December 2014
TABLE OF CONTENTS

COMMISSION DECISIONS
12-10-2014

DAWES RIGGING & CRANE
RENTAL

LAKE 2011-206-M

Page 3075

12-19-2014

DQ FIRE & EXPLOSION
CONSULTANTS, INC.

WEVA 2011-602

Page 3083

12-19-2014

DQ FIRE & EXPLOSION
CONSULTANTS, INC.

WEVA 2011-952-R

Page 3090

12-23-2014

HIDDEN SPLENDOR RESOURCES,
INC.

WEST 2009-208

Page 3099

COMMISSION ORDERS
12-11-2014

BRODY MINING, LLC

WEVA 2014-82-R

Page 3111

12-23-2014

BLUESTONE QUARRIES, INC.

SE 2011-577-M

Page 3121

12-23-2014

C. S. & S. COAL CORPORATION

VA 2010-51

Page 3123

12-23-2014

SIERRA ROCK & DIRT, INC.

WEST 2014-42-M

Page 3125

12-23-2014

CONSOLIDATION COAL
COMPANY

WEVA 2014-786

Page 3127

12-23-2014

CONSOLIDATION COAL
COMPANY

WEVA 2014-1044

Page 3129

12-30-2014

AUSTIN POWDER COMPANY

KENT 2013-1078

Page 3133

12-30-2014

80TH STREET AGGREGATES

LAKE 2013-82-M

Page 3137

12-30-2014

LAKEVIEW REDI-MIX COMPANY

WEST 2010-314-M

Page 3139

i

12-30-2014

HARRY C. CROOKER & SONS,
INC.

YORK 2012-123-M

Page 3141

ADMINISTRATIVE LAW JUDGE DECISIONS
02-26-2014

NELSON QUARRIES INC.

CENT 2011-0878-M

Page 3143

03-31-2014

FRED ESTRADA v. RUNYAN
CONSTRUCTION, INC.

CENT 2013-311-DM

Page 3156

09-15-2014

CACTUS CANYON QUARRIES,
INC.

EAJA 2014-1-M

Page 3186

09-15-2014

REX COAL COMPANY, INC.

KENT 2011-1037

Page 3195

12-04-2014

EXCEL MINING, LLC

KENT 2011-1618

Page 3232

12-05-2014

PORTABLE, INC.

WEST 2013-526-M

Page 3249

12-08-2014

SIGNATURE MINING SERVICES,
LLC

EAJ 2012-0002

Page 3261

12-22-2014

MAGRUDER LIMESTONE CO.,
INC.

EAJ 2013-01

Page 3288

12-22-2014

M-CLASS MINING LLC

LAKE 2011-295

Page 3301

ADMINISTRATIVE LAW JUDGE ORDERS
10-29-2014

EMERALD COAL RESOURCES, LP

PENN 2013-305

Page 3315

12-02-2014

HECLA LIMITED

WEST 2013-781-M

Page 3318

12-05-2014

POCAHONTAS COAL COMPANY,
INC.

WEVA 2014-395-R

Page 3322

12-12-2014

STAR MINE OPERATIONS, LLC

WEST 2015-100-RM

Page 3326

ii

12-17-2014

SEC. OF LABOR O/B/O JUSTIN
GREENWELL v. ARMSTRONG
COAL COMPANY

KENT 2014-791-D

Page 3330

12-17-2014

DANIEL B. LOWE v. VERIS GOLD
USA, INC.

WEST 2014-614-DM

Page 3334

12-19-2014

KIRK FENOFF & SON
EXCAVATING

YORK 2014-28M

Page 3339

12-23-2014

HECLA LIMITED

WEST 2012-466-CM

Page 3345

12-30-2014

BRODY MINING, LLC

WEVA 2014-82-R

Page 3355

iii

Review was denied in the following cases during the month of December 2014:
Secretary of Labor, MSHA, v. Brody Mining, LLC, Docket No. WEVA 2014-82-R, et al. (Judge
Moran, November 3, 2014)
Secretary of Labor, MSHA, v. Pretty Good Sand Company, Inc., Docket No. SE 2014-344-DM
(Judge Lewis, November 14, 2014)

Review was not granted in any case during the month of December 2014.

Previously unpublished in FMSHRC Volume 36, Nos. 2, 3, 9, and 10
Secretary of Labor, MSHA, v. Nelson Quarries Inc., Docket No. CENT 2011-0878-M, (Judge
Manning, February 26, 2014)
Fred Estrada v. Runyan Construction, Inc., Docket No. CENT 2013-311-DM (Judge Moran,
March 31, 2014)
Secretary of Labor, MSHA, v. Rex Coal Company, Inc., Docket No. KENT 2011-1037
(Judge Andrews, September 15, 2014)
Cactus Canyon Quarries, Inc., v. Secretary of Labor, MSHA, Docket No. EAJA 2014-1-M
(Judge Rae, September 15, 2014)
Secretary of Labor, MSHA, v. Emerald Coal Resources, LP, Docket Nos. PENN 2013-305,
PENN 2013-306 (Judge Miller, October 29, 2014)

iv

COMMISSION DECISIONS

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

December 10, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.

LAKE 2011-206-M

v.
DAWES RIGGING & CRANE RENTAL

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”), and involves a single citation issued to
Dawes Rigging and Crane Rental (“Dawes”) by the Department of Labor’s Mine Safety and
Health Administration (“MSHA”). Citation No. 6502467 alleges that Dawes’ workers failed to
stay clear of a suspended load as required by the mandatory safety standard in 30 C.F.R.
§ 56.16009.1 The Administrative Law Judge affirmed the citation and the unwarrantable failure
designation, concluding that three workers were within the suspended load’s spin/arc/fall path in
violation of the standard. 34 FMSHRC 2012, 2024-25, 2028-29 (Aug. 2012) (ALJ).
While we affirm the finding of a violation and the assessed penalty, we conclude that the
Judge erred in finding an unwarrantable failure.2 We find that the Judge erred in his analysis of
the extent of the violation, the length of time the violation existed, and whether the operator was
put on notice that greater efforts were necessary to achieve compliance with the standard. In
addition, in light of these errors, the Judge failed to give proper weight to the fact that the one
worker who traveled directly under the suspended load did so to prevent an imminent threat to
another worker.

1

30 C.F.R. § 56.16009 provides that “[p]ersons shall stay clear of suspended loads.”

2

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

36 FMSHRC Page 3075

I.
Factual and Procedural Background
Dawes was contracted to provide, assemble, and operate a Manitowoc Model 21,000
mobile crane at Tilden Mine’s pellet plant in Marquette County, Michigan. On May 27, 2010,
Dawes was attempting to connect a 93,000 pound, 150 foot long lattice boom to the body of the
Model 21,000 crane with the help of a smaller Manitowoc Model 14,000 crane. 34 FMSHRC at
2017, 2030. This process, referred to as the “boom-to-foot connection,” required the smaller
crane to lift the lattice boom precisely into place so that the boom and body of the larger crane
line up and pins could be inserted to connect the two components. Id. at 2017, 2021. The
assembly of the crane was overseen by Assembly/Disassembly Director William Rahmlow, a
veteran in crane operation and assembly with over two decades of experience at Dawes. Id. at
2019.
Dawes employed seven men to complete the boom-to-foot connection. Jeffery Eick and
an oiler were tasked with holding tag lines to help stabilize the elevated boom. Eick was
positioned two to seven feet to the east of the boom on the end of the boom closest to the body of
the Model 21,000 crane, and the oiler was on the west side of the boom on the opposite end.
Rahmlow was immediately adjacent to the west side of the boom, across from Eick, giving
instructions to the crew to help guide the boom into place. Id. at 2020-21, 2024-25; Dawes Ex.
12. Two men were located on the body of the large crane where they would make the final pin
connections when the boom was in place. 34 FMSHRC at 2017; Tr. 162. Cleve Mozley was
operating the Model 21,000 crane, and Randy Gilbertson was operating the Model 14,000 crane.
34 FMSHRC at 2017.
While the lattice boom was being lifted into place, a gust of wind caused the boom to
swing to the east towards the cab of the large crane where Mozley was working. Id. at 2018. To
avoid a collision, Rahmlow instructed Eick to cross under the boom to pull the boom away from
the cab. Id. at 2025; Tr. 169, 170. Eick complied, and with Rahmlow’s assistance, was able to
pull the tag line and re-stabilize the boom. 34 FMSHRC at 2025.
MSHA Inspector Dominic Vilona observed Dawes’ assembly of the crane from inside a
van parked atop a hill 150 yards away. Id. at 2014, 2014 n.2. From the inspector’s vantage
point, it appeared that Rahmlow was working directly under the boom. Tr. 26-27. Vilona also
observed another miner (Eick) on the northeast side of the boom holding a tag line. Tr. 27.
Vilona then had the van driver go to the site, where he observed that the person with the tag line
had moved to the northwest side of the boom. Tr. 31-32. Accordingly, Vilona issued a citation
alleging a violation of section 56.16009 for the two men’s failure to stay clear of a suspended
load. Tr. 45; 34 FMSHRC at 2015.
In his decision below, the Judge found that Eick, Rahmlow, and Mozley had failed to
stay clear of the area in which the boom could have moved, spun, or fallen in violation of the
standard. 34 FMSHRC at 2024. Although Rahmlow and Mozley were never directly under the
suspended boom, the Judge noted that their proximity to the boom placed them both at risk of
serious injury were it to move or fall unexpectedly. Id. at 2024-25.

36 FMSHRC Page 3076

Dawes filed a petition for review, which the Commission granted. It contends that the
cited standard does not apply to the assembly of a crane, and even if it does, the regulations
should not be interpreted to prevent the assembly crew from working alongside the suspended
boom. Dawes further argues that the Judge erred in finding an unwarrantable failure as its
conduct did not rise to the level of aggravated conduct or a reckless disregard or indifference to
the safety of its workers.
II.
Disposition
A.

Whether Section 56.16009 Applies to Suspended Components During Equipment
Assembly

The cited standard, 30 C.F.R. § 56.16009, appears in the regulations governing metal and
nonmetal mines, under Subpart O entitled “Materials Storage and Handling.” Dawes asserts that
the crane is “machinery” rather than “material” and hence is not covered by the standard.
Regulatory language cannot be construed in a vacuum but must be read in its context and
with a view to its place in the overall regulatory scheme. See Davis v. Michigan Dept. of
Treasury, 489 U.S. 803, 809 (1989). When a regulation is ambiguous, traditional tenets of
regulatory interpretation permit examination of the heading of the section in which the regulation
falls to assist in resolving doubt about its meaning. Northshore Mining Co. v. Sec’y of Labor,
709 F.3d 706, 710 (8th Cir. 2013) (citing Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R. Co.,
331 U.S. 519, 529 (1947); Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998)).
Although ambiguity may exist in the scope of the regulation’s application, we find the
term “materials” sufficiently broad to encompass the suspended boom in question. “Materials”
is defined, inter alia, as the “substance or substances out of which a thing is or can be made” or
the “[t]ools or apparatus for the performance of a given task.” AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE 1079 (4th ed. 2009); see also Robert Hardin, 19
FMSHRC 1233, 1237 (June 1997) (defining the term “smoking materials”). We are not
persuaded by Dawes’ contention that the suspended boom is beyond the purview of the
regulation. The placement of the regulation does not exclude suspended equipment from
coverage. See Jim Walter Res., Inc., 7 FMSHRC 493, 495-96 (Apr. 1985) (finding a regulation
governing the transport of “materials” to include the transport of coal, despite the Judge’s
finding that a more appropriate standard existed). Additionally, Subpart O contains other
regulations that address equipment such as overhead cranes (§§ 56.16014, 56.16015), forklifts (§
56.16016), and tag lines, hitches and slings (§ 56.16007).
We decline to read a limitation into the standard where none exists. We find the standard
applicable to the case at hand.

36 FMSHRC Page 3077

B.

Whether Dawes’ Conduct Violated Section 56.16009

The question of whether an operator has violated section 56.16009 is dependent on
whether a person was not “clear of” the suspended load. The inspector issued Citation No.
6502467 based on the belief that both Eick and Rahmlow had failed to stay clear of the
suspended load because they had gone directly under the boom. The Judge discounted the
inspector’s testimony concerning Rahmlow’s location directly under the boom based on the
contrary testimony by Dawes’ witnesses and the inspector’s distance from the assembly site. 34
FMSHRC at 2024-25. However, the Judge interpreted “stay clear of” to prohibit persons from
working in the suspended load’s possible arc or radius and the area that would be affected should
the load fall. Id. at 2024. Accordingly, the Judge found that not only were Eick and Rahmlow in
violation of the standard, but that Mozley, who was operating the Model 21,000 crane, was also
not clear of the boom.
All parties agree that it is not safe to stand directly under a suspended load. See Tr. 86,
121, 146, 160, 173, 179, 189; Sec’y Ex. 15 at 2-20, Fig. 2-4. Further, we have held that “stay
clear of” requires more than simply staying out from directly underneath a suspended load.
Anaconda Co., 3 FMSHRC 299, 301 (Feb. 1981). As explained below, the record in this case
does not permit further elaboration on the principle in Anaconda.
It is undisputed that, at Rahmlow’s direction, Eick crossed directly under the suspended
load in order to pull the wayward boom away from the cab where Mozley was working. In
doing so, Eick placed himself in danger of potentially fatal injuries were the crane’s rigging to
fail and the 93,000 pound boom to fall. Although in some emergency situations there may be
instances where an operator is justified in violating a standard to prevent an impeding greater
hazard, Sewell Coal Co., 5 FMSHRC 2026, 2029 n.2 (Dec. 1983), Eick’s conduct cannot be
excused by citing the threat the boom posed to Mozley. This was an emergency of Dawes’ own
making by virtue of the number and placement of tag lines attached to the boom. Had Dawes
employed additional tag lines or made effective use of the two existing tag lines, the crane
assembly crew would have been better situated to counteract the effect of the sudden gust of
wind without resorting to Eick moving under the boom. Eick’s travel beneath the boom clearly
violated the regulation.
The case regarding the placement of Rahmlow and Mozley is not as straightforward.
Much of the testimony of the Secretary’s sole witness, Inspector Vilona, was not credited by the
Judge because of the inspector’s distance from the assembly site and his relative inexperience
with the crane assembly process. 34 FMSHRC at 2014 n.2, 2025 n.14. Whether a person is
clear of a suspended load must be determined by considering the particular facts surrounding the
violation. The case cannot rest on a vague observation that suspended loads move in
unpredictable ways. Tr. 46.
No evidence was presented that either Rahmlow or Mozley was ever beneath the boom,
and it is not clear from the evidence whether they were located in positions in which they were in
danger from the movement or falling of the boom. The Secretary did not produce any evidence

36 FMSHRC Page 3078

as to the area which would be affected if the boom fell.3 In any event, Eick’s unquestioned
movement under the boom clearly violated the standard and we affirm the Judge’s finding of a
violation.
C.

Whether the Judge Erred in Finding an Unwarrantable Failure

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is
characterized by “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., 52 F.3d 133, 136 (7th Cir. 1995) (approving
Commission’s unwarrantable failure test).
Whether the conduct is “aggravated” in the context of unwarrantable failure is
determined by looking at all the facts and circumstances of each case, including (1) the extent of
the violative condition, (2) the length of time that it has existed, (3) whether the violation posed a
high risk 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 has been placed on notice that greater efforts are necessary for compliance.
See Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC
1346, 1350-57 (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 factors need to be viewed in the
context of the factual circumstances of a particular case. 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 operator’s conduct is aggravated or whether mitigating circumstances exist.
Id.
Having reviewed the Judge’s application of those factors, we vacate the Judge’s
unwarrantable failure determination. As set forth below, the factors relevant to an unwarrantable
failure determination do not support a finding of an unwarrantable failure.
The extensiveness of the violative conduct has traditionally been determined by
examining the extent of the affected area as it existed at the time the citation was issued. See E.
Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010) (the purpose of the extensiveness
criterion is to account for the magnitude or scope of the violation); Peabody Coal Co., 14
FMSHRC 1258, 1261 (Aug. 1992) (finding five accumulations of loose coal identified during a
single inspection to be extensive). In some situations, though, extensiveness depends on the

3

Because Vilona issued the citation based on his belief that persons worked directly
underneath the suspended boom, there is scant evidence in the record explaining what area posed
a risk to persons, beyond that directly under the boom. The inspector evidently did not believe
that Mozley was exposed to the hazards posed by the boom. Tr. 44-45. Similarly, the inspector
did not appear to believe that Rahmlow’s position next to, but not under, the boom placed him at
risk of immediate injury. Tr. 84. When Vilona reached the crane assembly site, Rahmlow was
standing very close to the boom guiding the boom-to-foot connection. Tr. 38; Sec’y Ex. 4 at 1.

36 FMSHRC Page 3079

number of persons affected by the violation. See Watkins Eng’rs & Constructors, 24 FMSHRC
669, 681 (July 2002). As discussed above, the evidence establishes that Eick engaged in
violative conduct and that his presence under the boom only endangered himself. Given the
relatively small scope of the hazard, the violation was not extensive.
An operator’s past practices are not relevant to the consideration of the extensiveness
factor in an unwarrantable determination analysis. To the extent the Judge based his
unwarrantable failure finding on Dawes’ past practices, he erred. However, even considering
past practices, the record does not support a finding that the violative conduct was pervasive.
Dawes is a contractor that operates at work sites beyond MSHA jurisdiction, which are governed
by regulatory schemes with different rules regarding how close persons can work in relation to
suspended loads. The record only indicates that Dawes worked at one other mine prior to its
work at Tilden Mine, and there is no testimony as to the type of work performed at mines in the
past. See Sec’y Ex. 14. In light of the fact that the record establishes a relatively discrete
violation in this case, and without past examples of Dawes employees failing to stay clear of
suspended loads at MSHA regulated work sites, there is no basis for finding that the violative
conduct was extensive.4
Similarly, the record does not support the Judge’s presumption that Eick was in
dangerous proximity to the boom for a significant amount of time. Eick was only under the
suspended boom for a matter of seconds. Tr. 54. Although his actions placed him in danger of
serious injury were the rigging to fail, Eick’s exposure to this danger was very brief.
Accordingly, the extensiveness and duration of the violative condition weigh against a finding of
an unwarrantable failure.
Repeated similar violations may be relevant to an unwarrantable failure determination to
the extent that they serve to put an operator on notice that greater efforts are necessary for
compliance with a standard. Amax Coal Co., 19 FMSHRC 846, 851 (May 1997); see also
Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001) (“a high number of past violations
of section 75.400 serve to put an operator on notice that it has a recurring safety problem in need
of correction”) (citations omitted). “The purpose of evaluating the number of past violations is
to determine the degree to which those violations have ‘engendered in the operator a heightened
awareness of a serious . . . problem.’” San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007)
(quoting Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June 1994)).5

4

Given that substantial evidence only supports the finding that Eick violated the
standard, the Judge erred insomuch as he considered Rahmlow’s and Mozley’s conduct in his
unwarrantable failure analysis. See Slip op., supra, at 4-5.
5

A significant difference exists between the forms of notice that inform an operator of
the Secretary’s interpretation of a standard and the forms of notice that inform an operator that
greater efforts at compliance are needed for purposes of an unwarrantable failure analysis. An
operator is on notice of the Secretary’s interpretation of a regulation when it is, or reasonably
should be, aware of the standard’s requirements or is aware of other regulatory enforcement
announcements, such as the Rules to Live By initiative. However, such notice of a regulatory
(continued...)
36 FMSHRC Page 3080

The Judge suggests that the operator was indirectly on notice that greater efforts were
necessary where the regulation and its intent were clear. 34 FMSHRC at 2029. However, the
evidence demonstrates that Dawes had a good safety record. In the 15 months prior to the
issuance of the citation, Dawes had only been cited for two violations by MSHA, neither of
which alleged a violation of section 56.16009 or a danger posed by a suspended load. Sec’y Ex.
14. There is nothing in the record to suggest that MSHA had previously spoken to Dawes about
its crane assembly process or that Dawes was alerted in any other way that employees failing to
stay clear of suspended loads represented an ongoing problem requiring corrective measures.
Accordingly, we determine that substantial evidence does not support the Judge’s finding of
notice and conclude that this factor also weighs against a finding of unwarrantable failure.
Finally, as we have discussed, the Judge’s findings regarding extensiveness, duration,
and notice were erroneous. In light of this, we conclude that the mitigating circumstances
present here outweigh the remaining factors the Judge relied on to find unwarrantable failure.
Most importantly, we agree that Eick’s explanation for why he did not stay clear of the
suspended load should be considered as a mitigating factor. The evidence indicates that Eick
only crossed under the boom in order to address an imminent threat to Mozley. While such a
consideration does not negate the violation, it significantly militates against a finding that Dawes
was indifferent to the safety of its employees.
D.

Penalty Determination

Although we vacate the unwarrantable failure designation, we find the Judge’s
application of the civil penalty criteria in assessing a penalty of $2,500 is not an abuse of
discretion. The Secretary proposed a penalty of $3,000, which the Judge reduced to $2,500. The
penalty assessed by the Judge falls within the range of his discretion given the high level of
danger the 93,000 pound boom posed; the fact that Rahmlow, a supervisor, instructed Eick to
cross under the suspended load; and that Dawes’ decision regarding the number and placement
of tag lines to control the suspended load precipitated the need to go beneath the suspended load.

5

(...continued)

interpretation does not place an operator on notice that its mine is failing to comply with
MSHA’s regulations for the purposes of the unwarrantable failure analysis. In that context, it is
well settled that we examine the operator’s history of violations, warnings from inspectors, and
other forms of specific warnings to determine if the operator has been placed on notice of a
persistent unsafe condition or practice at its mine. See Peabody Coal Co., 14 FMSHRC 1258,
1262 (Aug. 1992) (past preshift examinations placed operator on notice of a problem);
Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001) (past discussions with MSHA
placed operator on notice of a problem); Lion Mining Co., 18 FMSHRC 695, 700 (May 1996)
(history of similar violations and recent roof falls placed operator on notice of a problem).

36 FMSHRC Page 3081

III.
Conclusion
For the reasons set forth above, we (1) affirm in result the Judge’s finding that Dawes
violated section 56.16009, (2) vacate the unwarrantable failure designation, and (3) affirm the
$2,500 penalty assessed by the Judge.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

36 FMSHRC Page 3082

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

December 19, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2011-602
v.
DQ FIRE & EXPLOSION
CONSULTANTS, INC.
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act, 30 U.S.C. ' 801
et seq. (2012) (AMine Act@ or AAct@), an Administrative Law Judge upheld a withdrawal order
issued to DQ Fire & Explosion Consultants, Inc. for an alleged violation of 30 C.F.R. ' 48.5(a).1
Unpublished Order Granting the Secretary=s Motion for Partial Summary Decision dated
Aug. 13, 2012 (ASum. J. Order@). DQ filed a petition for discretionary review challenging the
Judge=s final Decision and Order issued on August 30, 2014. However, the Commission granted
review only on the question of whether the Secretary provided adequate notice of the Secretary=s
interpretation of the training regulations at issue.
For the reasons stated below, we reverse the Judge=s decision and conclude that DQ was
not provided fair notice of the requirements of the training regulations at issue, 30 C.F.R. ''
48.2(a)(1), (a)(2), and 48.5.2

1

30 C.F.R. ' 48.5(a) provides:

Each new miner shall receive no less than 40 hours of training as
prescribed in this section before such miner is assigned to work duties. Such
training shall be conducted in conditions which as closely as practicable duplicate
actual underground conditions, and approximately 8 hours of training shall be
given at the minesite.
2

We have determined that oral argument is not necessary, and, therefore, DQ=s motion
for oral argument is denied.

36 FMSHRC Page 3083

I.
Facts and Proceedings Below
The central issue presented in this case is whether a scientific consultant, hired by the
operator=s attorneys to investigate the causes of an explosion, needed comprehensive new miner
training or only hazard training. Comprehensive miner training requires 40 hours of training and
covers topics in detail such as emergency evacuation and barricading, the use of self-rescue and
respiratory devices, hazard recognition, first aid, mine gases and eight hours of underground
training specific to the mine site. 30 C.F.R. ' 48.5. Hazard training requires significantly less
instruction on topics such as hazard recognition, self-rescue equipment, and emergency
evacuation procedures. 30 C.F.R. ' 48.11. Miners subject to hazard training must be
accompanied at all times underground by an experienced miner. Id.
On April 5, 2010, a massive coal dust explosion occurred at the Upper Big Branch
(AUBB@) Mine resulting in the deaths of 29 miners. Performance Coal Company was the operator
of UBB at the time of the explosion. The Department of Labor=s Mine Safety and Health
Administration (AMSHA@) immediately began an extensive investigation into the causes of the
explosion.
Performance Coal=s attorneys hired Dr. Christopher Schemel (ASchemel@) of DQ as a
consultant to be part of the investigation team for UBB, and to provide information to
Performance Coal about the explosion and how it occurred. During MSHA=s part of the
investigation, Schemel accompanied personnel from MSHA and West Virginia=s Office of
Miner=s Health Safety and Training. From June 29 to October 6, 2010, he went underground with
MSHA on 25 days during MSHA=s investigation. Sum. J. Order at 6. His role was to accompany
the MSHA team to observe mine conditions, gather data for his own analysis, and take notes.
Schemel Dep. at 80-81, 84-85. Prior to going underground, Schemel received hazard training
required by 30 C.F.R. ' 48.11. Sum. J. Order at 9. Throughout the period from June to October,
MSHA was aware that Schemel had only received hazard training. Id. at 3.
On October 7, 2010, MSHA issued an order withdrawing Schemel from the mine until he
received comprehensive 40-hour training.3 This withdrawal order corresponded with the onset of
Performance Coal=s part of the investigation. Schemel received the 40-hour training and then
resumed his investigatory and analytical consultant duties.

3

Order No. 8249950 provides:
Chris Schemel, a contract employee for the operator, has
not received the required 40-hour new miner training prior to
performing duties underground at the mine site. Mr. Schemel has
no previous mining experience. Mr. Schemel is hereby ordered to
withdraw from the mine until he has received the required training.
The Federal Mine Safety and Health Act of 1977 declares that an
untrained miner is a hazard to himself and to others.

36 FMSHRC Page 3084

The Secretary assessed a penalty of $112 for the training violation. DQ contested the
order and penalty. Prior to a hearing, the Secretary filed a motion for partial summary judgment,
contending that the record and law were uncontroverted that Schemel was a miner under 30
C.F.R. ' 48.2(a)(1) who needed comprehensive training under 30 C.F.R. ' 48.5. DQ, on the
other hand, argued that Schemel was not a Aminer@ as defined by section 48.2(a)(1), but was
instead a Ascientific worker@ as described in section 48.2(a)(2), and therefore required only
hazard training.
In addressing DQ=s argument that Schemel required only hazard training because his
work fell under the scientific worker exception, the Judge agreed that some of Schemel=s work at
the UBB mine consisted of collecting data and analyzing coal dust, and could fall within the
realm of scientific work. However, the Judge reasoned that Schemel was not conducting
research for scientific purposes alone and Ahis primary purpose was assisting his employer in
litigation.@ Sum. J. Order at 12. Accordingly, the Judge found that DQ qualified as Aan
independent contractor@ that was providing Aservices@ to the mine, as that term is used in the
Mine Act and in the training regulations. Id. at 13-14. The Judge further found that the training
standards demonstrate Aan obvious intent on the part of the Secretary to provide 40-hour training
to . . . those whose time underground is sufficient to create an exposure to hazards.@ Id. at 14.
She held that Schemel Awas frequently exposed to hazards underground,@ and as such was
required to have comprehensive training pursuant to section 48.2(a)(1). Id.
The Judge also rejected DQ=s argument that the Secretary failed to provide notice of his
interpretation of the training regulations, concluding that Aa reasonably prudent person familiar
with the mining industry and the protective purpose of the standard would understand that a
person who is underground for frequent and extended periods of time must be adequately
trained.@ Id. at 15.
II.
Disposition
A.

Relevant Training Law

Mine Act section 115(a)(1) requires that A[e]ach operator. . . shall have a health and
safety training program which . . . .shall provide as a minimum that new miners having no
underground mining experience shall receive no less than 40 hours of training.@ 30 U.S.C. '
825(a)(1). Section 104(g) of the Act provides that if the Secretary finds Aa miner who has not
received the requisite safety training as determined under section 115 of this Act, the Secretary. .
. shall issue an order . . . which declares such miner to be a hazard to himself and to others, and
requiring that such miner be immediately withdrawn from the coal . . . mine, and be prohibited
from entering such mine until an authorized representative of the Secretary determines that such
miner has received the training required by section 115 of this Act.@4 30 U.S.C.' 814(g).
4

The legislative history of the Mine Act expressed a deep concern over the problem of
poorly trained miners and attributed many mining disasters to poor training. S. Rep. No. 95-181,
at 49-51 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 637-39.
36 FMSHRC Page 3085

The Secretary=s Part 48 regulations implement Mine Act section 115 and set forth
different types of training requirements. As noted above, pertinent to this case are
comprehensive new miner training, which is outlined in section 48.5, and hazard training,
described in section 48.11. The definitions of Aminer@ set forth in sections 48.2(a)(1) and (a)(2)
determine which training is applicable, as set forth below. Section 48.2(a)(1) provides:
AMiner@ means, for purposes of [comprehensive training], any
person working in an underground mine and who is engaged in the
extraction and production process, or engaged in shaft or slope
construction, or who is regularly exposed to mine hazards, or who
is . . . a maintenance or service worker contracted by the operator
to work at the mine for frequent or extended periods. This
definition shall include the operator if the operator works
underground on a continuing, even if irregular basis. . . . This
definition does not include: . . . [a]ny person covered under
paragraph (a)(2) of this section.
Section 48.2(a)(2) provides:
AMiner@ means, for purposes of [hazard training], any person
working in an underground mine, including any delivery, office, or
scientific worker or occasional, short-term maintenance or service
worker contracted by the operator, and any student engaged in
academic projects involving his or her extended presence at the
mine. This definition excludes persons covered under paragraph
(a)(1) [above].
Thus, the definitions of Aminer,@ as they relate to the two different training requirements, are
mutually exclusive.
The preamble to Part 48 states that Aonly those persons most directly and regularly
exposed to mining hazards need to undergo comprehensive training.@ 43 Fed. Reg. 47,454,
47,455 (Oct. 13, 1978). It continues: Aother workers at the mine, such as scientific, office, or
delivery personnel, either employed or contracted by the operator, or short term maintenance or
service personnel contracted by the operator [who] are exposed to . . . hazards on a less regular
basis . . . . [t]hese workers, therefore, have periodic instruction concerning the hazards they may
encounter.@ 43 Fed. Reg. at 47,455.
In 2003, MSHA issued a Program Policy Manual on Training and Retraining of Miners
(Vol. III) (APPM@), which provided that independent contractors working at a mine are miners
for Part 48 training purposes and that the type of training a miner receives is not based on the
specific job title but a Adetermination must be made as to the kind and extent of mining hazard
exposure.@ PPM at 34. The PPM states that A[i]ndividuals engaged in the extraction or production
process, or regularly exposed to mine hazards, or contracted by the operator and regularly

36 FMSHRC Page 3086

exposed to mine hazards, must receive comprehensive training.@ Id. It defines A>regularly
exposed= [as] either frequent exposure, that is exposure to hazards at the mine on a frequent
rather than consecutive day basis (a pattern of recurring exposure), or extended exposure of more
than 5 consecutive workdays, or both.@ Id. The PPM goes on to state that independent
contractors Amust receive comprehensive training if they . . . are regularly exposed to mine
hazards.@ PPM at 35, 36.
B.

Whether DQ Had Notice that Schemel Needed Comprehensive Training

Under Commission precedent, if the language of a regulation provides clear and
unambiguous notice of its coverage and requirements, no further notice is necessary. Bluestone
Coal. Co., 19 FMSHRC 1025, 1029 (June 1997) (when regulatory provision is clear and
unambiguous, then the regulation provides adequate notice); Nolichuckey Sand Co., 22
FMSHRC 1057, 1061 (Sept. 2000) (If the regulation is unambiguous, the regulation=s clear
meaning is controlling and it Afollows that the standard provided the operator with adequate
notice of its requirements.@)
Sections 48.2(a)(1) and (a)(2) do not explain or define who qualifies as a Ascientific
worker.@ Similarly, neither the preamble nor any published guidances, including the 2003 PPM,
explains the term Ascientific worker.@ Accordingly, we determine that sections 48.2(a)(1) and
(a)(2) are ambiguous with respect to who qualifies as a scientific worker under these
circumstances.
When a regulation is ambiguous, the courts and this Commission defer to the Secretary=s
reasonable interpretation of the regulation. E.g., Energy West Mining Co. v. FMSHRC, 40 F.3d
457, 463 (D.C. Cir. 1994). However, this is not a case of interpretation but rather involves
whether the operator received sufficient notice to satisfy due process considerations.5
The due process clause Aprevents . . . deference from validating the application of a
regulation that fails to give fair warning of the conduct it prohibits or requires.@ General Electric
Co. v. EPA, 53 F.3d 1324, 1328 (D.C. Cir. 1995)(citation omitted) (AGE@ ). DQ argues that it had
insufficient notice of the Secretary=s interpretation because Schemel should be classified as a
Ascientific worker@ under section 48.2(a)(2) (requiring only hazard training) and because MSHA
permitted him to go underground many times before asserting the need for comprehensive
training.
When a regulation does not provide unambiguous notice of its coverage, the appropriate
test for notice of an ambiguous regulation is Awhether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.@ Ideal Cement Co., 12 FMSHRC 2409, 2416
(Nov. 1990). AIn deciding whether a party had adequate notice of regulatory requirements, a
5

We do not address the issue of whether the Secretary=s interpretation of the training
regulations at issue was reasonable in that the Commission did not accept review of that question
in granting DQ=s petition. 30 U.S.C. ' 823(d)(2)(A)(iii).

36 FMSHRC Page 3087

wide variety of factors are relevant, including the text of a regulation, its placement in the overall
regulatory scheme, its regulatory history, the consistency of the agency=s enforcement, and
whether MSHA has published notices informing the regulated community with ascertainable
certainty of its interpretation of the standard in question.@ Lodestar Energy, Inc., 24 FMSHRC
689, 695 (July 2002).
A reasonably prudent person would not have recognized the training mandate now
advanced by the Secretary in part because section 48.2(a)(2) exempts scientific workers from
comprehensive 40-hour training requirements. As the Judge found, some of Schemel=s work at
the UBB mine consisted of collecting data and analyzing coal dust, and could fall within the
realm of scientific work. Sum. J. Order at 12. As discussed above, the text of the regulations
does not define who qualifies as a scientific worker. Additionally, neither the preamble nor the
PPM specifies who falls under the scientific worker category. In the absence of a definition of
Ascientific worker@ in the regulations or published guidances, it was reasonable for DQ to assume
that Schemel qualified as a scientific worker.
Moreover, MSHA=s actions created enormous confusion regarding the type of training
Schemel needed. Schemel accompanied MSHA underground at UBB on 25 occasions prior to
Performance Coal=s part of the investigation.6 On none of these occasions did MSHA indicate
that he required comprehensive 40-hour training.
Indeed, MSHA itself did not assert that Schemel needed comprehensive training when he
was accompanying MSHA officials. It was not until approximately September 9, 2010, after
Schemel had been underground 21 times, when Jerry Vance, a training specialist with MSHA,
checked with MSHA Headquarters to inquire whether Schemel needed more than hazard
training. Vance Dep. at 28. Although Headquarters responded that Schemel required 40-hour
training, MSHA delayed in issuing the withdrawal order until October 7, and MSHA escorted
Schemel underground without comprehensive training on four more occasions.7 Thus, the
actions of MSHA itself contributed to DQ=s failure to understand the training requirements. If
MSHA inspectors and supervisors did not know what the training regulations required, how
could DQ? See GE, supra at 1333 (when agency itself is Aunable to discern clearly . . . [what]
was required,@ the regulation did not provide adequate notice).
In GE, supra at 1334, the court held that when regulations and other policy statements
are unclear and Awhere the agency itself struggles to provide a definitive reading of the
regulatory requirements,@ the regulated party cannot be held to be Aon notice@ of the agency=s
interpretation. See also Lloyd C. Lockrem, Inc. v. United States, 609 F.2d 940, 944 (9th Cir.
6

Schemel accompanied MSHA underground at UBB on the following dates between
June and October 6, 2010: June 29; July 7, 8, 13, 14, 15, 19, 20, 21, 23, 27, 28, 29; August 4, 12,
13, 18, 20, 23, 25, 30; September 9, 23; October 5 and 6. Sum. J. Order at 6.
7

MSHA Inspector Charles Maggard, a training supervisor who was part of the UBB
investigation team, stated that the delay was caused by a lack of coordination with other MSHA
inspectors and the large, busy nature of the UBB investigation. Maggard Dep. at 5-10, 26-27, 3637.

36 FMSHRC Page 3088

1979) (vacating order and providing that Aan employer should not be held to standards, the
application of which cannot be agreed upon by those charged with their enforcement.@). Here,
the ambiguity in the wording of the regulations, coupled with MSHA=s confusing actions,
resulted in a lack of notice to DQ that Schemel was required to have comprehensive training.
We emphasize that this is a narrow ruling based on a unique set of facts. We conclude
that on these facts, dealing with a scientific expert and MSHA=s specific enforcement actions, the
operator did not have notice of the Secretary=s interpretation that miners who are regularly
exposed to mining hazards must receive comprehensive training regardless of job title.
Accordingly, on due process grounds, we vacate the withdrawal order and the penalty at issue
here.
III.
Conclusion
For the foregoing reasons, we vacate Order No. 8249950 and the accompanying penalty.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

36 FMSHRC Page 3089

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

December 19, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEVA 2011-952-R
WEVA 2011-2480

v.
DQ FIRE & EXPLOSION
CONSULTANTS, INC.
BEFORE:

Nakamura, Acting Chairman; Cohen and Althen, Commissioners
DECISION

BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). It involves a citation issued to DQ Fire &
Explosion Consultants, Inc. for a violation of a section 103(k) 1 order issued to Performance Coal
Company at its Upper Big Branch Mine – South (“UBB”) after a massive explosion on April 5,
2010. The citation was issued in January 2011, alleging that DQ violated the terms of a section
103(k) order by entering a restricted area of the mine, Zone 5. The Secretary alleged that high
negligence was involved and initially proposed a penalty of $112. After the hearing, the
Secretary requested that the penalty be increased to $1,000. The Judge affirmed the citation,
found high negligence, and assessed a penalty of $1,000. 34 FMSHRC 2318, 2333-36, 2338-40
(Aug. 2012) (ALJ). DQ filed a petition for discretionary review challenging the Judge’s decision
1

Section 103(k) 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).

36 FMSHRC Page 3090

on several grounds. The Commission granted DQ’s petition only with regard to the Judge’s high
negligence finding.2 For the reasons that follow, we affirm the Judge’s decision.3
I.
Factual and Procedural Background
On April 5, 2010, an underground coal dust explosion killed 29 miners and injured two
others at Performance’s UBB Mine. 34 FMSHRC at 2320; Jt. Stip. 15. In January 2011, DQ was
providing consulting services to Performance at the UBB Mine. 34 FMSHRC at 2319; Jt. Stip. 2.
A representative of MSHA issued a section 103(k) order to the mine following the
explosion on April 5, 2010. Gov. Ex. 3. On December 23, 2010, MSHA modified the previously
issued section 103(k) order controlling access to the accident scene at the UBB Mine and
limiting entry into Zone 5, which included the longwall face, a portion of the headgate for the
longwall, and a portion of the tailgate for the longwall. Tr. 11-12, 38-39, 66, 100; G. Ex. 5. This
is the location where authorities believed the explosion originated. Tr. 8, 85. The modified
section 103(k) order stated:
103(k) Modification allowing Performance Coal to proceed with
its’ [sic] investigation following the completion of investigation
activities on the longwall
This Order is hereby modified to allow Performance Coal to
proceed with its’ [sic] investigation activities with the following
stipulations:
No person shall be permitted in Zone 5 to conduct any
activities other than for the purpose of conducting
examinations required by the regulations.
...

2

In its petition, DQ raised the following issues: (1) whether it was an independent
contractor under the Mine Act; (2) whether a violation of the section 103(k) order occurred; (3)
whether MSHA abused its discretion in modifying the order for January 10, 2011, but not
January 11 and 12; (4) whether MSHA abused its discretion in retaining the December 23, 2010
modification of the order; (5) whether the Judge erred in finding high negligence; and (6)
whether the Judge erred in increasing the penalty.
3

DQ also filed a motion requesting oral argument. We have determined that oral
argument is not necessary, and DQ’s motion is denied.

36 FMSHRC Page 3091

Performance Coal Company shall continue to follow the
Performance Coal Company Investigation Plan Addendum
dated December 2, 2010 . . . .
Any modifications to the existing investigation plan shall
be submitted to MSHA’s Accident Investigation Team.
These modifications will be reviewed and approved by the
AI Team prior to Performance Coal proceeding with any
submitted modification to the existing plan.
Performance Coal shall submit daily updates concerning
the progress of its’ [sic] investigation to MSHA’s Accident
Investigation Team . . . .
34 FMSHRC at 2324; G. Ex. 3. This was the order in effect in January 2011 on the dates of the
alleged violation. The Judge credited MSHA Inspector James Keith McElroy’s testimony that in
order for the section 103(k) order to be modified, the operator must request modification by at
least the night before, and that MSHA had to perform the modification, deliver the modification
to the mine, and assign an authorized representative to escort the operator for the day of the
modification. 34 FMSHRC at 2335; Tr. 82-83.
The negligence determination in this case hinges on the process required for the operator
to seek modifications of the section 103(k) order – and specifically whether the informal
modification process the operator claims it followed sufficed.
On January 10, 2011, Dr. Christopher Schemel led DQ’s investigative team. Tr. 21-23.
He was accompanied by Stephen Dubina, an electrical engineer with MSHA’s Pittsburgh
Technical Support Center, who was assigned as an observer to the Performance Coal/DQ
investigative team. While underground, Schemel asked Dubina for permission to view the
longwall face, which was located in Zone 5, the area where MSHA’s 103(k) order prohibited
access. Tr. 21-22; 34 FMSHRC at 2322-23. Dubina granted him permission. Tr. 46-48; 34
FMSHRC at 2322-23.4
On January 11, 2011, Dr. Pedro Reszka Cabello (“Reszka”) led the DQ team from Zone 3
down Entry No. 2 to crosscut 24, which is in Zone 5. While in crosscut 24, Reszka’s team
examined a supply car and a monorail, took several measurements, and then proceeded to Entry
No. 1. The team took nine photographs of equipment within Zone 5. While underground, Dubina
had suspected that the DQ team had entered Zone 5, but did not have a map to verify that and did
not say anything to Reszka. 34 FMSHRC at 2323; Tr. 30-31. Reszka testified that prior to
entering the mine on January 11, he informed Chris Prater of Performance of DQ’s plan to enter
Headgate 21, which is partly in Zone 5, during their investigation on January 11, and he believed

4

Dubina testified that he did not have a map with him that day, and did not know that
they had entered Zone 5 until he exited the mine. Tr. 21-22, 25.

36 FMSHRC Page 3092

that Prater had notified MSHA by phone on the night of January 10. 34 FMSHRC at 2326; Tr.
99.
On the night of January 11, Prater sent MSHA an email explaining the investigative
teams’ plans for January 12, which included two teams on “HG 21/22 crossover” and one team
“working in the glory hole panel.” 34 FMSHRC at 2535; DQ Ex. D.
On January 12, Reszka’s DQ team traveled through the North Glory Mains at Entry No. 2
into the Headgate area, and then into Zone 5 through Crosscut 24. 34 FMSHRC at 2335; Tr. 33,
35, 105. They traveled through Crosscuts 25 and 26, went to the longwall at Crosscut 26, and
under Shield number 1 to check on some measurements on covers that possibly were blown off
some of the equipment. Then, the team went up to Tailgate 22, to its face area, and then back to
Entry No. 3. While in these areas, the team conducted measurements, examined roof bolts,
timbers, and stoppings, and took 26 photographs in Zone 5. Dubina testified that he had alerted
Reszka that the team had entered Zone 5, but that Reszka did not respond. 34 FMSHRC at 2323;
Tr. 37. Reszka denied that Dubina made any such statement to him. 34 FMSHRC at 2327; Tr.
103. Reszka and Danny Lee Laverty, a representative of Performance whose role was to
accompany DQ during its investigation, both testified that Laverty had asked Dubina’s
permission to enter Tailgate 22 in Zone 5 on Janunary 12, and that Dubina said “I don’t see a
problem with that.” 34 FMSHRC at 2327-28; Tr. 111, 128-31. Dubina testified that he did not
recall this conversation. 34 FMSHRC at 2334; Tr. 135-36.
Initially following the UBB mine explosion, Dubina was part of MSHA’s investigation
team in the electrical group tasked to identify electrical problems. Dubina was not an authorized
representative of MSHA and had no authority to enforce the Mine Act on the Secretary’s behalf.
34 FMSHRC at 2322; Tr. 20. Dubina admitted that he never explained to Schemel or any
representative of DQ that he was not an authorized representative of MSHA. 34 FMSHRC at
2324; Tr. 48, 50, 51.
During his role as observer, Dubina maintained daily logs corroborating DQ’s activities
on the dates in question and reported to MSHA’s Accident Investigation (“AI”) Team any
apparent violation he observed. 34 FMSHRC at 2323-24; Tr. 32-33, 38-39, 56; G. Ex. 6; R. Ex.
E. Following the events of January 10 through 12, Dubina reported DQ’s activities in Zone 5 to
Inspector McElroy, an authorized representative of MSHA’s AI Team, who prepared the citation
at issue in this case. 34 FMSHRC at 2323, 2325.
MSHA issued a section 104(a) citation to DQ for a violation of section 103(k) of the
Mine Act. 34 FMSHRC at 2321; Jt. Stip. 16. Citation No. 8249977 states:
Evidence indicates the operator worked in violation of the
103(k) order #4642503-BB. This modification specifies “No
person shall be permitted in Zone 5 to conduct any activities other
than for the purpose of conducting examinations required by the
regulations.” The operator failed to comply with this stipulation on
01-11-2011 and 01-12-2011. Investigative activities were
conducted in Zone 5 without modification of the k order. This

36 FMSHRC Page 3093

condition has not be [sic] designated as “significant and
substantial” because the conduct violated a prevision [sic] of the
mine act rather than a mandatory safety or health standard.
Ex. G-1; Jt. Stip. 17. The negligence was designated as high and the Secretary initially proposed
a penalty of $112. However, in his post-hearing brief, the Secretary requested that the penalty be
increased to $1,000 “in order to have a deterrent effect so that future MSHA accident
investigations of major mine disasters are not compromised by operators disregarding the
important restrictions in place under a 103(k) order.” S. Post-Hearing Br. at 20-21; 34 FMSHRC
at 2329.
The Judge addressed the issues of whether DQ was an independent contractor under the
Mine Act, the validity of the citation, the degree of negligence and the appropriate penalty. 34
FMSHRC at 2321. After finding that DQ was an independent contractor under the Mine Act, the
Judge subsequently affirmed the citation and found that MSHA did not abuse its discretion in
modifying the section 103(k) order solely for January 10. 34 FMSHRC at 2333-38.
The Judge found high negligence and assessed a penalty of $1,000. Id. at 2338-39. In
considering DQ’s level of negligence, the Judge considered DQ’s argument that it had followed
the informal procedure to seek approval for travel to Zone 5, which was explicitly prohibited by
the section 103(k) order. Id. at 2338. Finding that there was no contention that DQ personnel
were not aware they were traveling to Zone 5, the Judge rejected DQ’s argument, specifically
because the section 103(k) order, which set out the prohibitions and process for investigative
actions by Performance and its agents, was clear on its face and because DQ “offered no
evidence of why the belief in the informal modification procedures was reasonable.” Id. DQ
appealed the Judge’s decision, and the Commission granted DQ’s petition with regard to whether
the Judge erred in finding high negligence.
II.
Disposition
Negligence is one of six criteria a Commission Judge must consider in assessing a
penalty for a violation under the section 110(i) of the Mine Act. 30 U.S.C. § 820(i). The
Commission has stated that a finding of high negligence “‘suggests an aggravated lack of care
that is more than ordinary negligence.’” Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)
(citations omitted). The Commission noted that, in particular, “an operator’s intentional violation
constitutes high negligence for penalty purposes.” Id. (citations omitted).
The Commission has recognized that “[e]ach mandatory standard . . . carries with it an
accompanying duty of care to avoid violations of the standard, and an operator’s failure to meet
the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.” Jim
Walter Res., Inc., 36 FMSHRC 1972, 1975 (Aug. 2014) (“JWR”) (quoting A.H. Smith Stone Co.,
5 FMSHRC 13, 15 (Jan. 1983)). In determining whether an operator has met its duty of care, the
Commission considers what actions would have been taken under the same circumstances by a

36 FMSHRC Page 3094

reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation. See U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).5
The Commission reviews a Judge’s finding of negligence on substantial evidence
grounds. See, e.g., JWR, 36 FMSHRC at 1976; Mach Mining, LLC, 36 FMSHRC 1525, 1526-27
(June 2014); Topper Coal, 20 FMSHRC at 350. Therefore, the issue before the Commission is
whether substantial evidence supports the Judge’s finding of high negligence.
In support of its argument that the Judge erred in finding high negligence, DQ contends
that the Judge did not consider mitigating circumstances related to an informal process for
seeking modification of the section 103(k) order. However, the Judge did explicitly address the
evidence upon which DQ relies and rejected DQ’s arguments. In his decision, the Judge stated:
There is no contention that DQ personnel did not know
they were traveling to Zone 5. Rather, Respondent argues that it
complied with the 103(k) order by informing MSHA by email or
telephone that it planned to enter Zone 5, or seeking approval from
Dubina to enter Zone 5. For the reasons above, I do not find DQ’s
belief in this informal procedure to be a mitigating circumstance.
The prohibitions and stipulations of the 103(k) order were clear on
its face, and Respondent offered no evidence of why the belief in
the informal modification procedures was reasonable.
Accordingly, I find that DQ acted with high negligence when it
violated the 103(k) order.
34 FMSHRC at 2338. Earlier in his opinion under the violation section, the Judge addressed in
great detail the evidence pertaining to DQ’s argument regarding an informal modification
procedure and determined that DQ’s argument lacked merit. Id. at 2334-36.
DQ continues to argue that it believed that it complied with the section 103(k) order by
following informal procedures to obtain MSHA’s approval to enter Zone 5. The Secretary
contends that DQ had knowledge of the clear language of the order, which contained no such
procedure. It is undisputed that DQ’s investigative team entered Zone 5 on January 11 and 12.
Although Reszka testified that he did not know that Dubina was not an authorized representative
of MSHA who could provide DQ authorization on the spot, the Judge rejected the assertion that
such a belief was reasonable because (1) DQ knew the terms of the section 103(k) order, which,
as Inspector McElroy testified, required that a request for a modification be made no later than
5

While the parties cite the Secretary’s Part 100 regulations, they apparently do so for the
limited purpose of providing the Commission guidance in considering the issue on appeal. The
Commission recently rejected the Secretary’s argument that the Commission must apply the
standard of care set forth in 30 C.F.R. § 100.3(d) in considering an operator’s negligence. JWR,
36 FMSHRC at 1975 n. 4 (“The Secretary’s Part 100 regulations apply only to the Secretary’s
penalty proposals, while the Commission exercises independent authority to assess penalties
pursuant to section 110(i) of the Mine Act.”) (citations omitted).

36 FMSHRC Page 3095

the night before, approval by MSHA, and that an authorized representative of MSHA accompany
the operator on the day of the modification, 34 FMSHRC at 2335; Tr. 82-83, and (2) DQ
provided no evidence of approval of an informal procedure. 34 FMSHRC at 2334.
The Commission has held that actual knowledge of the violation and failure to act in
compliance constitutes high negligence. Deshetty, employed by Island Creek Coal Co., 16
FMSHRC 1046, 1053 (May 1994) (concluding that actual knowledge of violative conditions and
failure to act constituted high negligence).
Here, DQ knew of the restrictions on travel to Zone 5 and knowingly violated the terms
of the section 103(k) order. Despite allegations of a good faith belief that it obtained
authorization to enter the restricted area, the Judge concluded such belief was unreasonable. See
Consolidation Coal Co., 14 FMSHRC 956, 969-70 (June 1992) (holding that intentional
misconduct supports a high negligence finding). We agree.
Even were we to accept the operator’s argument that informal modification procedures
sufficed, the record shows that such procedures were not followed for the January 11 or 12
investigations. As a threshold matter, the Judge properly concluded that DQ “conflate[d] the
procedures for complying with the December 23 order by informing MSHA of its plans for the
following day with procedures for modifying the 103(k) order in order to be permitted to travel
to Zone 5.” 34 FMSHRC at 2334 n.5. In any event, the evidence did not reflect that DQ or
Performance alerted MSHA that the investigative team intended to enter Zone 5 on January 11
and 12. The Judge did not find merit in Reszka’s testimony that Prater notified MSHA via phone
on January 10 of DQ’s intention to enter Zone 5 on January 11 because Reszka was neither on
the call nor in the room when the alleged call was made. 34 FMSHRC at 2334; Tr. 123. In
addition, the Judge found that DQ failed to comply with the alleged “informal procedures”
because the email sent by Chris Prater of Performance on January 11 concerning where the
teams were to travel on January 12 omitted reference to Tailgate 22 in Zone 5, where the DQ
team traveled on January 12. 34 FMSHRC at 2334; DQ Ex. D.
Also, the Judge appeared to credit Dubina’s testimony that he did not recall that either
Reszka or Laverty sought his permission to enter Zone 5 on January 12. 34 FMSHRC at 2334;
Tr. 134-36. The Judge declined to credit testimony from DQ’s witnesses that the company
attempted to use “informal procedures” to modify the section 103(k) order. 34 FMSHRC 2334.
Thus, even if Dubina had the authority to permit investigators to enter Zone 5 – which he did not
– there is no finding that he authorized DQ to enter the restricted area on January 11 and 12. We
conclude that substantial evidence supports the Judge’s finding that both on January 11 and 12,
DQ did not follow the alleged “informal procedures” by using prior email or phone contacts, or
by seeking approval from Dubina, MSHA’s observer. 34 FMSHRC at 2334.
Therefore, substantial evidence supports the Judge’s findings that the alleged informal
procedure did not suffice to modify the section 103(k) order and, in any event, DQ did not
comply with any “informal procedure” for modification of the order to permit entry into Zone 5.

36 FMSHRC Page 3096

Finally, DQ argues that MSHA’s action in retroactively amending the section 103(k)
order on January 17 to allow Performance Coal to enter Zone 5 on January 10, but not January
11 and 12, was arbitrary and that this inconsistency reduces its level of negligence. It states that
the modification of the order for January 10 demonstrates that Dubina had apparent authority to
permit entry into Zone 5. This argument fails on several fronts.
First, MSHA’s after-the-fact decision to modify the section 103(k) order cannot be used
to show anything about the reasonableness of an asserted belief regarding Dubina’s authority on
the preceding days when DQ entered Zone 5 without following the required procedures. Thus, it
is not relevant to the issue of the level of DQ’s negligence.
Second, the decision by MSHA not to cite DQ for its actions on January 10 does not
constitute a concession that Dubina had the authority to modify the 103(k) order. MSHA’s
witnesses testified that the decision to modify the order for January 10 was made “to cut [DQ] a
break.” Tr. 83-84, 90-91. Dubina had erred by allowing DQ to enter Zone 5 on January 10.
MSHA’s willingness to forego prosecution under circumstances in which an MSHA employee
made a mistake does not amount to a concession that Dubina had the authority to permit DQ to
enter Zone 5.
Accordingly, we conclude that substantial evidence supports the Judge’s finding of high
negligence.
III.
Conclusion
For the foregoing reasons, we affirm the Judge’s decision.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

36 FMSHRC Page 3097

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1500
401 Liberty Avenue
Pittsburgh, PA 15222
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor 1100
Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Administrative Law Judge Kenneth R. Andrews
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
875 Green Tree Road,
7 Parkway Center, Suite 290
Pittsburgh, PA 15220

36 FMSHRC Page 3098

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

December 23, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

v.
HIDDEN SPLENDOR RESOURCES, INC.

BEFORE:

WEST 2009-208
WEST 2009-209
WEST 2009-210
WEST 2009-342
WEST 2009-591
WEST 2009-916
WEST 2009-1072
WEST 2009-1162
WEST 2009-1451

Nakamura, Acting Chairman; Cohen and Althen, Commissioners
DECISION

BY: Nakamura, Acting Chairman, and Althen, Commissioner
In these civil penalty proceedings, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), the Secretary of Labor seeks
review of three civil penalties assessed by a Commission Administrative Law Judge for
violations of mandatory safety standards by Hidden Splendor Resources, Incorporated. 34
FMSHRC 3310 (Dec. 2012) (ALJ). The Secretary argues that the Judge erred by relying on
mitigating circumstances that were irreconcilable with other penalty-related findings, by
assessing a penalty less than the statutory minimum penalty amount, and by failing to adequately
explain an assessment’s substantial divergence from a penalty proposed by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”).
For the reasons that follow, we conclude that the Judge did not err by relying upon the
mitigating circumstances and affirm that penalty. However, we conclude that the Judge erred
with respect to the other two penalty assessments at issue.
I.
Order No. 8460169
A.

Factual and Procedural Background

On April 10, 2009, MSHA Inspector Richard Boyle issued Order No. 8460169 to Hidden
Splendor, alleging a training violation of 30 C.F.R. § 48.5(a). The order further alleged that the
violation was significant and substantial (“S&S”) and had been caused by the operator’s

36 FMSHRC Page 3099

unwarrantable failure to comply with the standard1 and by high negligence. The inspector issued
the order because he discovered that two new miners had worked underground without receiving
required training. 34 FMSHRC at 3323. The inspector stated that management had told him that
they thought it “would be okay” to have the untrained miners work underground if they were
accompanied by experienced miners. Id.; Tr. 660-61. When the shift foreman discovered that
the new miners had not been trained, he removed the entire crew from the mine as quickly as
possible. 34 FMSHRC at 3324; Tr. 683-85, 687.
The Secretary proposed a penalty of $5,645 for the violation. The operator conceded that
it had violated the training regulation but disputed the special findings and the designation of
high negligence. 34 FMSHRC at 3323-24.
The Judge concluded that the violation was S&S and had been caused by unwarrantable
failure and high negligence. Regarding S&S, he concluded that it was reasonably likely that the
untrained miners could cause a serious injury to themselves or other miners underground. The
Judge further concluded that the violation was unwarrantable because the violation was obvious
and posed a high degree of danger, and Hidden Splendor’s belief that it could send the untrained
miners underground defied common sense and demonstrated a serious lack of reasonable care.
He based his high negligence finding on evidence that mine management knew that the miners
had not completed training. The Judge acknowledged, however, that the foreman immediately
pulled the miners from the mine when he discovered that they had not completed their training
and, “[f]or that reason,” reduced the penalty to $4,000. Id. at 3325-26.
The Secretary argues that the Judge’s decision to reduce the penalty on the basis of the
foreman’s withdrawal of the untrained miners cannot be reconciled with his high negligence and
unwarrantable failure findings. He notes that “high negligence” is defined in 30 C.F.R.
§ 100.3(d)2 as occurring when “[t]he operator knew or should have known of the violative
condition or practice, and there are no mitigating circumstances.” PDR at 17-18 (citations
omitted).3 In addition, the Secretary asserts that the foreman’s action in withdrawing the miners
1

The S&S terminology is taken from section 104(d)(1) of the Act, which distinguishes
as more serious any violation that “could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.” The unwarrantable failure terminology is also
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).
2

Section 100.3(d) defines negligence in part as “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). Section 100.3(d) sets forth five categories of
negligence ranging from “no negligence” to “reckless disregard.” Each category defines the
level of negligence and number of penalty points assigned for that level.
3

The Secretary has previously taken a contrary position, asserting that a Commission
Judge acted within his discretion in assessing a penalty because Part 100 is binding only on the
Secretary and not on Commission Judges. See Hubb Corp., 22 FMSHRC 606, 608 (May 2000).

36 FMSHRC Page 3100

does not diminish the culpability of Hidden Splendor’s management in deciding to send the
miners underground to work without training. Id.
B.

Disposition

The Commission reviews a Judge’s civil penalty assessment under an abuse of discretion
standard. Douglas R. Rushford Trucking, 22 FMSHRC 598, 601 (May 2000). An abuse of
discretion may be defined to include errors of law. Utah Power & Light Co., 13 FMSHRC 1617,
1623 n.6 (Oct. 1991).
The Mine Act sets forth a bifurcated penalty scheme under which the “Secretary proposes
penalties before a hearing based on information then available to him and, if the proposed
penalty is contested, the Commission affords the opportunity for a hearing and assesses [the]
penalty.” Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147, 115152 (7th Cir. 1984). The Secretary’s regulations at 30 C.F.R. Part 100 apply only to the
Secretary’s penalty proposals, while the Commission exercises independent “authority to assess
all civil penalties provided [under the Act]” by applying the six criteria set forth in section
110(i).4 30 U.S.C. § 820(i); Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either
the ALJ nor the Commission is bound by the Secretary’s proposed penalties. . . . [W]e find no
basis upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern the
Commission.”); see also W.S. Frey Co. v. Sec’y of Labor, 57 F.3d 1068, *5 (4th Cir. 1995)
(unpublished) (citing Sellersburg, 736 F.2d at 1152 ) (holding that a Judge is authorized to
determine a penalty amount de novo based on statutory criteria).
We conclude that the Judge did not abuse his discretion in assessing a $4,000 penalty
rather than the penalty of $5,645 proposed by the Secretary. As already discussed, the Judge was
not bound by the Secretary’s penalty proposal. In addition, the Commission’s Procedural Rules
specifically state that, “In determining the amount of penalty, neither the Judge nor the
Commission shall be bound by a penalty proposed by the Secretary. . . .” 29 C.F.R.
§ 2700.30(b). Nor was the Judge bound by the Secretary’s definition of “high negligence” set
forth in section 100.3(d). See, e.g., Jim Walter Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug.
4

Section 110(i) provides in pertinent part:
The Commission shall have authority to assess all civil penalties
provided in this Act. 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.

30 U.S.C. § 820(i).

36 FMSHRC Page 3101

2014) (“We reject the Secretary’s argument that the Commission must apply the standard of care
set forth in 30 C.F.R. § 100.3(d) in considering whether [the operator] was negligent.”);
Deshetty, emp. by Island Creek Coal Co., 16 FMSHRC 1046, 1053 (May 1994).
Moreover, we see no inherent inconsistency between the Judge’s findings of high
negligence and unwarrantable failure and his assessment of a penalty lower than that proposed
by the Secretary. Although the operator’s conduct in permitting the untrained miners to go
underground was intentional, the operator’s conduct was offset by evidence that the foreman
withdrew the miners from the mine as soon as he realized the miners were untrained rather than
waiting until the end of the shift. 34 FMSHRC at 3324, 3325-26; Tr. 685. The foreman’s
conduct, which is imputable to the operator for civil penalty and unwarrantable failure purposes,
promoted miner safety and is to be encouraged. Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 194 (Feb. 1991) (stating that the conduct of an operator’s agents may be imputed to the
operator for civil penalty and unwarrantable failure purposes). Accordingly, we affirm the
$4,000 penalty related to Order No. 8460169.
II.
Order No. 8457347
A.

Factual and Procedural Background

On July 29, 2009, MSHA Inspector DeVere Smith observed accumulations of float coal
dust and coal fines on and around the No. 1 surface belt tailpiece. 34 FMSHRC at 3357. The
inspector considered the condition to be obvious and extensive, and noted that a supervisor had
recently traveled through the area. Tr. 511-12. The inspector issued Order No. 8457347 to
Hidden Splendor, pursuant to section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2). The order
alleged an S&S and unwarrantable accumulations violation of 30 C.F.R. § 77.1104, which had
been caused by high negligence. Hidden Splendor stipulated that it had violated the standard.
34 FMSHRC at 3357, 3359.
Following a hearing on the matter, the Judge found that the violation was unwarrantable
and had been caused by high negligence. However, the Judge concluded that the violation was
not S&S. Id. at 3359-60. Accordingly, the Judge assessed a penalty of $500 rather than the
penalty of $4,000 proposed by the Secretary. Id. at 3357, 3360.
On review, the Secretary argues that the Judge erred by assessing a penalty below the
statutory minimum required by section 110(a)(3)(B) of the Mine Act.5 The Secretary does not
challenge the Judge’s determination that the violation was not S&S.

5

Section 110(a)(3)(B) of the Mine Act provides, “The minimum penalty for any order
issued under section 104(d)(2) shall be $4,000.” 30 U.S.C. § 820(a)(3)(B).

36 FMSHRC Page 3102

B.

Disposition

Section 110(i) of the Mine Act grants the Commission the authority to assess all civil
penalties under the Act in accordance with the six criteria listed. 30 U.S.C. § 820(i). Section
110(a)(3) of the Mine Act sets forth minimum penalty assessment provisions for citations and
orders issued under section 104(d) of the Act. More specifically, section 110(a)(3)(B) sets forth
a minimum penalty of $4,000 for any order issued under section 104(d)(2).
The statutory minimum provisions set forth in section 110(a)(3) are binding upon the
Commission and its Judges. Stansley Mineral Res., Inc., 35 FMSHRC 1177, 1180 (May 2013).
The Commission has explained that sections 110(i) and 110(a)(3) “confer broad discretionary
authority upon the Commission and its Judges to apply the criteria in section 110(i), but require
that no penalty for a section 104(d) citation or order may be assessed at less than the statutory
minimums in section 110(a)(3).” Id.
Here, the Judge sustained the allegations of unwarrantable failure underlying the section
104(d)(2) order. In addition, he adequately addressed each of the six factors required for
consideration under section 110(i). However, the Judge erred by assessing a penalty of less than
$4,000 for a section 104(d)(2) order. Finding no fault otherwise in the reasoning underlying his
assessment, we vacate the penalty assessed by the Judge and impose the $4,000 minimum
penalty required by the Mine Act.
III.
Citation No. 6685833
A.

Factual and Procedural Background

On August 11, 2008, MSHA Inspector Russell Bloomer issued Citation No. 6685833 to
Hidden Splendor, alleging that an S&S roof control violation of 30 C.F.R. § 75.202(a) was
caused by high negligence. The citation alleged bad roof conditions in the mine, including areas
where material had fallen and had exposed roof bolts. The inspector testified that the Horizon
Mine had a history of repeated roof control violations. The Secretary proposed a penalty of
$6,458 for the violation. 34 FMSHRC at 3378.
The Judge found that the operator violated the standard and that the violation was S&S
and caused by high negligence. With respect to S&S, the Judge credited the inspector’s
testimony regarding the roof conditions and the mine’s history of roof falls. Regarding
negligence, the Judge found that the conditions were obvious, extensive, and had existed for
“quite some time.” Id. at 3379-80. He further stated that a roof fall had potentially fatal
consequences to miners, and that the operator had made no effort to correct the conditions. After
finding high negligence, the Judge stated that, “[a] penalty of $5,000 is appropriate for this
violation.” Id. at 3380.

36 FMSHRC Page 3103

The Secretary argues that the Judge erred by substantially deviating from MSHA’s
proposed penalty for the citation without any explanation. The Secretary explains that the
Judge’s assessment of a penalty 23% lower than the proposed penalty requires more explanation
than that the assessed penalty is “appropriate.”
B.

Disposition

In a contested case, the amount of the penalty to be assessed by the Commission and its
Judges is a de novo determination based on the criteria set forth in section 110(i), 30 U.S.C.
§ 820(i). Sellersburg Stone, 5 FMSHRC at 293. Penalties assessed by Commission Judges can
be greater than, less than, or the same as those proposed by the Secretary. Id. However, when it
is determined, based on further information developed in an adjudicative proceeding, that
penalties should be assessed which substantially diverge from those originally proposed, Judges
must sufficiently explain the bases underlying the penalties assessed. Id.; Cantera Green, 22
FMSHRC 616, 622-23 (May 2000).
Here, the Judge considered and made findings on all six section 110(i) factors and
assessed a penalty that was 23% below that proposed by the Secretary. 34 FMSHRC at 3380-81.
However, the Judge did not offer any explanation for the divergence, for instance, by explaining
whether he gave special weight to various criteria, and thus failed to provide the basis for
meaningful review of the penalty by the Commission. See Cantera Green, 22 FMSHRC at 62223, 626 (vacating assessed penalties that ranged from 20% to 70% of the proposed penalties
because Judge failed to explain divergence although he made findings on penalty criteria).
Accordingly, we remand the penalty associated with Citation No. 6685833 to the Judge for
further explanation consistent with this decision.
IV.
Conclusion
For the reasons discussed above, with respect to Order No. 8460169, we affirm the
Judge’s assessment of a penalty in the amount of $4,000. With respect to Order No. 8457347,
we vacate the penalty of $500 assessed by the Judge and hereby assess a penalty in the amount of
$4,000. Finally, we remand the penalty associated with Citation No. 6685833 to the Judge for
further explanation consistent with this decision.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

36 FMSHRC Page 3104

Commissioner Cohen, concurring:
Commissioner Cohen joins the majority with respect to their decision regarding Order
No. 8457347 and Citation No. 6685833, and concurs with their decision regarding Order
No. 8460169.
Order No. 8460169
The Secretary contends that after finding high negligence and unwarrantable failure, the
Judge erred in reducing MSHA’s proposed penalty. According to the Secretary, the Judge relied
on “a reason that should not have been considered after he found that the violation was the result
of mine management’s high negligence.” PDR at 2. I concur with my colleagues’ conclusion
that the Judge did not err when he reduced the civil penalty for Order No. 8460169. Rather, the
Judge’s analysis reflects a thoughtful balancing of the statutory penalty criteria he is required to
consider when exercising his authority to assess civil penalties. I write separately in order to
more fully discuss why the Judge’s Decision fully reflects the principles contained in the Mine
Act.
The Secretary’s argument is predicated on the definition of “high negligence” found in 30
C.F.R. § 100.3(d) (Table X): “The operator knew or should have known of the violative
condition or practice, and there are no mitigating circumstances.” Essentially, the Secretary’s
argument is that: (1) the Commission and its Judges are bound by the definitions of negligence
contained in section 100.3(d); (2) the Judge’s finding of “high negligence” meant that he was
precluded from finding any mitigating circumstances; (3) the fact relied on by the Judge in
reducing the penalty -- the section foreman stopped production and pulled all the miners from the
section as soon as he discovered that management had sent two untrained miners to work there -was not a mitigating circumstance; and (4) because the Judge relied on a mitigating
circumstance, his assessment was inconsistent with his finding of high negligence.
The Secretary’s argument does not reflect a correct understanding of the penalty
provisions of the Mine Act. As my colleagues have noted, slip op. at 3-4, the Mine Act
establishes a bifurcated mechanism for the proposal and assessment of civil penalties. The
Secretary initially proposes a civil penalty for a citation or order under section 105(a), and – if
the operator contests the proposed penalty – the Commission holds a hearing and assesses the
final penalty pursuant to section 110(i). 30 U.S.C. §§ 815(a), 820(i).1 Sellersburg Stone Co., 5
FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147, 1151-52 (7th Cir. 1984).

1

The Commission considers six statutory factors in assessing a penalty: (1) the
operator’s history of previous violations, (2) the appropriateness of such penalty to the size of the
business of the operator charged, (3) whether the operator was negligent, (4) the effect on the
operator’s ability to continue in business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the operator charged in attempting to achieve rapid compliance after
notification of a violation. See 30 U.S.C. § 820(i).

36 FMSHRC Page 3105

To assist in his responsibility to propose civil penalties, the Secretary promulgated
regulations at 30 C.F.R. § 100. See 30 C.F.R. § 100.1 (“This part provides the criteria and
procedures for proposing civil penalties under sections 105 and 110 of the [Mine Act].”) The
Part 100 regulations assign “points” that correlate generally with the six statutory criteria. See 30
C.F.R. § 100.3 (Tables I-XIII). MSHA’s proposed penalty is then calculated based on the
number of points.
The Secretary proposed a penalty of $5,645 for the order at issue. The amount of the
proposed penalty was based, in part, on the Secretary’s allegation that the violation was the result
of “high negligence” on the part of the operator.2 Gov. Ex. 38.
After a hearing on the merits, the Judge concluded that the failure to train the miners in
accordance with 30 C.F.R. § 48.5 was a very dangerous practice, reasonably likely to result in
serious injury. The Judge found that the violation was indeed the result of a high degree of
negligence because the management at Hidden Splendor knew that two miners had not finished
their training, but nevertheless sent the miners underground to work. 34 FMSHRC at 3325.
The Judge then noted that when section foreman Carl Martinez discovered that the
miners had not completed their training, he immediately withdrew the entire crew from the mine.
Id. at 3324, 3325-26; Tr. 683-85, 687. In consideration of the prompt remedial actions of the
section foreman, the Judge lowered the civil penalty to $4,000.
Contrary to the Secretary’s assertion, there is no inherent contradiction between the
Judge’s finding of high negligence and his reduction of the penalty because of the section
foreman’s safety-conscious action.
2

Mine inspectors issue citations on MSHA Form 7000-3. The form includes five
options for negligence: no negligence, low negligence, moderate negligence, high negligence,
and reckless disregard. When issuing the citation, the inspector must check a box designating an
assignment of negligence which he believes most closely resembles the culpability of the
operator for the violative condition at issue. Mine inspectors are directed to consider the
surrounding circumstances in accordance with the definitions of the categories of negligence that
are provided in the Part 100 regulations.
The associated definitions are as follows: No negligence - the operator exercised
diligence and could not have known of the violative condition or practice; Low negligence – the
operator knew of or should have known of the violative condition or practice, but there are
considerable mitigating circumstances; Moderate negligence – the operator knew or should have
known of the violative condition or practice, but there are mitigating circumstances; High
negligence – the operator knew or should have known of the violative condition or practice, and
there are no mitigating circumstances; Reckless disregard – the operator displayed conduct
which exhibits the absence of the slightest degree of care. 30 C.F.R. § 100.3(d) (Table X)
(emphasis added).
The greater the degree of negligence designated by the inspector, the more “penalty
points” are assigned during the penalty proposal process, and the higher the penalty. Id.

36 FMSHRC Page 3106

The Commission and its Judges are not bound by the definitions in Part 100, but instead
assess penalties in accordance with the six statutory criteria set forth in section 110(i) of the Act
“and the information relevant thereto developed in the course of the adjudicative proceeding.”
Sellersburg Stone, 5 FMSHRC at 292; see also Black Diamond Coal Mining Co., 7 FMSHRC
117, 1122 (Aug. 1985) (“The separate procedures by which penalty assessments are proposed by
the Secretary . . . are not material to a penalty assessment by the Commission.”). Indeed, the
Commission has recently specifically rejected the Secretary’s argument that the Commission
must apply the standard of care set forth in section 100.3(d) in considering an operator’s
negligence. Jim Walter Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 2014) (“The Secretary’s
Part 100 regulations apply only to the Secretary’s penalty proposals, while the Commission
exercises independent authority to assess penalties pursuant to section 110(i) of the Mine Act.”)
(citations omitted).
The Seventh Circuit has directly considered the application of the Secretary’s penalty
proposal regulations to the Commission and concluded that there was “no basis upon which to
conclude that these MSHA regulations also govern the Commission.” Sellersburg Stone Co. v.
FMSHRC, supra, 736 F.2d at 1152. The Court further stated:
It cannot be disputed that the Commission and its ALJs constitute
an adjudicative body that is independent of the MSHA. Sen. Rep.
No. 461, 95th Cong. 1st Sess. 38 (1977). This body is governed by
its own regulations, which explicitly state that, in assessing
penalties, it need not adopt the proposed penalties of the Secretary.
29 C.F.R. § 2700.29(b) (1983). Furthermore, neither the Act nor
the Commission’s regulations require the Commission to apply the
formula for determining penalty proposals that is set forth in
section 100.3 of the MSHA regulations.
Id.3
3

I recognize that some courts have applied the Secretary’s Part 100 regulations when
considering a Judge’s negligence finding and assessment of a penalty. Black Beauty Coal Co. v.
FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012) (defining “high negligence” in accordance with
section 100.3(d)); see also Allied Products Co. v. FMSHRC, 666 F.2d 890, 895-96 (5th Cir.
1982) (applying Part 100 regulations in determining whether the Judge abused his discretion in
assessing a penalty). In addition, in an unpublished decision, the D.C. Circuit stated that the
penalty regulations required the Judge to adjust the negligence finding to “moderate negligence”
because he found a mitigating circumstance. Excel Mining, LLC v. Dep’t of Labor, 497
Fed.Appx. 78, 80; 2013 WL 1155362 (D.C. Cir. Mar. 15, 2013). However, these cases are
distinguishable because the issue of whether the Secretary’s Part 100 regulations are binding on
the Commission was not directly before the courts in these proceedings. Thus, the statements
regarding the applicability of Part 100 are dicta. In contrast, in Sellersburg Stone, the issue of
whether the Judge was required to apply section 100.3 in his assessment of penalties was directly
at issue.

36 FMSHRC Page 3107

The definitions in 30 C.F.R. § 100.3(d) make sense in light of the purpose for which they
were created. As described supra in footnote 2, the categories of low negligence, moderate
negligence and high negligence are all characterized by the finding that the operator “knew or
should have known of the violative condition or practice. What distinguishes the three
categories are the existence and amount of “mitigating circumstances” -- if no mitigating
circumstances, the negligence is “high”; if considerable” mitigating circumstances, the
negligence is “low”; and if there simply “are” mitigating circumstances, the negligence is
“moderate”. This sets up a system which is easily applicable by MSHA inspectors at mine sites.
They deal with thousands of violations where the amount of negligence has to be rated. With
this system, they can do it efficiently and quickly (as they must) – if no mitigating circumstances,
check “high”; if considerable mitigating circumstances, check “low”; if somewhere in between,
“moderate”.
In contrast, Commission Judges can evaluate all of the evidence presented to them after a
full hearing and take a more nuanced approach to the degree of negligence. Thus, there is a very
different process for the Judge to evaluate negligence compared with the inspector at the mine
site. The criteria of 30 C.F.R. § 100.3(d) make sense for inspectors at the mine site, but are too
mechanical for Commission Judges.
The Commission has not promulgated a definition of “high negligence”. But the
Commission has stated that high negligence “suggests an aggravated lack of care that is more
than ordinary negligence” and “an operator’s intentional violation constitutes high negligence for
penalty purposes.” Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998). In Deshetty, employed
by Island Creek Coal Co., 16 FMSHRC 1046, 1053 (May 1994), despite the claim of mitigating
circumstances, the Commission upheld an ALJ’s conclusion of high negligence based on
findings “that Deshetty had actual knowledge of the accumulations along the No. 1 belt and that
he failed to remedy the conditions.”
Although Topper Coal and Deshetty provide examples and useful statements about high
negligence, they do not completely define its parameters. Nevertheless, it is clear that a single
mitigating circumstance does not preclude the finding of high negligence. I would suggest that
the application of the Secretary’s definition of high negligence goes beyond the Sellersburg
Stone – Jim Walters Resources proposition that Commission Judges are not bound by the
Secretary’s definition. Rather, I conclude that the 30 C.F.R. § 100.3(d) definition of high
negligence is too restrictive, and should not be used by Commission Judges.
In the present case, the Judge found a high degree of negligence because management
sent two new miners into the mine, knowing that they had not completed their training: “The fact
that Joe Fielder thought it would be permissible to send the new miners into the mine supports
the fact that management knew that these miners had not completed training.” 34 FMSHRC at
3325. The violation, together with its high negligence, was complete when the two untrained
miners entered the mine.
What section foreman Martinez did was in the nature of abatement – “as soon as
Martinez discovered that the miners had not completed their training, he immediately pulled
them out of the mine.” Id. at 3325-26. One of the factors to be considered in setting a penalty

36 FMSHRC Page 3108

pursuant to section 110(i) of the Mine Act is “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).
Here, in ordering the miners out of the mine, section foreman Martinez did not wait for
“notification of a violation”. He took action immediately. Since a Judge is statutorily required
to consider the mine’s promptness in abating a violation after notification by MSHA, it is
certainly appropriate for the Judge to consider a section foreman’s prompt action in averting a
hazard before an MSHA inspector appeared on the scene.
In Spartan Mining Co., 30 FMSHRC 699, 710, 722-26 (Aug. 2008), the Commission
affirmed a Judge’s decision to substantially increase penalties because of extreme negligence on
the part of a section foreman. Conversely, it is appropriate for a Judge to reduce a penalty where
a section foreman takes decisive action to enhance miners’ safety even when his superiors
created the hazard by flouting the law. When assessing a civil penalty a Commission Judge may
consider the deterrent purposes of a civil penalty within his analysis of the statutory criteria.
Black Beauty Coal Co., 34 FMSHRC 1856, 1866-67 (Aug. 2012). Lowering a civil penalty,
after crediting a foreman’s proactive behavior in abating a violative condition before it was cited,
is consistent with the deterrent purposes of a civil penalty. Stated another way, lowering a
penalty based on abatement prior to the issuance of a citation encourages vigilance and works to
deter the existence of violative and unsafe conditions.
I find no inconsistency in the Judge’s application of the six penalty criteria. I conclude
that the Judge’s analysis is well reasoned and does not reflect an abuse of discretion. Rather, the
Judge’s analysis reflects an appropriate exercise of the discretion that was afforded to the
Commission by Congress to assess civil penalties. Thus, I join my colleagues in affirming the
$4,000 penalty for Order No. 8460169.

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

36 FMSHRC Page 3109

COMMISSION ORDERS

36 FMSHRC Page 3110

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

December 11, 2014

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEVA 2014-82-R, et al.1

v.
BRODY MINING, LLC

BEFORE:

Nakamura, Acting Chairman; Cohen 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. (2012). On December 1, 2014, the Secretary of Labor filed with the Commission a
document entitled “Petition for Discretionary Review.” The Secretary seeks review of a
Decision issued by an Administrative Law Judge on November 3, 2014, in which he dismissed
the Pattern of Violation (“POV”) Notice issued by the Secretary to Brody Mining, LLC.
(“Brody”) on October 24, 2013. 36 FMSHRC __, slip op. at 19, Nos. WEVA 2014-82-R,
(Nov. 1, 2014) (ALJ). The Judge’s decision was not a final order. Nonetheless, the Secretary
has appealed the decision on the basis of the collateral order doctrine. As explained below, the
collateral order doctrine does not apply to this case at this juncture. Therefore, we deny the
petition for review.
Under section 104(e)(1) of the Mine Act, if an operator has a pattern of violations of
mandatory health or safety standards which could significantly and substantially contribute to the
cause and effect of health or safety hazards, it shall be given written notice that such a pattern

1

The relevant docket numbers involved in this proceeding are listed in Appendix A,
attached to this decision.

36 FMSHRC Page 3111

exists.2 If, within 90 days following issuance of the POV Notice, an inspector cites the operator
for a significant and substantial (“S&S”)3 violation, then the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) may issue a withdrawal order under section 104(e)(1) of
the Act. 30 U.S.C. § 814(e)(1).
Background
On October 24, 2013, the Secretary notified Brody that a pattern of violations existed at
its Brody No. 1 Mine. In response, Brody filed a contest of the POV Notice.
In an Order dated January 30, 2014, Chief Administrative Law Judge Robert Lesnick
dismissed Brody’s challenge to the POV Notice itself (Docket No. WEVA 2014-81-R) for lack
of jurisdiction. Brody Mining, LLC, 36 FMSHRC 284, 287 (Jan. 2014). The Judge found,
however, that he had jurisdiction to hear any contest of an order issued pursuant to section 104(e)
of the Act and any properly contested citation or order relied upon by the Secretary in issuing the
2

Section 104(e) of the Mine Act, 30 U.S.C. § 814(e), states, in relevant part:
(1) If an operator has a pattern of violations of mandatory health or safety
standards in the coal or other mine which are of such nature as could have
significantly and substantially contributed to the cause and effect of coal
or other mine health or safety hazards, he shall be given written notice that
such pattern exists. If, upon any inspection within 90 days after the
issuance of such notice, an authorized representative of the Secretary finds
any violation of a mandatory health or safety standard which could
significantly and substantially contribute to the cause and effect of a coal
or other mine safety or health hazard, the authorized representative shall
issue an order requiring the operator to cause all persons in the area
affected by such violation, except those persons referred to in subsection
(c), to be withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines that such
violation has been abated.
(2) If a withdrawal order with respect to any area in a coal or other mine has
been issued pursuant to paragraph (1), a withdrawal order shall be issued
by an authorized representative of the Secretary who finds upon any
subsequent inspection the existence in such mine of any violation of a
mandatory health or safety standard which could significantly and
substantially contribute to the cause and effect of a coal or other mine
health of safety hazard. The withdrawal order shall remain in effect until
an authorized representative of the Secretary determines that such
violation has been abated.

3

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

36 FMSHRC Page 3112

POV Notice. He further found that after the date of issuance of the POV Notice numerous
section 104(e) withdrawal orders had been issued against Brody and that such orders were still
being issued as of the date of his order. He consolidated those contests with the existing contests
and stated that all future section 104(e) withdrawal orders would be consolidated into the
proceeding, as well. Id. at 293.
Chief Judge Lesnick upheld the facial validity and constitutionality of the POV
regulations.4 Id. at 301-08. He remanded the cases for further proceedings and assigned a new
Judge to the cases.
On November 3, 2014, the newly-assigned Judge entered the order with respect to which
the Secretary has filed the current petition for discretionary review. 5 The Judge found the POV
Notice unconstitutional as applied by the Secretary and dismissed the POV Notice. Order at 1719. The Judge further ruled on each of the 54 alleged S&S violations the Secretary had asserted
as constituting the pattern of violations. Twenty-nine of those alleged S&S violations were
sustained. Because the Judge had ruled the POV Notice was unconstitutional as applied, he did
not decide whether those 29 S&S violations constituted a pattern of violations. Nor did the
Judge specifically rule on the validity of the section 104(e) withdrawal orders. 6
Disposition
In this proceeding contesting the issuance of a POV Notice, the Judge disposed of all of
the S&S citations and orders underlying the notice. However, he did not dispose of 357 nonS&S citations and orders. Thus, the November 3, 2014 decision is not a final decision. See 29
C.F.R. § 2700.69.7 However, while recognizing the decision is not final, the Secretary asserts
that the Judge’s decision is an appealable order under the collateral order doctrine. PDR at 2.
4

That decision was reviewed and affirmed by the Commission on an interlocutory basis.
Brody Mining, LLC, 36 FMSHRC 2027 (Aug. 2014), and is presently on appeal before the U.S.
Court of Appeals for the D.C. Circuit, Docket No. 14-1171.
5

The Judge specifically noted the consolidation of the cases challenging the citations
and orders underlying the POV Notice with later cases challenging withdrawal orders based
upon the POV Notice. Order at 1, n.1.
6

Commissioner Cohen notes that the Judge’s ruling on the validity of the POV Notice,
without also ruling on the withdrawal orders issued pursuant to the notice, is in apparent conflict
with Chief Judge Lesnick’s previous finding that the Commission lacks jurisdiction to consider a
POV Notice standing alone.
7

Rule § 2700.69(a) states, in relevant part:
Form and content of the Judge’s decision. The Judge shall make a decision
that constitutes his final disposition of the proceedings. The decision shall be in
writing and shall include all findings of fact and conclusions of law, and the reasons
or bases for them, on all the material issues of fact, law or discretion presented by the
record, and an order.

