
corners of the coal pillar blocks in the #3 and #4 Headings, (2) at #33 Crosscut in the #3 Belt
Heading where the upper inby corners of the left and right ribs were separated from the coal
pillar and top approximately ½ inch and in the # 4 Heading where loose coal was separating
from the rib line, and (3) at the # 34 Crosscut in the #3 Belt Heading, where the right side inby
corner of the coal pillar cracked and separated from the pillar and a part of the rib measuring 3.3
feet to 6.8 feet thick x 5.5 feet long x 9 feet wide and slid out of the rib line and struck the

4

The same citation and order were also issued to Bledsoe Coal. They form, along with a section
104(a) citation, No. 8355745, invoking 30 C.F.R. §75.220(a)(1) and a section 104(d)(1) order, citing 30
C.F.R. §75.360(b), the matters in the separate action against Bledsoe Coal in Docket No. KENT 2011481.
5

The term “slickenside” was variously described by witnesses. Ramsey defined it as a
condition where two planes meet; a coal plane meeting a rock plane. Tr. 59. Later, he added that
it refers to situations where there is a sharp increase in the coal seam, which can cause a side to slide out.
Tr. 167.
6

This was great narrowing of the seam was also described as a “washout” and a “squeeze.”

35 FMSHRC Page 3371

continuous miner operator fatally injuring him. In the #3 Heading at the # 34 Crosscut, the 2nd
shift foreman’s dates, times, and initials [“DTIs”] were on the exact location of the loose area
of the rib that detached from the rib and slid out, fatally injuring the continuous miner operator.
Upon examination of the pre-shift book dates, back to January 7, 2010, foremen were writing the
following statement in the “Remarks” section, “Use caution around ribs and watch for draw
rock.” No written explanation was given as to any measures taken to protect miners against the
hazardous rib conditions.7 The operator has engaged in aggravated conduct constituting more
than ordinary negligence in that management did not take measures to ensure safe working
conditions around ribs. This violation is an unwarrantable failure to comply with a mandatory
standard.”8 (GX 9, emphasis added), (GX 21, drawing marking loose ribs, including location of
fatal rib roll.) Thus, to be clear, and because the Court considers it to be important, the dates,
times and initials (“DTIs”) were right next to the location where the slickenside fell out.
The Inspector conceded that one would not put DTIs next to a rock that is about to fall. Tr. 207.
As to whether the foreman, Mr. Bentley, should have seen the slickenside, Inspector Ramsey
stated that he simply did not know. Tr. 207. Although Inspector Ramsey expressed his view
that the various rib problems he noted, six in total,9 had existed for days, this was based solely
upon his mining experience as he had no other information, such as rock dusting, to support that
opinion. Tr. 83, 149.
Bledsoe Coal, was also issued a section 104(d)(1) order, asserting an inadequate pre-shift
exam occurred on January 22, 2010 for the 001 MMU at 8 Mains. Order No. 8355747. GX 10.
As alluded to, though not part of the original, two, charges against Mr. Bentley, shortly before
the hearing, the government moved to add that Order as another 110(c) charge against him.10

7

John Caldwell, section foreman, later testified that the notation in the exam book to “use caution
around ribs and watch for draw rock,” was included because the mine had some troubles outby and had
been wrapping ribs. However, he maintained this problem was outby the track entry, and outby the
working section. Tr. 575. In contrast, another witness for the Respondent, Kevin Jump, had a different
interpretation of that phrase as he expressed that its use was more than a simple warning and informed
that the mine is “going through some changes.” Tr. 662. With regard to the parties conflicting claims as
to the import of the preshift report warnings to watch out for bad roof, the Court, upon hearing the various
testimonial views, concludes that it was a general safety warning and not, as MSHA has implied, a tacit
admission that the mine knew there were serious roof and rib problems.
8

It is worth remembering that statements and conclusions in any citation or order are assertions.
When challenged, as here, it is up to the Court to make the findings of fact and conclusions of law
regarding the content of such documents issued by MSHA’s authorized representatives.
9

While GX 21 lists other areas of alleged rib sloughing, Inspector Ramsey personally observed
only the areas noted in his citation. Tr. 93. The other areas of rib sloughing indicated on GX 21 were
found by MSHA’s Dr. Phillipson.
10

Some 4 ½ months after the fatal rib roll, upon completing its investigation, MSHA issued the
citations and orders associated with this matter against Mr. Bentley and, in KENT 2011-481, against

(continued...)

35 FMSHRC Page 3372

In large measure, that Order repeats the assertions made in Citation No. 8355746, next above,
but it then adds the following: “ (2) the entry width of the sheared corner of the rib in the #3 Left
and #3 Right at #33 Crosscut measured 30 feet. The maximum allowable entry width of the
sheared area in the approved roof control plan is 28.1 feet; (3) in various areas in the #2, #3, and
#4 Headings, T-5 dome channel straps were installed over cracks and draw rock in the roof with
a regular 6 x 6 flat roof bolt plate, which is not in accordance with the manufacturers
recommendations; and (4) an area along the left rib in the #2 entry at #33 Crosscut, that
measured 7 feet x 12 feet, was not completely bolted.11 The operator has engaged in aggravated
conduct constituting more than ordinary negligence in that upon inspection of the pre-shift exam
book, none of these hazardous conditions were recorded in the 001 MMU exam book. This
violation is an unwarrantable failure to comply with a mandatory standard.”
The preshift was performed prior to the start of the day shift on January 22, 2010, the day
of the fatal accident. The onshift, that is the exam on the day of the accident, would have been
done about an hour before the fatal rib roll. That onshift was done by Respondent Bentley, as
the 001 section day shift foreman. As with the preshift shortcomings alleged by Inspector
Ramsey, the absence of problems being noted in the onshift was construed as a failure to note
those conditions. However, the Court would note again that these admitted absences can be
construed differently, as the absence of such notations also can be asserted to show that the
conditions were not present.12
Inspector Ramsey agreed that, as he was not present when the fatal rib fall occurred, he
could not state whether anyone could have seen if the rib was going to fall, nor could he state
whether it was cracked before it fell, nor if it was “easily recognizable” before it fell. Tr. 167.
Speaking specifically to Mr. Bentley and whether he knew there was a slickenside present before
10

(...continued)

Bledsoe Coal. However, the motion to add the charge of an inadequate pre-shift against Mr. Bentley did
not occur until nearly three years later, shortly before the hearing. On the second day of the hearing the
Court ruled that the motion to add the preshift violation to the charges against Mr. Bentley was granted.
The effect of the motion, procedurally, was to graft the preshift allegations onto the onshift charges.
In granting the motion, the Court noted that proof was still needed to sustain that charge against Mr.
Bentley. Tr. 303. It is noteworthy that Inspector Ramsey never alluded to any alleged preshift
inadequacies in his deposition. Instead the preshift charge against Mr. Bentley was not added until years
later. Ultimately, by this Order, the Court has concluded that the government failed to meet its burden for
any of the three charges it has brought against Mr. Bentley.
11

The Inspector stated that at least 3 more bolts were needed in this area; however that
incomplete bolting did not contribute to the fatality. Tr. 222. To put this in perspective, there were more
than a thousand bolts from crosscuts 31 to 34. Tr. 267.
12

A separate basis for the Inspector’s conclusion that the conditions noted had existed for some
prior period of time and had not just arisen, was the remark in the preshift and onshift reports to “use
caution around the ribs and watch for draw rock.” Tr. 132-133, 136. This issue is potentially of more
import for the charges against Bledsoe, than for those against Mr. Bentley.

35 FMSHRC Page 3373

it fell, the Inspector acknowledged he did not know; the rib could have been cracked but it also
might not have been. Tr. 169. Further, he admitted that with regard to the crosscut 33
sloughing, that condition had no connection with the rib fatality. Nor did he find any sloughing
in entries 1, 2 or 5. Ramsey also conceded that he could not state with certainty that rib bolting
or even rib wrapping13 would have prevented the fatality.14 Tr. 197.
With regard to the section 104(d)(1) order, which alleged an inadequate preshift exam,
and which order, as noted, was issued to Mr. Bentley and separately to Bledsoe Coal, that Order,
No. 8355777, stated: “. . . adequate on-shift examinations were not performed on January 21 and
22, 2010, on the 001MMU. The following deficiencies were noted: (1) the 2nd shift on-shift
report for January 21, 2010, did not identify a hazardous rib condition in the #3 Belt Heading, (2)
the 3rd shift on-shift report for January 22, 2010, did not identify a hazardous rib condition in the
#3 Belt Heading, and (3) the 1st shift on-shift report recorded on January 22, 2010, which was
performed approximately 1 hour prior to the fatal accident, did not identify any hazardous roof
condition. All three on-shift examiners recorded “None Observed” in the on-shift record for the
#3 Belt Heading. Mine management directed that the offset in the mine floor be trimmed in the
#3 Left Crosscut.” GX 15. As noted, the absence of noted problems, is capable of two very
different interpretations. One, darker, is that all three of the on-shift examiners saw, but did not
record, the problems. The other outlook is that the problems were not then present. Normally,
conflicting views of such results are resolved by credibility determinations or inconsistencies in
testimony. Here, in the Court’s view, the inconsistencies were all from the government’s
witnesses, who did not all see the same alleged rib problems, and who had differing
interpretations as to whether they required immediate attention or not.
Inspector Ramsey acknowledged that the inadequate on-shift allegation was not arrived
at until a month after the other three citations had been drafted. Tr. 226. Here, the on-shift
exam would start about four breaks back from the face; in this instance, that was about 240 feet.
While Inspector Ramsey took photographs during his investigation, he did not take a picture of
the asserted ½ inch crack he saw in the No. 3 and No. 4 belt entry. Tr. 239. GX 21, and blue
marking on that exhibit. Nor did the Inspector take a photograph of the loose ribs he observed.
GX 21, pink marking. Tr. 240. Why no photos were taken in those instances was not explained.
Further, and of significance, the Inspector agreed that a crack in a rib is not necessarily
indicative of a hazard. Tr. 240-241. Later, Inspector Boylen, in his testimony, would confirm
that rather significant statement: a crack, by itself, does not mean that there is a bad rib. Tr. 355,
384. Boylen added that a ½ inch crack at the top of a rib does not inform him that there is a
problem; to determine that, one must see it firsthand. Tr. 384. Further, Inspector Boylen
informed that even a good rib may slough off. Tr. 355. In terms of the fatality, Inspector
13

Further, the pillar where the fatal rib roll occurred was not yet formed when the fall occurred.
A rib wrap is not an option until a pillar is fully formed. Tr. 177-178.
14

Complicating the matter further, Inspector Ramsey agreed that it was possible that the rib slide
might not have occurred if the rib corners had been permitted to be trimmed, as Bledsoe had requested for
years. Tr. 198.

35 FMSHRC Page 3374

Ramsey agreed that it would be unlikely that the victim would have placed himself under the rib
which fell out if there had been an obvious crack present. Most significantly, Inspector Ramsey
then conceded that it was “probable” that the rock simply came loose in one moment with no
advance warning. Tr. 251. Referring to the other alleged troublesome areas, as circled in blue
and pink on GX 21, Inspector Ramsey agreed that MSHA’s Dr. Phillipson noted some
troublesome areas that he did not identify. Thus, even Ramsey had to admit that he missed some
areas that Dr. Phillipson believed were present. Tr. 251-253. This lack of consensus, of
identification of alleged problems, and even of the location of rib problems, undercuts the 110(c)
charges. If the lead Investigator could miss areas, while in the process of looking for such
problems, the idea that Mr. Bentley should have done a better job during his onshift exam, not to
mention the claim that he knew or had reason to know of such conditions, is untenable.
As an overarching consideration in these charges against Mr. Bentley, the Court
considered it to be important that when it asked Inspector Ramsey to sum up the basis for his
conclusion that the cracks did not develop immediately before the accident but rather developed
over a period of time, he stated: “Well, in all honesty, I can’t say really either way because
I didn’t see the condition before the rock fell out. There may have been no cracks and yet there
may have been some that could have been visible. I honestly can’t say either way because
I didn’t see the piece before it fell.” Tr. 276-277.
Such an admission by MSHA’s lead Investigator cannot suffice to support the section
110(c) charges against Mr. Bentley. The Inspector maintained that part of his conclusion for the
inadequate onshift assertion against Mr. Bentley was also based on the other loose ribs and
conditions he observed in the area and not solely because of the slickenside fatality. Tr. 278.
When challenged by Counsel for Mr. Bentley about this claim, the Inspector maintained that his
inadequate onshift order was not based solely on the slickenside even while contending that he
simply “forgot” to list the other conditions. This “oversight” was not corrected until about three
years later, when the Secretary moved to amend its citation in 8355746 to add additional alleged
troublesome conditions.
MSHA’s John Boylen, a roof control specialist and coal mine inspector with long private
and public mining experience, also testified. Inspector Boylen was assisting Inspector Ramsey
with his investigation and he had input into the allegations included in the citations and orders
issued. Tr. 311. In terms of the “squeeze” or, as it was also described, “a washout of the roof,”
which occurred not long before the accident, Mr. Boylen stated that while one must be
observant of such conditions when encountered, sometimes problems will occur but other times
no problems will result. Inspector Boylen’s primary concern and focus pertained to the mine’s
overall rib control in the area.15 Tr. 314. In this regard, he marked on GX 20 those areas of
15

This contention carried its own problems; rib sloughing could be argued to be a problem for
which MSHA played a role. Although this is an aspect of more significance for any civil penalties which
may be issued in the proceedings against Bledsoe Coal itself, Inspector Boylen informed that the pillar
corners in this area were laid out on 60 degree angles and that such sharp angles are more prone to fall

(continued...)

35 FMSHRC Page 3375

concern to him. It is fair to state that Inspector Boylen was dismayed over the omissions in the
citations and orders of several areas that he believed needed attention. Such problem rib areas,
which he described as “needing attention,” would have been included had he been the one
issuing those citations and orders. He did not become aware of those alleged shortcomings until
shortly before the hearing began. Tr. 319. This problem had consequences for the government’s
proof. For example, where Mr. Boylen marked an as “crushed,” a term he uses as synonymous
for “sloughing,” he could not provide further detail because he assumed someone would be
issuing additional citations for such areas, but that never happened. Tr. 321. Accordingly,
Inspector Boylen would have issued additional citations, or at least added the other problem
areas in the citations and orders, and citing section 75.202(a), with the gravity listed as moderate
and as “S&S.” Again, no such additional detail, or citations, were issued. Therefore, while these
areas were identified during his testimony, including claims that several ribs needed “attention”
and some that had already “rolled out,” additional citations were not issued for the problems
he perceived. As the Court has taken note of, neither Mr. Bentley nor Bledsoe can be held to
account for alleged problematic rib areas not identified within the four corners of any citation or
order.
Regarding MSHA’s claim that there was an inadequate preshift exam performed,
Inspector Boylen stated that it was “more than likely” that he would have issued such a claim.
Tr. 340. In the Court’s view, and as he was there at the same time as Inspector Ramsey, this
affirmation falls short, as it was less than a full endorsement of that charge. Importantly,
Inspector Boylen affirmed that the rib conditions that concerned him did not relate to the fatality.
Tr. 352. Further, he stated that he did not know how things looked, in the location of the
slickenside, just prior to the accident. In an admission that the Court views as supporting Mr.
Bentley’s defense, Inspector Boylen stated that in the area “where it slid out right adjacent to
[the slickenside], it was solid.” Tr. 352. In fact, both sides of the slickenside were solid. So too,
Boylen agreed that one would not put dates, times and initials right next to a bad rib. Tr. 353.
Inspector Boylen also agreed that things can change quickly in a mine and that a ½ inch
gap can happen in short order. Tr. 356-357. Further, although he, like Inspector Ramsey, could
not know what Mr. Bentley saw during his preshift, it was still his belief that Mr. Bentley did not
see it. Further, Inspector Boylen did not know if the condition was even present and therefore
capable of being seen before it occurred. Tr. 370. As he saw no evidence of small material
coming off in that location, he inferred in his testimony that there were no warnings to heed.
In addition, and in the Court’s view of significance, Inspector Boylen did not feel that Mr.
Bentley was a poor mine foreman. Tr. 382.

15

(...continued)

and accordingly it is not unusual to see corners slough off. Bledsoe had requested permission to cut its
sharp angled corners but MSHA, at that time at least, denied that request. Bledsoe’s general manager,
David Osborne, later testified that it had asked MSHA to allow its roof control plan to be modified to
permit removal of the sharp corners from the pillars. Tr. 680. But it was not until after the fatality, that
this request was approved. Tr. 354.

35 FMSHRC Page 3376

Dr. Sandin Phillipson, an MSHA geologist, also testified for the government. He was at
the mine the day after the fatal event and GX 8 was created by him. That Exhibit reflects his
observations and findings of the accident and nearby area. GX 24 is Dr. Phillipson’s field notes
associated with this investigation. Consistent with Inspector Boylen’s opinion, Dr. Phillipson
agreed that the average miner or foreman would not have been able to recognize the slickenside
nor able to process and interpret the geometry and therefore not able to realize that there was a
potential for the failure which occurred. Tr. 438. The doctor also told the MSHA investigative
team that there was no pillar stability problem in the area. His concern was with the acute
angled corners of the pillars, a subject which has been discussed earlier. Though expressing that
concern, he acknowledged that such angular crosscuts are a by-product of the continuous
haulage system.
It is also of note that, while Dr. Phillipson saw cracks in ribs, he could not tell if they
were simply skin cracks or whether they went all the way through the pillar. Tr. 441. Further,
rib sloughing is not usually an indicator of pillar stability, as it is more of a skin condition. Even
after his investigation was completed, the doctor made no recommendation for changes in the
mine’s pillar design. Tr. 447. Of particular significance for the charges made against Mr.
Bentley, Dr. Phillipson saw no sloughing or flaking at all coming off the ribs in the fatal rib roll
zone.16 Tr. 447. It is also worth noting that Dr. Phillipson expressed that, even if the mine had
been installing rib bolts with the so called “pizza pan” or “spider plate,” those types of rib
bolting would not have prevented the fatal accident here. Tr. 454.
Dr. Phillipson distinguished the accident scene area from other locations that gave him
concern, with the latter, in his estimation being areas where an average miner could recognize of
sloughing. As with MSHA’s other witnesses, the doctor expressed that it was “definitely
reasonable” to conclude that the slickenside came out rapidly and not with several movements
that would have provided some warning that it would occur. Tr. 477. It is also noted that of the
12 or so areas that Dr. Phillipson marked on his map, representing instances of rib sloughing, he
described them as having the potential to become a hazard. This is important because he did not
conclude that they constituted things that needed to be attended to immediately.17

16

In contrast, Dr. Phillipson did see “problems,” that is, evidence of sloughing on the pillar
corners and the ribs beginning around crosscut 16 and through the No. 4 entry up to crosscut 33.
17

Dr. Phillipson had only one exception to his remark that the sloughing he observed did not
need immediate attention. The lone area needing attention right away, in his view, was “the corner
bounded by the red line with the 40.” For that one location, he believed attention was needed sooner,
rather than later. Tr. 479-480.

35 FMSHRC Page 3377

At the conclusion of the government’s case, Counsel for Respondent Bentley made a
motion to dismiss18 on the grounds that a knowing violation had not been established. As Mr.
Bentley’s Attorney expressed it “ . . . nobody has pointed to issues that a mine foreman would
have seen, would have known, would have grasped the danger and hazard and then knowingly
just refused to rectify or address those issues.” Tr. 528.
A ruling was deferred and the case continued with testimony from witnesses called by the
Respondents. John Caldwell, the mine’s section foreman and production foreman, was at the
mine the night before the accident. Mr. Caldwell did the onshift exam of the area the day before
the accident and he stated that he did not see any hazards, nor loose ribs, nor missing bolts. Tr.
540. Later that night, Mr. Caldwell, not Mr. Bentley, also performed the last preshift before the
fatal accident occurred. When the Court inquired about whether there were problems earlier that
week, Mr. Caldwell advised that there were such problems where things would start to “break
away,” but he maintained that these would not develop until weeks or months had passed. Tr.
596. However, when these did occur, the mine would wrap such problematic crosscuts.
Kevin Jump, third shift mine foreman, was also called by Respondent Bledsoe.
Essentially, Mr. Jump’s testimony was that, while he did note some hazards on the shift he
worked, he did not see any loose ribs, nor missing bolts. Tr. 620-622.
Last, Mr. Paul Bentley testified. It is accurate to state that Mr. Bentley was profoundly
shaken by the fatal accident. At the time of the accident he was the section foreman, but
presently he is a preshift foreman. In this new role, he preshifts outby the working section.
When he arrived at the mine on the day of the fatal accident, at a time before 7 a.m., he looked at
the preshift report from the individual who performed that task, finding that no hazards were
there noted. Mr. Bentley’s shift lasted from 7 a.m. to 3 p.m. on that day. During the time of his
shift, he was not required to examine outby crosscut 33. He did not find any hazards during his
onshift exam on the day of the accident. Tr. 757. The Court expressly found Mr. Bentley to be a
credible witness.
Discussion
At the conclusion of MSHA’s case, Respondents moved for dismissal, referring to 29
C.F.R. §2700.67, entitled “Summary decision of the Judge.” This Order deals with the Motion
for dismissal for Mr. Bentley. Essentially, as just noted, Counsel maintained that the
government failed to meet its burden of proof to establish the 110(c) violations19 in that no
18

Counsel for Bledsoe Coal also made a motion for dismissal at the conclusion of the
government’s case. That motion was denied.
19

Mr. Bentley’s Counsel emphasized that “knowingly” is the key word in matters 110(c).
Placing the charges in context, Counsel Shelton noted that initially the onshift charge, per Order No.
8355777, covered only the location of the fatal accident. Then the Secretary amended that Order to add

(continued...)

35 FMSHRC Page 3378

witness for the government “pointed to issues that a mine foreman would have seen, would have
known, would have grasped the danger and hazard and then knowingly just refused to rectify or
address those issues.” Tr. 528. For the reasons which follow, the Court agrees that the Secretary
failed to meet its burden of proof in the charges against Mr. Bentley.
Though the label used to convey the intent behind the motion varies, sometimes being
referred to as a “directed verdict,” and other times as seeking “summary decision,” the purpose
remains constant, with a Respondent essentially contending that the government is not entitled to
prevail as a matter of law. As noted in Clifford Meek v. Essroc Corporation, “If during a trial
without a jury a party has been fully heard with respect to an issue ..., the court may enter
judgment as a matter of law against that party on any claim.” 15 FMSHRC 606, (April 1993)20

19

(...continued)

the other areas listed in Citation No. 355746, the insufficiently supported ribs charge. Still later, the
Secretary moved to add the areas listed in the preshift charge issued to Bledsoe, then adding those areas
against Mr. Bentley too.
20

It is clear that the Court can decide a matter after hearing the evidence without waiting for posthearing briefs. A few examples follow. In Sec. v. Drummond Company, Inc., 14 FMSHRC 2039, (Dec.
1992, ALJ) the Court granted Drummond’s motion, seeking “a directed verdict arguing that based on the
Secretary's case alone, it was clear that the violation charged was fully abated at the time the Section
104(b) order was issued and that the Secretary was without authority under that section to require it to
take the additional specified action beyond what was necessary to remedy and correct the violative
condition cited.” The motion was granted in a bench decision. In Secretary v. Consolidation Coal ,
11 FMSHRC 311 (March 1989), “[a]t the conclusion of the Secretary's case-in-chief, Consol moved for a
directed verdict on the grounds that the Secretary's evidence did not support a violation of the cited
standard. The Motion for Directed Verdict (See Fed. R. Civ. P.41(b) applicable hereto by virtue of
Commission Rule 1(b), 29 C.F.R. 2700.1(b)) was granted at hearing . . .” The judge found that “the
matter that [was] before [him] and clearly from the undisputed evidence presented by the government
there [was] no violation of the cited standard, the standard with which [there had been] evidence
throughout the government's case and upon which the operator has been conducting its cross-examination
. . . there has been no violation of that standard based on the evidence presented.” That being the case,
the motion for directed verdict was granted. In Secretary v. Cyprus Emerald Resources, 10 FMSHRC
1417 (October 1988), at the conclusion of the Secretary's case-in-chief, Emerald filed a motion for
directed verdict and a motion for summary decision. “The Motion for Directed Verdict (See
FED.R.CIV.P.41(b) applicable hereto by virtue of Commission Rule 1(b), 29 C.F.R. 2700.1(b) was
granted at hearing and that decision appears as follows with only non-substantive corrections . . .”
In Jim Walter Resources, Inc. v. Secretary, 34 FMSHRC 1386, (June 2012), at the conclusion of the
Secretary's case, the Respondent made a motion for summary decision, arguing that the Secretary failed to
establish a prima facie case that it violated Section 77.400(d). After listening to oral arguments, the
motion was granted in an oral decision. In Eastern Associated Coal v. Secretary, 22 FMSHRC 1020,
(August 2000), “[a]t the conclusion of the Secretary's case, Eastern made a motion for a summary
decision. After listening to arguments from both counsel a decision was made granting the motion.”
Finally, in Aluminum Company of America v. Secretary, 15 FMSHRC 1821 (September 1993), the
Commission noted that at “ the conclusion of the Secretary's case, the judge entered a decision from the

(continued...)

35 FMSHRC Page 3379

As noted at the outset of this decision, the Secretary must prove that an individual knew
or had reason to know of the violative condition, not that the individual knowingly violated the
law. Such a violation occurs when an individual in a position to protect employee safety and
health, fails to act on the basis of information that gives him knowledge or reason to know of the
existence of a violative condition. Since the government’s own witnesses refuted the claim that
Mr. Bentley had such knowledge or reason to know of the existence of the slickenside, which
condition was the initial basis for its claims against him, that left the other rib problems in the
area as the basis for its claim against him. However, between its three witnesses, Inspector
Ramsey, Inspector Boylen and Dr. Phillipson21 and their divergent views of which ribs needed
attention,22 when coupled with the testimony of Mr. Bentley and other witnesses for the
Respondent, it is clear that the government failed to meet its burden of proof for any of the three
charges brought against Respondent Bentley.
The addition of the preshift violations, added to show that the conditions existed prior to
the onshift examination conducted by Mr. Bentley, is a classic bootstrap argument. It fails in
two ways. First, as Mr. Bentley did not do the preshift exam for January 22nd, it is an attempt to
show that, because the government alleges that the rib issues asserted to exist at the time of the
onshift exam are also asserted to have existed during the preshift which preceded it, Mr. Bentley
had to have seen those conditions alleged in the preshift when he did his onshift. The attempt to
pin those preshift conditions on Mr. Bentley, apart from the fact that he did not do that preshift,
require that the conditions were indeed present at the time of the preshift. Without implicitly
ruling on that preshift charge in the action against Bledsoe Coal in the associated case, KENT
2011-481, the Court notes that the standard of proof is different for a section 110(c) matter than
in a matter under sections 105 and 110 of the Mine Act, 30 U.S.C. §§ 815 an 820. The evidence
presented by the Secretary at the hearing was insufficient to establish section 110(c) liability for
either the preshift or onshift charges against Mr. Bentley.
20

(...continued)

bench granting Alcoa's motion to dismiss. The judge subsequently issued a written decision confirming
his bench decision. While the judge credited the testimony of the Secretary's witnesses, including expert
testimony as to the hazardous nature of mercury . . ., he held that the Mine Act gives the Secretary the
authority to issue a section 103(k) order only if there has been an accident, as that term is defined by
section 3(k) of the 1824 Mine Act. . . . The judge concluded that the Secretary did not prove that the
mercury contamination detected in the R-300 area was the result of an accident and, accordingly, he
vacated the section 103(k) order.”
21

As Counsel for Mr. Bentley correctly characterized the testimony of Dr. Phillipson, while there
were some problems that he perceived with the ribs, they did not need to be corrected immediately. That
being the case, they were outside of the preshift and onshift responsibilities of a mine foreman. Tr. 528529.
22

There were other instances of MSHA’s right hand not being sure about what its left was doing.
For example, while Inspector Ramsey found a problem with the rib at the left inby corner of Belt entry 3
at crosscut 32, Inspector Boylen, while admitting he was in the same area, did not detect such a problem.
Tr. 376.

35 FMSHRC Page 3380

Not only did the government witnesses have non-uniform assessments of the presence
and/or conditions of various ribs in the section, with regard to the slickenside fatality rock slide,
the government witnesses could not express whether those conditions were detectable for Mr.
Bentley when he did his onshift report. There was also agreement that it would be very unlikely
that one would then place DTI’s right next to such a claimed obvious hazard. That being the
case, it could hardly be claimed that they were visible earlier to Mr. Bentley, as implied by the
inadequate preshift charge, for which charge the government points to the absence of noted
problems to show that problems were present. As noted earlier, the fact that all three on-shift
examiners recorded “None Observed” in the #3 Belt Heading for January 22, 2010, can also be
interpreted to mean that no hazardous ribs were found and not simply that hazards were ignored
or overlooked. As also has been noted, but which bears reemphasis, apart from the location of
the fatal rib fall, MSHA accident investigators themselves did not see nor assess each of the
other rib issues uniformly. The point is that, at least on this record, it is possible to conclude that
different individuals, including Bledsoe employees, could look at the ribs cited and legitimately
reach different conclusions about the sloughage and whether, if detected, they were in need of
immediate attention or not. Further, while the Court found Inspector Boylen to be a
knowledgeable and credible witness, the government can hardly establish its case against Mr.
Bentley based on rib conditions detected by Inspector Boylen but not included by the lead
investigator in the charges made against Mr. Bentley or Bledsoe itself for that matter. The
government must be limited to the charges of roof control problems to those it identified in its
citations and orders. That other areas, according to Inspector Boylen, should have been cited is
not the concern of either of the Respondents or the Court. In terms of Mr. Bentley’s potential
110(c) culpability, which is the subject of this Order, it is clear that the evidence falls far short of
establishing that he had knowledge or reason to know of the violative condition, much less that
he engaged in aggravated conduct constituting more than ordinary negligence.
Accordingly, for the foregoing reasons, all charges against Mr. Bentley are hereby
DISMISSED.
SO ORDERED.

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

35 FMSHRC Page 3381

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, Tennessee 37219-2456
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 North Eagle Creek Drive,
Suite 310, Lexington, Kentucky 40509
Marco M. Rajkovich, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, Kentucky 40513

35 FMSHRC Page 3382

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE N. W., SUITE 520N
WASHINGTON, D.C. 20004-1710
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949

November 6, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

:
:
:
:
:
:
:
:
:

v.
ICG KNOTT COUNTY LLC,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. KENT 2012-575
A.C. No. 15-19447-277203-01

Mine: Kathleen

DECISION
Appearances:

Brian D. Mauk, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner
John M. Williams, Esq. Rajkovich, Williams, Kilpatrick & True, PLLC,
Lexington, KY, for Respondent

Before:

William B. Moran

This case involves a section 104(a) citation related to a roof fall at the Respondent’s
Kathleen Mine. The roof fall occurred between some roof bolts, seriously injuring a roof bolter
operator, Mr. Jared Sargeant. That fall resulted in the miner’s foot being amputated the
following day. The case does not involve a violation of the roof control plan, rather it is a
citation alleging a violation of section 75.202(a) and its provision requiring that “[t]he roof, face
and ribs of areas where persons work or travel shall be supported or otherwise controlled to
protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.”
A hearing was held on May 30, 2013 in Pikeville, Kentucky.1 For the reasons which follow, the
Court finds that the Secretary did not establish that the Respondent violated the cited standard.
Accordingly, the case is DISMISSED.

1

The transcript inadvertently included a transcript for an unrelated matter brought before the
Circuit Court of Loudoun County, Virginia. (Case No. 77544, dated June 7, 2013) That matter, 27
transcript pages in length, plus a seven page word index, was not connected in any way with this, nor any
other Mine Act proceeding. Accordingly, the Court removed the immaterial pages and returned then to
the court reporting service.

35 FMSHRC Page 3383

Findings of Fact
Claudius Ray Johnson, a coal mine inspector for MSHA since 2006, testified for the
Secretary.2 On September 20, 2008, Inspector Johnson received word that there had been a roof
fall at the Respondent ICG Knott County, LLC’s Kathleen Mine and that there had been a
resulting injury to a miner from that event. The event had occurred on September 19th and
Inspector Johnson went to the mine the following day. MSHA roof control specialist Rick
Runyon also joined Inspector Johnson at the mine. Upon arriving at the mine site, the mine’s
Stewart Bailey, advised Johnson that MSHA was not called earlier because they believed the
injury to the miner, roof bolter operator Jarrod Sergeant, was not life-threatening. Tr. 19.
Instead, the mine made a “courtesy call” to MSHA the following day, upon learning that the
miner had a leg amputation from the event. Tr. 20.
Johnson and others then proceeded to the scene of the accident, examining the location
where the rock had fallen, causing the serious injury to the miner. The roof fall was in the No. 3
heading, which was an active section. The essence of the incident can be rather simply stated: a
large rock fell from the roof and hit the miner in the leg. Tr. 24. The fall occurred about 8 to 10
feet inby the last open crosscut. Tr. 21. As the rock from the fall had been moved before the
Inspector’s arrival, MSHA could only measure the cavity remaining in the roof. Nevertheless,
the cavity informed the Inspector that the rock which fell was 48 inches wide, 33 inches long and
10 3/4 deep. Tr. 22. The mining height in the area of the fall was 55 inches (4 feet 7 inches).
The Inspector described the general area of the rock fall as containing several areas that
were “sloughing out [i.e. loose rock hanging from the mine roof which needed to be pulled and
removed] and a kettle bottom that hadn’t been strapped.” Tr. 24, 26. Citations were issued by
Inspector Runyon for those conditions. Tr. 24. In terms of the proximity of the sloughing roof
and the kettle bottom to the rock fall, the Inspector stated that these were in the No. 5 and No. 6
entries, which were 60 to 80 feet away, whereas the roof fall itself was in the No. 3 entry.3 Tr.
27. While these other matters were in different entries, Inspector Johnson still considered them
to be important in his evaluation of the accident scene, as he considered them to be “in the same
area in relationship to [one another].” Tr. 27. One of those other conditions was inby the last
open crosscut; the other was not. His fellow Inspector, Mr. Runyon, also considered these other
conditions to be relevant to the cited roof fall assessment.

2

Inspector Johnson has his foreman papers and worked in the mining industry for 20 years prior
to joining MSHA. Tr. 15.
3

The Inspector stated that the No. 5 entry would have been some 80 to 150 feet from the roof
fall. As he could not remember the centers between the entries, the Inspector could not be more specific
about the proximity of these other conditions to the roof fall location, which of course was the matter that
prompted his investigation. Tr. 27.

35 FMSHRC Page 3384

Additional detail about the site of the rock fall was provided. The entries were 18 ½ feet
wide. The rock that fell was near the right rib and it fell out between two rows of roof bolts. Tr.
32. The roof bolts were on centers of slightly less than 4 feet. Other support was in the area.
These were straps and some of the bolts had a “pie pan” installed. That device covers a greater
area than the 8 x 8 plate that is installed with a roof bolt. In fact, one pie pan was “right beside
where the rock fell.” Tr. 33. The straps and pie plates were not required under the roof control
plan. Tr. 33. In fact, right next to where the rock fell, there was a pie pan and some straps
around three sides of it. Tr. 34 and Ex. P 2, a drawing of cited condition at p. 18 of the
Inspector’s notes. The word “strap” appears 3 times in the drawing.
Inspector Johnson also interviewed the accident victim, Mr. Sergeant. Ex. P 3. That
interview occurred about a month after the event. The injured miner informed that on that day
he was performing roof bolting in the No. 3 entry, at a location out of the air movement in the
last open crosscut. At the time of the accident, he was on his knees when he then heard the roof
starting to “work,” that is, it was making noise. Though he tried to get to safety, Mr. Sargeant
was unable to leap out of the area fast enough, because of the low mining height, and the rock hit
his leg. Tr. 40. In the amputation which ensued, the miner lost his leg from about 6 to 8 inches
below his knee. Tr. 38.
On November 8, 2011, Inspector Johnson, having completed his investigation,4 returned
to the mine and issued Citation No. 8261958, the citation which is the subject of this litigation.
Tr. 16, 44, Gov. Ex. P 4. Tr. 16, Exhibits P1and P 2. As stated, the citation invoked section
75.202(a), which provision requires that roof and ribs be supported or otherwise controlled from
such falls. The Inspector believed that the mine had not fully protected the miners from a fall of
roof and ribs. He also marked the negligence as “moderate” on the basis that the operator knew
or should have known of the condition “because it was obvious in other areas of the mine[].” Tr.
47. He believed that the operator “should have kn[own] they had a problem.” The moderate
negligence designation was viewed, in effect, as a concession by the Inspector. That is, it was
considered to be a mitigating factor, because the mine was following its roof control plan. The
Inspector also marked the citation as “significant and substantial.” Tr. 48. However, a roof
control plan represents the minimum requirement.
In sum, as expressed by the Inspector, “With what we [saw] during our visit the first day,
with the citations that [were] issued for the other conditions, and one of them being in the area
close to [the location of the roof fall] [he] felt they should have known it.” Tr. 47. Inspector
Johnson’s construed the mine’s installation of some straps and the pie pan right in the area of the
fall as indicative that the mine knew there were problems at that area. Tr. 48.

