July 2017
TABLE OF CONTENTS

COMMISSION DECISIONS
07-31-17

PEABODY TWENTYMILE MINING,
LLC

WEST 2015-64

Page 1323

COMMISSION ORDERS
07-07-17

SIMS CRANE, INC.

SE 2017-97-RM

Page 1367

07-10-17

BUZZI UNICEM USA

CENT 2016-0190

Page 1380

07-10-17

ORIGINAL FUELS, INC.

PENN 2015-185-M

Page 1384

07-10-17

COUCH AGGREGATES LLC

SE 2015-112-M

Page 1387

07-10-17

STEVE INGRAM, employed by JIM
WALTER RESOURCES, INC.

SE 2016-32

Page 1390

07-10-17

APPLIED MINERALS, INC.

WEST 2016-130-M

Page 1393

07-25-17

THE AMERICAN COAL COMPANY

LAKE 2009-3

Page 1396

ADMINISTRATIVE LAW JUDGE DECISIONS
07-12-17

SOUTHERN AGGREGATES, LLC

CENT 2016-463-M

Page 1397

07-12-17

PANTHER CREEK MINING, LLC

WEVA 2017-426

Page 1406

i

07-21-17

PENNYRILE ENERGY, LLC and
GMS MINE REPAIR

KENT 2017-0287

Page 1415

07-24-17

LROCK INDUSTRIES

WEST 2016-0705

Page 1429

07-26-17

RAIN-FOR-RENT

WEST 2016-730-M

Page 1448

07-27-17

ALEX ENERGY, INC.

WEVA 2016-0530

Page 1458

07-31-17

JERMYN SUPPLY CO., LLC

PENN 2016-0107-M

Page 1472

07-31-17

DANIEL B. LOWE and MATTHEW
A. VARADY v. JERRITT CANYON
GOLD, LLC, ET AL.

WEST 2017-0331DM

Page 1497

ADMINISTRATIVE LAW JUDGE ORDERS
07-05-17

JOHN RICHARDS CONSTRUCTION

WEST 2015-101-M

Page 1509

07-18-17

ORIGINAL SIXTEEN TO ONE
MINE, INC.

WEST 2017-119

Page 1512

07-19-17

EMERALD COAL RESOURCES, LP

PENN 2015-266

Page 1518

07-20-17

LARRY ANDERSON, formerly
employed by AK COAL RESOUCES
INC.

PENN 2017-109

Page 1529

07-20-17

CROWN RESOURCES
CORPORATION

WEST 2017-0202-RM Page 1536

ii

Review was granted in the following case during the month of July 2017:
Secretary of Labor v. The American Coal Company, et al, Docket No. LAKE 2009-35 (Judge
McCarthy, June 15, 2017)

Review was not denied in any case during the month of July 2017.

iii

COMMISSION DECISIONS

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

July 31, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos. WEST 2015-64
WEST 2014-930-R

PEABODY TWENTYMILE MINING, LLC
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:1
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 concerns Citation No. 8481807, which was issued
to Peabody Twentymile Mining, LLC (“Peabody Twentymile” or “Peabody”), by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) for an alleged
violation of 30 C.F.R. § 75.333(e)(1)(i).2 The citation stated that Peabody had improperly used
1

The votes of the four Commission members regarding whether to affirm the judgment
below were evenly divided. All four members join in the Factual and Procedural Background
section of this decision. However, Commissioners Cohen and Jordan, writing separately, urge
affirmance of the Judge’s decision, while Acting Chairman Althen and Commissioner Young
join in one opinion urging reversal.
2

Section 75.333(e)(1)(i) provides in relevant part that
[e]xcept as provided in paragraphs (e)(2), (3) and (4) of this section all
overcasts, undercasts, shaft partitions, permanent stoppings, and
regulators, installed after June 10, 1996, shall be constructed in a
traditionally accepted method and of materials that have been
demonstrated to perform adequately or in a method and of materials that
have been tested and shown to have a minimum strength equal to or
greater than the traditionally accepted in-mine controls. . . . In-mine tests
shall be designed to demonstrate the comparative strength of the proposed
construction and a traditionally accepted in-mine control.

30 C.F.R. § 75.333(e)(1)(i).

39 FMSHRC Page 1323

polyurethane spray foam to seal the perimeter of a concrete block ventilation stopping. MSHA
issued the citation under section 104(a) of the Mine Act and designated that it was the result of
moderate negligence and was unlikely to cause a lost workday or restricted duty injury. The
citation was not marked as significant and substantial. Pursuant to these designations, MSHA
proposed that Peabody Twentymile pay a civil penalty of $162.
Peabody Twentymile contested the citation and the proposed penalties before a
Commission Administrative Law Judge. After a hearing on the merits, the Judge issued a
decision on November 30, 2015, finding that Peabody violated section 75.333(e)(1)(i) and
assessed a $162 penalty against the operator for that violation.1 37 FMSHRC 2635 (Nov. 2015)
(ALJ). Peabody filed a petition for discretionary review of the Judge’s decision, which we
granted.
As stated in footnote one, two Commission members vote to affirm the Judge’s decision,
and two Commission members vote to reverse the Judge’s decision. As a result of this vote split,
the Judge’s decision will stand as if affirmed. Pa. Elec. Co., 12 FMSHRC 1562 (Aug. 1990),
aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992).
I.
Factual and Procedural Background
A. Factual Background
Peabody operates the Foidel Creek Mine, a large underground coal mine in Colorado.
The mine contains over 1,000 ventilation stoppings, which separate intake air from return/belt
air, in order to protect miners working at the face from noxious air and to maintain the integrity
of miners’ designated escapeways. Tr. 30, 48-49, 98, 100, 104.
The mine’s approved ventilation plan recognizes that Peabody constructs two types of
stoppings: temporary metal panel stoppings, known as Kennedy stoppings; and permanent
concrete block stoppings. Construction of Kennedy stoppings involves inserting vertically
adjustable 12-inch wide metal panels into the entry forming a wall and then using sheet-metal
flagging at the edges to get the stopping snug against the ribs. See Tr. 35-36; Peabody Ex. D,
p. 5 (diagrams of Kennedy stopping). MSHA has recognized that a Kennedy stopping may be
sealed with polyurethane foam, a non-strength-enhancing material. Tr. 35-37, 39, 53.
The method of constructing dry-stacked concrete block stoppings at the mine was very
different from that used to construct the Kennedy stoppings. Block stoppings were created by:
(1) scaling down loose material on the ribs and roof, including old roof control material;
1

The docket containing Citation No. 8481807 originally contained a total of six
issuances related to conditions at Foidel Creek Mine, which the operator contested. In his
decision, the Judge also approved a partial settlement of the five other violations that were
contained in the docket, and assessed a total penalty of $3,020 for all six violations.

39 FMSHRC Page 1324

(2) creating a level base on the mine floor; (3) dry-stacking rows of three-inch thick cinder
blocks (eight-inch wide “half blocks”); (4) placing wooden wedges between the last cinder block
on each row and the adjacent rib, and between the top of the final row and the roof; (5) applying
mortar or other strength enhancing sealant material with a trowel to cover the face of the cinder
blocks; and (6) prior to the issuance of the citation in this case, sealing the perimeter of the
stoppings (sides and top) by injecting the same polyurethane foam used in the Kennedy
stoppings. See Tr. 32-35, 44, 116-18, 125; Peabody Ex. B, at 1-3.
The perimeter of a stopping is sealed to ensure that air does not leak through the
stopping, i.e., to ensure to the extent practicable that the air travelling through adjacent air
courses remains separated and does not mix, so that the working face and escapeways do not
become “contaminat[ed] . . . with harmful gases.” Tr. 30-31, 35. Because they use panels and
flagging, the Kennedy stoppings create a tighter fit along the ribs and roof than do concrete block
stoppings. The gaps in a Kennedy stopping can vary from a “small seam” where the panels are
butted tight onto the rib or roof to up to four inches depending on the shape of the rib and the
conditions in the mine. Tr. 36. The gaps with the block stoppings generally range from 0 to 6
inches so that as a general matter the gaps at their widest points may have been up to 2 inches
wider than with a Kennedy stopping at their wide points. Tr. 47. The purpose of the
polyurethane foam is to seal the perimeter of the stopping to prevent air from flowing through it.
Tr. 39.
On August 5, 2014, MSHA Inspector Yasser Akbarzadeh observed that the perimeter of a
block stopping separating the intake entry from the belt entry on the 13 Left working section,
MMU 008-0, was sealed with Touch ’n Seal foam. Sec. Ex. 2, at 13-15 (inspector notes). On
the following day, Inspector Akbarzadeh issued Citation No. 8481807, alleging a violation of 30
C.F.R. § 75.333(e)(1)(i), for failure to construct the stopping using “a traditionally accepted
method.” Sec. Ex. 1, at 1-3 (citation/modified citation). After consulting with MSHA District
Manager Russell Roytee and Assistant District Manager James Preece (who had accompanied
Akbarzadeh on the inspection and pointed out the violative condition), the inspector modified the
citation later the same day to allege, among other things, that the perimeter of a “cinder block
stopping” was not “sealed with mortar,” but instead “sealed with touch N seal [sic] foam
measuring approximately 0 to 6 inches along the ribs and roof.” Sec. Ex. 1, at 1-3; Tr. 19-22, 43.
On August 12, 2014, Peabody contested the citation.
Before the issuance of the disputed citation, Peabody had consistently used polyurethane
foam to seal the edges of both its block stoppings and Kennedy stoppings. In 1983, the original
ventilation plan for the mine allowed for sealing with “other approved sealants” which the
operator’s witnesses testified included polyurethane foam. Tr. 139-40, 144. In 1991, MSHA
approved a ventilation plan that explicitly allowed for the use of polyurethane foam. Tr. 138-39;
Peabody Ex. D. The MSHA-approved plan provided: “Foam application for ventilation devices
will be limited to sealing cracks and perimeters of ventilation devices.” Peabody Ex. D, at 7.
That application was approved in subsequent plans, including ones in 2000 and 2011. Peabody
Ex. D, at 9; Sec. Ex. 3; Sec. Ex. 11, at 2; Tr. 138-39.
The 2011 Plan was in effect at the time of the citation and, with regard to polyurethane
foam, provides: “Application of foam for ventilation device installation will be limited to sealing

39 FMSHRC Page 1325

the perimeter and joints of such devices. Foam may be used to repair ventilation device doors
and holes in stoppings up to 4 inches by 4 inches in size.” Tr. 91, 108; Sec. Ex. 3 (June 8, 2011,
ventilation plan, p. 11). That language does not limit the application of polyurethane foam to
metal Kennedy stoppings. Tr. 91. At the hearing, Assistant District Manager Preece testified
that this language was implicitly limited to Kennedy stoppings because polyurethane foam is,
“approved for Kennedy stoppings and not block stoppings.” Tr. 49. However, he stated that the
plan should not have been approved “because it doesn’t differentiate between the two.” Tr. 5960. Witnesses for the operator testified that they uniformly believed that there was no limitation
on using the foam on block stoppings. Tr. 107-08.
Witnesses for the operator testified that MSHA had never cited the mine or required
management to change the construction method in the past despite this history and the fact that
hundreds, or even thousands, of block stoppings at Foidel Mine were sealed with polyurethane
foam and inspected by MSHA. Tr. 107-08, 123. Preece testified that he had inspected the mine
“multiple times” over the years, yet he had never issued a citation before. Tr. 42. MSHA
Inspector Barry Grosely had also inspected the mine on numerous previous occasions and had
issued only one citation for sealing block stoppings with polyurethane foam. Tr. 166. 2
Regardless of this enforcement history at Foidel Mine, Preece testified that he had always
used strength-enhancing mortar to seal the perimeter of block stoppings. Tr. 34-35, 64-65.
Preece testified that polyurethane foam was not strength-enhancing, which was especially
important when stoppings were constructed of dry-stacked blocks, and was not fire-rated, which
2

Inspector Grosely testified that during the years Peabody used the polyurethane foam,
he cited Peabody on one occasion for an excessive application of Touch ’n Seal foam at a
Kennedy stopping because in some places it had applied 16 or 17 inches of the material.
Sec. Ex. 9 (citation); Tr. 71-73, 75, 76. In discussing the use of polyurethane foam to seal
stoppings at the mine, Inspector Grosely testified that his concerns went beyond workmanship of
the single stopping cited and concerned the method of construction for both Kennedy and block
stoppings. Tr. 169. Inspector Grosely testified that he “was very adamant” about telling
Peabody that the polyurethane foam “wasn’t doing anything for the stability of the stopping . . . ,
and with a block stopping it would not enhance . . . the strength of the stopping.” Tr. 169-70.
Grosely testified that he told Peabody that foam should only be used in block stoppings as a
secondary sealant material to address minor cracks occurring in the face and perimeter areas after
perimeters were properly constructed with a primary sealant of strength-enhancing bonding
material (such as mortar). Grosely told Peabody that “the interface between where the block
meets the coal rib . . . should be filled with mortar or some strength enhanced material.” Tr. 78.
Mine Foreman Ronald Hockett was familiar with this citation. He testified that the
company had been cited because “there was lack of workmanship in the stopping, and there was
an excessive amount of foam that was used.” Tr. 120. He asserted that it was not a typical
stopping built in the mine. In short, he asserted that the problem was a single, poorly made
stopping rather than a systemic problem with the nature of construction. His understanding was
that foam sealant could be used on the perimeter of stoppings, but not in excess. Tr. 120, 12324.

39 FMSHRC Page 1326

meant that it could burn out in the event of a fire and allow the spread of smoke. Preece noted
that the manufacturer’s brochure states that the “Touch ’n Seal Mine Foam Ventilation Control
System” is a “non-strength enhancing mine sealant” used to “[s]eal metal stoppings” and
“[r]epair damaged block stoppings.” Sec. Ex. 11, at 1-2 (brochure); Tr. 38-39. Grosely testified
that it is possible to install the foam insulation in a “superficial” manner that does not fill the
gaps or create a tight seal. Tr. 164, 167.
Preece testified that polyurethane foam could be used along the perimeter of Kennedy
stoppings because any gaps in the tight-fitting metal panels were small. By contrast, on block
stoppings, polyurethane foam could only be used “as a repair [of] minor cracks and holes” and
“is not used on [the] initial build of the stopping[s].” Tr. 44. Preece stated that the traditionally
accepted method of constructing block stoppings, after stacking and wedging the blocks, is to
apply a bonding material to the face of the blocks and to the perimeter of the stoppings. Indeed,
Preece indicated that, if properly constructed, newly constructed block seals should not require
the application of any foam at all. In sum, Preece testified that application of Touch ’n Seal is
not a traditionally accepted method of sealing the perimeter of block stoppings. Tr. 39, 44-45, 47
(Preece), 78 (Grosely), 156-57 (Preece).
B. The Judge’s Decision
In his November 30, 2015, decision, the Judge stressed that section 75.333(e)(1)(i)
provides that permanent stoppings shall be constructed in a “traditionally accepted method” with
“materials that have been demonstrated to perform adequately.” 37 FMSHRC at 2643. Because
the standard does not define what constitutes a “traditionally accepted method” of constructing
stoppings, the Judge took administrative notice of the preamble to the standard for guidance in
interpreting that ambiguous term. The Judge found that the list of five “traditionally accepted
methods” set forth in the preamble “is exhaustive,” and concluded that any methods not set forth
in the preamble would require engineering tests before such methods could be adopted by an
operator in lieu of the five methods enumerated. 37 FMSHRC at 2643; see Safety Standards for
Underground Coal Mine Ventilation, 61 Fed. Reg. 9764, 9783-84 (Mar. 11, 1996). The Judge
further noted that the preamble requires that the “perimeter” of cementatious masonry blocks be
constructed of “strength enhancing sealant suitable for dry-stacked stoppings.” 37 FMSHRC at
2644 (emphasis added by the Judge). The Judge noted that Touch ’n Seal, although approved by
MSHA as a sealant for ventilation controls, is “non-strength-enhancing.” Id.
The Judge held that “prior or even longstanding use of a particular sealant or construction
method within a mine is irrelevant to whether a stopping is built according to ‘traditionally
accepted construction methods.’” Id. at 2643. The Judge also rejected Peabody’s attempt to
analogize the sealing of perimeters of its block stoppings to the sealing of the perimeters of metal
Kennedy stoppings. The Judge concluded that Peabody’s block stoppings are “much more
similar to lightweight cementatious block stoppings than [to] metal panel stoppings.” Id. at
2644.
Finally, the Judge rejected Peabody’s argument that the language of the mine’s
ventilation plan permitted it to construct block stoppings in the manner for which it was cited.
The Judge noted that the language in the plan did not clearly permit Peabody to use polyurethane
foam as a primary sealant of the perimeter of block stoppings. The Judge held, moreover, that

39 FMSHRC Page 1327

the language of a mine-specific plan cannot in any event be elevated to render meaningless the
language of a specific applicable standard. Id. at 2645. Finally, he held that “any inquiry into
prior MSHA inspectors’ acceptance of similar construction techniques at the Twentymile Mine is
immaterial.” Id. As a result, the Judge concluded that Peabody violated section 75.333(e)(1)(i)
when it sealed the perimeter of the cited block stopping with non-strength-enhancing foam rather
than strength-enhancing mortar, and affirmed the citation. Id. The Judge also upheld MSHA’s
negligence and gravity designations and assessed the penalty proposed by the Secretary of Labor.
Id. at 2645-47.
II.
Disposition
Commissioner Cohen would affirm the Judge’s finding that the stoppings at the Foidel
Creek Mine were not constructed using a “traditionally accepted method” and that, as a result,
the operator violated 30 C.F.R. § 75.333(e)(1)(i). In affirming the Judge, he would hold that the
Secretary’s interpretation of the cited standard is entitled to deference under Skidmore v. Swift &
Co., 323 U.S. 134 (1944), but not under Auer v. Robbins, 519 U.S. 452 (1997).
Commissioner Jordan would also affirm the decision of the Judge below but, unlike
Commissioner Cohen, would hold that the Secretary’s interpretation is entitled to Auer, as
opposed to Skidmore, deference.
Acting Chairman Althen and Commissioner Young would reverse the Judge. They
would find that the requirement for construction of stoppings in a “traditionally accepted
method” has a plain meaning and that the operator’s use of polyurethane foam clearly meets the
standard. They would also hold that, even if section 75.333(e)(1)(i) were ambiguous, the
Secretary’s interpretation would not be entitled to deference.

39 FMSHRC Page 1328

Commissioner Cohen, in favor of affirming the Judge:
I would affirm the Judge’s finding that the stoppings at Foidel Creek Mine were not
constructed using a “traditionally accepted method” and that, as a result, the operator violated 30
C.F.R. § 75.333(e)(1)(i). In affirming the Judge, I would find that the Secretary’s interpretation
of the cited standard is entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944)
but not Auer v. Robbins, 519 U.S. 452 (1997).
The regulation at issue in this proceeding provides in relevant part:
[A]ll overcasts, undercasts, shaft partitions, permanent stoppings, and regulators,
installed after June 10, 1996, shall be constructed in a traditionally accepted
method and of materials that have been demonstrated to perform adequately or in
a method and of materials that have been tested and shown to have a minimum
strength equal to or greater than the traditionally accepted in-mine controls. Tests
may be performed under ASTM E72-80, “Standard Methods of Conducting
Strength Tests of Panels for Building Construction” (Section 12 – Transverse
Load – Specimen Vertical, load, only), or the operator may conduct comparative
in-mine tests. . . .
30 C.F.R. § 75.333(e)(1)(i). Peabody Twentymile routinely constructed permanent block
stoppings at Foidel Creek Mine by dry-stacking concrete blocks, placing wedges around the
perimeter to hold the stopping in place, applying mortar or other strength-enhancing sealant on
the face of the blocks, and then sealing the perimeter of the stopping with non-strength
enhancing polyurethane foam.
The dispute here is whether Peabody Twentymile’s stoppings were made using a
“traditionally accepted method” of construction within the meaning of the regulation. In
reaching that issue, the Judge implicitly held that the regulation was ambiguous. While the
Judge did not specifically state that the regulation was unclear, he noted that it did not define
what methods or materials are “traditionally accepted,” and used the language of the regulatory
preamble as an aid in determining the meaning of the term. This indicates that he did not believe
the meaning was plain. As discussed infra, I agree.
The regulatory preamble lists seven methods of construction that MSHA determined
were traditionally accepted and had performed adequately to separate air courses. MSHA stated,
“[t]hese traditionally accepted construction methods are:”
1) 8-inch and 6-inch concrete blocks (both hollow-core and solid) with mortared
joints;
2) 8-inch and 6-inch concrete blocks dry-stacked and coated on both sides with a
strength enhancing sealant suitable for dry-stacked stoppings;
3) 8-inch and 6-inch concrete blocks dry-stacked and coated on the high pressure
side with a strength enhancing sealant suitable for dry-stacked stoppings;

39 FMSHRC Page 1329

4) Steel stoppings (minimum 20-gauge) with seams sealed using manufacturer's
recommended tape and with the tape and perimeter of the metal stopping coated
with a suitable mine sealant;
5) Lightweight incombustible cementatious masonry blocks coated on the joints and
perimeter with a strength enhancing sealant suitable for dry-stacked stoppings
6) Four-inch concrete blocks may be used in the above applications in seam heights
less than 48 inches; and
7) Tongue and groove 4-inch concrete blocks coated on both sides with a strength
enhancing sealant suitable for dry-stacked stoppings may be used in coal seams of
any height
Safety Standards for Underground Coal Mine Ventilation, 61 Fed. Reg. 9764, 9783-84 (Mar. 11,
1996) (hereinafter “the preamble”).
The Judge determined that this list of “traditionally accepted methods” of construction
was “exhaustive.” Because the method used by Peabody Twentymile at Foidel Creek Mine is
not among those listed, the Judge determined that it was not a “traditionally accepted method”
and upheld the citation. On appeal, the Secretary asserts that this is also his interpretation of the
standard and argued that it is reasonable and entitled to deference.
Peabody Twentymile asserts that the Secretary’s interpretation is not entitled to deference
because the regulation has a plain meaning and the Secretary’s interpretation is at variance with
that meaning. The operator also argues that the Secretary has utilized other, inconsistent
interpretations of the term “traditionally accepted methods” in the past. The operator argues that,
to the extent the Judge granted deference to the Secretary’s interpretation, his decision is
erroneous and should be overturned.
Under the Supreme Court’s decision in Auer, an agency’s interpretation of its own
ambiguous regulation is generally entitled to controlling deference. Auer, 519 U.S. at 461; see
also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). However, this interpretive
power is not unlimited. In fact, in Auer itself the Court listed several limitations on agencies’
ability to create controlling interpretations. Specifically, the court held that controlling deference
would not be granted if the interpretation offered was “plainly erroneous or inconsistent with the
regulation.” 519 U.S. at 461, quoting Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 359 (1989).
In addition, the Court also indicated that deference should not be granted when an
agency’s interpretation does not “reflect the agency’s fair and considered judgment.” Id. at 46263. In Christopher v. SmithKline Beecham Corp., 132 S.Ct. 2156 (2012), the Court elaborated
on the kinds of interpretations that would not reflect the agency’s “fair and considered
judgment.” Such interpretations would include those that conflict with prior interpretations,
those that are nothing more than convenient litigation positions, and those that are post hoc

39 FMSHRC Page 1330

rationalizations advanced by an agency seeking to defend past agency action.1 132 S.Ct. at
2166-67.
The two arguments advanced by Peabody Twentymile and described above implicate two
of the limitations placed on Auer deference. Specifically, the operator essentially argues that the
Secretary’s interpretation is plainly erroneous or inconsistent with the regulation because that
interpretation ignores the plain meaning that can be determined without recourse to the
regulatory preamble. The operator also argues that the Secretary’s interpretation does not reflect
the agency’s fair and considered judgment because it conflicts with prior interpretations.
I reject Peabody Twentymile’s first argument. The Secretary’s interpretation is not
plainly erroneous but instead reasonable, and indeed persuasive, in light of the ambiguous
regulatory language, the history of the creation of section 75.333(e)(1), and the Secretary’s
proper concern for miners’ safety. That issue will be discussed at greater length infra.
The operator’s second argument, that the Secretary’s interpretation conflicts with past
interpretations used by the agency, is a more complicated issue. Courts will refuse to grant Auer
deference to an agency regulatory interpretation when that agency has advanced more than one
interpretation of a given provision and those interpretations are not harmonious. See, e.g., Perez
v. Loren Cook Co., 803 F.3d 935, 941-42 (8th Cir. 2015) (the court refused to grant Auer
deference because, “the Secretary has failed to produce a single citation, publication, or
interpretation that could fairly be characterized as similar to the position the Secretary announced
[here],” and its previously published interpretations differed considerably from the litigation
position advanced in the case); see also In re Estate of Covington, 450 F.3d 917, 922 (9th Cir.
2006); and Hudgens v. McDonald, 823 F.3d 630, 638 (Fed. Cir. 2016).
Courts are concerned about the proliferation of inconsistent interpretations because of the
possibility of unfair surprise. See Independent Training and Apprenticeship Program v.
California Dept. of Indus. Relations, 730 F.3d 1024, 1034-35 (9th Cir. 2013) (an earlier agency
interpretation of a regulation was wholly opposed to the litigation position and therefore created
significant potential for unfair surprise). Courts are also reluctant to grant Auer deference to
new, inconsistent interpretations because parties may rely on earlier, discarded reasonable
interpretations. See Thornton v. Graphic Communications Conference of Intern. Broth. of
Teamsters, 566 F.3d 597 (6th Cir. 2009). However, it is important to note that agencies are
entitled to change their interpretations and positions over time; it is only a concern when the
inconsistent interpretations creates the impression that the agency has not appropriately
considered the matter. Fast v. Applebee's Int'l, Inc., 638 F.3d 872, 878-79 (8th Cir. 2011).
1

The Court did not newly create these categories, but instead referred to earlier Supreme
Court and circuit court cases. In addition to those listed, courts have developed still further
indicia that an agency’s interpretation does not reflect its fair and considered judgment. See e.g.
Gonzalez v. Oregon, 546 U.S. 243 (2006) (“anti-parroting” principle denying deference when
regulation repeated language of the statute verbatim); and Elgin Nursing Rehabilitation Center v.
Department of Health and Human Services, 718 F.3d 488 (5th Cir. 2013) (an interpretation of an
ambiguous interpretation of a regulation not granted deference).

39 FMSHRC Page 1331

I am reluctant to grant Auer deference to the Secretary’s interpretation of 30 C.F.R. §
75.333(e)(1)(i). There is evidence that the Secretary’s application of the cited standard has been
inconsistent. In this matter, the Secretary asserted that the use of polyurethane foam as a sealant
around the perimeter of a block stopping is not a traditionally accepted method of construction.
S. Resp. Brief at 16. However, the enforcement history shows that MSHA did not cite block
stoppings sealed in this manner at this mine for over 30 years. Moreover, the Secretary routinely
approved ventilation plans at the mine that permitted the use of polyurethane foam around the
perimeter of stoppings. In light of the enforcement and approval history at the mine, one could
conclude, as Peabody Twentymile did, that the Secretary interpreted the standard such that this
construction method was considered “traditionally accepted.” Such an interpretation is not
consistent with the one the Secretary now asserts.
On the other hand, the evidence does not contain any unequivocal previous
interpretations used by the Secretary that explicitly states that the use of polyurethane foam
sealant is a “traditionally accepted method” for sealing the perimeter of stoppings constructed of
dry-stacked concrete blocks. That is merely an inference that can be drawn from the enforcement
history at this particular mine. An equally valid inference might be that allowing the operator to
use the foam sealant was an error made by a single MSHA office and does not reflect the
Secretary’s general interpretation of the standard.2
However, the Secretary failed to establish that there was a consistent, nationally-enforced
interpretation that prohibited the use of polyurethane foam around the perimeter of stoppings
constructed of dry-stacked concrete blocks.3 While it is possible that such an interpretation
existed (and the lack of enforcement at Foidel Creek Mine was the result of a mistake or
confusion by a single district office), there is insufficient evidence in the record to reach that
conclusion. As a result, I do not believe that Auer deference is warranted.
2

The testimony from the Secretary’s witness Preece that MSHA missed these violations
for 30+ years because the inspectors were inexperienced was belied by the fact that he conceded
that several experienced inspectors (including himself) inspected the mine. Groseley’s testimony
that other inspectors did not cite the condition because they were not intelligent enough to notice
is offensive to the skilled, knowledgeable, and dedicated inspectors employed by MSHA and is
likely not a principle the Secretary of Labor wants to extend into other cases.
3

Contrary to Commissioner Jordan’s footnote 2, I am not suggesting that the Secretary
generally has a burden to establish that an interpretation be consistently enforced on a national
basis in order to be accorded Auer deference. But here, the interpretation for which the Secretary
seeks Auer deference was not applied at the Foidel Creek Mine at any relevant time, and the
unique question in this case is whether Peabody Twentymile’s use of polyurethane foam as a
sealant around the perimeter of a dry-stacked block stopping is a “traditionally accepted” method
of construction. As described infra, footnote 8, the phrase “traditionally accepted” is almost
never used in federal rule making. Unlike specific descriptions of conduct which are prescribed
or proscribed, the phrase “traditionally accepted” suggests an analysis which is comparative in
nature. In these very unique circumstances, evidence of the Secretary’s policy in other coal
districts would have been useful.

39 FMSHRC Page 1332

However, the fact that Auer deference is not warranted does not mean the Secretary’s
interpretation is necessarily rejected; it is not even the end of the discussion regarding deference.
In Christopher, the Court held that if Auer deference was not warranted for an agency’s
interpretation of its own regulations, it would still grant some level of deference proportional to
the thoroughness evident in its consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give it power to persuade, if
lacking the power to control. 132 S.Ct. at 2169 citing United States v. Mead Corp., 533 U.S. 218,
228 (2001) and Skidmore, 323 U.S. at 140. In addition to these four factors, the Supreme Court
in Mead added several other important considerations in determining the correct level of
deference, including the degree of the agency’s care, the formality of the pronouncement, the
agency’s relative “expertness” and specialized experience, and the highly detailed nature of the
regulatory scheme and the value of uniformity in the agency’s understanding of what a national
law requires. 533 U.S. at 228, 234. The application of these factors can produce “a spectrum of
judicial responses, from great respect at one end, see e.g. Aluminum Co. of America v. Central
Lincoln People’s Util. Dist., 467 U.S. 380, 389-90 (1984) . . . to near indifference at the other,
see e.g. Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212-13 (1988).” Id. at 228.
The Commission has previously held that if the Secretary’s interpretation is reasonable
and persuasive it can be entitled to deference under Skidmore, regardless of whether it would
meet the standard for Auer deference. Resolution Copper Mining, LLC, 37 FMSHRC 2244,
2247 n. 5 (Oct. 2015). Similarly, various circuit courts have stated that an agency’s
interpretation of its own ambiguous regulations may be entitled to Skidmore deference when
Auer deference is not warranted. See Independent, 730 F.3d at 1035-36; Kolbe v. BAC Home
Loans Servicing, LP, 738 F.3d 432 (1st Cir. 2013); Encarnacion ex rel. George v. Astrue, 568
F.3d 72 (2nd Cir. 2009).
In the instant case, after considering the Skidmore and Mead factors together, I find the
Secretary’s interpretation of the standard to be reasonable and persuasive. As discussed above, I
would find that the interpretation is not consistent with earlier pronouncements. However, many
of the other factors in Skidmore and Mead cut strongly in favor of the Secretary’s interpretation.
With respect to the thoroughness and validity of reasoning, I find that the Secretary’s
interpretation is reasonable. In fact, in light of the circumstances, I find it to be the most
reasonable and persuasive interpretation of the standard. The Secretary’s interpretation best
comports with the language of the regulation, especially when the regulation is considered in the
proper context. The Secretary’s interpretation also is the most protective of the health and safety
of miners.
The Judge did not err in resolving the textual ambiguity of the regulation by looking to
the preamble for guidance. Context, including indications of the agency’s intent at the time of
the regulation’s promulgation, is an important consideration in determining the meaning of a
regulation. See Gardebring v. Jenkins, 485 U.S. 415, 429-430 (1988); see also Northshore Min.
Co. v. Secretary of Labor, 709 F.3d 706 (8th Cir. 2013). In fact, courts have specifically used
regulatory preambles to interpret the meaning of ambiguous regulations. See Advanta USA, Inc.
v. Chao, 350 F.3d 726, 728-29 (8th Cir. 2003) (“we will consult the Standard's Preamble to
decipher the ambiguous language); Albemarle Corp. v. Herman, 221 F.3d 782, 786 (5th Cir.

39 FMSHRC Page 1333

2000); and Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 53 (D.C. Cir. 1999)
(“While language in the preamble of a regulation is not controlling over the language of the
regulation itself. . . we have often recognized that the preamble to a regulation is evidence of an
agency's contemporaneous understanding of its proposed rules.”).
In order to understand the meaning of the term “traditionally accepted” in context, it is
necessary to look not only at the preamble of the current iteration of 30 C.F.R. § 75.333(e)(2),
but also the regulatory history that led to the current language. MSHA initially proposed a rule
regarding the construction of stoppings in 1988. In the preamble to those proposed regulations,
MSHA proposed requiring that “permanent stoppings be made of durable and noncombustible
material, such as . . . concrete block, brick, cinder block, or tile.” Safety Standards for
Underground Coal Mine Ventilation, 53 Fed. Reg. 2382-01, 2392 (Jan. 27, 1988). The agency
proposed to define “durable” material as “material that is structurally equivalent to an 8-inch
hollow-core concrete block stopping with mortared joints, as tested in accordance with section
12 of the American Society for Testing and Materials (ASTM), Standard Method of Test E-72
. . . .” Id. at 2393. The purported reason for this definition was that an agency taskforce had
determined that “8-inch hollow-core concrete block is typical of construction material used for
ventilation controls in underground coal mines.” Id. To pass the ASTM E-72 test, a stopping
would need to be able to withstand the same or greater static pressure as a concrete block, which
was approximately 39 pounds per square foot. Id. In 1992, MSHA finalized the rule,
maintaining the use of the phrase “durable and noncombustible” as well as the definition of
“durable,” with its inclusion of the term “mortared joints” and its reference to ASTM E72-80
Section 12. Safety Standards for Underground Coal Mine Ventilation, 57 Fed. Reg. 20868-01,
20884 (May 15, 1992).4
However, there were apparently issues with the application of the standard and by 1994
revisions to the rule were being proposed. In those proposed rules, MSHA noted, “[t]he Agency
has become aware of questions on the part of a segment of the industry relative to what are
acceptable construction methods . . . for the construction of permanent ventilation controls . . .
that will result in controls that satisfy the definition of durable . . . ” Safety Standards for
Underground Coal Mine Ventilation, 59 Fed. Reg. 26356-01, 26369 (May 19, 1994). MSHA
proposed to address those questions by eliminating the definition of “durable” contained in the
1992 rule, and would instead simply require the controls be constructed to show a minimum
strength of 39 pounds per square inch as tested under ASTM E72-80 Section 12. Id. The new
rule would also allow for “alternative constructions” of ventilation controls, provided they
showed the requisite minimum strength upon testing. Id. MSHA agreed to accept
documentation showing that previously-tested controls met the strength standard. Id. MSHA
proposed to keep a list of construction methods that met the requirements and a list of methods
that did not. Id. MSHA also noted that dry-stacked stoppings plastered on only one side had not
been shown to have the requisite strength and, barring the creation of a stronger plaster, would
not be acceptable. Id.
4

While the reference was to section 12 of ASTM standard “E-72” in the preamble to the
1988 proposed rule, it became section 12 of ASTM standard “E72-80” in the 1992 final rule.
The requirements of the standard remained the same.

39 FMSHRC Page 1334

In 1996, MSHA issued the current final rule regarding the construction of permanent
stoppings. As a result of “numerous comments,” the final rule was considerably different from
the proposed rule. 61 Fed. Reg. at 9783. The final rule eliminated the reference to “8-inch
hollow core concrete blocks” and set the definition for stoppings made with “new materials or
methods” as requiring durability of 39 pounds per square inch. 61 Fed. Reg. at 9783, 9834.
However, it also allowed for the construction of “traditionally accepted” methods of construction
that did not necessarily meet the 39 pounds per square inch durability requirement. Id. In
justifying this decision, MSHA noted:
Commenters questioned the appropriateness of a strength requirement of 39
pounds per square foot and the relevance of this value to the in-mine conditions.
After review, MSHA continues to believe that use of the ASTM E72-80 test to
determine that the relative strength of a ventilation control construction is
appropriate and the final rule retains this standard.5 However, MSHA sees merit
in some of the suggestions made by commenters. Commenters suggested that
some constructions cannot be tested according to the ASTM test, some
constructions that are widely used in coal mines do not meet the 39 pound per
square foot threshold, and the ASTM test can only be run at a limited number of
locations nationwide.
61 Fed. Reg. at 9783. MSHA further stated that since the inception of the Mine Act, a number
of “traditionally accepted construction methods” had been shown to be adequate for their
intended function. Id.
It then stated, “[t]hese traditionally accepted construction methods are:” and listed the
seven types of construction shown above. Id. (emphasis added). This paragraph of the preamble
concluded by saying, “[t]he final rule would continue to permit these traditionally accepted
construction methods to be acceptable for the construction of ventilation controls.” 61 Fed. Reg.
at 9783-84 (emphasis added). The next paragraph began, “[f]or new construction methods or
materials other than those used for the traditionally accepted constructions identified above, the
final rule requires that the strength be equal to or greater than the traditionally accepted in-mine
controls. Tests may be performed under ASTM E72-80 Section 12 . . . .” 61 Fed. Reg. at 9784
(emphasis added).
With this context in mind, MSHA’s intent in drafting the current language in the standard
becomes clearer and the Secretary’s current interpretation is shown to be persuasive. MSHA had
initially promulgated a rule that required stoppings to be made with 8-inch hollow-core concrete
block stopping with mortared joints or equivalent constructions meeting a strength requirement
of 39 pounds per square foot. However, upon promulgating this standard, the Agency received
complaints from operators who were unsure about whether their traditional methods of
construction would meet the strength requirements. MSHA proposed a new rule that made the
strength requirements clearer and provided for “alternative constructions” with equivalent
5

My colleagues’ description of this paragraph of the preamble, at pages 31-32 of this
opinion, omits this sentence. Slip op. at 31-32.

39 FMSHRC Page 1335

strength. However, operators continued to object to the durability standard, claiming that they
had “traditional methods” of construction which were adequate, but would not meet the test.
Taking into account operators’ complaints, MSHA decided to maintain its objective
strength standard, but carved out an exception for stoppings created using “traditionally accepted
methods.” In order to emphasize the limited nature of that exception, MSHA explicitly defined
the particular methods of construction that it considered traditionally accepted. As the Judge
noted, 37 FMSHRC at 2643, MSHA indicated that this list constituted the universe of accepted
construction methods by noting that “traditionally accepted construction methods are” those
listed (rather than “includes” those listed). After listing the seven methods, MSHA referred to
them as “these traditionally accepted methods . . . acceptable for ventilation controls.” Then
MSHA referred to the seven methods as “the traditionally accepted constructions indicated
above.” Thus, MSHA, in three separate sentences, denoted the seven listed methods – and only
those methods – as what would be deemed to be included in the category of “traditionally
accepted methods.”
When seen in this context, the drafters’ intent is clear and provides a reasonable basis for
determining the meaning of the ambiguous phrase. The Secretary intended to create a broadly
applicable, general rule regarding the strength of stopping constructions. In light of complaints
regarding that rule, the Secretary created a narrow exception. To limit the scope of that
exception, the Secretary explicitly defined the excepted methods.
All of the methods on the list which apply to dry-stacked concrete blocks require a
coating of strength enhancing sealant.6 However, as the Judge noted, the polyurethane foam
sealant used by Peabody Twentymile is not strength enhancing. 37 FMSHRC at 2644.
Therefore, the Secretary reasonably found in this case that the operator violated the standard.
The strength of the Secretary’s reasoning and the support shown for that reasoning in the
regulatory history indicates that his view should be given weight.
In its brief, Peabody Twentymile argues that using the preamble to resolve the ambiguity
in the regulation is unreasonable because (1) the plain dictionary meaning of the words are
sufficient to determine the meaning and (2) the preamble is not a part of the promulgated rule
and therefore cannot create a binding “exhaustive” list of construction methods.
My colleagues Acting Chairman Althen and Commissioner Young assert that the words
“traditionally accepted” have a plain meaning. In support of this point, they provide
unobjectionable dictionary definitions of “tradition” and “accepted.” Slip op. at 25-26.
However, the dictionary definitions of “tradition” and “accepted” do not make the regulatory

6

See supra, slip op. at 7-8.

39 FMSHRC Page 1336

language clear since they do not consider the phrase “traditionally accepted” in the context of 30
C.F.R. § 75.333(e)(1)(i).7
As an illustration of the regulation’s ambiguity, the term “traditionally accepted,” taken
on its face without reference to the history of its creation, could mean either the methods
traditionally accepted in the industry as a whole or the methods traditionally accepted at a
particular mine. While Peabody Twentymile and my colleagues look to dictionary definitions of
“traditional” and “accepted” in asserting that the phrase must be given the latter interpretation,
those same definitions could easily be used to support the former interpretation. The term

7

By way of example, in Yates v. United States, 135 S.Ct. 1074 (2015), a commercial
fisherman was charged with violation of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1519,
when, after being apprehended by the National Marine Fisheries Service for possession of
undersized grouper, he caused the grouper to be thrown overboard before returning to port. The
fisherman was convicted under Sarbanes-Oxley of destroying and concealing a “tangible object”
(i.e., the fish) with the intent to impede or obstruct the government’s investigation. In reversing
the Eleventh Circuit, which had affirmed the conviction, the Supreme Court’s plurality opinion
recognized that under the dictionary definitions relied on by the Court of Appeals, the statutory
term “tangible object” encompassed the fish. However, looking at the context of the term in the
Sarbanes-Oxley Act – legislation designed to protect investors from financial fraud following
collapse of the Enron Corporation – the Court rejected reliance on the dictionary definitions.
The plurality opinion stated:
Whether a statutory term is unambiguous, however, does not turn
solely on dictionary definitions of its component words. Rather,
“[t]he plainness or ambiguity of statutory language is determined
[not only] by reference to the language itself, [but as well by] the
specific context in which that language is used, and the broader
context of the statute as a whole.” Robinson v. Shell Oil Co., 519
U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). See also
Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124
L.Ed.2d 44 (1993) (it is a “fundamental principle of statutory
construction (and, indeed, of language itself) that the meaning of a
word cannot be determined in isolation, but must be drawn from
the context in which it is used”).
135 S.Ct. at 1081-82. The plurality opinion quoted with approval the statement by Judge
Learned Hand in Commissioner v. National Carbide Corp., 167 F. 2d 304, 306 (2nd Cir. 1948):
“words are chameleons, which reflect the color of their environment.” 135 S.Ct. at 1083.

39 FMSHRC Page 1337

“traditionally accepted methods” is broad enough to easily bear either meaning.8 But there is
nothing in the record to support an assertion that non-strength enhancing polyurethane foam is
“traditionally accepted” across the country to seal the perimeters of dry-stacked concrete block
stoppings.9 As noted above, the preamble cannot control the interpretation of the standard, but it
provides valuable insight into an agency’s intent at the time of promulgation. Given the
ambiguity here, it was reasonable for the Secretary to look to the preamble to clarify the
regulatory language.
I stress here again that I believe that the relevant portion of this regulation is ambiguous.
My colleagues contend that because I believe the Secretary is not entitled to Auer deference, that
I effectively agree that the words of the regulation have a plain meaning, namely the meaning
8

Perhaps this inherent vagueness in the term “traditionally accepted” explains why it is
so infrequently used in the context of federal regulations. In Title 30, 30 C.F.R. § 75.333 is the
only standard that uses the phrase “traditionally accepted.” In fact, in the entire Code of Federal
Regulation, the phrase “traditionally accepted’ is used only twice; once in section 75.333 and
once in 14 C.F.R. Pt. 60, App. B, to describe qualification performance standards in airplane
training devices. The ambiguous phrase seems to be used here to bridge the gap between what
MSHA originally believed the standard should be and the complaints made by commenters.
9

My colleagues cite the ALJ decision in Twentymile Coal Co., 33 FMSHRC 1885, 1929,
1930 (Aug. 2011) (ALJ), rev’d in part on other grounds, 36 FMSHRC 2009 (Aug. 2014), as
evidence that the use of polyurethane foam to seal the perimeters of dry-stacked concrete block
stoppings is “traditionally accepted.” Slip op. at 27. However, this case involved the storage of
the polyurethane foam used at the Twentymile Foidel Creek Mine, and not the actual use of the
foam. The use of polyurethane foam was not at issue in the case, and there is nothing in either
the evidence or the decision to suggest that polyurethane foam is used for the sealing of
perimeters of dry-stacked concrete block stoppings anywhere other than the Foidel Creek Mine.
In this context, my colleagues cite the testimony of Assistant District Manager Preece
that polyurethane foam is used to seal the perimeter of Kennedy stoppings across the country.
33 FMSHRC at 1929. Kennedy stopping are recognized in the fourth “traditionally accepted
construction method” listed in the preamble (understanding that “Kennedy stoppings” is another
phrasing for the “steel stoppings” referenced in the preamble, Tr. 9.) My colleagues assert that
“Kennedy stoppings have gaps at the perimeter substantially equivalent to those around the
perimeter of block stoppings.” Slip op. at 27. But Preece did not testify that the gaps at the
perimeters of Kennedy and block stoppings are “substantially equivalent.” According to Preece,
openings sealed with foam at the perimeter of Kennedy stoppings are only two to four inches,
while the gaps in the cited block stopping sealed with foam measured up to six inches. Tr. 37,
46-47. The assertion that the perimeter gaps are “substantially equivalent” is speculation on the
part of my colleagues. It is refuted by MSHA’s expertise, as demonstrated in the preamble to
section 75.333. The fourth “traditionally accepted construction method” listed in the preamble
permits “suitable” mine sealants, which do not have to be strength enhancing, for “steel
stoppings.” 61 Fed. Reg. at 9783. However, dry-stacked concrete blocks do require sealants
which are strength enhancing. Id. The “substantial equivalen[ce]” my colleagues assert is not
present.

39 FMSHRC Page 1338

they ascribe to it. Slip op. at 38. They state that I find ambiguity “not in the terms of the
regulation, but in its application.” Id.
My colleagues misunderstand the thrust of my opinion. As I noted supra, my colleagues
use dictionary definitions of “tradition” and “accepted” to support their plain meaning argument.
But in noting that those definitions were unobjectionable I also stated that they were not
dispositive. Instead of resolving the issue, those definitions show why there is no plain meaning
to this regulation. “Traditionally accepted” within the context of the regulation can mean
multiple things. The relevant interpretations here are that the method was accepted at this
particular mine or that the method was accepted at all mines. The language of the regulation
does not indicate which of those interpretations is correct. Thus, the language of the regulation is
ambiguous. Therefore, I looked to the preamble and the regulatory history of the provision to
determine the drafters’ intent. This is a process of looking at the meaning of the regulatory
language in context.
Indeed, I fail to understand my colleagues’ distinction between finding ambiguity in the
“terms” of a regulation and in its “application.” A regulation may be ambiguous in its terms
(especially if poorly drafted) or it may be ambiguous (as here) because it is susceptible to
different, and inconsistent, meanings.
Similarly, my colleagues state that I “implicitly concede” that MSHA “traditionally
accepted” the use of polyurethane foam at the mine. Slip op. at 38. I do not concede that point.
I agree with my colleagues that MSHA failed to cite the operator for using the foam for a long
period of time, and that MSHA approved the use of foam in the mine’s ventilation plans. That
was the reason I determined that Auer deference was not warranted here. It is fair to say that the
Secretary accepted the condition at the mine for some time. But I do not agree that acceptance of
polyurethane foam around the perimeter of block stoppings at a single mine necessarily amounts
to “traditional acceptance” of that method within the meaning of the regulation. What
constitutes “traditionally accepted” is the crux of the case. With the context discussed supra in
mind, I do not believe, as my colleagues apparently do, that “traditionally accepted,” as used in
section 75.333(e)(1)(i), necessarily means, “accepted at an individual mine for a long time.”
The strengths of the Secretary’s current interpretation go beyond the textual analysis
outlined above. The Secretary’s interpretation also demonstrates thorough and valid reasoning
because the evidence demonstrates it produces safer results. At hearing, Assistant District
Manager James Preece echoed MSHA’s concerns contained in various rulemaking documents
regarding the strength and durability of permanent stoppings. He testified that he was concerned
about the use of foam because it is not strength-enhancing. Tr. 45-46. Both Preece and
Inspector Barry Grosely testified that the perimeter of the blocks toppings must, like the face of
the blocks, be sealed with mortar or other strength-enhancing material. Tr. 39, 44-45, 78, 169.
Nothing in the language of the regulation itself or the preamble indicates that any
distinction is made between the face and the perimeter of cement block stoppings with respect to
the overall strength of the stopping. Stoppings must simply be constructed with the requisite

39 FMSHRC Page 1339

strength.10 Thus, Preece testified that the perimeter of the stopping should have the same
strength as the face. Tr. 65. Similarly, Adam Patterson, Peabody’s Continuous Miner
Coordinator, agreed that “stoppings have to be of equal strength in the center and the perimeter.”
Tr. 103.
My colleagues contend that “Peabody Twentymile’s stoppings meet the requirements
specified within the third of the seven categories of stoppings in the preamble: ‘8-inch and 6-inch
concrete blocks dry-stacked and coated on the high pressure side with a strength enhancing
10

My colleagues take issue with my statement that the law makes no distinction between
the face and perimeter of block stoppings. They note that the perimeter of the stopping is “set
off at a ninety-degree angle from the face and oriented toward the rib and roof” and therefore not
on the high pressure side. Slip op. at 34, n. 13. I note that the perimeter of the stopping, after the
blocks are laid up, includes a gap between the stopping and the rib and roof. If that gap is left
open, air would be free to move past the face of the stopping and into the next entry. When that
gap is sealed, the sealant becomes part of the face of the stopping. That sealant is exposed to the
high pressure side of the stopping. Hence, my colleagues are incorrect in their assertion that the
perimeter of the stopping is not part of the face or a side of the stopping. Id.
My colleagues also note that two of the construction methods listed in the preamble,
“steel stoppings” and stoppings made of “lightweight cementatious masonry block” specifically
state what sealants must be used around the perimeter. They argue that this shows a distinction
is made between the face and the perimeter of stoppings generally. However, I see the text of the
preamble cutting in the opposite direction. The fact that the perimeter is mentioned with respect
to certain kinds of stoppings but not others indicates that the distinction is only made in those
specific circumstances where it is raised. The drafters clearly knew how to differentiate between
the face and perimeter when that distinction was relevant. See Sec’y of Labor on behalf of Young
v. Lone Mountain Processing, Inc., 20 FMSHRC 927, 930-31 (Sept. 1998) (use of the term
“complainant” in some contexts and not others indicates that the drafters were making a
distinction and knew how to use particular terms when they intended to do so); see also Emery
Mining Corp., 10 FMSHRC 1337, 1350 (Aug. 1988) (ALJ).
For example, the preamble refers to the perimeter of steel stoppings because there is a
relevant difference between the face and the perimeter of those stoppings. Steel stoppings
necessarily require some sort of additional sealant around the perimeter because, unlike concrete
block stoppings, no particular sealant would be used over the entire face of the stopping. The
use of polyurethane foam around the perimeter of the metal stoppings at Foidel Creek Mine is
appropriate because, as Preece testified, the foam is approved for use on those stoppings. Tr. 39,
49, 53. The preamble lists other types of stoppings, including dry-stacked concrete block
stoppings, with no distinction between the perimeter and the face. As demonstrated with respect
to steel stoppings, the drafters were able to make such a distinction when necessary. The fact
that they did not do so with respect to dry-stacked concrete stoppings indicates that they did not
intend for the perimeter to be treated distinctly from the face of those kinds of stoppings.
According to the preamble, a concrete block stopping should simply be coated in a strengthenhancing sealant, and that includes the perimeter.

39 FMSHRC Page 1340

sealant suitable for dry-stacked stoppings.’”11 Slip op. at 34. Thus, my colleagues propose that a
stopping is “traditionally accepted” if it is sufficiently strong on its face but relatively weak at the
perimeter. This interpretation is inconsistent with the testimony of both Preece and Peabody’s
own witness, Patterson. It is also inconsistent with the position taken by Peabody Twentymile
during oral argument before the Commission. At oral argument, Peabody Twentymile’s counsel
argued that the Judge committed error in relying on the preamble. Oral Arg. Tr. 10. In so
arguing, he conceded that if the Secretary had promulgated a definition of “traditionally accepted
method” in section 75.333(e)(1)(i) and that definition was identical to the language of the
preamble, he “would not have an argument” that the mine’s stoppings complied with the
standard. Oral Arg. Tr. 22-23. Hence, Peabody Twentymile itself recognizes that its stopping
construction method did not comply with any of the categories of stoppings listed in the
preamble.12
It is uncontested that the foam insulation was not strength enhancing. The
manufacturer’s brochure states that Touch ’n Seal Foam Ventilation Control System is a “[n]onstrength-enhancing mine sealant” used to “[r]epair damaged block stoppings.” Sec. Ex. 11, p. 2
(brochure). Inspector Grosely testified that he could push his sounding stick through the foam.

11

My colleagues erroneously assert that the “[t]he Judge clearly erred in applying the
requirements for lightweight block stoppings to Peabody Twentymile’s construction method
. . . .” Slip op. at 33. In so saying, they erect a straw man. The Judge was obviously aware that
the mine used concrete blocks rather than lightweight cementatious blocks for its stoppings. 37
FMSHRC at 2636, 2644. He referred to lightweight cementatious blocks because Peabody
Twentymile had argued that a sealant which works for steel stoppings will also work for concrete
block stoppings. The Judge’s point was that lightweight cementatious block stoppings, which
require a strength enhancing sealant for the perimeter, are more similar to concrete block
stoppings than are steel stoppings. Id. at 2644.
12

My colleagues vigorously dispute the significance of the statement by Peabody
Twentymile’s counsel at oral argument, but are curiously silent about the testimony of the
operator’s Continuous Miner Coordinator, Adam Patterson, that “stoppings must be of equal
strength in the center and the perimeter.” Tr. 103. I note that Peabody Twentymile itself, unlike
my colleagues, does not contend that its method of constructing stoppings is consistent with any
of the methods of construction specified in the preamble.

39 FMSHRC Page 1341

Tr. 73. Also, Grosely testified that polyurethane foam degrades at a much quicker rate than
mortar.13 Tr. 81.
Additionally, Preece noted that in a fire, foam could burn out, “merg[ing] the two
[adjacent] airways together and compromis[ing] your escapeways” and so exposing miners to
“smoke [and] gases from the polyurethane.” Tr. 46, 50. While block bond has passed
flammability tests, Tr. 34-35, polyurethane foam has not, Tr. 40-41.
The evidence shows that the durability and flammability of the stopping is important to
the health and safety of miners. The perimeter of a stopping is sealed to ensure as far as possible
that air traveling in adjacent air courses remains separate. Tr. 30, 35. If a ventilation control is
inadequate for this purpose, miners would be exposed to harmful gases. Tr. 30-31. Of particular
concern would be the failure of a stopping that results in noxious gases at the face or in an
escapeway. Tr. 30-31. Because stoppings constructed with polyurethane foam around the
perimeter would be weaker and more flammable than a stopping constructed solely with mortar
or other strength-enhancing material, it would be more likely to fail and expose miners to
hazards. Therefore, the Secretary’s interpretation of the standard such that it bars the use of
polyurethane foam as the sole sealant on the perimeter of block stoppings is both reasonable and
persuasive.
My colleagues argue that I raise the “false specter” of flammability to support my belief
that the Secretary’s interpretation is persuasive. Slip op. at 39. They note that MSHA permits
polyurethane foam to be used around Kennedy stoppings, despite the fact that they have not
passed the fire test. They contend that this indicates that polyurethane foam poses no hazard
when used on block stoppings. As has been discussed supra, metal stoppings are fundamentally
different from permanent block stoppings, including with respect to the size of the gaps in the
perimeter. The Secretary is in the best position to determine the safety hazards associated with
the use of polyurethane foam on various, substantially different types of stoppings. The use of
polyurethane foam on Kennedy stoppings, therefore, does not fundamentally impact the
Secretary’s determination that using the foam was hazardous here.

13

My colleagues argue that the fact that polyurethane foam is not strength enhancing is
inconsequential. Slip op. at 41. They note that the Secretary presented no evidence showing that
stoppings made without strength enhancing material around the perimeter are not “sufficiently
strong.” However, Preece testified that block bond enhances the strength of a stopping. Tr. 39.
He also testified that polyurethane foam would not do so, it would only seal the stopping. Tr. 39.
That was among the many issues that concerned Preece regarding the stopping construction
method used in this mine. Further, my colleagues can point to no evidence demonstrating that
concrete stoppings constructed without strength enhancing material at the perimeter are
“sufficiently strong.” Instead, they only cite to testimony (disputed by the Secretary’s witnesses)
that the foam creates a better seal. Slip op. at 41, n. 22.

39 FMSHRC Page 1342

Thus, having determined that the Secretary’s reasoning was valid and thorough, I turn
next to the agency’s relative “expertness” and specialized experience. Congress delegated
authority to regulate mine health and safety to the Secretary of Labor. 30 U.S.C. § 811. MSHA
was created to exercise that authority and has developed a considerable body of experience and
expertise on mine safety issues. The regulation at issue here, 30 C.F.R. § 75.333(e)(1)(i), is a
safety standard promulgated under the Secretary’s authority and utilizing MSHA’s expertise. In
short, this regulation is at the very heart of the agency’s mission. MSHA is in the best position
to determine what is, or is not, safe in the nation’s mines. With respect to this standard, if
MSHA believes that the use of foam as a perimeter sealant is unsafe, its view should be accorded
weight.
The next Skidmore/Mead factor is an analysis of the highly detailed nature of the
regulatory scheme. We have, in the past, recognized that mining is a heavily regulated industry.
Brody Mining, LLC, 37 FMSHRC 1914, 1948 (Sept. 2015). Indeed, the Commission has
described the regulatory scheme administered by MSHA as “pervasive.” Id. Further, the
obligations created by the regulations are complementary and overlapping, meaning changes in
the interpretation of one standard may have an impact on others. Given the size and complexity
of MSHA’s role in the mining industry, its views regarding the implementation of its regulations
should receive at least some weight.
Finally, I turn to the value of uniformity in the agency’s understanding of what a national
law requires. As noted above, MSHA has done a poor job of consistently applying this particular
regulation at this particular mine. However, if it is MSHA’s expert opinion that the use of foam
sealant in the manner cited is unsafe, it is important that MSHA not be precluded from applying
this prohibition in all of the nation’s underground coal mines. As a general matter, it cannot be
the case that the practice is safe at Peabody Twentymile and unsafe in other mines. But the
position taken by Acting Chairman Althen and Commissioner Young implies the further
conclusion that based on MSHA’s past enforcement practice at this one mine, MSHA would be
barred from applying a safety-enhancing policy which it may presently be using at other mines
around the country. This is potentially dangerous to mine safety nationwide. Given the need for
uniformity in interpretation of Mine Act regulations, the Secretary’s position is entitled to
weight.
After considering the Skidmore and Mead factors together, I find that the Secretary’s
interpretation of the standard is both reasonable and persuasive. As a result, I would find that the
Secretary’s interpretation is entitled to Skidmore deference. Therefore, I would uphold the
Judge’s decision that the citation in this case was properly issued.