36 FMSHRC Page 3113

The collateral order doctrine is a practical construction of the final judgment rule which
has been applied in federal courts. The final judgment rule permits appeal only from “all final
decisions” of a district court. 28 U.S.C. § 1291 (emphasis added). In Cohen v. Beneficial
Industrial Loan Corporation, 337 U.S. 541, 546 (1949), the Supreme Court recognized that
appeals of a small class of decisions which appear interlocutory in nature must be permitted if
those decisions “finally determine claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and too independent of the cause itself
to require that appellate consideration be deferred until the whole case is adjudicated.” The
Court cautioned, however, that appeal gives an upper court “a power of review not one of
intervention.” Id. Thus, if a matter remains “open, unfinished or inconclusive, there may be no
intrusion by appeal.” Id.
The Supreme Court has clarified that there are three prongs that must be satisfied under
the collateral order doctrine. Specifically, an order that does not conclude an action may
nonetheless be immediately appealable if it: (1) conclusively determines the disputed question;
(2) resolves an important issue separate from the merits of the action; and (3) is effectively
unreviewable on an appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978). In order to be reviewable, the order must satisfy all three requirements. Stringfellow
v. Concerned Neighbors in Action, 480 U.S. 370, 375 (1987).
The Secretary has failed to satisfy the third prong of this test.8 The Secretary’s argument
is not that the Judge’s decision would be unreviewable on final appeal. Rather, he argues that
the decision “would be effectively unreviewable on appeal from a final order in light of the
irreparable harm to the health and safety of Brody’s miners as long as the ALJ’s dismissal of the
POV Notice remains in effect.” PDR at 3. However, he overlooks the availability of
interlocutory review of the Judge’s decision, as set forth in the Commission’s procedural rules.
The issue the Judge decided and which the Secretary seeks to appeal is currently reviewable
under those rules.
Pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, the Commission may
review a Judge’s ruling, prior to the Judge’s final decision in the case, if certain conditions are
met. First, pursuant to Rule 76(a)(1), either the Judge must certify that his or her interlocutory
ruling involves a controlling question of law and that immediate review will materially advance
the final disposition of the proceeding, or the Judge must deny a party’s motion for certification
of the interlocutory ruling to the Commission and the party must file with the Commission a
petition for interlocutory review within 30 days of the Judge’s denial of such motion for
certification. Second, under Rule 76(a)(2), a majority of the Commission members must
conclude that the Judge’s interlocutory ruling involves a controlling question of law and that
immediate review may materially advance the final disposition of the proceeding.

8

Because we conclude that the third prong of the collateral order doctrine has not been
satisfied, we need not reach the remaining prongs. Performance Coal Co., 32 FMSHRC 1212,
1217 (Oct. 2010).

36 FMSHRC Page 3114

In this case, the Secretary did not ask the Judge to certify his ruling for interlocutory
review and, of course, the Judge has not denied any such request. Thus, the Secretary has not
followed the necessary procedures to seek interlocutory review.
Given the Secretary’s concerns regarding irreparable harm, we would expect a motion for
interlocutory review to be promptly brought before the Commission either by certification by the
Judge or petition of the Secretary.
For the reasons set forth above, the petition filed by the Secretary is denied.9

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

9

We are without jurisdiction to consider the Secretary’s Emergency Motion to Stay.

36 FMSHRC Page 3115

APPENDIX A
WEVA 2014-83-R
WEVA 2014-86-R
WEVA 2014-87-R
WEVA 2014-97-R
WEVA 2014-151-R
WEVA 2014-161-R
WEVA 2014-190-R
WEVA 2014-191-R
WEVA 2014-192-R
WEVA 2014-193-R
WEVA 2014-221-R
WEVA 2014-244-R
WEVA 2014-284-R
WEVA 2014-285-R
WEVA 2014-447-R
WEVA 2014-448-R
WEVA 2014-449-R
WEVA 2014-450-R
WEVA 2014-451-R
WEVA 2014-452-R
WEVA 2014-453-R
WEVA 2014-454-R
WEVA 2014-455-R
WEVA 2014-456-R

36 FMSHRC Page 3116

WEVA 2014-457-R
WEVA 2014-479-R
WEVA 2014-480-R
WEVA 2014-529-R
WEVA 2014-530-R
WEVA 2014-531-R
WEVA 2014-537-R
WEVA 2014-539-R
WEVA 2014-561-R
WEVA 2014-562-R
WEVA 2014-563-R
WEVA 2014-570-R
WEVA 2014-571-R
WEVA 2014-572-R
WEVA 2014-593-R
WEVA 2014-594-R
WEVA 2014-638-R
WEVA 2014-639-R
WEVA 2014-640-R
WEVA 2014-641-R
WEVA 2014-672-R
WEVA 2014-673-R
WEVA 2014-674-R
WEVA 2014-675-R
WEVA 2014-676-R

36 FMSHRC Page 3117

WEVA 2014-678-R
WEVA 2014-679-R
WEVA 2014-680-R
WEVA 2014-681-R
WEVA 2014-715-R
WEVA 2014-716-R
WEVA 2014-717-R
WEVA 2014-718-R
WEVA 2014-719-R
WEVA 2014-720-R
WEVA 2014-722-R
WEVA 2014-745-R
WEVA 2014-804-R
WEVA 2014-805-R
WEVA 2014-806-R
WEVA 2014-807-R
WEVA 2014-811-R
WEVA 2014-813-R
WEVA 2014-814-R
WEVA 2014-819-R
WEVA 2014-854-R
WEVA 2014-855-R
WEVA 2014-856-R
WEVA 2014-909-R
WEVA 2014-974-R

36 FMSHRC Page 3118

WEVA 2014-975-R
WEVA 2014-976-R
WEVA 2014-1012-R
WEVA 2014-1013-R
WEVA 2014-1035-R
WEVA 2014-1036-R
WEVA 2014-1037-R
WEVA 2014-1038-R
WEVA 2014-1135-R
WEVA 2014-1138-R
WEVA 2014-1157-R
WEVA 2014-1993-R
WEVA 2014-1994-R
WEVA 2014-1995-R
WEVA 2014-1996-R
WEVA 2014-2172-R
WEVA 2014-2173-R
WEVA 2014-2174-R
WEVA 2014-2175-R
WEVA 2014-2221-R
WEVA 2015-59-R
WEVA 2015-60-R
WEVA 2015-61-R
WEVA 2015-63-R
WEVA 2015-66-R

36 FMSHRC Page 3119

WEVA 2015-67-R
WEVA 2015-68-R
WEVA 2015-121-R
WEVA 2013-370
WEVA 2013-564
WEVA 2013-997
WEVA 2013-1055
WEVA 2013-1189
WEVA 2014-619
WEVA 2013-620
WEVA 2014-702
WEVA 2014-842

36 FMSHRC Page 3120

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

December 23, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No.
A.C. No.

v.

SE 2011-577-M
09-00996-255476

BLUESTONE QUARRIES, INC.
BEFORE:

Nakamura, Acting Chairman; Cohen 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. (2012) (“Mine Act”). On September 4, 2013, the Commission received from
Bluestone Quarries (“Bluestone”) a motion seeking to reopen a penalty assessment proceeding
and relieve it from the Default Order entered against it.
On January 18, 2012, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Bluestone’s perceived failure to answer the Secretary of Labor’s June 23,
2011 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was
deemed a Default Order on February 21, 2012, when it appeared that the operator had not filed
an answer within 30 days.
Bluestone asserts that it sent an answer to the Order to Show Cause on February 8, 2012
by certified mail. Bluestone provides a copy of the answer, along with an e-mail sent to the CLR
assigned to the case at the time, confirming that the answer was mailed. Bluestone fails,
however, to provide a certified mail receipt to prove delivery of the answer.
The Secretary of Labor opposes the request to reopen. The Secretary notes that the
Commission has no record of ever receiving Bluestone’s answer to the Judge’s show cause
order. The Secretary further asserts that the operator failed to follow up with the Judge to make
sure that he received its reply. Finally, the Secretary emphasizes that Bluestone does not explain
why it waited approximately one and a half years to submit its motion to reopen after the Default
Order became effective, even though a delinquency letter was sent to Bluestone on June 14,
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

36 FMSHRC Page 3121

Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final
decision of the Commission.
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen assessments that have become final Commission orders. Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to reopen final section
105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil
Procedure under which, for example, a party could be entitled to relief from a final order of the
Commission on the basis of mistake, inadvertence, or excusable neglect. See 29 C.F.R. §
2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also held that, in accordance
with Rule 60(c) of the Federal Rules of Civil Procedure, a Rule 60(b) motion shall be made
within a reasonable time, and in the case of mistake, inadvertence or excusable neglect, not more
than one year after the order was entered or, in this case, became effective. Newmont USA, Ltd.,
31 FMSHRC 808, 809 (Jul. 2009); JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004);
Lakeview Rock Products, 19 FMSHRC 26, 28 (Jan. 1997).
As noted above, Bluestone failed to provide a certified mail receipt to prove delivery of
the answer. Thus, we hereby remand the proceeding to the Chief Administrative Law Judge to
determine if the operator in fact replied to the Order to Show Cause. If the operator
demonstrates that it replied as asserted, we will conclude that the operator was not in default
under the terms of the Order to Show Cause as it timely complied with the Order. See Vulcan
Construction Materials, 33 FMSHRC 2164 (Sept. 2011). Thus, the Default Order would be
rendered a nullity, and the Chief Administrative Law Judge should conduct further proceedings
pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. If,
however, the operator fails to demonstrate that it replied to the Order to Show Cause,
Bluestone’s motion to reopen will be denied because it waited for over one year to submit its
motion to reopen after the Default Order became effective.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

36 FMSHRC Page 3122

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

December 23, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No.
A.C. No.

v.

VA 2010-51
44-07025-179671

C. S. & S. COAL CORPORATION
BEFORE:

Nakamura, Acting Chairman; Cohen 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. (2012) (“Mine Act”). On September 10, 2013, the Commission received from C.
S. & S. Coal Corporation (“C. S. & S.”) a motion by counsel seeking to reopen a penalty
assessment proceeding and relieve it from the Default Order entered against it.
On March 16, 2011, the Chief Administrative Law Judge issued an Order to Show Cause
in response to C. S. & S.’s failure to answer the Secretary of Labor’s September 1, 2010 Petition
for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a Default Order
on April 18, 2011, when the operator did not file an answer within 30 days.
C. S. & S. asserts that both the Petition for Assessment of Civil Penalty and the Order to
Show Cause were issued and delivered to an incorrect address. The Secretary of Labor does not
oppose the request. We note that the proposed assessment forms for this case were also mailed
to the same incorrect address, and that the Commission issued an order allowing the case to be
reopened on July 14, 2010. We also note the operator’s argument that, since this case was
reopened, it has been diligent in monitoring the case for receipt of the Petition. The operator
asserts that it contacted the Commission’s docket office to determine the status of the case on
August 22, 2013, which is when it first learned that the Petition and Order to Show Cause were
filed again to the same incorrect address. The motion to reopen at issue was received by the
docket office 19 days later.
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.

36 FMSHRC Page 3123

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 will be permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed the facts and circumstances of this case, the operator’s request, and the
Secretary’s response, in the interest of justice, we hereby reopen this matter and remand it to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

36 FMSHRC Page 3124

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

December 23, 2014

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

WEST 2014-42-M
24-02115-331596-02

SIERRA ROCK & DIRT, INC.

BEFORE:

Nakamura, Acting Chairman; Cohen 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. (2012) (“Mine Act”). On June 3, 2014, the Commission received from Sierra Rock
& Dirt, Inc., (“Sierra”) a motion seeking to reopen a penalty assessment proceeding and relieve it
from the Default Order entered against it.
On February 25, 2014, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Sierra’s perceived failure to answer the Secretary of Labor’s November 22,
2013 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was
deemed a Default Order on March 28, 2014, when it appeared that the operator had not filed an
answer within 30 days.
Sierra asserts that it had filed a timely answer to the Petition for Assessment of Civil
Penalty. The Secretary does not oppose the request to reopen and notes that this case was split
into two dockets, WEST 2014-41-M and WEST 2014-42-M. The Secretary confirms that the
operator sent a timely answer that included all citations for both dockets, but that the answer was
labeled with only one docket number, WEST 2014-41-M.

36 FMSHRC Page 3125

Having reviewed Sierra's request and the Secretary's response, we conclude that the
operator was not in default under the terms of the Order to Show Cause as it filed a timely
response to the penalty petition. See Eagle Creek Mining, LLC, 35 FMSHRC 781, 782 (Apr.
2013). This renders the Default Order a nullity. Accordingly, the operator’s motion to reopen is
moot, and 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/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

36 FMSHRC Page 3126

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

December 23, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

WEVA 2014-786
46-01968-338993

CONSOLIDATION COAL COMPANY
BEFORE:

Nakamura, Acting Chairman; Cohen 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. (2012) (“Mine Act”). On April 8, 2014, the Commission received from
Consolidation Coal Company (“Consolidation”) a motion seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final 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”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on January 1, 2014, and became
a final order of the Commission on January 31, 2014. Consolidation asserts that the proposed
assessment was not timely contested due to miscommunication resulting from a change in
contest procedures, arising from a change in ownership. The Secretary does not oppose the

36 FMSHRC Page 3127

request to reopen, and urges the operator to take steps to ensure that future penalty contests are
timely filed.
Having reviewed Consolidation's request and the Secretary's response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

36 FMSHRC Page 3128

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

December 23, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

WEVA 2014-1044
46-01968-343269

CONSOLIDATION COAL COMPANY
BEFORE:

Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER

BY:

Nakamura, Acting Chairman; Althen, Commissioner

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On June 17, 2014, the Commission received from
Consolidation Coal Company (“Consolidation”) a motion seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final 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”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on February 19, 2014, and
became a final order of the Commission on March 21, 2014. Consolidation asserts that the
proposed assessment was not timely contested due to miscommunication resulting from a change
in contest procedures, arising from a change in ownership. The Secretary does not oppose the

36 FMSHRC Page 3129

request to reopen, and urges the operator to take steps to ensure that future penalty contests are
timely filed.
Having reviewed Consolidation's request and the Secretary's response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

36 FMSHRC Page 3130

Commissioner Cohen, dissenting:
I dissent from my colleagues because I believe that the respondent has not established
good cause to reopen the captioned proceeding.
The subject motion to reopen concerns a proposed assessment for civil penalties that was
delivered to Blacksville No. 2 Mine more than two months after the mine was acquired by
Murray Energy Company from Consolidation Coal Company. This is the second docket in
which the Commission has received a motion to reopen from the respondent contending that its
failure to file a contest form because of “miscommunications” resulting from the transfer in
ownership of the mine constitutes good cause to reopen final orders. See also Consolidation
Coal Co., 36 FMSHRC _, slip op. at 2, No. WEVA 2014-786.
On December 5, 2013, Murray Energy Company acquired the Blacksville No. 2 mine.
Mot. at 2. On April 8, 2014, the Commission received the first motion to reopen (in Docket
No. WEVA 2014-786). In its motion, the respondent alleged that the acquisition of the mine
resulted in the disruption of the practices for filing notices of contest. The respondent claimed
that its failure to file a notice of contest to a proposed assessment received on January 2, 2014
resulted from inadvertence or mistake within the meaning of Rule 60(b)(1). Apparently officials
at the Blacksville No. 2 mine, consistent with past practices under Consolidation Coal,
forwarded the contest form to the Murray Energy corporate offices. However, Murray Energy
officials failed to file the form because Murray Energy’s customary practice is that officials at
the individual mine file the contest form.
Respondent stated that it discovered the lapse, investigated other outstanding
Consolidation Coal citations, and then implemented new procedures to ensure the timely filing
of notices of contest. Mot. at 3 (Docket No. WEVA 2014-786). Notably, it represented that
“[t]his is the only such incident of this type arising from the re-allocation of responsibilities
associated with the acquisition of Blacksville No. 2 by Murray Energy. Murray Energy and
Blacksville #2 have now implemented procedures to ensure that assessments are timely
contested. ” Id. I concluded that the respondent established good cause to reopen the citations.
Consolidation Coal Co., 36 FMSHRC _, slip op. at 2, No. WEVA 2014-786.
On June 17, 2014, the Commission received a second motion to reopen, which is the
subject of the captioned proceeding. This motion relates to a proposed assessment received on
February 19, 2014. Again the respondent contends that Murray Energy’s acquisition of the
Blacksville No. 2 Mine resulted in a failure to timely file a contest form, and requests that the
Commission reopen the resulting final orders. The motion fails to account for the respondent’s
past assurances that it investigated its system of processing contest forms and implemented
procedures to ensure the timely submission of contests of proposed assessments. In its first
motion to reopen, the respondent had acknowledged that it was notified of the delinquency by
email on February 24, 2014, and received a delinquency notice from MSHA dated March 18,
2014. Mot. at 3 (Docket No. WEVA 2014-786). Since the proposed assessment in the present

36 FMSHRC Page 3131

case did not become final until March 21, 2014, the respondent clearly had time to act to prevent
the second delinquency.
The Commission has made it clear that where a failure to contest a proposed assessment
results from an inadequate or unreliable internal processing system, the operator has not
established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC
3053, 3054 (Dec. 2012); 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).
I accepted the respondent’s proffers that the failure to file a contest form in Docket No.
WEVA 2014-786 was the result of mistake or inadvertence, and relied on its representations that
it investigated the incident, discovered that this failure was an isolated incident, and
implemented new procedures.
However, it is now apparent that the respondent did not investigate with the requisite
level of diligence. If it had performed due diligence it could have discovered the problem in
time to file a timely contest of the proposed assessment in Docket No. WEVA 2014-1044.
Certainly it could have discovered the problem and filed a prompt motion to reopen. Instead, the
respondent sought reopening more than two months after it failed to discover the problem in its
own internal investigation.
I find the respondent’s contentions to be insufficient to establish good cause to reopen the
final order.

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

36 FMSHRC Page 3132

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

December 30, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

KENT 2013-1078
15-19199-325351-E24

AUSTIN POWDER COMPANY
BEFORE:

Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On September 25, 2013, the Commission received from
Austin Powder Company (“Austin”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final 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”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 27, 2013, and became a
final order of the Commission on July 29, 2013. Austin asserts that its safety specialist
mistakenly waited for further instructions from her supervisors and didn’t forward the
assessment to counsel. Austin has modified its handling procedures to avoid future errors. The
Secretary does not oppose the request to reopen and urges the operator to take steps to ensure
that future penalty contests are timely filed.

36 FMSHRC Page 3133

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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

36 FMSHRC Page 3134

Commissioner Cohen, dissenting
I dissent from my colleagues’ decision because I believe that Austin Powder has not
established good cause to reopen the subject civil penalty case.
As grounds to reopen the proceeding, Austin Powder states that a safety and compliance
specialist did not forward the proposed assessment to its counsel for contest because she was
awaiting direction from three Austin Powder management officials on whether to do so. Mot. at
1-2. The operator produced an affidavit from the safety specialist who surmised that each of the
managers “assumed” that she had forwarded the assessment to counsel, when, in fact, she was
waiting for their instructions. Mot. at Ex. 1, par. 6. Austin Powder did not provide affidavits or
other evidence from the three management officials who did the assuming, and so the safety
specialist’s affidavit, at best, is based on hearsay.
Austin Powder has an extensive history of filing motions to reopen. Its September 2013
motion was the sixth motion it has filed since 2006. See Austin Powder Co., 34 FMSHRC 2346
(Sept. 2012) (covering two motions); 34 FMSHRC 1285 (June 2012); 28 FMSHRC 424 (July
2006); 28 FMSHRC 430 (July 2006). In its most recent prior motions to reopen, Austin Powder
moved the Commission to reopen two dockets under circumstances remarkably similar to the
present case. In both of those cases the managers failed to instruct the safety specialist to
forward the proposed assessments to its counsel. In granting the motions, the Commission noted
that “[t]he operator further states that in the future its safety specialist will forward to counsel all
proposed penalty assessments which the safety director intends to contest.” 34 FMSHRC at
2347.
The Commission has made it clear that where a failure to contest a proposed assessment
results from an inadequate or unreliable internal processing system, the operator has not
established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC
3053, 3054 (Dec. 2012); 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). In examining the operator’s asserted
justifications for reopening a particular case, the Commission has also explored whether the
operator has demonstrated a pattern of behaviors that are attributable to inadequate or unreliable
internal processing systems in other cases. See Oak Grove Res., LLC, 33 FMSHRC 2378, 237980 (Oct. 2011). In the Pinnacle cases, we emphasized that “[r]elief under Rule 60(b) should
generally not be accorded to an operator who creates and condones a system which predictably
will result in missed deadlines.” 30 FMSHRC at 1062; 30 FMSHRC at 1067.
I find Austin Powder’s claim of inadvertence or mistake to be insufficient, and that the
operator has not established good cause to reopen the proceeding. The failure to file the contest
in this case occurred only 10 months after the Commission reopened two other defaults for
Austin Powder which were similarly caused by the failure of the three management officials to
give direction to the safety specialist. Austin Powder did not make good on its promise to
reform its system for contesting proposed assessments, and is asking us to reopen this case based

36 FMSHRC Page 3135

on the same breakdown in communication that had recently occurred. I conclude that based on
Austin Powder’s own submissions, it has condoned an unreliable internal processing system and
placed responsibility for its contest process on a lower-level employee rather than on its
management officials. Austin Powder is a large operator which should have the resources to
ensure that proposed assessments are timely contested. It has consistently failed to do so.
Therefore, I would deny its motion to reopen.

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

36 FMSHRC Page 3136

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

December 30, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

LAKE 2013-82-M
21-03672-302353

80TH STREET AGGREGATES
BEFORE:

Nakamura, Acting Chairman; Cohen 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. (2012) (“Mine Act”). On July 31, 2013, the Commission received from 80th Street
Aggregates (“Aggregates”) a motion seeking to reopen a penalty assessment proceeding and
relieve it from the Default Order entered against it.
On February 6, 2013, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Aggregates’ failure to answer the Secretary of Labor’s November 26, 2012
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a
Default Order on March 11, 2013, when the operator did not appear to have filed an answer
within 30 days.
Aggregates asserts that it filed a timely answer in response to the Order to Show Cause
with the Commission on February 25, 2013, as well as with MSHA on July 13, 2013.
Aggregates supplies copies of two delivery confirmation receipts to support its claims, as well as
a copy of its undated letter. The Secretary does not oppose the request to reopen and notes that
although Aggregates did file an answer with MSHA, it incorrectly sent the answer to MSHA’s
St. Louis payment processing address and not to MSHA’s Duluth District Office, as required.
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.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable

36 FMSHRC Page 3137

neglect. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); 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 will be permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Aggregates’ request and the Secretary’s response, in the interest of
justice, we hereby reopen the proceeding and vacate the Default Order. Acordingly, 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/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

36 FMSHRC Page 3138

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

December 30, 2014

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

WEST 2010-314-M
35-03398-203430

LAKEVIEW REDI-MIX COMPANY

BEFORE:

Nakamura, Acting Chairman; Cohen 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. (2012) (“Mine Act”). On November 5, 2013, the Commission received from
Lakeview Redi-Mix Company, (“Lakeview”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.
On March 18, 2011, the Chief Administrative Law Judge issued an Order to Show Cause
in response to Lakeview’s perceived failure to answer the Secretary of Labor’s January 15, 2010
Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a
Default Order on April 18, 2011, when it appeared that the operator had not filed an answer
within 30 days.
Lakeview asserts that it had filed a timely answer to the Petition for Assessment of Civil
Penalty. The Secretary does not oppose the request to reopen and confirms that Lakeview sent
its answer on March 31, 2011.

36 FMSHRC Page 3139

Having reviewed Lakeview's request and the Secretary's response, we conclude that the
operator was not in default under the terms of the Order to Show Cause as it filed a timely
response to the penalty petition. See Eagle Creek Mining, LLC, 35 FMSHRC 781, 782 (Apr.
2013). This renders the Default Order a nullity. Accordingly, the operator’s motion to reopen
is moot, and 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

/s/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

36 FMSHRC Page 3140

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

December 30, 2014

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No.
A.C. No.

v.

YORK 2012-123-M
17-00576-282499

HARRY C. CROOKER & SONS, INC.

BEFORE:

Nakamura, Acting Chairman; Cohen 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. (2012) (“Mine Act”). On July 31, 2013, the Commission received from Harry C.
Crooker & Sons, Inc., (“Crooker”) a revised motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.
On August 23, 2012, the Chief Administrative Law Judge issued an Order to Show Cause
in response to Crooker’s failure to answer the Secretary of Labor’s April 2, 2012 Petition for
Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default
Order on September 24, 2012, when it appeared that the operator had not filed an answer within
30 days.
Crooker asserts that it had sent a timely answer to the Order to Show Cause to the
Department of Labor and the Commission. The Secretary does not oppose the request to reopen
and confirms that Crooker sent its answer on September 12, 2012.

36 FMSHRC Page 3141

Having reviewed Crooker's request and the Secretary's response, we conclude that the
operator was not in default under the terms of the Order to Show Cause as it timely complied
with the Order. See Vulcan Construction Materials, 33 FMSHRC 2164 (Sept. 2011). This
renders the Default Order a nullity. Accordingly, the operator’s motion to reopen is moot, and
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/ Patrick K. Nakamura
Patrick K. Nakamura, Acting Chairman

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

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

36 FMSHRC Page 3142

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19TH STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577/FAX 303-844-5268

February 26, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2011-0878-M
A.C. No. 14-01478-254923
Plant 2
Docket No. CENT 2011-0712-M
A.C. No. 14-01277-251773

v.

Docket No. CENT 2011-1158-M
A.C. No. 14-01277-263558
Plant 3
NELSON QUARRIES INC.,
Respondent

Docket No. CENT 2011-0879-M
A.C. No. 14-01597-254924
Plant 4
DECISION

Appearances:

Jamison P. Milford, Esq., Office of the Solicitor, US Department of Labor,
Kansas City, Missouri and Robert D. Ankeney, Mine Safety and Health
Administration, US Department of Labor, Denver, Colorado, for Petitioner
Paul M. Nelson, Nelson Quarries, Inc., Jasper, Missouri, for Respondent

Before:

Judge Richard W. Manning

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Nelson Quarries Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act” or “Mine Act”). The parties
introduced testimony and documentary evidence at a hearing held in Kansas City, Missouri.
A total of 11 section 104(a) citations were adjudicated at the hearing. One section 104(a)
citation was settled immediately before the hearing. The Secretary proposed a total penalty of
$1,705.00 for these matters.

36 FMSHRC Page 3143

I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Docket No. CENT 2011-878-M, Plant 2
Citation No. 6593717
On April 7, 2011, MSHA Inspector Leon Mueller issued Citation No. 6593717 under
section 104(a) of the Mine Act, alleging a violation of section 56.1000. The inspector later
modified Citation No. 6593717 to allege a violation of section 56.14201(b). (Ex. G-9; Tr. 22).
An equipment operator could not see the entirety of the plant conveyors, but activated the
conveyors without providing a visual or audible warning. Id. Inspector Mueller 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 (“S&S”), the operator’s negligence was moderate, and that one person would be
affected. Section 56.14201(b) of the Secretary’s safety standards requires that “[w]hen the entire
length of the conveyor is not visible from the starting switch, a system which provides visible or
audible warning shall be installed and operated to warn persons that the conveyor will be
started.” 30 C.F.R. § 56.14201(b). The Secretary proposed a penalty of $127.00 for this citation.
For the reasons set forth below, I modify Citation No. 6593717 to non-S&S.
Discussion and Analysis
I find that Respondent violated section 56.14201(b) because Respondent failed to operate
a warning system before activating the conveyor system. Section 56.14201(b) requires the
installation and operation of a warning system for conveyors unless the operator can see the
entire conveyor. Patrick Clift, a Nelson Quarries superintendent who oversaw Plant 2, testified
that the miner who started the conveyor ensured that he could see all the miners before he started
the conveyor system. (Tr. 54-55). This miner tried to activate the alarm before he started the
system and, because the alarm was not working, he did not start the conveyor system until he
was able to see all the miners at the plant. Being able to see every miner that was present at a
mine, however, does not comply with the requirements of the safety standard. I credit the
inspector’s testimony, as well as Clift’s, that the conveyor was running, the entirety of the
conveyor system was not visible from the control shack, and the alarm did not function. (Tr. 2425, 53-55). Respondent therefore violated section 56.14201(b).
I find that Citation No. 6593717 was not S&S;1 it is unlikely that the cited condition
would contribute to an injury. An S&S determination must be based upon the particular facts
1

An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)
(2006). A violation is properly designated S&S “if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the Secretary must
(continued…)

36 FMSHRC Page 3144

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 cited conveyor had a warning system that had
worked properly on the previous day, but it was not working on April 7, 2011. (Tr. 24). The
system operated the day before the inspection. (Tr. 54). Clift testified that Respondent had
already called a mechanic to repair the warning system at the time of the inspection and repairs
were made the day of the inspection. (Tr. 54). Assuming continued normal mining operations, I
find, based upon the testimony of Clift, it was unlikely that the violation would contribute to an
injury before the condition was repaired. The cited conveyor, furthermore, is usually started only
once each day. (Tr. 25, 55). Moreover, I credit Clift’s testimony that the operator of the
conveyor could not see the entire conveyor, but could see every miner. (Tr. 54-55). I find it is
unlikely that the cited condition would contribute to an injury and Citation No. 6593717 is
therefore not S&S.
I find that Respondent’s moderate negligence caused Citation No. 6593717. Although
the miner had actual knowledge of the cited condition, he took affirmative steps to make sure
that no miners were close to the conveyor before he started it. Nevertheless, the repair of the
warning system only required reconnecting a wire, which could have been done before operating
the conveyor. (Tr. 64). The leadman discussed activating the conveyor with the miner who
operated the conveyor before that miner did so. (Tr. 54-55). A penalty of $120.00 is appropriate
for Citation No 6593717. I hereby MODIFY Citation No. 6593717 to non-S&S.
Citation No. 6593718
On April 7, 2011, Inspector Mueller issued Citation No. 6593718 under section 104(a) of
the Mine Act, alleging a violation of section 56.14107(a) of the Secretary’s safety standards.
(Ex. G-12). The citation states that the underside of the tail pulley under the first screen, which
was 30 inches above the ground and 42 inches wide, was unguarded. Id. Inspector Mueller
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 moderate, and that one person would be affected. Section 56.14107(a)
of the Secretary’s safety standards requires that “[m]oving machine parts shall be guarded to
protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys,
flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” 30
C.F.R. § 56.14107(a). The Secretary proposed a penalty of $127.00 for this citation.
For the reasons set forth below, I modify Citation No. 6593718 to be non-S&S and low
negligence.
1

(…continued)
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.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861
F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

36 FMSHRC Page 3145

Discussion and Analysis
I find that Respondent violated section 56.14107(a) because the underside of the cited tail
pulley was not guarded to prevent contact. The Commission has held that a violation of a
guarding standard requires a “reasonable possibility of contact and injury” that includes “contact
stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human
carelessness.” Thompson Brothers Coal Company, Inc., 6 FMSHRC 2094, 2097 (Sept. 1984).
To determine whether a reasonable possibility exists, the Commission stated that all “relevant
exposure and injury variables, e.g., accessibility of the machine parts, work areas, ingress and
egress, work duties, and as noted, the vagaries of human conduct” must be considered. Id. Both
Inspector Mueller and Clift testified that the underside of the cited tail pulley, which was 30
inches above the ground, was unguarded. (Tr. 36, 56-57). Work duties, such as greasing,
required miners to work in the area. (Tr. 66). Without a guard, nothing existed to prevent the
hand, foot, or clothing of a miner from contacting the tail pulley. The tail pulley was not so low
to the ground that it was impossible for a miner’s appendage to contact the pulley. It was
possible for a miner to contact the tail pulley.
I find that Citation No. 6593718 was not S&S because the Secretary did not fulfill his
burden to show that contact with the cited pulley was reasonably likely to occur.2 The tail pulley
presented the hazard of entanglement, which could cause permanently disabling injuries. The
inspector testified that miners would be in the area of the cited pulley to clean, maintain, grease,
or repair the equipment. (Tr. 37). He also acknowledged that the company policy required that
the conveyor be locked and tagged out for these activities. (Tr. 41). Inspector Mueller worried
that a miner in the area during operation may ignore company policy and perform maintenance
or clean the area, although he acknowledged that no miners would likely be in the area while the
conveyor operated. (Tr. 38-39, 48). The miners operate mobile equipment during their shift
except for the crusher operator. Even if a miner performed maintenance or cleaning without
locking out the conveyor, the inspector did not explain how a miner would be likely to contact
the pulley. The pulley was surrounded by flat ground, guarded on its other sides, and close to the
ground, which made it unlikely that a miner would contact it due to tripping or falling. (Tr. 65,
Ex. G-14). Miners cleaning accumulations under the pulley would not reach under using their
hands or shovels because they used a skid steer to clean, not hand tools. (Tr. 65, 38). According
to Clift, access to grease the conveyor was from the top of the pulley, not the unguarded bottom
and was performed when the plant was locked and tagged out. (Tr. 66). The Secretary failed to
show that a miner would be reasonably likely to contact the unguarded underside of the cited tail
pulley.
I find Respondent’s low negligence caused Citation No. 6593718. Although the
drawings from MSHA’s guarding guidelines do not alleviate Respondent’s responsibility to
properly guard its pulleys, the drawings are misleading. (Exs. R-1, 2). It is unclear at what
distance from the ground the underside of a pulley must be guarded and the drawings reasonably
suggest that the cited pulley was not a violation. The pulley, moreover, was not previously cited
despite numerous inspections, making the guideline drawings seem more likely to suggest that
2

The Secretary bears the burden of proving that a violation is S&S.” Peabody Coal Co.,
17 FMSHRC 26, 28 (Jan. 1995).

36 FMSHRC Page 3146

the cited pulley did not require a guard because it was low to the ground. (Tr. 56-57). I find that
Respondent reasonably believed that the cited pulley was too low to require a guard and
therefore its negligence was low. A penalty of $100.00 is appropriate for Citation No 6593718.
I hereby MODIFY Citation No. 6593718 as discussed above.
B. Docket No. CENT 2011-712-M, Plant 3
Citation No. 6593690
On March 2, 2011, Inspector Mueller issued Citation No. 6593690 under section 104(a)
of the Mine Act, alleging a violation of section 56.14100(b) of the Secretary’s safety standards.
(Ex. G-16). The citation states that the emergency steering device on the Cat 769c haul truck,
which operated close to other equipment at the time of the inspection, did not function when
tested. Id. Inspector Mueller determined that an injury was reasonably 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 56.14100(b) of the Secretary’s safety standards requires that “[d]efects on any
equipment, machinery, and tools that affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons.” 30 C.F.R. § 56.14100(b). The Secretary proposed a
penalty of $285.00 for this citation.
For the reasons set forth below, I vacate Citation No. 6593690.
Discussion and Analysis
I find that Respondent did not violate section 56.14100(b) because the Secretary did not
fulfill his burden to show that the cited condition was not corrected in a timely manner.3 The
parties agree that the emergency steering of the cited equipment was not operational. Although
Respondent operated the equipment with the cited condition, I credit the testimony of Ted
Brown, the operator of the truck at the time of inspection, that he performed a preshift
examination of the equipment before using it and the emergency steering was operational. (Tr.
111). Brown was a new miner and the day that the inspector cited this piece of equipment was
the first day Brown ever operated it. Brown testified that because he was new to this haul truck,
he thoroughly performed a preshift examination. Id. Although the cited condition existed during
the operation of the cited equipment, I find that it did not exist during the preshift examination.
Respondent, therefore, had no warning of the short lived condition and the Secretary did not
show that the condition was not corrected in a timely manner. Citation No. 6593690 is hereby
VACATED.
Citation No. 6593692
On March 2, 2011, Inspector Mueller issued Citation No. 6593692 under section 104(a)
of the Mine Act, alleging a violation of section 56.14107(a) of the Secretary’s safety standards.
3

The Secretary is required to show the existence of a violation by a preponderance of the
evidence. RAG Cumberland Resources Co., 22 FMSHRC 1066, 1070 (Sept. 2000).

36 FMSHRC Page 3147

(Ex. G-23). The citation states that the underside of the tail pulley of belt #544 was 40 inches
above the ground and not guarded. Id. Inspector Mueller 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 moderate, and that one person would be affected. The Secretary proposed a
penalty of $127.00 for this citation.
For the reasons set forth below, I vacate Citation No. 6593692.
Discussion and Analysis
I find that Respondent did not violate section 56.14107(a). I find that the cited pulley did
not operate without the presence of a guard and therefore no moving machine parts were
unguarded. The inspector testified that according to the pre inspection meeting, the only guards
that were missing and required repairs were on the “screen deck area.” (Tr. 90). Michael Peres,
the superintendent of Plant 3, testified that there were no screen decks at the plant that required
guarding. (Tr. 122). Furthermore, he testified that the plant did not run with the cited guard
missing; the plant was shut down because the guard was damaged by a broken belt. (Tr. 12021). The inspector found the guard that was originally attached to the cited pulley upon the
ground nearby. (Tr. 89-90). Peres had placed a work order to repair the guard and the plant
would not run until the repairs were completed. (Tr. 121). The miner who referenced the guards
on the screen deck most likely referred to the cited guard. I credit the testimony of Peres that the
plant did not run without the cited guard in place and that the plant was shut down specifically to
repair that guard. Citation No. 6593692 is hereby VACATED.
Citation No. 6593693
On March 2, 2011, Inspector Mueller issued Citation No. 6593693 under section 104(a)
of the Mine Act, alleging a violation of section 47.44(b) of the Secretary’s safety standards. (Ex.
G-27). The citation states that the “operator failed to label a 2 1/2 gallon temporary, portable
container with at least the common name of its contents.” Id. Inspector Mueller determined that
an injury was unlikely to occur, but that such an injury could reasonably be expected to result in
lost workdays or restricted duty. Further, he determined that the operator’s negligence was
moderate and that one person would be affected. Section 47.44(a) of the Secretary’s safety
standards mandates that portable containers do not require a label if the miner using the container
“(1) [k]nows the identity of the chemical, its hazards, and any protective measures needed, and
(2) [l]eaves the container empty at the end of the shift.” 30 C.F.R. § 47.44(a). Section 47.44(b)
provides that if the requirements of section 47.44(a) are not met, “the operator must mark the
temporary, portable container with at least the common name of its contents.” 30 C.F.R. §
47.44(b). The Secretary proposed a penalty of $100.00 for this citation.
For the reasons set forth below, I affirm Citation No. 6593693.

36 FMSHRC Page 3148

Discussion and Analysis
I find that Respondent violated section 47.44(b). Section 47.44 requires that either
temporary, portable containers have labels stating the common name of the contents or that two
conditions are satisfied: (1) a miner knows the contents of the container and (2) empties the
container at the end of the shift. 30 C.F.R. § 47.44. I credit Inspector Mueller’s testimony that
the miner present during his inspection could not identify the contents of the cited container until
he removed the lid and examined the contents. (Tr. 92). The miner opened the unlabeled
container to identify its contents because he did not know what the container held. The cited
container also did not have a label, which is a violation of section 47.44(b). (Tr. 91; Ex. G-29). I
AFFIRM Citation No. 6593693; a penalty of $120.00 is appropriate.
C. Docket No. CENT 2011-1158-M, Plant 3
Citation No. 6593767
On June 23, 2011, Inspector Mueller issued Citation No. 6593767 under section 104(a) of
the Mine Act, alleging a violation of section 56.14100(b) of the Secretary’s safety standards.
(Ex. G-30). The citation states that the hook of the Grove RT500D XL had a spring loaded gate
closure that did not function. Id. The clevis and chain attached to the crane were attached to a
Volvo loader. Id. Drive train parts and plywood under the loader showed that the operator
performed work upon the loader. Id. Inspector Mueller 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 moderate, and that one person would be affected. The Secretary proposed a
penalty of $127.00 for this citation.
For the reasons set forth below, I affirm Citation No. 6593767.
Discussion and Analysis
I find that the defective gate closure of the cited equipment affected safety; Respondent
violated section 56.14100(b). The cited crane was attached to a chain, which was attached to the
back of a loader with a hook. The spring loaded latch of the hook, which was designed to
prevent a load from detaching and dropping off of the hook, was not closed. (Tr. 139; Ex. G-33).
The crane was connected to the loader to lift the back of the loader off of the ground to work
upon the loader. (Tr. 138-40). The latch should be closed to prevent the crane from releasing
and dropping its load. (Tr. 139; Ex. G-36). If the loader detached and dropped from the crane
the loader could strike a miner. Peres stated that the crane did not operate in the cited condition
and the latch needed to be tapped to close. (Tr. 178-80). He also testified that the crew would
return to close the latch and left it open because they were called to work upon another piece of
equipment. (Tr. 176). Respondent should have closed the latch before leaving the crane
unattended because the unclosed latch affected safety by creating a crushing hazard for miners
because it could contribute to a load dropping from the crane. The condition cited in Citation
No. 6593767 violated section 56.14100(b).

36 FMSHRC Page 3149

I find that Citation No. 6593767 was S&S because the cited condition was reasonably
likely to lead to a serious injury. The unclosed latch created a crushing hazard. Although the
crane did not hoist the loader, work had begun upon the loader. (Tr. 179). Even if Respondent’s
work crew planned to return to close the latch, a miner could hoist the loader assuming that that
the latch was closed before the crew returned, or the crew may forget to close the latch when it
returned. The crane, furthermore, was ready to operate in every way except the closing of the
latch, which only required a tap with a hammer; this suggests that the crew was not called away
from the crane in the middle of their work, but rather deemed their work to be finished. If the
crane hoisted the loader while the latch remained open, it could cause the crane to drop the
loader; because miners had already begun working below the loader and left materials behind to
continue to do so, it is reasonably likely that a miner would be injured as a result of this
condition.
I find that Respondent’s moderate negligence caused Citation No. 6593767 because
Respondent should have known of the cited condition. The cited condition also presented a
serious hazard. I hereby AFFIRM Citation No. 6593767; a penalty of $200.00 is appropriate.
Citation No. 6593769
On June 23, 2011, Inspector Mueller issued Citation No. 6593769 under section 104(a) of
the Mine Act, alleging a violation of section 56.20003(a) of the Secretary’s safety standards.
(Ex. G-39). The citation states that parts, oil, grease, and trash covered the floor of the back of a
Ford F800 maintenance truck and a miner was in the back of the truck during the inspection. Id.
Inspector Mueller 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 moderate, and that one person would be
affected. Section 56.20003(a) of the Secretary’s safety standards requires that “[w]orkplaces,
passageways, storerooms, and service rooms shall be kept clean and orderly.” 30 C.F.R. §
56.20003(a). The Secretary proposed a penalty of $127.00 for this citation.
For the reasons set forth below, I reduce the gravity of Citation No. 6593769.
Discussion and Analysis
I find that Respondent violated section 56.20003(a) by failing to keep a workplace clean
and orderly. I credit Inspector Mueller’s testimony that he saw a miner standing in the back of
the truck and the floor of the truck was covered with parts, oil, grease, and trash. (Tr. 147; Exs.
G-41, 42). The cited area was a workplace based upon the fact that Mueller witnessed a miner
standing in it. (Tr. 147). Peres, furthermore, testified that miners had to get into the back of the
truck in order to access and unload the parts that it carried. (Tr. 186). The cited workplace was
neither clean nor orderly, which violated section 56.20003(a).
I find that Citation No. 6593769 was S&S because the cited condition was reasonably
likely to lead to a serious injury. The abundance of debris in the back of the cited truck created
tripping and slipping hazards that could cause injuries including sprains and broken bones. The
inspector witnessed a miner working to unload the back of the truck in the cited area. According

36 FMSHRC Page 3150

to Peres, this was standard operating procedure. (Tr. 186). The amount of debris provided
ample opportunities to trip a miner. The miner, furthermore, would be more likely to trip
because he was climbing in and out of the truck while carrying equipment. Two large pieces of
equipment that the miner had to unload, a compressor and a jack, were furthest from the miner’s
point of entry and required the miner to get through all the debris to access and unload them.
(Tr. 148-49). As a result of the disorderly workplace cited in Citation No. 6593769, a miner was
reasonably likely to sustain a serious injury due to tripping and falling. I reduce the gravity
because the evidence establishes that the violation was more likely to contribute to an injury
resulting in lost workdays or restricted duty as opposed to a permanently disabling injury.
Respondent’s moderate negligence caused Citation No. 6593769 because Respondent
should have known of the cited condition. The condition was obvious. I hereby MODIFY
Citation No. 6593769; a penalty of $130.00 is appropriate.
Citation No. 6593770
On June 23, 2011, Inspector Mueller issued Citation No. 6593770 under section 104(a) of
the Mine Act, alleging a violation of section 56.14107(a) of the Secretary’s safety standards.
(Ex. G-43). The citation states that the tail pulley of belt #543, which was 55 inches above the
ground and 45 inches wide, had an insufficient guard. Id. Inspector Mueller determined that an
injury was reasonably 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. The Secretary proposed a penalty of $285.00
for this citation.
For the reasons set forth below, I modify Citation No. 6593770 to be non-S&S.
Discussion and Analysis
I find that Respondent violated section 56.14107(a) because the cited tail pulley was not
adequately guarded to protect miners from contact with the pulley. I credit the inspector’s
testimony that the guard nearly touched the pulley and a miner touching the guard might touch
the pulley itself. (Tr. 158, 174). The guard was close enough to the pulley that it would not
actually prevent miners from contacting the pulley, making it reasonably possible that a miner
could contact the pulley and sustain an injury.
I find that the Secretary did not fulfill his burden to show that Citation No. 6593770 was
S&S. Although it is possible for a miner to contact the pulley and sustain a serious injury, the
Secretary provided little evidence to show that it was reasonably likely. By policy, the operator
locked and tagged out the cited area before service. (Tr. 188). No miners worked in the cited
area. (Tr. 170). Although the Secretary explained how a miner could contact a pulley, he did not
provide evidence to show that miners worked in the area or were likely to contact the pulley.
I find that Respondent’s moderate negligence caused Citation No. 6593770 because
Respondent had reason to know of the cited condition. I credit the inspector’s testimony that

36 FMSHRC Page 3151

preshift examinations should have identified and corrected the condition. (Tr. 156). A penalty
of $230.00 is appropriate for Citation No 6593770. I hereby MODIFY Citation No. 6593770.
D. Docket No. CENT 2011-879-M, Plant 4
Citation Nos. 6593706 and 6593707
On March 23, 2011, Inspector Mueller issued Citation No. 6593706 under section 104(a)
of the Mine Act, alleging a violation of section 56.12002 of the Secretary’s safety standards.
(Ex. G-50). The citation states that the switch box in the MCC trailer had three .5 inch diameter
holes in the bottom that could allow dirt, moisture, insects, and rodents to enter the box and
damage the wires. Id. Inspector Mueller determined that an injury was unlikely to occur and
that such an injury could reasonably be expected to cause lost workdays or restricted duty.
Further, he determined that the operator’s negligence was moderate and that one person would
be affected. Section 56.12002 of the Secretary’s safety standards requires that “[e]lectric
equipment and circuits shall be provided with switches or other controls. Such switches or
controls shall be of approved design and construction and shall be properly installed.” 30 C.F.R.
§ 56.12002. The Secretary proposed a penalty of $100.00 for this citation.
Also on March 23, 2011, Inspector Mueller issued Citation No. 6593707 under section
104(a) of the Mine Act, alleging a violation of section 56.12008 of the Secretary’s safety
standards. (Ex. G-54). The citation states that a 480 volt power cable did not have proper
fittings where it entered the control box in the MCC, exposing 2 inches of inner conductors. Id.
Inspector Mueller determined that an injury was unlikely to occur, but that such an injury could
reasonably be expected to be fatal. Further, he determined that the operator’s negligence was
moderate and that one person would be affected. Section 56.12008 of the Secretary’s safety
standards requires that “[p]ower wires and cables shall be insulated adequately where they pass
into or out of electrical compartments. Cables shall enter metal frames of motors, splice boxes,
and electrical compartments only through proper fittings.” 30 C.F.R. § 56.12008. The Secretary
proposed a penalty of $100.00 for this citation.
For the reasons set forth below, I affirm Citation Nos. 6593706 and 6593707.
Discussion and Analysis
I find that Respondent violated sections 56.12002 and 56.12008. For jurisdictional
purposes, the Mine Act includes the language “used in or to be used in, the milling of such
minerals, or the work of preparing coal or other minerals” in its definition of a mine. 30 U.S.C. §
802(h)(1). The definition of “mine” in the Mine Act, furthermore, “[shall] be given the broadest
possibl[e] interpretation, and … doubts [shall] be resolved in favor of … coverage of the Act.”
Shamokin Filler Company, Inc., 34 FMSHRC 1897, 1902 (Aug. 2012) (citing S. Rep. No. 95181, at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977 at 602 (1978)). Clift testified that the
plant where the conditions in Citation Nos. 6593706 and 6593707 were cited had not operated
for three to four months, was not energized, did not have a work crew, and did not have the
necessary components to operate because Respondent moved a large portion of the plant to

36 FMSHRC Page 3152

another site. (Tr. 217-18, 225-27). The plant remained open because a wash plant, which was
several hundred yards away from the cited conditions and utilized a different power source, was
operated by one miner to produce a washed sand material. (Tr. 226-27). Although the crusher at
Plant 4 was idled at the time of the inspection, Respondent retained a mine ID number and did
not officially close the plant. (Tr. 226-27). The wash plant was involved in the work of
preparing minerals. The mine was not closed and the wash plant remained active, which gives
MSHA the ability to inspect and cite Plant 4, including the crusher.
Respondent did not dispute any of the factual representations made by the inspector at
hearing or in the citations themselves. Furthermore, it was clear that the generator was not
running and had not done so for a substantial period of time; it was unclear, however, whether
the generator was locked and tagged out. I credit Inspector Mueller’s testimony that the cited
switch box had three .5 inch holes in the bottom of the cited electrical box in violation of section
56.12008. (Tr. 192). I also credit Inspector Mueller’s testimony that the exposed energy
conductors cited in Citation No. 6593707 violated section 56.12008. (Tr. 197-98). Respondent
did not present sufficient evidence to overcome Inspector Mueller’s undisputed testimony
concerning the cited condition; showing that the generator that powered the cited equipment was
locked and tagged out was vital, but Respondent did not do so. Respondent violated sections
56.12002 and 56.12008.
Respondent’s moderate negligence caused Citation Nos. 6593706 and 6593707 because
Respondent knew or should have known about the cited conditions. Respondent’s foreman
contacted MSHA to shut the plant down and MSHA denied permission. (Tr. 226-227). I
AFFIRM Citation Nos. 6593706 and 6593707; a penalty of $125.00 is appropriate for each
citation.
Citation No. 6593708
On March 23, 2011, Inspector Mueller issued Citation No. 6593708 under section 104(a)
of the Mine Act, alleging a violation of section 56.13011 of the Secretary’s safety standards.
(Ex. G-50). The Kohler air compressor tank was equipped with a functioning automatic pressure
release valve, but did not have a pressure gauge. Id. Inspector Mueller determined that an injury
was unlikely to occur, but that such an injury could reasonably be expected to cause lost
workdays or restricted duty. Further, he determined that the operator’s negligence was moderate
and that one person would be affected. Section 56.13011 of the Secretary’s safety standards
requires that air receiver tanks “shall be equipped with indicating pressure gauges which
accurately measure the pressure within the air receiver tanks.” 30 C.F.R. § 56.13011. The
Secretary proposed a penalty of $100.00 for this citation.
For the reasons set forth below, I modify Citation No. 6593708 to a low negligence
designation.
Discussion and Analysis
I find that Respondent violated section 56.13011. Inspector Mueller and Clift agree that
the cited gauge was broken, but that a connected air tank had a gauge that monitored the pressure

36 FMSHRC Page 3153

of both tanks. (Tr. 213, 218-19). As the inspector testified, the hoses that connected the two
tanks could be obstructed or damaged, which would cause the operational air gauge to stop
monitoring the tank without a functional air gauge attached to it. All air tanks must be equipped
with a pressure gauge and that gauge must be on the tank. I defer to the Secretary’s
interpretation of the standard to require a gauge upon each tank. Respondent violated section
56.13011.
I find that Citation No. 6593708 was the result of Respondent’s low negligence. The
presence of the exhaust valve on the cited tank as well as the air gauge on the connected tank
mitigate Respondent’s negligence. I hereby MODIFY Citation No. 6593708; a penalty of
$100.00 is appropriate for Citation No 6593708.
II. SETTLED CITATIONS
The parties settled one of the citations in these dockets immediately before the hearing.
In Docket No. CENT 2011-712-M, Respondent withdrew its contest of Citation No. 6593691
and its $100.00 penalty.
III. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I have considered the Assessed Violation History Reports, which were
submitted by the Secretary. (Exs. G-2, 3, 4, 5). At all pertinent times, Respondent was a small
mine operator. The violations were abated in good faith. The penalties assessed in this decision
will not have an adverse effect upon the ability of Nelson Quarries, Inc., to continue in business.
The gravity and negligence findings are set forth above.
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 No.

30 C.F.R. §

Penalty

56.14100(b)
56.12018
56.14107(a)
47.44(b)

Vacated
$100.00
Vacated
120.00

56.14201(b)
56.14107(a)

120.00
100.00

CENT 2011-712-M, Plant 3
6593690
6593691
6593692
6593693
CENT 2011-878-M. Plant 2
6593717
6593718

36 FMSHRC Page 3154

CENT 2011-879-M, Plant 4
6593706
6593707
6593708

56.12002
56.12008
56.13011

125.00
125.00
100.00

56.14100(b)
56.20003(a)
56.14107(a)

200.00
130.00
230.00

CENT 2011-1158-M, Plant 3
6593767
6593769
6593770
TOTAL PENALTY

$1,350.00

Nelson Quarries, Inc., is ORDERED TO PAY the Secretary of Labor the sum of
$1,350.00 within 30 days of the date of this decision.4

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

Distribution:
Jamison P. Milford, Esq., Office of the Solicitor, U.S. Department of Labor, Two Pershing
Square, 2300 Main Street, Suite 1020, Kansas City, MO 64108 (Certified Mail)
Robert D. Ankeney, Conference and Litigation Representative, Mine Safety and Health
Administration, U.S. Department of Labor, P.O. Box 25367, DFC, Denver, CO 80225 (Certified
Mail)
Paul M. Nelson, Nelson Quarries Inc., P.O. Box 334, Jasper, MO 64755 (Certified Mail)

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.

36 FMSHRC Page 3155

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

March 31, 2014
FRED ESTRADA,

DISCRIMINATION PROCEEDING

Complainant

Docket No. CENT 2013-311-DM
SC-MD 2013-06

v.
RUNYAN CONSTRUCTION, INC.,

Mine ID 29-00159
Mine: Tyrone Mine

Respondent

DECISION ON LIABILITY
Appearances:

Ben Furth, Esq., The Furth Law Firm, Las Cruces, New Mexico for
Complainant
Nathan Gonzales, Esq., Gonzales Law, Silver City, New Mexico for
Respondent

Before:

Judge Moran

Summary
Before the Court, under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et. seq., (2012) (“Mine Act,” or “Act”), is a section 105(c)(3) complaint of discrimination which
was brought by Mr. Fred Estrada, acting initially pro se.1 A hearing was held in this matter on
November 19, 2013 in Silver City, New Mexico. Upon consideration of the entire record and the
post-hearing briefs, for the reasons which follow, the Court finds: that the Complainant engaged
in protected activity, when he made a safety complaint, identifying to his supervisor an
improperly repaired wiring connection for a truck’s auxiliary gas tank fuel pump; and that his
termination from employment ensued from that event. The Court rejects, as completely
pretextual, the Respondent’s contention that the Complainant was fired for failing to follow an
order from that same supervisor that he was to leave the keys for that same truck inside the truck
cab to allow access to it for a different repair.

1

Post-hearing, Complainant retained Attorney Furth, who filed a post-hearing brief and a
reply brief on Mr. Estrada’s behalf.

36 FMSHRC Page 3156

Findings of Fact with Discussion
Introduction
Complainant, Fred Estrada, on February 28, 2013, filed, pro se, his section 105(c)(3)
action, following a letter dated February 1, 2013 from the Mine Safety and Health
Administration informing him that its investigation did not conclude that there had been a
violation of the Mine Act’s discrimination provision. The letter went on to advise of the right
for a miner to file an action on his own before the Federal Mine Safety and Health Review
Commission. See, e.g., Turner v. National Cement Co., 33 FMSHRC 1059, (May 20, 2011).
The February 28th letter was filed by David Estrada, brother of the Complainant, who was
assisting him due to, among several reasons, Fred Estrada’s limited education. Although several
“apparent violations” were brought up in the four-page typed letter, the “crux of the whole case”
was the claim that “[t]he complainant was terminated because he was exercising his right and
raising an issue about a safety defect on a piece of equipment. It was alleged that the
Supervisor, Todd Hamilton, took offense that the same safety defect was brought to his attention
again after he had apparently sent the equipment out to be repaired. He was apparently angry
that the complainant raised the safety issue and proved him [i.e. Hamilton] wrong.” February 28,
2013 letter to the Commission at page 2. At the time Fred Estrada initially filed his
discrimination complaint with MSHA, the same basis for his discrimination claim was identified.
The document was handwritten2 but, typed on the first page of that document, it informs that
Fred Estrada claims that he “[w]as fired for requesting safety defect on Bird Hazing truck to be
repaired. (No fuse for pumpon [sic] secondary fuel tank)” Discrimination Report at page 1,
parenthesis in original. The handwritten portion makes it clear that the complaint revolved
around the pump on the spare gas tank for the bird hazing truck. The pump stopped working and
the Complainant discovered that the fuse for the wires to the spare pump had burned out.
Complainant noted this needed to be repaired. However, he later discovered that the wiring had
not been repaired properly and so advised Mr. Hamilton of that deficiency. Shortly after a
heated exchange between the Complainant and Mr. Hamilton over this issue, the Complainant
was fired.
Hearing testimony and related Findings of Fact
David Estrada, brother of the Complainant, acted, with the Court’s permission, as a
non-attorney representative in this proceeding, as English is not Fred Estrada’s first language
and because of his limited formal schooling. In that role, David Estrada outlined in his opening
statement the basis of Fred Estrada’s Complaint, namely that Runyan supervisor Todd Hamilton

2

The handwritten complaint is acknowledged by the Complainant to be incomplete, with
a page apparently missing from it. There is no evidence to suggest that the missing page was
intentionally dropped. Further, despite efforts, no full copy of the complaint could be located.
This was unfortunate but, as the Respondent has pointed out, the Complaint is not evidence
itself. The more important point is that the Respondent has long known, through various
documents, including the handwritten complaint, of the basis of Fred Estrada’s discrimination
complaint and, understanding that basis, it has countered that the reason for his discharge was a
failure to obey an order.

36 FMSHRC Page 3157

took offense, when told by Fred Estrada of a safety defect on the truck he was assigned to
operate and informed that the defect had not been properly corrected. Tr. 23.
The testimony began with Complainant, Fred Estrada.3 Relating his description of the
events that led up to his termination from Runyan Construction, he stated that on September 20,
2012, Ms. Viola Ogas was his relief operator at the mine. Ms. Ogas informed him that the pump
for the spare gas tank on the truck had “run out.” Tr. 27. The spare or “extra” gas tank in the
truck was used to fill up the truck’s primary tank, when the primary gas tank would run out of
fuel. The extra gas tank was not used to run other machinery; it was simply an auxiliary gas tank
for the truck itself. Accordingly, to state the obvious, the truck in question was equipped with
two gas tanks: a main tank and a spare. Tr. 32. A pump delivered gasoline from the spare tank to
the truck. Fred Estrada advised Ms. Ogas that he and Walt Mitchell, another Runyan employee,
would check the spare tank issue. Tr. 27. On Fred Estrada’s first day back at work, September
21st, he told Mr. Mitchell about the pump issue and together they examined the spare gas tank
pump and found that the wiring from the pump to the battery had a burned-out fuse. That
problem, they concluded, caused the pump to stop working. Tr. 30. As a temporary fix, the two
employees cut the ends of the wires, circumventing the fuse, and then reconnected the wire ends
directly to one another, enabling the pump to work again.4 Tr. 31. This occurred on September
21, 2012. After the temporary fix was done, Mr. Estrada went about his other duties at the mine,
which he described as “making [his] rounds.” Tr. 33. Late on the following day, the 22nd of
September, Complainant had to fill the truck’s gas tank and, in preparation for that, the wires for
the auxiliary tank were disconnected from one another and taped on each end. After doing those
tasks, Complainant proceeded to attend to other work duties at the mine. Tr. 34-35.
Following that, late in the evening two days later, on September 24th, the Complainant
called Ms. Ogas from his home. Ms. Ogas had the same job duties as the Complainant; both
were employed as roving bird hazers. It was at that time that he told Ms. Ogas about the
problem with the truck’s auxiliary gas tank problem and the way it had been fixed it.5 Tr. 38.
He left the decision about repairing the tank up to her, but expressed his opinion that it was best
if she took it to be fixed. Tr. 40. He also explained how the wires could be hooked up, in the
fashion he had employed. The Complainant stated that it was up to Ms. Ogas, not him, as to
whether to have the tank fixed.

3

For the record and for no other purpose regarding the Court’s findings and
determinations, it was noted that, when Fred Estrada was sworn in, and asked to raise his right
hand, he could not do so because he has a prosthesis on his right arm. Consequently, he raised
his left arm for being sworn.
4

Apparently under this dual tank arrangement, the truck would need a gas refill every
other day.
5

Complainant reiterated in his testimony that he had discovered the gas tank problem on
the 21 and informed Mr. Mitchell of it on that day. Mr. Mitchell looked at the problem with the
Complainant on that day. As of that point in time, the Complainant did not mention the problem
to any other Runyan management person, other than Mr. Mitchell. Tr. 36.
st

36 FMSHRC Page 3158

The Complainant was then off from work from September 25th through the 28th, returning
to work on September 29th. During his time away from work he learned from Ms. Ogas that she
had brought the truck in to fix the gas tank pump problem on the 26th. However, Ms. Ogas
informed the Complainant on the 28th that, while she brought the truck in for the repair, all that
was done to address the problem was to cut the wires and tape them. No fuse was installed.
Complainant then returned to work on the 29th and also worked on the 30th of September.
No problems arose during either of those days. On Monday, October 1st, the Complainant found
that the truck was about a half-a-quart low on oil. Tr. 42. He then proceeded to drive the truck,
making his rounds, when he saw his supervisor, Mr. Hamilton, drive up to the “conex box,” 6
which is a place where the mine stored equipment. Tr. 43. The Complainant approached Mr.
Hamilton, requesting motor oil. According to the Complainant, Hamilton told him “in a very
bad way” to “look for some [oil].” Tr. 44. Mr. Estrada then began looking for oil in the conex
box but was only able to find heavy duty oil, which he considered unsuitable for use in the truck.
It was then, as the Complainant exited the conex box, that he told Hamilton, “Oh, by the
way, Todd, that truck - - they took the truck in to be fixed, but it wasn’t fixed right.” Tr. 45.
The Complainant related that Hamilton then became “really upset,” raising his voice and saying
“what do you mean?” The Complainant again told Hamilton that the truck wasn’t fixed right.
Following that exchange, according to the Complainant, Hamilton got in the back of the pickup
and turned the pump on.7 He then told Mr. Estrada, in a high voice, “See [ ] It’s working.” Tr.
45. At that point, the Complainant also became upset, telling Hamilton, “Yes, it’s working. But
they didn’t fix it right.” He informed Hamilton that the “repair” was nothing more than what he
and Walt Mitchell had done, simply connecting the wires.
From Mr. Estrada’s recounting of this exchange, which the Court found to be a credible
recounting of the interaction between Mr. Estrada and Mr. Hamilton, it is fair to conclude that
Mr. Hamilton was significantly irritated with the Complainant. As recounted, per the footnote
below, Hamilton’s irritation with Mr. Estrada was heightened when he then had difficulty
unlocking the truck’s gas tank. Hamilton then told Mr. Estrada that he “better check [the
truck’s] fire extinguisher.” Estrada responded he would do that, but Hamilton told him “You do

6

The witness explained that the “conex box” referred to a large metal box where the
mine stores supplies. Tr. 44. Mr. Hamilton later confirmed that it is a metal storage building, of
approximate dimensions of 8 x 8 x 20 feet. Tr. 145-146.
7

An indication of the credibility of Mr. Estrada’s telling of this exchange is that he
remembered details of it, such as his claim that Hamilton, upon jumping in the back of the truck,
had trouble unlocking the lock to the pump. Tr. 45. Continuing, Mr. Estrada related that Mr.
Hamilton then had trouble putting the lock back on, to the point that he was going to leave it
unlocked. Mr. Estrada objected to that and told Hamilton to lock it, as he was concerned that, in
its unlocked state, it would fall off the truck and that he would be blamed for loss of the lock.
Tr. 46.

36 FMSHRC Page 3159

it now.” Tr. 46. Estrada followed the order and checked the fire extinguisher immediately,
finding it to be in fine order. Hamilton then told Mr. Estrada to “clean the [bed of the] truck up.”
Tr. 47. Again, Estrada followed the order and he started cleaning the pickup truck’s bed.8 After
he finished cleaning out the bed of the truck, the Complainant left in the truck and completed the
work day, October 1st, without further incident. Tr. 53.
The following day, October 2nd, Fred Estrada, upon returning to work, was told that he
was needed at the contractor’s parking lot. When Mr. Estrada arrived at that location, Tommy
Christiansen [sic](the mechanic’s correct name is Christian),9 a mechanic who did work for
Runyan, was present, along with Mr. Oscar Flores.10 Estrada was asked to be there because
mechanic Christian was going to work on the truck. Tr. 55. Christian advised that he was there
to install a fuse for the gas tank arrangement on the truck. Although Mr. Estrada had some fuses,
apparently none were large enough for the gas tank fuse. Estrada related in his testimony that,
when mechanic Christian saw the taped wiring arrangement for the extra gas tank, he remarked
to him “Oh, man, this is wrong.” Although Mr. Estrada more or less knew what the problem
was with the wiring arrangement, he still asked the mechanic “What do you mean?” The
mechanic told him that, “Well, it’s fixed wrong. It’s wired wrong. Man, this is dangerous.” Tr.
57. Estrada then asked him, “what could happen?” and the mechanic replied that it “can catch
fire and blow the truck up.” Tr. 57. This did not surprise Mr. Estrada, as he knew that the taped
arrangement, with no fuse, was hazardous. The mechanic then asked Mr. Estrada who had
worked on the truck earlier. While Mr. Estrada actually had an idea who had done the poor
repair, he advised that he did not know who did the work, but he informed the mechanic that the
truck had been taken for the repair to the mine’s hilltop garage. Tr. 58. The mechanic then told
Mr. Estrada that it couldn’t have been mechanic “Mr. Brown,” because “[Mr. Brown] knows
better than that.” Mr. Estrada then helpfully responded advising that Mr. Brown has “a young
guy working there for him.” Tr. 58. The mechanic then commented about the young guy
working at that the garage, with the remark “that figures.” The mechanic then left to obtain the
fuse which was needed to properly repair the wiring. Later that same day the mechanic returned
and fixed the wiring by installing the fuse.
Following that repair, Mr. Estrada then continued making his rounds. However, a new
problem then arose with the truck, making it hard to turn the steering wheel. At the same time,
he also noted a smell, which he thought could be transmission or power steering fluid. He then
drove the truck to the conex box, although that was very difficult to do because of the steering
problem. From there, he radioed the front gate, using his hand radio, but no one responded.

8

While Mr. Estrada believed another person was nearby – inside the conex box – while
he was having his unpleasant exchange with Mr. Hamilton, he did not know who that person was
and he did not believe that their exchange was heard by anyone else. Tr. 49.
9

The mechanic was mistakenly referred to as “Christiansen” but his true name is
“Tommy Christian.” Tr. 197.
10

Mr. Flores was the worker who took the place of former employee Walt Mitchell.

36 FMSHRC Page 3160

Mr. Estrada then called Sam Hill, an employee of Freeport McMoRan,11 and upon reaching him
on the radio, asked him to come down to his location. When Mr. Hill arrived, Mr. Estrada asked
him to drive him to the contractor’s parking lot, so that he could get a spare truck. Tr. 61.
As Hill and Estrada were driving out of the mine, on their way to the contractor’s parking lot,
they met Mr. Hamilton, who was then driving in to the mine. Mr. Estrada informed Hamilton
about the truck steering issue and, in response to Hamilton’s question about its location, advised
that the truck was “out of the way,” meaning that the truck was out of the roadway. Tr. 62.
Mr. Hamilton told him which truck to use, although Mr. Estrada already knew that he was to use
the spare truck. Mr. Estrada then drove the spare truck to the location of the broken one, and
removed his items from the broken truck. He then continued with his job duties. However, he
then received another call on his radio from the front gate. The radio transmission was very
poor; Mr. Estrada stated that he could barely hear the communication and he could not transmit
back to them. Subsequently, as Mr. Estrada was driving back inside the property, using the spare
truck, Sam Hill radioed him and advised that “Todd [Hamilton] want[ed] to talk with [him].” Tr.
65. Mr. Estrada informed Mr. Hill of his location and advised that he would be at the front gate
in about 15 to 20 minutes. Tr. 66.
When Mr. Estrada arrived at the front gate building, he inquired if Mr. Hamilton was
there. Danny Placencia and Ed McNally, who worked security there, advised that Hamilton had
left a few minutes earlier. Estrada was advised by security that they wanted the keys to the
broken truck and they suggested that he leave the keys with them. In that way, when the
mechanic arrived to fix the truck, the security personnel would be able to provide him the keys.
Estrada did as instructed, handing over the keys to security. Tr. 67. Mr. Estrada then left and
picked up Oscar Flores. While in a vehicle with Mr. Flores, the office secretary, Kim, called
Flores’ cell phone, inquiring about Mr. Estrada’s whereabouts and informing Flores that Mr.
Hamilton wanted to speak with Mr. Estrada. Mr. Estrada then called Mr. Hamilton, who
asserted that he had already instructed Estrada to leave the keys in the broken truck. He then
told Estrada to go retrieve the keys from the front gate and put them in the broken truck. Tr. 69.
Mr. Estrada responded to Mr. Hamilton that he would do as instructed. Hamilton then
added “Okay. And then go home.” Mr. Estrada was surprised about the last instruction and
responded, “Go home? [ ] What do you mean? It’s still early.” Tr. 70. Hamilton responded,
“No. Go home for disobeying an order.” Tr. 70. Mr. Estrada then replied, “Fine.” That was
not the end of the conversation however, as Hamilton then added an instruction for Estrada to
“[l]ook in the truck and see if [Estrada] can find the [model] year of the truck.”12 Tr. 70. To clear
up the Court’s understanding of this exchange, it inquired if Mr. Estrada understood that he had
been fired at that point in time. Mr. Estrada responded that, after being told to take the keys to
the truck and then “go home,” that he was not expressly told that he had been fired. Tr. 72.
11

Freeport McMoRan, it should be explained, was initially a named Respondent in this
matter. On September 27, 2013, the Court issued its Order on Freeport-McMoRan Tyrone's
motion for summary decision, granting the motion and dismissing them as a party to this
proceeding. Runyan is an independent contractor working at Freeport-McMoRan’s mine site.
12

Later, Mr. Estrada informed that neither he, nor Oscar, could find the year of the truck,
although they looked in the truck’s glove box and along its doors. Tr. 74-75.

36 FMSHRC Page 3161

Upon further inquiry by the Court, Mr. Estrada was asked if had misgivings about
leaving the keys in the truck. He affirmed that he did not think it was wise to do so because the
truck has an automatic lock feature and he was concerned that the door could lock with the keys
inside it. Tr. 72. Nevertheless, Mr. Estrada did as instructed and left the keys in the truck. This
meant he had to return to the front gate, pick up the keys, and then drive back to the disabled
truck to leave the keys there. At that point Mr. Estrada still had not been told, expressly, that he
was fired. His firing was only inferred by Hamilton telling him to “[t]ake the keys back and go
home.” Tr. 73. At that point, Mr. Estrada related that he was pretty upset and that he forgot to
call and tell Hamilton that he couldn’t find the year of the truck. He then drove back to the front
gate, parking the spare truck in the parking lot and leaving its keys at the front gate. Tr. 75.
October 2nd was his last day of work.13 Tr. 80.
Mr. Estrada stated that he did not fully grasp that he had been terminated until October
5th. October 3rd, a Wednesday, was Estrada’s regular day off. He related that he had some phone
calls from the office but that he didn’t call back. The next day, October 4th, he went by the
office, advising the secretary, Kim, that the office had called him twice. She advised, “Yes,
Fred. Todd told me to tell you that your services were no longer needed.” Mr. Estrada then
asked if he could have his paycheck early, as he had been terminated, but the secretary told him
he would have to wait until Friday, the usual day for checks to be issued to employees.
Thereafter, Fred Estrada did return on that Friday to pick up his check and inquired then if his
“termination paper” was ready. The secretary advised that it was not, informing “No. Whenever
it’s ready, [she would] call [him] so that [he could] come and sign it.” Tr. 77.
However, he never received a call about his termination paper from that date, nor
thereafter, until the 19th of October. It was only then, on the 19th, when he returned to the office
to pick up his paycheck for days he had worked in his last pay period, that he was issued his
termination paper. Tr. 78. When he looked at it, he noticed that it was only dated and had no
reason for termination listed on it, nor was it signed by Mr. Hamilton or by “Brian.”14 Tr. 78.
He told the secretary that he was in a hurry and asked if he could sign it later that day. She
agreed and also made a copy of the termination paper at that time, providing it to Mr. Estrada.15
In further testimony concerning the termination paper, Mr. Estrada spoke to the fact that
he had two pieces of paper regarding this. He identified one of them as the one that the
Respondent’s secretary gave him on October 19th and this was marked by the Complainant as

13

Mr. Estrada repeated that his last day of working for the Respondent was October 2nd.
Subsequent references to pay pertain to work done up to that date. Tr. 84, 87.
14

Though not expressly identified in the transcript, “Brian” is presumed to refer to “Mr.
Runyan.” Tr. 83.
15

The Court advised that it wanted a copy of that termination paper and that it would be
made as an exhibit. Tr. 78. It was received as exhibit C-1.

36 FMSHRC Page 3162

Exhibit C-1. Tr. 83. Referring to that document, Mr. Estrada repeated that he noted that no
reason for his termination was listed on the paper and that it was not signed by Mr. Hamilton,
nor by Mr. Runyan. Tr. 83. The paper was dated October 2, 2012. Tr. 84.
The second copy of the termination paper was then discussed. Regarding this one, Mr.
Estrada stated that he had not seen that version until he received it, subsequently, from Runyan
and that this occurred at a time long after his termination. Tr. 85, 87. The Court instructed Mr.
Estrada to mark this second version of the termination paper as “C-2.” Mr. Estrada then spoke
to the difference between C-1 and C-2. For C-2, he noted that the secretary had signed her name
to it.16 However, like C-1, C-2 did not list a reason for the Complainant’s termination. Tr. 86.
Mr. Estrada reiterated that, at the time he was fired, he was only given C-1. The Court finds that
Mr. Estrada was in fact only given C-1 on October 19th.
The Court then asked Mr. Estrada to express in his own words why he was terminated.
His first response, indicative of his misunderstanding of the question, was that he didn’t “think
there was enough reason for being terminated.” Tr. 88. When the question was repeated, he
stated, “Because of not leaving the keys in the truck. That’s why. . . . I disobeyed his order.” Tr.
88. It is true that he repeated this answer when asked if he was let go for any other reason. Tr.
89. However, with the Court closely scrutinizing Mr. Estrada during his responses, it was clear
that he was simply providing the Respondent’s given reason for his termination.
At that point, Mr. Estrada’s brother, David, asked if he could explain the question to the
Complainant, Fred Estrada. Respondent’s Counsel objected to that request and the Court
continued with its questions. The Complainant continued to respond by stating that he was fired
because he disobeyed an order. Tr. 89. That order was that he leave the keys in the truck.
When the Court then asked if the gas tank issue was any part of the reason why he was fired,
Fred Estrada stated, “No, sir.”
Naturally, Respondent’s Counsel was elated with these responses, but the Court strongly
believes that this glee was unwarranted for several reasons. First, as noted earlier, it was clear to
the Court that Fred Estrada was expressing the reason for his firing as put forward by the
Respondent and not as an expression of his own estimation of the genuine reason. Second, the
bulk of Mr. Estrada’s testimony pertained to the spare gas tank wiring issue and the conflict and
anger this produced with the very man who fired him, Mr. Hamilton. The issue with the key and
the claimed failure of Mr. Estrada to place the keys in the disabled truck was ancillary and, as
explained within, utterly does not add up as a genuine ground for Runyan to have dismissed Fred
Estrada. Third, even assuming for the sake of argument that Mr. Fred Estrada was not
confused17 and he believed that the failure to leave the keys in the truck was the reason for his
16

Mr. Estrada explained that, by the time the secretary signed the other termination
paper, she was then the office manager. Tr. 86.
17

It should be emphasized that the Court found that Fred Estrada was simply confused
when trying to answer the reason for filing his discrimination complaint and the Court noted that
(continued...)

36 FMSHRC Page 3163

firing, the Court finds, based on the entirety of the record testimony, that the issue about the keys
for the disabled pickup truck was simply a pretextual reason, put forward so that the Respondent
could retaliate for Mr. Estrada’s safety complaint about the gas tank wiring issue. A
Complainant’s misperception of the reason for his firing during testimony does not defeat his
claim, especially when his original complaint and the wealth of his testimony points to a safetyrelated ground for his dismissal.
Mr. Fred Estrada’s somewhat profound confusion on this subject was also exhibited
when the Court asked him about the fuse and the improper way of connecting the two wires, as
he had previously testified about. To that, Mr. Estrada quite naively expressed that he thought
Mr. Hamilton “would have told [him] about it, the reason for being fired.” Tr. 91(emphasis
added).
Based on the entirety of David Estrada’s testimony, and equally upon the Court’s very
strong conclusions about the lack of credibility of Mr. Hamilton when he testified, as discussed
later, the Court concludes that Mr. Hamilton had no legitimate basis to fire Fred Estrada and that
the last thing he would disclose to Fred Estrada would be the real reason for that termination.18
17 (...continued)

Mr. Estrada’s own written complaint is a more accurate statement of the basis for his Complaint.
The face of that document, as the Court noted, shows that the complaint was related to the gas
tank wiring and fuse issue. Tr. 100-101. Mr. Estrada has an eighth grade education. Tr. 101.
Counsel for Runyan objected to the Court’s determination that Fred Estrada was confused.
Counsel also noted that the Complaint is only a pleading, not testimony. Further it objected to
the document’s admission under the “rule of completeness,” as it is not the entire document that
was admitted. As to the “rule of completeness” argument, the Court notes that this is a matter
for the trial judge’s discretion and that admission of the complaint did not create a misleading
impression about the nature of Mr. Estrada’s claim against Runyan. Further, this is not a
situation where a party is attempting to hide part of a document. Rather, the missing portion
was simply lost. See, e.g., Miller v. Holzman, 563 F. Supp.2d 5 (D.D.C 2008), U.S. v. Hassan,
742 F.3d 104, (4th Cir. 2014). Next, Counsel objected to the document as a foundational issue.
However, that argument was simply an offshoot of the objection that it was incomplete. Tr. 103104. The objections were overruled. In terms of confusion, Fred Estrada did ultimately state
that he was confused about the questions regarding his dismissal, stating “I really didn’t know
what [the Court] was really meaning.” Tr. 105. The Court finds that to have been the case; Mr.
Estrada did not process, that is, did not apprehend, the question that was being asked. Finally,
Fred Estrada later added that his discrimination complaint was filed because he reported the
truck and that caused Mr. Hamilton to become upset. Tr. 106. That later remark was entirely
consistent with his claim of discrimination as originally brought and with his initial testimony on
the subject. It is abundantly clear that the aberration in his stated basis for his firing only arose
in the context of his confusion on the witness stand.
18

Runyan’s Counsel attempted to show that Mr. Estrada’s initial answers regarding the
reason he believed he was fired were more reliable than his later responses, by asking, for
example, if he was then under the influence of drugs or alcohol when he gave those answers,
moments earlier, during the hearing. Tr. 108-109. However, Mr. Estrada did add that [Mr.
(continued...)
36 FMSHRC Page 3164

Although Fred Estrada expressed a belief that Runyan would have fired him right at the time he
voiced his complaint about the gas tank, if his dismissal were based on the gas tank wires and
fuse issue, the Court views this as a jejune belief, especially considering his own testimony about
the gas tank issue and, of comparable significance, Mr. Hamilton’s quite unreliable testimony on
the subject.
Also relevant to the issue of the Complainant’s allegations of the reason for his dismissal,
per the Court’s instructions, the Complainant marked C-3 as an exhibit and it was subsequently
admitted.19 Tr. 95. Fred Estrada identified that document as reflecting his handwriting and as a
copy of the complaint that he wrote and sent to MSHA.20 Tr. 97.
Continuing with its cross-examination, Mr. Estrada upon being shown Exhibits R-1
through R-12, by the Respondent, identified them as the checklists for the pickup truck, each of
which he filled out. Tr. 113. R-1, the first presented to Mr. Estrada, is dated September 22,
2012, and he agreed that there is no mention in the checklist of any electrical problem, nor any
18 (...continued)

Hamilton] was upset with him for reporting the truck not being fixed right. Tr. 109. He then
stated that Hamilton was upset for reporting the truck as being unsafe. Tr. 110. The person he
reported that to was none other than Mr. Hamilton.
19

Exhibits C-1 and C-3 were admitted. C-2 was admitted without objection from Runyan
because it reflects Respondent’s view of the termination letter that it claims to have issued to Mr.
Estrada. Tr. 111. It should be clear from the foregoing that the Court finds that only C-1 was
issued to Fred Estrada at or near the time of his firing and that it was woefully deficient with no
signature upon it and no reason for the discharge on it either. Further, as discussed infra, the
Court finds that, contrary to Mr. Hamilton’s claim, Fred Estrada was not given R-14 when C-1
was issued.
20

The last page of that document ends incompletely, stating: “So then when I.” Tr. 99.
The Court acknowledged that the document was incomplete but, in the exercise of its discretion,
determined that the document could be admitted. In this regard the Court noted that, despite its
incompleteness, it was still useful in terms of identifying the basis for Fred Estrada’s complaint.
Tr. 100. Counsel for Runyan stated his objections to the Court’s determination by noting that
there was no testimony that suggested Mr. Estrada was confused and noting that the Court three
times asked Mr. Estrada to listen closely to its question for him. Runyan’s Counsel also noted
that the Complaint is a pleading, not testimony. If that pleading is to be viewed as more than
that, Respondent objects that it fails the rule of completeness, by depriving Runyan of the
entirety of that document. As a third objection, Runyan’s Counsel objected to the document’s
admittance as a “foundational issue.” By this, Counsel explained, he repeated that his objection
was again that it was an incomplete document. This whole maelstrom, it must be remembered,
grew out of Fred Estrada’s misapprehension either out of the questions themselves or his
unschooled understanding of the basis for his dismissal. While much dust was raised over what
Respondent hoped was a windfall, once it settled, it was clear that the Complainant’s basis
remained as he originally contended; he was dismissed because of his safety complaint regarding
the unsafe wiring for the auxiliary tank and Mr. Hamilton’s ire towards Fred Estrada over that.

36 FMSHRC Page 3165

mention of fuel tank or wiring issues. Tr. 113. Only oil leaks were noted. After reviewing each
of them, and concurring that he made no notation of any fuel tank or related electrical issues on
any of the checklists, Mr. Estrada explained that he only listed major things. For example, he
would not list dents. Tr. 117. Although he conceded that the fuel pump electrical issue was
major, he did not mark it on the checklist because “it really wasn’t hooked up.” Tr. 118. He
added that he didn’t mark it on the list because “[t]he wires weren’t hooked up. That’s why I
didn’t.” Mr. Estrada agreed that he chose not to list the truck wire issue on the checklist. Tr.
119.
Upon questioning by the Court on this issue, Mr. Estrada again confirmed that he never
did record on the checklist that there was a problem with the gas tank wiring. Asked to explain
further, Mr. Estrada stated: “Like I said, because we worked on that. And when I used the pump,
I would just connect it. That’s the reason that I didn’t write it up.” Tr. 123. Although he
confirmed that it was a problem, he explained his reasoning behind the decision not to record it,
advising “Like I said, because I would take it apart every time. The twice [sic] that I filled the
truck up with gas, I would move those wires.” Tr. 123.
The Court finds Mr. Estrada’s explanation for failing to record the fuel pump wire issue
as credible, but more importantly, it finds that Respondent’s introduction of the issue to be a
distraction. If meant to show that there was no fuel pump wiring issue, Mr. Estrada’s testimony
and other testimony establishes otherwise and the Court’s findings with regard to the testimony
of Mr. Hamilton and Mr. Christian on this subject is that neither witness was credible on that
subject. Several other points need to be made concerning this. First, Mr. Estrada did take action
on the issue and advised Ms. Ogas about the problem. Second, a repair did occur, not long after
the problem was identified. Third, the test for protected activity does not depend upon a miner
ultimately being correct about a safety concern; only a reasonable, good faith believe need be
entertained. See, Secretary on behalf of Hannah, Payne & Mezo v. Consolidation Coal Co., 18
FMSHRC 2085, 2090 (December 1996); Secretary on behalf of Dunmire & Estle v. Northern
Coal Co., 4 FMSHRC 126, 133-38 (February 1982); Robinette, 3 FMSHRC at 807-12; Pasula, 2
FMSHRC at 2789-96. Here, there was more than a reasonable, good faith, belief on the part of
Mr. Estrada that a safety concern existed.
Mr. Estrada also stated that he received his paycheck on October 5, 2012, which was
payday at the mine. Tr. 121. He agreed that he requested his paycheck on the day he learned he
had been terminated, which was the day before payday.21 With the completion of Fred Estrada’s

21

It was the contention of Respondent’s Attorney Gonzales that the issue of the day he
received his paycheck spoke to the Complainant’s credibility. The Court inquired whether the
testimony about the day Mr. Estrada received his paycheck was tangential to the proceeding. Tr.
122. The Court then instructed Respondent’s attorney to move on to something else, adding its
view that it would not “focus on that. If [the Court] were to decide[] this case based on that
business, that would be a total distraction.” Tr. 122.

36 FMSHRC Page 3166

testimony, the Court inquired of David Estrada as to the witnesses and subjects he would be
covering next.22
Upon Mr. Estrada concluding his evidence, Runyan’s Counsel then moved for a directed
verdict. The Court heard Counsel’s arguments23 and, upon consideration of them, decided to
hold its ruling in abeyance, pending testimony from Respondent’s witness, Todd Hamilton.
Tr. 138-139. Therefore, at that point in the proceeding, the Court ruled that there was a
sufficient basis for it to conclude that, minimal as it was, the Complainant had put forth a prima
facie case and that a safety issue had been presented along with a close-in-time termination. Tr.
139.
Todd Hamilton then testified. The direct exam began without any preliminaries about
Mr. Hamilton’s duties or length of service at Runyan. Instead, for the first question posed, he
was asked to state the basis for the termination of Fred Estrada. He responded: “The basis is that
he was asked numerous times on October 2nd to please return the keys to the pickup [truck] so
we could have it repaired. At no time during that day till after 4 o’clock when I left the property
were the keys taken to the pickup or left in the pickup. I talked to him numerous times during
the day and asked him to please24 take the keys to the truck so we could get it repaired.” Tr. 140
(emphasis added).