4

The Inspector’s investigation also included speaking to some miners on the section. Their
remarks were reflected in his notes and are part of the record.

35 FMSHRC Page 3385

Following the accident, MSHA requested that the mine’s roof control plan be revised to
require that the mine not drill holes through kettle bottoms and that they would strap them. The
Plan was revised to require those steps. Tr. 49. MSHA considers drilling through kettle
bottoms to be an unsafe practice. When encountering these, MSHA instead requires strapping or
some other method placed over them. Tr. 51. Despite the additional procedures for the mine’s
roof control plan, it is significant to note that the Inspector stated that the rock that fell had not
been drilled through. Tr. 52.
Upon cross-examination, the Inspector agreed that a roof bolter’s responsibilities include
being a front line person to look at the conditions of the roof. Tr. 54. While conceding that role,
the Inspector added that he did not know if the injured miner was the one that bolted the area
where the rock fell out. The Inspector conceded that a piece of mine roof can come out under
circumstances where one cannot tell if that will happen; that not every rock which falls out is a
kettle bottom; and that this rock fell out between the bolts. Accordingly, the most the Inspector
could say with confidence was that a rock had fallen out, but not whether it was a kettlebottom.5
Tr. 55. The Inspector’s reaffirmed his view that, because there were straps installed, and a pie
pan was right beside the rock, those actions were signs of recognition that there was a problem in
the area. Tr. 55-56. However, he admitted those steps could also be viewed as indicating that
people were being attentive to the roof conditions and taking responsible steps, by adding
support such as strapping, where they saw problems.6 Tr. 56.
As to the citations issued at the time of the investigation by fellow inspector Runyon,
Inspector Johnson agreed those were two or three entries away from the location of the rock fall.
Tr. 57. Importantly, Johnson agreed that those other violations were not considered to be
contributory to the rock fall incident. Tr. 58. Inspector Runyon is a roof control specialist
whereas Inspector Johnson does not have that expertise. In fact, Johnson conceded that Runyon
was involved in the investigation because of that expertise. Tr. 59. Also, Inspector Johnson did
not issue any citations to the mine examiners, such as pre-shift or on-shift examiners, in this
instance. Tr. 60. He noted that there was an exam done that day and that the examiners did not
note any roof problem. Further, there were paint marks in that area, indicating that someone did

5

The Inspector retreated from his earlier statement that the rock which fell was a kettle bottom.
The most he could state was that this mine has a history of kettle bottoms. Tr. 57-58. Accordingly, the
Inspector could not state whether the rock that fell could be identified beyond that it was a rock and thus
he could not characterize it as a kettle bottom or a slickenside rock: “[t]here was a piece of rock that fell.”
Tr. 62. In fact, he candidly admitted that he didn’t know what the term “slickenside” actually meant.
Further, even a kettle bottom might not be visible, as there can be times when it is under a layer of rock.
Id.
6

The Inspector also agreed that this mine has a history of adding strapping or other supplemental
support when they find a need to do so. Tr. 58.

35 FMSHRC Page 3386

examine that area that day.7 The paint mark was a directional centerline, which is made to help
keep the entries straight. Tr. 60-61.
When the Court asked if MSHA was, in effect, engaging in “Monday morning
quarterbacking,” about the rock fall and that the mine operator really couldn’t have figured out
that there was something that needed attention, the Inspector first noted that MSHA was at a
disadvantage in assessing whether the mine had foreknowledge because the rock had been
removed and thus it was impossible to assess the obviousness of the condition before the fall.
Tr. 64. He then added that, with all the citations his fellow Inspector, Mr. Runyon, had issued
for roof issues and the amount of strapping installed, and still needed, it was his conclusion that
not enough had been done to address the area where the rock fell. Tr. 65. Still, Johnson agreed
that none of the statements he took from miners, other than from the injured miner, suggested
that the citation he issued was warranted. Tr. 67.
In terms of the strapping that was present, the Inspector noted that there was some “to the
outer edges” of the location of the rock fall, but “nothing right against it.” Tr. 70.
Clarifying earlier testimony, the Inspector stated that the rock that fell out was outby the face a
short distance, on the order of 7 feet “inby the corner of the last open crosscut, starting into the
head.” Tr. 72. When asked if, when working outby the area of the rock fall, there were other
areas that needed support, the Inspector advised there were not. Tr. 72. Consistent with that
conclusion, there were no other roof citations issued for the number 3 entry. Tr. 74.
The Parties’ Contentions
The Secretary contends that several factors establish that a reasonably prudent mine
operator would have recognized the cited hazardous condition. In this regard it contends “[b]oth
CMI [coal mine inspector] Johnson and Inspector Runyon observed obvious and extensive
adverse roof conditions throughout the travelway leading to the accident site [and] [t]hey also
observed adverse conditions when they arrived on the active section.” Sec. Br. at 5. From that,
the Secretary contends that “[i]t is reasonable to believe that these hazards were apparent to the
operator, placing it on notice that protective measures were needed to alleviate hazards from
adverse roof conditions.” Id. The Secretary also looks to the fact that the Respondent had
installed some additional roof support in the area of the accident site as “demonstrating that the
operator was aware of deteriorating roof conditions.” Last, the Secretary notes that Inspector
Johnson’s notes record that the accident victim, Mr. Sergeant, told him that he had installed roof
bolts in various places on the morning of the accident. The Secretary adds that such bolt
installation in various places is “known as ‘spot bolting’ [and that] this is done to alleviate
hazardous roof conditions.” However neither the term “spot bolting,” nor its purpose, is part of
the testimony in the record, nor does the Secretary ask for, or point to, a basis for taking
7

As his first response to a question posed on cross-exam was imprecise, Respondent’s attorney,
asked again whether the condition was one which should have been noted by the pre-shift or on-shift
exam. That is, whether the condition was apparent, if one had looked at the roof before the rock fell.
Inspector Johnson responded that he concluded it was not apparent by such exams. Tr. 61.

35 FMSHRC Page 3387

administrative or official notice of such as facts. There are other problems with this evidentiary
reference. The accident occurred in the active working section #3 entry. The Inspector’s notes
of the Mr. Sergeant’s statement to him record that on the day of the accident, his foreman told
him to spot bolt at the # 1 entry.8 Further, the spot bolting reference is immediately followed by
the comment that “CMI Johnson correctly summed up [that the reason] the operator’s conduct
was a violation, [was] “[t]hey weren’t putting enough into it to protect the miner.” Id. The
Court would note that while the “spot bolting” and the claim that the mine was not “putting
enough into it” to protect the miner were juxtaposed, the two were not tied together in the
Inspector’s testimony at all. As noted, the Inspector said nothing in his testimony about spot
bolting, nor that it is a practice used to alleviate hazardous roof.
The Respondent contends the Citation should be vacated, as the Secretary failed to
establish that a reasonably prudent mine operator would have provided additional roof support.
R’s Br. at 4. Citing Cannon Coal, 9 FMSHRC 667 (April 1987),9 Respondent notes the
Commission’s holding that liability under the cited standard’s requirement for adequate roof
support is “measured against the test of whether the support or control is what a reasonably
prudent person, familiar with the mining industry and the protective purpose of the standard
would have provided in order to meet the protection intended by the standard.” Id. at *668.
Cannon, as the Respondent notes, went on to “emphasize that the reasonably prudent
person test contemplates an objective – not subjective – analysis of all the surrounding
circumstances, factors, and considerations bearing on the inquiry in issue.” Id. Referring to the
administrative law judge’s examination of the evidence presented, the Commission then noted
“that the Secretary had failed to produce evidence that objective signs existed prior to the roof
fall that would have alerted a reasonably prudent person to install additional roof support beyond
the support that actually had been provided by the operator.” Id.

8

As the Inspector did not testify about this part of his notes, it is possible that those notes reflect
that the miner was told to spot bolt in the # 7 entry. Left with reading the inspector’s handwritten notes,
and with no testimony to decipher what was written, the Court cannot be sure whether the Inspector’s
recorded a “1” or a “7” for the entry. Importantly, what is clear is that the notes do not record spot
bolting being done that day in the # 3 entry, the area of the accident.
9

Cannon Coal dealt with the predecessor standard, 30 C.F.R. §75.200, to the provision cited
here, 30 C.F.R. §75.202, but the critical language is shared in both that the roof and ribs are to be
supported or otherwise controlled to protect miners from falls. Now listed as the “Scope,” Section 75.200
used to provide: “Each operator shall undertake to carry out on a continuing basis a program to improve
the roof control system of each coal mine and the means and measures to accomplish such system. The
roof and ribs of all active underground roadways, travelways, and working places shall be supported or
otherwise controlled adequately to protect persons from falls of the roof or ribs.”
The superceding, present, standard, 30 C.F.R. §75.202, now provides: “(a) The roof, face and ribs of areas
where persons work or travel shall be supported or otherwise controlled to protect persons from hazards
related to falls of the roof, face or ribs and coal or rock bursts.”

35 FMSHRC Page 3388

It is the Respondent’s contention, and the Court’s conclusion, that the Secretary failed to
satisfy the Cannon standard. In essence, the Respondent maintains that the evidence falls short
of establishing that a reasonably prudent mine operator would have provided additional support.
Certainly, Respondent observes, the fact that there was a rock fall and that the fall injured a
miner does not establish a violation. Nor, it contends, does the fact that there were roof control
citations issued for other areas in the mine establish that the cited fall was the result of a failure
to provide the protection a reasonably prudent mine operator would have taken. In this regard it
notes that those cited areas were in different entries, and some 150 to 200 feet from the fall cited
here. Further, those other areas, it was conceded, did not contribute to the occurrence of the
cited condition. Anticipating the Secretary’s assertion, Respondent argues that the fact it had
installed strapping in the area of the fall can not be turned against it to show that more support
was needed. Instead, it shows that the operator did take action where it perceived the need for
additional support. R’s Br. at 7.
In its Response Brief, the Respondent asserts that the record does not support a claim that
the there was a hazardous roof condition which was “apparent to the operator.” It notes that the
Inspector did not allege preshift exam deficiencies because it was not known if the condition was
apparent. As for the Secretary’s claim of obvious and extensive adverse roof, Respondent notes
that those problems were not in the area where the rock fell. Focusing upon the requirement for
objective proof, Respondent notes that there was no evidence that the area where the rock fell
needed additional support. It argues that the idea that the Secretary need only identify other
unconnected problem locations in a mine to establish a violation runs contrary to Cannon Coal’s
teaching. R’s Reply at 2. Nor, it adds, should the mine’s salutary safety actions, by installing
strapping and pie pans in the same area, be used as a cudgel against it. Id. at 2-3. Finally,
Respondent comments upon the Secretary’s post hearing brief remark that the injured miner spot
bolted the area of the rock fall. It notes that no mention of this was made during the hearing and
the note itself does not establish that such bolting was done to alleviate hazardous conditions.
Id. at 3. Had that been the case, the Secretary had the option to call the injured miner to testify
about the conditions.
Discussion10
The parties and the Court are in agreement that Cannon Coal is the Commission
authority to turn to in determining whether a violation of 30 C.F.R. 75.202(a) has been
established. To begin, based on this record, the Court does not view the other citations, issued at
the time of the matter in dispute here, as tending to show that the reasonably prudent person
would have taken additional steps for the distinct condition cited in Citation No. 8261958.
Those other cited conditions were insufficiently related, in proximity, to the Citation in issue and
as such they do not inform about the condition at the site of the roof fall. Applying the objective
test required

10

The reader will note that discussion and findings by the Court are not limited to this section of
the decision.

35 FMSHRC Page 3389

under Cannon, and absent a showing that the roof conditions were endemic throughout the
working section, the Court must focus on the conditions at, or very near to, the roof fall.
Thus, the Court does not agree that the cited condition was in the same area as the other areas
cited. As in Cannon Coal, the Court here finds here too, that “the Secretary failed to produce
evidence that objective signs existed prior to the roof fall that would have alerted a reasonably
prudent person to install additional roof support beyond the support that actually had been
provided.” Cannon Coal at *668.
In terms of the location where the rock fell, again, based on this record, the conditions
observed do not support the Secretary’s claim. No claim was made that the roof control plan
was not being followed. While true that following the roof control plan is not the end of the
inquiry, here it was conceded that pie pans and straps were also used, though not required by the
plan. As noted, one such pan was right beside where the rock fell. In addition, straps were
present around three sides of the area where the rock fell. It is true that the Inspector “felt,” that
is, he believed, that the mine operator had not done enough to control the roof, such a subjective
basis does not square with the requirements under Cannon Coal.
While, post-accident, the mine revised its roof control plan so that it would not drill holes
in kettle bottoms, but instead would strap them, the Inspector was unable to state that the rock
which fell was a kettle bottom. Beyond that, revisions to roof control plans, by themselves,
cannot be used to establish that a hazardous condition, resulting in the issuance of a citation, was
present prior to that change in the plan. So too, as noted, no preshift or onshift citations were
issued in connection with this rock fall. Those exams did not note any roof problem and there
were paint marks in the area, indicating that the exams were made.
Thus, on the record before the Court, it is concluded that this was an extremely
unfortunate accident which occurred and for which the Court has genuine sympathy for the
serious injury received by Mr. Jared Sergeant. However, this decision must be made on the basis
of the evidence adduced. That evidence, in turn, must rely on objective factors in determining
whether the mine operator failed to meet the standard required under Cannon Coal.
Applying that evidence, the Court finds that this serious accident was unpredictable and that the
Respondent, acting as a reasonably prudent mine operator, was not put on notice that additional
support was indicated.
Accordingly, the matter is DISMISSED.

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

35 FMSHRC Page 3390

Distribution: (E-mail and Certified Mail)
Brian D. Mauk, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite
230, Nashville, Tennessee 37219-2440
John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre
Circle, Suite 375, Lexington, KY 40513

35 FMSHRC Page 3391

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

November 13, 2013
LUDWIG EXPLOSIVES, INC.,
Contestant,
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent.

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
LUDWIG EXPLOSIVES, INC.,
Respondent.

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
TUSCOLA STONE COMPANY,
Respondent.

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CONTEST PROCEEDINGS
Docket No. LAKE 2011-530-RM
Citation No. 6555529; 02/23/2011
Docket No. LAKE 2011-531-RM
Order No. 6555528; 02/23/2011
Mine: Tuscola Stone Company
Mine ID 11-01657 B1N
CIVIL PENALTY PROCEEDING
Docket No. LAKE 2012-56-M
A.C. No. 11-01657-267325 B1N

Mine: Tuscola Stone Company

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2012-25-M
A.C. No. 11-01657-267815

Mine: Tuscola Stone Company

35 FMSHRC Page 3392

DECISION
Appearances:

Nadia A. Hafeez, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for the Secretary of Labor.
Daniel Foltyniewicz, pro se (non-attorney), Wheaton, Illinois, for
Ludwig Explosives, Inc.
Alan R. Shoemaker, pro se (non-attorney), Tuscola, Illinois, for
Tuscola Stone Company.

Before:

Judge Lewis

STATEMENT OF THE CASE
These civil penalty proceedings are pursuant to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §801 et seq. (the “Act” or “Mine Act”). This matter
concerns Citation No. 6555522 issued against Respondent, Tuscola Stone Co., and
Citation No. 6555529 issued against Respondent, Ludwig Explosives, pursuant to Section
104(d) of the Mine Act. A hearing was held in Springfield, Illinois, on May 6, 2013.
After the hearing, the parties submitted post-hearing briefs, which have been fully
considered.
ISSUES
The issues to be determined are: whether the 107(a) imminent danger order was
validly issued; whether the Respondents violated 30 C.F.R. § 56.3200; whether the
violations were significant and substantial in nature; and whether the violations
constituted unwarrantable failures.
STIPULATIONS
The parties submitted the following joint stipulations at hearing:
1)

Respondent, Tuscola Stone (“Tuscola”) was, at all relevant times, the
operator of the Tuscola Stone Company Mine; Mine ID: 11-01657.

2)

Respondent, Ludwig Explosives (“Ludwig”) was, at all relevant times, a
contractor (Contractor ID B1N) performing blasting activities at the
Tuscola Stone Company Mine; Mine ID: 11-01657.

3)

The mine listed above is a mine, as defined in the Mine Act.

4)

Tuscola and Ludwig are engaged in mining operations in the United
States, and their mining operations affect interstate commerce.

35 FMSHRC Page 3393

5)

Tuscola and Ludwig are subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 801-965.

6)

The Federal Mine Safety and Health Review Commission has jurisdiction
over these matters under the Mine Act.

7)

The citations at issue in this matter were issued on the dates indicated on
each.

8)

Inspector Peter Ackley, whose signature appears in block 22 of citations at
issue, was acting in his official capacity and acting as an authorized
representative of the United States Secretary of Labor.

9)

The Secretary proposed penalties for each citation as listed on Exhibit A to
each of the petitions for penalty assessment filed in these matters and
those amounts are incorporated by reference herein.

10)

The proposed penalties will not affect Tuscola’s or Ludwig’s ability to
continue in business.

11)

Tuscola and Ludwig demonstrated good faith in abating the violations.

12)

The exhibits to be offered by the parties are stipulated to be authentic but
no stipulation is made as to their relevance or as to the truth of the matters
asserted therein.

SUMMARY OF THE TESTIMONY
1. Peter Ackley
Peter Ackley (“Ackley”) appeared and testified on behalf of the Secretary.
Ackley had worked for three and a half years as a safety and health inspector for
the Department of Labor, Mine Safety and Health Administration (“MSHA”) in the metal
and nonmetal division. Tr. 11.1
Prior to working for MSHA, Ackley had worked for a cement plant for
approximately 15 years, and before that he had worked as a heavy equipment operator for
15 years. Tr. 12. At the cement plant, Ackley did not examine the highwalls of the
facility’s pits. Tr. 58. Ackley served in the Navy as an operating engineer with the
Seabees and he had some community college credits. Tr. 12, 54. He had formal training
with the Mine Academy for 26 weeks for entry level inspections. He also had
journeyman training; going out with journeymen inspectors when they performed
inspections. Tr. 12. His normal duties as an inspector included performing regular
1

The hearing transcript will hereinafter be referred to as “Tr.” followed by page

number.

35 FMSHRC Page 3394

inspections, doing hazardous condition complaints, filing reports, going out to mine sites
and visiting and verifying compliance with 30 C.F.R. Tr. 12.
Ackley usually inspects approximately 70 mines per year, most of which are
limestone, sand, and gravel pits. Tr. 12-13.
Ackley was familiar with Respondent’s mine, having performed inspections in
February, 2011. He characterized the mine as “mid-range” in size. Tr. 13. As compared
to many mines that had two to three employees, Tuscola Stone employed 12 employees.
Tr. 14. The mine used a multiple bench methodology for mining and crushing limestone
products.2 Tr. 14.
When he performed his inspection in February, 2011, Ackley followed his normal
inspection procedures: driving to the scale house or office; informing the highest ranking
official that he intended to perform an inspection; going through some standard
questions; and traveling through the mine with the mine operator or representative of the
mine operator, and possibly miner’s representatives. Tr. 14. On February 23, 2011,
Ackley was accompanied by members of the management team, including Rodney
Hatten, Alan Shoemaker, and foreman Jay Carter. Tr. 15. There was no miner’s
representative.3 Kevin LeGrand, Ackley’s field office supervisor, also accompanied him.
Tr. 15, 55-56.
As a result of his inspection, Ackley issued Citation No. 6555522 to Tuscola
Stone Co. on February 23, 2011, at 12:48. Tr. 15; SX-4.4
Ackley had issued the citation because miners were working at the base of a high
wall that had loose unconsolidated material, which had not been removed before the
commencement of work. Tr. 16. The rock was fractured and broken vertically and
horizontally, and there were sections that were gapped from the highwall and
overhanging. Tr. 16-17.
Ackley used his camera to photograph the highwall. Tr. 16. He stated that the
photograph admitted as SX-5 depicted the blasters at the base of the highwall, where
2

Multiple Bench methodology is a “method of quarrying a rock ledge in a series
of successive benches or steps.” Dictionary of Mining, Mineral, and Related Terms (2nd
Edition).
3

As noted infra, Shoemaker was not present during the entire inspection. At
hearing Hatten also identified himself as a miner’s representative. Tr. 230.
4

Secretary’s exhibits will hereinafter be referred to as “SX” followed by the
exhibit number. Respondent, Tuscola Stone’s, exhibits will hereinafter be referred to as
“TSX” followed by the exhibit number. Respondent, Ludwig Explosives’, exhibits will
hereinafter be referred to as “LX” followed by the exhibit number.

35 FMSHRC Page 3395

there was loose, unconsolidated material above them.5 Tr. 18. Two miners, a blaster and
blaster’s helper, were loading shots at the base of the high wall.6 Tr. 19. They were close
enough to touch the highwall, which was located above them and had cracked vertically
and horizontally and had overhang material. Tr. 19-20.
If material fell, it could kill or injure the miners standing below. Tr. 20. Ackley
marked the gravity as “highly likely” because of the presence of two miners who were
exposed to falling material during a time when material had actually fallen. Tr. 22. While
he had not actually observed the material fall, Ackley had been advised of such by
individuals at the scene, including Robert McAdam, Justin Coner, and Michael Schafer.
Tr. 22.
The photograph at SX-6 accurately depicted conditions at Tuscola Stone that
Ackley had observed. This included an atypical amount of coarse material laying about
at the bottom of the wall. Tr. 23-24.
Ackley would not have expected to see so much material on the ground. He
further would have expected to have seen the wall scaled. The materials should not have
been gapped and unconsolidated. Tr. 25.
Other than a quick visual inspection, Respondent Tuscola Stone had failed to do
anything to correct the conditions of the wall. Tr. 25. Given the height of the wall and
the material, Respondent should have performed a thorough visual inspection and
removed unsafe materials. Tr. 26. Ackley could not take actual measurements of the
unconsolidated material due to safety concerns, but made estimates of such, as reported
in his citation. Tr. 26; SX-4.
Ackley estimated that the highwall was approximately 40 feet in height. Tr. 28.
The photograph at SX-7 depicted the whole height of the wall, the bench that miners
were working on, and the ditch dug in front of the blast area. Tr. 28. Because of the
ditch’s location, Ackley had a concern regarding the blaster’s ability to leave the area
safely if material did fall. Tr. 30. He reviewed the photograph at SX-7, which depicted
loose overhanging material, some of which appeared to have already fallen. The
photograph also showed where miners would have been working and where tools were
located, which would later need to be retrieved. Tr. 30-32.
In determining that the hazardous condition could reasonably be expected to
result in fatal injuries Ackley considered the size of the rock that was loose and
unconsolidated, the height of the highwall, and that there had been fatal impact injuries
associated with highwalls every year in the past. Tr. 34-35.

18.

5

This photograph was actually taken by LeGrand in the presence of Ackley. Tr.

6

In quarry mining, a shot is an explosive charge in place for detonation.

35 FMSHRC Page 3396

Referring to MSHA’s Rules to Live By III, “Preventing Common Mining
Deaths,” Ackley noted that MSHA had placed special emphasis on certain safety
standard violations that needed to be avoided because of the fatalities associated with
such. Tr. 35; SX-8, p. 2. MSHA had gathered statistics regarding the Rules to Live By,
and made the results available to mine operators through its website, discussions during
inspections, and the circulation of brochures. Tr. 36.
Two people would have been affected by the violation because both the blaster
and blaster’s helper were working under the highwall, and could have been fatally injured
by falling rock. Tr. 37. Ackley further explained that once material begins to loosen and
fall, more than one falling rock is usually involved in an incident. Tr. 37.
The violation was the result of highly negligent conduct because Respondent,
Tuscola Stone, had reason to know about the hazardous condition of the highwall. Tr. 37.
Respondent’s personnel traveled in the area as part of normal mining activities
and used the haul road. Tr. 37. On Monday meetings with the blasters, Respondent had
been informed that the highwall was unsafe. Tr. 37-38. Despite being informed of such,
the mine operator failed to take any actions to correct the hazardous highwall conditions.
Tr. 37-38. Ackley concluded that the unsafe conditions had existed for “a couple of
weeks, maybe longer.” Tr. 38.
Ackley issued a 104(d)(1) citation because the violation was of a mandatory
safety standard that was highly likely to cause serious injuries. The operator had reason
to know of the condition and had failed to take corrective actions. Tr. 38-39.
Because blasters had informed the operator’s foreman, Rodney Hatten, on
Monday that the wall was unsafe, the operator should have conducted a thorough
examination and taken corrective actions before miners would have been permitted to
work underneath the highwall again. Tr. 39.
Three Ludwig employees were working in the affected area: two by the base of
the highwall and one by the explosives truck. Tr. 39-40. Any miners who would be going
down to the pit would have observed the condition of the highwall. Also, the person who
dug the trench would have been able to see the condition. Tr. 40. Those individuals,
however, would not have been exposed to the same hazard as the two blasters because
they would not have been as close to the highwall. Tr. 40.
Ackley had spoken to both Shoemaker and foreman Hatten regarding the
condition. Shoemaker reportedly informed Ackley that “it was common during [that]
time of year during thaw and freeze cycles for material to move off the wall.” Tr. 41.
Based upon “the extent of the gap and breaks in the walls, overhanging material
and experience of the miners that work at Tuscola,” management should have recognized
the cited conditions before the date of inspection. Tr. 41. Due to the high degree of

35 FMSHRC Page 3397

danger posed by the condition, Ackley issued a verbal imminent danger order to Hatten
as he and Hatten were driving down to the blast area to observe the blasters. Tr. 42.
In order to terminate the citation, the operator scaled back the highwall, using a
crane and excavator.7 Tr. 42. In order to retrieve a hose, some boosters and blasters that
had been left behind, Respondent used an unsparking shovel and a pole with a manlift to
scoop the boosters and caps and take them out of the area. Tr. 43-44; SX-9.
Ackley indicated that Citation No. 6555529, which was issued to Respondent,
Ludwig Explosives, was essentially identical to Citation No. 6555522 issued to
Respondent, Tuscola Stone. Tr. 47.
Pursuant to MSHA’s procedure handbook for writing citations under the dual
compliance guide, Ackley had issued two citations, one to each Respondent, for violating
§56.3200. When a cited violation involves both a mine operator and contractor, both
may be cited for the unsafe condition. Tr. 47.
One of the factors considered in issuing a citation is who has responsibility for the
abatement of the citation. Because Tuscola Stone knew (or should have known) of the
hazardous condition and because Ludwig employed two blasters who were in the affected
area and exposed to the hazardous conditions, both Respondents were cited. Tr. 47.
Under strict liability standards, Tuscola Stone had the responsibility to ensure that
its mine site was safe and that any hazardous highwall condition be corrected. Even as an
independent contractor, Ludwig still had the duty to ensure that its employees not be
exposed to hazards. Tr. 48.
For the same reasons that he outlined in his testimony against Tuscola Stone,
Ackley had marked Ludwig’s violation as highly likely to result in a fatal injury. Tr. 49.
Ludwig’s lead blaster also had the responsibility to examine the highwall and to
make certain conditions were safe for the blasters. When doing a workplace examination
he was an agent of the operator. The person in charge at the mine for the blasters,
Ludwig’s employee, was aware of the fact that rock had fallen from the hole. However,
rather than immediately moving everybody out of the danger area, he continued loading
the hole they were working on. Tr. 49-50.
During an interview with Ackley after he had been withdrawn from the area,
McAdam had reported that he heard a rock fall but, nonetheless, decided to finish loading
the last hole before withdrawing from the area. Tr. 50.

7

See also abatement description at Tr. 53: “[T]hey did a mechanical scaling of the
high wall with a backhoe for the section that wasn’t as tall, and for the taller sections they
used a crane and they drug a track up and down, knocking loose material down from the
high wall.”

35 FMSHRC Page 3398

Ackley opined that the blasters, upon hearing a rock fall, should have immediately
backed away from the situation and reevaluated it to determine a safe procedure. They
should not have finished loading the hole or moving the tools or explosives out of the
way once they heard something fall. Tr. 51. Without taking the time to back off and
observe the wall, the blasters would not have known whether it was just one rock falling
or the start of continuing material falling. Tr. 51.
Ackley had issued the imminent danger order to Hatten of Tuscola Stone because
he was at the scene. Tr. 51. Ackley noted that he could have issued additional citations
on the date of his inspection, including one for failure to properly examine the highwall.
However, he was involved with other concerns, such as withdrawing all affected miners
from the highwall and dealing with explosives left at the base of the wall. Tr. 52-53.
The same actions to abate Citation No. 6555522 were taken to abate Citation No.
6555529. Tr. 53.
Ackley reaffirmed that the lead blaster had informed him that loose rock had
fallen on February 21 and 22, 2011. Tr. 61-65. Ackley had not personally witnessed the
falls. Nor did he see any of the deposited material, depicted in the photograph at SX-4,
fall to the ground. Tr. 65-66.
Ackley spoke with all three of Ludwig’s blasters—Robert McAdam, Justin Coner,
and Mike Payton—who asserted that they heard material fall on February 23, 2011.
Payton heard it fall from the truck he was standing next to. The blaster and driller heard
material hitting mud close to where they were working. Tr. 66.
The ditch in front of the highwall was reportedly present on Monday and was dug
sometime between Monday, February 21, 2011, and the Wednesday, February 23, 2011,
inspection. Tr. 67.
When working near highwalls, miners should maintain a distance from the base of
the highwall of one third of its height. Such a distance, while not a specific MSHA
regulation, was a “rule of thumb” recognized in the industry. Based upon the subject
highwall’s estimated 40-foot height, a miner would therefore need to keep a distance of
approximately 15 feet. Tr. 68-69. Ackley, however, saw miners next to the highwall,
with one actually touching it. Tr. 70.
The mine operator and blasters came up with a plan to safely remove materials,
including explosives, at the base of the wall by using a JLG manlift. Tr. 74-76. It was
safer to use an extension over a ditch with a tagged out JLG manlift to remove explosives
than to allow miners to approach and remove blasting material on foot.8 Tr. 80-81.
Ackley agreed that whether individuals were using a JLG or approaching the affected
8

See discussion of decision to utilize this piece of equipment at Tr. 78-80, 89,
101; See also McAdam written statement at SX-15, describing use of manlift with plastic
shovel taped to a long pipe.

35 FMSHRC Page 3399

area on foot, if they determined that conditions were unsafe, they could both withdraw
from the area.9 Tr. 82.
Ackley confirmed that MSHA had a rule that a loaded hole should not be left for
an extended period of time without being shot. Tr. 77.
Ackley conceded that Rules to Live By III may not have been available when the
citation was issued. SX-8; Tr. 86.
On redirect examination, Ackley testified that he understood that on February 21,
2011 Ludwig had left the site of the highwall because it was unsafe to blast that day. Tr.
87. He further received no indication that measures had been taken to abate the unsafe
conditions before work was begun on February 23, 2011. Tr. 88.
Before he was able to get the miners’ attention, they were approximately five feet
from the highwall. Tr. 91; SX-11.
Other than taking corrective actions such as scaling the highwall and removing
blasting caps, MSHA rules would not have permitted any other work to continue in the
affected area. Tr. 92-93; SX-12.
Ackley denied that he had utilized Rules to Live By in order to justify his
negligence finding. Tr. 94. He had referred to the Rules only to show that highwalls had
been a known problem in the industry and had involved fatalities in the past. Tr. 94.
On recross, Ackley confirmed that he had cited the JLG manlift for an auxiliary
violation, but had not ordered such taken out of service. Tr. 95.
On cross examination by Shoemaker, Respondent Tuscola Stone’s representative,
Ackley confirmed that he had not physically given Tuscola Stone a copy of Citation No.
6555522 on the date of issuance. Tr. 97-98; SX-4.
Ackley did not think it necessary to note in the body of the citation that the
blasters working at the highwall were control blasters, or that the lead blaster, Robert
McAdam, had informed him that loose rock had fallen on February 21, 2011. Tr. 98-99.
Ackley was told that the men had left the shot on Monday, February 21, 2011,
because “of heavy rain and the high wall was unsafe.” Tr. 100.

9

As discussed infra, the pertinent point is not that a miner using a JLG or a miner
on foot could, if they perceived the condition to be unsafe, both reasonably withdraw
from the affected area. The critical question, given this case’s particular circumstances,
is whether blasters standing close to the base of a highwall with a ditch near them could
withdraw as quickly and safely as individuals who already had been evacuated from the
immediate area beyond the ditch or as an individual in a manlift extending over the ditch.

35 FMSHRC Page 3400

Even though the JLG manlift had been cited and tagged, it was a “good” decision
on the part of Tuscola Stone to have taken it out of service in taking corrective actions.
Tr. 101.
Ackley agreed it was a “judgment call” that the highwall he cited contained loose
material. Tr. 107. He observed Tuscola Stone employees use a bucket of an excavator to
scale the highwall area that wasn’t as tall and a crane with dozer track to scale taller
areas. A track attached to a wrecking ball helped to remove some of the material. Tr.
108-109.
Ackley further agreed that Shoemaker had offered to scale the entire highwall as a
safety measure. Tr. 111.
Shoemaker and Hatten were the two individuals from Tuscola Stone that he had
interviewed during his investigation. Tr. 114. Ackley did not request that the Respondent
test the affected area or prove there was no loose material before issuing his citation. Tr.
112-113. Tuscola Stone had been cited because it was responsible for the highwall and
issued an unwarrantable failure because it was aware that the affected area had hazardous
conditions that remained uncorrected when the blasters returned to work. Tr. 117.
On redirect examination, Ackley stated that Tuscola Stone, as owner/operator of
the mine, owed the same degree of care to its employees and contractor employees to
ensure their safety while they were working at the mine. Tr. 118.
Referring to his general field notes, Ackley stated that he was told that rock or
rock material was seen coming off the wall on Monday, February 21, 2011.10 Tr. 118.
Tuscola Stone had not, in fact, asked for the opportunity to demonstrate the
highwall was sound. Tr. 120.
Referring to his close out conference summary at SX-13, Ackley indicated that
Shoemaker had reportedly asserted that blasters are trained to recognize highwall
standards and should inform him of any hazardous conditions. It was not his
responsibility to check on the highwalls. Tr. 121-122.
As discussed infra, the factual issue of whether any of the employees of either
Respondent had informed Ackley that rock had been seen falling on February 21, 2011
was hotly disputed. Ackley’s field notes indicate that McAdam had reportedly informed
Hatten on February 21, 2011 that “rock was falling from heavy rains on Monday.” See
also, LX-1, p. 18.

10

At hearing, Shoemaker objected, on behalf of Tuscola Stone, to the admission
of SX-13 on the grounds that he had, in fact, not denied his responsibility to check the
walls. As noted infra, however Shoemaker ultimately chose not to take the witness stand
under oath.

35 FMSHRC Page 3401

2. Michael Schafer
At hearing, Michael Schafer appeared and testified on behalf of Respondent,
Ludwig Explosives.
Schafer testified that he had gone to the subject mine on February 21, 2011 to be
on the shot. Tr. 125-126. However, he was telephoned by blaster, Gary Lideras, that “a
waterfall [was] coming off of the top of the highwall,” and that Lideras was not going to
load the shot. Tr. 125-126. Schafer heard no mention of “stone, rock, mud, anything
else…” Tr. 127. Schafer felt that the blasters needed to wait for water to stop draining
before continuing with the shot. Tr. 127. After the water stopped draining, they would
have to go back in and re-examine the holes. If they were going to shoot, they would
need to do another workplace examination, check everything out, make certain that the
area was safe and stable, go back in and reload the shot. Tr. 127-128.
Schafer stated that on the morning of February 23, 2011, he telephoned Hatten
and was told that the water had stopped coming off the face and that it would be “okay to
go.” Tr. 128-129.
On cross examination, Schafer testified that water coming off a wall would not be
a hazard in and of itself.11 Tr. 129.
Schafer had not been present at Tuscola Stone on February 21 or 23, 2013, and
had therefore not observed any of the cited conditions firsthand. Tr. 129-130.
On cross examination by Tuscola Stone’s representative, Schafer described
various other reasons why Ludwig’s blasters had waited for two hours without doing a
shot. These included: the need to fill the trucks’ water tanks, the need to wait for trucks
to clear the ramp, and the need for chips to be delivered. Tr. 131.
Schafer stated that Ludwig blasters had reported to Hatten that they wanted to
reschedule the shot because of the water washing off the highwall. There was no mention
of rock running off the highwall or overhangs or loose unconsolidated material. Tr. 132.
3. Robert McAdam
At hearing, Robert McAdam (“McAdam”) appeared and testified on behalf of
Respondent, Ludwig Explosives.
On February 21, 2011, McAdam was working as the bulk truck operator at
Tuscola Stone. Gary Lideras was the lead blaster. Tr. 134. McAdam stated it was
11

Schafer’s testimony on this point was somewhat contradictory. He also stated
that water cascading off the top of a highwall “could be” a hazard if workers were
directly under it. Tr. 129. A “gushing wave of water coming over the face” might also
prevent a shot. Tr. 131.