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

39 FMSHRC Page 1343

Commissioner Jordan, in favor of affirming the Judge:
I would affirm the decision of the Judge below, upholding the challenged citation. In
reaching this result, I agree in large part with the thoughtful analysis of Commissioner Cohen,
and part ways with him in only one respect. Unlike Commissioner Cohen, who would accord
deference to the Secretary’s interpretation of the regulation at issue here only in so far as that
interpretation has the power to persuade (and he has ably set forth the reasons he has found it to
be persuasive here), I believe the interpretation is entitled to controlling deference under the
standard announced in Auer v. Robbins, 519 U.S. 452, 462 (1997).
As Commissioner Cohen and my other colleagues point out, at this mine the Secretary’s
application of the relevant standard at issue has been inconsistent. Slip op. at 10. Indeed, for
over thirty years, MSHA did not cite Peabody when stoppings were constructed at the
Twentymile mine in the manner the agency now seeks to prohibit. Specifically, no citations
were issued on the occasions when block stoppings were sealed with polyurethane foam. Id.
Moreover, ventilation plans submitted by the operator which indicated the presence of such
stoppings were not rejected. Id.
Notwithstanding these facts, I would nevertheless accord Auer deference to the
Secretary’s interpretation of what constitutes “traditionally accepted methods” of constructing
ventilation controls. It is common knowledge that inspections of any mine, as well as approval
of a mine’s ventilation plan, are conducted under the auspices of a particular MSHA District
office. In light of this fact, I hesitate to conclude that the prior failure of inspectors to cite this
operator or reject the ventilation plan for this mine amounts to conflicting interpretations by
MSHA itself. It appears instead that the MSHA District office with jurisdiction over this mine,
for whatever reason, failed to enforce the subject regulation in a manner consistent with the
position set forth by the National Office when the rule was issued.
When MSHA promulgated the nationwide standard at issue here, the preamble
accompanying the final rule contained the agency’s explanation as to the meaning of the
requirement that stoppings be built using “traditionally accepted methods.” The citation under
review reflects agency enforcement consistent with that explanation, which specified an
exclusive list of permissible construction methods. 1 Thus, in citing this operator, MSHA was
adhering to the interpretation it had set forth early on when the rule was promulgated. The fact
that a particular MSHA District tolerated a construction method not listed as one of the
“traditionally accepted methods” should not, in my view, negate the nationwide reach of the
Secretary’s notice-and-comment rulemaking authority. Consequently, I find that the Secretary’s

1

The operator never argued on appeal that using foam around the perimeter of concrete
block stoppings was one of the traditional methods listed in the preamble, and in fact, conceded
in oral argument that its process did not comply with any of these methods. Oral Arg. Tr. 22-23;
49-50. Consequently, I find it unnecessary to address the contention of my colleagues, Acting
Chairman Althen and Commissioner Young, that the operator’s method could be considered to
come within one of the seven permitted by the preamble.

39 FMSHRC Page 1344

interpretation of the standard, as reflected in the citation under review, and the ability of the
agency to require one of the specified construction methods going forward, does reflect the
agency’s “fair and considered judgment,” and that Auer deference is therefore due.2
For the reasons set forth above, I would affirm the decision of the Judge.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

2

Commissioner Cohen would require the Secretary “to establish that there was a
consistent, nationally-enforced interpretation that prohibited the use of polyurethane foam” as a
construction method, slip op. at 10, in order to earn Auer deference. I question the feasibility and
appropriateness of requiring MSHA to put on evidence of how a safety standard is enforced at
every mine in order to prevail in its enforcement of the standard at a particular mine.

39 FMSHRC Page 1345

Acting Chairman Althen and Commissioner Young, in favor of reversing the Judge:
This case requires an answer to one question: was Peabody Twentymile’s use of
polyurethane foam around the perimeter of stoppings a “traditionally accepted method” for
sealing the perimeter of a stopping within the meaning of 30 C.F.R. § 75.333(e)(1)(i) on
August 5, 2014? As set forth below, it was.1
Peabody Twentymile had used the method for 13 years without any citation or complaint
by MSHA before 1996 when MSHA promulgated the regulation approving “traditionally
accepted methods.” After 1996, for the next 18 years, Peabody Twentymile continued to use
polyurethane foam in literally hundreds or perhaps even thousands of stoppings that were subject
to hundreds of inspections between 1996 and 2014 without any interpretation of the regulation
by MSHA to prohibit such usage.2
Beyond such traditional acceptance in inspections before and after promulgation of the
regulation, MSHA accepted the use of the polyurethane foam in reviewing and approving the
operator’s ventilation plan. Despite MSHA’s litigation-driven protestations, it is clear that
Peabody Twentymile’s MSHA-accepted ventilation plan authorized use of polyurethane foam as
a sealant around block stoppings.
By deed and word, therefore, MSHA demonstrated an interpretation of the regulation in a
manner that accepted Peabody Twentymile’s use of polyurethane foam. MSHA does not offer
any convincing argument for a reversal of its long-standing, traditional interpretation.

1

In his brief, the Secretary asserts the operator is invoking the principle of equitable
estoppel. Sec. Br. at 22. Equitable estoppel is “[a] defensive doctrine preventing one party from
taking unfair advantage of another when, through false language or conduct, the person to be
estopped has induced another person to act in a certain way, with the result that the other person
has been injured in some way.” Estoppel, Black’s Law Dictionary (10th ed. 2014). Here, the
operator does not assert equitable estoppel; it asserts its use of polyurethane foam complies with
the requirement of the regulation.
2

Two years before the instant citation, an MSHA inspector who had previously
inspected the mine on many occasions did issue a citation for usage of polyurethane to seal a
gaping opening between a stopping and coal rib. However, thereafter, the same inspector did not
issue any further citations related to use of polyurethane around stoppings despite undertaking
further inspections of the mine. The only fair conclusion is that the citation related to the size of
the opening rather than the use of polyurethane foam as a perimeter sealant.

39 FMSHRC Page 1346

I.
30 C.F.R. § 75.333(e)(1)(i) Plainly Permits Peabody
Twentymile’s Use of Polyurethane Foam.
A.

The Terms “Traditional” and “Accepted” Have Plain Meanings.

The “first step in interpreting a statute is to determine whether the language at issue has a
plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997). If so, there is no need for further inquiry. Id.
“The same rules of construction apply to administrative rules . . . .” Exelon Generation
Co. v. Local 15, Int’l Brotherhood of Elec. Workers, 676 F.3d 566, 570 (7th Cir. 2012).
Accordingly, the interpretation of a regulation begins with a determination of whether the
language of the regulation is plain. If the language is plain, further inquiry is unnecessary and
unwarranted. “In the absence of a statutory or regulatory definition of a term, the Commission
applies the ordinary meaning of that term.” Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug.
2008); cf. Pyles v. Nwaobasi, 829 F.3d 860, 865 (7th Cir. 2016) (“Where a regulatory term is
undefined, we ask first ‘whether the language at issue has a plain and unambiguous meaning
with regard to the particular dispute in the case.’ In doing so, we ‘giv[e] the words used their
ordinary meaning.’” (citations omitted)).
Therefore, our inquiry related to the issue of coverage begins with a straightforward
inquiry into the plain meaning of the regulatory requirement that “permanent stoppings . . .
installed after June 10, 1996, shall be constructed in a traditionally accepted method.” 30 C.F.R.
§ 75.333(e)(1)(i). Specifically, the issue is whether the hundreds of stoppings with polyurethane
foam around the perimeter installed by Peabody Twentymile and inspected by MSHA between
1983 and 2014 fall within that plain meaning. Without doubt, the “method” at issue in this case
is the use of polyurethane foam around the perimeters of stoppings. The question, therefore, is
what constitutes “traditional acceptance.”
As set forth above, our starting point is the dictionary definition of “traditional” and of
“accepted.” United States v. Ezeta, 752 F.3d 1182, 1185 (9th Cir. 2014) (“To determine a
word’s plain and ordinary meaning, [courts] may refer to standard English language
dictionaries.” (citing Smith v. United States, 508 U.S. 223, 228-29 (1993); United States v.
Carona, 660 F.3d 360, 367 (9th Cir. 2011))). Contrary to the Secretary’s contention that the
failure to define the term “traditionally accepted method” necessarily renders the term
ambiguous, courts regularly find undefined terms unambiguous by giving those terms their plain
meaning. See, e.g., Smith, 508 U.S. at 228 (“When a word is not defined by statute, we normally
construe it in accord with its ordinary or natural meaning.”).
The common, ordinary meaning of “traditional” is clear. “Tradition” means “a longestablished or inherited way of thinking or acting,” “a continuing pattern of . . . beliefs or
practices,” or “a customary or characteristic method or manner.” The Random House Dictionary
of the English Language 2006 (2d ed. 1987). “Tradition” is also defined as a “handed-down

39 FMSHRC Page 1347

. . . custom, . . . typical way, practice, convention, [or] . . . usage,” The Random House
Thesaurus, College Edition 736 (1984), or “an inherited or established way of thinking, feeling
or doing,” Webster’s Third New International Dictionary Unabridged 2422 (1993). See also The
American Heritage Dictionary of the English Language 1829 (4th ed. 2009) (defining “tradition”
to mean “[a] mode of . . . behavior followed . . . continuously . . . ; a custom or usage”);
Webster’s New World Dictionary of the American Language, Second College Edition 1507
(1972) (defining “tradition” as “a long-established custom or practice that has the effect of an
unwritten law”).
The common ordinary meaning of “accepted” is equally clear. “Accept” means to “agree
to, consent to, grant as satisfactory, accede to, go along with, assent to, receive with approval,
acknowledge.” The Random House Thesaurus 17. “Accept” is similarly defined to mean to
“approve . . . , to agree or consent to, acquiesce in,” Webster’s New World Dictionary 8, or “[t]o
regard as proper, usual, or right,” The American Heritage Dictionary 10.
Because the words “traditional” and “accepted” have plain meanings, under the plain
meaning rule, the outcome-determinative issues are whether Peabody Twentymile’s usage of
polyurethane foam was traditional — that is, a long-established way of acting — and whether
MSHA accepted that usage.3
B.

Peabody Twentymile Had an Established Thirty-one Year History of Using
Polyurethane Foam to Seal the Perimeter of Stoppings Prior to the Citation.

The testimony of every witness with knowledge of Peabody Twentymile’s construction
of stoppings, operator and MSHA alike, supports a finding that Peabody Twentymile had a longestablished history of using polyurethane foam. These witnesses include Ronald Hockett, a mine
foreman at Peabody Twentymile’s Foidel Creek Mine for 23 years, Adam Patterson, the
Continuous Miner Coordinator at the mine, Lincoln Derick, a former safety manager at the mine,
and Inspector Grosely, who inspected the mine numerous times, Tr. 71.
Hockett testified that Peabody Twentymile had sealed perimeters of stoppings with
polyurethane foam for all 23 years that he worked at the mine. Tr. 114-15, 118-19. In addition,
Patterson testified that the use of polyurethane foam was the only way Peabody Twentymile had
built concrete block stoppings. Tr. 86-87, 97-98. Similarly, Derick stated that the operator was
using polyurethane foam to seal block stoppings ever since he began working at the mine in
1991, Tr. 136-38, and Grosely confirmed that he was aware of the mine’s ongoing use of
polyurethane foam on its block stoppings, Tr. 78.
3

Commissioner Cohen asserts that his research shows that the term “traditionally
accepted” has rarely been used in regulations and that such limited usage somehow indicates an
inherent vagueness. Slip op. at 15 n.8. To the contrary, rare use cuts in favor of a very
deliberate usage in this regulation; there is no “inherent vagueness” in the term “traditionally
accepted,” and it cannot be considered a regulatory term of art. Evidence showing the attitude of
the agency with respect to a particular method readily demonstrates whether the agency accepted
the practice.

39 FMSHRC Page 1348

Moreover, a separate case decided in 2011 involved a citation issued by Inspector Preece
in December 2008 for the improper storage, handling, and disposal of polyurethane foam packs
— the citation did not allege that the mine’s use of the foam was not “traditionally accepted.”
Twentymile Coal Co., 33 FMSHRC 1885, 1929, 1930 (Aug. 2011) (ALJ), rev’d in part on other
grounds, 36 FMSHRC 2009 (Aug. 2014). In that case, Preece testified to the use of
polyurethane foam in Kennedy stoppings across the country. As set forth in the facts, Kennedy
stoppings have gaps at the perimeter substantially equivalent to those around the perimeter of
block stoppings. The admittedly safe and accepted use of polyurethane foam in such stoppings
simply serves to emphasize the suitability of polyurethane foam as a perimeter sealant for block
stoppings. There is no doubt that Peabody Twentymile “traditionally” used polyurethane foam
to seal the perimeters of block stoppings.
C.

MSHA Traditionally Accepted Peabody Twentymile’s Use of Polyurethane Foam.

With respect to the particular dispute in this case, the term “traditionally accepted
method” unambiguously includes Peabody Twentymile’s method of stopping construction
because MSHA both accepted and approved it for years prior to the promulgation of the rule in
1996 and then approved and accepted the method over the next 18 years.
Until the citation issued in this case in 2014, Peabody Twentymile had used
polyurethane foam around the perimeter of hundreds of block stoppings since 1983 without
receiving a single citation, even though MSHA conducted numerous spot and four quarterly
inspections each year. 37 FMSHRC 2635, 2637, 2641, 2646 (Nov. 2015) (ALJ); Tr. 98, 107-08,
123-24. MSHA’s public records dating back to November 1, 1995, establish that over 800
inspections have occurred at the mine since 1995.4 Preece confirmed that, based on the sheer
number of inspectors going to the mine, the mine receives “quite a number” of inspection days
per average year. Tr. 61-62. Furthermore, Preece and Grosely both testified that they have
inspected the mine “multiple” and “numerous times,” i.e., “too many [times] to count.” Tr. 42,
71.5 So, dozens of inspectors inspected hundreds of stoppings using polyurethane foam to seal
the perimeter of stoppings for thirty years without issuing any citations. Tr. 98. Certainly,
MSHA acceded to — that is, accepted — the operator’s method of sealing stoppings.
In an effort to rebut the significance of these hundreds of inspections by numerous
inspectors, during rebuttal testimony, Preece stated that the regional MSHA inspection unit relied
on a number of inexperienced inspectors that were “not . . . intelligent enough” or may not have
had adequate training and may not have been paying attention to the perimeter of the stoppings.

4

See Mine Inspections, U.S. Department of Labor, Mine Data Retrieval System,
https://arlweb.msha.gov/drs/drshome.htm (search for Foidel Creek’s Mine ID, “0503836”; then
choose “Inspections,” enter “1/1/1995” as the Beginning Date, and click “Get Report”).
5

Given that Preece had issued a citation for improper storage of polyurethane foam, he
clearly had been aware of the mine’s use of polyurethane foam to seal stoppings since at least
2008 without voicing any protest.

39 FMSHRC Page 1349

Tr. 157, 163.6 MSHA’s denial of its acceptance of Peabody Twentymile’s usage of polyurethane
foam by disparaging its own inspectors is an unseemly effort by MSHA to sacrifice the integrity
and ability of its inspectors in order to sustain one citation. It is shameful and, more importantly,
wholly unwarranted. On cross-examination, Preece conceded that many experienced inspectors
regularly inspected the mine in the years prior to the issuance of the citation. Tr. 158-59. Thus,
it is clear that MSHA had experienced inspectors who, by failing to cite the operator for over 30
years, accepted Peabody Twentymile’s usage of polyurethane foam.
The demonstration of MSHA’s acceptance of Peabody Twentymile’s traditional use of
polyurethane does not rest solely upon the hundreds of stoppings examined by MSHA inspectors
for over 30 years without question or complaint. As importantly, MSHA explicitly approved
Peabody Twentymile’s usage of polyurethane foam in Peabody Twentymile’s ventilation control
plans. The mine’s 1983 ventilation plan, according to Derick, included the use of polyurethane
spray foam to seal the perimeters of ventilation stoppings.7 37 FMSHRC at 2641; Tr. 138-39. In
addition, MSHA approved an addendum to the operator’s ventilation plan in 1991 entitled “Use
of Polyurethane or Phenolic Foams.” Peabody Ex. D, at 7. The plan expressly states that the
“[f]oam application for ventilation devices will be limited to sealing cracks and perimeters of
ventilation devices.” Id. (emphasis added).
The 1991 plan further stated that “only versa-foam . . . will be utilized.” Id. Preece
testified that versa-foam was the type of polyurethane foam used at the mine. Tr. 37-38.
Furthermore, both the 2000 and 2011 plans allowed the operator to use foam to “seal[] the
perimeter and joints of [ventilation] devices.” Peabody Ex. D, at 9, 10. From the outset of the
mine’s operations, therefore, MSHA clearly and explicitly approved Peabody Twentymile’s use
of polyurethane foam to seal the perimeters of its stoppings.
MSHA’s approval of Peabody’s ventilation plan, however, is not restricted to the years
mentioned above. Since the inception of the Mine Act, the Secretary has been required to review
an operator’s ventilation plan at least once every six months. See 30 U.S.C. § 863(o). In its
present form, this requirement resides at 30 C.F.R. § 75.370(g), which states: “The ventilation
6

In a feat of Olympian disingenuity, MSHA asks that we defer to its wisdom in this case
while deriding some of its own employees for lacking intelligence or judgment. Similarly, the
agency asks that we defer to it now, while urging that the agency’s own “acceptance” of the
practice at issue here for more than three decades should not determine what is meant by
“traditionally accepted.” See discussion at Section II infra, slip op. at 30-42.
7

The fact that the 1983 ventilation plan did not specifically list polyurethane foam as an
approved primary sealant at the perimeter of block stoppings is irrelevant. 37 FMSHRC at 2641;
Tr. 143-44. On cross-examination, the Secretary pressed Derick about the list of acceptable
sealants contained in MSHA’s approval of the plan and Derick acknowledged that polyurethane
foam was not included in the list. Tr. 143-44. Derick asserted, however, that the list relates to “a
different type of material,” specifically, “the material for . . . the total surface area of a dry
stacked block to prevent air leakage through the stopping.” Tr. 144. Moreover, as shown above,
MSHA’s subsequent plans make it clear that polyurethane foam was explicitly approved by
MSHA.

39 FMSHRC Page 1350

plan for each mine shall be reviewed every 6 months by an authorized representative of the
Secretary to assure that it is suitable to current conditions in the mine.” Thus, in the 31 years in
which Peabody Twentymile used its method for sealing the perimeters of its block stoppings, and
in the 31 years in which MSHA approved its ventilation plan addendums and did not cite the
mine for the practice, a representative of the Secretary reviewed the mine’s ventilation plan at
least 60 times without raising the issue that the mine’s use of polyurethane foam was
unacceptable.8
In short, because MSHA traditionally accepted this method — both implicitly through
allowing the longstanding, widespread practice at the Foidel Creek Mine, and explicitly through
approving the practice in Peabody Twentymile’s ventilation control plan — it was a
“traditionally accepted method.” As such, the term “traditionally accepted method” in 30 C.F.R.

8

Rather mysteriously, Commissioner Cohen characterizes the words “traditionally
accepted method” as “comparative.” Slip op. at 10 n.3. More remarkably, he repeatedly and at
some length asserts that he cannot determine whether “traditionally accepted” means “in the
industry as a whole” or “accepted at a particular mine.” Id. at 15, 17. It is difficult to fathom the
point. Surely, in promulgating the rule, the agency was not thinking about whether the rule
applied to every mine or a given mine, nor was it contemplating Commissioner Cohen’s apparent
theory that the agency might mistakenly accept a method for twenty years. It was contemplating
exactly what it said — namely, if MSHA traditionally accepted a method, the method could
continue to be used. It is traditional acceptance by MSHA that counts, and MSHA
unquestionably traditionally accepted the use of polyurethane foam as demonstrated by the more
than two dozen years of acceptance by scores of inspectors at thousands of stoppings and the
year in, year out MSHA approval of ventilation plans relying upon polyurethane foam. As far as
an attempt at finding ambiguity goes, there is no evidence, none in the record, that MSHA did
not accept use of polyurethane on the perimeter of concrete block stoppings at any other mine or
at any other time, and there is testimony of its use at other mines. Tr. 136. Thus, if it were
important, on the record in this case MSHA accepted polyurethane over an extended period at
every mine about which any evidence exists.

39 FMSHRC Page 1351

§ 75.333(e)(1)(i) unambiguously applies to Peabody Twentymile’s use of polyurethane foam
around the perimeter of dry-stacked concrete block stoppings.9
II.
Even Were Section 75.333(e)(1)(i) Ambiguous, the Secretary’s
Interpretation Would Not Be Entitled to Deference.
Even if the regulation were ambiguous, deference under Auer v. Robbins, 519 U.S. 452,
461 (1997), would be unavailable because the Secretary is interpreting his own earlier
interpretation in the preamble, and interpretations of interpretations do not receive Auer
deference. Moreover, rather than supporting the Secretary’s argument, the preamble and
regulatory history instead demonstrate the Secretary’s intent to continue accepting methods of
construction that he had accepted before 1996. The Secretary’s approval of the mine’s
ventilation plans provides further evidence that the Secretary’s interpretation of the preamble is
incorrect.
Under Auer, courts generally defer to agency interpretations of their own regulations
when the regulation is ambiguous and the agency’s interpretation is reasonable.10 In the present
case, the Secretary has asked the Commission to defer to his interpretation contained in the
preamble to the regulation, stating that “the list [of traditionally accepted methods] set forth in
the preamble should be read to express the Secretary’s view of what methods of construction
9

Commissioner Cohen argues that the dictionary definitions of “traditional” and
“accepted” do not place the phrase traditionally accepted in the context of 30 C.F.R.
§ 75.333(e)(1)(i). Slip op. at 14-15. Perhaps not, but we do. We consider the phrase not just
within the context of its specific subsection, but within the context of the entire regulatory
structure. The Secretary has created a comprehensive regulatory scheme for the inspection and
approval of stoppings, in which (1) the Secretary inspects each mine quarterly, including its
stoppings, (2) mine operators must seek the Secretary’s approval for the manner in which a mine
constructs its stoppings, and (3) the Secretary must review that approved method of construction
at least once every six months. When presented with the question of whether a practice has been
traditionally accepted, the regulatory structure requires the Secretary to continuously review and
reaffirm his acceptance of each mine’s method of stopping construction and inspect the actual
application of that method. Of course that context is relevant, and we have fully considered it.
However, we did not stop there and close our eyes to possibly probative evidence of the
meaning of “traditionally accepted.” We delved into the preamble to ensure that it did not
contradict our plain reading. As detailed extensively, infra, the preamble allows operators to use
polyurethane foam around the perimeter of dry-stacked block stoppings, further supporting the
application of the plain meaning of the standard.
10

This is also known as Seminole Rock deference. See Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410 (1945).

39 FMSHRC Page 1352

may be considered ‘traditional’ methods.” S. Br. at 14. The list referred to by the Secretary,
however, is silent with respect to the perimeters of dry-stacked block stoppings, and the
remainder of the preamble and the regulatory history militate against the Secretary’s reading.
In 1992, MSHA issued a final rule that partly removed the criteria for approval of
ventilation plans under 30 C.F.R. § 75.316-2 from Part 75 and partly moved it into other
sections. Safety Standards for Underground Coal Mine Ventilation, 57 Fed. Reg. 20,868, 20,911
(May 15, 1992). The criterion detailing acceptable methods of stopping construction, at section
75.316-2(b), was moved to the newly created section 75.333(e). In relevant part, the requirement
was changed to the following: “Except as provided in paragraphs (e)(2) [covering anthracite
mines] and (e)(3) [covering timbers in heaving or caving areas], all overcasts, undercasts, shaft
partitions, permanent stoppings, and regulators installed after August 15, 1992, shall be
constructed of durable and noncombustible material, such as concrete, concrete block, brick,
cinder block, tile, or steel.” 57 Fed. Reg. at 20,919.
In 1994, MSHA published a proposed rule that would amend section 75.333(e)(1).
Safety Standards for Underground Coal Mine Ventilation, 59 Fed. Reg. 26,356 (May 19, 1994).
The agency suggested the following change:
(e)(1)(i) Except as provided in paragraphs (e)(2), (e)(3) and (e)(4)
all overcasts, undercasts, shaft partitions, permanent stoppings, and
regulators, installed after (Insert the effective date of this rule),
shall be constructed in a manner and of materials that results in a
construction that has been tested and shown to have a minimum
strength of 39 pounds per square foot as tested under ASTM E7280 Section 12—Transverse Load-Specimen Vertical, load only.
Id. at 26,393.
MSHA stated that its reason for the change was to address questions regarding
“acceptable construction methods and materials . . . that will result in controls that satisfy the
definition of durable given in paragraph (a) of the existing standard.” Id. at 26,369. MSHA’s
proposed rule would
retain[] the intent and requirement of the existing standard because
the 8-inch hollow-core concrete block stopping with mortared
joints, to which all other constructions were tied under the
definition of durable in the existing standard, has been tested and
shown to have a minimum strength of 39 pounds per square foot.
Id. MSHA also noted that “solid concrete block stoppings that are dry-stacked and plastered on
only one side” do not meet the 39 pounds per square foot requirement and “[u]nless a stronger
plaster is developed, it is unlikely that a stopping plastered on only one side would be acceptable
under the current rule or this proposed revision.” Id.

39 FMSHRC Page 1353

In the preamble to the 1996 final rule for section 75.333(e)(1)(i), the standard currently in
force, MSHA changed its approach. It addressed questions regarding the applicability of the
ASTM test and the fact that some traditionally accepted methods of stopping construction either
could not be tested or would not meet the 39 pounds per square foot requirement. Safety
Standards for Underground Coal Mine Ventilation, 61 Fed. Reg. 9764, 9783 (Mar. 11, 1996).
Specifically, MSHA noted that commenters had “questioned the appropriateness of a strength
requirement of 39 pounds per square foot and the relevance of this value to the in-mine
conditions.” Id. MSHA found merit in those comments, stating, “[c]ommenters suggested that
some constructions that are widely used in coal mines do not meet the 39 pound per square foot
threshold, and the ASTM test can only be run at a limited number of locations nationwide.” Id.
As a result, MSHA’s final rule “recognize[d] traditionally accepted construction methods for
permanent ventilation controls, and retain[ed] the ASTM test for new materials and methods.”
Id.
In other words, MSHA recognized that methods of stopping construction that had been
traditionally accepted would remain acceptable, even if they could not be tested or would not
meet the 39 pounds per square foot requirement. New methods or the use of new materials must
meet the ASTM test.
At this point, the preamble effectively echoes the plain language of the regulation:
MSHA intended to continue allowing construction methods that it had previously allowed.
However, MSHA continued the preamble discussion, enumerating seven categories of
construction methods that it considered “traditionally accepted”:
[1] 8-inch and 6-inch concrete blocks (both hollow-core and solid)
with mortared joints;
[2] 8-inch and 6-inch concrete blocks dry-stacked and coated on
both sides with a strength enhancing sealant suitable for drystacked stoppings;
[3] 8-inch and 6-inch concrete blocks dry-stacked and coated on
the high pressure side with a strength enhancing sealant
suitable for dry-stacked stoppings;
[4] steel stoppings (minimum 20-gauge) with seams sealed using
manufacturer’s recommended tape and with the tape and
perimeter of the metal stopping coated with a suitable mine
sealant; and
[5] lightweight incombustible cementatious masonry blocks coated
on the joints and perimeter with a strength enhancing sealant
suitable for dry-stacked stoppings. . . .
[6] 4-inch concrete blocks may be used in the above applications in
seam heights less than 48 inches.

39 FMSHRC Page 1354

[7] Tongue and groove 4-inch concrete blocks coated on both sides
with a strength enhancing sealant suitable for dry-stacked
stoppings may be used in coal seams of any height.
The sealants referred to in this paragraph would be applied in the
thickness recommended by the manufacturer. MSHA maintains a
list of sealants which may be used for the above applications. This
list is available at each MSHA District Office. The final rule would
continue to permit these traditionally accepted construction
methods to be acceptable for the construction of ventilation
controls.
61 Fed. Reg. at 9783-84.
The Secretary’s argument based on the preamble language is simple but erroneous. He
contends that because Peabody Twentymile’s method using polyurethane foam around the
perimeter is not one of the enumerated methods in the preamble, it is not a traditionally accepted
method. This raises two questions. First, does the list in the preamble actually prohibit the use
of polyurethane foam on the perimeter of concrete block stoppings? Second, if not, should we
defer to the Secretary’s interpretation or recognize that (a) the rule itself permits traditionally
accepted methods, and (b) as set forth above, MSHA traditionally accepted, indeed approved, the
use of polyurethane as a perimeter sealant by Peabody Twentymile?
The first question requires resolution of Peabody Twentymile’s challenge to the Judge’s
application of the requirements for lightweight incombustible cementatious masonry block
stoppings. PDR at 11. The Judge’s references to this category of stoppings were integral to his
decision because the preamble only addresses the perimeters of two of the seven categories of
traditionally accepted stoppings. For Kennedy stoppings, non-strength enhancing sealant is
acceptable. On the other hand, the preamble calls for a strength-enhancing sealant for the
perimeter of lightweight incombustible cementatious block stoppings. 61 Fed. Reg. at 9783.
Mistakenly, rather than categorizing the stoppings in the mine as what they really are, drystacked block stoppings with strength-enhancing sealant on one side, the Judge found that
Peabody Twentymile’s stoppings were similar to lightweight cementatious block stoppings.
37 FMSHRC at 2644.11 Accordingly, the Judge, applying his conception of the preamble
language rather than the preamble as written, held that the requirement that strength-enhancing
sealant be used around the perimeter of lightweight block stoppings applied to the stoppings used
by Peabody Twentymile. Id.
The Judge clearly erred in applying the requirements for lightweight block stoppings to
Peabody Twentymile’s construction method rather than the requirements for the correct category
of stopping. Inspector Preece testified that the stopping at issue was a dry-stacked “concrete
11

Although the parties did not submit evidence on this point, we may take judicial notice
that cement is one ingredient of concrete. Am. Geological Inst., Dictionary of Mining, Mineral,
and Related Terms 90 (2d ed. 1997) (cement) (“DMMRT”).

39 FMSHRC Page 1355

block” stopping, Tr. 43, and that the stopping was made from eight-inch blocks, Tr. 60-61. The
amended citation referred to them as “cinder blocks.” Sec. Ex. 1, at 3. Cinder blocks are one
type of concrete block made by mixing cement and well-burned coal cinders as aggregate.
Webster’s Third New International Dictionary 407, 472 (cinder block, cinder concrete;
concrete); DMMRT 90, 117 (cement, concrete).12
Peabody Twentymile’s stoppings, therefore, meet the requirements specified within the
third of the seven categories of stoppings in the preamble: “8-inch and 6-inch concrete blocks
dry-stacked and coated on the high pressure side with a strength enhancing sealant suitable for
dry-stacked stoppings.” 61 Fed. Reg. at 9783. Clearly, the preamble does not prohibit the use of
polyurethane foam around the perimeter of dry-stacked concrete block stoppings. Equally
clearly, it does not require the use of strength-enhancing sealant around the perimeter. Had the
Secretary wished to include the use of strength-enhancing sealant around the perimeter of drystacked block stoppings in the preamble language, he would have done so, as he explicitly did
for lightweight block stoppings. There is no reason to infer for dry-stacked block stoppings an
unwritten element that the Secretary explicitly imposes for lightweight block stoppings later in

12

Essentially, the Secretary concedes in his response brief that the Judge erred in this
regard, agreeing that Peabody used eight-inch wide blocks in its stoppings rather than
lightweight cementatious blocks. Sec. Br. at 15 n.19. He asserts, however, that the preamble
requires the use of strength-enhancing sealant around the perimeter of both dry-stacked block
stoppings and stoppings constructed from lightweight incombustible cementatious masonry
blocks. Id. at 16. He makes this baseless assertion despite the differences in language —
namely, for dry-stacked blocks the preamble requires “coat[ing] on the high pressure side with a
strength enhancing sealant” whereas for the lightweight cementatious blocks the preamble
specifically requires “coat[ing] on the joints and perimeter with a strength enhancing sealant.”
61 Fed. Reg. at 9783 (emphasis added).

39 FMSHRC Page 1356

the same sentence.13 Cf. Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 648 (5th Cir. 1976)
(stating the rule of construction that “where a term is carefully employed in one place and
excluded in another, it should not be implied where excluded”);14 see also Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 467-68 (2001) (refusing to read language into statute that had
been expressly stated elsewhere). Indeed, the operator’s traditional use of polyurethane foam
from 1983 forward supports the Secretary’s knowledge of the use of polyurethane foam around
the perimeter of dry-stacked blocks.
Additionally, as the Judge found, Peabody Twentymile also uses wooden wedges around
the perimeter of its block stoppings. 37 FMSHRC at 2636; see also Tr. 34. Under the
Secretary’s reasoning, in which silence regarding the perimeter should be interpreted as
prohibiting the use of anything but strength-enhancing sealant, the use of wooden wedges would
be prohibited as well. Yet the Secretary did not cite the operator for that and has, in fact, has
long allowed the use of wooden wedges around the perimeter. See Peabody Ex. D, at 3
(allowing the use of wedges in the mine’s ventilation plan).

13

Commissioner Cohen concludes “[n]othing in the language of the regulation itself or
the preamble indicates that any distinction is made between the face and the perimeter of cement
block stoppings.” Slip op. at 17. We see no reason for an explicit “distinction” when the
difference arises from the very words used. Undoubtedly, the Secretary drafted the preamble
intending the words to mean what they are commonly understood as meaning. Else, he would
have provided definitions. The perimeter of the stopping is not part of the face or a side of the
stopping. This distinction is entirely clear. The Secretary specified in the very same sentence
what must be used around the “perimeter” of certain types of stoppings. Yet our colleague
contends that there is no distinction between the face of a stopping — here, “the high pressure
side” — and the perimeter of a stopping, which is set off at a ninety-degree angle from the face
and oriented toward the ribs and the roof. He asserts that “[W]hen that [perimeter] gap is sealed,
the sealant becomes part of the face of the stopping. That sealant is exposed to the high pressure
side of the stopping.” Slip op. at 17 n.14. According to this tortured reading, if the sealant on
the perimeter becomes part of the side of the stopping then, under the words of the regulation
that “newly formed” side must itself be coated with sealant. Commissioner Cohen does not
consider whether the sealant that he claims has become part of the side must be sealed in an
indefinitely continuing repetitive process. Of course, this is purely a pedantic debate, as the
perimeter around the outer rim of a side certainly does not thereby become a “side” of the
stopping rather than a distinct perimeter sealant. As the regulations clearly differentiate, the
“side” is the face of the stopping wall and the perimeter is the space between the top of the side
and the coal seam. Additionally, we note that Kennedy stoppings only must be constructed of
steel that is a minimum 20-gauge thickness, according to the preamble. This is approximately
3/80 of an inch (0.0375 inches) thick. See https://www.unc.edu/~rowlett/units/scales/
sheetmetal.html; https://www.tedpella.com/company_html/gauge.htm.
14

While Diamond Roofing concerned language in a regulation rather than a preamble,
the Secretary failed to proscribe the conduct at issue in this case in either section 75.333(e)(1)(i)
or the preamble.

39 FMSHRC Page 1357

The preamble does not contain the Secretary’s argued prohibition against the use of
polyurethane foam. Therefore, the Secretary, in essence, asks us to defer to his interpretation of
the preamble — an interpretation of an interpretation. Deference in such a situation was
addressed relatively recently by the Fifth Circuit in Elgin Nursing and Rehabilitation Center v.
U.S. Department of Health and Human Services, 718 F.3d 488 (5th Cir. 2013). The agency in
that case issued 42 C.F.R. § 483.35(i)(2), a regulation requiring long term care facilities to
“[s]tore, prepare, distribute, and serve food under sanitary conditions,” and created a manual
interpreting the regulation, but the manual was ambiguous as well. 718 F.3d at 491-92. The
agency requested Auer deference for its interpretation of both the regulation and the manual’s
ambiguous interpretation of the regulation. Id. at 492. The Fifth Circuit declined. Id. at 493.
Upon deciding not to grant deference, the court recognized that rather than presenting a
case of Auer or Seminole Rock deference, the agency, “it seems, asks us to go a step further and
defer to its interpretation of the [manual]; essentially, it seeks ‘Seminole Rock squared’ deference
— deferring to its interpretation of its manual interpreting its interpretive regulation.” Id. The
court identified the chief problems with deferring to the agency’s interpretation of its own
interpretation:
[First,] it would make it possible for agencies not only to
issue ambiguous regulations, but also to write and enforce
ambiguous interpretations of them. . . .
Second, granting deference to [the agency’s] interpretation
of the [manual] would leave no role for the courts — taken to its
logical conclusion, it could effectively insulate agency action from
judicial review. It is not within the province of the Executive
Branch to determine the final meaning of a vague document
interpreting a regulation any more than it would be to interpret the
final meaning of a contract entered into by the Executive Branch.
Third, extending Seminole Rock and Auer to apply to
agency interpretations of agency interpretations of agency
regulations would allow agencies to punish “wrongdoers” without
first giving fair notice of the wrong to be avoided.
Id. As a result, the Fifth Circuit declined to grant deference to the agency’s interpretation of the
manual. It proceeded to interpret the manual by “apply[ing] traditional tools of textual
interpretation.” Id. at 494. In doing so, the court reached a contrary conclusion from that of the
agency and rejected the agency’s interpretation of the regulation. Id. at 494-95.
The case before us presents similar circumstances to those in Elgin Nursing. The
Secretary asks for deference to his interpretation, directing us to some of the language of the
preamble and ignoring preamble language in which the Secretary recognized that by use of the
phrase “traditionally accepted method[s],” he was allowing use of methods that had not been
shown to meet pre-existing strength testing requirements. For the reasons stated supra, however,
the preamble does not support the Secretary’s contention that MSHA intended to prohibit use of

39 FMSHRC Page 1358

non-strength-enhancing sealants, such as polyurethane foam, on the perimeter of concrete block
stoppings. Rather, the preamble indicates that operators may use such sealants under such
scenarios. For the same reasons as those articulated by the Fifth Circuit, we decline to award the
Secretary “Seminole Rock squared” deference to his interpretation of the preamble.
With Auer deference inappropriate, we would afford the Secretary’s interpretation only
the amount of deference warranted by the “thoroughness evident in its consideration, the validity
of its reasoning, its consistency with earlier and later pronouncements, and all those factors
which give it power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The
Secretary’s enforcement history and his prior approval of Peabody Twentymile’s construction
method are highly relevant to this inquiry and support our finding that the Secretary has
traditionally accepted Peabody Twentymile’s construction method.15
Since the mine opened in 1983, the Foidel Creek Mine’s ventilation plan has allowed the
use of polyurethane foam to seal the perimeters of its ventilation stoppings. 37 FMSHRC at
2641. The Secretary later approved a 1991 ventilation plan addendum allowing the operator to
use polyurethane foam to “seal [the] . . . cracks and perimeters of ventilation devices.” Peabody
Ex. D, at 7, 15. In 2000, the Secretary again approved a ventilation plan with the following
provision: “Application of foam for ventilation devices will be limited to sealing the perimeter
and joints of such devices.” Id. at 9.
The Secretary fails in his attempt to inject ambiguity into the ventilation plans by arguing
that they could be read to refer to repairs rather than actual construction of stoppings. Sec. Br. at
20. The 2011 ventilation plan is unambiguous: “Application of foam for ventilation device
installation will be limited to sealing the perimeter and joints of such devices.” Peabody Ex. D,
at 10. Using the nominative “installation” to refer to the act of installing, the ventilation plan
clearly allows the use of polyurethane foam during the installation phase.
MSHA has traditionally accepted Peabody Twentymile’s method by failing to cite the
practice until 2014 and approving ventilation plans allowing the practice since 1983, and neither
the regulation nor the preamble prohibits the practice. For those reasons, even if we found the
regulation ambiguous, we would find the Secretary’s interpretation wholly unpersuasive due to
its inconsistency with the regulation, the preamble, and the Secretary’s own consistent
enforcement of the regulation until 2014, and we would not afford it Skidmore deference.
Commissioner Jordan does not address our finding that Peabody Twentymile’s method of
construction meets the requirements to be traditionally accepted within the language of the
preamble, and Commissioner Cohen attempts to do so only in a footnote. See slip op. at 16 n.13.
Rather than deal with the clear language of the preamble, they principally rely upon an apparent
concession by Peabody’s counsel during oral argument that if the list in the preamble were
15

This case concerns a mandatory standard that allows practices that have been
“traditionally accepted,” and MSHA’s acceptance of Peabody’s construction method through
ventilation plans is clearly evidence of that traditional acceptance. The Judge should have
considered the ventilation plans.

39 FMSHRC Page 1359

exhaustive and binding, it would not prevail. See slip op. at 19 (separate opinion of
Commissioner Cohen); slip op. at 22 n.1 (separate opinion of Commissioner Jordan). Counsel
did not identify a reason for that concession, and we did not pursue a discussion regarding the
plain language of the preamble regarding dry stacked concrete blocks.
Obviously, a concession by Peabody’s counsel carries some weight no matter how
improvidently stated. However, unlike factual arguments, we are not bound by a party’s (or even
both parties’) erroneous view of the law. See Kamen v. Kemper Financial Servs. Inc., 500 U.S.
90, 99 (1991) (“When an issue or claim is properly before the court, the court is not limited to
the particular legal theories advanced by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law.”); see also Flamingo Resort, Inc. v.
United States, 664 F.2d 1387, 1391 n.5 (9th Cir. 1982) (“[W]e are not bound by a party’s
erroneous view of the law.”); United States v. Ginyard, 444 F.3d 648, 649 (D.C. Cir. 2006)
(“Although the United States has conceded error, the court is not bound by that concession on a
question of law.”). We place more reliance on the plain wording of the thought-out words of the
preamble rather than a spontaneous response during oral argument.16
The question before us is whether section 75.333(e)(1)(i) prohibits the use of
polyurethane foam. The Secretary has offered the preamble as essentially the only basis for his
position. The significance of the preamble is a question of law, and the parties’ misreading of
the preamble in a hypothetical does not preclude us from reading it correctly. If our colleagues’
view of the scope of our review were accurate, the Commission would be prevented from ever
conducting its negligence analysis as described in Leeco, Inc., 38 FMSHRC 1634, 1637 (July
2016), simply because both the Secretary and the operator in a given case might prefer the
Secretary’s definition of negligence to our own.
Commissioner Cohen’s opinion actually conforms in important and outcomedeterminative respects to our opinion. He recognizes that the Secretary is not entitled to Auer
deference. He effectively agrees that the words of the regulation are plain and, properly defined,
mean exactly what we have said. He finds ambiguity not in the terms of the regulation but in its
application. Thus, he does not find the terms or language of the regulation ambiguous but finds

16

We prefer not to confuse factual questions with legal ones, as Commissioner Cohen
does throughout by using non-expert testimony about which construction method is stronger to
determine his purportedly legal conclusion of what section 75.333(e)(1)(i) requires. To
paraphrase Commissioner Cohen’s opinion, “[I]f MSHA [today] believes that the use of foam as
a perimeter sealant is unsafe,” slip op. at 20, then the regulation must be read to prohibit it,
regardless of what the regulation and the preamble actually say. Moreover, as set out infra, a
block stopping in the subject mine is approximately 200 square feet, weighs more than four tons,
and is coated with a strength enhancing material on the side. It was with good reason that
MSHA did not require the replacement of stoppings after the Judge’s decision.

39 FMSHRC Page 1360

the regulation ambiguous because, to him, it could mean traditionally accepted in the industry as
a whole or at a particular mine. Slip op. at 15.17
In proposing this ambiguity, he implicitly concedes, as he must, that MSHA traditionally
accepted the use of polyurethane at the Peabody Twentymile mine.18 Rather than apply the plain
words of the regulation to the long usage at the subject mine, Commissioner Cohen asserts that a
“valid inference might be that allowing the operator to use the foam sealant was an error made
by a single MSHA office.” Slip op. at 10. Of course, it strains credulity to characterize MSHA’s
continuous approval of Peabody Twentymile’s use of polyurethane foam for over 31 years as “an
error” when that approval took the form of explicit approval of its ventilation plans, at least 60
reviews of that plan, and hundreds of inspections covering hundreds of block stoppings without
issuing a single citation. In turn, it defies credulity to assert that MSHA allowed an unsafe
practice to exist for three decades in a large and important underground coal mine. Yet,
Commissioner Cohen simply asserts that the use of polyurethane foam around the perimeter of
block stoppings is “weaker and more flammable,” and concludes from that assertion that the
Secretary’s interpretation is therefore reasonable. Slip op. at 20.

17

The only mine considered in this case or in the evidence is Peabody Twentymile’s
mine. A Peabody witness testified that he knew other mines used polyurethane as a sealant
around stoppings. The Secretary did not present any evidence about the use of polyurethane
foam at other mines. Commissioner Cohen acknowledges this point saying that he is concerned
about MSHA not using a safety practice that “it may presently be using at other mines around the
country.” Slip op. at 15 (emphasis added). If the Secretary wants to impose a new nationwide
requirement, there is a legally sound way to do so, consistent with the APA: make a rule.
18

We recognize that dictionary definitions are not always outcome determinative if, read
in the context as a whole, they are clearly inappropriate. Here, the “context” of the regulation
demonstrates that the dictionary definitions are most appropriate. Indeed, the entire context is
that if an operator was using a methodology that MSHA had accepted, it could continue doing
so. Commissioner Cohen’s reliance upon Yates v. United States, 135 S. Ct. 1074 (2015),
actually shows the meaning of “read in context.” Yates was a criminal case in which a plurality
of four Justices expressly relied upon the rule of lenity to require any ambiguity to be resolved in
the defendant’s favor. More importantly, for present purposes, the plurality emphasized, inter
alia, the title of the specific section allegedly violated, “Destruction, alteration, or falsification of
records in Federal investigations and bankruptcy,” and the title of the section of the Sarbanes–
Oxley Act that contained the specific section allegedly violated, “Criminal penalties for altering
documents.” Id. at 1083. Further, the plurality relied upon rules of statutory construction to find
that the term “tangible object” was limited by surrounding reference to “objects used to record or
preserve information.” Id. at 1077. Using these tools, the plurality writes, “It is highly
improbable that Congress would have buried a general spoliation statute covering objects of any
and every kind in a provision targeting fraud in financial record-keeping.” Id. at 1087. In this
case, MSHA approved previously used and accepted methods going forward. The context and
the words are in full alignment.

39 FMSHRC Page 1361

Commissioner Cohen raises a false specter of the flammability of polyurethane foam to
support his finding that the Secretary’s interpretation is persuasive.19 Such assertion conflicts
with the facts that (1) polyurethane foam is accepted by MSHA as flame resistant, (2) MSHA
recognizes and permits the use of polyurethane as a sealant around the perimeter of Kennedy
stoppings that have wide gaps at the perimeter, and (3) Inspector Preece confused fire tests
required for stoppings with flammability tests required for sealants.
Preece repeatedly acknowledged that polyurethane foam meets MSHA’s test for
flammability. Tr. 41, 53-54, 66-67. Under 30 C.F.R. § 75.333(f), sealants are required to pass a
flammability test. Polyurethane foam has passed this test, it has been accepted by MSHA as a
sealant for use in mines, and MSHA has specifically approved it as flame resistant. Tr. 53-54.
Preece offered confused and errant testimony by referring to a “fire test” at various points
in his testimony. A “fire test” is not required by section 75.333(e). The record clearly reflects
this fact.
Preece’s confusion and misapprehension, which serve to undercut his testimony,
apparently arise from his misunderstanding of a communication between him and MSHA
personnel with actual expertise regarding stoppings and sealants. When Peabody Twentymile’s
counsel pointed out that section 75.333(e)(1)(i) only specified a strength test, Preece stated that
“Mr. Cramer in technical support sent us some documentation which showed the three tests that
are performed on stoppings. That’s what they test with.” Tr. 67 (emphasis added). Without
doubt, Preece was not testifying from his own knowledge or expertise but rather was testifying
only to an impression gained from talking with someone else. The regulations do not support his
misimpression.
In fact, section 75.333(e)(1)(ii) requires a fire test only for stopping construction material
and does not deal with the flammability of sealants.20 Nobody asserts that polyurethane foam is
a stopping construction material. It is used to seal the perimeter and any holes to prevent air
passage around, over, or through the stopping. Preece clearly confused the requirements for
stopping construction materials and for sealants.
19

Commissioner Cohen states that “[w]hile block bond has passed flammability tests,
Tr. 34-35, polyurethane foam has not,” crediting the testimony of Inspector Preece. Slip op. at
20.
20

Section 75.333(e)(1)(ii) provides in relevant part:
All overcasts, undercasts, shaft partitions, permanent stoppings,
and regulators, installed after November 15, 1992, shall be
constructed of noncombustible material. Materials that are suitable
for the construction of overcasts, undercasts, shaft partitions,
permanent stoppings, and regulators include concrete, concrete
block, brick, cinder block, tile, or steel.

39 FMSHRC Page 1362

The regulation requires that stopping construction materials, “includ[ing] concrete,
concrete block, brick, cinder block, tile, or steel,” must “be constructed of noncombustible
material.” 30 C.F.R. § 75.333(e)(1)(ii). The term “noncombustible material” is defined in
section 75.301 as material that, “when used to construct a ventilation control, results in a control
that will continue to serve its intended function for 1 hour when subjected to a fire test
incorporating an ASTM E119-88 time/temperature heat input, or equivalent.” 30 C.F.R. §
75.301 (emphasis added). Section 75.333(e)(1)(ii) does not mention sealants because they are
not construction materials that must meet the fire test. Instead, sealants such as polyurethane
foam must meet the flammability test identified in section 75.333(f), which specifies the fireresistance standards for sealants.
Separately, and from a practical standpoint more persuasively, mines permissibly use
polyurethane foam to seal not just the perimeter but also the joints of metal Kennedy stoppings,
which are widely used in the Foidel Creek Mine. Kennedy stoppings typically have gaps of 0 to
4 inches between the stopping and rib or roof and block stoppings typically have gaps of 0 to 6
inches. Tr. 36-37; Tr. 46-47.21 The permitted use of polyurethane foam for these stoppings at
the mine demonstrates that, in fact, MSHA actually does permit use of polyurethane foam as a
perimeter sealant with stoppings without concern that use of the sealant creates a danger for
miners of air leakage through openings at the perimeter.
Even were the sufficiency of polyurethane foam not obvious from the regulations
themselves and its permissible use with Kennedy stoppings, a paper presented by an MSHA
official at the 11th U.S./North American Mine Ventilation Symposium in 2006 confirms it. The
paper, which discussed nontraditional construction materials, specifies first that section 75.333
“requires that . . . permanent stoppings . . . be constructed of noncombustible material.” Harry C.
Verakis, Technical Support, Approval & Certification Center, MSHA, Stoppings: Technology
Developments and Mine Safety Engineering Evaluations 1 (2006), available at
https://arlweb.msha.gov/S&HINFO/TECHRPT/minewste/stoppingstechnologydevelopment.pdf.
Then, the paper states that these newer materials must meet the strength test identified in section
75.333(e)(1), the “ASTM E-72-80.” Id. The next sentence of the paper states clearly that
sealants must only meet the flammability test contained in section 75.333(f): “Also, sealants or
coatings applied to ventilation controls to reduce air leakage must have a flame spread index of
25 or less. The flame spread index test specified in Part 75.333 is the ASTM E-162-87.” Id. at
1-2 (footnote omitted). Polyurethane foam meets this standard, and Inspector Preece’s confused
testimony must not trump our ability to read, independently, what the Secretary’s regulations
require.

21

Commissioner Cohen says that our conclusion that these gaps are “substantially
similar” amounts to “speculation,” slip op. at 16 n.9, and that Kennedy stoppings are
“fundamentally different” in the gaps in the perimeter. Slip op. at 20. We leave it to the
common sense of the reasonable person to gauge whether, with respect to preventing the passage
of air through the same approved sealant, an occasional difference of 2 inches is “fundamentally”
different. No evidence supports the notion of such fundamental difference.

39 FMSHRC Page 1363

The only other asserted safety basis for not applying the regulation’s words in accordance
with their plain meaning and the context within which they were written is that polyurethane
foam is not strength-enhancing. Of course, the undemonstrated premise of this objection must be
that a thin coating of an inch or so around the perimeter of a stopping is critical to a stopping’s
physical strength.
With respect to the “strength” issue, we start with the dimensions of a stopping in the
subject mine. Generally, stoppings in the Peabody Twentymile mine are 17 to 23 feet wide and
8 to 12 feet tall. Tr. 116. They are composed of dry stacked concrete blocks coated on the highpressure side with a strength-enhancing material and are wedged against the ribs and the roof.
Tr. 117. The blocks weigh over 39 pounds. Verakis, supra, at 2 (providing measurements and
weight in metric format). Assuming an average stopping is 20 feet wide and 10 feet tall and uses
8 x 8 x 16 inch blocks, the stopping will contain 225 blocks. Thus, the block stopping is an
approximately 200 square-foot wall of strength-enhanced concrete blocks weighing 8,775
pounds.
The Secretary presented no evidence that Peabody Twentymile’s block stoppings are not
sufficiently strong, opting instead to rely on conclusory reasoning that a 200 square foot, four ton
concrete block stopping with an inch or so of polyurethane at the perimeter is dangerously
weaker than one that uses mortar subject to drying and cracking and stuffed by hand in small
openings. There simply is no evidence in this case to support such a supposition.22
If one were to conclude that the traditional Peabody stopping is insufficiently strong, as
Commissioner Cohen does, then for over 30 years MSHA has permitted the construction of
hundreds of structurally insufficient block stoppings. If that were true, then MSHA has been
scandalously negligent. Given that stoppings made with Peabody’s traditionally accepted
method will be allowed to remain unchanged in the mine, see Oral Arg. Tr. 72, MSHA does not
find such stoppings as posing a threat to the safety of miners.23 We prefer to find the obvious
truth that MSHA has traditionally recognized and accepted that Peabody’s coated, strengthenhanced concrete stoppings have been traditionally accepted as adequately performing the task
of providing a strong stopping in accordance with the regulation.

22

Contrary to Preece’s unsupported supposition, there is testimony that in the Foidel
Creek Mine and another mine, which have pronounced cleavage and rib sloughage, polyurethane
foam creates a better seal than mortar or grout because it expands to fill the space around the
perimeter of stoppings rather than shrinking and cracking. Tr. 140.
23

Were the contrary true, the Secretary would be able to assert, consistent with the text
of section 75.333(e)(1), that the stoppings at the mine were not constructed “of materials that
have been demonstrated to perform adequately.” MSHA did not argue this or offer any
competent evidence that the sealant here failed that test, so we must assume there is no evidence
of this fact and that the Secretary’s suggestion of potential danger based on deficient strength is
weightless.

39 FMSHRC Page 1364

III.
Conclusion
Peabody Twentymile’s method of construction was traditionally accepted by MSHA for
13 years prior to the promulgation of the regulation and for almost 20 years thereafter. Under the
plain meaning of the regulation, such a traditional and accepted method complies with the
regulation. Further, even if there were doubt, we need not defer to the Secretary’s interpretation
of the term “traditionally accepted method” of construction in section 75.333(e)(1)(i) because it
unambiguously includes Peabody Twentymile’s use of polyurethane foam around the perimeter
of dry-stacked concrete block stoppings. However, even if the standard were ambiguous, the
Auer framework would not apply to the Secretary’s interpretation because the preamble does not
support his argument, rendering it an interpretation of an interpretation, and under Skidmore, the
Secretary’s interpretation lacks the power to persuade given the facts of Peabody Twentymile’s
traditional usage not objected to by MSHA.
For these reasons, we would reverse the Judge’s decision and find that Peabody
Twentymile’s construction of dry-stacked block stoppings is a “traditionally accepted method.”

/s/ William I. Althen
William I. Althen, Acting Chairman

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

39 FMSHRC Page 1365

COMMISSION ORDERS

39 FMSHRC Page 1366

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

July 7, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2017-97-RM

v.
SIMS CRANE, INC.

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY: Althen, Acting Chairman; Young, and Cohen, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On December 19, 2016, the Commission received from Sims
Crane, Inc. (“Sims”) a motion seeking to reopen an Imminent Danger Order that had become a
final order of the Commission pursuant to section 107(e)(1) of the Mine Act, 30 U.S.C. §
817(e)(1).
Under section 107(e)(1) of the Mine Act, an operator who wishes to contest an Imminent
Danger Order must apply to the Commission within 30 days of issuance. The Commission is
then charged with affording the operator a hearing to determine whether the Order should be
vacated, affirmed, modified, or terminated. 30 U.S.C. § 817(e)(1).
On September 23, 2015, the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued an Imminent Danger Order, No. 8823572, to Sims alleging
that a miner was walking without fall protection where there was a danger of falling. A related
citation, No. 8823573, was issued on the same day for an alleged violation of 30 C.F.R. §
56.15005.1
Pursuant to section 107(e)(1) of the Mine Act, the operator had until October 23, 2015 to
apply to the Commission for modification or vacation of the Imminent Danger Order. The
operator failed to provide that notification within the statutory period. Sim’s motion indicates
that it was unaware of the application requirement and that it believed it would have an
opportunity to contest the Order at a later date, in a manner similar to the process for challenging
a proposed penalty assessment under section 105(a). However, penalties are not assessed for an

1

30 C.F.R § 56.15005 provides: “[s]afety belts and lines shall be worn when persons
work where there is danger of falling; a second person shall tend the lifeline when bins, tanks, or
other dangerous areas are entered.”

39 FMSHRC Page 1367

Imminent Danger Order under the Mine Act and no further opportunities for challenging Order
No. 8823572 existed after the initial 30-day period.
On or about December 3, 2015, Sims received a Notice of Contest Rights and
Instructions and a Proposed Assessment (Form 1000-179) from MSHA. Those forms concerned
the proposed penalty assessment for Citation No. 8823573 and instructed the operator on the
procedures for contesting that assessment before the Commission. Sims checked that it wished to
contest all violations listed in the proposed assessment and requested a formal hearing. MSHA
received Sims’ contest on December 23, 2015. In its motion, Sims asserts that it believed that in
contesting the citation and proposed assessment, it was also contesting the Imminent Danger
Order.
On February 9, 2016, the operator’s contest was docketed as No. SE 2016-81, designated
as a simplified proceeding, and assigned to an Administrative Law Judge. On March 25, 2016
and again on June 22 or 23, 2016, Sims filed informational updates regarding this matter. In both
of those submissions, the operator requested that both the citation and the Imminent Danger
Order be vacated. The Secretary never objected to the inclusion of the Imminent Danger Order in
Sims’ filings.
On October 28, 2016, counsel for the Secretary filed a Pre-Hearing Report with the
Judge. In that report, the Secretary stipulated that, “the citation and imminent danger order at
issue in this proceeding were properly served upon Sims as required by the Mine Act . . .” and
further that “the citation and imminent danger order at issue in this proceeding may be admitted
into evidence by stipulation for the purpose of establishing its issuance.” The Secretary also
stated that he believed “the single citation and imminent danger order in this $270 docket will be
proceeding to trial.” Finally, the Secretary asserted, “[a]ll aspects of this citation and imminent
danger order are at issue . . .” (emphasis added). In Sim’s motion to reopen, it asserts that these
statements “reaffirmed [its] belief that the Order had been contested and that all stakeholders
were aware of it.”
On October 31, 2016, the Judge convened a prehearing status call. During that call the
Judge raised for the first time the possibility that the Imminent Danger Order had not been timely
contested. Notwithstanding the stipulations contained in the Secretary’s Pre-Hearing Report,
counsel for the Secretary then argued for the first time that the order had not been contested.
On November 14, 2016, a hearing was held in this matter. At the hearing, the Judge again
raised the issue of whether the Imminent Danger Order had been contested in a timely manner.
The Judge determined that there was no indication in the record of any challenge to the order.
The record was left open after the hearing to permit Sims to provide such evidence.
On November 23, 2016, Sims argued in an email to the Judge’s office that it had
contested the Order at the same time as it had contested the proposed penalty assessment for
Citation No. 8823573 because “the Order was referenced by number in the text of the Citation.”
On January 13, 2017, the Judge issued his Decision and Order in this matter. The Judge
substantively addressed the Secretary’s allegations regarding Citation No. 8823573. However,

39 FMSHRC Page 1368

with respect to Order No. 8823572, the Judge noted that the Mine Act and the Commission’s
procedural rules require an operator to notify the Commission that it wishes to Contest an
Imminent Danger Order within 30 days. He determined that marking the proposed assessment
regarding the related citation was not the proper procedure for contesting the order. Further, even
if it was permissible to challenge an Imminent Danger Order in that fashion, the Judge noted that
in this case the operator filed its challenge to the proposed assessment well after the October 23,
2015 deadline. As a result, the Judge ruled that he lacked jurisdiction over the order and declined
to address it substantively.
As noted above, on December 19, 2016, Sims filed a Motion to Reopen. In it, Sims
requested relief from the final Imminent Danger Order pursuant to Federal Rule of Civil
Procedure 60(b)(1), which provides for relief from a final judgement that was entered as a result
of “mistake, inadvertence, surprise, or excusable neglect . . . .” Fed. R. Civ. P. 60(b). The
operator stated that this rule was incorporated into the Commission Rules. See 29 C.F.R. §
2700.1(b). Sims argued that the assessment form was ambiguous and that it reasonably believed
it had properly contested the order when it returned that form. Further, Sims argued that its
“intention to contest the Order has always been clear.”
On January 18, 2017, the Secretary of Labor filed an Opposition to Sims’ Motion to
Reopen (which he later amended). In it, the Secretary noted that the Federal Rules of Civil
Procedure provide that that such a motion must be filed “within a reasonable time” and that if
relief is requested under, inter alia, Rule 60(b)(1), the request must be made within a year of the
final judgment. It noted that in this case, the order became final in October 2015 and the motion
to reopen was filed in December 2016, more than a year after the final order. As a result, the
Secretary argued that the motion must be denied.
The Commission has held that in appropriate circumstances, we possess jurisdiction to
reopen uncontested 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
orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil
Procedure. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
When the Commission considers a request to reopen a proposed assessment which has
become final, it usually does so in accordance with Rule 60(b)(1), under which a final judgment
against a party may be relieved on the basis of “mistake, inadvertence, surprise, or excusable
neglect.” See, e.g., KenAmerican Res., Inc., 20 FMSHRC 199, 199-200 (Mar. 1998) (illness of
safety director and lack of coordination between safety director and accounting department found
to be inadvertence or mistake); Austin Powder Co., 33 FMSHRC 581 (Mar. 2011) (operator’s
email to counsel requesting filing of contest inadvertently sent to inactive email account). This is
the rule cited by Sims in its motion to reopen.