22

David Estrada then responded that such testimony would pertain to defective radios
and toilet facility issues. He also wanted to introduce testimony that Mr. Hamilton continued to
allow the truck to be used, despite the wiring problem. Tr. 126-127. The Court advised David
Estrada that it did not consider that testimony to be material to the issues in this proceeding. Tr.
127. The Court then made a ruling on this proposed additional testimony advising that it would
only permit testimony about the incidents alleged by Fred Estrada that were contained in his
complaint to MSHA. Tr. 129. Those issues, it noted, pertained to the auxiliary pump, and
whether that pump was correctly wired, and a second issue, described by the Court as a “quasisafety complaint about leaving keys in a vehicle and that [practice] being against company
policy.” As to the latter, the Court expressed that it “didn’t know about the safety
implications of that.” Tr. 130. The Court explained that any additional witnesses offered by the
Complainant would need to testify about matters which support the basis for Mr. Estrada’s
complaint. Tr. 131.
23

Runyan’s Counsel contended that Mr. Estrada was “terminated for not obeying a direct
order of leaving the keys in the vehicle. . . . It [i.e. his firing] had nothing to do with any of the
alleged electrical incidents which took place . . . [further Counsel contended that Mr. Estrada’s]
failure to do so [i.e. notify the employer of any major problems so they can correct them]
specifically negates his ability to further support his claim here.” Tr. 137-138. The problem
with Runyan’s Counsel’s re-telling is that Mr. Estrada, according to his testimony, did
specifically have exchanges with Mr. Hamilton about the wiring issue. Therefore, Mr. Hamilton
hardly needed a recorded checklist of the problem, as he was already quite aware of the issue.
24

Even this claim, that Mr. Hamilton continually asked Mr. Estrada to please return the
keys, lacked authenticity. By his retelling, Hamilton was one step away from begging Mr.
Estrada to put the keys in the pickup truck.
36 FMSHRC Page 3167

Mr. Hamilton stated that he first spoke with Mr. Estrada during the morning about the
truck and the steering issue, adding that Sam [Hill] was with Mr. Estrada in a truck. He
continued that “we stopped outside the gate and [Mr. Estrada] told me about the problem with
the pickup.” Tr. 141. This occurred on October 2nd. Hamilton then asked Mr. Estrada about his
location and was advised that he was at the conex box. Tr. 141-142. Next, he told Mr. Estrada
that he would call Tommy, their mechanic, to fix the truck. The mechanic told him that he
needed to know the truck’s model year but when Mr. Hamilton went to the truck, he found it was
locked and he couldn’t find the keys. Tr. 142. Following that, he stated that “we” tried to
contact Mr. Estrada, using the mine radio, and by cell phone and by the front gate and also
through Runyan’s secretary, Kim, who was tasked to try and contact the other bird hazer, O.T.
Flores, all to convey the message to Fred Estrada to take the keys to the truck. Tr. 142. Mr.
Hamilton added that around 1:30 that day, Sam Hill called him on the phone and advised that he
then had Fred Estrada on the radio. Learning of that, Mr. Hamilton stated that he turned his
radio to Channel 12, and asked Fred Estrada to take the keys to the pickup truck. Estrada
responded, according to Mr. Hamilton, that he would “be there in 15 minutes.” Tr. 142.
Learning that, Mr. Hamilton parked his truck near the broken pickup and operated “the blade”
for about an hour, but when he came back the truck was still locked. Tr. 142-143. His story
continued that “we then called the front gate numerous times besides once to try to get ahold of
Fred. Kim tries numerous times throughout the day. So when I was leaving the mine after 4
o’clock, the keys were at the front gate.” Tr. 143 (emphasis added).
Mr. Hamilton denied that the keys had always been at the front gate, instead maintaining
that “Fred had the keys all day long.” Tr. 143. According to Mr. Hamilton, “[t]hey said that
Fred dropped off the keys at the front gate just a little while ago.” This occurred around 4 p.m.
Tr. 143. According to Mr. Hamilton, he specifically requested that Mr. Estrada go unlock the
truck and leave the keys with it speaking “to him three times personally” about the matter. Tr.
144.
At that point, the Court announced that it would have some questions about this
testimony and, as Runyan’s attorney announced he would be changing topics, the Court began its
questioning. Regarding the broken truck,25 the Court first inquired about the distance between
the disabled truck and the front gate, where the keys were eventually located and was told by
Hamilton that it was “half a mile to three quarters of a mile.” The Court notes that, even driving
30 mph, this means a time of less than two minutes was involved. Next, the Court asked about
the range of Mr. Estrada’s bird scaring duties in relation to the front gate and was advised that it
was “around a 5 mile radius.” Tr. 145.
The Court then frankly advised Mr. Hamilton that, upon listening to his version of the
events, it seemed “like a rather small reason to decide to fire someone because they didn’t get the
keys over to the disabled truck.” Tr. 146. Hamilton responded that “Judge, after speaking to
him on three different occasions, he blatantly disregarded to take the keys to the truck so we
could get the truck repaired.” Tr. 146.

25

Hamilton stated that the truck was disabled due to a power steering issue. Tr. 144.

36 FMSHRC Page 3168

The Court replied that it took that answer as reflecting Hamilton’s belief that such a
failure provided “a sufficient basis to fire someone.” Tr. 146. Given that posture, the Court
inquired whether Runyan had a policy of issuing warnings or whether in the alternative it would
go “from zero-to-ten” so to speak and fire someone, with no intermediate steps. The Court
explained further what it meant, asking Mr. Hamilton to assume that the Court was employed by
Runyan and to further assume that it had certain job responsibilities and that it failed to do one of
those responsibilities. The Court then asked, “Is your company policy that that’s it, I’m fired?
There’s no warning issued. There’s no paper? There’s nothing preliminary? You go right from
mistake or failure . . . [a] failure to obey [your] order, to you’re fired? Is that the way it works
[with Runyan]? Tr. 147. Mr. Hamilton’s response was unequivocal and short, advising “Yes,
sir.” Tr. 147.
The Court then inquired of Mr. Hamilton as to the number of employees working at the
mine site. Two people had the bird-scaring responsibilities, but the Court then learned that
Runyan’s work at the mine encompassed much more than that. In total, Hamilton estimated that
Runyan had about 40 employees at the mine. He then agreed with the Court’s characterization
that 40 is “quite a large number of employees.” Tr. 148. Given that, the Court then asked if
Runyan had a written policy as to how it deals with discipline. Mr. Hamilton responded, asking
if the question was whether Runyan had a written policy. He then added that Runyan has “safety
policies.” Tr. 148.
This prompted the Court to ask whether Hamilton had understood the question and he
affirmed that he did understand it. Honing in on the issue, the Court then asked if “the company
[has] a policy that they adhere to such as - - a process [they use]. Tr. 148. Hamilton then
affirmed that Runyan does “have a warning document, yes sir.” Asked whether it ever issued a
warning to Fred Estrada, he responded, “No, sir.” Tr. 148.
The Court then inquired whether, during that approximate time period, that is, during
2012, Runyan ever fired an employee without issuing a warning. Hamilton’s response was “No,
sir.” Tr. 149. That answer led the Court to inquire what made the Estrada case so special, that
Hamilton decided not to issue a warning, but instead to fire him for not getting the keys over to
the truck. The Court added, “Why didn’t you use a lesser tool than just deciding to fire him?”
Mr. Hamilton’s response was that because Mr. Estrada “blatantly disregarded anything
that I asked him to do that day.” Tr. 149 (italics added). This response perplexed the Court,
prompting it to ask for a clarification, as Hamilton had only cited the issue with the keys for the
pickup truck. Asked if he only requested Mr. Estrada to do that one thing that day, namely to
take the keys to the truck, Mr. Hamilton affirmed that in fact that was the only thing he asked
him to do that day. Thus, upon questioning, Hamilton admitted that his reference to Mr.
Estrada’s failure to do anything he asked him to do that day, in fact boiled down to failing to do
one thing.
The Court then asked again if Hamilton could point to any other employee that he had
fired unceremoniously, with no warning first issued. To this, Hamilton replied “I never had to.
I haven’t fired anyone.” Tr. 149. In candor, the Court, speaking to Mr. Hamilton’s credibility,
advised that him that it had “some problems with what [he] was telling [the Court]. Tr. 150.

36 FMSHRC Page 3169

Counsel for Runyan then resumed his direct examination of Mr. Hamilton. Tr. 150.
Picking up from Hamilton’s response that he hadn’t fired anyone before, he inquired if he had
ever before had anyone blatantly disregard his orders for eight hours, to which he responded,
“No sir.” Asked how many times the mechanic had gone “out there to go fix that vehicle,
Hamilton responded, “At least once, twice.” Tr. 150. He affirmed that his asking Estrada more
than once to take the keys to the truck weighed in his decision to fire him, stating that it is
important for every employee “to be accountable for their actions.” Tr. 151. Hamilton also
advised that he had worked at this mine for 20 years and during that time had always had people
working under him. He agreed that for the business to run properly employees cannot do
whatever they want. He also denied that he had ever had any “cross words” with Mr. Estrada.
The Court then inquired about the mechanic who repaired the truck, asking if he is a
Runyan employee. Hamilton described him as “a part-time employee.” Tr. 153. The Court
asked if it would be correct to assume that the mechanic would have been at the mine that day,
regardless of the truck repair issue. However, Mr. Hamilton stated that he did not know if the
mechanic was on the mine property earlier that day. Hamilton did state that he called him to
look at the truck and that he had called him “for that truck for the steering pump.” Tr. 153.
Mr. Hamilton was then presented with an invoice to Runyan for the truck repair from
Hilltop Service, dated September 26, 2012. That bill was the bill “for electric wire and labor.”26
Tr. 155; R-13. Hamilton then agreed that safety at the mine is a concern of his and that repair of
a broken vehicle is a concern related to such safety. Tr. 157. In this instance, Mr. Hamilton
stated that his concern was “[b]ecause the policy of fluid being displaced on the ground in the
mines, [and it is Runyan’s] policy to repair any defects as soon as possible.” Tr. 158. Following
a series of extremely leading questions, Mr. Hamilton agreed that the extra time involved in
repairing the fluid leak was, as Counsel expressed it for him, “something that raised the level of
noncompliance, simply this employee not responding to you, to a different level in your mind?”
“Yes, it did,” Mr. Hamilton responded cooperatively to the leading question. Tr. 160.
Respondent’s Counsel having completed his examination, the Court made further
inquires, handing Exhibit C-2, a termination notice for Mr. Estrada, to Mr. Hamilton. The Court
inquired if that was the termination notice Mr. Hamilton was relying upon as the notice which
was submitted to Mr. Estrada. Hamilton advised that it was, adding “[a]nd also the letter that I

26

It is worth noting that after Mr. Hamilton stated that R-13 was the September 26
invoice for the repair of the electric wire and labor, his attorney then asked if it was the bill “to
repair the [steering] pump issue.” Tr. 155. Hamilton, contradicting his immediately preceding
testimony, agreed with his Counsel that the exhibit represented the bill to repair the pump issue.
“Yes, it is.” Id. He then confirmed that this repair to the pump was done on the 26th. Id. The
document itself, R-13, shows that it had nothing to do with the power steering pump issue.
Hamilton had just stated that he called the mechanic “for that truck for the power steering
pump.” Tr. 153. As noted infra, Mr. Hamilton and Mr. Christian did not even have their stories,
and “stories” is the correct term, lined up. As set forth in dictionaries, a “story” is a fictional
narrative. In this case, different versions of the “story” came from Hamilton and Christian.

36 FMSHRC Page 3170

had wrote [sic] per the notes that was with it also.” Tr. 161. This was represented to be the back
page of Exhibit C-2 and it was separately marked as R-14.27 Hamilton then stated that he wrote
this regarding the termination of Fred Estrada and that he created it on the 3rd [of October],
which was the next day. He stated that it was presented to Fred Estrada when he was terminated
and that it set forth the reasons for that termination. Tr. 163. The Court finds that it is
extremely unlikely that Mr. Hamilton presented the letter, R-14, to Mr. Estrada. The typewritten
letter is not at all of the nature that an employee would be presented upon being terminated.
Rather, on its face, it is merely a defensive attempt to set forth a justification for Mr. Hamilton’s
action to fire Fred Estrada.
Regarding other discipline he had taken against employees, Hamilton then stated that he
“had suspended employees about four years ago.” Tr. 164 (emphasis added). He then, when
questioned, stated that it was one employee and that this occurred about four years ago. Tr. 164.
The reason, he stated was: “I believe it was damaging a pickup.” The Court noted that “[s]ince
these events you told me are rare, in fact you can only think of one instance in [the past] [f]ive
years . . .” , it wanted to learn what occurred. Tr. 164-165. Hamilton informed: “I believe the
pickup ran into reflectors and damaged the whole side of the pickup.” Tr. 165.
The Court then inquired, “how does the suspension process work? Just get a letter that
you’re suspended, or does he first get to discuss this with people in management first?”
Hamilton responded, “Uh-huh,” and the Court advised that “‘Uh-huh’ is not an answer.”
The Court then asked whether the employee gets a chance to present his reasons why he should
not be suspended, to which Hamilton responded, “No. He was suspended for three days.” Tr.
165.
Inquiring further about Runyan’s practice, as told by Mr. Hamilton, the Court asked if
there was any appeal from such a decision. In this regard it asked, if an employee28 is told that
he is going to be suspended, is he told, for example, “you’re going to be suspended. We’re
going to talk about this, and then we’re going to make a final determination” or does Runyan
“just sort of decide and [the employee] only learns of it with no right to express his point of
view?” Tr. 165. “No,” Hamilton responded to the Court, “We talked about that suspension.”
Tr. 166. However, Hamilton maintained that the employee was first suspended with the talk
following that action. Tr. 166. The Court then wondered, given that the hanging was followed
by the trial, what there was to talk about. Mr. Hamilton’s response was “Well, I don’t know, sir,
what you’re - - talk about? I’m not - - ” Tr. 166. The Court then reminded him that he had just
stated that he talked with the employee about the suspension. Hamilton responded that his talk
consisted of telling the employee that “he’s going to be suspended for three days.” Tr. 166. His
answers, in the Court’s estimation, were all very confusing and for good reason: they did not add
up nor did they make sense.

27

Counsel for Respondent represented that R-14 was part of Ex. C-2, stating that it was
the back page for the notes portion from Mr. Hamilton. Tr. 162.
28 For illustrative purposes of its question, the Court named a hypothetical "Jim" as the
employee facing discipline.

36 FMSHRC Page 3171

The Court then turned to Mr. Hamilton’s version of his interactions with Fred Estrada
and in particular with issues about the pickup truck. Mr. Hamilton affirmed that he recalled that
interaction. On the issue of checking the fire extinguisher on the same truck involved with this
dispute, Mr. Hamilton stated that, although he had such a discussion, it did not occur on October
2nd. Tr. 166. He did note that the fire extinguisher was not checked off and he told Estrada to do
that right away. Next, the Court asked if, having heard Mr. Estrada testify about the issue of
cleaning up the truck, Hamilton agreed that he heard Mr. Estrada’s testimony at the hearing
about that, but when asked if the two had such a conversation, as Mr. Estrada had asserted,
Hamilton asserted, “I don’t believe so, no, sir.” Tr. 167. Unsure what that response meant, the
Court inquired further, asking if that meant he was uncertain, Mr. Hamilton then stated, “No
such conversation occurred.” Further, when the Court inquired of Hamilton if he had any
conversation with Fred Estrada about the auxiliary gas tank and wiring issue, he stated, “No. I
deny that.” Tr. 167-168. In fact, when the Court asked if Hamilton had ever had “any
discussion with Fred Estrada about this wiring issue for the auxiliary tank,” he stated, “No
discussions. . . . never.” Given these conflicting accounts, Mr. Hamilton agreed with the
Court’s characterization that either Mr. Estrada or Mr. Hamilton “is not telling the truth or isn’t
remembering.” Tr. 168. It is the Court’s conclusion that it was Mr. Hamilton that was clearly
not telling the truth. Even the Respondent’s own exhibit, R-13, shows that the electric wire issue
on the truck was repaired on September 26, 2012, a date consistent with Mr. Estrada’s testimony
about the problem and the dates.
David Estrada then had an opportunity to ask questions of Mr. Hamilton. This began
with the subject of Mr. Hamilton’s statement that he had spoken with David Estrada three times
on October 2nd. The first time, he stated, was about 8:30 that morning. He maintained that Fred
Estrada told him the truck was broken down and that he, Hamilton, then told him “to leave the
keys there so that the mechanic could fix the truck.” When challenged that the truck did not
even break down until that afternoon, around 2:30, Mr. Hamilton denied that was the case. Tr.
169-170. Pressed further about his assertion that he spoke with Fred Estrada three times that
day, Mr. Hamilton stated that each of those conversations involved “[t]he same pickup, the same
keys.” Tr. 170. Hamilton was asked how he reached Fred Estrada on the three occasions.
Hamilton responded that the first time was “face to face passing each other in the pickup.” The
second occasion was around 1 o’clock and was “on the radio . . . on the phone . . .” And the
third occasion was around “4:30, 5 o’clock.” Tr. 171.
Hamilton contended that he did not fire Estrada at the time of the 5 o’clock conversation,
although he admitted that he told Estrada then to “go home.” He added, “It was late in the
afternoon. I thought it was time to go home. It was close to 5 o’clock.” Tr. 171. When
challenged about this assertion, and asked if Fred Estrada “still had a couple of more hours to go
[on the shift],” Hamilton responded, “That’s what I said.” Tr. 171. The Court sought
clarification. Hamilton agreed that he was referring to October 2nd at a time near but not quite at
the end of the work day when he told Fred Estrada to go home, adding “I said ‘Once you’ve got
the keys there, you can just go home.” Tr. 172. He maintained that at that time he had not yet
decided to fire Mr. Estrada and that he “didn’t make up [his] mind till when [he, Hamilton] got
home that night.” Tr. 172. The Court finds this to be another incredible recounting from Mr.
Hamilton.

36 FMSHRC Page 3172

David Estrada then resumed his questioning, further challenging Mr. Hamilton’s
assertion that he spoke with Fred Estrada three times on October 2nd. In this regard David
Estrada noted that Mr. Hamilton’s statement that he tried to reach Fred Estrada on the phone and
received no response and on the radio, also with no response, and that he had the front gate call
Estrada numerous times. Hamilton spoke to one aspect of this, stating that he did not assert that
Kim got no response but rather that she “made contact with [Fred Estrada] and with O.T. also.”
Tr. 173. However, Hamilton did not know the time when Kim received a response from Mr.
Estrada. He then expressed uncertainty whether Kim actually talked only to Sam Hill but not Mr.
Estrada. Tr. 174. Hamilton still maintained that he talked to Mr. Estrada three times that day. Tr.
174.29
On the subject of whether Runyan issues warnings to employees, David Estrada asked
Mr. Hamilton if Fred Estrada was issued a warning on September 5, 2008, in connection with an
allegation that he was sleeping on the job and also presented a warning notice.30
On redirect, Counsel for Runyan asked Hamilton to explain his earlier answer that the
mechanic was a part-time employee. Hamilton stated that the mechanic was an independent
contractor, not a part-time employee of Runyan. That mechanic, Tommy Christian, is the
owner/operator of Maverick Mechanical. Runyan’s Counsel then turned to Mr. Hamilton’s
statement, addressing “some of [Mr. Hamilton’s] timing with regard to [his] statement.” Tr. 185.
On this second go-round, Mr. Hamilton stated that on the 2nd of October he saw Mr. Estrada at

29

The Court then stopped the questioning on that point, commenting that it had been
pursued as far as it could go. It went on to note that it would need to compare Mr. Hamilton’s
written statement, which he stated was prepared the day after the termination notice was issued
to Mr. Estrada, with his testimony at the hearing, to determine if conflicts existed. The Court
made no suggestion about its
conclusion on this point and noted that it was possible that it could determine there was no
conflict. Tr. 175.
30

Runyan’s attorney objected to the warning notice document on multiple grounds,
asserting that it was: too old, occurring in 2008; that it was issued by one other than Mr.
Hamilton, and; generally, that it was not relevant or material. David Estrada’s purpose in
introducing the document was to refute the claim that Runyan does not issue warnings to
employees. Tr. 178-180. Runyan had known of the document, as Mr. Estrada produced it as
part of his response to Runyan’s discovery request of him. The Exhibit was marked for
identification as C-4 but it was never admitted to the record. Mr. Hamilton stated that he did not
recognize the document, asserting that he had not seen it until the hearing. Tr. 181. Upon
further questioning by the Court, Hamilton did state that, although he had not seen this document
before, he had seen a warning notice issued by Runyan about two months before this hearing,
adding that it was on a different looking form. The Court finds that the issue of whether Fred
Estrada had ever received a warning notice for an event unassociated with this dispute and
whether Runyan issued warning notices as a general practice is not necessary to resolve, as there
is ample testimony in the record from the Complainant, Mr. Hamilton and Mr. Christian, to
decide this discrimination matter.

36 FMSHRC Page 3173

7:30 that morning at the conex box. At that time Hamilton stated that he did not know about the
pickup truck’s failure and that he learned of it when he “passed Sam Hill and [Mr. Estrada] when
they were leaving the front gate.” Tr. 185. This occurred at 9:30 or 10:00 a.m. He stated that at
that time he then told Mr. Estrada to leave the truck unlocked. Hamilton then agreed with his
attorney statement that he came back to the truck later and found it locked. Tr. 186. Upon
finding the truck locked, again with Hamilton providing one word affirmative responses to the
questions posed by his attorney, Hamilton agreed that he then tried unsuccessfully to reach
Estrada on the radio, then having the front gate guards trying, again without success, and then by
having Kim try to reach Estrada and the other bird hazer. Tr. 187.
Mr. Hamilton then revisited his second attempt to reach Mr. Estrada that day, advising
this occurred when Sam Hill was on the phone with him (i.e. with Mr. Hamilton) and also on the
radio. According to Hamilton, Sam Hill called him on his cell phone and advised that he was in
contact with Fred Estrada via Hill’s radio. Hamilton then turned his radio on, tuned to Channel
12, and spoke directly with Fred Estrada. Tr. 187. He maintained that all three were on the
radio at that time speaking with one another: Hamilton, Estrada and Hill. Tr. 188. At that time,
Hamilton stated that he asked Fred Estrada to “please take the keys to the pickup. And that’s
when [Fred Estrada] stated he would be there in 15 minutes.” Tr. 188. However, Hamilton
stated that Estrada did not show up with keys. Id. Again, resuming his diminished testimonial
role as one affirming the statements of his attorney, Hamilton answered ‘yes’ the mechanic
showed up after that. He stated that mechanic Christian called him, advising that the truck was
locked. At that point, Hamilton stated that “we started making our phone calls again to the front
gate, Kim and myself.” Tr. 188-189. Hamilton stated that he did not get a hold of Estrada until
after 4:30 and discovered that the keys were at the front gate “when [he] went to go check out.”
Tr. 189. Runyan’s attorney continued, stating, “Mr. Estrada left without notifying you that he
had left, and you were on your way out. What happen[ed] at the front gate?” Hamilton stated
that was when he “was informed that the keys were at the front gate, that [Mr. Estrada] had just
dropped the keys off a little after 4:00.” Continuing with what was, practically speaking, the
attorney’s testimony and Mr. Hamilton’s mere agreement with it, Hamilton advised that the
mechanic left and returned the next day to make the truck repair. As Counsel for Runyan stated,
“And you had to pay this mechanic to go out there twice; right?” Hamilton responded, “Yes,
sir.” Tr. 189.
Mr. Hamilton also denied: that he had “words” with Mr. Estrada; that he was short and
raised his voice with him; that he had any personal animosity; and that he had any ill will
towards him. Tr. 190. In sum, Hamilton expressed that “[e]mployees need to abide by
instructions they are given so that the company can keep working.” In his view, Mr. Estrada’s
alleged failure to abide by those instructions, again in his attorney’s words, were “so serious that
termination was warranted [.]”
Upon re-cross-examination, Hamilton was asked if he considered it to be a safe practice
to simply leave the keys in the truck, and he responded that in his view it was. Tr. 193.
However, Hamilton also stated that he was aware of the issue of that truck on occasion being
locked with keys in it. Tr. 193. He then amended his response, stating that he was not aware of
that, advising that he thought the Court’s question was whether the truck would be locked with
the keys left outside it. Asked what his instructions were to Mr. Estrada about the truck’s keys,

36 FMSHRC Page 3174

Hamilton stated that he told him to “[j]ust to take the keys to the truck and unlock the truck and
leave the keys there in the truck.” Tr. 193 (emphasis added). When asked again if he meant
“in” the truck, Hamilton reaffirmed that was what he meant. Tr. 194.
David Estrada then asked Mr. Hamilton if it was true that “your policy was to leave the
keys at the front gate, check in and out every time you come in?” As Mr. Hamilton began with a
non-responsive response, the Court interjected that this was a very basic question and to answer
if that was the company’s policy. He then responded “Yes. The keys - - In the parking lot.
When the pickup is in the parking lot, being that it has the bird-hazing equipment in it, they do
take the keys after the shift and take them to the front gate in the parking lot.” Tr. 194. Hamilton
denied that he had a second set of keys for the truck, a 2008 model and that there was not a
second set of keys for it. Tr. 196.
Following Mr. Hamilton’s appearance on the witness stand, the mechanic, Mr. Tommy
Christian was then called to testify. He stated that his business is Maverick Mechanical and that
he is self-employed. As a subcontractor for Runyan, when he goes to the mine, he writes a
receipt and then is paid for his work. Tr. 198. He affirmed that he had occasion to work on a
disabled vehicle at the Tyrone mine on October 2nd and that he had received notification that it
was broken in the morning of that day, around 10 a.m. However, he stated that he couldn’t get to
the mine until “a little bit after 4:00” that afternoon. He stated that he was unable to work on the
truck that day because it was locked and there were no keys. Tr. 200. Because of this problem,
he called Mr. Hamilton and waited for the keys, stating that he waited “[p]robably at least an
hour an a half that night. And then the next morning I came and got the keys,” he believed, from
Mr. Hamilton, though he couldn’t be sure of that. Tr. 200-201. He then drove the pickup
directly to the Ford dealer, after first adding power steering fluid to it. Tr. 201. Following that,
he gave Runyan an invoice for his work, which was thereafter admitted. R-15. It reflects two
charges, one of which was for October 2nd, for $133.
The Court then asked Mr. Christian about the year of the vehicle, which he believed to be
either a 2004 or 2005 model year. He stated that, once he gained access to open the vehicle the
following day, he had no trouble finding the vehicle’s identification information. In effect, he
stated this information didn’t matter, because he simply drove the vehicle to the Ford dealer.
However, he stated that the Ford dealer never advised him that the ID information was missing
from the pickup. Tr. 205.
Mr. David Estrada then asked Mr. Christian about his repair of the truck fuse problem,
inquiring about the day that occurred. Christian could only respond that the fuse problem was
not repaired on the same day, i.e. that repair was not done on October 2nd. Tr. 206. He admitted
that he did suggest that they “put a fuse in if we wanted to get the fuel tank to work later on.”
Tr. 206. He also stated he “saw the wires taped together with tape and folded back and not
connecting to a battery at the time.” Tr. 207. He also remembered that repair. Agreeing that he
is a “certified” mechanic, and responding to whether it would have been improper to make the
fuel tank work by connecting the wires as they were and that one should have a fuse in place, he
stated: “You could have - - there’s several ways to do it. You can have a fuse. You can have a
butt connector. You can have a nut connector on there.” Tr. 207.

36 FMSHRC Page 3175

It was obvious to the Court that Mr. Christian did not want to testify in a manner that
detracted from his customer’s case. When the Court inquired whether one would not want “just
to tie the two wires together and wrap it with electrical tape,” he answered, “I’ve seen people do
that, but it’s not my practice.” Tr. 208. The Court had to press further, following up with
“[b]ecause it has potential risks, does it not?” Christian finally relented, answering, “Yes, it
does.” Tr. 208.
David Estrada then continued, asking Mr. Christian if he asked Fred Estrada who had
repaired the truck pump wire issue in the first place. Christian responded, “I could have. I don’t
remember at the time.” Tr. 208. Pressed further by Mr. David Estrada, Christian avoided a
direct answer and the Court took note of that, stating, “No. no. [David Estrada’s] question was
do you remember having a conversation with Fred Estrada about the problems of having [the
pump wiring] be that way? Do you remember that conversation with Fred Estrada?” Tr. 208.
Christian answered, “I had a conversation with Fred [Estrada] about how we could rewire it to
make the pump work.” Tr. 208. When asked if he made any statement to the effect about it not
being a good way to just tape the wires together, Christian denied it, instead offering that he
“said this is the way I would do it, Your Honor. I would put a fuse in there, and then we would
connect the battery if we wanted the fuel tank to work, the auxiliary fuel tank to work.” Tr. 209.
This testimony reinforced the Court’s earlier conclusion that Mr. Christian was doing everything
he could to present his repair in a light most favorable to Runyan, but at the end of the day it was
clear that his testimony was evasive until the point that he had to admit that the wiring was in
fact improperly done.
When David Estrada continued on this issue, Christian stated that he never repaired the
fuse, but rather repaired a fuse “for the buggy whip light.” Tr. 209. The Court then again
inquired about this repair. While Christian conceded that he noticed the auxiliary gas tank
connection problem, as he told Fred Estrada that the taping of the wires would not be the way he
would address the problem, he repeated that he never fixed that issue. “I never made the
correction on the vehicle because it was to the auxiliary fuel pump, and I didn’t know whether
they wanted me to repair it and use that pump. . . .” Tr. 210.
Christian did repeat that he waited around for an hour and a half to gain access to the
pickup for the power steering issue. He also stated that he checked in with security and that he
always has to do that. However, he stated security did not have the car keys. Stating that Mr.
Hamilton had testified that he left the property at 4 o’clock on October 2, David Estrada asked
Christian if he met him at the gate. Christian stated that he did not meet Hamilton, that he only
“met” him by phone. He had called Hamilton to inform him that he did not have the pickup’s
keys and that this occurred around 4 o’clock or 4:30. On redirect, Respondent’s attorney asked
if he ever told Fred Estrada that the wiring could cause the vehicle to blow up, and whether it
could cause it to catch on fire. The mechanic responded ‘no’ to those questions. Tr. 213. The
Court would note that this question, rather than helping Respondent’s claims, reconfirms that
Mr. Christian was fully aware of the truck gas tank issue, despite his late claim that his
September 26 repair invoice was for a buggy whip wire. The invoice itself only informs that it
was for an “Elec Wire” and that Viola Ogas’ signature was on the invoice. Ex. R-13.

36 FMSHRC Page 3176

Fred Estrada then retook the stand. On redirect he stated that he left the pickup’s keys at
the front gate as he drove in. This was a little after 4:00 p.m. He informed that, upon arriving,
Danny Plancencia was the security person there and Fred asked him if Mr. Hamilton was on the
property. Placencia checked with the other guard and then advised Fred that Hamilton had left
the property. Placencia then told Fred that they wanted the pickup keys and suggested that he
leave the keys there at the front gate. Further, Placencia told Fred, in that way, if the mechanic
arrived, they would give him the keys. Fred Estrada agreed with that suggestion, and left the
keys with security. Tr. 215. Placencia then took the keys and took them inside the security front
office.
Fred Estrada also took issue with mechanic’s claim that he (i.e. Mr. Christian) did not tell
him about the safety concern with the fuse, stating, “No, that’s not true. And it was the same
day. He was saying that it’s not - - that it wasn’t the same day, and it was. He told me - - well, it
must have been - - to work on the fuse, it must have been about 12:30 or so, maybe 12:15, 12:30.
They called me to go to the contractors’ parking lot; so I did. When I got there, Mr. Christiansen
[sic] was there. And I just asked him. I said, ‘Well, do you want to talk to me?’ And he said,
‘Yes.’ He said, ‘I came to fix the fuse on the truck.’ So I said, ‘Fine.’ So he opened the hood to
the truck, and that’s when he [Christian] said , ‘Oh, man. Who worked on this truck?’ ” Tr. 216.
Mechanic Christian inquired further about this and Mr. Estrada told him there was a
young guy working at the Hilltop Garage on the truck. Upon hearing that, the mechanic
responded, “Well that answers my question.” Mr. Estrada continued to relate his interaction
with the mechanic and that the mechanic checked out the wires, advising that “he didn’t have no
fuse.” The mechanic then looked in his toolbox, finding that he didn’t have a fuse of the
appropriate size to install. He then informed Mr. Estrada that he would need to run into town to
get the needed fuse. Tr. 217. Later, the mechanic returned with the fuse and fixed the problem,
whereupon Mr. Estrada left. Tr. 218.
That same afternoon, the other problem with the truck’s steering fluid arose. When that
happened Mr. Estrada managed to drive it to the conex box and called about the problem, finally
reaching Sam Hill, who drove to the conex box to pick up Mr. Estrada. Hill drove Estrada to
the contractor’s parking lot and it was then that he met Hamilton who, along with another rider,
was driving into the mine. Estrada then informed Hamilton what had happened with the truck.
In response, Hamilton asked if the truck was out of the road and Estrada advised that it was off
the road and at the conex box. Hamilton then told Estrada to get a different truck, identified as
“Runyan 4.” Mr. Hill drove him to the contractor’s lot, where Estrada retrieved Runyan 4 and he
then resumed making his rounds. Tr. 218-219. The Court specifically finds that the truck
steering issue arose during the afternoon that day, not, as Hamilton asserted, that morning.
Following that, around 2:30 to 3:00, he received a call from the front gate. However, he
could barely receive the call and he could not transmit a response. He continued his work and
then, around 3:30, he received another call, advising him that Hamilton wanted to speak with
him. Estrada advised that he would be at the front gate in about 15 minutes but, upon arriving
he did not speak with Hamilton, as he had left by that time. He then resumed his work, helping
Mr. Flores check an area at the mine. Kim then called Mr. Flores, who advised that Mr. Estrada
was with him. He passed his phone to Mr. Estrada and Kim spoke with him, informing that Mr.
Hamilton wanted to speak with him. Tr. 219-220. Hamilton then spoke with Estrada, telling

36 FMSHRC Page 3177

him that he was to pick up the keys for the disabled truck, take them to that truck, leave them in
the truck, look for the year of the truck and then go home. Tr. 220. Estrada then went to the
truck with Mr. Flores. Although uncomfortable about leaving the keys in the truck, because of
the automatic locks issue, he did as instructed by Hamilton, leaving the keys in the truck. He
then returned to the front gate, signed out around 5 p.m., and then went home. Tr. 220-221.
The Parties’ Briefs31
Complainant’s Contentions
As noted, Fred Estrada proceeded pro se at the hearing but subsequently secured legal
counsel, which Counsel filed both a post-hearing brief and a reply brief on Complainant’s behalf.
Complainant’s Counsel contends that Mr. Estrada engaged in protected activity when he
reported the safety issue with the truck’s spare fuel tank pump wiring and that his subsequent
termination constituted an adverse employment action. C’s Br. at 15-16. It then contends that
the nexus between the protected activity and the termination was established, noting that the
Complainant was fired one day after the protected activity. To that, Complainant’s Counsel
maintains that the element of knowledge of the protected activity was also established when Fred
Estrada informed Mr. Hamilton, Runyan’s project manager and safety director, that the pump
wire had not been fixed correctly. The element of animus was also demonstrated through Mr.
Estrada’s testimony, relating Hamilton’s angry reaction upon being informed that the pump wire
had not been repaired properly. R’s Br. at 19. Beyond the establishment of those elements,
Complainant’s Counsel points to the presence of disparate treatment on two grounds. First, it
contends that Mr. Estrada was following Runyan’s policy by leaving the truck’s keys at the front
gate. Second, the Complainant was treated differently both in terms of the procedure employed
and the punishment imposed. Regarding the procedure, it notes Mr. Estrada received no prior
warning and was simply fired, while Hamilton conceded that another employee had only been
suspended, not fired, upon an infraction. Second, the sanction imposed against Mr. Estrada,
firing, was greater, even though the other employee’s action was more serious, having damaged
the whole side of a truck. C’s Br. at 20.
Addressing the subject of whether Runyan rebutted Estrada’s prima facie case, Counsel
for the Complainant notes that the Respondent contends that Mr. Estrada did not list the pump
wiring issue on the small truck operator’s checklist and asserts that Mr. Estrada never had the
conversation with Mr. Hamilton about the matter, noting that the latter denied its occurrence.
C’s Br. at 21. To these contentions, Complainant simply notes that Mr. Estrada verbally
informed Runyan of the issue and that there is no requirement that such complaints need to be in

31

Runyan’s Counsel filed a post-hearing brief, but did not file a response brief. The
Court read and considered all contentions made by counsel in the post-hearing briefs. Any
absence of discussion to a particular contention does not mean that it was not considered but
only that it did not require particular comment.

36 FMSHRC Page 3178

writing.32 Complainant’s Counsel recognizes that the Court stated that credibility determinations
would need to be made. In support of its contention that Mr. Hamilton lacked credibility, it
notes that while Mr. Hamilton testified that he did not make the determination to fire Fred
Estrada until he got home on the evening of October 2, Respondent’s Exhibit C-2, is both dated
and signed October 2nd. That means, Complainant observes, that either the document was
backdated or Mr. Hamilton was not truthful as to the date that the termination decision was
made. C’s Br. at 23. The Court agrees with this assessment but would add that independent of
that determination, it did not find Mr. Hamilton to be a credible witness on a variety of subjects,
including the time when he made the decision to fire Fred Estrada. Observing his demeanor on
the witness stand, along with Hamilton’s claim that he merely told Mr. Estrada to go home early
that day, apart from any decision to end his employment, that Court finds that claim is not
credible.33
Complainant’s Brief concludes with the assertion that Runyan’s stated reason for
terminating Fred Estrada was pretextual. In this regard, it contends that Mr. Estrada did in fact
leave the keys with the truck on the one occasion when he was requested to do that and that the
basis to support that claim is simply that Fred Estrada’s relation of the events on that issue is the
more credible than Hamilton’s version. C’s Br. at 30-31. In further support of its claim that the
stated reason for dismissal was pretextual, it notes that the Complainant had no prior work
deficiencies identified by Runyan and that no warning was first provided, though it had a
warning document for discipline matters. In addition, while Mr. Hamilton claimed that Fred
Estrada disregarded anything he was asked to do that day, in fact Hamilton latter admitted that
leaving the keys with the truck was the only failure allegedly committed by him. Last, in this
regard, it notes that another employee was not fired, despite committing a more serious offense.
C’s Br. at 31-33.
The Complainant also filed a Reply Brief.34 To begin, Complainant’s Reply asks that the
Court adopt various statements made by Runyan in its post-hearing brief which were presented
as proposed findings of fact and to employ them as judicial admissions. C’s Reply at 2-3.

32

Complainant’s Counsel also makes the related, but important, observation that, to be
valid, a miner need only have a reasonable belief of a safety concern; it need not be objectively
demonstrated that, in fact, the safety concern was verified as present in fact. C’s Br. at 22, citing
Bradley v. Belva Coal Co., 4 FMSHRC 982, 992 (June 4,1982) citing Robinette, 3 FMSHRC at
812.
33

Although the Court provides its own analysis of the credibility of the witnesses,
regarding Mr. Hamilton’s testimony at this moment, the Court subscribes to the analysis of that
witness’ credibility as set forth in Complainant’s Brief at pages 23, at paragraphs 120 through
129. The Complainant also spoke to the testimony of mechanic Christian and the subject of his
credibility. As part of its proposed findings of fact, it notes that the mechanic admitted that such
a wiring arrangement had associated risks and it observes that there is an invoice for electric
wire labor. The Court will speak to the subject of mechanic Christian’s credibility infra.
34

As noted, Respondent elected not to file a Reply Brief.

36 FMSHRC Page 3179

However, as the Court independently finds each of the statements highlighted by Complainant’s
Counsel to be fact, apart from whether they are construed as admissions, the request need not be
ruled upon.35
Complainant also addresses Runyan’s motion for a directed verdict, a motion which,
Complainant notes, relies upon Fred Estrada’s statements at the hearing that he was fired for
failing to drop the keys off at the disabled truck. To this, Complainant repeats the claim made
earlier in its brief that Runyan had already made repeated admissions in its proposed findings
that Mr. Estrada engaged in protected activity. C’s Reply at 7, citing pages 1-3 of its reply. It
then notes that Mr. Estrada’s testimony also included repeated statements that he was fired for
informing Mr. Hamilton that the truck’s spare fuel pump had not been correctly repaired and as a
consequence was unsafe. It maintains that to the extent Mr. Estrada seemingly contradicted
himself about the reason for his firing, it is clear that he was voicing the reason Runyan was
claiming. As already noted, the Court has found that Mr. Estrada was not expressing his own
view for his firing, but rather the claim advanced by Runyan. As also noted, even if Mr. Estrada
were to believe that he was fired over the truck keys, his misapprehension of the reason would
not be determinative of the Court’s supported finding to the contrary and its determination of the
real reason for Runyan’s action.
Runyan’s Contentions
Runyan begins the argument section of its post-hearing brief by renewing its motion for a
directed verdict. It emphasizes that Mr. Estrada testified that it was his understanding that he
was terminated “for not complying with a direct order from his superior Tod [sic] Hamilton.”
R’s Br. at 8.36 As noted earlier, Respondent’s Counsel attempted to seal the door on Fred
Estrada’s testimony about Fred Estrada’s understanding of the reasons for his firing, by asking
if, during that hearing testimony, he was then under the influence of drugs or alcohol. Having
Mr. Estrada’s testimony that he was not then in such an altered state, Counsel believed that
testimony terminated the Complainant’s case. However, as the Court pointed out at the hearing
and reiterates here, the recounting and sole focus upon the Complainant’s testimony is seriously
misguided. A complainant’s understanding of the actual reason for his termination neither
makes nor breaks the complaint of discrimination. Rather, the facts, as determined by the Court,

35

The statements Complainant would employ against Runyan and the source in
Respondent’s post-hearing brief are: a. “During this conversation Mr. Estrada stated to Mr.
Hamilton, that when the truck was taken in it was not fixed right.” Proposed Findings, pg. 2, ¶4;
b. “When Mr. Estrada walked out of the Conex box he stated to Mr. Hamilton, ‘Oh, by the way,
Todd, that truck—they took the truck in to be fixed, but it wasn’t fixed right.’” See id. at pg. 4,
¶12; c. “Mr. Estrada repeated that [ ] [the wiring] wasn’t fixed right.” See id. at pg. 4, ¶12; d.
“Mr. Estrada explained [to Mr. Hamilton] that yes it was working, but they did not fix it right…
.” See id. at pg. 4, ¶12; and e. “Mr. Estrada picked up the keys at the front desk and left them in
the truck.” See id. at pg. 6, ¶18. C’s Reply at 3.
36

Respondent’s Brief was not paginated. Page number references were added by the

Court.

36 FMSHRC Page 3180

lead to the determination whether a given complainant engaged in protected activity and whether
the adverse action was motivated in any part by that activity.
In addition, while Complainant Fred Estrada did utter those words about the reason for
his dismissal, that recounting only partially relates his view of the reason for his termination. At
the hearing itself, Fred Estrada subsequently made efforts to restate his understanding of the
reason for his termination, but long before that, in filing his original discrimination complaint, he
clearly recounted in his handwritten report of discrimination that the matter was all about the
pump on the spare gas tank and the associated wiring issue and how upset Mr. Hamilton became
with him when he had the temerity to speak up and inform Hamilton that, while the pump was
working, it had not been fixed correctly. Even in that handwritten discrimination report, Fred
Estrada began with the remark that “I was send Home for disobey a order,” but he then
continued with a recounting of the spare gas tank pump wiring issue. The Respondent has long
understood that the pump wiring was the real basis for Mr. Estrada’s complaint and its lame
attempt at the hearing to play “gotcha” based upon the complainant’s answers would reflect a
superficial and isolated reading of his complaint. Again, it is for the Court to decide, upon
hearing all of the testimony, whether there was protected activity and whether adverse action
flowed from it.
In an apparent alternative to its directed verdict motion, the Respondent then contends
that Mr. Estrada failed to establish a prima facie case. For this portion of its Brief, Respondent
acknowledges that the Complainant alleges “he was really fired for reporting a minute wiring
issue for his work truck.”37 R’s Br. at 9. In this regard Respondent asserts “[w]hat is important
to point out is this is complaint [sic] he chose not to make for 11 days and continue [sic] to use
the truck.” Id. It adds that the mechanic, Mr. Christian, testified “that the vehicle was not in any
unsafe condition because of wiring.” Id. That claim is at odds with Mr. Christian’s testimony.
In fact, Mr. Christian, near the end of his testimony, claimed that he never fixed the pump wiring
and that his repair invoice, he asserted, was for a “buggy whip light.” Therefore, even if the
Court were to accept the mechanic’s testimony as credible,38 Respondent can hardly point to the
mechanic’s testimony to support that the pump wiring arrangement was safe. According to
some, but not all of mechanic Christian’s testimony, he knew not of the pump wiring issue,
despite having an invoice for “Elec. Wire Labor” at the same time as the pump wiring issue had
been raised by Fred Estrada, which invoice was signed by Viola Ogas, the person to whom Fred
Estrada advised about the pump wiring issue.
In a similar fashion, Respondent mischaracterizes Mr. Estrada’s testimony when
asserting that his “testimony is important to point out here as it is clear he understood it not to be
a safety issue that was important enough for him to stop using the vehicle.” R’s Br. at 10.
Viewed in its entirety, as recounted supra, Mr. Estrada’s testimony contradicts that
characterization.
37

The characterization that the wiring issue was “minute” is not based on any testimony
at the hearing to support it as such.
38

As explained infra the Court found that neither Mr. Hamilton nor mechanic Christian
were credible witnesses.

36 FMSHRC Page 3181

Respondent concludes that Fred Estrada failed to make a prima facie case of
discrimination. R’s Br. at 12. To support this contention, Runyan focuses on its claim that Fred
Estrada was fired for failing to obey the direct order from Hamilton. It is noted here that
nowhere in its brief does Respondent formally make any alternative claim that, even if it were
found that Runyan discriminated against Mr. Estrada, it affirmatively defends its action through
showing that it was also motivated by his unprotected activity and would have taken that adverse
action for such unprotected activity alone. Sec. obo Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-818. Thus, Respondent, through its legal counsel, did not expressly so
affirmatively defend. It would seem that, since Runyan was represented by legal counsel, its
failure to expressly assert any affirmative defense, waived such a claim. However, because it
could be inferred that Runyan’s claim that it dismissed Mr. Estrada because he disobeyed a
direct order (i.e. the alleged failure to leave the keys in the truck) was tantamount to an
affirmative defense, the Court, as explained below, rejects any claim that Runyan had a
legitimate, non-discriminatory, basis to dismiss the Complainant.
The basic elements of discrimination actions
As the Commission recently reiterated in Mark Gray v. North Fork Coal Corporation,
2013 WL 4648492, (August 22, 2013) a “complainant alleging discrimination under the Mine
Act establishes a prima facie case of prohibited discrimination by presenting evidence sufficient
to support a conclusion that the individual engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity. See Turner v. Nat'l Cement Co.
of California, 33 FMSHRC 1059, 1064-67 (May 2011); Sec'y on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds 663 F.2d
1211 (3d Cir. 1981); Sec'y on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803,
817-18 (Apr. 1981). The operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no part motivated by protected
activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut the prima facie case
in this manner, it nevertheless may defend affirmatively by proving that it also was motivated by
the miner's unprotected activity and would have taken the adverse action for the unprotected
activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal
Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test).”
Analysis, Further Findings of Fact and Conclusions of law
Upon the close of the testimony at the hearing, the Court noted that “this case is going to
turn on credibility determinations primarily. It also advised that, upon hearing the testimony, it
had made “certain more-than-preliminary conclusions about the credibility of various
witnesses.” Tr. 223. As should be clear from the foregoing, the Court found that neither Mr.
Hamilton nor mechanic Christian were credible witnesses. Their testimony followed an oath in
which they swore to tell the truth. That did not occur. In contrast, Mr. Fred Estrada was quite
credible.

36 FMSHRC Page 3182

Because the foregoing lengthy recounting of the hearing testimony and the findings of
fact, as set forth above, already makes it clear that Mr. Fred Estrada established his
discrimination complaint, only a summary analysis is necessary now. As just noted, of the three
witnesses at the hearing, only one, Fred Estrada, provided credible testimony. When Mr. Estrada
returned to work on September 29th, he learned that Ms. Ogas had attempted to have the pump
wire fixed on September 26th but that it had not been properly repaired. On October 1st the
triggering event occurred when Mr. Hamilton, obviously irritated about the pump wire repair
issue, attempted to show Mr. Estrada that it had been fixed. Though the pump worked, Mr.
Estrada showed up Mr. Hamilton by explaining that the “repair,” if it could even be called such,
had been inadequate. Mr. Estrada’s testimony about the exchange between him and Hamilton is
found to be credible. Hamilton was clearly angry over Mr. Estrada’s accurate assessment that
the pump wire had not been properly repaired. Mr. Hamilton’s claim that he never had an
exchange with Mr. Estrada about the pump wire is not believable, nor is his claim that he never
had angry words with the Complainant. The following day, despite mechanic Christian’s
protestation to the contrary, the pump wire was correctly fixed by him with the installation of a
new fuse in the wire’s line. Thus, Mr. Estrada clearly engaged in protected activity and his
firing, shortly thereafter, was motivated by that activity.
A few words should be added about the claim that Mr. Estrada was fired for failing to
leave the truck keys in the disabled truck. First, the whole claim about this does not add up.
If believed, and he is not, Mr. Hamilton’s Herculean efforts, repeatedly contacting Mr. Estrada to
“please” put the keys in the disabled pickup were disproportionate to the problem. One would
think, by this accounting, that this was the most important task of the day. Thus, by Hamilton’s
telling, the urgency of the task was akin to responding to a four-alarm fire. This was hardly the
case, as the backup truck was available and used by Mr. Estrada the same day. And, of course,
the front gate, where Mr. Estrada initially left the pickup’s keys was all of two (2) miles away
from the conex box. Even hypothetically viewing the truck key issue in the very darkest
construction possible against Mr. Estrada, at most, there was a simple communication mix-up as
to where Mr. Estrada was to leave the keys, and his initial depositing of them at the front gate
was both entirely reasonable and consistent with Runyan’s usual practices. That Mr. Estrada
could be fired for such a minuscule communication error, for which the blame could be spread
among many, is not at all believable.

36 FMSHRC Page 3183

ORDER
The parties are directed to confer in order to determine if there can be agreement as to the
terms of relief for Mr. Fred Estrada. Section 105(c)(3) of the Act provides, in pertinent part:
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 connection with,
the institution and prosecution of such proceedings shall be assessed against the person
committing such violation.” Some issues related to the relief were raised by Complainant’s
Counsel in its post-hearing brief.39 Typically, reinstatement to Mr. Estrada’s former position, if
sought, back pay with an appropriate interest rate, medical expenses, if any, benefits, such as
pension contributions, if any, and lost overtime, are among the remedial matters that may be
present. In addition, the remedies typically also include: expungement from Fred Estrada’s
personnel file of all references to the unlawful disciplinary action taken against him, including
any such references to the events and circumstances associated with his wrongful termination
from any other records maintained by the company; and a posting of this decision at all of its
mining properties where Runyan operates, placed in conspicuous, unobstructed places where
notices to employees are customarily posted, for a period of 60 days, together with a posting by
Runyan at such properties that it will not violate the Mine Act.

39

Complainant’s post-hearing brief also addressed the subjects typically included for the
relief aspects of established discrimination claims. In this regard it lists the following: “1.
Expunge from Mr. Estrada's personnel file any negative references relating to this matter. 2.
Reimburse Mr. Estrada for all reasonable and related economic losses or expenses incurred in
the institution and litigation of this case. This amount shall include damages in an amount equal
to full backpay, all employment benefits, attorneys' fees and costs, all medical and hospital
expenses and any and all other damages suffered and incurred by Complainant as a result of his
discriminatory discharge. Furthermore, interest shall be added to backpay and other expenses,
from the date of discharge until the date of payment, at the adjusted prime rate announced semiannually by the Internal Revenue Service. 3. Post this decision at all of its mining properties in
conspicuous, unobstructed, places where notices to employees are customarily posted, for a
period of 60 days. 4. Restore Mr. Estrada to his former position as a bird hazer or to a similar
position, at the same rate of pay, same shift assignment, and with the same or equivalent
duties.” It also addressed the procedural aspects related to determining if an agreement can be
reached on these issues, adding that if “an agreement cannot be reached, the parties are . . . to
submit their respective positions, concerning those issues on which they cannot agree, with
supporting arguments, case citations and references to the record . . . [ and] [f]or those areas
involving monetary damages on which the Parties disagree, they shall submit specific proposed
dollar amounts for each category of relief. If a further hearing is required on the remedial aspects
of this case, the Parties should so state.” C’s Br. at 33-34. The Court views this as a reasonable
outline for the parties to use in their discussions.

36 FMSHRC Page 3184

The Court retains jurisdiction in this matter until the specific remedies to which Mr.
Estrada is entitled are resolved and finalized. Following the issuance of the final order, this case
will be referred to MSHA for assessment of a civil penalty.40 Accordingly, this decision will not
become final, and therefore not appealable, until an order granting specific relief and awarding
monetary damages has been entered. Counsel are directed to discuss the issues of the
appropriate relief and to report the results of their discussions in writing to the Court within 20
calendar days of the date of this order.
So Ordered.

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

Distribution:
Fred Estrada, P.O. Box 404, Tyrone, New Mexico 88064
David Estrada, 3861 East New Berry Ave. SE, Mesa, AZ 85206
Ben Furth, Esq., The Furth Law Firm, P.A., The Furth Building, 780 South Walnut #5, Las
Cruces, NM 88001
Kristin R.B. White, Esq., Michelle Witter, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite
2150, Denver, CO 80202
Runyan Construction Inc., P. O. Box 2827 Silver City, NM 88062
Runyan Construction Inc., 12 Truck By Pass Rd, Silver City, New Mexico 88061
Nathan Gonzales, Esq., Gonzales Law, 925 N. Hudson, Silver City, New Mexico 88061
nathan@gonzaleslaw.us
/cts
40

Commission Rule 44(b), 29 C.F.R. § 2700.44(b), provides that the Judge shall notify
the Secretary in writing immediately after sustaining a discrimination complaint brought by a
miner pursuant to section 105(c)(3) of the Act. Consequently, the Secretary shall be provided
with a copy of this decision so that she may file a petition for assessment of civil penalty with
this Commission.

36 FMSHRC Page 3185

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9949

September 15, 2014
CACTUS CANYON QUARRIES, INC.,
Applicant
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

EQUAL ACCESS TO JUSTICE
PROCEEDING
Docket No. EAJA 2014-1-M
Formerly CENT 2013-639-M
A.C. No. 41-00009-327753

Mine: Fairland Plant and Quarries
DECISION AND ORDER
Appearances:

Andy Carson, Esq., Marble Falls, TX, for the Applicant
Amy S. Hairston, Esq., U.S. Department of Labor, Office of the Solicitor,
Dallas, TX, for the Respondent

Before:

Judge Rae

This case is before me upon an application for an award of legal fees and expenses filed
under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, and the implementing regulations
published in 29 C.F.R. Part 2704. Cactus Canyon Quarries, Inc. filed the application against the
U.S. Department of Labor’s Mine Safety and Health Administration (MSHA). Cactus Canyon
seeks to recover $11,250 in costs expended in defending itself against the violations alleged in
Docket No. CENT 2013-639-M, which was dismissed by unpublished Order dated June 16,
2014.
For the reasons that follow, I find that Cactus Canyon is not entitled to an EAJA award.
BACKGROUND
On May 20, 2013, former MSHA Inspector Michael Sonney conducted an inspection of
Cactus Canyon’s mine and issued seven citations under section 104(a) of the Federal Mine
Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 815(a). One citation alleged unsafe
storage of compressed gas cylinders in contravention of 30 C.F.R. § 56.4601. Another alleged
failure to maintain a material safety data sheet (MSDS) for two hazardous chemicals in
contravention of 30 C.F.R. § 47.51. The other five citations alleged failure to properly guard
moving machine parts in contravention of 30 C.F.R. § 56.14107(b). Cactus Canyon’s president
and attorney, Andy Carson, asserts that the supervisor for MSHA’s San Antonio field office,
Jerry Anguiano, visited the mine the day after the inspection – as was his custom – to review the

36 FMSHRC Page 3186

inspection and assist with corrective action and termination of the citations. Applicant’s Reply
Br., Ex. 1, Decl. of Andy Carson, Aug. 12, 2014.
On August 15, 2013, the Secretary of Labor petitioned the Federal Mine Safety and
Health Review Commission for assessment of a total penalty of $700 for the seven citations at
issue in the docket, Docket No. CENT 2013-639-M. The petition was filed by one of MSHA’s
Conference and Litigation Representatives (CLRs) who works out of Dallas. Mary Kathryn
Cobb, the attorney who supervises all MSHA litigation at the Dallas Solicitor’s Office, attests
that she also reviewed the citations at the outset of the litigation and determined they were
supported by the law and the evidence in the file. Sec’y’s Answer, Ex. B, Decl. of Mary Kathryn
Cobb, Aug. 1, 2014. Cactus Canyon timely filed a notice of contest.
By letter transmitted August 19, 2013, Cactus Canyon requested that the matter be
designated for simplified proceedings pursuant to the Commission’s rules of procedure at 30
C.F.R. § 2700 Subpart J. On August 27, 2013, Solicitor Dolores Wolfe transmitted a notice of
appearance on behalf of the Secretary. The next day, she filed an unopposed motion seeking
additional time to respond to the request for simplified proceedings and pursue settlement, noting
that her office had just received the file from MSHA and that a phone call with Andy Carson had
revealed a need for additional time to evaluate the file. Wolfe attests that during several phone
conversations with Carson in late August and early September, “it became clear that Mr.
Carson’s goal was not to settle this matter, but rather to get the Secretary to stipulate to his own
interpretations of MSHA regulations, in what appeared to be an attempt to limit MSHA’s ability
to cite violations at his mine in the future.” Sec’y’s Answer, Ex. C, Decl. of Dolores G. Wolfe,
July 31, 2014. On September 26, 2013, attorney Wolfe filed a document styled “Secretary’s
Opposition to Simplified Proceedings” that stated:
This case involves complex and contested issues of fact and law on seven
citations. If this case proceeds to hearing, it will take more than 1 day to present
evidence.
The parties are in dispute over a number of contested facts including whether the
mine was in operation on the day of the inspection, whether five of the guarding
citations involve moving parts that are less than seven feet away from walking or
working surfaces, and whether the mine had an MSDS for each hazardous
chemical that they use. The Secretary would like to conduct written discovery …
The Secretary respectfully requests that the request for Simplified Proceeding be
denied, and written discovery be allowed.
Contrary to Wolfe’s explanation, Carson asserts that Wolfe opposed simplified
proceedings because she was aware that discovery would be necessary since Inspector Sonney
was no longer available for the hearing. Decl. of Andy Carson. Carson attests that MSHA and
its counsel knew Inspector Sonney was unavailable before litigation commenced, and introduced
an MSHA organizational chart purporting to show Sonney was “gone by August 1, 2013.” Id.;
Applicant’s Reply Br., Ex. 3, organizational chart (undated). Regardless of the reasons for the
Secretary’s opposition, no action was taken on the request for simplified proceedings, as the case
was still pending before the Office of Administrative Law Judges in unassigned status.

36 FMSHRC Page 3187

On April 1, 2014, the case was assigned to me. Cactus Canyon subsequently renewed its
request for simplified proceedings by email correspondence1 with my office, noting there was
“no current necessity for Discovery.”2 Solicitor Virginia Fritchey, who had filed a notice of
substitution as counsel for the Secretary in December 2013, notified my office on May 7, 2014
that the Secretary had withdrawn any objections to the request for simplified proceedings.
Accordingly, I granted the request for simplified proceedings by order dated May 8, 2014.
Meanwhile, on April 16, 2014, Fritchey had called Carson and sent him an email
requesting a settlement position. Sec’y’s Answer, Ex. D, Decl. of Virginia E. Fritchey, Aug. 6,
2014. However, she asserts that the next day, she learned that Inspector Sonney no longer
worked for the agency and no other MSHA representatives had been present at the inspection or
witnessed the violations. Id. On April 18, 2014, MSHA supervising attorney Cobb discussed
the case with the MSHA District Director. Decl. of Mary Kathryn Cobb. After they discussed
“the unavailability of the MSHA inspector who conducted the inspection … or any other MSHA
representatives to testify on behalf of the agency,” the District Director advised Cobb’s office to
pursue an amicable resolution with Cactus Canyon. Id.
Fritchey asserts that she contacted Carson again on May 7, 2014 and attempted to engage
in settlement discussions. Decl. of Virginia E. Fritchey. On May 15, 2014, Fritchey sent an
email to my office stating that the Secretary had made multiple efforts to contact Cactus Canyon,
but had not received a settlement offer or confirmation that the operator was interested in
settlement. Carson responded by email on May 21, 2014. Carson contended that he had
communicated with the CLR, attorney Wolfe, and attorney Fritchey, none of whom seemed to
have any of their predecessor’s notes. Although he had “made the same specific settlement offer
on at least 3 occasions,” he contended that the Secretary had not taken a clear position on the
matter. Fritchey asserts that Carson’s email made clear he would not agree to any settlement
unless it included stipulations incorporating his own interpretations of MSHA regulations 30
C.F.R. § 47.51 and § 56.14107(b) (pertaining to MSDSs and guarding violations), which were
“unacceptable to MSHA.” Decl. of Virginia E. Fritchey. Fritchey spoke to the MSHA District
Director and recommended vacating all the citations due to Sonney’s unavailability for hearing
and her belief that further settlement negotiations would be unproductive. Id.
On June 2, 2014, Fritchey filed a motion stating that the Secretary had vacated the
citations and unilaterally requesting dismissal of the case. In response, on June 5, 2014, Carson
filed a Motion for Judgment requesting that I enter specific findings, dismiss five of the citations,
modify the sixth, and leave the seventh as issued.3 In subsequent correspondence with this
1

To avoid ex parte communications, all email correspondence to and from my office was
copied to the representatives for both parties.
2

The email, which was transmitted on April 16, 2014, further explained, “Respondent is
very familiar with Simplified Proceedings because the Secretary requested Simplified
Proceedings in Respondent’s last 2 contested cases. . . . [I]t seemed appropriate here because
Respondent needs no discovery and the Secretary never seems to need Discovery.”
3

Specifically, Carson requested an order entering the following finding: “Respondent has
in place an effective and observed policy, practice, and procedure to not allow access to any area
(continued…)
36 FMSHRC Page 3188

office, Carson indicated that Cactus Canyon opposed dismissal because the company had been
asked to waive its EAJA rights; because the Secretary’s motion to dismiss suggested that
dismissal would not affect the Secretary’s interpretation of the mandatory safety standards or
their applicability to the operator; and because of related concerns that the dismissal would be
without prejudice to the Secretary, permitting the Secretary to reassert the same position in the
future. Solicitor Fritchey responded that the dismissal would be a final decision and offered to
delete the objectionable language regarding the interpretation of the safety standards if Cactus
Canyon would join in the motion to dismiss. However, Carson declined to accept these terms.
In an email transmitted June 13, 2014, he argued that the Secretary’s motion to dismiss
amounted to a settlement motion and stated:
If this is a settlement, then the Court is required to review the settlement under
§110(k) of the Mine Act. There is no settlement offered, except that the Secretary
may join in Respondent’s Motion for Judgment and the Court could review the
Motion. . . . Respondent objects to the Secretary’s Motion and Order of Dismissal
current before the Court.
The words “WITH PREJUDICE TO THE
SECRETARY” must be added after the word “DISMISSED” if the Court is
inclined to sign the Order of Dismissal. . . . If the Dismissal is granted and
Respondent’s Motion for Judgement and with attached Judgement [sic] are not
entered, then Respondent will be filing an Equal Access to Justice Act filing in
this same Court for the extensive legal time spent communicating, researching,
and responding to the numerous representatives of the Secretary. This claim is
not settled or waived. Agreeing to the Dismissal would appear to give the
Secretary the substantial justification that it loses with a Dismissal.
Perhaps we need a hearing with the Court on these conflicting motions and
objections. Perhaps the Secretary should embrace the Respondent’s Motion for
Judgment, which will serve the health and safety of the miners and avoid the slam
dunk attorney’s fees claim.
On June 16, 2014, I denied Cactus Canyon’s Motion for Judgment and dismissed the
proceedings, recognizing the Secretary’s unfettered discretion to vacate citations. See RBK
Constr., Inc., 15 FMSHRC 2099 (1993).

3

(…continued)
required to be guarded under § 56.14107(a) [the guarding standard under which five of the
citations were issued] during operations. Respondent always de-energises [sic] the systems
before access to any area required to be guarded.” On the basis of this proposed finding, Carson
requested that I reduce the gravity and negligence of one of the guarding citations. He requested
dismissal of the other four guarding citations on grounds that each pertained to machine parts
that would be inaccessible to miners because they were more than seven feet off the ground.
Carson further requested dismissal of the citation that alleged Cactus Canyon did not have
material safety data sheets (MSDSs) on hand for two chemicals. Carson premised this request on
his position that the mandatory safety standards do not require brand-specific MSDSs. Carson
did not request any modifications of the citation that alleged unsafe storage of gas cylinders.

36 FMSHRC Page 3189

Cactus Canyon subsequently filed an EAJA application on July 2, 2014 requesting
$11,250 for legal fees expended in defending itself against the $700 penalty assessment and
preparing the EAJA application. The Secretary timely filed an Answer4 and Cactus Canyon
timely filed a Reply, which requested an additional $2,500 for preparing the reply brief. Because
the matter was fully briefed at this juncture, I denied the Secretary’s subsequent motion for leave
to file a Sur-Reply and declined to consider the additional written arguments submitted by both
of the parties.
DISCUSSION
Congress passed the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, to ensure that
certain eligible individuals and small organizations would not be deterred from seeking review of
or defending against unjustified governmental action because of the expense involved in securing
vindication of their rights. Rushton Mining Co., 11 FMSHRC 759, 766 (May 1989). The EAJA,
as implemented by the Commission in 29 C.F.R. Part 2704, permits an award of attorney fees
and other expenses to an eligible party that prevails in an adversary adjudication against MSHA
“unless the Secretary of Labor’s position in the proceeding was substantially justified or special
circumstances make an award unjust.” 29 C.F.R. § 2704.100. Thus, one of the threshold
eligibility requirements for an EAJA award is that the applicant must have been a prevailing
party in the underlying litigation.5
The Secretary contends Cactus Canyon is not a prevailing party within the meaning of
the EAJA because the underlying citations were vacated without a decision or agreement on the
merits. Sec’y’s Answer at 4-7. “Prevailing party” is a legal term of art referring to a “party in
4

Cactus Canyon argues the Secretary’s Answer was filed late. Applicant’s Reply Br. at
1. However, the Answer was timely filed pursuant to 29 C.F.R. § 2700.8(b), which extended the
due date by five days because the EAJA application was served by “a method of delivery
resulting in other than same-day service” (namely, by mail).
Cactus Canyon also objects to the Secretary’s filing of an amended Answer the next
day. Applicant’s Reply Br. at 1. However, the sole amendment to the Answer was that
Fritchey’s attached declaration was changed to reflect that Inspector Sonney had not been fired
from MSHA, but was no longer working for MSHA. The Secretary stated that this distinction is
not relevant to the issue of Cactus Canyon’s entitlement to an EAJA award. I agree. I find that
the Secretary’s amendment of the Answer was permissible because it did not affect the relevant
substance of the Answer and carried no risk of prejudice to Cactus Canyon. I further reject as
meritless Cactus Canyon’s characterization of the Secretary’s request to substitute the amended
Answer as a “request to Destroy Evidence.” Applicant’s Reply Br. at 2. I also note that Cactus
Canyon itself submitted an amended EAJA application (Carson’s signature had been omitted
from the original) in the very same filing in which it objected to the Secretary’s attempt to amend
the Answer, which was somewhat hypocritical on Cactus Canyon’s part.
5

A non-prevailing party can recover fees under § 2704.105(b) when the “demand of the
Secretary is substantially in excess of the decision of the Commission and is unreasonable when
compared with such decision.” This provision is inapplicable here, as Cactus Canyon has not
alleged an excessive demand and no decision was issued.
36 FMSHRC Page 3190

whose favor a judgment is rendered.” Buckhannon Board & Care Home, Inc. v. W. Va. Dept. of
Health & Human Res., 532 U.S. 598, 603 (2001) (citing Black’s Law Dictionary).
The Federal Mine Safety and Health Review Commission has not directly addressed what
defines a prevailing party or whether a party prevails within the meaning of the EAJA when the
underlying case was dismissed without a decision on the merits. The Commission was presented
with such a case in Black Diamond Constr., Inc., 21 FMSHRC 1188 (Nov. 1999). In that case,
the Secretary had initially imposed a small penalty for two violations, but settlement negotiations
were unsuccessful, so the parties engaged in discovery and pre-trial preparation. The day before
the hearing, the Secretary vacated the violations due to a dispute within MSHA over the legal
basis for the violations. 21 FMSHRC at 1192. In the ensuing EAJA proceeding, the
Commission did not expressly discuss why Black Diamond constituted a prevailing party. The
Commission merely described the lack of justification for the Secretary’s position and awarded
fees on grounds that MSHA’s pre-litigation conduct, including its failure to recognize the
internal agency dispute earlier in the proceedings, did not justify forcing Black Diamond to
shoulder the considerable costs of trial preparation. Id. at 1197-8. Thus, the Black Diamond
decision suggested that an operator can achieve prevailing party status when the Secretary
voluntarily vacates a citation after the operator has incurred considerable pre-litigation costs. See
also McLaughlin v. Sec’y of Labor, 18 FMSHRC 2073 (Nov. 1996) (ALJ ) (finding without
discussion that EAJA applicant was prevailing party when Secretary had dismissed section
110(c) case against him after a hearing had been held).
Two years later, the Supreme Court issued a landmark ruling on the definition of
“prevailing party.” Buckhannon, 532 U.S. 598 (2001). Before Buckhannon, courts had routinely
awarded attorney fees under the “catalyst theory,” which confers prevailing party status when a
plaintiff’s lawsuit spurs the defendant to voluntarily change its conduct. Id. at 601-2. In
Buckhannon, the Court rejected the catalyst theory and held that the types of case dispositions
that give rise to prevailing party status are (1) an enforceable judgment on the merits, or (2) a
court-ordered consent decree evincing judicial imprimatur of a material alteration in the parties’
legal relationship. Id. at 603-4; see also Aronov v. Chertoff, 562 F.3d 84, 90-1 (1st Cir. 2009)
(en banc) (explaining that a consent decree that meets the Buckhannon standard must be courtordered and must provide for judicial oversight and enforcement). Although Buckhannon was
litigated under the fee-shifting provision of the Civil Rights Act, the rule it enunciated has been
applied to EAJA cases by all of the federal circuits that have considered the matter. Jeroski d/b/a
USA Cleaning Serv. & Bldg. Maint. v. FMSHRC, 697 F.3d 651, 653 (7th Cir. 2012), aff’g 33
FMSHRC 2264 (Sept. 2011) (ALJ). See, for example, Castaneda-Castillo v. Holder, 723 F.3d
48, 57 (1st Cir. 2013); Iqbal v. Holder, 693 F.3d 1189, 1193-4 (10th Cir. 2012); Green Aviation
Mgmt. Co. v. FAA, 676 F.3d 200, 202-3 (D.C. Cir. 2012); Turner v. Nat’l Transp. Safety Bd., 608
F.3d 12, 16 (D.C. Cir. 2010); United States v. Milner, 583 F.3d 1174, 1196-7 (9th Cir. 2009);
Aronov, 562 F.3d at 89; Ma v. Chertoff, 547 F.3d 342 (2d Cir. 2008) (per curiam); Biodiversity
Conservation Alliance v. Stem, 519 F.3d 1226, 1230 (10th Cir. 2008); Li v. Keisler, 505 F.3d 913
(9th Cir. 2007); Morillo-Cedron v. Dist. Dir. for U.S. Citizenship & Immigration Servs., 452
F.3d 1254, 1257-8 (11th Cir. 2006); Goldstein v. Moatz, 445 F.3d 747, 751 (4th Cir. 2006);
Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006); Vacchio v. Ashcroft, 404
F.3d 663, 673 (2d Cir. 2005); Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492 n.1 (D.C. Cir.

36 FMSHRC Page 3191

2003); Brickwood Contractors v. United States, 288 F.3d 1371, 1379 (Fed. Cir. 2002); and
Perez-Arellano v. Smith, 279 F.3d 791, 795 (9th Cir. 2002).6
Thus, the prevailing rule in the federal courts is that the government’s voluntary dismissal
of a claim against a party does not confer prevailing party status under the EAJA. Cactus
Canyon argues that it is a prevailing party despite Buckhannon and its progeny because, unlike in
the majority of these cases, it achieved financial instead of equitable relief through the dismissal
of the penalty proceedings. However, I find that this distinction is not relevant. Monetary and
equitable relief are both forms of relief that can materially alter the parties’ relationship, and thus
both have the potential to satisfy Buckhannon’s prevailing party test.
As noted above, the Commission has not expressly addressed the definition of a
prevailing party or adopted Buckhannon, but five administrative law judge decisions from
FMSHRC have discussed the meaning of “prevailing party” in the wake of Buckhannon in
various contexts. North County Sand & Gravel, Inc., 36 FMSHRC 1214 (May 2014) (ALJ)
(applicant was prevailing party after decision on merits); Signature Mining Servs., LLC, 35
FMSHRC 3540 (Dec. 2013) (ALJ) (applicant was prevailing party when judge reviewed and
approved terms of settlement, which included Secretary’s agreement to vacate one violation);
Left Fork Mining Co., 34 FMSHRC 2311 (Aug. 2012) (ALJ) (applicant was prevailing party
when judge decided to vacate 104(b) order after holding hearing); Sand Products, LLC, 34
FMSHRC 1224 (May 2012) (ALJ) (applicant was not prevailing party when Secretary vacated
citations); USA Cleaning Serv. & Bldg. Maint., 33 FMSHRC 2264 (Sept. 2011) (ALJ) (applicant
was not prevailing party when Secretary vacated contested order one week after it was
contested), aff’d sub nom. Jeroski d/b/a USA Cleaning Serv. & Bldg. Maint. v. FMSHRC, 697
F.3d 651 (7th Cir. 2012). Three are relevant here.
In Sand Products, a mine operator sought an EAJA award after entering into a courtapproved settlement agreement in which some citations were modified, some were paid as
6

But see Kholyavskiy v. Schlecht, 479 F. Supp. 2d 897 (E.D. Wis. 2007). In that case, the
District Judge acknowledged other circuits’ application of Buckhannon in the EAJA context, but
concluded on his own analysis that Buckhannon should not be applied. In his view, the EAJA
stands alone among the federal fee-shifting statutes in that its purpose is not solely to encourage
vindication of parties’ rights, but is also to discourage government overreach. 479 F. Supp. 2d at
906-7. Characterizing the EAJA as an “anti-bullying” statute, he stated that barring EAJA
awards where the government has voluntarily dismissed a case could permit the government to
initiate and vigorously litigate unjustified actions for mischievous purposes and then avoid
paying the other side’s attorney fees by nonsuiting before a decision is reached on the merits. Id.
at 906-7. However, this opinion was effectively overruled by the Seventh Circuit’s decision in
Jeroski. Moreover, there is no evidence that the concerns cited in Kholyavskiy have come into
play in this case. This case involved minor safety violations that are routinely cited by MSHA,
and the citations on their face provide substantial justification for the Secretary’s actions in
initiating the litigation. There is no indication of government overreach or mischievous purposes
such as harassment, nor is it at all apparent that MSHA litigated the claim vigorously such as
would have burdened the operator with the high cost of defending himself, as MSHA did not
conduct discovery or prepare for a hearing and in fact appears to have let the case sit for about
six months without taking any action on it.

36 FMSHRC Page 3192

assessed, and some were dismissed because the Secretary had vacated them. The judge found
that the operator was not a prevailing party as to the vacated citations because there was no
judicial relief on the merits for these citations. 34 FMSHRC at 1227. The judge explained that
because he had no authority to review the Secretary’s decision to vacate a citation, his dismissal
of the citations in question was a procedural rather than substantive function. Id.
In USA Cleaning, a mine operator sought an EAJA award when the Secretary had
vacated the contested order ten days after it was issued, before litigation had commenced. The
judge first noted that the Commission’s decision in Black Diamond suggested a judgment on the
merits was not a necessary prerequisite to an EAJA award, but stated he was wary of concluding
the Commission intended to confer prevailing party status when the Secretary promptly vacated
the underlying violations. 33 FMSHRC at 2266. The judge went on to find that, regardless of
Black Diamond, the Supreme Court’s subsequent Buckhannon decision and its adoption by the
D.C. Circuit supported a finding that the mine operator was not a prevailing party because a
dismissal confers no judicial relief and does not change the relationship between the parties. Id.
at 2266-7 (citing Turner v. Nat’l Transp. Safety Bd., 608 F.3d 12 (D.C. Cir 2010)). Thus, the
judge agreed with the finding in Sand Products that dismissing a case does not confer any relief
on the merits when the EAJA applicant has already achieved relief through an unreviewable act
of prosecutorial discretion. The judge’s decision was upheld by the Seventh Circuit.
In Signature Mining Servs., a mine operator sought an EAJA award after entering into a
settlement agreement in which the Secretary agreed to vacate one order in exchange for the
operator’s withdrawing its contest of another. 35 FMSHRC at 3542. The judge considered these
settlement terms when he considered and approved the operator’s motion to withdraw. Id. After
discussing the legal background of the prevailing party issue in detail, he concluded, “the
‘critical fact’ becomes the level of discretion a judge exercises in permitting parties to carry out
the finalized terms of a settlement. . . . Therefore, an EAJA plaintiff achieves the functional
equivalent of a consent decree in Commission proceedings where a judge substantively reviews
settlement terms . . . and conditions the issuance of a dispositive order on the parties’ decision to
be bound by the terms.” Id. at 3545-6.
All of these cases support a finding that Cactus Canyon Quarries was not a prevailing
party within the meaning of the EAJA. My dismissal of the citations in the underlying
proceedings did not indicate judicial consideration, oversight, and approval, and was not an
exercise of judicial discretion that provided court-ordered relief on the merits of the case.
Rather, the dismissal was a judicial recognition that the issues at hand had been mooted by the
Secretary’s grant of relief in exercising his prosecutorial discretion to vacate the citations.
Although Black Diamond would suggest a different result, the instant case can be distinguished.
In Black Diamond, the citations were vacated the day before the hearing after considerable
discovery and trial preparation had taken place, and MSHA essentially recognized it had dropped
the case at the last minute because its legal theory was not solid. 21 FMSHRC at 1192. In this
case, by contrast, the citations were vacated before the costly and time-consuming processes of
discovery and trial preparation had begun, and for reasons unrelated to the merits of the case,
namely, MSHA’s inability to find witnesses.

36 FMSHRC Page 3193

After considering all the points discussed above, I find that Cactus Canyon Quarries was
not a prevailing party in the underlying proceedings and is not entitled to an EAJA award.
ORDER
It is ORDERED that Cactus Canyon Quarries’ application for an award of legal fees
under the Equal Access to Justice Act is DENIED.

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

Distribution:
Amy S. Hairston, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street,
Suite 501, Dallas, TX 75202
Andy Carson, Esq., 7232 Co. Road 120, Marble Falls, TX 78654

36 FMSHRC Page 3194

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-928-8689

September 15, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2011-1037
A.C. No. 15-19069-253078

v.
REX COAL COMPANY, INC.,
Respondent

Mine: Rex Strip #1

DECISION AND ORDER
Appearances:

Joseph B. Luckett, Esq., U.S Department of Labor, Office of the Solicitor,
Nashville, TN for the Secretary
John M. Williams, Esq., Rajkovich, Williams, Kilpatrick &True, PLLC,
Lexington, KY for Respondent

Before:

Judge Andrews

STATEMENT OF THE CASE
This case is before the undersigned Administrative Law Judge on a Petition for
Assessment of Civil Penalty filed by the Secretary of Labor against Respondent, Rex Coal
Company, Inc. (“Respondent” or “Rex”) pursuant to Section 104 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §815(d). A hearing was held in London, KY on April 10, 2014.
PROCEDURAL HISTORY
On November 23, 2010, a miner, Rhett Mosley, was involved in a fatal accident at
Respondent’s Rex Strip #1 mine. MSHA inspector David A. Faulkner was immediately
dispatched to the mine. Faulkner, along with other MSHA personnel, conducted an investigation
into the causes of the accident. On February 25, 2011, following that investigation, Faulkner
issued three 104(a) citations and assessed a total penalty of $157,500.00. Respondent contested
these citations and filed an Answer to the assessed penalties on July 28, 2011. The undersigned
was assigned to the case on December 6, 2012. On April 10, 2014 a hearing was held on these
matters. On May 22, 2014 the parties submitted Post-Hearing Briefs.

36 FMSHRC Page 3195

STIPULATIONS
The parties have entered into several stipulations, admitted as Parties’ Joint Exhibit 1.1
Those stipulations include the following:
1. Rex Coal Company, Inc. is subject to the Federal Mine Safety and Health Act of 1977.
2. Rex Coal Company, Inc. has an effect upon interstate commerce within the meaning of
the Federal Mine Safety and Health Act of 1977.
3. Rex Coal Company, Inc. is subject to the jurisdiction of The Federal Mine Safety and
Health Commission and the presiding Administrative Law Judge has the authority to hear
this case and issue a decision.
4. Rex Coal Company, Inc. operated the Rex Strip #1 Mine, I.D. No. 15-19069, in 2011.
5. The Rex Strip #1 Mine produced approximately 84,000 tons of coal in 2010.
6. Citation Nos. 8365953, 8365954, and 8365955 were properly issued by an authorized
representative of the Secretary and are admissible.
7. A reasonable penalty will not affect Rex Coal Company, Inc.’s ability to remain in
business.
(JX-1) (see also Transcript at 8).2
SUMMARY OF TESTIMONY
At approximately 12:00 a.m. on November 23, 2010, Rhett Mosley, was killed in an
accident at Rex Strip No. 1 Mine. (Tr. 24-25,174). Mosley’s shift ran from 6:00 p.m. to 5:00
a.m., but Mosely arrived at 5:00 p.m. on Monday November 22, 2010, to service equipment.
(Tr. 24). Mosley worked as the second shift lube truck operator and, in that capacity, he would
supply diesel fuel and lubricants to equipment as needed and in between shifts. (Tr. 24-25, 42,
175-176). This was to ensure there was proper maintenance throughout the production cycle.
(Tr. 25).
The lube truck was a 1988 Mack Model DM-690-SX tandem axle truck with a rigid
chassis and a large service bed. (Tr. 26, 101). The truck weighed approximately 55,000 pounds.
(Tr. 101-102). In the back, enclosed in a van body, were tanks of lubricants, antifreeze, and
grease. (Tr. 26, 40). Between the bed and the cab was a 1,000-1,100 gallon rectangular steel
tank for hauling diesel fuel. (Tr. 26, 40). The truck had three axles, including a steering axle
1

Hereinafter the Joint Exhibits will be referred to as “JX” followed by the number.
Similarly, the Secretary’s Exhibits will be referred as “GX” and Respondent’s Exhibits will be
referred to as “RX.”
2

Hereinafter the transcript will be cited as “Tr.” followed by the page number.

36 FMSHRC Page 3196

under the engine and two drive axles (a center and a rear axle) driven by the engine. (Tr. 101,
113). The truck was equipped with a service brake on each of the six wheels (two on each axle).
(Tr. 26, 108). There were also four parking brakes on the ends of each rear axle. (Tr. 108). It
also included an engine brake. (Tr. 27). The truck was used on both of the mine’s shifts. (Tr.
47).
The incident at issue here occurred at the bottom of a roadway descending from the high
splint coal seam elevation to the low splint coal seam elevation.3 (Tr. 25, 181). The roadway
from the high splint to the low splint was approximately 524 feet long, 21 feet wide, and at a
22% grade. (Tr. 29-30, 103, GX-2, 3, and 4). The roadway was dry. (Tr. 35). The grades were
measured in segments, with the top of the hill having a 25% grade for 180 feet. (Tr. 102-103).
There was also a 54-inch berm along the right side of the roadway which was the appropriate
size. (Tr. 30, 34-35). There was a highwall or spoil area on the left side of the roadway. (Tr. 30,
34-35). At the beginning of the shift, Mosley had fueled equipment by going up and down this
hill. (Tr. 76, 179, 186, 211-213).
Mosley was parked at the top of this roadway eating his lunch. (Tr. 26, 34, 77, 183). At
the base of the roadway (the low splint area), the dozer operator James Muncy had created a
service road so that Mosley could bypass the backfill left by the production crew and enter the
production pit to service equipment. 4 (Tr. 27-28, 31-32, 34, 37-38, 181, 205-208, GX-7).
Reaching this service road in the backfill required a left turn off of the roadway.5 (Tr. 37-38).
Muncy informed Mosley that the service road was open for his use. (Tr. 26, 31). Mosley turned
his truck around, stopping on a slight incline, and started to move down the hill. (Tr. 183-184).
Muncy saw Mosley travel down the hill at an unusually high speed. (Tr. 208-209). Mosely had
a radio but did not say anything either before or during his descent. (Tr. 208-209, 211). As
Mosely’s truck descended toward the service road it lost control, encountered the berm, was
“deferred” by the berm back into the roadway, and overturned on its left side. (Tr. 27, 31, 68-69,
76, 209). As the truck went down the hill it was rocking back and forth, even from the start. (Tr.
68, 209). The truck’s front tires may have come off the ground. (Tr. 68, 209). Muncy watched
as Mosley wrecked, including seeing the truck in the air. (Tr. 208-210). Mosely either jumped
or was thrown from the vehicle and was pinned beneath the service bed area of the truck. (Tr.
27, 31-32).
3

The mine worked multiple coal seams. (Tr. 25). The uppermost coal seam was the high
splint coal seam and the lowermost coal seam was the lower splint coal seam. (Tr. 25).
4

James Wilson Muncy appeared at hearing and testified for Respondent. (Tr. 203). At
the time of the hearing Muncy worked as a diesel mechanic for Curtis Equipment. (Tr. 203204). During his career he worked for Big Branch Energy, Southern Coal, Sequoia, and Loving.
(Tr. 204). He had worked on rock trucks, dozers, and coal loaders. (Tr. 204-205). Muncy
believed he started work at the mine about four months before the accident. (Tr. 205).
5

Muncy was moving material from the low splint pit to the roadway to eliminate the
grade. (Tr. 27, 213). He had driven the dozer on the hill earlier, but had not left any rough
patches because he backed down the hill. (Tr. 213-214).