35 FMSHRC Page 3402

raining “pretty heavily” on February 21, 2011, which led Lideras and McAdam to decide
to delay blasting. Tr. 134.
On February 23, 2011, the weather had changed. McAdam returned to the mine
site, this time working on the lead blaster. He conducted a workplace examination. Also
present were Justin Conder and Mike Payton. Tr. 134-135. A perimeter was established
preventing entry into the blasting zone by unauthorized individuals. Tr. 135.
A ditch had been dug in front of the wall since February 11, 2011. Tr. 137.
McAdam wore a harness to avoid falling into such if he stumbled. Tr. 138.
While loading for the shot, McAdam heard “a noise like something had fallen.”
Tr. 138. He had “no idea what that was,” but told Conder that they were going to stop
loading the shot and vacate the area.12 They proceeded to the cab of the truck in order to
notify supervisor, Mike Schafer. Tr. 140. While they were in the process of removing
equipment, including a hose and detonating caps, MSHA had arrived on the scene.13 Tr.
140.
They were “trying to probably roll it back up and get it out of the hole.” Tr. 141.
If the hose remained in place, it might have shot or explosive material, all of which could
be destroyed, causing a waste of assets. Tr. 141. There were approximately 10 loaded
holes. Tr. 141.
McAdam could not recall whether MSHA had instructed him to withdraw from
the site. He informed MSHA that the hose had to be moved and the unused explosive
materials had to be picked up from the remainder of the shot. Tr. 142. MSHA wanted
Respondent to come up with a different plan rather than re-entering the affected area on
foot. Tr. 142.
Eventually it was decided to create something to pick the materials up and bring
them out of the area. Tr. 142. McAdam did not know whose idea it was. Tr. 143.
Tuscola Stone brought down a manlift and used improvised equipment to scoop
up the cast primers and the detonating caps. Tr. 143.

12

As discussed infra, McAdam’s assertion on this point appears directly
contradicted by the reported statement of Conder on June 8, 2011. Conder indicated that
on February 23, 2011 he was standing two feet from the highwall, and McAdam was four
to five feet from him when a chunk of rock fell between them. If Conder’s written
statement was an accurate depiction of events, McAdam’s failure to recollect such a
traumatic event strains credulity. See also SX-6.
13

Detonating caps initiate the firing of the explosive material in the hole. Tr. 141.

35 FMSHRC Page 3403

McAdam stood in the manlift, which was extended over the ditch. Tr. 143-144.
He had some concern for his own safety in utilizing such a procedure, but was not 100%
certain that he expressed his concern to MSHA. Tr. 144; SX-7.
After removing the supplies, McAdam, as lead blaster, still had to hook up the
explosive caps. The detonators had to be hooked up so they would detonate properly. At
that time they were just sitting in the hole. McAdam did not believe that MSHA had
advised him of the need to shoot the holes. Tr. 145. After making sure that all was safe,
McAdam fired the shot. Tr. 146.
On cross examination, McAdam indicated that he had performed a workplace
examination, but not a ground control examination. Tr. 147-148.
After hearing something fall and calling Schafer about such, McAdam left the
area where the hole was located and the noise was heard. Tr. 148. He remained in front
of the high wall. Tr. 148. McAdam did not recall his conversation with inspector Ackley
on February 23, 2011. Tr. 149.
Regarding a prior written statement that he had given on June 22, 2011, McAdam
stated that he had felt unsafe on February 21, 2011, stating: “that it was raining and just
the weather itself wasn’t great and I’m not 100% sure, but I believe there was a waterfall
coming over the top down.” Tr. 150. The water in and of itself could have made
conditions unsafe, creating such hazards as mud slides and debris falling off the wall.14
Tr. 150.
Regarding his prior written statement contained at SX-15, p. 3, McAdam stated
that he was excited on February 23, 2011 because he heard a noise. He did not know
how close it was, but it was close enough to have frightened him. Tr. 151-152; see also
Conder statement at SX-6.
McAdam characterized the decision to use the manlift to retrieve the blast caps as
a “collective [one] between all involved parties.” Tr. 152. MSHA did not require that a
manlift be used. Tr. 152.
McAdam could not recall telling Inspector Ackley that he had informed Hatten on
February 21, 2011 that rock had been falling due to heavy rain. Tr. 153. By
“withdrawing from the area,” McAdam meant to indicate getting off the shot and getting
material out of the way, not moving away from the highwall. Tr. 154-155.
Upon questioning from the undersigned, McAdam stated that if the area were
immediately evacuated, the following would have been abandoned: “a hose full of
14

As discussed infra, if McAdam had notice on February 21, 2011, that the
volume of water cascading over the highwall may have loosened material, he should not
have proceeded with the shot on February 23, 2011 before making certain that Tuscola
Stone had tested and scaled the wall.

35 FMSHRC Page 3404

explosive material,” unused cast primers and detonating caps, and “ten holes loaded with
explosives.” McAdam testified that such abandonment of explosive materials was
dangerous because rock falls or thunderstorms might cause an explosion. Tr. 155-156.
Although the hose containing explosive material might also be retrieved by
detaching such from the truck and pulling it back like a garden hose, this would have
been a very strenuous task and, in the act of pulling, material might squirt out of the hose
onto the ground. Tr. 157.
On cross examination by Tuscola Stone’s representative, McAdam stated that
water coming over the highwall was in itself a hazardous condition. However, he did not
see any rock falls or cracking or loose rock or unconsolidated material or overhangs on
February 21, 2011. Tr. 160.
Stating the corrective action by Ludwig was to leave the area on Monday and
come back on Wednesday, McAdam also noted no overhangs or loose material on
Wednesday. Tr. 162. He did not notify anybody at Tuscola after he heard the noise on
February 23, 2011 and stopped the shot. Tr. 162-164.
On recross examination, McAdam stated that he “probably” would not have
worked loading shots beneath the area of highwall depicted in the photograph in SX-5;
but, from his vantage point he had not seen the cracks depicted in the photograph. Tr.
165.
4. Michael Payton
At hearing, Michael Payton appeared and testified on behalf of Respondent,
Ludwig Explosives.
Payton was a member of the blasting team on February 23, 2011. Although he
was not present during the attempted shot on February 21, 2011, he was aware that it had
been cancelled. Tr. 172.
On February 23, 2011, a workplace exam was conducted involving the shot, the
highwall, and the face immediately in front of the blast team. It was concluded that the
workplace was safe. Tr. 174.
McAdam put on a safety harness and proceeded to go onto the shot; Payton went
to the opposite side behind the truck. Tr. 174. Payton’s duties included spotting the
highwall for any dangers and being in control of the truck. Tr. 174-175.

35 FMSHRC Page 3405

Payton witnessed a rock off to his left, to the west.15 Tr. 175. As soon as this
happened, Payton warned Conder and Hatten of the danger, and that was when the shot
was called off. Tr. 175.
Payton found it difficult to determine the distance the rock fell from the blasting
because of his position. Tr. 176. The blasting team spoke among themselves and decided
to call the shot off. Tr. 176.
Payton asserted that federal and state regulations required that the team not leave
a loaded shot. The team planned to clean up the site and detonate. They placed cones up
to warn individuals not to enter the blast zone. Tr. 177-178. Hatten and the two MSHA
inspectors, however, went beyond the cones. When they approached, they were told that
the shot had already been called and the team was trying to formulate an action plan to
get material off of the shot and to get the shot detonated. Tr. 179. The inspectors
indicated that they had seen a rock fall, but Payton was uncertain if this was the same
rock he had seen falling. Tr. 179.
McAdam and Conder came down off the shot, McAdam first having to get his
harness. Tr. 179-180. McAdam explained to the MSHA inspectors that material had to
be removed. Tr. 180. Payton believed it was Kevin LeGrand, Ackley’s supervisor, who
decided that a manlift should be used.16 Tr. 181. LeGrand was aware that the machine
had been cited and tagged out. Tr. 182. Payton heard McAdam commenting that he was
uncomfortable using the manlift approach. Tr. 184-185.
On cross examination, Payton indicated that he had worked at Tuscola Mine
“quite a few” times. Tr. 190. He had seen water come over the highwall previously but
had not seen rocks fall off before the incident in question. Tr. 190.
As to his prior written statement at SX-17, Payton explained that he was actually
talking about shots having been called off in the past due to water falling over the

15

The undersigned again notes the differing descriptions of the rock fall between
McAdam, Conder, and Payton, which, among other interpretations, raises the possibility
that there were multiple rock falls on February 23, 2011. This confirms the high degree
of danger that was posed by the unscaled highwall.
16

Ackley noted, infra, that it was in fact Hatten who proposed use of the manlift.

35 FMSHRC Page 3406

highwall, not rocks.17 Tr. 192-193. Payton, however conceded that he had “probably”
seen rock come off the highwall at Tuscola Stone.18 Tr. 193-194.
Payton stated that it was “absolutely” not Ludwig’s decision to use a manlift for
retrieval of material, that Kevin LeGrand had decided this was the safest way. However,
he was unsure whether McAdam had participated in the decision. Tr. 198.
On cross examination by Tuscola Stone’s representative, Payton stated that he had
been shooting at the mine site for four years. Tr. 202. Tuscola Stone had always been
cooperative regarding operational or safety issues. Tr. 203.
On recross examination by the Secretary, Payton confirmed that Ludwig had
signed into the mine at 11:00 a.m. on February 23, 2011, had performed a visual
examination, and at 12:48, the citation had been issued. SX-4. During this time period
there had been a change in conditions in that the rock had fallen; however, Payton could
not determine what caused the rock to fall. He believed it was “an act of God.” Tr. 205.
5. Justin Conder
At the hearing, Justin Conder appeared and testified on behalf of the Respondent,
Ludwig Explosives.
Conder was not at Tuscola Stone on February 21, 2011. On February 23, 2011,
he was part of the three-man blasting team, together with Michael Payton and Rob
McAdam. Tr. 210.
After Payton stated that a rock had fallen, McAdam began to get the hose out of
the hole. Conder waited for McAdam to get out of the way. Tr. 211. Referring to the
photograph contained in SX-11, Conder stated that the picture depicted him and
McAdam as they were trying to pull the hose out. McAdam, as lead blaster, determined
that this was the proper corrective action. Tr. 212-213. Conder may have been bracing
himself against the quarry wall so McAdam could get out of the way. Tr. 214.
On cross examination by the Secretary, Conder was asked about statements he
had given in a June 8, 2011 interview. SX-19. In his written statement, Conder reported
that he was about four to five feet from McAdam when a chunk fell off between them.
SX-19, p.2.

17

Payton wrote in his June 8, 2011 written statement: “While working at Tuscola
Stone Company I have observed rock falling from the highwall. At that point we refused
to load the shot and notified Rodney Hatten the foreman. This has happened more than
one time. I cannot give you the exact number. SX-17, p.2 (emphasis added).
18

Payton’s equivocations on this point made him a less than fully credible

historian.

35 FMSHRC Page 3407

Conder testified that he did not remember stating such. Tr. 217.
6. Rodney Hatten
At the hearing, Rodney Hatten appeared and testified on behalf of the
Respondent, Tuscola Stone. Hatten had been a foreman at Tuscola Stone for two years
and had worked at the mine for 22 years. Tr. 223.
As foreman, Hatten had responsibility for the pit and quarry, and Jay Carter had
responsibility for the upper plant. Tr. 224.
On February 21, 2011, Hatten had been contacted by McAdam who informed him
that the shot could not go forward due to water coming off the highwall. Tr. 225. Hatten
denied that McAdam told him anything about rocks falling off at the face, loose
unconsolidated material, cracks, or overhangs. Tr. 226.
On Tuesday, February 22, 2011, Hatten did not observe any hazardous conditions
associated with the north face highwall. Tr. 228.
As a loader operator, Hatten had calculated the size of the loose rock described in
the citations as being approximately 2.34 tons in weight and deemed it highly unlikely
that a chunk that size would fall. Tr. 228-229.
Hatten had been called by Shoemaker on February 23, 2011, to accompany the
MSHA inspectors during inspection. Hatten was acting both as a foreman and miner’s
representative. Tr. 229-230. Shoemaker had other appointments and was not present for
the entire inspection. Tr. 230.
When Hatten first met the inspectors, he was not informed of any citation or
imminent danger order. Tr. 233. Hatten overheard the inspectors talking to the blasters
about loose rock and where the shot was going to be. Tr. 234. The inspectors did not
want the blasters to go to where the shot would be because of consolidation. Tr. 235.
Hatten asked if he could bring a manlift, and inspector LeGrand stated that it
could be an option.19 Tr. 235-236. LeGrand did not demand such. Tr. 235-236.
Hatten thought that, given the ditch in front of the shot area, a manlift with a pole
could be used to retrieve materials. Tr. 236. Despite the manlift having been tagged out,
LeGrand permitted its usage. Tr. 236. Another Tuscola Stone Company employee named
Jared actually operated the manlift while a Ludwig Explosives blaster used the pole. Tr.
236-237. Hatten still, at this point, had not been advised that a citation or imminent

19

Again, Hatten’s confirmation that it was his idea and not a collective decision
or MSHA decision to utilize a manlift appears to contradict various other witnesses for
Respondents.

35 FMSHRC Page 3408

danger order were going to be issued. Tr. 238. Hatten had not received any reports about
the highwall on Tuesday or Wednesday. Tr. 240.
On cross-examination by the Secretary, Hatten stated that he had not conducted a
ground control examination on February 23, 2011. Tr. 242.
Referring to his prior June 11, 2011 written statement, Hatten agreed that he
visually observed rock fall from the highwalls “during freezing and thawing times.” Tr.
244; SX-20. He went on to explain that anytime in the wintertime in Illinois (including
February) there could be freezing and thawing. Tr. 245.
Noting that a crane would be necessary to test a highwall 40 feet high for loose
material, Hatten testified that the wall had not been tested for loose material prior to the
citation issuance in 2011. Tr. 245.
Since Shoemaker had become assistant manager, various increased safety
measures had been initiated, including the furnishing of safety vests, the erection of
berms around highwalls, highwall warning signs, and the purchase of a manlift. Tr. 248.
7. Alan Shoemaker
After consideration, Shoemaker decided not to take the stand and testify on
Tuscola Stone’s behalf.20 Tr. 252-253.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact are based on the record as a whole and the undersigned’s
careful observation of the witnesses during their testimony. In resolving any conflicts in
the testimony, the undersigned has taken into consideration the interests of the witnesses,
or lack thereof, and consistencies, or inconsistencies, in each witness’s testimony and
between the testimonies of the witnesses. In evaluating the testimony of each witness,
the undersigned has also relied on his demeanor. Any failure to provide detail as to each
witness’s testimony is not to be deemed a failure on the undersigned’s part to have fully
considered it. The fact that some evidence is not discussed does not indicate that it was
not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law
judge is not required to discuss all evidence and failure to cite specific evidence does not
mean it was not considered).

20

The undersigned draws no adverse inference from Shoemaker’s decision not to

testify.

35 FMSHRC Page 3409

Basic Legal Principles
The citations at issue in this case were both marked as “Highly Likely,” “Fatal,”
“High” negligence, with 2 persons affected, Significant and Substantial (S&S), and
“unwarrantable failure.” S&S is described in section 104(d)(1) of the Act as a violation
“of such nature as could significantly and substantially contribute to the cause and effect
of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is
properly designated S&S “if, based upon the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981).
As is well recognized, in order to establish the S&S nature of a violation, the
Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard – that is, a measure of danger to safety – contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F.
3rd. 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec’y of Labor, 861 F. 2d 99, 103
(5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves “a
reasonable likelihood the hazard contributed to will result in an event in which there is an
injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S
determination must be based on the particular facts surrounding the violation and must be
made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC
498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July
1984)). The Commission has provided additional guidance: “We have emphasized that, in
accordance with the language of section 104(d)(1), it is the contribution of a violation to
the cause and effect of a hazard that must be significant and substantial.” U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6
FMSHRC 1573, 1574-75 (July 1984).
Further, “The Secretary need not prove a reasonable likelihood that the violation
itself will cause injury.” and “the absence of an injury-producing event when a cited
practice has occurred does not preclude a determination of S&S” Cumberland Coal
Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and
PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); Elk Run Coal Co., 27
FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853,
857 (June 1996)). The Commission and courts have observed that the opinion of an
experienced MSHA inspector that a violation is S&S is entitled to substantial
weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck
Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995).

35 FMSHRC Page 3410

The S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the “focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S
inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18
FMSHRC 1541, 1550 (Sept. 1996) emphasis added. By definition, negligence is:
conduct, either by commission or omission, which falls below a standard of care
established under the Mine Act to protect miners against the risks of harm. Under
the Mine Act, an operator is held to a high standard of care. A mine operator is
required to be on the alert for conditions and practices in the mine that affect the
safety or health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices. The failure to exercise a high standard of care
constitutes negligence.
30 C.F.R. §100.3(d). The categories and definitions of the negligence criterion are as
follows:
No negligence is where the operator exercised diligence and could not have
known of the violative condition or practice;
Low negligence is where the operator knew or should have known of the
violative condition or practice, but there are considerable mitigating
circumstances;
Moderate negligence is where the operator knew or should have known of the
violative condition or practice, but there are mitigating circumstances;
High negligence is where the operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances; and
Reckless disregard is where the operator displayed conduct which exhibits the
absence of the slightest degree of care.
30 C.F.R. §100.3(d).
The unwarrantable failure terminology is taken from section 104(d)(1) of the Act,
which establishes more severe sanctions for any violation that is caused by “an
unwarrantable failure of [an] operator to comply with…mandatory health or safety
standards.” 30 U.S.C. § 814(d)(1).
The term “unwarrantable failure” is defined as aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec.
1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Id. at
2004; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,193-94 (Feb. 1991).
Aggravating factors include the length of time that the violation has existed, the extent of
the violative condition, whether the operator has been placed on notice that greater efforts
were necessary for compliance, the operator’s efforts in abating the violative condition,
whether the violation was obvious or posed a high degree of danger and the operator’s
knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC

35 FMSHRC Page 3411

340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23
FMSHRC 588, 593 (June 2001). All of the relevant facts and circumstances of each case
must be examined to determine if an actor’s conduct is aggravated, or whether mitigating
circumstances exist. Consol, 22 FMSHRC at 353.
a) The Secretary has Carried His Burden of Proof by a Preponderance of the
Evidence that §56.3200 was Violated as Cited in Citation No. 6555522
On February 23, 2011, Inspector Peter Ackley issued Citation No. 6555522
against Respondent, Tuscola Stone Company, for a 104(d)(1) violation of 30 C.F.R. §
56.3200. This citation, in pertinent part, under Section 8, “Condition or Practice,” states
as follows:
Two blasters were filling drill holes with explosives approximately two feet from
the base of the north highwall. The highwall was about 40 feet high and
composed of loose unconsolidated material. There was a section of rock (about
1.5 feet thick, 4 foot high, and 5 foot long) with an 8 inch gap from the highwall
above where the blasters were working. Loose rock had fallen Monday
(02/21/2011) when it was raining and while drill holes were being loaded today.
This condition exposed the blaster to fatal impact or crushing injuries from falling
rock. The Lead Blaster had informed the Foreman on Monday (02/21/2011) of
the unsafe condition of the wall. The Foreman engaged in aggravated conduct
constituting more than ordinary negligence in that he was aware that the high wall
had unconsolidated material and failed to take any corrective action to correct the
unsafe condition of the wall. This violation is an unwarrantable failure to comply
with a mandatory standard. This violation is one of the factors cited in imminent
danger order No. 655552121dated 02/23/2011. Therefore, no abatement time was
set.
SX-4.
Section 56.3200 provides as follows:
Ground conditions that create a hazard to persons shall be taken down or
supported before other work or travel is permitted in the affected area. Until
corrective work is completed, the area shall be posted with a warning against
entry and, when left unattended, a barrier shall be installed to impede
unauthorized entry.
30 C.F.R. §56.3200.

21

The records do not indicate that Tuscola initially contested imminent danger
Order No. 6555521.

35 FMSHRC Page 3412

With respect to Citation No. 6555522, the Secretary presented sufficiently
probative evidence of hazardous conditions associated with the north highwall at
Respondent’s Tuscola Stone Company’s subject mine, that a violation of §56.3200 was
clearly established.
At the hearing, Inspector Ackley testified that he had performed inspections of the
subject mine in February, 2011. Tr. 13-14. On February 23, 2011, while performing a
regular inspection, he observed two miners working at the base of a 40 foot highwall,
directly beneath loose, unconsolidated rock. Tr. 16-21. Ackley credibly described the
area above the miners as being fractured, broken vertically and horizontally, with
overhanging material. Tr. 16-22, 32, 59-60; SX-5, 6, 7, 9, 11.
Given the obvious and extensive nature of the hazardous highwall conditions
which reasonably could be expected to result in death or serious physical injury,
Inspector Ackley issued a verbal 107(a) imminent danger order to mine foreman Rodney
Hatten. Tr. 42, 51, 52; see also Order No. 6555528. This Court upholds the issuance of
said order and specifically finds that a reasonably prudent person, who, like Inspector
Ackley, was familiar with the mining industry and the protective purpose of §56.3200,
would have been warranted in ordering immediate evaluation of the cited area.22
It is undisputed that there had been no corrective measures undertaken to remove
any loose rock prior to the initiation of the activities described herein. Given Inspector
Ackley’s own observations and the inculpatory statements of several of Respondent’s
witnesses, discussed further below, there is more than sufficient evidence to establish that
§56.3200 had been violated. In reaching this conclusion, the undersigned has considered
that an inspector’s testimony, standing alone, if found credible and reliable, may
constitute sufficient evidence to prove the existence of a safety violation and, indeed, its
S&S nature. See Harland Cumberland Coal Co., 20 FMSHRC 1275, 1278-1279 (Dec.
1998). The undersigned also further notes that the “preponderance” standard only
22

Section 3(j) of the Mine Act defines “imminent danger” as the “existence of
any condition or practice in a coal or other mine which could reasonably be expected to
cause death or serious physical harm before such condition or practice can be abated.” 30
U.S.C. § 802(j). To support a finding of imminent danger, an inspector must conclude
that “the hazardous condition has a reasonable potential to cause death or serious injury
within a short period of time.” Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct.
1991). In reviewing an inspector’s finding of imminent danger, the Commission must
support the inspector’s determination “unless there is evidence that he has abused his
discretion or authority.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2164
(Nov. 1989) (quoting Old Ben Coal Corp. v. Interior Bd. Of Mine Op. App., 523 F.2d 25,
31 (7th Cir. 1975) (emphasis omitted)). The Commission has held that an “abuse of
discretion” is found when “there is no evidence to support the decision or if the decision
is based on an improper understanding of the law.” Energy West Mining Co., 18
FMSHRC 565, 569 (Apr. 1996) (Citations omitted and emphasis added) (affirming the
judge’s determination that the inspector did not abuse his discretion when he issued an
order extending abatement time).

35 FMSHRC Page 3413

requires that the trier-of-fact conclude the “existence of a fact is more probable that its
non-existence.” RAG Cumberland Resources Co., 22 FMSHRC 1066, 1070 (Sept. 2000).
The Secretary has convincingly carried its burden in the case sub judice.
b) Respondent, Tuscola Stone’s, Violation of §56.3200 was Significant and
Substantial in Nature
Taking into consideration the record in toto and applying pertinent case law, the
undersigned finds that Tuscola Stone Company’s violation of §56.3200 was Significant
and Substantial in nature.
The first element of Mathies—the underlying violation of a mandatory safety
standard—has been clearly established.
As to the second element of Mathies—a discrete safety hazard, that is, a measure
of danger to safety, contributed to by the violation—has also been clearly established by
the record. Loose material falling from a 40-foot highwall onto miners is inarguably a
discrete safety hazard. Inspector Ackley’s observations and the statements of
Respondent’s own witnesses that individuals were standing at the base of the north
highwall and directly exposed to this hazard, established this second element.
The third element of the Mathies test – a reasonable likelihood that the hazard
contributed to will result in an injury – is usually the most litigated prong. The
Commission has made it clear that the “test under the third element is whether there is a
reasonable likelihood that the hazard contributed to by the violation…will cause injury.”
Musser Engineering Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010); see
also Cumberland Coal Resources LP, 33 FMSHRC 2357, 2365-2369 (Oct. 2011). The
Commission emphasized that the Secretary need not “prove a reasonably likelihood that
the violation itself will cause injury…” Id. Further, the Commission reaffirmed the wellsettled precedent that the absence of an injury producing event, where a cited practice
occurs, does not preclude an S&S determination. Id. (citing Elk Run Coal Co., 27
FMSHRC 899, 906 (Dec. 2005) and Blue Bayou Sand and Gravel, Inc.,18 FMSHRC
853, 857 (June 1996)).
The undersigned is persuaded by the Secretary’s argument that there was a
reasonable likelihood that the hazard contributed to would result in injury. See, inter alia,
Secretary’s Brief at 16. The testimony presented at hearing established that there had
been recent rainfalls, causing water to cascade over the highwall. Tr. 83, 85, 100, 149150. It can be reasonably inferred that these large volumes of water had the potential to
further loosen already displaced rock, increasing the probability of a rock fall. Although
Inspector Ackley had not himself observe actual rock falls, he had been informed of such
by Robert McAdam, Justin Conder, and Michael Schafer. Tr. 22; see also discussion of
these witnesses’ testimony and statement infra.

35 FMSHRC Page 3414

Ackley was also informed by Alan Shoemaker that it was common for freeze and
thaw cycles during the time of year when Respondent was cited, during which material
would move off the wall. Tr. 41.
The fact that a rock or rocks did in fact fall on February 23, 2011 near Ludwig
employees convincingly establishes that there was a reasonable likelihood that the hazard
contributed to would result in injury. Tr. 151, 210-212. Thus, the third element of
Mathies is clearly satisfied.
Under Mathies, the fourth and final element that the Secretary must establish is
that there is a reasonably likelihood that the injury in question will be of a reasonably
serious nature. Considering, inter alia, the 40-foot height of the north highwall and the
size of some of the rock described in Citation No. 6555522—1.5 feet thick, 4 feet high,
and 5 feet long—there was clearly a reasonably likelihood of fatal impact injury. Tr. 3435, 37; see also SX-4.
In reaching these findings, the undersigned has also considered the testimony of
Rodney Hatten. The undersigned found credible Hatten’s testimony that he had visually
inspected the highwall on February 23, 2011. However, for reasons discussed infra, the
undersigned finds that such a visual inspection—without testing and scaling—was
manifestly inadequate. The ALJ also noted Hatten’s prior written statement that he had
previously witnessed rock falls from highwalls during “freezing and thawing times” in
the past. Such admission further supports that Tuscola Stone should have known of the
existence of a hazardous condition. See also Tr. 244; SX-20.
Hatten’s testimony that a crane would be necessary to test a 40-foot highwall for
loose material and that no such testing had been performed prior to February 23, 2011
was also indicative that Respondent failed to take reasonable measures both in the past
and instantly to ensure safe ground conditions. Tr. 244-245.
Likewise, the undersigned accepts that Hatten had himself decided to use a
manlift in a good faith effort to protect Ludwig’s employees in attempting to retrieve
detonation materials. However, the undersigned again notes that Hatten’s testimony
raises questions about the accuracy of Ludwig’s employees’ recollections, again casting
doubt on their overall credibility.
Although the undersigned found Shoemaker to be sincere in his belief that his
company had fulfilled its §56.3200 duties, the undersigned had no actual in-court
testimony to assess because of Shoemaker’s decision not to take the witness stand. Tr.
252-253.
The undersigned therefore finds that Inspector Ackley’s S&S designation was
justified.
In reaching this finding the undersigned specifically rejects the argument
advanced by Tuscola Stone’s representative and general manager, Alan Shoemaker. In

35 FMSHRC Page 3415

his pro se brief, Shoemaker suggests that the fact that Tuscola Stone’s “employees were
not directly involved at the time [that] the order and citations were issued,” relieves
Tuscola Stone of responsibility under the Mine Act. Resp. Brief at 1 . However, given
Tuscola Stone’s overall responsibility to reasonably ensure that its highwall was free of
hazards, the fact that Tuscola Stone’s employees were not present at the scene when the
instant citation and orders were issued does not exculpate Tuscola Stone from its
dereliction under §56.3200.23
Given, inter alia, reports of rock falls in the past, the fact that the shot had to be
postponed on February 21, 2011, due to large volumes of water cascading over the
highwall and the potential for a freeze and thaw cycle which could further loosen
unconsolidated material, Tuscola Stone’s duties under §56.3200 would have required
thorough inspection, testing, and scaling of the highwall prior to the commencement of
detonation activities on February 23, 2011, as Inspector Ackley properly opined. See,
inter alia, Tr. 25-26, 39. Given the high degree of danger posed by loose overhang rock
on a 40-foot highwall, a simple visual inspection of such was manifestly inadequate,
falling far below the high standard of care demanded of Respondent.
The undersigned found Shoemaker to be a forthright individual who no doubt
honestly believes that his company had taken adequate measures to ensure miners’ safety
at the highwall. However, mine operators under the Act are held strictly liable for cited
conditions in activities from which they have supervisory responsibility. Ames
Construction, Inc., 33 FMSHRC 1807 (July 2011), aff’d, 676 F.3d 1109 (D.C. Cir. 2012).
Tuscola Stone Company had overall responsibility to ensure that any hazardous highwall
conditions were discovered and corrected before work was permitted in the affected area.
Regardless of Shoemaker’s good-faith beliefs, Respondent was derelict in fulfilling this
responsibility.
c) Tuscola Stone’s Conduct was Highly Negligent in Nature and Constituted
Unwarrantable Failure on Respondent’s Part
In Sec. of Labor v. Manalapan, Inc., 35 FMSHRC 289 (Feb. 2013), the
Commission reviewed the factors to be evaluated in determining unwarrantable failure:
In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission
determined that unwarrantable failure is aggravated conduct constituting more
than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by
such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or
a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA,
52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure
test).

23

See also the case law and arguments of Secretary, which are on point and the
undersigned fully agrees with at Secretary’s Brief, 8-9.

35 FMSHRC Page 3416

Whether conduct is “aggravated” in the context of unwarrantable failure is
determined by looking at all the facts and circumstances of each case to see if any
aggravating factors exist, including (1) the extent of the violative condition, (2)
the length of time that the violative condition existed, (3) whether the violation
posed a high degree of danger, (4) whether the violation was obvious, (5) the
operator’s knowledge of the existence of the violation, (6) the operator’s efforts in
abating the violative condition, and (7) whether the operator had been placed on
notice that greater efforts were necessary for compliance. See IO Coal Co., 31
FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC
790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999).
These seven factors need to be viewed in the context of the factual circumstances
of a particular case, and some factors may be irrelevant to a particular factual
scenario. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).
Nevertheless, all of the relevant facts and circumstances of each case must be
examined to determine if an operator’s conduct is aggravated, or whether
mitigating circumstances exist. Id.; IO Coal, 31 FMSHRC at 1351.
Id. at 5.
Considering the Manalapan factors seriatim, the undersigned finds that the
violative condition was obvious and extensive and had existed for a significant period of
time.24 The violation clearly posed a high degree of danger, justifying the issuance of an
immediate 107(a) imminent danger order. The undersigned notes that the commission in
Manalapan reaffirmed that the factor of dangerousness may be so severe that by itself it
warrants a finding of unwarrantable failure. Manalapan, at 294.
Given the fatal nature of impact injuries by the hazardous conditions at
Respondent’s 40-foot highwall, the undersigned finds that this aggravating factor of
dangerousness outweighs any mitigating circumstance. Further, as discussed infra, both
Respondents knew or should have known of the existence of the conditions. The operator
did make good faith efforts to abate the condition, which although not justifying a nonunwarrantable failure finding, does in part merit a reduction in the proposed civil penalty.
The undersigned therefore finds that Respondent’s conduct did constitute an
unwarrantable failure.
d) The 107(a) imminent danger order was validly issued; Respondent, Ludwig
Explosives, Also Violated §56.3200; This Violation also was S&S in Nature and
Constitute an Unwarrantable Failure
The undersigned incorporates the above rationale as to the violation, S&S nature,
and unwarrantable conduct of Respondent, Tuscola Stone, in further finding the dual
responsibility of Respondent, Ludwig Explosives. The undersigned further fully adopts
24

See also Ackley testimony at Tr. 38, estimating the violative condition had
existed for “at least…a couple of weeks, maybe longer.”

35 FMSHRC Page 3417

the arguments advanced by the Secretary that Ludwig Explosives violated mandatory
safety standard §56.3200, that said violation was significant and substantial and
reasonably likely to cause fatal injuries to two persons, and that said conduct constituted
an unwarrantable failure. Sec. Post-Hearing Brief, 18-20. Furthermore, the imminent
danger order was validly issued.
In making the instant findings, the undersigned has carefully considered the
testimony of all witnesses, including an assessment of their credibility.
The undersigned found the testimony of Secretary’s witness, Inspector Ackley, to
be honest and forthright, with no indication of animus or untoward motivation.
However, the undersigned found the testimony of Respondent, Tuscola Stone’s,
witnesses to be less than fully credible. Respondent’s witnesses gave testimony which
was often both inherently contradictory and also inconsistent with their past unwritten
statements. The undersigned suspects that Respondent’s witnesses were attempting to
minimize the dangerous and unsafe character of the cited condition and their knowledge
regarding such.25
Michael Payton’s testimony exemplifies such. On cross examination, Payton
painfully equivocated in admitting that he had witnessed rock falls in the past from
Tuscola Stone’s highwall. Tr. 188-189. His vague descriptions of the rock fall that he
had witnessed on February 23, 2011, despite his close proximity to the scene simply did
not ring true.
Michael Schafer’s testimony was also equivocal and contradictory. As noted
supra, Schafer appeared to vacillate between the position that water cascading over the
highwall was a hazard and was also not a hazard. Tr. 125-131. In any case, Schafer was
not personally present at the scene on February 21, 2011 or February 23, 2011, his
testimony has little probative weight.
The undersigned also found the testimony of Robert McAdam and Justin Conder
to be suspect. In a prior June 8, 2011 written statement, Conder averred that on June 23,
2011, a chunk of rock fell between himself and McAdam, who was standing only four to
five feet away from Conder. SX-16. Yet at hearing, Conder claimed he could not
remember making such a statement. Tr. 216. As trier-of-fact, this Court questions
whether an individual who narrowly escaped serious injury and possible death could not
recollect such an incident. Further, McAdam’s assertions that he could not determine the
distance of the rock fall were also highly problematic, casting doubt upon his entire
testimony.

25

This Court believes that the possibility that an employee is “sugar-coating” his
descriptions of unsafe conditions in a misguided attempt to protect his employer’s
interests is unfortunately a necessary consideration in assessing credibility.