39 FMSHRC Page 1369

The Secretary correctly notes that pursuant to Rule 60(c)(1), a motion under Rule 60(b)
“must be made within a reasonable time – and for reasons (1), (2), and (3) no more than a year
after the entry of the judgment or order or the date of the proceeding.” Hence, in cases seeking
reopening of a final order, where the basis for the request is mistake, inadvertence, surprise, or
excusable neglect, and the request is made more than one year after the order became final, the
Commission has denied relief. See, e.g., Newmont USA Ltd, 31 FMSHRC 808 (July 2009); J.S.
Sand & Gravel, Inc., 26 FMSHRC 795 (Oct. 2004).
In the instant matter, it is undisputed that Sims’ motion to reopen was filed more than a
year after the Imminent Danger Order became final. Thus, under our existing case law, we
cannot grant relief using guidance from Rule 60(b)(1). However, that is not necessarily the end
of the inquiry. As we have noted previously:
On past and very infrequent occasions, the Commission has been guided by Rule
60(b)(6), which provides that relief from a judgment or order may be granted for
“any other reason that justifies relief.” Under Rule 60(b)(6), a motion seeking
relief need not be filed within one year from entry of the judgment or order,
although it must be filed within a “reasonable time.” Fed. R. Civ. P. 60(c)(1). The
Commission has considered reopening penalties which had become final pursuant
to section 105(a), relying on Rule 60(b)(6), even though the motion had been
made more than one year after the penalty has become final. See, e.g., Brian D.
Forbes, 20 FMSHRC 99 (Feb. 1998) (remanding to judge where individual
respondent claimed that he had no actual knowledge of the citation issued against
him); Contractors Sand & Gravel, 23 FMSHRC 570 (June 2001) (remanding to
judge to consider whether “extraordinary circumstances” exist where operator
claims that it understood that assessments were included in separate settlement
agreement).
Master Products Corp., 33 FMSHRC 645, 647-648 (Apr. 2011).
Master Products concerned an operator’s motion to reopen a final penalty assessment
under section 105(a) of the Mine Act. 33 FMSHRC at 645. As here, the Secretary opposed
reopening on the grounds that the motion was filed more than a year after the order had become
final. Nonetheless, upon reviewing the relevant circumstances, we ultimately determined that
Rule 60(b)(6) applied to motions to reopen final Commission orders and that such a reopening
was appropriate under the circumstances. That is, we determined that there were extraordinary
circumstances that justified setting aside the default final order.
In that case, we noted that the operator had received a proposed assessment from the
Secretary and had timely filed its contest. 33 FMSRHC at 650. However, it had mailed that
contest to the wrong MSHA Office. Id. Nonetheless, “[a]ll of the events subsequent to the
operator’s timely submission led it to reasonably believe that it had properly requested a
hearing.” Id. In fact, MSHA verbally confirmed to the operator that it had received the contest.
We determined that the “operator exercised diligence in pursuing its contest by making several
attempts to contact MSHA and inquire as to the status of its case and responding to each
correspondence it received from the agency.” Id. The operator learned that the assessment had

39 FMSHRC Page 1370

become final when it received a delinquency notification. The operator repeatedly contacted
MSHA via mail regarding the delinquency, but received no reply. The operator also contacted
the collection agency within two days of receiving the delinquency notice to explain that it had
contested the citation at issue.
We went on to explain why we found that the operator’s motion, while filed over a year
after the assessment had become final, was nonetheless made within a reasonable time, as
required by Rule 60(c). We noted that for half of the 16-month period of default, the operator
was corresponding with MSHA’s Civil Penalty Compliance Office and the Department of
Treasury’s collection agency. 33 FMSHRC at 651. We further noted that the operator had
received no response from MSHA despite “clear articulations of its understanding of the
situation and express requests.” Id. We determined that the operator’s misapprehension arose
from MSHA’s inconsistent and misleading communication which would lead a reasonable
person to conclude that the case had been properly contested and was being held up by
bureaucratic delays. Put succinctly, we stated:
Nothing in the record indicates that MSHA took any action to correct the
operator’s clearly-expressed understanding of the circumstances. In relying on the
agency’s silence and its earlier representations, Master Products failed to take
further action within one year of the order becoming final because it reasonably
believed that no further action was necessary.
Id. Therefore, we determined that reopening was appropriate.
The situation here is substantially similar. Sims, like Master Products, failed to properly
contest an issuance before the Commission and it became a final order.2 Nonetheless, Sims
clearly believed that it had properly contested the Imminent Danger Order when it filed its
contest to the related Citation. It consistently referred to both the Citation and the Order in all of
its filings and expressed its intention to contest both. Further, Sims acted diligently and pursued
its claim rigorously. It provided updates to the court (in which it reiterated its position regarding

2

We have elected to proceed pursuant to Rule 60(b) in this case because the Commission
has, in previous cases, considered imminent danger orders as though they are “final.” See, e.g.,
ACI Tygart Valley, 38 FMSHRC 939 (May 2016). However, it is not certain that the order in this
case was “final” in the fatal, legal sense applied to penalties issued pursuant to section 105(b).
Unlike that section, section 107 does not contain a clause explicitly rendering an uncontested
order a “final order.” We believe that treating all penalties and orders as “final” is the better
practice and is more consistent with the structure and language of the Act. But the fact that even
the Secretary acted as though the imminent danger order remained a viable issue in the case, up
until the latter stages of pretrial preparation, certainly renders this case “extraordinary.”

39 FMSHRC Page 1371

the Imminent Danger Order) and participated in pre-hearing procedures. At no time did Sims
exhibit anything but a good-faith belief that the Order was docketed for review.3
At all relevant times Sim’s clearly expressed its understanding that it had properly
contested the imminent danger order. What makes this case extraordinary, and therefore worthy
of consideration under Rule 60(b)(6), is that MSHA affirmatively endorsed the operator’s stated
misunderstanding. Indeed, the agency behaved at all times as though it had received a timely
contest. Unlike in Master Products, where the operator mostly experienced silence from the
Secretary following the delinquency notice, the Secretary here prepared for the case as though it
would involve the Imminent Danger Order. He even stipulated that the Judge had jurisdiction
over the matter and made frequent references to the Order in his Prehearing Report. Further, the
issuance here was not assessable and, as a result, Sims never received a delinquency notice that
might have provided some indication that the Order had not been properly challenged.
It is clear that Sims took no action in the year following the final order because it
reasonably believed that it had properly contested the Imminent Danger Order and was in the
process of litigating the matter. Although the Secretary undoubtedly did not intend to deceive
Sims, he fostered this mistaken belief. It was only after the one-year deadline had already passed
and the Judge raised the issue that the Secretary argued that the Imminent Danger Order had not
been contested. Under these circumstances, we conclude that it is appropriate to grant the relief

3

Sims’ failure to contest this issuance here could be characterized as a “mistake.” As
noted above, mistake is one of the discrete reasons for relief listed in Rule 60(b)(1), which is
subject to the one-year rule in Rule 60(c). However, assuming it was a mistake, it was a mistake
accompanied by extraordinary circumstances. In Master Products, we held that the Rule 60(b)(6)
catchall provision could be used to reopen a default judgment over a year old, even if it was the
result of “mistake,” provided extraordinary circumstances existed. 33 FMSRC at 648-49. In
reaching that conclusion, we cited the view of Rule 60(b)(6) taken by federal courts as
summarized in 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
2864 (2d ed. 2010), which allows for such treatment. We also noted the Seventh Circuit’s
decision in Lowe v. McGraw-Hill Cos., Inc., 361 F.3d 335 (7th Cir. 2004), in which the Court set
aside a default over a year after the judgment pursuant to Rule 60(b)(6) when the default
occurred because of a “mistake.” We continue to follow that guidance under the exceptional
circumstances presented here.

39 FMSHRC Page 1372

requested by Sims and that that request was made within a reasonable time pursuant to Rule
60(c)(1).4
Therefore, in the interest of justice, and based on Rule 60(b)(6), 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/ William I. Althen
William I. Althen, Acting Chairman

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

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

4

Our dissenting colleague states that reopening this Order will serve no purpose. Slip Op.
at 8. We do not agree. MSHA alleged a serious violation – the occurrence of an imminent
danger. A section 107(a) violation is an “elevated” order for purposes of the Pattern of Violation
Screening Criteria. Pattern of Violation Screening Criteria -2014,
https://arlweb.msha.gov/pov/POVScreeningCriteria2014.pdf (last visited June 21, 2017).
Standing alone, that is significant. Further, it is impossible to predict how the occurrence of such
a violation might affect interests of the charged entity in other areas such as insurance and other
litigation. Finally, a person charged with a serious violation of law must have a fair opportunity
to contest such a charge. Absent reopening, the events connected with this violation would
effectively deprive the operator of such an opportunity despite its clear intention to do so and its
good faith and understandable belief that the agency also considered its challenge to be pending
before the Commission.

39 FMSHRC Page 1373

Commissioner Jordan, dissenting:
Sims failed to contest an imminent danger order, and now asks the Commission to allow
it to challenge the appropriateness of that enforcement action. Because Sims’ request came more
than a year after the deadline for seeking review of such order, making relief under F.R.C.P.
60(b)(1) inappropriate, and because it failed to demonstrate “extraordinary circumstances,”
deserving of relief under F.R.C.P. 60 (b)(6), I would deny the motion.
MSHA issued the imminent danger order on September 23, 2015. The order, written
because a truck driver failed to use fall protection, was terminated one minute after it was issued
(when the driver dismounted the crane on the truck to ground level). Thereafter, Sims had 30
days in which to file a notice of contest with the Commission. 30 U.S.C. § 817(e)(1);
Commission Procedural Rule 22, 29 C.F.R. § 2700.22. It failed to do so.
In deciding whether “extraordinary circumstances” warrant relief in this case, it is useful
at the outset to explore the effect of the operator’s failure to challenge MSHA’s enforcement
action. Frankly one is hard-pressed to identify many practical consequences. The order was
terminated one minute after it was issued and no penalty was assessed.5 Not surprisingly, the
operator’s motion provides no reason why it will be better off if the Commission awards the
relief it seeks.
Importantly, Sims has already challenged the citation that was issued in conjunction with
the imminent danger order. The citation alleged that Sims violated the standard providing that
fall protection be worn when persons work where there is a danger of falling, and a penalty was
assessed in conjunction with that MSHA enforcement action.
A hearing was held, and on January 13, 2017, the Administrative Law Judge issued a
decision upholding the violation but deleting the designation of “significant and substantial” and
reducing the level of negligence and gravity. He also reduced the penalty from the $270.00
proposed by the Secretary to $100. 39 FMSHRC 116 (Jan. 2017). Sims filed a petition for
discretionary review of the Judge’s finding of a violation. The Commission granted the petition,
and the case is currently pending before us.6
Therefore, on the issue of whether MSHA properly enforced the fall protection
requirement, the operator has had the benefit of a full due process hearing, and will ultimately
have appellate review of the Judge’s decision. This is in stark contrast to the usual default case

5

The operator acknowledges that no penalties are assessed for imminent danger orders.
Motion to Reopen, Declaration of W. Ben Hart at 2.
6

Thus the effect of the majority’s decision to grant the motion to reopen is that part of
this docket will be remanded to the administrative law judge (on the merits of the imminent
danger order) while the other part of the docket (regarding the validity of the citation) will be
before the Commission on appeal. This type of inefficient piecemeal litigation has the potential
to create confusion. See Eagle Energy, Inc. v. Secretary of Labor, 240 F.3d 319, 325 (4th Cir.
2001) (refusing to hear operator’s appeal when the Secretary’s appeal was still pending before
the Commission).

39 FMSHRC Page 1374

involving a motion under Rule 60, where the operator has not yet had its day in court and the
government is nonetheless in the position to collect a penalty.
Turning now to the operator’s request for relief, a quick review of the Commission’s
procedural rules would have demonstrated to the operator that a formal filing of a Notice of
Contest with the Commission was necessary to contest the order. Rather than filing such
pleading with the Commission, Sims did nothing until December 2015, when it received a
proposed assessment from the Secretary on the related citation. It contested the penalty linked to
this citation by sending in a form to the Secretary, and in so doing mistakenly believed it had
effectively contested the imminent danger withdrawal order. As the operator admits, the failure
by Sims to properly contest the imminent danger order “was the result of mistake, inadvertence,
and/or excusable neglect.” Mot. at 7. This, of course, tracks the language of Federal Rule of
Procedure 60(b)(1), on which Sims’ motion is based. The majority, in turn, also acknowledges
that “Sims’ failure could be characterized as a ‘mistake.’” Slip op. at 6, n.3.
However, because Sims did not file its motion to reopen until December 2016, more than
one year after the imminent danger order should have been contested, relief under Rule 60(b)(1)
may not be granted. Fed. R. Civ. P. 60(c)(1); Slip op. at 4.
My colleagues look to a different provision in Rule 60 (one not relied on by Sims) to
afford relief to the operator. Under Rule 60(b)(6), relief from a judgment or order may be granted
for “any other reason that justifies relief.” Such a motion need not be filed within one year from
entry of the order. However, it must be filed within a reasonable time. Fed. R. Civ. P. 60(c)(1).
The majority grants grant relief under the stringent test set forth by the Commission and
the federal courts when applying this provision. In Pioneer Investment Serv. Co. v. Brunswick
Assoc. Limited Partnership, 507 U.S. 380 (1993), the Supreme Court set forth the “extraordinary
circumstances” standard used in these cases:
To justify relief under subsection (6), a party must show
‘extraordinary circumstances’ suggesting that the party is faultless
in the delay. . . . If a party is partly to blame for the delay, relief
must be sought within one year under subsection (1) and the
party’s neglect must be excusable.
Id. at 393.
The Commission has also adopted the “extraordinary relief” standard for 60(b)(6) cases.
See Celite Corp., 28 FMSHRC 105, 107 (Apr. 2006). My colleagues in the majority appear to
agree that this is the proper test. Slip op. at 6, n. 3.
Generally, to be eligible for relief under 60(b)(6), a party must be without fault:
In a vast majority of the cases finding that extraordinary
circumstances do exist so as to justify relief, the movant is
completely without fault for his or her predicament; that is the
movant was almost unable to have taken any steps that would have
resulted in preventing the judgment from which relief is sought.
12 James Wm. Moore et al., Moore’s Federal Practice § 60.48[3][b] (3d ed. 2017).

39 FMSHRC Page 1375

The federal courts have also often emphasized that Rule 60(b)(6) is utilized to prevent
extreme hardship. See e.g. SEC v. North American Clearing, Inc., 656 Fed.Appx. 947, 949 (11th
Cir. 2016) (holding that relief under 60(b)(6) may be invoked only when an absence of relief will
result in “extreme and unexpected hardship”); Norris v. Brooks, 794 F.3d 401 (3rd Cir. 2015)
(same).
Another black-letter law concept regarding Rule 60(b)(6) is that it cannot be used simply
because a party has failed to meet the one-year time limit for filing a motion to reopen under
Rule 60(b)(1). Thus, in John R. Sand and Gravel, 26 FMSHRC 403 (May 2004), we stated:
“[The] one-year time limit is an outside time limit for motions
requesting relief under subsections (1) through (3), and may not be
circumvented by utilization of subsections (4) through (6) of Rule
60(b), which are subject only to a reasonable time limit, when the
real reason for relief falls within subsections (1) through (3).”
Id. at 405. quoting Lakeview Rock Products, 19 FMSHRC 26, 28-9 (Jan. 1999)
The federal courts are in agreement:
Of particular concern is that parties may attempt to use Rule
60(b)(6) to circumvent the one-year time limitation in other
subsections of Rule 60)(b). . . . Recognizing this concern, we have
found that Rule 60(b)(1) and Rule 60 (b)(6) are mutually
exclusive, such that any conduct which generally falls under the
former cannot stand as a ground for relief under the latter. Where a
party’s Rule 60(b) motion is premised on grounds fairly classified
as mistake, inadvertence, or neglect, relief under Rule 60(b)(6) is
foreclosed.” [internal quotation marks and citations omitted)]
Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012); see also Moore’s, § 60.48[2]; Brandon v.
Chicago Board of Education, 143 F.3d 293, 295-296 (7th Cir. 1998) (holding, in a case where
the clerk of the district court consistently sent court mailings to an incorrect address, that the
“unusual combination of error by the Clerk’s office and neglect by the attorney” were covered by
Rule 60(b)(1), and that since (b)(1) applied, Rule 60(b)(6) did not).
In short, this summary of Rule 60(b) jurisprudence indicates that the only way in which
Sims may be afforded relief is if the operator can (1) make a showing of “extraordinary
circumstances,” which includes proving that it was faultless, (2) establish that a denial of relief
will result in “extreme hardship,” and (3) demonstrate that the reason it deserves relief does not
fall under Rule 60(b)(1). A review of the record reveals that this burden was not met.
The central basis of the majority’s decision to grant relief is its attempt to transform this
garden-variety 60(b)(1) case into a (b)(6) proceeding by placing responsibility squarely at the
feet of the Secretary. The majority asserts that, “[w]hat makes this case extraordinary, and
therefore worthy of consideration under Rule 60(b)(6), is that MSHA affirmatively endorsed the
operator’s stated misunderstanding.” Slip op. at 6. Despite the fact that the burden in a Rule
60(b) case is on the operator to show that relief is warranted, the bottom line here is that my

39 FMSHRC Page 1376

colleagues reopen this proceeding because MSHA did not tell Sims that it had not properly
contested the issuance of the withdrawal order. In effect they contend that this changes Sims’
acknowledged “mistake” into Rule 60(b)(6)-worthy conduct. The effect of shifting this
responsibility onto MSHA, is to potentially transform many future 60(b)(1) cases of operator
mistake into (b)(6) proceedings (with no one-year time limits) simply because MSHA fails to
inform an operator about the problems with its case.
My colleagues base their decision to grant relief specifically on the grounds that the
Secretary failed to tell the operator it had erred and MSHA “prepared for the case as though it
would involve the imminent danger order.” Slip op. at 5-6. As noted above, however, it is not the
Secretary’s responsibility to tell the operator that it had failed to effectively contest the order
(although it is certainly appropriate for a Solicitor to make this argument to a Judge). Moreover,
the record does not reflect how the Secretary “prepared for the case.” The penalty petition which
did not mention Order No. 882352 (because, of course, no penalty is assessed for an imminent
danger order), a notice of appearance and prehearing report are the only pre-trial submissions
from the Secretary.
The majority also faults the Secretary for referring to the imminent danger order in its
prehearing report. Slip op. at 6. But even if the Secretary’s prehearing report created confusion
regarding the validity of the contest of the order, that confusion was short-lived, because three
days later (the next business day after the filing of the Secretary’s pre-hearing report), during a
conference call, both the Judge and the Secretary questioned whether Sims had properly filed a
contest.7
Thus the majority fails to make the case that “extraordinary circumstances” exist and that
the operator was faultless. It provides no reason why this motion should not be considered under
Rule 60(b)(1) (and thus be ruled untimely).
Moreover, the majority’s opinion directly conflicts with the Commission’s decision in
Celite Corp. That case involved a late-filed contest of a penalty and a motion to reopen that was
filed over a year after the order became final. There had been a miscommunication between
counsel for the operator and the Secretary, wherein both apparently failed to realize that the only
remedy available to Celite was for the Commission to reopen the order that had gone final,
subject to the time limits of Rule 60(b). Celite Corp., at 28 FMSHRC at 107. We denied relief,
explaining that “[t]his misunderstanding of well-established Commission law cannot be grounds
for relief under Rule 60(b)(6). Id. Instead, it is an error that falls squarely within the ambit of
Rule 60(b)(1).” We adopted the identical rationale in Newmont USA Limited, 31 FMSHRC 808

7

The majority also states that the operator is entitled to relief because it acted diligently
and pursued its claim rigorously (for instance, it participated in pre-hearing procedures and filed
updates to the court). Slip op. at 5-6. However, an operator’s responsible litigation of its case has
little or nothing to do with whether “extraordinary circumstances” exist to warrant relief under
Rule 60(b)(6) and does not remove its actions from the purview of Rule 60(b)(1).

39 FMSHRC Page 1377

(July 2009), which involved a similar misunderstanding between the operator and the counsel
from the U.S. Department of the Treasury who handled the penalty collection matter.8
Neither Sims nor the majority argue that a denial of the motion to reopen will result in
“extreme hardship,” the final factor that must be demonstrated to obtain relief under Rule
60(b)(6)). This is not surprising since, as noted above, the imminent danger order was instantly
terminated, and no penalty was assessed.
In conclusion, the majority has failed to demonstrate that Sims’ mistake in not following
our procedural rules and filing a proper notice of contest of the imminent danger order rises to
the level of “extraordinary circumstances.” It has also failed to show why the case should not be
considered under Rule 60(b)(1). Finally, there is absolutely no showing of hardship to the
operator if its motion is denied, since the order was terminated long ago and no allegation of
harm has been presented.
By re-opening this matter and sending it back to the Judge (who as previously noted
issued his decision on the related citation on January 13, 2017, a decision currently on appeal
before us), the majority disregards longstanding Commission and court precedent in this area to
reach an outcome that ultimately will have no practical significance. Accordingly, I respectfully
dissent.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

8

Master Products, 33 FMSHRC 645 (Apr. 2011), on which the majority relies, is
distinguishable from the instant case. In Master Products (a case in which I dissented), the
operator mailed a penalty contest to the wrong MSHA office, but MSHA verbally confirmed that
it had received the contest. Id. at 650. The majority in Master Products concluded that the
operator failed to take action within one year of the order becoming final because it reasonably
believed none was needed due to the agency’s silence and earlier representations. Id. at 651.
Here, nothing occurred within one year of the imminent danger order becoming final that would
have led Sims to reasonably believe it had filed a valid contest. MSHA certainly never verbally
confirmed that it had and, as demonstrated above, even a cursory reading of our procedural rules
would have disabused Sims of the notion that it had properly filed a notice of contest of the
imminent danger order with the Commission. (The Secretary’s pre-hearing report, on which the
majority relies, was filed after the one year period had passed, and, as noted above, any influence
it might have had on Sims’ belief that it had properly contested the order must have been
fleeting, because on the next business day both the Judge and the Secretary raised the possibility
that the contest had not properly been filed).

39 FMSHRC Page 1378

Distribution:
W. Ben Hart, CMSP
W. Ben Hart & Associates
2916 East Park Avenue
Tallahassee, Florida 32301
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 1379

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

July 10, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket No. CENT 2016-0190
A.C. No. 23-00134-382897

BUZZI UNICEM USA
BEFORE:

Althen, Acting Chairman; Jordan, Young, and Cohen, 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 January 28, 2016, the Commission received from Buzzi
Unicem USA (“Buzzi”) 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 another 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). Under Rule 60(c) of the Federal Rules of Civil Procedure, a Rule 60(b) motion
should be made within a reasonable time.
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 8, 2015, and became a
final order of the Commission on July 8, 2015. Buzzi asserts that MSHA received its contest
late, in part due to the assessment form incorrectly listing an old address for MSHA’s Civil

39 FMSHRC Page 1380

Penalty Compliance Office (“CPCO”). 1 Buzzi’s safety and health manager first sent its contest
form to the old address, then re-sent the form to the correct MSHA address after the initial form
was returned undelivered. Buzzi’s safety and health manager later contacted MSHA to ask about
the case and learned that the proposed penalty assessment had become a final order.
The Secretary opposes the request to reopen, asserting that the operator’s initial attempt
to send its contest form was made too late, regardless of MSHA’s change of address. MSHA
further asserts that the operator’s motion to reopen was not filed within a reasonable time
because Buzzi waited five months after receiving a delinquency notice before filing its motion to
the Commission. According to MSHA’s records, a delinquency notice was mailed to the
operator on August 24, 2015, and this case was referred to the Department of Treasury for
collection on October 29, 2015.
It is unclear from the record when Buzzi first attempted to file its contest of MSHA’s
proposed penalty assessment. We have previously acknowledged the problems that resulted
from MSHA’s address change and liberally granted operators’ requests to reopen proceedings
filed during that period. See Allstate Materials, LLC, 38 FMSHRC 645, 646 (Apr. 2016). Even
assuming Buzzi’s initial effort was made late, in these special circumstances, we would err on
the side of concluding that the late filing was the result of an excusable mistake.
Although the Secretary also asserts that Buzzi should have filed its motion to reopen
more promptly, the delinquency notice was delivered shortly after the pro se operator sent its
contest to the correct MSHA address. Given the timing of these events, the operator’s failure to
understand that the delinquency notice indicated the proposed assessment had become a final
order is, in this instance, excusable. Upon later inquiring about the citation and learning the
contest had arrived late, the operator promptly moved to reopen this matter.

1

MSHA’s office moved to a new address on July 15, 2015.

39 FMSHRC Page 1381

In light of our past precedent addressing the relocation of MSHA’s office, we 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. 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/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 1382

Distribution:
Shannon Moreland
Safety and Health Manager
2524 S. Sprigg Street
Cape Girardeau, MO 63701
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 1383

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

July 10, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. PENN 2015-185-M
A.C. No. 36-09386-376805

v.
ORIGINAL FUELS, INC.
BEFORE:

Althen, Acting Chairman; Jordan, Young, and Cohen, 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 October 9, 2015, the Commission received from Original
Fuels, Inc. (“Original Fuels”) a motion seeking to reopen a penalty assessment proceeding and
seeking relief from the Default Order entered against it.
On March 23, 2015, the proposed assessment was delivered to the operator. On March
25, 2015, the operator timely contested the assessment. On April 6, 2015, a Petition for
Assessment of Civil Penalty was mailed to the operator’s physical address. The operator did not
respond.
On July 10, 2015, the Chief Administrative Law Judge issued an Order to Show Cause in
response to Original Fuels’ failure to answer the Secretary’s Petition. The Order to Show Cause
stated that it would become a default order on August 10, 2015, if the operator failed to file an
answer to the petition before that date.
The Commission’s records show that the operator timely filed a response to the show
cause order on August 4, 2015. The operator’s response to the show cause order clearly sets
forth its reasons for contesting the relevant penalties. In its August 4 response to the
Commission, the operator further represents that it sent a copy of the letter to the Secretary . See
Aug. 4, 2015 Letter.
The Secretary opposes the motion to reopen, asserting that the operator failed to timely
respond to the petition. In his Opposition to Request to Reopen Penalty Assessment, the
Secretary acknowledges the operator’s August 4 response to the show cause order. Sec’y Opp.
at 5. Despite this, MSHA proceeded as though the show cause order had become a default order
on August 10, 2015, and mailed a delinquency notification to Original Fuels on September 29,
2015. The Secretary does not address the substance of the August 4 letter or its effective
response to the Judge’s Order to Show Cause.

39 FMSHRC Page 1384

Having reviewed Original Fuels’ request and the Secretary’s response, we conclude that
the operator was not in default under the terms of the Order to Show Cause because it timely
complied with the order. See Vulcan Construction Materials, 33 FMSHRC 2164 (Sept. 2011).
The alleged default is 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/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 1385

Distribution:
David Osikowicz
President
Original Fuels Inc.
P.O. Box 343
Punxsutawney, PA 15767-0343
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 1386

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

July 10, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. SE 2015-112-M
A.C. No. 01-03130-368269

v.
COUCH AGGREGATES LLC
BEFORE:

Althen, Acting Chairman; Jordan, Young, and Cohen, 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 22, 2015, the Commission received from
Couch Aggregates LLC (“Couch”) a motion seeking to reopen a penalty assessment proceeding
and seeking relief from the Default Order entered against it.
The Mine Safety and Health Administration (“MSHA”) sent the proposed penalty
assessment at issue to Couch in December 2014. Couch properly contested the assessment,
listed the contesting official as its counsel, Jonathan Holloway, and provided his personal
address for any correspondences. On January 16, 2015, MSHA mailed a Petition for Assessment
of Civil Penalty to Couch’s Alabama address, rather than Holloway’s address. Respondent did
not file an answer to the Petition.
On July 10, 2015, the Chief Administrative Law Judge issued an Order to Show Cause in
response to the operator’s failure to answer the Secretary of Labor’s penalty petition. By its
terms, the Order to Show Cause was deemed a Default Order on August 10, 2015, because the
operator failed to file an answer within 30 days. Like the proposed assessment and the penalty
petition, the Order to Show Cause was sent to the operator’s Alabama address of record.
Holloway avers that he did not receive a copy of the Order to Show Cause until
September 22, 2015, when counsel for the Secretary forwarded him a copy of the order via email.
The Secretary opposes the request to reopen, noting that the petition was correctly mailed
to the operator’s address of record and received on January 19, 2015. In addition, the Secretary
asserts that counsel subsequently emailed a copy of the penalty petition to Holloway on June 19,
2015, and reminded the operator’s attorney that it still needed to file an answer in the matter.
Under the Mine Act and the Commission’s procedural rules, the Chief Administrative
Law Judge’s Order of Default became a final order of the Commission 40 days after the default

39 FMSHRC Page 1387

occurred. See 30 U.S.C. § 823(d); 29 C.F.R. § 2700.70(a). In evaluating requests to reopen final
orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil
Procedure and has granted relief on the basis of mistake, inadvertence, excusable neglect, or
another 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).
Commission Procedural Rule 66 requires that an order to show cause be issued to a party
before an entry of default against that party. 29 C.F.R § 2700.66(a). Commission Procedural
Rule 7 requires that “[w]henever a party is represented by an attorney or other authorized
representative who has entered an appearance on behalf of such party . . ., service thereafter shall
be made upon the attorney or other authorized representative.” 29 C.F.R. § 2700.7. Although
Holloway was listed as counsel for Couch, Commission records indicate that the July 10 Show
Cause Order in this matter was delivered to Couch’s office, rather than to Holloway.
Accordingly, a default order should not have been entered against the operator. Holloway
received a copy of the show cause order from the Secretary’s counsel on September 22, 2015,
and promptly filed a request that the case be reopened that same day.
Given Holloway’s prompt filing of the motion to reopen after receiving the Order to
Show Cause, we find that the operator acted in good faith and filed its motion to reopen within a
reasonable time upon learning of the default. In the interest of justice, we therefore reopen the
proceeding, vacate the Default Order, and remand this matter 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/ William I. Althen
William I. Althen, Acting Chairman
/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

39 FMSHRC Page 1388

Distribution:
Jonathan T. Holloway, Esq.
Holloway & Hardy, PLLC
369 N. Main Street
Crestview, FL 32536
Jean C. Abreu
Office of the Solicitor
U.S. Department of Labor
61 Forsyth Street, S.W.
Room 7T10
Atlanta, GA 30303
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 1389

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

July 10, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2016-32
A.C. No. 01-01401-387866 A

v.
STEVE INGRAM, employed by JIM
WALTER RESOURCES, INC.

BEFORE:

Althen, Acting Chairman; Jordan, Young, and Cohen, 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 2, 2015, the Commission received a motion
from Steve Ingram (“Ingram”) seeking to reopen a penalty assessment under section 110(c) of
the Mine Act, 30 U.S.C. § 820(c), that had become a final order of the Commission.
Under the Commission’s Procedural Rules, an individual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
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 another 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).

39 FMSHRC Page 1390

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment for the alleged 110(c) violation was delivered
on August 3, 2015, and became a final order of the Commission on September 2, 2015. A
delinquency notification was mailed to the individual on October 19, 2015.
Ingram asserts that Order No. 8524966, a 104(d)(1) order, was the basis for Ingram’s
alleged violation under section 110(c), 30 U.S.C. § 820(c). However, as part of a settlement
between the Secretary and Ingram’s employer, this order was modified to a 104(a) citation.
Ingram contends that by operation of law, a modification of a section 104(d) order to a section
104(a) citation precludes individual liability under section 110(c). Therefore, Ingram argues that
this matter must be reopened so that the 110(c) proceeding can be dismissed.
The Secretary does not oppose the request to reopen, does not dispute Ingram’s
contentions, and requests that the Commission reopen this 110(c) proceeding. After the
Commission reopens this proceeding, the Secretary suggests that MSHA will move to dismiss it.
Having reviewed Ingram’s request and the Secretary’s response, given that both parties
agree that this matter should be reopened and then dismissed, 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 either dismiss this matter or file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 1391

Distribution:
Guy W. Hensley, Esq.
Walter Energy, Inc.
3000 Riverchase Galleria
Suite 1700
Birmingham, AL 35244
David M. Smith, Esq.
John B. Holmes III, Esq.
Allen B. (“Josh”) Bennett
Maynard, Cooper and Gale, P.C.
1901 6th Avenue North
2400 AmSouth/Harbert Plaza
Birmingham, AL 35203
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 1392

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

July 10, 2017

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2016-130-M
A.C. No. 42-02383-389320

v.
APPLIED MINERALS, INC.

BEFORE:

Althen, Acting Chairman; Jordan, Young, and Cohen, 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”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he
does not oppose the motion.

39 FMSHRC Page 1393

Having reviewed movant’s unopposed motion to reopen, we 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. 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.
The granting of this motion is not precedential for the consideration of any other motion
before the Commission.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 1394

Distribution:
William Gleeson
Applied Minerals, Inc.
110 Greene Street
Suite 1101
New York, NY 10012
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 1395

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

July 25, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. LAKE 2009-35

v.
THE AMERICAN COAL COMPANY
DIRECTION FOR REVIEW
The petition for discretionary review filed by The American Coal Company is granted in
part and denied in part. The Commission grants review regarding the first five questions
presented in the petition. The Commission denies review regarding the question of whether the
Judge applied the incorrect legal standard in assessing a penalty for Order No. 7490599.

/s/ William I. Althen
William I. Althen, Acting Chairman

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

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

39 FMSHRC Page 1396

ADMINISTRATIVE LAW JUDGE DECISIONS

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

July 12, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2016-463-M
A.C. No. 16-01536-414747
Docket No. CENT 2016-519-M
A.C. No. 16-01536-417024

v.
SOUTHERN AGGREGATES, LLC,
Respondent

Mine: Plant 9
DECISION

Appearances:

Jim DoByns, Conference and Litigation Representative, U.S. Dept. of
Labor, MSHA, Dallas, Texas; Christopher Lopez-Loftis, Esq., U.S. Dept.
of Labor, Office of the Solicitor, Dallas, Texas, for Petitioner;
Justin Winter, Esq. and Bryan Carey, Esq., Conn Maciel Carey PLLC,
Washington, D.C., for Respondent.

Before:

Judge Bulluck

These cases are before me upon Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health Administration
(“MSHA”) against Southern Aggregates, LLC, (“Southern Aggregates”), pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815(d). The
Secretary seeks a total penalty of $214.00 for two alleged violations of his mandatory safety
standards.
A hearing was held in New Orleans, Louisiana. The following issues are before me: (1)
whether Southern Aggregates violated the cited standards; (2) whether the violations were
attributable to the level of gravity alleged; (3) whether the violations were attributable to the
degree of negligence alleged; and (4) the appropriate penalty. The parties’ Post-hearing Briefs
are of record.
For the reasons set forth below, I VACATE one citation, AFFIRM one citation, as
modified, and assess a penalty against Respondent.

39 FMSHRC Page 1397

I.

FACTUAL BACKGROUND

Southern Aggregates operates Plant 9, a surface sand and gravel mine in Amite,
Louisiana, which employs 11 miners. Ex. R-1 at 1. Southern Aggregates’ mining process
involves dredging sand from a pond into two plants consisting of belt lines, screw conveyors, a
log washer, and a scale house. Tr. 20. Kevin Black, Plant 9 Vice President and General Manager,
and Duane “Bull” Lanier, Plant 9 Manager, were working at the Plant at the time of the
inspection. Tr. 79, 81; Ex. R-1 at 2.
On May 26, 2016, MSHA Inspector O’Neal Robertson, accompanied by Bull Lanier,
conducted a regular inspection of Plant 9 that resulted in three citations, two of which are at issue
in this proceeding: failure to replace a discharged fire extinguisher in the cab of an excavator
(Ex. P-1); and failure to maintain a guard on the pea gravel beltline to withstand the effect of
normal operation (Ex. P-3). Tr. 19, 21.
II.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

Citation No. 8964279

Inspector Robertson issued 104(a) Citation No. 8964279 on May 26, 2016, alleging a
violation of section 56.4203 that was “unlikely” to result in an injury that could reasonably be
expected to result in “lost workdays or restricted duty,” and was caused by Southern Aggregates’
“moderate” negligence.1 The “Condition or Practice” is described as follows:
Fire extinguishers shall be recharged or replaced with a fully charged extinguisher
promptly after any discharge. The five lbs. fire extinguisher in the John Deere
excavator showed recharged on the gauge. The excavator is used as needed to do
various clean up jobs around the plant. A miner has been using this machine since
the start of his shift. A miner could receive smoke or burn type injuries from not
being able to extinguish a fire at its early stages.
Ex. P-1. The citation was terminated on May 26, after Southern Aggregates replaced the
extinguisher in the excavator.

1

30 C.F.R. § 56.4203 provides that “[f]ire extinguishers shall be recharged or replaced
with a fully charged extinguisher promptly after any discharge.” The Secretary’s unopposed
Motion to Plead in the Alternative a violation of 30 C.F.R. § 4200(b)(2) was granted on October
21, 2016.
30 C.F.R. § 56.4200(b)(2) provides that “onsite firefighting equipment shall be
[s]trategically located, readily accessible, plainly marked, and maintained in fire-ready
condition.”

39 FMSHRC Page 1398

1.

Fact of Violation

In order to establish a violation of one of his mandatory safety standards, the Secretary
must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone
Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152) (Nov. 1989)).
The Secretary contends that Southern Aggregates failed to replace a fire extinguisher
which, according to its pressure gauge, had been discharged. In the alternative, the Secretary
argues that the gauge reading demonstrated that the extinguisher was not being maintained in
fire-ready condition because a miner would choose not to use it in the event of a fire. Sec’y Br.
at 6-7.
Southern Aggregates, relying on the National Fire Protection Association’s Standard for
Portable Fire Extinguishers, argues that a gauge reading, alone, is insufficient to establish a
violation of either standard, and that the fire extinguisher had not been discharged and was fire
ready. Resp’t Br. at 7-9 (citing 10 NATIONAL FIRE PROTECTION ASSOCIATION, STANDARD FOR
PORTABLE FIRE EXTINGUISHERS §§ 7.1.7.1.1, 7.2.2, A.7.7.1.3 (2013 ed.)). It cites several cases in
support of its position that the operator can rebut evidence of discharge with other indications of
an extinguisher’s condition. Resp’t Br. at 6-8; see Warren E. Manter Co., Inc., 11 FMSHRC 805
(May 1989) (ALJ) (dismissing a violation of section 56.4203 where the inspector failed to note
an extinguisher’s pressure gauge reading, and the operator averred that the extinguisher was
full); Paul Hubbs Constr. Co., 9 FMSHRC 1368 (Aug. 1987) (ALJ) (upholding a violation of
section 56.4200(b)(2) where the inspector observed a “completely discharged” fire extinguisher
in a trailer, and the operator failed to prove that it had been discharged by vandalism); and
Brighton Sand & Gravel, 13 FMSHRC 127 (Jan. 1991) (ALJ) (upholding a violation of section
56.4203 by relying upon the low gauge reading).
Inspector Robertson came to MSHA in 2015, having worked in the mining industry for
21 years, with experience and training in diesel engine maintenance and fire suppression. Tr. 1618. He had performed approximately 160 MSHA inspections, and cited fire extinguisher and
guarding violations. Tr. 17-19. Robertson testified that on May 26, he inspected the cab of a
Southern Aggregates excavator that had been operated recently, and observed that the gauge on a
five-pound fire extinguisher displayed “recharge.”2 Tr. 24, 45, 62; Exs. P-1 at 2, P-2 at 1; Ex.
R-1 at 5. He stated that the extinguisher showed no signs of damage, that the firing pin and ziptie were intact, that he was not told that it had been used, and that Southern Aggregates diligently
performs preshift examinations. Tr. 30, 45-46. He opined that the excavator operator was
exposed to burn and smoke inhalation hazards because the extinguisher, possibly partially or
even fully inoperable, may have been ineffective in timely extinguishing a fire. Tr. 28-29. He
determined that such injury would have been unlikely, however, because the excavator operator
would have been able to leave the cab in the event of a fire, and other fire extinguishers were
accessible. Tr. 29.
2

Robertson’s testimony variously refers to the gauge as indicating either “discharge” or
“recharge.” Both terms have the same meaning and effect.

39 FMSHRC Page 1399

He testified that section 56.4203 requires operators to replace or recharge fire
extinguishers that have been discharged, and that section 56.4200(b)(2) requires operators to
maintain fire extinguishers in ready-to-use condition. Tr. 24. He explained that a fire
extinguisher is operated by removing the firing (or retaining) pin, which breaks the zip-tie
holding the pin in place, thereby allowing the trigger to be squeezed to release the fire
extinguishing chemical. Tr. 47-49. Finding an intact zip-tie and firing pin, without more, he
testified, is an insufficient basis for concluding that the extinguisher had not been discharged,
considering that he has personally encountered extinguishers that have leaked propellant because
of being jostled around. Tr. 67-71, 73-74. Nor would such leaks be detectible by weighing the
extinguisher, he stated, because propellant weighs very little compared to the extinguishing
chemical which accounts for most of its weight. Tr. 75. Instead, he explained, miners are trained
to rely upon the gauge reading, which indicates the pressure of the gaseous propellant that
dispenses the extinguishing chemical and, even in a fire emergency, miners would seek an
alternative to using an extinguisher indicating that it needs recharging. Tr. 25-26, 70-71.
VP Kevin Black testified that he instructed an employee to deliver the cited extinguisher
to him on the day of the inspection. Tr. 85. He opined that the gauge was on “recharge” because
it may have been faulty, as opposed to the extinguisher having been discharged. Tr. 87. He
reached that conclusion because the fire extinguisher was in good condition, the firing pin and
zip-tie were intact, its weight was consistent with that of a fully charged extinguisher, the
preshift examination noted no defects and, based upon his management position, any event
requiring its discharge would have been reported to him. Tr. 82-86. Furthermore, he noted that
miners would have replaced the extinguisher had the “recharge” gauge reading been observed.
Tr. 104.
Robertson and Black both testified that during the later post-inspection close-out meeting,
Black told Robertson that he had weighed the fire extinguisher and found the weight to be
consistent with that of a fully-charged unit, i.e., slightly less than five pounds. Tr. 30-31, 49-50,
86. Robertson also corroborated Black’s testimony that he offered to discharge the extinguisher
to prove it operable, but that Robertson declined to consider its weight or a discharge test
because of his uncertainty as to whether the extinguisher had been switched. Tr. 50, 88-89. Black
stated that he was of the impression that Robertson would be issuing the citation in any case and,
therefore, he did not discharge it. Tr. 88-89.
It is uncontested that the pressure gauge of the fire extinguisher was in the “recharge”
position, that the extinguisher was otherwise in good condition, that its weight was slightly less
than five pounds, and that the firing pin and zip-tie were intact. I credit Black’s testimony that he
would have been made aware of any event involving its intentional discharge and, in conjunction
with Robertson’s testimony attesting to Southern Aggregates’ diligence in performing
examinations, and Black’s assertion that the May 26 preshift examination revealed no defects on
it, I find that the low pressure reading manifested some time after the preshift examination, and
that the cause was other than intentional discharge. Simply put, the Secretary has not presented
sufficient evidence to establish that Southern Aggregates discharged the fire extinguisher,
triggering a duty to recharge or replace it, as opposed to the “recharge” indicator being a
condition of leaked propellant or a faulty gauge. Therefore, I find that the Secretary has failed to
establish a violation of section 56.4203.

39 FMSHRC Page 1400

Such is not the case, however, when analyzing the facts under the alternatively pled
standard, section 56.4200(b)(2), which requires Southern Aggregates to maintain its fire
extinguishers in fire-ready condition. Robertson offered credible, unrebutted testimony that
miners are trained to rely on the gauge and, therefore, would forego use of a fire extinguisher
indicating “recharge” in the event of an emergency. This position is persuasive, given that fire
emergencies generally leave no time for testing of firefighting equipment. Southern Aggregates’
reliance on sections of the Standard for Portable Fire Extinguishers, cited to contend, in essence,
that a fire extinguisher may be fire ready even if the gauge is malfunctioning, is misplaced.
Those sections merely enumerate criteria for inspecting fire extinguishers, including weighing
the units and checking their gauges; they do not establish that fire extinguishers are fire ready
where the gauges indicate otherwise. Similarly, none of the cases cited by the operator
undermines the central importance of reliance on the pressure gauge to determine fire readiness.
On the contrary, the citation in Manter was vacated precisely because the inspector failed to
check the gauge. Thus, Robertson’s sole reliance on the fire extinguisher’s gauge is consistent
with the reasonable proposition that an extinguisher cannot be fire ready where a miner cannot
rely upon the visual cue provided, especially during an emergency, to alert him immediately to
its condition. Moreover, by Southern Aggregates’ own account, its miners would have replaced
the extinguisher had they noticed the gauge reading. Accordingly, the Secretary has established a
violation of section 56.4200(b)(2).
2.

Gravity and Negligence

The record establishes the unlikelihood of the excavator operator suffering injuries
resulting in lost workdays or restricted duty from smoke inhalation and burns in the event of a
fire, because of ease of egress from the cab and accessibility of other fire extinguishers. The
Secretary argues that Southern Aggregates was moderately negligent under either standard
because, as mitigation, it examines its fire extinguishers daily. Sec’y Br. at 8. As noted above,
the preshift examination of the fire extinguisher was unremarkable, and the “recharge” indicator
developed as the excavator was operating during the shift. No prudent operator, exercising
reasonable care, would have known of the gauge movement under these circumstances and,
accordingly, I find that Southern Aggregates was not negligent in violating the standard.
B.

Citation No. 8964281

Inspector Robertson issued 104(a) Citation No. 8964281 on May 26, 2016, alleging a
violation of section 56.14112(a)(1) that was “unlikely” to result in an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Southern Aggregates’ “moderate” negligence.3 The “Condition or Practice” is described as
follows:
Guards shall be constructed and maintained to withstand the vibration, shock, and
wear to which they will be subjected during normal operation; and shall be
3

30 C.F.R. § 56.14112(a)(1) provides that “[g]uards shall be constructed and maintained
to [w]ithstand the vibration, shock, and wear to which they will be subjected during normal
operation.”

39 FMSHRC Page 1401

securely in place while machinery is being operated except when testing or
making adjustments which cannot be performed without removal of the guard.
The guard for the p gravel stacker belt had fallen off exposing the rotating shaft
on the head pulley. The opening on the guard measured 3 ft. wide x 4½ ft. long.
Miners come in this area as needed to do maintenance and repairs. A miner could
receive entanglement type injuries from contacting rotating machinery.
Ex. P-3. The citation was terminated on May 26, when Southern Aggregates secured the guard in
place.
1.

Fact of Violation

The Secretary contends that a head-pulley guard had detached from its mounting points,
creating an opening for miners to inadvertently contact moving parts. Sec’y Br. at 9-10. The
Secretary cites two cases in which violations were found under section 56.14112(b) to support
his contention that evidence of the detached guard, by itself, is sufficient to find a violation under
section 56.14112(a)(1). Sec’y Br. at 10-11 (citing Washington Rock Quarries, Inc., 28 FMSHRC
1080 (Dec. 2006) (ALJ); and Jamieson Co., 13 FMSHRC 1500 (Sept. 1991) (ALJ)).
Southern Aggregates argues that there is no evidence that the guard had not been
designed or maintained to withstand normal operation, and that the citation should be vacated.
Resp’t Br. at 10-12 (citing Lakeview Rock Products, Inc., 19 FMSHRC 321 (Feb. 1997) (ALJ)
(vacating a section 56.14112(a)(1) order where no evidence was presented that the tail-pulley
guard came out of place as a result of normal operation)).
Robertson testified that section 56.14112(a)(1) requires guards to be constructed and
maintained to protect miners during normal equipment operation. Tr. 33. He stated that on May
26, while the plant was operating, he climbed the catwalk of the pea gravel belt, an incline
stacker beltline, until he reached the head-pulley area, situated approximately 20 to 25 feet above
ground, and that miners would periodically enter this area to perform maintenance or repairs. Tr.
33, 35, 36, 39, 52-53. He was shown two photographs that he took during the inspection, which
he described as depicting a metal guard that was leaning against the head-pulley mechanism and,
thus, was not positioned in its designated place. Tr. 34, 37; Ex. P-4 at 1-2. He testified that the
guard showed no signs of wear and tear, and was not bent, only rusted from age. Tr. 55. He
determined that the guard had come askew because the tabs (zip-ties or tie wire) securing it to
the frame had broken sometime before the inspection. Tr. 34, 37. He discussed this condition
with Bull Lanier, who told him that miners had been working in that area a couple of days before
the inspection. Tr. 39. Robertson testified that he could not remember whether, in fact, Lanier
told him that the guard had been removed in order to perform maintenance but, he surmised,
maintenance “very likely” explained the guard’s detachment. Tr. 56, 74.
Black testified that miners access the head-pulley monthly to perform greasing. Tr. 92.
When shown Robertson’s two photographs of the guard, he testified that the guard was askew
because the ties, either zip-ties or tie wire, holding it in place had “broke.” Tr. 91, 95; Ex. P-4 at
1-2. Finally, he stated that he did not know whether maintenance had been performed in the
head-pulley area before the inspection, but implied that Lanier would know. Tr. 111-12.

39 FMSHRC Page 1402

Commission judges have upheld section 56.14112(a)(1) violations where there is credible
evidence that the conditions of normal equipment operation caused the guards to dislodge. For
example, in Northshore Mining Company, a violation of section 56.14112(a)(1) was found upon
the inspector’s testimony that normal operation included exposure to corrosion from wet
processes and belt vibrations which caused the guard’s failure. 36 FMSHRC 426, 431-32 (Feb.
2014) (ALJ); see also Carder Inc., 27 FMSHRC 839, 842-44 (Nov. 2005) (ALJ) (finding a
violation of section 56.14112(a)(1) where the inspector testified that vibrations from normal
operation caused the guard to become loose). Conversely, citations have been vacated where
such causal evidence was lacking. For example, in Lakeview, a violation of section
56.14112(a)(1) for an out-of-place rear tail-pulley guard and side guard was vacated because the
Secretary’s evidence was limited to the danger posed by the openings between the dislodged
guards, and there was no evidence that the guards detached due to vibration, shock, or wear from
normal operation. 19 FMSHRC at 355-57. Similarly, in Lehigh Southwest Cement Company, a
violation of section 56.14112(a)(1) for a damaged guard on the tail-pulley was vacated because
the inspector’s notes and operator’s testimony indicated that the guard had been damaged by a
Bobcat skid-steer loader, an abnormal event unrelated to normal operation. 33 FMSHRC 340,
352 (Feb. 2011) (ALJ).
In this case, prior to the inspection, the ties securing the guard in place had broken or
been severed, and the guard had dislodged from its originally designated position. The guard was
observed to be in good condition, without signs of wear or tear, and I credit Robertson’s account
of what he was told, that maintenance had been performed a few days prior to the inspection.
Critically, no evidence was introduced as to the actual cause of the ties’ compromise, and
Robertson could only speculate as to the probability that the guard was displaced due to recent
maintenance. Here, as in Lakeview, there is no evidence of the stress generally imposed on the
guard by normal operation, let alone any evidence that operational stress specifically caused the
ties to break. Therefore, the record provides no basis from which to conclude that the guard
dislodged due to normal operation of the beltline, rather than from some abnormal incident, as in
Lehigh, or from deliberate severance of the ties during recent maintenance. Furthermore,
notwithstanding the exposure to the moving parts of the head-pulley, there is no evidence that the
guard, detached and leaning against the head-pulley, would not be able to withstand the
vibration, shock, and wear of continued normal operation. I note, at this juncture, that Southern
Aggregates was not cited under the standard requiring that guards be secured in place.
Accordingly, I find that the Secretary has failed to establish a violation of section
56.14112(a)(1), and Citation No. 8964281 must be vacated.4
III.

PENALTY

While the Secretary has proposed a civil penalty of $114 for Citation No. 8964279, the
judge must independently determine the appropriate assessment by proper consideration of the

4

The Secretary’s reliance on Washington Rock and Jamieson is misplaced because those
cases arose under a distinguishable standard, section 56.14112(b), requiring that guarding be
secured in place, whereas section 56.14112(a)(1) requires that guards be constructed and
maintained to withstand stresses of normal operation.

39 FMSHRC Page 1403

six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Co.,
5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984).
Applying the penalty criteria, and based upon a review of MSHA’s online records, I find
that Southern Aggregates is a small operator employing 11 miners, with an overall history of
violations that is neither a mitigating nor aggravating factor in assessing appropriate penalties (in
the 15 months preceding the inspection, the operator had been cited for eight violations,
unrelated to any standard at issue in this proceeding). As stipulated, Southern Aggregates
demonstrated good faith in achieving rapid compliance after notice of the violations. Jt. Stip. 7.
Since Southern Aggregates has not put forth any evidence that imposition of the proposed
penalty would adversely affect its ability to remain in business, “it is presumed that no such
adverse [e]ffect would occur.” Sellersburg, 5 FMSHRC at 294 (citing Buffalo Mining Co., 2
IBMA 226, 247-48 (Sept. 1973)).
The remaining criteria involve consideration of the gravity of the violation, and Southern
Aggregates’ negligence in its commission. These factors have been discussed fully, respecting
each violation. Therefore, considering my findings as to the six penalty criteria, the penalty is set
forth below.
Respecting Citation No. 8964279, it has been established that this violation of section
56.4200(b)(2) was unlikely to cause injuries resulting in lost workdays or restricted duty, that
Southern Aggregates was not negligent in violating the standard, and that it was timely abated.
Based on these factors, and considering the operator’s lack of negligence, I find that a penalty of
$50.00 is appropriate.

39 FMSHRC Page 1404

ORDER
WHEREFORE, it is ORDERED that Citation No. 8964281 (Docket No. CENT 2016463-M) is VACATED, and that Citation No. 8964279 (Docket No. CENT 2016-519-M) is
AFFIRMED, as modified, to “no negligence.”
It is further ORDERED that Southern Aggregates, LLC, PAY a civil penalty of $50.00
within thirty (30) days of the date of this Decision.5 ACCORDINGLY, these cases are
DISMISSED.

/s/ Jacqueline R. Bulluck
Jacqueline R. Bulluck
Administrative Law Judge

Distribution:
Jim DoByns, Conference and Litigation Representative, U.S. Department of Labor, MSHA,
1100 Commerce Street, Room 462, Dallas, TX 75242
Christopher Lopez-Loftis, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin
Street, Suite 501, Dallas, TX 75202
Justin Winter, Esq., Bryan Carey, Esq., Conn Maciel Carey PLLC, 5335 Wisconsin Avenue,
N.W., Suite 660, Washington, DC 20015
/tcp

5

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. Please include Docket
number and A.C. number.

39 FMSHRC Page 1405

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

July 12, 2017
SECRETARY OF LABOR,
U.S. DEPARTMENT OF LABOR on
behalf of, STACEY WAYNE PUCKETT,
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEVA 2017-426

v.
PANTHER CREEK MINING, LLC
Respondent

Mine: American Eagle Mine
Mine ID: 46-05437

SUMMARY DECISION
AND
ORDER GRANTING TEMPORARY REINSTATEMENT
Appearances:

Kathleen F. Borschow, Esq., Robert S. Wilson, Esq., Office of the
Regional Solicitor, U.S. Department of Labor, Arlington, Virginia for
Complainant;
Melanie J. Kilpatrick, Rajkovich, Williams, Kilpatrick & True, PLLC,
Lexington, Kentucky for Respondent

Before:

Judge Feldman

This matter is before me based on an application for temporary reinstatement filed by the
Secretary of Labor (“Secretary”), on behalf of Stacey Wayne Puckett, against Panther Creek
Mining, LLC, (“Panther Creek”) pursuant to section 105(c)(2) of the Federal Mine Safety and
Health Act of 1977 (“the Mine Act” or “the Act”). 30 U.S.C. § 815(c)(2). This statutory
provision prohibits operators from discharging or otherwise discriminating against miners
because they have engaged in safety related protected activity. Section 105(c)(2) of the Act
authorizes the Secretary to apply to the Commission for the temporary reinstatement of a miner
who has been terminated pending the full resolution of the merits of the underlying
discrimination complaint. At the time of Puckett’s termination on May 5, 2017, Puckett had been
employed as a fireboss at Panther Creek’s American Eagle Mine for approximately 18 months.
App. for Temporary Reinstatement at 3.
The Secretary’s application is supported by a sworn affidavit by Special Investigator
Delbert Carroll, the official investigating the merits of Puckett’s underlying discrimination
complaint. In his application, the Secretary alleges, inter alia, that Puckett was terminated shortly
after he spoke to MSHA Investigator Russell Richardson regarding a 110(c) investigation at the
American Eagle Mine. Id. at 3-4.

39 FMSHRC Page 1406

The scope of a temporary reinstatement proceeding is very narrow. As discussed below,
the issue to be decided is whether or not the miner’s discrimination complaint has been
frivolously brought. The Secretary’s temporary reinstatement application is primarily based on
Puckett’s interviews with MSHA Special Investigator Richardson that occurred on April 13 and
April 18, 2017, shortly prior to Puckett’s May 5 termination.
The Secretary also relies on Puckett’s reported series of complaints to mine management
in February 2017 that he did not have adequate time to complete his fireboss duties. Sec’y Br. at
5 n.2. As discussed herein, since the Secretary is entitled to prevail as a matter of law in this
reinstatement proceeding based on Puckett’s interaction with Richardson, Puckett’s alleged
February 2017 complaints need not be addressed in this proceeding.
I.

Procedural Background

A conference call was conducted on June 21, 2017, in order to clarify the issues. During
the course of the conference call, counsel for Panther Creek represented that Panther Creek was
not aware of Puckett’s conversations with Richardson. Consequently, Panther Creek contended
that Puckett’s termination was in no way motivated by Puckett’s participation in a 110(c)
investigation. Significantly, however, the company did not deny that Puckett’s interviews with
Richardson occurred shortly prior to Puckett’s May 5 termination.
Commission Rule 45(b) provides that the Secretary’s assertion that a miner’s
discrimination complaint has not been frivolously brought shall be accompanied by a supporting
affidavit setting forth the Secretary’s preliminary investigative findings. 29 C.F.R. § 2700.45(b).
As there appeared to be an undisputed coincidence in time between the 110(c) investigation
interviews and Puckett’s May 5 termination, I advised the parties that I would entertain a motion
for summary decision by the Secretary supported by a sworn affidavit from MSHA Investigator
Richardson. As time is of the essence, June 23 was established as the filing date for the
Secretary’s motion for summary decision, and June 28 was set for Panther Creek’s opposition if
Panther Creek believed that there were outstanding questions of material fact necessitating an
evidentiary hearing.
On June 23, 2017, the Secretary filed a motion for summary decision with an
accompanying brief (“Sec’y Br.”) supported by a sworn affidavit from a relevant MSHA
supervisory official. However, the affidavit provided was not that of Investigator Richardson,
who was reportedly on vacation until June 27. Sec’y Br. at 2. In Richardson’s stead, the affidavit
was furnished by Supervisory Special Investigator Kelly Acord. Id. The sworn affidavit states
that Acord is currently supervising the investigation of Puckett’s discrimination complaint and
Richardson’s investigation of potential section 110(c) violations at Panther Creek’s American
Eagle Mine. Sec’y Ex. C at 1-2.
In support of the summary decision, the affidavit avers that Acord has personally
confirmed with Richardson and Carroll that Puckett spoke to Richardson on two occasions
– April 13 and April 18 – approximately two weeks prior to Puckett’s May 5 termination. Id.
As discussed below, not withstanding the fact that Panther Creek does not challenge Puckett’s
conversations with Richardson, the hearsay information provided in Acord’s affidavit is

39 FMSHRC Page 1407

admissible in this administrative proceeding. Mid-Continent Resources, Inc., 6 FMSHRC 1132,
1135 (May 1984) (citation omitted) (acknowledging that “[h]earsay evidence is admissible in
[Commission] proceedings so long as it is material and relevant.”). Acord’s affidavit is worthy of
consideration, as Acord is supervising the investigations concerning Puckett’s discrimination
complaint as well as Panther Creek management’s possible 110(c) liability.
On June 29, 2017, Panther Creek filed its opposition (“Resp’t Br.”). Panther Creek argues
that an operator’s knowledge of protected activity is an essential element of a successful
discrimination complaint. Resp’t Br. at 6. As such, Panther Creek asserts that “[a]t the time of
Mr. Puckett’s discharge, the persons who made the decision to discharge Mr. Puckett had no
knowledge of any 110(c) investigation, let alone that Mr. Puckett had been interviewed.”1 Id.
Rather, the company contends, based on an affidavit by Panther Creek Operations Manager
Michael Burke, that Puckett was terminated as a consequence of his repeated failures, in the face
of multiple warnings, to properly carry out his pre-shift examination duties. Id. at 5-6. In this
regard, Panther Creek alleges that it was issued a citation on May 1, 2017, as a result of Puckett’s
failure to note “Date, Times, and Initials” on three separate date boards located within his
pre-shift examination area. Id.; Resp’t Ex. 1. Panther Creek also argues it is entitled to a hearing
based on fundamental principles of due process as well as the requirements of the Commission’s
procedural rules. Resp’t Br. at 4.
II.