36 FMSHRC Page 3197

James Chasteen was working in his excavator when the accident occurred.6 (Tr. 180).
He heard someone say “just a second, Slater. Someone needs to get down here now,” twice.
(Tr. 180). Chasteen knew something was wrong and ordered the dozer to go down the hill. (Tr.
180). He went over the hill where Mosley had traveled and saw the truck on its side. (Tr. 180).
He did not actually see Mosley drive down the hill. (Tr. 188).
After the accident, Muncy called the MET, who was already on his way over. (Tr. 210).
Muncy then went to check on the situation. (Tr. 210). Muncy and the MET walked over to the
truck, eventually the MET found Mosley under the truck. (Tr. 210).
Inspector David A. Faulkner investigated this accident.7 (Tr. 22). After being informed of
the accident, Faulkner traveled to the mine site and gathered information for a preliminary report.
(Tr. 22-23). To that end, he conducted informal interviews with second shift employees and
observed the accident scene. (Tr. 23). He also scheduled for tech support, including Mechanical
Engineer Terry Marshall to evaluate the truck, and arranged formal interviews.8 (Tr. 23, 98).
Marshall traveled the day of the accident and started his investigation the next day. (Tr. 98).
6

James R. Chasteen appeared at hearing and testified for Respondent. (Tr. 173). At the
time of hearing, Chasteen had been working in the mining industry for seven years and was
working as a truck driver for JW Resources. (Tr. 173-174). He had worked as a dozer operator,
benchman, and on an excavator. (Tr. 173). At the time of the accident, he worked for
Respondent. (Tr. 174). Chasteen met Mosley in August 2010, when Chasteen was hired as night
shift foreman. (Tr. 174-175). As foreman, Chasteen would pre-shift the mine to make sure it
was safe for the men at the start of the shift. (Tr. 175). He would also ensure all safety
precautions were followed. (Tr. 175). He supervised three rock truck drivers and one lube truck
driver. (Tr. 187).
7

Inspector Faulkner appeared at the hearing and testified for the Secretary. (Tr. 19). At
the time of hearing Faulkner worked as a surface CMI for MSHA and had held that position
since March 5, 2006. (Tr. 19). Faulker received inspector and accident investigation training at
the National Mine Safety and Health Academy. (Tr. 20). He had conducted two or three fatal
investigations at the time of the accident (six or seven at the time of the hearing). (Tr. 66).
Faulkner had worked in the surface mining industry for 17 years, including time as the
owner/operator of contract augering companies, a foreman, a superintendent, production
manager, dozer operator, auger operator, loader operator, and truck driver. (Tr. 20-22). In
management positions he handled operations, hiring, and placement. (Tr. 21). In 1986-1987
Faulkner was certified as a Kentucky Surface Mine Foreman, a Tennessee Mine Foreman, and a
Kentucky Mine Energy Technician (now lapsed). He also had a commercial driver’s license
since 1990. (Tr. 21-22).
8

Terry Marshall was present at the hearing and testified on behalf of the Secretary. (Tr.
93, GX-17). At the time of the hearing, Marshall was a mechanical engineer for the Mechanical
Engineering Safety Division of MSHA in the technical support and approval center. (Tr. 93-95).
In that capacity he provided technical assistance for enforcement, obtained technical information,
and evaluated that information. (Tr. 95). That included accident investigation, for which he was
trained by MSHA. (Tr. 94-95). He had investigated 80 to 90 accidents, around 40 of which
(continued…)

36 FMSHRC Page 3198

When Inspector Faulkner and Marshall initially observed the truck, it was at the accident
scene. (Tr. 23-24, 98-99). The truck was damaged on the left side cab door, in the service bed,
and at the front axle. (Tr. 39). At some point the excavator was used to overturn the truck so
Mosley could be removed. (Tr. 33-34, 38-41, GX-3, 4, 7, 8 & 9). On the 24th or 25th it was
moved to a maintenance facility for further evaluation. (Tr. 24, 99). That evaluation lasted four
or five days and took approximately two man-days to complete. (Tr. 24, 100, 160). Both
Faulkner and Marshall examined the truck. (Tr. 23, 98). They spent a few days looking at the
mechanical condition of the truck, including the engine brake system, the service brake system,
the parking brake system, the seat and seatbelt assembly installation, and the tank volumes. (Tr.
99-100). Marshall worked with Faulkner to get maintenance information on the truck. (Tr. 100).
Sometimes, Respondent’s employees were present. (Tr. 100). Based on Marshall’s findings,
Faulkner concluded the investigation and completed a detailed report. (Tr. 23-24).
Three citations were issued based on the accident investigation. (Tr. 41). Citation No.
8365953 was a 104(a) citation issued under 30 C.F.R. §77.1607(b), which deals with mobile
loading and haulage equipment, like the lubricant truck (GX-10). (Tr. 41-42). The cited section
required mobile equipment operators to have full control of moving equipment. (Tr. 42).
According to Faulkner, “full control” means being able to maintain and stop or direct a piece of
equipment to the location as desired. (Tr. 67). The cited standard was meant to prevent
operators from losing control of equipment and experiencing accidents. (Tr. 42). Inspector
Faulkner cited this standard because Mosley was unable to maintain control of the truck, the
truck overturned, and Mosley was involved in a fatal accident. (Tr. 42, 66-67).
To determine the level of control, information was gathered about the weight of the truck,
the length of the road, the grade of the road, and the speed the truck would travel in various
gears. (Tr. 67-68). Marshall found that the maximum engine RPM for the truck would be 2200
RPM. (Tr. 104). In addition, he determined the maximum speed for each gear setting on the
truck. (Tr. 104-105). The first low gear would have a maximum speed of 3 miles per hour and
the first high gear would have a maximum speed of 5 miles per hour.9 (Tr. 69, 105, 238). The
engine brake would help to maintain these speeds.10 (Tr. 105). It was possible that, if the truck
8

(…continued)
involved trucks. (Tr. 95-96). Marshall primarily worked with mobile surface and underground
(equipment. (Tr. 95). Marshall received a Bachelor’s degree at Ohio State University in 1996
and began working for MSHA in that year. (Tr. 94). He had worked in both the Mechanical
Engineering Safety Division and Applied Engineering offices for MSHA. (Tr. 94). Since the
90’s Marshall had been a member of the Society of Automotive engineers, a professional society
that develops standards in the automotive, off-highway, and airline industries. (Tr. 96). In that
society he is a member of a few committees within the construction, agriculture, and off-highway
portion including a committee on braking standards for off-highway equipment. (Tr. 96-97).
9

This particular truck had a Maxidine transmission and two shifters. (Tr. 238). One
shifter went from one to five while the other was either low or high. (Tr. 238).
10

An engine (or Jake) brake is an auxiliary brake separate from the service brake system
that is used to control the speed of the truck. (Tr. 103-104). It prevents exhaust from escaping,
creating compression in the engine and thereby slowing the truck. (Tr. 27). It essentially
changes the function of the engine so that it absorbs power instead of providing power. (Tr. 103104).
36 FMSHRC Page 3199

was moving 3 to 5 miles per hour in low gear, the truck could have traversed the hill in a
controlled manner and made the left turn. (Tr. 71-72). However, Faulkner and Marshall did not
know the exact speed of the truck. (Tr. 67, 80, 161). The field dozer operator, James Muncy
saw the truck coming down the hill at a greater than normal speed. (Tr. 27-28, 67-68, 80, 105106). Marshall considered several subjective factors (including braking capacity and when
brakes were applied) and estimated that the truck was moving five miles per hour. (Tr. 161162). High speed would be inconsistent with travel in low gear or the use of the engine brake.
(Tr. 69, 105-106).
Based on the speed and the inability to stop, Faulkner and Marshall believed the truck
was in neutral rather than in gear. (Tr. 69-71, 80, 105-106). The gear shift was found in neutral.
(Tr. 70-71, 106). The truck could have been in neutral because of driver error or it could have
slipped out of gear under load because it was not fully engaged. (Tr. 107). Faulkner did not see
any indication that Mosley intended to put the truck in neutral and believed that the truck could
have slipped out of gear at impact. (Tr. 70-71). However, Marshall believed the truck was in
neutral before impact. (Tr. 106-107). If the engine slipped out of gear it would be difficult to get
it back in because, in order to do so, the speed of the engine and the speed of the transmission
components must be equal. (Tr. 107-108, 164). When a truck is in neutral, the engine brake will
be ineffective to control the speed. (Tr. 107). The engine brake would also stall the engine if it
popped out of gear. (Tr. 107). A stalled engine would make it more difficult to match the RPMs
of the engine and transmission to return the truck to gear. (Tr. 108).
The cited standard requires equipment to be operated at speeds prudent and consistent
with conditions of roadway grades, clearance, visibility, and traffic. (Tr. 70). Normally, the
truck would be in gear. (Tr. 76). Faulkner conceded that it would not be prudent or consistent
with conditions to place this truck in neutral. (Tr. 70). Faulkner would not have descended the
hill in neutral because, based on the braking capacity of the truck, it could be dangerous. (Tr.
71). However, he believed that given all of the truck equipment, including the transmission,
gears, and the engine brake, the truck should have been controlled, regardless of speed. (Tr. 7576).
Foreman Michael Boggs also testified that neither he, nor anyone else at the mine, would
go down the hill in neutral because it would be dangerous.11 (Tr. 198-199). The other lube truck
11

Michael Boggs appeared at the hearing and testified for Respondent. (Tr. 189). At the
time of the hearing, Boggs had been in the surface mining industry for 30 years and worked for
Kentucky Fuels as a grader. (Tr. 189-190). He had worked in every aspect of the surface mining
industry including running equipment, acting as foreman, and working as an MET. (Tr. 189).
He also had a commercial driver’s license. (Tr. 200). Boggs received his surface foreman
papers in 1999 and worked as a foreman for 10 years. (Tr. 190). At the time of the accident,
Boggs worked as dayshift foreman for Regional Contracting at the subject mine. (Tr. 190-191).
He started there in 2009 as the night shift foreman. (Tr. 191). As foreman, he would run the
daily operations of the mine, set up job sites, coordinate with Chasteen, and confer with Terry
Loving regarding maintenance, coal haulage, drilling, and blasting. (Tr. 191). Boggs was not
working on the evening shift when Mosley was killed, but he knew Mosley when they both
worked nights. (Tr. 192). Boggs had no notes from the day of the accident. (Tr. 200).

36 FMSHRC Page 3200

driver, Matthew Blanton, testified that he never drove down the hill in neutral because it would
be easy to lose control of the truck.12 (Tr. 240). Instead, he would travel down the hill in low
first gear. (Tr. 238, 241-242). In low gear it was unnecessary to use the service brakes down the
hill. (Tr. 238-239, 242). He would travel 3-5 miles per hour without application of the brakes.
(Tr. 242). Blanton did not believe the engine brake would have been necessary in first low gear,
but it was available if needed. (Tr. 239, 242-243). He might have used the service brakes to
make the turn at the bottom of the hill, but was unsure because five miles an hour is not very fast.
(Tr. 243).
The gravity was marked as having occurred and resulting in a fatal injury. (Tr. 43). This
citation was marked as S&S for the same reasons. (Tr. 44).
The negligence was marked moderate because Respondent knew or should have known
the truck would be required to travel up and down steep grades during operation. (Tr. 43). The
truck was used in adverse conditions while carrying heavy loads. (Tr. 43). Also, Respondent
was required to ensure all vehicles were maintained in a safe operating condition. (Tr. 43).
This citation was terminated when Respondent implemented an action plan and trained
employees on safe and proper operation of all loading and hauling equipment on inclined
roadways. (Tr. 44). This training occurred prior to the mine returning to operation. (Tr. 44).
Citation No. 8365954 was a 104(a) citation issued under 30 C.F.R. §77.1605(b), which
required mobile equipment to be equipped with adequate brakes (GX-11). (Tr. 45-46). The
standard was designed to allow an equipment operator to stop a piece of mobile equipment when
needed. (Tr. 46). MSHA does not officially define “adequate.” (Tr. 46). Inspector Faulkner
believed that “adequate” meant the operator should be able to stop or control the vehicle with the
brakes at any time and in any circumstance encountered during the mining process. (Tr. 46, 7374). However, he believed the ability to stop had to be considered in light of all other factors,
including speed, weight, and grade. (Tr. 73-74). Inspector Faulkner cited to this standard
because the technical support evaluation conducted by Marshall found four of the five service
brakes and three of the four parking brakes were ineffective or compromised. (Tr. 46-47, 79).
With respect to that technical support evaluation, Marshall found that that the wheels on
the truck contained S-cam drum brakes. (Tr. 108-109, GX-20). This type of brake was applied
with a foot pedal attached to the brake chamber. (Tr. 109, GX-20). The brake chamber was the
actuator that applied and released the brake. (Tr. 110). In this truck, the steering axle brake was
air applied and released solely by the pedal. (Tr. 110). The parking brakes on the rear axles
could be air applied and released by pedal or spring-applied and air released. (Tr. 110). As air
pressure was applied to the brake chamber, pushrods were extended from the brake chamber into
the slack adjustor. (Tr. 109). The slack adjustor was connected to the end of the brake cam and
12

Matthew Blanton appeared at hearing and testified for Respondent. (Tr. 230). At the
time of the hearing he worked as a day-shift serviceman for Jean Coal Company, where he had
worked for four years. (Tr. 231-232). This was his first job in the coal industry, after previously
working as an ironworker. (Tr. 231). As a serviceman, he ran the lube truck, greased
equipment, fueled, changed oil, changed filters, and kept everything running. (Tr. 231).

36 FMSHRC Page 3201

as the adjustor was applied, the linear motion of the pushrods was transmitted into rotational
motion in the brake S-cam. (Tr. 109). As the S-cam was rotated during the brake application, it
pushed on the rollers which in turn pushed onto the shoe. (Tr. 109-110). The shoe then
contacted the drum, causing braking. (Tr. 110).
Marshall checked the size of the brake chambers to ensure that they conformed to the
equipment manufacturer specification and to identify the readjustment limits for the brake
chambers. (Tr. 114). The steering axle contained Type-24 size brake chambers, while the rear
axles had Type-30 size brake chambers. (Tr. 113-114). There is a direct correlation between the
size of the chamber and how much output force the pushrod applies to the slack adjustor. (Tr.
114). A pushrod is a metal rod that moves in and out of the brake chamber when the brake is
applied. (Tr. 82-83). The pushrod stroke is the amount that the pushrod extends out of the brake
chamber when the brakes are applied. (Tr. 82, 115). Pushrods need to be adjusted periodically.
(Tr. 166). Brakes can go out of adjustment for multiple reasons including general wear, wear on
the brake lining, and defective slack adjustors. (Tr. 166-167). The readjustment limit is the
maximum allowable pushrod stroke before maintenance is required. (Tr. 115). To determine
whether the readjustment limit has been reached, the pushrod stroke must be measured. (Tr.
117-118). This can be done by selecting a point on the pushrod or slack adjustor and then
measuring it against a reference point. (Tr. 117). First a measurement between the pushrod or
slack adjustor and the reference point is made with the brake released. (Tr. 117). Then the brake
is applied and another measurement is taken from the same locations. (Tr. 117). The difference
between the measurements is the pushrod stroke. (Tr. 117).
According to the Mack air brake manual, Type-24 brakes need to be readjusted when a
pushrod stroke of one and three-quarter inches is measured. (Tr. 115). For a Type-30 brake
chamber, the amount is 2 inches. (Tr. 115). For practical purposes, Marshall explained that on a
Type-30 brake chamber, as the output forces the slack adjustor out from 0 to 2 inches, there is a
relatively consistent output of force. (Tr. 115-116). Once the adjustor goes beyond 2 inches the
output force exerted by the pushrod onto the slack adjustor starts to diminish. (Tr. 116).
Eventually, the brake will reach full stroke limit, where the brake chamber can physically go no
further and no force is applied. (Tr. 83, 116-117). The measurement between the re-adjustment
limit and the point at which the brake completely bottoms out is known as the reserve stroke.
(Tr. 130). For the Type-30 brake, the full stroke limit is 2.5 inches. (Tr. 116). So between 2 and
2.5 inches, the force exerted by the brake chamber on the slack adjustor starts to decrease
quickly, but still has some braking capacity. (Tr. 116-117, 168). However, depending on the
amount of reserve stroke, this limited capacity can disappear in high demand situations. (Tr.
168).
Marshall’s report summarized the significant findings with respect to each of the brake
ends or wheels.13 (Tr. 123). On the left side steering axle, the pushrod stroke measurement was
one and seven-eighths inch. (Tr. 119-120). Marshall did not believe the accident could cause
the brakes to come out of adjustment. (Tr. 167). The contact surfaces of this brake drum were
13

In preparing that report, Marshall was tasked with examining the mechanical condition
of the truck and was not directed specifically to determine if the brakes were adequate. (Tr.
154). He was not asked to determine the status of the brakes under normal mining conditions.
(Tr. 154). Normally, this truck would be driven in gear when going down the hill. (Tr. 155).

36 FMSHRC Page 3202

rusted and pitted. (Tr. 124-125, GX-22). This indicated that the brake shoe was not contacting
the drum when the brake was applied but instead that a gap existed that allowed dirt to
accumulate on the shoe and for the drum to rust. (Tr. 124-127, 139-140, GX-23). Therefore,
this brake was not producing any braking force. (Tr. 127). A properly applied brake would be
silvery and shiny from the shoe contacting the drum. (Tr. 126). This condition could have
existed for a month or two. (Tr. 126). In addition, the S-cam rollers were unseated and lying
loose in the brake assembly. (Tr. 124). While the roller condition could have occurred during
the accident, Marshall still believed that the shoe was not contacting the drum, as shown by the
rust. (Tr. 139-140).
On the right side steering axle, the pushrod stroke measurement was two and threequarter inches. (Tr. 119). The readjustment limit was one and three-quarter inches. (Tr. 119).
That meant that this particular brake was at full stroke measurement and was no longer applying
any effective force to the slack adjustor. (Tr. 119, 127). This wheel end was ineffective. (Tr.
119). In addition, there was a slight grease-like contamination in the brake line. (Tr. 127-128,
GX-25). Portions of the contact surface of the brake shoe, as well as the brake assembly,
appeared wet. (Tr. 128). Friction between the shoe and the drum was the essential braking
action provided by the assembly and this grease-like material would reduce the coefficient of
friction between those components. (Tr. 128-129, 160). The grease-like material would not
necessarily result in reports of slipping when braking. (Tr. 159). No testing was done on the
grease-like material to determine the degree to which it affected braking. (Tr. 158, 160).
Marshall believed this brake was severely compromised. (Tr. 129).
The left side center drive axle was out of adjustment with limited reserve stroke and had a
grease-like contamination on portions of the brake-lining. (Tr. 129-130). The pushrod stroke
measurement was for this wheel was two and a quarter inch. (Tr. 120). The readjustment limit
here was 2 inches, so this brake was out of adjustment, close to full stroke limit, and in need of
maintenance. (Tr. 120, 130). The degree to which this brake was compromised meant that under
different operating conditions it would have different braking capacities. (Tr. 130). In low
demand, static situations (80-90 PSI), there would be some braking but in high demand, dynamic
situations (perhaps 120 PSI) the reserve stroke would be used up and the chamber would
essentially be at full stroke limit.14 (Tr. 130-131). The situation here placed a heavy burden on
the brake, eliminated the stroke reserve, and lost braking force. (Tr. 132, 168-169). The main
concern with this wheel was that the reserve stroke would disappear in high demand situations.
(Tr. 133). However, this would not be a brake failure, because it was related to maintenance.
(Tr. 170). In addition to the adjustment, the wheel had a grease-like contamination. (Tr. 132133). This condition compromised the brake by reducing the coefficient of friction, though the
degree to which this occurred was uncertain. (Tr. 133). However, the contamination was only
on portions of the brake. (Tr. 133).
On the right side center drive axle, the pushrod stroke could not be measured because of
the damage done to the brake chamber during the accident or recovery. (Tr. 120, 133).
Therefore, the adjustment was deemed sufficient and effective. (Tr. 133-134).
14

Static conditions would be sitting or moving slowly on level ground, like Respondent’s
pre-shift, while a dynamic situation would be moving on a 25% grade in neutral. (Tr. 131-132,
169).

36 FMSHRC Page 3203

On the left side rear drive axle, the pushrod stroke measurement was two and threeeighths inches. (Tr. 120). This brake chamber was out of adjustment and had no effective
reserve stroke. (Tr. 121-122, 134). In a dynamic or even static condition, this brake chamber
was not producing effective braking force. (Tr. 134, 137). This brake also had a significant
amount grease-like contamination on the brake lining. (Tr. 134, GX-26). Some of the grease
had been transmitted to the contact surface of the brake shoe, but not fully across the shoe’s
width. (Tr. 134-135, GX-27). Marshall believed this material was actually grease, while other
fluids on the wheel were probably axle lubricant spilled during over lubrication of the bushings.
(Tr. 135). The brake shoe was worn down to the hardware and showed general wear. (Tr. 136).
The grease was not as serious an issue as brakes bottomed out in a static position. (Tr. 134-135).
On the right side rear drive axle, the pushrod stroke measurement was over two inches.
(Tr. 120). However, because of the damage to the brake chamber, it was difficult to measure the
stroke. (Tr. 121). Marshall was unable to air-release the brake and instead had to use a
mechanical release to measure the 2 inches. (Tr. 121). However, the mechanical release under
reports the pushrod stroke as compared to an air release. (Tr. 121). Despite this, Marshall felt
that this brake could not provide effective force to the slack adjustor and had no reserve stroke.
(Tr. 121-122, 137, 168-169). This would be true even in static conditions. (Tr. 137).
The truck also had parking brakes on each of the wheel positions on the two rear drive
axles. (Tr. 137-138). The parking brakes used the same assemblies as the service brakes, they
were simply applied differently; the service brakes were applied to all six wheels with a pedal
and the parking brakes were applied to the four rear wheels with a manual push-pull control
valve or with automatic pressure gauges.15 (Tr. 137-138, 167-168). Therefore, the problems
found in the service brakes also apply to the parking brakes. (Tr. 138).
In addition to these findings, Marshall inspected other aspects of the brakes but found
they did not play a significant role in the accident. (Tr. 122-123, 157-158). Specifically,
Marshall inspected the brake lining thickness on each wheel to determine their condition. (Tr.
122). Three of the six had lining segments below accepted limits and an additional segment was
at the minimum level. (Tr. 122). Marshall also measured the internal brake drum diameters.
(Tr. 122-123). This showed that two of the six brakes were worn below the recommended limit.
(Tr. 123). In high demand brake situations, this condition would allow heat to be absorbed into
the brake drum at a quicker rate than normal, causing the drum to expand. (Tr. 123). This
essentially increases the pushrod stroke requirement. (Tr. 123).
The engine brake was adequate. (Tr. 72, 104, 157, 165). Faulkner testified that if it had
been engaged it might have slowed the truck. (Tr. 72).
In general, Marshall believed the brakes on the truck were in poor condition and would
have been inadequate when the truck was in neutral on a 25% grade. (Tr. 139, 146, 148). At 5
miles per hour under heavy load, the total braking capacity could have been as low as 20%. (Tr.
143, 146). Most of that braking would come from the right center or rear drive axles. (Tr. 146).
15

The automatic application occurred if the brakes fell to 40 PSI. (Tr. 138-139). The
pressure came from the primary and secondary air systems on the truck. (Tr. 139). The actual
pull valve would move when the brakes automatically applied. (Tr. 139).

36 FMSHRC Page 3204

Despite this, Faulkner and Marshall agreed there was no catastrophic failure of the brakes;
instead this was a maintenance issue. (Tr. 78, 169-170). The brakes would not have to be at
100% capacity to be adequate, but the necessary capacity would depend on the conditions. (Tr.
155-156). If Marshall gave every benefit of the doubt (including ignoring lining contamination)
the highest capacity would be 50% of service braking. (Tr. 147). He felt at least 50% capacity
would be needed to compensate for the 25% grade, even without considering the 500-foot
distance. (Tr. 147, 156, 163). Without 50% capacity Mosley had no opportunity to control the
truck. (Tr. 164-165). Marhsall testified that to control the truck here, the brakes would need
around 75% capacity to allow the driver time to react. (Tr. 163-164). He also believed that
brakes with no significant maintenance issues would have stopped a truck going 15 to 20 miles
an hour in neutral on a 25% grade. (Tr. 148). The size of the truck and the fact that it was in
neutral was more relevant here than the speed. (Tr. 161-162). However, it is possible for a truck
to move so fast that even 100% brake capacity could not control it. (Tr. 162).
Marshall opined that when the truck drove up the hill during the shift with the engine
brake controlling the speed and the service brakes providing additional deceleration, the braking
capacity was adequate. (Tr. 165). However, this was a low demand situation. (Tr. 165). A low
demand situation can become a high demand situation if the brakes were applied long enough.
(Tr. 166). According to Marshall, if the truck were in first gear and traveling at around five
miles per hour under control of the engine brake, 20% capacity would have been adequate to
decelerate the truck and control it on the grade. (Tr. 143, 156-157, 161-162). However,
deceleration and control are different and control would depend on how the brakes were applied.
(Tr. 156-157). By second high gear, the engine brake would not have controlled the truck. (Tr.
143-144).
Marshall believed that Mosley attempted to apply the service brake during the accident.
(Tr. 14, 151). First, use of the brakes would have been a natural reaction for any driver. (Tr.
144). Second, the brake pressure when first inspected after the accident was 75 PSI in both
tanks, and there was no damage to the truck that would cause air loss. (Tr. 144-145, GX-28).
This was shown in both the primary and secondary air systems. (Tr. 145). Therefore, the air was
depleted by the driver applying and releasing the service brake during the accident. (Tr. 144).
Marshall tested the air systems after the accident, and they were able to maintain 100 PSI for a
considerable time. (Tr. 145-146). If the brakes had not been applied, they would have been over
100 PSI, maybe up to 110 or 120. (Tr. 146). He did not believe the reduction in air pressure
occurred during the accident, because of the nature of the accident damage. (Tr. 146).
Marshall also believed that Mosley manually applied the parking brake. (Tr. 151-152).
This was because under normal conditions, the parking brake is spring-applied, air released. (Tr.
152). Therefore, during operation, when the brake is released, air pressure is released into the
brake chambers. (Tr. 152). The damage done during the accident in one of those brake
chambers would have allowed this pressure into the open air if released. (Tr. 152). If the brake
was released when the accident occurred, the air would have been released down to 45 PSI and
then shut off when the brake automatically applied preventing further release. (Tr. 152-153).
Instead it was at 75 PSI, indicating that the parking brake was applied before automatic
application. (Tr. 152-153).

36 FMSHRC Page 3205

Marshall did not know when Mosley applied the brakes. (Tr. 164). Instead of applying
the brake, he may have attempted to first put the truck back in gear. (Tr. 164). It was possible
he was already free-rolling when attempting to use the brakes. (Tr. 164).
Respondent’s witnesses testified that the brakes were adequate. (Tr. 181, 185-187, 194196, 199-200, 222-224). Terry Loving testified that the Burnette Combs Contracting Company
adjusted the brakes on the lube truck on October 25, 2010.16 (Tr. 47, 223, RX-F). Combs was a
mechanic who owned a repair company and he would come to the mine as repairs were needed.
(Tr. 224). Loving did not know how or why Combs had adjusted the brakes. (Tr. 224).
In addition, Loving, Chasteen, Blanton and Boggs testified that Mosley did not complain
about any problems with the brakes on the truck at that time or any other time. (Tr. 181, 194,
222, 240). Chasteen testified that he had also driven the truck up and down the hill without any
issues stopping. (Tr. 185). He had never driven the truck down the hill in neutral. (Tr. 185186). He would drive the truck at 15-25 miles an hour on flat surfaces and 5-10 miles per hour
on a grade, depending on the grade. (Tr. 187). At no time while Chasteen was working for
Respondent did anyone complain about the brakes on the truck. (Tr. 185). Loving testified that
his son Andrew drove the truck for several months and did not complain about the brakes. (Tr.
222-223). Blanton had driven the truck earlier in the day and performed the pre-operational
examination but found no problems or slippage with the brakes at that, or at any, time. (Tr. 194,
236, 238-240). In fact, Blanton had traveled the hill more than 10 times, including once (or
perhaps twice) on the day of the accident. (Tr. 235-237). Blanton did not recall problems with
the brakes in making the turn onto the service road. (Tr. 237-238). The turn could be made
without difficulty even if the brakes were not used. (Tr. 239). Boggs had driven the truck four
or five times, as recently as two weeks before the accident, without complaint. (Tr. 194, 200).
Bogg’s son had worked on the lube truck for a year and a half without any complaints regarding
the brakes. (Tr. 194-196, 199).
The gravity was marked as having occurred and resulting in a fatal injury. (Tr. 48). This
citation was marked as S&S for the same reasons. (Tr. 48).
The negligence was marked moderate because the operator knew or should have known
that the truck would be used in adverse conditions, hauling heavy loads on steep grades where
high demand would be placed on the service brakes. (Tr. 46-47). The fact that the brakes were
adjusted on October 25 did not affect this evaluation because, based on Faulkner’s experience,
including driving this type of truck, brakes will be used at different times and in different
16

Terry Glenn Loving appeared at hearing and testified for Respondent. (Tr. 215). At
the time of the hearing, Loving was the superintendent of underground mines for Harlan
Cumberland Coal Company, a single mine. (Tr. 215-216). Loving had worked in the mining
industry since 1967, starting at the age of 13 on the surface helping his father. (Tr. 216). He
worked for several different coal, logging, and trucking companies over the years. (Tr. 216217). At those locations he worked as a foreman, president, and owner at various companies.
(Tr. 216-217). He then worked for Respondent as superintendent of underground mines (before
switching to Harlan Cumberland) (Tr. 217-218). Harland Cumberland and Respondent are sister
companies owned by Joe Bennett. (Tr. 218). Loving had worked for Bennett since 1984. (Tr.
219).

36 FMSHRC Page 3206

situations. (Tr. 47-48, 86-87). Brakes may have to be adjusted as often as once a day, depending
on the durability, the conditions, and the amount of travel. (Tr. 48). Other than the left side
steering axle, Marshall could not say how long the conditions existed. (Tr. 140).
The citation was terminated when Respondent implemented a new written procedure to
provide for regular mobile equipment examination, maintenance, and repairs to the braking
system of each machine. (Tr. 49). This termination occurred on 2/25/2011 at 8:25 a.m. (Tr. 49).
Citation No. 8365955 was a 104(a) citation issued under 30 C.F.R. §77.1606(a) (GX-12).
(Tr. 49). This standard requires that a competent person make an examination of mobile loading
and haulage equipment prior to that equipment being placed into service. (Tr. 49). Any safety
defects observed must be recorded and reported to management. (Tr. 49). Faulkner believed
that a competent person was someone with experience and expertise in operating a piece of
equipment. (Tr. 49). The standard was designed to ensure that any safety defects on the loading
and mobile haulage equipment were corrected before use. (Tr. 50). Faulkner did not conduct
pre-operational examinations as an inspector, though he observed them. (Tr. 82). Further, when
he was a truck driver, he did not conduct pre-operational examinations. (Tr. 82). Marshall was
also familiar, though he never conducted one himself. (Tr. 141). Marshall was vaguely familiar
with the regulations regarding pre-operational checks, but he typically defers to enforcement for
interpretation. (Tr. 141).
Faulkner issued Citation No. 8365955 because the pre-shift examination of the lube truck
was inadequate. (Tr. 52-53). Respondent provided checklists to the equipment operator to use in
examining mobile equipment. (Tr. 50, 53) (GX-13). The checklist included walk-around items,
engine compartments, fluid levels, tires, fire extinguishers, operator’s compartments, glass, loose
objects, seatbelts, brakes, horns, back up alarms, and similar items. (Tr. 50, 193). The operator
was not required to keep this checklist by MSHA. (Tr. 50-51). However, Faulkner would expect
the examiner to check whatever was included on the list for an adequate pre-operational check.
(Tr. 86). Blanton testified that this process takes five to ten minutes. (Tr. 232-233, 243). Once
the equipment operator conducted the examination the checklist was kept in the truck and, at the
end of the shift, he placed the form in the foreman’s mailbox. (Tr. 50, 87, 182, 195, 234). The
foreman reviewed these forms at home and then filed them in the mine office the next day. (Tr.
53, 182, 195). Blanton testified that he would also update the record. (Tr. 233). There was no
mechanic on the second shift and if a defect was found, the equipment operator would fix it
himself. (Tr. 92, 182-183, 195). If it could not be fixed, it would be parked and a note would be
left on it so it could be fixed the next day. (Tr. 92, 182-183, 195-196). There were three
mechanics on the day shift to correct problems. (Tr. 196). Faulkner believed this method was
inadequate because the foreman was not aware of the pre-shift examination reports until after the
shift was over. (Tr. 54). However, Chasteen and Blanton testified that the foreman would be
notified immediately if something needed to be repaired. (Tr. 182, 233).
In addition to the improper and untimely method of reporting, four specific conditions
were listed on the citation for not being included in the pre-operational reports. (Tr. 54). The
first was that five of the six brake chamber pushrods were out of adjustment. (Tr. 54-56). The
second item listed was that three of the four parking brakes were out of adjustment. (Tr. 55).
Respondent’s checklist included a notation for brakes. (Tr. 55).

36 FMSHRC Page 3207

According to Faulkner, Respondent, and most operators, conducted the pre-operational
check of the brakes by driving the truck onto a slight grade and checking to see if the brakes
were adequate. (Tr. 57, 77-78, 81, 84). Boggs had both conducted and seen Mosley conduct an
examination of the lube truck. (Tr. 193-194). To check the brakes, Mosley (and Boggs) would
look at the gauges for air pressure and then apply the brakes to see if they actually worked. (Tr.
193). Blanton also conducted examinations and he testified he checked the brakes by putting it
in gear, easing out the clutch, and seeing if the brakes held. (Tr. 232-233). Andrew Loving, not
Boggs, had tasked trained Mosley and Blanton on pre-operation checks of the lube truck. (Tr.
193-194, 201, 232). Boggs’ signature was only included on the documents attesting to the task
training because a foreman needed to fill out the form. (Tr. 201-202, GX-30). Chasteen was
familiar with pre-operational examinations but was not familiar with how brakes were checked.
(Tr. 184-185). He had never observed his drivers conduct an examination. (Tr. 187).
These methods would not have found the cited conditions with the brakes. (Tr. 55).
Marshall described these as a low demand situation. (Tr. 131). However, Marshall believed that
the conditions he observed with the brakes could have been found prior to the accident. (Tr.
141). The pushrod strokes could have been found if Respondent used two people to check
brakes or one person with a device to apply the brake. (Tr. 55-56, 142-143, 201). To do this,
one person would watch the pushrod strokes outside of the truck while another person in the
cable applied the brakes to 80-90 PSI. (Tr. 56, 142). A measurement would be made before the
application and then again afterward, showing the pushrod travel. (Tr. 56-57, 142). No
disassembly of the truck would be needed. (Tr. 56-57, 152). This was how MSHA checks the
brakes. (Tr. 56). Boggs knew how to measure the pushrod stroke. (Tr. 200-201). He was not
required to know how to do so under DOT regulations, but had measured the stroke during DOT
inspections. (Tr. 201). To detect the grease-like material, the wheel or the drum could have
been removed for inspection. (Tr. 141). In fact, Marshall only saw this material after someone
removed the wheels from the truck. (Tr. 168).
Faulkner was not aware of any operators who used the pushrod stroke measurement in a
pre-shift and would not write a citation for failure to do so. (Tr. 83-86). Faulkner did not do his
pre-operational checks in this way. (Tr. 84). As long as the brakes were checked according to
the form, the exam would be sufficient. (Tr. 86). Instead, the basis of the citation was that the
brakes were compromised and nothing was recorded. (Tr. 85).
The third item listed was that the seatbelt was improperly installed. (Tr. 57, 148-149).
Specifically it was mounted on the floor in two places. (Tr. 57-58, 148-149, GX-14, 15, & 16).
Because of the air ride seats, the seatbelts should have been attached to the seat on one side. (Tr.
59, 149). This would allow force transmitted in an accident to be absorbed into the floor and for
the seatbelt to move with the seat. (Tr. 149-150). The incorrect installation would have been
very uncomfortable for an operator because, in conjunction with the air ride seat, it would have
presented a choking effect or a cinch on the lap each time the truck met rough terrain. (Tr. 60,
149-150). Further, the belt would have to restrain the mass of the seat, in addition to the
operator’s weight. (Tr. 150). Marshall believed that in this particular incident, the improper
installation could have caused a premature failure of the seatbelt. (Tr. 149-151). Faulkner
believed proper installation could have lessened the severity of the injury. (Tr. 89, 150-151).

36 FMSHRC Page 3208

Boggs testified that the mine had a policy requiring a seatbelt to be worn if one was installed.
(Tr. 201). There was no indication of how long the seatbelt was in this condition. (Tr. 60).
Inspector Faulkner conceded that MSHA regulations only require seatbelts when there
was a danger of overturning and rollover and that this truck would not require a seatbelt. (Tr. 6061, 88-89). This truck would not be cited for failure to install a seatbelt. (Tr. 89). However,
Faulkner believed an inoperative seatbelt would still be a safety defect. (Tr. 60-61). It was
included in the citation because Respondent’s pre-operational checklist had a notation for
seatbelts, indicating Respondent believed that a seatbelt would affect safety. (Tr. 60-61).
The fourth item listed was a crack in the windshield that existed prior to the accident.
(Tr. 61). Inspector Faulkner learned the windshield was cracked in a collision with another piece
of equipment on a previous shift, possibly on November 19, through interviews with employees,
but he did not see it. (Tr. 61-62, 89). Chasteen testified that it had occurred a few days prior to
the accident. (Tr. 187). The crack in the windshield, especially at night with glare from lights,
could affect visibility. (Tr. 63). However, Inspector Faulkner was not sure of the severity of the
crack or whether it would affect visibility. (Tr. 63, 90). He did not know if the crack contributed
to the accident. (Tr. 90). A crack is not necessarily an uncommon thing, however Boggs must
have thought the crack was severe enough to constitute a hazard because he recorded it on his
on-shift examination on November 20, 2010. (Tr. 62-64, 90). That was the reason it was
included in the citation. (Tr. 62-64). Chasteen would have instructed his drivers to record a
cracked windshield in their pre-operational examinations. (Tr. 187-188).
These four conditions were not recorded in the pre-operational record. (Tr. 53). This
failure to include the conditions led to the accident because violations were allowed to exist
during operation without correction. (Tr. 64). The Secretary submitted several pre-operational
examination checklists running over 41 pages from 9/16/2010 to 11/22/2010. (Tr. 51, GX-13).
All of the documents were signed by Blanton (the last one on 11/22/2010) and Mosley (the last
one on 11/19/2010). (Tr. 51-52). The information included on these forms was kept in a log by
Respondent. (Tr. 196-198, RX-D). These pre-operational forms indicated that in the weeks
before the accident, the windshield was in good condition, that the seatbelt was adequate, and
that the brakes were adequate. (Tr. 53, 55, 63, 77-78). Only one entry, a flat tire, was included
in the log book for the lube truck from 10/13/2010 to 11/19/2010. (Tr. 197-198). Respondent
did not provide a checklist for the second shift on 11/22/2010. (Tr. 52). In fact, MSHA officials
were not sure if a pre-operational examination was conducted on the subject shift, though it was
possible that the documents were lost or damaged in the accident. (Tr. 52-54, 80). It was also
possible, given that defects only needed to be recorded if observed, that Mosley had conducted a
pre-operational examination and simply found no defect. (Tr. 87-88). Regardless, the foreman
found conditions during on-shift examinations even on days when the pre-operational sheets
indicated that nothing was wrong with the truck or were when such forms were not available.
(Tr. 53, 88). Specifically, Foreman Michael Boggs included the cracked windshield on his
11/20/2010 on-shift. (Tr. 62). Blanton also testified that occasionally equipment would need to
be serviced during a shift, but that those things were simply fixed and not recorded in the record.
(Tr. 234-235).

36 FMSHRC Page 3209

MSHA did not tell operators how to do a pre-operational examination, though guidance
was available. (Tr. 80-81, 91). MSHA resources include guidelines, information on how to
conduct an examination, and information from other operators. (Tr. 91). Faulkner was not sure
if there was information about brakes. (Tr. 91-92). Blanton testified that no one from MSHA
was ever present when he conducted a pre-shift examination of brakes. (Tr. 235). However, he
had seen MSHA inspectors do so in the same manner that he did: by placing the truck on a small
incline (if possible), putting it in gear, and then easing out the clutch to see if it held. (Tr. 235236). He did see an MSHA inspector conduct a pushrod stroke, though only once in four years.
(Tr. 243). No one from MSHA ever told Blanton to conduct a pushrod stroke. (Tr. 236, 243244).
The gravity was marked as having occurred and resulting in a fatal injury. (Tr. 64). This
citation was marked as S&S for the same reasons. (Tr. 65).
This citation was marked as moderate negligence because the operator knew or should
have known that the cited conditions existed and were not being reported or corrected. (Tr. 64).
This condition was terminated when management established a written procedure to
assure that adequate pre-operational checks were conducted on mobile equipment and to ensure
that any safety defects identified were corrected prior to operation. (Tr. 65). Termination
occurred on 2/25/2011 at 8:30 a.m. (Tr. 65). Faulkner was not involved in the abatement
meetings; those were conducted by the CMIs documented on the 5023 forms, Argus Brock and
Brad Sears. (Tr. 86, 227, 241). Loving and Blanton attended the retraining and Loving reviewed
the action plan. (Tr. 225-227, 241, RX-G) The plan was created by Ronnie Brock, a consultant
for the Respondent’s owner, Joe Bennett, and Hobie Hayes, the surface superintendent for
Respondent. (Tr. 227-229, 243-244). Hayes conducted the training. (Tr. 227, 229). According
to Loving and Blanton, there was no mention of measuring the pushrod strokes on the truck in
the training. (Tr. 227, 241).
At the time of the accident, Terry Loving was the superintendent for Respondent’s
underground mines. (Tr. 220, 228). He was also the owner of two contracting firms, Jean Coal
Company and Regional Contracting. (Tr. 219, 221-222, 228). Jean did surface mining for the
companies controlled by Bennett, Blue Diamond Coal Company, and Arch Mineral. (Tr. 219).
Respondent paid Jean by the ton. (Tr. 221). Regional Contracting was an employee leasing
business and all of Jean’s employees were on the Regional payroll. (Tr. 222). While the instant
mine was a surface mine, Loving was familiar with it. (Tr. 219-220). In fact, Jean Coal was a
contract miner at the mine and Loving visited the location every day.17 (Tr. 219-220). At the
time of the hearing, this was Jean’s only surface job. (Tr. 221). MSHA was aware that
Respondent’s employees were paid through a different company. (Tr. 43). However, Inspector
Faulkner testified that Mosley was Respondent’s employee. (Tr. 24). He was not sure if Jean or
Regional would meet the qualifications to be identified by MSHA as a contractor. (Tr. 43).
17

Loving testified at length as to his daily routine. (Tr. 220-221). He would travel to
Respondent’s underground mine in the morning and conduct pre-shifts and maintenance. (Tr.
220). At 4:00 he would go to the surface job for two or three hours and travel with the foreman.
(Tr. 220-221). He usually arrived at shift change so he could talk to the dayshift foreman and
employees to see how operations were going. (Tr. 221).

36 FMSHRC Page 3210

Loving conceded that at the time of the accident, Jean did not have its own contractor ID. (Tr.
228). However, at the hearing it had a mine ID number. (Tr. 228). Regional, which Loving
testified employed Mosley, had a contractor ID at the time of the accident. (Tr. 229-230).
FINDINGS AND CONCLUSIONS
I.

CONTENTIONS OF THE PARTIES REGARDING CITATION NO.
8365953

With respect to Citation No. 8365953, the Secretary asserts that Respondent violated 30
C.F.R. §77.1607(b), that this violation resulted in a fatal injury to one miner, that the violation
was S&S, and that it resulted from moderate negligence. (GX-10)(Secretary’s Post-Hearing
Brief at 16-18). The Secretary also asserts that a penalty of $52,500.00 is appropriate.
(Secretary’s Post-Hearing Brief at 28-30)
Respondent concedes that it violated the cited standard. (Respondent’s Post-Hearing
Brief at 6). However, it avers that its actions would be better characterized as showing “low” or
“no” negligence. (Id. at 6-7). Further, Respondent believes a reduction in the proposed penalty
is appropriate. (Id. at 17-18).
II.

FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING
CITATION NO. 8365953

The findings of fact in this, and all other sections of this decision, are based on the record
as a whole and the Administrative Law Judge’s careful observation of the witnesses during their
testimony. In resolving any conflicts in the testimony, the Administrative Law Judge 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 Administrative Law Judge 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 Administrative Law Judge’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).
1. Respondent Violated 30 C.F.R. §77.1607(b).
On February 25, 2011, Inspector Faulkner issued a 104(a) Citation, No. 8365953, to
Respondent. Section 8 of that Order, Condition or Practice, reads as follows:
As the result of a fatal accident investigation at the Rex Coal Company, Inc.’s
Rex Strip #1, it has been determined that the operator of the 1988 Maroon Mack
tandem lube truck, Model DM-690-SX, VIN #1M2B198C2JW002173, failed to
maintain control as the lube truck was descending the mine haul road, connecting
the Highsplint and Lowsplint coal seam work areas. The Section of mine haul
road measured to have an overall grade of 22 percent. Mobile equipment

36 FMSHRC Page 3211

operators shall have full control of the equipment while it is in motion. The
overturned truck resulted in fatal injuries to the operator.
(GX-10).
The cited standard, 30 C.F.R. §77.1607(b) (“Loading and haulage equipment;
operation”), provides the following:
(b) Mobile equipment operators shall have full control of the equipment while it is
in motion.
30 C.F.R. §77.1607(b).
“In order to establish a violation of section 77.1607(b), the Secretary must only
demonstrate, by a preponderance of the evidence, that the operator failed to maintain full control
of a piece of equipment while it was in motion.” Clintwood Elkhorn Mining Co. Inc., 35
FMSHRC 365, *4 (Feb. 2013). The Secretary is not required to prove any causal or contributing
factor for that loss of control; the fact that a piece of equipment was not in control is sufficient to
meet the standard. Id. Further, in Dynamic Energy, Inc., the Commission affirmed Judge
Bulluck’s determination that a plain meaning for the term “full control” exists within the scope
of this standard. 32 FMSHRC 1168,1172 (Sept. 2010). Specifically, the Commission noted:
Section 77.1607(b) requires a mobile operator to have “full control [of the
equipment] while it is in motion.” “Full” is defined as “being at or of the greatest
or highest degree” and the “greatest or highest potential.” Webster's Third New
International Dictionary 919 (1993). “Control” is defined as having “the power
… to guide or manage.” Id. at 496… Based on the terms of the standard, the
judge's construction of requiring the highest degree of control to guide or manage
a vehicle appears well supported by the plain language. Hence, we conclude that
the judge's determination that full control means having “complete power to guide
or manage” accords with the plain meaning of the standard.
Id. Therefore, the question at issue is whether the equipment operator, Mosley, failed to
maintain complete power to guide or manage the truck while it was in motion, regardless of the
cause of that failure.
At hearing, Secretary’s counsel presented credible evidence to show that Mosley failed to
maintain complete control over the lube truck. Inspector Faulkner testified that Mosley’s truck
traveled down the roadway at greater than normal speeds (while in neutral), encountered a berm,
rocked back and forth, and then overturned. (Tr. 27-28, 31-32, 67-69, 80). Further, Marshall
testified that Mosley attempted to control the truck with the brakes but was unable to do so. (Tr.
14, 144-146, 155). Even Respondent’s witnesses testified that Mosley did not appear to be
capable of guiding or managing the truck as it descended the hill. (Tr. 208-210). All relevant
witnesses agree that, as a result of this lack of control, the lube truck overturned. (Tr. 27, 31, 6869, 76, 209). No evidence was presented that could be used to show that the truck was under
control.

36 FMSHRC Page 3212

In its brief, Respondent conceded that, based on the evidence provided at hearing, the
violation was validly issued. (Respondent’s Post-Hearing Brief at 6). In light of this fact, and
the evidence presented, I find that Respondent violated 30 C.F.R. §77.1607(b).
2. The Violation Resulted in a Fatal Injury to One Miner And Was Significant And
Substantial In Nature
Inspector Faulkner marked the gravity of the cited danger in Citation No. 8365953 as
having resulted in a “Fatal” Injury to one person. (GX-10).
The Mine Act requires that the “gravity of the violation” be considered in assessing a
penalty. 30 U.S.C. §820. The Secretary has promulgated a three-factor inquiry to determine the
gravity of a citation for purposes of determining the penalty. Those factors are:
[T]he likelihood of the occurrence of the event against which a standard is
directed; the severity of the illness or injury if the event has occurred or was to
occur; and the number of persons potentially affected if the event has occurred or
were to occur.
30 C.F.R. §100.3(e).
The event against which the instant standard, 30 C.F.R. §77.1607(b) is directed is injury
resulting from loss of control of mobile loading and haulage equipment. (Tr. 42). As discussed
supra, the evidence shows that Mosley was unable to control the lube truck as it descended the
hill and, as a result, the truck overturned. (Tr. 42, 66-67). In short, the danger the cited standard
was designed to prevent was realized. Further, this incident, unfortunately, actually resulted in
the gravest possible outcome: the death of a miner, Rhett Mosley. (Tr. 24-25, 179). Therefore, I
find that the cited violation resulted in fatal injuries to one miner. I will now turn to the S&S
designation in this matter.
Well-settled Commission precedent sets forth the standard used to determine if a
violation is S&S. A violation is 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., National Gypsum Co., 3 FMSHRC 822,
825 (April 1981). The Commission later clarified this standard, explaining:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).

36 FMSHRC Page 3213

With respect to the first element, the underlying violation of a mandatory safety standard,
it has already been established that Respondent violated 30 C.F.R. §77.1607(b).
The second element of Mathies, a discrete safety hazard – that is a measure of danger to
safety – contributed to by the violation – was also met. As discussed supra, the cited condition
contributed to the danger of an accident involving mobile loading and haulage equipment.
Mosley’s inability to control his equipment resulted in the truck overturning. (Tr. 42, 66-67).
That incident was undoubtedly a safety hazard.
The third element of the Mathies test – a reasonable likelihood that the hazard contributed
to will result in an injury – was also met. The preponderance of the evidence establishes that the
hazard was not only reasonably likely to contribute to an injury, but in fact resulted in one.
Under Mathies, the fourth and final element that the Secretary must establish is that there
was a “reasonable likelihood that the injury in question will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC 1573, 1574 (July 1984). As
discussed supra, the injury at issue here was extraordinarily grave as Rhett Mosley was killed.
Therefore, the fourth prong of Mathies is met.
As a result of these factors, I find that the Secretary proved the violation was S&S by a
preponderance of the evidence.
3. Respondent’s Conduct Displayed “Moderate” Negligence.
In the citation at issue, Inspector Faulkner found that the operator’s conduct was
moderately negligent in character. (GX-10).
Standard 30 C.F.R. §100.3(d) provides the following:
(d) Negligence. Negligence is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to protect miners
against the risks of harm. Under the Mine Act, an operator is held to a high
standard of care. A mine operator is required to be on the alert for conditions and
practices in the mine that affect the safety or health of miners and to take steps
necessary to correct or prevent hazardous conditions or practices. The failure to
exercise a high standard of care constitutes negligence. The negligence criterion
assigns penalty points based on the degree to which the operator failed to exercise
a high standard of care. When applying this criterion, MSHA considers mitigating
circumstances which may include, but are not limited to, actions taken by the
operator to prevent or correct hazardous conditions or practices.
In 30 C.F.R. §103(d), Table X, the category of high negligence is described thusly: “The
operator knew or should have known of the violative condition or practice and there are no
mitigating circumstances.” Conversely, moderate negligence is shown when “[t]he operator
knew or should have known of the violative condition or practice, but there are some mitigating

36 FMSHRC Page 3214

circumstances.” Low negligence is reserved for situations where there are “considerable”
mitigating circumstances.
With respect to knowledge, well-settled Commission precedent recognizes that the
negligence of an operator’s agent is imputed to the operator for penalty assessments and
unwarrantable failure determinations. See Whayne Supply Co., 19 FMSHRC 447, 451 (Mar.
1997); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-197 (Feb. 1991); and Southern
Ohio Coal Co., 4 FMSHRC 1459, 1463-1464 (Aug. 1982). An agent is defined as someone with
responsibilities normally delegated to management personnel, has responsibilities that are crucial
to the mine’s operations, and exercises managerial responsibilities at the time of the negligent
conduct. Martin Marietta Aggregates, 22 FMSHRC 633, 637-638 (May 2000) see also 30
U.S.C. §802(e) (an agent is “any person charged with responsibility for the operation of all or
part of a…mine or the supervision of the miners in a…mine.”).
With respect to the instant violation, the evidence shows that Respondent’s foreman
should have known that the truck could not be controlled. As will be discussed at length
regarding Citation Nos. 8365954 and 8365953 infra, Marshall testified that the brakes on the
truck involved in this accident were totally inadequate for use at the mine. (Tr. 46-47, 79, 139,
146, 148). Respondent’s agents, including witnesses Chasteen and Boggs, were tasked with
coordinating maintenance of mobile equipment. (Tr. 50, 87, 175, 182, 195, 234). It was the
responsibility of Respondent’s foremen to ensure that unsafe equipment was repaired or removed
from service. (Tr. 182, 233). In this case, inadequate brakes on the lube truck were not repaired
and, when Mosley foreseeably used that truck on a steep incline, the brakes failed, resulting in a
loss of control. (Tr. 54-56). Therefore, Respondent’s negligence led to the cited accident.
Respondent’s negligence is somewhat mitigated by the fact that the inadequate brakes
were not marked on the pre-operational examination forms. (Tr. 53-54). Mosley (and the other
truck driver, Blanton) were tasked with actually performing these pre-operational examinations.
(Tr. 50, 53, 86). These men were not agents of Respondent. Because the inadequate brakes were
not included on any of the submitted pre-operational forms, Respondent’s foreman may have,
inaccurately, believed that the brakes were sufficient. While they should have known the brakes
were inadequate, their failure to ensure that proper brake maintenance had been performed was
mitigated. Therefore, I find that a finding of “moderate” negligence was appropriate.
Respondent argued that it was not negligent or that there was considerable mitigating
circumstances necessitating a finding of “low” negligence. (Respondent’s Post-Hearing Brief at
6-7). However, Respondent’s arguments are not compelling.
First, Respondent argues that Mosley was solely responsible for the accident.
(Respondent’s Post-Hearing Brief at 7). It asserts that Mosley’s actions in failing to place the
truck in gear directly led to his death. (Id.). It also notes that because Mosley was solely
responsible, it could not have been aware of the conditions surrounding the accident; all relevant
actions occurred within the truck in the seconds before the accident. (Id.). Therefore, it argues,
Mosley’s actions were not known or imputable to Respondent. (Id.). Respondent further avers
that none of its actions before the accident in any way contributed to the accident and that there
was nothing it could have done to prevent the accident. (Id.). In short, Respondent asserts that

36 FMSHRC Page 3215

any negligence in this matter occurred solely as a result of Mosley’s actions and that that
negligence can, in no way, attach to the company.
Respondent is correct that Mosley’s actions in placing the truck in neutral likely
contributed to the danger here and that, as a non-supervisor, his actions were not imputable to
Respondent. However, that is largely irrelevant. This accident was not primarily caused by
Mosley’s actions. As the Secretary’s expert witness on brakes testified, even if the transmission
was in neutral, the brakes should have been capable of maintaining control of the truck. (Tr.
148, 163-164). While Mosley’s descent may have been safer (perhaps entirely without incident)
if the truck were in gear, Mosley should have been able to maintain control of the truck solely
with the brakes. It was Respondent’s responsibility to ensure that Mosley was mechanically
capable of controlling the truck and its failure to meet that responsibility was negligent.
Respondent also argued that Mosley was not Respondent’s employee, that it did not
provide supervision to Mosley, and that none of Respondent’s employees were present at the
time of the accident. (Respondent’s Post-Hearing Brief at 7-8). It even argued that there was
“no proof” Respondent owned the truck. (Id. at 7). It is well-established under Commission
case law that that Secretary may hold an operator liable for all violations which occur at its mine,
whether committed by its employees or contractors. See Mingo Logan Coal Company, 19
FMSHRC 246, 249 (February 1997), aff'd 133 F.3d 916 (4th Cir. 1998) (table)(citations
omitted); Secretary v. Twentymile Coal Company, 456 F. 3d 151 (D.C. Cir. 2006); Speed
Mining, Inc. v. FMSHRC, 528 F.3d 310 (4th Cir. 2008). The Secretary may cite an operator, a
contractor, or both for violations committed by the contractor. Mingo Logan Coal Co., supra
(citing Consolidation Coal Co., 11 FMSHRC 1439, 1443 (August 1989)). “An operator
challenging the Secretary's enforcement discretion bears a heavy burden of establishing that there
is no evidence to support the Secretary's decision or that the decision is based on a
misunderstanding of the law.” Vandalia Resources, Inc., 25 FMSHRC 390, 396 (Jul. 2003)(ALJ
Melick) citing Extra Energy, Inc., 20 FMSHRC 1, 5 (January 1998).
In the instant matter, Respondent was responsible for the safety and health of the miners
working at Rex Strip #1. Even if none of the miners working at the mine were Respondent’s
employees, Respondent was still required to ensure a safe working environment. As the Fourth
Circuit noted, “[p]recluding owner-operator liability for independent contractor violations would
encourage owners to use contracts as a means of insulating themselves from safety regulations.”
Speed Mining, Inc., 528 F.3d at 315. That is essentially what Respondent is attempting to do
here: hire only contractors and then claim that it could not “know” about safety issues at its
mines because it had no employees. This appears to be a transparent attempt to circumvent the
Mine Act.
Also, Respondent’s assertion that it did not have any employees, equipment, or control
over the mine it ostensibly owned does not match the evidence. The level of separation between
the three companies involved (Respondent, Jean, and Regional) was more ambiguous than
Respondent implies. Specifically, the owner of Regional and Jean, Terry Loving, was also the
superintendent of Rex Strip #1 mine and an employee of Respondent. (Tr. 219-222, 228).
Loving supervised the work of the foreman and was responsible (as both the owner of two
companies and an employee of another) for ensuring the safe working conditions. Loving, as an

36 FMSHRC Page 3216

agent of Respondent, should have taken actions to ensure that all equipment was safe and the
foremen were properly supervising maintenance.18 As a result, the nature of the contractor
relationships in this matter is irrelevant and in no way mitigates Respondent’s negligence.
4. Penalty
In this matter, the Secretary proposed a penalty of $52,500.00 for Citation No. 8365953.
The Commission has affirmed that ALJs are not bound the Secretary’s proposals. Sec. v.
Performance Coal Co., (Docket No. WEVA 2008-1825 (8/2/2013) (see also 30 U.S.C. §820(i)
and 29 C.F.R. §2700.30(b)). The Commission also held that, although there is no presumption
of validity given to the Secretary’s proposed assessments, substantial deviation from the
Secretary’s proposed assessments must be adequately explained using §110(i) criteria. (Id. at p.
2). (see also Cantina Green, 22 FMSHRC 616, 620-621 (May 2000)). However, having
affirmed the Secretary’s determinations in all respects, no deviation is necessary. In fact, the
proposed penalty is appropriate under the Act.
Respondent argued that the penalty should be lessened in accordance with the mitigating
circumstances it raised in regards to negligence. (Respondent’s Post-Hearing Brief at 17).
Having found that no change in the negligence designation was necessary, I decline to modify
the penalty. Further, Respondent noted that it had little history of violations or extensive fines
either at this mine or any other mines. (Id. at 18). In fact, it noted that it had a total, at all of its
operations, 277 cited violations for a total proposed penalty of $98,047.00. (Id.). While I
considered Respondent’s violation history in approving this penalty, it was not my chief concern.
In this matter, the large penalty is justified primarily by the intense gravity of the accident. Rhett
Mosley was killed while at work. Respondent was negligent and responsible. A substantial
penalty is justified both to reflect that gravity and to provide an incentive to Respondent to care
more deeply for the miners it employs.
Therefore, Respondent is hereby ORDERED to pay a civil penalty in the amount of
$52,500.00 with respect to this violation.
III.

CONTENTIONS OF THE PARTIES REGARDING CITATION NO.
8365954

With respect to Citation No. 8365954, the Secretary asserts that Respondent violated 30
C.F.R. §77.1605(b), that this violation resulted in a fatal injury to one miner, that the violation
was S&S, and that it resulted from moderate negligence. (GX-11)(Secretary’s Post-Hearing
Brief at 16-18). The Secretary also asserts that a penalty of $52,500.00 is appropriate.
(Secretary’s Post-Hearing Brief at 28-30)
18

Beyond the legal ramifications of the principal-contractor relationship described here,
from a practical standpoint the distinction was meaningless. Terry Loving was both an agent of
Respondent and a contractor of Respondent. When Loving gave an order to an employee at Rex
Strip #1 mine, was he doing so as Owner of Regional? Owner of Jean? Or Employee of
Respondent? How is a miner (or a judge) supposed to make such a fine distinction? I find that
making such a distinction is both impossible and unnecessary.

36 FMSHRC Page 3217

Respondent asserts that it did not violate the cited standard. (Respondent’s Post-Hearing
Brief at 8-11). It further avers that if a violation existed it was not S&S and that its actions
would be better characterized as showing “low” or “no” negligence. (Id. at 11-15) Further,
Respondent believes a reduction in the proposed penalty is appropriate. (Id. at 17-18).
IV.

FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING
CITATION NO. 8365954
1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That Respondent Violated 30 C.F.R. §77.1605(b).

On February 25, 2011, Inspector Faulkner issued a 104(a) Citation, No. 8365954, to
Respondent. Section 8 of that Order, Condition or Practice, reads as follows:
As a result of a fatal accident investigation at Rex Coal Company, Inc.’s, Rex
Strip #1, it has been determined that the brakes were inadequate on the 1988
Maroon Mack tandem lube truck, Model DM-690-SX, VIN
#1M2B198C2JW002173. The brake evaluations indicated that five of the six
service brakes, along with three of the four parking brakes were ineffective or
compromised. Five of the six service brake chamber pushrod strokes for the truck
exceeded the maximum allowable pushrod stroke readjustment limit. This
condition contributed to the occurrence of this fatal accident.
(GX-11).
The cited standard, 30 C.F.R. §77.1605(b) (“Loading and haulage equipment;
installations”), provides the following:
Mobile equipment shall be equipped with adequate brakes, and all trucks and
front-end loaders shall also be equipped with parking brakes.
30 C.F.R. §77.1605(b).
The Commission has held that to prove a violation of this standard, the Secretary is not
required to determine the precise cause of braking inadequacy or to provide an elaborate
mechanical explanation for it. Wilmot Mining Company, 9 FMSHRC 684, 688 (Apr. 1987). If
the Secretary is able to establish a “demonstrated inadequacy,” under “normal operating
capacity” then the burden is met. Id. In Wilmot, the Commission upheld a violation under 30
C.F.R. §77.1605(b) when a piece of equipment that should have braked within five to ten feet
under normal operating capacity instead stopped at 36 feet or more. Id. This was upheld even
though the technical cause of the excessive braking distance was uncertain. Id.
Without citing to Wilmot, Judge Feldman articulated a standard that is helpful for
determining if there was a demonstrated inadequacy in brakes, stating the issue was whether, “a
truck’s service brake system is capable of stopping and holding the vehicle with its typical load

36 FMSHRC Page 3218

on the maximum grade it typically travels.” Nally & Hamilton Enterprises, Inc., 31 FMSHRC
689, 695 (June 2009)(ALJ Feldman).
In the instant matter, Inspector Faulkner credibly testified that the truck weighed about
55,000 pounds when loaded. (Tr. 101-102). Further, he testified that the truck was loaded with
lube, diesel, and other industrial products at the time of the accident. (Tr. 26, 40). The evidence
showed that Mosley drove the truck down a 22% incline (25% at the top). (Tr. 29-30, 102-103).
Further, Respondent’s witnesses testified that they regularly traveled on this same roadway. (Tr.
185, 222-223, 235-237, 240, 243). Marshall credibly testified that while descending the incline,
Mosley applied the brakes. (Tr. 151). Significantly, he noted that the brakes should have been
able to control the truck under the conditions present at that time. (Tr. 148, 163-164). However,
the brakes were unable to control the truck and a fatal accident occurred. (Tr. 42, 66-67). Taken
together, this evidence shows that the brakes here were demonstrably inadequate. The service
brakes were unable to stop the truck under its typical load on a grade that it typically traveled.
As a result, I find that Respondent violated 30 C.F.R. §77.1605(b).
The Secretary presented copious, credible evidence to establish the reasons why and to
quantify the degree to which the cited brakes were inadequate. Specifically, Marshall testified
that he physically examined the brakes and determined their level of wear and the pushrod stroke
adjustment. (Tr. 114). Based on his analysis, he determined that the brakes were out of
adjustment and also contaminated with a grease-like substance. (Tr. 119-133, 139-140, 158160). He determined that the braking capacity was likely 20% and no more than 50%. (Tr. 143,
146-147). He further opined that the brakes needed to be at least at 75% capacity for the
conditions present. (Tr. 163-164). While this evidence is instructive, it is not strictly necessary
for my determination of whether Respondent violated the instant standard. The brakes were
demonstrated to be inadequate, the exact cause and technical degree of this inadequacy, as the
Commission noted in Wilmot, is not needed. This evidence is relevant primarily because it
shows the mechanical condition of the brakes conforms to the practical inadequacy observed.
Respondent argued that the truck was not being operated under normal mining
conditions. (Respondent’s Post-Hearing Brief at 8). It cited Nally &Hamilton, for the
proposition that the adequacy of the trucks brakes must be determined under normal mining
conditions. (Id. at 8-9). Specifically, Respondent noted that this truck was not in gear and that,
under normal mining conditions, it would be. (Id. at 9). It noted that even Faulkner and
Marshall conceded that if the truck was in gear, the brakes would have been adequate to stop the
truck. (Id. at 9-10). It argues that the brakes were sufficient for their intended purpose and that it
should not be held responsible for any unintended use. (Id. at 10). In short, Respondent argues
that “normal mining conditions” are those at which all other safety precautions are being
followed.
Respondent’s argument fails for several reasons. First, Respondent seriously
misapprehends the meaning of “normal mining conditions” in the context of the cited standard.
Respondent seems to believe that “normal mining conditions” means that the braking capacity
should be considered while presuming otherwise flawless conditions at the mine. Essentially,
Respondent asks that instead of considering the facts presented, I consider an imaginary mine
wherein everything is “normal” except for the brakes. “Normal”, in Respondent’s conception
does not consider other problems, issues, or mistakes that are likely to, or even foreseeably

36 FMSHRC Page 3219

could, occur at an operating mine. I decline the invitation to engage in complex, fanciful
hypotheticals. Instead, I look to the standard, relevant case law, and the facts.
As the Commission stated in Wilmot (and Judge Feldman echoed in Nally & Hamilton),
the relevant factors to consider in determining whether brakes are adequate are their efficacy
under typical load and on typical grades. Therefore, in the context of the cited standard, these
are the determining characteristics of “normal mining conditions.” In the instant case, a truck
was under normal load on an incline it normally traveled. The driver attempted to engage the
brakes, but they were not adequate to stop the truck. (Tr. 14, 151-152). As a result, under
relevant normal mining conditions, the brakes were inadequate.
Second, Respondent places far too much reliance on the fact that the truck was not in
gear. It is true that all of the witnesses who spoke on the issue testified that they would not take
the truck down the incline in neutral. (Tr. 70, 76, 198-199, 240). However, mines are dynamic,
industrial working environments with many hazards that, while not expected, are foreseeable.
Here, it was foreseeable that a driver would descend the incline out of gear or that the truck
would accidentally slip out of gear. In such a foreseeable situation, the driver would need to rely
on the brakes. As was shown here, the driver was unable control the truck with only the brakes
and therefore, they were inadequate.
More importantly, the standard and relevant case law do not state anything about other
mechanical features of the truck. The question is whether the brakes can hold or stop the truck
under normal load and on a normal grade, not if the brakes and transmission acting together can
do so. As Marshall testified, adequate service brakes alone would have been able to stop the
truck even if the truck was not in gear. (Tr. 148, 163-164). Here there was essentially a test of
whether the brakes alone could stop the lube truck under normal load and on normal grade and
the brakes failed. Unfortunately, it was not a test.
At its most basic, the issue presented here is that the facts have clearly established that
two factors went into this accident. First, the truck was in neutral. Second, the truck had
inadequate brakes. Either one of these factors was insufficient, on its own, to cause the accident.
Respondent’s argument seems to be that because one of those factors (the neutral truck) was not
its responsibility that it can now evade responsibility for the other factor, over which it had
control. However, there is no reason, legal or otherwise, to allow that result. Respondent must
meet its responsibilities even if others, arguably, have not. This citation is valid.
2. The Violation Resulted in a Fatal Injury to One Miner And Was Significant And
Substantial In Nature
Inspector Faulkner marked the gravity of the cited danger in Citation No. 8365954 as
having resulted in a “Fatal” Injury to one person. (GX-11). These determinations are supported
by a preponderance of the evidence.
The event against which the instant standard, 30 C.F.R. §77.1605(b) is directed is an
accident or injury resulting from inadequate brakes on mobile equipment. (Tr. 46). As discussed
supra, the Secretary’s witnesses credibly testified that the brakes installed on the lube truck were

36 FMSHRC Page 3220

inadequate. (Tr. 139, 146, 148). In particular, the brakes were unable to stop the truck as it
descended a 22% grade under normal load. (Tr. 139, 146-148, 156, 163-165). Further, the
brakes were technically insufficient with respect to maintenance and pushrod adjustment. (Tr.
119-133, 139-140, 158-160). As a result of these inadequate brakes a fatal injury occurred to
one miner, Rhett Mosley. (Tr. 48). Therefore, the evidence supports and I affirm the Secretary’s
findings with respect to gravity.
With respect to S&S, the first element - the underlying violation of a mandatory safety
standard - it has already been established that Respondent violated 30 C.F.R. §77.1605(b).
With respect to the second element of Mathies, a discrete safety hazard – that is a
measure of danger to safety – contributed to by the violation – was also met. As discussed
supra, the cited condition contributed to the danger of an accident involving mobile equipment.
The brakes were unable to stop or control the truck as it descended the hill. (Tr. 139, 146-148,
156, 163-165). This inability to control the truck undoubtedly contributed to a discrete safety
hazard, in this matter an accident involving mobile equipment.
The third element of the Mathies test – a reasonable likelihood that the hazard contributed
to will result in an injury – was also met. In this matter, the hazard contributed to was realized
and an injury occurred as a result. Therefore, the third prong of Mathies is met.
The fourth element -that the injury be of a reasonably serious nature - was also met.
Unfortunately, the actual injury sustained was a fatal injury to Rhett Mosley. (Tr. 48). As a
result, the fourth prong of Mathies is met.
As a result of these factors, I find that the Secretary proved the violation was S&S by a
preponderance of the evidence.
Respondent argued that the cited condition should not be assessed as S&S because there
was no “substantial evidence,” to support such a finding. (Respondent’s Post-Hearing Brief at
13 citing Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)(citations
omitted)). To wit, Respondent asserts that the determination of S&S must be considered in light
of “continued normal mining operations,” and that, in this situation, there were “abnormal”
mining conditions. (Id. at 14 citing United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1130 (Aug. 1985)). The abnormal condition cited by Respondent was the driver losing
control of the truck by operating in neutral. (Id.). It noted that Marshall stated the truck should
have been driven in gear. (Id.) It further opined that Marshall conceded that if the truck were in
gear that the brakes would have controlled the vehicle. (Id. at 14-15). Therefore, it argues that
the condition of the brakes did not in any way contribute to this accident and that Mosley’s
actions alone caused his death. (Id. at 15).
Respondent’s understanding of “continued normal mining operations” is deeply flawed.
When a judge is tasked with determining whether a citation is S&S in terms of “continued
normal mining operations” the question is whether, in the future, a hazard will exist if conditions
continue in the same manner. For example, in the case cited by Respondent, the Commission
considered a citation for violation of a ventilation plan. United States Steel Mining Co., Inc., 7

36 FMSHRC Page 3221

FMSHRC at 1126. There, the Commission determined the citation was S&S because the
violation of the ventilation plan was reasonably likely to result in a methane explosion. Id. at
1129-1130. It made this finding despite the fact that at the time of the violation, the methane
levels at the mine were well-below the explosive range. Id. at 1130. This was because under
“continued normal mining operations” a rapid build-up of methane could reasonably be
expected. Id. Further, under continued normal mining operations, a continuous miner would be
reasonably expected to cause an ignition. Id.
Therefore, when considering “continued normal mining operations” the judge determines
what could be reasonably expected in the future, without assuming any intervening, unscheduled
abatement. Sometimes, as in the U.S. Steel case described above, this analysis results in the
judge finding that while a hazard does not currently exist, one is reasonably expected in the
future. Sometimes, the analysis results in a finding that a current violation could not contribute
to a hazard or would resolve itself before a hazard could occur in the future.
However, the analysis of “continued normal mining operations” never requires a judge to
ignore presently existing hazards because those hazards are not “normal.” In this case, there
were inadequate brakes, as described supra. This condition contributed to the hazard at issue
here and that hazard was realized. I do not need to imagine a hypothetical truck that was in gear
because the Respondent believes that such a hypothetical truck would be more normal. When, as
here, a hazard is realized and an accident occurs there is no need to look into the future to
determine what would be reasonably expected. The facts speak for themselves.19
Finally, the issue of the truck being in gear is a distraction in this matter. Under the
Mathies formulation the issue is whether a violation contributes to a safety hazard. In this matter
the truck had inadequate brakes. (Tr. 139, 146, 148). It was also being driven in neutral. (Tr.
69-71, 80, 105-106). Both of these conditions contributed to the hazard here. The hazardous
contribution of one condition does not negate the hazardous contributions of any other
conditions.
3. Respondent’s Conduct Displayed “Moderate” Negligence
In the citation at issue, Inspector Faulkner found that the operator’s conduct was
moderately negligent in character. (GX-11). The evidence supports this designation.
With respect to knowledge, the factual situation presented here is substantially similar to
that in Citation No. 8365954. Specifically, a supervisor within in the definition provided in 30
U.S.C. 802(e) and Martin Marietta Aggregates, supra, should have known that the brakes were
19

Anything more than cursory consideration of Respondent’s argument exposes its
inherent absurdity. Respondent argues that this situation was not “normal” because the truck
was not in gear. But why stop there? “Normally” brakes are well maintained and adequate for
use. Therefore, under Respondent’s conception of normal, this citation could not be S&S
because the lube truck would normally have reliable brakes. Why consider the actual truck when
we have a perfectly adequate imaginary one? In fact, under Respondent’s formulation, any
hazard would be an “abnormal” mining condition that could not give rise to an S&S designation.
Such an analysis cannot be seriously considered.

36 FMSHRC Page 3222

inadequate. As will be discussed infra, Respondent, through its foremen, was required under
relevant standards as well as company policy, to ensure the adequacy of the brakes by
supervising pre-operational examinations. Marshall testified that the condition of the brakes was
readily ascertainable through examination of the pushrod stroke. (Tr. 55-56, 142-143, 201).
Further, as has already been shown, the truck would not have been capable of stopping on a
typical grade while under a typical load. Therefore, the condition would have been discovered
on an adequate practical examination.20 However, none of Respondent’s employees ever
determined the condition. (Tr. 53-54). The foremen’s conduct in failing to ensure adequate
brakes is imputed to Respondent. Whayne Supply Co., supra; Rochester & Pittsburgh Coal Co.,
supra; and Southern Ohio Coal Co., supra.
Having found the requisite knowledge, the next issue is whether there were any
mitigating circumstances. The evidence showed that the brakes had been adjusted on October
25, 2010. (Tr. 47, 223, RX-F). While this was nearly a month before the accident, it does show
that Respondent took some effort to ensure the brakes were adequate. Further, the brakes were
sufficient when the truck was in gear and had functioned adequately while in gear earlier on the
day of the accident. (Tr. 76, 179, 186, 211-213). This might have allowed Respondent to
erroneously, but not completely unreasonably, believe the brakes were adequate. Having found
that there were some mitigating circumstances, I affirm the Secretary’s designation of
“moderate” negligence.
Respondent argued that it was entirely without negligence or, at most, there were
substantial mitigating circumstances. (Respondent’s Post-Hearing Brief at 15-16). In addition to
the October 25 brake adjustment and the fact that the brakes functioned earlier in the day,
Respondent raised several other issues. (Id.). In particular, Respondent noted that the brakes
were adequate under “normal mining conditions.” (Id. at 16). This argument is rejected for the
same reasons it was rejected regarding S&S, supra. The accident at issue here occurred under
“normal mining conditions,” and there is no reason to consider a theoretical scenario where the
circumstances are more favorable to Respondent.
Respondent also argued that the method suggested by the Secretary for determining the
adequacy of the brakes, the pushrod stroke measurement, was not an accepted practice.
(Respondent’s Post-Hearing Brief at 16). It noted that even Faulkner conceded that he had never
seen anyone conduct this type of examination. (Id.). This issue will be discussed at length infra,
regarding Citation No. 8365955. At this time it is sufficient to note that the technical way in
which Respondent determined the adequacy of brakes is irrelevant. The brakes here were in fact
inadequate. Any competent examination conducted by Respondent should have determined that
this was the case. The fact that Respondent did not conduct a pushrod stroke measurement is not
the negligent action; it is that it failed to adequately ensure safe brakes in some way, pushrod
measurement or otherwise.
Finally, Respondent once again noted that none of the miners working at the mine were
its employees. (Respondent’s Post-Hearing Brief at 16). For the reasons discussed with respect
to Citation No. 8365953, this argument is rejected.
20

This issue will be discussed at length in the discussion of Citation No. 8365955

36 FMSHRC Page 3223

4. Penalty
In this matter, the Secretary proposed a penalty of $52,500.00 for Citation No. 8365954.
Having affirmed the Secretary’s determinations in all respects, no deviation is necessary. In fact,
the proposed penalty is appropriate under the Act. Once again, Respondent argued that the
penalty should be lessened in light of the modifications it suggested as well as its citation history.
(Respondent’s Post-Hearing Brief at 17-18). However, given the fact that no modifications were
made and the extreme gravity of this violation, a substantial penalty is justified. Therefore,
Respondent is hereby ORDERED to pay a civil penalty in the amount of $52,500.00 with
respect to this violation.
V.

CONTENTIONS OF THE PARTIES REGARDING CITATION NO.
8365955

With respect to Citation No. 8365955, the Secretary asserts that Respondent violated 30
C.F.R. §77.1606(a), that this violation resulted in a fatal injury to one miner, that the violation
was S&S, and that it resulted from moderate negligence. (GX-12)(Secretary’s Post-Hearing
Brief at 22-28). The Secretary also asserts that a penalty of $52,500.00 is appropriate.
(Secretary’s Post-Hearing Brief at 28-30)
Respondent asserts that it did not violate the cited standard. (Respondent’s Post-Hearing
Brief at 11-13). It further avers that if a violation existed it was not S&S and that its actions
would be better characterized as showing “low” or “no” negligence. (Id. at 11-15) Further,
Respondent believes a reduction in the proposed penalty is appropriate. (Id. at 17-18).
VI.

FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING
CITATION NO. 8365955
1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That 30 C.F.R. §77.1606(a) Was Violated.

On February 25, 2011, Inspector Faulkner issued a 104(a) Citation, No. 8365955, to
Respondent. Section 8 of that Order, Condition or Practice, reads as follows:
The results of a fatal accident investigation at the Rex Coal Company, Inc.’s, Rex
Strip #1 revealed that an inadequate pre-operational examination was conducted
for the 1988 Maroon Mack tandem lube truck, Model DM-690-SX, VIN
#1M2B198C2JW002173, on Monday 11-22-2010, prior to the accident. During
the investigation and interviews the following safety defects were revealed to
exist on the truck, without recording or correcting the conditions: (1) Five of the
six service brakes chamber pushrod strokes for the truck exceeded the maximum
allowable pushrod stroke readjustment limit. (2) Three of the four parking brakes
were ineffective or compromised. (3) The operator seat belt was improperly
installed. (4) Both sections of the front windshield were cracked prior to the
accident. An adequate pre-operational examination would have revealed these
defects affecting safety.
(GX-12).
36 FMSHRC Page 3224

The cited standard, 30 C.F.R. §77.1606(a) (“Loading and haulage equipment; inspection
and maintenance”), provides the following:
Mobile loading and haulage equipment shall be inspected by a competent person
before such equipment is placed in operation. Equipment defects affecting safety shall
be recorded and reported to the mine operator.
30 C.F.R. §77.1606(a).
Evidence that equipment defects existed at the time of a pre-operational examination but
were not corrected or recorded is sufficient to establish a violation of this standard. See e.g.
Speed Mining, Inc., 2007 WL 2746692, *14 (Aug. 27, 2007)(ALJ Weisberger); and Alsea
Quarries, 33 FMSHRC 1840, 1853-1854 (Aug. 2011)(ALJ Barbour) (the citation in this matter
was issued under 30 CFR § 56.14100(d), which is substantially similar to 30 C.F.R. §77.1606(a)
for the relevant issues here).
In the instant matter, inspector Faulkner credibly testified that several equipment defects
existed on the lube truck before the shift on which the accident occurred and that these defects
were not recorded. Specifically, he noted that five of the six service brakes on the truck were
inadequate. (Tr. 54-56). Because they used the same brake assembly as the service brakes, three
of the four parking brakes were also inadequate. (Tr. 55). Faulkner knew that at least one of the
brakes, the one on the front left steering axle, had been defective for a month or two. (Tr. 126).
Faulkner also noted that the operator seat belt was improperly installed. (Tr. 57, 148-149). The
belt was attached to the floor of the truck in two places. (Tr. 57-58, 148-149, GX-14, 15, & 16).
This created a choking or squeezing hazard and also put an excessive burden on the seatbelt, as it
had to hold the entire weight of the seat in an accident. (Tr. 60, 149-150). Finally, Faulkner
learned from interviews that both sections of the front windshield were cracked and had been
cracked for several shifts. (Tr. 61-62, 89, 187). Respondent’s pre-operational examination form
included areas for the examiner to check the brakes, the seatbelt, and the windshield. (Tr. 55, 6061, 187-188). However, none of the conditions discovered by Faulkner were recorded in any of
the pre-operational forms. (Tr. 53-54). As a result, I find that Respondent violated 30 C.F.R.
§77.1606(a).
In its brief, Respondent asserted several arguments to support its claim that this citation
was invalid. (Respondent’s Post-Hearing Brief at 11-13). However, those arguments are not
supported by the evidence.
First, Respondent noted that it had no reason to suspect that the brakes were inadequate.
(Respondent’s Post-Hearing Brief at 12). Respondent pointed to Blanton’s testimony regarding
the way in which pre-operational examinations of the brakes were conducted. (Id.). It explained
that the method used by the Secretary, the pushrod stroke measurement, was not the accepted
method to examine brakes. (Id.). In fact, Faulkner conceded that normal mining operations did
not require such an examination, that he did not expect operators to use the pushrod stroke

36 FMSHRC Page 3225

measurement, and that he would not issue a citation for failure to do so. (Id. at 12-13). Similarly
Respondent noted that there was no way to determine whether there was “grease-like” material
on a brake without removing the wheel. (Id. at 12). It asserts that the Secretary would not
require a wheel to be removed during a pre-operational examination. (Id.). Finally, in this
matter the Secretary did no tests to determine the degree to which the grease-like material
affected the brakes. (Id.).
Respondent misunderstands the purpose of the evidence regarding pushrod stroke
adjustments and grease-like material presented in this proceeding. The Secretary presented
extensive evidence regarding the pushrod stroke measurements (and the grease-like material) to
quantify the degree to which the brakes were inadequate. To that end, Marshall testified that
these brakes were likely at 20% capacity and at no more than 50% capacity. (Tr. 143, 146-147).
This evidence is helpful in a legal proceeding under the Mine Act, where the Secretary bears the
burden of proof. However, Respondent was not required to know with technical precision the
mathematical degree to which the brakes on the lube truck were inadequate. It only needed to
know that the brakes were, in fact, inadequate. Respondent could have determined that the
brakes were defective with a pushrod stroke measurement, but, as noted by Inspector Faulkner, it
was not required to do so. (Tr. 83-86). Respondent had discretion to determine a method of preoperational examination that worked for the mine. (Tr. 80-81, 91). Whatever method selected,
however, the pre-operational examination needed to be sufficient to find safety defects.
Here, as discussed supra, brakes on mobile equipment needed to be sufficient to stop or
hold the truck under typical load on the highest grade the truck typically traveled. The method of
pre-operational examination needed to be designed to ensure the brakes could meet those
requirements. A pushrod stroke measurement might have been sufficient to achieve that goal,
but certainly other methods were available as well. In short, the practical adequacy, not the
technical method used to gauge that adequacy, is the primary issue in this matter.
Respondent’s method, as described by Blanton, was logically and demonstrably
insufficient for the task. Blanton explained that to check the brakes he would put the truck in
gear, ease out on the clutch, and check to see if the brakes were holding. (Tr. 232-233).
Logically, this method would be ineffective to determine whether the brakes could hold or stop
the truck under typical load on a typical maximum grade. As Marshall credibly explained, high
demand situations can place additional burdens on brakes. (Tr. 130-131, 133). Brakes that may
be adequate in low demand situations may be inadequate for more strenuous activity. (Tr. 130131, 133). Checking whether the brakes were sufficient to hold a stationary truck on a flat
surface would not be helpful in determining whether brakes would stop a moving truck on a 22%
grade. Even if no accident had occurred, it would not be reasonable to believe the test described
by Blanton was sufficient to conduct an adequate pre-operational examination.
Unfortunately, the insufficiency of Respondent’s pre-operational examination method
was clearly, and tragically, demonstrated on November 23, 2010. That day, the brakes were
adequate in low demand situations, as the pre-operational examination indicated they would be.
However, the brakes failed when faced with a high demand situation, traveling a 22% grade
while in neutral. As a result, a fatal accident occurred. Respondent’s pre-operational
examination procedure failed to test the brakes sufficiently to prevent this misfortune.