35 FMSHRC Page 3418

As trier-of-fact, the undersigned should attempt to resolve inconsistencies in
testimony without concluding that witnesses are lying. However, in the instant case, the
most reasonable benign explanation for the differing and contradictory nature of the
witnesses’ accounts is that there were in fact different multiple rock falls on February 23,
2011. This explanation is just as detrimental for Respondent’s cause, inarguably
confirming the high degree of danger posed by the unscaled highwall.
The undersigned essentially concurs with the arguments advanced by the
Secretary as to Ludwig Explosives’ negligence. Ludwig’s employees were well aware
that large volumes of water had been cascading over the highwall on February 21, 2011,
causing the shot to be cancelled. The undersigned further finds that Ludwig Explosives’
employee knew of the freeze and thaw cycles in winter time in Illinois.
The heavy downpour on February 21, 2011, coupled with the succeeding drying
out cycle, posed a danger that debris and/or loosened material might be created that could
fall from the highwall onto miners working below on February 23, 2011. That a rock or
rocks did fall on February 23, 2011 confirms that such a hazard was reasonably
foreseeable. The undersigned specifically rejects any suggestion by Respondent that the
rock fall on February 23, 2011 was merely a coincidence or unforeseeable “act of God.”26
Given such, Ludwig Explosives personnel should have known that a hazard of
falling rock was existent subsequent to the February 21, 2011 downpour.
Just as Tuscola Stone was derelict in failing to inspect, test, and scale the highwall
on February 23, 2011 before individuals would be permitted to work in the affected area,
Ludwig was equally derelict in failing to wait for such corrective actions to be completed
before proceeding to engage in its shot activities. Further, compounding its negligence
was Ludwig’s blasting team’s decision not to immediately evacuate the affected area
after a rock or rocks had fallen.
As a finding of fact, the undersigned rejects Ludwig’s argument and testimony
suggesting it had not entered the affected area and was in the process of evacuating such
when sighted by Inspector Ackley. Instead, either because the blasting team did not wish
to waste assets and/or felt the need to immediately detonate the shot, it improperly
entered and remained in the affected area. Any prudent person, familiar with the mining
industry, would not have entered the affected area, much less remained after a rock fall.
The prudent course would have been to immediately evacuate to a safe distance from the
affected area for a reasonable time and assess overall conditions before proceeding with
any further work activity.

26

Payton’s description of such, at Tr. 205, reminds the undersigned of the
unenlightened pre-Mine Act days when the beknighted explanation for all mining
catastrophes was “It’s God’s will.”

35 FMSHRC Page 3419

e) Penalty
In a recent decision, this Court opined that whether the Secretary proposes a
regularly or specially assessed penalty the ultimate determination of the penalty amount
is up to the Commission. The American Coal Co., LAKE 2011-701 et al, slip op., at 33
(September 20, 2013) (ALJ Lewis). This Court is guided in its final determinations by
the polestar of 30 U.S.C. §820(i) penalty considerations:
In assessing civil monetary penalties, the Commission shall consider the
operator's history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charged, whether the
operator was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after
notification of a violation.
The undersigned has been further guided by Commission case law instructing
how §110(i) criteria should be evaluated. Inter alia, the undersigned notes: the
Commission’s holding in Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997)
that all of the statutory criteria must be considered, but not necessarily assigned equal
weight; and the Commission’s holding Musser Engineering, 32 FMSHRC at 1289 that,
generally speaking, the magnitude of the gravity of the violation and the degree of
operator negligence are important factors, especially for more serious violations for
which substantial penalties may be imposed.
The undersigned in assessing the §820(i) penalty considerations, finds that both
respondents demonstrated good faith in achieving rapid compliance after notification of
the violation and that neither Respondent appears to be a significant recidivist in terms of
previous violations. The undersigned therefore finds that a reduction in the penalty is
warranted for Ludwig Explosives from $20,900.00 to $15,900.00, and for Tuscola Stone
from $11,900.00 to $9,000.00.

35 FMSHRC Page 3420

ORDER
It is hereby ORDERED that Imminent Danger Order No. 6555528 is hereby
AFFIRMED.
It is hereby ORDERED that Citation Nos. 6555522 (Tuscola Stone) and 6555529
(Ludwig Explosives) are AFFIRMED as modified herein.
Respondent, Ludwig Explosives is ORDERED to pay civil penalties in the total
amount of $15,900.00 within 30 days of the date of this decision.
Respondent, Tuscola Stone is ORDERED to pay civil penalties in the total
amount of $9,000.00 within 30 days of the date of this decision.27

/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge

Distribution:
Nadia Hafeez, Esq., U.S. Dept. of Labor, Office of the Solicitor, 1999 Broadway, Suite
800, Denver, CO 80202-5708
Alan R. Shoemaker, Tuscola Stone Co., 1199 US Hwy 36, Tuscola, IL 67953
Daniel P. Foltyniewicz, Ludwig Explosives, Inc., P.O Box 5312, Wheaton, IL 60189

27

Payments should be sent to: MINE SAFETY AND HEALTH
ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O.
BOX 790390, ST. LOUIS, MO 63179-0390

35 FMSHRC Page 3421

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949

November 13, 2013
OAK GROVE RESOURCES, LLC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
OAK GROVE RESOURCES, LLC.,
Respondent

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

CONTEST PROCEEDING
Docket No. SE 2009-261-R
Citation No. 7696616; 01/08/2009
Oak Grove Mine
Mine ID 01-00851
CIVIL PENALTY PROCEEDING
Docket No. SE 2009-487
A.C. No. 01-00851-180940-01
Oak Grove Mine

DECISION UPON REMAND
Before: Judge Moran
The Commission, having reversed the undersigned administrative law judge, upon
determining that the safeguard issued to Oak Grove Resources, safeguard No. 2604892, was
valid, remanded the matter so that the Court “may determine whether the Secretary proved that
Oak Grove violated [that safeguard] as alleged in Citation No. 7696616, and conduct such other
proceedings as may be appropriate.” 2013 WL 4140414, *4. Following that decision and
remand, the Court contacted the parties, who advised, via email responses, that they would stand
on their original post-hearing submissions and not provide additional briefing.
In its July 25, 2013 decision, the Commission, in finding that the subject safeguard was
valid, noted that it “identifie[d] a hazardous condition, i.e. a locomotive pushing two loaded
supply cars, and a remedy, i.e., cars on main haulage roads are not to be pushed.” Commission
Decision at 6. The Commission also referenced its decision in The American Coal Co., 34
FMSHRC 1963 (Aug. 2012), wherein it noted that it rejected the argument that a safeguard,
beyond describing a hazard, must also “describe the potential risks or harms associated with that
hazardous condition.” It reasoned that as “many potential risks can flow from the cited

35 FMSHRC Page 3422

hazardous condition . . . it would be unreasonable to require the inspector to identify each and
every one.” Id. In remanding this matter to the Court, the Commission made clear that “a valid
safeguard [is one which] provides an operator with notice of the conditions considered hazardous
and the conduct required to comply with the safeguard; [and that] it need not foreshadow the
events that may occur if the safeguard is not implemented.”
The subject safeguard having been upheld, it must now be determined whether that notice
to provide safeguard was violated when MSHA issued Citation No. 7696616 on January 8, 2009.
That citation stated: “A fatal accident occurred on May 22, 2008, when a motorman was crushed
between a derailed haulage car and the locomotive he had been operating. The haulage car was
being pushed on the main haulage road. The victim would not have been exposed to the pinch
point between the locomotive and the haulage car if the car was being pulled instead of pushed
on the main haul road.” Remand at 2, citing OG Ex. 1.
The following findings of fact from the Court’s decision1 are repeated here:
“Miner Lee Graham was killed at Respondent's Oak Grove Mine on May 22, 2008.
There is no dispute about the circumstances of his death which may be briefly summarized as
follows: On the date of Mr. Graham's death, Oak Grove was in the process of transporting a
shearer body to the longwall face via the main haulage road. The shearer body, a machine that
operates on the longwall face, weighs 24 tons and at the time of the accident it was being
transported on a ‘shearer carrier,’ which is a haulage carrier designed for the task of hauling the
shearer body. Mr. Graham died when he was pinned between a locomotive he was operating and
the shearer body.
Oak Grove was attempting to transport the shearer body using two tandem locomotives:
Motors No. 3 and No. 8, to pull the shearer carrier and Motors No. 4 and 9 to push the shearer
carrier. Therefore in terms of their destination to the longwall, Motors No. 3 and 8, since they
were pulling, were leading and Motors No. 4 and 9 were following the procession. Each pair of
locomotives was connected to one another by a coupling. For the two coupled motors pulling
the shearer body, No. 8 was in the lead, and connected to No. 3. The No. 3 itself was connected
to the shearer body by a one inch diameter, flexible, wire rope. Thus, unlike the relatively rigid
connection between the motors, through a coupling, the connection for the pulling locomotives,
utilizing a wire rope to the shearer carrier was anything but rigid. Miner Graham was operating
the No. 3 motor. In contrast to the wire rope arrangement connecting the pulling motors to the
shearer carrier, the pushing motors were connected to the shearer carrier by a solid drawbar.

1

The recap of the Court’s original decision is selective but it is not done with any intent
to mischaracterize its findings. Instead, with the Commission having set forth the standard for
evaluating safeguards, there is no point in repeating what have become irrelevant points from
that original decision.

35 FMSHRC Page 3423

To recap, if one were standing alongside the transporting effort at the time, such
individual would have observed, beginning at the front, pulling end, the No. 8 motor, which was
connected to the No. 3 motor via a coupling and then the No. 3 motor connected to the shearer
carrier by the wire rope. Next would be the shearer carrier itself and on the pushing end, a
connection from it, by means of a solid drawbar, to the No. 4 motor. Finally, the No. 9 motor
was connected to the No. 4 motor via a coupling in the same fashion as the link between the
No. 3 and the No. 8. The significance of the wire rope connection will become apparent
momentarily.
To understand how the fatality occurred, picture the procession moving towards its
destination, as described, and reaching an upgrade. Slack then developed in the wire rope
connection and the consequence was a derailment of the shearer carrier. Examining the
situation, the victim unwittingly placed himself in a dangerous position, standing in the middle
of the track, between his locomotive and the derailed shearer carrier. It was then that the
coupled motors, Nos. 3 and 8 either slid or rolled downhill with Mr. Graham becoming fatally
pinned between those motors and the shearer carrier. 33 FMSHRC 846 at * 847.
An MSHA investigation ensued. This investigation was conducted by Inspector David
Allen. Upon the conclusion of his investigation, Inspector Allen issued Citation No. 7696616,
pursuant to Section 314(b) of the Mine Act for an alleged violation of Safeguard No. 2604892.
In his testimony at the hearing, Mr. Allen spoke to the hazards arising from pushing cars on
haulage roads. The hazards, he expressed, are plain. When one pushes a car visibility is affected
because the load is in front of the pushing force. This makes it more difficult to see the track and
any traffic that may lie ahead. Beyond that concern, when pushing, as opposed to pulling, one
does not have positive control. Third, pushing also creates a pinch point, as happened here
between the shearer carrier and the No. 3 motor. Id. at *848. . . .
Allen agreed that once the shearer carrier derailed, the miners evaluated the problem.
This took anywhere between two to five minutes and during that time the motors on either side
of the shearer carrier did not move. At some point after that time elapsed Mr. Graham, the
victim, stepped in between the shearer body and the No. 3 motor and it was then that the motor
moved, resulting in Mr. Graham becoming fatally pinned between that motor and the shearer
body. Tr. 56-57.
Allen, who had prior mining experience moving mining equipment, stated that, when in
his past work at mines, he had performed such tasks, the equipment was pulled through the mine.
The pulling was accomplished by using a solid bar, that is a tongue or a drawbar between the
locomotive and the car itself. Yet, he conceded, even when moving by pulling, derailments
would occur. Tr. 28-29. Id. . . . Allen . . . described . . . that cars on main haulage roads are not
to be pushed. Tr. 42. . . . Allen then . . . identif[ied] ‘several hazards associated with [the
safeguard].’ These included visibility hazards, the lack of ‘good positive control of the loads’ by
pushing instead of pulling, and creating a ‘pinch point.’” Tr. 42-44. Id. at *851. . . .

35 FMSHRC Page 3424

Determination of Violation.
The underlying safeguard, No. 2604892,2 as noted above, stated that a locomotive was
being used to push loaded supply cars down a graded haulage supply mine track entry and it
required that “cars on main haulage roads not be pushed except where necessary to push cars
from side tracks located near the working section to the producing entries and rooms.” Remand
at 3, citing OG Ex. 2. Here, the Respondent was pushing a shearer carrier, which carrier was
transporting the shearer body to the longwall face, along a main haulage road. Chad Johnson,
the mine’s assistant general mine foreman/dayshift foreman, admitted this. Tr. 99.
Clearly, Safeguard No. 2604892 was violated here, as alleged in Citation No. 7696616,
as it is undisputed that a haulage car was being pushed on a main haulage road. The one
exception allowed in the safeguard, allowing cars to be pushed where necessary to move them
from side tracks near a working section to the producing entries and rooms, did not apply.
The Parties’ Contentions regarding the appropriate penalty.
The Secretary, observing that a fatality occurred here, notes that the issuing Inspector
evaluated the violation as significant and substantial (“S&S”) and of moderate negligence.
For its S&S analysis, the Secretary notes that Inspector Allen identified several hazards
associated with the practice of pushing the car here. There was a visibility hazard, as it is harder
to see the track and traffic ahead when the load is in front of the direction of travel. A separate
hazard is not being able to maintain positive control. Further, the practice of pushing created a
pinch-point between the shearer carrier and motor number 3. Had the pulling requirement been
adhered to, per the safeguard’s instruction, there would not have been a pinch point. The pinch
point hazard resulted in the fatality here. These facts, the Secretary submits, establishes that the
violation was significant and substantial.
The Secretary also contends that the negligence was moderate. Moderate negligence, it
notes, is negligence where the mine operator knew or should have known of the violative
condition or practice but there are mitigating circumstances. Inspector Allen considered the
negligence on Oak Grove’s part to be moderate on the basis that it had not been cited for this
safeguard violation in the recent past. Tr. 50.

2

The safeguard in question, which was issued on March 3, 1986 provided in full: “The
No. 902 battery powered locomotive was being used to push two loaded supply cars consisting
of a car of timber and a car of roof bolts down the graded haulage supply mine track entry of the
main south area of the mine, near the intersection of the No. 7 and No. 14 section switch and the
No. 10 and the No. 5 section switch. Such area is approximately 2100 feet from the main bottom
area of the mine and approximately 3600 feet from the No. 7 section and the No 10 sections.
Respectively, this notice to provide safeguard requires that cars on main haulage roads not be
pushed except where necessary to push cars from side tracks located near the working section to
the producing entries and rooms.”

35 FMSHRC Page 3425

Considering the above, the Secretary maintains that its proposed assessment of $55,000.
is the appropriate penalty. Sec. Br. at 10.
Oak Grove maintains that the safeguard did not apply to the cited condition. It contrasts
mandatory standards with safeguards and asserts that they must be construed in a “more
restrained [manner] than that accorded promulgated standards.” R’s Br. at 11. By “restrained,”
Respondent means safeguards must be “construed strictly.” Id. Respondent contends that
applying its wished-for construction of safeguard notices here compels the conclusion that this
safeguard does not apply to “pushing heavy equipment.” R’s Br. at 17. Respondent asserts that
the safeguard only applies to cars laden with timbers or roof bolts. Id. Seriously. The
Respondent actually makes this claim. Adding to its view of what it means to “construe[]
strictly” the safeguard notice, Respondent argues that it does not apply to the moving of heavy
equipment. Heavy equipment is not moved by supply cars. Rather, heavy equipment is moved
by “specially designed carriers.” Yet another distinction perceived by Respondent is that
supplies are moved by a single motor, not four, as here.3
From its contention that the safeguard “does not contemplate or apply to the pushing of
heavy equipment,” Respondent then turns to the S&S designation. It asserts that “[t]he
Secretary is arguing essentially that the alleged condition contributed to the accident.” It
counters that “[t]he occurrence of an accident does not, in fact, confirm that a condition is
reasonably likely to result in an injury.” R’s Br. at 19. To support that thesis, the Respondent
declares that “[t]he accident occurred because one of the persons present did not set the brakes
on the motor.” Respondent describes the Secretary’s view, that the absence of a drawbar
contributed to the accident, as a “theory” and one that is “tenuous at best.” Id. After all, it
points out, the safeguard doesn’t require a drawbar and it makes no mention of pinch points
either. Respondent concludes that as the hazard addressed by the safeguard was not one that
resulted in the accident, an S&S designation does not apply. Id. at 20. Looking to the third
element of the Mathies “significant and substantial” criteria, Respondent states that the “failure
to comply with the safeguard did not result in a hazard related to the accident.” Id. It adds that
the safeguard’s failure to identify the hazard is a deficiency that is fatal to the S&S designation.

3

Respondent perceives subsequently issued safeguards, though no subsequently issued
safeguard notice exists. Instead, it looks to the waiver that was, for a time, issued to Oak Grove
and construes that waiver as “in effect” a safeguard for heavy equipment, which perceived
safeguard was then revoked. Respondent construes the waiver and its subsequent revocation as
evidence that the “original” safeguard did not pertain to heavy equipment. Respondent then
asserts that, although waivers don’t “appear to be an authorized procedure,” that history still
shows that the original safeguard did not apply to the pushing of heavy equipment.

35 FMSHRC Page 3426

Because the accident “had no relation to the safeguard,” as no pushing or pulling was occurring
at the time of the accident, the violation could not have contributed to the hazard.4

4

Oak Grove cites Mar-Land Industrial Contractor, Inc., 14 FMSHRC 754, (May 1992),
for the position that the occurrence of an accident does not confirm that a condition is reasonably
likely to result in an injury. The problem with this argument is that it is a straw man. Of course
the occurrence of an accident does not by itself confirm that a condition was reasonably likely to
result in an injury. But, when an accident occurs, and such accident is connected to the cited
condition, one then moves beyond the realm of reasonable likelihood. Instead, there is real
world evidence of the occurrence and its connection. There is no need, when the accident in fact
occurs, to get into the business of predicting the likelihood of its occurrence. To say the least, it
would be a perverse outcome to claim that the case for establishing that a violation was S&S is
stronger when the prediction is that it is reasonably likely to occur, but not as strong when it
happens. Ironically, though cited, Mar-Land did not contest the S&S finding by the judge and
the issue was not before the Commission.
In its lead citation for the principle that the occurrence of an accident does not confirm
that a condition is reasonably likely to result in an injury, Oak Grove cites Plateau Mining, 25
FMSHRC 738, 745. There, the judge did state that the cause of certain tragic events related to
the question of whether the standard was violated, while adding that establishing the cause does
not necessarily establish the violation. The judge ultimately found that the violation was
established and that it was S&S. In the Court’s view, this is an odd case to rely upon. It is, at
best, dicta, in the judge’s decision itself and being an administrative law judge decision, not of
precedential value in any event. Oak Grove notes that the Commission subsequently affirmed
and reversed that decision in part. 28 FMSHRC 501 (Aug. 2006). The Commission’s split
decision for the citation associated with Oak Grove’s contention, citation number 7143395, that
an accident’s occurrence does not confirm that a condition is reasonably likely to result in an
injury, affirmed the judge’s determination that there was a violation. This occurred in the
context of the case having been remanded to the Commission by the Tenth Circuit. 519 F. 3d
1176 (10th Cir. 2008). The Westlaw site, at 2006 WL 2524065, must reflect a publication error,
as its printing of the Commission’s August 22, 2006 decision, includes a reference to the 2008
decision by the 10th Circuit, Thus, the Westlaw 2006 publication includes the 10th Circuit’s
decision, which came two years later. Indirectly, this was sorted out, as reflected in the
Commission’s July 15, 2008 Order, found at 2008 WL 3248033, which Order vacated citation
number 7143395. Westlaw will be contacted regarding this error.
Respondent also cites RS & W Coal Co., 25 FMSHRC 589, (ALJ Weisberger Oct. 2003),
as the only case “involving both a similar safeguard and a similar set of facts” to Oak Grove’s.
R’s Br. at 20. Oak Grove comments that RS & W Coal “d[id] not even address the same hazard
from pushing cars as the inspector did [in this Oak Grove case], [that is] pinch points.” Oak
Grove adds that visibility was not an issue in its case, because the equipment was fully stopped.
(continued...)

35 FMSHRC Page 3427

The Secretary’s Brief asserts that, as MSHA Inspector Allen testified that the Respondent
was pushing a shearer carrier along a main haulage road and as Mr. Chad Johnson, the mine’s
assistant general foreman and day shift foreman, admitted to this as well, this establishes a
violation of the safeguard. In light of the Commission’s Decision in this matter and its decision
in The American Coal Co. case, 34 FMSHRC 1963, (Aug. 2012), the latter of which was issued
after the Court’s original decision in this matter, the Court wholeheartedly agrees. Sec. Br. at 7,
Tr. 42, 99.
Addressing the penalty criteria, the Secretary reminds that a fatality occurred in
connection with this activity of pushing a car on a main haulage road and that the Inspector
marked the violation as “significant and substantial” and that moderate negligence was attendant.
Speaking to the “S&S” designation, the Secretary observes that designation is supported when,
“based upon the particular facts surrounding the violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature.”
Sec. Br. at 8, citing Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In the course of his testimony, Inspector Allen identified both visibility problems and an
inability to maintain positive control, as hazards associated with pushing cars. He added that the
prohibited pushing method created a pinch-point between the number 3 motor and the shearer
carrier, a hazard that is avoided by pulling cars. That pinch-point hazard killed Mr. Graham.
The Secretary maintains that the foregoing establishes that the violation met the test to be
denominated as significant and substantial.
As for the moderate negligence designation, the Secretary notes that means “the operator
knew or should have known of the violative condition or practice, but there are mitigating

4

(...continued)
It concludes that as the hazard addressed by the safeguard is not one that resulted in the accident,
it is not within the definition of S&S. Id. It is the Respondent’s contention that as the “[f]ailure
to comply with the safeguard did not result in a hazard related to the accident,” and as their was
no contribution to a hazard by noncompliance with the safeguard, the second and third elements
of Mathies were not met. While the administrative law judge in that case sustained the mine
operator’s challenge to the citations arising from the safeguards issued and though everyone
recognizes that a decision by an administrative law judge has no precedential effect, the
inspector who issued the safeguards in Judge Weisberger’s case did testify that pushing mine
cars, in that instance mine cars transporting miners, was a hazardous practice. That practice, the
Inspector asserted, created a derailment, lack of control and limited visibility hazards. Id. at
*591. A professional engineer echoed the concerns expressed by the Inspector. The judge in
that case took a different view from the MSHA witnesses, concluding that the safeguards’
issuance was made outside of the sound exercise of the Secretary’s discretion. The case was not
appealed. Subsequent Commission decisions have overtaken any lessons that might have been
gleaned from the RS & W Coal Co. decision.

35 FMSHRC Page 3428

circumstances” and that this includes “actions taken by the operator to prevent or correct
hazardous conditions or practices.” In this instance, the MSHA Inspector considered the fact
that “Oak Grove had not been cited for a violation of this safeguard in the recent past” to justify
the moderate negligence label. Sec. Br. at 9. Considering those factors, and the other statutory
penalty criteria, the Secretary submits that the proposed $55,000 penalty is appropriate.
In its Reply Brief, Oak Grove spends its entire time on its view of the distinction between
“specifying the hazard” and “descri[bing] [] the conditions for issuing a safeguard,” 5 and its
view that both are required for a safeguard to be valid. However the Commission’s Decision and
remand in this matter, as well as its holding in The American Coal Co. case, 34 FMSHRC 1963
(Aug. 2012), put those arguments to rest.6 On the same basis, no further comments are required
for the Secretary’s Reply Brief.
Discussion
As indicated earlier, in finding that the violation was established, the Court agrees with
the Secretary that Oak Grove’s “extremely narrow reading of the safeguard would render it
meaningless.” In this regard, the Secretary correctly observes that by Oak Grove’s view, the cars
would need to be “the exact same and the supplies would have to be essentially the same as
well.” Sec. Reply at 2. Rejecting Oak Grove’s view, the violation, as noted, is affirmed.
The significant and substantial or “S&S” designation and the penalty criterion of
negligence are next discussed. The significant and substantial designation is described in section
104(d)(1) of the Mine Act as a violation "of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard." 30 U.S.C. §
814(d)(1). A violation is properly designated S&S, "if, based upon the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature." Cement Div., Nat'l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission explained in order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary of Labor must prove: (1) the
underlying violation of a mandatory safety standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature. Accord, Buck Creek Coal, Inc. v. MSHA, 52

5

Following this perspective, Respondent goes on with its view that the safeguard notice
must identify whether its concern is directed at pinch points or visibility hazards, or at least to
list each and every concern the inspector had about the unsafe practice, to be valid.
6

In its Reply Brief, the Secretary, concerned that the key point not be lost, reminds of the
very basic fact that the safeguard in issue, issued in 1986, addressed the hazardous practice of
pushing cars on main haulage roads. Sec. Reply at 2.

35 FMSHRC Page 3429

F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec'y of Labor, 861 F.2d 99, 103 (5th Cir.
1988) (approving Mathies criteria). In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125 (August
1985), the Commission explained that the third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will result in an event
in which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (Aug. 1984). It
noted that it is the contribution of a violation to the cause and effect of a hazard that must be
significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984);
U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984). Further, the question of
whether any particular violation is S&S must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988).
Negligence is conduct, either by commission or omission, which falls below a standard of
care established under the Mine Act to protect miners against the risks of harm. 30 C.F.R. §
100.3(d). A mine operator is required to take steps necessary to correct or prevent hazardous
conditions or practices. Moderate negligence, the negligence alleged here, exists when the
operator knew or should have known of the violative condition or practice, but there are
mitigating circumstances present. By comparison, low negligence occurs when the operator
knew or should have known of the violative condition or practice, and there are considerable
mitigating circumstances. Finally, no negligence occurs when the operator exercised diligence
and could not have known of the violative condition or practice. 2013 WL 4140378, Secretary v.
Newtown Energy, Inc., August 7, 2013 (ALJ), Secretary v. The American Coal Company, 2013
WL 4648487, (ALJ), July 30, 2013, Secretary v. Cemex, Inc., Respondent, 2013 WL 3152294,
(ALJ), May 7, 2013.
The Court agrees with the Secretary’s S&S analysis. The violation, as noted, has been
found. The discrete safety hazard is present too. More accurately, several discrete safety
hazards were identified in the course of the testimony, to include diminished visibility, the
creation of a pinch point and the lack of positive control. Each of these hazards were attendant
to the practice of pushing cars. Although the Respondent asserts that the occurrence of an
accident does not confirm that a condition is reasonably likely to result in an injury and it
describes the Secretary’s view that the absence of a drawbar contributed to the accident as a
“tenuous” theory, any legitimate S&S analysis must be able to consider what actually occurred.
Reasonable prognostication, which is typically part of the S&S evaluation, cannot impair
taking into account the reality of the events. Here, Miner Lee Graham was killed and while
his death did not occur simultaneously with the moment in time at which the pushing process
was taking place, that hazardous practice resulted in the derailment and it was in the course of
assessing that derailment that the number 3 and 8 motors moved, fatally pinning him.7 Although
the Respondent would prefer that the S&S analysis begin after the derailment, when a brake was
not set on a motor, that review ignores the closely-connected hazardous pushing practice which
precipitated the derailment. The S&S test, after all, requires only that the discrete safety hazard

7

It is noted that Inspector Allen concluded in his investigation that pushing the shearer
carrier contributed to Mr. Graham's death. Gov. Ex. 4.

35 FMSHRC Page 3430

contribute to a measure of danger of safety, which contribution certainly happened here by
pushing the cars. Therefore, the Court rejects the Respondent’s claim that the accident “had no
relation to the safeguard.” As for the final Mathies’ element, a reasonable likelihood that the
injury will be of a reasonably serious nature, again the facts answer this inquiry.
Moderate negligence is the correct designation, although a case could be made that high
negligence would be supportable. To view the fact that the mine had not been cited for this
practice in the recent past as a mitigating consideration is a generous take for the Respondent.
The other statutory were duly considered. The Court concludes that a civil penalty of
$55,000.00 is fully warranted here.
ORDER
Accordingly, the Court finds that Citation No. 7696616 is upheld, that the violation was
significant and substantial and of moderate negligence and Respondent is hereby ORDERED to
pay the Secretary of Labor $55,000.00 within 30 days of the date of this decision.

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

Distribution:
Jennifer D. Booth, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222

35 FMSHRC Page 3431

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Avenue, N.W., Suite 520N
Washington, D.C. 20004-1710

November 18, 2013
DAVID A. STACHE,
Complainant,
v.
ALVIN J. COLEMAN & SON, INC.,
Respondent.

:
:
:
:
:
:
:
:

DISCRIMINATION PROCEEDING
Docket No. YORK 2013-41-DM
No. NE-MD-12-05
Mine: Portable #2
Mine ID: 27-00050

DECISION

Appearances:
David A. Stache, Pro Se, West Ossipee, New Hampshire
Russell “Butch” Webster, Alvin J. Coleman & Son, Inc., Conway, New Hampshire, on behalf of
Respondent

Before:

Judge David F. Barbour

This case is before me upon a complaint of discrimination brought by David A. Stache
(“Stache”), a miner, against Alvin J. Coleman & Son, Inc. (“Alvin Coleman” or “the company”),
pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 815(c)(3). Stache contends that he was unlawfully discharged by Alvin Coleman on
August 8, 2012, because of his protected activities, specifically his safety complaints to his
supervisor, Russell “Butch” Webster. Alvin Coleman contends that it did not discriminate
against Stache who was discharged not for protected activities, but for physically intimidating
Webster.

35 FMSHRC Page 3432

PROCEDURAL BACKGROUND
On August 8, 2012, Stache was terminated by Alvin Coleman. Almost a month later, on
September 6, 2012, Stache filed a discrimination complaint with the Mine Safety and Health
Administration (“MSHA”) pursuant to section 105(c)(2) of the Act.1 Discrim. Compl. to MSHA
(Sept. 6, 2012). On October 19, 2012, MSHA determined after an investigation that there was no
violation of section 105(c), and therefore, that Stache’s discharge was not prohibited by the Mine
Act. MSHA Determ. of No Discrim. (Oct. 19, 2012).
Subsequently, on November 7, 2012, Stache filed a discrimination complaint on his own
behalf with the Federal Mine Safety and Health Review Commission (“Commission”) pursuant
to section 105(c)(3) of the Mine Act. 2 Stache’s Appeal of MSHA Determ. (November 7, 2012).
1

Section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2), states in relevant part:
Any miner . . . who believes that he has been discharged,
interfered with, or otherwise discriminated against by any person
in violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging such
discrimination. Upon receipt of such complaint, the Secretary shall
forward a copy of the complaint to the respondent and shall cause
such investigation to be made as he deems appropriate.

2

Section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3), states in relevant part:
Within 90 days of the receipt of a complaint filed under
[section 105(c)(2)], the Secretary shall notify, in writing, the miner
. . . of his determination whether a violation has occurred. If the
Secretary, upon investigation, determines that the provisions of this
subsection have not been violated, the complainant shall have the
right, within 30 days notice of the Secretary’s determination, to file
an action in his own behalf before the Commission, charging
discrimination or interference in violation of [section 105(c)(1)].
The Commission shall afford an opportunity for a hearing . . . and
thereafter shall issue an order, based upon findings of fact,
dismissing or sustaining the complainant’s charges and, if the
charges are sustained, granting such relief as it deems appropriate,
including, but not limited to, an order requiring the rehiring or
reinstatement of the miner of his former position with back pay
and interest or such remedy as may be appropriate. Such order
shall become final 30 days after its issuance. Whenever an order is
issued sustaining the complainant’s charges under this subsection,
a sum equal to the aggregate amount of all costs and expenses
(including attorney’s fees) as determined by the Commission to
have been reasonably incurred by the miner . . . for, or in
(continued…)

35 FMSHRC Page 3433

Stache seeks lost wages from the date of his termination, August 8, 2012, to the estimated date of
his potential seasonal lay-off, December 14, 2012.3 Discrim. Compl. to MSHA (Sept. 6, 2012). A
hearing was held on May 21, 2013 in Ossipee, New Hampshire.4
At the hearing, the evidence established the following chronology of events. On August
8, 2012, Stache failed to inspect and report that the emergency steering of his haul truck was
defective. The defective emergency steering was cited by an MSHA inspector later the same day.
Complainant’s Ex. 2.5 A few hours after the citation was issued, Webster suspended Stache for
two days for failing to inspect and report the defective emergency steering. Id. After Webster
informed Stache that he was suspended for two days, Stache complained to Webster about safety
issues with Stache’s truck and mentioned section 105(c). A few minutes after that, Webster
terminated Stache. Id.
Stache and Webster dispute the reason for the termination. Stache alleges that he was
terminated because he made complaints under the Mine Act. Tr. 32. He claims that after being
terminated, he threw a pen at the windshield of Webster’s truck. Tr. 32. Webster claims that
Stache angrily threw the pen at his face prior to being terminated. Tr. 88-89. Webster maintains
that Stache’s suspension escalated to a termination not because of Stache’s protected complaints,
but because Stache engaged in extreme misconduct by throwing a pen at Webster’s face and by
displaying unstable behavior, leading Webster to fear Stache was dangerous. Complainant’s Ex.
1-2; Tr. 88-89.
FACTUAL BACKGROUND
THE MINE
Alvin Coleman is a construction company that employs engineers and skilled
construction workers for construction projects. Alvin J. Coleman & Son, Alvin J. Coleman
company website, http://www.ajcoleman.com (last visited Aug. 20, 2013). 6 The company also
2

(…continued)
connection with, the institution and prosecution of such
proceedings shall be assessed against the person committing such
violation.
3

In his complaint to MSHA, Stache conceded that he would have been seasonally laid off
on December 14, 2012. Discrim. Compl. to MSHA (Sept. 6, 2012).
4

The parties did not submit post-hearing briefs, and did not agree to any stipulations.

5

Complainant’s Exhibit 2 is comprised of a single page. The front, hereinafter referred to
as page 1, contains Stache’s notice of suspension. The back, hereinafter referred to as page 2,
contains Stache’s notice of termination.
6

Due to the paucity of evidence regarding the nature of the mine, the court consulted the
company’s website for relevant information.

35 FMSHRC Page 3434

operates a crushing division, consisting of a rock quarry (the Conway quarry), three crushers and
two screening plants. The crushing division supplies the material needed for the company’s
construction projects. Id. On March 15, 2008, Stache was hired by the company to perform
general maintenance on equipment. Discrim. Compl. to MSHA (Sept. 6, 2012). On December
13, 2008, he was laid off. Id. On April 3, 2009, Stache was recalled and became a haul truck
driver in the crusher division at the Conway quarry. Id; Complainant’s Ex. 2, at 1. Stache
operated the same Caterpillar 769 truck (“769 C”) from April 2009 to his termination on August
8, 2012. Tr. 47, 59-60. While not explicitly stated, Stache’s daily duties seemed to primarily
comprise of hauling large pieces of rock within the quarry. Complainant’s Ex. 6-7; Tr. 26-28, 4851.
DRIVER’S VEHICLE INSPECTION REPORT
The Driver’s Vehicle Inspection Report (“DVIR”) is a daily report prepared by haul truck
drivers regarding any defects with their haul trucks. Discrim. Compl. to MSHA (Sept. 6, 2012);
Complainant’s Ex. 3. The DVIR instructs drivers to “check any defective item and give details
under remarks.” Id. Below this instruction are three columns which list approximately 35
components of the truck such as wheels and steering (though the component “emergency
steering” is not explicitly listed). To the left of each component is a small box. A driver must
report a defect by checking the corresponding box, provide details about the defect in a remarks
section, and report whether the defect was corrected. Complainant’s Ex. 3. Stache testified that
he completed the DVIR at the beginning of each shift and submitted it to Webster at the end of
each shift. Webster received the original copy of each DVIR, while Stache retained a carbon
copy. Tr. 39-40. Stache testified that Webster reviewed the DVIR of each driver in his office,
recorded any reported defects, and communicated them to a company mechanic who was
supposed to fix the defects in a timely fashion. Tr. 40. Stache testified that the mechanic might
take two weeks or more to repair defects. Id.
HISTORY OF REPORTING SAFETY ISSUES
Stache had a history of reporting safety concerns with his 769 C haul truck. In June and
September 2011, and in July 2012, he complained to Webster that his truck was being overloaded with large pieces of rock and that the over-loading almost resulted in the truck tipping
over. Complainant’s Ex. 6-7; Tr. 26-28, 48-51. Subsequently, in April 2012, he complained to
Webster of an oil leak; he testified that the oil leak had existed since 2010 without being
repaired.7 Complainant’s Ex. 8-9; Tr. 51-56. In his DVIRs for the 769 C, betwen July 25-27,
2012, July 30-August 1, 2012, and August 7-8, 2012, Stache reported a defective air
conditioning system, oil, hydraulic and exhaust leaks, a crack in the muffler, a broken seat, and

7

It is unclear whether Stache’s complaints regarding the overloading of his truck and the
April oil leak were communicated orally to Webster or were simply reported on his DVIR.
Regardless, Webster did not dispute that Stache made these complaints and that he, Webster, was
aware of them.