Procedural Framework

Unlike a discrimination proceeding adjudicating the merits of a discrimination complaint,
the scope of a temporary reinstatement proceeding is narrow and the evidentiary burden placed
on the Secretary is very low. To prevail in a discrimination proceeding, the Secretary must
demonstrate by a preponderance of the evidence that the complainant participated in protected
activity and that the adverse action complained of, in this case Puckett’s termination, was
motivated, at least in part, by that protected activity. An operator may rebut the Secretary’s prima
facie case or affirmatively defend. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, sub nom. Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 818 n.20 (Apr. 1981).

1

In its opposition, Panther Creek notes that Puckett did not rely on his participation in a
110(c) investigation in his original discrimination complaint. Rather, Puckett’s complaint of
discrimination related solely to his discharge based on his performance as a fireboss. Miners
cannot be expected to always effectively articulate the basis for their claims of discrimination.
Moreover, MSHA investigations may reveal that miners have been confronted with pretextual
explanations by mine operators that seek to mask a discriminatory motive. Consequently, the
Commission has held that “the Secretary’s decision to proceed with a complaint to the
Commission, as well as the content of that complaint, is based on the Secretary’s investigation of
the initiating complaint . . . and not merely on the initiating complaint itself.” Hopkins County
Coal, 38 FMSHRC 1317, 1326 n.15 (June 2016) (citation omitted).

39 FMSHRC Page 1408

In determining whether there was a discriminatory motive in a discrimination proceeding,
the Commission has noted that “[d]irect evidence of motivation is rarely encountered; more
typically, the only available evidence is indirect.” Sec’y of Labor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C.
Cir. 1983). Accordingly, the Commission considers whether there is circumstantial indicia of
motive, such as: (1) knowledge of the protected activity; (2) hostility or animus toward protected
activity; (3) coincidence in time between the protected activity and the adverse action; and (4)
disparate treatment. Id. In determining whether there is circumstantial evidence of motivation at
a discrimination hearing, the judge will be required to make credibility determinations and
resolve conflicts in testimony.
In contrast, a temporary reinstatement proceeding only requires that the underlying
discrimination complaint is not frivolously brought. 30 U.S.C. § 815(c)(2). In this regard, in
addressing the burden of proof required in a temporary reinstatement proceeding, the Eleventh
Circuit Court of Appeal has stated:
The legislative history of the Act defines the ‘not frivolously brought standard’ as
indicating whether a miner's ‘complaint appears to have merit’ -- an interpretation that is
strikingly similar to a reasonable cause standard. In a similar context involving the
propriety of agency action seeking temporary relief, the former Fifth Circuit construed
the ‘reasonable cause to believe’ standard as meaning whether an agency's ‘theories of
law and fact are not insubstantial or frivolous.’
Jim Walter Resources v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (emphasis in original)
(footnote omitted) (citations omitted).
As a temporary reinstatement proceeding only requires that the underlying discrimination
complaint is not frivolously brought, resolving credibility issues or conflicts in testimony goes
beyond the scope of this temporary reinstatement matter. Sec’y of Labor on behalf of Williamson
v. CAM Mining, 31 FMSHRC 1085, 1091 (Oct. 2009); Secretary on behalf of Earl Charles Albu
v. Chicopee Coal Company, Inc., 21 FMSHRC 717, 719 (July 1999). In this regard, the
Commission has recently articulated that “in practice, in order to prevail on this very low burden
of proof, the Secretary need only establish [in support of his temporary reinstatement
application] protected activity and one of the circumstantial indicatives of motive.” Hopkins
County Coal, LLC, 38 FMSHRC 1317, 1326 (June 2016) (citing Comunidad Agricola Bianchi,
Inc., 32 FMSHRC 206, 211 n.9 (Feb. 2010) (ALJ Barbour)).
III.

Analysis

A fundamental issue is whether Panther Creek is entitled to a hearing on the Secretary’s
application for temporary reinstatement, or, whether the question of Puckett’s reinstatement can
be decided summarily. It is undisputed that Puckett’s conversations with Richardson are
protected activity. Panther Creek neither concedes nor disputes Puckett’s participation in the
110(c) investigation. However, Panther Creek asserts that it was not aware of Puckett’s
interaction with 110(c) investigator Richardson. Resp’t Br. at 6. Nevertheless, the Commission
has articulated “that the Secretary need not prove that the operator has knowledge of the

39 FMSHRC Page 1409

complainant's protected activity in a temporary reinstatement proceeding, only that there is a
non-frivolous issue as to knowledge.” Williamson, 31 FMSHRC at 1090 (citing Albu, 21
FMSHRC at 718). The coincidence in time between Puckett’s 110(c) interviews and his
termination, consisting of approximately two weeks, satisfies the “not frivolously brought”
standard. See Hopkins, 38 FMSHRC at 1326.
Addressing the specifics of Panther Creek’s opposition, it must be noted that resolution of
this application for temporary reinstatement is limited to Puckett’s unchallenged protected
activity with respect to his participation in the 110(c) investigation. Panther Creek’s assertion
that Puckett’s termination was motivated by Puckett’s pattern of malfeasance that culminated in
the citation issued on May 1 for an inadequate pre-shift examination cannot defeat Puckett’s
temporary reinstatement. See Sec’y on behalf of Deck v. FTS International Propants, LLC,
34 FMSHRC 2388, 2391 (Sept. 2012) (citing Williamson, 31 FMSHRC at 1090) (holding that
“an intervening event that could have constituted a non-discriminatory reason for termination” is
not sufficient to defeat a temporary reinstatement application when there is a coincidence in time
of two weeks between the protected activity and adverse action); see also Williamson,
31 FMSHRC at 1091 (holding that an operator’s rebuttal or affirmative defense goes beyond the
scope of a temporary reinstatement proceeding). Consequently, Panther Creek’s reliance on Title
VII case law, rather than Commission case law, for the proposition that “[m]ere coincidence in
time is not sufficient to create reasonable cause to believe that the discharge was based on
protected activity,” is misplaced. Resp’t Br. at 7 (citing Scroggins v. Univ. of Minn., 221 F.3d
1042, 1045 (8th Cir. 2000)).
The Eleventh Circuit has addressed the resultant equities in the event that Puckett’s
underlying discrimination complaint is ultimately withdrawn by the Secretary or denied. The
Court stated:
Congress, in enacting the ‘not frivolously brought’ standard, clearly intended that
employers should bear a proportionately greater burden of the risk of an erroneous
decision in a temporary reinstatement proceeding. Any material loss from a mistaken
decision to temporarily reinstate a worker is slight; the employer continues to retain the
services of the miner pending a final decision on the merits. Also, the erroneous
deprivation of an employer's right to control the makeup of his work force under section
105(c) is only a temporary one that can be rectified by the Secretary's decision not to
bring a formal complaint or a decision on the merits in the employer's favor.
Jim Walter Resources, 920 F.2d at 748 n.11 (emphasis in original).
Despite the fact that the coincidence in time between Puckett’s protected activity and his
termination remains unchallenged, Panther Creek, relying on Commission Rule 45(c) and the
Commission’s decision in Sec’y on behalf of Shemwell v. Armstrong Coal Co., 34 FMSHRC
996, 999-1000 (May 2012), asserts that due process requires an evidentiary hearing. Resp’t Br.
at 4. Rule 45(c) is procedural rather than substantive in that it sets forth the guidelines for

39 FMSHRC Page 1410

requesting and scheduling a temporary reinstatement hearing. Rule 45(d) sets forth the
evidentiary parameters to be addressed in a temporary reinstatement hearing:
The scope of a hearing on an application for temporary reinstatement is limited to a
determination as to whether the miner’s complaint was frivolously brought. The burden
of proof shall be upon the Secretary to establish that the complaint was not frivolously
brought. In support of his application for temporary reinstatement, the Secretary may
limit his presentation to the testimony of the complainant. The respondent shall have an
opportunity to cross-examine any witnesses called by the Secretary and may present
testimony and documentary evidence in support of its position that the complaint was
frivolously brought.
29 C.F.R. § 2700.45(d) (emphasis added).
Obviously, Rule 45(d) contemplates affording a mine operator due process in a
temporary reinstatement proceeding by providing an opportunity to be heard. Here, Panther
Creek has been heard by virtue of its opposition to the Secretary’s motion for summary decision.
Significantly, consistent with the guidelines in Rule 45(d), Panther Creek’s opposition contains
sworn affidavits and documentary evidence in support of its assertions that it terminated Puckett
for reasons unrelated to protected activity and had no knowledge of Puckett’s participation in a
110(c) investigation. The rub is that the affidavits and documentation relied upon by Panther
Creek pertain to its rebuttal and/or affirmative defense to Puckett’s underlying discrimination
complaint, as well as credibility issues as to knowledge, that must await resolution in a
subsequent hearing on the merits. See Williamson, 31 FMSHRC at 1090-91 (holding that
resolutions of credibility and rebuttal or affirmative defenses go beyond the scope of a temporary
reinstatement proceeding).
With respect to Panther Creek’s purported right to cross-examine the Secretary’s
witnesses, given Puckett’s unchallenged protected activity, the company’s opposition plainly
reflects that it has no material cross-examination to conduct. If a hearing were held in this matter,
it would be limited to the substance of the affidavit relied on in the Secretary’s motion for
summary decision detailing Puckett’s participation in the 110(c) investigation. Panther Creek’s
assertion “that the persons who made the decision to discharge Mr. Puckett had no knowledge of
any 110(c) investigation” does not challenge or rebut the substance of the Secretary’s affidavit.
Resp’t Br. at 6. Significantly, as a matter of law, resolution of the question of Panther Creek’s
knowledge, or lack thereof, must await disposition in a hearing on the merits. In this temporary
reinstatement proceeding, the coincidence in time between Puckett’s protected activity and his
discharge provides sufficient probative evidence to support the Secretary’s application. Thus,
there is no material cross-examination that could be conducted. Specifically, as already noted,
Panther Creek does not dispute that Puckett’s interactions with the investigator constitute
protected activities and that there was a coincidence in time between these protected activities
and the adverse action complained of. Moreover, summary decision provides the parties with a
written judgment from an independent decision maker that can be appealed by an aggrieved
party. That a summary decision can satisfy due process is codified by Rules 54 and 56 of the
Rules of Civil Procedure.

39 FMSHRC Page 1411

That a hearing is not required based on the circumstances of this case is clearly evident
based on application of Rule 56 of the Federal Rules of Civil Procedure. Rule 56(a) states that,
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). (emphasis added) The goal of adjudication is addressed in Rule 54(a) of the Federal Rules
of Civil Procedure which mandates that a judgment must be a decree “from which an appeal
lies.” Fed. R. Civ. P. 54(a). The coincidence in time between Puckett’s protected activities and
his termination entitles the Secretary to a favorable judgment as a matter of law. Summary
judgment provides Panther Creek, the aggrieved mine operator, with an appealable decision.
Federal Civil Procedure Rules 54 and 56 are consonant with Commission Rule 67 concerning
summary decision. 29 C.F.R. § 2700.67. Surely Commission Rule 45(d), when read in the
context of the Rules of Civil Procedure and Commission Rule 67, mandates a hearing in a
temporary reinstatement case only if it is necessary.
Finally, Panther Creek apparently relies on the Commission’s reference to Commission
Rule 45 in its Shemwell decision for the proposition that it is entitled to a hearing regardless of
whether the Secretary has shown that Puckett is entitled to reinstatement as a matter of law. In
Shemwell, the Commission stated:
Rule 45 sets forth procedural protections that meet the “fundamental requirement of due
process” because they give the operator the “opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 748
(11th Cir. 1990) (citations omitted). Among other things, the operator will have the
opportunity to cross-examine any witnesses supporting the Application for Temporary
Reinstatement. As part of those protections, a party is entitled to a hearing on an
application for temporary reinstatement within 10 days of requesting one. 29 C.F.R. §
2700.45(c).
Shemwell, 34 FMSHRC at 999 (emphasis added). As previously discussed, the procedural
protections identified in Shemwell have been satisfied by virtue of Panther Creek’s supporting
submissions consisting of documentary evidence and sworn affidavits in its opposition to the
Secretary’s motion for summary decision. The fact that Puckett is entitled to temporary
reinstatement as a matter of law based on undisputed facts prevents Panther Creek from being
able to present evidence in an evidentiary hearing “in a meaningful manner.” Absent further
direction from the Commission that outstanding material issues remain unresolved, I cannot
construe Shemwell to stand for the proposition that a hearing is required in a temporary
reinstatement proceeding even if it is unnecessary.2

2

It is noteworthy that the rationale for the Commission’s vacating of the summary
decision in Shemwell included the necessity for a hearing to address “whether there was a layoff
that would toll an operator’s temporary reinstatement obligation,” an issue that is not present in
this case. Shemwell, 34 FMSHRC at 1000.

39 FMSHRC Page 1412

In resolving this matter summarily, I note that Commission Rule 67(b) provides that “[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) [t]hat there is no
genuine issue as to any material fact; and (2) [t]hat the moving party is entitled to summary
decision as a matter of law.” 29 C.F.R. § 2700.67(b). When considering a motion for summary
decision, the court looks at the record “‘in the light most favorable to . . . the party opposing the
motion,’ and . . . ‘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 4, 9 (Jan. 2007)
(quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962) and United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Viewing the evidence in the light most favorable to Panther Creek, its assertion that it
will ultimately prevail at a full hearing on the merits because Puckett’s termination was not
motivated by protected activity presents a question of credibility which goes beyond the scope of
this proceeding. Williamson, 31 FMSHRC at 1090. Simply put, there is no issue of unresolved
material fact. By way of summary, Panther Creek does not contest that Puckett engaged in
protected activity or that he suffered adverse action. Nor does it challenge the coincidence in
time between these events that constitutes adequate circumstantial evidence that supports a nonfrivolous claim with respect to knowledge and motivation. Consequently, Puckett is entitled to
reinstatement as a matter of law.
Although the Secretary has demonstrated that his application for Puckett’s temporary
reinstatement is not frivolous, nothing herein shall be construed as a reflection on the merits of
Puckett’s underlying discrimination complaint.
ORDER
In view of the above, IT IS ORDERED that Panther Creek immediately reinstate Stacey
Wayne Puckett to his former position as a fireboss, or to an equivalent position, at the same rate
of pay and benefits he received immediately prior to his discharge, and with the same or
equivalent assigned duties.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

39 FMSHRC Page 1413

Distribution: (Electronic and Certified Mail)
Stacy Wayne Puckett, 1016 Hopkins Road, Danville, WV 25053
Kathleen F. Borschow, Esq., Robert S. Wilson, Esq., Office of the Regional Solicitor, U.S.
Department of Labor, 201 12th Street South, Arlington, VA 22202-5450
Melanie J. Kilpatrick, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre
Circle, Suite 375, Lexington, KY 40513

39 FMSHRC Page 1414

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

July 21, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
and PHILLIP LOVELL,
Complainants,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2017-0287

v.
PENNYRILE ENERGY, LLC,

MSHA Case No. MADI-CD-2017-03
Mine: Riveredge Mine
Mine ID: 15-19424

And
GMS MINE REPAIR,
Respondents

MSHA Case No. MADI-CD-2017-04
Mine: Riveredge Mine
Mine ID: 15-19424 MVK

DECISION AND ORDER
REINSTATING PHILLIP LOVELL
Appearances: Christopher M. Smith, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, Representing the Secretary of Labor
Tony Oppegard, Esq., Lexington, KY, Representing Complainant Phillip Lovell
Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Charleston, West
Virginia, Representing Pennyrile Energy, LLC
Andrew Ellis, Esq., GMS Corporate Compliance and HR Manager, Representing
GMS Mine Repair.
Before:

Judge Andrews

Pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine
Act” or “Act”), 30 U.S.C. §801, et. seq., and 29 C.F.R. §2700.45, the Secretary of Labor
(“Secretary”) on June 27, 2017, filed an Application for Temporary Reinstatement of miner
Phillip Lovell (“Lovell” or “Complainant”) to his former position with Respondents Pennyrile
Energy LLC, (“Pennyrile”) and GMS Mine Repair (“GMS”) at the Riveredge Mine pending final
hearing and disposition of the case.

39 FMSHRC Page 1415

According to Commission Rule 45, a request for hearing must be filed within 10 days
following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R.
§2700.45(c). A timely request for hearing was filed on July 7, 2017, and a hearing was held on
July 14, 2017, in Madisonville, Kentucky. The parties had the opportunity to present witnesses,
documentary evidence, and arguments in support of their positions.
Discussion of Relevant Law
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners “to play
an active part in the enforcement of the [Mine Act]” recognizing that, “if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation.” S. Rep. No.
181, 95th Cong., 1 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 623 (1978).
Congress created the temporary reinstatement as “an essential protection for complaining
miners who may not be in the financial position to suffer even a short period of unemployment
or reduced income pending the resolution of the discrimination complaint.” Id. at 624-25.
Temporary Reinstatement is a preliminary proceeding and narrow in scope. As such,
neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case.
Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The
substantial evidence standard applies.1 Sec’y of Labor on behalf of Peters v. Thunder Basin Coal
Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the
purpose of determining whether the evidence mustered by the miners to date established that
their complaints are non-frivolous, not whether there is sufficient evidence of discrimination to
justify permanent reinstatement. Jim Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990).
In adopting section 105(c), Congress indicated that a complaint is not frivolously brought
if it appears to have merit. S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In
addition to Congress’ “appears to have merit” standard, the Commission and federal circuit
courts have also equated “not frivolously brought” to “reasonable cause to believe” and “not
insubstantial.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306
(Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that
establishing ‘reasonable cause to believe’ that a violation of the statute has occurred is a
‘relatively insubstantial’ burden.” Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC,
2012 WL 4026641, *3 (Aug. 2012) citing Schaub v. West Michigan Plumbing & Heating, Inc.,
250 F.3d 962, 969 (6th Cir. 2001).
1

“Substantial evidence” means such relevant evidence as a reliable mind might accept
as adequate to support [the judge’s] conclusion. Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229
(1938)).
39 FMSHRC Page 1416

In order to establish a prima facie case of discrimination under section 105(c) of the Act,
a complaining miner must establish (1) that he engaged in protected activity and (2) that there
was an adverse action, which was motivated in any part by that activity. Sec’y of Labor on behalf
of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).
In the instant matter, the Secretary and Lovell need not prove a prima facie case of
discrimination with all of the elements required at the higher evidentiary standard needed for a
decision on the merits. Rather, the same analytical framework is followed within the “reasonable
cause to believe” standard. Thus, there must be “substantial evidence” of both the applicant’s
protected activity and a nexus between the protected activity and the alleged discrimination. To
establish the nexus, the Commission has identified these indications of discriminatory intent: (1)
hostility or animus toward the protected activity; (2) knowledge of the protected activity; and (3)
coincidence in time between the protected activity and the adverse action. Sec’y of Labor on
behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The
Commission has acknowledged that it is often difficult to establish a “motivational nexus
between protected activity and the adverse action that is the subject of the complaint.” Sec’y of
Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.1999). The
Commission has further considered disparate treatment of the miner in analyzing the nexus
requirement. Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508,
2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983).
Evidence
Two Discrimination Complaints were filed with the Secretary’s Application for
Temporary Reinstatement. (see, Application for Temporary Reinstatement, Exhibits B and C). In
each Summary of Discriminatory Action, Complainant stated, in pertinent part:
On Tuesday, May 9, 2017 I was assigned by GMS to work at Riveredge Mine pinning. I reported
to my supervisor that the weld was broken on the ATRS I was working on. My supervisor told
me that to continue pinning the cut was the only choice that I had. I was ultimately let go and
was told that I did not have a position with Riveredge or GMS. I am requesting temporary
reinstatement and any back pay, wages or bonus that I have missed because of the companies
actions.
The Declaration of Special Investigator Charles Jones was also filed with the Application
for Temporary Reinstatement (see, Exhibit A), and in pertinent part is as follows:
1. I am a special investigator employed by the Mine Safety and Health Administration,
United States Department of Labor (MSHA). I am assigned to the District 10 Office
in Madisonville, Kentucky.
2. As part of my responsibilities, I investigate claims of discrimination filed under
section 105(c) of the Mine Act. In this capacity, I have reviewed and gathered
information as part of an ongoing investigation arising from a complaint filed by
Phillip Lovell. My investigation has revealed the following facts to date:

39 FMSHRC Page 1417

a. At all relevant times, Respondents Pennyrile Energy LLC (Pennyrile) and GMS
Mine Repair (GMS) engaged in the operation of a coal mine and are, therefore,
“operators” within the meaning of Section 3(d) of the Act.
b. The Riveredge Mine located in McLean County, Kentucky, has products that
enter commerce and is, therefore, a “mine” within the meaning of Sections 3(b),
3(h), and 4 of the Act.
c. Phillip Lovell was employed through contractor GMS as a roof bolter at
Pennyrile’s Riveredge Mine from March of 2017 until on or about May 10, 2017.
Lovell is a “miner” within the meaning of Section 3(g) of the Act. Lovell worked
under the supervision of Pennyrile and GMS.
d. On or about May 8, 2017, Lovell reported a safety concern regarding a power
cable to another miner while an MSHA inspector was present. A foreman verbally
reprimanded Lovell and instructed Lovell to not point out safety hazards to
MSHA.
e. On or about May 9, 2017, Lovell reported a safety concern regarding a roof bolter
ATRS (Automated Temporary Roof Support) system to a foreman. Lovell stated
his refusal to work with that roof bolter until it was repaired. The foreman made
no effort to address Lovell’s safety concerns regarding the roof bolter. The
foreman directed Lovell to use the roof bolter immediately, and watched to make
sure Lovell did so.
f. On or about May 10, 2017, Lovell called the MSHA hotline to report the roof
bolter safety hazard. After MSHA responded by sending out an investigator, an
hourly miner instructed Lovell to lie to the MSHA inspector by saying that
Pennyrile immediately removed the roof bolter from service after Lovell reported
the ATRS safety hazard. The miner also told Lovell that “We know you called”
and added, “We have something waiting for you…you’re in for a bad day.”
Lovell interpreted these statements as a threat from miners on the unit, including
the foreman, made in response to Lovell’s safety report to the MSHA hotline.
g. On or about May 10, 2017, Lovell discussed his concerns regarding his safety
complaints and the threat made against him with Pennyrile management.
Pennyrile management offered to move Lovell to another shift or another area of
the mine. Lovell was interested in the possibility of GMS transferring him to work
at another mine. Pennyrile management called GMS management to discuss
Lovell. Directly after that conversation, Pennyrile management and GMS
management informed Lovell that he was terminated from working at Pennyrile’s
Riveredge Mine and terminated from working for GMS. GMS management told
Lovell that Lovell should have thought of the consequences before Lovell called
MSHA.
h. On or about May 12, 2017, Lovell filed a discrimination complaint against
Pennyrile and GMS for their unlawful acts. Lovell has asserted that the actions of
Pennyrile and GMS constitute discrimination under the Mine Act.
3. Based upon my investigation of these matters, I have concluded that Lovell’s
complaint of discrimination was not frivolously brought.

39 FMSHRC Page 1418

At the hearing, a Statement of Interview taken by Special Investigator Charles Lee Jones
on May 16, 2017, was admitted as Exhibit CX-1 and referred to during testimony of
Complainant Lovell.
Summary of Testimony
Phillip Michael Lovell began working for GMS Mine Repair as a roof bolter at
Pennyrile’s Riveredge Mine in March 2017.2 Tr. 18-19. GMS is a contract company that
Pennyrile uses to supply employees.3 Tr. 99. The employees work for GMS, and receive their
benefits from GMS. Tr. 99-100.
In this position, he operated a Roof Ranger 3 Low Profile Fletcher pinner which has a
double boom with two operators.4 Tr. 35. On the dates in question, his foreman and direct
supervisor at the mine was Matt Allen. Tr. 18-19. He was also supervised by Leslie Ashby, who
worked for Human Resources at the contractor, GMS Mine Repair. Tr. 19. Lovell testified that
he rarely spoke with Ashby, unless there was an emergency, or he had to miss work. Tr. 70-71.

2

Lovell had worked as a roof bolter, or pinner, since 2011. Tr. 39.

3

Pennyrile underground superintendent, Kris Maddox, described the relationship in the
following manner:
Q. Okay. Explain, if you would, how – the relationship between Pennyrile and GMS.
A. They are a contract company that we use to supply employees to us.
Q. Okay. But how -- how does it work?
A. Like if I'm needing a roof bolter, I'll call and say, I need a roof bolter. They'll send me
a list of names. I may know some of the people. I may not. And a lot of times I'll bring
them out to the mines and do a brief interview and talk to them. And sometimes, I mean,
I need somebody pretty quick and I'll just have to pick me the best candidate for that
position.
Q. And let's say you pick a candidate for that position. They come to work at your mine
as a roof bolting machine operator. Are they employees of Pennyrile at that point or
GMS?
A. They're GMS employees.
Q. What about benefits, who pays that?
A. We don't. GMS does.
Tr. 99.
4

The other operator was referred to as a “pin partner.” Tr. 35-36.

39 FMSHRC Page 1419

On May 8, 2017, there were MSHA inspectors at the mine on Lovell’s unit. Tr. 19-20.
There was a problem with the roof bolter in that it lost power, and a mechanic came out to reset
the power on the roof bolter. Tr. 20. Lovell then reported to the mechanic that there was a cut in
the trailer cable of the roof bolter.5 Tr. 20-21, 36. The cable was energized and there were
approximately 480 volts running through it. Tr. 21. With that many volts going through the
cable, Lovell described the cut in the cable as presenting “a life-and-death situation” because it
presented an electrocution hazard. Tr. 36-37. The MSHA inspector was standing behind Lovell
when he reported the safety hazard, and his supervisor, Matt Allen, was standing on the other
side of the bolter. Tr. 21.
Allen was shocked and acted surprised when Lovell pointed out the safety hazard while
the MSHA inspector was present. Tr. 21-22. Allen pulled Lovell aside after the MSHA inspector
left and told Lovell not to point out any cuts in the cable while MSHA was at the mine. Tr. 22.
Lovell responded that he “was simply telling the guy not to grab on the cable that was still an
energized cable.” Tr. 22.
The following day, on May 9, 2017, Lovell was working as a roof bolter at the Riveredge
Mine, and Allen was once again his foreman. Tr. 23. Lovell reported that there was a broken
ATRS weld, which placed his life in danger.6 Tr. 23. Lovell spoke to Allen about the issue, and
Allen told him to set the ATRS. Tr. 23-24. Lovell set the ATRS and the pressure gauge went to
1,500 PSI. Tr. 24. It then dropped down to 1,000 PSI in a matter of seconds, which led Lovell to
conclude that it was unsafe. Tr. 24. When the PSI drops, it indicates a warning that pressure is
being lost. Tr. 39. This can lead to a piece of falling plate or a slip of heavy rock onto the miners
beneath it. Tr. 39-40. Lovell told Allen that he was not going to pin it, and Allen responded that
it was not a safety hazard and that Lovell did not have much of a choice. Tr. 24, 41. Allen stood
over Lovell for approximately 45 minutes until he pinned the area.7 Tr. 24-25.
After Lovell bolted the entire area and he was in the last open crosscut, a mechanic
arrived to perform the weld on the ATRS. Tr. 25. Lovell talked to the mechanic about there not
being rock dust or a fire extinguisher present. Tr. 25. Lovell told the mechanic that they needed
to take safety precautions seriously. Tr. 25. Allen and the mechanic chuckled, and the mechanic
responded that they didn’t have time for that. Tr. 25.
The following day, on May 10, 2017, Lovell called the MSHA hotline to report a broken
ATRS. Tr. 26. When Lovell arrived at Riveredge, people were panicking about MSHA’s arrival
5

The cut may have been a pulled splice. Tr. 45.

6

ATRS stands for Automated Temporary Roof Support, and it supports the roof while
miners are physically underneath it pinning. Tr. 23, 37. It consists of a long arm with two steel
pads. One protrudes in the shape of a T and pressurizes the top in order to temporarily support
the roof while the miners pin underneath. Tr. 38.
7

The terms “pinning” and “bolting” were used interchangeably to mean the act of roof
bolting the top. Tr. 37.

39 FMSHRC Page 1420

that day. Tr. 26. Allen was once again Lovell’s foreman that day, and he assigned him to shovel
the belt on each side of the tail piece. Tr. 27. Lovell felt as if he was being punished by being
assigned this task instead of roof bolting. Tr. 27.
After Lovell was finished shoveling, Allen ordered him to go to the left side to pin. Tr.
27-28. At one point, a guy on the unit told Lovell to come to the middle of the run and talk to the
MSHA inspector and Allen. Tr. 28. On the way to speak to the inspector, Lovell’s pin partner,
Lucan Dugger, stopped Lovell and told him to lie to the inspector and tell him that when they
found the broken ATRS they backed it out, fixed it, and put it back in the run the correct way. Tr.
28, 35-36. Dugger told Lovell that if he “didn’t do what he asked…they’ll have something
waiting for [him].”8 Tr. 28-29. Lovell felt like his life was in danger, and did as he was ordered
and told the inspector a false story. Tr. 29-30.
After Dugger walked away, Lovell pulled the two inspectors that were still standing near
him and told them the truth. Tr. 29. He told them that he had called MSHA, about the roof bolter
hazard from the day before, and about how he had been threatened and told to lie to them. Tr. 2930. The MSHA inspectors did not feel comfortable leaving Lovell in the mine that day. Tr. 30.
Keith Whitehouse, who was the safety director, came underground and Lovell spoke with
him. Tr. 30. Whitehouse agreed with MSHA about taking Lovell out of the mine. Tr. 31.
Whitehouse felt that he should have a talk about harassment with the entire unit at the surface,
with underground superintendent, Kris Maddox, present.9 Tr. 31.
Maddox did not go underground with the miners on May 10. Tr. 84. He arrived at the
bolter when the inspectors were getting ready to leave and talked to them briefly. Tr. 84-85. He
also talked “for just a second” to Lovell, and Lovell made allegations that an hourly employee
had threatened him. Tr. 85. Lovell refused to identify the individual. Tr. 85.
Lovell had a conversation on the surface with Whitehouse and Maddox. Tr. 31. The
MSHA inspectors, Wyatt Oates, as well as a miner’s representative named John Parker,10 were
8

At the time, Lovell refused to reveal the identity of the miner who threatened him. Tr.

54-56.
9

Kristsopher Steven Maddox was the underground superintendent at Pennyrile Energy.
Tr. 81. He testified at hearing on behalf of Respondent, Pennyrile Energy. Maddox had over 19
years of mining experience. Tr. 81. He had worked as an hourly employee for several years, and
in management for eight years. Tr. 81. He has run a roof bolter, a miner, a shuttle car, a ram car,
and a scoop. Tr. 82. He has a Kentucky state mine foreman certification, as well as Kentucky
state MAT certification. Tr. 82-83.
10

John Parker testified at hearing for Respondent, Pennyrile. He was an examiner and
miner’s representative, which he described as representing the miners and the company. Tr. 103.
He has a foreman’s card, but is an hourly employee. Tr. 104. Parker did not have authority to ask
or offer Lovell another position at the mine. Tr. 104-105.

39 FMSHRC Page 1421

present for the beginning of the conversation.11 Tr. 31, 57, 92. They asked Lovell what
happened, and he explained the previous safety hazards and threat. Tr. 32. Whitehouse and
Maddox tried to resolve the situation by saying that they could get him a different position if he
kept his mouth shut. Tr. 32. Maddox offered to move Lovell to another crew and another roof
bolter. Tr. 58. He said that Lovell could have any position that he wanted, and Lovell replied that
he wanted to explore his options.12 Tr. 59, 89. Lovell wanted to contact GMS to find out what
types of positions were available, but was told that Maddox and Whitehouse would contact
GMS, and that he should not contact them. Tr. 32. They asked Lovell to step out of the office,
and they called GMS. Tr. 33. Maddox then proceeded to call GMS and said that Lovell requested
a transfer.13 Tr. 95. He told them that Lovell “didn’t want to be at our mines anymore, so
therefore we don’t want him there anymore either.” Tr. 95. Maddox testified that he knew about
Lovell calling MSHA, and that it was common knowledge at the mine. Tr. 101. However, he
maintained that he did not make any comments to her about Lovell calling MSHA. Tr. 101.
GMS told Maddox to tell Lovell “to get his things and to call when he left the mines.” Tr. 95.
A few minutes later, Lovell was told to contact Ashby at GMS. Tr. 33. Lovell called
Ashby at GMS and asked her if she knew what was going on. Tr. 34. She replied that she had
just talked with Maddox and Whitehouse by phone and knew the situation. Tr. 34. She then said
that they don’t want Lovell at Riveredge any longer, and that he needs to clear his stuff out. Tr.
34. Lovell said that he should not be fired for his actions, and she replied that Lovell “should
have thought of the consequences before [he] called MSHA.” Tr. 34. Lovell did not receive any
further calls or offers of employment, and was told not to step foot on the property of either
company. Tr. 34. Lovell understood the meaning of this conversation as him being fired. Tr. 34.
Lovell came back to the office briefly and told Maddox that he had been fired. Tr. 96.
Contentions
The Complainant, through the Secretary and private counsel, argue that Lovell has met
his burden of establishing that his complaints are non-frivolous, and as a result he should be
temporarily reinstated. The Complainant highlights his protected activities of making safety
complaints on May 8, 9, and 10, as well as his call to MSHA to report safety issues. It argues that
his termination on May 10 constitutes an adverse action under the Act for which both GMS and
Pennyrile are liable. Further, it argues that there was knowledge, animus, and a coincidence in
time between the protected activity and the adverse action.
11

This meeting is at times referred to as two meetings in the course of the transcript
because it moved from one location to another and there were fewer people present after the
move.
12

Lovell repeatedly testified that he did not accept any of the positions offered at the
meeting because he first wanted to explore his options. Tr. 58-63. Maddox testified that Lovell
refused each offer, but Lovell maintained that he never refused any of the offers. Tr. 32, 89.
13

Maddox testified that he does not have the right to fire GMS employees, but can have
them removed from the mine. Tr. 100.

39 FMSHRC Page 1422

Respondent Pennyrile argues that management at Pennyrile offered Lovell transfers to
other shifts and other positions at the mine, and that in refusing, Lovell quit his job at the mine.
Pennyrile further argues that it was GMS who actually laid off Lovell. It argues that because
Lovell quit his position at Pennyrile, it should not be liable for reinstatement.
Respondent GMS argues Lovell was not terminated, but was laid off.
Analysis
The scope of this proceeding is narrow. Credibility determinations are not made; conflicts
in testimony are not resolved. It is well recognized by the Courts that the Secretary’s burden is
“relatively insubstantial”. For example, beyond the scope of the hearing is testimony and/or
documentary evidence that the adverse action was justified by unprotected activity alone or was
also motivated by unprotected activity or other non-discriminatory grounds. For the reasons set
forth below, I find that the record presents a reasonable cause to believe the instant
Discrimination Complaints were not frivolously brought.
Lovell Engaged in Protected Activity
The record contains evidence of several actions over a short time period that constituted
protected activities. First, on May 8, 2017, in the presence of MSHA inspectors and his
supervisor, Lovell reported to a mechanic that there was a cut or pulled splice in the trailer cable
of the roof bolter. Tr. 19-21, 36. This was a high-voltage cable that was energized, and Lovell
viewed it as a safety hazard because it could lead to someone getting electrocuted. Tr. 21, 36-37.
On the following day, on May 9, 2017, Lovell reported to his supervisor, Allen, that there
was a broken ATRS weld, which he believed placed his life in danger. Tr. 23. Allen ordered
Lovell to set the ATRS, and when he tried to do so, the pressure dropped 500 PSI in a matter of
seconds. Tr. 23-24. This indicated to Lovell that the pressure supporting the roof was being lost,
and that as a result a piece of plate or heavy rock could fall on top of him. Tr. 24, 29-40. Lovell
attempted to refuse to perform the work, but his supervisor told him that he did not have a
choice, and stood over him for 45 minutes until he completed the task. Tr. 24-25, 41.
There was some testimony by others that they did not believe the broken weld presented
a safety hazard. Tr. 41. However, whether the broken weld constituted a significant safety hazard
is beyond the scope of this hearing. The Act does not require that a miner prove that a significant
safety hazard existed, but only that he had a reasonable belief of a hazard underlying his
complaint.
Following Lovell’s completion of his pinning tasks, a mechanic arrived to perform the
weld on the ATRS. Tr. 25. Lovell reported to the mechanic and his supervisor that there was no
fire extinguisher present, and the area was not properly rock dusted. Tr. 25. They laughed, and
the mechanic responded that they didn’t have time for that. Tr. 25.
The next day, on May 10, Lovell called the MSHA hotline to report a broken ATRS. Tr.
26. After reporting such, another miner told Lovell to lie to MSHA and threatened him. Tr. 28-

39 FMSHRC Page 1423

29. Lovell reported this threat to the MSHA inspectors, as well as Safety Director Whitehouse
and Superintendent Maddox. Tr. 29, 32, 84-85. Each of these safety complaints, calls to MSHA,
and reports of threats constituted protected activity under the Act. 30 U.S.C. §815(c)(1).
Lovell Suffered an Adverse Employment Action
On May 10, following Lovell’s report of a threat in retaliation to his MSHA call, Lovell
had a meeting with, among others, Maddox and Whitehouse. Tr. 31, 57, 92. At this meeting,
Lovell was offered other positions at Pennyrile Mine. Tr. 32, 58. Lovell testified that he neither
accepted nor rejected any of these offers made in the meeting, because he wanted to first talk
with GMS and better understand his options.14 Tr. 32, 59, 89. Following this meeting, Maddox
called GMS and told Ashby that Lovell “didn’t want to be at our mines anymore, so therefore we
don’t want him there anymore either.” Tr. 95. When Lovell called Ashby a few minutes later, she
told him that he was not wanted at Riveredge any longer, and he needs to clear his stuff from the
mine. Tr. 34. Lovell responded that he should not be fired for his actions, and she responded that
Lovell “should have thought of the consequences before [he] called MSHA.” Tr. 34.
Pennyrile’s argument that Lovell quit and therefore not entitled to reinstatement under
Dolan v. F&E Erection Co., 22 FMSHRC 171 (Feb. 2000), is misplaced. Though Respondent is
correct that a miner who voluntarily quits his job is not entitled to temporary reinstatement, that
is not what occurred here.15 In the instant case, Lovell was asked in a meeting whether he wanted
to be transferred to other positions. Lovell did not respond by quitting, but rather simply did not
accept the offers on the spot. It was reasonable for Lovell to want to discuss the matter with his
employer, GMS, and to consider the matter further. There are no indications that when he left the
meeting to call GMS, he believed that he had lost his employment. Tr. 96. Therefore, I find that
Maddox’s calling GMS and stating that they did not want Lovell at the mine any longer
constituted a “discharge…or cause to be discharged,” under the Act. 30 U.S.C. 815(c)(1).
GMS similarly discharged Lovell when Ashby told him to clear his stuff from the mine
and did not give him any further offers of employment. Tr. 34. GMS’s counsel has conceded that
Lovell was laid off, but insists that he was not terminated. Tr. 12. GMS is not alleging that there
was a reduction in force or some other economic layoff that might be grounds for a tolling
argument. Therefore their assertions that Lovell was laid off and not terminated is a distinction
without a difference. A layoff is a “discharge” under the Act.

14

Maddox testified that Lovell refused the offers, however conflicts in testimony are not
to be resolved in this limited proceeding. Sec’y of Labor obo Albu v. Chicopee Coal Co., 21
FMSHRC 717, 719 (July 1999).
15

It should be noted, however, that if a miner is essentially forced to resign, or
constructively discharged, then that form of quitting is treated as an adverse employment action.
Dolan, 22 FMSHRC at 175.

39 FMSHRC Page 1424

A Nexus Existed Between the Protected Activity and the Adverse Employment Action
As discussed supra, to obtain a temporary reinstatement a miner must raise a nonfrivolous claim that he engaged in protected activity with a connection, or nexus, to an adverse
employment action. Having concluded that Lovell engaged in protected activities and suffered an
adverse employment action, the examination now turns to whether those activities have a
connection, or nexus, to the subsequent adverse action. The Commission recognizes that direct
proof of discriminatory intent is often not available and that the nexus between protected activity
and the alleged discrimination must often be drawn by inference from circumstantial evidence
rather than from direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. The Commission has
identified several circumstantial indicia of discriminatory intent, including: (1) hostility or
animus toward the protected activity; (2) knowledge of the protected activity; (3) coincidence in
time between the protected activity and the adverse action; and (4) disparate treatment of the
complainant. See, e.g., CAM Mining, LLC, 31 FMSHRC at 1089; see also, Phelps Dodge Corp.,
3 FMSHRC at 2510.
Knowledge of the protected activity
According to the Commission, “the Secretary need not prove that the operator has
knowledge of the complainant's activity in a temporary reinstatement proceeding, only that there
is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31 FMSHRC at 1090, citing
Chicopee Coal Co., 21 FMSHRC at 719. In the instant matter, there is sufficient evidence of
knowledge by both Pennyrile and GMS management of the various protected activities to meet
the evidentiary threshold.
Lovell reported the cut in the trailer cable on May 8 in the presence of MSHA inspectors
and his supervisor, Matt Allen. Tr. 20-21. Lovell testified that Allen was shocked and surprised
by the complaint, and pulled Lovell aside and told him not to point out cuts in the cable while
MSHA was present. Tr. 21-22.
Allen similarly had knowledge of Lovell’s complaint concerning the ATRS weld on May
9 because the complaint was made to Allen. Tr. 23-24. Following the problem with the drop in
pressure on the ATRS, Allen ordered Lovell to continue pinning in a manner that Lovell feared
was unsafe. Tr. 24-25.
Allen was also aware of Lovell’s complaint concerning the lack of a fire extinguisher and
rock dust because Lovell made the complaint in his presence. Tr. 25. Lovell testified that Allen
and the mechanic laughed at the idea that they needed to take these safety precautions seriously.
Tr. 25.
Further, there was knowledge by Pennyrile’s Maddox and Whitehead, as well as GMS’s
Ashby, concerning Lovell’s call to MSHA and the threats made to him. The meeting with
Maddox, Whitehead, and others occurred in part as a response to the threat Lovell received.
Further, Maddox testified that he knew about Lovell calling MSHA because it was common
knowledge at the mine. Tr. 101. Though Ashby had minimal contact with Lovell generally, she
too was aware of his calling MSHA. Tr. 70-71. In the conversation where Ashby fired Lovell,

39 FMSHRC Page 1425

she told him told that he “should have thought of the consequences before [he] called MSHA.”
Tr. 34.
Coincidence in time between the protected activity and the adverse action
The Commission has accepted substantial gaps between the last protected activity and the
adverse employment action. See e.g. CAM Mining, LLC, 31 FMSHRC at 1090 (three weeks)
and Sec'y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan. 1999) (a
16-month gap existed between the miners' contact with MSHA and the operator's failure to recall
miners from a lay-off; however, only one month separated MSHA's issuance of a penalty
resulting from the miners' notification of a violation and that recall failure). The Commission has
stated “We ‘appl[y] no hard and fast criteria in determining coincidence in time between
protected activity and subsequent adverse action when assessing an illegal motive. Surrounding
factors and circumstances may influence the effect to be given to such coincidence in time.”’ All
American Asphalt, 21 FMSHRC 34 at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC
523, 531 (Apr. 1991).
In the instant matter, extremely close proximity in time between the protected activities
and the adverse actions greatly favors a finding that a nexus existed between the protected
activities and the adverse actions. The protected activities at issue here all occurred on May 8, 9,
and 10, 2017. Lovell was discharged from Pennyrile and GMS on May 10, 2017, immediately
after his final protected activity.
Hostility or animus towards the protected activity
The Commission has held, “[h]ostility towards protected activity-- sometimes referred to
as ‘animus'--is another circumstantial factor pointing to discriminatory motivation. The more
such animus is specifically directed towards the alleged discriminatee's protected activity, the
more probative weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps Dodge
Corporation, 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted).
Although a single instance, even circumstantial in nature would suffice, here there are
several indications of animus. Following Lovell’s complaint about the cut in the cable, Allen told
him not to make such complaints in the presence of MSHA inspectors. Tr. 22. Following
Lovell’s complaint concerning the broken ATRS weld and the drop in pressure, Allen ignored
Lovell’s concerns and ordered him to use the machine. Tr. 24-25. Following Lovell’s complaint
about the lack of rock dust and fire extinguisher, Allen laughed. Tr. 25. Then, on May 10, after
Lovell called MSHA, Allen assigned him to shovel the belt, which Lovell felt was a form of
punishment. Tr. 26-27.
Maddox’s statement to GMS that they didn’t want him at the mine any longer exhibited
animus towards Lovell’s protected activity, as did GMS’s statement upon firing Lovell that he
should have thought about the consequences of his actions when he called MSHA. Tr. 34, 95.

39 FMSHRC Page 1426

Disparate treatment
“Typical forms of disparate treatment are encountered where employees guilty of the
same, or more serious, offenses than the alleged discriminatee escape the disciplinary fate which
befalls the latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2512 (Nov. 1981). The Commission has previously held that evidence of disparate
treatment is not necessary to prove a prima facie claim of discrimination when the other indicia
of discriminatory intent are present. Id. at 2510-2513.
Whether there was disparate treatment of Lovell was not developed on this record, but
the fact that he was fired by GMS after being threatened by a miner at the Pennyrile Mine raises
the question of whether other GMS employees have been treated in the same way, or given the
benefit of a personnel policy of a more graduated approach to employee discipline.
Conclusion
In concluding that Lovell’s complaint herein was not frivolously brought, I find that there
is reason to believe he engaged in protected activities, and that there was a nexus between the
protected activities and his termination. Miner Phillip Lovell is entitled to Temporary
Reinstatement under the provisions of Section 105(c) of the Act.
ORDER
It is hereby ORDERED that Phillip Lovell be immediately TEMPORARILY
REINSTATED to his former job with GMS at the Pennyrile mine at his former rate of pay,
overtime, and all benefits he was receiving at the time of his termination.
This Order SHALL remain in effect until such time as there is a final determination in
this matter by hearing and decision, approval of settlement, or other order of this court or the
Commission.
I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)
(4). The Secretary SHALL provide a report on the status of the underlying discrimination
complaint as soon as possible. Counsel for the Secretary SHALL also immediately notify my
office of any settlement or of any determination that Respondents did not violate Section 105(c)
of the Act.

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

39 FMSHRC Page 1427

Distribution (Via E-mail and Certified Mail):
Christopher M. Smith, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, TN 37219 smith.christopher.m@dol.gov
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 tonyoppegard@gmail.com
Mark E. Heath, Esq., Counsel for Pennyrile Energy, LLC, Spilman, Thomas & Battle, PLLC,
P.O. Box 273, 300 Kanawha Boulevard, East, Charleston, WV 25329 mheath@spilmanlaw.com
Andrew Ellis, Corporate Compliance and HR Manager, GMS Mine Repair, 224 Moyers Road,
Bruceton Mills, WV 26525 aellis@gmsminerepair.com
William C. Means, Esq., General Counsel, GMS Mine Repair, 224 Moyers Road, Bruceton
Mills, WV 26525 bmeans@gmsminerepair.com
Mr. Phillip Lovell, 830 Sancut Rd., Madisonville, KY 42431 mikelovell45@gmail.com

39 FMSHRC Page 1428

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

July 24, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. WEST 2016-0705
A.C. No. 45-03710-416172

v.
LROCK INDUSTRIES,
Respondent.

Mine: LRock Pit
DECISION AND ORDER

Appearances: Daniel Brechbuhl, U.S. Department of Labor, Office of the Solicitor, Denver,
Colorado, for Petitioner;
John Bredfield, LRock Industries, Toledo, Washington, pro se for Respondent.
Before:

Judge Miller

This case is before me upon a petition for assessment of civil penalties filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d) (“the Act”). This docket involves nineteen citations issued pursuant to
Section 104(a) of the Act with originally proposed penalties totaling $32,256.00. The parties
presented testimony and evidence regarding the citations at a hearing held in Portland, Oregon,
on May 25, 2017. Based upon my review of the record, my observation of the demeanors of the
witnesses, and consideration of the parties’ legal arguments, I make the following findings and
order.
I. APPLICABLE PRINCIPLES OF LAW
A. Establishing a Violation
To prevail on a penalty petition, the Secretary bears the burden of proving an alleged
violation by a preponderance of evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066,
1070 (Sept. 2000), aff’d 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903,
907 (May 1987). The Secretary may establish a violation by inference in certain situations, but
only if the inference is “inherently reasonable” and there is “a rational connection between the
evidentiary facts and the ultimate fact inferred.” Garden Creek Pocahontas Co., 11 FMSHRC
2148, 2152-53 (Nov. 1989).

39 FMSHRC Page 1429

B. Significant and Substantial
A “significant and substantial” (“S&S”) violation is described in Section 104(d)(1) of the
Mine Act as a violation “of such nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A
violation is properly designated S&S “if based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981).
In Mathies Coal Co., the Commission established the standard for determining whether a
violation is S&S:
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.
6 FMSHRC 1, 3-4 (Jan. 1984).
The Commission has explained that the term “hazard” refers to the prospective danger
the cited safety standard is intended to prevent. Newtown Energy, Inc., 38 FMSHRC 2033, 2038
(Aug. 2016). In Newtown, for instance, the mine was cited for a violation of a standard requiring
that equipment be locked out and tagged out while electrical work is being performed, and the
Commission identified the relevant hazard to be that of a miner working on energized
equipment. Id. The Commission has clarified that the second element of the Mathies test
addresses the likelihood of the occurrence of the hazard the cited standard is designed to prevent.
Id. at 2037-38. The judge must determine whether there is a “reasonable likelihood” that the
hazard will occur based on “the particular facts surrounding the violation.” Id.; see also McCoy
Elkhorn Coal Corp., 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies, 6 FMSHRC at 4. At the
third step, the judge must determine whether the hazard, if it occurred, would be reasonably
likely to result in injury. Newtown, 38 FMSHRC at 2037. The existence of the hazard is assumed
at this step. Id.; Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016).
The likelihood of injury is evaluated with respect to specific conditions in the mine. Newtown, 38
FMSHRC at 2038. Finally, the Commission has held that the S&S determination should be made
assuming “continued normal mining operations.” McCoy, 36 FMSHRC at 1990-91.
C. Negligence
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.”
A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its

39 FMSHRC Page 1430

duty of care, the judge must consider “what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry, the relevant
facts, and the protective purpose of the regulation.” Newtown Energy, Inc., 38 FMSHRC 2033,
2047 (Aug. 2016); Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); U.S. Steel Corp.,
6 FMSHRC 1908, 1910 (Aug. 1984).
The standard of care is higher for mine management. Newtown, 38 FMSHRC at 2047.
The Mine Act places primary responsibility for maintaining safe and healthful working
conditions in mines on operators, and they are thus expected to set an example for miners
working under their direction. Id.; Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987); see
also 30 U.S.C. § 801(e).
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The LRock pit is a surface sand and gravel mine located in Lewis County, Washington.
LRock is an “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 803(d), and the
mine is subject to the provisions of the Mine Act and the jurisdiction of the Commission.
All citations except one included in this docket were issued by Inspector Benjamin Burns
during regular inspections. Burns has been an inspector for nine years and is familiar with sand
and gravel mines, although the LRock pit is not in his usual inspection area. He began the
inspection of the LRock pit on June 1, 2016. Upon arriving at the mine, he met John Bredfield,
the plant manager. Bredfield informed Burns that he was too busy to accompany him on the
inspection, and so Burns inspected the mine on his own.
Citation No. 8872971
In the course of his inspection, Burns observed a roadway going to the top of the
stockpile at the mine. He noticed that there was no berm at the end of the stockpile, leaving a
drop-off of approximately 20 feet. The Secretary’s Exhibit 2, page 4, shows the saddle-shaped
area where there is no berm at the end of the roadway. A loader operator onsite informed Burns
that the miners had not been accessing the pile for a long time. However, Burns did observe tire
tracks in the area. He noted that the tire tracks were 25 feet from the edge. To terminate the
citation, the operator added a barricade to prevent access. Sec’y Ex. 2, p. 5.
Bredfield, the representative and sole witness for the company, testified that the roadway
had been bermed when it was in daily use, but that the area was not active. He explained that the
pile was a stockpile that had been loaded out and was no longer used. He also stated that the
surface was sand that therefore was too soft to travel.
Burns cited the mine for a violation of 30 C.F.R. § 56.9300(a), which states in pertinent
part that “Berms or guardrails shall be provided and maintained on the banks of roadways where

39 FMSHRC Page 1431

a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons
in equipment. . . .”1
LRock argues that the area was not a “roadway” within the meaning of the standard
because it was no longer in use at the time of the inspection, and therefore no berms were
required. The term “roadway” is not defined in the regulations, but the Commission has found
that an area is a roadway “where a vehicle commonly travels its surface during the normal
mining routine.” Black Beauty Coal Co., 34 FMSHRC 1733, 1735 (Aug. 2012), aff’d, 762 F.3d
611 (7th Cir. 2014) (interpreting a similar standard applicable to surface coal mines); see also
Capitol Aggregates, Inc., 4 FMSHRC 846, 847 (May 1982). The evidence at hearing, including
Burn’s observations of the tire tracks and his conversation with the loader operator, demonstrated
that the cited area was the primary means of access to the pile. While Bredfield claimed that
vehicles no longer traveled there, nothing had been done to prevent access, such as posting signs
or erecting barricades. I therefore find that the area was still a roadway within the meaning of the
standard. The drop-off of 20 feet was “of sufficient grade or depth to cause a vehicle to
overturn.” Because no berm was provided at the drop-off, the standard was violated. I agree with
the inspector that the citation was the result of moderate negligence, was unlikely to cause injury,
and was not S&S, given that the area was infrequently used and there were no tire tracks close to
the edge. A penalty of $484.00 is assessed as proposed by the Secretary.
Citation No. 8872972
Burns next inspected a CAT 980 H front-end loader. He noticed a fire extinguisher on the
loader and saw that the tag on the fire extinguisher indicated that it had last been inspected in
December 2014. A photo of the tag was introduced as the Secretary’s Exhibit 3, page 3. Burns
issued a citation for a violation of 30 C.F.R. § 56.4201(a)(2), which requires that
Firefighting equipment shall be inspected according to the
following schedules: … At least once every twelve months,
maintenance checks shall be made of mechanical parts, the amount
and condition of extinguishing agent and expellant, and the
condition of the hose, nozzle, and vessel to determine that the fire
extinguishers will operate effectively.
The Secretary argues that the fire extinguisher should have been inspected in December 2015, 12
months after the previous inspection.
Bredfield testified that the CAT 980 H has its own automatic fire prevention system and
does not require a fire extinguisher. LRock argues that yearly inspections of the fire extinguisher
were therefore not required. However, the language of the standard does not limit the inspection
requirement only to mandatory fire extinguishers. Even if other fire extinguishing equipment was
available, a miner might rely on the available fire extinguisher in an emergency. If the
1

Section (d) of the same standard permits compliance on infrequently used roadways by
providing locked gates and specific warning signs. LRock did not provide evidence of any
barriers or signs in the area.

39 FMSHRC Page 1432

extinguisher had not been inspected and was not in operable condition, it would present a hazard
to miners.
Because the fire extinguisher had not been inspected within the past 12 months, a
violation is proven. I uphold the inspector’s finding of moderate negligence, since the mine had
had violations of this standard in the past. The violation was non-S&S and unlikely to cause
injury. A penalty of $145.00 is assessed as proposed.
Citation No. 8872973
Continuing his inspection of the CAT 980 H loader, Burns asked the loader operator to
pick up a typical load in the bucket and then test the parking brake while on the crusher feed
ramp. The brake failed to hold, and the loader moved approximately 20 inches before the
operator stopped it with the service brake. Burns issued a citation for a violation of 30 C.F.R. §
56.14101(a)(2), which requires that “If equipped on self-propelled equipment, parking brakes
shall be capable of holding the equipment with its typical load on the maximum grade it
reaches.”
Bredfield testified that past inspectors had not tested the brake with gravel in the bucket.
The operator had tested the brake that morning without gravel and it had held. Bredfield also
stated that it is common practice to put the loader bucket down before applying the brake.
However, the standard states that the brake must hold the equipment “with its typical load on the
maximum grade it reaches.” 30 C.F.R. § 56.14101(a)(2). The bucket would be lifted when the
loader was carrying the load. I find that a violation occurred. The violation was unlikely to cause
injury and non-S&S because there was still some resistance in the brake, and the loader moved
slowly, only a short distance. The negligence was moderate because the operator had tested the
brake that day. I assess a penalty of $216.00.
Citation No. 8872974
Burns next inspected a roadway on the south side of the bank of the yard, where the
stockpile is located. He estimated that the roadway was 40 to 45 feet wide. It had a steep angle
drop-off of approximately 10 feet, but there was no berm in place. Burns observed haul trucks
using the area to turn around and coming within 30 feet of the drop-off. The Secretary’s Exhibit
5, page 4, shows a partially constructed berm, but the berm does not extend to the end of the
yard. Burns believed the berm had been removed as the stockpile was loaded out.
Burns issued a citation for a violation of 30 C.F.R. § 56.9300(a), which requires that
“Berms or guardrails shall be provided and maintained on the banks of roadways where a dropoff exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment.” He designated the violation as S&S because he observed multiple trucks close to the
edge, and therefore there was potential for a rollover accident. The Secretary alleges high
negligence because Bredfield, the plant manager, was in the area, and because the partially
constructed berm indicates that management knew of the berm requirement.

