June 2013
TABLE OF CONTENTS
COMMISSION DECISIONS
06-04-2013

BIG RIDGE, INC.

LAKE 2009-377

Page 1525

COMMISSION ORDERS
06-04-2013

DYNAMIC ENERGY, INC.

WEVA 2012-1435

Page 1545

06-06-2013

HIDDEN SPLENDOR RESOURCES,
INC.

WEST 2009-208

Page 1548

06-27-2013

L & L GRAVEL

CENT 2012-73-M

Page 1552

06-27-2013

L & W QUARRIES, INC.

CENT 2013-162-M

Page 1555

06-27-2013

AMISTAD READY MIX

CENT 2013-355-M

Page 1558

06-27-2013

LIVINGSTON STONE COMPANY, INC.

LAKE 2012-870-M

Page 1562

ADMINISTRATIVE LAW JUDGE DECISIONS
06-03-2013

LEECO, INC.

KENT 2011-1093

Page 1567

06-04-2013

CLINTWOOD ELKHORN MINING
COMPANY, LLC

KENT 2011-546

Page 1585

06-04-2013

JUSTICE ENERGY COMPANY, INC.

WEVA 2011-220

Page 1590

06-04-2013

RAW COAL MINING COMPANY, INC.

WEVA 2011-858

Page 1602

06-05-2013

DOMINION COAL CORPORATION

VA 2011-334-R

Page 1652

06-06-2013

SEC. OF LABOR O/B/O DARRICK
PIPER V. KENAMERICAN
RESOURCES, INC.

KENT 2013-751-D

Page 1680

06-06-2013

UNITED MINE WORKERS OF
AMERICA O/B/O MARK A. FRANKS
V. EMERALD COAL RESOURCES, LP

PENN 2012-250-D

Page 1696

i

06-12-2013

JIM WALTER RESOURCES, INC.

SE 2010-351

Page 1709

06-12-2013

CONSOLIDATION COAL COMPANY

WEVA 2011-1854

Page 1722

06-13-2013

AMERICAN COAL COMPANY

LAKE 2011-183

Page 1774

06-13-2013

BOWIE RESOURCES, LLC

WEST 2010-1727

Page 1830

06-14-2013

GOPHER CONSTRUCTION INC.

WEST 2010-470-M

Page 1842

06-19-2013

SEC. OF LABOR O/B/O REUBEN
SHEMWELL V. ARMSTRONG COAL
COMPANY, INC. & ARMSTRONG
FABRICATORS, INC.

KENT 2013-362-D

Page 1865

06-20-2013

NORTHSHORE MINING COMPANY

LAKE 2010-361-RM

Page 1889

06-20-2013

SEC. OF LABOR O/B/O RANDALL T.
LESTER V. KNOX CREEK COAL
CORP.

VA 2013-387-D

Page 1916

06-28-2013

TRIVETTE TRUCKING

KENT 2011-1223

Page 1934

ADMINISTRATIVE LAW JUDGE ORDERS
06-04-2013

WEBSTER COUNTY COAL

KENT 2011-1580

Page 1953

06-05-2013

WHITE BUCK COAL COMPANY

WEVA 2013-614

Page 1960

06-21-2013

SEC. OF LABOR O/B/O TIMOTHY ORR
V. CML METALS CORP.

WEST 2013-831-DM

Page 1962

ii

Review was granted in the following cases during the month of June 2013:
Secretary of Labor, MSHA v. Emerald Coal Resources, LP., Docket Nos. PENN 2010-445-R, PENN
2010-446-R, PENN 2010-647. (Judge Harner, April 29, 2013)
Secretary of Labor, MSHA v. Manalapan Mining Company, Inc., Docket No. KENT 2008-737.
(Judge Feldman, May 14, 2013)
No petition was filed in which Review was denied during the month of June 2013.

iii

COMMISSION DECISIONS

35 FMSHRC Page 1524

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

June 4, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
BIG RIDGE, INC.

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

Docket Nos. LAKE 2009-377
LAKE 2009-274-R
LAKE 2009-276-R
LAKE 2009-277-R
LAKE 2009-278-R
LAKE 2009-279-R
LAKE 2009-280-R
LAKE 2009-310-R
LAKE 2009-311-R
LAKE 2009-312-R

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners
DECISION
BY: Jordan, Chairman; and Nakamura, Commissioner
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). As relevant to this appeal, Big
Ridge, Inc. (“Big Ridge”) contested four orders issued by an inspector from the Department of
Labor’s Mine Safety and Health Administration (“MSHA”), pursuant to section 104(d)(2) of the
Mine Act, 30 U.S.C. § 814(d)(2), after he observed accumulations of combustible materials in
Big Ridge’s coal mine. Administrative Law Judge Gary Melick affirmed allegations in the
orders that the operator violated 30 C.F.R. § 75.400,1 and that the violations were significant and
substantial and caused by the operator’s unwarrantable failure to comply with the standard.2

1

30 C.F.R. § 75.400 provides:
Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active
workings, or on diesel-powered and electric equipment therein.