36 FMSHRC Page 3226

Respondent should have used some other, effective method, whether a pushrod stroke
measurement or some other test, to determine the adequacy of its brakes. Because it did not, this
citation is valid.
In addition to the brakes, Respondent also argued that a seatbelt was not required in this
truck and that the improperly installed seatbelt did not violate any standard. (Respondent’s PostHearing Brief at 12). The cited standard, 30 C.F.R. §77.1606(a), does not require the operator to
list and record violations, instead it requires the operator to list “equipment defects.” In this
case, Respondent was not required by law to install a seatbelt. (Tr. 89). However, it was
required under its own policy to have a seatbelt in the truck and that truck driver was required to
wear it. (Tr. 201). That seatbelt was defective and presented a choking or squeezing hazard to
the driver. (Tr. 57-58, 148-149). As a result, it should have been included on the pre-operational
form. In fact, Respondent’s form actually included a place where defects to the seatbelt could be
listed. (Tr. 60-61). Clearly, before the instant litigation, Respondent believed that that seatbelts
were properly considered during a pre-operational examination.
Finally, Respondent argued that the inspector learned of the cracks in the windshield
from interviews. (Respondent’s Post-Hearing Brief at 12). Inspector Faulkner did not see the
cracks himself and could not say if they affected the driver’s vision. (Id. 12-13). I find that
Inspector Faulkner credibly testified that the windshield was cracked and that this was an
equipment defect as countenanced by the standard. (Tr. 61, 63, 187-188). I find no reason to
doubt the Inspector’s testimony or question the credibility of the miners he interviewed. Clearly
Boggs believed the condition was hazardous, because he included it in his on-shift report. (Tr.
62-64, 90). Further, the reason Inspector Faulkner was unable to inspect the windshield was
because Respondent’s negligent action in failing to ensure adequate brakes resulted in further
damage to the glass. Respondent cannot benefit from its own bad actions.
None of Respondent’s arguments affect my determination that this citation was validly
issued under 30 C.F.R. §77.1606(a). A preponderance of the evidence supports the issuance.
2. The Violation Resulted in a Fatal Injury to One Miner And Was Significant And
Substantial In Nature
Inspector Faulkner marked the gravity of the cited danger in Citation No. 8365955 as
having resulted in a “Fatal” Injury to one person. (GX-12). These determinations are supported
by a preponderance of the evidence.
The event against which the instant standard, 30 C.F.R. §77.1606(a) is directed is the use
of defective equipment leading to an accident. (Tr. 50). Here, the Secretary presented credible
evidence that the lube truck had several defects, including inadequate brakes, an improperly
installed seatbelt, and a cracked windshield. (Tr. 54-57, 61). However, none of these conditions
were recorded and the truck was actually placed into service. (Tr. 53-54). The hazard was
realized and the defective equipment was involved in an accident that resulted in fatal injuries to
one miner, Rhett Mosley. (Tr. 64-65). Therefore, the evidence supports the Secretary’s
determinations.

36 FMSHRC Page 3227

With respect to S&S, the first element, the underlying violation of a mandatory safety
standard, it has already been established that Respondent violated 30 C.F.R. §77.1606(a).
With respect to the second element of Mathies, a discrete safety hazard – that is a
measure of danger to safety – contributed to by the violation – was also met. The cited
condition, failure to remove defective equipment from service, contributed to a discrete safety
hazard. The truck and its brakes were not maintained or removed from service when defects
were present and, as a result, the brakes were unable to stop or even control the truck as it
descended the hill. (Tr. 46-47, 79, 139, 146, 148). This inability to control the truck
undoubtedly contributed to a discrete safety hazard, in this matter an accident involving mobile
equipment.
The third element of the Mathies test – a reasonable likelihood that the hazard contributed
to will result in an injury – was also met. In this matter, the hazard contributed to was realized
and an injury occurred as a result. Therefore, the third prong of Mathies is met.
The fourth element -that the injury be of a reasonably serious nature - was also met.
Unfortunately, the actual injury sustained was a fatal injury to Rhett Mosley. (Tr. 63-64). As a
result, the fourth prong of Mathies is met.
As a result of these factors, I find that the Secretary proved the violation was S&S by a
preponderance of the evidence.
Respondent argues that this citation should not be S&S because the violation cited the
examination performed on November 21, the day before the examination, and Blanton testified
that there were no problems with the brakes that day. (Respondent’s Post-Hearing Brief at 16).
As noted supra, Marshall noted that at least one of the brakes had been defective for a month or
two. (Tr. 126). Marshall was unable to determine the length of time the other brakes were
defective, but they were also defective to some degree. Further, the windshield had been
damaged for several shifts. (Tr. 61-62, 89, 187). Finally, there was no evidence or reason to
believe the seatbelt had recently been installed. Therefore, some conditions (at least one brake,
the windshield, and the seatbelt) should have been noted on November 21, 2010.21
Respondent also argued “[u]nless the Secretary can establish a brake problem which the
pre-op examination would have detected, the exam cannot be considered S&S.” (Respondent’s
Post-Hearing Brief at 15). Respondent, unsurprisingly, cited no authority for this bizarre
21

Even if I were to discount the November 21 pre-operational examination, Respondent
would still be liable for the November 22 exam. The Secretary cited the November 21
examination because the November 22 examination for Mosley’s shift was either not conducted
or, because Respondent’s method of having pre-shift examination records submitted after the
shift, was destroyed in the accident. (Tr. 52-54, 80). Respondent’s actions in setting up this
delayed reporting system and also in allowing the truck to be operated in ill-repair resulted in the
loss of the record. If I had been asked to draw an adverse inference against Respondent because
of this lost record (either that the record never existed or that it was inadequate) I would have
done so.

36 FMSHRC Page 3228

assertion. The gravity and dangers of mining are not determined by the method of Respondent’s
pre-operational examination, the pre-operational examination should be conducted in light of the
gravity and dangers of mining. A pre-shift examination should be conducted in such a way as to
consider, and limit, the real dangers faced by miners. An operator cannot conduct its
examinations in a way that ignores dangers and then claim that, as a result of wilful ignorance,
that the dangers are somehow lessened.22 This argument in no way changes S&S determination.
Finally, Respondent argued “[e]ven an exam performed exactly as Mr. Faulkner would
have expected would not have detected any brake problems.” (Respondent’s Post-Hearing Brief
at 15). Faulkner’s expectations, even if they were as Respondent described, would be
immaterial. The issue was whether a defect existed and whether it was recorded. Here, the
brakes, seatbelt, and windshield were defective, and nothing was done about the conditions.
Further, Marshall believed that the conditions he observed with the brakes could have been
found prior to the accident. (Tr. 141).
3. Respondent’s Conduct Displayed “Moderate” Negligence.
In the citation at issue, Inspector Faulkner found that the operator’s conduct was
moderately negligent in character. (GX-12). The substantial evidence supports this designation.
With respect to knowledge, the factual situation presented here is substantially similar to
that in Citation Nos. 8365953 and 8365954. Specifically, a supervisor within in the definition
provided in 30 U.S.C. 802(e) and Martin Marietta Aggregates, supra, should have known that
the brakes were inadequate. Respondent, through its foremen, was required under relevant
standards as well as company policy, to ensure the adequate pre-operational examinations.
Specifically, the foremen were required to collect the pre-operational examination records,
review them, and ensure that all proper repairs were conducted. (Tr. 53, 92, 182-183, 195-196,
233). The foremen were also required to remove equipment from service when it could not be
repaired. (Tr. 92, 182-183, 195-196). Equipment operators testified that they would bring any
problems with the equipment to the attention of the foremen. (Tr. 182, 133). Despite this
responsibility, none of the foremen determined that the pre-shift examinations conducted here
were inadequate. This was true even though one of those foremen, Boggs, saw the cracked
windshield during an on-shift examination and could see on the pre-shift examination form that
the condition was not recorded. (Tr. 62-64, 90). The foremen’s conduct in failing to ensure
adequate pre-shift examinations is imputed to Respondent. Whayne Supply Co., supra;
Rochester & Pittsburgh Coal Co., supra; and Southern Ohio Coal Co., supra.
Even higher levels of management beyond the foremen were directly culpable for the
negligence shown here. Specifically, Respondent had appointed Chasteen as foreman. While
Chasteen appeared to be an honest and reliable individual at trial, it should be noted that he
testified that while he was generally familiar with pre-operational examinations, he did not know
22

Respondent was quick to note at other places in its brief that an operator has discretion
to determine the method of its pre-operational examination. Suppose, for example, an operator
decided that its examiners should smell, and only smell, the brakes to determine they if they were
adequate. Would Respondent argue that a subsequent accident caused by inadequate brakes
could not be S&S because the examiner could not smell the defect?

36 FMSHRC Page 3229

how Respondent’s equipment operators tested the brakes. (Tr. 184-185). Despite this fact,
Chasteen supervised three rock truck drivers and one lube truck driver. (Tr. 187). How could
Chasteen ensure the miners working at his direction were performing adequate pre-shift
examinations if he had no idea what an adequate pre-shift would entail? To a certain extent, the
negligence of the foremen was incidental to the earlier negligence shown by higher levels of
management in making policy and conducting training.
Having found the requisite knowledge, the next issue is whether there were any
mitigating circumstances. The evidence showed that Respondent regularly conducted preoperational examinations. While these examinations were inadequate for testing the brakes in
high demand situations, Respondent did determine that the brakes would work in low demand
situations. Having found that there were some mitigating circumstances, I affirm the Secretary’s
designation of “moderate” negligence.
Respondent argued that it was entirely without negligence or, at most, there were
substantial mitigating circumstances. (Respondent’s Post-Hearing Brief at 15-17). Once again,
Respondent noted that none of the miners working at the mine were its employees. (Id.). For the
reasons discussed with respect to Citation Nos. 8365953 and 8365954, this argument is rejected.
Respondent also argued that a prudent operator would not have conducted a pushrod
stroke examination and that Respondent had no reason to know the brakes required maintenance.
(Respondent’s Post-Hearing Brief at 16-17). Respondent was not negligent for failure to
conduct a push-rod stroke measurement. It was negligent for failure to determine that the brakes
were defective. The brakes were at best at 50% capacity. (Tr. 147). Therefore, Respondent had
reason to know they were defective; it simply needed to develop an examination method that
would determine the deficiency. This is not a mitigating factor.
4. Penalty
In this matter, the Secretary proposed a penalty of $52,500.00 for Citation No. 8365955.
Having affirmed the Secretary’s determinations in all respects, no deviation is necessary. In fact,
the proposed penalty is appropriate under the Act. Once again, Respondent argued that the
penalty should be lessened in light of the modifications it suggested as well as its citation history.
(Respondent’s Post-Hearing Brief at 17-18). However, given the fact that no modifications were
made and the extreme gravity of this violation, a substantial penalty is justified. Therefore,
Respondent is hereby ORDERED to pay a civil penalty in the amount of $52,500.00 with
respect to this violation.

36 FMSHRC Page 3230

ORDER
It is hereby ORDERED that Citation Nos. 8365953, 8365954, and 8365955 are
AFFIRMED.
Respondent is ORDERED to pay civil penalties in the total amount of $157,500.00
within 30 days of the date of this decision.23

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
Distribution:
Joseph B. Luckett, Esq., U.S Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219
John M. Williams, Esq., Rajkovich, Williams, Kilpatrick &True, PLLC, 3151 Beaumont Centre
Circle, Suite 375, Lexington, KY 40513
/tjb

23

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

36 FMSHRC Page 3231

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

December 4, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. KENT 2011-1618
A.C. No. 15-18839-265121

v.
EXCEL MINING, LLC,
Respondent.

Mine: Van Lear Mine

DECISION
Appearances: Anthony M. Berry, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, for Petitioner;
Tyler H. Fields, Esq., Excel Mining, LLC, Lexington, Kentucky, for Respondent.
Before:

Judge Paez

This case is before me upon the Petition for the Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d). In dispute are two section 104(a) citations issued to
Excel Mining, LLC (“Excel” or “Respondent”). To prevail, the Secretary must prove his charges
“by a preponderance of the credible evidence.” In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom., Sec’y of Labor v. Keystone Coal
Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This burden of proof requires the
Secretary to demonstrate that “the existence of a fact is more probable than its nonexistence.”
RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) (citations and internal
quotations omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).

36 FMSHRC Page 3232

I. STATEMENT OF THE CASE
Both of the alleged violations in this docket charge Excel with a violation of its
ventilation plan under 30 C.F.R. § 75.370(a)(1).1 The MSHA inspectors designated each
violation as significant and substantial (“S&S”)2 and characterized Excel’s level of negligence as
moderate. The Secretary proposed specially-assessed penalties under his 30 C.F.R. § 100.5
regulations based on Respondent’s history of violations at this mine. Specifically, the Secretary
proposed penalties of $13,600.00 and $11,500.00, respectively, for Citation Nos. 8258130 and
8252975.
Chief Administrative Law Judge Robert J. Lesnick assigned Docket No. KENT 20111618 to me, and I held a hearing in Pikeville, Kentucky.3 The Secretary presented testimony
from Inspectors Jamie Hamilton and Billy Stiltner. Excel presented testimony from Mine
Engineer David Arrington. The parties each filed closing briefs and reply briefs.
II. ISSUES
The parties have stipulated to the Commission’s jurisdiction in this case. (Ex. J–1 at
1–2.) The Secretary argues that the allegations underlying both citations are valid and that his
proposed penalties are appropriate.4 (Sec’y Br. at 6, 9–10, 14, 16–19.) Although Excel admits
1

Section 75.370(a)(1) provides:
The operator shall develop and follow a ventilation plan approved
by the district manager. The plan shall be designed to control
methane and respirable dust and shall be suitable to the conditions
and mining system at the mine. The ventilation plan shall consist
of two parts, the plan content as prescribed in [section] 75.371 and
the ventilation map with information as prescribed in [section]
75.372. Only that portion of the map which contains information
required under [section] 75.371 will be subject to approval by the
district manager.

2

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

In this decision, the hearing transcript, the Secretary’s exhibits, and Excel’s exhibits are
abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,” respectively. The parties also admitted a list of
stipulations in a joint exhibit, which is abbreviated as “Ex. J–1.”
4

Although MSHA Inspector Hamilton characterized Excel’s negligence as “moderate”
for Citation No. 8258130 (Ex. G–1), the Secretary in his posthearing brief asks that I modify the
level of negligence to “high.” (Sec’y Br. at 10, 19.) The Federal Rules of Civil Procedure allow
the amendment of pleadings to conform to the evidence if an issue is tried by the parties’ express
or implied consent. See Fed. R. Civ. P. 15(b)(2). Given the facts of this case and my conclusions
of law, see discussion infra Part V.A.2, I need not reach this issue.

36 FMSHRC Page 3233

that the cited conditions constituted violations, Respondent disputes the Secretary’s allegations
regarding gravity and negligence. (Resp’t Br. at 6–7; Resp’t Reply at 7.) Specifically,
Respondent argues that the Secretary has failed to demonstrate either violation was S&S and
claims its negligence in each case was low. (Resp’t Br. at 6–7.) Further, Excel suggests that I
modify Citation No. 8252975 to reduce the number of miners affected from five to two. (Id.
at 7.) Finally, Excel contends that the penalties should be lowered in this case. (Id.)
Accordingly, the following issues are before me: (1) whether the record supports the
Secretary’s assertions regarding the gravity of the alleged violations, including whether each is
S&S and whether Citation No. 8252975 affected five miners; (2) whether the record supports the
Secretary’s assertions regarding Excel’s negligence in committing the alleged violations; and
(3) whether the Secretary’s proposed penalties are appropriate.
For the reasons set forth below, Citation Nos. 8258130 and 8252975 are AFFIRMED as
to the Secretary’s gravity determinations and MODIFIED to reduce the levels of negligence
from “moderate” to “low.”
III. FINDINGS OF FACT
A.

Basic Mining Phases at Van Lear Mine

The Van Lear Mine is an underground coal mine located in Martin County, Kentucky.
(Ex. G–4 at 1.) Room-and-pillar mines like the Van Lear Mine produce coal in two phases. (See
Tr. 21:13–15, 32:21–23, 50:14–51:4, 55:20–57:13.) In the first phase—known as advance
mining—an operator uses a continuous mining machine to bore deeper into different sections of
the mine. (See Tr. 55:20–57:13, 153:12–15, 165:3–10.) The continuous mining machine cuts
through the coal seam in long corridor-like entries and perpendicular crosscuts. (See Ex. G–3;
Ex. G–3A; Ex. G–8; Ex. G–8A; Ex. R–1; Tr. 153:25–154:4.) However, the resulting square or
rectangular “pillars” of coal within the seam are not simultaneously mined; instead, those pillars
remain in place to provide support for the overlying rock and dirt as the operator advances
deeper into the mine. (Tr. 165:3–10.) Thus, when viewed from above, working sections at Van
Lear Mine—also known as panels—in the advance mining phase resemble checkerboards, with
entries and crosscuts surrounding pillars of coal. (Ex. G–3; Ex. G–3A; Ex. G–8; Ex. G–8A; Ex.
R–1.)
When the mine operator reaches the end of a coal panel, the process enters the second
phase, which is known as retreat mining. (Tr. 151:19–152:5, 165:11–15; Ex. G–3; Ex. G–3A;
Ex. G–8; Ex. G–8A; Ex. R–1.) In this phase, the operator removes portions of certain coal pillars
on the panel sequentially as it “retreats” towards the entrance to the panel. (Tr. 50:14–51:4,
112:14–113:3, 151:19–152:5, 165:11–18.) As the operator retreats, the mine roof may collapse
because the weight of the rocks and dirt above is no longer being supported—creating a refuse
area called “gob.” (Tr. 146:19–24, 148:1–10.) Because methane and other dangerous gases
collect in the gob, mine operators must continue to ventilate it even though no additional mining
activity will occur in these areas. (Tr. 48:9–49:14, 50:14–51:7, 55:20–56:10, 57:5–7, 113:12–
114:5, 146:25–147:10.) Proper ventilation of gob areas includes the retention of a series of
pillars—also known as bleeder blocks—around the outside of the gob, which provides a pathway

36 FMSHRC Page 3234

to ventilate fresh air into and through the gob, thus forcing those dangerous gases out of the
mine. (See Tr. 48:9–49:14, 56:4–10, 57:5–7, 113:23–114:5, 121:16–20, 178:8–20; Ex. G–4 at
31.) This air pressure on the gob also helps ensure that those gases do not seep back into the
active mining section.5 (Tr. 113:12–114:5, 114:24–115:8, 121:7–20, 126:4–13, 132:17–21,
133:17–134:16.) Accordingly, panels at the Van Lear Mine in the retreat mining phase continue
to resemble checkerboards around their borders, but they contain large gob areas in the center of
the ring created by the bleeder blocks. (Ex. G–3; Ex. G–3A; Ex. G–8; Ex. G–8A; Ex. R–1.)
B.

Ventilation Controls at the Van Lear Mine

Methane gas and respirable dust are two dangerous by-products of the coal mining
process. (See Tr. 22:2–20, 38:24–39:10.) In certain concentrations, methane is an explosive gas.
(Tr. 60:10–14.) The Van Lear Mine is a gassy mine, which liberates more than 500,000 cubic
feet of methane within a twenty-four hour period. (Tr. 22:2–20.) Based on the volume of
methane the Van Lear Mine liberates, MSHA placed the mine on a ten-day spot exam schedule
requiring MSHA inspectors to take bottle samples every ten days to test for methane
accumulations. (Tr. 22:7–12, 131:18–21, 164:6–14.) In addition, exposure to silica in respirable
dust form contributes to serious lung diseases. (Tr. 39:24–40:22, 45:21–46:11, 67:14–68:10.)
In accordance with 30 C.F.R. § 75.370(a)(1), Excel also submitted a ventilation plan to
MSHA on April 27, 2010, and MSHA approved the plan on May 10, 2010 (“May 10 Plan”). (Ex.
G–4; Ex. G–4A.) To control methane and dust produced in the mining process, the plan required
Excel to provide fresh air with a velocity of at least 4,800 cubic feet per minute (c.f.m.) at any
face where coal is being mined. (Ex. G–4 at 9, 11, 31; Ex. G–4A at 9, 11, 31; Tr. 36:4–14,
36:23–37:4, 125:5–15.) In addition, the May 10 Plan required Respondent to provide at least
13,000 c.f.m. of air on the intake side of the pillar line. (Ex. G–4 at 9, 11, 31; Ex. G–4A at 9, 11,
31; Tr. 108:18–109:22.) During retreat mining, Excel was required to ensure at least 7,000 c.f.m.
reached the deepest part of the panel, after the air passed through the gob and the bleeder blocks.
(Ex. G–8; Ex. G–8A; Ex. R–1; Tr. 127:13–128:13, 174:4–7, 174:23–175:3.)
C.

Inspections – January 24, 2011

Inspectors Hamilton and Stiltner visited the Van Lear Mine to conduct a complete
inspection of the mine on January 24, 2011. (Tr. 22:21–23:8, 90:20–21, 91:23–24, 92:21–93:3;
Ex. G–2 at 1; Ex. G–7 at 1.) At the time, Excel had begun the retreat mining phase and was
removing pillars from the Van Lear Mine’s Panel 6 using two separate continuous mining
machines.6 (See Tr. 100:2–13, 102:5–105:9.) On January 24, day shift miners began cutting coal
in Panel 6 at approximately 7:30 a.m. (Tr. 32:11–13.)
5

Once a week, Excel was required to monitor the amount of air that reached the back end
of the panel beyond the gob and the bleeder blocks. (Tr. 128:14–21.)
6

These machines and their respective crews were known as the 007 MMU and 008
MMU. (Tr. 31:16–18, 100:8–9, 101:23–24.) “MMU” stands for mechanized mining unit. (See
Tr. 31:18.) Each unit includes a continuous mining machine operator, two shuttle car drives, and
two miners setting timbers for roof control purposes. (Tr. 112:2–7.)

36 FMSHRC Page 3235

The roof of Panel 6 was made of sandstone, which contains quartz.7 (Tr. 32:24–33:4; Ex.
G–5.) In addition, the continuous miner frequently created sparks when its carbide tip bits struck
the mine roof. (Tr. 116:17–20.) These sparks provided potential ignition sources. (Tr. 116:17–
20.)
Panel 6 included six entries. When looking towards the working face, the No. 1 Entry
was located on the far left and the No. 6 Entry was located on the far right. (Ex. G–3A; Ex.
G–8A; Tr. 27:8–31:16, 37:6–8, 100:8–103:23.) Because Excel employed two separate
continuous miners on the Panel, Respondent provided separate air courses of fresh air for each
mining unit. (See Tr. 102:5–12, 104:11–15, 120:12–121:20.) Thus, the intake air traveled up the
No. 3 Entry, then split into separate air courses when it reached the last open crosscut.
(Tr. 101:17–24, 102:10–12; Ex. G–3A; Ex. G–8A.)
Hamilton and Stiltner arrived at the mine at approximately 8:00 a.m., met with Excel
personnel at the surface, and examined preshift and on-shift reports. (Ex. G–2 at 1; Ex. G–7 at 1,
Tr. 25:8–11, 54:12–21, 94:24–95:2, 129:6–12.) Along with Excel’s Curtis Webb and Mike
Hurley, the inspectors then traveled to Panel 6 and completed an imminent danger run of the
retreat mining section. (Ex. G–2 at 1–4; Ex. G–7 at 1–3; Tr. 25:15–24, 93:12–20, 130:9–12.) At
this point, Hamilton inspected the right side of the panel while Stiltner inspected the left. (Ex. G–
3A; Ex. G–8A; Tr. 100:12–103:23, 104:11–23, 109:17–25.)
1.

Hamilton’s Inspection and Citation No. 8258130

As Inspector Hamilton approached the No. 6 entry, he noticed the 008 MMU cutting into
the pillar bounded by the entry and the last open crosscut. (Tr. 27:25–31:18, 32:14–20.) The
machine operator had just begun his cut a few minutes earlier, cutting the bottom of the pillar
near the floor. (Tr. 39:11–15, 57:14–59:7, 82:2–12.) As the mining machine operator made his
cut, Hamilton also observed a cloud of dust surrounding the operator. (Tr. 38:16–23, 41:5–10,
67:9–13, 73:23–74:2; Ex. G–2 at 6.) Although Hamilton did not collect bottle samples of this
dust, he witnessed the machine operator standing in the dust and inhaling without any respirator
or dust mask. (Tr. 40:19–41:2, 41:11–15, 62:11–18, 74:3–5.) He also learned that neither the
section foreman nor the machine operator had taken an air reading prior to beginning the cut. (Tr.
46:19–47:8, 50:2–7, 53:12–23; Ex. G–2 at 8.) Hamilton did not detect any methane present in the
working section. (Tr. 60:18–21, 78:15–18, 82:24–83:1.)
At that point, Hamilton measured the air flow at the continuous mining machine using an
anemometer. (Tr. 37:10–19.) He recorded an air velocity of 3,456 c.f.m., which was below the
4,800 c.f.m. required under the May 10 Plan. (Tr. 37:20–25, 49:15–23; see Ex. G–4 at 9, 11, 31;
Ex. G–4A at 9, 11, 31.)
7

The Secretary’s regulations lower the concentration of respirable dust that may be found
in the mine’s atmosphere when the respirable dust contains more than five percent quartz. See 30
C.F.R. §§ 70.100–.101. Although Excel was not subject to this heightened quartz standard at the
time of the inspection (Tr. 42:6–43:5; Ex. G–5), it is uncontroverted that Respondent’s mine roof
contained quartz.

36 FMSHRC Page 3236

Based on his inspection, Hamilton issued Citation No. 8258130 at 10:30 a.m., providing:
The compan[y’s] Ventilation plan is not being followed for the 008
MMU. While cutting in the [No.] 6 [E]ntry[,] 3456 cfm was
measured going over [the] miner when checked with calibrated
anemometer while cutting in [the] 1st sump of pillar block. The
compan[y’s] plan requires 4800 cfm as stated on page 31 of the
ventilation plan. The miner had visible float dust suspended in the
air around [the] miner and miner man. The continuous miner was
cutting in sandstone roof. This condition exposes miners to the
dangers associated with lung disease. This mine also on a 10 day
spot liberating 500,000 cubic ft of methane in a 24 hour period.
This condition exposes miners to the dangers associated with an
ignition. Standard 75.370(a)(1) was cited 50 times in two years at
[this mine] (50 to the operator, 0 to a contractor).
(Ex. G–1 at 1–2.) Hamilton marked the citation as S&S and indicated the condition affected one
person. (Id. at 1.) Hamilton also characterized Excel’s negligence as moderate. (Id.) To abate the
violative condition, Respondent spent approximately 10 minutes tightening ventilation curtains
on Panel 6. (Id.; Tr. 47:9–18, 51:18–53:7; Ex. G–2 at 7.) At the hearing, Hamilton admitted that
he had no basis for determining the length of time this cited condition existed. (Tr. 63:24–64:14,
74:13–19.)
2.

Stiltner’s Inspection and Citation No. 8252975

When Inspector Stiltner began to inspect the left side of the working section, he noted
that the 007 MMU was completing its pillar removal work in the No. 3 Entry and moving into
the No. 2 Entry. (Tr. 105:11–16, 112:14–113:3, 114:11–23, 147:11–23; Ex. G–7 at 4–5.) At the
time, two miners were setting timbers in the No. 2 Entry and three miners had moved into the
No. 3 Entry. (Tr. 112:14–113:3; Ex. G–7 at 4.) Stiltner took an air reading while positioned in
the last open crosscut between the No. 2 and No. 3 entries. (Tr. 122:16–21; Ex. G–8A.) He
recorded an air velocity of 10,703 c.f.m., which is below the 13,000 c.f.m. required under the
May 10 Plan. (Tr. 111:11–18, 120:25–121:2; Ex. G–7 at 5, 9.) Stiltner did not detect any
methane on the section. (Tr. 115:9–14, 130:9–131:14; Ex. G–7 at 4, 9.)
In light of his observations, Stiltner issued Citation No. 8252975 at 11:15 a.m., providing:
The approved ventilation plan is not being followed on the 007-0
[sic] MMU. When measured with a calibrated anemometer only
10,703 cfm of air is present at the intake side of the pillar line.
Page 9 of the approved plan, dated [May 10, 2010], states that a
minimum of 13,000 cfm of air will be maintained at the intake side
of the pillar line. This mine is on a 103(i) 10 day spot with a
history of liberating in excess of 500,000 cubic feet of methane in
a 24 hour period. This inadequate ventilation exposes the miners
who work on this section, three shifts per day five to six days per

36 FMSHRC Page 3237

week, to the hazards associated with the buildup of methane.
[Section] 75.370(a)(1) was cited 50 times in two years at [the Van
Lear Mine] (50 to the operator, 0 to a contractor).
(Ex. G–6.) Stiltner designated the citation as S&S and indicated that five miners were likely to be
affected. (Id.) He also characterized Respondent’s negligence as “moderate” in this case. (Id.)
Stiltner suggested that the foreman might have been able to feel the difference between 13,000
c.f.m. and 10,703 c.f.m. (Tr. 119:9–16, 143:7–144:14.) However, Stiltner did not know how long
this condition existed. (Tr. 117:21–118:3.) Excel again tightened ventilation curtains and the
citation was abated thirty minutes after being issued. (Tr. 118:2–4, 119:17–120:6, 134:17–
137:21, 144:22–146:18; Ex. G–6.)
IV. PRINCIPLES OF LAW
A.

Significant and Substantial

A violation is S&S “if, based on 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).
To establish an S&S 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 in question will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted);
see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135–36 (7th
Cir. 1995) (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc. v. Sec’y of
Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria).
The Commission has also provided guidance to Administrative Law Judges in applying
the Mathies test. The Commission indicated that “an inspector’s judgment is an important
element” in an S&S determination. Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC
at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (stating that ALJ did not abuse discretion
in crediting opinion of experienced inspector). The Commission has also observed that “the
reference to ‘hazard’ in the second element is simply a recognition that the violation must be
more than a mere technical violation—i.e., that the violation present a measure of danger.”
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984) (emphasis added) (citing Nat’l
Gypsum, 3 FMSHRC at 827). Moreover, the Commission clarified “the correct inquiry under the
third element of Mathies is whether the hazard identified under element two is reasonably likely
to cause injury.” Black Beauty Coal Co., 34 FMSHRC 1733, 1742 n.13 (Aug. 2012). Finally, the
Commission has specified that evaluation of the reasonable likelihood of injury should be made
assuming continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

36 FMSHRC Page 3238

B.

Negligence

Although the Secretary’s part 100 regulations are not binding on the Commission, the
Secretary’s definitions of negligence in those provisions are illustrative. According to the
Secretary, 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). These standards indicate that high negligence is found where “[t]he
operator knew or should have known of the violative condition or practice, and there are no
mitigating circumstances.” Id. at Table X. Moreover, the standards prescribe moderate
negligence where “[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” Id. Finally, low negligence is found where
“[t]he operator knew or should have known of the violative condition or practice, but there are
considerable mitigating circumstances.” Id.
C.

Penalties

Although the Secretary proposes penalties, the Commission assesses penalties for
violations of the Mine Act de novo. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May
2000). When assessing a civil penalty, section 110(i) of the Mine Act requires that I consider six
criteria, including: the operator’s history of previous violations, the appropriateness of the
penalty relative to the size of the operator’s business, the operator’s negligence, the penalty’s
effect on the operator’s ability to continue business, the gravity of the violation, and the
demonstrated good faith of the operator in attempting to achieve rapid compliance. 30 U.S.C.
§ 820(i). The criteria are not required to be given equal weight. Jim Walter Res., Inc.,
36 FMSHRC 1972, 1979 (Aug. 2014).
V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW
A.

Citation No. 8258130

As explained above, Inspector Hamilton issued Citation No. 8258130 as the result of
conditions he identified during his January 24, 2011, inspection of the Van Lear Mine. See
discussion supra Part III.C.1. Although Excel admitted that the cited conditions were a violation
of 30 C.F.R. § 75.370(a)(1), Respondent contends that the Secretary has not satisfied his burden
of proving his allegations regarding gravity and negligence. See discussion supra Part II.
1. Gravity and S&S
The Secretary contends that he has satisfied all four elements of the Mathies’ test for
S&S. (Sec’y Br. at 8–9.) Respondent does not dispute the fact of violation or seriousness of the
8

8

Although Inspector Hamilton included methane ignition as a hazard in the “Condition
or Practice” narrative of Citation No. 8258130 (Ex. G–1), his testimony made only passing
reference to methane ignition. (Tr. 22:13–20, 82:17–83:1.) Instead, he focused on dust exposure
as the hazard with which he was most concerned. (See Tr. 40:14–16, 78:23–79:2.) Similarly, the
(continued…)

36 FMSHRC Page 3239

injury that is likely to result from prolonged exposure to respirable dust. (Resp’t Br. at 8.)
Accordingly, Excel admits that Mathies’ first and fourth elements have been satisfied. (Id.)
However, Respondent claims that the Secretary has not met his burden of proving that the
violation contributed to a discrete safety hazard. (Id. at 9–11.) In the alternative, Excel also
argues that the Secretary has not demonstrated that the discrete safety hazard is reasonably likely
to result in an injury. (Id. at 11–15.) Given the evidence before me, I determine that the Secretary
has satisfied his burden of proof on both the second and third Mathies’ elements.
First, the record in this case demonstrates that Excel’s violation of its ventilation plan
contributed to a discrete safety hazard. Inspector Hamilton specifically identified dust exposure
as the hazard to which Excel’s violation would contribute. (Tr. 40:14–16, 78:23–79:2) When
Hamilton arrived on Panel 6, he observed the operator of the continuous mining machine
surrounded by visible dust. Further, the machine operator was not wearing a respirator or dust
mask, which meant that he was breathing in the dust surrounding him. Although Hamilton did
not take bottle samples of the dust he observed, he credibly testified that the sandstone roof
would provide a source of quartz, which is a source of hazardous respirable dust.9 As the
operator cut into the top of the coal pillar, Excel’s violative and insufficient air flow would allow
dust to continue to collect around the miner. Indeed, Hamilton credibly testified that the low air
velocity increased the amount of dust flowing over the machine operator. (Tr. 77:14–19.)
Hamilton is also an experienced inspector and miner. (Tr. 16:17–18:15.) As mine
foreman and section boss, Hamilton had been responsible for ventilation and the safety of miners
underground. (Tr. 17:7–18:1.) Thus, his opinion is entitled to significant weight. See Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278–79 (Dec. 1998) (relying on the opinion of an
experienced inspector to conclude that substantial evidence supported an ALJ’s S&S
determination). Accordingly, I determine that Excel’s violation of its ventilation plan contributed
to the hazard of respirable dust inhalation.
Second, the record before me also demonstrates that this dust hazard was reasonably
likely to result in an injury. Hamilton credibly testified that brief exposure to respirable dust
8

(…continued)
Secretary in his posthearing brief claims this violation “contributes to the discrete safety hazard
of allowing the accumulation of respirable dust and harmful gases, such as methane” but focuses
solely on dust exposure in discussing the reasonable likelihood of reasonably serious injury.
(Sec’y Br. at 8–9.) Accordingly, my analysis will focus on the dust exposure hazard.
9

In Excel’s posthearing brief, the operator notes that the dust Inspector Hamilton
observed “came from cutting in the mine floor, not the mine roof where quartz can be found.”
(Resp’t Br. at 11.) Thus, Respondent claims that “the continuous miner was not cutting an area
that generally exposes quartz, and any testimony that they would eventually cut into quartz is
purely speculative.” (Id.) Nevertheless, it is uncontroverted that the sandstone roof at the Van
Lear Mine contained quartz, and Hamilton credibly testified that Respondent would eventually
cut into the roof as it continued to mine the pillars in Panel 6. Indeed, Excel did not dispute that it
intended to mine the top portion of the coal pillar that abutted the sandstone roof. Thus, Excel
would have cut into the mine’s sandstone roof in the course of continued mining operations.

36 FMSHRC Page 3240

contributes to black lung disease and silicosis. He also indicated that the low air velocity and
presence of dust surrounding the machine operator made this hazard reasonably likely to result in
injury. In contrast, Excel argues that “[t]he nature of the retreat mining process makes it
impossible to sustain this exposure to the degree that it is reasonably likely illness will occur.”10
(Resp’t Br. at 12.) Yet in the context of respirable dust hazards, the Commission has not cast the
reasonable likelihood of injury analysis in durational terms. Consolidation Coal Co., 8 FMSHRC
890, 894–99 (June 1986) [hereinafter “Consol I”], aff’d, 824 F.2d 1071 (D.C. Cir. 1987); see
also Oxbow Mining LLC, 35 FMSHRC 932, 947 & n.3 (Apr. 2013) (ALJ) (citing Air Quality
Standards for Abrasive Blasting and Drill Dust Control, 59 Fed. Reg. 8318, 8319 (Feb. 18, 1994)
(indicating in preamble that inhalation of relatively small amounts of freshly fractured silica
particles may contribute to the development of acute silicosis)); Pine Ridge Coal Co., 34
FMSHRC 291,304 (Jan. 2012) (ALJ) (discussing “the nebulous, progressive nature of black lung
disease . . . .”). In fact, in the context of dust sampling standard violations, the Commission has
adopted a presumption that respirable dust hazards are reasonably likely to result in injury,
regardless of the duration of exposure. Consol I, 8 FMSHRC at 894–99; Consolidation Coal Co.,
17 FMSHRC 250, 254 (Mar. 1995) [hereinafter “Consol II”] (“To the extent the judge suggested
that short periods of exposure to respirable dust are exempt from the presumption . . . we agree . .
. that he erred.”).
Although the Commission has not extended a comparable presumption in the context of
respirable dust hazards arising out of ventilation plan violations, the direct and indirect evidence
before me demonstrates that the respirable dust hazard was reasonably likely to result in injury in
this case. The machine operator was engulfed in a cloud of dust, yet he did not wear a respirator
or mask. The sandstone roof contained quartz. Brief exposure to dust containing quartz and silica
contributes to silicosis. In the course of continued mining operations, these conditions were
reasonably likely to continue. Accordingly, I determine that Mathies’ fourth element has been
satisfied.
Based on the forgoing, Excel’s admissions and the record before me have satisfied each
of the four elements of Mathies. Thus, I conclude that Citation No. 8258130 was appropriately
designated as S&S.

10

Excel also claims that the ventilation controls would have been removed after
Respondent completed retreat mining in Panel 6. (Resp’t Br. at 14.) Thus, Respondent argues,
“[t]here is no reason to assume that, upon completing advance mining in a new panel, similarly
faulty controls would be established in the next retreat mining process.” (Id.; see also Resp’t
Reply Br. at 6–7 (suggesting “[a]n analysis of continued normal mining operations should not
unequivocally assume the condition would exist in perpetuity.”) However, the Commission has
declined to assume or infer that the violative condition would be abated in continued mining
operations. See, e.g., McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991 (Aug. 2014); Knox
Creek Coal Corp., 36 FMSHRC 1128, 1140–41 (May 2014); Gatliff Coal Co., Inc., 14
FMSHRC 1982, 1986 (Dec. 1992); U.S. Steel Mining Co., 6 FMSHRC at 1574.

36 FMSHRC Page 3241

2.

Negligence

Here, Respondent has admitted that it violated the May 10 Plan because it did not provide
the required air velocity at the continuous miner, and I have concluded that Citation No. 8258130
was properly designated as S&S. Moreover, the Mine Act is a strict liability statute. Regardless
of whether a miscommunication occurred, Excel had a duty to comply with its ventilation plan
under section 75.370(a)(1). Thus, Respondent reasonably should have known of the violative
condition. That condition also presented a danger to Excel’s miners. Accordingly, I determine
that Respondent’s failure to fulfill its duties, thus exposing its miners to dust inhalation dangers,
constitutes negligent conduct. Nevertheless, the Secretary has the burden of proving
Respondent’s level of negligence. See 30 C.F.R. § 100(d) at Table X (indicating that an
operator’s level of negligence turns not only its reason to know of the violative condition, but
also any mitigating factors).
In this unusual case, I am presented with arguments for three different levels of
negligence: low (Excel); moderate (Inspector Hamilton); and high (the Secretary). Here,
Inspector Hamilton initially marked this citation as resulting from Excel’s moderate negligence.
However, the Secretary has asked that I increase the level of negligence from moderate to high.
See discussion supra note 4. In support of his allegations, the Secretary claims the section
foreman should have taken an air reading before allowing the mining machine operator to begin
his pillar cut and notes that the foreman admitted he had not done so. (Sec’y Br. at 9–10.) Thus,
the Secretary suggests the foreman’s “awareness of his own inaction and willingness to subject
the miner to the, at the time, unknown danger of deficient ventilation demonstrated an absence of
mitigating circumstances.” (Id. at 9–10.) In other words, the Secretary appears to imply
indifference on the part of the section foreman. Cf. San Juan Coal Co., 29 FMSHRC 125, 136
(Mar. 2007) (suggesting that high negligence often correlates with unwarrantable failure); see
also Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (noting that
unwarrantable failure includes indifference, serious lack or reasonable care, reckless disregard,
and intentional misconduct.)
Conversely, Excel contends its conduct in this case constituted a low level of negligence.
Excel disputes that it had reason to know the air velocity at the continuous mining machine was
insufficient. (Resp’t Br. at 15.) Instead, Excel claims this failure resulted from a
“miscommunication between the section foreman and the miner operator.” (Resp’t Reply Br.
at 2.) Further, Respondent notes that Inspector Hamilton provided no indication regarding the
duration of the violative condition. (Resp’t Br. at 15–16.) Excel therefore characterizes the
foreman’s failure to take an air reading prior to the beginning of the pillar cut as inadvertent.
(Resp’t Br. at 15; Resp’t Reply Br. at 2–3.)
Based on the record before me, three factors convince me that Excel’s conduct is
consistent with a low level of negligence. First, the Secretary’s evidence falls well short of
demonstrating the indifference the Secretary suggests in his posthearing brief. Inspector
Hamilton testified that the machine operator told him that he did not take an air reading because
he believed the mine foreman had taken one. In addition, Hamilton indicated that when he
himself worked as a section foreman, he had been trained to take readings prior to every cut of
coal to ensure that he had sufficient air velocity. Thus, the Secretary infers indifference from the

36 FMSHRC Page 3242

section foreman’s failure to take an air reading before the cut began. Although such a policy
might be one effective method to ensure compliance with a ventilation plan, Hamilton admitted
that section 75.370(a) did not require the section foreman to take an air reading at the beginning
of every cut. (Tr. 54:22–55:19.) Moreover, Inspector Hamilton admitted that he did not know
Excel’s practices and policies. (Tr. 80:21–81:11.) Without those details, the Secretary falls short
of his suggested inference. Perhaps the machine operator—rather than the section foreman—
ordinarily measures the air velocity, but failed to do so in this case because he misunderstood his
foreman. Perhaps the section foreman expected the machine operator to take an air reading.
Hamilton is an experienced miner, but here he simply did not provide a basis to infer
indifference on the part of the section foreman.
Second, Excel’s history of 30 C.F.R. § 75.370(a)(1) violations in the previous two years
(Tr. 46:15–18, 73:12–15) does not support an inference that the section foreman was indifferent.
Inspector Hamilton could not provide any details regarding any of those prior citations or explain
any similarities to Citation No. 8258130. (Tr. 71:2–73:11.) The Secretary need not provide
voluminous details regarding these previous ventilation plan violations, but merely highlighting
past violations of this far-reaching standard does not suggest to me a lack of concern for the
machine operator’s safety in this case. I also note that Citation No. 8252975, which is the other
citation involved in this docket, occurred the same day on the same section. That violation of the
ventilation plan also required Excel to tighten its ventilation curtains. See discussion supra Part
III.C.2. Although I understand the Secretary’s concern that two separate violations of the May 10
Plan occurred on Panel 6 at the roughly the same time, neither inspector linked the violations in
their testimony. Without more, it is unclear why this temporal link alone should demonstrate the
section foreman’s disinterest in the safety to Excel’s miners. Under the circumstances, I cannot
determine that the section foreman’s action or inaction constituted indifference to the
endangerment of the machine operator. Thus, the Secretary has not shown that Excel’s level of
negligence was high.
Third, the Secretary’s inability to demonstrate either the duration or extent of the
ventilation problems on Panel 6 significantly mitigates Excel’s reason to know of this violation.
Cf. 30 C.F.R. § 100.3(d) at Table X (suggesting “low” negligence is appropriate where the
mitigating circumstances are “considerable.”) Indeed, Hamilton found no indication in Excel’s
preshift reports that Panel 6 had previously experienced any ventilation problems. (Tr. 54:12–
21.) Further, he could not identify which ventilation curtains were adjusted to abate the violation.
(Tr. 52:6–8, 64:20–65:17, 74:6–12.) However, Hamilton indicated that in underground coal
mining it is common for ventilation to leak air and to require adjustment. (Tr. 52:18–53:7.)
Despite the significant hazard this condition presented, I recognize that mining conditions
change rapidly. At times, such dynamism may allow methane to accumulate quickly. See
discussion infra Part V.B.1. In this context, however, the potentially brief duration significantly
mitigates Respondent’s reason to know of the violative condition. Further, the adjustment of the
ventilation curtains appears to be a somewhat common event in underground coal mining, and
Excel restored the required ventilation within ten minutes. Accordingly, these minor adjustments
also mitigate Excel’s reason to know of the violation.

36 FMSHRC Page 3243

Notwithstanding the danger the cited condition presented, in light of the seemingly brief
duration and minor extent, I conclude that Excel’s conduct constituted a low level of negligence,
and Citation No. 8252975 is MODIFIED to change the cited level of negligence to low.
B.

Citation No. 8252975

While Inspector Hamilton conducted his inspection of Panel 6 that led to his issuance of
Citation No. 8258130, his colleague Inspector Stiltner simultaneously inspected the left side of
Panel 6. See discussion supra Part III.C.2. Stiltner likewise identified a violation of 30 C.F.R.
§ 75.370(a)(1) and issued Citation No. 8252975. Excel again admitted that the cited conditions
constituted a violation of its ventilation plan, but Respondent again contends that that Secretary
has not satisfied his burden of proving his gravity and negligence allegations. See discussion
supra Part II.
1.

Gravity
a.

S&S

The Secretary claims in his posthearing brief that potential sources of methane and
ignition sources on Panel 6 demonstrate that Citation No. 8252975 was S&S. (Sec’y Br. at 14–
16.) Specifically, the Secretary notes that methane could accumulate quickly on Panel 6 because
the Van Lear Mine was a gassy mine. (Id. at 15–16.) The Secretary also suggests that methane
may collect in the gob areas and leak back onto the panel if Excel did not provide adequate
ventilation. (Id.) Finally, the Secretary claims that the continuous miner and shuttle cars provided
ignition sources. (Id. at 16.)
Although Respondent concedes that the first, second,11 and fourth elements of the
Mathies test have been satisfied, Excel argues that the Secretary has not satisfied his burden of
proving that the methane explosion hazard was reasonably likely to cause injuries. (Resp’t Br.
11

Respondent also claims the record is “devoid of any indication as to why [the low air
volume] was likely to cause injury.” (Resp’t Br. at 20.) Respondent’s argument seems to conflate
the second and third elements of Mathies. The question before me under Mathies’ third element
is whether a methane accumulation hazard—rather than the insufficient air—is reasonably likely
to result in reasonably serious injuries. See discussion supra Part IV.A. Nevertheless, I note that
ventilation plans set forth minimum requirements and that Excel provided only 82% of the
minimum required air on the section. (See Resp’t Br. at 20–21 & n.6.)
I recognize that it might be possible to imagine a scenario where the air volume falls short
by such an incremental margin as to have a de minimis impact on the S&S analysis. Yet, a nearly
twenty percent shortfall of the minimum requirement is no such minor misstep. The plan’s
minimum air volume was intended to sweep methane and harmful gases away from the working
section and through the gob. It also helped ensure methane and gases did not seep back onto the
section. Notwithstanding the concessions in Excel’s posthearing brief—and to the extent that
Respondent’s argument might be construed as an argument regarding Mathies’ second
element—I therefore determine that the violation of the ventilation plan contributed to a discrete
safety hazard.

36 FMSHRC Page 3244

at 16–22.) First, Excel notes that no methane was present at the time of the inspection and
disputes whether a roof fall would force methane out of the gob and into the working area. (Id. at
18–19.) Second, Excel argues that the Van Lear Mine liberated less methane during the retreat
mining of Panel 6 than it did during advance mining. (Id. at 21–22.) Respondent therefore
surmises that the confluence of factors do not demonstrate that a methane ignition hazard was
reasonably likely to result in injury. (Id. at 22.)
Looking at the evidence before me, it is uncontroverted that sparks from the continuous
mining process would provide an ignition source. Thus, this case turns on whether methane gas
would be present in the course of continued mining operations. As the Secretary notes, the Van
Lear Mine is a gassy mine that liberated more than 500,000 cubic feet of methane every twentyhour hours. Indeed, the high levels of methane liberation at Van Lear prompted MSHA to
perform spot inspections at the mine every ten days.
Furthermore, MSHA required the mine to provide ventilation pressure through the gob
area and out of the bleeder system to prevent accumulation of methane in the gob. Regardless of
what air pressure must be maintained at the back side of the gob and bleeder blocks, Excel fell
well short of the 13,000 c.f.m. required on the working section. Insufficient air pressure through
the gob would allow methane to accumulate in the course of continued mining operations. If a
roof fall occurred in the gob area, some of that methane might be forced back on to the working
section. As Stiltner explained, the minimum requirements of a ventilation plan are critical: “If
[10,000 c.f.m. were enough air], they would probably have 10,000 in their plan. So there was a
reason it was 13,000. It was either the mine being on the [ten-day] spot or a history of
methane. . . . So evidently, 10[,000] wasn’t enough.” (Tr. 117:16–20.)
In addition, I accord little weight to Mine Engineer Arrington’s testimony that the pillars
removed in retreat mining liberate smaller amounts of methane because some of the pillars’
methane has escaped as the advance mining process bored deeper into the mine. (Tr. 176:17–
177:8, 178:21–179:10.) Although Stiltner agreed that methane would continue to escape from the
coal pillars as the operator advanced (Tr. 153:25–154:22), neither Arrington nor Stiltner
quantified, either in terms of cubic feet or percentages, the amount of methane that would
dissipate from the coal pillars between the advance mining and retreat mining phases. Without
that critical detail, I have no basis to infer that the Van Lear mine’s retreat mining panels were no
longer “gassy.” Moreover, Arrington did not address Stiltner’s testimony that a roof fall in the
gob area could force methane back onto the working section, providing fuel for an ignition.
Here, the Secretary has demonstrated that ignition and methane sources would be present
in the course of continued mining operations. In light of the record and confluence of factors
before me, I determine that a methane ignition hazard was reasonably likely to cause injuries in
the course of continued mining operations, which satisfies Mathies’ third element. Given Excel’s
concession of the remaining elements of the Mathies test, I therefore conclude that Citation No.
8272975 was properly designated as S&S.
b.

Number of Miners Affected

The Secretary claims that the deficiency in airflow affected the safety of all five miners
on the 007 MMU because the intake air was used to ventilate the whole section and miners work

36 FMSHRC Page 3245

in close proximity during retreat mining. (Sec’y Br. at 17.) In contrast, Excel contends that the
violative condition did not affect five miners and asks that I reduce the number of miners from
five to two.12 (Resp’t Br. at 23.) Looking at the evidence before me, I note that two of the
members of the 007 MMU were located in the No. 3 Entry as the miner prepared to cut in the
No. 2 Entry. However, Stiltner specifically testified that miners work in close proximity during
the retreat mining phase. (Tr. 112:8–13.) In light of the record, I determine that these miners
would have returned in close proximity to the continuous mining machine in the course of
continued mining operations. Accordingly, I conclude that Citation No. 8252975 would affect
five miners.
2.

Negligence

The Secretary’s argument in this case reiterates his negligence theory for Citation No.
8258130: Excel was negligent because the section foreman or miner was responsible for taking
air readings during his preshift examination, but failed to do so. (See Sec’y Br. at 17.) Yet, unlike
Citation No. 8258130, the Secretary characterizes Respondent’s negligence in this case as
“moderate” rather than “high.”
Given the similarities between the cases, it is unclear why the Secretary’s theory leads to
different results for the two violations before me. As with Citation No. 8258130, I have
concluded that Citation No. 8252975 was appropriately designated as S&S in the context of
continued mining operations. Like his colleague, Inspector Stiltner was unable to describe
similarities between Citation No. 8252975 and any of those violations. (Tr. 139:25–141:2,
120:22–121:6, 134:17–21, 135:8–12, 146:2–146:8.) Stiltner also admitted that that he did not
know how long the violative condition existed and could not describe the details of the curtain
adjustments Excel made on Panel 6. (Tr. 141:7–142:2.) Finally, those curtain adjustments were
completed in just a half-an-hour, which suggests they were not extensive.
In light of the record before me and similarities between the cases, I again conclude that
Excel’s level of negligence was low. Excel has a duty to maintain the required air velocity, and
Respondent was negligent in failing to ensure it had the required air coursing through this section
before mining. Nevertheless, the Secretary has provided no evidence describing that these
conditions existed for a significant amount of time or extended across a large portion of Panel 6.
He also presented no evidence regarding Respondent’s air measurement policies or linking the
present violation to any of the fifty previous ventilation plan violations at the Van Lear Mine.
Finally, Respondent was able to restore the required air flow in just thirty minutes. Accordingly,
the apparent short duration and limited extent of the ventilation failure on Panel 6 significantly
12

Respondent also claims in its posthearing brief that the two shuttle car operators would
have never been in close proximity to the continuous miner at the same time because they took
turns loading coal at the miner and dumping it at the belt feeder. (Resp’t Br. at 23.) Yet Excel
provides no support in the record for that claim. I note that two company representatives—Curtis
Webb and Mike Hurley—travelled with Inspectors Stiltner and Hamilton on January 24. Perhaps
Webb and Hurley would have provided evidence to support this position, but neither appeared at
the hearing. Instead, Excel only presented testimony from Mine Engineer Arrington, who was
not on Panel 6 that day and provided no evidence regarding the number of miners that would be
affected.

36 FMSHRC Page 3246

mitigates Respondent’s negligence in this case. 30 C.F.R. § 100.3(d) at Table X (suggesting
“low” negligence is appropriate where the mitigating circumstances are “considerable.”)
Based on the above, I determine that Excel’s conduct constituted “low” negligence, and
Citation No. 8252975 is MODIFIED to change the cited level of negligence to low.
C.

Penalty Assessment

Turning to the six penalty factors specified in section 110(i) of the Mine Act, I note that
Excel has stipulated that the proposed penalty would not affect its ability to remain in business.
(Ex. J–1 at 2.) Moreover, nothing in the record suggests the proposed penalties are inappropriate
for the size of the mine, and I also note that Respondent promptly abated each citation in good
faith. Although I have affirmed the Secretary’s gravity determinations, I have modified each
citation to reduce Excel’s level of negligence to “low.” Finally, the Secretary’s Assessed
Violation History Report lists 37 final citations or orders within the previous fifteen months at
the Van Lear Mine that involved 30 C.F.R. § 75.370(a)(1). Of those final citations and orders,
only six were designated as S&S.
I recognize that the Secretary has proposed special assessments of $13,600.00 and
$11,500.00, respectively, for Citation Nos. 8258130 and 8252975. However, the Secretary’s
proposed penalties are not binding upon me. I also recognize that both violations exposed
Excel’s miners to serious dangers. Had the Secretary demonstrated the substandard air velocity
existed for a significant amount of time or required major efforts to restore the required air flow,
had resulted from poor internal policies at Excel, or had been a recurring problem at the Van
Lear Mine, I might have been inclined to affirm his negligence determinations and, therefore, his
proposed penalties. However, I note that the Secretary presented no evidence demonstrating the
duration or extent of the conditions in question. Likewise, he provided no evidence suggesting
Respondent’s policies led to the low air velocity or that low air velocity at the miner or in the
intake entry was an on-going problem at the mine. As I noted, conditions often change rapidly in
an underground mine. Given this rapidly changing environment, even a fastidious operator may
sometimes fail to provide the air velocities required under their plans. The Mine Act is a strict
liability statute, and this dynamic environment does not excuse those failures. However, I have
determined Respondent’s negligence to have been low. I therefore determine that a penalty of
$4,000.00 for each violation is appropriate based on the six section 110(i) factors.

36 FMSHRC Page 3247

VI. ORDER
In light of the foregoing, I hereby ORDER that Citation Nos. 8258130 and 8252975 are
AFFIRMED as S&S and MODIFIED to reduce the level of negligence from “moderate” to
“low.” Excel Mining, LLC is ORDERED to PAY a civil penalty of $8,000.00 within 40 days of
this decision.

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge

Distribution:
Anthony M. Berry, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue
North, Suite 420, Nashville, TN 37219
Tyler H. Fields, Esq., Excel Mining, LLC, 1146 Monarch Street, Lexington, KY 40513
/pjv

36 FMSHRC Page 3248

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

December 5, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2013-526-M
A.C. No. 24-02016-314135

v.
PORTABLE, INC.,
Respondent

Mine: Wash Plant

DECISION
Appearances:

Ronald Gottlieb, Esq., Office of the Solicitor, U.S. Department Labor,
Denver, Colorado for Petitioner
Donna Pryor, Esq., Breyana Penn, Esq., Jackson Lewis P.C., Denver,
Colorado for Respondent

Before:

Judge Moran

This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
The
Secretary’s petition alleges that an MSHA Inspector, who was at Portable’s Mine for the purpose
of conducting an inspection, was refused entry for a period of time in that the start of MSHA’s
inspection was delayed by approximately one-half hour. The delay stemmed from the operator’s
claim that a safety escort was needed to accompany the Inspector. As a consequence of the delay,
MSHA contends that Portable unreasonably delayed the inspection, in violation of section 103(a)
of the Mine Act, 30 U.S.C. § 813(a). As an alternative theory of liability, the Secretary asserts
that Portable violated section 103(a)’s prohibition against giving mine personnel advance notice
of an inspection. A hearing was held in Bozeman, Montana and both parties submitted posthearing briefs. For the reasons which follow, the Court, finding that neither theory of liability
was established by a preponderance of the evidence, vacates the citation and dismisses the
matter.

36 FMSHRC Page 3249

Findings of Fact and Conclusions of Law
Portable, Inc., a subsidiary of Kenyon Noble Ready Mix, is a small, six employee, sand
and gravel operation. Tr. 20, 164. It extracts aggregate from the ground and transfers that
material with a loader to a crusher, which then sizes the material, according to the product
needed. Tr 165. After being sized, the product is placed onto a conveyor belt where it is sent to
the wash plant. From there, as a final step, a loader places the product in its designated pile. Id.
Portable’s products are sold to the public and to Kenyon Noble Ready Mix, for concrete. Tr. 20,
165.
On August 16, 2012, MSHA’s Dennis Bellfi1 arrived at Portable to perform a general
inspection. Tr. 19. At that time Bellfi’s usual job was as an MSHA conference and litigation
representative (“CLR”) out of Denver, Colorado, but he was asked by the Montana area MSHA
office to temporarily help that office with its required inspections. Tr. 19. Five of Portable’s six
employees were working at the mine on the day of the inspection. Tr. 164.
According to his testimony, Inspector Bellfi stated that when he arrived at Portable on
that date, he proceeded past a small entry gate. He then flagged down a loader operator, who was
working at the wash plant, and inquired about where he could find the person in charge. Tr. 2021. As Bellfi was speaking with the loader operator, laborer Kevin Bright joined them and the
Inspector again asked where to find the person in charge. Tr. 21. Mr. Bright told the Inspector
that Scott Miller, the general manager, was not on site. Bellfi stated that Bright then proceeded to
the front office and returned 5 to 7 minutes later, explaining to him that the Inspector needed to
sign in at the front office and that someone would then accompany him on the inspection. Tr. 22.
Bellfi, while maintaining that he did not need to sign in, agreed to go to the front office to obtain
an escort. Tr. 22.
Bellfi testified that, once at the office, he spoke with Eric Edwards, an employee of
Kenyon Noble Ready Mix, who asked him to sign in as a visitor. Tr. 23, 141. Inspector Bellfi
refused since, as a matter of practice, he did not consider himself to be a visitor. Tr. 23, 58-59,
68. Mr. Edwards then told him that, for safety reasons, it was company policy to escort any
visitor. Tr. 24. Edwards did not provide the Inspector with any estimate of how long it would
take to locate an escort. Tr. 24. Inspector Bellfi told Edwards that he knew how to be safe in the
mine and that he was ready to begin his inspection. Tr. 24-25. However, the Inspector did not, at
that time, tell Edwards that he had the right to inspect the mine without an escort, nor did he
advise that a citation could be issued for denying him access to the mine. Tr. 54, 55. Bellfi stated
that Edwards then explained to him that Jennifer Rather,2 the Safety Director, was doing payroll
at the corporate office and would get to the mine when she was able. Tr. 25.
1

Inspector Bellfi has been an MSHA conference and litigation representative for over 2
years. Prior to that, he was an MSHA mine inspector for about 5 years, performing close to 300
inspections. Tr. 17.
2

Ms. Rather is employed by several companies, including Portable, Kenyon Ready Mix
and other companies, all in the capacity as a human resources and safety director. She has been
employed by these companies for 15 years. Tr. 162.

36 FMSHRC Page 3250

Bellfi stated that he then told Edwards that the longer it took to obtain an escort, the more
inclined he was to issue a citation for impeding the inspection. Tr. 25-26. However, Bellfi then
told Edwards that he would “go ahead and wait downstairs for [Edwards] to get an escort.” Tr.
26. He then related that 5 to 10 minutes later, Edwards informed him that they were having
trouble locating someone to escort him and that they were going to shut down the crusher3 so
that the crusher operator, Tom Hamilton, could accompany him. Tr. 26-27. Bellfi stated that he
repeated that the longer he had to wait, the more inclined he was to issue a citation for impeding
the inspection. Tr. 27. Approximately 20 minutes later, Edwards came back and it was then that
he informed Edwards that he had waited “longer than necessary” and that he was going to issue a
section 103(a) citation for impeding his inspection. Tr. 27. Edwards’ response was that Ms.
Rather advised that the Inspector could start his inspection by himself. Tr. 27, 43-44, 103.
Based on those events, Citation No. 8587084 was issued on August 16, 2012 by Inspector
Bellfi, pursuant to section 104(a) of the Mine Act. The citation alleges a violation of section
103(a) of the Act, which requires the Secretary to make frequent inspections and investigations
of mines. In doing so, the Secretary is not required to provide advance notice and has the right of
entry to, upon, or through any mine. The violation was described in the citation as follows:
On 08/16/2012[,] the dispatcher and Tom Hamilton, Crusher Operator and person
in charge at the mine[,] refused to allow Dennis Bellfi, an authorized
representative of the Secretary, entry into the Portable Inc. Wash Plant Mine for
the purpose of conducting an inspection of the mine pursuant to Section 103(a) of
the Act. Tom Hamilton[,] via the dispatcher[,] stated that the Federal Inspector
could not enter the mine without being escorted by a company official. No
company official was provided and thus delayed the inspection. After waiting 30
minutes[,] this inspector was advised by Jennifer Rather, Safety Director[,] via the
dispatcher that the inspection could commence without [an] escort. This condition
has not been designated as “significant and substantial” because the conduct
violated a provision of the Mine Act rather than a mandatory safety or health
standard.
Ex. S-2.
Bellfi determined that there was no likelihood the violation would result in illness or
injury, that such injury or illness could reasonably be expected to result in no lost workdays, that
no persons were affected, but that the negligence level was deemed to be high. The Secretary
proposed a specially assessed penalty of $1,000.00.
Inspector Bellfi informed that, prior to becoming a CLR, when he used to conduct MSHA
mine inspections on a full-time basis, he would generally wait about 5 minutes for an escort. Tr.
19, 53. If an escort was not present within that period of time, Bellfi would begin the inspection
and tell mine personnel that the escort could meet up with him. Tr. 19, 54. The Inspector advised
3

Shutting down the crusher concerned Bellfi because he preferred to view the mine while
it was operational. Tr. 50-51. However, Bellfi did not express this concern to Edwards or any
other Portable employee. Id.

36 FMSHRC Page 3251

that he was trained to allow time for an operator to get a mine representative to accompany him
during an inspection, as long as doing so did not unduly delay the inspection. Tr. 39. It was
Bellfi’s view that Portable was in violation of section 103(a) of the Act because it refused to
allow him to inspect the mine by telling him that he needed an escort to enter mine property, then
failing to provide one for 30 minutes, before then allowing him to begin his inspection without
an escort. Tr. 39-41. He considered these actions to be an indirect denial of the inspection. Tr.
81; Ex. R-17. Bellfi believed that other employees, besides Hamilton and Rather, could have
escorted him, though he did “suppose” that an operator could designate the escort. Tr. 41, 57. On
cross-examination Inspector Bellfi admitted that he never explained to Eric Edwards, or to
anyone at Portable, that there are inspection requirements under 103(a). Tr. 55.
Bellfi started his inspection once Edwards told him he could start alone and he was joined
by Mr. Hamilton, the crusher operator, approximately 10 to 20 minutes later. Tr. 28, 31. It was
the Inspector’s testimony that during his inspection he noticed “that there were guards that had
had different types of [ ] bolts in the guarding.” Tr. 29. There were four or five clean, shiny, new
washers and bolts next to rusted bolts and washers on different areas on different screens or
guards. Tr. 30. He was unsure how long they had been there, but when pressed, he added that it
could have been “[a] couple of days to a week.” Tr. 30. Bellfi also observed one berm on the
crusher feed ramp that had, what he assumed was new dirt, piled on the edge of it. Tr. 32. He
estimated the area of the fresh dirt to be about 10 to 15 feet across and that it had been placed
there within the hour based on the fact that it looked wet.4 Tr. 34. However, Inspector Bellfi did
not include the berm or bolt and washer observations in his notes on the day of the inspection,
assertedly because he did not think it was an issue at the time. Tr. 77. It was not until after the
inspection that Bellfi determined that such safety corrections could have been made during the
time that he was waiting for an escort. It was such afterthoughts that prompted MSHA’s
alternative theory of liability, that Portable gave advance notice of the inspection.
As noted, the Inspector raised two grounds, new bolts and fresh berm dirt, in support of
the claim of advance notice.5 The Inspector acknowledged that he arrived for his inspection of
the mine in the afternoon. Tr. 80-81. He claimed that the dirt moved on to the berm could have
occurred after his arrival. He admitted that it is not normal practice to change bolts or washers on
a crusher while it is running. Further, he did not ask anyone during his inspection when the bolts
and washers were last changed, nor did he ask for any maintenance records as a source for
indicating when maintenance was last done on the crusher. Similarly, he failed to ask anyone
during his inspection when the berms had been created. Tr. 86-87.
The Court noted that these matters were simply suspicions on the Inspector’s part, and
that the Inspector was unable to state definitively when those actions, regarding the berms and
the bolts, were taken. In fact, when that question was then expressly posed to the Inspector, he
conceded that he could not prove that either of the actions were taken during the interval in
which he was delayed. Tr. 90-93. Bellfi then acknowledged that the basis for his advance notice
4

Bellfi made the assumption that the dirt should have been dry and crusted on the top
because it was hot on the day of the inspection. Tr. 32.
5

As the Inspector issued his impeding notice before seeing the berm dirt and new bolts,
these contentions have relevance only to the claim of advance notice.

36 FMSHRC Page 3252

allegation was that Eric Edwards or Jenifer Rather had contacted Tom Hamilton. However,
based upon all the evidence of record, the Court does not agree that such an inference is fair.
The contact with Mr. Hamilton was simply for the purpose of finding an escort at Portable’s very
small operation. Tr. 51.
Curt Petty was the MSHA Field Supervisor6 of the Helena, Montana office at the time
that the citation was issued and in that capacity he considered himself Bellfi’s boss for the time
Bellfi was temporarily assigned to the Helena office. Tr. 119, 125. Inspectors working under
Supervisor Petty were instructed to call him before issuing a citation for impeding. Tr. 125, 133.
Inspector Bellfi admitted that he did not do that but he insisted that inspectors are only supposed
to contact their supervisors if they are denied entry after issuing a citation. Tr. 84, 85; Ex. R-22
at 39-40. Supervisor Petty testified that once the inspector explains to mine personnel that they
have the right to inspect the mine immediately, there is no timeline for issuing such an
impedance citation. The Court, wanting additional precision about this, asked if that meant that
once an inspector informs that there is a right to inspect, there is to be no delay and the inspector
should be permitted to begin his inspection immediately. Mr. Petty agreed with that description.
Tr. 120-21.
When asked to describe his experiences with waiting for mine representative
escorts, Supervisor Petty testified that he had conducted and been present for hundreds of
inspections, and for some of those he waited 30 minutes or longer for an escort and that he did
not issue a citation for impeding an inspection in any of those instances. Tr. 124, 132. He also
stated that he had inspected Portable twice in the past and had waited about 15 to 20 minutes for
Ms. Rather to meet him at the mine the first time. No citation was issued for impeding an
inspection then either.
Mr. Edwards, who Inspector Bellfi acknowledged was not an employee of Portable and
that he was untrained in MSHA standards, testified that he never asserted to Inspector Bellfi that
the property could not be inspected. Tr. 143-44, 147. Edwards stated that he called Mr.
Hamilton, who was operating the crusher at the time, to ask him to escort the Inspector and
called Ms. Rather to let her know that he was attempting to have Hamilton escort Bellfi. Tr. 147.
Edwards followed up with Hamilton 10 minutes later and Hamilton informed him that Richard
Van Dyke, the other crusher operator, was not on-site and therefore he had to shut the crusher
down. Tr. 148. Mr. Edwards maintained that, when he told the Inspector that Hamilton was
shutting the crusher down and would then escort him, Bellfi then wrote the citation. Tr. 148-49.
According to Edwards, Bellfi did not discuss his authority under section 103(a), prior to issuing
the citation. Tr. 149.
In the 15 years that Ms. Rather has worked for Portable she could not remember any
MSHA inspector that did not check in at the front office before conducting the inspection. Tr.
170-177. She explained that Portable’s policy is to have a representative accompany anyone
traveling on the mine site, including MSHA inspectors. Tr. 172-73. According to Ms. Rather, the
designated representatives allowed to escort MSHA inspectors are the managers, which consist
6

Petty has been with MSHA for 16 years, 12 of which were as a field supervisor and 4 of
which were as a metal/non-metal inspector. Tr. 121, 123.

36 FMSHRC Page 3253

of herself, Scott Miller, and Tom Hamilton, because they are the most knowledgeable and
experienced employees. Tr. 173, 176.
Over those 15 years, Ms. Rather has joined the MSHA inspector on every inspection
except one, when she was away on travel. Tr. 176. She primarily works at Kenyon Noble’s
corporate office in Bozeman, Montana which is approximately an 8 to 10 minute drive to
Portable. Tr. 172. The practice employed when the MSHA inspector arrives at the mine site is
for an employee from the front office to call and so inform her of the inspector’s presence. Tr.
177. Ms. Rather asserted that, historically, inspectors have waited anywhere from 10 to 30
minutes for her to then arrive to accompany them. Tr. 178.
On the date of this incident, August 16, Ms. Rather was doing payroll for Kenyon
Noble’s 280 employees and therefore was not available to accompany the inspector that day, as
the company pays its employees on the 16th of each month. Tr. 178. Because Miller was out,
Hamilton was the only other authorized representative of the mine that could escort the
inspector. As mentioned, Mr. Van Dyke, who had the day off, was contacted by Hamilton to see
if he could cover for him while the inspection took place. Tr. 180, 183. When Rather was later
told that Van Dyke was out of town, she telephoned Hamilton and told him to shut down the
crusher. Tr. 183. Hamilton confirmed that he called Van Dyke to cover for him but, because he
was too far away, Hamilton had to shut the crusher down, a process that takes approximately 25
minutes. Tr. 211, 217.
Ms. Rather further testified that she was never told by Mr. Edwards that Inspector Bellfi
was threatening to issue a citation for impeding an inspection. Tr. 184. She also assured the
Court that new procedures have been put in place to prevent a recurrence of the type of delay that
occurred on August 16. Tr. 200-01. The Court considers this to be tangential, yet important, as
Portable has assured that there will not be a repeat of this misunderstanding.
Discussion
The Secretary states that section 103(a) is violated if a mine operator unreasonably delays
the start of an inspection by denying the inspector access to the mine. As a principle, the Court
agrees with that contention, but the issue here is whether, in the context of the findings of fact,
there was an unreasonable delay in this instance. As mentioned, as an alternative theory of
liability, the Secretary contends that Portable violated section 103(a)’s prohibition against giving
mine personnel advance notice of an inspection.
The unreasonable delay contention will be discussed first. The Secretary notes that
Section 103(a) of the Act prohibits an operator from interfering with an inspection, and that such
interference includes that which is caused by unreasonable delay or where an operator’s actions
have the effect of frustrating the Secretary’s legitimate objectives. Topper Coal Co., 17
FMSHRC 945, 948 (June 1995) (ALJ); Calvin Black Enters., 7 FMSHRC 1151, 1156-57 (1985);
Spiro Mining, LLC, 33 FMSHRC 3255, 3257 (Dec. 2011) (ALJ). Here, the Secretary
acknowledges that the 30 minute delay was an indirect denial of the right to inspect. Inspector
Belfi himself so characterized the delay as an indirect denial. Tr. 81, 84. Nevertheless, the
Secretary contends that the delay was unreasonable in this instance because Portable’s safety

36 FMSHRC Page 3254

policy did not apply to MSHA inspectors, because Portable placed its interest in allowing Ms.
Rather and Mr. Hamilton to continue their work duties over MSHA’s interest in conducting an
inspection,7 and because the delay frustrated MSHA’s legitimate objective to observe the mine
when it is operating. Sec’y Br. at 7 - 9. As applied to the particular facts here, the Court finds that
none of these contentions are meritorious.
The Secretary8 asserts that Portable’s argument that the delay was prompted by its
inability to find an escort to accompany the inspector ignores that, in circumstances when an
operator’s preferred representative is busy, it is the operator’s responsibility to find a substitute.
It adds that, if no substitute is available, the operator must permit the inspector to conduct the
inspection unaccompanied. Sec’y Br. at 15-16, citing F.R. Carroll Inc., 26 FMSHRC 97, 102
(2004). Last, the Secretary maintains that any of three other employees who were on site on the
day of the inspection could have escorted Bellfi and therefore not delayed the start of his
inspection.
The Secretary’s arguments for upholding the citation are significantly based on the
assumption that Portable refused to allow Bellfi to start his inspection and that he was legally
entitled to commence the inspection without undue delay. Sec’y Br. at 10. The latter contention
is not disputed. Both sides agree that an inspector is entitled to inspect without undue delay.
However, as to the former contention, the Court has previously stated that it finds that there was
no indirect denial of entry. It is further noted that the Inspector never attempted to explain his
authority, nor did he simply start his inspection. On these facts it is clear that the Inspector chose
to wait much longer than his normal amount of time for an escort. As he stated, he would usually
start the inspection after five (5) minutes, proceeding unaccompanied, if necessary.
There was no testimony or documentary evidence presented by either side that Bellfi was
told that he was not permitted to inspect the mine at any point during the 30 minute waiting
period despite the description in the citation suggesting otherwise.9 On the contrary, Edwards
7

For the sake of completeness only, it is noted that the Secretary observes that Bellfi was
not bound by Portable’s safety policy. That is true and this decision does not suggest otherwise.
Beyond that, it is noted that Mr. Edwards was a marginal figure in this matter. He was an
employee of Kenyon Noble, not Portable, and had not been trained in MSHA regulations. On
this record, it appears that Edwards simply miscommunicated Portable’s company policy to
Bellfi.
8

Both parties addressed Portable’s right to have a representative present during the
inspection under section 103(f). Resp. Br. at 12; Sec’y Br. at 14. The court does not find this
argument relevant to determining whether section 103(a) was violated in this case because
Portable sought to have a representative present and Bellfi allowed Portable the opportunity to
have a representative present by waiting for 30 minutes before issuing a 103(a) citation and
beginning his inspection.
9

This is distinguishable from the facts in F.R. Carroll where the inspector repeatedly
asked the operator to allow him to proceed with the inspection, and told mine personnel that a 5
hour delay could not be granted. F.R. Carroll, 26 FMSHRC at 102.

36 FMSHRC Page 3255

had returned to Bellfi to tell him the crusher was being shut down and he could begin the
inspection unaccompanied when Bellfi decided to issue the citation. Further, Bellfi never told
Edwards he had a right to inspect the mine,10 nor did he attempt to start his inspection despite
testifying that he would normally only wait 5 minutes for an escort before beginning. These
actions also diminish the Inspector’s claim that Portable’s actions constituted an indirect denial.
In the Program Policy Manual (PPM), a source of MSHA’s interpretation and guidelines on
enforcement of the Act, indirect denials are “those in which an operator or his agent does not
directly refuse right of entry, but takes roundabout action to prevent inspection of the mine by
interference, delays, or harassment. There must be a clear indication of intent and proof of
indirectly denying entry.” Ex. R-27 at 2. Based on the above actions taken by Portable, the court
finds that the record does not evidence such “clear indication of intent and proof of indirectly
denying entry,” and accordingly it is found that the Respondent did not exhibit the intent to
indirectly deny access or otherwise delay the inspection.11
In addition, testimony from Supervisor Petty and Ms. Rather regarding past practices
were particularly enlightening. Petty had performed or accompanied hundreds of inspections in
the past, sometimes waiting 30 or more minutes for an escort before beginning the inspection.
No citations for impeding were issued as a result of those prior wait times. Petty also explained
that MSHA protocol was for inspectors to tell mine personnel that they had a right to inspect the
mine immediately and that, after so informing, there was no timeline for issuing the citation for
impeding. There is no indication that Bellfi did this. Ms. Rather had been present for all
inspections at Portable, except for one, prior to August 16, 2012, and she never had an issue with
an inspector waiting up to 30 minutes for her to arrive and be an escort. While a lack of past
enforcement by MSHA cannot be the sole reason for vacating this citation, the Secretary’s
previous interactions with Portable set the stage for its expectations, and was indicative of the
amount of time it considered to be a reasonable period to wait.
Thus, it is fair to state that Portable’s past experience with MSHA inspections led it to
believe that it was acting in a manner consistent with those experiences, and therefore that it was
not thwarting any inspection. What was remarkably different here is that Portable was dealing
with a new inspector, one who was temporarily assisting the Helena, Montana office with its
10

Bellfi did testify at hearing that he told Edwards the longer he had to wait, the more
inclined he would be to issue a citation for impeding. Respondent pointed out that the Inspector
did not mention this in his depositions, nor does this claim appear in his notes. Tr. 101-02; Ex. R22. When questioned, Bellfi stated that he remembered this while reviewing the case prior to
hearing. Id. These observations undercut the Inspector’s assertion.
11

With regard to the above facts and the Secretary’s position about the delay frustrating
his legitimate objective to view the mine while in operation, it appears to the Court that he is
trying to argue both sides. On one hand he states that Hamilton should have been instructed to
shut down the crusher immediately so that Bellfi could begin his inspection. Sec’y Br. at 16.
In depositions on February 2, 2014, Bellfi stated that it would not have mattered whether the
crusher was operating if he was able begin his inspection promptly. Ex. R-22 at 21-22. On the
other hand, the Secretary states he has a legitimate interest in seeing the mine in operation – an
attempt made by Hamilton when he called Van Dyke to take over for him so that he could escort
Bellfi. It seems that the Secretary would not have been satisfied with either scenario.

36 FMSHRC Page 3256

inspection responsibilities, and who lacked the institutional knowledge of the interactions
between that local MSHA office and Portable’s operation. It is fair to state that no claim of
indirect denial, nor the advance notice claim, would have arisen but for the temporary inspector’s
lack of appreciation of the protocol that MSHA had been observing with Portable.
As noted, in the alternative, the Secretary has argued that Portable violated section
103(a)’s prohibition against giving mine personnel advance notice of an inspection. Sec’y Br. at
8. He states that because Edwards and Rather told Hamilton that MSHA had arrived to conduct
an inspection 30 minutes before Bellfi was permitted to start the inspection, Portable violated
section 103(a). Id. This contention has largely been discussed. However a few additional remarks
follow.
Bellfi testified that the depositions of Rather, Edwards and Hamilton revealed that Rather
made phone calls to Hamilton, telling him that Bellfi was at the mine to conduct an inspection
and needed an escort. Tr. 51, 93. Edwards also told Hamilton that Bellfi was at the mine to
conduct an inspection and needed an escort. Tr. 73-74, 93. Bellfi asserted that these actions
constituted advance notice. However, he did not believe that talking to Bright or the loader
operator was the equivalent of advance notice because he was ready to conduct his inspection at
that moment. Tr. 71. Bellfi maintained that Edwards and Rather should not have told Hamilton to
escort him specifically for an inspection and that it should not have been disclosed that he was
there for an “inspection.” Tr. 95. Bellfi did not give this instruction or recommendation to Bright,
the loader operator, Edwards, or Rather. Tr. 71-72, 96. It should also be remembered that this is a
very small, six employee, operation.
Section 103(a) of the Act states that “no advance notice of an inspection shall be
provided to any person.” It is acknowledged that this is important to the health and safety of
miners because it helps to ensure that operators do not conceal or address hazardous conditions
before the inspector observes them. However, the court finds the Secretary’s argument lacks
merit in this case. The Secretary did not believe that Rather was given advance notice when she
was contacted by Edwards. Even if Rather was not doing payroll and could leave for the mine
promptly, she still would have taken at least 8 to 10 minutes to get to the mine. Bellfi’s argument
appears to hinge on the use of the word “inspection,” but both Rather and Edwards were told that
Bellfi was there for an inspection. Bright and the loader operator were informed by Bellfi himself
when he arrived that he was there to conduct an inspection. While Bellfi was ready to conduct
his inspection at that moment, he did not start performing the inspection until 30 minutes later,
yet Bellfi did not consider this to be advance notice. The court fails to see how informing
Hamilton was distinguishable from informing Rather or Edwards. Most of Portable’s employees
were aware that an inspection was imminent by the time Hamilton was contacted. Again,
Portable never told Bellfi that he could not begin his inspection and Bellfi never attempted to do
so.
In addition, Hamilton was clearly contacted about Bellfi’s presence so that he could be an
escort. In this respect, the situation at bar is distinguishable from other advance notice cases. See
Topper Coal Co., 20 FMSHRC 344 (Apr. 1998) (Commission upheld citation for a 103(a)
violation where an operator warned miners that MSHA inspectors were entering the mine and to
“watch out and be careful” despite being instructed by the inspectors not to tell anyone about

36 FMSHRC Page 3257

their presence.); Cougar Coal Co., 17 FMSHRC 628 (Apr. 1995) (ALJ upheld citation for a
103(a) violation where surface personnel alerted underground miners of the inspectors’ presence
despite being told not to do so.)
Based on the above, the court finds that notifying Hamilton of Bellfi’s presence is clearly
distinguishable from other cases where a violation of section 103(a) was found for providing
advance notice. As a result, the court finds that Rather’s and Edwards’ communications to
Hamilton did not constitute advance notice in violation of section 103(a).
As noted, the Secretary further alleges that Portable corrected hazardous conditions, or
had the opportunity to do so, while Bellfi was waiting for an escort. Sec’y Br. at 11. However,
for this alternative liability theory of advance warning, the record simply does not support the
conclusion that such activity occurred. This conclusion is consistent with the facts associated
with the unreasonable delay claim and, beyond that, the indicia that the visiting inspector pointed
to support this afterthought theory of liability, that is the fresh bolts and berms, were not
established under the preponderance of evidence burden as having occurred during the 30 minute
window of time that forms the foundation for either theory.
Inspector Bellfi arrived in the afternoon of August 16, but stated in his memo to the
district manager, supporting the citation, that the dirt on the berm had been moved the morning
of August 16. Tr. 79-80; Ex. R-17. In addition, Bellfi did not ask anyone at the mine when the
bolts and washers were last changed, and conceded that it was not normal practice to change
them while the crusher was running, as it was on the day of the inspection. Tr. 86-87. He also did
not request maintenance records to see when these tasks were performed because he did not
think it was relevant, and no other evidence supporting this surmise was introduced at hearing.
Tr. 87. Thus, Bellfi was not certain that the berm, washers, and bolts were fixed while he was
waiting for an escort. Tr. 92-93.
As a result, the court finds that the Secretary did not meet its burden in proving by a
preponderance of the evidence that Portable took corrective actions while Bellfi was waiting for
an escort in violation of section 103(a).
Upon review of the entire record and the Court’s assessment of the credible testimony, it
concludes that there was miscommunication and some confusion on Portable’s part in reacting to
Inspector Bellfi when he appeared at the mine to conduct his inspection, but there was no intent
to delay the inspection. Nor, under the particular circumstances of this case, was the 30 minute
delay unreasonable, given the unfamiliarity of those at the mine with how to deal with a mine
inspection and the lack of precision on the Inspector’s part in communicating the immediacy
associated with his right to inspect. The Mine’s reaction was also tempered by the history of its
significant experience when MSHA inspectors had arrived in the past.

36 FMSHRC Page 3258

Based on the above determinations and facts, the Court finds that Portable did not
unreasonably delay Bellfi’s inspection or indirectly deny access to its mine on August 16, and
therefore, did not violate section 103(a). It is further determined that Portable did not engage in
any advance notice violation. It is important to recognize, however, the Secretary’s valid concern
that “excusing” a 30 minute delay “would severely impair MSHA’s ability to protect miners.”
Sec’y Br. at 19. Under a different set of facts, intentionally and unreasonably delaying an MSHA
inspector for 30 minutes, or possibly, in some circumstances, a delay of less time, could indeed
weaken MSHA’s ability to protect miners. Accordingly, the Court’s decision here is not meant to
be broadly interpreted but instead is limited to the specific circumstances of this is case.
Wherefore, Citation No. 8587084 is VACATED and this case is hereby DISMISSED.

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

Distribution:
Donna Pryor, Esq., and Breyana Penn, Esq., Jackson Lewis P.C. 950 17th Street, Suite 260,
Denver, CO 80202
Ronald Gottlieb, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., Suite
515, Denver, CO 80204

36 FMSHRC Page 3259

CERTIFICATE OF SERVICE

It is hereby certified that the foregoing was served via email and certified mail on December 5,
2014:
Donna Pryor, Esq.
Breyana Penn, Esq.
Jackson Lewis P.C.
950 17th Street, Suite 260
Denver, CO 80202
Ronald Gottlieb, Esq.
U.S. Department of Labor
Office of the Solicitor
1244 Speer Blvd., Suite 515
Denver, CO 80204

Wykesha Hodnett

36 FMSHRC Page 3260

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

December 8, 2014
SIGNATURE MINING SERVICES, LLC,
Petitioner

EQUAL ACCESS TO JUSTICE
PROCEEDING
Docket No. EAJ 2012-0002

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

Mine: Coalburg No. 1

AMENDED DECISION AND ORDER
Appearances:

David Hardy, Esq., & Christopher Pence, Esq., Hardy Pence, PLLC,
Charleston, West Virginia for Petitioner
Karen Barefield, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia for Respondent

Before:

Judge McCarthy

The Decision and Order issued December 5, 2014, is hereby amended pursuant to
Commission Rule 69(c), 29 C.F.R. § 2700.69(c) (2014), to correct clerical errors and read as set
forth below.
I. Statement of the Case
This case is before me upon an Application for Award of Fees and Expenses under the Equal
Access to Justice Act (EAJA). 5 U.S.C. § 504 (2014). Signature Mining Services, LLC, filed its
Application against the Secretary of Labor’s Mine Safety and Health Administration based upon
a negotiated settlement that the parties reached in the underlying contest proceeding. Currently
pending in this case are Cross Motions for Summary Judgment filed on March 11, 2014, and a
Motion to Supplement the Record filed on May 28, 2014. The undersigned finds no genuine
issues of material fact that preclude summary disposition of this matter. For the reasons set forth
herein, the Secretary’s Motion for Summary Judgment is granted, and Signature’s Motion for
Summary Judgment is denied.