35 FMSHRC Page 3435

that the body of the truck needed welding.8 Complainant’s Ex. 3; Tr. 35-39. Stache testified that
Webster was aware of all these safety concerns.9 Tr. 60.
Stache also testified that Webster was not responsive to his safety concerns, in that
multiple safety issues on his truck had not been addressed for several years. Tr. 40-41. In this
regard, Webster conceded that he pondered installing a new air conditioning system in Stache’s
truck for several years instead of immediately installing it upon Stache’s request. Tr. 100-01.
However, Webster maintained that he was responsive to Stache’s safety concerns, at least those
made in July and August 2012. Specifically, he discussed the broken seat with Stache, and
informed Stache that the cracked exhaust system was not leaking since it was double-lined. Tr.
69-70. Stache continued to insist that the exhaust was leaking despite being double-lined, but
conceded that a mechanic, presumably on Webster’s instructions, in August 2012, repaired the
oil leak and informed Stache that the broken seat would be replaced. Tr. 67-68, 70.
SAFETY MEETINGS
At the hearing, Webster testified that Alvin Coleman’s policy since 2008 was to suspend
employees who committed safety violations which resulted in MSHA citations. Tr. 80-81. The
company regularly communicated this policy to employees at safety meetings in the hope that it
would make employees more vigilant about the defects on their equipment, and thus reduce the
number of MSHA citations received by the company. Id. At the hearing, the company introduced
records of three safety meetings between 2011 and 2012. On April 21, 2011, employees were
informed of the company’s progressive discipline policy; the first violation of the policy would
result in a one day suspension, the second violation would result in a one week suspension, and
the third violation would result in termination.10 Resp’t Ex. 4. On March 30, 2012, the company
informed employees that it had “zero tolerance for [MSHA] citations if [preventing violations is]
in your control.” Resp’t Ex. 2. The company further informed employees that the punishment for
preventable citations would be “time off without pay or termination.” Id. On April 13, 2012,
employees were reminded by the company that “if [you’re] caught with a violation from MSHA
and you hadn’t [sic] reported it on your paperwork[,] you will be getting time off without pay.

8

Complainant’s Exhibit 3 is comprised of loose-leaf carbon copies of nine DVIRs
submitted by Stache to Webster between July and August 2012. Eight of these DVIRs pertained
to the 769 C truck operated by Stache, while one pertained to an AT-18 truck. As will be
discussed, on August 8, 2012, Stache temporarily operated an AT-18 truck.
9

Stache failed to clarify at the hearing whether he directly handed his daily DVIR to
Webster, placed it in Webster’s office, or gave it to another individual who delivered it to
Webster. Tr. 39-40.
10

The evidence suggests that actual discipline often varied from the progressive
discipline policy. In this regard, after April 2011, at least three employees were suspended for
three days, similar to Stache’s two day suspension on August 8, 2012, but inconsistent with the
progressive discipline policy where a one day suspension is followed by a one week suspension.
Resp’t Ex. 1.

35 FMSHRC Page 3436

[Y]ou are all responsible for your piece of equipment.” Resp’t Ex. 3. Stache was present during
all three of these safety meetings. Resp’t Ex. 2-4, list of signatures.
MSHA CITATION
On the morning of August 8, 2012, between 6:15 a.m. and 8:00 a.m., Stache was
temporarily operating an AT-18 haul truck (the 769 C, which he normally operated, had an oil
leak that was being repaired). Discrim. Compl. to MSHA (Sept. 6, 2012); Complainant’s Ex. 3;
Tr. 20, 38, 67. At approximately 8:00 a.m., after a mechanic finished repairing the 769 C and
informed Stache that the truck “was running,” Stache began operating the 769 C haul truck. Id.,
Tr. 73-75. Stache testified at the hearing that while he quickly inspected the 769 C, “due to
production,” he did not have time to shut down the truck in order to inspect the emergency
steering. Tr. 68.
On the same day, a federal inspector from MSHA arrived at the mine to conduct an
inspection. The inspector approached Stache’s truck, the 769 C, and began inspecting the truck
for any defects while Stache remained inside. Tr. 20-21. The inspector found that the emergency
steering on the truck was defective due to a broken wire. Tr. 21. A mechanic was called to the
truck to fix the defect. Complainant’s Ex. 3; Tr. 21, 38-39. After the emergency steering was
repaired, the inspector instructed Stache to note in his DVIR for August 8 that the defect had
been corrected. Tr. 38-39. Later on August 8, at some point between 8:00 a.m. and 3:15 p.m.,
the inspector issued a citation to the company due to the defective emergency steering on
Stache’s truck. Complainant’s Ex. 2. Stache was not aware that his truck had been cited, and he
continued to operate the haul truck until approximately 3:15 p.m. when he learned from Webster
of the citation Tr. 21-22.
SUSPENSION
At approximately 3:15 p.m., Stache finished his shift, parked and then exited his truck.
Tr. 22, 24-25, 82. At that time, he noticed Webster driving towards him. Tr. 22. After parking in
front of Stache, Webster got out of his truck, walked over to Stache, and informed him that he
was suspended because he “did not do [a] complete daily inspection[.] [The] back-up steering on
[Stache’s 769 C haul truck] was not checked daily and was not reported on [Stache’s] daily
inspection book.” Complainant’s Ex. 2. Webster further told Stache that his failure to inspect the
emergency steering on his truck had resulted in a citation which would cost the company $5,000.
Tr. 18, 23.11

11

At the hearing, Stache claimed that at the beginning of the conversation, Webster
handed him a pen and a copy of the notice of suspension, and asked him to sign it without
explaining why his signature was required. Tr. 17-18. As indicated below, Webster claimed that
he asked for Stache’s signature towards the end of the conversation.

35 FMSHRC Page 3437

TERMINATION
Upon learning that he was suspended and might cost the company $5,000, Stache thought
“it was going to be a personal fine” and he “became concerned about the safety issues on [his]
truck.” Tr. 18. While the testimony is not entirely clear, the court finds that the most reasonable
inference to draw from the record is that Stache became worried that he would be fined $5,000
for receiving a citation, and would also be fined for all future safety issues with his truck. Stache
then mentioned to Webster that the driver’s seat in his truck was broken. Tr. 18, 97. Specifically,
he claimed that a broken adjustment tool on the seat rendered him unable to adjust the backrest,
thus hurting his back. Tr. 70-71. While it is agreed that Stache mentioned the broken seat, 12 it is
ambiguous as to whether he mentioned other safety concerns during this conversation with
Webster. At the hearing, Stache claimed that on August 8, “I explained to [Webster] that I had a
cracked exhaust in the truck; I had no air conditioning in the truck; excessive noise level; and
broken seat.” Tr. 18. However, Webster testified that Stache did not mention the crack in the
exhaust or the lack of air-conditioning during this conversation.13 Tr. 97.
After Stache mentioned the safety issue(s) with his truck, Webster told Stache that he was
not going to fix “petty ante stuff.” Tr. 18, 30-31.14 Stache, who testified that he felt insulted and
degraded after Webster dismissed his safety concern(s) as “petty,” responded by mentioning
section 105(c), presumably complaining that Webster’s “petty” comment was retaliatory.15 Tr.
18-19, 30-31. Webster testified that during the conversation, Stache said “what about [section]
105(c).” Tr. 97. However, Webster argued that on August 8, he did not know the meaning of
section 105(c) and that Stache “knew more about [section 105(c)] than [Webster] did.” Id.
While there were no stipulated facts, the parties did not dispute the sequence of events
leading up to Stache’s mention of section 105(c). In this regard, the parties did not dispute that at
approximately 3:15 p.m., Stache was suspended by Webster who informed him that he had cost
the company $5,000, that Stache reacted to this news by mentioning safety issues which Webster

12

Webster conceded that Stache mentioned the broken seat during their August 8
conversation. Tr. 97.
13

Webster did not address Stache’s claim that Stache made a complaint about excessive
noise during this conversation. Tr. 97.
14

The court finds that Webster characterized Stache’s broken seat complaint as “petty,”
as testified by Stache, since Webster, who was unable to recall how he responded to Stache’s
safety concern(s), conceded that he viewed the broken adjustment tool on the backrest as more of
a comfort issue than as a safety issue, and did not dispute using the word “petty.” Tr. 97-98, 10102.
15

While neither party provided a clear chronology of events, the court finds that Stache
mentioned section 105(c) after, not before, Webster’s “petty” comment, since it is reasonable to
infer that the “petty” comment triggered Stache’s reference to the statutory provision.

35 FMSHRC Page 3438

characterized as “petty,” and that Stache responded by mentioning section 105(c).16 However,
the parties diverge sharply as to the events which occurred after Stache’s mention of section
105(c).
Stache claims that his mention of section 105(c) caused a furious Webster to immediately
terminate him. Stache testified that Webster responded by telling him to “get the f*** off the
property, you’re f****** fired.” Tr. 31. Stache testified that after being terminated, he threw a
pen at Webster’s truck. The pen bounced off the truck’s windshield and almost hit Webster, who
was still standing outside his truck. Tr. 31-32.
Webster claims that Stache was terminated after he threw a pen at Webster’s face.
Webster testified that during the end of the heated discussion, he asked for Stache’s signature on
the notice of suspension. At that point, Webster testified that Stache “came unglued,” screaming
and shouting that he was “not signing any f****** paperwork” before finally throwing a pen that
narrowly missed Webster’s face; the pen flew across Webster’s face and hit the windshield of
Webster’s truck. Complainant’s Ex. 2; Tr. 101. Webster then decided to terminate Stache,
testifying as follows:
[Stache] went off the wall on me, and threw the pen at me. And,
like I said, I considered that a projectile. I mean, that could have
pierced my eye. And he - I don’t know what [is] the word to use.
He acted like he was getting very unstable. He was getting very red
in the face and his eyes were wandering around. I mean, there’s
rocks, sticks and everything there, I could only imagine what was
coming at me next. So I decided to defuse the situation, and that’s
when I discharged him.
Tr. 88-89.
THE LAW
In order to establish a prima facie case of discrimination under section 105(c) of the Mine
Act, a miner must demonstrate by a preponderance of the evidence “(1) that he engaged in a
protected activity, and (2) that the adverse action was motivated in any part by the protected
activity.” Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 27992800 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3d Cir. 1981). The Commission has noted that “direct evidence of motivation is
rarely encountered; more typically, the only available evidence is indirect.” Sec’y of Labor on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev. on other
grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Circumstantial
evidence may include: (1) coincidence in time between the protected activity and the adverse

16

Regarding the sequence and timing of events leading up to Stache’s mention of section
105(c), the court is relying largely on Stache’s testimony since Webster did not mention the
chronological order for the events on August 8.

35 FMSHRC Page 3439

action, (2) knowledge of protected activity, (3) hostility or animus toward the protected activity
and (4) disparate treatment. Chacon, 3 FMSHRC at 2510.
Once the complainant has established a prima facie case of discrimination “[t]he
operator may attempt to rebut a prima facie case by showing either that the complainant did not
engage in protected activity or that the adverse action was in no part motivated by protected
activity.” Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 818
n.20 (Apr. 1981). The operator may also affirmatively defend by proving by a preponderance of
the evidence that it was motivated by both the miner’s protected and unprotected activities and
would have taken the adverse action for the unprotected activity alone. Robinette, 3 FMSHRC at
818 n.20. The Commission has explained that an affirmative defense should not be “examined
superficially or be approved automatically once offered.” Haro v. Magma Copper Co., 4
FMSHRC 1935, 1938 (Nov. 1982). In reviewing affirmative defenses, the judge must “determine
whether they are credible and, if so, whether they would have motivated the particular operator
as claimed.” Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). The Commission has
held that “pretext may be found . . . where the asserted justification is weak, implausible, or out
of line with the operator's normal business practices.” Sec'y of Labor on behalf of Price v. Jim
Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990). However, the Commission has also held
that “our judges should not substitute for the operator’s business judgment our views of good
business practice.” Chacon, 3 FMSHRC at 2516.
PRIMA FACIE CASE
COMPLAINTS DURING CONVERSATION ON 8/8/12
On August 8, 2012, at approximately 3:15 p.m., immediately after being informed of his
suspension, Stache allegedly mentioned four safety issues with his truck to Webster - cracked
exhaust, defective air conditioning, excessive noise, and a broken seat. Tr. 18, 70-71, 97.
Webster responded by calling Stache’s safety concerns “petty” prompting Stache to ask “what
about [section] 105(c),” presumably complaining that Webster’s “petty” comment was
retaliatory. Tr. 18-19, 30-31. At the hearing, Webster did not dispute that Stache complained
about the broken seat and mentioned section 105(c) during the August 8 conversation. Tr. 97.
Webster also did not dispute that these complaints were protected under the Mine Act. Id.
Webster denies, however, that Stache complained about the exhaust or air conditioning during
the conversation. Tr. 97.17
First, the court considers whether Stache can establish a prima facie case based on his
undisputed complaints during the August 8 conversation - that he was unable to adjust the
backrest on the driver’s seat of his truck and that he mentioned section 105(c). Tr. 18, 70-71, 97.
The court finds that both these complaints were protected. Stache’s complaint regarding the
broken seat was protected as a safety complaint, despite Webster’s opinion that the broken seat
was more an issue of comfort than safety. Tr. 97-98, 101-02. In this regard, the court credits
Stache’s testimony that an inability to adjust the backrest on the driver’s seat could result in
17

Webster failed to address whether Stache complained about excessive noise during the
conversation on August 8. Tr. 97.

35 FMSHRC Page 3440

accumulated back pain to the haul truck driver, who spends multiple hours each working day
operating his truck. Tr. 70-71. Further, Stache’s mention of section 105(c) was protected as an
exercise of Stache’s rights under the Act, as undisputed by the company.
Regarding Webster’s motivation for terminating Stache, since there is no direct evidence
that Stache’s termination was motivated by his protected activity, the court must rely on
circumstantial evidence of motivation. The Commission has noted that “direct evidence of
motivation is rarely encountered; more typically, the only available evidence is indirect.”
Chacon, 3 FMSHRC at 2510 (Nov. 1981). Circumstantial evidence may include:
(1) coincidence in time between the protected activity and the adverse action, (2) knowledge of
the protected activity, (3) hostility or animus toward the protected activity and (4) disparate
treatment. Id.
Regarding temporal proximity, the Commission has found that a discharge occurring
approximately two weeks after protected activity is sufficiently coincidental in time to support a
finding of discriminatory motive. Secretary of Labor on behalf of Clay Baier v. Durango
Gravel, 21 FMSHRC 953, 959 (Sept. 1999). This case presents an even stronger causal
connection since Stache was terminated on the same day, and within a few minutes of making
these protected complaints. Complainant’s Ex. 2; Tr. 88-89.
Regarding knowledge, the Commission has recognized that an operator’s knowledge of
protected activity “is probably the single most important aspect of a circumstantial case.”
Chacon, 3 FMSHRC at 2510. Webster conceded that Stache complained about the broken seat
and mentioned section 105(c) during the August 8 conversation.18 Webster, who directly
terminated Stache, thus had knowledge of both instances of protected activity.
Regarding animus, the Commission has recognized that the more that animus is
specifically directed toward the protected activity, the more probative it is of discriminatory
intent. Chacon, 3 FMSHRC at 2511. There is evidence that Webster was hostile towards
Stache’s complaint of a broken seat. Webster, who called this complaint “petty,” clarified at the
hearing that he personally viewed the broken seat as more of a comfort issue than an actual
safety issue. Tr. 101-02. However, there is no evidence that Webster was hostile towards
Stache’s mention of section 105(c).
The Commission has stated in Bradley that “evidence of knowledge and timing present in
[Bradley] constitutes substantial evidence that [the complainant’s] discharge was at least
partially motivated by his protected refusal to work.” Bradley, 4 FMSHRC at 993. The
18

Webster argued that he was not aware of the precise meaning of section 105(c) on
August 8, 2012. Tr. 97. However, Stache mentioned section 105(c) during a conversation
regarding safety issues and immediately after Webster characterized Stache’s safety complaints
as “petty.” Tr. 18-19, 30-31. In this regard, even assuming that Webster was unaware of the
precise meaning of the statutory provision, the court finds that Webster was aware that Stache
was referring to a legal provision concerning mine safety. Therefore, the court concludes that
Webster knew that Stache’s invocation of section 105(c) constituted protected activity under the
Mine Act

35 FMSHRC Page 3441

Commission has recently stated in Metz v. Carmeuse Lime, 34 FMSHRC 1820, 1826 (Aug.
2012) that “the supervisors’ knowledge of the complaints and the timing of those complaints
constitute evidence that would allow a factfinder to conclude that [the complainant’s] discharge
was at least partially motivated by his protected safety complaints.” In Bradley and Metz, the
Commission found that the complainant made out a prima facie case based solely on
management’s knowledge of protected activity and coincidence in time between the protected
activity and the adverse action.
In the case at bar, regarding the broken seat complaint and Stache’s mention of section
105(c), Webster clearly knew of the protected activity, and terminated Stache mere minutes after
he engaged in the protected activity. The indicia of knowledge and temporal proximity are
sufficient to suggest a discriminatory motive. Bradley, 4 FMSHRC at 993; Metz 34 FMSHRC at
1826. However, even if these indicia were insufficient, there is also evidence that Webster was
hostile towards Stache’s broken seat complaint. Therefore, the court finds that Stache has
established a prima facie case regarding the broken seat complaint and his mention of section
105(c).
Second, the court considers whether, under Bradley and Metz, Stache can establish a
prima facie case based on his alleged complaints during the August 8 conversation regarding the
defective exhaust, the defective air conditioning, or the excessive noise. Bradley, 4 FMSHRC at
993; Metz 34 FMSHRC at 1826. Webster testified that during this conversation Stache failed to
complain about the defective exhaust or defective air conditioning. Tr. 97. Webster did not
testify about Stache’s alleged complaint about excessive noise.19 Id.
The court finds that these additional complaints relate to safety issues with Stache’s truck, as
undisputed by the company. Therefore, the court finds that these additional complaints, if they
occurred, were protected activity under the Mine Act. Since these complaints were allegedly
made at the same time as the broken seat complaint, a few minutes prior to Stache’s termination,
there was a close coincidence in time between the alleged protected activity and adverse action.
Tr. 18. The next step would be to determine whether the operator knew of these safety
complaints, i.e. whether or not Stache made additional complaints to Webster during the
conversation. However, since it is ambiguous as to whether Stache made additional complaints
to Webster during the August 8 conversation, and since the court earlier found that Stache

19

Stache failed to explain the cause for the excessive noise in his truck, though the court
notes that in the preceding days, Stache had complained in his DVIR that the muffler of his truck
was malfunctioning. Complainant’s Ex. 3.

35 FMSHRC Page 3442

proved a prima facie case based on his complaint regarding the broken seat and his mention of
section 105(c), it is unnecessary to resolve this issue.20
COMPLAINTS PRIOR TO CONVERSATION ON 8/8/12
Third, the court considers whether, under Bradley and Metz, Stache can establish a prima
facie case based on his safety complaints prior to the conversation on August 8, 2012. Bradley, 4
FMSHRC at 993; Metz 34 FMSHRC at 1826. Stache testified that he complained that his truck,
the 769 C, was being overloaded in June 2011, September 2011 and July 2012. Complainant’s
Ex. 6-7; Tr. 26-28, 48-51. He also testified that in April 2012, he complained of an oil leak.
Complainant’s Ex. 8-9; Tr. 51-56. During July and August 2012, he reported in his DVIRs
numerous safety issues with the 769 C - the defective air conditioning; oil, hydraulic and exhaust
leaks; a crack in the muffler; a broken seat; and that the truck’s body needed welding.
Complainant’s Ex. 3; Tr. 35-39.
The court finds that these complaints relate to safety issues with Stache’s truck and thus
were protected under the Mine Act, as undisputed by the company. Stache’s undisputed
testimony that Webster was aware of these complaints established the operator’s knowledge of
protected activity. Tr. 60. However, Stache can only establish that some of these complaints were
sufficiently close in time to his termination to indicate a causal connection. The complaints in
Stache’s DVIR were made between July and August 2012, and the most recent complaint
regarding overloading was made in July 2012. Since these complaints were made within a month
of Stache’s termination on August 8, 2012, there is a close coincidence in time between the
protected activity and the adverse action. However, the April 2012 complaint regarding an oil
leak was made approximately four months prior to Stache’s termination, and the complaints of
overloading made in June and September 2011 were respectively made 14 and 11 months prior
to Stache’s termination on August 8, 2012. Therefore, these complaints are not temporally
proximate to Stache’s termination. 21
20

Upon reviewing the evidence, the court has determined that it is ambiguous as to
whether Stache complained about the exhaust, the defective AC or the excessive noise during the
conversation on August 8, 2012. Since Stache had reported the exhaust and the defective AC on
his DVIR in the morning of August 8, it is possible that he again raised those safety concerns
after being suspended by Webster. Complainant’s Ex. 3. However, Webster admitted that Stache
made a safety complaint regarding the broken seat and mentioned section 105(c) during the
August 8 conversation. Tr. 97. Webster thus established that he knew Stache had engaged in
protected activity minutes before his termination. Therefore, Webster would seemingly have no
incentive to falsely assert that Stache did not make any other safety complaints during the same
conversation.
21

The court briefly notes that there is no evidence that Webster was hostile towards any
of Stache’s complaints made prior to the August 8 conversation. While Webster had delayed
installing a new air conditioning system in Stache’s truck, other issues such as the oil leak were
addressed, though perhaps not as promptly as Stache preferred. Tr. 67-68, 100-01. Stache also
conceded that Webster discussed the broken seat with him, presumably prior to August 8, and
explained to him that the cracked exhaust was not leaking since it was double-lined, though
Stache rejected this explanation. Tr. 69-70.

35 FMSHRC Page 3443

Under prior Commission decisions, evidence of the operator’s knowledge of protected
activity and coincidence in time between protected activity and the adverse action is sufficient to
establish a prima facie case. Bradley, 4 FMSHRC at 993; Metz 34 FMSHRC at 1826. As to the
DVIR complaints and the July 2012 complaint regarding overloading, Stache established that the
operator knew of these complaints and that these complaints were made within a month of his
termination. Therefore, the indicia of knowledge and temporal proximity are sufficient to suggest
a discriminatory motive. Id. However, as to the April 2012 complaint of an oil leak, and the
overloading complaints made in 2011, Stache failed to establish that these complaints were
sufficiently close in time to his termination to indicate a causal connection. Therefore, the court
finds that Stache has established a prima facie case only regarding the DVIR complaints and the
July 2012 complaint concerning overloading.
In conclusion, Stache has established a prima facie case on the basis of several
complaints, made orally or verbally at different times, concerning different components of his
truck. As discussed above, Stache proved a prima facie case regarding his complaint of a broken
seat and his mention of section 105(c) to Webster during the August 8 conversation. Stache also
proved a prima facie case regarding his complaints in his DVIRs of July and August 2012
concerning the defective air conditioning; oil, hydraulic and exhaust leaks; a crack in the
muffler; a broken seat; and the truck’s body needing welding. Finally, Stache proved a prima
facie case regarding his complaint that his truck was overloaded on July 2012.
REBUTTAL
Alvin Coleman has failed to rebut the prima facie case by either proving there was no
protected activity, or that Stache’s termination was in no way motivated by his protected
complaints. See Robinette, 3 FMSHRC at 818 n.20. In this regard, the court finds that Webster,
who argued that Stache was terminated solely for his unprotected misconduct, failed to show that
Stache’s protected complaints did not have any impact on the termination. Complainant’s Ex. 2,
at 2; Tr. 88-89. Therefore, the court will now consider whether the company has established an
affirmative defense.
AFFIRMATIVE DEFENSE
As indicated above, Alvin Coleman has failed to rebut Stache’s prima facie case. Thus, it
is clear that Stache’s termination was motivated in part by his protected activity. However, the
company can still avoid liability by proving an affirmative defense. In this regard, the company
must show that even though Stache’s termination was motivated in part by his protected activity,
it was also motivated by his unprotected misconduct. See Robinette, 3 FMSHRC at 818 n.20.
The company must further show that Stache would have been terminated for his unprotected
misconduct alone, i.e. in the absence of the protected activity. Id.

35 FMSHRC Page 3444

Webster testified that Stache was terminated for his unprotected misconduct.22
Specifically, Webster testified that Stache was terminated for physically intimidating Webster by
throwing a pen at Webster’s face and by displaying unstable behavior.23 Complainant’s Ex. 2;
Tr. 88-89, 101. According to Webster, the pen was a projectile that could have harmed one of his
eyes. Moreover, after Stache threw the pen, Webster testified that Stache’s face was red and his
“eyes were wandering around.” Tr. 88-89. Webster testified that he feared that Stache, who
seemed unstable, was capable of throwing other objects, such as rocks or sticks, at him. Id.
Webster then immediately terminated Stache. Id.
The Commission has explained that an affirmative defense that the employee was
terminated for his unprotected misconduct alone should not be “examined superficially or be
approved automatically once offered” and that “pretext may be found . . . where the asserted
justification is weak, implausible, or out of line with the operator's normal business practices.”
Haro, 4 FMSHRC at 1938; Price, 12 FMSHRC at 1534. Taking cues from other federal statutes
on discrimination, the Commission analyzed the issue of pretext in Turner v. National Cement,
33 FMSHRC 1059, 1073, listing three ways in which a complainant can show that the operator’s
affirmative defense is not credible but rather a pretext for prohibited discrimination. First, a
complainant can establish that the employer’s proffered reason(s) have no basis in fact, that they
are factually false. Id. Second, a complainant can show that the proffered reason(s) did not
actually motivate the termination, i.e. the complainant admits the factual basis underlying the
employer’s proffered reason(s), and that such conduct could motivate dismissal, but attacks the
credibility of the proffered reason(s) indirectly by showing circumstances which tend to prove
that an illegal motivation was more likely than the legitimate business reason(s) proffered by the
employer. Id. Third, a complainant can show that the employer’s proffered reason(s) were
insufficient to motivate termination, i.e. other employees were not terminated even though they
engaged in conduct substantially similar to that which formed the basis of complainant’s
termination. Id.
Stache primarily sought to use the first approach to demonstrate pretext. In this regard,
Stache sought to prove that the company’s proffered reason for his termination, that he engaged
in physical intimidation by throwing a pen at his supervisor and by displaying ensuing unstable
behavior, was factually false. The court will also consider whether Stache could have used the
second approach to demonstrate pretext, by proving that the company’s affirmative defense did
not actually motivate termination. Turner, 33 FMSHRC at 1073. However, the court concludes
22

As stated earlier, Webster argued that Stache was terminated solely for his unprotected
misconduct, rather than arguing Stache was terminated for both protected and unprotected
activity. Complainant’s Ex. 2, at 2; Tr. 88-89.
23

The un-contradicted evidence indicates that the pen was thrown at Webster’s face.
Webster testified that the pen flew across his face and narrowly missed hitting him. Tr. 82-83.
Stache testified that he threw the pen at the windshield of Webster’s truck. Tr. 31-32. Since it is
undisputed that Webster was standing in front of his truck at the time, it is clear that the pen was
thrown in Webster’s direction, at the same height as the truck’s windshield. Tr. 32, 82-83.
Therefore, based on both parties’ testimony, the court finds it reasonable to conclude that the pen
was thrown at Webster’s face.

35 FMSHRC Page 3445

that it is unnecessary to consider whether Stache could have used the third approach to prove
pretext as Stache did not argue that the company’s affirmative defense was insufficient to
motivate termination. In this regard, Stache did not provide any evidence of disparate treatment,
i.e. that other employees were not terminated despite engaging in the misconduct at issue.
TURNER FIRST APPROACH
Under the first approach in Turner, 33 FMSHRC at 1073, Stache sought to prove that
Alvin Coleman’s affirmative defense was factually false. Stache claimed that since he threw the
pen after his termination, it could not have been a basis for his termination, and he was actually
terminated solely for making protected complaints during and before the August 8 conversation.
Tr. 32. Webster responded by alleging that Stache, who he claimed threw the pen before his
termination, was terminated for throwing the pen and for his ensuing unstable behavior, not for
his protected activity. Complainant’s Ex. 1-2; Tr. 88-89. As indicated below, the court finds that
Stache’s testimony that he threw the pen after his termination is not credible.
First, the notice of termination, presumably written on August 8, 2012, corroborates the
company’s position that Stache was terminated for throwing the pen and for his ensuing unstable
behavior. In the termination notice, Webster wrote “[Stache] threw his pen at me and refused to
sign violation paper. David has a temper and I’m all done with that. I fired him at 3:15 p.m. 8-812.”24 Complainant’s Ex. 2, at 2. While neither party addressed when the notice of termination
was written, it is reasonable to infer that it was written immediately following the termination.
Therefore, the contemporary notice of termination deserves more weight than Stache’s testimony
at a hearing nine months later.
Second, Stache’s failed attempt to minimize the misconduct that led to his suspension
harms his credibility. During direct examination, Stache implied that since he was neither trained
nor instructed to check emergency steering, his suspension on August 8 was wrongful. He
claimed that the DVIR, which lists steering but not emergency steering, fails to instruct drivers to
check emergency steering. Tr. 15-16, 104-05. However, on cross-examination, Stache conceded
that on August 8, he knew the proper procedure for inspecting emergency steering but failed to
inspect it due to time constraints, testifying that “the proper procedure to check the emergency
steering is to shut down the vehicle. And due to production, I didn’t have time to shut the truck
off to do that procedure. That was the next step.” Tr. 68. Stache’s knowledge of the proper
procedure for inspecting emergency steering suggests that he was properly trained to inspect his
truck. Stache also conceded that he should have inspected emergency steering on August 8,
testifying “Yeah. I should have checked it.” Tr. 69. Stache’s own testimony thus indicates that he
was trained, and knew that he was required to inspect emergency steering, contradicting his
earlier claim that he was neither trained nor instructed to check emergency steering.

24

While Webster noted that he terminated Stache at 3:15 p.m., Stache testified that
Webster approached his truck at approximately 3:15 p.m., implying that Stache was terminated a
few minutes after 3:15 p.m. Given that the precise time of termination is not determinative, the
court, as explained earlier, will rely on Stache’s testimony regarding the times for specific
events.

35 FMSHRC Page 3446

Stache’s failed attempt to minimize the misconduct for which he was suspended
undermines the credibility of his attempt to again minimize his misconduct, this time the
misconduct for which he was terminated. In the former situation, Stache argued that he was not
trained or unaware that he had to inspect emergency steering. In the latter situation, Stache
argued that he threw the pen after his termination. The court finds that these two attempts by
Stache to minimize his misconduct are strikingly similar. In both situations the alleged
misconduct resulted in a disciplinary action, and Stache sought to minimize his misconduct at the
hearing. In addition, in both situations the company disputed Stache’s attempts to minimize his
misconduct, arguing respectively that Stache was trained and aware of his duty to inspect
emergency steering, and that the pen was thrown before his termination. Given the similarity
between these two situations, it is reasonable to infer that if Stache’s excuse regarding his failure
to inspect emergency steering is not credible, his claim that he threw the pen at Webster after his
termination is similarly not credible.
For the reasons above, the court finds that Stache’s testimony that he threw the pen after
his termination is not credible. Instead, the court credits Webster’s testimony that Stache threw
the pen prior to his termination since Webster was a forthright, credible witness whose testimony
is corroborated by the contemporary notice of termination. Accordingly, the court finds that
Stache failed to prove that the company’s affirmative defense was factually false.
TURNER SECOND APPROACH
Under the second approach in Turner, Alvin Coleman’s affirmative defense can be found
to be pre-textual if the evidence shows that the alleged misconduct was not substantial enough to
credibly motivate termination. See Turner, 33 FMSHRC at 1073-77. In Turner, the Commission
implicitly used the Bradley factors to determine the substantiality of an affirmative defense. Id.
In Bradley, the Commission recognized that in order to determine whether an operator would
have “disciplined the miner anyway for the unprotected activity alone,” a judge must consider
“past discipline consistent with that meted out to the alleged discriminatee, the miner’s
unsatisfactory past work record, prior warnings to the miner, or personnel rules or practices
forbidding the conduct in question.” 4 FMSHRC at 993. As shown below, the court finds that
Stache’s misconduct, his physical intimidation of a supervisor, was substantial enough to
motivate Stache’s termination and thus was not pre-textual.
First, the court assesses whether the record establishes that the company previously
terminated other employees for intimidating a supervisor, and the court finds that it does not. The
company provided five examples of employees who were suspended in the past. Resp’t Ex. 1.
However, none of these employees physically intimidated a supervisor, or were terminated for
their misconduct. Id. Therefore, the court finds that none of them were similarly situated as
Stache or received the same discipline as Stache.25 Id.

25

Respondent’s Exhibit 1 is comprised of five notices of suspension, issued for offenses
of absenteeism, unsafe driving, unsafe use of equipment, failure to follow instructions, and
unsafe use of equipment respectively.

35 FMSHRC Page 3447

Second, the court assesses Stache’s past work record. At the time of his termination,
Stache had worked approximately four years for the company. Discrim. Compl. To MSHA
(Sept. 6, 2012). Webster, Stache’s supervisor since April 2009, testified that Stache was a good,
hardworking employee who, prior to his suspension on August 8, 2012, had only been
disciplined once, several years prior to his August 8 suspension, for guarding issues at a crusher.
Tr. 98. Therefore, the court concludes that Stache had a satisfactory past work record with the
company.
Third, the court assesses whether Stache received any prior warnings from the company
for insubordination, the misconduct for which he was terminated. There is no evidence that
Stache was ever previously warned about insubordination. Tr. 98.
Fourth, the court assesses whether any personnel rules or policies prohibited the
misconduct at issue. In this regard, although the company failed to submit a copy of its official
policy on employee misconduct, the disciplinary forms used by the company list unsafe behavior
and insubordination as grounds for discipline. Resp’t Ex. 1. It is reasonable to infer that physical
intimidation of a supervisor would be prohibited generally as unsafe behavior, and specifically as
insubordination.
Fifth, the court assesses the nature of the employee’s misconduct.26 Stache’s misconduct,
throwing a pen at his supervisor’s face, can be characterized either as a form of extreme
insubordination or extreme intimidation. As compared to lesser forms of insubordination such as
a failure to follow instructions, or lesser forms of intimidation such as making an obscene
gesture, Stache engaged in extreme misconduct by not merely ignoring instructions or making
gestures but by angrily throwing a projectile at his supervisor. Webster’s post-hearing letter to
the court (July 15, 2013); Complainant’s Ex. 2, at 2. The court credits and finds reasonable
Webster’s fear that the pen could have potentially blinded him, and that Stache, after throwing
the pen, might start throwing other objects such as rocks or sticks. Tr. 88-89. As stated
previously, the court found that Webster was a forthright witness and the court notes that Stache
failed to dispute the potential harm to Webster, or Webster’s contention that Stache seemed
unstable.
Weighing all of the factors, the court finds that Stache’s misconduct was substantial
enough, by itself, to credibly motivate his termination. In this regard, while the court recognizes
that Stache’s work record was satisfactory and that the company failed to provide evidence of
prior similar terminations of other employees or prior warnings to Stache for insubordination, the
court cannot overlook the extreme nature of Stache’s misconduct, which could have resulted in
lasting harm to his supervisor. Therefore, the court finds that Stache would have failed to show
that the company’s affirmative defense was pre-textual under the second approach in Turner.

26

This factor is not explicitly enumerated in Bradley, 4 FMSHRC at 993. However, since
the Bradley factors are not exhaustive, the court can consider other factors that will allow the
court to determine the substantiality of the affirmative defense. Id.

35 FMSHRC Page 3448

PROVOCATION
Finally, the court will consider whether Alvin Coleman’s affirmative defense should fail
because the misconduct for which Stache was terminated was provoked by the company’s
misconduct. The Commission has recognized that wrongful provocation by an employer may be
grounds for excusing an employee’s misconduct:
Even if the judge determines that [the employer] has established
the elements of its affirmative defense, the question remains
whether that defense must nevertheless fail because [the
employee’s] conduct was provoked . . . [I]n many cases decided
under the National Labor Relations Act, 29 U.S.C. § 141 et seq.
(1994) (“NLRA”), courts have recognized that an employer cannot
provoke an employee into an indiscretion and then rely on that
indiscretion as grounds for discipline . . . . The question thus
remains for the judge to determine on remand whether [the
employee’s misconduct] was provoked by [the employer’s]
response to his protected [activity]. The judge must also determine
whether the particular facts and circumstances of this case, when
viewed in their totality, place [the employee’s] conduct within the
scope of the “leeway” the courts grant employees whose “behavior
takes place in response to [an] employer’s wrongful provocation. If
[the employee’s] conduct was provoked and excusable, [the
employer’s] affirmative defense must fail.”
Sec’y of Labor on behalf of Bernardyn v. Reading Anthracite (“Bernardyn I”), 22 FMSHRC
298, 305-08 (Mar. 2000) citing in part Trustees of Boston Univ. v. NLRB, 548 F.2d 391, 393 (1st
Cir. 1977); see also Sec’y of Labor on behalf of Bernardyn v. Reading Anthracite (“Bernardyn
II”), 23 FMSHRC 924, 935-39 (Sept. 2001); see also NLRB v. M & B Headwear Co., 349 F.2d
170, 174 (4th Cir. 1965). 27
The Commission in Bernardyn I recognized that to assess a claim of provocation, the
court must resolve two issues. First, the court must resolve whether the employer wrongfully
provoked the employee. In Bernardyn I, 22 FMSHRC at 306, the Commission implied that the
alleged provocation must consist of wrongful and unjustified employer conduct, recognizing that

27

In Bernardyn I, the Commission vacated and remanded the Administrative Law
Judge’s decision. The Judge then issued a decision on remand. After granting the Secretary’s
petition for discretionary review of the judge’s remand decision, in Bernardyn II, the
Commission vacated and remanded the judge’s remand decision. Bernardyn II, 23 FMSHRC at
924.