39 FMSHRC Page 1433

Bredfield agreed that there was no berm in the cited area, but testified that workers were
in the process of constructing the berm when Burns inspected the area. Bredfield also denied that
there were trucks in the area, producing overhead photographs showing no truck activity. Resp.
Exs. A & B. However, the photographs are undated and therefore of little probative value.
Further, Bredfield stated that the roadway was not 40 feet wide as observed by the inspector, but
rather 160 feet, leaving sufficient room for the trucks to maneuver in the absence of a berm. On
cross-examination, Bredfield was asked how long the stockpile had been in place prior to the
inspection, but his responses were evasive. Bredfield stated that at the time of the inspection,
miners were in the process of cleaning up the area and loading out the berm in order to terminate
a project. This testimony conflicts with Bredfield’s earlier statement that the berm was under
construction. Accordingly, I do not credit his testimony.
Based on the testimony of the inspector, I find that the area was frequently travelled and
had a drop-off, and a berm was therefore required. The Secretary has proven a violation. In view
of Bredfield’s knowledge of the requirement, the negligence is high as assessed. I also find that
the violation was significant and substantial. Applying the Mathies factors, the Secretary has
proven a violation of a standard as discussed. The cited standard is intended to prevent an overtravelling accident. Here, such an accident was reasonably likely to occur, given that there was
frequent traffic in the area and tire tracks relatively close to the drop-off. Such an accident would
be reasonably likely to result in serious injury to the driver. The Secretary proposed a penalty of
$7,964.00 which I find appropriate in this circumstance.
Citation No. 8872975
On the second day of the inspection, Burns examined a mobile excavator that was being
operated by Bredfield. Burns observed that one of the front mirrors on the excavator was broken,
and another was missing. Burns stated that the mirrors would aid the driver in safe operation of
the machine because they would allow him to see out the back, left or right side.
Bredfield explained that the machine had been brought in a day or two prior to the
inspection to clear material located on a steep edge. The excavator was normally stored at a shop
offsite and belonged to LRock’s rental division. Bredfield stated that the mirrors were useless
and got in the way of entering and operating the excavator. The machine had a cab that could
rotate 360 degrees and thus there was no need to operate it in reverse. He stated that no other
vehicles would come around the excavator while it was operating.
The Secretary alleges a violation of 30 C.F.R. § 56.14100(b), which provides that
“Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely
manner to prevent the creation of a hazard to persons.” I find that the mirrors affect the safety of
the excavator. While I credit Bredfield’s testimony that the machine is typically operated in
forward motion, I also credit Burn’s statement that the machine could be operated in reverse.
Burns also stated that the mirrors could be used to check a blind spot, which would be aid in
safely operating the machine in forward motion. While the Secretary did not address the “timely”
element of the standard, Bredfield was operating the machine at the time and should have
discovered and corrected the broken mirrors in a pre-operational check. I agree with the
Secretary that the violation was the result of high negligence, given that Bredfield, a supervisor,

39 FMSHRC Page 1434

was aware of the condition. The violation was unlikely to cause injury and was not S&S, since
the excavator was operated primarily with the cab facing forwards. The Secretary’s proposed
penalty of $722.00 is affirmed.
Citation No. 8872977
Burns next inspected a storage area, where he observed a seven-inch angle grinder
located on the bottom shelf under some other tools. The disk on the grinder did not have a guard.
See Sec’y Ex. 13, p. 3. The edges of the disk showed some wear, from which Burns inferred that
the grinder had been used. He also inferred that the grinder had been in that condition for some
time, based on the fact that there were other tools piled on top of it. Burns explained that the disk
on the grinder rotates at high speed and the miner operating the tool would have his hand within
eight and a half inches of the disk.
Bredfield acknowledged that a guard was necessary for safe operation of the grinder, but
stated that the grinder was not used except for spare parts. He noted that the grinder disk had
been put on upside down, and stated that this would be a signal to miners that the grinder was not
in service. He explained that the mine has many of the same grinders and this one was buried
under tools because it had not been used for some time.
Burns cited the mine for a violation of 30 C.F.R. § 56.14100(b), which provides that
“Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely
manner to prevent the creation of a hazard to persons.” The Secretary alleges that the violation
was the result of low negligence and was S&S.
LRock argues that the standard should not apply because the grinder had been taken out
of service. Section (c) of the same standard provides that defective equipment may be taken out
of service to prevent hazardous use, including by “marking the defective items … to prohibit
further use until the defects are corrected.” 30 C.F.R. § 56.14100(c). LRock argues that the
upside down disc on the grinder effectively marked it as out of service. I reject this argument. A
miner could easily turn the disc over and use the grinder or use it without noticing that the disc
was upside down.
I find that the Secretary has proven a violation. The absence of a guard on the grinder
exposed the user to the sharp spinning edge of the disc, which was close to the trigger and thus
would be close to the user’s hand. The condition had most likely been present for some time,
given that the grinder was buried under other tools. Because the grinder was difficult to see
buried under the tools, I find that the violation was the result of low negligence as alleged.
The Secretary alleges that the violation was S&S, and I agree. The Secretary has proven a
violation of a mandatory standard, satisfying the first Mathies element. The standard at issue
guards against the hazard of a miner using a tool with a safety defect. I find that the hazard was
reasonably likely to occur, because the grinder was not tagged out and was available for use. A
miner could easily have flipped the disk on the grinder over and used it without the guard. The
second Mathies element is proven. A miner using the grinder without the guard would be
reasonably likely to incur an injury. The miner’s hand would come within inches of the disk,

39 FMSHRC Page 1435

which is sharp and would be rotating at high speed. The resulting injury would most likely lead
to lost workdays or be permanently disabling. The third and fourth Mathies elements are
satisfied, and the violation is S&S. The Secretary proposed a penalty of $324.00 which is
assessed.
Citation No. 8872978
Burns next examined a sand screw used to dewater sand during processing. The screw
was covered by a screen, and a working deck surrounded the screen. Burns observed that there
was a gap between the screen and the working deck, leaving approximately 10 inches where the
screw was exposed. See Sec’y Ex. 3, p. 4. The working deck was approximately 10 feet above
ground and was accessible via a vertical ladder. Burns explained that miners would access the
area to conduct fluid level checks or to clean material off of the deck. He was concerned that a
miner could reach or fall into the area and become entangled with the screw.
Burns testified that an entanglement accident with the screw fins could cause a fatal
injury. While Bredfield stated that the screw moves slowly, he did not dispute that an injury
could occur if someone were to come into contact with it.
Burns cited the mine for a violation of 30 C.F.R. § 56.14107(a), which provides that
“Moving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and take-up pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury.” I find that the screw fins were “moving machine parts”
within the meaning of the standard because they were capable of causing injury.
LRock argues that the guarding recommended by the inspector was not necessary
because the mine has a lock-out/tag-out policy that would require the screw to be de-energized
before anyone performed maintenance on it. However, the Commission has found that guarding
standards should be interpreted to account for “all relevant exposure and injury variables”
including “the vagaries of human contact.” Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097
(Sept. 1984). Consistent with this, Commission judges have interpreted guarding standards to
require that guarding be adequate to prevent injury in the event that an employee carelessly
disregards a lock-out/tag-out policy. See, e.g., Climax Molybdenum Co., 38 FMSHRC 2453,
2460 (Sept. 2016) (ALJ); Dix River Stone Inc., 29 FMSHRC 186, 203 (Mar. 2007) (ALJ); Calco
Inc., 15 FMSHRC 480, 484 (Mar. 1993) (ALJ). LRock’s lock-out/tag-out policy is no defense to
a guarding violation and therefore I find that the Secretary has proven a violation.
The Secretary alleges that the violation was S&S, and I affirm that finding. I have found
that a violation of a mandatory standard occurred, satisfying the first element of the Mathies test.
Regarding the second element, the question is whether it was reasonably likely that the
inadequate guarding on the screw would lead to a miner coming into contact with the moving
screw. See Newtown Energy, Inc., 38 FMSHRC 2033, 2038 (Aug. 2016). Based on the close
proximity of the walkway to the exposed screw, I find that such an accident was reasonably
likely to occur. The inspector testified that such an accident would lead to a fatal injury, and
LRock produced no evidence to the contrary. I thus find that the hazard was reasonably likely to
lead to a fatal injury, satisfying the third and fourth Mathies elements. Because the condition had

39 FMSHRC Page 1436

been present for three years and had been examined by other inspectors, I find that the
negligence was low. The Secretary’s proposed penalty of $1,078.00 is assessed.
Citation No. 8872979
Burns next inspected a concrete rock screw that is used to clean rock before it is sent to
the conveyor belt. The screw had a water manifold system mounted on one side that prevented
contact with the auger from that side. However, Burns noted that there were gaps in the guarding
on the top and side of the screw. The screw paddles were within 13 to 20 inches from the
unguarded spots. Burns stated that miners would sometimes work in the area to adjust the valves
on the water manifold. He believed it was possible for a miner to be pulled into the screw,
causing a fatal injury. He cited the mine for a violation of 30 C.F.R. § 56.14107(a), the guarding
standard discussed above with regard to Citation No. 8872978. The Secretary produced
photographs of the screw, but it is difficult to see the moving machine parts in the photographs.
Sec’y Ex. 7, p. 3-4.
Bredfield testified that miners do not work in the area because the valves on the manifold
are never adjusted. He stated that the manifold was a modification he had added to the screw,
and that the manifold provides more guarding on the screw than would be present in other plants.
He believed that in order for someone to come in contact with the auger, the person would have
to climb onto the manifold. The screw had been at the plant for three years at the time of the
inspection, and no other inspectors had found a problem.
I credit the inspector’s finding that the moving machine parts were within reach and that
additional guarding was necessary. It would be possible for a miner to be pulled into the screw
and receive a fatal injury. However, because the plastic tub above the manifold provided partial
guarding, the violation was unlikely to cause injury. The negligence was low, given that previous
inspectors had accepted the guarding. I assess a penalty of $216.00 as proposed by the Secretary.
Citation No. 8872980
Burns also inspected a portable rolling pressure valve. The machine had been brought in
to the mine three weeks earlier for use on a specific project. Burns observed that there were two
openings on the walkway on the unit, one 20 inches wide and a second 24 inches wide. The
openings were located 52 and 67 inches above ground, respectively, and provided access to the
unit from the ground. Burns believed there should have been chains across the openings, as there
were on other equipment in the mine. He noted that injury was unlikely because of the side
railings by the openings.
Burns cited the mine for a violation of 30 C.F.R. § 56.11012, which requires that
“Openings above, below, or near travelways through which persons or materials may fall shall be
protected by railings, barriers, or covers. Where it is impractical to install such protective
devices, adequate warning signals shall be installed.”
LRock argues that the chains detract from safety, because a miner entering the unit would
be forced to let go of the hand rails in order to lift the chain. The standard provides that where it

39 FMSHRC Page 1437

is impractical to install a chain, the operator may instead install warning signals. However, the
mine has not provided evidence that it installed warning signals. In any event, I do not find that
the chains were impractical, since the inspector observed similar chains on other equipment at
the mine.
I find that the Secretary has proven a violation of the standard. There was a danger of a
miner falling through the openings from the travelway, and a barrier was therefore necessary. I
agree that injury was unlikely, because there were handrails in the area to provide stability. The
negligence is moderate because management had provided chains on other equipment. I assess a
penalty of $216.00
Citation No. 8872982
Burns next observed a lube truck that was used to transport tools around the site for
maintenance. He observed a Miller 250 welder on the truck and determined that the terminals on
the welder were not adequately guarded. The Secretary’s Exhibit 9, page 3, shows that metal is
exposed on the terminals. The welder is gas-powered, and the terminals are used to connect to
the welding leads. Burns testified that if a miner were to contact the terminals with something
metal, he would be shocked. He observed that while the welder was high on the truck, it was
next to a handrail. To terminate the violation, the operator installed rubber guards around the
terminals.
Burns cited the mine for a violation of 30 C.F.R. § 56.12023, which provides that
“Electrical connections and resistor grids that are difficult or impractical to insulate shall be
guarded, unless protection is provided by location.”
Bredfield stated that the welder was equipped with the factory insulation. However,
Burns believed that the cited part needed to be insulated because there was metal exposed.
LRock also argues that the welder was located eight feet off the ground, and thus “protection is
provided by location.” However, because there was a handrail next to the welder, I find that
contact with the part was possible. I find that the Secretary has proven a violation of the
standard. Because of the welder’s location high off the ground, I find that the violation was
unlikely to cause injury. I affirm the moderate negligence designation because the welder was
used regularly. I assess the Secretary’s proposed penalty of $145.00.
Citation No. 8872983
Burns also observed that there was no protective cover over the end of the positive
electrode on the welder. Without the protective cover, Burns stated that there would be “arcing,”
creating a potential for shock. He described seeing “burrs” on exposed metal, which indicated to
him that arcing had occurred in previous uses of the welder. He was unsure of the voltage on the
welder but estimated that it was at least 120 volts.
Burns issued a citation for a violation of 30 C.F.R. § 56.14100(b), which provides that
“Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely

39 FMSHRC Page 1438

manner to prevent the creation of a hazard to persons.” The Secretary alleges that the violation
was the result of moderate negligence and was S&S.
Bredfield acknowledged that the protective cover was missing, saying that the covers
were flimsy and broke easily. However, he did not believe that the missing guard created a safety
hazard. He stated that arcing and shock hazards are normal parts of welding and that miners wear
gloves as protection. He believed that the important guards were where the miner’s hands would
be, and those were present.
I affirm the citation as issued. The missing cover was a “defect[ ] on any equipment …
that affect[s] safety” because it created “arcing,” lessened the miner’s control of the welder, and
increased the risk of shock. Burn’s observation of burrs on exposed metal indicates that the
condition had existed for some time, and therefore was not “corrected in a timely manner.” I
find that the violation was the result of moderate negligence, because it had existed for some
time and the welder was available for use.
Applying the Commission’s Mathies test, I also find that the violation was S&S. A
violation of a mandatory standard occurred. The hazard of a miner using the welder in its
defective condition was reasonably likely to occur because the welder was available for use, and
Burns saw evidence of arcing. Regarding the third and fourth steps, a miner using the welder
would be reasonably likely to be shocked, and a shock to a miner would likely result in burns or
other injuries of a reasonably serious nature. I assess the Secretary’s proposed penalty of
$722.00.
Citation No. 8872984
In addition to the welder, the lube truck also carried an angle grinder. Burns noticed that
there was a split in the outer jacket of the conductor feeding the grinder. The split was
approximately one and a half inches long and one quarter inch wide and there was bare copper
exposed through the split. Burns testified that the split could cause a miner to be electrocuted if
he put his hand on the plug to plug in the grinder.
Bredfield admitted that the outer jacket was damaged, speculating that someone may
have pinched the cord in the heavy door of the lube truck. He stated that no one was aware of the
defect and that no one would have tried to use the grinder in that condition.
The Secretary alleges a violation of 30 C.F.R. § 56.12004, which provides in relevant
part that “Electrical conductors exposed to mechanical damage shall be protected.” A
“conductor” is defined as “a material, usually in the form of a wire, cable, or bus bar, capable of
carrying an electric current.” 30 C.F.R. § 56.2. Other Commission ALJs to address this standard
have found that it is violated when “exposed cable or wiring that is capable of carrying an
electrical current, thus creating a shock hazard, lacks an outer protective jacket or structure of
some sort.” Recon Refractory & Constr., 36 FMSHRC 2265, 2274 (Aug. 2014) (ALJ); see also
Northshore Mining Co., 35 FMSHRC 1889, 1893 (June 2013) (ALJ); Baker Rock Crushing Co.,
32 FMSHRC 968, 977 (Aug. 2010) (ALJ).

39 FMSHRC Page 1439

I find that the Secretary has proven a violation of the standard. The cited cord was
capable of carrying an electric current and had exposed wires that were unprotected. The
Secretary alleges that the violation was S&S and the result of moderate negligence. I affirm the
negligence designation, but find that the violation was not S&S. Bredfield testified that the
grinder had not been used in its current condition. At the time of the inspection, the tool was
stored in the truck and not currently in use. Bredfield stated that a miner would have noticed the
split on the cord as soon as he took the machine out and would not have tried to use it in that
condition. The Secretary produced no evidence to the contrary. I thus find that the hazard of a
miner contacting energized wires was unlikely to occur. cf. Baker Rock, 32 FMSHRC at 977-78
(finding that no violation of § 56.12004 occurred because miners were unlikely to connect a
damaged cable to power without first noticing the exposed inner conductors). The second
element of the Mathies test is therefore not proven. The Secretary proposed a penalty of
$2,398.00, but because the violation was not significant and substantial, I assess a penalty of
$300.00.
Citation No. 8872985
Burns continued the inspection of the mine on June 7, 2016. He inspected a roadway in
the southeast section of the yard near a pond. Burns noticed that there was a drop-off of
approximately 10 to 15 feet, but there were no berms on approximately 300 feet of the road.
Burns observed a Volvo haul truck in the area, which he learned had been operated in the area
the weekend prior to the inspection. See Sec’y Ex. 17, p. 5. He also observed tracks on the road,
which he believed were from haulage vehicles and mobile excavators. See Sec’y Ex. 17, p. 8. He
measured that the tracks were between five inches and five feet from the drop-off. The tire tracks
so close to the water concerned Burns because a vehicle could over-travel into the water. He
predicted that this type of accident could cause the vehicle’s driver to drown.
Burns issued this citation for a violation of 30 C.F.R. § 56.9300(a), which requires that
“Berms or guardrails shall be provided and maintained on the banks of roadways where a dropoff exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment.”
LRock makes several arguments disputing the berm requirements. First, Bredfield
testified at hearing that the roadway was not on mine property and so is outside MSHA
jurisdiction. However, Burns testified that the area was on mine property. I accept the inspector’s
finding on this issue and find that the roadway was subject to MSHA jurisdiction. Bredfield also
stated that the unbermed area shown in Exhibit 17, page 11, had only a 20-inch drop-off.
Bredfield argued that berms are only required for drop-offs greater than mid-axle height of the
mine’s tallest wheeled vehicles, and that the Volvo truck used in the area had a mid-axle height
of 31 inches. In fact, the standard requires that the “berm or guardrail shall be at least mid-axle
height.” 30 C.F.R. § 56.9300(b) (emphasis added). A berm is required wherever there is a dropoff “of sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment.” Burns found that there was a rollover hazard even in some areas with a small dropoff, and I accept his findings.

39 FMSHRC Page 1440

I find that the Secretary has proven a violation of the standard. The cited roadway had a
steep drop-off of 10 to 15 feet in some places creating a rollover hazard. Berms were therefore
required. However, I assess the negligence as moderate rather than high as alleged, because
Bredfield testified that his understanding of the height requirement was different than that of the
inspector for this area of the mine. I also find that the violation was significant and substantial as
alleged by the Secretary. The Secretary has proven that a violation occurred, which satisfies the
first step in the Mathies test. The relevant hazard is that of a rollover accident from overtraveling, and I find that such an accident was reasonably likely to occur. While Bredfield stated
that the road was used only once per year by excavating vehicles, I do not credit his statement,
given that Burns observed a haul truck and vehicle tracks in the area. Moreover, the area lacking
berms was large, creating multiple sites for a potential accident. The second element of the
Mathies test is satisfied. A rollover accident in this area would be likely to result in a crushing or
drowning injury, satisfying the third and fourth elements. I assess a penalty of $3,000.00, as I
have found that the negligence was less than that assessed by the Secretary.
Citation No. 8872986
During his inspection, Burns asked Bredfield for the results of the mine’s grounding
systems tests. He learned that while Bredfield had completed a test of the equipment grounding
conductors, he had not tested the grounding electrodes or the grounding electrode conductors.
The mine had a system of ground rods that Burns believed should have been tested. However,
Burns did not encounter any defects in the system. Bredfield did not believe it was necessary to
test the ground rods because the mine already has more rods than are required.
Burns cited LRock for violating 30 C.F.R. § 56.12028, which requires that “Continuity
and resistance of grounding systems shall be tested immediately after installation, repair, and
modification; and annually thereafter. A record of the resistance measured during the most recent
tests shall be made available on a request by the Secretary or his duly authorized representative.”
The Secretary has interpreted the term “grounding systems” to include three components,
each of which must be tested: equipment grounding conductors, grounding electrode conductors,
and grounding electrodes. IV MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 21, at
44–45 (2003). The Secretary’s interpretation is reasonable and is therefore entitled to deference.
See Tilden Mining Co., 36 FMSHRC 1965, 1967; Wolf Run Mining Co., 32 FMSHRC 1669,
1678-79 (Dec. 2010) (citing Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir.
1994)). I find that the Secretary has proven a violation. Tests of all three components described
by the Secretary were required, but only the equipment grounding conductors were tested. I also
uphold the inspector’s finding of low negligence because Bredfield was unaware that the two
other tests were required, and he testified that they would conduct those tests from now on. I find
that the violation was non-S&S and unlikely to cause injury, because the inspector testified that
during his inspection he did not see any electrical hazards that could lead to a shock. I assess a
penalty of $114.00.

39 FMSHRC Page 1441

Citation No. 8872987
Burns issued the next three citations for violations regarding a Ford F7000 fuel truck at
the mine. Burns observed that the truck’s tank did not have a label indicating that it contained
diesel fuel. He was concerned that a miner who was not aware that the tank held diesel fuel could
accidentally come into contact with the fuel. Burns testified that diesel fuel can be hazardous if
the fuel touches a person’s eyes or skin. However, all the miners he spoke to knew that the tank
contained diesel fuel.
LRock disputes that the tank was not labeled. Bredfield explained that there was a
placard on the tank with the label “1203,” which he stated would be recognizable to any miner or
emergency personnel as a sign for diesel fuel. Burns disagreed, stating that the 1203 placard on
the tank did not mean anything to him. Bredfield stated that the truck had been at four different
rock pits with only the 1203 placard on the tank, and there had been no previous questions as to
the tank’s contents.
Burns issued a citation for a violation of 30 C.F.R. § 47.41, which requires that “The
operator must ensure that each container of a hazardous chemical has a label. If a container is
tagged or marked with the appropriate information, it is labeled.” A “hazardous chemical” is
defined in the regulations as “Any chemical that can present a physical or health hazard.” 30
C.F.R. § 47.11. A “label” is defined as “Any written, printed, or graphic material displayed on or
affixed to a container to identify its contents and convey other relevant information.” Id.
I reject LRock’s argument that the 1203 placard was an adequate label for the tank.
Burns, an inspector with over nine years of experience, was unfamiliar with the label. The miners
onsite also made no reference to the placard when Burns was explaining the citation to them. I
thus find that the placard did not “convey the relevant information” as required by the standard.
The violation was the result of moderate negligence because management had attempted to
comply by using the “1203” placard, but the label was not clear. This violation was non-S&S and
unlikely to cause injury because all of the miners the inspector talked to knew the tank contained
diesel fuel. A penalty of $145.00 is assessed as proposed.
Citation No. 8872988
Continuing his inspection of the fuel truck, Burns asked the operator to back up the truck
to test the back-up alarm. He testified that he could not hear an alarm when the operator backed
up the fuel truck. The miner on site informed Burns that the fuel truck was primarily stationary,
and that the only time it moved was to refuel the roll crusher machine. The crusher was located
roughly 200 feet from the truck. Burns estimated that the crusher would need to be refueled
daily, but workers at the inspection told him it had been at least two weeks since anyone had
moved the truck. The Secretary’s photograph of the truck shows that it had a restricted rear view.
Sec’y Ex. 14 pg. 3.
Bredfield testified at hearing that the truck was stationary 99 percent of the time. Miners
frequently used pickup trucks to fuel the crusher instead of the fuel truck. If the truck did go
through the pit, it would drive very slowly. He stated that the truck never had a back-up alarm

39 FMSHRC Page 1442

installed because other inspectors told the company that it was not necessary so long as they used
a spotter when moving the truck.
Burns cited the mine for a violation of 30 C.F.R. § 56.14132(a), which requires that
“manually-operated horns or other audible warning devices provided on self-propelled mobile
equipment as a safety feature shall be maintained in functional condition.” This standard applies
to audible warning devices already existing on vehicles, but does not require the installation of a
horn if one is not present. See Nelson Bros. Quarries, Inc., 21 FMSHRC 1100, 1109 (Oct. 1999)
(ALJ). However, a back-up alarm or similar safety measure is required by § 56.14132(b), which
applies “when the operator has an obstructed view to the rear.” 30 C.F.R. § 56.14132(b). If no
alarm is present, the operator may also comply with § 56.14132(b) by using “An observer to
signal when it is safe to back up.” Id.
Because there was no alarm installed on the truck, I find that the Secretary should have
cited the truck under § 56.14132(b) instead of § 56.14132(a). I therefore amend the citation to
conform to the evidence, as is permitted under Federal Rule of Civil Procedure 15(b)(2). The
amendment is appropriate because both parties discussed the use of spotters at hearing,
indicating that they understood that a violation of § 56.14132(b) was being litigated. See Faith
Coal Co., 19 FMSHRC 1357, 1361 (Aug. 1997).
I find that the Secretary has proven a violation of § 56.14132(b). The truck had an
obstructed rear view and no working back-up alarm. While Bredfield mentioned the use of
spotters at hearing, no one told Burns that spotters were used at the time of the inspection. I
conclude that spotters were not used consistently enough to satisfy the standard. The Secretary
alleges that the violation was unlikely to cause injury and was not S&S. Because the truck was
moved only occasionally, I agree that injury was unlikely. The negligence was moderate because
the operator had alarms on other vehicles and thus should have been aware of the requirement.
The Secretary proposed a penalty of $216.00, which is assessed.
Citation No. 8872989
Burns next tested the brake lights on the same fuel truck. He asked the operator to apply
the service brake pedal, and observed that the brake lights did not come on. The Secretary’s
Exhibit 16, page 3, shows the brake lights unlit. As previously mentioned, this truck was mostly
stationary, but the operator did move it to refuel the crusher, which had been at the mine for
approximately two weeks. Burns also testified that the operator had not run the truck in two or
three weeks. The inspector believed based on the frequency of use of the truck that the brake
lights had not been fixed in a timely manner.
Burns issued a citation for a violation of 30 C.F.R. § 56.14100(b), which requires that
“Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely
manner to prevent the creation of a hazard to persons.” The Secretary alleges that the violation
was non-S&S and that it resulted from moderate negligence.
With respect to the standard at issue, the Commission has held that the timeliness of a
correction depends on when the defect occurred and when the operator knew or should have

39 FMSHRC Page 1443

known about the defect. Lopke Quarries, Inc., 23 FMSHRC 705, 715 (July 2001). In Lopke, the
Commission found that a violation of § 56.14100(b) had not been proven because the Secretary
had not provided any evidence as to when the defect on the cited equipment arose. Id.
Here, Burns assumed that LRock had not repaired the truck’s brake lights in a timely
manner based on how often the crushing machine needed to be refueled. He believed the
machine would need to be fueled daily, but was told that the fuel truck had not been moved in
two or three weeks. I am not convinced that these facts prove that the brake lights had been
broken for any length of time, or that the operator should have known of the defect. I find that
the Secretary has failed to prove the timeliness element of the standard, and therefore vacate the
citation.
Citation No. 8872990
Finally, Burns concluded based on the large number of violations he encountered at the
mine that adequate inspections were not being conducted. He issued a citation for a violation of
30 C.F.R. § 56.18002(a), which provides that “A competent person designated by the operator
shall examine each working place at least once each shift for conditions which may adversely
affect safety or health. The operator shall promptly initiate appropriate action to correct such
conditions.” The Commission has held that in order to comply with the standard, a workplace
examination “must be adequate in the sense that it identifies conditions which may adversely
affect safety and health that a reasonably prudent competent examiner would recognize.” Sunbelt
Rentals, Inc., 38 FMSHRC 1619, 1627 (July 2016).
I find that the Secretary has proven a violation. Burns specifically noted the citations for
missing berms, missing guards, and damaged electrical conductors. A reasonably prudent
competent examiner would have detected those violations in an inspection. Further, I find that
the violation was S&S. The failure to identify numerous hazardous conditions, especially the
missing berms and the guards on the welder, was likely to result in a miner working in unsafe
conditions, and this would be likely to result in an accident. Such an accident would be
reasonably likely to cause a serious injury, such as a crushing injury or electrocution in the case
of the berms and electrical guarding. The Mathies elements are satisfied. However, I do not find
the Secretary has presented sufficient evidence to demonstrate that the negligence was high.
While Bredfield may have been the person responsible for conducting the examinations, there is
no evidence in the record to support that supposition. It is not clear if he is the only management
employee at the mine, or if he designated another individual to conduct an examination.
Therefore, I find the negligence to be moderate and assess a penalty of $3,500.00.
Citation No. 8881854
The final citation was issued by Inspector Brent Oxier during a hazard complaint
inspection. Oxier observed a miner standing on top of the shaker platform removing rock from
the screens. The miner was not wearing fall protection. Oxier measured that the platform was 11
feet, 9 inches above ground. See Sec’y Ex. 1, p. 7. A walkway below the cited area had a
handrail, but the miner was working above the handrail, and the walkway was narrow. See Sec’y
Ex. 1, p. 5. Oxier believed the miner was in danger of falling, because his back was close to the

39 FMSHRC Page 1444

screen wall edge and he was bent over striking the screen with a hammer to dislodge a rock. If
the miner were to step back, he could fall backwards to the walkway below or to the ground.
Oxier believed that the miner’s actions were common practice at the mine, because the miner
was aware that Oxier was on site for an inspection. Miners told Oxier that they removed rock
from the screens twice per week.
Bredfield believed that the handrail surrounding the screen provided sufficient protection.
He stated that the walkway with the handrail was wider than Oxier believed, 22 inches instead of
9 inches. Bredfield also stated that a miner working to dislodge rocks from the screen would be
working on his hands and knees and so not in danger of falling, and a 12 inch sideboard around
the screen would prevent anyone from falling.
Oxier cited the mine for a violation of 30 C.F.R. § 56.15005, which provides that “Safety
belts and lines shall be worn when persons work where there is danger of falling; a second
person shall tend the lifeline when bins, tanks, or other dangerous areas are entered.” I find that
the Secretary has proven a violation. Because the miners were working to dislodge rocks on a
platform with no hand rail, there was a danger of falling. There is no dispute that the miner
observed was not wearing fall protection. Because a 12 inch barrier was present, I find that the
violation was the result of moderate negligence.
The Secretary alleges that the violation was S&S. Applying the Mathies criteria, the
Secretary has proven a violation of a mandatory standard. I find that the hazard of a miner falling
from the top of the screen was reasonably likely to occur, given that the work was performed
several times per month, and the miner was likely to be in an unstable position while working to
dislodge rocks from the screen. While Bredfield stated that the miner would be on his hands and
knees, Oxier observed someone standing. The second Mathies element is satisfied. Oxier
believed that a miner would be more likely to fall to the catwalk below than to the ground, but he
believed that such a fall would likely cause permanently disabling injury. I credit these findings
and find that the third and fourth Mathies elements are satisfied. The violation is S&S. The
Secretary proposed a penalty of $1,078.00, which I find appropriate.
III. PENALTY
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). The Secretary calculates penalties using the penalty
regulations set forth in 30 C.F.R. § 100.3 or following the guidelines for special assessments in
30 C.F.R. § 100.5. When an operator notifies the Secretary that it intends to challenge a penalty,
the Secretary then petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28.
Commission Judges are not bound by the Secretary’s penalty regulations or his special
assessments. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act requires that
in assessing civil monetary penalties, the judge must consider six statutory penalty criteria: the
operator’s history of violations, its size, whether the operator was negligent, the effect on the
operator’s ability to continue in business, the gravity of the violation, and whether the violation

39 FMSHRC Page 1445

was abated in good faith. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the
Commission has held that judges must make findings of fact on the statutory penalty criteria.
Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147, 1152 (7th Cir.
1984). Once these findings have been made, a judge’s penalty assessment for a particular
violation is an exercise of discretion “bounded by proper consideration of the statutory criteria
and the deterrent purposes underlying the Act’s penalty scheme.” Id. at 294; see also Cantera
Green, 22 FMSHRC 616, 620 (May 2000). The Commission requires that its judges explain any
substantial divergence from the penalty proposed by the Secretary. Am. Coal, 38 FMSHRC at
1990. However, the judge’s assessment must be de novo based upon her review of the record,
and the Secretary’s proposal should not be used as a starting point or baseline. Id.
With regard to the criterion of ability to continue in business, the Commission has held
that the burden rests on the operator to produce evidence that the proposed penalty will affect its
ability to continue in business. Mize Granite Quarries, Inc., 36 FMSHRC 2801, 2804 (Nov.
2014); Broken Hill Mining, 19 FMSHRC 673, 677-78 (Apr. 1997). In the absence of such
evidence, it is presumed that no such adverse effect would occur. Mize, 36 FMSRHC at 2804;
Sellersburg, 5 FMSHRC at 294. Thus, the judge may only adjust a penalty based on an
operator’s inability to pay when there is evidence in the record relevant to that point. Mize, 36
FMSHRC at 2804.
The history of assessed violations has been admitted into evidence and shows 16
violations in the 15-month period prior to the inspection. This includes two citations for missing
berms or guardrails, two for inadequate guarding on moving machine parts, one for an exposed
electrical conductor, and three for failure to inspect a fire extinguisher. The parties agree that the
citations in this docket were abated in good faith, and the mine has raised no defense of ability to
pay. LRock is a small operator. The negligence and the gravity have been discussed above with
respect to each citation.
Based on these factors, I assess the penalties as follows:

Citation No.

Originally
Proposed
Penalty

Penalty
Assessed

Modification

$484.00
$145.00
$216.00
$7,964.00
$722.00
$324.00
$1,078.00
$216.00
$216.00
$145.00

None.
None.
None.
None.
None.
None.
None.
None.
None.
None.

Docket No. WEST 2016-0705
8872971
8872972
8872973
8872974
8872975
8872977
8872978
8872979
8872980
8872982

$484.00
$145.00
$216.00
$7,964.00
$722.00
$324.00
$1,078.00
$216.00
$216.00
$145.00

39 FMSHRC Page 1446

8872983
8872984
8872985
8872986
8872987
8872988
8872989
8872990
8881854
TOTAL

$722.00
$2,398.00
$7,964.00
$114.00
$145.00
$216.00
$145.00
$7,964.00
$1,078.00
$32,256.00

$722.00
$300.00
$3,000.00
$114.00
$145.00
$216.00
$0.00
$3,500.00
$1,078.00
$20,585.00

None.
Remove S&S designation.
Modify negligence from high to moderate.
None.
None.
Modify citation, no penalty change
Vacate.
Modify negligence from high to moderate.
None.

IV. ORDER
Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $20,585.00
within 30 days of the date of this decision.

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

Distribution: (U.S. First Class Certified Mail)
Daniel Brechbuhl, Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd, Suite
216, Denver, CO 80204
John Bredfield, LRock Industries, 451 Mandy Rd, Toledo, WA 98591

39 FMSHRC Page 1447

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

July 26, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2016-730-M
A.C. No. 04-01891-418057 VVG

v.
Eliot Plant
RAIN-FOR-RENT,
Respondent
DECISION
Appearances:

Jose Figueroa, Mine Safety and Health Administration, Vacaville,
California, and Isabella Finneman, Esq., Office of the Solicitor, U.S.
Department of Labor, San Francisco, California, for Petitioner;
B.J. Walker, Esq., Rose Law Firm, Little Rock, Arkansas, for Respondent.

Before:

Judge Manning

This case are before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Rain-For-Rent (“RFR”) pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties presented testimony
and documentary evidence at a hearing held in San Jose, California, and filed post-hearing briefs.
Two section 104(a) citations were adjudicated at the hearing. RFR was an independent contractor
performing work at the Eliot Plant, a sand and gravel operation in Alameda County, California.
Although I have not included a detailed summary of all evidence or each argument raised by the
parties, I have fully considered the entire record in rendering this decision.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
The parties agreed upon several general stipulations set forth in the bullet points below:






Respondent Rain-For-Rent is a contractor that provides temporary liquid handling
solutions, including pumps, tanks, filtration and spill containment to different industries,
including mine operators in the United States, Canada and United Kingdom.
Respondent provided services to the CEMEX Construction Materials Pacific LLC, which
operates Eliot Plant, MSHA I.D. No. 04-01891, in Alameda County, CA.
The case is subject to the jurisdiction of the Commission and the assigned judge.
The MSHA inspector was acting in his official capacity when the citations were issued.

39 FMSHRC Page 1448








The subject citations were properly served by a duly authorized representative on the date
and place stated therein, and may be admitted into evidence for the purpose of
establishing their issuance, and not for the truthfulness or relevance of any statements
asserted therein.
Respondent demonstrated good faith in abating the conditions noted in the subject
citations.
Respondent had no history of MSHA violations as of the date that the subject citations
were issued.
Respondent and its representatives have at all times cooperated with the investigation.
Respondent demonstrated good faith in addressing the conditions noted in the subject
citations.

It is important to emphasise that the Commission and courts have uniformly held that
mine operators are strictly liable for violations of safety and health standards. See, e.g., Asarco v.
FMSHRC, 868 F.2d 1195 (10th Cir. 1989). “[W]hen a violation of a mandatory safety standard
occurs in a mine, the operator is automatically assessed a civil penalty.” Id. at 1197. In addition,
the Secretary is not required to prove that a violation creates a safety hazard, unless the safety
standard so provides.
The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety hazard in order for a
valid citation to issue. If conditions existed which violated the
regulations, citations [are] proper.
Allied Products, 666 F.2d 890, 892-93 (5th Cir. 1982) (footnote omitted). The negligence of the
operator and the degree of the hazard created by the violation are taken into consideration in
assessing a civil penalty under section 110(i). 30 U.S.C. § 820(i).
A. Citation No. 8785486
Citation No. 8785486, issued under section 104(a) of the Mine Act on July 6, 2016,
alleges a violation of section 56.13015 of the Secretary’s safety standards and asserts that an air
receiver tank1 in the bed of a truck did not have a current record of inspection. Moreover, the
citation asserts that the truck is used daily and that persons would suffer potentially fatal injuries
in the event of a pressure vessel explosion. Section 56.13015 requires, in pertinent part, that
“[c]ompressed-air receivers and other unfired pressure vessels shall be inspected by inspectors
holding a valid National Board Commission and in accordance with the applicable chapters of
the National Board Inspection Code, a Manual for Boiler and Pressure Vessel Inspectors, 1979.”2
30 C.F.R. § 56.13015.
1

The terms “tank” and “pressure vessel” are used interchangeably throughout the

decision.
2

For brevity’s sake the National Board Inspection Code is referred to as the “NBIC”
throughout the decision.

39 FMSHRC Page 1449

Inspector Nicholas Basich3 determined that the condition was unlikely to cause an injury
or illness but, if it did, the injury could reasonably be expected to be fatal. He further determined
that one person was affected, the condition was not significant and substantial, and Respondent
was moderately negligent. The Secretary proposed a penalty of $114.00 for this alleged
violation.
The parties agreed upon the following stipulations with respect to this citation:






The air compressor referenced in Citation [N]o. 8785486 was a Quincy model, with a 30
gallon air receiver tank, which was mounted on the Ford F-550 company service truck
(company #2102).
During the subject inspection, Respondent did not produce to the MSHA inspector, in
response to the MSHA inspector’s request, any documents showing that the air
compressor referenced in Citation [N]o. 8785486 had been inspected by an inspector
holding a valid National Board Commission and in accordance with the applicable
chapters of the National Board Inspection Code.
The alleged violation in Citation No. 8785486 has been terminated.
Summary of the evidence

Inspector Basich was at Cemex’s Eliot Plant (the “mine”) in July of 2016 to conduct a
regular inspection. Tr. 10-11. RFR was a contractor at the mine. Tr. 11. During his inspection he
observed a RFR service truck parked adjacent to the mine shop. Tr. 11-12. An air compressor
and receiver tank were mounted on the bed of the truck. Tr. 12. Inspector Basich inspected the
pressure vessel, relief valve and gauge. Tr. 45. As part of that inspection he looked for an
identification number on the receiver tank but did not find one. Tr. 12.
Based on his observations, Inspector Basich issued Citation No. 8785486 for an alleged
violation of section 56.13015 of the Secretary’s safety standards. Tr. 14. He explained that the
cited standard requires pressure vessels to be inspected by someone with a “valid National Board
Commission and in accordance with the National Board Inspection Code [of] 1979”. Tr. 14.
According to Inspector Basich, an identification number can be used to determine if the tank has
been inspected by someone holding a valid National Board Commission. Tr. 12. Here, Inspector
Basich explained the tank did not have a stamp on it indicating that it had been inspected by
someone with a valid National Board Commission and the driver could not produce
documentation showing that a proper inspection had been conducted even after given the
opportunity to call his office.4 Tr. 12, 20, 29, 39-40, 60, 149.
3

Inspector Basich has worked for MSHA for over four years. Tr. 9. In addition to
standard training at the Mine Academy, he has had journeyman training and special investigation
training. Tr. 10. He is trained on pressure vessels, the NBIC, and fire prevention. Tr. 10.
4

On cross-examination, Inspector Basich confirmed that the citation was issued for
failure to inspect the pressure vessel and not for failing to provide record of an inspection, which
would have been cited under a different subsection of the Secretary’s standard. Tr. 47

39 FMSHRC Page 1450

Inspector Basich agreed that, while it can be presumed that a pressure vessel has been
inspected by a manufacturer, the standard requires that the inspection be done by someone
holding a “valid National Board Commission[,]” and the pressure vessel needs to be inspected
when it changes ownership and at the time of installation before placing the pressure vessel into
service. Tr. 20, 30. On cross-examination Inspector Basich explained that, while he did not see a
“manufacturer’s plate” on the tank, the presence of one would not change his opinion because
the tank, valves, gauges and hoses can be damaged after the tank leaves the manufacturer. Tr. 4951. As a result, he stated that RFR could not rely on any manufacturer’s plate applied to the tank
since that was only proof of an inspection by the manufacturer. Tr. 50-53.
Robert Kelly George5, the vice president for health and safety for the company doing
business as RFR, testified that he conducted an internal investigation surrounding the
circumstances of both citations at issue in this case. Tr. 79. He explained that RFR had pumps at
the mine and the service truck driver, a mechanic, was at the mine to work on the pumps. Tr. 83.
George testified that after the subject citation was issued, he contacted someone at the RFR
branch and had them take photographs of the pressure vessel. Tr. 93; RX-1. George explained
that the photographs show that the pressure vessel was equipped with a manufacturer’s plate and
American Society for Testing and Materials (“ASTM”) stamp indicating that the tank had been
inspected to the ASTM standard.6 Tr. 86-88, 93; RX-1. George acknowledged that the purpose of
the NBIC is to maintain the integrity of the pressure vessels after they are put into service and
that the Code “requires that the air compressor be inspected when it’s first put into service.” Tr.
88,118. Moreover, he averred that any follow-up inspection under the NBIC was not yet due, as
the tank had been in service for less than a year. Tr. 88. However, on cross-examination he
conceded that he was unaware how many hands the compressor and pressure vessel went
through after it was manufactured and before it ultimately ended up on RFR’s truck, was not sure
who installed the compressor and pressure vessel on the service truck, and had no recollection as
to whether anyone with a National Board Commission had inspected the compressor after RFR
came into possession of it. Tr. 119. Moreover, he acknowledged that RFR purchased the truck
from a dealership and that a third party was responsible for making sure that the air compressor
and pressure vessel were correctly installed upon the truck. Tr. 123-124. Finally, he conceded
that, while he knew the pressure vessel had been inspected after the manufacturer’s plate was
attached, he could not be sure if those inspections satisfied the NBIC. Tr. 134.

5

George currently oversees health and safety for Western Oil Fields Supply Company,
doing business as RFR, and its 1600 employees. Tr. 75-76. Prior to working at RFR he worked
as a fire fighter, paramedic, OSHA compliance officer, and a safety director of another private
entity. Tr. 75-77. While he was trained as an OSHA compliance officer and wrote citations in
that role, he is not trained on how to enforce MSHA safety standards. Tr. 77, 115. George has a
master’s degree in occupational safety and health, is familiar with various safety and health
regulations, and is currently enrolled in law school. Tr. 78.
6

ASTM is an international standards organization that develops and publishes voluntary
consensus standards for a wide range of materials and products. The ASTM stamp presumably
indicated that the tank met ASTM standards.

39 FMSHRC Page 1451

Fact of Violation
I find that the Secretary has established a violation. The requirements of the cited
standard are twofold. First, it requires that pressure vessels be inspected by persons holding a
valid National Board Commission. Second, it requires that the inspection be conducted in
accordance with the applicable chapters of the NBIC.7 Because RFR violated the first
requirement, I find that consideration of the second requirement unnecessary.
Inspector Basich testified that RFR provided no record of an inspection conducted by an
individual with a National Board Commission and the parties stipulated to that fact. RFR offered
no evidence to the contrary. Accordingly, I find that a violation existed under the standard’s first
requirement. 8
RFR cites D&H Gravel, 31 FMSHRC 272, 279-80 (Feb. 2009) (Judge Manning), for the
proposition that a manufacture’s tag on a new pressure vessel is evidence that a proper inspection
was conducted. However, limited facts are available in that decision and it does not appear that
the question of whether the pressure vessel was inspected by someone with a National Board
Commission was raised by either party. Accordingly, I find that D&H Gravel is distinguishable
and my ruling in that case should not be applied here.

7

Both parties offered testimony, introduced evidence, and presented arguments regarding
California state regulations as they relate to the NBIC. The NBIC states that “where any
provision herein presents a direct or implied conflict with any lawful regulation in any
governmental jurisdiction, the lawful regulation shall govern and such compliance shall be
made.” PX-4 p.4. In its brief, RFR contends that MSHA cannot constitutionally base a citation
on an alleged violation of California state regulations. RFR Br. 3-9. However, no evidence was
presented to show that California regulations would have exempted the tank from inspection.
Consequently, no conflict existed. For the reasons set forth herein, I find that this matter can be
decided based solely on the safety standard cited by Inspector Basich. Accordingly, I do not
address the issue of whether MSHA can enforce state regulations where they conflict with the
NBIC.
8

RFR, in its brief, asserts that the inspection conducted by the manufacturer of the
pressure vessel, as evidenced by the manufacturer’s plate and ASTM stamp, satisfied the
standard. Although an inspection may have been conducted, nothing in the record establishes
that it was conducted in accordance with the NBIC. The placement of the ASTM stamp on the
tank does not meet the requirements of the Secretary’s safety standard. The purpose of the NBIC
is “to maintain the integrity of . . . pressure vessels after they have been placed into service.” PX4 p. 3 (emphasis added). The NBIC requires that inspections be conducted “at the time of
installation.” PX-4 p. 5. Here, at some point subsequent to the manufacturer’s inspection, the
compressor and pressure vessel were installed on the service truck prior to that truck being
turned over to RFR and put into service.

39 FMSHRC Page 1452

Gravity
Inspector Basich determined that the condition was unlikely to cause an injury or illness
because the tank, relief valve and gauge were in good condition with no defects. Tr. 20-21, 46,
62. However, he stated that in the event an injury were sustained it would be fatal since a defect
affecting the performance of the compressor could cause the tank to become overcharged and
explode, sending shrapnel in all directions and striking persons close by. Tr. 21, 61.
I find that the gravity was extremely low. The pressure vessel, while not inspected to
NBIC standards, had been inspected to ASTM standards and no signs of damage or other
problems were observed by Inspector Basich. The tank had been recently installed. There was
little to no likelihood that an injury causing explosion due to overcharging would occur.
Nevertheless, under the Act’s strict liability structure the condition constituted a violation.
Negligence
Inspector Basich designated the citation as being the result of moderate negligence
because RFR should have known that the safety standard required proper inspection of the tank,
yet no inspection had taken place during the six months the truck had been in service. Tr. 21-22.
I find that RFR’s negligence was low. The pressure vessel was new and RFR relied,
albeit in error, on the manufacturer’s inspection to the ASTM standard. RFR is a large contractor
but does relatively little work in the mining industry. I find that the facts in this instance weigh in
favor of a low negligence finding. Accordingly, I MODIFY the citation to low negligence and
assess a penalty of $100.00.
B. Citation No. 8785487
Citation No. 8785487, issued under section 104(a) of the Mine Act on July 6, 2016,
alleges a violation of section 56.4402 of the Secretary’s safety standards and asserts that a safety
can full of gasoline was not labeled to indicate its contents. Further, the citation asserts that the
can was located in the back of a truck that was used daily and persons were exposed to hazards
associated with misuse of the can’s contents. Section 56.4402 requires that “[s]mall quantities of
flammable liquids drawn from storage shall be kept in safety cans labeled to indicate the
contents.” 30 C.F.R. § 56.4402.
Inspector Nicholas Basich determined that the condition was unlikely to cause an injury
or illness but, if it did, the injury could reasonably be expected to result in lost workdays or
restricted duty. He further determined that one person was affected, the condition was not
significant and substantial, and Respondent was moderately negligent. The Secretary has
proposed a penalty of $114.00 for this alleged violation.
The parties agreed upon the following stipulations with respect to this citation:


30 CFR § 56.4402 does not require any specific labeling on a safety can other than that
the labeling “indicate the contents”.

39 FMSHRC Page 1453








There is no requirement under the Mine Safety and Health Act that labeling of a safety
can be in specific location on the can.
There is no requirement under the Mine Safety and Health Act that labeling of a safety
can be in a specific size or color.
There is no requirement under the Mine Safety and Health Act that labeling of a safety
can be in specific language.
The safety can which is the basis for Citation No. 8785487 was red in color at the time of
the subject inspection.
The safety can which is the basis for Citation No. 8785487 was marked with a yellow
stripe at the time of the subject inspection.
The alleged violation in Citation No. 8785487 was terminated immediately.
Summary of the evidence

While inspecting the same RFR service truck discussed above, Inspector Basich observed
two red five gallon safety cans in the bed of the truck. Tr. 23, 64. While one can had the word
“diesel” written on it, the other can did not have wording on it indicating the contents. Tr. 23-24.
The unmarked five gallon safety can was full of gasoline. Tr. 23-24.
Based on his observations, Inspector Basich issued Citation No. 8785487 for an alleged
violation of section 56.4402 of the Secretary’s safety standards. Tr. 26. He explained that the
cited standard requires that small quantities of flammable liquids must be kept in safety cans
labeled to indicate their contents. Tr. 26. Although the gasoline was in a proper safety can, the
can was not labeled to indicate its contents. Tr. 25-26, 67. The can had warning symbols, but not
the words “gas” or “gasoline.” Tr. 65.
George testified that he examined the subject safety can and reviewed the can
manufacturer’s website as part of his own investigation and believes that the can complied with
the cited standard because the can was “labeled.” Tr. 97-98. He explained that the subject safety
can, which was red with the yellow stripe, was consistent with industry practice and met the
requirements under multiple non-MSHA standards, e.g., Department of Transportation,
Occupational Safety and Health Administration, National Fire Protection Association,
Underwriters Laboratories. Tr. 99, 103. In particular, he noted that OSHA does not require that
“gasoline” be written on the can and instead requires that a red safety can with a yellow stripe be
used for “flammable liquids with a flash point below 80 degrees Fahrenheit.” Tr. 100, 105.
Moreover, he testified that warnings on the cited can that stated “danger, . . . extremely
flammable, harmful or fatal if swallowed[,] . . . [were] additional evidence of [the can] being
labeled.” Tr. 102. Further, he stated that the RFR employee/driver knew exactly what was in the
can and RFR’s own policy says that “a red safety can will be used for gasoline . . .[, a] yellow
safety can will be used for diesel . . . [and if] you vary from that, you must mark the can
conspicuously with what it contains.” Tr. 99-101. Finally, he stated that the benefit of color
coding instead of wording is that the meaning is more universally understood. Tr. 107-109. On
cross-examination he agreed that, although RFR’s color policy is communicated to its
employees, other workers at a mine site may not be privy to that policy. Tr. 129.

39 FMSHRC Page 1454

Fact of Violation
I find that the Secretary established a violation of the cited standard. The cited standard,
as relevant to this matter, requires that flammable liquids shall be kept in safety cans labeled to
indicate the contents. 30 C.F.R. § 56.4402. There is no dispute that gasoline, a flammable liquid,
was kept in the can and that the can was a proper “safety can.” Accordingly, the only question
that remains is whether the can was “labeled to indicate its contents.” I find that in order to
comply with the standard, the can would have to be labeled to indicate that it contained gasoline.
The words “gas” or “gasoline” did not appear on the can. Accordingly, I find that the can was not
labeled to indicate its contents.
RFR argues that the color scheme of the can amounted to a proper label. It avers that the
color scheme satisfies the labeling requirements of multiple non-MSHA regulations9 and, as a
result, it is an industry norm and should satisfy the MSHA standard. As an example, George
testified that, under OSHA, the red and yellow color scheme signals that “flammable liquids with
a flash point below 80 degrees Fahrenheit” are in the can. While I decline to address whether
OSHA’s regulation, as described by George, was satisfied, I find that MSHA’s safety standard
requires more. Specifically, it requires that the labeling indicate the contents of the safety can. It
is not enough to simply provide information that indicates the characteristics of the contents of
the can, i.e., the flash point and whether the material is flammable. Rather, the label must
indicate the actual contents, i.e., gasoline.
The color scheme implemented by RFR, while it may have satisfied other non-MSHA
regulations, did not provide the information necessary to satisfy the Secretary’s standard.
Although RFR asserts that the red color scheme is indicative that a safety can contains gasoline,
RFR violated this rule in this instance, as evidenced by fact that RFR also used a red safety can
on this very truck for diesel fuel. The other red can in the truck that day had the word “diesel”
written on it. The Commission interprets safety standards to take into consideration “ordinary
human carelessness.” Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). “Even a
skilled employee may suffer a lapse of attentiveness, either from fatigue or environmental
distractions[.]” Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983). Having two red
cans with different contents could cause confusion where one can is not labeled. Written labels10
which indicate the contents of a safety can are intended to help avoid the guesswork of what
might be in a can and help guard against the misuse of the can’s contents as a result of a lapse in
9

Although materials introduced into evidence from the manufacturer of the safety can
state that the can meets multiple standards, MSHA standards are not listed. RX-3 p. 1.
10

MSHA’s HazCom standards include a definition of “label” at section 47.11. A label is
defined as “[a]ny written, printed, or graphic material displayed on or affixed to a container to
identify its contents and convey other relevant information.” 30 C.F.R. § 47.11 (emphasis added).
Although not directly applicable here, that definition provides that a label must indicate the
contents of the container even if it conveys other relevant information such as the flashpoint.
Although I agree with RFR that red cans are typically used in industry to store gasoline, I find
that color alone, even with a yellow stripe, is not sufficient to meet the requirement of the cited
safety standard.

39 FMSHRC Page 1455

attention, or fatigue. The lack of the word “gas” or “gasoline” in this instance could result in
such misuse.
Gravity
Inspector Basich determined that the condition was unlikely to cause an injury or illness
because the can was in good condition, and the driver was aware of the contents and was the
only person accessing the bed of the truck that day. Tr. 27-28, 68. However, Inspector Basich
stated that in the event an injury were sustained it would result in lost workdays or restricted duty
because the misuse of a flammable liquid could lead to a fire or explosion which could result in
shock or burn injuries. Tr. 28, 66.
George testified that RFR maintains a written policy and its employees are trained so that
they would always know what was in the subject can. Tr. 104. The policy has never been
confused in the past. Tr. 104-105. Had the policy been confused and diesel accidently been
mistaken for gasoline, or vice versa, he would have known about it because it would have
destroyed an engine. Tr. 104-105.
I find that the gravity was very low. There was little to no likelihood of an injury being
sustained given that the container was a proper safety can, and the RFR employee was aware of
the contents, trained to identify the contents based on RFR’s policy, and was the only individual
who would likely use the can. Nevertheless, the lack of a proper label created the potential for
misusing the contents of the can. Although Inspector Basich testified that the misuse of the
contents of the can could lead to a fire or explosion, I credit George’s testimony and find that the
far more likely outcome of the condition of the cans on the truck would be gasoline being
mistakenly put into a diesel engine or diesel fuel being put in a gasoline engine, thereby ruining
the engine. Accordingly, I find that, in this particular instance the condition is far less of a safety
concern and more of an equipment protection issue. Nevertheless, as with the above citation,
under the Act’s strict liability structure the condition constituted a violation with low gravity.
Negligence
Inspector Basich designated the negligence as moderate because RFR was aware of the
standard, as evidenced by one of the two cans being properly labeled. Tr. 28.
I find that RFR’s negligence was low. RFR had a reasonable good faith belief that it was
in compliance with the standard. While I find that RFR’s color scheme does not satisfy the
Secretary’s safety standard, I find that its policy and training are mitigating factors. Moreover,
although the Secretary argues that the word “diesel” written on the other safety can was an
indication that RFR was aware of the standard, I find that RFR’s policy, which required
employees to “mark the can conspicuously with what it contains” only if the contents deviated
from the understood color scheme, also explains why one can was marked but the other was not.
Accordingly, I MODIFY the citation to low negligence and assess a penalty of $100.00.

39 FMSHRC Page 1456

II. APPROPRIATE CIVIL PENALTY
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. 30 U.S.C. § 820(i). Neither MSHA’s website nor Exhibit A to the
Petition for Assessment of a Civil Penalty reflect any hours worked by RFR during the relevant
time period. While George testified that RFR has approximately 1,600 employees, it does very
little work in the mining industry. RFR did not assert that the penalties will affect its ability to
remain in business. The parties have stipulated that RFR had no history of MSHA violations as
of the date that the subject citations were issued. The citations were timely abated. The
negligence and gravity are discussed above. Based on the penalty criteria I assess a total penalty
of $200.00.
III. ORDER
For the reasons set forth above, Citation Nos. 8785486 and 8785487 are MODIFIED to
low negligence. Rain-For-Rent is ORDERED TO PAY the Secretary of Labor the sum of
$200.00 within 30 days of the date of this decision.11

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

Distribution:
Jose Figueroa, Conference & Litigation Representative, Mine Safety & Health Administration,
991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687 (Certified Mail)
Isabella M. Finneman, Esq., Office of the Solicitor, U.S. Dept. of Labor, 90 7th Street,
Suite 3-700, San Francisco, CA 94103-6704 (First Class Mail)
B.J. Walker, Esq., Rose Law Firm, 120 East Fourth Street, Little Rock, AR 72201-2893
(Certified Mail)

11

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.