36 FMSHRC Page 3261

II.
A.

Factual and Procedural Background

The Underlying Contest Proceeding

On August 25, 2011, adverse roof and rib conditions developed at the Coalburg No. 1
Mine at the 003 MMU-2 East Panel, a retreat mining section. Order No. 8139507; Signature
App. at 1-2. Initially, these conditions affected several entries on the right side of the section
along and inby the last open crosscut. Order No. 8139507. After MSHA inspectors observed
pillars taking weight on the 2 East Panel, MSHA issued imminent danger Order No. 8139507
pursuant to Section 107(a) of the Act. Order No. 8139507; Sec’y Answer at 3. This order
covered the #6 and #8 entries along and inby the last open crosscut. Order No. 8139507.
Signature and the Secretary both allege that the conditions began to spread from the
mouth of the 2 East Panel to the Mains. Signature App. at 3; Sec’y Answer at 3. In response,
Signature began withdrawing miners and equipment from, and dangering off, the affected area.
Signature also set Heintzman jacks along the roadway at break 15 along the Mains, outby the
area affected by the adverse roof conditions. Richmond Dep. 30:9-31:10; Canterbury Dep.
11:21-12:13; Mackowiak Dep. 60:11-14, 65:2-5, 66:14-15; 75:11-19.
On August 27, 2011, at 1:30 a.m., the Coalburg No. 1 foreman reported that the pillars at
the mouth of the 2 East Panel were taking weight. Richmond Dep. 18:21-19:8. Randel
Richmond, Signature’s president, was informed that the ground failure had migrated into the
Mains. Richmond Dep. 19:6-21:8. Before 10 a.m., Richmond spoke with Terry Price, MSHA’s
field office supervisor, and John Kinder, a representative of the West Virginia Miner’s Health,
Safety, and Training (WVMHST), to apprise them about the adverse ground conditions.
Richmond Dep. 30:20-32:2. Richmond told Price that Signature had stopped production and
withdrawn all its miners from the affected areas. Richmond Dep. 30:22-31:3. Richmond also
provided Price with assurances that Signature had taken steps to monitor and correct the
conditions. Richmond Dep. 31:5-10, 36:14-22.
Approximately fifteen minutes later, Joe Mackowiak, MSHA assistant district manager,
called Frank Canterbury, a mine foreman at Signature, to inquire further about the adverse
conditions. Mackowiak Dep. 57:8-12. Canterbury informed Mackowiak that the ground failure
had migrated into the Mains and that men were underground setting jacks to prevent further
migration of the adverse ground conditions. Mackowiak Dep. 73:22-74:20, 97:3-13. Canterbury
also told Mackowiak that the ventilation controls of an abandoned mine 75 feet below the
Coalburg No. 1 had been crushed and the water sumps had gone dry. Order No. 8126005;
Mackowiak Dep. 81:16-82:19. The subsidence led Mackowiak to conclude that the pillar failures
and ground conditions created regional instability. Mackowiak Dep. 92:14-94:8.
Pursuant to Section 107(a) of the Act, Mackowiak orally issued imminent danger Order
No. 8126005 by phone. Mackowiak Dep. 87:12-14. Mackowiak emphasized that the situation
was so dangerous that everyone ought to be withdrawn, without exception. Mackowiak Dep.
99:16-19, 103:2-5. Mackowiak then instructed Price to dispatch inspectors to Coalburg
No. 1 and reduce the Order to writing. Mackowiak Dep. 87:21-88:11. Mackowiak also faxed
Price instructions to issue the imminent danger order with “[n]o exceptions,” which meant that

36 FMSHRC Page 3262

no one was allowed to be in the mine site. Mackowiak Dep. 102:8-15; Price Dep. 54:10-20,
dated November 8, 2011.
When Price and James Jackson, another MSHA inspector, arrived at Coalburg No. 1,
they reduced the Order to writing. Price Dep. 56:19-57:4. At that time, 14 miners were
underground. Price Dep. 60:22-61:6. Although none of these miners were involved in running
coal, Price and Jackson did not conduct any investigation about why these miners were
underground. Price Dep. 60:7-15. Price and Jackson did not travel underground to examine the
adverse conditions. Price Dep. 64:14-65:5. Price instructed Signature that the entire mine site
was closed and no one was permitted underground without MSHA’s approval. Price Dep. 62:1418, 63:4-64:8; see Richmond Dep. 36:15-20, 38:16-39:1.
On August 29, 2011, MSHA inspectors, Signature personnel, and consultants from Alpha
Engineering traveled underground to observe the adverse conditions and determine whether the
ground failure had stopped. Richmond Dep. 40:23-41:13. The inspection party determined that
the 2 East Panel and approximately ten crosscuts inby break 15 were the areas primarily affected
by the roof and rib conditions. See Appl. For Fees and Other Expenses at 3, dated January 6,
2012. Mackowiak heard pillars breaking and continued to express concern that the ground failure
posed a regional threat given the conditions of the underlying mine. Mackowiak Dep. 141:22144:17. As a result, the imminent danger Order remained in effect for the entire mine site. Order
No. 8126005; see Mackowiak Dep. 140:7-21. Thereafter, Signature filed a Notice of Contest to
Order Nos. 8139507 and 8126005. See Notice of Contest to Orders Nos. 8139705 & 8126005.
On August 30, 2011, MSHA issued withdrawal Order No. 7257539 pursuant to Section
103(k) of the Act. Order No. 7257539. In this control Order, MSHA alleged that a “coal and
floor rock outburst accident” had occurred and all mining activities inby had been disrupted. Id.
The 103(k) Order covered the entire mine because of hazards presented by crushed ventilation
controls and instability of mine pillars. Id. MSHA was unsure about the extent of damage and
the need to conduct an accident investigation. Sec’y Answer at 4. On August 31, 2011, Signature
filed a Notice of Contest to Order No. 7257539.
Six days before the scheduled hearing on the contest proceedings, the parties entered into
settlement negotiations. On December 2, 2011, the Secretary of Labor, MSHA, and Signature
filed a Joint Motion to Continue based on the terms of a proffered settlement agreement. Jt. Mot.
to Continue at 3-4. With respect to the Section 107(a) imminent danger Orders, Signature agreed
to withdraw its Notice of Contest to Order No. 8139507 in exchange for MSHA’s promise to
vacate Order No. 8126005. See Jt. Mot. to Continue, at 3. Negotiations on section 103(k) Order
No. 7257539 were ongoing at the time the Joint Motion was filed. Thereafter, MSHA agreed to
narrow the area of the mine affected by that control Order and to approve Signature’s ventilation
plan. Jt. Mot. to Continue, Ex. 2. On December 5, 2011, the undersigned granted the parties’
Joint Motion to Continue. Order Granting Continuance.
On December 16, 2011, the undersigned granted Signature’s motion to partially withdraw
its Notice of Contest to Order No. 8139507. My Order noted that the Secretary had agreed to
vacate Order No. 8126005 and directed that Order No. 8126005 be addressed in either a
subsequent settlement motion or hearing. On January 4, 2012, I granted the Secretary’s motion to

36 FMSHRC Page 3263

dismiss and vacate Order No. 8126005. On January 20, 2012, Signature filed a motion to dismiss
its Notice of Contest to Order No. 7257539. By Order dated January 26, 2012, the undersigned
granted Signature’s motion.
B.

The EAJA Proceeding

On January 9, 2012, Signature filed its Application for Fees and Other Expenses under
EAJA. On August 30, 2013, the undersigned issued a Decision and Order finding that (1) the
judicially-sanctioned negotiations that concluded the underlying contest proceeding were
sufficient to grant Signature prevailing party status under the EAJA and (2) Order No. 8126005
was overbroad and the Secretary’s decision to enforce it was without merit and could not be
substantially justified.1 The Decision and Order directed that further proceedings address (1)
whether Signature’s balance sheet met EAJA’s financial eligibility requirements, (2) whether
Patriot Coal Company controlled the underlying contest proceedings (thereby precluding
Signature from recovering fees under the EAJA), and (3) the amount of attorneys’ fees, if any, to
which Signature was entitled after prevailing on Order No. 8126005.
The parties engaged in additional discovery after issuance of my August 30, 2013,
Decision and Order clarifying the issues to be addressed at hearing. In response to a discovery
request from the Secretary, Signature’s counsel produced a redacted copy of the Contract Mining
Agreement, which detailed the nature of the contractual relationship between Signature and
Jarrell’s Branch. Resp’t Ex. 24, Signature’s Response to the Secretary’s Requests for Production
of Documents. The redactions of putative confidential business information included paragraphs
17, 18, and 20, which provided, in relevant part, that Jarrell’s Branch would reimburse Signature
for certain penalty assessments issued by MSHA that did not arise from intentional misconduct
or gross negligence, and for attorneys’ fees and costs incurred in contesting penalty assessments
before the Commission. Resp’t Ex. 24, Signature’s Response to the Secretary’s Requests for
Production of Documents; Resp’t Ex. 21.
The Secretary subsequently discovered an un-redacted copy of the contract on the Patriot
bankruptcy information website. The contract had been filed with the bankruptcy court on

1

During a conference call with the parties on November 21, 2013, Signature informed
the undersigned that a clarification of my August 30, 2013, Decision and Order was warranted
and Signature conceded that its application for fees was limited to Section 103(k) Order No.
7257539 and Section 107(a) Order No. 8126005. The Secretary then filed a Motion for
Modification on November 25, 2013. An Amended Decision and Order was issued on December
6, 2013, which stated that Signature was only eligible to be awarded fees and costs related to
Section 107(a) Order No. 8126005. While the Secretary may have lacked substantial justification
for enforcing 107(a) Order No. 8139507, Signature did not apply for fees related to that order
within thirty days of the Commission’s final disposition of the underlying proceeding, Docket
No. WEVA 2011-2299, and thus is ineligible to be awarded fees incurred in its defense of that
Order. 29 C.F.R. § 2704.206 (2013).

36 FMSHRC Page 3264

July 31, 2013, in support of Signature’s claim against Jarrell’s Branch.2 The Secretary
had previously been unaware that Jarrell’s Branch had fully reimbursed Signature for the fees
incurred in the underlying contest proceeding and partially reimbursed Signature for the fees
incurred in the EAJA litigation. When the Secretary notified Signature’s counsel that he had
found an un-redacted copy of the Contract Mining Agreement, counsel admitted that Signature
had been reimbursed for attorneys’ fees and costs. Secretary’s Mot. Summ. J. 10, n.6.
On December 12, 2013, the parties filed a Joint Motion for Decision on Stipulated
Record. They stipulated to Signature’s net worth and to the amount of attorneys’ fees incurred by
Signature in its defense of Order Number 8126005 and the litigation of its EAJA application.
On March 11, 2014, after additional discovery, the parties filed Cross Motions for
Summary Judgment stipulating to the facts, the record, and the amount of fees Signature incurred
in the contest proceeding and its EAJA application. The Cross Motions for Summary Judgment
present arguments on the primary issue of whether the terms of the Contract Mining Agreement
between Patriot Coal’s subsidiary Jarrell’s Branch and Signature preclude Signature’s recovery
of fees under the EAJA.
C.

Summary of Stipulated Facts on Cross Motions for Summary Judgment

Signature Mining Services is a West Virginia limited liability corporation formed in
2008. Resp’t Ex. 22. Since its formation, Signature has employed less than 500 people and its net
worth has never exceeded $7,000,000. See Signature’s Application under EAJA.
Jarrell’s Branch Coal Company is a subsidiary of Patriot Coal Corporation. On August
29, 2011, Patriot Coal was worth more than $7,000,000. Patriot Coal filed for Chapter 11
bankruptcy on July 9, 2012.3
Order No. 8126005 was issued on August 27, 2011. Resp’t Ex. 4. On August 29, 2011,
Signature’s counsel filed a Notice of Contest for Order Nos. 8126005. Resp’t Ex. 7. The
litigation of Order No. 8126005 continued through January 4, 2012, when the undersigned issued
an Order to Dismiss Docket No. WEVA 2011-2300. Resp’t Ex. 19.

2

See Amended Proof of Claim No. 1394, at Part 9, In re Patriot Coal Corp., et al., No.
12-51502-659 (Bankr. E.D. Mo. July 31, 2013), available at
https://cert.gardencitygroup.com/pcx/readPdf/3839_020101.pdf?secondTime=yes&fileType=rmi
&.value=101.
3

The parties have stipulated to Jarrell’s Branch’s status as a Patriot Coal subsidiary and
to Patriot’s net worth as of August 29, 2011. The undersigned takes judicial notice that Patriot
Coal’s Joint Plan of Reorganization was confirmed by the United States Bankruptcy Court,
Eastern District of Missouri, Eastern Division on December 18, 2013 and went into effect that
same day. In re Patriot Coal Corp., et al., No. 12-51502-659 (Bankr. E.D. Mo. Dec. 18, 2013),
available at http://patriotcaseinformation.com/pdflib/Dkt_No._5169A.pdf. Additional
information on Patriot Coal’s bankruptcy proceedings is available at patriotcaseinformation.com.

36 FMSHRC Page 3265

On June 1, 2011, Signature entered into a Contract Mining Agreement with Jarrell’s
Branch Coal Company governing mining operations at the Coalburg #1 mine. Resp’t Ex. 21. The
Agreement was negotiated over a period of several weeks, and the amount of Signature’s
compensation pursuant to its terms was directly related to Jarrell’s Branch’s obligation to
reimburse Signature for costs incurred in operating the Coalburg No. 1 Mine, including amounts
for legal fees incurred in defending certain citations and orders issued by MSHA.4 Signature’s
Mot. Summ. J. 8, Stipulated Fact No. 11. Had Jarrell’s Branch not agreed to reimburse Signature
for costs incurred in operating the mine, Signature’s compensation under the contract’s terms
would have been higher. Signature’s Mot. Summ. J. 8, Stipulated Fact No. 12. The reserves at
Coalburg No.1 Mine exceeded the term of the Contract Mining Agreement. Had Jarrell’s Branch
and Signature negotiated an extension or renewal of the contract upon its expiration, the
historical costs incurred in the mine’s operation would have been an important consideration in
negotiating Signature’s future compensation. Signature’s Mot. Summ. J. 8, Stipulated Fact
No. 13.
Under the Contract Mining Agreement, Signature was responsible for managing the daily
operations at the mine, including compliance with the Federal Mine Safety and Health Act and
its regulations. Resp’t Ex. 21, ¶ 8. The agreement obligated Jarrell’s Branch to reimburse
Signature for its legal fees incurred as a result of matters pending before the Commission,
excluding matters arising under section 104 of the Mine Act. Resp’t Ex. 21, ¶ 18. The agreement
also obligated Jarrell’s Branch to pay Signature for reasonable attorneys’ fees after the
cancellation, expiration, or termination of the agreement if the citation was issued prior to the
effective termination date. Id.5 The maximum hourly rate that Signature can recover in this
4

Paragraph 17 of the Contract Mining Agreement states:

For all assessments, penalties, or fines imposed by federal, state, or local
agency for any local, state, or federal law or regulation, except those issued for
safety and environmental violations as set for in Articles 18 and 26 of this
Agreement, which arise out of the contractors or its Labor Contractor’s operation
at the Mine, Owner shall reimburse Contractor for the payment of such
assessments, penalties, or fines; provided that Owner shall not reimburse
Contractor for assessments, penalties or fines arising from Contractor’s or its
Labor Contractor’s intentional misconduct or gross negligence.
Resp’t Ex. 21. Paragraph 18, in relevant part, provides that “Owner agrees to pay Contractor for
the cost of penalty assessments received by Contractor on citations issued by MSHA . . . for
Contractor’s or it’s Labor Contractor’s alleged violation of federal or state mandatory health and
safety standards,” except for violations arising under sections 104(d), 104(b)(2), and 104(c) of
the Mine Act. See 30 U.S.C §§ 804(d), 804(b)(2), 820(c) (2013). In addition, “Owner shall pay
Contractor for the reasonable attorneys’ fees and costs incurred by Contractor in contesting
penalty assessments and/or citations. Owner considers reasonable attorneys’ fees to be those that
are based on an hourly rate not in excess of $275 per hour.” Id.
5

Paragraph 18 of the Contract Mining Agreement states that “Owner shall continue to
reimburse Contractor for the cost of penalty assessments and reasonable attorneys’ fees incurred
(continued…)

36 FMSHRC Page 3266

matter is $275, the contractual reimbursement rate from Jarrell’s Branch. Id.; see also Secretary’s
Mot. Summ. J. 10, n.6.
Signature decided when to initiate, settle, and terminate actions before the Federal Mine
Safety and Health Review Commission. No person at Patriot Coal or Jarrell’s Branch had
authority to make these decisions. Signature’s Mot. Summ. J. 7, Stipulated Fact No. 9. The
contest proceedings regarding Order 8126005 were initiated and resolved at the sole discretion of
Signature. Signature’s Mot. Summ. J. 7, Stipulated Fact No. 10.
At the time the EAJA action was filed on January 9, 2012, Signature had not been
reimbursed for time spent in December 2011 defending against Order 8126005. By March 9,
2012, Jarrell’s Branch had reimbursed Signature for $39,789.59 in fees and expenses incurred in
connection with the defense of Order No. 8126005. Signature’s Mot. Summ. J. 9, Stipulated Fact
No. 18; Secretary’s Mot. Summ. J. 3, Stipulated Fact No. 11. Signature incurred $16,734.07 in
expenses from expert services provided by Alpha Engineering Services, Inc. in connection with
the defense of Order 8126005. Jarrell’s Branch reimbursed Signature for all amounts Signature
paid to Alpha Engineering. Signature’s Mot. Summ. J. 9, Stipulated Fact No. 21; Resp’t Ex. 21,
¶ 17; Resp’t Ex. 23. Signature has not been and will not be reimbursed for $40,214.78 in legal
fees and expenses incurred in the prosecution of the EAJA action. See Signature’s Mot.
Supplement R. Ex. 4.6
5 (...continued)

by Contractor after the cancellation, expiration, or termination of this agreement if the citation
was issued prior to the effective termination date.” Resp’t Ex. 21.
6

The undersigned takes administrative notice of Signature’s bankruptcy claims against
Patriot. In its Amended Proof of Claim No. 1394, Signature included the following Explanation
of Proof of Claim:
At the time of the bankruptcy filing, Patriot assured Signature Mining that
it would continue to pay the fines and defense costs associated with MSHA
violations as they arose post-bankruptcy. Signature originally filed two proofs of
claim representing expenses that arose prior to the time of the bankruptcy filing.
Signature was operating under the assumption that Patriot would reimburse
Signature for costs and fees that were continuing to accrue post-bankruptcy.
Subsequently, Patriot informed Signature that Patriot does not intend to pay the
fines and defense costs as they arise.
Amended Proof of Claim No. 1394, at Part 2, In re Patriot Coal Corp., et al., No. 12-51502-659
(Bankr. E.D. Mo. July 31, 2013), available at
https://cert.gardencitygroup.com/pcx/readPdf/3839_0201.pdf?secondTime=yes&fileType=rmi&.
value=1. On January 16, 2014, Signature and Patriot entered into a Settlement and Release
Agreement that resolved Signature’s claims in the amount of $164,687 (Exhibit B) and released
Patriot from any further liability. See Settlement and Release Agreement, In re Patriot Coal
Corp., et al., No. 12-51502-659 (Bankr. E.D. Mo. January 16, 2014), available
at https://cert.gardencitygroup.com/pcx/fs/viewreconPdf?fileName=Signature%20Mining.

36 FMSHRC Page 3267

Signature has been fully reimbursed for legal fees and expenses set forth in the invoices
dated September 22, October 18, November 16, and December 15, 2011; and January 18,
February 21, and March 21, 2012. Those invoices include all underlying contest proceeding fees
and some EAJA fees. Signature was partially reimbursed for the invoice dated April 18, 2012
relating to EAJA fees. Signature has not and will not be reimbursed for the invoices relating to
EAJA fees dated May 24, June 22, August 21, October 1 and 22, and November 13, 2012;
October 1, November 3, and December 5, 2013; and January 2, February 3, and April 1, 2014.
Secretary’s Mot. Summ. J. 5, Stipulated Fact No. 21; Signature’s Mot. Summ. J. 9, Stipulated
Fact No. 19; Signature’s Mot. Supplement R. Ex. 4.
The parties stipulated in their cross-motions for summary judgment that Signature could
supplement the record to reflect additional fees incurred in the preparation of the motion for
summary judgment. On May 28, 2014, Signature’s counsel filed a Motion to Supplement the
Record with invoices detailing those fees. Should the undersigned find that Signature is entitled
to all legal fees and expenses incurred in the defense of Order No. 8126005 and the subsequent
EAJA application, the total amount is $80,004.37, as of May 28, 2014. Should the undersigned
find that Signature is entitled only to those fees for which it has not been reimbursed, the total is
$40,214.78, as of May 28, 2014.
III.
A.

Principles of Law

Standard of Review for Cross-Motions for Summary Judgment

Under Commission Rule 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 of material fact; and (2) that the moving
party is entitled to summary decision as a matter of law. 29 C.F.R. § 2700.67(b) (2014). The
burden is on the moving party to establish its right to summary decision. Wimsatt v. Green Coal
Company, Inc., 16 FMSHRC 487 (Feb. 1994) (ALJ). In other words, the party seeking summary
judgment bears the initial responsibility of informing the court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which demonstrate the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Moreover,
all reasonable inferences from the underlying facts must be construed in the light most favorable
to the non-moving party. See e.g., Reeves v. Sanderson Plumbing Pods., Inc., 530 U.S. 133, 135
(2000). In the case of cross-motions for summary judgment, the Commission has recognized the
well-established principle that “the court must rule on each party’s motion on an individual and
separate basis, determining, for each side, whether a judgment may be entered in accordance
with a Rule 56 [of the Federal Rules of Civil Procedure] standard.” Hanson Aggregates New
York, Inc., 29 FMSHRC 4, 10 (Jan. 2007); see also Charles Allen Wright et al., 10A Federal
Practice & Procedure § 2720 (3d ed. 1998); Scottsdale Ins. Co. v. Cutz, L.L.C., 543 F. Supp. 2d
1310 (S.D. Fla. 2007).7
7

Although the Commission’s Procedural Rules do not directly address cross-motions for
summary judgment, Rule 1(b) provides that “on any procedural questions not regulated by the
[Mine] Act, these Procedural Rules, or the Administrative Procedure Act, the Commission and
(continued…)

36 FMSHRC Page 3268

Summary judgment, however, is an extraordinary procedure and must be entered with
care, especially in the case of cross-motions. There are three reasons why courts must carefully
evaluate cross-motions for summary judgment separately and individually.
First, the question of whether genuine issues of material fact still exist is a question of
law reserved exclusively to the judge, regardless of the parties’ opinions. Wright et al., supra, §
2720. The parties’ filing of cross-motions for summary judgment do not “conclusively
establish[] the universe of facts that [are] . . . material,” and the judge must make the
determination that no material fact issues remain unresolved. Hanson Aggregates New York, Inc.,
29 FMSHRC 4, 10 (Jan. 2007).8 The Third Circuit has explained that
[c]ross-motions are no more than a claim by each side that it alone is entitled to
summary judgment, and the making of such inherently contradictory claims does
not constitute an agreement that if one is rejected the other is necessarily justified
or that the losing party waives judicial consideration and determination whether
genuine issues of material fact exist. If any such issue exists it must be disposed
of by plenary trial and not on summary judgment.
Raines v. Cascade Indus., 402 F.2d 241, 245 (3d Cir. 1968).
Second, a party’s claim that there are no genuine issues of material fact for the purposes
of summary judgment does not prevent that same party from making the claim that there are
genuine issues of material fact that preclude judgment from being entered against it. In other
words, “the contention of one party that there are no issues of material fact preventing entry of
judgment in its favor does not bar that party from asserting that there are issues of fact sufficient
to prevent the entry of judgment as a matter of law against it.” Schwabenbauer v. Bd. of
Educ., 667 F.2d 305, 313 (2d Cir. 1981); see also Zook v. Brown, 748 F.2d 1161 (7th Cir. 1984);
Nafco Oil & Gas, Inc. v. Appleman, 380 F.2d 323 (10th Cir. 1967); Cram v. Sun Ins. Office, 375
F.2d 670 (4th Cir. 1967).
Finally, “the mere fact that a [party] has failed to meet his burden of proof on his motion
for summary judgment does not entitle the [other party] to judgment on its motion.” Rothenberg
v. Chemical Bank New York Trust Co., 400 F. Supp. 1299, 1302 (S.D.N.Y. 1975). Rule 56 places
the burden on the moving party to establish that there is no genuine issue of material fact and that
it is entitled to judgment as a matter of law; when both parties file competing motions for
7

(…continued)
its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure and the
Federal Rules of Appellate Procedure.” 29 C.F.R. § 2700.1(b) (2014). Motions for summary
judgment are governed by Rule 56 of the Federal Rules of Civil Procedure, and the jurisprudence
regarding standards of review for cross-motions for summary judgments is well-developed. See
e.g., Wright et al., supra, §§ 2720, 2725 (3d ed. 1998).
8

Summary judgment may be particularly appropriate, however, where the parties have
stipulated to the facts. See e.g., Trevino v. Yamaha Motor Corp., 882 F.2d 182 (5th Cir. 1989);
Estate of Reddert v. United States, 925 F. Supp. 261 (D.C.N.J 1996).

36 FMSHRC Page 3269

summary judgment, each party must separately and individually satisfy that burden. See Fair
Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d. 1132, 1136
(9th Cir. 2001).
Summary judgment, therefore, may only be entered when there is no genuine issue of
material fact, and when the party in whose favor it is entered is entitled to summary decision as a
matter of law. Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); see also Poller v.
Columbia Broad. Sys., Inc., 368 U.S. 464, 467 (1962) (holding that summary judgment should be
entered only when the pleadings, depositions, affidavits, and admissions show no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law).
B.

The Equal Access to Justice Act
1. EAJA Generally and Commission EAJA Rules

The EAJA provides for the award of attorneys’ fees and other expenses to a prevailing
party against the United States or an agency thereof, unless the position of the government was
substantially justified or that special circumstances make an award unjust. 5 U.S.C. § 504(a)(1)
(2014). The Supreme Court has recognized that eligibility for EAJA fees requires (1) that the
claimant be a “prevailing party,” (2) that the Government’s position was not “substantially
justified,” (3) that no special circumstances make an award unjust, and (4) that the fee
application must be submitted to the court within 30 days and be supported by an itemized
statement. Commissioner, Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 158
(1990).
Pursuant to the directive of 5 U.S.C. § 504(c)(1), the Commission has promulgated its
own rules and procedures for EAJA applications. In order to be eligible for EAJA fees, a
corporate entity such a Signature -- as opposed to an individual or the sole owner of a
corporation -- cannot have a net worth in excess of $7 million nor employ more than 500
employees. 29 C.F.R. § 2704.104 (2014). See, e.g., Bill Simola, 34 FMSHRC 539, 550–51 (Mar.
2012) (treating LLCs as corporations under the Mine Act). Commission EAJA Implementation
Rule 100 defines when eligible parties can recover:
An eligible party may receive an award when it prevails over the U.S. Department
of Labor, Mine Safety and Health Administration (“MSHA”), unless the Secretary
of Labor’s position in the proceeding was substantially justified or special
circumstances make an award unjust.
29 C.F.R § 2704.100 (2014); see also 5 U.S.C. § 504(a)(4) (2014).
Under Commission rules,
[a] prevailing applicant may receive an award of fees and expenses incurred in
connection with a proceeding, or in a significant and discrete substantive portion
of the proceeding, unless the position of the Secretary was substantially justified.
The position of the Secretary includes, in addition to the position taken by the

36 FMSHRC Page 3270

Secretary in the adversary adjudication, the action or failure to act by the
Secretary upon which the adversary adjudication is based. The burden of proof
that an award should not be made to a prevailing applicant because the
Secretary’s position was substantially justified is on the Secretary, who may avoid
an award by showing that his position was reasonable in law and fact. An award
will be reduced or denied if the applicant has unduly or unreasonably protracted
the underlying proceeding or if special circumstances make the award unjust.
29 C.F.R. § 2704.105 (2014). Contest proceedings, such as the one underlying Signature’s
application, are expressly included in the types of Commission proceedings in which eligible
parties may apply for EAJA fees. See 29 C.F.R. §2704.103 (2014).
Although the Commission’s EAJA Implementation rules normally cap fees at a rate of
$125 an hour,9 the Commission may exercise its discretion to award fees at a higher rate to
account for increases in cost of living or the limited availability of attorneys qualified to handle
Commission proceedings. 29 C.F.R. § 2704.107 (2014). Eligible parties may apply for
“reasonable expenses,” and awards may also include attorneys’ fees and expert witness fees
regardless of whether “the services were made available without charge or at a reduced rate to
the applicant.” 29 C.F.R. § 2704.106(a) (2014). The court may also award costs for engineering
studies and reports “to the extent that the charge for the service does not exceed the prevailing
rate for similar services, and the study . . . was necessary for the preparation of the applicant’s
case in the underlying proceeding.” 29 C.F.R. § 2704.106 (2014). The amount of the EAJA
award is thus left largely to the discretion of the administrative adjudicator.
When determining the reasonableness of fees to award, the following five factors must be
considered:
1) If the attorney, agent or witness is in private practice, his or her customary fee
for similar services, or, if an employee of the applicant, the fully allocated cost
of the services;
2) the prevailing rate for similar services in the community in which the attorney,
agent, or witness ordinarily performs services;
3) the time actually spent in the representation of the applicant;
4) the time reasonably spent in light of the difficult or complexity of the issues in
the underlying proceedings; and
5) such other factors as may bear on the value of the services provided.
29 C.F.R. § 2704.106(c) (2014). The EAJA also vests the adjudicator with the discretion to
reduce or deny awards “to the extent that the party during the course of the proceedings engaged

9

See 29 C.F.R. § 2704.106(a) (2014); see also 28 U.S.C. § 2412(d)(2)(A).

36 FMSHRC Page 3271

in conduct which unduly and unreasonably protracted the final resolution of the matter in
controversy.” 5 U.S.C. § 504(a)(3) (2014); see also 28 U.S.C. § 2412(a)(1)(C) (2014).
2. EAJA’s Purposes and Legislative History
The EAJA was enacted shortly after a period of rapid regulatory growth to address
Congress’ concerns that small businesses lacked the resources to litigate against the federal
government. H.R. Rep. 96-1418, at 9–10 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4988–
89. From a policy perspective, Congress was concerned that the greater resources and expertise
of the federal government might coerce small businesses into regulatory compliance simply
because they lacked the resources to contest citations, thereby creating precedent on the basis of
uncontested orders rather than after the “thoughtful consideration and presentation of opposing
views.” H.R. Rep. 96-1418, at 10. Therefore, the primary purpose of the EAJA is to eliminate
the financial disincentive to challenge unreasonable governmental actions for eligible parties.
H.R. Rep. No. 99-120, at 4 (1985), reprinted in 1985 U.S.C.C.A.N. 132; Jean, 496 U.S. at 163
citing Sullivan v. Hudson, 490 U.S. 877, 883 (1989)).
The EAJA’s legislative history shows that Congress specifically intended the statute to
serve dual functions:
1) [to] diminish the deterrent effect of seeking review of, or defending against,
governmental action by providing in specified situations an award of attorney
fees, expert witness fees, and other costs against the United States; and
2) [to] insure the applicability of the common law and statutory exceptions to
the “American rule” respecting the award of attorneys’ fees in actions by or
against the United States.10
The Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2321 (1980) (codified as amended
at 5 U.S.C. § 504; 28 U.S.C. § 2412 (2014)). Thus, the EAJA reduces the resource disparity
between the federal government and small business litigants, and creates an incentive for
agencies to police their enforcement and litigation activities by imposing the risk of a fee award
against them. See generally United States v. 329.73 Acres of Land in Grenada & Yalobusha
Counties, 704 F.2d 800, 801–03 (5th Cir. 1983) (discussing congressional intent of the EAJA).
Accordingly, the “[g]overnment’s interest in protecting the federal fisc is subordinate to the
specific statutory goals of encouraging private parties to vindicate their rights and curbing
excessive regulation and the unreasonable exercise of government authority.” Jean, 496 U.S. at
163 (1990) (citing H.R. Rep. No. 1418, at 12; S. Rep. No. 96-253, at 7 (1979)).

10

The American Rule generally provides that each party pays its own attorneys’ fees, but
allows an award of fees against a party who has acted under common law in bad faith or to
preserve a common fund, or when a statute, such as EAJA, provides that fees may be awarded.
See generally Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975) (discussing
application of the American rule doctrine in federal courts).

36 FMSHRC Page 3272

IV.

Positions of the Parties

Signature and the Secretary have stipulated that Signature, at the time the underlying
contest proceeding was initiated, was worth less than $7 million and had less than 500
employees, and is therefore eligible to recover fees and expenses under the EAJA. The
undersigned’s August 30, 2013 Decision and Order, together with the Amended Decision and
Order issued December 6, 2013, found that Signature was a prevailing party for the purposes of
the EAJA in the contest proceedings related to Order No. 8126005, and that the Secretary’s
defense of that order was not substantially justified. If the undersigned finds that Signature has
incurred fees within the meaning of the statute, Signature is therefore eligible for a fee award.
Further, the parties have stipulated that should the undersigned find that Signature is entitled to
all legal fees and expenses incurred in the defense of Order No. 8126005 and its subsequent
EAJA application, the total amount is $80,004.37. In the alternative, should the undersigned find
that Signature is entitled only to those fees and expenses for which it has not been reimbursed
(the fees and expenses related to the EAJA application incurred after the partial reimbursement
in April 2012), Signature is entitled to $40,214.78.
Given the purposes of EAJA, the issue of whether Signature is entitled to EAJA fees in
this matter turns on whether Signature incurred fees under the EAJA given the terms of the
contract mining agreement between Signature and Jarrell’s Branch, a subsidiary of Patriot Coal.
The contract between Jarrell’s Branch and Signature obligated Jarrell’s Branch to reimburse
Signature for legal fees and costs incurred in defending certain citations and orders before the
Commission. Resp’t Ex. 21, ¶ 18; see supra note 3. Signature argues that its contract mining
agreement with Jarrell’s Branch does not preclude collection of EAJA fees, despite
reimbursement from Jarrell’s Branch for all attorneys’ fees, costs, and expenses, including those
incurred by Alpha Engineering, associated with the underlying contest proceeding, and for part
of the fees arising from pursuit of its EAJA application. The Secretary argues that the contract
mining agreement precludes Signature from incurring fees for the purposes of EAJA.
Signature advances three legal arguments in support of a summary award of EAJA fees.
First, Signature emphasizes that it was responsible for managing the daily operations at the mine
and had sole discretion to initiate, settle, or terminate actions before the Commission. Therefore,
Signature argues that it is the real party-in-interest instead of a stand-in litigant applying for
EAJA fees on behalf of Patriot Coal, an ineligible party. Second, Signature argues that nothing in
the EAJA suggests a purpose to prevent contractual reimbursement arrangements like that extant
between Signature and Jarrell’s Branch. Therefore, Signature argues for a fee award regardless
of whether it was responsible for paying the fees or whether the fees already have been paid.
Third, Signature argues that failure to award fees would circumvent EAJA’s purpose of deterring
unreasonable government action.
The Secretary advances three arguments in support of a summary denial of EAJA fees.
First, the Secretary argues that the potential litigation costs had no deterrent effect on Signature’s
decision to defend against Order No. 8126005 because Signature knew in advance that
reasonable attorneys’ fees and costs incurred before the Commission would be reimbursed by
Jarrell’s Branch. Moreover, Signature has not actually “incurred” any fees because most of its
attorneys’ fees and all of its expert costs have already been reimbursed by Jarrell’s Branch.

36 FMSHRC Page 3273

Second, because the contest costs and fees have already been paid, any fee award would
constitute a windfall for Signature, contrary to the EAJA’s intent. Third, the Secretary argues
that any EAJA award would impermissibly impose a fine on MSHA and force taxpayers to
finance Signature’s EAJA litigation.
V.
A.

Analysis and Discussion

Circuit Court Disagreement on the Meaning of “Incur” under EAJA

The EAJA statute specifically provides in pertinent part that “[a]n agency that conducts
an adversary adjudication shall award, to a prevailing party other than the United States, fees and
other expenses incurred by that party in connection with that proceeding, unless the adjudicative
officer of the agency finds that the position of the agency was substantially justified or that
special circumstances make an award unjust.” 5 U.S.C. § 504(a)(1). Neither the text of the
EAJA nor its legislative history provides a definition of “incur.” Sec. & Exch. Comm’n v.
Comserv Corp., 908 F.2d 1407, 1413 (8th Cir. 1990). This issue is one of first impression for the
Commission.11 Accordingly, the undersigned has canvassed federal circuit Courts of Appeals
decisions for guidance, including the Fourth Circuit, which may have appellate jurisdiction over
the Commission’s final decision because Signature is located in Raleigh County in Beckley,
West Virginia.12
The federal Circuit Courts of Appeals are divided on the issue, particularly when the
EAJA award includes fees that are incurred by the party’s liability insurer, or fees that are paid or
advanced by a third party (here Jarrell’s Branch) with a legal obligation to indemnify or
reimburse the prevailing party (here Signature). See United States v. Thouvenot, Wade &
Moerschen, Inc., 596 F.3d 378 (7th Cir. 2010) (dicta finding that award of attorneys' fees under
the EAJA can include fees incurred by the prevailing party's liability insurer, because the party
had contracted with the insurance company to pay premiums in exchange for the insurance
company assumption of defense costs), accord Ed A. Wilson, Inc. v. Gen. Servs. Admin., 126
F.3d 1406 (Fed. Cir. 1997) (contractor Wilson incurred attorney fees and expenses even though
11

Jeroski v. FMSHRC, 697 F.3d 651 (7th Cir. 2012), comes close, but that case turned on
the “prevailing party” issue. Id. at 655. The Seventh Circuit affirmed the final order of the
Commission judge dismissing the contest proceeding, without prejudice, because the MSHAtargeted janitorial contractor, whose attorney fees were paid by a cement plant, was not a
prevailing party under EAJA, but suggested in dicta that contractor had not incurred fees where it
would not have been deterred from contesting MSHA action where the cement company
financed the litigation and the contractor would receive a windfall from an EAJA award. Id. at
655-56.
12

See 30 U.S.C. § 816(a) (2013) (“Any person adversely affected or aggrieved by an
order of the Commission . . . may obtain review . . . in any United States court of appeals for the
circuit in which the violation is alleged to have occurred or in the United States Court of Appeals
for the District of Columbia Circuit.”). The D.C. Circuit has not addressed the particular issue of
whether prevailing parties indemnified by third parties “incur” fees under the EAJA.

36 FMSHRC Page 3274

Wilson’s insurer Bituminous was responsible for paying monthly billings to law firm where
Wilson received interest-free loan from Bituminous to pay a denied repair claim against
government contracting officer and assigned any potential recovery against government to
Bituminous); Securities & Exch. Comm’n v. Zahareas, 374 F.3d 624 (8th Cir. 2004) (broker
incurred legal fees under EAJA, even though broker’s former company had initially agreed to
pay fees, where company went bankrupt, leaving broker obligated to pay fees); see also
Morrison v. Comm’r of Internal Revenue, 565 F.3d 658 (9th Cir. 2009) (taxpayer may incur
attorney fees under 26 U.S.C. § 7430(a) even if those fees are paid initially by a third party
where there is either a contingent or non-contingent obligation to repay the fees); Phillips v. Gen.
Servs. Ass’n, 924 F.2d 1577 (Fed. Cir. 1991) (EAJA attorney fees incurred by government
employee challenging discipline where contingency fee arrangement required that fee award be
paid over to legal representative). Compare United States v. Paisley, 957 F.2d 1161 (4th Cir.
1992) (EAJA fees denied where employer paid attorneys' fees on behalf of its former employees
pursuant to statutory obligation to indemnify them) with Securities & Exch. Comm’n v. Comserv
Corp., 908 F.2d 1407 (8th Cir. 1990) (corporate officer not eligible for EAJA award where
company's insurance policy reimbursed company for its indemnification of officer and officer
had no legal obligation to pay fees); United States v. 122 Acres of Land, 856 F.2d 56 (8th Cir.
1988) (because property owner had no obligation under contingent fee agreement to pay his
attorney anything, he had not incurred attorneys’ fees within meaning of Uniform Relocation
Assistance and Real Property Acquisition Policies Act, another fee-shifting statute); OwnerOperator Indep. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 675 F.3d 1036 (7th Cir.
2012) (commercial truck drivers not entitled to award of attorney fees under EAJA where
drivers’ association was the only party responsible for payment under fee arrangement and
therefore the burden of fees would not have deterred litigation challenging government’s action);
Jeroski v. FMSHRC, 697 F.3d 651 (7th Cir. 2012) ) (proprietorship performing janitorial services
for cement plant who financed litigation of withdrawal order against MSHA was not prevailing
party, and suggesting in dicta that janitorial contractor had not incurred fees where it would not
have been deterred from contesting MSHA action where cement company financed the litigation
and contractor would receive windfall from EAJA award).13
Having carefully reviewed the foregoing circuit precedent in apparent conflict, the
undersigned resolves the issue of whether Signature has “incurred” fees under its Contract
Mining Agreement with Jarrell’s Branch within the meaning of EAJA by focusing on whether
13

The circuits have generally recognized an exception to the requirement that a legal
liability for attorneys' fees must be incurred for an EAJA award where the prevailing party is
represented by counsel appearing pro bono or by a legal services organization. Cornella v.
Schweiker, 728 F.2d 978, 987 (8th Cir. 1984). For example in Cornella, the Eight Circuit relied
in part on legislative history suggesting that awards to pro bono organizations were contemplated
by Congress. Id. (quoting H.R. Rep. No. 1418, 96th Cong., 2d Sess. 15, reprinted in 1980
U.S.C.C.A.N. 4994). The court held that where a pro bono attorney “forgives” a fee to a client
unable to afford legal expenses, that client is eligible for an EAJA award on the basis of that fee
arrangement. Other circuits have reached a similar result. See, e.g., American Ass’n of Retired
Persons v. E.E.O.C., 873 F.2d 402, 406 (D.C. Cir. 1989); Watford v. Heckler, 765 F.2d 1562,
1567 n. 6 (11th Cir. 1985). Similarly, an EAJA award has been found appropriate where the
prevailing party is an attorney appearing pro se. Jones v. Lujan, 883 F.2d 1031 (D.C. Cir. 1989).

36 FMSHRC Page 3275

the award of fees and costs to Signature would give effect to EAJA’s specific purpose and
Congress’ intent to eliminate the financial disincentive to challenge unreasonable government
actions. See Jean, 496 U.S. at 164 (citing Sullivan v. Hudson, 490 U.S. 877, 883 (1989)); OwnerOperator Indep. Drivers Ass’n, 675 F.3d at 1040 (citing Krecioch v. United States, 316 F.3d
684, 686 (7th Cir. 2003)); Sullivan v. Hudson, 490 U.S. 877, 883–84 (1989)); see also Comserv,
908 F.2d at 1414–15 (“EAJA awards should be available where the burden of attorneys’ fees
would have deterred the litigation challenging the government’s actions, but not where no such
deterrence exists.”); Paisley, 957 F.2d at 1164 (recognizing that whether an award serves
EAJA’s purpose in avoiding deterrence is the “critical concern underlying the EAJA
precondition that a fee claimant shall have “incurred” the expense”). The undersigned agrees
with that practical approach because it is consistent with the purpose of the statute and its
legislative history.
Congress prefaced the EAJA with this statement of its findings and purposes:
(a) The Congress finds that certain individuals, partnerships, corporations, and
labor and other organizations may be deterred from seeking review of, or
defending against, unreasonable governmental action because of the expense
involved in securing the vindication of their rights in civil actions and in
administrative proceedings.
(b) The Congress further finds that because of the greater resources and expertise
of the United States the standard for an award of fees against the United States
should be different from the standard governing an award against a private
litigant, in certain situations.
(c) It is the purpose of this title(1) to diminish the deterrent effect of seeking review of, or defending against,
governmental action by providing in specified situations an award of attorney
fees, expert witness fees, and other costs against the United States; and
(2) to insure the applicability in actions by or against the United States of the
common law and statutory exceptions to the “American rule” respecting the
award of attorney fees.
Congressional Findings and Purposes, note following 5 U.S.C. § 504. Furthermore, the
Committee Reports of both the House and Senate reflect the concerns of providing access for
eligible individuals, partnerships, corporations, and labor or other organizations, for whom cost
may be a deterrent to vindicating their rights, and improving government policies by helping to
assure that administrative decisions reflect informed deliberation. H.R. Rep. No. 96-1418, at 10
(1980); S. Rep. No. 96-253, at 7 (1979).
In this case, I conclude that the primary purpose of EAJA to eliminate the financial
disincentive to challenge unreasonable government action would not be served by awarding fees
and expenses to Signature. Denial of Signature’s attorney fees and expenses would not remove
any financial disincentive for Signature to challenge MSHA’s overbroad imminent danger Order
because Signature was contractually promised and received full reimbursement for contesting

36 FMSHRC Page 3276

MSHA’s action. In this regard, I find the Fourth Circuit’s reasoning and holding in Paisley,
relied on by the Secretary, to be persuasive here.
To hold that a prevailing party with an unconditional legal right to
indemnification of its attorney fees by a manifestly solvent third party might
nevertheless qualify for an EAJA award because indemnification had not yet
occurred is unacceptable for several reasons. . . . [S]uch a holding would not in
fact serve a principal purpose of the EAJA: to avoid the deterring effect which
liability for attorney fees might have on parties' willingness and ability to litigate
meritorious civil claims or defenses against the Government. The EAJA provides
for fee-shifting precisely to avoid this result. Consequently, in any situation in
which the eligibility of a particular prevailing party for an EAJA award is in issue,
it is appropriate to inquire whether that party would, as a practical matter, have
been deterred from litigating had it been known that a fee-shifting award was not
available upon a successful conclusion. If that question is asked here, it is obvious
that appellees, all but one of whom were funded by an advance which by contract
they need not refund if they prevailed in litigation, would not have been deterred
had the EAJA not then existed. This is the critical concern underlying the EAJA
precondition that a fee claimant shall have “incurred” the expense.
Accordingly, we hold that, to effectuate the purposes of the EAJA, a claimant
with a legally enforceable right to full indemnification of attorney fees from a
solvent third party cannot be deemed to have incurred that expense for purposes
of the EAJA, hence is not eligible for an award of fees under that Act.
957 F.2d at 1164 (internal citations omitted).14
The prevailing parties in Paisley were denied fees because they were indemnified per
statute by a third party with no obligation of repayment. Signature attempts to blunt Paisley by
reliance on the Federal Circuit’s decision in Wilson, where the Federal Circuit found that
denying EAJA fees to a prevailing small business that had been indemnified by its liability
insurer “would thwart the Act’s purpose of deterring unreasonable governmental action.” Wilson,
126 F.3d at 1410. Signature relies heavily on Wilson to support its argument that it incurred fees
for EAJA purposes.

14

The issue in Paisley was whether the prevailing parties, former Boeing employees, had
“incurred” fees for the purposes of the EAJA when a Delaware state statute required Boeing to
indemnify them if they successfully defended against the underlying government suit. Since
Boeing paid the former employees an advance to cover the fees, the prevailing parties argued
that the indemnification had actually been a “mere” possibility, because Boeing could have, in
theory, demanded repayment from the employees in the event that they lost the suit. The Fourth
Circuit, however, rejected that argument as inconsistent with the purpose of EAJA and found the
prevailing parties to be ineligible for fees. 957 F.2d at 1164.

36 FMSHRC Page 3277

The Wilson court emphasized that it had previously awarded EAJA fees to prevailing
parties who had no obligation to pay any fees to their attorneys, such as those represented pro
bono or by union counsel.15 The Federal Circuit was unable to discern any material distinction
between those cases and Wilson’s case since in each instance the litigant paid a third party in
advance for the benefit of legal representation as a component of union dues or insurance
premiums, and incurred no additional obligation of payment to counsel. Id. at 1409–10. The
Wilson court reasoned that denying the EAJA application “would neither remove the financial
disincentives of litigating against the government nor deter the government’s unreasonable
denial of minor claims filed by its small business contracting partners.” Id. at 1410. Rather, the
court reasoned as follows:
Denying a small business, which in its keen acumen has obtained insurance to
insulate itself from liability for accidents during contract performance, and thus
from potential insolvency, an award of fees for the attorney services that it
procured as part of its policy would thwart the Act's purpose of deterring
unreasonable governmental action. In fact, it would act as an incentive to deny
meritorious claims, thereby requiring the small business to litigate. If the small
business has insurance, the government could deny the contractor's claim and
litigate any appeal of the denial without any pecuniary risk. Even if the contractor
were to win the appeal, there would be no award of attorney fees. The government
could act unreasonably not only in its initial denial of the small business' claim
but also during the litigation of the appeal, confident in the knowledge that it will
be exposed to no attorney fee award.
Id. Whereas the Fourth Circuit in Paisley focused on the EAJA’s primary purpose of eliminating
financial disincentives for eligible parties who would defend against unjustified government
action, the Federal Circuit in Wilson emphasized Congressional intent to deter unreasonable
action by encouraging agencies to police their enforcement and litigation activities.
B. This Case is Factually More Analogous To, and Legally More Consonant With,
Paisley than Wilson; Accordingly, Signature Did Not Incur Fees Within the
Meaning of the EAJA
1.

Pre-Bankruptcy Fees

This case is more factually akin to and legally consonant with Paisley than Wilson before
Patriot filed for bankruptcy. In Paisley, the employer indemnified its former employees pursuant
to a legal obligation imposed by state statute. Similarly, in this case, Jarrell’s Branch reimbursed
Signature for legal fees pursuant to contractual obligation. Both Signature and the prevailing
parties in Paisley had a legally enforceable right to full indemnification or reimbursement of
attorney fees from a solvent third party and therefore would not be deterred by liability for
15

See Devine v. Nat’l Treasury Employees Union, 805 F.2d 384 (Fed. Cir. 1986);
Goodrich v. Dept. of the Navy, 733 F.2d 1578 (Fed. Cir. 1984) (construing 5 U.S.C. §
7701(g)(1)); see also Nat’l Treasury Employees Union v. Dept. of Treasury, 656 F.2d 848 (D.C.
Cir. 1981) (construing 5 U.S.C. § 552a(g)(3)(B) (1976)).

36 FMSHRC Page 3278

attorney fees and expenses from challenging the government’s action had the EAJA not then
existed. This is the critical concern underlying the EAJA precondition that the fee applicant
“incurred” the expense. Paisley, 957 F.2d at 1164.
The prevailing parties in Paisley were former employees who never incurred or paid
insurance premiums. Similarly, Signature never incurred attorney’s fees and expenses in the
underlying MSHA contest proceeding since Jarrell’s Branch reimbursed Signature.
By contrast, the prevailing party in Wilson actually paid for its own indemnification in
the form of monthly insurance premiums. Wilson specifically involved a fixed-price contract
between Wilson and the General Services Administration for the remodeling of a federal
building. During the remodel, a sprinkler line broke and caused damage to the building’s interior.
Wilson denied responsibility, but complied with the GSA officer’s instruction to repair the
damage. The GSA denied Wilson’s subsequent claim to cover the additional cost of the repair.
Wilson then submitted a claim to its third-party liability insurer, and received an “interest-free
loan” that partially covered the cost of the repairs. The loan was “repayable only in the event and
to the extent of any net recovery [Wilson] may make from any [party] causing or liable for the
loss or damage to the property.” Wilson, 126 F.3d at 1407. In exchange, Wilson assigned to its
insurance carrier any claim against the government, any potential recovery, and the authority to
appeal GSA’s denial of its claim to the GSA Board of Contract Appeals. Although the appeal
was filed in Wilson’s name, the insurance carrier had exclusive direction and control of the
appeal and covered all the expenses related to the proceeding. Id.
The Wilson court equated the monthly premiums with prepaying attorneys’ fees in
advance, and reasoned that Wilson had effectively “incurred” fees under the EAJA. Id. at 1411,
n.4. In other words, “the insurance premiums are the fee that the insured pays for the insurance
company’s defense of his case. . . . [T]he cost of defense, to the extent borne by the insurance
company, is a cost that the insured has paid for, just as he would have paid a lawyer for his
defense had he had no insurance.” Thouvenot, 596 F.3d at 383 (discussing the reasoning in
Wilson). In that context, denying Wilson EAJA fees would almost certainly increase insurance
premiums, thereby “reintroduc[ing] the cost of litigation as a factor in the small business’
decision whether to contest governmental action it deems unreasonable.” Wilson, 126 F.3d at
1411. As a consequence, “the small business would have to decide whether it is worth the
increased premiums, which it will incur regardless of whether it prevails, to challenge the
government.” Id.
Thus, courts have found that an award of attorney fees under the EAJA could properly
include fees incurred by the prevailing party's liability insurer because liability insurance is
essentially a contingent loan. The insured pays premiums in exchange for the promise that the
insurance company will bear the cost of the insured’s defense (subject to a deductible) if the
insured is sued on a claim that the policy covers, and to minimize the premiums, the insured
agrees to repay that cost to the extent it is covered by an award of attorney fees under EAJA.
Thouvenot, 596 F.2d at 383.
Signature contends that the relationship between Jarrell’s Branch and Signature is
analogous to that between the insurance carrier and the insured in Wilson. Signature argues that

36 FMSHRC Page 3279

its compensation and other benefits under the Contract Mining Agreement were directly related
to Jarrell’s Branch’s obligation to reimburse Signature for operating costs. Signature’s Mot.
Summ. J. 13; Stipulated Fact No. 11. Moreover, Signature argues that it assumed the risk that
Jarrell’s Branch would not be able to reimburse the fees and costs it owed to Signature. Signature
further argues that this reduced compensation and the assumed risk for failure to reimburse
constitute forms of consideration paid in exchange for Jarrell’s Branch’s agreement to pay the
mine’s operating costs. Signature’s Mot. Summ. J. 13–14.16 This consideration, Signature
contends, is analogous to the insurance premiums paid in Wilson and does not bar Signature from
recovering fees under the EAJA. Signature’s Mot. Summ. J. 14.
Signature’s arguments are not persuasive. Lower compensation and assumption of risk
are not explicitly mentioned as forms of consideration in the Contract Mining Agreement. See
Resp’t Ex. 21, at 1; Signature’s Mot. Summ. J. 8, Stipulated Facts Nos. 11-12. Likewise,
Signature’s argument that the historical costs of operating the mine would be an important factor
in negotiating Signature’s future compensation should there have been an extension or renewal
of the Agreement is not certain and is not explicitly mentioned in the Agreement. See Signature’s
Mot. Summ. J. 8, Stipulated Fact No. 13. The Federal Circuit in Wilson specifically noted that
denying Wilson fees would almost certainly increase Wilson’s monthly insurance premiums and
thereby reintroduce the cost of litigation as a factor in Wilson’s decision to contest the
government action. Wilson, 126 F.3d at 1411. By contrast, Signature’s argument that the costs of
defending against Order No. 8126005 would “necessarily result in a reduction of [its]
compensation” in the event that Signature renegotiates the contract with Jarrell’s Branch is
speculative, at best. The undersigned is unconvinced that such speculative reduction in future
compensation is akin to the more certain increase in insurance premiums that concerned the
Federal Circuit in Wilson. Signature’s Mot. Summ. J. 17.
On the other hand, the Contract Mining Agreement does explicitly reference safety bonus
payments payable to Signature. Signature was entitled to a $2,000 per month safety bonus if
Signature and its contractors had zero lost time accidents during a calendar month. In addition,
Signature was eligible for an additional monthly $2,000 safety bonus if its MSHA violations per
inspection day were between 1.0 and 1.4 each calendar month. If Signature’s MSHA violations
16

The Contract Mining Agreement states that the parties are contracting “for and in
consideration of undertakings and agreements set forth, and other good and valuable
consideration not fully set forth herein, the sufficiency of which is acknowledged.” Resp’t
Ex. 21, at 1. Under the Agreement, Signature was generally responsible for mining and
transporting the coal to the preparation facility, maintaining a comprehensive general liability
insurance policy, and obtaining the required state and federal operator identification numbers.
Resp’t Ex. 21, at ¶ 1, ¶ 16, ¶ 18. In exchange, Jarrell’s Branch retained title to the coal mined by
Signature, covered all operating costs of the mine (including certain penalty assessments and
attorneys’ fees and costs incurred in Commission proceedings), and granted Signature the use of
the equipment and premises to mine the coal. Resp’t Ex. 21, at ¶ 4, ¶ 7, ¶ 18, ¶ 3. Based on these
contractual provisions, Signature argues that it “clearly paid consideration in the form of reduced
compensation and the risk of bankruptcy in exchange for Jarrell’s Branch’s agreement to pay the
costs of operating the mine.” Signature’s Mot. Summ. J. 14.

36 FMSHRC Page 3280

per inspection day were less than 1.0, the safety bonus increased to $3,000. Resp’t Ex. 21, ¶
20(c). In my view, these bonuses appear to negate Signature’s argument that it agreed to lower
compensation in exchange for Jarrell’s Branch’s obligation to cover its operating costs.
Furthermore, the risk that Jarrell’s Branch might fail to fulfill the terms of its contract due to
bankruptcy is inherent in any contract, and such an assumption of insolvency risk is not a
particular form of consideration under the Contract Mining Agreement with Jarrell’s Branch. In
short, Signature’s arguments regarding contractual exchanges of consideration are speculative,
illusory and much less persuasive than the bargained-for insurance exchange in Wilson.
More importantly, even were the undersigned persuaded that Signature’s lower
compensation and assumption of risk were particular forms of consideration, Signature’s reliance
on Wilson’s insurance contract analogy for an award of EAJA fees is still misplaced. The
relationship between Signature and Jarrell’s Branch is not analogous to the relationship between
Wilson and its insurance carrier. The Wilson court specifically recognized that “the insurance
premiums are the fee that the insured pays for the insurance company’s defense of his
case. . . . [T]he cost of defense, to the extent borne by the insurance company, is a cost that the
insured has paid for, just as he would have paid a lawyer for his defense had he had no
insurance.” Thouvenot, 596 F.3d at 383 (discussing the insurance premiums at issue in Wilson).
The petitioner in Wilson received a reimbursement designated as an interest-free loan from its
third-party insurance carrier to cover the costs of its initial claim against the government. In
consideration of that loan, Wilson assigned its right to pursue an EAJA action and any
subsequent award to its insurer. Wilson, 126 F.3d at 1407. Signature’s Mot. Summ. J. 9,
Stipulated Fact No. 13. Unlike Wilson, there is no right of subrogation here under which
Signature assigned its right to pursue an EAJA action to Jarrell’s Branch, thereby allowing
Jarrell’s Branch to pursue third party MSHA for attorney’s fees and costs that Jarrell’s Branch
has already paid Signature. Also unlike Wilson, Signature retained the responsibility for
controlling the underlying contest litigation at all times. Otherwise, Jarrell’s Branch would be
found to be an EAJA-ineligible stand-in litigant. Accordingly, I find Wilson inapposite.
Rather, the Fourth Circuit’s rationale in Paisley is more persuasive on these facts. Paisley
precludes an award of fees to parties with a legally enforceable right to full indemnification from
solvent third parties because such awards do not advance the primary purpose of the EAJA to
diminish the deterrent effect of defending against governmental action. Paisley, 957 F.2d at
1164. Because Signature no longer has any outstanding attorneys’ fees associated with the
underlying contest proceeding, any such fees awarded would not further the EAJA’s purpose of
diminishing the deterrent effect of defending against governmental action. Since Signature was
fully reimbursed by Jarrell’s Branch for fees incurred in challenging the contest proceeding,
Signature was not deterred from defending against MSHA’s prosecution of the overbroad
imminent danger order. Rather, awarding fees for the contest proceeding for which Signature
already has been reimbursed by Jarrell’s Branch would constitute a windfall for Signature. See
Jeroski, 697 F.3d at 656. Accordingly, on the instant record, the undersigned concludes that an
award of EAJA fees is contrary to the primary purpose of the EAJA to eliminate the financial
disincentive to challenge unreasonable governmental actions for eligible parties. H.R. Rep. No.
99-120, at 4; Jean, 496 U.S. at 163 (citing Sullivan, 490 U.S. at 883).

36 FMSHRC Page 3281

The undersigned also concludes that the secondary or dual purpose of the EAJA is not
materially advanced by an award of fees here. That purpose is to ensure the applicability of the
common law and statutory exceptions to the “American rule,” which generally provides that each
party pays its own attorneys’ fees, but allows an award of fees against a party who has acted
under common law in bad faith or to preserve a common fund, or when a statute, such as EAJA,
provides that fees may be awarded. See supra text accompanying note 10; see also H.R. Rep.
99-120, at 5. Although EAJA provides fees when, as here, the government’s position is not
substantially justified, I conclude that any EAJA statutory exception to the American rule is
subservient to the primary purpose of EAJA, which as explained above, has not been advanced
here where Signature has not “incurred” fees under the EAJA statute because it has not been
deterred from challenging MSHA given reimbursement from Jarrell’s Branch. Accordingly, I
find any statutory exception to the American rule inapplicable here. Nor has the common fund
exception under common law been advanced here because Signature’s contest proceeding did
not have the effect of preserving or recovering a common fund for the benefit or equitable trust
of others. Finally, the common law bad-faith exception to the American rule is inapposite.
Although the federal government (MSHA) may be subject to punitive awards for bad faith, see
e.g., Am. Hosp. Ass’n v. Sullivan, 938 F.2d 216, 219 (D.C. Cir. 1991), such bad faith is a narrow
basis for recovery and may be “imposed only in exceptional cases and for dominating reasons of
justice.” Havrum v. United States, 204 F.3d 815, 819 (8th Cir. 2000) (citing Brown v. Sullivan,
916 F.2d 492, 495 (9th Cir. 1990)). The EAJA’s “not substantially justified” standard is less
stringent than the bad faith required for punitive damages. Here, the Secretary’s insistence on an
overbroad imminent danger order during pre-litigation through settlement does not rise to the
level of “vexatious, wanton, or oppressive” conduct necessary for a finding of bad faith.
Zahareas, 374 F.3d at 630 (citing Brown, 916 F.2d at 495).
Finally, the undersigned is not persuaded that awarding EAJA fees would deter
unreasonable government action. In the circumstances of this case, I find more compelling the
Secretary’s argument that allowing Signature to recover fees for which it has already been
reimbursed by Jarrell’s Branch would be an impermissible windfall for Signature for pursuing an
overly broad imminent danger order to voluntary settlement prior to any litigation. Jeroski, 697
F.3d at 656. The stated Congressional intent behind the EAJA is ameliorative, not punitive.
EAJA was enacted to remove the financial disincentives that small businesses face when
litigating against the government and to concurrently “impose the risk of a fee award that must
be paid by the agency as an incentive to police their enforcement and litigation activities so that
only well-founded cases would be litigated.” See 329.73 Acres of Land in Grenada & Yalobusha
Counties, 704 F.2d at 802. Those purposes are not advanced here.
Accordingly, I find that Signature is not eligible to recover EAJA fees related to the
underlying contest proceeding and is therefore not entitled to the full $80,004.37 requested in its
EAJA application. The Fourth Circuit standard in Paisley, which I find most instructive here,
does not permit an award of fees to Signature because Signature received full reimbursement for
the contest proceeding from Jarrell’s Branch and any additional award would not advance the
primary purpose of the EAJA to diminish the deterrent effect of defending against MSHA’s
action. See Paisley, 957 F.2d at 1164. When initiating its underlying contest proceeding,
Signature knew that Jarrell’s Branch had a contractual obligation to reimburse Signature for any
costs it might incur, except for intentional misconduct or gross negligence attributable to

36 FMSHRC Page 3282

Signature or its agents. See Resp’t Ex. 21, ¶ 18. Therefore, since no intentional misconduct or
gross negligence has been alleged by MSHA, Signature suffered no deterrent effect from the
costs of litigation, which might have dissuaded Signature from defending against the breadth of
imminent danger Order No. 8126005 to voluntary settlement short of actual litigation.
2. Post-Bankruptcy Fees
The Fourth Circuit’s holding in Paisley referred explicitly to a legally-enforceable right
to indemnification from solvent third-parties. Paisley, 957 F.2d at 1164. It is arguable that
Paisley does not apply after the third-party indemnifier becomes insolvent. Accordingly, after
Patriot’s July 2012 bankruptcy filing, the Eighth Circuit’s decision in Securities & Exchange
Commission v. Zahareas, 374 F.3d 624 (8th Cir. 2004), is instructive because it addresses the
issue of reimbursement of EAJA fees post-bankruptcy.
Zahareas involved a prevailing party whose employer agreed to pay his attorneys’ fees in
the underlying litigation. Prior to doing so, however, the corporation filed for bankruptcy. The
Eighth Circuit found that since the obligation to pay the attorneys’ fees passed to the prevailing
party upon the corporation’s dissolution, the prevailing party had incurred the attorneys’ fees for
the purposes of the EAJA. Zahareas, 374 F.3d at 631. Signature argues that like the respondent
in Zahareas, it has incurred fees in spite of Jarrell’s Branch’s contractual obligation to reimburse
it for fees. Signature’s Mot. Summ. J. 17.
I disagree. A key factor in Zahareas was that the employer’s bankruptcy prevented
fulfillment of its obligation to pay respondent’s attorney fees, and respondent then became
responsible for payment. Zahareas, 374 F.3d at 631. That is clearly not the case here. Prior to
Patriot’s bankruptcy, Jarrell’s Branch reimbursed Signature for all the fees and expenses incurred
in the contest proceeding regarding Order No. 8126005 and part of the fees incurred in the EAJA
application. See supra, note 6. Thus, Patriot’s bankruptcy had no effect on Jarrell’s Branch’s
fulfillment of its contractual obligation to reimburse Signature for fees related to the underlying
contest proceeding and the pre-bankruptcy EAJA fees.17 Regarding the outstanding $40,214.78
related to Signature’s EAJA action after Patriot’s July 9, 2012 bankruptcy, Signature and Patriot
entered into a Settlement and Release Agreement that resolved Signature’s allowed claims in the
amount of $164,687 (Exhibit B) and released Patriot from any further liability.18
Furthermore, the undersigned finds that Signature is not entitled to reimbursement for
post-bankruptcy fees concerning pursuit of the EAJA litigation because Signature was not
17

Signature filed its EAJA application on January 9, 2012, and Patriot filed for
bankruptcy on July 19, 2012. As previously noted, Jarrell’s Branch reimbursed Signature for all
contest proceeding fees and costs and part of its EAJA litigation costs, prior to Patriot’s
bankruptcy filing.
18

See Settlement and Release Agreement, In re Patriot Coal Corp., et al., No. 12-51502659 (Bankr. E.D. Mo. January 16, 2014), available at
https://cert.gardencitygroup.com/pcx/fs/viewreconPdf?fileName=Signature%20Mining.

36 FMSHRC Page 3283

entitled to reimbursement for EAJA fees for the underlying contest proceeding. That is, but for
the contest proceeding for which EAJA fees have been denied, additional fees for pursuing the
EAJA litigation would not have been incurred. In short, a party cannot obtain EAJA fees for
pursuing an EAJA application when it is not entitled to EAJA fees for the underlying action on
the merits.
A. Alternatively, Special Circumstances Warrant Denial of EAJA Fees After Patriot’s
Bankruptcy
Alternatively, the undersigned finds that even if un-reimbursed fees for pursuing the
EAJA litigation were incurred by Signature within the meaning of the statute, special
circumstances make an EAJA award unjust. As noted, EAJA provides for the award of attorneys’
fees and other expenses to a prevailing party against the United States or an agency thereof,
unless the position of the government was substantially justified or that special circumstances
make an award unjust. 5 U.S.C. § 504(a)(1) (emphasis added); see also 29 C.F.R § 2704.100.
The undersigned finds in the alternative that special circumstances make an award of any unreimbursed EAJA fees incurred by Signature after Patriot’s bankruptcy unjust.
During the additional discovery conducted after my August 30, 2014 Decision and Order,
Signature’s counsel produced a redacted copy of the Contract Mining Agreement between
Signature and Jarrell’s Branch. The redacted portions included Jarrell’s Branch’s obligation to
reimburse Signature for certain fees and costs incurred in Commission proceedings. The
Secretary subsequently found an un-redacted copy of the Agreement on the Patriot Coal
bankruptcy website, which had been filed on July 31, 2013, in support of Signature’s bankruptcy
claims against Jarrell’s Branch.19 Prior to finding the un-redacted copy, the Secretary had been
unaware of Jarrell’s Branch’s reimbursement obligation. After the Secretary notified Signature’s
counsel of his discovery, Signature’s counsel admitted that Signature had been partially
reimbursed for attorneys’ fees and costs. Secretary’s Mot. Summ. J. 10, n.6.
Signature argues that counsel proceeded in good faith by redacting confidential business
information from the contract. Signature further argues that Paragraph 34 of the Contract Mining
Agreement requires prior consent of the parties or a court order to disclose confidential material,
and that Signature would have been subject to a breach of contract claim had it produced the unredacted content without a court order compelling production.20 Signature also argues that the
19

See Amended Proof of Claim No. 1394, supra notes 2 and 6. Filings in bankruptcy
proceedings are public records open for examination. See 11 U.S.C. § 107(a) (2013). The
Contract Mining Agreement became a public record on July 31, 2013 when Signature filed it in
support of its bankruptcy claim. See Amended Proof of Claim No. 1394, supra note 2.
20

Paragraph 34 states that

Owner and Contractor agree with each other that both shall
treat . . . information relating to the other party or Owner’s and Contractor’s
business operations as confidential and shall not divulge, transmit, or otherwise
disclose any such information received without first obtaining prior written
(continued…)
36 FMSHRC Page 3284

headings of the redacted paragraphs 17, 18, and 20 were left intact to allow the Secretary to
evaluate the nature of the redacted material and file a motion to compel if he so chose.
Signature’s Resp. to Secretary’s Mot. Summ. J. 4.
I find Signature’s arguments unconvincing. As noted, the un-redacted Contract Mining
Agreement became a public record on July 31, 2013 when Signature filed it in support of its
bankruptcy claim. Cf., Foster-Miller, Inc., v. Babcock & Wilcox Canada, 210 F.3d 1, 10 (1st Cir.
2000) (jury instructions providing that “[i]nformation ... readily known or knowable to the
interest of the public cannot ... be made confidential simply by slapping it with a restrictive
label”). In these circumstances, I find Signature’s confidentiality arguments disingenuous and
waived by public revelation.
Further, even assuming no waiver of Signature’s confidentiality claim by public
disclosure, the undersigned is not persuaded that the headings of the redacted paragraphs were
sufficient to allow the Secretary a fair opportunity to evaluate the nature or potential relevancy of
the redacted materials. For example, un-redacted paragraph 16 is titled “Indemnification,”
redacted paragraph 17 is titled “Fines or Penalties,” redacted paragraph 18 is titled “MSHA and
WVOMHST Identification Numbers Number: MSHA and WVOMHST Assessments,” and
redacted paragraph 20 is titled “Compensation.” Despite un-redacted paragraph 16’s title of
“Indemnification,” it is redacted paragraph 17 that requires Jarrell’s Branch to reimburse
Signature for the penalties and assessments at issue, and it is redacted paragraph 18 that requires
Jarrell’s Branch to reimburse Signature for reasonable attorneys’ fees and costs incurred in the
contest proceeding. Since no reimbursement obligations regarding MSHA penalties and
attorneys’ fees were referenced in the paragraph headed “Indemnification,” the Secretary’s
review of un-redacted paragraph 16 and the titles of redacted paragraphs 17 and 18 could
reasonably have led the Secretary to believe that no such obligations existed. Redacted
paragraph 20, titled “Compensation,” contained the terms under which Signature was entitled to
bonus payments from Jarrell’s Branch for Signature’s safe operation of the mine. Resp’t Ex. 21,
¶ 20. In these circumstances, I conclude that the Secretary had justifiable grounds for failing to
file a motion to compel discovery under Commission Procedural Rule 59.21
20 (...continued)

consent of the other party unless such information is required by any
governmental agency or court of law pursuant to due process of law.
Resp’t Ex. 21.
21

Commission Procedural Rule 59 governs discovery disputes:

Upon the failure of any person, including a party, to respond to a
discovery request or upon an objection to such a request, the party seeking
discovery may file a motion with the Judge requesting an order compelling
discovery. If any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard to the
failure as are just and appropriate, including deeming as established the
matters sought to be discovered or dismissing the proceeding in favor of
(continued…)
36 FMSHRC Page 3285

In short, the redactions of paragraphs 17, 18, and 20 contained contractual obligations
between Signature and Jarrell’s Branch that were central to the Secretary’s case against
Signature’s application for EAJA fees. Signature should have realized that these contractual
obligations were responsive to the Secretary’s discovery request and relevant to the remaining
issues as defined in my August 30, 2013, Decision and Order, as amended on December 6, 2013.
Rather than redacting allegedly confidential but relevant facts for fear of breaching the terms of
the Agreement, the more appropriate course for Signature would have been to work with the
Secretary toward a mutually agreeable accommodation that would protect the confidentiality of
the purportedly sensitive information, after disclosure. See Fed. R. Civ. Proc. 26(c)(1)(G); cf.,
Pennsylvania Power Co., 301 NLRB 1104, 1105-06 (citing Minnesota Mining & Mfg., Co., 261
NLRB 27 (1982), enfd. 711 F.2d 348 (D.C. Cir. 1983)). If Signature’s counsel and the Secretary
had been unable to reach such an accommodation, Signature could have filed a motion for a
protective order, a motion for in camera review, or a motion to file the allegedly confidential
information under seal.22 Rather, Signature chose to hide the ball.
In these circumstances, the undersigned finds in the alternative that Signature’s failure to
disclose the nature of its contractual reimbursement agreement with Jarrell’s Branch during
discovery constitutes special circumstances that make an EAJA award for unreimbursed fees and
costs after Patriot’s bankruptcy unjust. See 5 U.S.C. § 504(a)(1).
VI.

Conclusion and Order

Having reviewed the record, cross motions, and supporting briefs, the undersigned finds
this matter appropriate for summary decision. The undersigned finds as a matter of law that there
are no material facts that preclude summary judgment from being entered against Signature.
Having evaluated the arguments presented by each party and having applied the relevant law, the
undersigned finds that the Secretary has met his burden of proof and is entitled to summary
disposition denying any award of EAJA fees.

21 (...continued)

the party seeking discovery. For good cause shown the Judge may excuse
an objecting party from complying with the request.
29 C.F.R. §2700.59 (2013) (emphasis added).
22

Signature’s counsel inadvertently disclosed Signature’s balance sheet, which contains
confidential business information, as Exhibit 5 attached to Signature’s Application for Fees and
Costs under the EAJA. The balance sheet thus became part of the public record in this
proceeding. Signature’s counsel moved to seal Exhibit 5, and the undersigned granted that
motion. Signature’s counsel is therefore well aware of this tribunal’s ability and willingness to
protect from public disclosure alleged confidential, albeit relevant documents. See Signature’s
Mot. Seal.

36 FMSHRC Page 3286

WHEREFORE,
Pursuant to the stipulations agreed to by Signature and the Secretary in their Cross
Motions for Summary Judgment, Signature’s Motion to Supplement the Record is GRANTED.
For the reasons set forth above, Signature’s Motion for Summary Judgment is DENIED.
The Secretary’s Motion for Summary Judgment is GRANTED, and it is ORDERED that each
party bear their own costs.

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

Distribution:
Karen Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247
David Hardy, Esq., & Christopher Pence, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite
701, Charleston, WV 25329
/ccc

36 FMSHRC Page 3287

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

December 22, 2014
MAGRUDER LIMESTONE CO., INC.,
Applicant

EQUAL ACCESS TO JUSTICE
PROCEEDING

v.

Docket No. EAJ 2013-01

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

Mine: Portable Plant #1
Mine ID: 23-00077

DECISION AND ORDER
Appearances:

R. Lance Witcher, Esq., Ogletree, Deakins, Nash, Smoak, & Stewart, St.
Louis, Missouri, for Applicant
Courtney Przybylski, Esq., U.S. Department of Labor, Office of the
Solicitor, Denver, Colorado, for Respondent

Before:

Judge McCarthy
I. Statement of the Case

Litigation is a crapshoot. The parties relinquish control, and when the dust settles,
reasonable minds can differ about the legal import of the facts established, and the cogency of
the legal arguments advanced. Thorough investigation, preparation of witnesses, and legal
research is often an effective antidote, but not here. Both sides dug in during settlement efforts
and were caught off guard by independent analysis and research by the judge, or his clerk for that
matter.
This case is before me upon an Application for Award of Fees and Expenses filed by
Magruder Limestone against the Secretary of Labor’s Mine Safety and Health Administration
under the Equal Access to Justice Act (EAJA). 5 U.S.C. § 504 (2014). The final decision in the
underlying proceeding approved partial settlement of several citations, and after hearing, ordered
that Citation No. 6575266 be modified from a section 104(d)(1) unwarrantable failure with high
negligence to a section 104(a) citation with moderate negligence, that the specially assessed
penalty of $52,500 be reduced to $16,509, and that section 104(d)(1) unwarrantable failure Order
No. 6575267 be vacated based on circuit court precedent. See Magruder Limestone Co., Inc., 35
FMSHRC 1385 (May 2013)(ALJ).

36 FMSHRC Page 3288

Applicant argues that it prevailed in significant and discrete portions of the underlying
consolidated civil penalty proceeding. It did. Applicant further argues that the Secretary’s
position was not substantially justified. I disagree. For the reasons set forth below, despite
reclassification of the 104(d)(1) Citation with lower negligence and a substantially reduced
penalty, and vacatur of the 104(d)(1) Order, I find that an EAJA award is not appropriate here
because the Secretary’s position was substantially justified with regard to Citation No. 6575266
and Order No. 6575267, and special circumstances make an award of fees unjust with regard to
the vacatur of Order No. 6575267.
II.

The Procedural Distraction – Alleged Improper Service

On June 20, 2013, Magruder mailed its Application to the Commission, with certificate
of service indicating same date email transmission to the Secretary’s trial counsel. On June 20,
2013, Applicant also emailed the undersigned and the Secretary’s trial counsel and advised of the
EAJA filing. The Commission docketed the matter on June 27, 2013, but under Commission
Rules 301 and 7, service was effective with the Commission on the date of mailing, i.e., June 20,
2013, and service was not effective on the Secretary until email receipt. 29 U.S.C. §2700.7(c)(2).
The Secretary filed his Objection to the Application on August 13, 2013. He argued that
the Application was improperly served on June 20, 2013 via email because the Secretary’s
former trial counsel left the office on April 12, 2013, and his email account was deactivated
shortly thereafter. In support, the Secretary proffers an August 7, 2013 email from the system
administrator indicating that at least as of that date, an email sent to the Secretary’s former trial
counsel did not reach its recipient, and that the email account no longer exists. Sec’y Obj. 2, n.1
and Ex. A. Alternatively, the Secretary argues that it had no notice of the existence of the
Application until the Commission docket office notified it on August 5, 2013 of the existence of
an EAJA filing on June 27, 2013. Accordingly, the Secretary argues that its Objection filed on
August 13, 2013 should be treated as a timely answer.
Applicant replies that the Secretary provided no notification that his former trial counsel
had left the Department of Labor. Nor was any withdrawal or substitution of counsel ever filed.
In fact, the undersigned’s May 21, 2013 Decision and Order listed the Secretary’s former counsel
as attorney of record, since the Commission also never received any contrary notice from the
Secretary. Applicant alleges that it did not become aware that the Secretary’s trial counsel had
left the agency until August 13, 2013, when it received a copy of the Secretary’s Opposition.
Applicant has no objection to the timing of the Secretary’s Opposition, which I treat as its
Answer.
Given my disposition on the merits,1 I need not decide whether Signature’s EAJA
application was timely served because the Secretary’s email account had not been deactivated on
1

The determination of the merits of the EAJA application “will be made on the basis of
the record made during the proceeding for which fees and expenses are sought,” except where
either party requests or the judge orders further proceedings. See Commission Rule § 2704.306.
Neither party requested additional proceedings nor sought to supplement the administrative
record.

36 FMSHRC Page 3289

June 20, 2013, such that service was effective upon receipt. Assuming arguendo that Signature’s
EAJA Application was timely served on the Secretary, I find that an EAJA award is unwarranted
because the Secretary’s litigation position was substantially justified with regard to Citation No.
6575266 and Order No. 6575267, and special circumstances make an award of fees unjust with
regard to the vacatur of Order No. 6575267.
III.

Substantial Justification

A. General Principles
EAJA entitles a prevailing party to receive fees and other expenses incurred in an
adversary adjudication, unless the position of the agency was substantially justified. 5 U.S.C. §
504(a)(1). The government agency bears the burden of demonstrating that its position in an
adversary adjudication was substantially justified so as to preclude an award of attorney's fees
and expenses to the prevailing party. Loumiet v. Office of Comptroller of Currency, 650 F.3d
796, 799 (D.C. Cir. 2011). The agency must prove that both its pre-litigation and litigation
positions were substantially justified. Iowa Exp. Distribution, Inc., v. NLRB, 739 F.2d 1305,
1309-10 (8th Cir. 1984). "Substantially justified" does not mean justified to a high degree, but
rather justified in substance or in the main - - that is, justified to a degree that could satisfy a
reasonable person. Pierce v. Underwood, 487 U.S. 552, 565 (1988). A position may be justified
even though incorrect, and it may be substantially (i.e., for the most part) justified if a reasonable
person could think it correct, that is, if it has a reasonable basis in law and fact. Id. To establish
substantial justification, an agency must show a reasonable basis in truth for the facts alleged, a
reasonable basis in law for the theory advanced, and a reasonable connection between the facts
alleged and the legal theory propounded. See Iowa Exp. Distribution, 739 F.2d at 1308 (quoting
United States v. 2,116 Boxes of Boned Beef, 726 f.2d 1481, 1487 (10th Cir. 1984).
The "position of the agency" is to be measured against the underlying proceeding as a
whole, not by reference to “separate parts of the litigation, such as discovery requests, fees, or
appeals.” Kuhns v. Board of Governors of Federal Reserve System, 930 F.2d 39 (D.C. Cir. 1991)
(quoting Commissioner, I.N.S. v. Jean, 496 U.S. 154, 159 (1990). That is, whether or not the
position of the agency was substantially justified is determined on the basis of the administrative
record as a whole in the adversary adjudication for which fees and other expenses are sought.
Alphin v. National Transp. Safety Bd., 839 F.2d 817, 822 (D.C.Cir. 1988); see also 5 U.S.C. §
504(a)(1). Partial awards, however, are contemplated within the EAJA's statutory scheme.
Therefore, if some, but not all, of the agency’s allegations are substantially justified, an eligible
prevailing party should be compensated for challenging those allegations that are not
substantially justified. In determining whether a partial award of attorney's fees is appropriate,
the EAJA demands that each allegation made by the agency be evaluated at each step of the
proceedings when new or additional evidence indicates that an allegation lacks substance or is
erroneous. Id.
B. Citation No. 6575266
In the underlying civil penalty proceeding, undisputed facts established that a rock jam
occurred during an MSHA inspection and that a stipulated rank-and-file plant operator, Harold

36 FMSHRC Page 3290

Nichelson, was observed by MSHA inspector, Lawrence Sherrill, standing on an inclined
conveyor belt, 10 feet off the ground, using a six-foot breaker bar to clear the jam. Nichelson did
not utilize fall protection (Citation No. 6575266) or follow lock out/tag out protocol (Order No.
6575267). These alleged violations occurred shortly after the inspector observed plant manager,
Tim Stewart, speak to Nichelson about the rock jam near a loud generator. 35 FMSHRC at
1385.
Citation No. 6575266 alleged that Applicant Magruder unwarrantably failed to comply
with the fall protection standard at 30 C.F.R. § 56.15005. 30 C.F.R. § 56.15005 is a mandatory
standard which provides that “[s]afety belts and lines shall be worn when persons work where
there is a danger of falling . . . .” The citation ascribed high negligence to Magruder for a
violative practice that was “highly likely” to result in an injury that could reasonably be expected
to be fatal. The parties stipulated that the actions alleged constituted a violation of the standard
and that the citation was correctly characterized as significant and substantial (S&S). The
Secretary proposed a specially assessed penalty of $52,500. As noted, after hearing, I modified
the 104(d)(1) unwarrantable failure citation with high negligence to a section 104(a) citation with
moderate negligence, and assessed a penalty of $16,509.
Having again carefully reviewed the matter, I find that the Secretary’s litigation position
with respect to Citation No. 6575266 had a reasonable basis in fact and law and was substantially
justified to a degree that could satisfy a reasonable person. Pierce, 487 U.S. at 565. The
Secretary reasonably argued that Stewart’s actions in the face of a hazardous condition did not
meet the heightened standard of care for supervisors, and the fall hazard scenario presented a
sudden, high degree of danger, which was not necessarily suitable for a traditional, factordependent unwarrantable failure analysis under Commission precedent such as Lopke Quarries,
Inc., 23 FMSHRC 705, 711 (July 2001). P. Br. at 13-14, citing Midwest Material Co., 19
FMSHRC 30 (Jan. 1997). That is, where hazardous conditions involve "a high degree of
danger," a supervisor is held to a "heightened standard of care." Lafarge Construction Materials,
20 FMSHRC 1140, 1145-48 (Oct. 1988). The Secretary argued that supervisor Stewart’s failure
to meet that heightened standard of care supported an unwarrantable failure determination. P. Br.
at 13-14.
The Secretary specifically argued that an unwarrantable designation was justified because
Stewart acted with a “serious lack of reasonable care” when he shouted hurried and confusing
instructions to plant operator Nichelson in front of a loud diesel generator, where such
instructions were easily misunderstood and conveyed a sense of urgency to take immediate
action without regard for safety protocol. In fact, the Secretary relied on alleged inconsistencies
within Stewart’s own testimony establishing that Stewart instructed Nichelson to act (either shut
down the conveyor belt or lock out the power source), and not act (wait for him before doing
anything). The Secretary argued that Stewart’s confusing and unclear instructions were easily
misunderstood when delivered in front of the 95 decibels of noise being emitted by the diesel
generator. Additionally, the Secretary emphasized that Nichelson was standing around with
other miners waiting for Stewart to return from a discussion with a vendor, when Nichelson told
Stewart that the feeder was jammed. Then, only after instruction from Stewart, did Nichelson
attempt to clear the jam. P. Br. at 14-15.