35 FMSHRC Page 3449

“other courts . . . have found layoffs, based ostensibly on vulgar employee outbursts to be
improper where the employee’s conduct was provoked by unjustified employer action.”28
Second, assuming wrongful provocation, the court must resolve whether the employee’s
misconduct after being provoked was excusable, i.e. whether, under the circumstances of the
case, the employee’s misconduct in response to the employer’s provocation fell within the
leeway courts grant such employees. Bernardyn I, 22 FMSHRC at 307-308.
Regarding whether Webster wrongfully provoked Stache’s misconduct, Stache argued
that Webster engaged in wrongful conduct on four occasions during the conversation on August
8, which could have contributed to Stache’s emotional outburst minutes later. The evidence
suggests that Webster’s conduct on the first three occasions was not wrongful, but that his
conduct on the fourth occasion was wrongful, and provoked Stache into throwing the pen.
First, Stache argued that his two day suspension for failing to inspect or report defective
emergency steering was unjustified. Tr. 15-16, 104-05. However, as discussed earlier, the
company, which required employees to inspect and report defective equipment in their DVIRs
daily, clearly prohibited the misconduct for which Stache was suspended. Tr. 68-69, 80-81.
Moreover, the company had repeatedly warned employees at safety meetings in March and April
2012, which Stache attended, that if their unsafe behavior resulted in a citation, they would be
suspended. Resp’t Ex. 2-3. Therefore, the court finds that Webster justifiably suspended Stache,
and that the suspension was not wrongful provocation.
Second, Stache argued that Webster wrongly scolded him for allegedly costing the
company $5,000. Tr. 18-23. This caused Stache, who mistakenly believed that he might have to
pay a personal fine of $5,000, to become very nervous about other safety issues on his truck
which he feared also might result in other personal fines. Tr. 18. At the hearing, Webster
conceded that the proposed penalty for the citation was later assessed as $100. Tr. 103. However,
Webster’s explanation that he estimated the penalty would be $5,000 because of the company’s
history of prior violations was undisputed. Tr. 103. Since Stache failed to show that Webster’s
penalty estimate was unreasonable, and since Stache’s own mistaken belief that he would be
personally fined $5,000 contributed to his emotional state, the court finds that Webster’s conduct
was not wrongful, and did not provoke Stache into physically intimidating Webster.
Third, Stache argued that Webster wrongly asked him to sign the notice of suspension
without explaining why his signature was required. Tr. 17-18. However, the notice of suspension
clearly states that an employee must acknowledge receipt of the disciplinary form by signing it,
and clarifies that the employee’s signature is not an admission of employee misconduct.
Complainant’s Ex. 2, at 1. Given the clear language of the form, Webster need not have orally
explained to Stache why the signature was required; by simply glancing at the form, Stache
would have understood his signature’s purpose. Therefore, the court finds that Webster did not
engage in wrongful conduct by asking Stache to sign the notice of suspension
28

See also Bernardyn II, 23 FMSHRC at 938 where the Commission stated that “if the
judge finds it necessary to reach the provocation issue on remand, he must revisit his
determination that [the employer’s] instruction to [the complainant] to speed up was not
wrongful.”

35 FMSHRC Page 3450

Fourth, Stache argued that Webster’s characterization of his complaint regarding the
broken seat as “petty” was degrading and unjustified. Tr. 18, 30-31. During their conversation on
August 8, Stache complained that the adjustment tool for the backrest of the driver’s seat was
broken. Tr. 18, 70-71, 97. He believed that the inability to adjust the backrest was hurting his
back. Tr. 70-71. In response, Webster, who viewed the broken adjustment tool as more of a
comfort issue than as a safety issue, told Stache that he was not going to fix “petty ante stuff.”
Tr. 18, 30-31, 101-02. Stache’s complaint about the broken seat was a protected complaint under
the Mine Act, and at the hearing, Webster conceded that on August 14, 2012, an MSHA
inspector confirmed that the adjustment tool for the backrest of the driver’s seat was indeed
broken. Tr. 101. The protected complaint regarding the broken seat should not have been
characterized as “petty,” a comment that angered Stache, leading to the conversation becoming
heated and eventually resulting in Stache angrily throwing a pen at Webster. Tr. 30-31. The court
finds that Webster’s “petty” comment was wrongful conduct that directly provoked Stache into
committing the misconduct for which he was terminated. However, this does not end the inquiry.
Regarding whether Stache’s physical intimidation of Webster was excusable, the court,
similar to the Commission, relies on decisions by the U.S. Courts of Appeals regarding when,
under the National Labor Relations Act, an employee’s misconduct is excusable due to the
employer’s provocative conduct. Bernardyn I, 22 FMSHRC at 306-308. In this regard, the
Commission has relied on the First Circuit decision in Trustees of Boston Univ. v. NLRB, 548
F.2d at 393, which distinguished between minor employee misconduct, i.e. cursing, which may
be excusable, and major employee misconduct, i.e. physical intimidation, which is rarely
excusable. Id., see Trustees, 548 F.2d at 393, 393 n.4 citing Florida Steel Corp. v. NLRB, 529
F.2d 1225 (5th Cir. 1976) (“[c]ourts have been unwilling to overlook blatant misconduct such as
physical intimidation.”)
The Eighth Circuit succinctly stated:
An employer may not provoke an employee and then rely on the
employee’s intemperate response as a ground for not reinstating
him . . . . Yet, an employee is not free to engage in wanton conduct
following an unlawful discharge and then hide behind the Act’s
protections . . . . As always in cases such as this, the question is
where to draw the line as to the type of conduct that forfeits an
employee’s right to reinstatement . . . . Courts may allow certain
indiscretions by employees who are wrongfully terminated, but
they cannot overlook blatant misconduct such as threats of
violence and physical intimidation. 29

29

In Precision, the employee’s provoked misconduct occurred after his termination.
However, the analysis in Precision regarding when an employer’s wrongful provocation excuses
an employee’s subsequent misconduct is applicable to cases where the employee’s misconduct
occurs prior to his termination. Precision, 963 F.2d at 1108.

35 FMSHRC Page 3451

Precision Window Manufacturing v NLRB, 963 F.2d 1105, 1108 (8th Cir. 1992)
citing Trustees, 548 F.2d at 393 n.4.
When Stache angrily threw a pen at Webster’s face, he engaged in blatant misconduct
that could have partially blinded his supervisor. This is the type of conduct that lies outside the
leeway courts grant employees whose misconduct was provoked by the employer. In addition,
the court notes that Stache’s misconduct was disproportional to Webster’s provocation. While
the court agrees with Stache that Webster’s “petty” comment was wrongful, the court cannot
condone employee conduct that could have resulted in lasting harm to his supervisor.
For the reasons stated above, the court finds that while Stache’s physical intimidation of
Webster was provoked, his blatant misconduct was not excusable, and that Alvin Coleman’s
affirmative defense survives Stache’s allegation of provocation.
CONCLUSION
In conclusion, the court finds that Stache established a prima facie case of discrimination
under section 105(c)(3) of the Mine Act. The court also finds that Alvin Coleman affirmatively
defended its termination of Stache. Therefore, based on a thorough review of the record, the
court concludes that Stache failed to prove, by a preponderance of the evidence, that Alvin
Coleman discriminatorily terminated him in violation of section 105(c) of the Act.
ORDER
Having concluded that David Stache has not established that he was unlawfully
discriminated against, the court DISMISSES his complaint and this proceeding.

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge

Distribution (certified mail):
David A. Stache, P.O. Box 394, West Ossipee, New Hampshire 03890-0394
Russell “Butch” Webster, Alvin J. Coleman & Son, Inc., 9H Route 113, Conway, New
Hampshire, 03818
/DM

35 FMSHRC Page 3452

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
th
721 19 Street, Suite 443
Denver, CO 80202-2536
303-844-3577/FAX 303-844-5268

November 19, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner,
v.
ANDALEX RESOURCES, INC.,
Respondent.

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. WEST 2008-1151
A.C. No. 42-02028-152062-01
Aberdeen Mine

Appearances: Francesca Cheroutes, Esq., and Amanda K. Slater, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for Petitioner;
Jason W. Hardin, Esq., and Rachel S. Anderson, Esq., Fabian & Clendenin, Salt
Lake City, Utah, for Respondent.
Before:

Judge Manning
DECISION

This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor acting through the Mine Safety and Health Administration (“MSHA”),
against Andalex Resources, Inc. pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act”). The parties introduced testimony and
documentary evidence at a hearing held in Salt Lake City, Utah, and filed post-hearing briefs.
At the time the citations and orders were issued, Andalex operated the Aberdeen Mine in
Carbon County, Utah. The mine is now closed. Andalex is owned by Murray Energy
Corporation through its subsidiary, UtahAmerican Energy, Inc. This case included 20 citations
and orders, but the parties settled 15 of these items. Three section 104(d)(2) orders and two
section 104(a) citations were adjudicated at the hearing. The Secretary proposed a total penalty
of $197,267.00 for the five adjudicated items.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Order No. 7287490
On May 8, 2007, MSHA Inspector Barry Grosely issued Order No. 7287490 under
section 104(d)(2) of the Mine Act alleging a violation of section 75.400 of the Secretary’s safety
standards. (Ex. G-2). The order alleged that Andalex permitted combustible material to
accumulate along the 12 East Longwall section belt from the head roller to the box check

35 FMSHRC Page 3453

stopping. There were accumulations of float coal dust throughout that area which covered the
ribs, belt structure, water lines, belt drive motors, and take-up. The float dust was black in color,
dry, and covered equipment with a uniform layer of float dust that was as thick as three sheets of
paper. The order also stated that the pulley clusters of the belt take-up were covered with grease
and coal fines and several of the roller shafts were wrapped with belt carcass string. In addition,
loose coal was deposited upon the mine floor under the take-up, drives, and in the walkway. The
loose coal ranged in depth from 0.5 foot to 1.5 feet, and some areas of the loose coal were
covered with rock dust from previous applications. Finally, the order alleges that accumulations
of loose coal contacted a moving belt and a spinning bottom roller. This belt was on top of the
overcast where the belt line crosses the main return entry. The pile of loose coal measured 1.4
feet deep, 15 feet long, and 4 feet wide.
Inspector Grosely determined that an injury was reasonably likely to occur and that such
an injury could reasonably be expected to result in lost workdays or restricted duty. Further, he
determined that the violation was significant and substantial (“S&S”), the operator’s negligence
was high, and that seven persons would be affected. Section 75.400 of the Secretary’s
regulations requires that “[c]oal dust, including float coal dust deposited on rock-dusted surfaces,
loose coal, and other combustible materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on diesel-powered and electric equipment therein.” 30 C.F.R.
§ 75.400. The Secretary proposed a penalty of $60,000 for this alleged violation.
For the reasons set forth below, I affirm Order No. 7287490, including the inspector’s
S&S and unwarrantable failure determinations, but I find that less than seven miners would have
been affected by the violation.
1. Summary of Evidence
On March 1, 2006, MSHA sent a letter to each mine operator in the MSHA Coal District
9, informing them that MSHA would be conducting inspections along belt lines. (EX G-17, Tr.
27). Belt lines had been identified for inspection because MSHA believed that coal dust
accumulations cause belt fires. (Tr. 28). During an inspection of the Aberdeen mine completed
by Inspector Grosely in November 2006, he issued a number of citations for accumulations along
the beltlines. (EX G-18, Tr. 29). In a discussion with mine managers, Inspector Grosely said
that, given the company’s violation history and the citations that were issued during that
inspection, Aberdeen needed to take additional steps to remove accumulations along its belt
lines. (Tr. 31).
Inspector Grosely returned to the mine on May 1, 2007, to conduct a quarterly inspection.
(Tr. 36). He noted that according to MSHA’s records, numerous section 75.400 citations had
been issued at the Aberdeen Mine. (Tr. 37). In a pre-inspection meeting held on May 1, with
foremen, examiners, and superintendents, Inspector Grosely notified them that he would be
looking for accumulations along belt lines. (Tr. 38-41).
Inspector Grosely issued Order No. 7287490 on May 8, 2007, because he found
accumulations of combustible material. (Tr. 42). Surfaces of equipment, ribs, the floor, belt
drive motors, and pipelines in an area between crosscut 28 on the main line and crosscut 3 on 12

35 FMSHRC Page 3454

East, a distance of 600 feet, was covered with float coal dust. (Tr. 42-43). In addition, there was
loose coal on the mine floor, under the take-up, under the drive area, and in the walkway. (Tr.
43). The loose coal had accumulated up to a depth of 1.5 feet and was in contact with the
moving belt and spinning rollers. Id. Float coal dust had accumulated in some of the recessed
areas, which indicated to the inspector that the condition had existed for several days. (Tr. 4546). The coal was dry and black in color. (Tr. 46). Inspector Grosely determined that float coal
dust was present by scraping a little off a structure, forming a pile and noting that the material
did not support weight. Id. He also saw that there were coal fines. Id. Coal fines and loose coal
were in contact with the moving belt and spinning rollers for a length of approximately 15 feet,
which is a problem because frictional heat can cause ignition. (Tr. 49-50). The belt was moving
at approximately 600 to 650 feet per minute. (Tr. 51). Previous accumulations had been rock
dusted and covered with new accumulations that were not rock dusted. Id. The inspector
determined that much of the dust he observed was float coal dust and not a mixture of float and
rock dust given the very fine particle size and the concentration of the color: dark gray to black.
(Tr. 52).
No hazardous conditions were noted in the pre-shift examination book, although there
were notations that seemed to indicate spillage was present. ( Tr. 55-57; Ex. G-4). The 12 East
belt was running at the time of the inspection, but was only running intermittently because there
had been a bounce in the 12 East longwall face. (Tr. 58-59; Ex. G-4). The Aberdeen mine
experiences bounces near the face, in the headgate and tailgate areas, and in the yield pillars. (Tr.
181). There was a bounce on the morning of May 8, 2007 at 5:32 a.m. (Tr. 182). It is possible
that a bounce could push a stage loader or the mobile tailpiece and cause the 12 East belt to come
out of alignment. (Tr. 182-83). Such movement could cause coal to spill off a belt. (Tr. 183).
The inspector believed that the accumulations cited in the order were unrelated to the bounce
because any accumulation caused by the bounce would be thrown or blown out of the tailgate or
into the bleeder given the airflow of the mine. (Tr. 60, 62-63).
Inspector Grosely marked the violation as S&S because, if uncorrected, the condition
would be reasonably likely to result in a fire because the accumulations were in contact with the
moving belt. (Tr. 63-64). A fire would likely lead to a serious injury. (Tr. 63, 67-68). Inspector
Grosely indicated that seven persons would likely be affected because that is how many people
were working in the longwall section. (Tr. 65). Although the accumulations were 1,000 feet
away from the longwall at that time, a mine fire could destroy ventilating devices and expose the
miners to smoke. Id. In fact, if there were a mine fire, it could affect miners working on other
belts as well. (Tr. 66). The injuries would most likely lead to lost work days or restricted duty
because a mine fire would expose the miners to heavy smoke. (Tr. 67). While miners wear selfcontained self-rescuers, the smoke would initially affect them. Id. Aberdeen’s negligence was
considered high because a number of similar citations were previously issued, the condition was
obvious, the operator should have known about the condition or had reason to know of the
condition, and it took some time for the accumulation to form. (Tr. 69-70). Given the fact that
the accumulations had layers of rock dust in them, the operator had merely covered the
accumulations with more rock dust rather than removing the accumulations. (Tr. 71).
In examining the area, Inspector Grosely said that the accumulations presented an
obvious hazard and that any trained miner would see that the condition created a hazard. (Tr.

35 FMSHRC Page 3455

74). Because the operator had been given notice several times and approximately 63 section
75.400 citations had been issued in the previous 15 months, there was a serious lack of
reasonable care. (Tr. 75-76). To abate the citation, seven to ten men cleaned this area for
approximately 9.5 hours, which demonstrates the seriousness of the violation. (Tr. 78-79).
Inspector Grosely also testified that he had repeatedly discussed the seriousness of
accumulations and the need to remove them with mine management. (Tr. 328). Inspector
Grosely advised management that repeated violations of the safety standard would eventually
lead to the issuance of flagrant violations. Id. Andalex was on notice and was not confused
about the requirements of the safety standard. (Tr. 329).
The inspector acknowledged that Andalex had numerous water sprays along the belts
starting at the longwall shearer to suppress dust. (Tr. 173-74). Inspector Grosely determined that
the accumulations were dry, however, by squeezing a handful of coal accumulations to see if
water could be extracted. (Tr. 179).
Andalex safety manager Jim Poulson testified that when Murray Energy bought Andalex,
the interest in fire prevention increased dramatically. (Tr. 352). He recognized that
accumulations caused by spillage were an ongoing problem and such accumulations could occur
over a very short period of time. (Tr. 405). When Andalex received information about MSHA’s
belt initiative, it initiated SCSR training and inspections, initiated escapeway drills, built teams
for fire responses, verified the escapeways, and examined all the fire hoses. (Tr. 355-56).
Andalex also checked the atmospheric monitoring system, which measures carbon monoxide
(CO) and methane levels, and created a PowerPoint presentation to explain how to deal with and
avoid accumulations. (Tr. 356).
Poulson testified that if a fire started in the 12 East box check area, miners could use the
primary or secondary escapeway . (Tr. 366). As long as the ventilation controls worked
properly, the primary escapeway and the cited areas were ventilated by different air courses. Id.
Another way miners could escape was to cross the longwall face and exit the tailgate. (Tr. 370).
Poulson also said that there were CO monitors installed downwind from the head drive,
in the drive area, in the take-up area, just before the box check, and just past crosscut 3. (Tr. 37274). An employee on the surface continuously observed these monitors. (Tr. 374). There was
also a fire suppression system between the box check and the main line transfer point. (Tr. 37677). Hoses, nozzles, and two 10-pound fire extinguishers were located throughout the belt drive.
(Tr. 377).
Poulson testified that seven people would not have been injured or affected by the alleged
violation. (Tr. 419). The miners had extensive training, they knew the escapeway routes and
they knew how to safely fight fires. (Tr. 420). At most one person could get injured from smoke
inhalation. Id.
Guy Mills, a shift foreman, testified that the 12 East drive take-up area was a high
maintenance area. (Tr. 484). During the graveyard shift on May 5, 2007, 1,848 tons of coal
were mined and a bounce occurred during the shift. (Tr. 493; Ex. R-10 p. 2). Following the

35 FMSHRC Page 3456

bounce, miners cleaned and fixed equipment. Id. From 4:00 a.m. to 6:58 a.m. there was a full
coal pass, which included some downtime. (Tr. 494-95). The last half pass was from 6:58-7:12
a.m. (Tr. 495). Completing half a pass in 20 minutes would overload the belt and cause
significant spillage from the head roller to the tail and accumulations in the box check. (Tr. 496).
Because their shift was nearly over, the crew wanted to switch out at the headgate in order to
leave earlier. When coal comes into the box check and the belt is overloaded, the coal will hit
the rubber flap throwing the coal off the belt. (Tr. 497). From approximately 5:00 a.m. to the
end of the shift, accumulations would have developed very quickly. (Tr. 498).
2. Discussion and Analysis
Resolving the issues with respect to this order and the following two orders requires
making credibility determinations. Inspector Barry Grosely holds an associate’s degree in
geology from Brigham Young University and a bachelor’s degree in mining engineering from the
University of Utah. Before becoming an MSHA inspector, he worked in various positions at
several underground coal mines. As a mining engineer, he helped design belt systems and helped
develop and ensure compliance with roof control plans. (Tr. 12-15). He operated various pieces
of equipment in an underground coal mine. (Tr. 15). He holds mine foreman and fire boss
certifications from the State of Utah. He has been an MSHA inspector since 1999 and was
familiar with the Aberdeen Mine before the inspections at issue in this case.
Jim Poulson, safety manager at the mine, also has extensive experience in the coal mining
industry. He started in the mid-1970s and has held various positions in maintenance departments
at several mines. He transferred to the ‘safety arena” in about 1999. (Tr. 348). He has
experience developing firefighting plans for underground coal mines and he was involved with
extinguishing a “thermal event” at a coal mine. (Tr. 349-50). He started working at the
Aberdeen Mine in July 2004.
One of the key issues for this order is the cause of the accumulations. Did the coal, coal
fines, and float coal dust accumulate over time as testified to by the inspector or were these
accumulations present as a result of a bounce that occurred at 5:30 a.m. that morning and the
overloading of the belt by the previous crew? Based upon his knowledge and experience and the
physical condition of the accumulations, I credit the testimony of Inspector Grosely with respect
to this order including his determination that the accumulations were not suddenly created but
had gradually developed over time.
Inspector Grosely arrived at 12 East Longwall Section Belt and observed 600 feet of coal
accumulations and float coal dust that was two to three sheets of paper thick over all the
machinery. The conditions were obvious and had formed over a period of days. Inspector
Grosely found an ignition source where coal accumulations contacted spinning rollers. When he
issued the order, the belt was running at 600 to 650 feet per minute. When he touched the rollers,
he found that they were “slightly warm.”
Andalex was aware of the accumulations before the order was issued. The pre-shift
examination book noted that a single miner was sent to clean the accumulations, however, there

35 FMSHRC Page 3457

were no notations indicating that the miner did so. A reasonably prudent person would have
recognized that these accumulations were hazardous and required immediate attention.
Inspector Grosely determined that the bounce was not responsible for the accumulations
he observed because he did not see any accumulations between the longwall face and the cited
area, the airflow would have carried accumulations resulting from a bounce through the return
rather than the head pulley, and there would not have been layers of rock dust in the
accumulation piles. It took seven to ten miners over nine hours to clean up the accumulations.
I reject Andalex’s argument that the cited accumulations would not ignite because the
float cold dust was not suspended in the air and could not propagate a fire. I also reject its
position that, because water sprays were used to keep coal upon the belts wet, a fire could not
have started. I also do not credit Andalex’s position that no miners would have been injured if a
fire were to start.
I also find that the violation was S&S. Andalex violated the safety standard and this
violation created the discrete safety hazard of smoke and fire. The Secretary established that it
was reasonably likely that the hazard contributed to by the violation would have resulted in an
event in which there was an injury. All elements of the fire triangle were present; there was fuel,
oxygen, and an ignition source. Coal fines and loose coal were in contact with the moving belt
and spinning rollers in one location. The material was dry. Although the rollers were apparently
not hot to the touch at the time of the inspection, they were warm and, assuming continued
mining operations, they could get hot enough to ignite the coal fines. Smoldering coal can
propagate a larger fire and miners would likely be injured by exposure to the fire or while
fighting the fire. I find that there was a confluence of factors that made an injury-producing fire
reasonably likely. The accumulations were extensive and had been present for some time,
Andalex made little effort to remove the accumulations, and there was an ignition source. The
Secretary is not required to establish that the hazard contributed to by the violation is “more
probable than not” in order to establish the third element of the Mathies test. U.S. Steel Mining
Co., 18 FMSHRC 862, 865 (June 1996). I credit the testimony of Inspector Grosely that the
bounce did not significantly contribute to the accumulations. Any injury was reasonably likely
to be of a reasonably serious nature. Smoke inhalation was the most likely injury, which can
result in lost workdays or restricted duty.
Carbon monoxide monitors and water sprays were present along the belts. CO monitors
detect an increase in the concentration of carbon monoxide and the water sprays suppress or
control a fire until miners trained to fight fires can arrive at the scene. Smoldering coal increases
the level of carbon monoxide which will set off the CO monitors if the monitors are functioning
properly. Andalex argues that the presence of water sprays and CO monitors made it unlikely
that anyone would be injured if the accumulations started to burn or smolder with the result that
the inspector’s S&S determination should be vacated. The Commission, relying in part on Buck
Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995), has rejected arguments that the presence of
safety systems, such as carbon monoxide detectors and fire suppression systems, should
automatically negate an S&S finding. AMAX Coal Company, 19 FMSHRC 846, 849 (1997);
Cumberland Coal resources, LP., 33 FMSHRC 2357, 2369 (2011); Big Ridge Inc. 35 FMSHRC
1525, 1529 (June 2013). The Commission reasoned that “adopting [the mine operator’s]

35 FMSHRC Page 3458

argument that redundant, mandatory protections provide a defense to a finding of S&S would
lead to the anomalous result that every protection would have to be nonfunctional before an S&S
finding could be made.” Cumberland Coal Resources, 33 FMSHRC at 2369.
With respect to gravity, I find that it was unlikely that every miner working in the section
would have been affected. Rather, the evidence establishes that only those miners who would be
dispatched to combat the fire would have suffered any injuries. I credit the testimony of
Respondent’s witnesses that the crew would have been able to escape from the mine in the event
of a fire. Only one or two miners faced a reasonable possibility of injury.
Finally, I find that the violation was the result of high negligence and the unwarrantable
failure of Andalex to comply with the safety standard. I credit the testimony of Inspector
Grosely on this issue. Although I do not doubt that Andalex had been taking steps to ameliorate
the hazards created by accumulations along its belt lines, it had not done enough to prevent the
accumulations along the 12 East Longwall section belt on May 8, 2007.
The Commission has defined an unwarrantable failure as aggravated conduct constituting
more than ordinary negligence and it includes conduct that demonstrates a “serious lack of
reasonable care.” Emery Mining Corp. 9 FMSHRC 1997, 2004 (Dec. 1987). The analysis is
necessarily specific to the facts in each situation. I credit the testimony of the inspector that the
accumulations built up over a period of days. Although some of the accumulations may have
resulted from overloading the belts or from belts that had become misaligned that morning, much
of the material existed for a longer period of time. I also find that the accumulations were
extensive, as established by the testimony of Inspector Grosely. It took seven to ten miners about
nine hours to clean up the area. Andalex had been given notice that greater efforts were necessary
for compliance with section 75.400. Inspector Grosely’s testimony was detailed and persuasive
on this issue, as described above. Past violations of section 75.400 and previous discussions with
MSHA inspectors about accumulations provided notice to Andalex that greater efforts were
necessary to address accumulations along beltlines. Black Beauty Coal Co. v. FMSHRC, 703
F.3d 553, 561 (D.C. Cir. 2012); San Juan Coal Co. 29 FMSHRC 125, 131 (Mar. 2007).
The evidence also establishes that Andalex did not take any significant steps to remove the
accumulations prior to the issuance of the order. The preshift examination book indicated that a
single miner was dispatched to clean up the accumulations but the evidence demonstrates that
such efforts were woefully inadequate given the extensiveness of the violation. I find that the
evidence establishes that the violative conditions were extensive and obvious. The violation also
posed a high degree of danger if not corrected in a reasonable period of time. Respondent’s
management was put on notice of the violative conditions by the notation in the preshift
examination book. I find that Order No. 7287490 was the result of Andalex’s unwarrantable
failure to comply with section 75.400.
The Secretary based his proposed penalty for this order upon his special assessment
regulation. 30 C.F.R. § 100.5. MSHA’s “Special Assessment Narrative Form” in the file shows
the calculations for a regular assessment and a special assessment for this order. If the Secretary
had calculated the penalty using the regular assessment formula, the proposed penalty would have
been $20,302, but he proposed a $60,000.00 specially assessed penalty. I have reduced the

35 FMSHRC Page 3459

penalty to $45,000 taking into consideration the penalty criteria in section 110(i) of the Mine Act.
I reduced the gravity because the number of miners likely to be affected was not as great as
Inspector Grosely indicated.
B. Order No. 7287683
On June 7, 2007, at 9:55 a.m. Inspector Grosely issued Order No. 7287683 under section
104(d)(2) of the Mine Act, alleging a violation of section 75.400 of the Secretary’s safety
standards. (Ex. G-7). The order states that Andalex permitted combustible materials to
accumulate along the 12 East Longwall section belt from the return overcast to the box check
stopping and out the dogleg entry in 12 East. He estimated the distance to be about 600 feet.
The order states that there were significant accumulations of float coal dust in the cited area
which covered the ribs, floor belt structure, belt control box, water lines, belt drive motors, and
take-up. The float dust was black in color, dry, and it covered the equipment with a uniform
layer of float dust that was as thick as three to four sheets of paper. In addition, there were
accumulations of coal fines and loose coal compacted upon the steel frame of the belt take-up
structure which were in contact with the moving belt and spinning bottom rollers. Loose coal
was deposited upon the mine floor under the belt take-up area. The loose coal ranged in depth
from .5 foot to 1.0 foot. Finally, loose coal accumulations were in contact with the moving belt
and a spinning bottom roller on top of the overcast where the belt line crosses the main return
entry. The pile of loose coal measured 1.2 feet deep, 10 feet in length and 4-feet in width.
Inspector Grosely determined that an injury was reasonably likely to occur and that such
an injury could reasonably be expected to be permanently disabling. Further, he determined that
the violation was significant and substantial, the operator’s negligence was high, and that seven
persons would be affected. The Secretary proposed a penalty of $60,000 for this alleged
violation.
For the reasons set forth below, I affirm Order No. 7287683, including the inspector’s
S&S and unwarrantable failure determinations. This violation occurred in essentially the same
location as Order No. 7287490 about one month later.
1. Summary of Evidence
Inspector Grosely testified that he issued this order in the 12 East area of the Aberdeen
Mine called the “dogleg”. (Tr. 81). At first, Inspector Grosely thought he was having déjà vu:
the accumulations were in the same general area as the accumulations in Order 7287490,
discussed above, and were just as serious if not more serious. (Tr. 82). The black float coal dust
covered all surfaces between crosscut 28 and crosscut 3 in the dogleg, including the ribs, floor,
equipment, the drive, and take-up area. Id. The float coal dust obscured the original color of the
equipment structures. (Tr. 83). There were accumulations of grease upon the rollers and coal
fines were mixed with the grease upon the pulley clusters. (Tr. 84). Grease mixed with coal
provided fuel for a fire. (Tr. 85). These accumulations contacted the moving belts and rollers.
(Tr. 84). Under the belt were intermittent piles of loose coal. Id. The belt moved at
approximately 650 feet per minute. (Tr. 86). Inspector Grosely determined that the
accumulations were there for at least four hours or more. Id. The accumulations were obvious.

35 FMSHRC Page 3460

(Tr. 88). The accumulations crested over the bottom belt, which was riding upon and cutting into
these accumulations. (Tr. 89). The accumulations were compacted under the belt. Id. Inspector
Grosely testified that he was told that there had been a bounce. (Tr. 90). The bounce was said to
have happened at 9:48 a.m. and the order was issued at 9:55 a.m. (Tr. 91). Inspector Grosely
testified that he did not hear, feel, or sense a bounce when he was in the area. (Tr. 92).
Inspector Grosely determined that this violation was reasonably likely to result in an
injury because it was a fire hazard. (Tr. 103-04). At the time of the inspection, there was float
coal dust in the air; sprays for water were present, but they were not operating at the time. (Tr.
104). The amount of float coal dust in the atmosphere, along with heat, air, confinement, and
fuel, made it possible that there was enough float coal dust to create a “quick flash” of fire. (Tr.
107-08). If there was not such a flash, but a fire started by belt friction, the presence of
suspended float coal dust could exacerbate the fire. Id. If a mine fire had started, it was likely
that someone would be burned or suffer smoke inhalation.
The inspector believed that, in contrast to Order No. 7287490, the injuries associated with
the present order were likely to be permanently disabling. (Tr. 109). Seven people would have
been affected. (Tr. 110, Ex. G-8). Inspector Grosely did not observe anyone cleaning or signs
that any cleaning had recently taken place. (Tr. 112). The operator was highly negligent because
the violation was similar to the order Inspector Grosely issued on May 8 and the operator had
previously been on notice that greater efforts were required. Id. Inspector Grosely concluded
that the operator demonstrated a serious lack of reasonable care and indifference to the health
and safety of miners. (Tr. 113). Inspector Grosely found no mitigating circumstances. (Tr. 114).
He also found it unlikely that the bounce Andalex reported at 9:48 that morning created or
worsened the condition. Id. Five to ten men worked in the area for 4.5 hours to abate the
citation. (Tr. 115). The belt was intact and functioning, suggesting that the accumulations
developed over a period of time.
Jim Poulson’s testimony was essentially the same as it was with respect to Order No.
7287490. Poulson testified that seven people would not have been injured or affected. (Tr. 419).
The miners have extensive training, they know the escapeway routes, and the mine has
firefighting capabilities, fire protection systems, and appropriate ventilation. (Tr. 420).
Poulson testified that if a mine examiner discovers a belt spinning in coal, he is required
to shut the belt system down, proceed to the drive area to lock and tag it out, notify management
of the conditions, and then start removing the accumulations. (Tr. 427). If Inspector Grosely
found a belt spinning in coal and the pre-shift examinations said “none observed” it was likely
that the condition developed between the pre-shift exam and Inspector Grosely’s inspection. (Tr.
428).
Timothy Paul Blanton performed the pre-shift examination at the end of the graveyard
shift, between 4:00 and 7:00 a.m. in the morning. (Tr. 534). He examined the belt line and
called the “book room” to report that there were accumulations at the return overcast that needed
to be shoveled. Id. After the examination, he returned to the face where they were mining. Id.

35 FMSHRC Page 3461

Mr. Blanton also testified that, on June 7, the longwall shearer completed four-and-a half
passes and mined 3,136 tons of coal. (Tr. 537). The bounce occurred at 9:48 a.m. (Tr. 538). He
testified that the conditions in the box check were different from what he saw during his preshift
exam: previously there had not been coal in the box check and there had only been some
spillage three or four feet away from the belt. Id. Blanton reported that spillage needed to be
cleaned. (Tr. 542; Ex. R-3 p 27 of Inspector Grosely’s notes). Blanton’s notes stated “Shovel
return overcast,” which means that the accumulations he found were cleaned. (Tr. 544; Ex. R-3
penultimate page). Mr. Blanton told Inspector Grosely that he had not taken the belt out of
service earlier because he did not think the condition was a hazard. (Tr. 545).
2. Discussion and Analysis
I credit the testimony of Inspector Grosely as to the conditions he found during his
inspection. The accumulations of float coal dust and loose coal were all along the dogleg, belt,
and equipment in the same general area as the order he issued in May. I find that the Secretary
established a violation of section 75.400.
I also credit the inspector’s testimony that the float coal dust was so extensive that the
color of the framework for the belt was not discernible. The belt was running at 650 feet per
minute and no water sprays were on to address the float coal dust. The accumulations were in
contact with the moving belt and there were intermittent piles of coal underneath and above the
edges of the belt. Some of the accumulations were compacted under the belt structure and the
rollers were covered in coal fines and grease accumulations. Additionally, float coal dust was
suspended in the air. I find that these conditions were reasonably likely to result in permanently
disabling injuries; the violation was S&S. The Secretary established all four elements of the
Mathies test for the reasons discussed with respect to the previous violation. I find that any
injuries would most likely be permanently disabling. This violation was more serious than the
previous violation and more people could have potentially been injured.
I also find that the Secretary established that the violation was the result of Andalex’s
high negligence and unwarrantable failure to comply with section 75.400. I credit the testimony
of Inspector Grosely that the conditions he observed existed for some period of time because
accumulations were under the belt, the belt was running in the accumulations, and the edge of the
belt was rubbing in the accumulations. I find that, although the bump may have added additional
accumulations, the majority of the accumulations were present before the bump occurred. I
credit the testimony of Inspector Grosely in this regard. The accumulations were obvious,
extensive, had been present for significantly longer than four hours, and Andalex made little
effort to remove them. The mine’s examiner did not consider the conditions to be unsafe. The
mine had been put on notice that greater efforts were necessary to comply with the standard.
The Secretary based his proposed penalty for this order upon his special assessment
regulation. 30 C.F.R. § 100.5. MSHA’s “Special Assessment Narrative Form” in the file shows
the calculations for a regular assessment and a special assessment for this order. If the Secretary
had calculated the penalty using the regular assessment formula the proposed penalty would have
been $41,574. I find that the proposed penalty of $60,000.00 is appropriate for this violation
taking into consideration the penalty criteria in section 110(i) of the Mine Act.