39 FMSHRC Page 1457

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9950 / FAX: 202-434-9949

July 27, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS

v.
ALEX ENERGY, INC.;

Docket No. WEVA 2017-0007
A.C. No. 46-08787-419124
Mine: Jerry Fork Eagle
Docket No. WEVA 2016-0530
A.C. No. 46-08977-414431
Mine: Edwight Surface Mine

ALPHA COAL WEST;

Docket No. WEST 2016-0688
A.C. No. 48-00732-417342
Mine: Belle Ayr Mine
Docket No. WEST 2017-0011
A.C. No. 48-00732-419767
Mine: Belle Ayr Mine
Docket No. WEST 2017-0060
A.C. No. 48-00732-422060
Mine: Belle Ayr Mine
Docket No. WEST 2017-0155
A.C. No. 48-00732-426371
Mine: Belle Ayr Mine

39 FMSHRC Page 1458

CUMBERLAND COAL RESOURCES,
LP;

Docket No. PENN 2016-0142
A.C. No. 36-05018-403227
Mine: Cumberland Mine
Docket No. PENN 2016-0186
A.C. No. 36-05018-405519
Mine: Cumberland Mine
Docket No. PENN 2016-0187
A.C. No. 36-05018-405519
Mine: Cumberland Mine
Docket No. PENN 2016-0250
A.C. No. 36-05018-410385
Mine: Cumberland Mine
Docket No. PENN 2016-0254
A.C. No. 36-05018-412007
Mine: Cumberland Mine
Docket No. PENN 2016-0265
A.C. No. 36-05018-412753
Mine: Cumberland Mine
Docket No. PENN 2016-0266
A.C. No. 36-05018-412753
Mine: Cumberland Mine
Docket No. PENN 2016-0313
A.C. No. 36-05018-415157
Mine: Cumberland Mine
Docket No. PENN 2016-0315
A.C. No. 36-05018-417506
Mine: Cumberland Mine

39 FMSHRC Page 1459

Docket No. PENN 2017-0001
A.C. No. 36-05018-419879
Mine: Cumberland Mine
Docket No. PENN 2017-0019
A.C. No. 36-05018-422195
Mine: Cumberland Mine
Docket No. PENN 2017-0084
A.C. No. 36-05018-426549
Mine: Cumberland Mine
DICKENSON-RUSSELL COAL
COMPANY;

Docket No. VA 2016-0223
A.C. No. 44-02277-416614
Mine: Moss No. 3 Plant
Docket No. VA 2017-0008
A.C. No. 44-05311-419098
Mine: McClure River Plant

EMERALD COAL RESOURCES, LP;

Docket No. PENN 2016-0137
A.C. No. 36-05466-402236
Mine: Emerald Mine No. 1
Docket No. PENN 2016-0138
A.C. No. 36-05466-402236
Mine: Emerald Mine No. 1
Docket No. PENN 2016-0180
A.C. No. 36-05466-404377
Mine: Emerald Mine No. 1
Docket No. PENN 2016-0189
A.C. No. 36-05466-406608
Mine: Emerald Mine No. 1

39 FMSHRC Page 1460

Docket No. PENN 2016-0190
A.C. No. 36-05466-407666
Mine: Emerald Mine No. 1
KINGSTON MINING, INC.;

Docket No. WEVA 2015-1034
A.C. No. 46-08625-391848
Mine: Kingston No. 1
Docket No. WEVA 2015-1035
A.C. No. 46-08625-391848
Mine: Kingston No. 1
Docket No. WEVA 2016-0252
A.C. No. 46-08625-403276
Mine: Kingston No. 1
Docket No. WEVA 2016-0362
A.C. No. 46-08625-405568
Mine: Kingston No. 1
Docket No. WEVA 2016-0363
A.C. No. 46-08932-405572
Mine: Kingston No. 2
Docket No. WEVA 2016-0411
A.C. No. 46-08625-407843
Mine: Kingston No. 1
Docket No. WEVA 2016-0412
A.C. No. 46-08932-407846
Mine: Kingston No. 2
Docket No. WEVA 2016-0473
A.C. No. 46-08625-410448
Mine: Kingston No. 1

39 FMSHRC Page 1461

Docket No. WEVA 2016-0474
A.C. No. 46-08932-410451
Mine: Kingston No. 1
Docket No. WEVA 2016-0509
A.C. No. 46-08625-412788
Mine: Kingston No. 1
Docket No. WEVA 2016-0510
A.C. No. 46-08932-412791
Mine: Kingston No. 2
Docket No. WEVA 2016-0537
A.C. No. 46-08932-415188
Mine: Kingston No. 2
Docket No. WEVA 2016-0539
A.C. No. 46-08625-415185
Mine: Kingston No. 1
Docket No. WEVA 2016-0587
A.C. No. 46-08625-417551
Mine: Kingston No. 1
Docket No. WEVA 2016-0588
A.C. No. 46-08932-417553
Mine: Kingston No. 2
Docket No. WEVA 2017-0012
A.C. No. 46-08932-419952
Mine: Kingston No. 2
Docket No. WEVA 2017-0181
A.C. No. 46-04343-426593
Mine: Kingston Processing

39 FMSHRC Page 1462

KNOX CREEK COAL CORPORATION;

Docket No. VA 2016-0237
A.C. No. 44-05236-417108
Mine: Coal Creek Prep Plant

MARFORK COAL COMPANY;

Docket No. WEVA 2016-0114
A.C. No. 46-08315-395962
Mine: Brushy Eagle
Docket No. WEVA 2016-0115
A.C. No. 46-08315-395962
Mine: Brushy Eagle
Docket No. WEVA 2016-0117
A.C. No. 46-09091-395966
Mine: Horse Creek Eagle
Docket No. WEVA 2016-0235
A.C. No. 46-08315-402480
Mine: Brushy Eagle
Docket No. WEVA 2016-0288
A.C. No. 46-08315-404630
Mine: Brushy Eagle
Docket No. WEVA 2016-0289
A.C. No. 46-08315-404630
Mine: Brushy Eagle
Docket No. WEVA 2016-0291
A.C. No. 46-09048-404635
Mine: Slip Ridge Cedar Grove Mine
Docket No. WEVA 2016-0292
A.C. No. 46-09091-404637
Mine: Horse Creek Eagle

39 FMSHRC Page 1463

Docket No. WEVA 2016-0394
A.C. No. 46-09048-407030
Mine: Slip Ridge Cedar Grove Mine
Docket No. WEVA 2016-0395
A.C. No. 46-09091-407031
Mine: Horse Creek Eagle
Docket No. WEVA 2016-0396
A.C. No. 46-09091-407031
Mine: Horse Creek Eagle
Docket No. WEVA 2016-0445
A.C. No. 46-08315-408818
Mine: Brushy Eagle
Docket No. WEVA 2016-0457
A.C. No. 46-08315-409549
Mine: Brushy Eagle
Docket No. WEVA 2016-0458
A.C. No. 46-09048-409554
Mine: Slip Ridge Cedar Grove Mine
Docket No. WEVA 2016-0492
A.C. No. 46-09048-411991
Mine: Slip Ridge Cedar Grove Mine
Docket No. WEVA 2016-0493
A.C. No. 46-09048-411991
Mine: Slip Ridge Cedar Grove Mine
Docket No. WEVA 2016-0494
A.C. No. 46-09091-411993
Mine: Horse Creek Eagle

39 FMSHRC Page 1464

Docket No. WEVA 2016-0495
A.C. No. 46-09092-411994
Mine: Allen Powellton Mine
Docket No. WEVA 2016-0533
A.C. No. 46-08315-414427
Mine: Brushy Eagle
Docket No. WEVA 2016-0535
A.C. No. 46-09092-414435
Mine: Allen Powellton Mine
Docket No. WEVA 2016-0536
A.C. No. 46-09092-414435
Mine: Allen Powellton Mine
Docket No. WEVA 2016-0538
A.C. No. 46-09091-414434
Mine: Horse Creek Eagle
Docket No. WEVA 2016-0573
A.C. No. 46-09048-416634
Mine: Slip Ridge Cedar Grove Mine
Docket No. WEVA 2016-0574
A.C. No. 46-09091-416636
Mine: Horse Creek Eagle

Docket No. WEVA 2016-0575
A.C. No. 46-09091-416668
Mine: Horse Creek Eagle
Docket No. WEVA 2017-0006
A.C. No. 46-08315-419121
Mine: Brushy Eagle

39 FMSHRC Page 1465

Docket No. WEVA 2017-0008
A.C. No. 46-09048-419129
Mine: Slip Ridge Cedar Grove
Docket No. WEVA 2017-0009
A.C. No. 46-09091-419131
Mine: Horse Creek Eagle
Docket No. WEVA 2017-0010
A.C. No. 46-09091-419131
Mine: Horse Creek Eagle
Docket No. WEVA 2017-0049
A.C. No. 46-08315-421486
Mine: Brushy Eagle
Docket No. WEVA 2017-0107
A.C. No. 46-08315-423681
Mine: Brushy Eagle
Docket No. WEVA 2017-0149
A.C. No. 46-08837-425730
Mine: Coon Cedar Grove Mine

PARAMOUNT COAL COMPANY;

Docket No. VA 2016-0128
A.C. No. 44-07223-404619
Mine: Deep Mine 41
Docket No. VA 2016-0205
A.C. No. 44-06929-414196
Mine: Deep Mine No. 26
Docket No. VA 2016-0206
A.C. No. 44-07223-414198
Mine: Deep Mine No. 41

39 FMSHRC Page 1466

Docket No. VA 2016-0221
A.C. No. 44-06929-416391
Mine: Deep Mine No. 26
Docket No. VA 2016-0222
A.C. No. 44-07223-416392
Mine: Deep Mine No. 41
Docket No. VA 2016-0240
A.C. No. 44-05270-418835
Mine: Toms Creek Complex
Docket No. VA 2016-0241
A.C. No. 44-07322-418842
Mine: Cabin Ridge Surface Mine
Docket No. VA 2017-0003
A.C. No. 44-06929-418838
Mine: Deep Mine No. 26
Docket No. VA 2017-0004
A.C. No. 44-06929-418838
Mine: Deep Mine No. 26
Docket No. VA 2017-0005
A.C. No. 44-07163-418839
Mine: 88 Strip
Docket No. VA 2017-0006
A.C. No. 44-07223-418840
Mine: Deep Mine 41
Docket No. VA 2017-0091
A.C. No. 44-07322-427760
Mine: Cabin Ridge Surface Mine

39 FMSHRC Page 1467

POWER MOUNTAIN COAL COMPANY;

Docket No. WEVA 2016-0590
A.C. No. 46-06880-417549
Mine: Power Mountain Processing

REPUBLIC ENERGY (ELK RUN COAL
COMPANY, INC.);

Docket No. WEVA 2016-0490
A.C. No. 46-09163-411574
Mine: Roundbottom Powellton Deep Mine
Docket No. WEVA 2016-0570
A.C. No. 46-09163-416179
Mine: Roundbottom Powellton Deep Mine
Docket No. WEVA 2016-0571
A.C. No. 46-09163-416179
Mine: Roundbottom Powellton Deep Mine
Docket No. KENT 2017-0027
A.C. No. 15-09724-420830

SIDNEY COAL COMPANY;

Mine: No. 1 Prep Plant
SPARTAN MINING COMPANY, INC.;
Respondents.

Docket No. WEVA 2016-0491
A.C. No. 46-01544-411779
Mine: Road Fork No. 51 Mine
Docket No. WEVA 2016-0526
A.C. No. 46-01544-414206
Mine: Road Fork No. 51 Mine

Docket No. WEVA 2016-0572
A.C. No. 46-01544-416401
Mine: Road Fork No. 51 Mine

39 FMSHRC Page 1468

Docket No. WEVA 2017-0005
A.C. No. 46-01544-418846
Mine: Road Fork No. 51 Mine
Docket No. WEVA 2017-0189
A.C. No. 46-01544-427766
Mine: Road Fork No. 51 Mine
CUMBERLAND COAL RESOURCES,
LLC,
Contestant
v.

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
EMERALD COAL RESOURCES, LP,
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 2016-0122-R
Order No. 9073630; 01/11/2016
Docket No. PENN 2016-0133-R
Citation No. 9073699; 01/28/2016
Docket No. PENN 2016-0134-R
Citation No. 9074040; 01/28/2016
Mine: Cumberland Mine
Mine ID: 36-05018
Docket No. PENN 2016-0037-R
Order No. 7030180; 09/22/2015

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

Mine: Emerald Mine No. 1
Mine ID: 36-05466

KINGSTON MINING, INC,
Contestant

Docket No. WEVA 2016-0059-R
Citation No. 9053591; 09/22/2015

v.

39 FMSHRC Page 1469

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

Mine: Kingston No. 1 Mine
Mine ID: 46-08625

MARFORK COAL COMPANY, INC.,
Contestant

Docket No. WEVA 2016-0240-R
Citation No. 9054035; 02/23/2016

v.

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

Mine: Horse Creek Eagle
Mine ID: 46-09091

Respondent.

ORDER OF CONSOLIDATION
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Lesnick

These cases are before me upon ninety-seven petitions for the assessment of the civil
penalties filed under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 815(d), and six related Notices of Contest.
It is ORDERED that these cases are CONSOLIDATED for purposes of settlement,
pursuant to Commission Procedural Rule 12. 29 C.F.R. § 2700.12.
The parties have filed a joint motion to approve global settlement of the above referenced
dockets. The parties propose a reduction in the total penalty from $1,606,312.00 as proposed by
the Secretary to $803,156.00. The settlement amounts for the 523 citations and orders were
submitted by the parties in their joint motion, and Exhibits 1 and 2 attached thereto.
In support of the penalty reduction, the parties represent that the Respondents’ parent
organization, Alpha Natural Resources, Inc., is currently pursuing Chapter 11 bankruptcy
protection.1 The parties further represent as follows:
In exchange for this settlement, Alpha confirms that the Secretary
will have an “Allowed Administrative Claim” in the Bankruptcy
Case for the Agreed Amount that will be satisfied in full in
1

In Re: Alpha Natural Resources, Inc., et al., Ch. 11, Case No. 15-33896-KRH (Bankr.
E.D.V.A. filed Aug. 3, 2015).

39 FMSHRC Page 1470

accordance with the Plan. Consequently, the relief requested
herein will resolve objections to the Administrative Claim in the
Bankruptcy Case and the risks of litigation concerning the
Affected Citations/Orders.
I have considered the representations and documentation submitted in this case, and I
conclude that the proffered settlement is appropriate under the criteria set forth in Section 110(i)
of the Act.
WHEREFORE, the motion for approval of settlement and the motion to withdraw
contest of Contest Docket Nos. PENN 2016-0122, PENN 2016-0133, PENN 2016-0134, PENN
2016-0037, WEVA 2016-0059, and WEVA 2016-0240, are GRANTED.
It is further ORDERED that Alpha Natural Resources, Inc., pay a penalty of $803,156.00
within thirty (30) days of this order.2

/s/ Robert J. Lesnick
Robert J. Lesnick
Chief Administrative Law Judge
Distribution:
Eric Silkwood, Esq., Hardy & Pence, PLLC, 500 Lee Street East, Suite 701, Charleston, WV
25301
Dana Ferguson, Esq., U.S. Department of Labor, Office of the Solicitor, 2-1 12th Street South,
Suite 401, Arlington, VA 22202
/med

2

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

39 FMSHRC Page 1471

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

July 31, 2017
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2016-0107-M
A.C. No. 36-10157-400887
Docket No. PENN 2016-0144-M
A.C. No. 36-10157-403006

v.
JERMYN SUPPLY CO., LLC,
Respondent

Mine: Mayfield Quarry
DECISION1

Appearances:

John R. Slattery, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Secretary of Labor
Christopher B. Jones, Esq., for Jermyn Supply Co., LLC, Respondent

Before:

Judge Lewis

STATEMENT OF THE CASE
This cases arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801
et seq. (the “Act” or “Mine Act”). By consent of the Court and the parties, the sole question at
hearing was limited to whether the federal Mine Safety and Health Administration (“MSHA”)
has jurisdiction over Respondent’s property, the Mayfield Quarry. A hearing was held in
Scranton, Pennsylvania, on March 22, 2017, where the parties presented testimony and
documentary evidence. After the hearing, the parties submitted post-hearing briefs, which have
been fully considered.
FINDINGS OF FACT AND CONCLUSION OF LAW
The findings of fact are based on the record as a whole and the undersigned’s careful
observation of the witnesses during their testimony. In resolving any conflicts in the testimony,
the undersigned has taken into consideration the interests of the witnesses, or lack thereof, and
consistencies, or inconsistencies, in each witness’s testimony and between the testimonies of the
1

An Order Bifurcating Hearing was issued on October 28, 2016, by this Court. Due to
the initial hearing being limited to whether the Mayfield Quarry is subject to Mine Act
jurisdiction, there were no Joint Stipulations agreed to by the parties.

39 FMSHRC Page 1472

witnesses. In evaluating the testimony of each witness, the undersigned has also relied on his
demeanor. Any failure to provide detail as to each witness’s testimony is not to be deemed a
failure on the undersigned’s part to have fully considered it. The fact that some evidence is not
discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000) (administrative law judge is not required to discuss all evidence and failure to cite
specific evidence does not mean it was not considered).
I. SUMMARY OF TESTIMONY
Gary Merwine
On September 22, 2015, MSHA Inspector Gary Merwine inspected the Mayfield
Quarry.2 This facility had not been previously inspected by MSHA, and Merwine was instructed
to inspect it by his supervisor. Tr. 15. After reviewing an overview map of the site (satellite
image) of Respondent’s property, Merwine traveled to the entrance where a cable was down and
unlocked. Tr. 16-17. Merwine observed an excavator feeding a portable plant, which fed a
second portable plant. Tr. 17. Both Portable plants and the excavator were in operation. Tr. 17.
Merwine interviewed the excavator operator, Richard Dipple, who said he was employed
by owner/operator of the site, Joseph Virbitsky. Tr. 17- 18. Dipple indicated that the
Pennsylvania Department of Environmental Protection (“Pennsylvania DEP”) inspected the site.
Tr. 18. Dipple telephoned Virbitsky, who arrived at the site within 15 to 30 minutes. Tr. 19.
During this time period Merwine observed five different products of materials that “appeared [to
have come] from the portable screening plants.” Tr. 20. A dump truck had also entered the
property, and Dipple loaded stone onto the truck. Tr. 20.
Upon arriving, Virbitsky advised Merwine that the site had been in operation for
approximately 10 years and that the Pennsylvania DEP had been the only agency that had been
inspecting the site. Tr. 21. Virbitsky described the following uses of the property: some of the
material was used to level off the site; some of the material was used at his construction business
to build foundations; and a small amount was used to go to his supply yard. Tr. 21.
Merwine explained to Virbitsky that his operation would fall under MSHA jurisdiction
and that a “Legal Identity Report” (“LIR”) needed to be filled out. Tr. 21-22. Merwine filled out

2

Gary Merwine had been hired by MSHA in June of 2006 and was currently working as
Mine Safety and Health Inspector. Tr. 11. He had previously worked as supervisor of the
Wyomissing field office during 2010-2011 and 2014. Tr. 12. Merwine had 25 years of
underground coal mining experience, working as a laborer, supervisor/miner, and
owner/operator. Tr. 13. His inspector training included six four week training sessions at the
Beckley Mining Academy. Tr. 13. Additionally, Merwine had revisited the Mining Academy,
taking a two week advanced electrical course and a FBI course concerning the obtaining and
securing of evidence and interviewing. Tr. 14.

39 FMSHRC Page 1473

the report based upon information provided to him by Virbitsky. Tr. 23; GX-173. Merwine
further indicated that Virbitsky signed and dated the report after reviewing it for correctness. Tr.
23. At Section 8 of the report, Virbitsky indicated sand and gravel was produced at the site. Tr.
24; GX-17.
Merwine then proceeded to inspect the site for possible hazards and safety violations. Tr.
24. At hearing Merwine referenced multiple photographs that he had taken of the site. Referring
to the photograph in GX-9A, Merwine described the function of a “portable plant,” and
explained that there were two at the quarry. Tr. 25. The portable plant had material fed into a
hopper which goes up onto a screen, made up of different sized holes depending upon the
material desired. Tr. 25. Any material not falling through the holes proceeds to a conveyor belt
and is deposited onto the ground or into a truck. Tr. 26. Material falling through the holes may be
dropped onto a second screen which could have smaller holes in it, the process continuing in like
fashion. Tr. 26. At the site, materials falling through the screen could fall onto a separate
conveyor belt fed into the second portable plant which then screened material to different
products. Tr. 26.
GX-9B was Merwine’s photograph of the yellow colored excavator that Dipple was
operating and feeding the blue portable plant (depicted in GX-9A). Tr. 26. The material being
excavated was coming from the embankment to the left of the yellow excavator (See, GX-9B)
and was being deposited into the hopper of the blue portable plant. Tr. 27. Material placed on the
blue portable plant hopper would go onto three separate conveyor lines on the plant, one coming
out the front of the plant, another out of the right of the plant, and the third on the left which then
fed material onto a stacked conveyor belt which then fed the material to a second portable plant.
Tr. 27. The purpose of having one portable plant feed into another portable plant was to make
more separate products by using a different sized screen on the second portable plant. Tr. 28.
On the date of the inspection, only one of the two excavators onsite was in operation. Tr.
28. The material coming off the blue portable plant appeared to be sand. Tr. 29; GX-9C.
Referring to GX-9D, Merwine indicated that the material in the foreground was consistent with
sand, and the material to the right was “rock material, an aggregate material, consistent with
what we identify as a four minus size.” Tr. 29. The photograph contained in GX-9E was a
“closer shot” of the GX-9D scene, the material, and excavator being more easily seen. Tr. 30.
In GX-9F the second (red) portable plant was photographed being fed from the first
(blue) portable plant. Tr. 30-31. The pile of material to the left of the second (red) portable plant
appeared to be sand product different from the material to the right of the photograph which was
called “modified stone.” Tr. 31.
Modified stone is stone that is smaller than a baseball but bigger than a golf ball. Tr. 31.
Unwashed modified stone includes some dirt in the rock. Tr. 31. Washing modified stone can
help it to meet the specifications for uses such as state road construction or other uses that
specify no dirt in the (excavated) material. Tr. 31.
3

The Secretary’s exhibits will hereinafter be referred to as “GX” followed by the exhibit
number. No exhibits were submitted by the Respondent.

39 FMSHRC Page 1474

Merwine further photographed Dipple digging material out of an embankment and
putting it into the first portable plant. Tr. 31. GX-9H depicted a pile of material at the site that
would be consistent with four minus stone. Tr. 32. Dipple was operating a Caterpillar front end
loader, as depicted in the photograph contained in GX-9I, putting materials into a dump truck.
Tr. 32. The pile of material photographed in GX-9H and GX-9I was considered by MSHA to be
a four minus stone. Tr. 32-33. The photograph in GX-9J showed a front end loader used to load
stone into a dump truck with three stockpiles of different material that had come from the
portable plant. Tr. 33. GX-9K depicted a pile of material that MSHA would consider modified
stone and GX-9L was a photograph of a separate stockpile that would be considered a sand
product. Tr. 34. The picture in GX-9L depicted a stockpile of stone which, given its size, the
industry would classify as “2B.” Tr. 34.
Merwine described the different classifications for excavated material: sand material,
which is very fine and which looks like beach sand or play box sand; 2A stone which is dimesized or “a little smaller”; number 57 stone which is roughly a nickel size; 2B size which is
approximately a quarter size; 4 minus and 6 minus which range from baseball size to a little
smaller. Tr. 35. At the Mayfield Quarry site, the MSHA inspector observed sand, modified stone
and 4 minus coming off the conveyor belt while the screening plants were in operation. Tr. 36.
Merwine also visited the supply yard owned by Virbitsky that was located approximately
a half mile away. Tr. 36. The yard had multiple products for sale, including mulch and paving
stone for sidewalks, bins with sand, and different sizes of stone. Tr. 36-37; GX-19, GX-20. There
were three bins that had materials consistent with the materials being produced out of the
screening plants at Mayfield Quarry. Merwine had taken photographs of the bins which
contained modified stone, four minus stone, and 2B stone. Tr. 37, 38; See also GX-9N, GX-9O,
GX-9P.
Virbitsky identified the types of materials processed at his Mayfield Quarry as
“Modified,” “Waste,” and Sand. Tr. 39. Referring to his inspection and investigation data
summary and field notes (GX-5), Merwine indicated that Virbitsky had identified the conveyors
at the portable plant(s) as being a feed conveyor, modified conveyor, and sand conveyor. Tr. 4143. Virbitsky further identified stockpiles at the site as sand stockpile, modified stockpile, and
waste stockpile. Tr. 44; GX-5. Additionally, Virbitsky indicated that the material at the site was
used for construction projects that his supply company was engaged in. Tr. 45. According to
Merwine’s field notes, Virbitsky indicated that material not used to level the quarry site was also
used at sites by Jermyn Supply to construct buildings. Tr. 45-46. The material was further sold at
his supply company, mostly as a mix to make loam. Tr. 46. Loam is a mixture of fine sand and
top soil, a mixture for back filling. Tr. 46.
Virbitsky reported that his quarry site was open for approximately two weeks during the
present year. Tr. 45. Additionally, in Merwine’s field notes, Virbitsky reportedly indicated that
the operation is operated “sporadically” during the year and is in operation “several weeks” per
year. GX-5.

39 FMSHRC Page 1475

In depositional testimony, Virbitsky also stated that the materials from the mine were
used at his construction sites to backfill foundations and for leveling off other properties owned
by Virbitsky for possible resale in the future. Tr. 46.
Merwine noted that Virbitsky had obtained a “Large Non Coal Mine Operator’s License”
from the Pennsylvania DEP. Tr. 48; GX-10, GX-11. Virbitsky had also obtained a permit from
the Pennsylvania DEP for small noncoal mining. Tr. 48; GX-12.
Referencing the Interagency Agreement between MSHA and the Occupational Safety and
Health Administration (“OSHA”), Merwine opined that the sizing of the materials which he had
observed at the quarry site fell within the parameters of MSHA’s authority over milling. Tr. 49;
GX-21.
Cross Examination of Merwine
Some of the photographs of the Respondent’s site had been obtained from Merwine’s
supervisor, William MacDonald. Tr. 57-58. Merwine knew of no complaints from residents in
the area regarding Respondent’s quarry site, nor did he know what motivated MacDonald to ask
him to inspect Respondent’s site. Tr. 58-59.
Merwine had only observed MSHA-related activity being conducted at Mayfield Quarry
on one occasion, the date of inspection, September 22, 2015. Tr. 59-60. He did not observe any
further activity during his subsequent four visits to the quarry. Tr. 59-61. When he had gone to
the quarry site in October and November of 2015, the cable was up and locked. Tr. 61. In
December of 2015, Dipple and Virbitsky were onsite engaged in Non-MSHA related activities.
Tr. 61. Virbitsky did report that some of the equipment on the site was related to his construction
business. Tr. 62. Merwine did not inspect such. Tr. 62. According to Virbitsky’s deposition, “a
lot” of the materials on the grounds of his quarry were materials hauled from construction jobs
and dumps. Tr. 62. Merwine opined that Virbitsky’s quarry was affecting interstate commerce
because Merwine believed that materials such as sand and gravel were excavated from the quarry
and then sold at Virbitsky’s nearby Jermyn Supply yard to any customer stopping by. Tr. 63.
Merwine did not dispute that some of the bins at Jermyn Supply may have contained
materials from third party suppliers. Tr. 65. However, three of the bins contained materials that
had the consistency of rock that was being screened at the Mayfield Quarry. Tr. 65. Merwine
further conceded that he had no personal knowledge whether the materials observed at
Respondent’s supply yard had come from Mayfield Quarry. Tr. 65.
As to the LIR, Inspector Merwine stated that he had hand-written all the answers. Tr. 66;
GX-17. For Question eight, what type of product is produced, Merwine recorded “sand and
gravel.” Tr. 66. Merwine based the classifications of the materials based upon his own
observations at the site and not Virbitsky’s actual description. Tr. 66; GX-17. Merwine
categorized the quarry site as “surface open” rather than an underground mine or dimensional
stone mine. Tr. 67. He did not witness any underground mining. Tr. 67.

39 FMSHRC Page 1476

Referring to his photograph at GX-9A, Merwine stated that the pile directly in front of
the red portable plant and next to the white dump truck was identified as sand and not dirt. Tr.
68. Merwine concluded that the material was sand based upon his personal observations and
Virbitsky’s statement that one of the conveyor belts was a sand conveyor. Tr. 68. However, he
neither took a sample from the pile nor tested it. Tr. 68. Merwine further did not know if the pile
of material, which he had identified as sand, had ever been removed from Mayfield Quarry to
Jermyn Supply. Tr. 69. Merwine defined sand as being “fine granular particles of rock.” Tr. 71.
Based upon his experience of 11 years in the industry, Merwine opined that the pile of
material depicted in GX-9E was sand and not finely graded top soil. Tr. 72. In reference to the
overhead photograph of Respondent’s supply yard in GX-19, Merwine did not personally know
where the products in the bins came from but instead relied upon Virbitsky’s statement that some
of the supply had come from the quarry. Tr. 74, 75-76.Virbitsky had advised Merwine that he
sold the products displayed in his supply yard to the general public but did not specifically
mention sand. Tr. 75.
Merwine agreed that various bins at the supply yard contained materials that did not
resemble materials observed at the quarry. Tr. 76-78; GX-20. The material depicted in GX-9N
appeared to resemble the 4 minus stone observed at the quarry but Merwine did not actually
know where the product had come from. Tr. 78. The modified stone pictured in GX-9O also
appeared to resemble the stone observed at the quarry but Merwine was again unsure of its actual
origin. Tr. 78-79. Merwine testified that the consistency of the stone pictured in GX-9O at
Jermyn Supply was similar to the consistency of the stone depicted in GX-9K at Mayfield
Quarry. Tr. 79-80. Merwine did not actually touch the material pictured at the quarry in GX-9L.
Tr. 81.
Virbitsky never stated that OSHA, as well as the Pennsylvania DEP, inspected the quarry.
Tr. 82. Merwine denied that Virbitsky had raised any objections to answering or signing the LIR
(GX-17). Tr. 83-84.
On redirect examination, Merwine expressed his belief that the same materials being
screened at the quarry site were being sent to the supply yard was based upon his observations of
the consistency of the materials at both sites and Virbitsky’s statement acknowledging such as
recorded in Merwine’s field notes. Tr. 85. The majority of the products sold at the supply yard
would not, in Merwine’s opinion, have come from Mayfield Quarry. Tr. 86.
On recross examination Merwine testified he had observed three bins of material at the
supply yard containing 4 minus rock, modified rock, and 2B rock. Tr. 86. However, he did not
observe any sand, only an advertisement for the sale of it on the internet. Tr. 86-87.
Joseph Virbitsky
The Respondent, Joseph Virbitsky testified the site at issue was a “borrow pile/spoil
pile.” Tr. 95. Virbitsky’s employee had phoned him to come to Mayfield Quarry to speak with
Merwine, who was already onsite. Tr. 96. Merwine had explained to Virbitsky that he was a
federal agent, “higher than the FBI” and “more protected than the bald eagle.” Tr. 96. Virbitsky

39 FMSHRC Page 1477

testified that he had not wanted to stay at the site to answer Merwine’s questions and did not
wish to sign the LIR. Tr. 96-97; GX-17. As to section 8 of the LIR, Virbitsky testified that he
had not given the description “sand and gravel” as to the commodity produced at the site and that
this had been Merwine’s designation. Tr. 97; GX-17. Virbitsky further concluded that there in
fact was no sand at Mayfield Quarry, although Jermyn Supply did sell sand. Tr. 96-97. Virbitsky
had been essentially forced to sign the LIR form before Merwine allowed him to leave the
premises. Tr. 97; GX-17.
Virbitsky testified that neither sand nor gravel was produced at the quarry nor were those
materials present at the site. Tr. 98. Virbitsky defined sand as “a product that is generally washed
through a process” and gravel as “a product that is produced, sized, crushed, and milled.” Tr. 98.
As to the overhead photograph of Mayfield Quarry, Virbitsky disagreed that it was an
accurate depiction of how the site appeared on the date of inspection, September 22, 2015. Tr.
99; GX-18. He further asserted that the pile of material depicted in GX-9A and described by
Merwine as sand was in fact a pile of dirt. Tr. 99-100. Virbitsky used this “fill dirt” to level out
nine properties that he owned. Tr. 100. Likewise, the photographs in GX-9D, GX-9E, and GX9F also depicted piles of dirt, not sand. Tr. 100-101. As to the pile of material depicted in GX9L, Virbitsky also described such as dirt, further commenting that he wished it were sand, as he
would be “a millionaire.” Tr. 101. Virbitsky denied that he had ever told Merwine that he took
material from the quarry to Jermyn Supply for sale to the general public. Tr. 102. He also denied
identifying material at the quarry in any discussion with Merwine as sand or modified rock. Tr.
102.
Virbitsky testified that his construction company was his “main focus.” Tr. 103.
Sometimes he took “a year or two off” from the quarry operation. Tr. 103. He received no
income from the quarry operation. Tr. 103. The income would be derived from future sales of the
property. Tr. 103.
Additionally, Virbitsky emphasized that there was no rock or stone taken from the quarry
and sold at Jermyn Supply. Tr. 103. Any materials taken from the quarry were used to fill and
grade other properties owned by Virbitsky which were located within approximately half a mile
of the site within the state of Pennsylvania. Tr. 104.
Cross Examination of Virbitsky
Virbitsky further explained that the quarry site was open for no more than two weeks per
year and that the workday consisted of two hours (often he completed his work at his other
properties). Tr. 104. He normally would go to the site during “the driest point,” October and
November, to obtain material for filling potholes. Tr. 104.
On cross-examination, Virbitsky estimated that approximately “20 tons of material, 15
yards of material” would get screened in two hours’ time. Tr. 105. Virbitsky had owned the
property since 2002. Tr. 105. He described the activity involving the two portable plants as being
that of “scalping.” Tr. 105. This included “removing the dirt, rocks, and wood out of the material
that’s there to put it in different piles so I could use it.” Tr. 105.

39 FMSHRC Page 1478

Virbitsky agreed with his prior deposition testimony that the material was separated into
piles—small, medium, and large. Tr. 106. He further agreed that he had informed Merwine that
the portable plants produced five different products, with every belt having a form of different
rock coming out. Tr. 106.
In reference to the photograph at GX-9F, Virbitsky characterized the pile pictured on the
right side of GX-9 as “fill rock,” “over burden rock,” and “unclassified with different sizes of
material.” Tr. 107. He agreed that the material pictured was coming off the portable plant. Tr.
107. In reference to the photograph of the quarry site at GX-9M, Virbitsky agreed that all of the
material pictured had been screened by the portable plants. Tr. 107. Merwine had repeatedly
described the material as 2B stone but Virbitsky described it as “smaller fill material,” “smaller
fill product.” Tr. 107-108.
Regarding his Pennsylvania DEP license authorization, Virbitsky testified that Section 4,
titled “Minerals Mined,” referred to 7,542 tons of noncoal materials which were moved to
different locations on the quarry site. Tr. 108-109. This figure did not refer to materials leaving
the site but was a “reclamation” sum indicating materials which “a dozer just pushed…over the
bank” to level off the site. Tr. 108-110; GX-10.
Virbitsky conceded that some of the material processed through the portable plants at
Mayfield Quarry was used in construction projects for Virbitsky Masonry. Tr. 110. Virbitsky
was asked if he recollected past deposition testimony in which he stated that “maybe on some
occasions” material from Mayfield Quarry was sold at Jermyn Supply consisting of “some fill
and dirt,” “some spoil pile’s material.” Tr. 111. He agreed that some of the material screened at
Mayfield Quarry by the portable plants was used to level and grade some of the properties that
he owned. Tr. 112.
On redirect examination, Virbitsky again indicated that he sold various products obtained
from third parties at Jermyn Supply. Tr. 114.
At hearing this Court took judicial notice of 228 pages of invoices identifying materials
from third parties which were sold at Jermyn Supply. Tr. 114-115.
II. ISSUES PRESENTED
The issues before this Court are:
1. Whether the Respondent’s Mayfield Quarry facility is subject to MSHA jurisdiction
based on whether the Mayfield Quarry site was/is a “coal or other mine” within the
meaning of Section 3(h)(1)(c) of the Mine Act;
2. Whether the products of Mayfield Quarry entered the stream of commerce or affect
commerce within the meaning and scope of Section 4 of the Mine Act and;

39 FMSHRC Page 1479

3. Whether the Mayfield Quarry site essentially functions as a “borrow pit” where any
mining activities, including the milling of materials, would be considered “de
minimis” in nature?
III. CONTENTIONS OF THE PARTIES
A. The Secretary’s Contentions
The Secretary asserts the Mayfield Quarry site, meets the definition of a “Mine” and
“Operator,” respectively under Section 3(h)(1), 30 U.S.C. §802(h)(1), of the Mine Act, and
therefore, falls under MSHA’s jurisdiction. Sec’y.’s Post-Hearing Br. 10.4 The Secretary cites
Marshall v. Stoudt’s Ferry Preparation Company, 602 F.2d 589 (3rd Cir. 1979), and Harman
Mining Co. v. FMSHRC, 671 F.2d 794 (4th Cir. 1981), to argue that Congress intended the Mine
Act and the definition of a “mine” to be interpreted broadly, thus expanding the scope of the
Mine Act, and consequently MSHA’s jurisdiction. Id. Specifically, the Secretary contends that
the language contained in Section 3(h)(1) of the Act, which defines “coal or other mine,” to
include “lands, excavations,. . . equipment. . .used in . . . the milling of. . . minerals,”
demonstrates Congress’s clear intent to delegate extensive authority to the Secretary to determine
what constitutes mineral milling. Id.
The Secretary contends his interpretation of the term “sizing,” a milling process
contained within the MSHA-OSHA Interagency Agreement (“Interagency Agreement”), should
be entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844 (1984). SPHB 11. To support his position, the Secretary cites Donovan v.
Carolina Stalite Co., 734 F.2d 1547, 1552 (D.C. Cir. 1984), arguing considerable deference must
be accorded to his determination of what constitutes “milling,” as defined within the Interagency
Agreement. Id. The Secretary further argues because the Respondent operates portable screening
plants to screen and separate material into different sizes, the Respondent engages in “Milling”
and therefore is subject to MSHA jurisdiction. SPHB 12.
The Secretary further contends that because the material screened at Mayfield Quarry is
sold at the Respondent’s supply yard, Jermyn Supply, and utilized in Respondent’s different
businesses and properties, these activities affect commerce. SPHB 15. As a result, the Secretary
argues these actions are subject to MSHA jurisdiction under the Mine Act. Id. Moreover, the
Secretary argues that even if the Respondent can establish that he did not sell any material from
the Mayfield Quarry to the public, the Respondent’s quarry activities still affected commerce.
SPHB 16. The Secretary supports this contention by arguing that the material was utilized not
only in Respondent’s construction business, but also in improving nine other properties owned
by the Respondent for future development. Id.

4

Hereinafter, the Secretary’s Post-Hearing Brief that was submitted on June 20, 2017
shall be abbreviated “SPHB,” followed by the page number. Likewise, the Respondent’s PostHearing Brief that was submitted on June 19, 2017 shall be abbreviated “RPHB,” followed by
the page number.

39 FMSHRC Page 1480

Additionally, the Secretary contends that under the test developed in Oliver M. Elam Jr.,
Co., 4 FMSHRC 5, 6 (Jan. 1982), the Respondent is subject to the jurisdiction of the Mine Act
because he engages in work normally conducted by a mine operator by performing activities to
make the extracted material suitable for a particular use. SPHB 17. The Secretary argues that the
reason Respondent sizes material at Mayfield Quarry is because he wants to make sure the
material meets specific market specifications. Id.
Furthermore, the Secretary argues that the Respondent does not operate a “borrow pit”
because the material at Mayfield Quarry is sized which is a part of the milling process and falls
under MSHA jurisdiction. SPHB 18. The Secretary notes the Commission has traditionally
applied a strict interpretation to the term “borrow pit.” SPHB 18-19. The Secretary contends
because the Respondent processes material through portable plants and separates stockpiles of
stone, the material is not “in basically the same form,” and therefore does not meet an essential
requirement of a borrow pit as defined by the Interagency Agreement. SPHB 19. Thus, the
Secretary asserts Respondent’s work at Mayfield Quarry fails to constitute a borrow pit. Id.
Lastly, the Secretary contends there is no “de minimis” exception to activities covered
under the Mine Act. SPHB 20. The Secretary cites to State of Alaska Dept. of Transportation, 36
FMSHRC 2642, 2645 (October 2014) and Bonanza Materials Inc., 15 FMSHRC 1355 (July
1993) (ALJ) in support of her argument that even if Respondent’s operations are indeed
intermittent, these activities would still fall under MSHA’s jurisdiction because the Commission
has consistently held any activity which is functionally integrated with mining activity is subject
to Mine Act regulation. SPHB 21.
B. Respondent’s Contentions
Conversely, the Respondent contends that Mayfield Quarry is not subject to MSHA
jurisdiction, but rather OSHA jurisdiction, because the site meets the definition of a “borrow pit”
as defined by the Interagency Agreement. RPHB 3. Respondent supports this contention by
arguing that he does not conduct any milling activities at Mayfield Quarry, rather, he merely
engages in scalping to remove wood, dirt, and rock. RPHB 4. Furthermore, the Respondent
argues because the MSHA inspector did not test the materials onsite there is no way to confirm
that the material in question was sand or gravel. Id.
The Respondent also contends that any extraction of bulk fill at the site occurs only
intermittently and all of the material is utilized “relatively near the borrow pit.” RPHB 4. To
support this position, the Respondent cites David Duquette Excavating, 37 FMSHRC 744 (Apr.
2015) (ALJ), which it argues contains nearly identical facts to the instant case. Id. Accordingly,
Respondent argues that just as in Duquette, MSHA does not have authority to exercise
jurisdiction over Respondent’s extraction of bulk fill at the Mayfield Quarry because the site
meets the definition of a borrow pit, and therefore is exempt from MSHA jurisdiction. RPHB 45.
Finally, the Respondent contends he is not in the business of “preparing a mineral”
because he does not screen the bulk fill to remove impurities or to ensure that it is appropriately

39 FMSHRC Page 1481

sized to be sold in the stream of commerce. RPHB 5. Thus, Respondent contends MSHA has no
authority to regulate his operations at the Mayfield Quarry. Id.
IV. DISCUSSION
A. The Secretary’s Burden of Proof and Standard of Proof
The burden of persuasion is upon the Secretary to prove the gravamen of a violation by a
preponderance of the evidence. Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006), RAG
Cumberland Res., Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), Jim Walter Res., Inc., 9
FMSHRC 903, 907 (May 1987). This includes every element of the citation. In re: Contests of
Respirable Dust Sample Alteration Citations: Keystone Mining Corp., 17 FMSHRC 872, 878
(Aug. 2008).
Commission precedent has held that “[t]he burden of showing something by a
‘preponderance of the evidence' the most common standard in the civil law, simply requires the
trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence.’’ RAG
Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), quoting Concrete Pipe &
Products of California, Inc. v. Constr. Laborers Pension Trust for S. California, 508 U.S. 602,
622 (1993).
B. Whether the Respondent Operates a “Mine” under the Mine Act
The central issue presented in this matter is whether MSHA possesses jurisdiction over
the Mayfield Quarry.5 For the reasons set forth below, this Court finds that the Mayfield Quarry
conducts mining operations. Consequently, MSHA can assert its jurisdiction over the facility.
Under the Mine Act, MSHA has jurisdiction over “each coal or other mine, the products
of which enter commerce, or the operations or products of which affect commerce…each
operator of such mine, and every miner in such mine.” 30 U.S.C. § 803. Section 3(h)(1) of the
Act defines the term “coal or other mine” as:
(h)(1)(A) an area of land from which minerals are extracted in nonliquid form or,

if in liquid form, are extracted with workers underground, (B) private ways and
roads appurtenant to such area, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings, structures, facilities,
equipment, machines, tools, or other property including impoundments, retention
dams, and tailings ponds, on the surface or underground, used in, or to be used in,
or resulting from, the work of extracting such minerals from their natural deposits
in nonliquid form, or if in liquid form, with workers underground, or used in, or to
be used in, the milling of such minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation facilities. In making a
5

This Court notes that MSHA’s jurisdiction over an individual facility must be decided
on a case-by-case basis, looking to the statutory language and assessing the nature and purpose
of the individual facility. See Pennsylvania Electric Company v. FMSHRC, 969 F.2d 1501 (3rd
Cir. 1992).

39 FMSHRC Page 1482

determination of what constitutes mineral milling for purposes of this Act, the
Secretary shall give due consideration to the convenience of administration
resulting from the delegation to one Assistant Secretary of all authority with
respect to the health and safety of miners employed at one physical establishment.
30 U.S.C. § 802(h)(1).
The legislative history of the Act leaves no doubt Congress wanted “[A]ny [facility]
considered to be a mine and to be regulated under this Act be given the broadest possible
interpretation. . . .” S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., 95th Cong., 2nd Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977 at 602 (1978). Congress was unambiguous that if
any uncertainty existed to whether a facility or site should come under MSHA jurisdiction, those
“doubts [shall] be resolved in favor of coverage by the Mine Act.” Watkins Engineers &
Constructors, 24 FMSHRC 669, 675-76 (July 2002). Although MSHA’s jurisdiction is
expansive, it “is not universal and must be based upon specific facts.” Clarkson Constr. Co., Inc.,
37 FMSHRC 450, 454 n.5 (Feb. 2015) (ALJ) (noting deference shall not be accorded to the
Secretary if her interpretation of the statute is deemed unreasonable).
Under the Act, covered mining operations include the milling of mine products; however,
the Act does not define the term “milling.” Instead milling is defined within an Interagency
Agreement between MSHA and OSHA, which delineates areas of authority between the two
agencies. See Interagency Agreement, Mine Safety and Health Administration, Occupational
Safety and Health Administration, 44 Fed. Reg. 22,827 (Apr. 17, 1979) (GX 21). The agreement
defines milling as follows: “[T]he art of treating the crude crust of the earth to produce therefrom
the primary consumer derivatives. The essential operation in all such processes is the separation
of one or more valuable desired constituents of the crude from the undesired contaminants with
which it is associated.” Id. at 22,829.
As a preliminary matter, this Court must note that “The Commission and its judges have
been reluctant to second guess the Secretary when she makes choices involving MSHA and
OSHA coverage.” Hosea O. Weaver & Sons, Inc., 28 FMSHRC 688, 692 (Jul. 2006) (ALJ). In
situations where an entity is deemed to be subject to either MSHA or OSHA regulations, the
Secretary merely engages in an act of “adjusting the administrative burdens between [his]
various agencies.” Donovan v. Carolina Stalite Co., F.2d 1547 (D.C. Cir. 1984). After all, it is
the Secretary who has the duty to administer the statutes and if he makes an informed
jurisdictional determination, the Commission has traditionally afforded broad deference to such
determinations. See e.g., Hosea O. Weaver & Sons 28 FMSHRC at 692 (finding because MSHA
inspectors possess expertise in a highly specialized field the Secretary’s reliance on an
inspector’s determination is especially appropriate).
Here, the Secretary contends that under the Mine Act, MSHA had sole jurisdiction over
the Mayfield Quarry because the Respondent conducted milling operations onsite. Specifically,
the Secretary argues it is undeniable that “sizing” took place at the Mayfield Quarry. The
Respondent, however, contends that MSHA did not have jurisdiction over the facility because

39 FMSHRC Page 1483

Respondent did not engage in sizing; rather he merely “scalped” the material to remove rock,
dirt, and wood.” RPHB 4.
When conducting a review of whether MSHA correctly interpreted its authority under the
Mine Act, the undersigned must first ask “whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed intent of
Congress.” Chevron U.S.A. Inc v. Natural Res. Def. Council, 467 U.S. 837, 842-843 (1984);
Watkins Eng'rs & Constructors, 24 FMSHRC at 672-73.
Although the Mine Act does not specifically address what the “milling” process entails,
Congress was cognizant when enacting the statute that decisions concerning complex matters in
a highly technical field, such as mining, were best left to the experts. In re Kaiser Aluminum &
Chemical Co. v. Dep’t of Labor, 214 F.3d 586, 591 (5th Cir. 2000); see also Donovan 734 F.2d
at 1552 (finding because the Secretary has the expertise in the specialized field of mining he
should be given deference to determine what types of activities constitute milling). In fact, in the
Act itself, Congress expressly delegated authority to the Secretary of Labor to determine “what
constitutes mineral milling for the purposes” of the Act. 30 U.S.C. § 802(h)(1)(C). In situations
such as here, where Congress has left the agency with the task of crafting technical definitions,
deference is particularly appropriate. Chisholm v. F.C.C., 538 F.2d 349, 358 (D.C. Cir. 1976),
cert denied, 429 U.S. 90, 97 S.Ct. 247, 50 L.Ed.2d 173 (1976). Therefore, as long as the
Secretary’s interpretation is within reason, this Court must accord deference to his determination.
Kaiser, 214 F.3d at 591.
Because the Mine Act is silent on the point in question, we will proceed to the second
prong of Chevron to determine whether the Secretary’s interpretation of milling was appropriate.
Chevron U.S.A. Inc. at 843. Chevron’s second prong asks “whether the agency’s answer is based
on a permissible construction of the statute.” Id. Deference shall be accorded to “an agency’s
interpretation of the statute it is charged with administering when that interpretation is
reasonable.” Energy W. Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing
Chevron, 467 U.S. at 844; Joy Techns., Inc. v. Sec’y of Labor, 99 F.3d 991, 995 (10th Cir. 1996),
cert. denied, 117 S. Ct. 1691 (1997)). Thus, “The agency's interpretation of the statute is entitled
to affirmance as long as that interpretation is one of the permissible interpretations the agency
could have selected.” Watkins, 24 FMSHRC at 673 (citations omitted).
The Secretary expressly specified in the Interagency Agreement that the following
activities constitute milling: “[C]rushing, grinding, pulverizing, sizing, concentrating, washing,
drying, roasting, pelletizing, sintering, evaporating, calcining, kiln treatment, sawing, and cutting
stone, heat expansion, retorting (mercury), leaching, and briquetting.” MSHA-OSHA Interagency
Agreement, 44 Fed. Reg. at 22,829 (emphasis added). Notably, only one of these activities must
be conducted for MSHA to assert jurisdiction over the facility or property. Colorado Lava, Inc.,
25 FMSHRC 405, 407 (July 16, 2003) (ALJ) (finding sizing alone was enough for MSHA to
establish jurisdiction over operator who failed to file a Legal Identity Report).
“Sizing,” as defined in the Interagency Agreement, is “the process of separating particles
of mixed sizes into groups of particles of all the same the size, or into groups in which the

39 FMSHRC Page 1484

particles range between maximum and minimum sizes.” MSHA-OSHA Interagency Agreement,
44 Fed. Reg. 22,827 at 22,829; see also U.S. Dep't of the Interior, Dictionary of Mining, Mineral
and Related Terms 1020 (1968). Yet, because no significant difference exists between sizing and
scalping, no bright line test is available to provide clarity on which process is being conducted.
New York State Dept. of Transp., 2 FMSHRC 1749, 1768 (July 1980) (ALJ). Instead, the
factfinder must carefully scrutinize all of the relevant facts contained within the record on a caseby-case basis. Id.
Here, Gary Merwine,6 an experienced MSHA inspector, immediately observed Robert
Dipple, an employee of the Respondent, operating an excavator feeding extracted material into a
portable screening plant, which then fed that very same material into a second portable screening
plant.7 Tr. 17. After the material was separated by the second portable plant, Merwine observed
three different sized piles created in front of the second portable plant. Tr. 28; GX-9C, GX-9F.
Shortly after Dipple stopped operating the excavator so he could phone the Respondent,
Merwine noticed a total of five, separate piles, consisting of different sized products in front of
the portable plants. Tr. 20; GX-9C. Merwine testified he was certain three of the piles contained
the exact products produced from the portable plants that he observed upon entering the site. Tr.
20. Once Dipple returned, he began loading one of the products, a pile of stone, into a dump
truck which had arrived on site. Tr. 20. After the dump truck was loaded, the truck left the site to
transport the material to an unknown destination. Tr. 20.
At hearing, Merwine testified that a benefit of operating two portable plants
simultaneously is that it allows an operator to separate additional products into different sizes by
using a different sized screen on the second portable plant. Tr. 28. Merwine testified he had
observed the following products coming off the conveyor belts of the portable plants during his
inspection: sand, modified stone, and four minus stone (both varieties of stone are types of
gravel). Tr. 36. Furthermore, Merwine testified that all of the excavated material he observed
being fed into the plants during the inspection had their own unique features. Tr. 35. Notably, all
of the materials were of different sizes than the others. Tr. 31, Tr. 36. For example, Merwine
testified that four minus stone “ranges from baseball size to a little smaller,” however, “modified
stone is stone that is smaller than a baseball but bigger than a golf ball.” Tr. 35; Tr. 31.

6

Before being employed by MSHA, Merwine had spent 25 years working in the coal
industry in various capacities. For the first two years he was employed as a laborer/miner. He
then served as supervisor/miner for the next 13 years. His supervisory role was followed by him
operating a mine as an owner/operator for 10 years. During his tenure at MSHA, Merwine
worked as a supervisor of the Wyomissing field office during 2010-2011 and 2014. His inspector
training included six four week training sessions at the Beckley Mining Academy. The training
sessions included taking a two week advanced electrical course and a FBI course concerning the
obtaining and securing of evidence and interviewing. Tr.13-15.
7

Screening is defined as the “use of one or more screens to separate particles into defined
sizes.” The process is also referred to as “sizing.” See American Geological
Institute, Dictionary of Mining, Mineral, and Related Terms 486 (1997).

39 FMSHRC Page 1485

The Respondent admitted at deposition, and again when testifying, that he separates all of
the material screened into different piles-small, medium, and large. Tr. 106. Respondent further
agreed that the portable plants produced five different types of products. Tr. 106. Moreover,
Respondent conceded all of the extracted material onsite (documented in Merwine photographs)
were screened through his portable plants at Mayfield Quarry. Tr. 107.
The Respondent, however, did not agree with Merwine’s characterization of the material
and instead described it either as dirt, “fill rock,” “over burden rock,” or “unclassified with
different sizes of material.” Tr. 107. At hearing, Respondent testified that neither sand nor gravel
was produced at the quarry; rather the materials Merwine observed were “dirt.” Tr. 98-100.
Moreover, he stated the function of the plants was to simply scalp the material to “remove the
dirt, rocks, and wood out the material that’s there to put it on different piles so I could use it.” Tr.
105.8 Lastly, Respondent takes issue with the process used by Merwine to identify the material
during the inspection. RPHB 4. 9
At hearing, Merwine opined that the sizing of the materials which he had observed at the
quarry site fell within the parameters of MSHA’s authority over milling. Based on the
testimonial evidence, as well as the photographic evidence admitted at hearing, this Court finds
the inspector’s testimony and conclusions to be more credible.
The Commission and the D.C. Circuit have long been unequivocal, if an operator extracts
sand or gravel, it will fall under MSHA’s jurisdiction. See, e.g., Jerry Ike Harless Towing, Inc.,
16 FMSHRC 683, 688 (Apr. 1994) (operator's extraction of “sand, a mineral, from its natural
deposit covered by the Mine Act.”); Donovan, 734 F.2d. at 1548 (slate gravel quarry operator,
including its conveyors, subject to Mine Act). Furthermore, both courts have upheld the
Interagency Agreement's classification of sizing as mineral milling. Id. at 1553 (upholding
Secretary's determination that a slate gravel processing facility, which did not extract but instead
crushed and sized the slate for sale, constituted a “mine” under section 3(h)); State of Alaska,
Dep't of Transp., 36 FMSHRC 2642, 2649 (Oct. 2014) (finding a state agency that used a
screener to size sand and gravel for road construction engaged in mineral milling).
Although Merwine did not conduct sampling of the materials at the quarry during his
inspection, this does not vitiate the Secretary’s case. Rather there are other persuasive
evidentiary considerations that exist which corroborate the Secretary’s case, such as Merwine’s
extensive mining experience. Indeed, the Commission has held that the informed opinion of
an experienced inspector, such as Merwine, 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). Here, the evidence submitted and testimony presented by the Secretary at

8

Respondent alleges he used all of the screened material as bulk fill for his properties and
construction projects that he was involved in. RPHB 4.
9

Respondent’s Counsel notes in his brief that Merwine did not test or take samples of the
material at the quarry. RPHB 4.

39 FMSHRC Page 1486

hearing, sufficiently corroborates Merwine’s determination that sizing took place on the
property. SPHB 12.
Throughout the inspection, Merwine took numerous photographs, which captured critical
moments. Merwine was able to document in real time the layout of the site and all activities
being conducted on the day of the inspection. The photographs further documented Dipple
excavating material from an embankment located on the property and then feeding that material
into the first portable screening plant. GX-9B. Other photographs depicted what appeared to be
sand coming off of the first plant (GX-9C), a pile of “rock material” to the right of the first plant
(GX-9D), and the second plant being fed a sand product that was different from the rock material
to the right of the first plant (GX-9F); Tr. 29-31. Lastly, Merwine documented a stockpile of four
minus stone (GX-9H), Dipple loading the four minus stone into the dump truck (GX-9I), and the
front end loader used to load stone into the dump truck parked with three stockpiles of different
material behind it that had come from one of the portable plants. GX-9J; Tr. 28-33.
State of Alaska provides a close analogy to this case. 36 FMSHRC at 2642. In State of
Alaska, the Commission held the agency’s use of a portable screening plant to size excavated
sand and gravel material constituted milling as the term is interpreted in the Interagency
Agreement. Id. at 2649. Similar to the portable plants at issue here, the function of the portable
screening plants was not merely to “scalp away large rocks, wood, and trash from the material it
was extracting.” Id. Rather, the plants were used specifically to separate material into three
different sized piles of rock. Id. Likewise, the function of the Respondent’s plants was to make
various different sized products which were then stockpiled and separated on site according to
size. Tr. 27-29.
The Respondent relies largely on Duquette to support his assertion that the plants were
used solely for scalping purposes. RPHB 4. Notably, Respondent claims the facts of the present
case are “nearly identical” to those in Duquette. RPHB 4. In Duquette, Judge Feldman found the
Respondent’s earthen material extraction site to be exempt from MSHA jurisdiction because no
milling was involved in the extraction operation. Duquette, 37 FMSHRC at 751. Rather the
Respondent extracted material stipulated by both MSHA and the Respondent, to be “generally
clean fill” from an embankment. Id. A single scalping screen was employed only when necessary
to remove large rocks, wood, and trash. Id. The material was then subsequently loaded onto a
dump truck for transport offsite where it was used in the form it was extracted as bulk fill. Id.
Here, unlike Duquette, the material extracted was not suitable solely for bulk fill usage.
Instead, the Respondent employed not one, but two, portable screening plants to separate the
various types of material into different sized stockpiles. Tr.17. Additionally, the Respondent
indicated that the various materials stockpiled at the quarry were used for different purposes. Tr.
21. Some of it was used for construction projects, some to construct buildings, and some of it
was transported to his supply yard. Tr. 21. In Duquette, all of the material that went through a
scalping screen was then subsequently deposited into the same dump truck for transport. 37
FMSHRC at 751. Here, however, the materials were separated into five different stockpiles in
which only one of the materials, four minus stone, was loaded into the dump truck for use offsite.
Tr. 20.

39 FMSHRC Page 1487

Screening material to be sized and then stockpiled for further use are functions normally
performed by a mine operator. See Watkins Engineers, 24 FMHRC at 673-675 (finding the
process of sizing and stockpiling of extracted material were sufficient for MSHA to establish
jurisdiction over the operator); see also Tamko Roofing Products, 27 FMSHRC 486, 487 (May
2005) (ALJ) (screening limestone into different sizes constituted milling, which was accordingly
subject to MSHA jurisdiction). As noted above, sizing alone is sufficient to establish MSHA
jurisdiction. Colorado Lava, 25 FMSHRC at 407.
At hearing, the Respondent admitted that screening was performed at the quarry;
however, he claimed he did it only for scalping purposes. Tr. 105. Yet, Merwine testified he
witnessed an employee of the Respondent use a Caterpillar excavator to load extracted material
from an embankment and then dump that material into a hopper. Tr. 27; see also GX-9B. The
material then flowed through a screener, made up of different sized holes depending upon the
material desired. Tr. 25. Any material placed on the plant hopper would then go to one of three
separate conveyor lines. Tr. 27. One of these lines then fed material onto a stacked conveyor belt
which fed the material into a second portable plant where products could be sized even further.
Tr. 27-28. It was at this point Merwine observed the second plant produce products of two
different sizes. Tr. 31. In sum, Merwine testified that he observed five different sized piles of
products “that appeared to have come from the portable screening plants;” different materials
screened through two different plants, and an excavator loading one of the uniquely sized piles
into a dump truck. Tr. 20.
Given the evidence presented by the Secretary and the reasonable inferences flowing
from that evidence, this Court concludes the Secretary has proven that it is more likely than not
that sizing occurred at Mayfield Quarry. The Interagency Agreement, expressly states “sizing
occurs if particles of mixed sizes are grouped into particles of the same size or into groups of
particles ranging between maximum and minimum sizes.” MSHA-OSHA Interagency Agreement,
44 Fed. Reg. 22,827 at 22,829. Here, Merwine testified to having observed materials going into
the feed hoppers and separated into three different sizes and observed at least five different sized
piles of material stockpiled at the quarry. Tr. 36; Tr. 20. These types of activities fall within the
first part of the definition of sizing. See 44 Fed. Reg. 22,827 at 22,829. Although the Respondent
contends the extracted materials were actually dirt and waste their makeup is irrelevant to the
determination of whether sizing occurred. Accordingly, this Court finds the Secretary’s
conclusion that the Respondent conducted sizing at the Mayfield Quarry to be an appropriate
interpretation of the Act.
C. Whether the Products of the Mayfield Quarry Affect Commerce
Article I, Section 8, Clause 3 of the Constitution provides Congress the authority to
“regulate commerce . . . among several States.” The Supreme Court has consistently upheld
Federal regulations of seemingly local activities due to the belief that such activity could affect
interstate commerce. Although many of these ostensibly local activities appear to be purely
intrastate, if they are the type of activity which falls within a class of regulated activity, they will
be deemed to have affected interstate commerce. See Wickard v. Fillburn, 317 U.S. 111 (1942)
(growing wheat solely for consumption on the farm on which it is grown affects interstate
commerce); Fry v. United States, 421 U.S. 542, 547 (1975) (stating even activity that is purely

39 FMSHRC Page 1488

intrastate in character may be regulated by Congress, where the activity, combined with like
conduct by others similar situated, affects commerce among the States or with foreign nations).
Mining is one of those classes of regulated activities and therefore has been subject to the
broadest reaches of Federal regulation under the Commerce Clause due to the extent its activities
affect interstate commerce. Marshall v. Kraynak, 457 F. Supp. 907, (W.D. Pa, 1978), aff'd, 604
F.2d 231 (3d Cir. 1979), cert. denied, 444 U.S. 1014 (1980). Notably, “the Act does not require
that the effect on interstate commerce be substantial; any effect at all will subject [the operator]
to the Act's coverage.” Marshall v. Bosack, 463 F. Supp. 800, 801 (E.D. Pa. 1978).
Section 4 of the Mine Act states that: “[e]ach coal or other mine, the products of which
enter commerce or the operations or products of which affect commerce, and each operator of
such mine, and every miner in such mine shall be subject to the provisions of this Act.” 30
U.S.C. § 803. In enacting the mine safety statutes, Congress intended to exercise its authority to
regulate interstate commerce to “the maximum extent feasible through legislation.” Secretary v.
Shingara, 418 F. Supp. 693 (M.D. Pa. 1976), quoting S. Rep. No. 1055, 89th Cong., 2d Sess. 1
(1966), U.S. Code Congressional and Administrative News, 89th Cong., 2d Sess. 2072.
Indeed, courts have consistently held that even mines with solely local sales will still
affect interstate commerce and therefore fall within the ambit of Congress’ Commerce power.
See e.g., U.S. v. Lake, 985 F.2d 265, 269 (6th Cir. 1993) (finding that a coal mine operator who
was solely purchasing mining supplies from a local dealer and whose sales were entirely local
affected commerce because these activities in combination with other activities could affect
interstate coal markets); D.A.S. Sand & Gravel, Inc. v. Chao, 386 F.3d 460 (2nd Cir. 2004), cert
denied, 544 U.S. 1048 (2005) (affirming Commission holding that the Mine Act applies to sand
and gravel company that sold their products entirely intrastate).
Likewise, Commission judges have held that any operator that engages in milling, even if
for personal use, will be found to affect interstate commerce. Cobblestone Ltd., 10 FMSHRC
731, 733 (June 1988) (ALJ) (finding that the operation of a family owned gravel pit which was
used solely for building a family residence affected commerce). To determine whether the
Respondent’s quarry operation affects commerce, this Court must “focus on whether such actors
taken together would have the potential to affect the interstate market at issue.” State of Alaska,
36 FMSHRC at 2645. Recently this Court had the chance to apply the analysis to an operator
sizing sand and gravel through the use of a screening plant, the court declared unequivocally that
“there is no question that such potential is present with respect to entities that mine or mill sand
or gravel for their own use.” Id.
Similar to the homeowner in Cobblestone, the Respondent indicated during the inspection
of his property that the materials located onsite were used to construct buildings and utilized in
various construction projects. Tr. 45-46. All of this work was conducted offsite. Tr. 46.
Additionally, the Respondent admitted at his deposition that he used some of the material from
the quarry at construction sites to backfill foundations of buildings he constructs. Tr. 46.
Furthermore, Merwine testified that the Respondent conceded that some of the materials

39 FMSHRC Page 1489

screened at the quarry were sent to the Respondent’s supply yard, where products can be
purchased by the public.10 Tr. 21.
The day after the inspection, Merwine visited Respondent’s supply yard which is located
approximately a half mile away, to continue his investigation. Tr. 36. Merwine testified that he
observed bins with sand, and different sizes of stone for sale. Tr. 36-37; GX-19, GX-20. Three of
the bins he observed contained the same type of stone materials that he observed being processed
through Respondent’s screening plants at the quarry the day before. Tr. 37, 85-86; see also GX9N, 9O, and 9P. Notably, Merwine observed four minus stone in one of the bins. Tr. 37, 38. This
was the same type of stone Merwine had observed being loaded into a dump truck at the quarry
for shipment offsite. Tr. 37, 38; see also GX-9N, GX-9O, GX-9P.
Even though no direct evidence was presented to show that the stone material contained
in the bins at the supply yard originated from the quarry, given that the Respondent consistently
stated he sent screened material from the quarry to the supply yard, both during the inspection
and his deposition, coupled with Merwine’s photographs, testimony, and field notes, this Court
finds it more likely than not the Respondent sold at least some of these products at his supply
yard. Moreover, it is also reasonable to infer that some of the equipment Respondent was using
such as the Caterpillar excavator or portable plants were manufactured outside the Respondent’s
home state of Pennsylvania. It has been held that use of equipment that has been moved in
interstate commerce affects commerce. See United States v. Dye Construction Co., 510 F.2d 78,
82 (1975).
Even if the Respondent was not selling screened material from the quarry through his
supply yard, he still affected commerce. The Respondent has conceded that he used the material
from the quarry for construction projects. Tr.45-46. Specifically, Respondent admitted he used
some of the screened material from the quarry to backfill foundations of buildings he constructs.
Tr. 46. As the Secretary astutely points out in his Post Hearing Brief, if the Respondent was not
able to obtain this material from the quarry, he would have to acquire it from the open market.
SPHB 16. Indeed, the Court has long held that products affect commerce where they have an
intrinsic value as a commodity which would have to be purchased elsewhere if not produced by
the operator. See, N.Y.S. Department of Transportation, 2 FMSHRC 1749 (July 1980)
(ALJ); Island County Highway Department, 2 FMSHRC 3227 (Nov. 1980) (ALJ); and County of
Ouray, Colorado, 9 FMSHRC 1205 (July 1987) (ALJ).
Although it may be true that the Respondent never took material from the Mayfield
Quarry to Jermyn Supply for sale to the general public, given the broad interpretation and
coverage of the Act as intended by Congress, and as construed by the courts, it may be
reasonably inferred that Respondent’s activities as a whole had an impact on interstate
commerce. See Fry 421 U.S. at 547.
Therefore, this Court concludes that the Mayfield Quarry’s sand and gravel processing
activities, including all of the equipment and machines used in the processing of the materials for
various uses in the Respondent’s construction businesses, constitute a mining operation covered
10

Merwine documented the encounter with the Respondent in his field notes. GX-5.