36 FMSHRC Page 3291

Nichelson testified that he ignored the safety requirements because he desired to resume
production as soon as possible. 35 FMSHRC at 1392, citing Tr. 357. Stewart admitted that
before promotion to management, he had ignored the fall protection and lock out/tag out
requirements when in a hurry. 35 FMSHRC at 1390, citing Tr. 296-98, 306. The Secretary
argued that Nichelson took cues from a hurried Stewart, assumed production was more important
than safety, and risked fatal injury in a hasty attempt to comply with Stewart’s instructions. P.
Br. at 15.
The Secretary also emphasized that Stewart had opportunities to take precautionary
measures and had no reason to rely on any assumption that Nichelson would wait to handle the
rock jam. Stewart handled approximately 10 rock jams when employed as a rank and file miner,
and first did so when his supervisor was too busy. P. Br. at 15-16. Also, Stewart knew that
Nichelson had handled at least two rock jams prior to July 14, 2010, one of which Stewart
witnessed. P. Br. at 16, see also Tr. 273. Since Stewart conceded that he thought Nichelson was
going to lock out power to the conveyor, the Secretary argues that Stewart should have assumed
that Nichelson was going to handle the rock jam. The Secretary pointed out that Stewart knew
from personal experience that miners failed to use fall protection and lock out power sources
when in a hurry. Therefore, the Secretary argued that if Stewart did not want Nichelson to
handle the rock jam, Stewart should have recognized that Nichelson was taking steps to do so
and clarified his instructions. P. Br. at 16.
The Secretary also argued that an unwarrantable failure determination was warranted
under a traditional, factor-dependent, unwarrantable failure analysis, which considers aggravated
conduct based on extensiveness, duration, notice that greater compliance efforts are necessary,
abatement efforts, obviousness, high degree of danger, and knowledge. P. Br. at 17-19. In this
regard, the Secretary reasonably argued that the alleged violations posed a high degree of danger
and that Stewart should have known that a miner may overlook both lock out/tag out and fall
protection protocol when in a hurry. P. Br. at 18. Although conceding short duration with high
danger, the Secretary argued that the condition was extensive because work was being performed
on the elevated belt and that MSHA’s Rules to Live By were adequate to put Magruder on notice
that greater efforts were necessary to achieve compliance. P. Br. at 17.
In this regard, inspector Sherrill observed Nichelson standing on the elevated conveyor
belt for 20-30 seconds, without using fall protection or locking and tagging out the conveyor. Tr.
120-21. Sherrill testified that this was an extensive and extremely hazardous condition because
two standards were simultaneously violated and Nichelson was performing work at elevated
heights without fall protection. Tr. 123-24, 135-36.
Regarding obviousness or high degree of danger, Sherrill testified that if Nichelson had
continued working on the elevated conveyor belt, without any fall protection, it was highly likely
that he would have fallen and suffered fatal injuries. Tr. 103-04. In addition, because Nichelson
was standing on the belt, any inadvertent belt movement likely would have caused him to fall
and suffer fatal injuries or broken bones, or be impaled by the breaker bar. Tr. 102-04, 135-36.
Regarding notice that greater compliance efforts were necessary, the Secretary relied on
Sherrill’s testimony that MSHA provided all operators with its Rules to Live By prior to the July

36 FMSHRC Page 3292

14, 2010 inspection. Tr. 117-18. Also, Stewart acknowledged that Superintendent Twellman
advised Stewart about MSHA’s Rules to Live By, confirming that Respondent knew that MSHA
was focusing compliance initiatives on certain standards, including fall protection and lock
out/tag out standards. Additionally, the Secretary relied on Sherrill’s testimony that he discussed
the importance of using fall protection during the pre-inspection conference with Stewart. Tr. 6970, 141-44. See P. Br. at 18.
Regarding Respondent’s knowledge of the existence of the violation(s), the Secretary
relied on Stewart’s allegedly conflicting testimony about what he expected Nichelson to do, wait
for him or lock out. Tr. 261, 321. Stewart acknowledged that his instructions were unclear. Tr.
286. The Secretary emphasized that after issuing the instructions, Stewart testified that he
thought Nichelson was going to lock out the belt, and that the lock out is performed by the
individual who is going to clear the rock jam. Thus, the Secretary argued that Stewart should
have assumed that the Nichelson would clear the rock jam himself. Further, Stewart should have
known from personal experience that it was possible for a hurried miner to climb up to the rock
jam and overlook the need to lock and tag out and use fall protection. See P. Br. at 19.
Finally, the Secretary argued that the high negligence designation was warranted per
regulation because Stewart knew or should have known of the alleged violations, and there were
no mitigating circumstances, as Sherrill testified. P. Br. at 19; Tr. 107-115. More specifically,
the Secretary argued that Stewart’s response to a highly hazardous condition, the rock jam,
constituted high negligence because Stewart should have given effective instructions to
Nichelson regarding how to clear the rock jam, and should have ensured that Nichelson used fall
protection and followed lock out/tag out procedures, particularly since a former plant operator,
who was present that day, could have inadvertently started the conveyor belt while Nichelson
was standing up there without tying off. Id. at 20-22; Tr. 324. The Secretary relied on Sherrill’s
testimony that he did not consider Stewart’s alleged instruction to Nichelson to "shut it down and
wait" to mitigate the ineffectiveness of the communication. Id. The Secretary argued that
Stewart's unmitigated negligence resulted in a miner working on an elevated conveyor belt
without the use of fall protection, while power was not locked out. P. Br. at 20-21. In sum, the
Secretary concluded that while the incident was brief in duration, it was extraordinarily
dangerous and constituted an inexcusable and unwarrantable breach of mine safety procedures
involving two mandatory safety standards as a result of a serious lack of reasonable care on the
part of management. Accordingly, the Secretary argued that the undersigned should have
enforced both Citation No. 6575266 and Order No. 6575267 as written, and assessed the
proposed penalties. P. Br. at 24
Although I rejected these arguments after hearing all the evidence, and weighing the
credibility of witnesses, the language summarizing my conclusions regarding the unwarrantable
failure factors indicates that the issue was close and the Secretary’s position was substantially
justified.
. . . Citation No. 6575266 was of a very serious nature and placed
Nichelson in a high degree of danger. I strongly concur with the
parties' stipulation that the fall protection violation was properly
designated significant and substantial. Nichelson's failure to don
fall protection as described in Citation No. 6575266 was highly

36 FMSHRC Page 3293

likely to result in an injury and there is sufficient evidence to show
that such an injury was reasonably likely to be fatal.
Despite the high risk of danger, however, the other unwarrantable
factors are either neutral or weigh against an unwarrantable failure
finding. The Secretary's own witness testified that Stewart did not
have knowledge of the violation and there was no evidence that
Stewart should have expected Nichelson to violate safety
protocols. Respondent was not placed on notice that greater efforts
were needed to achieve compliance with the standard, and the
violation was not obvious to Stewart given the location of the belt
and the short duration of the hazard. Although the scope of the
hazardous practice was limited in terms of area and the number of
miners affected, Stewart's testimony of past violations suggests
that the violative practice may have been more extensive and
signaled a possible culture of disregard for safety standards when
miners were in a hurry. This is troubling and I take this into
account in assessing a penalty for the violation. Nevertheless, I
find that the totality of the factors weigh against a finding of
unwarrantable failure for Citation No. 6575266.
35 FMSHRC at 1410-11.
Having reexamined the record as a whole in light of the Secretary’s proof and arguments
on briefs, I find that the Secretary had a reasonable basis in fact and law for pursuing its
litigation theories in the civil penalty proceedings below and was substantially justified to a
degree that could satisfy a reasonable person. Pierce v. Underwood, 487 U.S. at 565. As
outlined above, the Secretary established a reasonable basis in truth for the facts alleged, a
reasonable basis in law for the theories advanced, and a reasonable connection between the facts
alleged and the legal theories advanced. As the Fourth Circuit has recognized, “although the
impulse to equate ultimate judicial rejection of the Government's merits position--at whatever
level--with its lack of substantial justification is understandable, the courts perforce have rejected
it as inappropriate, for to do so, ‘“would virtually eliminate the ‘substantially justified’ standard
from the statute.”’ United States v. Paisley, 957 F.2d 1161, 1167 (4th Cir. 1992) (quoting Broad
Avenue Laundry & Tailoring v. United States, 693 F.2d 1387, 1391-92 (Fed. Cir. 1982). It would
be “a war with life's realities to reason that the position of every loser in a lawsuit upon final
conclusion was unjustified.” Id. (quoting Evans v. Sullivan, 928 F.2d 109, 110 (4th Cir. 1991).
The Secretary’s litigation position and proof could have satisfied a reasonable person. I
emphasize that this case could have come out differently depending on certain credibility
resolutions or other legal determinations made after trial. See e.g., Ray, employed by Leo
Journagan Constr. Co., 20 FMSHRC 1014, 1026-27 (Sept. 1998) (citing Europlast Ltd. v.
NLRB, 33 F.3d 16, 17-18 (7th Cir. 1994) (“noting that NLRB had no way of foreseeing that the
judge would make credibility resolutions in favor of Respondent’s witnesses and against
NLRB’s witnesses.”)). I could have credited Nichelson over Stewart’s varying versions of what
was said and found that Stewart told Nichelson to shut it down, but did not tell Nichelson to wait
for him. Nichelson was the plant operator, Stewart was busy with MSHA trying to avoid

36 FMSHRC Page 3294

additional citations, and Stewart had previously witnessed Nichelson clear one rock jam and was
aware that Nichelson had cleared at least two rock jams prior to the instant incident on July 14,
2010. Moreover, Stewart saw Nichelson walk off in the direction of one who would perform lock
out and tag out. Based on this record evidence, and my close examination of the demeanor of
Respondent’s witnesses and their responses to tightly scripted and often leading questions from
Respondent’s counsel, I came close to concluding that Respondent’s litigation strategy was to
make Nichelson the fall guy, who appeared to have violated instructions, in an effort to shield
Stewart and Respondent from responsibility for Nichelson’s unlawful actions after direction
from Stewart.
Furthermore, irrespective of exactly what Stewart told Nichelson, I found that Stewart’s
decision to provide instructions near the diesel generator was not without consequence and was
(at least) moderately negligent. 35 FMSHRC at 1404. Stewart conveyed instructions with a lack
of care, which departed from what an ordinary and prudent operator, familiar with the mining
industry and in dealing with MSHA, would have done in the same or similar circumstances.
There is no doubt that his instructions were conveyed in an extremely noisy environment, where
they were capable of falling on deaf ears or being misunderstood. Further, Stewart’s instructions
were conveyed hastily, and outside the earshot of MSHA inspectors, who could have helped
Respondent properly resolve the rock jam. These facts, particularly in light of Stewart’s admitted
failures as a rank-and-file miner to comply with both the fall protection and lock out/tag out
standards when busy or in a hurry, reasonably could have led to a conclusion that Stewart
signaled Nichelson to resolve the rock jam consistent with this unlawful practice before it
attracted additional attention from MSHA. In fact, after speaking with Stewart, Nichelson did
just that, but got caught by MSHA in the violative conduct. That could have been aggravated
conduct with high negligence by Respondent.
In short, the Secretary proved up facts and advanced legal theory that reasonably
supported the view that the Secretary’s litigation position with regard to Citation 6575266 was
substantially justified. Although ultimately not persuasive, the Secretary's position turned
largely on credibility and a weighing of various evidence, and it was based on more than
supposition or conjecture. His legal conclusions flowed from a rational process of reasoning and
logical deduction. The unwarrantable failure and high negligence issues were close, and could
have come out another way.2
2

Furthermore, although not specifically argued by the Secretary in light of the stipulation
that Nichelson was a rank-and-file miner, it is arguable that such stipulation could have been set
aside as contrary to law. In this regard, it was arguable that Nichelson was acting as
Respondent’s agent, whose negligence was imputable to Respondent for penalty and
unwarrantable failure purposes. Section 3(e) of the Mine Act defines "agent" as “any person
charged with responsibility for the operation of all or a part of a coal or other mine or the
supervision of the miners in a coal or other mine.” Although Nichelson was not a supervisory or
managerial employee, he was charged with responsibility for the operation of all or a part of the
mine. He was the plant operator controlling the operation of the mine by starting and stopping
the plant from the control booth.
(continued…)

36 FMSHRC Page 3295

B.

Order No. 6575267

Section 104(d)(1) Order No. 6575267 alleges that Respondent unwarrantably failed to
comply with the lock out/tag out standard at 30 C.F.R. § 56.12016. 30 C.F.R. § 56.12016 is a
mandatory standard which provides:
Electrically powered equipment shall be deenergized before mechanical work is
done on such equipment. Power switches shall be locked out or other measures
taken which shall prevent the equipment from being energized without the
knowledge of the individuals working on it. Suitable warning notices shall be
posted at the power switch and signed by the individuals who are to do the work.
Such locks or preventative devices shall be removed only by the persons who
installed them or by authorized personnel.
The citation ascribed high negligence to Respondent for an alleged violative condition that was
“highly likely” to result in an injury that could reasonably be expected to be fatal. The Secretary
proposed a penalty of $17,301.
The substantial justification analysis for this Order is more problematic because I set
aside the parties stipulation of an S&S violation and vacated Order No. 6575267 based on wellestablished circuit court precedent that neither party discussed or relied upon. I found that
although the Secretary has long argued that 30 C.F.R. § 56.12016 covers hazards associated with
mechanical movement as opposed to electric shock, this interpretation is contrary to the clear
meaning of the standard when examined in the context of the regulatory scheme. 33 FMSHRC
at 1440, citing Phelps Dodge Corp., 681 F.2d 1189, 1192 (9th Cir. 1982); Northshore Mining
Co., 709 F.3d 706 (8th Cir. 2013).
2

(…continued)
In taking steps to clear the rock jam and start the plant operating again, it is arguable that
Nichelson was acting within the scope of his employment as Respondent’s operator agent with a
level of responsibility normally delegated to management personnel. It is undisputed that a
supervisor or plant manager usually cleared the rock jams, although a rank-and-file miner
occasionally did so. Stewart admitted as much. Here, the record establishes that Nichelson was
engaged in work that entailed "responsibility for the operation of all or a part of a . . . mine.”
Moreover, he was standing around near the rock jam talking to other miners before Stewart
arrived. Thus, it could have been argued that Respondent held Nichelson out as its agent with
apparent authority to act on behalf of management to clear the rock jam.
Thus, in the unique circumstances of this case, based on the facts the Secretary presented,
it was arguable that Nichelson acted as agent of Respondent when he performed a typical
managerial function and cleared a rock jam necessary for restarting production, without using
fall protection. Had this been persuasively established, the undersigned could have set aside the
parties stipulation that Nichelson was a rank-and-file miner whose conduct was not attributable
to Respondent and found that Nichelson’s gross negligence was imputable to Magruder
Limestone for penalty and unwarrantable failure purposes.

36 FMSHRC Page 3296

But the undersigned’s reliance on such circuit court precedent does not compel the
conclusion that the Secretary’s legal interpretation was not substantially justified, particularly
when Commission law on the subject is unsettled and could be read to support the Secretary’s
longstanding interpretation that the lock out requirements in 30 C.F.R. § 56.12016 were intended
to protect miners performing mechanical work even where there was no danger of electric shock.
Although I ultimately was persuaded that 30 C.F.R. § 56.12016 was not applicable based on the
reasoning of the Ninth Circuit in Phelps Dodge and the Eighth Circuit in Northshore Mining -- a
case that was not even decided at the Commission level when the underlying civil penalty matter
was tried in June 2012 --, this authority was not binding on the Secretary, who was free to litigate
a contrary position before the Commission to create a split in the circuits, particularly where
other extant authority supports the Secretary’s long-standing position. See, e.g., Ray, employed
by Leo Journagan Constr. Co., 20 FMSHRC 1014, 1023 (Sept. 1998)(“[a]lthough section
56.12016, standing alone, could be viewed as containing a plain and unambiguous lockout
requirement, section 56.14105 and the case law interpreting that standard creates uncertainty
regarding the scope of that lockout requirement.”); Empire Iron Mining Co., 29 FMSHRC 999,
1003 n.8 (2007) (dictum agreeing with dissent in Phelps Dodge [681 F.2d at 1193 (Boochever,
dissenting)] that the language of § 56.12016 “is clear and unambiguous” and reiterating
statement of ALJ in underlying decision [29 FMSHRC at 328] that “the standard means exactly
what it says – to wit, that ‘[e]lectrically powered equipment shall be deenergized before
mechanical work is done on such equipment.’”); Northshore Mining Co., 34 FMSHRC 663, 674
(Mar. 2012) (ALJ)(finding a violation of § 56.12016 despite Phelps Dodge and holding that
“while 30 C.F.R. § 56.12016 and 30 C.F.R. § 56.14105 have many overlapping characteristics,
they do not in any way preclude one another.”); Blue Mountain Prod. Co., 32 FMSHRC 1464,
1478-79 (Oct. 2010) (ALJ) (finding violation of § 56.12016 where miners were repairing
conveyor that was not locked out/tagged out); QMAX Co., 28 FMSHRC 848, 854 (Sept. 2006)
(ALJ) (finding “clear” violation of § 56.12016 where miners working on conveyor belt that was
de-energized but not locked out/tagged out were exposed to entanglement hazards).
In my view, this split of authority gave the Secretary a reasonable basis in law to support
a violation of § 56.12016 in the instant litigation before the Commission, notwithstanding
contrary circuit precedent. As I noted in Pattison Sand Company, LLC, 34 FMSHRC 2938,
2943, n. 3 (Nov. 2012) (ALJ), the Commission has not addressed the issue of non-acquiescence
to circuit court decisions despite the fact that there is considerable authority that an
administrative agency charged with the duty of formulating uniform and orderly national policy
in adjudications is not bound to acquiesce in the views of the U.S. Courts of Appeals that conflict
with those of the agency. See, e.g., S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273,
1278-1279 (5th Cir. 1981); see generally Samuel Estreicher, Nonacquiescence by Federal
Administrative Agencies, 98 Yale L.J. 679, 681 (1989). Clearly, the language of the Mine Act
gives the Commission jurisdiction over “substantial question[s] of law, policy or discretion.” 30
U.S.C. § 823(d)(2)(A)(ii)(IV). The Supreme Court has recognized the unique role of the
Commission as the arbiter of questions of interpretation of the Mine Act. Thunder Basin Coal
Co. v. Reich, 510 U.S. 200, 214 (1994) (affirming the Commission’s role in formulating a
uniform and comprehensive interpretation of the Mine Act).
Accordingly, in this unsettled area, the Secretary was entitled to advance its longstanding
interpretation of § 56.12016 in an effort to convince the Commission to utilize its unique

36 FMSHRC Page 3297

adjudicatory expertise and either bow to or disagree with the Ninth and now Eighth Circuits. As
the Eighth Circuit recognized in an analogous EAJA context:
The substantial justification standard, however, should not be used
to deter the government from bringing cases of first impression or
offering novel arguments. The special circumstances exception “is
a ‘safety valve’ designed to ‘insure that the Government is not
deterred from advancing in good faith the novel but credible
extensions and interpretations of the law that often underlie
vigorous enforcement efforts.’ ” Russell v. Nat’l Mediation Bd.,
775 F.2d 12884, 1290(5th Cir. 1985)(quoting H.R. Rep. No. 961418 at 11 (1980)).
S.E.C. v. Zahareas, 374 F.3d 624, 627 (8th Cir. 2004). Similarly, if the case turns on an
unsettled or close question of law, as here, the government's position will normally be
substantially justified, notwithstanding the fact that its legal position is ultimately rejected, unless
it clearly offends established precedent. Washington v. Heckler, 756 F.2d 959, 961-62 (3d Cir.
(1985). As noted, Commission precedent on this issue has not been clearly established.
It is troubling that the Secretary declined to appeal to the Commission my underlying
decision adopting the views of the two circuits in this unsettled area. Had he done so, he may
have prevailed. Perhaps the Secretary chose to wait for a better case, or for better facts, or for a
judge’s decision, like those in Northshore Mining, Blue Mountain Prod., or QMAX Co., where
the judges found a § 56.12016 violation where no electric shock hazard was present. Certainly,
given this difficult and unsettled area of law, the Secretary presented facts supporting a
longstanding lock-and-tag-out theory of violation that, although rejected, was substantially
justified because reasonable persons, including numerous Secretaries and several other
Commission judges, have thought that it has a reasonable basis in fact and law when mechanical
work is done on electrically powered equipment.
Finally, since the Secretary essentially relied on the same facts and legal arguments to
justify the high negligence and unwarrantable failure designations in Order No. 6575267 that he
relied on to justify those factually and legally parallel allegations in Citation No. 6575266, I find
that the Secretary has established that his litigation position with respect to the failure to lock and
tag out was also substantially justified for essentially the same reasons as those set forth above
concerning the fall protection violation. Accordingly, I conclude that the Secretary was
substantially justified both in fact and in law in proceeding with the underlying litigation as a
whole.
C. Special Circumstances Make an EAJA Award Unjust with Regard to Order No.
6575267
Magruder’s rather audacious play for attorney fees is troubling given its stipulation that it
engaged in a significant and substantial violation of 30 C.F.R. § 56.12016. Despite the fact that
Magruder and its attorneys never uncovered the circuit court case law relied on by the

36 FMSHRC Page 3298

undersigned to vacate Order No. 6575267, it now asks the Commission to award it attorneys’
fees and costs because the Secretary should have uncovered this precedent and backed off the
stipulation. Although Magruder correctly points out that the Secretary has the burden of proving
that its litigation position was substantially justified, I have found that he met that burden with
regard to the litigation as a whole, including the unwarrantable failure and high negligence
designations.
I further find that special circumstances make an EAJA award unjust with regard to the
vacatur of Order No. 6575267 because Magruder stipulated to an S&S violation, and it would
contravene principles of equity, fairness and justice to recompense Magruder for time and
expense that the administrative tribunal, sua sponte, determined to be erroneous. In explaining
the “special circumstances” exception, the House Report accompanying the EAJA stated:
Furthermore, the Government should not be held liable where
“special circumstances would make an award unjust.” This “safety
valve” helps to insure that the Government is not deterred from
advancing in good faith the novel but credible extensions and
interpretations of the law that often underlie vigorous enforcement
efforts. It also gives the court discretion to deny awards where
equitable considerations dictate an award should not be made.
H.R.Rep. No. 1418, 96th Cong., 2d Sess. at 11, reprinted in 1980 U.S.C.C.A.N 4953, 4990. “The
EAJA thus explicitly directs a court to apply traditional equitable principles in ruling upon an
application for counsel fees by a prevailing party.” Oguachuba v. INS, 706 F.2d 93, 98 (2d Cir.
1983).
I agree with the Secretary that Magruder justly cannot claim that it deserves to be paid for
time spent being wrong by stipulating to facts and law supporting the lock out tag out violation
and concomitant S&S designation during the course of this litigation. Not one billable hour nor
one word in Magruder’s post-hearing brief appears to be spent on supporting any argument or
research that Phelps Dodge Corp., 681 F.2d 1189, 1192 (9th Cir. 1982) or progeny justified
vacating Order No. 6575267.3
I further agree with the Secretary that Magruder’s ongoing stipulation to the fact of the
S&S violation in Order No. 6575267 had the practical effect of foreclosing the Secretary’s
argument in the alternative that the facts in question supported a violation of 30 C.F.R. §
56.14105. This was understandable since stipulations are designed to narrow issues and areas of
disagreement and simplify proceedings. Balancing the equities under the special circumstances
exception, Magruder’s work on a stipulated violation cannot equitably be deemed to have been
expended in pursuit of the fortuitous vacatur achieved here. Cf., United States v. 27.09 Acres of
Land in Town of Harrison, 43 F.3d 769, 775 (2d Cir. 1994)(eligible, prevailing party was denied
attorneys' fees under the special circumstances exception because it did not substantially
3

As noted, Northshore Mining Co., 709 F.3d 706 (8th Cir. 2013) came down in March
2013, two months before my underlying decision, and a year after the judge in that case adopted
the Secretary’s interpretation of 30 C.F.R. § 56.12016 that was advanced here.

36 FMSHRC Page 3299

contribute to the successful phase of the litigation by ineligible parties, and fees were not
expended on discrete efforts that achieved an appreciable advantage).
IV.

Order

Having evaluated the record as a whole and the arguments presented by each party, and
having applied the relevant law, it is ORDERED that EAJA fees be DENIED. The Secretary
has established that an EAJA award is not appropriate because his position was substantially
justified with regard to Citation No. 6575266 and Order No. 6575267, and that special
circumstances make an award of fees unjust with regard to the vacatur of Order No. 6575267.

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

Distribution:
Courtney Przybylski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 800, Denver, CO 80202-5708
R. Lance Witcher, Esq., Ogletree, Deakins, Nash, Smoak, & Steward, P.C., 7700 Bonhomme
Ave., Suite 650, St. Louis, MO 63105

36 FMSHRC Page 3300

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

December 22, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2011-295
A.C. No. 11-03189-241092

v.
M-CLASS MINING LLC,
Respondent

Mine: MC #1 Mine

DECISION
Appearances: Bryan R. Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Christopher D. Pence, Esq., Hardy Pence PLLC, Charleston, West Virginia,
for Respondent.
Before:

Judge Paez

This case is before me upon the Petition for the Assessment of a Civil Penalty filed by the
Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). In dispute are two section 104(a)(1)
citations issued by the Mine Safety and Health Administration (“MSHA”) to M-Class Mining
LLC (“M-Class” or “Respondent”) as the owner and operator of the MC #1 Mine. To prevail, the
Secretary must prove the cited violations “by a preponderance of the credible evidence.” In re:
Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995)
(citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom.,
Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This
burden of proof requires the Secretary to demonstrate that “the existence of a fact is more
probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept.
2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).

36 FMSHRC Page 3301

I. STATEMENT OF THE CASE
The two alleged violations in this case were issued at M-Class Mining’s MC #1 Mine.
The first alleged violation involves Citation No. 8424233, which charges M-Class with a
violation of 30 C.F.R. § 75.380(d)(4)1 for failing to maintain the mine’s alternate escapeway at
the required width. The second involves Citation No. 8424774, which charges Respondent with a
violation of 30 C.F.R. § 77.1109(d)2 for failing to provide a fire extinguisher at the top of the
clean coal stacker tower. The Secretary characterizes M-Class’s negligence as high for Citation
No. 8424233 and as moderate for Citation No. 8424774. The Secretary proposes a penalty of
$425.00 for the first violation and $100.00 for the second, for a total penalty of $525.00.
Chief Administrative Law Judge Robert J. Lesnick assigned Docket No. LAKE 2011-295
to me, and I held a hearing in Evansville, Indiana.3 The Secretary presented testimony from
MSHA inspectors Marty Gayer and J. Scott Lee. M-Class Mining presented testimony from
Safety Manager Tim Kirkpatrick, former M-Class Vice President of Operations Barrett Fox, and
current M-Class President Anthony Webb. The parties each filed post-hearing briefs and reply
briefs.
1

Section 75.380(d) provides, in relevant part—
Each escapeway shall be –
....
(4) Maintained at least 6 feet wide except –
....
(iv) Where mobile equipment near working sections, and other equipment
essential to the ongoing operation of longwall sections, is necessary during
normal mining operations, such as material cars containing rock dust or
roof control supplies, or is to be used for the evacuation of miners off the
section in the event of an emergency. In any instance, escapeways shall be
of sufficient width to enable miners, including disabled persons, to escape
quickly in an emergency. When there is a need to determine whether
sufficient width is provided, MSHA may require a stretcher test where 4
persons carry a miner through the area in question on a stretcher.

2

Section 77.1109 provides, in relevant part, as follows:
Preparation plants, dryer plants, tipples, drawoff tunnels, shops, and other
surface installations shall be equipped with the following firefighting
equipment.
....
(d) Fire extinguishers shall be provided at permanent electrical
installations commensurate with the potential fire hazard at such
installation in accordance with the recommendations of the National Fire
Protection Association.

3

In this decision, the hearing transcript, the Secretary’s exhibits, and M-Class Mining’s
exhibits are abbreviated as “Tr.,” “Ex. GX–#,” and “Ex. MC–#,” respectively.

36 FMSHRC Page 3302

II. ISSUES
For Citation No. 8424233, the Secretary asserts that Respondent failed to fulfill the duty
imposed by 30 C.F.R. § 75.380(d)(4) by placing equipment in the mine’s alternate escapeway
that impermissibly reduced the width of the passage, preventing miners from exiting quickly
through the escapeway during an emergency. (Sec’y Br. at 8–11.) The Secretary claims that
M-Class’s actions constituted high negligence because the operator knew MSHA considered the
conditions to be a violation. (Id. at 14.) In contrast, M-Class argues that an exception in the
regulation requires only that miners be able to move through the narrowed escapeway carrying a
stretcher, and that its miners satisfactorily completed this stretcher test. (Resp’t Br. at 1–2.)
M-Class does not claim that any other regulatory exceptions apply. (Id.) Alternatively,
Respondent claims its actions did not constitute high negligence because it did not know the
conditions constituted a violation under the regulations. (Id. at 16–17.)
For Citation No. 8424774, the Secretary contends M-Class failed its duty under 30 C.F.R.
§ 77.1109(d) to provide a fire extinguisher for all permanent electrical installations. (Sec’y Br. at
16–17.) The Secretary asserts that electrical fixtures at the top of M-Class’s clean coal stacker
belt required a fire extinguisher. (Id. at 17.) Respondent contends no permanent electrical
installations were located at the top of the clean coal stacker, and therefore a fire extinguisher
was not required at the location. (Resp’t Br. at 18.)
Accordingly, the following issues are before me: (1) whether the Secretary has carried his
burden of proof that Respondent violated the Secretary’s mandatory health or safety standards
regarding the requisite width of mine escapeways; (2) whether the Secretary has carried his
burden of proof that Respondent violated the Secretary’s mandatory health or safety standards
regarding the presence of fire extinguishers at above-ground mine locations; (3) whether the
record supports the Secretary’s assertions regarding the gravity of the alleged violations; (4)
whether the record supports the Secretary’s assertions regarding M-Class Mining’s negligence in
committing the alleged violations; and (5) whether the Secretary’s proposed penalties are
appropriate.
For the reasons that follow, Citation No. 8424233 is AFFIRMED as written and Citation
No. 8424774 is VACATED.
III. BACKGROUND
The MC #1 Mine is a coal mine in Franklin County, Illinois, that opened in 2008.
(Tr. 194:15–20.) By October 2010, M-Class had begun development of the headgate and tailgate
that eventually would provide access and ventilation for the mine’s first longwall panel.
(Tr. 74:8–16.) The mine’s headgate, which is integral to creating the longwall operation, had
three entries, with large pillars of coal approximately 100 feet wide separating each entry.
(Tr. 78:7–9, Tr. 95:2–3; Ex. MC–1, Ex. MC–1A). Every 100 feet, crosscuts through the coal
pillars connected the entries, creating a latticework grid pattern if viewed from above. (Tr. 95:7–
10; Ex. MC–1.)

36 FMSHRC Page 3303

M-Class installed permanent concrete stoppings in the crosscuts to control the flow of air
through the mine. (Tr. 79:21–23, 179:12–22.) Fresh air flowed into the headgate through the No.
3 Entry to ventilate the area being developed by a continuous miner. (Tr. 78:19–79:6.) The No. 3
Entry, as the intake, also served as the primary escapeway from the headgate. (Tr. 78:19–25,
190:13–191:12.) After sweeping across the face where active mining was taking place, the nowcontaminated air flowed down the No. 1 Entry, or the return, and out of the mine. (Tr. 79:24–25.)
A lesser volume of air also flowed away from the active mining face and down the No. 2 Entry,
which is located between the No. 1 and No. 3 entries. (Tr. 79:7–16.) The No. 2 Entry served as
the mine’s alternate escapeway, i.e., the back-up route of escape in case the primary escapeway
is blocked. (Tr. 79:7–12.)
In accordance with MSHA regulations, M-Class placed its coal conveyor belt in the No. 2
Entry. (Tr. 79:7–9.) The coal conveyor belt transports coal mined during the headgate’s
development to the surface, where the coal is processed before being placed into storage.
(Tr. 27:5–12, 143:14–17.) After this processing, a long belt takes the clean coal to the top of a
100-foot-tall clean coal stacker tower, from which the mine loads the coal into storage silos to
await shipment to market. (Tr. 157:8–12, 158:2–3.)
In the No. 2 Entry, M-Class had hung the coal conveyor belt from the ceiling so the
bottom of the belt’s frame was two or three feet above the mine floor. (Tr. 38:23–39:15, 90:20–
21.) Near the active mining face, M-Class also kept several other large pieces of equipment in
the No. 2 Entry, including a power transformer, cable tub, and water booster pump. (Tr. 28:11–
23.) The power transformer supplied electricity to mining equipment used at the face.
(Tr. 28:20–23.) The water pump provided water to the continuous miner to suppress the coal dust
produced from the mining process. (Tr. 28:22–23.) The cable tub held slack in the cable that
connected the transformer with power sources closer to the surface. (Tr. 29:4–7.)
M-Class developed the headgate of the MC #1 Mine at a rate of nearly 500 feet per day.
(Tr. 221:7–14.) As a result, M-Class had to advance its coal belt and the mining equipment by
several crosscuts every 24 to 48 hours. (Tr. 86:2–5, 221:10–14.) To simplify the moving process,
the company chose to leave the transformer, cable tub, and booster pump in the No. 2 Entry
rather than placing them in the crosscuts. (Tr. 209:13–210:6.) By leaving the equipment in the
entry, M-Class could advance the section by hooking the three pieces of equipment to a scoop,
towing them straight forward like a train. (Tr. 207:15–17.) M-Class also believed that moving
the equipment straight forward rather than in and out of the crosscuts enhanced safety in the
mine. (Tr. 221:12–222:9.)
IV. CITATION NO. 8424233—THE NARROWED ESCAPEWAY
A. Findings of Fact—Citation No. 8424233
On October 22, 2010, MSHA Inspector Marty Gayer visited M-Class Mining’s MC #1
Mine as part of a regular quarterly inspection of the mine. (Tr. 22:6–14.) Inspector Gayer has
extensive training and experience as a mining safety inspector, working for more than ten years
as an MSHA inspector, training specialist, and conference litigation representative. (Tr. 16:20–
17:4.) Gayer also has specialized training in mine emergency situations and worked as a member

36 FMSHRC Page 3304

of MSHA’s national mine rescue team. (Tr. 17:8–9, 17:25–18:18.) Prior to joining MSHA,
Gayer worked for almost 25 years in various other positions in the coal mining industry.
(Tr. 20:7–13.)
On the day of this inspection, Inspector Gayer went to the headgate, which M-Class had
advanced approximately 1,500 feet to the thirteenth crosscut. (Tr. 22:18–22.) Between the
twelfth and thirteenth crosscuts in the No. 2 Entry, Gayer found the alternate escapeway
substantially blocked by the coal conveyor belt on one side and on the other side by mining
equipment, including the power transformer, cable tub, and water pump. (Tr. 23:2–5, 28:11–23.)
The lifeline running down the mine roof of the alternate escapeway passed between the coal belt
and these three pieces of equipment. (Tr. 42:3–6.) Inspector Gayer measured the distance
between the power transformer and the frame of the coal belt and found a width of only 34
inches. (Tr. 35:20–36:13; Ex. GX–2 at 3.) The passageway narrowed even further to 17.5 inches
between the belt and the cable tub, and just 15 inches between the belt and the booster pump.
(Tr. 37:1–13.) Altogether, the equipment narrowed the alternate escapeway for a length of
approximately 50 feet. (Tr. 57:13–15.)
Informed that the alternate escapeway was impermissibly narrow, the operator requested
permission to attempt a stretcher test through the narrowed area. (Tr. 58:7–8.) To perform the
stretcher test, four miners placed another miner on an emergency stretcher and attempted to carry
him through the narrowed escapeway. (Tr. 57:21–25.) The miners were able to pass through the
pinched area, but Gayer noted that they got through the area “with difficulty” and had to juggle
and maneuver the occupied stretcher to pass the constricted section. (Tr. 58:15–21, 115:3–7.)
Rather than carrying the stretcher with one miner at each corner, as designed, the miners had to
line up single file and reach across the stretcher to avoid dumping out the supported miner.
(Tr. 199:9–12, 204:13–25.) To pass the power transformer, which stood approximately five feet
tall, the miners had to lift the occupied stretcher above their heads and sidestep through the
narrow area. (Tr. 58:10–12.) The miners rested the stretcher’s weight on the water pump to pass
that piece of equipment. (Tr. 204:6–12.) Specifically, Inspector Gayer saw the miners scooting or
sliding the stretcher along the mining equipment. (Tr. 58:7–21.) While passing through the
pinched area, the miners at times held on to the frame of the coal conveyor belt. (Tr. 210:19–
211:22.)
Based on his observations, Inspector Gayer issued Citation No. 8424233, alleging a
violation of 30 C.F.R § 75.380(d)(4):
The Alternate Escapeway in #2 Conveyor Belt Entry for Headgate
#1 is not being maintained at least 6 feet wide. The presence of the
Section Transformer #PC 2, the 12,470 high voltage cable tub, ISE
Booster Water Pump #WP 1, and the conveyor belt reduces the
width from 15 to 34 inches between the listed equipment and the
conveyor belt on the North side and from 16 to 35 inches between
the rib and the listed equipment on the South side for a distance of
approximately 50 feet. The route of travel at this location does not
pass [through] a door or other permanent ventilation controls, nor
is there any necessary supplemental roof support in the affected

36 FMSHRC Page 3305

area, located between 12 and 13 crosscuts. The reduced width is
due solely to the presence of the equipment listed.
(Ex. GX–1 at 1.) Gayer designated the violation as unlikely to cause injury and characterized
M-Class Mining’s negligence as “high.” (Id.) Inspector Gayer terminated the citation five days
later on October 27 after M-Class raised the coal conveyer belt so its bottom was at least five feet
above the mine floor. (Id. at 2.)
B. Analysis and Conclusions of Law—Citation No. 8424233
Respondent relies on two theories to escape liability: (1) the area in question fits under
the exception provided in section 75.380(d)(4)(iv), and, alternatively, (2) M-Class did not have
sufficient notice that the conditions constituted a violation. (Resp’t Br. at 6–16.)
1. Violation of Section 75.380(d)(4)
Section 75.380(d)(4) requires that a coal mine’s escapeways be at least six feet, or 72
inches, wide unless an area falls under one of a limited number of exceptions. To prove a
violation, therefore, the Secretary must show (1) the escapeway was less than six feet wide, and
(2) the cited area does not fall under any of four enumerated exceptions.
The exception provided by section 75.380(d)(4)(iv) allows for mobile equipment or
longwall mining equipment to narrow the escapeway to less than six feet. 30 C.F.R.
§ 75.380(d)(4)(iv). Yet the area must still be of sufficient width “to allow miners, including
injured persons, to escape quickly in an emergency.” Id. To determine whether an area is of
sufficient width, MSHA may require a stretcher test, whereby four miners carry a person through
the area in question on a stretcher. Id.; 61 Fed. Reg. 9764, 9811–9812 (Mar. 11, 1996).
Here, Respondent argues that the cited area fell under the exception provided by section
75.380(d)(4)(iv).4 (Resp’t Br. at 7–11.) M-Class further asserts that its miners satisfactorily
completed a stretcher test, proving that the escapeway was of sufficient width in accordance with
the regulation. (Resp’t Br. at 11–13.)5
4

M-Class does not dispute the Secretary’s contention that the exceptions provided in
section 75.380(d)(4)(i), (ii), and (iii) do not apply. See 30 C.F.R. § 75.380(d)(4)(i), (ii), (iii)
(describing exceptions to the width requirement for escapeways).
5

In support of its argument, Respondent points to Rochester & Pittsburgh Coal Co.,
13 FMSHRC 933 (June 1991) (ALJ). (Resp’t Br. at 12–13.) In that case, an Administrative Law
Judge vacated the Secretary’s citation under a prior version of the regulation because the
Secretary failed to meet its burden of proof to show a stretcher could not be navigated through an
area approximately 36 inches wide. Nevertheless, Rochester & Pittsburgh is both legally and
factually distinct from the case at hand. First, Rochester & Pittsburgh dealt with an earlier
version of the regulations addressing the need to maintain escape facilities to ensure passage.
Furthermore, Rochester & Pittsburgh involved a three-foot-wide opening, more than double the
width of the escapeway in question here. I am not bound by Rochester & Pittsburgh, and, given
the factual and legal differences, I see no reason to follow it. 29 C.F.R. § 2700.69(d).

36 FMSHRC Page 3306

Contrary to Respondent’s assertion, the evidence before me does not establish that the
alternate escapeway was wide enough that miners, including injured miners, could escape
quickly during an emergency. Respondent’s stretcher test failed outright under a strict reading of
section 75.380(d)(4)(iv), which requires four persons to carry a miner through the area in
question on a stretcher. As Inspector Gayer and M-Class Vice President Fox testified, the miners
rested the stretcher on top of the water pump and slid it across the equipment instead of carrying
it. I see little to differentiate dragging the stretcher across the equipment at hand and simply
placing the stretcher on the ground and dragging it through the cited area. Neither scenario
satisfies the text of the regulation.
Moreover, the evidence does not show that M-Class’s stretcher test satisfied the
protective intent of the regulation. Inspector Gayer credibly testified that the miners had
difficulty maneuvering through the chokepoint created by the belt and the mining equipment.
Instead of carrying the stretcher as designed, the miners had to line up single file, lift the disabled
miner over their heads, and then shuffle the stretcher across the water pump in order to pass
through the narrow area. The miners were in regular contact with the frame of the coal conveyor
belt, which, when in operation, presents an additional hazard to the miners. Notwithstanding
Vice President Fox’s broad assertions that the miners “carried the guy right down through there”
(Tr. 196:5–7), Respondent did not present evidence countering Inspector Gayer’s testimony.
Given Inspector Gayer’s detailed testimony and contemporaneous notes, I credit his testimony
over the vague statements by Fox.
Furthermore, it is important to note that the miners performing the stretcher test
encountered these difficulties in ideal conditions. The Commission has consistently held that the
test with respect to the use of an escape route “is not whether miners have been safely traversing
the route under normal conditions, but rather the effect of the condition of the route on miners’
ability to expeditiously escape a dangerous underground environment in an emergency.” Am.
Coal Co., 29 FMSHRC 941, 950 (Dec. 2007) (citing Maple Creek Mining, Inc., 27 FMSHRC
555, 560 (citing 61 Fed. Reg. at 9810)). The limited visibility and hazardous conditions caused
by an emergency would be expected to enhance the difficulties the miners encountered while
attempting the stretcher test. (Tr. 42:10–19.)
Respondent’s unwavering focus on the miners’ ability to squeeze through the constricted
escapeway is misplaced. The Mine Act must be construed broadly to achieve the goal of health
and safety, and exceptions to remedial legislation must be construed narrowly. Local Union
7107, UMWA v. Clinchfield Coal Co., 124 F.3d 639, 640–41 (4th Cir. 1997), cert denied, 523
U.S. 1006 (1998); Sec’y of Labor v. Cannelton Indus. Inc., 867 F.2d 1432, 1437 (D.C. Cir.
1989). The purpose of the escapeway-width requirement is to ensure that all persons, including
injured miners, can quickly get out of harm’s way amid a potentially catastrophic emergency.
See 61 Fed. Reg. at 9811–9812. A successful stretcher test is a “demonstration that there is no
delay in escape.” Id. M-Class’s stretcher test demonstrated just the opposite—that miners
scrambling to escape a life-threatening emergency would be forced to wait as their colleagues
twisted and contorted and juggled a full stretcher through a 15-inch gap. Miners should not be
forced to choose between their own safety and the rescue of injured comrades.

36 FMSHRC Page 3307

Based on the evidence before me, I determine that Respondent’s stretcher test did not
show that the MC #1 Mine’s alternate escapeway was of sufficient width to enable miners,
including disabled persons, to escape quickly in an emergency. Accordingly, the exception
provided in Section 75.380(d)(4)(iv) does not apply to the cited area.6
2. M-Class Mining’s Knowledge
In its defense, Respondent claims it cannot be penalized for the blocked escapeway
because it had no knowledge that MSHA considered the discovered conditions to be a violation.
(Resp’t Br. at 13–16.) When determining whether an operator had fair notice of the requirements
of a regulation, the Commission asks “whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would have recognized the specific
prohibition or requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov.
1990). In applying this standard, the Commission has taken into account a wide variety of
factors, including the text of the regulation, its placement in the overall regulatory scheme, its
regulatory history, the consistency of the agency’s enforcement, and whether MSHA has
published notices informing the regulated community with “ascertainable certainty” of its
interpretation of the standard in question. Lodestar Energy, Inc., 24 FMSHRC 689, 694–95 (July
2002).
First, M-Class asserts the regulation is unclear because both the text and MSHA have not
provided a minimum acceptable width under section 75.380(d)(4)(iv). (Resp’t Br. at 15.) Here,
however, the regulatory history repeatedly emphasizes the need for miners to be able to escape
the mine without delay. 61 Fed. Reg. at 9811–9812. The facts in this instance establish that
M-Class did not meet that standard. The escapeway narrowed to 17.5 inches at the cable tub and
to a mere 15 inches between the operational coal belt and the water booster pump. Navigating
such a small gap would require careful maneuvering for even an unencumbered miner, let alone
a team of equipped miners carrying a wounded colleague during an emergency.
Second, Respondent argues that MSHA’s failure to cite the blocked escapeway in prior
inspections should forestall the violation in this instance. (Resp’t Br. at 16.) In support of its
argument, Respondent points to a number of decisions from Commission Administrative Law
Judges vacating citations where MSHA for years prior had either failed to identify violations or
openly declined to cite the conditions. (Id.) Those facts are not present in this case. At the time of
the inspection, M-Class’s first headgate was only 1,500 feet deep. M-Class developed the
headgate at a rate of nearly 500 feet per day, so the specific conditions in this citation could not
have existed for more than several days prior to MSHA’s October 22 inspection.
Considering these factors, I determine that a reasonably prudent miner would have
recognized the alternate escapeway with equipment stored in it was too narrow to allow a
stretcher team to escape quickly. While MSHA’s regulations envisage instances where an
alternate escapeway can be less than six feet wide, reducing the passage to a mere 15 inches is
6

Because M-Class’s escapeway did not meet the regulation’s width requirement, I need
not reach the question of whether the power transformer, cable tub, and water pump qualified
under the section as mobile equipment or equipment necessary for the development of a
longwall.

36 FMSHRC Page 3308

such a drastic reduction that any reasonable miner would notice the narrowing and realize it is
insufficient. M-Class’s tortured reading of the regulation is akin to shoving a square peg into a
round hole. That exercise, like M-Class’s argument, ultimately fails.
Consequently, I conclude that the Secretary has satisfied both elements for a violation of
section 75.380(d)(4), as the cited area of the escapeway was not at least six feet wide, and no
statutory exceptions to the width requirement were applicable. I also conclude that M-Class
reasonably should have known that its actions constituted a violation of the regulation.
3. Gravity
M-Class Mining does not dispute the Secretary’s gravity determination for Citation
No. 8424233. Because the primary escapeway remained clear, I determine that the Secretary
properly concluded that the violation was unlikely to cause injury and that the injuries most
likely to result from an incident involving the violative conditions would be lost workdays or
restricted duty. Finally, I agree that the Secretary properly determined that the violative
conditions affected thirteen persons, the number of miners working in that section of the mine.
4. Negligence
M-Class Mining disputes the Secretary’s determination that the operator displayed high
negligence in allowing the violative condition to exist, as the mine did not know MSHA
considered the blocked escapeway to be a violation. (Resp’t Br. at 16–18.) As discussed above,
however, Respondent should have known that the escapeway was too narrow to allow injured
miners to escape quickly. Furthermore, I note that M-Class abated the violation by simply raising
the coal conveyor belt approximately three feet higher than it had been initially installed.
Although M-Class presented testimony to the difficulty of placing its equipment in crosscuts
rather than the escapeway, Respondent provided no explanation for its failure to adopt the simple
precaution of raising the conveyor belt. Absent such evidence, it is unclear to me why M-Class
failed to pursue such a seemingly straight-forward precaution to meet the high standards of miner
safety required by the Mine Act. I conclude that the Secretary has demonstrated M-Class
Mining’s level of negligence to be high. See 30 C.F.R. § 100.3(d) at Table X (suggesting “high
negligence” where the “operator knew or should have known of the violative condition or
practice, and there are no mitigating circumstances.”)
C. Penalty
The Secretary proposes a $425.00 civil penalty for this violation. Under section 110(i) of
the Mine Act, I must consider six criteria in assessing a civil penalty: (1) the operator’s history of
previous violations; (2) the appropriateness of the penalty relative to the size of the operator’s
business; (3) the operator’s negligence; (4) the penalty’s effect on the operator’s ability to
continue in business; (5) the violation’s gravity; and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C.
§ 820(i).

36 FMSHRC Page 3309

In the seven months prior to the MSHA inspectors’ visit, M-Class Mining received
sixteen citations or orders for violations of mandatory safety and health standards. M-Class is a
relatively large operator, receiving nine out of a potential ten points for controller size under the
Secretary’s penalty criteria in his Part 100 regulations. See 30 C.F.R. § 100.3(b). Nothing in the
record suggests that the penalty would impinge on Respondent’s ability to remain in business.
Moreover, M-Class was highly negligent in allowing its mining equipment to block much of the
mine’s alternate escapeway, and although the violation was not likely to cause injury or illness,
the restricted escapeway affected a large number of persons. Nevertheless, I acknowledge
Respondent’s timely efforts to remedy the violative condition.
Considering all of the facts and circumstances of this matter, I conclude that the
Secretary’s proposed penalty is appropriate and assess a penalty of $425.00.
V. CITATION NO. 8424774—THE CLEAN COAL STACKER
A.

Findings of Fact—Citation No. 8424774

On October 28, MSHA Inspector J. Scott Lee inspected the surface areas at M-Class’s
MC #1 Mine as part of a regular quarterly inspection of the mine. (Tr. 141:25–142:5.) Lee had
worked for a total of 37 years in the mining industry, including 22 to 23 with mine operators and
another 13 with MSHA. (Tr. 122:4–6.) Lee inspected coal stacker belts as a regular part of his
job with MSHA and frequently as a safety inspector for the coal mines. (Tr. 122:21–25.)
The MC #1 Mine’s stacker belt is powered by drive motors located at the bottom of the
belt. (Tr. 144:8–13.) The top of the clean coal stacker belt contains a laser sensor that trips a
mechanism to stop the motors if the belt becomes clogged. (Tr. 163:20–164:3.) The sensor
switch is controlled from the main controller room, not from the top of the belt. (Tr. 166:23–25.)
The laser sensor is connected to the main controller room with a low-voltage computer cable.
(Tr. 163:20–164:12.) In addition, several lights hang from the coal stacker tower to illuminate
the area below. (Tr. 167:18–168:7.) There are also a number of lights along the walkway leading
to the top of the clean coal stacker. (Tr. 167:15–17.) No power distribution center or power box
is located at the top of the clean coal stacker belt. (Tr. 170:2.)
Inspector Lee testified that he found permanent electrical installations, such as a circuit
control panel, at the top of the mine’s clean coal stacker. (Tr. 131:17–20.) Lee searched for but
did not find a fire extinguisher at the top of the coal stacker. (Tr. 139:7–20.) Based on his
observations, Inspector Lee issued Citation No. 8424774, alleging a violation of 30 C.F.R.
§ 77.1109(d): “There was no fire extinguisher located at the permanent electrical installation.
This condition was observed at the drive motor for the clean coal stacker belt on top of the clean
coal stacker.” (Ex. GX–4.) Lee designated the violation as unlikely to cause injury and
characterized M-Class’s negligence as “moderate.” (Id.)
When M-Class Mining’s safety manager, Timothy Kirkpatrick, learned that Inspector Lee
was issuing a citation for the lack of a fire extinguisher at the top of the tower, he asked Lee what
equipment required a fire extinguisher. (Tr. 159:25–160:3.) Lee told Kirkpatrick the citation was
for two gray boxes at the top of the tower. (Tr. 160:2–4.) When pressed by Kirkpatrick, Lee

36 FMSHRC Page 3310

indicated the citation was for the stacker belt’s drive motors. (Tr. 160:5–10.) After Kirkpatrick
informed Inspector Lee that the belt’s drive motors were not located at the top of the tower, Lee
indicated to Kirkpatrick that two gray boxes at the top of the tower required a fire extinguisher.
(Tr. 160:11–20.)
Inspector Lee terminated the citation after M-Class placed a fire extinguisher on two gray
boxes at the cited location that hold a carbon dioxide bottle. (Tr. 161:5–13, 163:1–9; Ex. GX–4
at 1, Ex. GX–5 at 3.) Inspector Lee did not go back to the top of the tower to see where M-Class
placed the fire extinguisher. (Tr. 149:3–7.)
Inspector Lee did not mention the presence of the drive motor in his field notes, which
Lee thought he filled out shortly after issuing the citation. (Tr. 125:16–24.) Lee’s notes do not
identify the installation requiring a fire extinguisher, but instead refer generally to an unspecified
“permanent electrical installation.” (Ex. GX–5 at 2.)
B.

Analysis and Conclusions of Law—Citation No. 8424774

The threshold issue is whether the Secretary has established a violation of 30 C.F.R.
§ 77.1109(d). Inspector Lee issued Citation No. 8424774 for M-Class Mining’s failure to provide
a fire extinguisher at the top of the clean coal stacker belt. (Ex. GX–4.) To demonstrate a
violation of 30 C.F.R. § 77.1109(d), the Secretary must prove by the preponderance of the
evidence that the operator (1) failed to provide a fire extinguisher (2) commensurate with the fire
hazard presented by an electrical installation.
In a sparse, two-page argument, the Secretary asserts that the citation should be affirmed
because M-Class failed to provide a fire extinguisher for the sensor eye located at the top of the
clean coal stacker belt. (Sec’y Br. at 16.) Notably, the Secretary’s argument is a sharp diversion
from the citation issued during Lee’s October 28 inspection. Inspector Lee explained his
erroneous wording in the citation as a clerical error that resulted from him using a template
citation rather than starting from scratch. (Tr. 124:8–20.) Although the Secretary had ample
opportunity to amend the citation to properly reflect the violative conditions discovered atop the
clean coal stacker belt, he nevertheless declined to do so. Moreover, Lee’s notes from the
inspection provide no additional clarity. (Ex. GX–5 at 2–3.)
Inspector Lee’s citation and notes are not the only shortcomings in the Secretary’s case.
At hearing, Lee’s testimony was unclear at best. When the Secretary’s counsel presented
Inspector Lee with Respondent’s photographs of the area at the top of the clean coal stacker belt,
Lee could not identify with certainty a permanent electrical installation requiring a fire
extinguisher nearby. (Tr. 129:23–130:7, 131:13–132:15.) When further prompted on direct
examination to identify the location of the cited permanent electrical installation, Inspector Lee
first stated he had a feeling the electrical installation was on one side of the stacker tower but
then subsequently identified the culprit as a small metal box located on the opposite side of the
tower. (Tr. 132:9–12, 134:13–135:1; Ex. GX–6 at 2–5.) Undeterred, Lee again switched his
testimony on cross-examination, asserting that the cited permanent electrical installation was in
the first location he identified. (Tr. 146:13–25.) The Secretary did not introduce his own
photographs identifying the violative condition.

36 FMSHRC Page 3311

Inspector Lee also could not identify what the alleged permanent electrical installation
was. Lee first testified that he would have cited a circuit control panel. (Tr. 131:17–20.) He
subsequently testified that even a junction box, where two wires meet, would be a permanent
electrical installation for the purposes of section 77.1109(d). (Tr. 135:17–19). On crossexamination, Lee testified that he had identified a circuit box or control panel that was used to
distribute electricity to instruments at the top of the clean coal stacker belt. (Tr. 145:5–8.) Lee
then expanded his definition of a permanent electrical installation to include all conduits.
(Tr. 145:9–18.) When questioned whether his expansive understanding effectively includes all
wires capable of carrying an electrical current, Lee backed off his testimony and again insisted
he was looking for a box. (Tr. 145:19–146:6.) Lee further testified that he did not need to know
the contents of a “silver box” in order to identify it as a permanent electrical installation.
(Tr. 150:2–18, 151:19–23.) Indeed, Lee admitted that he had not thoroughly checked the alleged
electrical installation he cited. (Tr. 151:20–152:3.)
Considering Kirkpatrick’s testimony regarding the inspection, I do not find Inspector
Lee’s testimony to be credible. See Grizzle v. Picklands Mather & Co., 994 F.2d 1093, 1096 (4th
Cir. 1993) (indicating ALJs have the “sole power to make credibility determinations and resolve
inconsistencies in the evidence”). Furthermore, the citation itself is admittedly inaccurate and the
notes unilluminating. Altogether, the Secretary has provided no evidence to support his
allegations that the top of M-Class Mining’s clean coal stacker belt contained any permanent
electrical installation requiring a fire extinguisher to be placed nearby. Although the Secretary in
his reply brief points to the laser sensor as proof that a fire extinguisher was needed atop the
clean coal stacker, he provides no details regarding the fire hazard posed by this low-voltage
sensor and no theory suggesting what type of fire extinguishing equipment such an instrument
would require.7 The Secretary chose not to put Inspector Lee on the stand in rebuttal or call any
rebuttal witnesses.
The Mine Act imposes on the Secretary the burden of proving the violation the Secretary
alleges by a preponderance of the evidence. See Consolidation Coal Co., 11 FMSHRC 966, 973
(June 1989) (citations omitted). Given the lack of evidence before me, I determine that the
Secretary has not satisfied his burden of proof to demonstrate the elements of a violation of
section 77.1109(d). Citation No. 8424774 therefore is vacated.

7

Although MSHA has not provided direct guidance on what constitutes a permanent
electrical installation for the purposes of section 77.1109(d), the agency’s Program Policy
Manual mentions “electric motors or transformers” as examples of such installations. V MSHA,
U.S. Dep’t of Labor, Program Policy Manual, Part 77, 199–200 (2003). Here, the Secretary has
provided no evidence to suggest the low-voltage sensor shares any essential characteristics with
the permanent electrical installations noted in MSHA’s Program Policy Manual.

36 FMSHRC Page 3312

VI. ORDER
In light of the foregoing, it is hereby ORDERED that Citation No. 8424233 is
AFFIRMED. It is further ORDERED that Citation No. 8424774 be VACATED.
WHEREFORE, Respondent is ORDERED to pay a penalty of $425.00 within 40 days of
this Decision.8

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge

Distribution:
Bryan Kaufman, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Boulevard,
Suite 515, Denver, CO 80204-3516
Christopher D. Pence, Esq., Hardy Pence, LLC, P.O. Box 2548, Charleston, WV 25329
/lct

8

Payment should be sent to: U.S. Department of Labor, MSHA, Payment Office,
Box 790390, St. Louis, MO 63179-0390. Please include docket and A.C. numbers.

36 FMSHRC Page 3313

P.O.

ADMINISTRATIVE LAW JUDGE ORDERS

36 FMSHRC Page 3314

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
TH
721 19 ST., SUITE 443
DENVER, CO 80202-2500
OFFICE: (303) 844-5266/FAX: (303) 844-5268

October 29, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 2013-305
A.C. No. 36-05466

v.

Docket No. PENN 2013-306
A.C. No. 36-05466

EMERALD COAL RESOURCES, LP,
Respondent.

Mine: Emerald No. 1

ORDER ASSESSING PENALTY
Before:

Judge Miller

These cases are before me on petitions for assessment of civil penalty filed by the
Secretary of Labor, Mine Safety and Health Administration (“MSHA”) against Emerald Coal
Resources, LP, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815 and 820. These dockets involve two proposed penalties of $20,000.00,
for a total penalty of $40,000.00, for violations of section 105(c)(1) of the Act. The parties have
filed joint stipulations addressing the penalty criteria. For reasons that follow, I assess a total
penalty of $40,000.00.
On June 6, 2013 this court issued an amended decision finding that Respondent had
discriminated against two miners in violation of section 105(c)(1) of the Act. UMWA o/b/o Mark
A. Franks & Ronald Hoy, 35 FMSHRC 1696 (June 2013) (ALJ). The Secretary was not a party
to the discrimination proceedings and, as a result, civil penalties were not proposed prior to the
hearing on the merits. Accordingly, no penalty was assessed in the decision and, rather,
consistent with Commission Procedural Rule 44(b), the court referred the matter to the Secretary
for the assessment of civil penalties. 29 C.F.R. § 2700.44(b). On July 18, 2013 the Secretary
filed petitions for assessment of civil penalties for violations of section 105(c)(1) of the Act and
the docket numbers listed above were assigned. Subsequently, on August 29, 2014, the
Commission affirmed the decision that violations of section 105(c)(1) occurred. UMWA o/b/o
Mark A. Franks & Ronald Hoy, 36 FMSHRC __, slip op. (Docket Nos. PENN 2012-250-D and
PENN 2012-251-D) (Aug. 29, 2014). On September 29, 2014 Respondent filed a petition for
review of the Commission’s decision to the U.S. Court of Appeals for the Third Circuit. On
October 14, 2014 the parties filed joint stipulations aimed at resolving the outstanding penalty
issues related to the dockets on review to the U.S. Court of Appeals. As part of the stipulations,
the parties agree that the two $20,000.00 penalties proposed by the Secretary may be assessed in
these cases so that the penalties may be joined with the underlying discrimination matters on
review. Jt. Stip. ¶ 6.

36 FMSHRC Page 3315

The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine act delegates to the Commission and its judges “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 ALJ must consider ” six statutory penalty criteria which include the history of
violations, the size of the operator, the negligence, gravity, the ability to continue in business and
good faith abatement. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the
Commission has held that “findings of fact on the statutory penalty criteria must be made” by its
judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir.
1984). Once findings on the statutory criteria have been made, a judge’s penalty assessment for
a particular violation is an exercise of discretion that includes a consideration of the penalty
criteria and the deterrent purpose of the Act. Cantera Green, 22 FMSHRC 616, 620 (May
2000).
The parties have stipulated that the outcome of the proceeding before the Court of
Appeals will ultimately control this matter, and that, to promote judicial economy and to
facilitate the review of its case before the U.S. Court of Appeals, this court may proceed to
impose the two $20,000.00 penalties sought by the Secretary in the above captioned proceedings.
Jt. Stip. ¶ 6. Emerald agrees that, if the U.S. Court of Appeals finds that the violations of section
105(c) should be upheld, then the two $20,000.00 penalties may be imposed. Jt. Stip. ¶ 13. The
parties agree that the stipulations do not preclude any argument that the parties may make as to
the underlying discrimination case before the U.S. Court of Appeals, and that once an order
assessing penalties is issued it is Respondent’s obligation to seek review of the penalties in order
for this matter to be joined with the matter currently pending before the U.S. Court of Appeals.
Jt. Stip. ¶ 13.
The parties, in asking the court to impose the two $20,000.00 penalties, have
acknowledged that the penalties are based on the Secretary’s assignment of penalty points to the
size of the controller, the size of the mine, the negligence, the gravity, and the history of 105(c)
violations. Jt. Stp. ¶¶ 6-11. Moreover, Emerald agrees that the penalties as proposed will not
affect its ability to continue in business. Jt. Stip. ¶ 12. Accordingly, each of the relevant penalty
criteria have been addressed by the stipulations.
Given the stipulations of the parties, along with the fact, that I have found that the mine
violated section 105(c) in my earlier decision, I assess a $20,000.00 penalty for the violation of
section 105(c) addressed in the Docket No. PENN 2013-305. Further, on the same basis, I assess
a penalty of $20,000.00 for the violation of section 105(c) addressed in Docket No. PENN 2013306. The Respondent, Emerald Coal Resources, LP, is hereby ORDERED to pay the Secretary
of Labor the sum of $40,000.00 within 40 days of the date of this decision.

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

36 FMSHRC Page 3316

Distribution:
Andrea Appel, U.S. Department of Labor, Office of the Solicitor, Suite 630 East – The Curtis
Center, 170 S. Independence Mall West, Philadelphia, PA 19106
R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222

36 FMSHRC Page 3317

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
TH
721 19 STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577 FAX 303-844-5268

December 2, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2013-781-M
A.C. No. 10-00088-318512-01
Docket No. WEST 2013-782-M
A.C. No. 10-00088-318512-02

HECLA LIMITED,
Respondent

Lucky Friday Mine

ORDER GRANTING INTERVENTION REQUEST
These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Hecla Limited, pursuant to sections 105 and 110 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). These cases are set for hearing on
February 24, 2015, in Coeur d’Alene, Idaho. On October 3, 2014, attorney Eric S. Rossman filed
a letter stating that he represents Ron Barrett, Greg Hammerberg, Eric Tester, and Matt Williams
(the “injured miners”) who were injured by a rock burst that occurred at Hecla Limited’s Lucky
Friday Mine on December 14, 2011. Rossman stated that he sent the letter to inform the court
that the injured miners seek to intervene in these cases pursuant to Commission Procedural Rule
4(b)(1). 29 C.F.R. § 2700.4(b)(1). The cases involve, in part, orders of withdrawal issued by
MSHA following its investigation of the rock burst.
On October 9, 2014, at my request, the injured miners filed a more detailed letter setting
forth the reasons why they wish to intervene in these cases and why they believe that they are
entitled to intervene under the cited procedural rule. Attached to this letter was a statement
signed by the four injured miners stating that they were miners on December 14, 2011, at the
Lucky Friday Mine and that they suffered injuries from the subject rock burst.
By order dated November 5, 2014, I asked the Secretary, Hecla, and the injured miners to
file a short brief or statement setting forth their positions on the intervention request. I asked
them to take into account my order in other Hecla cases (WEST 2012-760-M-A and WEST
2012-986-M) in which I denied the request of a different miner to intervene.
The Secretary and the injured miners filed responses in support of the intervention and
Hecla filed a response opposing the intervention request. I grant the request of the injured miners
to intervene in these cases subject to the conditions and limitations set forth below.

36 FMSHRC Page 3318

As stated above, I denied the request of another miner to intervene in different Hecla
cases. Hecla Limited, 36 FMSHRC____, No. WEST 2012-760-M-A et al. (November 4, 2014).
That miner was injured by a rock fall at the Lucky Friday Mine on April 15, 2011. My
November 4, 2014, order is incorporated herein by reference.
Rossman does not seek to intervene on behalf of the injured miners as a “representative
of miners” as that term is used in the Mine Act and the Secretary’s regulations. Rather the
injured miners seek to intervene in these Commission cases with Rossman as their
representative. Commission Rule 4(b)(1) provides in pertinent part that “affected miners or their
representatives shall be permitted to intervene [in Commission cases] upon filing a written notice
of intervention . . . with the judge.” 29 C.F.R. § 2700.4(b)(1). Section 3(g) of the Mine Act
defines a miner as “any individual working in a coal or other mine.” 30 U.S.C. § 802(g). The
term “affected miner” has not been defined by Commission case law. The only guidance
provided by the Commission is the preamble to Rule 4. Although it focuses upon Rule 4(b)(2), it
clarifies the intent behind rule 4(b) as a whole.1
In my prior order, I relied upon a number of factors to deny the intervention request but I
principally focused upon the fact that the miner seeking intervention was no longer employed by
Hecla. As a consequence, he was no longer a miner exposed to the hazards of falling rock at the
Lucky Friday Mine. The adjudication of the issues would not affect the safety and health of that
miner. As stated in the preamble, an interest in the issues is an insufficient reason to intervene.

1

The preamble states:

The proposed rule added new procedures dealing with intervention and
amicus curiae participation at the trial level. The Commission received a number
of comments on these proposals and has modified the proposals. Paragraph (b)(2)
provides that motions to intervene made by persons other than affected miners or
their representatives shall be filed before the start of a hearing on the merits,
unless the judge, for good cause shown, permits later filing.
Some commenters suggested that the proposed criteria for intervention were too
restrictive, and urged the Commission to permit intervention on the basis of an
interest in the issues involved in a proceeding. The Commission has determined
that interest in issues is too broad a criterion for intervention. Such a standard
could serve to deprive the parties of control over the litigation and could
encumber the Commission's simple administrative trial process. See MidContinent Resources, Inc., 11 FMSHRC 2399 (December 1989)(discussing
criteria for non-party standing to appeal a Commission judge's decision to the
Commission). In denying a motion to intervene, however, a Commission judge
may alternatively permit the movant to participate in the proceeding as amicus
curiae (§ 2700.4(c)).
58 Fed. Reg. 12158, 12160 (Mar. 3, 1993).

36 FMSHRC Page 3319

In the present cases, I find that the injured miners must be classified as “affected miners.”
All the injured miners were employed by Hecla at the time of the roof fall and were allegedly
injured by the roof fall. Three of four of the injured miners are currently employed as miners by
Hecla. The Secretary contends that they are all affected miners. Under Rule 4(b)(1) affected
miners “shall be permitted to intervene.” Although the fourth miner, Matt Williams, may not
qualify as an affected miner on his own, given that Rossman represents him and he was injured
in the same accident, I will permit him to intervene.
Rossman represents all four miners in a state tort action brought against Hecla as a result
of the accident. In the present cases, the Secretary’s counsel is experienced in representing the
interests of miners in cases brought before the Commission under the Mine Act. The injured
miners stated in their brief filed by Rossman on the intervention issue that the “information and
testimony developed in the course of these proceedings are vital to pursuing the civil litigation.”
Brief at 3. The injured miners and their representative must understand that the scope of these
proceedings is narrow. The primary issues are whether Hecla violated the cited safety standards
and, if so, the amount of the assessed civil penalty. Factors that I must consider in assessing a
civil penalty include the “gravity” of the violations and the “negligence” of Hecla, as those terms
are used in the Mine Act. I must also determine whether any violations were the result of Hecla’s
“unwarrantable failure” to comply with the cited safety standards, as that term is used in the
Mine Act. I am not directly charged with the responsibility of determining the cause of the rock
fall or whether Hecla is accountable for the rock fall.
Under Commission Procedural Rule 55, I am responsible for regulating the course of
these proceedings. 29 C.F.R. § 2700.55. In the letter of October 9, 2014, the injured miners
stated that they “will honor the procedures relating to these proceedings and any ruling of this
court.” Letter at 2. In accordance with Rule 55, I am entering certain conditions and limitations
on the participation of the injured miners, as follows:
(1) Discovery – The injured miners, in their letter of October 9, 2014, state that they wish
to intervene “in order to participate in and oversee the proceedings, discovery and submission of
evidence and testimony.” Letter at 2. It is not clear how the injured miners will “participate” in
discovery. Because they are intervenors, their representative will be entitled to a copy of written
discovery responses served by Hecla in response to discovery submitted by the Secretary and
copies of the responses served by the Secretary in response to discovery submitted by Hecla.
Any participation in discovery beyond that will require my prior approval and will not be
favored.
(2) Sequestration – I require the sequestration of witnesses at my hearings because I must
enter findings of fact. Sequestration is crucial because I must assess the credibility of witness
testimony, which I cannot do if witnesses sit in the courtroom and listen to the testimony of other
witnesses or discuss this testimony. As a consequence, if any party plans to call an injured miner
to testify at the hearing, that miner will be subject to my usual rules of sequestration. He will not
be permitted in the courtroom until he testifies, no other witnesses will be permitted to discuss
their testimony with him until after the hearing is over, and he will not be permitted to discuss
his testimony with anyone until the hearing is over. Counsel will be subject to the same
restrictions concerning the discussion of testimony.

36 FMSHRC Page 3320

(3) Other Conditions – The injured miners state that they “have no intention of causing
any unnecessary interference with the proceedings, but do wish to exercise their right to
intervene and assist counsel for the United States and ensure the protection of their interests
during the proceedings.” Letter at 2. In that spirit, I may find it necessary to enter other
conditions upon the participation of the injured miners as these proceedings progress.
For the reasons set forth above, Ron Barrett, Greg Hammerberg, Eric Tester, and Matt
Williams are hereby PERMITTED TO INTERVENE in these cases. The injured miners and
their representative must adhere to the Commission’s procedural rules.

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

Distribution:
Laura Bremer, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3-700,
San Francisco, CA 94103-6704
Laura E. Beverage, Esq., and Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street,
Suite 2150, Denver, CO 80202-1958
Eric S. Rossman, Esq., Rossman Law Group, PLLC, 737 N. 7th Street, Boise, ID 83702
RWM

36 FMSHRC Page 3321

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
th
721 19 STREET, SUITE 443
DENVER, COLORADO 80202-2536
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

December 5, 2014
POCAHONTAS COAL COMPANY, INC.,
Contestant,

CONTEST PROCEEDINGS
Docket No. WEVA 2014-395-R
Order No. 3576153; 12/19/2013

v.
Docket No. WEVA 2014-711-R
Order No. 7169717; 2/10/2014

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

Mine: Affinity Mine
Mine ID: 46-08878
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 2014-1112
A.C. No. 46-08878-353252
Docket No. WEVA 2014-1160
A.C. No. 46-08878-354868

v.
POCAHONTAS COAL COMPANY, INC.,
Respondent.

Mine: Affinity Mine

ORDER DENYING POCAHONTAS’ REQUEST TO WITHDRAW
Before:

Judge Miller

These cases are before me upon notices of contest filed by Pocahontas Coal Company
and petitions for assessment of a civil penalty under section 105(d) of the Federal Mine Safety
and Health Act of 1977. On November 17, 2014 Pocahontas filed a request to withdraw. The
Secretary opposed the request, but opted to not file a formal written response. For reasons that
follow, I DENY Pocahontas’ motion.
On September 30, 2014 the court requested that the Secretary provide the roof control
and ventilation plans in place when five 104(e) orders1 that are contained in these dockets were
issued, and identify the plan provisions that had allegedly been violated. Counsel for Pocahontas
was copied on the email. Pocahontas objected to the Secretary’s submission of the requested
materials and argued that the materials should only be presented to the court in the context of a
hearing. On October 15, 2014 the court clarified, by email, that only the plan cover pages and the
plan provisions which were alleged to have been violated were being sought from the
1

The orders at issue are Order No. 9002712, 9002713, 9002715, 7169717 and 3576153.
The Secretary’s submission explained that Order Nos. 9002712 and 9002713 had been modified
post-issuance to reflect violations of other standards, and were no longer alleged to be violations
of the mine’s roof control plan.
36 FMSHRC Page 3322

Secretary. The court explained that requesting the materials is a practice that allows the court to
prepare for hearing and help the parties narrow the issues. Further, if Pocahontas did not agree
that the proper plans were submitted, it could advise the court and submit the plans that it
believes were in place at the time the orders were issued. Finally, the court made clear that the
submissions would not become part of the record at the time of submission, and that the parties
would need to enter the plans into evidence at the hearing. On October 23, 2014 the Secretary,
via email, submitted the requested materials to the court, with a copy sent to Pocahontas’
counsel. On November 3, 2014, Pocahontas submitted a response in which expressed its concern
with the Secretary’s submission. Subsequently, on November 17, 2014, Pocahontas filed this
request to withdraw in which it seeks to have the ALJ recused.
Pocahontas requests that the undersigned judge withdraw as the presiding judge in these
cases and argues that the judge improperly requested, and viewed, documents from the Secretary
which are not part of the record, thereby placing herself in the “dual role as both an investigator
and adjudicator.” Mot. 7. Rather, the judge should have reviewed the requested documents only
in the context of a stipulation by the parties or a hearing where the documents could be properly
introduced into evidence. In failing to do so, the presiding judge’s conduct evidenced bias, or at
least the appearance of bias, and deprived Pocahontas of a fair and impartial hearing. In other
words, Pocahontas filed this motion, seeking to have the ALJ withdraw, based upon a request,
made to both parties, for a copy of the roof control plan that was alleged as the basis for a
number of citations. Because that plan was sought, Respondent argues that it cannot now receive
a fair and impartial hearing on the many citations included in these dockets. I disagree.
Commission Procedural Rule 81, states that “[a] party may request a . . . Judge to
withdraw on grounds of personal bias or other disqualification. A party shall make such a request
by promptly filing an affidavit setting forth in detail the matters alleged to constitute personal
bias or other grounds for disqualification.” 29 C.F.R. § 2700.81(b). In Medusa Cement Co., the
Commission, in affirming a judge’s decision to not recuse himself, explained that, while the role
of its judges’ is to adjudicate, and not litigate cases, the judges are active participants in the
proceeding with a duty to conduct those proceedings in a manner that yields a just and true
result. 20 FMSHRC 144, 148 (Feb. 1998) (citing Secretary of Labor on behalf of Clarke v. T.P.
Mining, Inc., 7 FMSHRC 989, 993 (July 1985), and Lonnie Jones v. D&R Contractors, 8
FMSHRC 1045, 1053 (July 1986)). The Commission further explained, citing its decision in
Canterbury Coal Co., 1 FMSHRC 1311 (Sept. 1979), that while its judges are afforded
“considerable leeway” in conducting proceedings and developing a record, the judge must not
intervene so much that the parties are unable to develop their case. Id.
The court has not displayed any personal bias or other grounds which would justify
withdrawal, nor has there been any intervention that would hinder the parties in developing their
case. Here, the only action taken by the court was to request that the Secretary provide the roof
control and ventilation plans that he believed were in force at the time the 104(e) orders were
issued, and identify the plan provisions alleged to have been violated. The request was made
with the knowledge of Pocahontas. The court advised the parties that, should Pocahontas dispute
what was submitted, it would be given ample time to submit the plans it believed were in place
when the orders were issued. Further, the court clarified that the material would not become part
of the record until it was either stipulated to, or introduced at hearing. The court has not engaged,

36 FMSHRC Page 3323

and will not engage, in any decision making on the issue of what plans were in effect and which
provisions were allegedly violated prior to a stipulation by the parties or a hearing where the
plans are submitted into evidence. However, it is incumbent upon the court to utilize the powers
afforded it to promote judicial economy by preparing for hearing and narrowing the issues. See
29 C.F.R. § 2700.55. The request for the plans relates to matters alleged in the orders issued by
MSHA. By submitting the plans, the parties and the court are better able to understand what
disputes may arise with regard to those plans, and how much time will be needed to hear
arguments regarding the plans. I find that the arguments made by Pocahontas regarding the
nature of the roof control plan and its use by the court are not only over-reaching but are
histrionic. This is not a case of drama, but a case of fact, and each party has and will continue to
have, the opportunity to present the facts so that the law may be applied as appropriate.
A proceeding involving an alleged violation of a mine plan presents a unique situation
with regard to what legal standard will be applicable when deciding whether a violation exists.
Unlike a typical proceeding where a citation or order alleges a violation of a mandatory standard
promulgated by the Secretary or statutory provision constructed by Congress, citations and
orders involving mine plans allege violations of the actual provisions in the plan. The language
of those provisions is proposed by the mine operator, and approved by MSHA. The Commission
has explained that plan provisions are enforceable as mandatory standards. Martin County Coal
Corp., 28 FMSHRC 247, 254 (Mar. 2011) (ALJ) (citing UMWA v. Dole, 870 F.2d 662, 671
(D.C. Cir. 1989); Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Energy West
Mining Co., 17 FMSHRC 1313, 1317 (Aug. 1995); Jim Walter Res., Inc., 9 FMSHRC 903, 907
(May 1987). In order to properly prepare for this hearing, the court should know what legal
standard the parties believe is at issue. While Pocahontas argues that the Commission judges
should do no research or prepare for hearing, the court disagrees. Rather, it is in both the court’s
and parties’ best interests for there to be some clarity as to what the legal standard is, or could be,
prior to hearing and what issues might be litigated. The court need not, and has not, reached any
conclusion regarding what standard will be applied. However, the court has conducted, and will
continue to conduct, research into the provisions advanced by the parties.
Judges listen closely, read carefully and research thoroughly, before issuing a reasoned,
well-thought-out and impartial decision. Throughout the stacks of motions filed in these, as well
as related cases, I have always listened, read and researched and intend to do so as the case
proceeds. The fact that the Secretary was asked to produce, and the Respondent asked to
comment on, a roof control plan, does not change that practice. Nor does it offer anything to the
case except to narrow the issues and to present an opportunity for the court and the parties to
understand what will be litigated and how much time that will take. Neither in intent or
appearance has the Respondent been slighted or somehow been put at a disadvantage. If
anything, it now has the advantage of having a better understanding of the allegations against it
and can better prepare for those allegations.
Here, the Secretary has provided what he alleges are the proper plans and cited
provisions. Pocahontas, has not provided plans or provisions and, rather, has only raised
concerns that some of the 104(e) orders did not specify which plan provisions were allegedly
violated, that it needs to depose the issuing inspector to determine whether the Secretary’s
submissions are accurate, and that the court should only review the plans and plan provisions on

36 FMSHRC Page 3324

the record in the context of direct and cross examination testimony. While Pocahontas’ concerns
are noted by the court, the court’s request was harmless. The materials submitted are being used
only for purpose of preparing for hearing and initial prehearing research of the issues in this
matter. The court is aware of fact that, in order for the Secretary to prove a violation of a mine
plan, he must identify a mine plan provision that has allegedly been violated, establish that the
provision allegedly violated is part of the approved and adopted plan, and demonstrate that the
condition cited actually did violate the plan provision. Harlan Cumberland Coal Co., 20
FMSHRC 1275, 1281 (Dec. 1998) (citing Jim Walter Resources, Inc., 9 FMSHRC 903, 907
(May 1987). Nothing that the court has done relieves the Secretary of the burden that he will be
required to satisfy at hearing, nor does it preclude Pocahontas from exercising its right to dispute
the Secretary’s case and put on evidence to the contrary. Accordingly, Pocahontas’s motion to
withdraw is DENIED.

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

Distribution:
Benjamin Chaykin, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor West, Arlington, Virginia 22209-2247
Jason Nutzman, Dinsmore & Shohl LLP, 900 Lee St. Suite 600, Charleston, WV 25301
Robert Huston Beatty, 215 Don Knotts Blvd., Suite 310, Morgantown, WV 26501

36 FMSHRC Page 3325

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

December 12, 2014
STAR MINE OPERATIONS, LLC,
Contestant,
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent.

CONTEST PROCEEDING
Docket No. WEST 2015-100-RM
Written Notice No. 8834101; 09/25/2014
Revenue Mine
Mine ID 05-03528

ORDER GRANTING SECRETARY’S MOTION TO DISMISS
This case is before me upon the Notice of Contest filed by Star Mine Operations (“Star
Mine” or “the operator”) pursuant to section 105 of the Federal Mine Safety and Health Act of
1977 (“Mine Act”), 30 U.S.C. § 815. Star Mine filed this contest case on October 24, 2014, to
seek review of the pattern of violations (“POV”) notice that the Secretary of Labor (“Secretary”)
issued to Star Mine pursuant to his rule implementing section 104(e), 30 U.S.C. § 814(e).
I. Procedural Background
On November 13, 2014, the Secretary filed a Motion to Dismiss, asking that Star Mine’s
contest be dismissed with prejudice for lack of subject-matter jurisdiction. Thereafter, on
November 24, 2014, Chief Administrative Law Judge Robert J. Lesnick assigned this contest
case to me.1 Star Mine filed its Response in Opposition to the Secretary of Labor’s Motion to
Dismiss on November 26, 2014.2
On September 25, 2014, the Secretary issued Written Notice No. 8834101 to Star Mine.
(Mot. to Dismiss at 1; Resp. in Opp’n at 3.) Because a POV notice is not a citation or order
1

The deadline to file a response in opposition was initially November 25, 2014. See
29 C.F.R. § 2700.10(d). However, on November 24, 2014, Star Mine filed an unopposed motion
asking for a one-day extension to file its response to the Secretary’s motion seeking dismissal.
Commission Procedural Rule 55 grants Commission Judges broad powers to issue orders and
procedurally manage the cases before them. 29 C.F.R. § 2700.55. The operator’s unopposed
motion is GRANTED and its Response in Opposition is hereby ACCEPTED.
2

On December 3, 2014, the Secretary filed a motion seeking leave to file a reply to
Star Mine’s response in opposition. According to the Secretary, such a reply will allow him to
“meaningfully respond” to Star Mine’s “due process argument.” (Mot. for Leave at 1.) I need not
address the Secretary’s motion for leave to file a reply because I have determined that I do not
have jurisdiction in this case. See discussion infra Part III.

36 FMSHRC Page 3326

issued under section 104, the Secretary contends that the text of the Mine Act does not give the
Commission and its Administrative Law Judges jurisdiction to hear this case. (Mot. to Dismiss at
1–4.) In support of his claim, the Secretary also argues that the Commission’s own rules provide
“no procedure for contesting or answering contests of a pattern of violations notice or any other
notice.” (Id. at 3.) Further, the Secretary highlights recent decisions from Chief Judge Lesnick
and Administrative Law Judge Margaret Miller that dismissed contest cases involving POV
notices for lack of subject-matter jurisdiction. (Id. at 3–4 (citing Brody Mining, LLC, 36
FMSHRC 284, 287 (Jan. 2014) (ALJ), and Pocahontas Coal Co., 36 FMSHRC 1371, 1372–73
(May 2014) (ALJ).)3 Accordingly, the Secretary contends that this contest case should be
dismissed with prejudice.
In response, Star Mine notes that it sold the Revenue Mine to Fortune Minerals Limited
(“Fortune”) earlier this year. (Resp. in Opp’n at 3–4.) Although MSHA is now issuing citations
and orders to Fortune, the agency apparently “refuses to change the information available to the
public, continuing to state that Star Mine is the operator of the mine, and therefore, responsible
for the issuance of the present [section] 104(e) orders.” (Id. at 4.) Thus, Star Mine claims to have
“an interest in having accurate information being publicly disseminated about its current
ownership obligations.” (Id. at 5.) In Star Mine’s view, that interest requires a hearing under the
Due Process Clause. (Id. at 5–8.) Moreover, the operator claims this contest case represents its
only opportunity for relief before the Commission because Star Mine no longer owns or operates
the Revenue Mine. (Id. at 5, 9.) Star Mine therefore argues it should be afforded a hearing and
that MSHA should be ordered to correctly identify the operator of the Revenue Mine in its Data
Retrieval System.4 (Id. at 9.)
II. Principles of Law
A.

Motion to Dismiss for Lack of Subject-Matter Jurisdiction

Although the Commission’s Procedural Rules do not specifically enumerate the grounds
for a motion to dismiss for lack of subject-matter jurisdiction, the Federal Rules of Civil
Procedure guide Commission Judges “as far as practicable” on procedural questions “not
regulated by the [Mine] Act, [the Commission’s] Procedural Rules, or the Administrative
Procedure Act.” 29 C.F.R. § 2700.1(b). Federal Rule 12(b)(1) allows parties to move for
3

Although both ALJ cases are currently on appeal, the operator in Brody did not raise
this jurisdictional issue before the Commission. Brody Mining, LLC, 36 FMSHRC 2027, 2033
(Aug. 2014). However, the Commission has granted Pocahontas Coal Company’s petition for
discretionary review of Judge Miller’s decision. See Unpublished Order Granting PDR dated
June 25, 2014.
4

Star Mine also attached four exhibits to its response, which included: (1) a redacted
copy of the sales contract between the operator and Fortune; (2) a printout of a legal identity
report submitted to MSHA’s website that is dated March 10, 2014; (3) a printout from MSHA’s
Mine Data Retrieval System that is dated November 26, 2014; and (4) a section 104(e)
withdrawal order that was issued to Fortune and dated October 29, 2014.

36 FMSHRC Page 3327

dismissal for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). When considering
a motion to dismiss for lack of subject-matter jurisdiction, courts accept a plaintiff’s wellpleaded factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. Ctr.
for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir. 2014); Leite v.
Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). However, such plaintiffs bear the burden of
establishing that jurisdiction is proper. Ctr. for Dermatology & Skin Cancer, 770 F.3d at 589;
Leite, 749 F.3d at 1117. Here, that burden is borne by Star Mine.
B.