35 FMSHRC Page 3462

C. Order No. 7287776
On June 18, 2007, Inspector Grosely issued Order No. 7287776 under section 104(d)(2)
of the Mine Act, alleging a violation of section 75.400 of the Secretary’s safety standards. (Ex.
G-10). Order No. 7287776 states that Andalex allowed combustible materials to accumulate at
the #5 belt drive and take-up area from the head roller to the end of the #5 belt take-up. There
were coal fines from the drive rollers through the belt take-up. The coal fines were 1 to 3.5 feet
in depth and about 8 feet in width. The coal fines were dry to damp and in contact with the
spinning drive rollers and moving belt. The coal fines were about 3.5 feet deep at the drive
rollers and in contact with the full width of the belt for about 12 feet. The order states that the
accumulations of coal fines were obvious and piling up. Also, the head roller structure was
covered with coal fines.
Inspector Grosely determined that an injury was reasonably likely to occur and that such
an injury could reasonably be expected to be permanently disabling. Further, he determined that
the violation was S&S, the operator’s negligence was high, and that seven persons would be
affected. The Secretary proposed a penalty of $60,000.00 for this order.
For the reasons set forth below, I affirm Order No. 7287490, including the inspector’s
S&S and unwarrantable failure determinations, but I find that less than seven miners would have
been affected by the violation.
1. Summary of the Evidence
Inspector Grosely issued Order 7287776 because accumulations from 1 foot to 3.5 feet in
depth were in contact with the moving rollers of the belt drive for a distance of about 12 feet.
(Tr. 120,123; Ex. G-11 p. 2). When Inspector Grosely observed this condition, the belts were
running at about 600 feet per minute. (Tr. 121-22). The coal fines in this area were damp to dry,
but were not wet. (Tr. 123). The accumulations were obvious and could be easily seen when
walking through the area. Id. The coal fines were black, not white as they would have been if
they were rock dusted. (Tr. 124). This type of accumulation, created as a result of carry back on
the belt, would have taken days if not weeks to accumulate. (Tr. 124). This area should be
examined by the operator during pre-shift examinations. Id. The pre-shift examination was
completed between 4:00 a.m. and 6:30 a.m. (Tr. 125). The previous pre-shift exam did not list
any hazards in the cited area. Id. Inspector Grosely did not believe that the violative condition
could have developed after the pre-shift examination. (Tr. 126).
“Carry back” occurs when coal fines stick to the bottom of the belt because the fines are
wet. As the belt moves through its cycle, it becomes dry causing material to fall off. (Tr. 127).
A mine operator should take steps to avoid carry back by installing a belt scraper to remove
accumulations from the bottom of the belt. Id.
Inspector Grosely determined that an injury or illness was reasonably likely to occur
because there was a discrete safety hazard of fire, which leads to smoke inhalation. (Tr. 128).
Inspector Grosely determined that a permanently disabling injury would likely occur. (Tr. 129).
Even though some of the coal fines were damp, the coal fines that were in contact with the belt

35 FMSHRC Page 3463

would immediately dry out. (Tr. 130-31). The violation was marked as S&S because a fire was
reasonably likely to occur and a fire was reasonably likely to cause injury or illness. (Tr. 131).
Seven people would likely be affected by an accident because seven people worked in the 12
East longwall section. (Tr. 132-33).
The inspector believed that the violation was the result of Andalex’s high negligence and
its unwarrantable failure because the condition was obvious, the combustible material
accumulated over a significant period of time, and the operator was on notice that it needed to do
more to remove coal accumulations. (Tr. 133, 138). The condition demonstrated aggravated
conduct that was more than ordinary negligence. To abate the citation, Andalex dispatched
eleven men who worked about six hours to clean up the cited area. The inspector admitted that
the cited area was more than 4,000 feet away from the longwall. (Tr. 291). He also admitted that
if ventilation devices work properly, any smoke from a fire would not reach the longwall. (Tr.
292).
Guy Mills indicated that the belt scraper was not functioning properly. If the scraper was
damaged or broken, coal and coal fines could accumulate around the #5 take-up drive very
quickly. (Tr. 521). When a scraper fails, sometimes there is a small amount of spillage and other
times there are large accumulations in an hour. Id. Although Mills did not have direct
knowledge of the conditions at the belt, he testified that the belt could not have been operating if
the accumulations had existed for a significant period of time. (Tr. 530). An accumulation of
excessive coal fines in that area triggers a switch that will shut down the belt. (Tr. 522-23 530).
2. Discussion and Analysis
I find that Andalex allowed hazardous accumulations to occur, despite previous warnings
and orders of withdrawal issued by MSHA. These accumulations were 1 foot to 3.5 feet deep.
Inspector Grosely observed damp to dry coal fines in contact with rollers and the entire width of
the belt for a distance of 12 feet. He was concerned that the belt was drying the coal where it
contacted the belt. These accumulations were obvious and were formed over a period of days,
possibly weeks. They were black in color and had not been rock dusted. The accumulation was
so extensive it took 11 miners 6.5 hours to clean.
Andalex had pre-shifted the area, but no hazards were reported. Inspector Grosely
testified that the accumulations could not have developed since the pre-shift examination.
Inspector Grosely thought that the accumulations were likely caused by a malfunctioning or
missing belt scraper. I credit the testimony of Inspector Grosely.
I find that if a fire were to develop, injuries would be permanently disabling or, at the
least, would result in lost workdays or restricted duty. The violation would have affected at least
one miner and up to seven miners. I find that this violation was S&S for the same reasons
discussed above with respect to Order Nos. 7287490 and 7287683. My S&S analysis for those
orders is hereby applied to Order No. 7287776.

35 FMSHRC Page 3464

I also find that the violation was the result of Andalex’s high negligence and its
unwarrantable failure to comply with section 75.400. I reach this conclusion for the same
reasons I set forth with respect to the previous two orders issued by Inspector Grosely.
The Secretary based his proposed penalty for this order upon his special assessment
regulation. 30 C.F.R. § 100.5. MSHA’s “Special Assessment Narrative Form” in the file shows
the calculations for a regular assessment and a special assessment for this order. If the Secretary
had calculated the penalty using the regular assessment formula, the proposed penalty would
have been $35,543. I have reduced the penalty from $60,000 to $50,000 taking into
consideration the penalty criteria in section 110(i) of the Mine Act. I reduced the gravity
because the number of miners affected was not as great as Inspector Grosely indicated.
D. Citation No. 7288442
On February 9, 2008, MSHA Inspector Ronald Paletta issued Citation No. 7288442
under section 104(a) of the Mine Act, alleging a violation of section 75.223(a)(1) of the
Secretary’s safety standards. At hearing, the Secretary alleged in the alternative a violation of
section 75.202(a). The citation states that a non-injury, reportable burst dislodged eight rocprops
in the No. 2 entry that leads to the primary and secondary escapeways. The rocprops dislodged
at a 60 degree angle, leaving only 1.6 to 1.7 feet between the rocprops and the stage loader. (Ex.
G-20).
Inspector Paletta determined that an injury was highly likely to occur and that such an
injury could reasonably be expected to be fatal. Further, he determined that the violation was
S&S, the operator’s negligence was moderate, and that one person would be affected. Section
75.202(a) of the Secretary’s regulations requires that “[t]he roof, face and ribs of areas where
persons work or travel shall be supported or otherwise controlled to protect persons from hazards
related to falls of the roof, face or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a). Section
75.223(a)(1) states that the operator shall propose revisions of its roof control plan “[w]hen
conditions indicate that the plan is not suitable for controlling the roof, face, ribs, or coal or rock
bursts[.]” 30 C.F.R. § 75.223(a)(1). The Secretary proposed a penalty of $11,306.00 for this
citation.
For the reasons set forth below, I affirm Citation No. 7288442, including the inspector’s
S&S and negligence designations, but I find that the cited condition was reasonably likely and
not highly likely to cause a serious injury.
1. Summary of Evidence
Inspector Paletta issued Citation No. 7288442 during an investigation of a non-injury
accident on February 9, 2008 for a violation of section 75.223(a)(1). (Tr. 585, 588). Inspector
Paletta estimated that there were 1,000 rocprops in the cited entry, which was an area that had a
history of several bursts and also had constant traffic, making a serious injury highly likely to
occur. (Tr. 615-16). Rocprops are pressurized cylinders used as roof support that weigh over
100 pounds each. (Tr. 597). At the mine, there is also chain link fencing that catches rock and
coal bursts and is supported by the rocprops. (Tr. 598, 609-10). When properly pressurized and

35 FMSHRC Page 3465

installed, the inspector has never seen a rocprop move. (Tr. 598). Dislodged rocprops act like
missiles and coal or rocks could also strike miners, meaning the likely injury to a miner as a
result of the cited condition would be fatal. (Tr. 616, 710). Steve Richens, the mine
superintendent, told the inspector that the cited rocprops were not installed properly. (Tr. 61011).
The inspector testified that he designated Citation No. 7288442 as the result of Andalex’s
moderate negligence because Andalex had a responsibility to install rocprops properly. (Tr.
621). No one at the mine could tell or show Inspector Paletta the appropriate installation of the
rocprops. Id. Poulson testified that the rocprops were installed by an independent contractor.
(Tr. 714). Andalex mitigated its negligence by doing “quite a bit of work[.]” (Tr. 621).
2. Discussion and Analysis
I find that Andalex violated section 75.202(a); it failed to control the ribs of the cited area
to protect persons from the hazard of rock bursts because it incorrectly installed eight rocprops.
The Commission has held that “the adequacy of particular roof support or other control must be
measured against the test of whether the support or control is what a reasonably prudent person,
familiar with the mining industry and protective purposes of the standard, would have provided
in order to meet the protection intended by the standard.” Harlan Cumberland Coal Co. 20
FMSHRC 1275, 1277 (Dec. 1998) (citing Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987)).
Andalex argues that Inspector Paletta’s testimony should not receive judicial deference because
it was unreasonable, overreaching, and inconsistent.1 I credit the Inspector’s testimony,
however, that a properly pressurized and installed rocprop would rarely move. Although the
inspector’s testimony concerning the improper installation of these rocprops is unclear and
suggests that he has sparse knowledge of the installation of rocprops, I credit the Inspector’s
testimony that the mine superintendent told him that the rocprops were incorrectly installed. I
find that the cited rocprops fell because they were incorrectly installed. Andalex’s roof control
plan requires the installation of rocprops to control bursts. A reasonably prudent person familiar
with the mining industry would have provided properly installed rocprops to protect miners from
bursts. Andalex, through its contractor, failed to install the rocprops correctly, which means that
Andalex failed to protect miners from bursts in violation of section 75.202(a).
I find that Citation No. 7288442 was S&S. Andalex violated section 75.202(a), which
created the discreet safety hazard that a miner would be crushed by a burst. I find that these
improperly installed rocprops, which were located in an area regularly traveled by miners, were
reasonably likely to cause a serious injury to a miner. I credit Inspector Paletta’s testimony that
bounces were common in the cited area and the failure of these rocprops allowed coal to strike
miners and turned the rocprops into missiles in the event of a bounce. Although Inspector
Paletta testified that the cited conditions “could” cause an injury based upon these factors, I find
that the conditions were likely to cause an injury, not merely able to cause an injury. Coal, rock,
or the rocprops themselves unleashed due to a burst could cause a fatal injury by striking a
1

Although the Secretary alternatively alleged violations of both sections 75.202(a) and
75.223(a)(1), the Secretary only addressed section 75.202(a) in his brief. Conversely, Andalex’s
brief focused mainly upon disproving a violation of section 75.223(a)(1).

35 FMSHRC Page 3466

miner. Although the rocprops were secured against movement with wire ropes, they moved far
enough to be a hazard. As a result of Citation No. 7288442 leaving miners unprotected in the
event of a burst, miners were reasonably likely to suffer a fatal injury.
The cited condition was reasonably likely to cause a serious injury, but not highly likely.
The inspector surmised that Citation No. 7288442 was highly likely to cause a serious injury if
Andalex continued to install rocprops improperly, while the secretary argued that it was “clear”
that since eight rocprops failed due to a bounce, the conditions cited in Citation No. 7288442
were highly likely to cause serious injury. (Tr. 616). This violation of section 75.202(a),
however, does not address the manner of rocprop installation used by Andalex, but rather the
improper installation of eight specific rocprops. My findings are specific to the cited rocprops.
The Secretary’s arguments, furthermore, provide no support for the “highly likely “designation
of Citation No. 7288442 other than the comment that it is “clear” that the designation is correct.
(Sec’y Br. at 22).
I find that Citation No. 7288442 resulted from Andalex’s moderate negligence because
Andalex should have known that the rocprops in the cited area were incorrectly installed, were
no longer functioning correctly, and therefore posed a hazard to miners. A penalty of $8,000.00
is appropriate for this violation.
E. Citation No. 7288447
On February 19, 2008, Inspector Paletta issued Citation No. 7288447 under section
104(a) of the Mine Act, alleging a violation of section 75.1725(a) of the Secretary’s safety
standards. The citation states:
[t]wo bottom conveyor rollers on the 14th east belt were
found damaged with one end of each roller spinning in the
fine loose dry coal. The end of one roller that was spinning
in the dry coal was warm to the touch. The belt air is being
used to supply intake air to the longwall working section.
(Ex. G-29).
Inspector Paletta determined that an injury was reasonably likely to occur and that such
an injury could reasonably be expected to result in a permanently disabling injury. Further, he
determined that the violation was S&S, the operator’s negligence was moderate, and that seven
persons would be affected. Section 75.1725(a) of the Secretary’s regulations requires that
“[m]obile and stationary machinery and equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe condition shall be removed from service
immediately.” 30 C.F.R. § 75.1725(a). The Secretary proposed a penalty of $5,961.00 for this
citation.
For the reasons set forth below, I affirm Citation No. 7288447, but I find that less than
seven miners would have been affected by the violation and that the likely injury would be a lost
workday or restricted duty injury.

35 FMSHRC Page 3467

1. Summary of Evidence
Andalex stipulated that it violated Section 75.1725(a) and that the conditions cited in
Citation No. 7288447 were reasonably likely to lead to a serious injury and were S&S, but it
disputed the number of miners affected, the likely injury, and the negligence. (Tr. 721).
Inspector Paletta testified that the cited rollers could cause a fire. The fire could spread
quickly as there was no fire suppression in the area, rib sloughage could provide fuel, and
methane tests showed 0.3% methane. (Tr. 725-26, 728). Both the inspector and Poulson
testified that the main injury concern from a fire would be smoke inhalation. (Tr. 726, 748). The
inspector believed that smoke inhalation could affect all seven miners at the longwall because it
was inby the cited area. (Tr. 726-27). The inspector and Guy Mills testified that smoke
inhalation could cause a fatality. (Tr. 725, 574). The inspector suffered smoke inhalation while
working at a coal mine when a belt in the section he was working caused a fire; he suffered from
“a couple hours” of coughing. (Tr. 728).
The inspector testified that Andalex should have been aware of the condition because he
previously cited rollers at the mine twice. (Tr. 729). The condition existed since at least that
morning or the shift prior to the graveyard shift, as Andalex does not run the belt during the
graveyard shift. (Tr. 729). Both the Inspector and Guy Mills testified that if Andalex examined
the area while the belt was off, it could be difficult to see the condition. (Tr. 731, 571). The side
of the rollers that dropped into the coal, however, was on the walkway side, which made it “very
visible.” (Tr. 732).
The longwall was at least 3,600 feet from the cited conditions. (Tr. 736). The inspector
believed that Andalex both examined and rock dusted the area. (Tr. 739). The mine examiners
traveled the location on a weekly basis. (Tr. 741).
2. Discussion and Analysis
I find that Citation No. 7288447 was the result of Andalex’s moderate negligence
because Andalex should have known of the cited condition. Andalex was on notice that greater
efforts were necessary to maintain their belts and rollers due to the previous citations that
Inspector Paletta issued. Even if the belt was not running during the previous preshift
examination, I credit Inspector Paletta’s testimony that the rollers contacted the coal on the side
of the belt closest to the walkway, which made the rollers easier to see.
Andalex may have lacked actual knowledge of the condition because its examiner did not
observe it, but it should have known of the condition. Andalex argues that it did not observe the
cited condition and therefore could not correct it, but I find that Andalex should have identified
and abated the cited condition. Although the belt was not running, the two rollers that were next
to the walkway were still visible. Andalex’s negligence with respect to Citation No. 7288447
was moderate.
I find that smoke inhalation as a result of Citation No. 7288447 was most likely to cause
a lost workday or restricted duty injury. I also find that Citation No. 7288447 was likely to affect

35 FMSHRC Page 3468

two, not seven miners for the same reasons I explained in relation to Order No. 7187490. A
penalty of $4,000.00 is appropriate for this violation.
II. SETTLED CITATIONS AND ORDERS
On May 16, 2013, I granted the Secretary’s unopposed motion to approve partial
settlement in this case. I approved the settlement of 14 section 104(a) citations and 2 section
104(d)(2) orders. I ordered Andalex to pay a total penalty of $18,655.00 for the settled matters.
III. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. Andalex’s history of previous violations is set forth in Exhibit G-1.
Between 2/08/2006 and 5/07/2007, Andalex had a history of 299 paid violations at the mine of
which 135 were S&S violations. Between 11/27/2006 and 2/26/2008, Andalex had a history of
234 paid violations at the mine of which 111 were S&S violations. At all pertinent times,
Respondent was a large coal mine operator. The violations were abated in good faith. There
was no proof that the penalties assessed in this decision will have an adverse effect upon
Respondent’s ability to continue in business. The gravity and negligence findings are set forth
above. The gravity and negligence presented by the accumulation violations was a key factor in
my assessment of the penalties for the three section 104(d)(2) orders.
IV. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation/Order No.

30 C.F.R. §

Penalty

7287490
7287683
7287776
7288442
7288447

75.400
75.400
75.400
75.202(a)
75.1725(a)

$45,000.00
60,000.00
50,000.00
8,000.00
4,000.00

TOTAL PENALTY

35 FMSHRC Page 3469

$167,000.00

For the reasons set forth above, the citations and orders are AFFIRMED or
MODIFIED, as set forth above. Andalex Resources, Inc., or its successors and assigns, is
ORDERED TO PAY the Secretary of Labor the sum of $167,000.00 within 40 days of the date
of this decision.2

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

Distribution:
Francesca Cheroutes, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd.,
Suite 515, Denver, CO 80204-3516
Jason W. Hardin, Esq., Fabian & Clendenin, 215 South State Street, Suite 1200, Salt Lake City,
UT 84111-2323

2

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

35 FMSHRC Page 3470

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, D.C. 20004

November 26, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

:
:
:
:
:
:
:
:

v.
PRESLEY TRUCKING COMPANY, INC.,
Respondent.

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2011-205
A.C. No. 15-18732-236340 (KYD)
Mine: Mine No. 5

:
:
:

Docket No. KENT 2011-351
A.C. No. 15-16054-239324 (KYD)
Mine: No. 1 Plant

DECISION
Appearances: C. Renita Hollins, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
William J. Sturgill, Esq., Sturgill & Sturgill, P.C., Norton, Virginia, on behalf of
Respondent.
Before:

Judge Paez

These proceedings are before me upon the petitions for assessment of civil penalty filed
by the Secretary of Labor (“Secretary”) under section 105 of the Federal Mine Safety and Health
Act of 1977 (“Mine Act”), 30 U.S.C. § 815. The case was called for hearing on September 25,
2013, in Pikeville, Kentucky. Near the conclusion of the hearing, the Secretary requested a brief
recess. (Tr. 222.) At the conclusion of the recess, the parties stated that they had resolved their
differences. (Tr. 222–23.) Counsel for the Secretary specified the terms of the settlement, which
I outline below, and counsel for Presley Trucking Company, Inc. (“Presley Trucking” or
“Respondent”) concurred. (Tr. 223–25.) I directed the parties to submit settlement documents
that worked out any mathematical discrepancies in the settlement agreement. (Tr. 225.)
On November 7, 2013, pursuant to Commission Rule 31, 29 C.F.R. § 2700.31, the
Secretary filed a Joint Motion to Approve Settlement that memorialized the terms of the agreed
settlement and slightly amended the settlement amounts for several violations to make the total
match the parties’ agreed upon total settlement amount.
The originally proposed assessment for these two combined dockets was $23,409.00, and
the proposed cumulative settlement amount is $14,300.00, which includes modifications to
several of the citations and an installment plan. The proposed settlement is as follows:

35 FMSHRC Page 3471

KENT 2011-205
Citation/
Order No.
8361079
8361080
8361081

Date
08/30/2010
08/30/2010
08/30/2010

30 C.F.R.
Assessment Settlement
77.1605(d)
$ 285.00
$ 215.00
77.1605(b)
$ 1,412.00
$ 1,050.00
77.1605(d)
$ 285.00 $ 215.00
Total: $ 1,982.00
$ 1,480.00
KENT 2011-351

Citation/
Order No.
8349235
8349237
8349236
8347335
8347336

Date
09/29/2010
09/29/2010
09/29/2010
09/29/2010
09/29/2010

30 C.F.R.
Assessment Settlement
77.1104
$ 263.00
$ 200.00
77.404(a)
$ 6,996.00
$ 5,222.00
77.404(a)
$ 6,996.00
$ 2,000.00
77.404(a)
$ 6,996.00
$ 5,222.00
77.1104
$ 176.00
$ 176.00
Total: $21,427.00
$12,820.00

Cumulative Totals:

$23,409.00

$14,300.00

In support of the proposed settlement, the Secretary has submitted information pertaining
to the six statutory civil penalty criteria found in section 110(i) of the Act, 30 U.S.C. § 820(i),
including information regarding Respondent’s size, ability to continue in business, and history of
previous violations.
In addition, the Secretary has stated reasons fully warranting the agreed upon reduction in
the proposed penalties, specifically with regard to the level of negligence imputed to the
operator.
After review and consideration of the pleadings, arguments, hearing testimony and
submissions in support of the settlement motion, I find that the proposed settlement is reasonable
and in the public interest. Pursuant to 29 C.F.R. § 2700.31, the motion is GRANTED, and the
settlement is APPROVED.
ORDER
It is hereby ORDERED that Respondent PAY a penalty of $14,300.00 in fourteen (14)
equal installments of $953.33 and one (1) final installment of $953.38.1 The first installment
shall be made within 30 days of the date of this Order, with subsequent installments made every
30 days thereafter until the total penalty is paid in full.
Payments should be sent to: U.S. Department of Labor, MSHA, Payment Office,
P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket and A.C. numbers.
1

35 FMSHRC Page 3472

Additionally, within 30 days of this Order, the Secretary is ORDERED to MODIFY the
following:

Standard

Likelihood

Gravity
Severity S&S

KENT
2011-205
8361079
8361080
8361081

N/A
N/A
N/A

N/A
N/A
N/A

N/A
N/A
N/A

KENT
2011-351
8347335
8349235
8349236

N/A
N/A
N/A

N/A
N/A
To
“Unlikely”

N/A
N/A
N/A

8349237

N/A

N/A

N/A

Citation/
Order
No.

Number
of
Persons
Affected

Negligence

Type
of
Action

N/A
N/A
N/A

N/A
N/A
N/A

To “Low”
To “Low”
To “Low”

N/A
N/A
N/A

N/A
N/A
To
“Non
S&S”
N/A

N/A
N/A
N/A

To “Low”
To “Low”
N/A

N/A
N/A
N/A

N/A

To “Low”

N/A

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge
Distribution:
C. Renita Hollins, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue
North, Suite 420, Nashville, TN 37219
William J. Sturgill, Esq., Sturgill & Sturgill, P.C., P.O. Box 770, Norton, VA 24273
/pjv

35 FMSHRC Page 3473

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 27, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
AUSTIN POWDER COMPANY, INC.,
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. KENT 2010-1529-M
A.C. No. 15-00079-230016 E24
Mine: Fort Knox Quarry

DECISION
Before: Priscilla M. Rae, Administrative Law Judge
This case comes before me on a Petition for Assessment of Civil Penalties filed in
accordance with section 105(c) of the Federal Mine Safety and Health Act of 1977, the "Act," 30
U.S.C. §§ 801, et seq. At issue is one §104(a) citation issued in violation of 30 C.F.R. § 56.3200
of the Act by a Mine Safety and Health Administration ("MSHA") inspector. A hearing was
held in Lexington, Kentucky. The parties introduced testimony and documentary evidence,1 and
post-hearing briefs were submitted.
Findings of Fact
The Fort Knox Quarry is a medium sized limestone quarry located outside of Elizabethtown,
Kentucky (Tr. 10). On June 2010, Fort Knox was operated by Vulcan Materials. Vulcan
Materials contracted with Austin Powder Company to load headings and benches at the lime
stone quarry (Tr. 11). The citation decided herein arose during an inspection of the quarry
conducted by an authorized MSHA inspector (Tr. 24).

1

Respondent's exhibits were marked after the hearing took place and were never offered
for admission. They are therefore not part of the official record. Respondent's exhibits were
used to assist its witnesses whose testimony is of record. The introduction of the exhibits would
not have provided any additional relevant evidence or affected my decision in this matter.

35 FMSHRC Page 3474

1. The Inspection
Donald Gabbard is an MSHA inspector with five years of experience in his position.
Prior to his employment with MSHA, he completed a two-year associate's degree in which he
had some formal training in geology. He also has approximately five years of experience in
surface coal mining with highwalls and about 28 years of underground mining experience with
extensive work in benching and highwalls (Tr. 55-56).
On June 2, 2010, Gabbard arrived at Fort Knox to conduct an E0-1 quarterly inspection.
When he arrived at the active benching area, he observed a sign posted on cones in the haul road
that read "Danger, Keep Out" (Tr. 14, Gov. Ex. S-1, p. 1). The sign was close to 500 feet or
further away from the mining activity where the benching and drilling took place (Tr. 16). There
were fresh tire marks on the road and a highwall could be seen in the distance behind the sign
and cones (Tr. 15). Gabbard and the mine representative accompanying him continued on the
haul road past the danger sign to observe the condition of the highwall (Tr. 15).
When arriving at the highwall, Gabbard stated that he observed "an exorbitant amount of
loose material" in and around the bench and work area of the wall (Tr. 16). He took photographs
of the hazardous loose rock on the highwall, and took photographs of the rock that he believed
had already fallen in the work area (Tr. 19; Gov. Ex. S-1 pgs. 2-5). He also took photographs of
blue paint marks in the active work area where the Respondent's blaster had traveled and marked
locations for the quarry driller to drill (Tr. 17, Gov. Ex. S-1 pgs. 2, 3, and 15).
The highwall also had a 20 foot ledge or safety bench (Gov. Ex. S-1 p. 14), which was
intended to protect miners by catching any loose rock that could have fallen from the upper ledge
(Tr. 95). Gabbard testified, however, that the safety bench was filled with rock piles that caused
the ledge to be too narrow to actually control rock that would fall from the upper layer of the
highwall (Tr. 18-19; Gov. Ex. S-1 p.3 and p.14). Gabbard concluded that this created a hazard of
falling rock that would reasonably likely cause miners serious injuries by crushing their lower
legs (Tr. 46).
On the day that the citation was issued, Gabbard noted that a drill had been delivered to
the mine site (Tr. 85, Gov. Ex. S-3). Austin Powder sales representative, Hardin Davis, testified
that he recalled marking off the area about five days prior to the citation being issued on June 2
(Tr. 119). He stated that typically a company would come out to drill a couple of days after he
marked the locations for drilling (Tr. 120).
The highwall was not scaled and there was no berm to protect miners in the area (Tr. 8081). The citation was abated after a substantial berm was built 25 feet from the bench wall (Tr.
20). The berm was completed before Gabbard completed his inspection that day (Tr. 21).

35 FMSHRC Page 3475

The Citation
Citation No. 6518869 reads as follows:
An Austin Powder worker proceeded past a berm & a DangerKeep Out sign, and marked off a bench for drilling & blasting that
was below a highwall covered with extreme amounts of loose
hazardous ground. The majority of the loose material was on the
lower 20 ft. seam of the highwall but was open to direct access for
a distance of about 250 ft. unbermed. The actual marking of the
holes (parallel) beneath the highwall extended a measured distance
of 110' in length below the wall. The measured distance accessed
(perpendicular) from the wall was 16 & ½ ft. Loose material piled
up about 4 ½ ft. up the wall to 8 ft. away from wall to propel any
falling material toward persons or equipment on the work bench.
This exposed this worker to crushing type injuries. The loose
condition was highly visible & activity beneath it demonstrated
high negligence.
Gov. Ex. 4.
The gravity of the violation was assessed as reasonably likely to result in a permanently
disabling injury and as significant and substantial (S&S). The operator’s negligence level was
assessed as high and the proposed penalty is $15,570. Gov. Ex. 4.
The Standard
30 C.F.R. § 56.3200 provides:
Ground conditions that create a hazard to persons shall be taken
down or supported before other work or travel is permitted in the
affected area. Until corrective work is completed, the area shall be
posted with a warning against entry and, when left unattended, a
barrier shall be installed to impede unauthorized entry.
The Violation
The Secretary claims that section 56.3200 requires mine operators to abate hazardous
ground conditions in an affected area before work or travel is permitted there. Until abatement
occurs, operators must post a warning sign to prevent entry, and when the affected area is left
unattended, a barrier must be installed to prevent unauthorized entry, says the Secretary. 30
C.F.R. § 56.3200.
The Secretary asserts that the operator violated section 56.3200 because hazardous
ground conditions existed at the highwall, and Davis performed work there without abating the
conditions. P. Br. at 6. The Secretary argues that an "exorbitant amount of loose material" at the

35 FMSHRC Page 3476

highwall existed (Tr. 16, 19; Gov. Ex. S-1 pgs. 2-5). The Secretary also relies on the fact that
Davis traveled and marked locations by laying down blue paint marks in the hazardous work
area for the quarry driller to drill (Tr. 17, Gov. Ex. S-1 pgs. 2, 3, and 15). The Secretary points
to Gabbard's testimony that the blue paint marks measured approximately 16 ½ feet from the
base of the hazardous highwall (Tr. 29; Gov. Ex. S-1 p. 5 and p. 15). The wall was not scaled
and there was no berm or other type of barricade to protect miners in the area (Tr. 80-81).
The Secretary contends that the loose and falling rock was reasonably likely to endanger
Davis and any other miners working near the highwall. The Secretary notes that Gabbard
believed that rocks were spilling from the safety bench out and away from the highwall.
Gabbard saw rocks that, in his opinion, had fallen an estimated distance of 40 to 45 feet away
from the base of the highwall onto the active working floor (Tr. 19, Gov. Ex. S-1 p. 14).
Furthermore, according to Gabbard, the spillage was so bad that a loader had been used to push
fallen rocks back towards the base of the highwall (Tr. 19; Gov. Ex. S-1 p. 3 and p. 14).
According to Gabbard, rocks were piled up at the base of the highwall at such a height and at
such an incline that any additional falling rock from the upper shelf would be propelled into the
work area (Tr. 19; Gov. Ex. S-1 p. 3, p. 14).
In addition, the Secretary argues that the safety bench would not have mitigated the risk
of the hazardous conditions at the highwall. The Secretary relies on Gabbard's testimony that the
safety bench was filled with piles of rock, making it too narrow to control any additional rocks
falling from the upper shelf (Tr. 18-19; Gov. Ex. S-1 p.3 and p.14).
The Secretary also argues that the "DO NOT ENTER" signage in the road was not an
adequate warning sign. The Secretary notes that the signage in the road was close to 500 feet or
further away from the mining activity where the benching and the drilling was being conducted
(Tr. 16). The Secretary states that ideally, any signage should be located at the edge of the actual
active work bench and not so far away (Tr. 16). The Secretary also points to the fact that the
highwall was not scaled or supported, no berm or other type of barricade had been erected to
protect the miners, and the area "had been accessed with people under it." (Tr. 16).
The operator contends that the Secretary failed to prove that the ground conditions
created a hazard in the location where Davis worked. R. Br. 9-11. The operator argues that, in
order to prove a violation of section 56.3200, the Secretary must show that the hazard affected
the area where work or travel was done or permitted. The operator points to a decision in which
an ALJ found no violation of 57.3200,2 despite the fact that hazardous ground conditions existed,
because the Secretary adduced no evidence that there was any work or travel in any area affected
by the conditions. Mountain Parkway Stone, Inc., 11 FMSHRC 1289, 1298 (July 1989) (ALJ).
The operator argues that "distance" is an appropriate factor for determining whether
hazardous ground conditions may affect an area where miners work and travel. R. Br. at 10,
citing Preamble to the Final Rule, 51 FR 36192 (Oct. 8, 1986) (describing standard as intended
2

In its brief, the operator erroneously cites section 56.3200 as the standard at issue in
Mountain Parkway Stone. However, the applicable standard at issue was 57.3200 because the
case arose in an underground mine. 56.3200 only applies to surface mines.

35 FMSHRC Page 3477

to be "performance-oriented"). The operator argues that the blue marks that Davis painted
measured 20 feet from the base of the highwall, and not 16 ½ (Tr. 123-24), because Gabbard
incorrectly measured the distance starting from the toe of the muck pile instead of the base of the
wall. (Tr. 98, R. Ex. 3). The operator argues that the 20 foot distance that Davis established was
sufficient to prevent a hazard to himself and others.
The operator brings forth testimony from various witnesses to show that the 20 foot
distance was sufficient to protect miners from the hazardous highwall. Wayne Lively, a safety
consultant at the mine, testified that any material landing on the muck pile would not likely be
propelled out onto the bench because "the loose material … acts as a cushion." Lively opined
that if the floor were solid, the rocks would "hit and bounce," but "where it's loose, if a rock falls
and hits another rock, they just tumble together." (Tr. 149). Lively further testified that the rocks
on the active working floor that were 40-45 feet away from the highwall did not fall from the
wall, as Gabbard claimed. Rather the rock "could have been left there when … [the operator
was] … mucking out," and "[t]here's a thousand places it could have come from." (Tr. 150). In
addition, Davis testified that although there was some loose material on the safety bench, it was
not full and would continue to absorb the fall of any material that might fall from higher up (Tr.
134). Charles Lambert, a blaster for Austin Power, along with Mr. Lively, also testified that the
safety bench was not full. (Tr. 91, 100, 158).
Finally, the operator argues that I should not rely on MSHA policy to find a violation.
According to Gabbard, MSHA has a written policy that dictates that highwalls must have a
safety zone of at least 25 percent of the height of the wall (Tr. 70-71). For example, if a
highwall is 100 feet, the required distance is a minimum of 25 feet away (Tr. 90). In addition,
MSHA's policy requires that the operator place a berm outside the 25 percent safety zone (Tr.
70-71). The operator contends that reliance on this policy is objectionable for two reasons:
First, the operator claims that MSHA's policy raises constitutional notice concerns. The operator
claims that although the policy was cited by Gabbard at hearing, it was never published or
publicized by MSHA and does not appear on the agency's website. Furthermore, the Secretary
did not enter this policy into evidence, and although Gabbard testified that inspectors were told
to enforce the policy, it was apparently never shared with mine operators. (Tr. 70-71). Second,
the operator claims that the policy violates the notice and comment rulemaking requirements of
the Administrative Procedure Act (APA). 5 USC § 553. The operator argues that Gabbard's
description of the policy at hearing indicates that he believed that the policy defines what the
standard requires. (Tr. 70). According to the operator, it therefore in effect became the new
standard, without ever going through notice and comment rulemaking. The operator points to a
D.C. Circuit decision in American Mining Congress v. MSHA, 995 F.2d 1106, 1109 (D.C. Cir.
1993), in which the court noted that "an amendment to a legislative rule must itself be
legislative." The D.C. Circuit also held that "new rules that work substantive changes or major
legal additions to existing rules or regulations are subject to the APA's notice and comment
procedures as legislative rules." See U.S. Telecom Ass 'n v. FCC, 22 F.3d 320, 326 (D.C. Cir.
2005). Similarly, "if an agency adopts a new position inconsistent with an existing regulation, or
effects a substantive change in the regulation, notice and comment are required." Id. at 35

35 FMSHRC Page 3478

(quoting Shalala v. Guernsey Mem 'l Hosp., 514 U.S. 87, 100 (1995); National Mining
Association v. Jackson, 816 F.Supp.2d 37, 45 (D.D.C. 2011). Since the Secretary failed to
undertake notice and comment rulemaking, the MSHA policy should be off-limits when
determining whether the operator violated section 56.3200, says the operator.
I reject the argument that MSHA's policy is invalid because it did not go through notice
and comment rulemaking. MSHA's policy is basically an informal interpretation of section
56.3200's phrase "affected area," to require a distance equal to 25% of the height of the highwall.
Although MSHA's policy does not carry force of law, I grant it some deference because I find
that it has the "power to persuade" based on its "thoroughness of consideration, validity of
reasoning, consistency with earlier and later pronouncements, and all other relevant
factors." Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Arriaga v. Fla. Pac. Farms, L.L.C.,
305 F.3d 1228, 1238 (11th Cir. 2002) (giving Skidmore rather than Seminole Rock deference to
agency opinion letters interpreting regulations); U.S. Freightways Corp. v. Comm’r, 270 F.3d
1137, 1142 (7th Cir. 2001) (holding that Mead requires application of Skidmore rather than
Seminole Rock deference to informal interpretations of existing agency regulations). I find the
interpretation persuasive because it has been adopted by mine operators generally as a widespread industry practice. See e.g., Robert Sand, No. 11-3032, 2013 WL 772843 *2 (January 4,
2013) (describing industry practice to keep the excavator away from the wall by at least 25
percent of highwall's height in clay pit operations); see also Mine Safety Health Administration,
Guidelines for Submittal and Evaluation of Ground Control Plans (for underground coal mines,
"the distance that … extends out from the base of the wall is usually determined by measuring
out from the base of the highwall a distance of approximately 25 percent of the highwall
height."); Tr. 90, 118, 144 (describing Austin Powder's practice as using the 25 percent distance
rule). Accordingly, the Secretary's interpretation that an "affected area" is within a distance
measured at 25 percent of the height of the highwall is entitled to Skidmore deference.
Likewise, I reject the operator's argument that MSHA's policy raises constitutional notice
concerns. Although the broad wording of section 56.3200 allows it to be applied to myriad
factual contexts, I find that notice exists because the Secretary can show that a "reasonably
prudent employer familiar with the mining industry and the protective purposes of the standard
would have recognized that the condition of the quarry wall posed a hazard to persons" in the
working area. Shine Quarry, Inc., 17 FMSHRC 1397, 1400 (Aug. 1995) (ALJ). Gabbard
testified that he and other inspectors personally notified operators during inspections about the
25% distance and berm requirements of the policy (Tr. 70-71). This is corroborated by Davis,
Lambert and Lively's statements that the operator uses the 25% requirement as a "rule of thumb"
for drilling highwalls (Tr. 90, 118, 144). Thus, I find that the operator had actual notice of
MSHA's interpretation of the phrase "affected area." See e.g., Consolidation Coal Co., 18
FMSHRC 1903, 1907 (Nov. 1996) (holding that actual notice was provided by MSHA prior to
issuance of citation); see also General Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995)
(reasoning that agency's pre-enforcement warning to bring about compliance with its
interpretation will provide adequate notice). As a result, MSHA's interpretation of an "affected
area" covering a distance measured at 25 percent of the height of a highwall constitutes
relevant guidance to determining whether Davis violated section 56.3200.