39 FMSHRC Page 1490

by the Act, affect interstate commerce within the meaning of the Act, and that the Respondent is
within the Act’s reach.
D.

Whether Under the Elam Test the Respondent is Subject to MSHA Jurisdiction

The Commission has emphasized when making a determination regarding jurisdiction
this Courts inquiry must focus on the nature of the functions that occur at the site. Sec'y of Labor
(MSHA) v. Oliver M. Elam, Jr., 4 FMSHRC 5, 7 (1982). To determine whether a site falls within
the ambit of MSHA jurisdiction, a reviewing court must engage in a two-prong analysis: (1) A
party must engage in activities normally performed by a mine operator and (2) The party must
perform these activities in order to make the extracted material suitable for a particular use or to
meet market specifications. Id. at 8.
Here, the Respondent used portable plants to screen material into different sizes. Tr. 106.
As discussed in detail supra, this process is referred to as “sizing,” and falls within one of the
categories of milling, as set forth in the Interagency Agreement. See 44 Fed. Reg. at 22,82922,830 (Apr. 17, 1979). Moreover, the agreement recognizes milling as a mining operation. Id.
Consequently, because the Respondent engaged in milling at the Mayfield Quarry, an activity
that is normally performed by a mine operator, the Respondent satisfies the first prong of the
Elam test.
In Elam, coal was not sized for any particular use; rather the coal was sized into one size
to help facilitate the loading process at Respondent’s dock. 4 FMSHRC at 5. Unlike Elam, the
Respondent operated two portable screening plants to separate material into five separate
stockpiles, with each stockpile containing material of a distinct size. Tr. 20; Tr. 106. Notably,
these stockpiles appear to be stored onsite until they are needed for a particular use offsite. Tr.
20.
If the Respondent’s true intent was to use the material for bulk fill on his properties then
it would defy logic for the Respondent to have spent time and resources to screen the material
into different groups of particles based on their size. Rather, the Respondent could have simply
taken the material from the embankment and loaded it onto the dump truck to be used as bulk
fill. This did not occur. Instead the material is used for its intrinsic properties, and appears to be
used over a relatively wide area of locations where the Respondent conducts activities related to
his construction businesses. Accordingly, the Respondent’s sizing of extracted materials at
Mayfield Quarry in order to make the extracted material suitable to meet market specifications
satisfies the second prong of the Elam test. Thus, having satisfied both prongs of the Elam test,
this Court finds the Mayfield Quarry well within the ambit of Mine Act jurisdiction.
E. Whether the Respondent’s Operation is a Borrow Pit
The Respondent further asserts that MSHA jurisdiction was inappropriate because the
Mayfield Quarry operation is a “borrow pit,” and therefore not subject to inspection. RPHB 4-5.
Respondent supports this contention by arguing that the material extracted was merely bulk fill
and only used on land relatively near the borrow pit. RPHB 4.

39 FMSHRC Page 1491

The Interagency Agreement defines borrow pits as follows:
“Borrow Pits” are subject to OSHA jurisdiction except those borrow pits located
on mine property or related to mining. (For example, a borrow pit used to build a
road or construct a surface facility on mine property is subject to MSHA
jurisdiction). “Borrow pit” means an area of land where the overburden,
consisting of unconsolidated rock, glacial debris, other earth material overlying
bedrock is extracted from the surface. Extraction occurs on a one-time only basis
or only intermittently as need occurs, for use as fill materials by the extracting
party in the form in which it is extracted. No milling is involved, except for the
use of a scalping screen to remove large rocks, wood and trash. The material
is used by the extracting party more for its bulk than its intrinsic qualities on
land which is relatively near the borrow pit.
MSHA-OSHA Interagency Agreement, 44 Fed. Reg. at 22,828; (emphasis added); GX-21.
In 1996, MSHA adopted interpretive guidelines to provide further clarity on the
agreement. The Interpretation and Guidelines stated:
Thus, if earth is being extracted from a pit and is used as fill material in basically
the same form as it is extracted, the operation is considered to be a “borrow pit.”
For example, if a landowner has a loader and uses bank run material to fill
potholes in a road, low places in the yard, etc., and no milling or processing is
involved, except for the use of a scalping screen, the operation is a borrow pit.
The scalping screen can be either portable or stationary and is used to
remove large rocks, wood or trash. In addition, whether the scalping is located
where the material is dug, or whether the user of the material from the pit is the
owner of the pit or a purchaser of the material from the pit, does not change the
character of the operation, as long as it meets the other criteria.
I, MSHA, U.S. Dept. Of Labor, Program Policy Manual, Section 4, I.4-3 (1996). (Emphasis
added).
The Commission and its Judges have traditionally applied a narrow interpretation of the
term “borrow pit.” Jones Bros., Inc., 39 FMSHRC 399, 401 (Feb. 2017) (ALJ), citing Drillex,
Inc., 16 FMSHRC 2391, 2396 (Dec. 1994); Kerr Enterprises, Inc., 26 FMSHRC 953, 957 (Dec.
2004) (ALJ); N.Y. State Dep’t of Transp., 2 FMSHRC 1749, 1761 (July 1980) (ALJ). For
example, state agencies that extracted and screened sand for traction control purposes on
runways and roadways during the winter months were found to be mine operators and
consequently did not qualify for the “borrow pit” jurisdictional exception. See N.Y. State Dep’t of
Transp., 2 FMSHRC at 1761. In New York Department of Transportation, the Court held that
when materials are processed through a shaker screen for the purpose of shaping them into a
particular size for their “intrinsic qualities,” the operator will not be found to be operating a
“borrow pit” within the meaning of the MSHA-OSHA Interagency Agreement. N.Y. State Dep’t
of Transp., 2 FMSHRC at 1758-59. Additionally, the court held the operator’s usage of a
portable screening plant to select 1-1/2″ gravel constituted “milling.” Id. at 1761. This “milling”

39 FMSHRC Page 1492

removed the NY DOT from the MSHA-OSHA Interagency Agreement definition of
“borrow pits.” Id.
Here, Respondent employed two portable screening plants to size sand and gravel
particles, which are then subsequently stockpiled throughout the property based on their unique
characteristics and most importantly, their distinct sizes. As noted above, Respondent conceded
during his deposition that the stockpiles of separate materials were further grouped into piles by
size, “small, medium, and large.” Tr 106. Furthermore, after the materials are processed through
the screening plants, the stockpiles of gravel and sand are not “in basically the same form” as
they were extracted. As such, the Respondent’s use of screeners to “mill” or “size” the sand and
gravel materials is no different than any other sand and gravel operation that is subject to MSHA
jurisdiction.
Even the use of a minimal “scalping screen” has been found sufficient for MSHA to
assert jurisdiction when the operator of the screen does not use the product for bulk fill on nearby
sites. Kerr Enterprises, 26 FMSHRC at 957. In Kerr Enterprises, although the operators use of a
scalping screen to remove wood debris from earthen material was in accordance with the
definition allowed for in the Interagency Agreement the operator still did not qualify for a
borrow pit exception because the material was used for purposes other than bulk fill. Id. at 957.
Once again, Respondent’s reliance on Duquette is mistaken. See Duquette, 37 FMSHRC
at 744. In Duquette, the operator was an excavation contractor who extracted material solely for
the purpose of using it as bulk fill for commercial or residential construction projects. Id. at 749.
Notably, the operator did not conduct any milling processes. Id. at 751. Rather, he only engaged
in scalping “to remove debris to make the material suitable for bulk fill usage.” Furthermore, the
bulk material extracted was used as found and was not altered to make the material “uniquely
suitable for a particular purpose that can satisfy market specifications.” Thus, the excavation
contractor in Duquette closely mirrored the example set forth in the MSHA Program Policy
Manual. Accordingly, the court found the excavator contractor to satisfy the requirements of
operating a borrow pit.
Unlike Duquette, the Respondent conducted milling activities on his property. Tr. 106.
Although the Respondent’s first portable screening plant did in fact remove large rocks, wood,
and trash, this is not the end of the process. Rather, after the material goes through the first plant
where large rocks, trash, and wood are scalped away, the screening process continued with a
second portable plant where the material was then altered even further into three additional sizes
of rock. Tr. 27-28. The material was then stockpiled based on size and other characteristics until
needed for a specific use. Tr. 20.
The “milling” of materials at the Mayfield Quarry dictates that the area qualifies as a
mine. Moreover, it must be noted that even if borrows pits do exist on the property they are still
located on mine property and most importantly are related to mining. Therefore, the Mayfield
Quarry was appropriately subject to MSHA inspection.

39 FMSHRC Page 1493

F. Whether a De Minimis Exception Exists to Activities Usually Subject to MSHA
Jurisdiction
Lastly, this Court at hearing requested that both parties address whether there is a de
minimis exception to the activities that would otherwise fall under the jurisdiction of the Mine
Act. 11
Here, Respondent alleges his quarry is open for no more than two weeks per year and a
normal workday consists of only two hours. Tr. 104. Respondent testified that he receives no
income from the operation and that he is mainly focused on his construction company. Tr. 103.
Furthermore, the Respondent alleges that during certain periods of time the operation can be
dormant for up to two years. Tr. 103.
Although the Respondent purports to conduct a very limited operation the evidence
submitted contradicts this assertion. According to the Respondent’s application for a DEP Large
Non Coal Mine Operator’s License issued by the Commonwealth of Pennsylvania on July 6,
2015, the Respondent reported that 7,542 tons of Non-Coal minerals were mined at his operation
in 2014. See GX-14. Additionally, the Respondent testified that in just two hours he was able to
screen 20 tons of extracted material per day. Tr. 104-105. Yet, as the Secretary emphasizes in his
Post Hearing Brief, if the Respondent did indeed only screen 20 tons of extracted material per
day in 2014, it would have taken Respondent over 377 days to process the 7,542 tons of material
at the Mayfield Quarry. This cannot be considered de minimis activity.
The amount of time spent extracting materials, however, is irrelevant to the instant
matter. As the Commission has made clear “sand and gravel mining operations, whether year
round, or intermittent, have long been subject to Mine Act regulation.” State of Alaska, 36
FMSHRC at 2647 (Emphasis added). The attempts of operators to escape jurisdiction by arguing
that only a small portion of their activities could reasonably be subject to Mine Act regulation is
not a new phenomenon in the mining industry. See Hosea O. Weaver & Sons, 28 FMSHRC at
692 (finding that even though the gravel crushed onsite comprised only 4.5% of asphalt plant’s
total output this was not a de minimis activity) see also Austin Powder Co., 37 FMSHRC 1337,
1355-1356 (June 2015) (ALJ) (holding that an operator who used only up to 10% of its stored
materials should not be considered de minimis activity because the items stored were used
directly in the mining process). The courts have made clear that “the governing jurisprudence . . .
[holds] that any activity which is functionally integrated with the mining activity necessitates the
imposition of MSHA jurisdiction even where that activity is minor or removed from the mining
site.” Bonanza Materials Inc., 15 FMSHRC 1355, 1359 (July 1993) (ALJ).
Here, Respondent contends that all of the operations conducted at Mayfield Quarry were
performed intermittently. As such, Respondent argues his sporadic milling activities should be

11

Although Respondent’s Counsel did not address this issue adequately in his brief the
Secretary asserts in her brief that the Act does not contain such an exception for operators, only
independent contractors. SHPB 20. I need not address that issue here. Rather, this Court holds
the subject activities are not de minimis in the context of the Respondent’s overall operation.

39 FMSHRC Page 1494

exempt from MSHA jurisdiction.12 Although Respondent’s quarry operation may indeed be
secondary to his construction business, this Court finds Respondent’s sizing activities to be
functionally integrated with a mining activity, milling. Thus, whether the Respondent
sporadically conducts sizing at Mayfield Quarry or not is irrelevant.
As Respondent concedes, the Mayfield Quarry operation has been active for at least 10
years. During that time period the Respondent was able to conduct mining operations without
any oversight or accountability from the appropriate mining regulatory authority. This Court
finds such lack of oversight to be of great concern and fear that the Respondent may have been
able to evade numerous Mine Act violations.13 Moreover, this Court is deeply troubled that
former and current employees may have been put in harm’s way due to hazardous working
conditions prior to MSHA inspecting the site.
The legislative history of the Mine Act is clear regarding the link between “hazards
involved with … mining” and “the need to provide for the health and safety of the nation's
miners.” S. Rep. No. 95-181, at 1 (1977), reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 589
(1978). Indeed, as set forth in Section 2(a) of the Act, “the first priority and concern of all in the
[mining] … industry must be the health and safety of its most precious resource - the miner.” 30
U.S.C. § 801. Simply put, the Mine Act was enacted to protect miners, not mines. To permit the
Respondent to evade the regulations of the Act due to a de minimis exception would fly in the
face of Congress's intent that what is considered to be a mine be given the broadest possible
interpretation.
G. Whether the Respondent was in the business of Preparing Minerals
Finally, the Respondent contends that because he “did not engage in screening the bulk
fill to remove impurities or ensure size quality, did not dry or clean it, and did not engage in the
process of loading the bulk fill in separate containers according to size to be sold to third
parties,” he does not engage in in the process of “preparing minerals.” RPHB 5. Accordingly,
Respondent contends he is not subject to MSHA jurisdiction. However, “milling” and
12

At hearing, Respondent’s Counsel contended that Duquette stood for the proposition
that any activities performed at a mining facility in operation less than 200 hours a year would be
considered de minimis. Tr. 92-93. Again, Respondent is mistaken. Rather, in Duquette both
parties merely stipulated that an MSHA inspector mentioned to the operator there was a
provision suggesting operators in service less than 200 hours a year would be taken off the
MSHA inspection list. See Duquette 37 FMSHRC at 745. This Court has found that no such
provision exists in the Act or any relevant case law to support such a contention. Furthermore,
this Court is not bound by any stipulations from an unrelated matter before a different ALJ.
13

Respondent argues in his brief because the citations issued in the instant matter are not
related to respiratory issues from dust circulation the Respondent has not violated any of the
types of safety concerns that MSHA was established to remedy. RPHB 5. I find the
Respondent’s argument somewhat attenuated from reality. In the instant case the Respondent
was cited for 17 violations, all of which dealt with potential safety hazards.

39 FMSHRC Page 1495

“preparation” are used interchangeably in the context of the Act. Both words detail what the
process of treating mined minerals for market entails. For example, in A Dictionary of Mining,
Mineral and Related Terms (U.S. Bureau of Mines, 1968) at 707, milling is defined as including
“preparation for market.” Thus, one can understand how both terms-milling and preparation—
became part of the Act without either term being designated by Congress as an entirely separate
process.
As described in detail supra, the Respondent engaged in milling which is part of the
process of preparing minerals for the market. The Act’s use of both terms indicates that both
processes under the Act should be read broadly. Accordingly, MSHA jurisdiction was
appropriate under the plain reading of the Mine Act and under the Secretary’s interpretation.
ORDER
Based on the above, I find that MSHA had jurisdiction over the Mayfield Quarry and that
a hearing on the merits will be set shortly.

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

Distribution:
Mr. Christopher B. Jones, Esq., 406 Jefferson Ave, Scranton, PA 18510, cbjlaw@comcast.net
John R. Slattery, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170 S.
Independence Mall West, Suite 700 East, Philadelphia, PA 19106, Slattery.John.R@dol.gov

39 FMSHRC Page 1496

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

July 31, 2017
DANIEL B. LOWE and MATTHEW A.
VARADY,
Complainants

INTERFERENCE PROCEEDING
Docket No. WEST 2017-0331-DM
MSHA No: WE-MD 14-04, WE-MD 14-03

v.
Jerritt Canyon Mill
Mine ID: 26-01621
JERRITT CANYON GOLD, LLC, ET AL.,
Respondent
CORRECTED DECISION GRANTING MOTIONS TO DISMISS*
ORDER OF DISMISSAL
Before: Judge Manning
This case1 is before me upon a complaint of interference filed under Section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977, as amended. 30 U.S.C. § 801, et seq. (the
“Mine Act”). Because this case is related to other cases filed by Complainants, a brief history of
the previous litigation is necessary to put the present case in context.
I. BACKGROUND
Daniel B. Lowe and Matthew A. Varady were separately terminated from their
employment by Veris Gold USA, LLC, in November 2013 (“Veris Gold”). The Secretary of
Labor, acting through the Mine Safety and Health Administration (“MSHA”) determined that
Veris Gold had not violated section 105(c) of the Mine Act in either instance. As a consequence,
Lowe and Varady brought separate discrimination cases before the Commission under section
105(c)(3) of the Mine Act which were assigned Docket Nos. WEST 2014-307-DM in the case of
Varady and WEST 2014-614-DM in the case of Lowe. Commission Administrative Law Judge
William B. Moran was assigned the cases and held separate hearings in the two cases in June
2015. On September 2, 2015, Judge Moran issued a decision finding that Veris Gold
discriminated against Varady, 37 FMSHRC 2037, and on October 15, 2015, Judge Moran issued
a decision finding that Veris Gold discriminated against Lowe, 37 FMSHRC 2337.
*

The original decision and order in this case, issued on July 27, 2017, contained a
clerical error in the second line on page 8, which has been corrected here. No other changes have
been made in this decision and order.
1

When this case was docketed by the Commission, the respondent was listed as Veris
Gold USA, LLC. Veris Gold no longer exists and Complainants did not include Veris Gold in
the complaint. Instead, the interference complaint was in the form of a letter and listed Jerritt
Canyon Gold, LLC and several other entities, as discussed below.

39 FMSHRC Page 1497

A. Veris Gold Bankruptcy Filing
In the meantime, on June 9, 2014, Veris Gold filed a petition in bankruptcy in Canada
and with the United States Bankruptcy Court for the District of Nevada (“Bankruptcy Court”).2
An automatic stay against continuing any judicial, administrative or other actions against the
debtor was entered by the Bankruptcy Court. About a year later, on June 4, 2015, the Bankruptcy
Court issued an order approving the sale of the substantial assets3 of Veris Gold to Jerritt Canyon
Gold, LLC, (“JCG”) pursuant to section 363 of the Bankruptcy Code. 11 U.S.C. § 363. Under
the terms of the purchase, as approved by the Bankruptcy Court, JCG could not be held liable for
claims based on any successor or transferee liability, or any enforcement action or enforcement
history, including employment and pension claims.
Soon after the Bankruptcy Court approved this asset sale, Lowe and Varady filed a
motion asking that the sale be stayed. On June 19, 2015, the Bankruptcy Court denied this
motion. Lowe and Varady did not appeal the Bankruptcy Court’s order. The sale of the assets of
Veris Gold to JCG closed on June 14, 2015. The sale of assets generated minimal proceeds.
Administrative expenses were paid but none of the secured or general unsecured creditors
received any proceeds. On September 2, 2015, after notice and hearing, the Bankruptcy Court
entered an order granting the motion to close the bankruptcy case.
In his October 15, 2015 decision finding that Veris Gold discriminated against Lowe,
Judge Moran asked the Commission for direction “about how to proceed in this matter of first
impression” given the order of the Bankruptcy Court and that the purchaser of the assets was not
a party in the discrimination case. 37 FMSHRC at 2348. On January 12, 2016, the Commission
issued an order finding that it lacked jurisdiction to provide direction concerning the issues raised
by the judge. 38 FMSHRC 25.
In March 2016, Judge Moran granted Varady’s and Lowe’s motion to amend their
respective discrimination complaints to include JCG as a party but he did not determine whether
JCG could be held liable as a successor to Veris Gold. 38 FMSHRC 513, 529 (Varady); 38
FMSHRC 565, 581 (Lowe). JCG filed petitions for interlocutory review in both cases with Judge
Moran on this issue, which he denied. 38 FMSHRC 900 (Apr. 2016) (Varady); 38 FMSHRC
1559 (June 2016) (Lowe). JCG then filed a petition for interlocutory review with the
Commission, which was denied with respect to both cases in July 2016.
B. Hearing and Orders Entered by Bankruptcy Court in August and September 2016
Judge Moran issued an order on July 27, 2016 discussing principles of successorship and
granted Lowe’s request to conduct discovery against JCG with respect to successorship issues.
2

Veris Gold Corporation filed for bankruptcy in Canada. Veris Gold USA LLC was a
subsidiary of Veris Gold Corporation, a Canadian entity with headquarters in Vancouver, British
Columbia. I have not discussed the Canadian proceedings in this decision. In many instances the
Bankruptcy Court’s orders simply followed the lead of the Canadian bankruptcy court.
3

The vast majority of Veris Gold’s assets, including the Jerritt Canyon Mill, were sold to

JCG.

39 FMSHRC Page 1498

38 FMSHRC 1888. On August 4, 2016, JCG filed motions with the Bankruptcy Court to reopen
the subject bankruptcy case to enforce the previously approved sale order, to enjoin
Complainants from pursuing claims against JCG, and for sanctions against Lowe and Varady.
On August 11, 2016, the Bankruptcy Court held a hearing on the Motion to Reopen and Motion
to Enforce at which Varady and Lowe were present. During the August 11, 2016, hearing on the
motion, Bankruptcy Judge Gregg W. Zive reiterated that there was no successor liability when
JCG purchased the assets of Veris Gold. The judge questioned the need for Complainants to
conduct discovery on successorship issues in Judge Moran’s cases because JCG is not a
successor to Veris Gold due to the fact that the assets were sold under section 363 of the
Bankruptcy Code. He advised Complainants that they could appeal his decision that JCG is not a
successor to the Court of Appeals. The judge further told Complainants that, in any event, neither
the secured nor unsecured creditors of Veris Gold received any payment from the estate. Finally,
he enjoined Complainants from proceeding any further in their attempts to obtain relief from
JCG as an alleged successor. He did not grant JCG’s request for sanctions, but he “put Mr. Lowe
and Mr. Varady on notice that if they violate [his] order, [he]will enforce it with monetary
sanctions.” (Bankruptcy Tr. 60, quoted at 38 FMSHRC 2109, 2715).
On September 2, 2016, the Bankruptcy Court entered a written order granting JCG’s
motions but denying that part of the motions asking for sanctions, without prejudice. The order
stated that Complainants were prohibited from pursuing their claims against JCG, Whitebox, or
any other persons or entities related to or associated with JCG or Whitebox in any other Court or
proceeding, “including any administrative proceedings before the [Commission] ALJ or any
other proceeding or tribunal.” Bankruptcy Court Order dated September 2, 2016 at 26 (Copy of
Court’s Order was entered into the official record in the present case). The Bankruptcy Court
order further stated that the “Sale Order enjoins Creditors Lowe and Varady from pursuing their
claims against the Purchaser [JCG] or any persons or entities related to or associated with
Purchaser for successor liability in any other court or proceeding. The Creditors actions seeking
to assert successor liability on Purchaser and others, . . . are an impermissible collateral attack on
the Sale Order, and are prohibited by the injunction contained therein.” Id. at 25. Finally, in
denying the motion for sanctions, the order stated that “Creditors Lowe and Varady are hereby
placed on notice that if they violate the Court's Order, the Court may enforce the Order with
monetary sanctions. The Bankruptcy Case will remain open to ensure that the Creditors comply
with the Court's Orders.” Id. at 26.
C. Subsequent Proceedings Before the Commission
On October 25, 2016, Judge Moran entered orders dismissing the discrimination cases
brought by Lowe, 38 FMSHRC 2709, and Varady, 38 FMSHRC 2723, based on the holding of
the Bankruptcy Court. Lowe and Varady appealed these dismissals to the Commission. By order
dated December 16, 2016, the Commission noted that Respondents had not filed a motion to
dismiss, determined that Judge Moran’s dismissal orders were premature, and remanded the
cases to the Commission’s chief judge for reassignment to a different judge. 38 FMSHRC 2899.
The cases were reassigned to Commission Judge David Simonton.
Before Judge Simonton, JCG moved to dismiss the cases because the sale order approved
by the Bankruptcy Court permitted it to purchase the Jerritt Canyon Mill free and clear of liens,

39 FMSHRC Page 1499

claims, and interests, specifically including employment law claims, and because the sale order
provided that JCG would not be liable as a successor to Veris Gold. Complainants argued that
the Mine Act authorizes them to pursue their discrimination claims against JCG as a successor in
interest to Veris Gold and they sought to add various other entities as additional successors.4 At
the order of Judge Simonton, Complainants, JCG, alleged affiliate Whitebox 2014-l Ltd., and the
Solicitor filed briefs addressing his jurisdiction and his authority to enforce the Complainants'
discrimination claims against JCG and the additional entities.
On March 20, 2017, Judge Simonton issued an order granting JCG’s motion to dismiss
denying Complainants’ motion to add additional parties as successors to Veris Gold. 39
FMSHRC 781. He held that “allowing the Complainants to pursue successorship liability against
JCG in violation of a free and clear sale would subvert the policies outlined in the Bankruptcy
Code and affirmed in Nathanson [v. National Labor Relations Board, 344 U.S. 25 (1952)].” 39
FMSHRC at 787. He went on to state the there is “no support for the claim that the Commission
can override or ignore the Bankruptcy Court's interpretation and enforcement of the Sale Order
to allow successorship liability.” Id. Judge Simonton’s order includes a thorough analysis of
issues surrounding the interplay between the orders of the Bankruptcy Court and the
Commission’s authority under the facts of this case. I hereby incorporate his findings and
conclusions set forth in that order into this decision by reference.
Complainants filed a petition for discretionary review of Judge Simonton’s order with the
Commission. The Commission denied review on May 8, 2017. Complainants filed an appeal of
Judge Simonton’s order of dismissal, as made final by the Commission’s denial of review, with
the United States Court of Appeals for the 9th Circuit on or about July 12, 2017. (Lowe et al. v.
FMSHRC, Case No. 17-72019).
II. INTERFERENCE COMPLAINT
On or before March 1, 2017, Lowe and Varady filed an interference complaint with the
Department of Labor through MSHA’s Western Metal/Nonmetal District Office. In response,
Diane Watson, Supervisory Special Investigator for the Western Metal/Nonmetal District, stated
that the complaint “does not meet the criteria under 105c of the Act for filing of a new
discrimination complaint and none will be forthcoming from the Agency.” (Email dated March 1
from Watson to Lowe). She further stated that the Complainants have “not been employed at the
mine for at least two years; this matter has been in litigation since that time and MSHA has no
authority to act under section 105c.” Id. I conclude that the Secretary of Labor determined that
the provisions of section 105(c) were not violated and, as a consequence, Lowe and Varady had
the right to file a complaint with the Commission under section 105(c)(3) of the Mine Act.
4

These additional entities included Whitebox Asset Management, Whitebox Advisors
LLC, Eric Sprott, and Sprott Mining Inc. In this case and in the previous discrimination cases
brought by Lowe and Varady, various business entities have been referred to as “Whitebox,”
“WBox,” “WBox 2014-1” and “Whitebox Entities” (collectively “Whitebox” in this decision).
According to the Bankruptcy Court, WBox 2014-1 Ltd., was the Debtor in Possession during
Veris Gold’s bankruptcy and registered the entity that ultimately became JCG.

39 FMSHRC Page 1500

On March 6, 2017, Lowe and Varady filed this interference complaint with the
Commission. The complaint is in the form of a letter that names within the body of the letter the
following entities that Complainants believe interfered with their Mine Act rights: JCG,
Whitebox 2014-1 Ltd and any other associated entity or persons associated with Whitebox,
attorneys Mark Kaster, Annette Jarvis, Cathy Reece,5 Amy Tirre, and Brad Mantel. (Complaint
at 2). JCG and WhiteBox filed answers to the complaint and this case was assigned to me by the
Commission’s chief judge on April 5, 2017.
The interference complaint states that Complainants “first experienced this conspiracy of
interference on September 2, 2016 when Jerritt Canyon Gold USA, Whitebox 2014-1 Ltd., and
Eric Sprott, dba Jerritt Canyon Gold USA . . . through its attorneys Mark Kaster, Annette Jarvis
of the law firm Dorsey & Witney LLP, Cathy Reece of the law firm Fennemore Craig, PC and
Amy N. Tirre of the law offices of Amy N. Tirre, participated in filing an action with the United
States Bankruptcy Court whereupon they attempted to have monetary sanctions levied against
Mr. Lowe and Mr. Varady for exercising their rights under the Mining Act of 1977.” Complaint
1-2. Complainants maintain that their discrimination claims fall under the jurisdiction of the
Commission and that the Bankruptcy Court has no jurisdiction over them as it pertains to their
actions before the Commission.
Their second allegation is that on February 27, 2017, “the conspiracy continued when
attorneys Kaster and Jarvis emailed a letter to Mr. Lowe and Mr. Varady, a letter we recognize as
an act of interference,” that was intimidating and threatening to them. Id. at 2. “The letter
threatens Jerritt Canyon Gold USA LLC’s intent to seek monetary sanctions through the
Bankruptcy Court against Mr. Lowe and Mr. Varady for exercising their rights under the Mining
Act.” Id. The letters state that Complainants should take “immediate steps to dismiss our
FMSHRC cases[.]” Id.
These letters attached to the interference complaint, written on the stationary of the law
firm of Dorsey & Whitney, LLP, state that they serve as notice that JCG “preserves and intends
to take actions under the rights allowed by the United States Bankruptcy Court of the District of
Nevada[.]” The letters reference the Bankruptcy Court’s order of September 2, 2016 and state
that the order enjoins Lowe and Varady from pursuing claims against JCG and Whitebox. The
letters further note that Lowe and Varady “willfully violated the Bankruptcy Court’s explicit
orders” when they filed a petition for discretionary review of Judge Moran’s dismissal of their
discrimination cases. The letters conclude by stating that “JCG provides this notice and requests
that you take immediate steps to dismiss your FMSHRC case against JCG or any other persons
or entities related or associated with JCG.”
Complainants state they are seeking a “Cease and Desist Order” so that they may
“continue to exercise [their] rights under the Act” and ask that a severe penalty be assessed
against “Jerritt Canyon Gold LLC, Whitebox 2014-1 LTD and any other associated entity or
person associated with ‘Whitebox’ as well as against attorneys Kaster, Jarvis, Reece and Tirre as
well as Solicitor of Labor Brad Mantel as we believe that his actions in these matters are
5

Complainants misspelled Ms. Reece’s name throughout the complaint. I have used the
correct spelling in this decision.

39 FMSHRC Page 1501

complicit and that he too has taken and/or supported the actions of Kaster, Jarvis, Reece and
Tirre and in doing so has interfered with Mr. Lowe’s and Mr. Varady’s rights under the Act.” Id.
Summary of the Parties’ Arguments.
JCG argues that the interference complaint should be dismissed because it “fails to state a
claim upon which relief can be granted.” JCG Mot. 10. Specifically, JCG asserts that
Complainants have never been employed by JCG and, while the Mine Act protects against
interference affecting statutory rights of miners, representatives of miners, or applicants for
employment at a mine, Complainants failed to plead facts to demonstrate that they are part of
one of those protected classes. Id. at 13. Accordingly, Complainants do not qualify for relief
under section 105(c) of the Act. Id. at 12.
JCG further argues that the underlying discrimination claims were against Veris Gold,
not JCG, and the actions taken by JCG to defend itself and assert rights afforded under the
Bankruptcy Court’s orders cannot form the basis of Complainants’ interference claims. Id. at 11.
The Bankruptcy Court’s final order enforcing JCG’s right to be “free and clear” of claims of
successor liability with respect to its purchase of certain Veris Gold assets establishes that JCG
had a legitimate and substantial reason to defend itself against Complainants’ successor liability
claims. Id. at 15.
Finally, JCG argues that the complaint is procedurally defective because it was not filed
within 60 days of the alleged interference and it undermines the “valid and binding final orders
of the FMSHRC and the Bankruptcy Court” which were not appealed. Id. at 11 n. 7, 16.
Whitebox6 raises essentially the same arguments made by JCG and also asserts that it was
not a party to the discrimination proceeding and should not be a party to this proceeding since it
“did not purchase and does not own the assets of Veris Gold USA, Inc. or . . . Jerritt Canyon
Gold, does not operate the Jerritt Canyon mill or mine, is not an employer of miners and is not a
successor to Veris Gold USA, Inc.” Whitebox Mot. 1-2. Moreover, it avers that the underlying
discrimination complaints which form the basis of the interference claim were dismissed by
Judge Simonton against any alleged successor and the motion to include Whitebox as a party to
those proceedings was denied by Judge Simonton. Because the Commission denied the petition
for review in those matters, “there is nothing to be interfered with and this interference case is
moot and should be dismissed.” Id. at 2. Finally, Whitebox argues that, with respect to the
alleged interference via letters sent to Complainants, neither Whitebox nor its counsel sent those
letters and, instead, were only copied on the correspondence. Id. at 3.
Complainants argue that the letters they received dated February 27, 2017 “represented a
threat to the Complainants in an attempt to stop the Complainants from exercising their rights
under the Act.” Response to Motions to Dismiss at 2. The attorneys listed in their interference
complaint all acted in concert to prevent them from exercising these rights and “they should be
held accountable for their actions as well as the actions of their respective clients. Id.
Complainants believe that the “the law is very plain and clear on this matter and [they] request
6

I have not joined Whitebox as a party to this case. It entered a special, limited
appearance for the sole purpose of responding to the interference complaint.

39 FMSHRC Page 1502

that this Court find all [entities listed in the complaint] guilty of interfering with the statutory
rights of the miners and assess a heavy penalty against them[.]” Id. at 3. Finally, Complainants
maintain that WBox 2014-1 Ltd. has a controlling interest in JCG as evidenced by information at
Mine Data Retrieval System at MSHA’s website. Information shown for the Jerritt Canyon Mill
indicates that JCG is the operator and “WBox 2014-1; Eric Sprott” is the “Current Controller.”
As a consequence “Whitebox does in fact have an active interest and role in operating” the mine.
III. ANALYSIS
A. Summary of Commission Case law Concerning Interference Complaints.
Section 105(c) of the Act states, in pertinent part, 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 of the
exercise by such miner … on behalf of himself or others of any statutory right afforded by this
[Act].”30 U.S.C. § 815(c)(1) (emphasis added). The language of the Mine Act and its legislative
history make clear that section 105(c) protects miners against “not only the common forms of
discrimination, such as discharge, suspension, demotion…, but also against the more subtle
forms of interference, such as promises of benefits or threats of reprisals.” S. Rep. 95-191, 95th
Cong., 1st Sess. 36 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 624 (1978)
The test for what constitutes interference under the Act is “not well-settled.” Michael
Wilson et al. v. Armstrong Coal Co., Inc., 39 FMSHRC __, (May 9, 2017) (ALJ). In UMWA obo
Franks and Hoy v. Emerald Coal Resources, LP, 36 FMSHRC 2088 (Aug. 2014), the
Commission found that a violation of section 105(c) had occurred, with two Commissioners
holding that the mine operator had interfered with miner’s rights under the Act. There, the
minority adopted a two prong test advocated by the Secretary that interference would occur if:
(1). a person’s action can be reasonably viewed, from the perspective of members of the
protected class and under the totality of the circumstances, as tending to interfere with the
exercise of protected rights, and
(2). the person fails to justify the action with a legitimate and substantial reason whose
importance outweighs the harm caused to the exercise of protected rights.
Id. at 2108. Several other Commission judges have applied this test. See Scott D. McGlothlin v.
Dominion Coal Corp., 37 FMSHRC 1256 (June 2015) (ALJ); Sec’y of Labor obo Eric
Greathouse et al. v. Ohio County Coal, 37 FMSHRC 2892 (Dec. 2015) (ALJ). Although a
majority of the Commission has not formally adopted the Franks test as the single test for
interference, it has confirmed that it may be an appropriate test. See Sec’y of Labor obo Thomas
McGary et al. v. The Marshall County Coal Co., et al., 38 FMSHRC 2006 (Aug. 26, 2016). See
also Michael Wilson v FMSHRC et al., 2017 WL 3091569 (DC Cir. 2017).

39 FMSHRC Page 1503

B. Conclusions of Law
The issues to be resolved in this case are purely of a legal nature. There are no disputes of
fact that would affect the disposition of the case. I recognize that dismissal of a case brought
under section 105(c)(3) of the Mine Act for failure to a state claim is not favored. Ribble v. T&M
Development, 22 FMSHRC 593 (May 2000); Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC
1918, 1920 (Nov. 1996). I hold, however, that under the rather unusual circumstances presented
in this case, dismissal is warranted. Holding a hearing on the issues raised by Complainants
would not change the result and would potentially subject Complainants to sanctions by the
Bankruptcy Court. It should be noted that after the Commission denied Complainants’ petition
for discretionary review of Judge Simonton’s order of dismissal, I issued an order, dated May 15,
2017, urging the parties to settle the case and suggesting a framework for doing so. Mark Kaster,
counsel for JCG, reported that he attempted to contact Lowe and Varady to discuss settlement
but neither Complainant responded. Email dated 6/6/2017.
Based upon the record described above and established law, I find that this case should be
dismissed for the following reasons.
(1). The listed attorneys must be dismissed from this case because an attorney cannot be
held liable to third parties for acts committed within an attorney-client relationship absent a
showing that the attorney exceeded his scope of representation. See Hansaworld USA, Inc. v.
Carpenter, 662 Fed.Appx. 259 (5th Cir. 2016); Brinkman v. Bank of America, N.A., 914 F. Supp.
2d 984 (D. Minn. 2012); Iqbal v. Bank of America, N.A., 559 Fed. Appx. 363, 364 (5th Cir.
2014). There has been no showing that any of the named counsel exceeded the scope of his or
her representation in this case. In addition, attorney Brad Mantel of the Office of the Solicitor
cannot be held to have interfered with Complainant’s Mine Act rights. The Secretary declined to
prosecute the underlying discrimination cases that Complainants brought against Veris Gold and
declined to bring the present case on Complainants’ behalf.
(2). Lowe and Varady were not members of the protected class at the time of the alleged
interference. Section 105(c) of Mine Act provides that no person shall discriminate against or
interfere with the statutory rights of three specific groups of people. To be protected by this
provision the individual must be: (1) a miner, (2) a representative of miners, or (3) an applicant
for employment at a mine. The complaint alleges that the Respondents interfered with
Complainants’ statutory rights in various ways during the period between September 2, 2016 and

39 FMSHRC Page 1504

February 27, 2017.7 Complainants were not miners, representatives of miners or applicants for
employment at the time that the alleged interference occurred. Indeed they never worked as
miners for JCG and had not worked as miners for Veris Gold since November 2013. Although
Judge Moran determined that Veris Gold discriminated against Varady and Lowe, as discussed
above, Veris Gold is not a party to this proceeding and no longer existed at the time of the
alleged interference. I find that neither Lowe nor Varady were members of the protected class at
the time of the alleged interference.
(3). Assuming that Lowe and Varady are part of the protected class, I find that they failed
to establish a case of interference. The first part of the interference test requires Complainants to
show that respondents’ actions, when viewed from the prospective of Complainants, tended to
“interfere with the exercise of protected rights.” I will assume that the letters sent to Lowe and
Varady in March 2017 tended to interfere with their protected rights, when viewed from their
prospective. Nevertheless, the Respondents justified their actions with “a legitimate and
substantial reason whose importance outweighs” the alleged harm caused by their actions. JCG
and its attorneys had a legal duty to abide by the rulings of the Bankruptcy Court. That court
authorized the sale of assets of Veris Gold unencumbered by any of its legal and financial
obligations. Complainants had two opportunities to appeal the rulings of the Bankruptcy Court
on this issue, once when Judge Zive denied their request to stay the sale of Veris Gold’s assets in
June 2015 and again after Judge Zive’s order of September 2, 2016 reaffirming the nature of the
sale order. They did not file any appeals. JCG agreed to purchase assets of Veris Gold with the
understanding that it was taking the property free and clear of all encumbrances, which were
substantial, pursuant to section 363 of the Bankruptcy Code. Respondents, including their
counsel, had the right and a legal obligation to defend the terms of the asset sale against
collateral attack. This free and clear sale was ordered by the Bankruptcy Court. Although the
letters threatened to take action, the letters also reminded Lowe and Varady that the Bankruptcy
Court specifically enjoined them from continuing to pursue Mine Act remedies against JCG and
the other entities. Complainants are, in reality, arguing against the provisions of the Bankruptcy
Code that provide for this type of “free and clear of any interest” sale upon approval of the
Bankruptcy Judge. 11 U.S.C. 363(f).
(4). Complainants’ attempt to relate this interference complaint back to the discrimination
cases they brought against Veris Gold cannot stand. Neither JCG nor Whitebox can be held
7

As stated above, Respondents maintain that the interference complaint was filed more
than 60 days after Respondents filed motions in Bankruptcy Court on August 4, 2016 to reopen
the case which cumulated in the August 11 hearing and September 2, 2016 order. They assert
that, because section 105(c)(2) of the Mine Act requires complaints to be filed within 60 days
after the alleged violation occurs, these events cannot form the basis of the interference
complaint. Commission case law is clear, however, that the filing period is not jurisdictional.
Morgan v. Arch of Illinois, 21 FMSHRC 1381 (Dec. 1999). Whether a complaint is untimely
requires an evaluation of the particular facts involved. In this instance, I find that the two letters
of February 27, 2017 relate back to the Bankruptcy Court’s hearing and order in AugustSeptember 2016. The delay was not serious and it did not prevent Respondents from defending
their actions. I conclude that I have jurisdiction over all the events raised in the complaint of
interference.

39 FMSHRC Page 1505

liable for the previous discriminatory acts of Veris Gold because they are not successors to Veris
Gold. The Bankruptcy Court authorized the asset sale free and clear of all liens, claims, and other
interests. As stated above, Complainants did not seek to appeal the court’s authorization of the
“free and clear” sale. Judge Simonton correctly determined that the “interpretation and efficacy
of the [Bankruptcy Court’s] Sale Order is governed by the Bankruptcy Code and not the Mine
Act.” 39 FMSHRC at 787. In addition, Complainants’ contention that Veris Gold filed for
bankruptcy to avoid its obligations under the Mine Act is without merit. The record before the
Bankruptcy Court shows that Veris Gold was facing insurmountable financial difficulties.8 As a
consequence, it is simply inconceivable that Veris Gold’s bankruptcy filing and JCG’s purchase
of the assets “free and clear of any interest” were motivated in any part to avoid responsibility
for Lowe’s, Varady’s or any other miner’s discrimination claims under the Mine Act.
IV. ORDER
The motions to dismiss filed by Jerritt Canyon Gold, LLC and WBox 2014-1-Ltd. are
GRANTED and this case is DISMISSED against all entities listed by Daniel B, Lowe and
Matthew A. Varady in their complaint of interference including but not limited to Jerritt Canyon
Gold, LLC, WBox 2014-1-Ltd, and the attorneys listed therein.

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

8

As the Bankruptcy Court noted, none of the secured or unsecured creditors were paid.
For example, Deutsche Bank was not paid any of its $90 million dollar claim for loans it had
made and mechanic’s lien claims in the amount of $40 million dollars were unpaid. Bankruptcy
Court Order dated September 2, 2016 at 7, 24.

39 FMSHRC Page 1506

Distribution:
Daniel B. Lowe, P.O. Box 2608, Elko, NV 89801 (Certified Mail)
Matthew A. Varady, 701 S. 5th #6, Elko, NV 89801 (Certified Mail)
Mark Kaster, Esq., Dorsey & Whitney, 1500 South 6th Street, Minneapolis, Minnesota 55402
(Certified Mail)
Annette Jarvis, Esq., Dorsey & Whitney, 36 South Main Street, Suite 1000, Salt Lake City, Utah
84101 (First Class Mail)
Cathy L. Reece, Esq., Fennemore Craig, PC, 2394 East Camelback Rd., Ste. 600, Phoenix, AZ
85016-3429 (Certified Mail)
Amy N. Tirre , Esq., Law Offices of Amy N Tirre, 3715 Lakeside Drive, Suite A
Reno, Nevada 89509 (First Class Mail)
Brad J. Mantel, Esq., Office of the Solicitor U.S. Department of Labor , 201 12th Street, South,
Suite 401 Arlington, VA 22202-5450 (First Class Mail)
RWM

39 FMSHRC Page 1507

ADMINISTRATIVE LAW JUDGE ORDERS

39 FMSHRC Page 1508

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9987 / FAX: 202-434-9949

July 5, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2015-101-M
A.C. No. 24-02070-361812

v.
JOHN RICHARDS CONSTRUCTION
Respondent

Mine: Richards Pit

ORDER OF DEFAULT
Before:

Judge Bulluck

This proceeding is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health Administration against
John Richards Construction (“JRC”), pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d). On October 30, 2015, I issued a Summary Decision
affirming Citation Nos. 8762878 and 8762879. On December 2, 2015, the Commission granted
JRC’s Petition for Discretionary Review as to Citation No. 8762878 only. On May 11, 2017, the
Commission vacated the order granting summary decision as to Citation No. 8762878, and
remanded the matter to me for discovery and a full evidentiary hearing on the merits.
Between Tuesday, May 16 and Tuesday, May 23, this office emailed JRC’s
representative John Richards at JRC’s address of record five times, and placed nine calls to its
phone numbers of record, i.e., the mine office phone and Mr. Richards’ cell phone. This office
was only able to reach JRC employee Cindy Llewellyn at the mine office, who agreed to convey
to Mr. Richards that this office was seeking his availability for a conference call in order to
discuss several preliminary issues: whether the parties are interested in settling; whether JRC
wishes a hearing in the matter; whether the parties wish to conduct discovery; and any other
housekeeping matters associated with moving this case forward.
On Monday, May 22, Ms. Llewellyn forwarded to this office by email a handwritten note
from Mr. Richards stating “I’m working out of range of cell service from early morning till late
at nite. I will call when job is finished and I can get some sleep.” In response, this office called
Ms. Llewellyn and emailed Mr. Richards, advising that failure to respond to the outstanding
request for Mr. Richards’ availability by close of business Tuesday, May 23 would result in
issuance of an order to show cause why this case should not be dismissed. Having received no
response, on Friday, May 26, this office issued an Order to Show Cause, directing JRC to justify
its failure to provide the requested information, or otherwise contact this office directly through
its representative. JRC was also put on notice that failure to comply with the Order in three
weeks, by Friday, June 16, would result in a default judgment in favor of the Secretary, and an
order to pay the civil penalty.

39 FMSHRC Page 1509

On Monday, June 5, JRC filed a motion construed as a renewal of its September 29, 2015
motion for recusal, which I denied by Order dated Tuesday, June 6. On Tuesday, June 13, JRC
emailed this office requesting a two-week extension on the Order to Show Cause deadline; I
extended the deadline to Friday, June 30, by Order dated Wednesday, June 14.
On Monday, July 3, by USPS regular mail, this office received a Response to Show
Cause Order from JRC, signed by Mr. Richards on June 28, which stated that “[t]he Court is well
aware of all of the issues and of the affidavit of Mark Smith regarding the annual inspection of
the fire extinguishers that had been done timely as required by MSHA (see record). For these
reasons, this citation should be dismissed.” Not only is JRC’s Response untimely, but it raises
more questions than it answers. It is unclear whether JRC even wishes a hearing, or whether it is
asking the judge to vacate the citation and dismiss this case summarily. Furthermore, the
Response fails to justify JRC’s failure to provide the requested information or, finally, provide
Mr. Richards’ availability.
JRC has been given ample time, over six weeks, to provide this office with dates and
times that its representative is available for a prehearing conference with the opposing party and
the judge, consistent with the Commission’s instructions on remand. Mr. Richards’ selective,
indirect contact with this office to date demonstrates that compliance has been possible but,
nevertheless, unintended by Mr. Richards — an insurmountable impediment to processing this
case.
ORDER
This case cannot proceed where Respondent refuses to fulfill its baseline duties and,
therefore, it is ORDERED that JUDGMENT BY DEFAULT is hereby entered for the
Secretary of Labor, and John Richards Construction is ORDERED TO PAY IMMEDIATELY
a civil penalty of $100.00.1 ACCORDINGLY, this case is DISMISSED.

/s/ Jacqueline R. Bulluck
Jacqueline R. Bulluck
Administrative Law Judge

1

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. Please include Docket
number and A.C. number.

39 FMSHRC Page 1510

Distribution:
Timothy Turner, Office of the Solicitor, U.S. Department of Labor, 1244 Speer Boulevard, Suite
515, Denver, CO 80204
John Richards, John Richards Construction, 2824 Highway 83 North, P.O. Box 316, Seeley
Lake, MT 59868
/tcp

39 FMSHRC Page 1511

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

July 18, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2017-119
A.C. No. 04-01299-423919

v.

Docket No. WEST 2017-173-M
A.C. No. 04-01299-425970

ORIGINAL SIXTEEN TO ONE MINE,
INC.,
Respondent.
Sixteen To One Mine
ORDER GRANTING THE SECRETARY OF LABOR’S MOTION TO DENY
RESPONDENT’S REQUEST FOR ISSUANCE OF SUBPOENAS
Before the Court is the Secretary of Labor’s Motion to deny the Respondent, Original
Sixteen to One Mine’s request for the issuance of subpoenas (“Motion”). The Respondent has
requested subpoenas for the appearance of three MSHA employees at the upcoming hearing in
Truckee, California, commencing on August 9, 2017.
The hearing, for the two dockets listed in the caption, involves 11 citations and 2 orders.
Two MSHA-authorized inspectors issued the citations; in September 2016 Inspector Julie
Hooker issued the two 104(a) citations involved in WEST 2017-0119 and, in November 2016,
Inspector Bryan Chaix issued the nine 104(a) citations and two 104(b) orders involved in WEST
2017-173. The Motion identifies the three individuals for whom subpoenas are sought: Wyatt
Andrews, who is the Mine Safety and Health Administration’s (“MSHA’s”) Western District
Manager, John Pereza, who is an Assistant District Manager in MSHA’s Western District, and
Steven Hagedorn, who is an inspector in MSHA’s Vacaville, CA field office. For the reasons
which follow, the Secretary’s Motion is GRANTED.
Respondent’s Request for Subpoenas
In its July 4, 2017 email, Respondent informed of the grounds in support of the
subpoenas it seeks for the three above-named individuals. Respondent asserts that
AR [Authorized Representative] Hooker and AR Chaix are required (must)
demonstrate through their words and actions that they are knowledgeable and
professional regarding the specific site they inspect. They must rely on their
training and experience ‘to reach fact-based, impartial decisions in safety and
health matters involving miners.’ (Chapter TWO A -Procedures Handbook) They

39 FMSHRC Page 1512

are required to utilize their time efficiently and effectively. Neither AR Hooker
nor AR Chaix carried out these activities.
Respondent’s July 4, 2017 email to the Court and the Secretary of Labor’s Counsel, Attorney
Pearson.
In the same email, the Respondent elaborated on the reasons supporting the subpoenas as
follows,
Wyatt Andrews and John Perez are key witnesses in the defense of alleged
violations of citations issued by AR Hooker and AR Chaix. Both have knowledge
regarding the qualifications of AR Hooker and AR Chaix. Wyatt Andrews and
John Perez have intimate background, training and experiences with MSHA and
its operation in the Western District. No others are qualified to address the
questions Respondents will raise in this administration hearing except the
Administrator. [Respondent also notes that] [t]he district and assistant district
managers share responsibility with the Administer for Metal and Nonmetal Mine
Safety and Health (Administrator) ‘for enforcing and implementing provisions of
the Mine Act’ (Chapter ONE D - Procedures Handbook) [and that] Wyatt
Andrews and John Perez hold the two district responsibilities. [Respondent then
adds that] [i]f the SOL objects to issue Subpoenas [sic] for these federal
employees, Respondent requests a subpoena for the Administrator.
Id.
As for the third individual for which a subpoena is sought, AR Steve Hagedorn,1
Respondent states that inspector Hagedorn
was the designated inspector of then trainee, Right of Entry (ROE) Hooker on her
first underground inspection, which was at Sixteen to One mine. This placed him
directly responsible over ROE Hooker. MSHA has an ‘Instruction Guide Series,
instructor training Course. Its intent is to ‘teach how to teach.’ An
instructor/teacher should be well versed in the subjects they intend to teach by past
training and experiences. ‘If not, further study and/or experience will be required.’
Respondent will prove that Hooker did not receive required instructions during the
mandatory training period. Respondent will also prove that AR Chaix failed to
conduct his activities during the inspection, as required with another ROE federal

1

Respondent identifies the inspector as “Steve Haggerdorn.” However, it appears that the
correct spelling of the inspector’s name is “Steven Hagedorn.”

39 FMSHRC Page 1513

employee during his training. This establishes a pattern of behavior that only
Messrs. Andrews, Perez or the Administrator [ ]can address.2
Id. (emphasis in original)
The Secretary’s Motion to deny the Respondent’s request for issuance of the subpoenas.
The Secretary contends that neither Wyatt Andrews nor John Pereza possess relevant
information as neither was “directly involved in the issuance of the citations at issue in this
case.” Motion at 3. The Secretary states that neither individual was “present at the Mine at the
time of either inspection and have no personal knowledge of the conditions described in the
citations and orders at issue.” Id. The Court notes that the Respondent does not claim otherwise.
Given that, the Secretary argues that “their testimony would not assist the finder of fact
in determining the truth and is not relevant.” As neither can offer any “relevant evidence they
should not be compelled to testify.” Id.
The Secretary also notes, correctly, that Respondent’s request for the subpoenas is to
allow it to question Andrews and Pereza about the qualifications of inspectors Chaix and
Hooker. However, the Secretary responds that, as he intends to call both inspectors as witnesses
in the upcoming hearing, Mr. Miller will be able to question both Chaix and Hooker directly
about their qualifications.3
With those principles in mind, the Secretary argues that “Mr. Chaix’s character is not an
essential element of whether Respondent violated the cited standards. Whether Mr. Chaix was
2

It is noted that, on June 29, 2017, Respondent initially advised the Court via email that
subpoenas for John Perez “and/or Wyatt Andrews testimony is critical for judging these citations
issued by AR Brian Chaix. There is no acceptable reason for one or both not to appear in your
courtroom.” June 29, 2017 email from Michael Miller to the Court and the Secretary of Labor’s
Counsel, Attorney Pearson.
3

A side issue has apparently arisen, as the Secretary also informs of Mr. Miller’s
expressed intention “to question Mr. Andrews and Mr. Pereza about internal personnel matters
relating to Mr. Chaix, and about Mr. Chaix’s demeanor and interactions . . . [and that Mr. Miller
has] opined that Mr. Chaix has unstated ‘mental issues’ that he wishes to explore.” Id. at 3.
As the Secretary observes, delving into such issues are intended to attack the inspector’s
character. Challenging that purpose, the Secretary notes that “Federal Rule of Evidence 404
prohibits the introduction of evidence of a person’s character or previous actions to prove that a
person acted in accordance with that character trait on a particular occasion.” Id. at 3-4. Further,
the Secretary points out that “‘[c]haracter evidence does not constitute an ‘essential element of a
claim or charge unless it alters the rights and liabilities of the parties under the substantive law.’”
Id. at 4, citing Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 232 (3d Cir. 2004)
(citing Schafer v. Time, Inc., 142 F.3d 1361, 1371 (11th Cir.1998). The Court agrees with the
Secretary’s observations. Particular questions which may be posed along these lines will be
addressed as they arise during the course of the hearing.

39 FMSHRC Page 1514

unpleasant is completely irrelevant to that question. . . . such questioning would be irrelevant to
assisting the trier of fact in determining whether the citations should be upheld.” Id.
Turning to the requested subpoena for Inspector Steven Hagedorn, the Secretary argues
that Hagedorn does not possess relevant information, noting Hagedorn “was not present for the
September 2016 inspection of the Mine and has no personal knowledge of the citations issued by
Ms. Hooker at that inspection. In fact, Mr. Miller admits as much and states that his intent in
calling Mr. Hagedorn to testify is to question him on his training of Ms. Hooker.” Id. at 5.
While the Secretary acknowledges that Ms. Hooker accompanied Mr. Hagedorn as a
trainee on his inspection of the Mine in November, 2015, the matters in dispute in the present
docket have nothing to do with that November 2015 inspection and therefore have no relevance
to this matter.
The Secretary points out that “Mr. Miller may question Ms. Hooker about her
background and training at the hearing on this matter. Any testimony by Mr. Hagedorn would be
unduly repetitious, needlessly cumulative, and would serve to waste time during the upcoming
hearing,” and the Hagedorn subpoena should be denied. Id.
Last, the Secretary contends that the Administrator for metal/nonmetal should not be
compelled to testify because he is a high ranking government official.4 Id. A second, but
important, reason to preclude the Administrator’s testimony is that he is “without personal
knowledge of the facts of this case and [therefore] should be protected from compulsory
testimony.” Motion at 5, citing Pocahontas Coal Co., 36 FMSHRC 2326, 2327 (ALJ Miller,
August 7, 2014).

4

As the Secretary correctly observes, “Courts have routinely held that ‘top executive
department officials should not, absent extraordinary circumstances, be called to testify
regarding their reasons for taking official actions.’ Simplex Time Recorder Co. v. Sec’y of Labor,
766 F.2d 575, 586 (D.C. Cir. 1985) (citing United States v. Morgan, 313 U.S. 409 (1941)). The
rule disallowing compulsory testimony of government officials applies not only to cabinet
members and heads of executive agencies; it applies as well to lower level but relatively
important decision makers within an agency. Simplex 766 F.2d at 586-7 (barring depositions of
the Solicitor of Labor, the Secretary of Labor’s Chief of Staff, an OSHA Regional Administrator,
and an OSHA Area Director). The reasons for this rule are particularly apparent in the instant
case. ‘Considering the volume of litigation to which the government is a party, a failure to place
reasonable limits upon private litigants' access to responsible government officials as sources of
routine pre-trial discovery would result in a severe disruption of the government's primary
function.’ Cmy. Fed. Sav. & Loan Ass’n v. Fed. Home Loan Bank Bd., 96 F.R.D. 619, 621
(D.D.C. 1983), citing Capitol Vending Co. v. Baker, 36 F.R.D. 45 (D.D.C. 1964).” Motion at 45. The Court agrees with the Secretary’s observations; the Respondent’s alternative request to
subpoena the Administrator is DENIED.