Subject-Matter Jurisdiction Under the Mine Act

Section 105(d) of the Mine Act allows mine operators “to contest the issuance or
modification of an order issued under section 104, or citation or a notification of proposed
assessment of a penalty issued under [section 105(a) or (b)], or the reasonableness of the length
of abatement time fixed in a citation or modification thereof issued under section 104 . . . .”
30 U.S.C. § 815(d). As Judge Miller noted in her order dismissing a contest case involving a
POV notice, “[n]otably, the section does not afford a right to contest written notices.”
Pocahontas Coal Co., 36 FMSHRC at 1372; see also id. at 1372–74 (examining statutory text
and legislative history to conclude that Congress intended to treat POV notices differently than
citations and orders).
III. Analysis and Order
Every adjudicatory body requires jurisdiction before it hears a case. As the party invoking
the Commission’s authority in this matter, Star Mine bears the burden of demonstrating that the
Commission has subject-matter jurisdiction under the Mine Act to hear the contest case before
me. Although section 105(d) is the Commission’s jurisdictional touchstone, Star Mine has not
explained how section 105(d) can be read to confer jurisdiction upon the Commission to hear
this matter. Instead, the operator seizes on the unusual facts of this case to claim it will be denied
due process if this case is dismissed. Because the operator sold its interest in the Revenue Mine,
Star Mine contends it “has no other avenue of recourse before this Commission to challenge
MSHA’s decision to issue a Pattern Notice” other than the contest case before me.5 (Resp. in
Opp’n at 9.) Star Mine therefore claims that it will be denied due process if not afforded a
hearing before the Commission regarding the POV notice. (Id. at 3.)
Star Mine seemingly hopes that I will ignore or contort the text of section 105(d) to
accommodate its purported due process interests, but those interests are illusory.6 Moreover, the
5

In contrast, the mine operators in Brody Mining and Pocahontas Coal Co. retained
control of the mine. Because those operators ultimately received withdrawal orders under section
104(e), they were free to challenge the POV notice after Commission jurisdiction attached to the
resulting 104(e) withdrawal orders. See Brody Mining, 36 FMSRHC at 286–87; Pocahontas
Coal Co., 36 FMSHRC at 1373–74.
6

Star Mine’s due process argument puts the cart before the horse: it assumes that it has
(continued…)

36 FMSHRC Page 3328

text of section 105(d) specifically limits the Commission’s jurisdiction—and excludes contests
of notices, POV or otherwise. Even accepting as true the factual allegations included in Star
Mine’s Notice of Contest and drawing all reasonable inferences in its favor, Star Mine simply
has not met its burden of demonstrating that the Commission has jurisdiction over this case. In
light of the text of section 105(d) and the persuasive analyses included in the recent decisions
from Chief Judge Lesnick and Judge Miller, I conclude that I am without jurisdiction to hear a
contest case regarding a POV notice. Accordingly, the Secretary’s motion to dismiss this case
with prejudice is GRANTED.
WHEREFORE, it is hereby ORDERED that Docket No. WEST 2015-100-RM be
DISMISSED with prejudice.

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge
Distribution:
Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202
Kristin R.B. White, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202
Tyler P. McLeod, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Boulevard, Suite 515, Denver, CO 80204
/pjv

6

(…continued)
an interest protected by the Due Process Clause. Yet, due process protections only attach to life,
liberty, and property interests. See, e.g., Bryn Mawr Care, Inc. v. Sebelius, 749 F.3d 592, 598
(7th Cir. 2014) (indicating that a party must establish a protected interest before a court will
determine what process is due). Notwithstanding Star Mine’s claim that its “reputational”
interest in “having accurate information about its current ownership obligations” entitle the
operator to a hearing in this case (Resp. in Opp’n at 5–6, 8), Star Mine does not explain why its
interests are cognizable under the Due Process Clause. See Bryn Mawr Care, Inc., 749 F.3d at
598 (suggesting that reputational harms, alone, do not constitute interests protected by the Due
Process Clause). Thus, I need not address the adequacy of the Commission’s procedure for
contesting the POV notice in this case because Star Mine has not demonstrated an interest to
which due process protections attach.

36 FMSHRC Page 3329

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
th
721 19 STREET, SUITE 443
DENVER, CO 80202-2536
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

December 17, 2014
SECRETARY OF LABOR, MSHA,
on behalf of JUSTIN GREENWELL,
Complainant,
v.
ARMSTRONG COAL COMPANY,
Respondent.

DISCRIMINATION PROCEEDING
Docket No. KENT 2014-791-D
MADI-CD 2014-11
MADI-CD 2014-12
Mine: Parkway Mine
Mine ID:15-19358

ORDER DENYING COMPLAINANT’S MOTION TO JOIN &
ORDER DIRECTING COMPLAINANT TO FILE 105(C)(3) CASE
This case is before me on a complaint of discrimination filed pursuant to section 105(c)
of the Federal Mine Safety and Health Act of 1977. On November 25, 2014, Complainant, Justin
Greenwell, through his attorney, filed a motion to join Chris Oglesby as a respondent in this
docket. On December 10, 2014, the Secretary, filed a response to Complainant’s motion. For
reasons that follow, Complainant’s motion is DENIED and, pursuant to section 105(c)(3) of the
Act, he is directed to file an action on his own behalf with the Commission.
Complainant alleges that on March 19, 2014 he was threatened by Chris Oglesby, an
hourly employee of mine, for notifying MSHA about issues with the mine’s respirable dust
sampling. Two days later, on March 21st, Complainant filed a discrimination complaint with
MSHA in which he named Oglesby, individually, as the person responsible for discriminatory
action. The complaint did not name Armstrong Coal Company. The same day, MSHA contacted
counsel for Complainant to advise him that, while Oglesby would continue to be listed on the
complaint as the individual responsible for the discriminatory action, MSHA was changing the
complaint to indicate that Armstrong was the entity against whom the complaint was filed.
Counsel for Complainant objected to the change and, subsequently, MSHA advised
Complainant’s counsel that there had been a misunderstanding, the complaint had not been
changed, and a notification letter had been sent to Oglesby informing him that a complaint had
been filed against him.
On September 12, 2014 the Secretary, pursuant to section 105(c)(2), filed a complaint
with the Commission against Armstrong alleging that the mine interfered with the exercise of
protected activity by informing coworkers that Complainant had complained to MSHA, and
soliciting coworkers to ostracize and harass Complainant due to his protected activity. Oglesby
was not named as a respondent. On September 17, 2014, MSHA notified Complainant that it
believed a violation of section 105(c) of the Act had occurred, and the Secretary had filed a
complaint on behalf of Greenwell with the Commission. A copy of the letter was sent to
Armstrong, but not to Oglesby. Thereafter, on November 25, 2014, Complainant, through his
own counsel, filed the instant motion to join Chris Oglesby as a respondent.

36 FMSHRC Page 3330

Complainant argues that section 105(c) allows for the filing of discrimination complaints
against individuals and, since the filing of his original complaint, he has sought to hold Oglesby
individually accountable for violating the Act. Complainant asserts that the Secretary’s case rests
on the difficult to prove theory that the mine, in violation of the Act, encouraged Oglesby and
others to harass Complainant as a result of his protected activities. Complainant, on the other
hand, seeks to hold Oglesby personally liable for violating the Act. Complainant alleges that he
“cannot obtain complete relief . . . unless Oglesby, the alleged perpetrator, is joined as a party
herein.” Mot. 6. Specifically, Complainant asserts that, conceivably, liability could be found
against Oglesby under Complainant’s theory, while no liability is found against Armstrong under
the Secretary’s theory. As a result, Complainant asserts that Oglesby is required to be joined as
an indispensable party under Federal Rule of Civil Procedure 19. In the alternative, Complainant
argues that Oglesby should be permissively joined as a respondent under Federal Rule of Civil
Procedure 20 given that Complainant’s right to relief arises out of the same occurrence raised by
the Secretary under his theory of liability for Armstrong, and there are questions of law and fact
common to both Armstrong and Oglesby.
The Secretary, in response, asserts that he is afforded wide discretion in his handling of
105(c)(2) complaints and, based on his investigation of the alleged incident, has determined that
Armstrong created a work environment that interfered with Complainant’s exercise of his rights
under the Act. Further, Oglesby’s reaction “flowed from the environment . . . created by
Armstrong ” and, as a result, the Secretary, in exercising his prosecutorial discretion, named
Armstrong as the only respondent in this matter. Nevertheless, the Secretary acknowledges that
Complainant is a party to this matter, that Oglesby is a “person” under the Act, and that the court
may join Oglesby as a party.
Section 105(c) of the Act states that “[n]o person shall discharge or in any manner
discriminate against or cause to be discharged or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any miner . . . because such miner . . . has
filed or made a complaint under or related to this Act, . . . or because of the exercise by such
miner . . . of any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1) (emphasis added).
The Act defines “person” to include “any individual.” 30 U.S.C. § 802(f). Following a miner’s
filing of a discrimination complaint with the Secretary and subsequent investigation into the
complaint, the Secretary is afforded wide discretion in determining whether to pursue a 105(c)(2)
case by filing a complaint with the Commission. Robert K. Rowland v. Sec’y of Labor, 7
FMSHRC 630 (May 1985).
The Act permits Complainant to bring an action against Oglesby individually as Oglesby
is an “individual” and therefore falls within the Act’s definition of “person.” Given that section
105(c) prevents any “person” from violating its provisions, it certainly applies to Oglesby, as
well as to Armstrong in this case. While I find that Complainant may properly bring an action
against Oglesby, joining him in the instant proceeding, brought by the Secretary pursuant to
section 105(c)(2), is not the best mechanism to do so.
It is clear that Complainant’s theory of liability differs from the Secretary’s. While
Complainant seeks to impose liability only individually against Oglesby, the Secretary’s
response makes clear that he intends to pursue his case against Armstrong as an entity, and not

36 FMSHRC Page 3331

against Oglesby as an individual. The Secretary’s prosecutorial discretion affords him the ability
to pursue a 105(c)(2) case in the way he sees fit, and the court cannot order him to pursue a
particular case theory. Generally, the Secretary, upon completion of the investigation, sends a
letter to Complainant stating whether a violation of section 105(c) has occurred. Here, following
the investigation, the Secretary determined that the provisions of 105(c) had been violated and,
pursuant to section 105(c)(2), filed a complaint with the Commission in which he named only
Armstrong as a respondent. In declining to name Oglesby as a respondent, the Secretary
effectively determined that, while the investigation revealed a violation of 105(c) under the
Secretary’s theory, Complainant’s theory of individual liability did not amount to a violation.
While the Secretary agrees that the court may join Oglesby in this matter, the court concludes
that a better alternative would be for Complainant to pursue his claim of individual liability
under section 105(c)(3) of the Act, which grants a miner the right to file an action on his own
behalf following a determination by the Secretary that the provisions of 105(c) have not been
violated. 30 U.S.C. § 815(c)(3). The Secretary’s refusal to pursue Complainant’s theory of
individual liability, combined with the information contained in his response to the instant
motion, are essentially a determination that no violation of 105(c) occurred in the manner alleged
by Complainant. An action filed under section 105(c)(3) will allow Complainant to advance his
own theory of the case, without the apparent interference of the Secretary, and pursue the
complete relief he desires. Once the 105(c)(3) complaint is filed against Oglesby then it may be
consolidated for purposes of hearing with this action against Armstrong.
Accordingly, Complainant’s motion to join Chris Oglesby as a respondent in this
proceeding is DENIED. I accept the Secretary’s response in this case as a denial of the
discrimination complaint filed against Oglesby individually, and I advise Complainant to file a
separate action against Oglesby, within 30 days of this order, pursuant to section 105(c)(3) of the
Act. Complainant should attach a copy, or make reference to, this order so that the Commission’s
docket office is made aware of the somewhat unusual circumstances of the action. Following the
assignment of a docket number to that action, Complainant should notify the court so that it can
take steps to have that matter consolidated for hearing with the above captioned docket.

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

36 FMSHRC Page 3332

Distribution:
Mary Sue Taylor, Office of the Solicitor, U.S. Department of Labor, 618 Church St., Suite 230
Nashville, TN 37219-2456
Noelle Holliday True, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre
Circle, Suite 375, Lexington, KY 40513
Tony Oppegard, P.O. Box 22446, Lexington, KY 40522
Wes Addington, Appalachian Citizens Law Center, 317 Main St., Whitesburg, KY 41858
Justin Greenwell, 4620 Poole Mill Road, Crofton, KY 42217-8092
Roger Stanley, Miners Representative, 740 Drake Creek Road, White Plains, KY 42464-9784
Daniel Z. Zaluski, Armstrong Coal Company, Inc., 407 Brown Road, Madisonville, KY 42431
Chris Oglesby, 275 S Bernard St., Nebo, KY 42441

36 FMSHRC Page 3333

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

December 17, 2014
DANIEL B. LOWE,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 2014-614-DM
WE-MD 14-04

v.
VERIS GOLD USA, INC.,
Respondent,

Jerritt Canyon Mill
Mine ID 26-01621

ORDER
Before:

Judge Moran

In this discrimination proceeding brought under section 105(c)(3) of the Mine Act,
Counsel for the Respondent, has asserted that, pursuant to the Order of the United States
Bankruptcy Court, this matter and any other administrative proceeding, is to be stayed until the
Bankruptcy Court lifts its stay.
Per an Order issued by the United States Bankruptcy Court for the District of Nevada
(“Bankruptcy Ct NV”) on September 3, 2014, which Order was issued under Chapter 15 of the
Bankruptcy Code and “Pursuant to 11 U.S.C. §§ 1504, 1515, 1517, and 1521, recognizing
Foreign Representative and Foreign Main Proceeding,” that court, at Paragraph 13(c) of its
Order, stated:
[A]ll persons and entities are enjoined from commencing or continuing,
including the issuance or employment of process of, any judicial,
administrative or any other action or proceeding involving or against the
Debtors or their assets or proceeds thereof that are located in the United
States, or to recover a claim or enforce any judicial, quasi-judicial, regulatory,
administrative or other judgment, assessment, order, lien or arbitration
award against the Debtors or their assets or proceeds thereof that are located
in the United States.
Counsel for Respondent, Veris Gold USA, Inc., takes the position that there is a
uniqueness associated with the fact that this is a Chapter 15 Bankruptcy Proceeding. Working
from that premise, Respondent contends that decisional law issued by the Federal Mine Safety
and Health Review Commission (“Commission”) holding that stays under other Chapters of the
Bankruptcy Code do not apply to Commission proceedings are not relevant to a Chapter 15

36 FMSHRC Page 3334

proceeding. The essence of Respondent’s argument is that because stays are not automatic under
Chapter 15 and because the Bankruptcy Ct NV affirmatively issued its stay order, that order must
be followed.
With great respect for the United States Bankruptcy Court for the District of Nevada, this
Court concludes, for the reasons which follow, that the stay does not apply at this stage of this
discrimination action. Chapter 15 is a new chapter added to the Bankruptcy Code which replaces
section 304 of the Bankruptcy Code. The “Bankruptcy Basics” site for the U.S. Courts notes that
Chapter’s purpose is “to provide effective mechanisms for dealing with insolvency cases
involving debtors, assets, claimants, and other parties of interest involving more than one
country.” http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics/Chapter15.aspx
That site goes on to state that the objectives of Chapter 15 include providing “for the fair and
efficient administration of cross-border insolvencies that protects the interests of all creditors and
other interested entities, including the debtor.” Id.
In a December 3, 2014 email from Respondent’s Counsel to the Court and the
Complainant, the Court was advised that there is anticipation that the Respondent will emerge
from this bankruptcy in early 2015. Respondent also related that it views the Commission
decision in MSHA v. Hidden Splendor Resources, Inc. as distinguishable, from this matter,
chiefly on the basis that the Hidden Splendor matter involved a Chapter 11 bankruptcy.
Respondent also sees a distinction in that stays are automatic under Chapter 11, but require an
affirmative invocation for a stay under Chapter 15.
Subsequently, on December 15, 2014, Respondent’s Counsel supplemented its position
on this issue,1 after seeking input from the law firm representing Veris in the bankruptcy matter.
That information, provided in a “Memorandum Regarding Recognition of Foreign Main
Proceeding in Chapter 15 Case and Application of the Automatic Stay” essentially reiterated the
arguments made by Veris’ attorney in this discrimination proceeding. The law firm representing
Veris in the bankruptcy matter emphasized in its memorandum that the stay order “operates as an
injunction against all acts against a debtor on account of pre-petition debt[.]” Memorandum at 3
(emphasis added). The Memorandum goes on to note that the Complainant’s action does not
qualify as an exception to a stay, as it is not being brought by a governmental unit. It adds that
the Complainant’s sole remedy was to have filed a proof of claim in the foreign main proceeding
in Canada, which it describes as “an exclusive process by which creditors could assert claims
against Debtors.”2 Id. at 4-6. Finally, the Memorandum suggests that moving forward in the
discrimination proceeding runs the risk that it could be deemed void ab initio.

1

It is noted that Respondent’s Counsel in this discrimination proceeding is not the
Counsel for Veris Gold USA, Inc. in the Chapter 15 Bankruptcy proceeding.
2

While not reflective of the basis for this Order, it is noted that Complainant could not
have been properly served as the service was made to “Danny Lowe, Federal Mine Safety and
Health Review, Commission Chief Administrative Law Judge Robert J. Resnick” without any
other identifying information. Also, the Chief Judge is Robert J. Lesnick.

36 FMSHRC Page 3335

Complainant, Daniel B. Lowe, acting pro se, has expressed, as the Court construes his
arguments, that the “Commission has consistently held that MSHA proceedings are not subject
to the automatic stay bankruptcy provisions of section 362. Sec'y of Labor o/b/o Michael L. Price
and Joe John Vacha v. Jim Walter Resources, Inc., 12 FMSHRC 1521, 1528-30 (August 1990);
Sec'y v. L. Kenneth Teel, 13 FMSHRC 1915, 1916-17 (December 1991) (ALJ) [and that other
cases support that discrimination cases may go forward despite a bankruptcy action citing]
Midcontinent Resources Inc., 14 FMSHRC 882 (May 21, 1992). Complainant contends that
“[e]nforcement proceedings before the Federal Mine Safety and Health Review Commission
brought by the Secretary of Labor under section 105(c)(2) of the Mine Safety Act come within a
statutory exception to the automatic stay provisions of the Bankruptcy Act.” Mr. Lowe adds
that [w]hen actions are brought under the provisions of section 105(c)(2) of the Mine Safety Act,
this is an exercise of police and regulatory powers which places this proceeding within the
section 362(b)(4) exemption to the automatic stay,” [citing NLRB v. Evans Plumbing Company,
639 F.2d 291 (5th Cir. 1981); In re Bel Air Chateau Hospital, Inc., 611 F.2d 1248 (9th Cir.
1979), and In the Matter of Shippers Interstate Service, Inc., 618 F.2d 9 (7th Cir. 1980).] On the
basis of those contentions, Complainant asserts that his action should receive similar treatment.
Daniel Lowe email, December 7, 2014.
In response to Respondent’s subsequent submission, Mr. Lowe adds that as he is
“seeking relief in this action b[r]ought before and through the authority of the Federal Mine
Safety and Health Review Commission under Section 105(c) of the [1977 Mine Act],” only the
Commission can adjudicate that action and that the bankruptcy proceeding cannot dilute or
reduce his rights under the Mine Act. Daniel Lowe email, December 16, 2014.
Discussion
The Commission has addressed matters involving the intersection of Mine Act and
Bankruptcy actions in Sec'y of Labor o/b/o Michael L. Price and Joe John Vacha v. Jim Walter
Resources, Inc., 12 FMSHRC 1521, 1528-30 (August 1990), (“Price & Vacha”) cited above.
There, it held that the matter fell “within the exceptions to the automatic stay provisions of the
Bankruptcy Code,” citing the “governmental unit” exception of Bankruptcy Code section
362(b)(4). It added that the case was “brought by the government, through the Secretary, to
effectuate and protect the rights secured by section 105(c)(1) of the Mine Act [and that] [t]his is
the kind of ‘police or regulatory’ action covered by the exception to the automatic stay.” Last,
the Commission took note that “[s]ection 362(b)(5) also excepts from automatic stay
‘enforcement of a judgment, other than a money judgment, obtained in an action or proceeding
by a governmental unit’s police or regulatory power . . . [and that the] Courts have recognized
that adjudicatory bodies presiding over a governmental ‘police or regulatory’ action may enter a
money judgment against a respondent-debtor but may not permit collection of that pecuniary
judgment in an enforcement action.” (emphasis in original).3
3

The Court has concluded that Midcontinent Resources Inc., 14 FMSHRC 882 (May 21,
1992), and Sec'y v. L. Kenneth Teel, 13 FMSHRC 1915, 1916-17 (December 1991) (ALJ) are not
useful to the resolution of this issue. However, beyond Price & Vacha, the Commission has
consistently held that the automatic stay provision does not apply. Sec. v. Hidden Splendor
Resources, Inc., 2013 WL 3759789, June 6, 2013.

36 FMSHRC Page 3336

In determining that this matter should go forward, the Court’s decision is based upon the
following observations. Review of the section of the Mine Act involved here, section 105(c)(3),
evidences Congress’ clear intent that a miner’s right to bring his own action is to be recognized,
notwithstanding the Secretary’s determination not to go forward under section 105(c)(2). Indeed,
Congress directed that such 105(c)(3) proceedings are to be “expedited.” There is no hint in the
language employed in the (c)(3) provision that the miner’s option to proceed in his own behalf is
to be viewed as a diminished right vis-à-vis a discrimination action brought by the Secretary.
In addition, as with Price & Vacha, this determination does not tread upon the collection
of any monies. Mr. Lowe has not yet had his day in court. Unless and until he prevails in his
105(c)(3) action, there can be no monetary compensation available to him. Anyone reading
Chapter 15, or any other Chapter of the Bankruptcy Act, realizes that its focus is upon claims
against debtors or their assets. Veris Gold is not a debtor at this stage of this Mine Act
discrimination proceeding. Accordingly, continuing with this discrimination claim does not
threaten such assets at this juncture.4 Given that it is expected that Veris Gold will have emerged
from this bankruptcy by the spring of 2015, concerns about interference with the Bankruptcy
Court’s authority over its assets are illusory and, in any event, this Court, consistent with
Commission case law, would not address any collection issue as long as the bankruptcy
proceeding is active.
When balanced against the potential harm to Mr. Lowe’s exercise of his Congressionally
afforded right to pursue his discrimination claim, including the risk of faded memories or
witnesses becoming unavailable, the Court construes the language of section 105(c)(3) to be
within the spirit of the exception to the stay provision and therefore concludes that the matter is
not foreclosed by the Bankruptcy Court’s stay.
The parties are directed to participate in a conference call on December 19, 2014 at
p.m. EST, (3 p.m. PST) and to confirm this via email to the Court.

6

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

4

This observation means that the specter raised by the Respondent, that proceeding with
the Mine Act claim runs the risk of it becoming void ab initio, does not apply. First, the
Bankruptcy Court could not void a proceeding brought under the Mine Safety and Health Act. At
most, the Bankruptcy Court could void a monetary award. Second, as noted, this proceeding is a
long way from such a possible development and if Veris Gold were still in bankruptcy at that
point, no order against its assets would be issued by this Court until the Bankruptcy Court
allowed that to occur.

36 FMSHRC Page 3337

Distribution:
David M. Stanton, Esq., Goicoechea, DiGrazia, Coyle & Stanton, Ltd., P.O. Box 1358, 530
Idaho Street, Elko, Nevada 89801
Daniel Lowe, P.O. Box 2608, Elko, NV 89803

36 FMSHRC Page 3338

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

December 19, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 2014-28M
A.C. No. 43-00490-335673

v.
KIRK FENOFF & SON EXCAVATING,
Respondent

Forest & Stream Gravel
ORDER

Before:

Judge Moran

The Secretary has filed a motion to limit the Respondent’s utilization of the discovery
vehicle of written interrogatories to 25 (twenty-five) such inquiries (“Motion”). Initially, the
Respondent filed 64 interrogatories and, with the Court’s urging to see if the dispute could be
resolved, that number was reduced to 39. The Secretary, believing the reduced number
continuing to be excessive, filed the present motion. For the reasons which follow, the Court
concludes that, consistent with the longstanding limit of 25 interrogatories under the Federal
Rules of Civil Procedure, a party is presumptively limited to 25 questions in Mine Act litigation.
Any party seeking more than the presumptive limit may be permitted to ask additional questions,
but only after first applying to the Court for such relief and presenting the reasons justifying the
request. After the opposing party has had an opportunity to respond, the Court will issue a ruling
as to each requested additional question. This Order is being issued, in part, because Commission
case law on this subject is sparse.
Background
Initially, it must be said that facts surrounding this matter do not appear to be
exceptionally complex. Involving two section 104(d) orders, the first, citing 30 C.F.R. § 56.3200,
asserts finding that “[t]he south east pit face was found to be undermined. The pit was evaluated
to have a 30 foot wide X 15 foot high area undermined 2 ½ foot under the face. A vertical area
above the affected area was evaluated to be 30 foot high to the catch bench. Multiple loader
tracks and dig marks at the face toe and wall were observed. This condition creates a fall of
material hazard. Kirk Fenoff, Owner engaged in aggravated conduct by knowing that miners had
been loading from the pit high wall for periodically a two month period time. Mr. Fenoff has not
gone to the pit in two months to examine the high wall for unsafe conditions.” Order No.
8717168. The cited standard provides that “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.”

36 FMSHRC Page 3339

With the second Order, No. 8717169, arising out of the same facts, it repeated the
narrative of the first Order, but cited 30 C.F.R. § 56.3401, which provides that “Persons
experienced in examining and testing for loose ground shall be designated by the mine operator.
Appropriate supervisors or other designated persons shall examine and, where applicable, test
ground conditions in areas where work is to be performed prior to work commencing, after
blasting, and as ground conditions warrant during the work shift. Highwalls and banks adjoining
travelways shall be examined weekly or more often if changing ground conditions warrant.”
The Discovery Dispute
Per the Court’s request following the parties’ inability to resolve the dispute over the
permitted number of interrogatories, the Secretary filed the instant Motion to Limit Respondent’s
Discovery Pursuant to F.R.C.P. 33. That provision from the Federal Rules states:
Unless otherwise stipulated or ordered by the court, a party may
serve on any other party no more than 25 written interrogatories,
including all discrete subparts. Leave to serve additional interrogatories may be
granted to the extent consistent with Rule 26(b)(2).
Rule 33(a)(1) Interrogatories to Parties
As noted, Respondent initially presented 64 interrogatories. Beyond that, the Secretary
represents that the Respondent intends to depose the Inspector who issued the Orders. Motion at
2.
The Secretary acknowledges that interrogatories and other forms of discovery are
permitted under the Commission’s Procedural Rules, 29 C.F.R. Part 2700. (“Rules”). However,
those Rules, while recognizing the right to obtain discovery of any relevant, non-privileged
matter that is admissible evidence or appears likely to lead to the discovery of admissible
evidence, also temper that right by providing that, upon motion, a party or a person from whom
discovery is sought may seek to have the judge, for good cause shown, limit discovery to prevent
undue delay or to protect a party or person from oppression or undue burden or expense. 29
C.F.R. § 2700.56(c). As the Secretary points out, that limitation on discovery is made in the
context of the express statement about the rules’ construction that they are intended “to secure
the just, speedy and inexpensive determination of all proceedings.” 29 C.F.R § 2700.1(c). Id. at
3.
The Secretary makes it plain that its argument is not directed at any particular questions
among the 39 interrogatories. Rather, its contention is that exceeding the Federal Rules’
limitation of 25 interrogatories is per se excessive, asserting that “[a]ny interrogatories in excess
of twenty five are [inherently] oppressive and create an undue burden on the Secretary in light of
the limited facts at issue in this docket.” Id. In seeking to limit the Respondent to 25
interrogatories, the Secretary also notes that there is guidance in construing the Rules which
provides that “‘[o]n any procedural question not regulated by the Act, these Procedural Rules, or
the Administrative Procedure Act (particularly 5 U.S.C. 554 and 556), the Commission and its
judges shall be guided so far as practicable by the Federal Rules of Civil Procedure…’ [citing]

36 FMSHRC Page 3340

30 C.F.R. § 2700.1(b).” Id. In turn, the Secretary notes that the applicable Federal Rule of Civil
Procedure, F.R.C.P. 33, states “unless otherwise stipulated or ordered by the court, a party may
serve on any other party no more than 25 written interrogatories, including all discrete subparts.
F.R.C.P. 33(a)(1).” Id.
Adding context to its argument, the Secretary reiterates that the two orders, arising out of
the same essential facts, are of “relative factual simplicity” and that the Respondent’s discovery
plans include deposing its witness on the same matters.1
Anticipating a contention by the Respondent, that Commission Rule 56(b) allows parties
to discover any relevant, non-privileged matter that is admissible evidence or appears likely to
lead to the discovery of admissible evidence and therefore implicitly rejects the FRCP limitation
on the number of interrogatories, the Secretary observes that Rule 56 speaks to the scope of
permissible discovery, not the quantity of questions permitted by interrogatories. The Court
agrees with the Secretary’s interpretation.2
In its Response to the Motion,3 Respondent’s Counsel “strongly takes issue with the
Secretary’s allegation that [it] is in any way abusing the discovery process, imposing an undue
burden on the Secretary, or frustrating the expeditious resolution of this matter.” Response at 2.
Respondent, apparently with no priority among its present 39 interrogatories, believes that the
Secretary should have answered the first 25 of those interrogatories, with the burden then falling
on the Respondent to compel answers to the unanswered remainders. Not that answering the first
25 would have satisfied the Respondent, because it believes that answers to all of its
interrogatories “are essential . . . to the just and speedy determination of this matter.” Id.

1

The Secretary also notes that courts have observed that using both interrogatories and
depositions, though allowed, can be a source for oppression. Schotthofer v. Hagstrom Const. Co.,
23 F.R.D. 666 (S.D. Ill. 1958).
2

Accordingly, this Court takes a different view from that expressed in GTI Capital
Holdings, 23 FMSHRC 555 (ALJ 2001). In that case, another judge saw the respective burdens
differently. While noting that Rule 56(c) permits a judge to limit discovery to prevent undue
delay or to protect a party from oppression or undue burden or expense, that judge concluded
that Federal Rule 33 does not apply to Commission proceedings and that a party must file a
motion under Rule 56(c) to so limit discovery. It is true that although the Federal Rules do not
apply to Commission proceedings, as noted, where a question is not regulated by the
Commission’s Rules, the Federal Rules of Civil Procedure are, where practicable, intended to be
a source of guidance. Rule 2700.1(b). The difference between this Court and the view expressed
in GTI Capital Holdings is one of the guidance of Rule 33 and upon which party should bear the
burden of establishing that more questions should be permitted. In this Court’s view, that burden
should be on the party seeking to exceed the 25 question limitation.
3

Respondent’s Response incorrectly lists the docket in this matter as WEST 2014-103M. That docket number involves an entirely different respondent and is not related to this matter
in any way. However, the Respondent is the counsel for that other docket.

36 FMSHRC Page 3341

The Respondent, while acknowledging that discovery, as identified under Rule
2700.56(a), may be limited per Rule 2700.56(c), asserts that it is up to the party seeking to limit
such discovery to establish good cause for such limitations. Sec’y of Labor v. Newmont Gold
Co., 18 FMSHRC 1304, 1305 (Jul. 10, 1996) (“Newmont Gold”).4 The Court believes that the
Respondent’s arguments are misguided. This dispute is not about the scope of discovery and
consequently the related argument of good cause for limiting discovery is not material.5
The Secretary’s objections, for now, deal with the distinct issue of the number of
interrogatories. When the Respondent actually does speak to the issue at hand, it contends that
the Commission’s Rules do address interrogatories and apparently takes the position that because
interrogatories are listed among other discovery tools, there is no need to consult with the
Federal Rules of Civil Procedure. The Court does not share the Respondent’s view of the allencompassing nature of section 2700.58 and its suggestion that the provision closes the door on
the need to look outside of its words. Respondent then repeats its contention that the Secretary
should have at least answered 25 of its interrogatories, subject only to raising objections to those
25. The problem with this assertion is that the Respondent never advised the Secretary to only
answer the first 25, nor did it identify any particular 25 among the 37 (or 39, depending upon
which party correctly added the number above 25), nor did it identify any particular 25
interrogatories among the 64 interrogatories it originally propounded.
Last, the Respondent, who is at least consistent, completes its response with arguments
that are not germane to the present issue by noting that as “the Secretary has the burden of proof
in this action, it is clearly within Respondent’s purview to assess and question the written
documentation that the Secretary asserts to support the citations prior to a deposition.”
Respondent adds, for good measure, that “the time and costs associated with taking depositions
on the subject Orders without the benefit of written discovery responses would far outweigh the
costs associated with written discovery, which Respondent could utilize to clarify and narrow the
scope of the questions that it intends to ask the inspector during the deposition.” Response at 5.
4

The decision of the administrative law judge in Newmont Gold did not deal with the
number of interrogatories allowable. Instead, that decision’s focus was upon the scope of
discovery and whether depositions would be permitted for certain high level agency officials. In
resolving that dispute, the judge in Newmont Gold balanced section 2700.56(b) allowing
discovery of any relevant, non-privileged matter that is admissible evidence or appears likely to
lead to the discovery of admissible evidence against section 2700.56(c) which empowers a judge,
for good cause shown, to limit discovery in order to prevent undue delay or to protect a party or
person from oppression or undue burden or expense. Thus, this Court, apart from the nonbinding nature of a fellow administrative law judge’s rulings on other judges’ determinations,
concludes that Newmont Gold is not pertinent.
5

From that incorrect starting point, Respondent turns to a series of arguments that are
also not pertinent to the present issue, including the risk of being exposed to a pattern of
violations charge and the contention that discovery is not limited by the size of a proposed
penalty. Simply stated, these are not material to the present issue. Because several of the
Respondent’s contentions spring from similar incorrect premises, they are not specifically
addressed.

36 FMSHRC Page 3342

The Court’s Determination
From the foregoing discussion it should be clear both that the issue to be decided is
narrow and the Court’s perspective on its resolution. The Commission’s Procedural Rules do not
speak to the number of interrogatories and, because of that silence, consultation with section
2700.1(b) is entirely appropriate.
Since 1993 the Federal Rules have reflected the determination that interrogatories should
be limited to 25 without leave of court. As reflected in the following representative decisions, the
resolution for this issue has been clearly articulated: Chudasama v. Mazda Motor Corp. 123 F.3d
1353 (11th Cir. 1997), Walker v. Lakewood Condominium Owners Assn, 186 F.R.D. 584 (Dist Ct
C.D. Ca. May 26, 1999), observing that “Rule 33(a) expressly forbids a party from serving more
than 25 interrogatories upon another party ‘[w]ithout leave of court or written stipulation.’ Rule
33(a) was amended to include the numerical limit in 1993. The Rules' Advisory Committee
Notes for the 1993 amendments further emphasize that ‘[t]he purpose of this revision [was] to
reduce the frequency and increase the efficiency of interrogatory practice’ since ‘the device can
be costly and may be used as a means of harassment.’ See Advisory Committee Note to 1993
Amendment to Rule 33; Capacchione v. Charlotte–Mecklenburg Schools, 182 F.R.D. 486, 492
(W.D.N.C.1998); Safeco of America v. Rawstron, 181 F.R.D. 441, 443 (C.D.Cal.1998).” In
Safeco v. Rawstron, 181 F.R.D. 44, (CD Ca. May 18, 1998) that court noted that “[t]he numerical
limit was added in 1993. Before then, courts acknowledged that ‘sheer numerosity is not an
objection.’Compagnie Francaise d'Assurance Pour le Commerce Exterieur, 105 F.R.D. 16, 42
(S.D.N.Y.1984). As the Advisory Committee explained, ‘[t]he purpose of this revision is to
reduce the frequency and increase the efficiency of interrogatory practice.’ See Advisory
Committee Note to 1993 Amendment to Fed.R.Civ.P. 33, 146 F.R.D. 675, 675 (1993). The
amendment was based upon a recognition that, although interrogatories may be a valuable
discovery tool, ‘the device can be costly and may be used as a means of harassment....’ Advisory
Committee Note, 146 F.R.D. at 675. ‘The aim [of the numerical limit] is not to prevent needed
discovery, but to provide judicial scrutiny before parties make potentially excessive use of this
discovery device.’ Advisory Committee Note, 146 F.R.D. at 676.”
This Court takes the same perspective as those courts. A party seeking to present more
than 25 interrogatories bears the burden of demonstrating a particularized need for each
additional interrogatory beyond the permitted maximum of 25. In this instance the Respondent
needs first to identify the 25 interrogatories it wants answered. The Secretary has no obligation to
respond until the 25 are identified. If the Respondent wants to present additional interrogatories,
it will need to present those questions to the Court, along with the justification for each one.
Following that, the Secretary will have an opportunity to respond and the Court will then issue
its ruling.
So Ordered.

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

36 FMSHRC Page 3343

Distribution:
Daniel McIntyre, Esq., US Department of Labor, Office of the Solicitor, 1999 Broadway,
Suite 800, Denver, CO 80202-5708
Mark N. Savit, Esq., Ross J. Watzman, Esq., Jackson Lewis LLP, 950 17th Street, Suite 2600
Denver, CO 80202

36 FMSHRC Page 3344

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
TH
721 19 STREET, SUITE 443
DENVER, CO 80202-2536
TELEPHONE: 303-844-3577 / FAX: 303-844-5268

December 23, 2014
UNITED STEELWORKERS LOCAL NO.
5114, ON BEHALF OF MINERS,
Applicant

COMPENSATION PROCEEDING
Docket No. WEST 2012-466-CM

v.
Lucky Friday Mine
Mine ID 10-00088

HECLA LIMITED,
Respondent

ORDER GRANTING, IN PART, HECLA’S MOTION
FOR PARTIAL SUMMARY DECISION
Appearances:

Susan J. Eckert, Esq., Santarella & Eckert, LLC, Littleton, Colorado, for
Petitioner;
Laura Beverage, Esq., and Karen Johnston, Esq., Jackson Kelly PLLC,
Denver, Colorado, for Respondent

Before:

Judge Manning

This Compensation Proceeding is before me pursuant to section 111 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Act”), upon an application for
compensation filed by the United Steel Workers, Local 5114 (“USW”) on behalf of miners,
against Hecla Limited. On November 14, 2014 Hecla and USW filed simultaneous motions for
partial summary decision in this matter. On October 29, 2014, I issued a decision concerning the
contest of the withdrawal orders related to this matter, WEST 2012-353-RM and WEST 2012354-RM. Hecla Limited, 36 FMSHRC __, slip op., 2014 WL 5811359 (Oct. 2014). With the
parties’ agreement, the record from that hearing is hereby incorporated by reference in this
proceeding.1
I.

BACKGROUND

On November 16, 2011, a fall of ground occurred in the Lucky Friday Mine. At 2:25 a.m.
that same day, MSHA issued Order No. 8605614 pursuant to section 103(j) of the Act. The order
identified the affected area as the “54 Ramp from the 5700 intersection from the spray chamber
cut out to the down ramp of the old day box cut out and the 5900 main haulage from 100 feet
from the intersection of the lateral on the 5900 level to 30 feet before the chevron.” Ex. G-1 at 12. At 1:05 p.m., MSHA issued modification No. 8605614-01, modifying Order No.
1

I will reference Respondent’s exhibits from the July 29-30, 2014 hearing as “Ex. R-X”
and the Secretary’s exhibits from that hearing as “Ex. G-X.” References to that transcript shall be
“Tr.”

36 FMSHRC Page 3345

8605614 to a section 103(k)2 order that allowed miners to begin repairs of the affected area,
excluding the 54 ramp area.3
On November 20, 2011, MSHA issued modification No. 8605614-03 to permit the
installation of three stress gauges in the 5900 main haulage drift.4 The 5900 haulage drift was the
primary access to the active mining area of the Mine at this time. The Lucky Friday Mine is a
deep mine; the 5900 level is 5900 feet below the surface. The stress gauges were intended to
monitor changes in pressure that could lead to a fall of ground. Modification No. 8605614-055
required Hecla to monitor the stress gauges on a shift to shift basis.6
2

Section 103(k) of the act states:

In the event of any accident occurring in a coal or other mine, an
authorized representative of the Secretary, when present, may issue such orders as
he deems appropriate to insure the safety of any person in the coal or other mine,
and the operator of such mine shall obtain the approval of such representative, in
consultation with appropriate State representatives, when feasible, of any plan to
recover any person in such mine or to recover the coal or other mine or return
affected areas of such mine to normal.
30 U.S.C. § 813(k).
3

On November 17, 2011, MSHA also issued modification No. 8605614-02 to allow
Hecla to scale, bolt, and repair through the fall at the 5900 haulage way and the 5700 sublevel of
the 54 ramp.
4

On December 2, 2011, MSHA issued modification No. 8605614-04 to allow the mine to
restore utilities through the 5900 drift where the fall occurred.
5

Originally, Modification No. 8605614-05 was issued as a second Modification No.
8605614-03. MSHA issued Modification No. 8605614-06 to redress this problem.
6

Modification No. 8605614-05 states, in pertinent part:

This modification is to allow limited travel through the affected area of the
5900 main haulage and of the 54 ramp at the 5700 level.
This modification is based upon no movement of the affected area has
occurred since monitoring began (about four days) after shotcrete and bolting
following the mine’s level three bolting plan were followed. Stress monitors
indicate the area is d[i]stressed as compared to other active areas of the mine.
This action is to allow very limited activities utilizing the 5900 main
haulage based upon the temporary repairs already conducted by the mine until the
engineered culvert arrives and more permanent repairs are made.
Upon arrival of the culvert from the manufacturer, the mine will stop work
to install the culvert and only those miners working on the culvert will travel in
the affected area.
(continued…)
36 FMSHRC Page 3346

MSHA approved Hecla’s proposal to install a steel liner (culvert) in the affected area of
the 5900 haulage drift. The steel liner was intended to protect miners in that area from any fall of
ground. On December 14, 2011, at approximately 7:40 p.m., a rockburst occurred in the 5900
pillar, injuring seven miners working to install the steel liner. MSHA issued Order No. 8605622,7
a section 103(j) order that removed all miners working in the 5900 main haulage. Order No.
8605622 encompassed all underground areas of the mine including the area affected by Order
No. 8065614. On December 15, 2011, MSHA issued modification No. 8605622-01, modifying
Order No. 8605622 to a section 103(k) order that required the operator to obtain prior approval
for all actions taken to recover and restore operations anywhere in the Mine.8
6 (...continued)

This modification is based upon the mine will conduct two daily surveys
at the start and end of the 1st shift to determine whether movement is occurring at
the survey stations of the 5900 main haulage near the chevron.
This modification is based upon no foot travel will occur in the affected
area and that each mobile equipment operator will conduct a visual inspection of
the affected area before travel occurs.
This modification is based upon the mine has developed a written plan to
address any cracking or closure of the main haulage, and that the mine will stop
travel in the affected area should detectable movement, distortion, cracking or
damage occur….
Any significant changes will be reported to MSHA to include additional
stressing, closure, cracking or squeeze and deformity.
This modification allows approximately 3 trucks per shift to make 10
rounds each per shift. It allows mechanics/electricians to travel through the area if
required to repair equipment. It allows only miners necessary to conduct normal
mining activities to travel through the area.
Ex. G-1 at 1-2.
7

Order No. 8605622 mandates:

An accident occurred at this operation on 12/14/2011 at approximately
19:40 pacific standard time. As rescue and recover work is necessary this order is
being issued under 103j of the Federal Mine Safety and Health Act of 1977 to
assure the safety of all persons at this operation. This order is being issued to
prevent the destruction of any evidence which would assist in investigating the
cause or causes of the accident. It prohibits all activity in all underground areas of
the mine except to the extent necessary to rescue an individual or prevent or
eliminate an imminent danger until MSHA has determined it is safe to resume
normal mining operations underground. This order applies to all persons engaged
in the rescue and recovery operation and any other persons on site. This order was
initially issued orally to the miner operator at 21:00 pacific standard time (the
local time at the mine) and has now been reduced to writing.
Ex. G-8 at 25

36 FMSHRC Page 3347

On December 21, 2011, MSHA issued Citation No. 8565565 alleging that Hecla worked
in the face of Order No. 8605614 by failing to perform the stress gauge reading directly before
the rockburst as required by Order No. 8605614-05. Hecla contested this citation, but the parties
reached a settlement of Citation No. 8565565, which the court approved.
In the ensuing months, MSHA conducted several regular inspections as well as an impact
inspection because the mine had previously suffered multiple groundfalls. MSHA maintained the
two 103(k) orders and also issued numerous citations and orders during these inspections.
MSHA did not lift the 103(k) orders until Hecla abated all the cited conditions. Many of these
enforcement actions concerned ground support issues, but several were unrelated. One violation
required Hecla to clean down the entire Silver Shaft to remove concrete debris from the sides of
the shaft. This took over 14 months to complete and left the entire Mine with no power, no
water, and no compressed air. This citation and other citations contributed to Order Nos.
8605614 and 8605622 remaining open for an uncommonly long period of time.
On April 2, 2013, MSHA issued modification No. 8605622-13 to allow the operator to
construct sand walls on the North and South sides of the rockburst area in the 5900 main haulage
drift and subsequently backfill the area. A barricade was moved pursuant to modification No.
8605622-13. On June 12, 2013, Stembridge issued modification Nos. 8605614-07 and 860562214, terminating Order Nos. 8605614 and 8605622.
On January 31, 2012, the USW filed this claim for compensation under section 111.
II. DISCUSSION
The entire record shows that there is no genuine issue of material fact and Hecla is
entitled, in part, to partial summary decision as a matter of law. For the reasons set forth below, I
GRANT, in part, Hecla Limited’s Motion for Partial Summary Decision.9 I retain jurisdiction of
8

MSHA issued a total of 14 modifications to Order No. 8605622. On August 9, 2012,
MSHA issued modification No. 8605622-10 to allow the operator to drive a bypass around the
5900 main haulage drift.
9

Commission Procedural Rule 67 sets forth the grounds for granting summary decision
as follows:
A motion for summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions, and
affidavits, shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a matter of law.
29 C.F.R. § 2700.67(b). The Commission has long recognized that “summary decision is an
extraordinary procedure.”’ Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994)
(quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981)). The Commission has also
analogized Commission Procedural Rule 67 to Federal Rule of Civil Procedure 56. Hanson
Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007); See Also Energy West Mining Co., 16
FMSHRC at 1419 (citing Celotex Corp v. Cartrett, 477 U.S. 317,237 (1986)).
(continued...)
36 FMSHRC Page 3348

this case until the parties agree to a specific dollar amount that will be awarded as compensation
to the miners.
Section 111 mandates that operators pay wages to miners idled by section 103, 104, and
107 orders issued by MSHA. The four sentences of section 111 create a “graduated scheme of
increasing compensation commensurate with increasingly serious operator conduct.” Local
Union 1261, District 22 United Mine Workers of America v. Consolidation Coal Co., 11
FMSHRC 1609, 1613 (Sept. 1989). The fourth sentence of section 111 addresses the most
culpable operator conduct, the failure to comply with a withdrawal order:
Whenever an operator violates or fails or refuses to comply with any order issued
under section 103, section 104, or section 107 of this Act, all miners employed at
the affected mine who would have been withdrawn from, or prevented from
entering, such mine or area thereof as a result of such order shall be entitled to full
compensation by the operator at their regular rates of pay, in addition to pay
received for work performed after such order was issued, for the period beginning
when such order was issued and ending when such order is complied with,
vacated, or terminated.
30 U.S.C. § 821. Each of the four sentences in section 111 allows for greater miner
compensation than the previous sentence; this escalation is based upon “what the operator has
done[.]” Local Union 1889, District 17, United Mine Workers of America v. Westmoreland Coal
Co., 8 FMSHRC 1317, 1327 (Sept. 1986). Application of the fourth sentence of section 111 is an
issue of first impression.
The compensation provided by section 111 is, first and foremost, intended to protect
miner safety; it encourages miners to report withdrawal-worthy dangers without fear of losing
wages as a result. See Rushton Mining Co. v. Morton, 520 F.2d 716, 720 (3rd Cir. 1975).
Although the culpability of the operator influences the compensation available to miners, the
senate did not intend for compensation to be punitive. S. Rep. No. 95-181, 95th Cong., 1st Sess.
46-47 (1977), reprinted in Legislative History of Federal Mine Safety and Health Act of 1977, at
634-635 (1978). The Commission has found a nexus requirement in section 111, stating that “we
will examine the relationship between the underlying reasons for the withdrawal and for the
order, and will give balanced consideration both to the limited and purely compensatory
character of section 111 and to the overall safety purposes of the 1977 Mine Act and section 111
itself.” Local Union No. 781, District 17, United Mine Workers of America v. Eastern Associated
coal corp., 3 FMSHRC 1175, 1178 (May 1981).
9 (...continued)

When the Commission reviews a summary decision under Comm. P. R. 67, it looks “‘at
the record on summary judgment in the light most favorable to … the party opposing the
motion,’ and that ‘the inferences to be drawn from the underlying facts contained in [the]
materials [supporting the motion] must be viewed in the light most favorable to the party
opposing the motion.’” Hanson Aggregates New York Inc., 29 FMSHRC at 9 (quoting Poller v.
Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369
U.S. 654, 655 (1962)).

36 FMSHRC Page 3349

I find that the fourth sentence of section 111 applies to Order No. 8605614-05 because
Hecla violated this order as set forth in Citation No. 8565565.10 Hecla failed to monitor the stress
gauges directly before the rockburst. The nexus between the underlying events and the
withdrawal order that an award of section 111 compensation requires exists between Citation No.
8565565 and amendment 05 of Order No. 8605614. The issuance of Citation No. 8565565 for
Hecla’s failure to check pressure gauges as mandated by Order No. 8605614-05 is the violation
of a withdrawal order that fourth sentence compensation requires. Order No. 8605614, issued on
11/16/2011, withdrew miners and mandated that only people authorized by MSHA could enter
the affected area. Ex. G-1 at 2. Order No. 8605614 did not include the requirement to check
stress gauges because the stress gauges at issue were not installed at that time. On 12/06/2011,
Order No. 8605614-05 allowed limited travel in the 5900 haulage area based upon Hecla’s
agreement to “conduct two daily surveys at the start and end of the 1st shift to determine whether
movement is occurring[.]” Ex. G-1 at 7. A nexus exists between the triggering event, Citation
No. 8565565, and the specific amendment 05 of Order No. 8605614 because MSHA issued
Citation No. 8565565 for Hecla’s failure to monitor stress gauges, which Order No. 8605614-05
required. The nexus between the triggering event and the initial issuance of Order No. 8605614
and its other amendments is weaker and extending the compensation period to those amendments
would not make miners safer; the miners who were in the 5900 area at the time of the rockburst
were permitted in the area under amendment 05 of Order No. 8605614.11 Giving balanced
10

Citation No. 8565565 states:

The mine operator worked in the face of 103(k) order 8605614, this order
was issued by MSHA on November 16, 2011. This order was issued to insure the
safety of miners at the mine after a violent rock burst occurred and was
subsequently modified to insure a safe means to repair the damaged area.
Subsequent action number 8605614-[05] states that the mine operator will
conduct daily surveys at the start and end of the first shift to determine [whether]
movement is occurring to indicate if stress levels are increasing. The operator
submitted a plan that these readings would be taken twice a day at the same time.
On December 14, 2011 the operator failed to take the last reading just prior to
another violent rock burst that resulted in serious injuries to seven miners. The
Mine Superintendent stated that the readings could not be taken because [the]
steel liner was installed over the gauges and the gauges could not be read. Upon
inspection it was found that the stress gauges were provided with extended wire
so that they could be read during the installation of the liner. If this reading was
taken it may have indicated high levels, which have removed miners from the 2nd
rock burst. This condition has not been designated as “significant and substantial”
because the conduct violated a provision of the Mine Act rather than a mandatory
safety standard.
Ex. G-9.
11

Although amendment 05 is a modification to Order No. 8605614, I consider it
separately in this case for compensation purposes. Order No. 8605614-05 is a withdrawal order,
but it did not withdraw any miners from the Mine as Order No. 8605614 initially did. Rather,
Order No. 8605614-05 permits miners to enter the affected area, but imposes upon Hecla the
(continued...)
36 FMSHRC Page 3350

consideration to the limited and purely compensatory character of section 111 and the overall
safety purposes of the Act, I find that the miners represented by USW are entitled to
compensation under the fourth sentence of section 111 beginning on December 6, 2011 at 15:16
(3:16 p.m. local time).
I find that miner compensation should end at 21:00 (9:00 p.m. local time) on December
14, 2011 when MSHA issued Order No. 8605622 because Hecla complied with Order No.
8605614-05 for the purposes of section 111 at that time.12 A section 103 order is usually issued
as soon as MSHA is aware of an accident to quickly remove miners from the potentially
dangerous mine and to give MSHA control of the mine to initiate an investigation. See Miller
Min. Co., Inc. v. Federal Mine Safety and Health Review Com'n, 713 F.2d 487, 490 (9th Cir.
1983). Congress drafted sentence four of section 111 to compensate miners “who would have
been withdrawn from, or prevented from entering” a mine where MSHA forbid access. Although
it applies in other situations, such as the current case, sentence four of section 111 generally
applies to situations where MSHA issues a withdrawal order and the operator fails to withdraw
miners, or allows miners to enter the mine in violation of a withdrawal order. For most section
103 orders, the only action required of an operator in those situations is to remove miners from
the mine; when a mine does so, they comply with the affirmative requirements of most section
103 orders.13 In the situation before me, however, the operator violated a modification to a
103(k) order and not the original order or the basic withdrawal requirement.
11 (...continued)

affirmative action of monitoring the stress gauges. This distinction is critical for compensation
purposes, since section 111 focuses upon operators violating a withdrawal order by failing to
remove miners from an area where MSHA forbid the presence of miners, but this case focuses
upon the violation of an additional affirmative requirement.
12

I reject USW’s assertion that the ending date of compensation must be June 12, 2013
because MSHA terminated Order No. 8605614 on that date and I found in my October 29, 2014
decision that MSHA’s action to maintain both 103(k) orders was not arbitrary or capricious. The
Commission evaluates official MSHA enforcement activity concerning withdrawal orders
separately from their effect upon compensation. Compensation analysis focuses “upon the
conduct of the operator and the conditions in the mine, not the sequencing of MSHA
enforcement activity.” Local Union, 1889, 8 FMSHRC at 1327; See Local Union 1609, District
2, United Mine Workers of America v. Greenwich Collieries, Division of Pennsylvania Mines
Corp., 8 FMSHRC 1302, 1306 (Sept. 1986) (refers to “safety” and “compensation”
considerations separately). Although the timelines of the underlying orders and the compensation
period often coincide, the Commission bifurcates the analysis because it is possible, as in this
case, that MSHA’s enforcement decisions do not determine the duration of compensation. I
found that the 103(k) orders were not maintained in an arbitrary or capricious manner in a
decision separate from the current compensation case. Although those orders directly underlie
and are related to this compensation case, they do not control this compensation case; USW
repeatedly argues against a “formalistic emphasis on sequencing” but chooses to place that
emphasis upon the orders when convenient for its own claims.
13

After withdrawal, a 103 order remains in effect and the operator can still violate such
an order by entering the mine against the prohibition of the 103(j) or 103(k) order, which could
trigger sentence four compensation. In that situation, the operator would comply with the 103
(continued...)
36 FMSHRC Page 3351

Order No. 8605614-05 included the affirmative requirement that Hecla must monitor
stress gauges to continue work in the affected area; once Order No. 8605622 forbade work in the
5900 haulage area, however, that requirement was complied with for the purposes of sentence
four, section 111 compensation.14 The order required the monitoring of gauges due to the
presence of miners in the area; once the miners were withdrawn and work in the area was
forbidden, that requirement fell away. For this reason, both Inspectors Brad Breland, a
supervisory mine inspector, and Kevin Hirsch, the assistant district manager at the time of the
accident, testified that Order No. 8605622 superseded Hecla’s requirement to monitor the stress
gauges. Not only was the monitoring no longer required after the issuance of Order No. 8605622,
15
but Inspector Breland testified that to believe so was “silly[.]” (Tr. 108).
13 (...continued)

order when it removed the miners from the mine. The operator would compensate miners
beginning with the issuance of the 103 order until their removal from the mine because at that
time the operator would once again be in compliance with the order. In this situation,
compensation runs from the time of the initial order to monitor stress gauges until stress gauges
no longer needed to be monitored. In either situation, the compensation would not extend into
the future for as long as the 103 order remained in effect.
14

Within days of the December 14, 2011 rockburst, Hecla notified MSHA that it would
abandon the 5900 haulage drift and drive a bypass around that area.
15

The Commission has ruled that 103(k) orders should not preclude compensation under
section 111. This ruling, however, primarily dealt with the interplay between section 103
withdrawal orders, which are usually issued immediately when an accident occurs, and other
types of withdrawal orders. Local Union 1889, 8 FMSHRC at 1323. It does not address
interactions between multiple 103 orders. When MSHA issues a 103 order, it has control of the
affected area and any entrance into that area, which precludes the necessity to issue an
additional, overlapping 103 order. In this instance, MSHA took the unusual action of issuing two
103 orders that were in effect at the same time and governed overlapping areas. I found that this
action was not arbitrary or capricious. That finding was based upon the chaotic situation at the
mine, which caused MSHA to maintain Order No. 8605614 as a “spotlight” on the dangerous
5900 area. Hecla Limited, 36 FMSHRC __, slip op. at 6. MSHA retained both 103(k) orders for
an administrative or managerial purpose; Order No. 8605614 was not modified or used to control
the mine after the issuance of Order No. 8605622. Instead, Order No. 8605614 simply served as
a “spotlight” to prevent the most dangerous area in the mine from being overlooked. Although
Order No. 8605622 could be terminated before Order No. 8605614, it was not necessary to keep
Order No. 8605614 active; MSHA could have modified Order No. 8605622 to continue control
over the 5900 area. Order No. 8605614 was a placeholder. It had no affirmative requirements or
power once MSHA issued Order No. 8605622. Under Section 111, “the limited nature of
compensation…represents a careful and deliberate balancing by Congress of the competing
interests of miners and mine operators[,]” but it does not consider the administrative or
managerial motives of MSHA when it controls a mine under a 103(k) order. Local Union 1261,
11 FMSHRC at 1613. In this case, Order No. 8605622 does not preclude compensation, but it
does affect the length of the compensation period. It is possible that a situation would arise that
two 103(k) orders would interact differently with regard to section 111. My ruling is limited to
the facts before me today.
36 FMSHRC Page 3352

The fourth sentence of section 111 applies in this case because Hecla violated Order No.
8605614-05 by failing to monitor pressure gauges. Hecla’s culpability in this compensation case
relates to that action and requirement, a requirement that MSHA admits Order No. 8605622
superseded. The extended closure of the mine after the issuance of Order No. 8605622 focused
upon myriad issues, most of which were unrelated to the 5900 area and none of which addressed
monitoring the stress gauges at issue.16 Section 111 focuses upon the culpability of mine
operators relating to specific actions concerning withdrawal orders. Local Union 1889, 8
FMSHRC at 1327. Although Hecla was responsible for all the violations that MSHA required
Hecla to abate before the termination of Order No. 8605622, the remediation of those violations
did not address Citation No. 8565565, which is the action that sentence four of section 111
compensation hinges upon. When MSHA issued Order No. 8605622 it “superseded” the
requirement of Order No. 8605614-05 to monitor the stress gauges, which meant Hecla was then
in compliance with Order No. 8605614-05 and sentence four, section 111 compensation
ceased.17
The fourth sentence of section 111 contemplates a situation where an operator fails to
withdraw miners. The case before me involves the violation of a 103(k) order, but not due to a
failure to withdraw miners. The compensation period therefore does not begin at the time of the
initial order of withdrawal, but rather when MSHA required Hecla to begin monitoring the stress
gauges. After the violation of the withdrawal order, the unusual sequence of events obscures the
end of the compensation period; the limited nature of section 111 warrants the compensation
period to end when the operator could no longer comply with the specific requirement of the
withdrawal order at issue.
I find that only miners who worked in the area controlled by Order No. 8605614-05 from
the time the stress reading was not taken until the time that miners were withdrawn as a result of
the rock burst in the pillar are entitled to compensation. Sentence four of Section 111 only
mandates compensation for miners “who would have been withdrawn from, or prevented from
entering” the mine. 30 U.S.C. § 821. Section 111 uses the phrase “who would have been”
because it addresses only those miners who worked in the face of a withdrawal order. The
issuance of Order No. 8605614 on November 16, 2011 idled many miners, but they would not
have been withdrawn from the area restricted by Order No. 8605614-05 on December 15
because they were not there to be withdrawn. The plain language of section 111 dictates that
only miners who worked in the face of Order No. 8605614-05 are entitled to compensation;
miners who worked in the 5900 haulage drift, the 54 ramp, or the 5700 level after Hecla failed to
monitor the stress gauges are therefore entitled to compensation.

16

Order No. 8605622 closed the Silver Shaft, a decision that had no relation to the
November 16, 2011 or December 14, 2011 rockbursts in the 5900 area, Order No. 8605614, or
Citation No. 8565565. The remediation MSHA required in the Silver Shaft caused Order No.
8605622 to stay in place for over a year and did not address the 5900 area, rockbursts, or
pressure gauges.
17

My analysis determining the end date of compensation is similar to the nexus analysis
to determine the relation of a withdrawal order to the idling of miners.

36 FMSHRC Page 3353

The entire record shows that there is no genuine issue of material fact and Hecla is
entitled, in part, to partial summary decision as a matter of law as set forth above. Miners who
worked in the 5900 haulage area, the 54 ramp, or the 5700 level during the time between Hecla’s
failure to check the stress gauges and the December 14, 2011 rockburst are entitled to
compensation under sentence four of section 111. The compensation period begins on December
6, 2011 at 15:16 and ends on December 14, 2011 at 21:00.18 I GRANT, in part, Hecla’s Motion
for Partial Summary Decision. Although I hold that select miners are entitled to compensation
under the fourth sentence of section 111 of the Mine Act, I DENY the USW’s motion for Motion
for Partial Summary Decision as set forth in this order. I ORDER the parties to agree to the
specific miners due compensation and the amount of that compensation; until I approve that
submission, I retain jurisdiction of this matter.

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

Distribution:
Laura E. Beverage, Esq., and Karen Johnston, Jackson Kelly PLLC, 1099 18th St., Suite 2150,
Denver, CO 80202 (Certified Mail)
Susan J. Eckert, Esq., Santarella & Eckert, LLC, 7050 Puma Trail, Littleton, CO 80125
(Certified Mail)

18

The Commission has held that interest should be included in the payment of
compensation to miners:
To make the miners whole for the time value of their compensable pay,
therefore, we hold in affirmance of the judge that interest is appropriate on sums
of compensation due from the date that the compensable pay would have been
paid but for the idlement until the date that the compensation due is tendered. This
result comports with the interest approach followed in discrimination cases under
Arkansas–Carbona. 5 FMSHRC at 2051–53 & n. 15.
Local Union 2274, District 28, United Mine Workers of America v. Clinchfield Coal Co.,
10 FMSHRC 1493, 1503 (Nov. 1988).

36 FMSHRC Page 3354

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933
FAX: 202-434-9949

December 30, 2014
BRODY MINING, LLC,
Contestant,
v.

CONTEST PROCEEDINGS
Docket No. WEVA 2014-82-R
Order No. 9003242; 10/28/2013
Docket No. WEVA 2014-83-R
Order No. 7166788; 10/28/2013

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

Docket No. WEVA 2014-86-R
Order No. 4208892; 10/29/2013
Docket No. WEVA 2014-87-R
Order No. 4208893; 10/29/2013
Docket No. WEVA 2014-97-R
Order No. 7166790; 11/04/2013
Docket No. WEVA 2014-151-R
Order No. 9003246; 11/07/2013
Docket No. WEVA 2014-161-R
Order No. 9004638; 11/12/2013
Docket No. WEVA 2014-190-R
Order No. 4208898; 11/14/2013
Docket No. WEVA 2014-191-R
Order No. 7166793; 11/18/2013
Docket No. WEVA 2014-192-R
Order No. 4208899; 11/19/2013
Docket No. WEVA 2014-193-R
Order No. 9005720; 11/20/2013
Docket No. WEVA 2014-221-R
Order No. 8155306; 11/26/2013
Docket No. WEVA 2014-244-R
Order No. 9005722; 12/03/2013

36 FMSHRC Page 3355

Docket No. WEVA 2014-284-R
Order No. 8154092; 12/05/2013
Docket No. WEVA 2014-285-R
Order No. 7166798; 12/09/2013
Docket No. WEVA 2014-447-R
Order No. 7166805; 01/15/2014
Docket No. WEVA 2014-448-R
Order No. 7166806; 01/15/2014
Docket No. WEVA 2014-449-R
Order No. 7166807; 01/15/2014
Docket No. WEVA 2014-450-R
Order No. 7166808; 01/15/2014
Docket No. WEVA 2014-451-R
Order No. 8154104; 01/15/2014
Docket No. WEVA 2014-452-R
Order No. 9005729; 01/13/2014
Docket No. WEVA 2014-453-R
Order No. 9005731; 01/13/2014
Docket No. WEVA 2014-454-R
Order No. 9005732; 01/14/2014
Docket No. WEVA 2014-455-R
Order No. 9005733; 01/14/2014
Docket No. WEVA 2014-456-R
Order No. 9005735; 01/15/2014
Docket No. WEVA 2014-457-R
Order No. 9005736; 01/15/2014
Docket No. WEVA 2014-479-R
Order No. 7166815; 01/23/2014
Docket No. WEVA 2014-480-R
Order No. 7166816; 01/23/2014

36 FMSHRC Page 3356

Docket No. WEVA 2014-529-R
Order No. 7166817; 01/27/2014
Docket No. WEVA 2014-530-R
Order No. 9005739; 01/27/2014
Docket No. WEVA 2014-531-R
Order No. 9005747; 02/10/2014
Docket No. WEVA 2014-537-R
Order No. 9007544; 02/04/2014
Docket No. WEVA 2014-539-R
Order No. 7166822; 01/28/2014
Docket No. WEVA 2014-561-R
Order No. 9005740; 01/27/2014
Docket No. WEVA 2014-562-R
Order No. 9005742; 01/29/2014
Docket No. WEVA 2014-563-R
Order No. 7166826; 02/04/2014
Docket No. WEVA 2014-570-R
Order No. 9005750; 02/19/2014
Docket No. WEVA 2014-571-R
Order No. 7166824; 01/29/2014
Docket No. WEVA 2014-572-R
Order No. 9005741; 01/29/2014
Docket No. WEVA 2014-593-R
Order No. 9005753; 02/20/2014
Docket No. WEVA 2014-594-R
Order No. 7166831; 02/11/2014
Docket No. WEVA 2014-638-R
Order No. 9005754; 02/24/2014
Docket No. WEVA 2014-639-R
Order No. 9005762; 03/04/2014

36 FMSHRC Page 3357

Docket No. WEVA 2014-640-R
Order No. 9003274; 03/04/2014
Docket No. WEVA 2014-641-R
Order No. 9005763; 03/04/2014
Docket No. WEVA 2014-672-R
Order No. 9005758; 02/25/2014
Docket No. WEVA 2014-673-R
Order No. 9005756; 02/25/2014
Docket No. WEVA 2014-674-R
Order No. 7166838; 02/24/2014
Docket No. WEVA 2014-675-R
Order No. 7166839; 02/24/2014
Docket No. WEVA 2014-676-R
Order No. 8166840; 02/24/2014
Docket No. WEVA 2014-678-R
Order No. 7166837; 02/24/2014
Docket No. WEVA 2014-679-R
Order No. 9005755; 02/24/2014
Docket No. WEVA 2014-680-R
Order No. 9005757; 02/25/2014
Docket No. WEVA 2014-681-R
Order No. 9005759; 02/25/2014
Docket No. WEVA 2014-715-R
Order No. 8135796; 03/11/2014
Docket No. WEVA 2014-716-R
Order No. 8135797; 03/12/2014
Docket No. WEVA 2014-717-R
Order No. 9001091; 03/11/2014
Docket No. WEVA 2014-718-R
Order No. 9001095; 03/19/2014

36 FMSHRC Page 3358

Docket No. WEVA 2014-719-R
Order No. 9001096; 03/11/2014
Docket No. WEVA 2014-720-R
Order No. 9005764; 03/05/2014
Docket No. WEVA 2014-722-R
Order No. 9007123; 03/23/2014
Docket No. WEVA 2014-745-R
Order No. 9969627; 03/24/2014
Docket No. WEVA 2014-804-R
Order No. 9005343; 04/03/2014
Docket No. WEVA 2014-805-R
Order No. 9005768; 04/03/2014
Docket No. WEVA 2014-806-R
Order No. 9005769; 04/07/2014
Docket No. WEVA 2014-807-R
Order No. 9005770; 04/07/2014
Docket No. WEVA 2014-811-R
Order No. 9005344; 04/09/2014
Docket No. WEVA 2014-813-R
Order No. 9005772; 04/09/2014
Docket No. WEVA 2014-814-R
Order No. 9005773; 04/09/2014
Docket No. WEVA 2014-819-R
Order No. 9005774; 04/15/2014
Docket No. WEVA 2014-854-R
Order No. 9005778; 04/21/2014
Docket No. WEVA 2014-855-R
Order No. 9005779; 04/22/2014
Docket No. WEVA 2014-856-R
Order No. 9005780; 04/22/2014

36 FMSHRC Page 3359

Docket No. WEVA 2014-909-R
Order No. 9005347; 05/01/2014
Docket No. WEVA 2014-974-R
Order No. 9005349; 05/13/2014
Docket No. WEVA 2014-975-R
Order No. 9005350; 05/13/2014
Docket No. WEVA 2014-976-R
Order No. 9007426; 05/13/2014
Docket No. WEVA 2014-1012-R
Order No. 9005786; 05/29/2014
Docket No. WEVA 2014-1013-R
Order No. 9005787; 05/29/2014
Docket No. WEVA 2014-1035-R
Citation No. 9005792; 06/12/2014
Docket No. WEVA 2014-1036-R
Citation No. 9005362; 06/11/2014
Docket No. WEVA 2014-1037-R
Citation No. 9005360; 06/04/2014
Docket No. WEVA 2014-1038-R
Citation No. 9005361; 06/11/2014
Docket No. WEVA 2014-1135-R
Order No. 9905374; 07/15/2014
Docket No. WEVA 2014-1138-R
Order No. 9005376; 07/16/2014
Docket No. WEVA 2014-1157-R
Order No. 9009660; 07/22/2014
Docket No. WEVA 2014-1993-R
Order No. 9005384; 07/30/2014
Docket No. WEVA 2014-1994-R
Order No. 9005383; 07/30/2014

36 FMSHRC Page 3360

Docket No. WEVA 2014-1995-R
Order No. 9005382; 07/30/2014
Docket No. WEVA 2014-1996-R
Order No. 9005380; 07/30/2014
Docket No. WEVA 2014-2172-R
Order No. 9003948; 09/08/2014
Docket No. WEVA 2014-2173-R
Order No. 9005393; 09/09/2014
Docket No. WEVA 2014-2174-R
Order No. 9005398; 09/10/2014
Docket No. WEVA 2014-2175-R
Order No. 9005400; 09/10/2014
Docket No. WEVA 2014-2221-R
Order No. 9007439; 09/17/2014
Docket No. WEVA 2015-59-R
Order No. 7272454; 10/07/2014
Docket No. WEVA 2015-60-R
Order No. 7272462; 10/07/2014
Docket No. WEVA 2015-61-R
Order No. 7272494; 10/07/2014
Docket No. WEVA 2015-63-R
Order No. 9005704; 10/14/2014
Docket No. WEVA 2015-66-R
Order No. 9005705; 10/14/2014
Docket No. WEVA 2015-67-R
Order No. 9006768; 10/14/2014
Docket No. WEVA 2015-68-R
Order No. 9006769; 10/14/2014
Docket No. WEVA 2015-121-R
Order No. 7219154; 10/24/2014
Mine: Brody Mine No. 1
Mine ID: 46-09086

36 FMSHRC Page 3361

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2013-370
A.C. No. 46-09086-308309
Docket No. WEVA 2013-564
A.C. No. 46-09086-310927

v.

Docket No. WEVA 2013-997
A.C. No. 46-09086-321030
Docket No. WEVA 2013-1055
A.C. No. 46-09086-323691
Docket No. WEVA 2013-1189
A.C. No. 46-09086-326531
Docket No. WEVA 2013-619
A.C. No. 46-09086-342759
Docket No. WEVA 2013-620
A.C. No. 46-09086-342759
Docket No. WEVA 2014-702
A.C. No. 46-09086-344708
Docket No. WEVA 2014-842
A.C. No. 46-09086-347271
BRODY MINING, LLC,
Respondent.
Before:

Mine: Brody Mine No. 1

Judge William B. Moran

Order on the Secretary’s Motion for Certification for Interlocutory Review and Order on
the Secretary’s Renewed Emergency Motion to Stay the Court’s Order Dismissing the
Pattern of Violations Notice
Upon consideration of the Secretary’s Motions and the response thereto, for the reasons
which follow, the Court GRANTS the Motion for Certification for Interlocutory Review and
DENIES the Secretary’s Renewed Emergency Motion to Stay.1
1

The use of the term “Emergency” is the Secretary’s self-characterization of its motion to
stay. The Court does not subscribe to the accuracy of that characterization.

36 FMSHRC Page 3362

I.

Order on the Secretary’s Motion for Certification for Interlocutory Review

The Secretary’s Motion for Certification for Interlocutory Review (“Motion for IR”) requests
that this Court certify its November 1, 2014 Order, which among other actions and findings,
dismissed the claim that Brody had a pattern-of-violations (“POV”), as asserted in the POV
notice issued by the Secretary to Brody Mining on October 24, 2013. Pursuant to Commission
Rule 76 (29 C.F.R. § 2700.76), the Secretary now requests that the ALJ certify its Order for
interlocutory review.
In support of its Motion for IR, the Secretary states that the Court’s Order is interlocutory
because it did not resolve the 357 citations and orders not designated as “significant and
substantial” (“S&S”) that were included with the 54 S&S citations and orders.2 It notes that “[a]n
order qualifies for interlocutory review under Rule 76 if: (i) the interlocutory ruling involves a
controlling question of law, and (ii) immediate review may materially advance the final
disposition of the proceeding [and the Secretary maintains that] both requirements are met here.”
Motion for IR at 2.
The IR motion continues with the Secretary stating that the “dismissal order presents the
following controlling questions of law: (i) whether the ALJ had jurisdiction to adjudicate the
validity of the POV notice issued to Brody when the hearing notice listed only the civil penalty
dockets containing the citations and orders underlying the POV notice, and not the dockets
containing Brody’s contests of the withdrawal orders issued pursuant to the POV notice;
(ii) whether the ALJ erred as a matter of law in finding that the Secretary failed to comply with
the ALJ’s oral pre-hearing order; and, (iii) whether the Secretary’s definition of “pattern of
violations” satisfies the requirements of Section 104(e)(4) of the Mine Act and the Due Process
Clause of the Fifth Amendment to the United States Constitution.”3 Motion for IR at 2.
The Court does agree with the Secretary’s assertion that “[i]mmediate review may
materially advance resolution of this proceeding by allowing the POV issues, which are legal
issues that may be resolved independently from the rest of the case, to be adjudicated on appeal
without awaiting the ALJ’s adjudication of the 357 non-S&S citations and orders—which have
no bearing on the POV issues—contained in the civil penalty dockets pending before the ALJ.”
Motion for IR at 2-3.4 (emphasis added).
2

The Secretary adds that “[t]o the extent that the contested POV withdrawal orders were
properly before the ALJ—and the Secretary contends they were not—the fact that the ALJ did
not adjudicate those orders not only prevents the order from being final but also deprived the
ALJ of jurisdiction to rule on the validity of the POV notice.” Motion for IR at n.1.
3

The quoted language reflects the Secretary’s characterization of the issues.

4

The Secretary adds that “[a]lternatively, the ALJ may wish to consider directing that his
November 1, 2014 order of dismissal be entered as a final, appealable order pursuant to Federal
Rule of Civil Procedure 54(b), citing Westmoreland Coal Co., 5 FMSHRC 1406, 1411-12
(1983)(“Westmoreland”). Motion at 3, n. 2. The Commission observed in Westmoreland that
Rule 54(b) permits adjudication of fewer than all claims presented in an action and that the judge
in that case could have applied that Rule allowing him to resolve two of the three claims while
(continued...)
36 FMSHRC Page 3363

Finally, the Secretary notes that it “contacted Brody’s counsel, who stated that he does
not oppose the motion to certify the ALJ’s decision vacating the pattern of violations notice, but
reserves the right to address any particular assertion by the Secretary in this motion.” Motion for
IR at 3. Brody, in a December 17, 2014 email response to an email inquiry from the Court about
the Secretary’s characterization of its position, advised that while it does “not necessarily agree
with the Secretary's formulation of the three issues [presented in the Secretary’s Motion for
certification for Intelocutory Review] [ it believes that] the fundamental issue of whether the
vacation of the POV notice (which in the Secretary's view raises those three issues ) is properly
[the] subject of interlocutory review and the Judge could rule on it without further submission by
Brody.”
Based on the foregoing, the Court GRANTS the Secretary’s Motion and in so doing certifies
that the determinations made by it in its November 3, 2014 Order are interlocutory in the sense
that a large number of citations and orders are associated with the listed dockets which do not
involve claims that they were S&S, and that the rulings which were made in the November 3,
2014 Order involve controlling questions of law and that, in the Court’s opinion, immediate
review will materially advance the final disposition of the proceeding.5

4 (...continued)

retaining jurisdiction of the third. The Commission noted that had the Judge issued a decision
resolving the first two claims and that, as there was no just reason to delay that decision, the
decision would have been a final decision, subject to the review procedures of the Mine Act and
that such an outcome would also have been in harmony with then Commission Rule 64(a), (now
Rule 2700.67(a)), which then and now provides in pertinent part that at any time after
commencement of a proceeding and before the scheduling of a hearing on the merits, a party to
the proceeding may move the judge to render summary decision disposing of all or part of the
proceeding. The Commission held that the resolution of such a question “belongs within the
informed discretion of the judge.” However, in Westmoreland as here, neither party suggested
applying Federal Rule 54(b) and the hearing has occurred for the critical aspects of the
Secretary’s Pattern claim. While it would appear that this option is not available, as noted in the
body of this Order, the Court may avail itself of procedural rule section 2700.76(a)(1)(i),
addressing interlocutory review and does so.
5

Brody has also urged the Court to leave no doubt that its decision vacating the pattern
notice “automatically converts the Section 104e orders based on the POV notice to 104a
citations.” Brody email dated December 17, 2014. Although the Court believes that its Order
clearly conveyed that its decision had that effect, it hereby reaffirms that its decision, which
vacated the claim that Brody had a pattern of violations. That determination automatically
converts all Section 104e orders based on the POV notice to 104a citations. That result is
ineluctable. When faced with the evidentiary burdens at the hearing, the Secretary’s Pattern of
Violation Notice turned out to be stillborn. Beyond listing some 54 citations with, at 25, nearly
half of its basis for the claim determined not to be S&S, the Secretary was also unable to present
a coherent basis for its claim that there was a pattern of violations by Brody.

36 FMSHRC Page 3364

II.

Order on the Secretary’s Renewed Emergency Motion to Stay the Court’s Order
Dismissing the Pattern of Violations Notice

The Secretary has also filed a Renewed Emergency Motion to Stay the Court’s Order
Dismissing the pattern of violations notice6 (“Renewed Motion”). The Motion correctly asserts
that the Court’s November 1, 2014 Order “effectively preclud[es] the Secretary from issuing any
further withdrawal orders pursuant to that notice so long as the ALJ’s order remains in effect.”
Renewed Motion at 1.7
As the Renewed Motion essentially repeats the arguments made in its first Emergency
Motion, an extended discussion is not required. Although the Secretary expends effort on a
contention that, in its most favorable construction, could be described as a semantic dispute,
there is no genuine question about the subjects that were litigated during the three weeks set
aside for hearing. In this regard the Court would comment that, in reaction to the Secretary’s
claim that the Court cannot address the validity of a POV notice, the heart of the matter at issue
here need not be made more complex than it deserves. Arguments over nomenclature should not
control the resolution of this matter. For example, one could contend that a POV notice stands
forever, unassailable by itself, but such notice has no meaning, effect or impact until the first
104(e) withdrawal order flows from it. At that point, all would agree that whether there is in fact
a pattern of violations and whether the alleged violations in support of that claim are present may
be challenged. And that is exactly what occurred here with the end result of this Court dismissing
the Secretary’s claim that it demonstrated a pattern of violations.

6

The Renewed Motion notes that the Secretary previously filed an “Emergency Motion
to Stay Order” with the Court on November 4, 2014, which Brody opposed and which was
denied on November 26, 2014. This is an opportune moment to note the extent to which Brody
has been adversely impacted by a process which was advertised by MSHA as being designed for
the expeditious resolution of challenges to POV notices. With the pattern-of-violations notice
having been issued to Brody Mining on October 24, 2013, more than a year and two months now
have elapsed since then and there is no near term resolution of Brody’s challenges to that POV
notice in sight. To maintain legitimacy, enforcement of the Mine Act’s provisions, through
measures such as a charge of a pattern of violations, must still be about fair procedures. A stay
would effectively mean that Brody, though it prevailed at the hearing, would continue to face an
indefinite, and likely prolonged, period of new section 104(e) withdrawal orders, each of which
in this Court’s determination stem from the same defective notice. In this Court’s view, such a
result is inconsistent with procedural due process.
7

In what the Court views as a troublesome inclusion, the Secretary has inserted the
irrelevant and inaccurate claim that “[i]n the six weeks since issuance of the ALJ’s order
dismissing the POV notice, Brody’s rate of “significant and substantial” violations has tripled.”
Renewed Motion at 2. The Court views this inclusion as emblematic of the Secretary’s
continuing conflation of charges with proof of violations, as if they were the same thing. Brody’s
rate of citations being issued with the significant and substantial element may have increased
threefold, but that does not mean that its rate of established violations with that element has
tripled, unless the Secretary believes that leveling the charge is all that is needed.

36 FMSHRC Page 3365

In his January 30, 2014 Order, Chief Administrative Law Judge Robert Lesnick noted
that the basis for the Secretary’s pattern notice rested upon 54 S&S citations and orders, which
were “grouped according to the hazards they allege[d] (ventilation and methane hazards,
emergency preparedness and escapeway hazards, roof and rib hazards, and inadequate
examination hazards)” 36 FMSHRC 284, 293 (Jan. 2014). Thus, it has been clear since the
inception of the issuance of the pattern notice that the 54 citations and orders were the foundation
upon which that pattern charge was built. Contrary to the implication of the Secretary that “[t]he
ALJ subdivided the hearing into three separate parts, each part corresponding to one subgroup of
the 54 S&S citations and orders relating to one of the distinct patterns identified by the POV
notice,” (Renewed Motion at 3) the Court didn’t invent those groupings; they were presented by
the Secretary, with a hearing week dedicated to each group. Importantly, Chief Judge Lesnick
took note that “[s]ince the issuance of Notice No. 7219154, MSHA has issued (and continues to
issue as of the date of this order) numerous section 104(e) withdrawal orders. Brody has
contested, and continues to contest, all of these orders (since Brody received its POV notice, and
as of the date of this order, it has been issued 28 section 104(e) orders that have been contested
and docketed at the Commission). As additional contests are filed with the Commission, [the
Chief Judge announced in his January 30, 2014 Order that he would] “consolidate them with
these proceedings.”8 36 FMSHRC 284, 293 (Jan. 2014)(emphasis added).
The overriding point is that the Secretary completely understood that the hearing before
the Court had a twofold purpose associated with the POV notice: 1. the Secretary had to present
a coherent basis for its claim that the 54 citations/orders constituted a pattern of violations and 2.
upon setting forth that basis, the Secretary was then obligated to prove that each of the
citations/orders making up the claim of a pattern of violations were factually established as
having the significant and substantial trait. The Secretary failed in both regards. The Secretary
never explained the basis for his claim that the alleged violations constituted a pattern and, of no
small consequence, at the hearing he failed to establish for nearly half, 46.3%, of the
citations/orders that they were in fact S&S violations. With these, twin, significant and
substantial failures on the Secretary’s part, no pattern of violations was established and the claim
that Brody had engaged in a Pattern of Violations was properly dismissed. As the foundation for
its Pattern of Violations Notice crumbled, the required consequence was that all subsequently
issued 104(e) orders built on that defective foundation were necessarily converted to 104(a)
citations.
Brody submitted a Response in Opposition. As the Court is denying the Secretary’s
Renewed Motion, the discussion of that Response will be brief. However, the Court would
comment that it largely endorses Brody’s contentions. For example, the Court agrees that the
Secretary’s claim of lack of jurisdiction is hollow.9 So too, the Court rejects the Secretary’s
8

It should also be noted that if the docket numbers containing Brody’s contests of the
withdrawal orders were deemed to have been improperly included, subsequent litigation would
change nothing - the core issues have already been litigated and decided. Thus, in the Court’s
estimation, this is simply an attempt by the Secretary to avoid facing up to its twin failings in its
pattern of violations claim.
9

As Brody observed in its Response, “The Secretary first raised such argument in his
posthearing brief but had not previously raised that issue. . . . In his Position Statement to the
(continued...)
36 FMSHRC Page 3366

claims regarding the likelihood that the movant will prevail on the merits of its appeal; that
irreparable harm will result to the movant if the stay is not granted; that there is an absence of
adverse effects on other interested parties; and that it has established that the stay is in the public
interest. See the Court’s November 26, 2014 Order Denying the Secretary’s first emergency
motion to stay.
Conclusion
On the basis of the foregoing, the Court DENIES the Secretary’s Renewed Emergency
Motion to Stay the Court’s Order Dismissing the Pattern of Violations Notice.
So Ordered

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

9 (...continued)

ALJ, filed July 17, 2014, which included docket numbers for prepenalty contests of Section
104(e) orders in its caption, the Secretary clearly evidenced an understanding that any hearing
would include the contests of the POV notice (Position Statement at 11). In his prehearing
statement filed August 25, 2014, the Secretary again included as part of the caption four
prepenalty contests of Section 104(e) orders in addition to the civil penalty dockets that he now
includes in the caption by themselves. . . . It has been clear in each notice of contest filed by
Brody that the POV notice is at issue. It has also been clear that the Secretary concedes that in
the contest of a Section 104(e) order, the POV notice can be challenged. . . . It is clear that the
Secretary fully understood that the validity of the POV was at issue prior to and during the
hearing and his removal of the docket numbers from his last submissions is either inadvertent or
disingenuous. . . .
It is clear that throughout the 7 days of hearing that the Secretary believed that the issue
of the POV notice and a pattern was at issue as evidenced by a discussion of the docket numbers
at hearing:
MR. MOORE: -- are related to every prepenalty contest in the 104(e) order that’s
pending before the Commission, and there are approximately a hundred – a hundred of those,
some of which were before the commission on the appeal, the interlocutory appeal. So I’m a
little bit – I want to be careful that we’re – all understand that, while we’re looking at individual
citations for civil penalty dockets, we’re also looking at the broader issue or else we wouldn’t
even have to talk about that. . . . The Secretary did not object to such assertion.” Response at 7-9.

36 FMSHRC Page 3367

Distribution:
Michael T. Cimino, Esq., Jackson Kelly, PLLC, 500 Lee Street East, Suite 1600, Charleston,
WV 25301-3202
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222
K. Brad Oakley, Esq., Jackson Kelly PLLC, 175 East Main Street, Suite 500, Lexington, KY
40507
Adam J. Schwendeman, Esq., 500 Lee Street East, Suite 1600, Charleston, WV 25301-3202
Benjamin M. McFarland, Esq., Jackson Kelly, PLLC, 1144 Market Street, Wheeling, WV 26003
Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22 Floor West, Arlington, VA 22209-3939
Lauren Marino, Esq. Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
Room 2226, Arlington, VA 22209-2296
Jason Grover, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., Room
2226, Arlington, VA 22209-2296
Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
Room 2226, Arlington, VA 22209-2296
Dana Ferguson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
Room 2226, Arlington, VA 22209-2296

36 FMSHRC Page 3368