35 FMSHRC Page 3479

Based on MSHA's interpretation and the evidence presented in the record, I find that the
operator violated section 56.3200. To prove a violation of section 56.3200, the Secretary must
establish the following three elements:
 First, hazardous ground conditions must have existed at the highwall.


Secondly, an employee must have performed work in the area affected by the
hazard.



Third, the operator must have failed to undertake proper corrective action such as
scaling, support, or erecting a barrier.

I find that the Secretary has met his burden of proof on each element, as discussed below:
First, a hazard existed at the highwall. I credit Gabbard's testimony that hazardous
ground conditions existed at the highwall. Gabbard is an experienced inspector and is wellqualified to expose the opinion he reached in this case. He has personally observed hazardous
highwall conditions that led to a rock crushing fatality in the past (Tr. 51-52). He testified that
the conditions he observed in the instant case are similar to those in which the previous fatality
occurred. (Tr. 52). He also testified that the highwall was in the worst shape he had ever seen
(Tr. 17). An experienced MSHA inspector’s opinion that a hazard exists is entitled to substantial
weight. Harland Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek
Coal Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999). Thus, I find that a safety hazard occurred.
Secondly, I find that the safety hazard affected the area where Davis worked.
Specifically, loose rocks were likely to fall or roll into the area where Davis painted down the
blue markings. I do not give weight to any the evidence offered by Respondent's witnesses that
Davis's distance from the highwall was sufficient to avoid any danger. As noted above, the
operator has adopted the 25% requirement as a "rule of thumb" for drilling highwalls.
Regardless of whether Davis was 20 feet or 16 ½ feet from the highwall, he was too close of a
distance to be working. The highwall was 88 feet high, which would call for a minimum
distance of at least 22 feet out from the base of the highwall.
Likewise, I do not give weight to Lively's testimony that the material would not be
propelled out into the area where Davis worked. A rock could have fallen from the upper bench,
hit the safety bench which was filled with muck, and be propelled out beyond where work was
being done. Rock could also fall from the wall, hit other rocks, miss the safety bench and follow
a trajectory out and past where the work was being performed. I do not credit Davis's testimony
that the safety bench was not full and would continue to absorb the momentum of any material
that might fall from higher up. I also do not credit Lambert's testimony that the rock would fall
straight down into the safety bench, which was wide enough to catch the rock (Tr. 99), and that
many of the rocks were flat and jagged, as opposed to round, and, as a matter of physics, were
unlikely to bounce or roll into the working area. This argument ignores the fact that as rocks fall,
they can strike the side of the wall and bounce out and away from the wall. They do not
necessarily fall straight down, no matter what shape they are, and this could endanger the safety
and lives of miners working nearby. Furthermore, Davis himself testified that ''the wall was
getting ratty looking, and it had loose material laying on the …[safety] bench" and he was

35 FMSHRC Page 3480

concerned that the loose rock on the edge of the safety bench would fall into his work area. (Tr.
124 and 135). This corroborates Gabbard's assessment of the hazard affecting miners working in
the area. I also reject the notion that the muck at the toe of the highwall would have absorbed the
falling rock. As Gabbard testified, a considerable amount of the muck was "built up" at an
incline, which would only speed up any falling rock as it rolls toward the working area (Tr. 59).
I also credit Gabbard's testimony that rocks had already rolled about 40 to 45 feet away from the
base of the highwall onto the active working floor (Tr. 19, Gov. Ex. S-1 p. 14). Although
Gabbard did not observe the rocks falling from the highwall, I find that the rocks were likely to
have fallen from the highwall and rolled out into the working area, due to their weathered
condition and circular shape. Furthermore, the rocks were larger than the other rocks that were
located in that part of the working area. Thus, I find it more likely than not that the rocks
originated from the highwall, as opposed to having merely fallen from a truck during the
mucking out process (Tr. 76, 78-79). Thus, I find that the hazardous ground conditions at the
highwall affected the area where Davis was working.
Third, I find that the operator failed to undertake proper corrective action as required by
section 56.3200. The standard requires scaling or support to abate the hazard of loose ground, or
alternatively, a barrier must be erected when the affected area is left unattended. 30 C.F.R. §
56.3200. It had been several days since the area was used when Gabbard issued the citation so
the area was unattended. Lively's testimony that there was a barrier because of an orange line
drawn parallel to the wall that Davis made is completely unsupported by the record and
contradicted by his own testimony. When questioned by the Court, Lively admitted that he did
not know the color of the line, and that the blue dots that were drawn to mark the shots
functioned as the barrier to mark off the safety zone (Tr. 163-65). Lively's testimony is also
contradicted by Davis himself who drew the blue dots to mark the shots, and not to mark off a
danger zone. The fact that the markings were drawn to designate shot holes means that miners
were required to work in that area, which supports Gabbard's testimony. In any case, markings
or lines drawn on the ground, regardless of color, do not constitute a "barrier." A barrier is
something that is designed to prevent unauthorized entry into an area, such as a berm. Thus, the
blue markings do not constitute a "barrier" within the plain meaning of section 56.3200. 3

3

Even assuming such markings could constitute a barrier, 30 CFR § 56.2 defines a
barrier as an "object" that "demarcates in a conspicuous manner" through means "such as cones,
a warning sign, or tape." 30 C.F.R. § 56.2 (emphasis added). The blue markings here were not
"conspicuous" for three reasons: First, they were not drawn in a continuous manner to indicate a
marking off sign. Second, I do not give much weight to the operator's testimony that the blasters
knew to interpret such blue markings to mean "DO NOT ENTER." Rather, I credit Gabbard's
testimony that such blue lines are typically intended to denote drill places for drill holes and not
to mark off a hazard area (Tr. 167). Drilling holes and marking off hazard areas are two entirely
different tasks that could call for potentially different marking locations. Third, the markings
were not parallel to the base of the highwall, which indicates that they were unrelated to the
hazardous wall and thus not intended to serve as a warning sign for it. Accordingly, the blue
markings were not conspicuous and do not constitute a "barrier" within the language of section
56.2.

35 FMSHRC Page 3481

Likewise, the "DO NOT ENTER" sign does not constitute a barrier. The sign was 500
feet away from the wall and too far away to prevent unauthorized entry. This is consistent with
the fact that Davis admitted that the sign was not intended to prevent miners from entering the
area, but rather to tell haul truck drivers to stay out (Tr. 127). Therefore, the sign is not an
adequate "barrier" within the meaning of section 56.3200.
Moreover, Commission precedent supports a violation finding. Cyprus Tonopah Mining
Corp. No. WEST 90-202-M, 1993 WL 396988 (March 22, 1993) is relevant here. In Cyprus, the
Commission upheld the judge's finding of a violation of section 56.3200 based upon a similar set
of facts. Specifically, the Commission affirmed the judge's findings that the safety benches were
full, that there was loose material on the faces, and that the loose material "could come down and
get somebody." Id. at 3. In addition, the Commission also upheld the judge's finding that pieces
of loose material, up to several feet in diameter, existed near the top of the highwall, and that
such conditions were hazardous because they could feed rock onto the slopes below and allow
material to roll into the working area. Finally, the Commission affirmed the judge's finding that
the rough surface of the wall would allow falling rock to bounce, become airborne, and assume a
"considerable horizontal velocity." Id. The Commission concluded that substantial evidence
supported the judge's determination that the ground conditions created a hazard within the
meaning of section 56.3200.
Likewise, the safety bench at Fort Knox Quarry was full, there was loose material on the
face, and the inclined surface of the wall and muck could allow falling rock to bounce or roll at a
"considerable horizontal velocity" into the working area. Furthermore, no berms existed to
protect people in the case of falling rock. Therefore, I find the ground conditions constituted a
hazard within the meaning of section 56.3200. I further conclude that a "reasonably prudent
employer familiar with the mining industry and the protective purposes of the standard would
have recognized that the condition of the quarry wall posed a hazard to persons" in the working
area. Shine Quarry, Inc., 17 FMSHRC at 1400.
Accordingly, I affirm the Secretary's violation finding.
Significant and Substantial (S&S)
An S&S violation is a violation "of such nature as could significantly and substantially
contribute to the cause and effect of a … mine safety or health hazard." 30 U.S.C. § 814(d). A
violation is properly designated S&S, "if, based upon the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement Div., Nat'l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation,
the Secretary must prove: (1) the underlying violation; (2) a discrete safety hazard - that is, a
measure of danger to safety - contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will
be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); see also,
Buck Creek Coal Co., Inc. 52 F. 3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec'y of
Labor, 861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies criteria).

35 FMSHRC Page 3482

It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves "a reasonable
likelihood the hazard contributed to will result in an event in which there is an injury." U.S. Steel
Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985); see also Cyprus Tonopah Mining Corp.
No. WEST 90-202-M, 1993 WL 396988 *3 (March 22, 1993) ("In establishing that a violation is
S&S, the Secretary must prove that there is a reasonable likelihood that the hazard contributed to
by the violation will result in an injury … [whereas] section 56.3200 [merely] requires that
operators restrict miners' access to areas where hazardous conditions exist, whether or not it is
likely that the hazard will result in an injury."). An S&S determination must be based on the
particular facts surrounding the violation and must be made in the context of continued normal
mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S. Steel, 7 FMSHRC at
1130.
The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the "focus of the seriousness of the violation is not necessarily
on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather
on the effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996).
The Secretary argues that the violation is S&S. Namely, the underlying conditions at the
highwall of loose unconsolidated material, the safety bench being full of rock, and fallen rock on
the bench floor all contributed to a safety hazard that was reasonably likely to cause permanently
disabling injuries to Davis and other miners who had traveled and had been exposed to the
hazardous highwall just days before MSHA arrived. P. Br. at 6-8.
The operator argues that the alleged violation is not S&S, primarily because the Secretary
did not provide any concrete evidence that an injury was "reasonably likely" to occur. Rather,
the operator contends that it is unlikely that any falling rocks could roll or bounce off the muck
pile and travel more than the 20 feet provided by the safety zone. R. Br. at 14-15.
I find that the violation is S&S. With regard to the first and second elements of Mathies,
I have already found that section 56.3200 has been violated, and that the violation contributed to
a discrete safety hazard. As shown above, the safety bench was close to full, there was loose
cracked material on the face, and the inclined surface of the wall and muck was reasonably likely
to allow falling rock to bounce and roll into the working area. I also find that the third and fourth
elements of Mathies have been met. As shown above, a miner was within 16 ½ feet from the toe
of the muck pile and only 20 feet from base of the highwall, and rocks had already fallen 40-45
feet beyond the highwall. The miner was therefore exposed to the hazard of falling rock. This
hazard was reasonably likely to seriously injure and permanently disable the miner's lower legs.
Furthermore, there was no question that drillers were going to come in next and drill the shots,
assuming continued normal mining operations. They would have been in serious danger as well.
Therefore, I find that the Secretary has established the four Mathies criteria. Several other
Commission judges have also affirmed S&S violations of section 56.3200 where the presence of
loose, overhanging and cracked material, and other dangerous conditions were present on a
highwall above an area where miners worked. Lakeview Rock Products, 34 FMSHRC 244, 258
(Jan. 2012) (ALJ); Connolly- Pacific Co., 33 FMSHRC 2270, 2272, 2288-90 (Sept. 2011) (ALJ);

35 FMSHRC Page 3483

Richard E. Seiffert Resources, 23 FMSHRC 426, 430 (Apr. 2001) (ALJ); Summit Inc., 19
FMSHRC 1326, 1335 (July 1997) (ALJ). Accordingly, I affirm the Secretary's S&S designation.
Negligence
The Secretary argues that the violation was the result of Respondent’s high negligence in
failing to comply with section 56.3200. P. Br. at 8. The Secretary contends that Davis
knowingly exposed himself to the hazardous work area when he painted the drill marks at the
highwall, and that he was a trained, competent miner who knew that the area was unsafe and too
hazardous for travel and work. Id.
The operator counters that the alleged violation did not result from high negligence. It
emphasizes that Davis's actions to prevent hazardous conditions constitute a mitigating
circumstance because he carefully examined the condition of the highwall and extended the
distance away from the highwall before commencing work. R. Br. at 15-16. The operator also
claims that it had never previously been cited for laying out a shot or working too close to a
highwall. R. Br. at 3.
I find that the violation resulted from high negligence. High negligence occurs when
“[t]he operator knew or should have known of the violative condition or practice, and there are
no mitigating circumstances.” 30 C.F.R. § 100.3(d). No mitigating circumstances exist here.
Davis knowingly exposed himself to the hazardous work area when he painted the drill marks at
the highwall, and took no efforts to abate the violation prior to receiving the citation. Davis is a
trained, competent miner, and either knew or should have known that the area was unsafe and
too hazardous for travel and work (Tr. 47). Furthermore, the fact that Davis extended the
distance from the highwall to 20 feet does not constitute a mitigating circumstance. As shown
above, 20 feet was still too close to constitute a safe distance. The operator was well-aware of
MSHA's interpretation of "affected area," which requires a distance of 25% of the height of the
highwall. This requirement was not satisfied. Also, the hazardous conditions at the highwall
were obvious, as Gabbard testified that the wall was in the worst shape he had ever seen (Tr. 17).
Furthermore, Lively referenced the cost of scaling numerous times as a justification for
failing to do so (Tr. 161). This indicates to me that the company was more concerned with
production costs than safety (Tr. 160-61). Nothing indicates to me that Respondent would have
taken the action required by the standard to make the condition safe before blasting again.
Accordingly, I affirm the Secretary's designation of high negligence.

35 FMSHRC Page 3484

Penalty
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo, including proposed special assessments, for violations of the Mine
Act are well established. Section 110(i) of the Act delegates to the Commission and its judges
the authority to assess all civil penalties provided in the Act. 30 U.S.C. §820(i). The Act
requires that in assessing civil monetary penalties, the Commission or ALJ shall consider the six
statutory penalty criteria:
1. The operator's history of previous violations;
2. The appropriateness of such penalty to the size of the business of the operator charged;
3. Whether the operator was negligent;
4. The effect on the operator's ability to continue in business;
5. The gravity of the violation; and,
6. The demonstrated good faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.
30 U.S.C. §820(i).
The record establishes that the mine is medium-sized (Tr. 10). The operator does not argue
that the proposed penalties would affect its ability to continue in business. There is no dispute that
the conditions were abated in good faith (Tr. 20-21). The mine does not have a significant history
of violations. Mine Data Retrieval System, http://www.msha.gov/drs/ASP/MineAction.asp. The
findings with regard to the negligence involved are discussed at length above. With regard to
gravity, I find this violation to be serious.
The appropriate penalty is $15,570.
Order
Based upon the criteria in section 110(i) of the Mine Act, 30 U.S.C. §820(i), I affirm the
citation as proposed and assess a penalty of $15,570.00. Austin Powder is ORDERED to pay
the Secretary of Labor the sum of $15,570.00 within 30 days of the date of this decision.4
/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge
4

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

35 FMSHRC Page 3485

Distribution:
Schean G. Belton, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, TN 37219,
on behalf of the Secretary of Labor;
Nichelle Young, Esq., Law Office of Adele Abrams, P.C., 4740 Corridor Place, Suite D,
Beltsville, MD 20705, on behalf of Austin Powder Company, Inc.

35 FMSHRC Page 3486

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
875 Greentree Road
7 Parkway Center, Suite 290
Pittsburgh, PA 15220
Telephone: (412) 920-7240
Fax: (412) 928-8689

November 18, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
ADAM WHITT, EMPLOYED BY INMAN
ENERGY,
Respondent.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
EDWARD PAYNTER, EMPLOYED BY
INMAN ENERGY,
Respondent.

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CIVIL PENALTY PROCEEDING
Docket No. WEVA 2013-631
A.C. No. 46-09244-313287-A

Mine: Randolph Mine
Docket No. WEVA 2013-632
A.C. No. 46-09244-313288-A

Mine: Randolph Mine

ORDER DENYING RESPONDENTS’ MOTIONS TO DISMISS1
Before: Judge Andrews
These cases are before me upon petitions for assessment of civil penalties under Section
110(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(c). Respondents
Adam Whitt and Edward Paynter have filed Motions to Dismiss these proceedings for failure to

1

Though these two dockets have not been consolidated, they are both resolved through
this single Order because the legal issues addressed are identical.

35 FMSHRC Page 3487

file the proposed assessments within a reasonable time after the issuance of the citation.2 For the
reasons that follow, the Motions to Dismiss are denied.
I. Procedural Background
On April 1, 2010, Mine Safety and Health Administration (MSHA) inspectors inspected
Inman Mine as part of an E03 impact inspection. The inspectors issued 16 citations and orders.
All of the orders were terminated within five days, and were contested by Inman. The orders
were settled pursuant to a global settlement of former Massey Energy Company controlled
mines in WEVA 2011-1934, et al. This settlement included over 1,000 dockets. A
determination on the merits of the orders was not reached nor was there any admission of any
violations of the Act or regulations by the operator.
Some time thereafter, MSHA initiated 110(c) investigations into possible agent liability
for Whitt and Paynter. On January 23, 2013, the Technical Compliance and Investigation
Office requested an assessment of proposed civil penalties against both agents, which indicated
that the investigation had concluded. On February 4, 2013, MSHA issued civil penalties to
Whitt totaling $18,300.00 for three violations. On the same date, MSHA issued civil penalties
to Paynter totaling $26,900.00 for seven violations.
Respondents Whitt and Paynter filed the instant Motions to Dismiss on July 26, 2013.
II. Contentions of the Parties
The Respondents argue that MSHA failed to assess penalties within a reasonable time,
and as a result these cases should be dismissed due to the unreasonable delay and resulting
prejudice. The Respondents argue that the appropriate time frame to consider is from the
issuance of the underlying citation or order until the 110(c) penalty assessments. According to
that time frame, 1,041 days elapsed.
The Respondents cite the MSHA Program Policy Manual and the MSHA Special
Investigations Handbook to show that MSHA requires 110(c) investigations to conclude within
either 18 months or 7 months (depending on which internal guideline one is referencing.) They
assert that MSHA had no adequate cause for the untimely filing because the underlying
citations and orders did not involve a complicated series of events. Furthermore, they argue
that they suffered prejudice in the form of faded memories, the sale of Inman and closure of the
mine, the resulting destruction of property and records, and the dispersal of potential witnesses.
Furthermore, the Respondents argue that public policy favors dismissal because delays hinder
the protective purposes of the Mine Act.

2

“Dismissal is proper under Fed.R.Civ.P. 12(b)(6) if the pleadings fail ‘to state a claim
upon which relief can be granted.’” Orica USA, Inc., 32 FMSHRC 709, 710 (May 26, 2010)
(ALJ).

35 FMSHRC Page 3488

The Secretary argues that the Mine Act is clear that the relevant time frame this Court
must consider is from the conclusion of the investigation to the issuance of the penalty. The
Secretary argues that if this Court were to adopt the Respondents’ proposed time frame, it
should find that the assessment of penalties was within a reasonable time for several reasons.
First, the Supreme Court has ruled in other statutory settings that without explicit statutory
language or clear congressional intent, such “reasonable time” language is intended “to spur the
Secretary to action, not to limit the scope of his authority.” Sec. Reply to Mot. to Dismiss at 3,
quoting Brock v. Pierce County, 476 U.S. 253, 265 (1986). In this instance, the Secretary
argues that the legislative history and text of the Mine Act shows that there should be no
penalty for an untimely assessment. The Secretary maintains that if any time limit is to be
imposed on MSHA, it should be the general statute of limitations for civil penalty actions of
five years articulated in 28 U.S.C. § 2462.
The Secretary further argues that the phrase, “reasonable time,” is ambiguous, and as
such is deserving of deference. He points to the increased MSHA caseload and the nature of the
investigation to show adequate cause, and argues that in this instance the Respondents have
shown no actual prejudice.
III. Analysis
Section 105(a) of the Mine Act provides that MSHA should assess penalties within a
“reasonable time,” stating:
If, after an inspection or investigation, the Secretary issues a citation or order under
section 814 of this title, he shall, within a reasonable time after the termination of such
inspection or investigation, notify the operator by certified mail of the civil penalty
proposed to be assessed under section 820(a) of this title for the violation cited…
30 U.S.C. § 815(a). Section 110(c), which is at issue in this case, has no such “reasonable time”
requirement; however, § 105(a) time requirements are applied to § 110(c). See e.g. Blevins,
2008 WL 4190437 (Aug. 28, 2008) (ALJ).
Whereas the Respondents focused much of their attention on the phrase “reasonable
time,” there is a predicate issue that may avoid the need to draw a line here on precisely how
many months is unreasonable. Section 105(a) states that the time frame to be considered is
from “after the termination of such inspection or investigation.” In § 110(c) cases, the
reasonable time requirement comprehends the time between the termination of the investigation
until the assessment of the penalty.
I fully concur with Judge Moran’s reasoning and conclusion in Robert J. Silcox, 34
FMSHRC 947 (Apr. 27, 2012) (ALJ). In that case, Judge Moran was faced with a similar issue
and concluded that “there are distinct investigations for a section 104 matter and a 110(c)
matter, the conclusion of any investigation associated with a section 110(c) matter is the only
reasonable point in time to gauge the Secretary's action.” Id. at 947.

35 FMSHRC Page 3489

Though the Commission has not yet addressed this precise issue, numerous decisions by
other ALJs, as well as by the D.C. Circuit Court of Appeals, support this conclusion. See e.g.
Secretary of Labor v. Twentymile Coal Co., 411 F.3d 256,261 (D.C. Cir. 2005); Laurel Run
Mining Co., 19 FMSHRC 437, 441 (Feb. 18, 1997) (ALJ) (“Rather, the operable time period in
these cases is the …period between completion of MSHA's 110(c) investigation…and
notification of the proposed penalties.”); Trujillo, 2013 WL 3152298 (May 13, 2013) (ALJ);
Christopher Brinson et al, 2013 WL 3152293 at *3-4 (May 7, 2013) (ALJ) Sedgman and David
Gill, 28 FMSHRC 322 (June 2006). These decisions all note that it makes far more sense to
begin counting at the conclusion of the § 110(c) investigation, rather than at the issuance of the
underlying citation or order.
Respondents point to the Program Policy Manual and the Special Investigation
Handbook as showing required guidelines for MSHA investigations. However, neither of these
internal administration issues has the force and effect of regulation and thus they are not
binding.3 The guidelines contemplate a time period before the proposed penalty assessment.
Since I am of the opinion that the relevant time period is from the conclusion of the
investigation to the proposed penalty, the question of application of the reasonable time
requirement to delays from the date of a citation or order to the conclusion of an investigation
will not be considered at this time.
Furthermore, deference must be granted to the Secretary’s position in his brief that the
time frame to be considered should begin only after the conclusion of the investigation. Courts
have stated that although the Secretary’s interpretation in a legal brief “is not a formalized
statement of statutory interpretation of the sort that usual[ly] invokes Chevron deference,” it
should still receive deference. Twentymile Coal, 411 F.3d at 261 (“But because “in the statutory
scheme of the Mine Act, the Secretary's litigating position before [the Commission] is as much
an exercise of delegated lawmaking powers as is the Secretary's promulgation of a ... health and
safety standard, [it] is therefore deserving of deference.” Sec'y of Labor v. Excel Mining, LLC,
334 F.3d 1, 6 (D.C. Cir.2003) (quoting RAG Cumberland Res. LP v. FMSHRC, 272 F.3d 590,
596 n. 9 (D.C.Cir.2001) (quoting Martin v. Occupational Safety & Health Review Comm'n, 499
U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991)))).” Certainly, in this case the “delay”
of less than two weeks was reasonable.
While I am concerned about MSHA’s protracted investigation in this matter, the Act
does not appear to place the limits that Respondents argue in their briefs. Neither public policy
nor the goals of the Act are achieved by dismissing these cases, because the ultimate purpose of

3

Indeed, in the section of the Special Investigations Procedures Handbook that
Respondents cite, the timeframes contain the following caveat: “These timeframes are
management goals and shall not be used for individual performance evaluations.” Handbook No.
PH05-1-4, 4-4 (Aug. 2005). If an individual at MSHA cannot be punished for missing one of the
internal deadlines, it does not make sense to punish miners through strict enforcement of these
deadlines.

35 FMSHRC Page 3490

the Act is “the health and safety of [the industry’s] most precious resource—the miner.” 30
U.S.C. § 801(a). Dismissing these cases, even in the context of MSHA’s lengthy investigation,
does not serve this purpose.
Having determined the appropriate time frame for consideration, I specifically find that:



The thirteen days from the conclusion of the 110(c) investigation to the proposed
penalty assessment did not violate the reasonable time requirement of Section
105(a) of the Mine Act; and,
No actual prejudice to the Respondents has been established as resulting from
this thirteen day period of time.

Therefore, Respondents’ Motions to Dismiss are hereby DENIED.

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge

Distribution:
Nicholas S. Preservati, Esq. & Sarah Ghiz Korwan, Esq., Preservati Law Offices PLLC, P.O.
Box 1431, Charleston, WV 25325
Jason Grover, Esq., U.S. Dept. of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd Floor
West, Arlington, VA 22209-2247
/mzm

35 FMSHRC Page 3491

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 25, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

v.
CHEMICAL LIME CO. OF ALABAMA,
LLC,
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. SE 2010-1107-M
A.C. No. 01-00003-227258

Mine: O'Neal Quarry and Mill

ORDER
Carmen L. Alexander, Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
S.W., Room 7TI0, Atlanta, GA 30303
Charles H. Morgan, Alexandra Garrison Barnett, Alston & Bird LLP, 1201 West Peachtree
Street, Atlanta, GA 30309-3424
Before: Priscilla M. Rae, Administrative Law Judge
Overview
This matter is before me on Respondent’s Motion for Partial Summary Decision relating
to a 104(a) Citation, Citation No. 8545847, issued by Mine Safety and Health Administration
("MSHA") Inspector Timothy Schmidt ("Inspector Schmidt") on April 22, 2010 at the O'Neal
Plant based upon his investigation of an accident that occurred at the mine site on March 5, 2010,
in violation of 30 C.F.R. § 56.15006.1 The violation was assessed as posing a reasonable
likelihood of causing a permanently disabling injury to a miner and was deemed significant and
substantial ("S&S"). A high degree of negligence was assessed. The penalty was proposed at
$1,304.00. (Schmidt Dep.) For the reasons set forth below, Respondent Motion for Partial
Summary Decision is DENIED.

1

Section 56.15006 provides that "[s]pecial protective equipment and special protective
clothing shall be provided, maintained in a sanitary and reliable condition and used whenever
hazards of process or environment, chemical hazards, radiological hazards, or mechanical
irritants are encountered in a manner capable of causing injury or impairment."

35 FMSHRC Page 3492

Factual Background
Respondent Chemical Lime produces high calcium limestone that is used in water
treatment processes and numerous products including plastics, metals, and steel. (Hunter Dep. at
17:9-20.) Respondent's O'Neal Plant contains a baghouse that is used to collect dust created
from limestone traveling through the kiln. (Hunter Dep. at 22:10-14.) The baghouse is a
structure consisting of multiple compartments where dust from the kiln is trapped in bags that act
as filters. (Baker Dep. at 13:10-13; Hunter Dep. at 21:21-23, 22:5-9.)
In April 2010, Schmidt and another MSHA Inspector, Michael Evans, were assigned to
conduct an investigation of an accident that occurred at the baghouse. (Evans Dep. at 23:1-10,
27:7-12; Schmidt Dep. at 22:6-23.) Schmidt relied on the facts gathered from the interviews he
conducted, documents contained in the investigation file, and MSHA standards and references,
in issuing the citation. (Schmidt Dep. at 12:14-18, 112:13, 113:18.)
The citation alleges as follows:
Adequate special protective clothing and equipment was not used
and maintained in reliable condition during work in and near the
baghouse. A miner working at the baghouse on 3/5/1 0 was injured
due to lime dust inhalation and subsequently hospitalized. Other
miners working in the area received chemical burns on the arms,
face and neck. On several occasions miners had to flush their eyes
out due to contact with lime dust. The operator did not ensure that
personal protective equipment used at the mine was adequate and
being used properly. (Schmidt Dep. at 12:8-18 & Ex. 5)
Respondent is seeking to have a portion of the citation vacated, as a matter of law.
Respondent argues that insofar as the citation is based on the alleged failure to provide
respirators or to ensure that they were being used properly, partial summary judgment on this
allegation should be granted on the grounds that the Secretary of Labor (the "Secretary") cannot
establish (1) that the cited standard applies to respirators; (2) that hazardous conditions requiring
the use of respirators existed; or (3) that the respirators were not, in fact, properly worn.
Legal Framework
According to 29 C.F.R. § 2700.67(b),
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) that there is
no genuine issue as to any material facts; and (2) that the moving
party is entitled to summary decision as a matter of law.
The Commission has "has long recognized that summary decision is an extraordinary
procedure," and has analogized its rule on summary decision to Rule 56 of the Federal Rules of

35 FMSHRC Page 3493

Civil Procedure, under which the Supreme Court has indicated that "summary judgment is
authorized only upon proper showing of the lack of a genuine, triable issue of material fact."
Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3
FMSHRC 2470, 2471 (Nov. 1981), Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A
material fact is a fact that is significant or essential to the issue or matter at hand. Black’s Law
Dictionary (9th ed. 2009). A genuine issue of material fact exists when the non-moving party
produces evidence that would allow a reasonable fact-finder to return a verdict in its favor.
Greenberg v. Bellsouth Telecommunications, Inc., 498 F.3d 1258 (11th Cir. 2007). The "court
must evaluate the evidence ' in the light most favorable to ... the party opposing the motion."
Secretary of Labor v. Lewis-Goetz and Co., Inc.,No. WEVA 2012-1821, 2013 WL 4648484, at
*2 (FMSHRC July 22, 2013) (ALJ). Factual disputes that are material under the substantive law
governing the case will preclude entry of summary judgment. Lofton v. Secretary of the
Department of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004).
Analysis
Partial summary decision is inappropriate here because there are material issues of fact in
dispute.
First, Respondent contends that there is a "fatal paucity" of "credible evidence" of a
hazardous condition that existed on March 10, 2010 or at any time when minors were allegedly
burned or otherwise injured while working at the baghouse. (Resp. Motion). Therefore the cited
standard does not apply. It relies upon the fact that no silica dust or calcium oxide exposure
levels were taken at the time of the injuries. It is therefore impossible to determine that the
levels were sufficiently dangerous to require the use of special protective equipment. This
contention is the very crux of the Secretary’s case and is in dispute. The Secretary alleges that
the evidence will show that lime dust or calcium oxide is a chemical hazard to which miners
were exposed while changing out bags at the baghouse or otherwise working in and around the
baghouse. (Schmidt Dep., 54:4-7; Exhs. 5 and 7.) He will also present evidence that miners
were burned on or about the eyes, face, neck and arms and suffered respiratory injuries
evidencing a per se hazardous condition.
Respondent argues in the alternative that, assuming there is evidence of a hazardous condition,
there is no “credible evidence” that a respirator was required and not worn. Both the Respondent
and the Secretary in their motions have made conflicting statements as to whether respirators
and/or masks were made available to the miners. (Resp. Stmt of Facts 7, 8, 10; Sec. Memo.
Footnote 2 at pg. 5.) There is also conflicting evidence in the form of witness statements as to
whether masks and/or respirators were in fact available at all times and properly used.

35 FMSHRC Page 3494

Respondent contends that proper equipment was available and used while the Secretary
alleges in part that the fact that several miners suffered exposure-type injuries is a clear
indication that this could not be the case.2
The Respondent’s opinion that the evidence is not sufficiently credible or not in
sufficient quantity to meet the requisite burden of proof to establish the elements of the cited
standard in no way equates to there being no undisputed material facts. As the trier of fact, it is
my job to assess the credibility and weight of the evidence once presented at hearing. It is not
my job at this juncture, however, to do so. Rather, I must view the evidence in the light most
favorable to the non-moving party. In so doing, it would be reasonable to find that a hazardous
condition did exist while the miners were working in and around the baghouse and that
respirators were not provided or not properly used to prevent the injuries allegedly sustained.3
Conclusion
For the reasons set forth above, summary decision is improper in this matter.
Respondent's focus on the Secretary's lack of "credible evidence" merely underscores the fact
that the facts are in dispute and cannot be resolved without a hearing on the matter.
WHEREFORE, Respondent's Motion for Partial Summary Decision is DENIED.

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge

2

It is noted that Respondent has failed to state in its Statement of Undisputed Facts that it
agrees that miners suffered injuries to eyes, face, neck, arms and lungs as a result of exposure to
silica or lime dust on or about March 2010. The Respondent’s lack of acknowledgement of these
alleged facts also must lead to a finding that summary decision is not appropriate here as they are
directly relevant to establishing that a hazardous condition existed when working in and around
the baghouse.
3

Respondent has also moved for partial summary decision on the legal argument that the
cited standard does not include respirators as the type of special protective equipment mandated
for use based upon the language of the MSHA Program Policy Manual interpretation of this
standard. I decline to address that issue while the factual issues discussed herein remain in
dispute. The applicability of the cited standard to the facts once determined at hearing may be
addressed in post-hearing briefs.

35 FMSHRC Page 3495

Distribution:
Carmen L. Alexander, Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
S.W., Room 7TI0, Atlanta, GA 30303
Charles H. Morgan, Alexandra Garrison Barnett, Alston & Bird LLP, 1201 West Peachtree
Street, Atlanta, GA 30309-3424

35 FMSHRC Page 3496