39 FMSHRC Page 1515

Discussion
This is not a hard, nor close, matter to resolve. While, as the Respondent states, MSHA
inspectors must “demonstrate through their words and actions that they are knowledgeable and
professional regarding the specific site they inspect [and that] [t]hey must rely on their training
and experience ‘to reach fact-based, impartial decisions in safety and health matters involving
miners,’” the Respondent will have a full opportunity to challenge both the inspectors’
knowledge about the alleged violations and the adequacy of their underlying training and
experience. Respondent’s July 4, 2017 email.
In this regard, in order to assist in cross-examining those inspectors, the Respondent may
elect to bring individuals to the hearing who have specialized knowledge about the subjects
addressed in the various safety standards cited by the inspectors, in order to attempt to show
deficiencies in the inspectors’ grasp of those standards and/or alleged educational shortcomings
in their knowledge of the subjects upon which those standards are based.
As an illustrative example, in the instance where the Respondent was cited for an alleged
violation of 30 C.F.R. § 57.18025, and that standard’s requirement, in part, that one is not to
work alone “in any area where hazardous conditions exist that would endanger his safety,” the
Respondent may delve into the basis for the inspector’s conclusions that the standard was
violated. 30 C.F.R. § 57.18025. This could include questioning about the inspector’s
underground hard rock mining experience. As a second illustration, the same approach could be
used for the citation asserting that the mine’s check-in and check-out system did not provide an
accurate record of the persons in the mine, per 30 C.F.R. §57.11058.
These examples are only intended to show how, potentially, one could cross-examine an
inspector and neither party should construe them as suggesting that the alleged violations are
suspect, nor do they infer that the Secretary may not prevail in those or the other contested
citations. The facts adduced at the hearing and the legal determinations about the standards
involved will determine the outcomes of the challenged citations.

39 FMSHRC Page 1516

For now, the more important point is that there is neither a need nor a justification for
Respondent’s requested subpoenas of MSHA’s Andrews or Perez, much less for the appearance
of the Metal and Nonmetal Administrator at the upcoming hearing. Thus, the Court does not
agree at all with the Respondent’s claim that “[n]o others are qualified to address the questions
Respondents will raise in this administration hearing . . .” Respondent’s July 4, 2017 email. The
same observation applies with equal force to the subpoena sought for MSHA’s Hagedorn.
SO ORDERED.

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

Distribution
Laura Ilardi Pearson, Esq., Office of the Solicitor, U.S. Department of Labor, Cesar E. Chavez
Memorial Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80202
Mr. Michael Miller, President, Original Sixteen to One Mine, P.O. Box 909, Alleghany, CA
95910

39 FMSHRC Page 1517

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

July 19, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. PENN 2015-266
A.C. No. 36-05466-385249

v.
EMERALD COAL RESOURCES, LP,
Respondent.

Emerald Mine No. 1
ORDER

On August 15, 2014, Brandon Crutchman (“Crutchman”), an inspector from the Mine
Safety and Health Administration (“MSHA”) conducted an inspection at Emerald Mine No 1, a
coal mine operated by Emerald Coal Resources LP (“Emerald”). After completing his inspection,
Crutchman issued Order No. 7028490 for an alleged violation of 30 C.F.R. § 75.363(a) and
Order No. 7028491 for an alleged violation of 30 C.F.R. § 75.400.
Procedural History
Approximately ten months after the Orders were issued, MSHA proposed assessment No.
000385249, which included Order No. 7028490 and Order No. 7028491. Both Orders were
designated as flagrant. A total proposed penalty of $234,200.00 was assessed on Emerald.
Emerald received the proposed assessment on July 6, 2015. Later that week, Emerald
contested the proposed assessment by a letter sent to the Mine Safety and Health Administration
Civil Penalty Compliance Office. A date stamp indicates that the office of assessments received
the contest on July 14, 2015.
Pursuant to Section 2700.28(a), “[w]ithin 45 days of receipt of a timely contest of a
proposed penalty assessment, the Secretary shall file with the Commission a petition for
assessment of penalty.” Thus, the Secretary was required to file with the Commission a petition
for assessment of penalty on or before August 28, 2015.
On August 3, 2015, Alpha Natural Resources, Inc. (“Alpha”), filed for Chapter 11
Bankruptcy; this included affiliate Emerald. Thereafter, Emerald issued Worker Adjustment and
Retraining Notification Act (“WARN”), notices to all of its 278 employees stating that it
intended to permanently idle Emerald No.1 Mine and reduce its workforce by November 24,
2015. On October 28, 2015, Emerald submitted a plan to seal the mine. Throughout the months
of November and December 2015, Emerald reduced its workforce to approximately 15 active

39 FMSHRC Page 1518

hourly and salaried employees between their underground and surface preparation plant
operations. The final mine sealing plan was approved on December 22, 2015.
On January 15, 2016, the Secretary filed a Motion to Permit Late Filing, simultaneously
with a Petition for Assessment of Civil Penalty in this matter. Four days later, on January 19
2016, Emerald received the Secretary’s Motion to Permit Late Filing and Petition for Assessment
of Civil Penalty. This occurred 17 months after the issuance of the Orders and 5 months after the
deadline by which the Secretary was required to file the Petition for Assessment of Civil
Penalty.1 The Secretary claimed the filing was delayed because of a clerical error caused by a
change in the District’s administrative personnel.
Emerald then filed a Response to the Secretary’s Petition for Late Filing on January 28,
2016, requesting that the Secretary’s Petition for Assessment of Civil Penalty be dismissed due
to the Secretary’s untimely filing.
On May 26, 2017, this case was assigned to the Administrative Law Judge. On June 27,
2017, the undersigned sent the Respondent a request for additional information regarding the
Bankruptcy proceedings of Alpha, as well as the nature of the asset sale. On July 5, 2017,
Respondent provided this additional information, as well as sections of the Bankruptcy Court
order.
Contentions of the Parties
The Respondent argues that the Secretary failed to show adequate cause for her delay in
filing a Petition for Assessment of Civil Penalty. The Respondent further argues that because the
Secretary has provided no adequate cause, Respondent is not required to show prejudice to the
presentation of its defenses. Therefore, the Respondent requests that the Secretary’s Motion to
Permit Late Filing be rejected and the Petition dismissed.
In addition, the Respondent asserts that even if this Court determines adequate cause for
the Secretary’s delay exists, the Petition should still be dismissed because the Respondent
suffered “real” and “substantial” prejudice. The Respondent alleges that as a result of filing for
Chapter 11 Bankruptcy in 2015, the company has significantly reduced its workforce.
Additionally, Respondent claims that several of the witnesses that were involved in the
inspection on August 15, 2014 are no longer employed by the Respondent. Notably, Respondent
alleges that the mine manager, manager of operations, the belt maintenance supervisor, several of
the hourly belt personnel responsible for maintaining the belts, and its union escort are no longer
employed by Respondent or any of its affiliates. Therefore, Respondent alleges, in effect, an
inability to gather the information necessary to present its best defense against the Orders issued
by MSHA.

1

Due to an error, the Secretary mistakenly filed his Initial Motion to Permit Late Filing
as Unopposed. To fix this error the Secretary filed an Amended Motion correctly identifying the
motion as opposed on January 20, 2016.

39 FMSHRC Page 1519

The Respondent further states that equipment has been altered since the inspection
occurred. Additionally, Respondent believes that documents related to the subject condition may
now be missing. Thus, the Respondent argues they have been significantly prejudiced by the
Secretary’s untimely delay.
The Secretary argues he has shown adequate cause to support the admission of an
untimely petition because the delayed filing in this matter was the result of an innocent and rare
inadvertent error by an inexperienced employee who is no longer employed by MSHA.
Moreover, the Secretary claims there is no evidence to suggest that the Secretary acted with
caprice, willful delay, intentional misconduct, or bad faith. In fact, the Secretary states as soon as
the error was discovered it filed the Motion and Petition. Therefore, the Secretary believes
adequate cause explains the delay in this case.
In addition, the Secretary argues that the Respondent has failed to show prejudice arising
from the Secretary’s delay because the Respondent has made no showing that it will suffer
immediate prejudice in filing its Answer to the Petition. The Secretary further argues that the
Respondent has presented no evidence as to how it has specifically been prejudiced by the
Secretary’s delay.
Lastly, the Secretary argues even if this Court credits the Respondent’s claim of
prejudice, dismissal of the Petition is not automatic because the public interest in enforcing the
Mine Act is paramount to strict procedural regularity. Therefore, the Secretary requests her
petition be accepted out-of-time.
Legal Principles
Section 105(a) of the Mine Act provides: “If, after an inspection or investigation, the
Secretary issues a citation or order under section 104, he shall, within a reasonable time after the
termination of such inspection or investigation, notify the operator…of the civil penalty
proposed to be assessed…” 30 U.S.C. § 815(a).
If a timely notice of contest is filed, section 105(d) provides: “The Secretary shall
immediately advise the Commission of such notification, and the Commission shall afford an
opportunity for a hearing….” 30 U.S.C. § 815(d).
Commission Procedural Rule 28 provides: “Within 45 days of receipt of a timely contest
of a proposed penalty assessment, the Secretary shall file with the Commission a petition for
assessment of penalty.” 29 C.F.R. § 2700.28(a).
The legislative history of the Mine Act reveals the express intent of Congress that “there
may be circumstances, although rare, when prompt proposal of a penalty may not be possible,
and the Committee does not expect that the failure to propose a penalty with promptness shall
vitiate any proposed penalty proceeding.” S. Rep. No. 95-181, 95th Cong., 1st Sess. at 34 (1977),
reprinted in Senate Subcommittee on Labor, Comm. on Human Resources., 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 622 (1978).

39 FMSHRC Page 1520

In Twentymile Coal Company, 411 F. 3d 256 (2005), the D.C. Circuit Court held that an
11-month delay between an investigation report and the issuance of a proposed penalty
assessment was not unreasonable. Two Supreme Court cases were cited, Brock v. Pierce County,
476 U.S. 253 (1986) and Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003). In Brock, the
Supreme Court warned that it “would be most reluctant to conclude that every failure of an
agency to observe a procedural requirement voids subsequent agency action, especially when
important public rights are at stake.” Id. at 260, and concluded that the statutory time provision
in that case “was clearly intended to spur the Secretary to action, not to limit the scope of his
authority. Congress intended that the Secretary should have maximum authority to protect the
integrity of the program.” Id. at 265. In Barnhart, the Supreme Court noted that not “since Brock
have we ever construed a provision that the Government ‘shall’ act within a specified time,
without more, as a jurisdictional limit precluding action later.” Id. at 158.
In 1981 the Commission considered a proposed penalty filed approximately 2 months
after the date it was due. Salt Lake County Road Department, 3 FMSHRC 1714 (July 1981).
Referring to the legislative history, it was determined that the overriding concern was with
enforcement, and the Commission’s Rule did not create a “statute” of limitations or procedural
“strait jackets.” Id. at 1715, 1716. The Commission held that upon seeking permission to file
late, the request must be predicated upon adequate cause. However, the Commission also held
that an operator may object to a late penalty proposal on the grounds of prejudice. Id. at 1716.
The Commission has clarified that “adequate cause” will not be found to exist unless a
non-frivolous explanation for the delay is provided. The Secretary’s excuse may not be facially
implausible, and the delay must not result from “mere caprice” or through willful delay,
intentional misconduct, or bad faith. Should the Secretary meet the burden of showing adequate
cause, the Commission further explained:
[A]n operator must show at least some actual prejudice arising from the delay in
order to secure a dismissal of a penalty proceeding due to a late-filed petition.
Mere allegations of potential prejudice or inherent prejudice should be rejected.
Of course, occasions may arise where a judge will find that the Secretary has
demonstrated adequate cause and that the operator has brought forth evidence of
actual prejudice. The judge in such instances must weigh the interest of fairness to
the operator against the public interest in upholding the enforcement purpose
inherent in section 105(d).
Long Branch Energy, 34 FMSHRC 1984, 1991 (Aug. 2012).
Therefore, the burden shifts to the operator to establish actual prejudice. The prejudice
must be “real” or “substantial”, and demonstrated by a specific showing by the operator. Id., at
1993. There must be more than “inherent prejudice” or mere “danger of prejudice”. Webster
County Coal, LLC, 34 FMSHRC 1946, 1951 (Aug. 2012), citing Long Branch.
The Commission has held that where the Secretary and operator have both satisfied their
burdens, a judge “must weigh the interests of fairness to the operator against the public interest

39 FMSHRC Page 1521

in upholding the enforcement purpose inherent in Section 105(d). Long Branch, 34 FMSHRC at
1991.
The Secretary’s Declaration
In pertinent part, the Declaration of Rebecca L. Kollar (“Kollar”) on February 3,
2016 is as follows:
1. I am currently employed by the U.S. Department of Labor, Mine Safety and
Health Administration (“MSHA”), as Secretary to the Assistant District Manager
at the MSHA Coal District 2 (“Coal District 2”). I joined MSHA on October 15,
2006, when I was hired as a Coal Mine Safety and Health Assistant (“CMS&H
Assistant”).
2. On December 14, 2014, I was promoted to my current position. On or about
March 23, 2015, April Neiderhiser was hired to replace me as a CMS&H
Assistant. Ms. Neiderhiser as a CMS&H Assistant.
3. The Coal District 2 CMS&H Assistant, is responsible for keeping track of and
carrying out all of the administrative tasks executed by the Conference &
Litigation Representatives (“CLR’s”) of Coal District 2. These tasks include
processing new civil penalty petitions and mailing cases to the Philadelphia
Office of the Regional Solicitor (“Solicitor’s Office”).
4. I am familiar with MSHA’s civil penalty assessment process and the procedures
of civil penalty proceedings before the Commission.
5. Coal District 2 typically receives an automated e-mail from MSHA’s internal
citation and case tracking software that a matter has been docketed at the Federal
Mine Safety and Health Review Commission (“FMSHRC”). This e-mail alerts the
CMS&H Assistant that a contest has been filed and whether a CLR or the
Solicitor’s Office will handle the matter. In either case, the CMS&H Assistant
enters the docket number on an Excel spreadsheet.
6. As a CMS& H Assistant I was responsible for creating a system to manage and
track various cases that came into the office. I developed an Excel Spreadsheet to
organize and maintain information about cases including petition deadlines. This
spreadsheet automatically calculates the petition’s due date. If as case is to be
transferred to the Solicitor’s Office, then the matter is entered in the spreadsheet.
The procedure is for the case to be removed from the spreadsheet once a return
receipt is e-mailed from United Parcel Services (“UPS”) indicating that the
package transmitting the case has been delivered.
7. I trained Ms. Neiderheiser how to populate the Excel spreadsheet, keep track of
cases, file petitions, and mail cases to the Solicitor’s Office.
8. On or about January 13, 2016, our office was contacted by the Solicitor’s Office
inquiring about the status of Docket PENN 2015-266. The Solicitor’s Office
stated it never received the case. As a result I reviewed our records in an effort to
locate the case and found that we received an automated e-mail on July 20, 2015

39 FMSHRC Page 1522

regarding Docket No. PENN 2015-266. From this e-mail I learned that the Docket
was designated to the Solicitor’s Office.
9. I also reviewed the Excel spreadsheet and determined that Docket No. PENN
2015-266 was not included on this list. I searched through our e-mailed receipts
and could not find an e-mail receipt from UPS showing that the case had been
mailed to the Solicitor’s Office. As a result of my review, I found no evidence
that the case was even sent to the Solicitor’s Office or that a civil penalty petition
was filed by Coal District 2.
10. Ms. Neiderheiser was the CMS&H Assistant at the time Coal District 2 received
the notice of docketing for PENN 2015-266 and therefore responsible for
ensuring that the case was mailed to the Solicitor’s Office. Since Ms.
Neiderheiser’s last date of employment with MSHA was July 23, 2015, I could
not get her input as to what may have happened with Docket No. PENN 2015266.
11. Because the file for PENN 2015-266 could not be located, our office created a
new case file for the docket. The new case file was mailed to the Philadelphia
Solicitor’s Office for litigation.
GX-1 (Secretary’s Reply to Respondent’s Response In Opposition).
The Respondent’s Declarations
In pertinent part, the Declaration of Dan Lhota on January 28, 2016 is as follows:
1. I am employed in the human resources department of Maxxim Shared
Services, LLC, which is affiliated with Emerald Coal Resources, LP and
Alpha Natural Resources, Inc.
2. On September 25, 2015, Emerald issued Worker Adjustment and Retraining
Notification Act (“WARN”), notices to its 278 employees stating that it
intended to permanently idle Emerald No. 1 Mine and reduce the workforce at
the mine by approximately November 24, 2015.
3. On November 25, 2015, Emerald reduced its workforce to approximately
seventeen active hourly and thirteen salaried employees between the
underground and surface preparation plant operations.
4. On December 8, 2015, Emerald further reduced its workforce to six active
hourly employees and nine salaried employees.
5. Currently, there are eight salaried and six hourly employees assigned to work
at Emerald Mine No. 1 and the Emerald Mine No. 1 preparation plant.
6. Emerald does not plan to increase its staff in the future.
RX-F.

39 FMSHRC Page 1523

In pertinent part, the Declaration of Ryan Kerr on January 28, 2016 is as follows:
1. I am employed by Maxxim Shared Services, LLC, which is affiliated with
Emerald Coal Resources, LP and Alpha Natural Resources, Inc.
2. I am currently assigned to work at Emerald Mine No. 1 in the safety
department.
3. I am one of fourteen persons currently assigned to work at Emerald Mine No.
1. Emerald does not place to increase its staff in the future.
4. I am responsible for dealing with compliance issues at Emerald Mine. I
receive proposed assessments from MSHA and forward the completed contest
forms to the corporate office of Alpha Natural Resources for processing. I also
receive petitions for assessment, which I forward to the corporate office of
Alpha Natural Resources for processing.
5. In July 2015, I completed the contest form associated with Assessment No.
000385249, which contained Order Nos. 7028490 and 7028491 that were
assessed as flagrant. I forwarded the completed contest form to Alpha Natural
Resources for processing.
6. In November and December 2015, Emerald reduced its workforce and no
longer retains relations with several of the witnesses involved in the
inspection on August 15, 2014.
7. Emerald or its affiliates no longer employ many of the persons employed by
Emerald during the August 15, 2014 inspection.
8. The mine foreman and manager of operations are no longer employed by
Emerald or its affiliates. The belt maintenance supervisor along with several
hourly belt personnel responsible for maintaining the belts at Emerald in
August 2014 are no longer employed by Emerald or its affiliates.
Additionally, the UMWA escort who accompanied Inspector Crutchman is no
longer employed by Emerald or its affiliates.
9. Currently, Emerald is working toward sealing the mine and plans to seal the
mine in the near future.
10. The belt that was cited in Order No. 7028491 has been altered since August
2014.
11. I believe it will be difficult to locate documents relevant to the issuance of
Order Nos. 7028490 and 7028491, particularly given the passage of time since
the Orders were issued and the limited staff currently at Emerald.
RX-H (Respondent’s Response to Secretary’s Motion to Permit Late Filing).
Other information
On June 6, 2017, Counsel for Respondent by email provided a copy of a letter dated
March 4, 2016 showing that the Emerald Mine was sealed on February 29, 2016. Also received

39 FMSHRC Page 1524

was information from MSHA’s Mine Data Retrieval System showing that the mine was in
“nonproducing” status since October 6, 2015 and that effective July 29, 2016 the controller was
Contura Energy, Inc (“Contura”). In addition, the Emerald Mine No. 1 was considered a
“facility” and in the last 12 months had received no S&S citations or orders in 56.25 inspection
hours.
Analysis
Adequate Cause
The Commission has held that in instances where the Secretary does not file a timely
petition for assessment, it must predicate the request for late filing upon a showing of adequate
cause. Salt Lake County Road Dept., 7 FMSHRC 1714, 1716 (July 1981). “Such a requirement
will guard against cases of abuse and also comports with the analogous leeway extended to
private litigants before the Commission.” Id. In the instant case, the Secretary has presented
evidence that its late filing was due to an unusual oversight related to a change in Coal District
2’s administrative personnel. Kollar’s Declaration describes how administrative and human error
led to a situation where MSHA neglected to process the Contest properly and issue a citation in a
timely manner. GX-1. The MSHA administrator who would have received the notice and been
responsible for ensuring that the case was mailed to the Solicitor’s office left MSHA’s employ
almost two years ago, and MSHA is unable to reach her for information. The error was only
discovered in mid-January 2016 when the Solicitor’s Office contacted the District inquiring
about the status of Docket No. PENN 2015-0266. Following this discovered discrepancy, the
Solicitor’s Office filed the Motion to Permit Late Filing in the instant case.
Despite an agency’s best efforts, there is bound to be some minimal amount of
administrative, technological, or human error that leads to delay or loss of files. The Commission
has found adequate cause based on clerical errors similar to the one detailed in the instant case.
Medicine Bow, 4 FMSHRC 882 (May 1982) (finding adequate cause where inadequate staff led
to delay); Webster Cnty Coal, 34 FMSHRC 1946 (Aug. 2012) (clerical error and computer issues
led to delay). In the instant case, the Secretary has described a situation where such mistakes
occur. The Secretary’s delay was not due to any dilatory intent, bad faith, or “mere caprice” on
the part of the agency, but rather clerical error at the District Office. Long Branch Energy, 34
FMSHRC 1984, 1991 (Aug. 30, 2012). Once the delay was discovered, MSHA acted with haste
in filing the petition, and moving the Court to allow such late filing. I find that under the
circumstances described by MSHA, the agency had adequate cause for the delay.
Actual Prejudice
Despite a finding that the Secretary had adequate cause for the delay, the Respondent
may still object to the late filing of the petition based upon prejudice. Salt Lake, 3 FMSHRC at
1716; See also Long Branch Energy, 34 FMSHRC at 1992; Rhone-Poulenc of Wyoming, 15
FMSHRC 2089, 2093 (Oct. 1989), aff’d 57 F.3d 982 (10th Cir. 1993). However, mere
“allegations of potential prejudice or inherent prejudice” are to be rejected. Long Branch, 34
FMSHRC at 1991. The prejudice borne by the operator must be “real” or “substantial.” Id. In the

39 FMSHRC Page 1525

instant case, the Respondent has provided detailed information regarding events that have
actually happened and has made a showing of such real and substantial prejudice.
During the Secretary’s untimely five-month delay Emerald was part of a Chapter 11
bankruptcy and issued WARN notices to 278 employees indicating that it would permanently
idle the mine. RX-F. In November and December 2015, Emerald reduced its workforce to
approximately 15 employees. In January 2016, Emerald and its affiliates no longer employed and
did not maintain relations with certain witnesses involved in the August 15, 2014 inspection.
RX-F, RX-H. These witnesses included the mine foreman, the manager of operations, the belt
maintenance supervisor, the UMWA escort who accompanied the MSHA Inspector, and several
hourly belt maintenance personnel. Further, the belt relevant to the orders had been altered, and
documents relevant to the orders would be difficult to locate. RX-H. In the same manner that this
Court has accepted the Secretary’s position that, due to Neiderheiser leaving MSHA’s employ in
July 2015, it has been unable to get her input into what occurred with the missing docket, this
Court accepts the Respondent’s argument that the necessary witnesses and documents will be
difficult or impossible to find and have available for further proceedings in this matter.
The following month, on February 29, 2016, the Emerald No. 1 Mine was sealed, thereby
preventing travel to the cited area.
On July 12, 2016, the sale of Emerald Coal Resources to the new entity, Contura, was
approved by the Bankruptcy Court. Effective July 29, 2016, Contura was the controller listed on
the MSHA website. Contura purchased the assets “free and clear of any and all mortgages,
options, pledges, liens, charges, security interests, encumbrances, restrictions, leases, licenses,
easements, liability or claims of any nature whatsoever, direct or indirect…” In Re: Alpha
Natural Resources, Inc., et al., Case No. 15-33896 (KRH), Bankr. E.D. VA. (July 12, 2016) at
(B)(5). Contura did not assume the liabilities of Emerald, and is not owned or in any way related
to Alpha. See also, Respondent’s Response to Request for Information, p. 2.
Considering the specific circumstances that transpired during the long delay in this case,
the Respondent has shown more than a mere potential for or danger of prejudice. The burden that
would be imposed on the Respondent in proceeding further with this action would be quite
substantial because much of the evidence necessary for defense is either missing, unavailable or
in a significantly altered condition. This would certainly have a significant effect on the
presentation of the defense. By January 2016, very few employees remained, the belt in question
had been altered, and the location of relevant documents was not known. Thereafter the mine
was sealed and the company was sold. Thus, needed witnesses have long ago been laid off and
their whereabouts would be unknown. Even if some could be found, they would suffer greatly
from the passage of time and faded memories. Evidence has undoubtedly been lost; there is no
indication that Emerald as a business entity still exists or that needed evidence could be found.
Therefore, I find that Respondent has met its burden of showing real and substantial prejudice.
Balancing of Interests
Since the Secretary and the Respondent have both satisfied their burdens, the undersigned
“must weigh the interests of fairness to the operator against the public interest in upholding the

39 FMSHRC Page 1526

enforcement purpose inherent in Section 105(d). Long Branch, 34 FMSHRC at 1991. In the
instant case, there is minimal, if any, public interest in permitting the late filing.
One of the most common rationales for the imposition of civil penalties is the deterrent
effect of the penalties. See National Independent Coal Operators’ Assn. v. Kleppe, 423 US 388,
401 (1976). In the instant case, there would be absolutely no deterrent effect of permitting a late
filing when the penalties were proposed 17 months after the inspection, after the company was
part of a bankruptcy, after the vast majority if not all of the personnel have been laid off, after the
mine has been sealed, and after the Emerald asset was sold to an entity that did not assume any
of the former company’s liabilities. Pursuant to the Order of the Bankruptcy Court the successor
entity, Contura, cannot be charged with a monetary debt. The deterrent effect of any penalty that
might be determined is lost.
The Secretary has not identified any entity following the bankruptcy and absent any
potential monetary liability that could be subject to this enforcement action. It is not enough for
the Secretary to assert only that the public interest in enforcing the Mine Act is paramount to
strict procedural regularity. The question presented is just what specific purpose is served by the
further expenditure of resources by all parties when the effect of an enforcement action, even if
the Secretary were entirely successful, has not been explained. The bankruptcy action has
removed any monetary liability, and there is no showing that Contura is a successor in interest
and liable for its predecessor’s violations of the Mine Act. The Commission’s successorship test2
would not appear to be able to be satisfied since the mine is sealed and not producing, there is no
continuity of business operations established, the same jobs no longer exist, the workforce and
supervisory personnel have been laid off and there is no indication that the successor had notice
of this enforcement action.

2

The nine-part test is 1) [W]hether the successor company had notice of the charge,
2) the ability of the predecessor to provide relief, 3) whether there has been a substantial
continuity of business operations, 4) whether the new employer uses the same plant, 5)
whether he uses the same or substantially the same work force, 6) whether he uses the same
or substantially the same supervisory personnel, 7) whether the same jobs exist under
substantially the same working conditions, 8) whether he uses the same machinery,
equipment and methods of production and 9) whether he produces the same product. See,
Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463, 3465-66 (Dec. 1980).

39 FMSHRC Page 1527

Due to the very substantial burden that would be imposed on Respondent by continuing
this enforcement action, I find the interest of fairness to Respondent greatly outweighs any
remaining potential public interest in permitting the late filing of the petition.
Accordingly, the Secretary’s Motion to Permit Late Filing is DENIED, and the Petition
for Assessment of Civil Penalty is DISMISSED.

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

Distribution: (First Class Mail and email)
Judson Dean, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S. Independence Mall
West, Suite 630E, Philadelphia, PA 19106 dean.judson@dol.gov
Patrick W. Dennison, Esq., Three Gateway Center, 401 Liberty Ave., Suite 1500, Pittsburgh, PA
15222 pwdennison@jacksonkelly.com

39 FMSHRC Page 1528

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

July 20, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 2017-109
A.C. No. 36-10041-431766A

v.
LARRY ANDERSON, formerly employed
by AK COAL RESOUCES INC.,
Respondent

Mine: North Fork Mine

ORDER GRANTING IN PART AND DENYING IN PART THE SECRETARY’S
MOTION FOR PROTECTIVE ORDER
ORDER GRANTING IN PART AND DENYING IN PART THE SECRETARY’S
MOTION FOR PROTECTIVE ORDER LIMITING DEPOSITION
Before: Judge Andrews
On June 5, 2014, citations were issued at AK Coal Resources. A 110(c) investigation into
Respondent, Larry Anderson, began shortly after the citations were issued, and the investigation
concluded on January 31, 2017. Respondent was notified of the civil penalties proposed against
him on February 21, 2017. On April 12, 2017, Respondent filed his answer and served the
Secretary with discovery requests. Interrogatory requests and documentation production occurred
on May 8, 2017, and May 31, 2017. On June 7, 2017, Respondent served the Secretary with a
Notice of Deposition, proposing a deposition date for an unnamed MSHA official on July 14,
2017. On June 12, 2017, Respondent served an Amended Notice of Deposition for Cajetan
Stepanic proposing a deposition date on July 27, 2017.
On June 22, 2017, the Secretary filed a Motion for Protective Order requesting the
undersigned preclude the respondent from taking the deposition of an unnamed MSHA official
as described in Respondent’s Notice of Deposition. The Secretary contends that the information
sought by Respondent in the deposition is irrelevant and protected by the government officials
privilege, deliberative process privilege, investigative process privilege, attorney-client privilege
and attorney work product privilege. On June 30, 2017, Respondent filed a Response in
Opposition to the Secretary’s Motion for Protective Order & Motion to Compel Deposition.
Respondent contends that the information sought in the deposition is relevant, is not protected by
the privileges asserted, and is necessary for a fair determination in this case.

39 FMSHRC Page 1529

On July 11, 2017, the Secretary filed a Motion for Protective Order Limiting Deposition
of Supervising Special Investigator J. Cajetan Stepanic by precluding the Respondent from
asking questions regarding the special-investigation process and communications between
Supervisor Stepanic and MSHA’s Technical Compliance and Investigations Office (“TCIO”).
The Secretary contends that some of the documents and information sought may be irrelevant
and protected by the deliberative process privilege, the investigative process privilege, the
attorney-client privilege, and the attorney work product privilege. Respondent filed a Response
in Opposition to the Secretary’s Motion for Protective Order Limiting Deposition & Motion to
Compel Deposition on July 14, 2017. Respondent contends that the deposition is relevant, the
documents requested are not privileged, and the information sought is necessary for a fair
determination in this case.
The Respondent’s request for a deposition with an MSHA official covered“(1) The
review process with TCIO for Section 110(c) investigations; (2) The staffing and workload of
TCIO in the period June 6, 2014-December 2016; and (3) The process of review of the
investigation concerning the Respondent within TCIO during the period June 6, 2014 to
December 11, 2016.”
I.

Discovery

Under Commission Rule 56, “parties may obtain discovery of any relevant, nonprivileged matter that is admissible evidence or appears likely to lead to the discovery of
admissible evidence.” 29 C.F.R. § 2700.56(b). The Commission and the Federal Courts have
broadly construed the discovery rule to include relevant material, and have narrowly construed
the claim of privilege. Hickman v. Taylor, 329 U.S. 495 (1947); Secretary of Labor on behalf of
Logan v. Bright Coal Co., Inc., 6 FMSHRC 2520 (1984). The party asserting a privilege has the
burden to demonstrate that relevant material is not subject to discovery. In re: Sealed Case, 676
F.2d 793 (D.C. Cir. 1982).
The Secretary contends that a deposition is not appropriate for the unnamed MSHA
official because the information sought by Respondent is not relevant and is covered by several
privileges: (1) the qualified immunity for government official’s privilege, (2) the deliberative
processes privilege, (3) the investigative process privilege, (4) the attorney-client privilege, and
(5) the attorney work product privilege.
The Secretary also argues that limited deposition is appropriate for Supervisor Stepanic
because at least some of the information sought is privileged and irrelevant. For Supervisor
Stepanic’s deposition, the Secretary argues all of the privileges above except the qualified
immunity for government official’s privilege.
II.

Relevance

The Secretary argues that the information sought by Respondent in the depositions at
issue is not relevant, and thus, Respondent should not be allowed to depose the MSHA official
and should be limited in his deposition of Supervisor Stepanic. The Secretary cites the general 5
year statute of limitations for civil penalty proceedings, 28 U.S.C. § 2462, stating that the present
110(c) case falls within the statute of limitations and so any questions about the timeliness or

39 FMSHRC Page 1530

work load of MSHA and TCIO specifically is irrelevant to claims and defenses in this action.
The Secretary further points to section 105(a) of the Mine Act, which provides that “[i]f, after an
inspection or investigation, the Secretary issues a citation or order under section 104, he shall,
within a reasonable time after the termination of such inspection or investigation, notify the
operator…of the civil penalty proposed…” 30 U.S.C. § 815(a). The Secretary argues that the
investigation period by TCIO and the Office of Assessments was reasonable in this case, and so
a deposition on these issues would be irrelevant.
Respondent is argues that the timeline for the investigative process was unreasonable
under section 105(a) of the Act and could lead to dismissal. Respondent specifically cites to the
MSHA Handbook’s proposed timelines, to argue the unreasonableness of the investigative
timeframe. This Court agrees with Respondent that a deposition concerning the issues of time
and workload may be relevant, or may at least lead to relevant information for a defense. Thus, a
deposition shall not be barred due to irrelevance for the unnamed MSHA official or Supervisor
Stepanic.
III.

Qualified Immunity for Government Officials Privilege

The Secretary asserted a Qualified Immunity for Government Officials Privilege in its
first Motion for Protective Order barring a deposition of the MSHA official.
This privilege prevents parties from deposing high-ranking government officials, unless
rare circumstances exist. Community for Creative Non-Violence v. Lujan, 908 F.2d 992, 998
(D.C. 1990). The Commission has upheld that high level officials are protected from compulsory
testimony so that their jobs are not constantly interfered with by the discovery process. Newmont
Gold Company, 18 FMSHRC 1304, 1307 (July 1996) citing Church of Scientology of Boston v.
I.R.S., 138 F.R.D. 9, 12 (D. Mass. 1990). I do not find that the unnamed MSHA official is the
type of high level government official that requires this protection. The Secretary has not met its
burden in demonstrating that a high-ranking government official would be required to be
deposed by Respondent’s Fed. R. Civ. P. 30(b)(6) Notice of Deposition. This Court does not
have sufficient evidence that several individuals from MSHA, who do not maintain this qualified
immunity could satisfactorily provide the necessary information allowed by this Court and
requested by Respondent.
IV.

Deliberative Process Privilege

The Commission has upheld a deliberative process privilege which “attaches to inter- and
intra-agency communications that are part of the deliberative process preceding the adoption and
promulgation of an agency policy.” In re: Contests of Respirable Dust Sample Alteration
Citations(“Dust Cases”), 14 FMSHRC 987, 992 (June 1992) quoting Jordan v. United States
Dep't of Justice, 591 F.2d 753, 772 (D.C.Cir.1978). Pre-decisional communications that are
deliberative, which means that they “must actually be related to the process by which policies are
formulated” are protected. Id. (quoting 591 F.2d at 774).
“The privilege protects thoughts, ideas, reasoning, and analyses which lead to a decision
of the agency.” Hidden Splendor Resources, Inc., 33 FMSHRC 2345, 2347 (Sept. 2011) citing
Kan. State Network, Inc. v. F.C.C., 720 F.2d 185, 191 (D.C. Cir. 1983). The Supreme Court has

39 FMSHRC Page 1531

held the privilege protects “‘the decision making process of government agencies,’ and focus[es]
on documents ‘reflecting advisory opinions, recommendations and deliberations comprising part
of a process by which governmental decisions and policies are formulated.” N.L.R.B. v. Sears,
Roebuck & Co., 421 U.S. 132, 150 (1975) (internal citations omitted) citing Stiftung v. V. E. B.
Carl Zeiss, 40 F.R.D. 318, 324 (May 1966).
The Commission held that “purely factual information that does not expose an agency's
decision making process does not come within the ambit of the privilege.” Dust Cases, 14
FMSHRC at 993. If factual information is combined with protected information, the party
opposing disclosure must demonstrate, “that the material is so inextricably intertwined with
the deliberative material that its disclosure would compromise the confidentiality of
the deliberative information that is entitled to protection.” Consolidation Coal, 19 FMSHRC
1239, 1246-47 (1997) citing Providence Journal Co. v. United States Dep't of the Army, 981
F.2d 552, 562 (1st Cir. 1992).
The Notice of Deposition for the unnamed individual states that the covered topics at
deposition would be the review process with TCIO for Section 110(c) investigations, the staffing
and workload of TCIO June 6, 2014-December, 2016, and the review process of the
investigation concerning the named Respondent within TCIO June 6, 2014-December 11, 2016.
This Court agrees with the Secretary that any advisory opinions, recommendations by
TCIO and MSHA fall under this privilege and the MSHA official cannot be deposed concerning
this information. Thus, the requested information concerning TCIO’s 110(c) review process and
the review process for the named Respondent are part of the deliberative process, as they
involved communications, analyses and recommendations concerning a 110(c) citation.
However, Respondent may request information regarding any underlying facts, dates, and the
staffing and workload of TCIO.
The Notice of Deposition for Supervisor Stepanic requests that he be “prepared to
produce any notes or documents… related to the investigation conducted concerning…the
process of investigation, and any communications between Mr. Stepanic and TCIO concerning
the status and timing of review by TCIO.”
This Court finds that any communications regarding the review process,
recommendations and analyses are privileged, and Supervisor Stepanic is not required to answer
questions or produce documents related to these requests. However, any information regarding
underlying facts, as well as the status and timing of review by TCIO is not privileged.
Overcoming the Privilege
The deliberative process privilege is qualified and is subject to the balancing test set
forth in Bright Coal Company, 6 FMSHRC 2520 (Nov. 1984), governing the informant's
privilege. Dust Cases, 14 FMSHRC at 994. This case states that when “disclosure is essential to
the fair determination of a case, the privilege must yield.” Bright Coal Co., 6 FMSHRC at 2523
citing Roviaro v. United States, 353 U.S. 53, 60-61 (1957). This test analyzes if “if the Secretary
is in sole control of the material sought, and whether the party seeking disclosure has other

39 FMSHRC Page 1532

avenues available to it to obtain the material.” Dust Cases, 14 FMSHRC at 988. The party
seeking disclosure has the burden of proving that the information requested is essential to a fair
determination of the case. Bright Coal Co., 6 FMSHRC at 2526.
This Court does not find that the Respondent has demonstrated an essential need for fair
determination of this case that outweighs the privilege supporting MSHA’s ability to analyze
each case, make recommendations and communications concerning the case before a final
decision is made. Additionally, Respondent has not shown that deliberations and
recommendations made during the investigation are necessary to a fair determination in this case.
Thus, the information and documents requested in both depositions, of the MSHA official and
Supervisor Stepanic that fall under the deliberative process privilege has not been overcome by
the needs of Respondent.
V.

Investigative Process Privilege

The Commission has held that an “official information” privilege or investigative process
privilege may be used to prevent the unwarranted disclosure of documents from law enforcement
investigatory files, as well as testimony about that information. Thunder Basin Coal Co., 15
FMSHRC 2228, 2237-38 (Nov. 1993); Dust Cases, 14 FMSHRC at 1008-09. This privilege is
qualified and is subject to a “balancing of the government’s interest in non-disclosure and the
operator’s need for information prior to hearing.” Thunder Basin Coal Co, 15 FMSHRC at 2238
Any testimony and documents requested regarding TCIO’s investigative process is also
protected by the Investigative Process Privilege. Hence, any questions or document requests of
the MSHA official or Supervisor Stepanic regarding the investigatory process are protected and
Respondent has not demonstrated that it has a need for this information in defending the 110(c)
investigation or pursuing a defense of an unreasonable timeline for prosecution. Again, any
information regarding underlying facts and investigation dates may be discoverable and are not
covered by this privilege.
VI.

Attorney-Client Privilege

The attorney-client privilege is a client’s privilege meant to encourage communication
between attorneys and clients. BHP Copper Inc., 38 FMSHRC 1579, 1583 (June 2016)(ALJ).
citing Upjohn v. United States, 449 U.S. 383, 389 (1981). The attorney-client privilege requires
that the party claiming the privilege is:
(1) the asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is a member of the bar of a
court, or his subordinate and (b) in connection with this communication is acting
as a lawyer; (3) the communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of strangers (c) for the purpose
of securing primarily either (i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the purpose of committing a

39 FMSHRC Page 1533

crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the
client.
BHP Copper Inc., 38 FMSHRC at 1583 citing Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir.
1998).
The Supreme Court has also held that the attorney-client privilege protects
communications made during an internal investigation made to ensure compliance with a law.
Upjohn v. United States, 449 U.S. at 392.
The Secretary argues that the Office of the Solicitor is involved in advising MSHA and
TCIO during the investigation review process. Further, the Secretary contends that the topics
Respondent intends to cover in the depositions at issue necessarily include the Solicitor’s
involvement.
This Court finds that the investigations made by MSHA may be covered by the attorneyclient privilege, as they involve an investigation by MSHA, the party, issuing a citation that is to
be prosecuted by the Secretary of Labor. However, this Court disagrees that all facts and dates
are part of the Attorney-Client Privilege and cannot be discoverable. The Commission has
repeatedly held that any underlying facts concerning a case are discoverable; therefore, the
MSHA official and Supervisor Stepanic may be deposed on facts and dates related to the 110(c)
case at issue. Nevertheless, any confidential communications made in preparation for litigation
are not discoverable, and the witness may not be deposed on any attorney-client
communications.
VII.

Work Product Privilege

The Commission has held that the attorney work product privilege is a qualified
immunity against discovery. Asarco, Inc., 12 FMSHRC 2548, 2557-2558 (Dec. 1990). A party
may withhold discoverable materials if they are documents and tangible things that are prepared
in anticipation of litigation or for hearing by or for another party or that party’s representative.
Asarco, Inc., 12 FMSHRC at 2558 (Dec. 1990).
The Secretary argues that Respondent’s request that the MSHA official or Supervisor
Stepanic be prepared to produce any notes or documents she intends to rely on at the deposition
is barred by the work product privilege. This Court agrees that many documents relied on by the
deposed will involve documents prepared by the Secretary of Labor in preparation for hearing.
Any documents prepared in anticipation of litigation are protected by this privilege and the
witnesses may not be compelled to produce such documents.
Nonetheless, this Court disagrees that all documents relevant to questioning is privileged.
Documents concerning underlying facts and the relevant timelines may be produced and are not
privileged.

39 FMSHRC Page 1534

VIII. Conclusion
Thus, this court GRANTS in part and DENIES in part the Secretary’s Motion for
Protective Order for the unnamed MSHA Official, limiting the deposition to facts, dates, and
times concerning the 110(c) citation.
This Court also GRANTS in part and DENIES in part the Secretary’s Motion for
Protective Order Limiting Deposition of Supervisor Stepanic. Respondent may depose the
witness solely on facts, dates, and times relevant to the 110(c) citation.

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

Distribution:
Anthony Fassano, U.S. Department of Labor, Office of the Solicitor, 170 S. Independence Mall
West, Suite 630E, The Curtis Center, Philadelphia, PA, fassano.anthony.m@dol.gov
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222, rhmoore@jacksonkelly.com

39 FMSHRC Page 1535

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

July 20, 2017
CROWN RESOURCES
CORPORATION,
Contestant,

CONTEST PROCEEDINGS
Docket No. WEST 2017-0202-RM
Citation No. 8612335; 01/19/2017

v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent.
ACI NORTHWEST, INC.
Contestant,
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent.
BEFORE:

Docket No. WEST 2017-0325-RM
Citation No. 8882030; 03/23/2017
Mine: Buckhorn Mine
Mine ID: 45-03615
Docket No. WEST 2017-0211-RM
Citation No. 8612334; 01/19/2017
Docket No. WEST 2017-0212-RM
Citation No. 8612336; 01/19/2017
Mine: Buckhorn Mine
Mine ID: 45-03615 W198

Judge Gill
ORDER DENYING MOTIONS FOR SUMMARY DECISION

These cases involve four Notices of Contest under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d). An authorized representative of the
Secretary, on behalf of the Mine Safety and Health Administration (“MSHA”), issued Citation
Nos. 8612334 and 8612336 to ACI Northwest, Inc. (“ACI Northwest”) and Citation No.
8612335 to Crown Resources Corporation (“Crown Resources”) following a December 21,
2016, accident resulting in the death of a miner on a mine haul road. MSHA subsequently issued
Citation No. 8882030 to Crown Resources after inspecting the road on which the accident
occurred. On April 7, 2017, Crown Resources and ACI Northwest (collectively referred to as
“Contestants”) filed a motion to consolidate, which was granted.1

1

Crown Resources contracts with ACI Northwest to haul gold ore extracted from the

mine.

39 FMSHRC Page 1536

The Contestants have filed a joint motion for summary decision, while the Secretary has
filed a motion for partial summary decision. The issue before me, as framed by these motions, is
whether MSHA has jurisdiction over Forest Service Road 3550-125 (the “Road at Issue”).2 The
answer depends on whether this road is within the definition of “mine” under the Federal Mine
Safety and Health Act of 1977 (Mine Act), Pub. L. No. 95–164, § 102(b)(3), 91 Stat. 1290
(codified at 30 U.S.C. § 802(h)(1)).
The Commission has long analogized summary decision to summary judgment under
Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 56. See, e.g., Kenamerican Res.,
Inc., 38 FMSHRC 1943, 1946 (Aug. 2016); Energy W. Mining Co., 16 FMSHRC 1414, 1419
(July 1994). Summary judgment should not be granted “unless the entire record shows a right to
judgment with such clarity as to leave no room for controversy and establishes affirmatively that
the adverse party cannot prevail under any circumstances.” Campbell v. Hewitt, Coleman &
Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994) (quotation omitted). For summary judgment to be
appropriate, the evidence must do more than allow the court to find in the movant’s favor, it
must “require that the court do so.” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (emphasis in
original). If, when viewing the evidence and drawing all permissible inferences in favor of the
non-movant, the record could support either party, then resolution at the summary judgment
stage is inappropriate. Id.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-55 (1986).
Disposition by summary decision is appropriate provided: (1) the entire record
establishes that there is no genuine issue as to any material fact; and (2) the moving party is
entitled to summary decision as a matter of law. 29 C.F.R. §2700.67(b). See Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986); Mo. Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981). If the
moving party fails to meet its burden, then summary decision must be denied, regardless of the
sufficiency of the opposition. Even the absence of an opposition does not entitle the movant to
summary decision when the motion is inadequately supported. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 159-61 (1970) (summary judgment must be denied where the evidence in support
of the motion does not establish the absence of any genuine issue, even if no opposing evidence
is presented). See also In re Rogstad, 126 F.3d 1224, 1227-28 (9th Cir. 1997); Campbell, 21 F.3d
at 55-56.
Statement of the Case
“Coal or other mine” is defined in Section 3(h)(1) of the Act as:
(A) an area of land from which minerals are extracted… (B)
private ways and roads appurtenant to such area, and (C) lands,
excavations, underground passageways, shafts, slopes, tunnels and
workings, structures, facilities, equipment, machines, tools, or
other property… used in, or to be used in, or resulting from, the
work of extracting such minerals… or used in, or to be used in, the

2

Lack of MSHA jurisdiction over the road would moot the above Citations.

39 FMSHRC Page 1537

milling of such minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation facilities.
30 U.S.C. § 802(h)(1) (emphasis added).
The United States Court of Appeals for the District of Columbia affirmed the Secretary’s
interpretation of the ambiguous statutory terms “private roads,” —which the Secretary
interpreted to mean “those restricted to a particular group or class of persons (not to a particular
person)”— and “appurtenant to,” which the Secretary interpreted to mean that “the road belong
and provide a right of way to some more important thing (not dedicated exclusively to use by
some more important thing).” Sec’y of Labor v. Nat’l Cement Co., Inc., 573 F.3d 788, 791 (D.C.
Cir. 2009). The parties both agree that these definitions have established precedent. (Contestants
Br. 22; Sec’y Br. 25)
Motion for Summary Decision Submitted by Crown Resources/ACI Northwest
The Contestants assert that Forest Service Road 3550-125 (the “Road at Issue”) is not
private because of its ongoing and frequent use by the public. Contestants also argue that the
Road at Issue is not appurtenant to the Buckhorn Mine because sections of the road that fall on
private and federal lands did not have a transferable easement. Finally, even if the Road at Issue
was under MSHA jurisdiction, Contestants claim they did not receive fair notice because MSHA
had not previously inspected the road.
“Private”
Contestants argue that the Road at Issue is not private because several of their employees
declared under oath that they believed this was the case, and that they had seen members of the
public using the road. (Contestants Br. 28-31) Contestants also claim that the lessors of their
easement —the Washington State Department of Natural Resources (“Washington DNR” or
“DNR”) and the United States Forest Service (“USFS” or “Forest Service”)— did not attempt to
enforce agreed-upon restrictions on public access. Id. These opinions do not meet the evidentiary
burden that would compel me to conclude as a matter of law that the Road at Issue is not private.
Instead, the Contestants’ underlying claim that there are no genuine issues of material fact is
overtly contradicted by their own exhibits. The most salient example of this is the Contestants’
internal training documents at the time of the accident, in which management not only informed
employees that the Road at Issue was closed to the public, but also explicitly instructed workers
to report trespassers to their supervisors. (Ex. C–21 (for the 2008 version, see Ex. S–I.)) It is
incongruous for Contestants to now argue, after years of training their own employees to monitor
and police the Road at Issue for trespassers, that the road could not possibly be considered
private under the Mine Act.
The testimonies by Crown Resources employees are contradicted by numerous other
exhibits provided by the Contestants and Secretary, which solidly creates triable and material
issues of fact. Crown Resources underwent lengthy negotiations with the USFS and Washington
DNR before receiving approval for the Buckhorn Access Project, which authorized Crown to

39 FMSHRC Page 1538

construct an access road to the mine on government-owned land. At every step of the approval
process, the USFS and DNR specified that the Road at Issue would be private:
1) The Buckhorn Access Project’s Final Environmental Impact
Statement (“FEIS”) repeatedly declared that the Road at Issue
would be “closed to public use for safety” during mining
operations. (Ex. C–13, Bates Nos. CRC 176-181, CRC 192, CRC
399-405; see also Record of Decision, Ex. S–C, Bates Nos. CRC
818, CRC 853)
2) Public comments on the FEIS, and the Forest Service’s
responses to these comments, indicated a mutual understanding
that the Road at Issue would be closed to public use. (Ex. C–13,
Appendix F, Bates Nos. CRC 780, CRC 783, CRC 789)
3) Crown Resources likewise agreed in its Commercial Easement
with the Washington DNR that the Road at Issue would be closed
to public use on DNR land. (Ex. S–D, p. 2 “Other entities seeking
to use the access roads . . . must obtain an easement from DNR.”)
4) Crown Resources’ Final Amended Plan of Operations
(“FAPOO”) stated that the Road at Issue “will be closed to public
access during project operations.” (Ex. S–E, Bates No. CRC 48)
5) Order 673 prohibited the public from using the Road at Issue
without first obtaining express permission from the Forest Service.
(Ex. S–E)
6) The Road Use Permit Crown obtained from the Forest Service
likewise prohibited all motorized vehicles unaffiliated with the
mine from using the Road at Issue. (Ex. S–G, Bates No. CRC 1180
“Forest Road 3550-125 . . . will be closed to all motorized vehicles
not associated with the mine. . . .”)
7) Finally, and most tellingly, when Crown Resources signed the
Forest Service’s Road Use Permit, it promised to furnish and
install “FOR MINE USE ONLY” signs to alert the public at
intersections connected to the Road at Issue. (Ex. S–G, Clause 4,
Bates No. CRC 1189-90)
The Contestants assert that the lessors of their easement never acted to enforce these
closure requirements, opining that if the Forest Service had truly cared about Crown’s refusal to
help restrict public access to the road as promised, they would have “insist[ed] on such closures.”
(Contestants Br. 28) No legal precedent is cited to support the Contestant’s argument that
Crown’s alleged breach of its contracts with the USFS and DNR thwarts all MSHA jurisdiction
over the Road at Issue as a matter of law. Even if precedent supported the Contestants, they have

39 FMSHRC Page 1539

not provided indisputable factual evidence that Forest Service personnel “[were] aware of the
public’s unrestricted use of the Road at Issue,” or were even aware that Crown had failed to
follow the terms of their agreement. Id. The Road Use Permit instructed Crown that “[i]f
problems occur requiring enforcement, the Forest Service shall be promptly notified,” but the
Contestants have furnished no evidence that they ever gave prompt notice to the Forest Service
as promised when their employees observed members of the public on the Road at Issue. (Ex. S–
G, Bates No. CRC 1189) Therefore, the Secretary’s reasonable inference, countering the
Contestants’ own narrative of events, necessarily awaits rebuttal at a hearing: that when Crown
promised to give the Forest Service prompt notice of trespassers, the Forest Service assumed
Crown would follow this term of their agreement. I have no way to conclude as a matter of law
that the Forest Service’s purported indifference to trespassers was not instead the result of their
expectation that good faith notice from Crown would trigger their intervention. It appears that
every signed legal document between Crown and the Forest Service and Washington DNR
considered the Road at Issue to be private, and Contestants have not provided sufficient factual
or legal support for me to override this evidence.
“Appurtenant to”
The Contestants assert that Secretary of Labor v. National Cement Company, Inc., 573
F.3d 788 (“National Cement II”),3 held that a transferable easement is a necessary condition for a
road to be deemed “appurtenant to” a mine under the Mine Act. (Contestants Br. 35-36)
However, the Secretary correctly noted that this is an incorrect articulation of National Cement
II. The D.C. Circuit never stated or implied that having a transferable easement was absolutely
necessary for a road to be appurtenant. They instead endorsed the Secretary’s broad
interpretative authority over the Mine Act’s jurisdictional scope.4 As such, a more sensible
reading and understanding of National Cement II is that the presence of a transferable easement
was found to be a sufficient condition in that case, but is not dispositive in future cases. The
Court instead focused attention on whether the Secretary’s interpretation of “appurtenant to” was
in reasonable alignment with “a key objective of the Mine Act.” Id. at 796. Finding a reasonable
alignment depended on the highly deferential standard of review promulgated in Chevron U.S.A.,
Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). National Cement
II, 573 F.3d at 792-93.
Although the Road at Issue clearly “provides a right of way to some more important
thing,” whether it does not “belong” to the mine is an issue of material fact that Contestants must
demonstrate at a hearing. National Cement II, 573 F.3d at 791. The Contestants acknowledge
that MSHA is not asserting jurisdiction over the entire 48-mile haul route, or even the entire 8.7mile length of FSR 3550, but only the 3.4 miles leading up to the mine. (Contestants Br. 24) To
3

I refer to this case as “National Cement II” to distinguish it from Secretary of Labor v.
National Cement Company, Inc., 494 F.3d 1066 (D.C. Cir. 2007).
4

“On remand the Secretary adopted the broad reading of this provision to bring the
access road within MSHA’s jurisdiction. We held before that such a reading was not inconsistent
with the language of subsection (B) and we will not revisit that decision.” National Cement II,
573 F.3d at 793.

39 FMSHRC Page 1540

repeat, the Contestants’ own exhibits show that this section of FSR 3550 was constructed and
reconstructed by Crown Resources for the purpose of transporting miners and mined ore to and
from a mine, and had been repeatedly designated as closed to the public by the Forest Service,
Washington DNR, and the Contestants themselves.
The Contestants note that the Buckhorn Mine has an irregular boundary that overlaps
with, but does not perfectly match, the benefited parcel described in the DNR’s Commercial
Easement (“Exhibit B”). (Ex. C–28; Ex. C–29) The benefited parcel includes land overseen by
the US Forest Service and US Bureau of Land Management. (Ex. C–15) The Contestants argue
that this lack of exactitude between the benefited parcel and Buckhorn Mine meant that the
Washington DNR intended their easement to “[encompass] an area greater than the Buckhorn
Mine and land owned by Crown Resources.” (Contestant Reply Br. 4-5) While this assertion
about the DNR’s motives necessarily requires actual factual support from the Contestants at a
hearing, the controlling interpretation of Section 3(h)(1)(B) indicates that Exhibit B’s lack of
complete alignment with the Buckhorn Access Project is unlikely to matter. The Road at Issue
can be “...(not dedicated exclusively to use by some more important thing)” and remain
appurtenant to a mine. National Cement II, 573 F.3d at 791.
Fair Notice
The Contestants complain that they received insufficient notice of potential Mine Act
liability because MSHA declined to assert jurisdiction over the Road at Issue during the
numerous inspections that preceded this case. (Contestants Br. 23) However, this lack of notice
is wholly irrelevant to the jurisdictional dispute before me, as MSHA cannot be estopped from
enforcing its regulations simply because it did not previously cite the mine operator. See
Mainline Rock & Ballast, Inc. v. Sec’y of Labor, 693 F.3d 1181, 1187 (10th Cir. 2012) (citing
Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1416-17 (10th Cir. 1984)). The Mine Act
is a strict liability statute. As long as a regulation is sufficiently specific that a reasonably prudent
person, familiar with the conditions the regulation is meant to address and the objective the
regulation is meant to achieve, would have fair warning of what the regulation requires, then the
due process requirements for notice are satisfied. Mainline Rock & Ballast, Inc., 693 F.3d at
1187 (citing Walker Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1083-84 (10th Cir. 1998)). A
mine operator that instructs its miners that the section of road connecting its mine to the outside
world is closed to the public has reasonably fair warning that MSHA could one day assert
jurisdiction over that road. (Ex. C–21)
I am also not persuaded by Contestants’ argument that MSHA expressly waived
jurisdiction during a June 2013 inspection when Inspector Urnovitz, an authorized
Representative of the Secretary, chose not to assert jurisdiction over the Road at Issue after
conversing with Crown Resources Superintendent John Gianukakis. (Contestants Br. 14) As
plausibly noted by the Secretary, Inspector Urnovitz may have been misled by Superintendent
Gianukakis’s representations that the Road at Issue could not be subject to MSHA jurisdiction
because it had been made available by the Forest Service for public use. (Ex. C–25, p. 2; Sec’y
Reply Br. 4)

39 FMSHRC Page 1541

For the reasons discussed above, the Contestants’ Joint Motion for Summary Decision is
denied.
Motion for Partial Summary Decision Submitted by the Secretary
The Secretary’s motion asserts the following: (1) the Road at Issue is private; (2) the
Road at Issue is appurtenant to the Buckhorn Mine; and, therefore, (3) the Road at Issue falls
under MSHA’s jurisdiction. As stated previously, summary decision should not be granted
“unless the entire record shows a right to judgment with such clarity as to leave no room for
controversy and establishes affirmatively that the adverse party cannot prevail under any
circumstances.” Campbell, 21 F.3d at 55 (quotation omitted).
A hearing is needed to resolve conflicting evidence about whether restrictions on public
use of the Road at Issue expired at the time of the citations. Forest Service Order 673 set
September 30, 2016, as the expiration date of the Road at Issue’s closure to the public. (Ex. C–
16) If Crown’s permit granting exclusive use of the contested road had expired on that date
without an extension, the road may have become legally public at the time of the disputed
citations. This material fact would bar MSHA jurisdiction under the Secretary’s interpretation of
Section 3(h)(1) of the Mine Act. National Cement II, 573 F.3d at 791. The Secretary provided
testimony from District Ranger Matthew Reidy that the agency had initially set the expiration
date for one year later, on September 30, 2017, and that the Order is still in effect “until the
completion of the Buckhorn Access Project.” (Ex. S–F, p. 2) Other Forest Service documents,
from the FEIS onward, also indicate an intent to restrict public access to the Road at Issue
beyond the date when the citations at issue occurred. (See, e.g., Ex. S–C, Bates No. CRC 818,
“Forest Road 3550-125 past the junction with Forest Road 3550-130 will be closed to public use
for the life of the project.” (emphasis added); Ex. S–G, Bates No. CRC 1183, “This permit shall
terminate on December 31, 2017. . . .”) A trial is necessary before I conclude that Order 673
accidentally contains (or does not contain) a significant typo (as opposed to Mr. Reidy
accidentally misremembering the Order’s expiration date) or is counteracted by the other legal
agreements between the Contestants and USFS.
For the reasons discussed above, the Secretary’s Motion for Partial Summary Decision is
denied.
ORDER
For the reasons discussed above, the Contestants’ joint motion for Summary Decision is
DENIED and the Secretary’s Motion for Partial Summary Decision is also DENIED.

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge

39 FMSHRC Page 1542

Distribution: (Electronic and Certified Mail)
Lucy Chiu, Esq., U.S. Department of Labor, Office of the Solicitor, Mine Safety & Health
Division, 201 12th Street South, Arlington, VA 22202-5450
Karen L. Johnston, Esq., Dana M. Svendsen, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite
2150, Denver, CO 80202
Willa B. Perlmutter, Esq., Stoel Rives LLP, 760 SW Ninth Ave., Suite 3000, Portland, OR 97205
John H. Guin, Esq., Law Office of John H. Guin, PLLC, 421 W. Riverside, Suite 461, Spokane,
WA 99201
/amm

39 FMSHRC Page 1543