2

The S&S and unwarrantable failure terminology is taken from section 104(d)(1) of the
(continued...)

35 FMSHRC Page 1525

32 FMSHRC 1020 (Aug. 2010) (ALJ). Big Ridge filed a petition for discretionary review,
challenging various of those determinations by the Judge. The Commission granted the petition
and heard oral argument. For the reasons that follow, we affirm in part and reverse in part and
remand for the reassessment of a civil penalty.
I.
Order No. 6683824
A.

Factual and Procedural Background

On December 10, 2008, MSHA Supervisor Michael Rennie inspected Big Ridge’s
Willow Lake Portal coal mine in Equality, Illinois. Rennie testified that at approximately
8:15 a.m., he observed accumulations of coal along the 4E conveyor belt: (1) at the head roller
and inby to the No. 8 crosscut in intermittent piles of up to 5 inches in depth; and (2) at the tail
piece in an accumulation approximately 18 feet in length by two feet in depth. Id. at 1022;
Tr. 35-40. Rennie observed that the bottom belt and tail roller were turning in the accumulations
around the belt tail. 32 FMSHRC at 1022. The belt was also misaligned and had cut into the
belt structure almost an inch. Id. Bart Schiff, the operator’s safety manager who accompanied
Rennie, testified that there were accumulations under the rollers in several sections of the belt
and on both sides of the bottom belt. Id. Schiff stated that the bottom belt was turning in coal.
Id.
Monty Applin, Big Ridge’s mine examiner, testified that he had performed an
examination of the 4E tail at approximately 3:15 a.m. on December 10. Id. He noted a condition
in the examination book that the belt had a dirty takeup and that the head roller needed
rockdusting. Tr. 83-84. He observed no accumulations at the tail at the time of his examination.
Tr. 85.
James Holmes, Big Ridge’s section foreman, testified that he checked the tail piece at
approximately 7:00 a.m. and 9:00 a.m. on the day of the inspection and found it to be clean.
32 FMSHRC at 1022. He testified that at 9:15 a.m., however, the 4E tail was “gobbed out,” or
full of coal fines. Tr. 107-08. He explained that the belt’s skirt rubber3 had come out, which
caused a spillage at the tail piece. Tr. 109. Rennie also testified that later in the day, he was

(...continued)
Act, 30 U.S.C. § 814(d)(1), which distinguishes as more serious any violation that “could
significantly and substantially contribute to the cause and effect of a . . . mine safety or health
hazard,” and establishes more severe sanctions for any violation that is caused by “an
unwarrantable failure of [an] operator to comply with . . . mandatory health or safety standards.”
2

A “skirt rubber” is comprised of two pieces of rubber that are placed on the top part of
the tail piece to align coal on to the belt line. Tr. 109.
3

35 FMSHRC Page 1526

informed that the accumulations had been caused by the belt misaligning and the skirt rubber
coming off. Tr. 44-45.
Based upon his observations, MSHA Supervisor Rennie issued Order No. 6683824
alleging an S&S and unwarrantable violation of section 75.400. Gov’t Ex. A1. The belt was
shut down for approximately six hours while the violation was abated. 32 FMSHRC at 1024.
During that time, the accumulations were shoveled, equipment was brought to the area, and rock
dust was applied. Id. Holmes testified that it took six or seven miners 15 to 20 minutes to clean
up the material at the tail piece. Tr. 112.
The Judge affirmed the violation and special findings. Big Ridge’s petition challenges
the Judge’s S&S and unwarrantable failure findings.
B.

Disposition
1.

The Judge’s conclusion that the violation was S&S is affirmed.

A violation is S&S if, based on the particular facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard — that is, a
measure of danger to safety — contributed to by the violation; (3)
a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
(footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995);
Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria). An evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985). The Commission has emphasized that it is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC
1834, 1836 (Aug. 1984).
Big Ridge argues that the Judge erred in finding the violation to be S&S. It contends that
the material at the tail piece merely constituted spillage caused by the skirt rubber coming off
rather than a violative accumulation and that, accordingly, it should not have been considered in
the Judge’s S&S determination. The operator also asserts that the Judge failed to consider that
its fire detection and fire suppression systems made injury unlikely. It argues that the Judge

35 FMSHRC Page 1527

further erred by not considering information in an MSHA report, which shows that there were no
fatalities or lost time injuries resulting from reportable fires in belt entries between 1980 and
2005, because such information is relevant to application of the third and fourth Mathies
elements.
Applying the Mathies elements, we conclude that the Judge properly concluded that the
4E beltline accumulations were S&S. The first Mathies element is satisfied in that Big Ridge
conceded the underlying violation.
As to the second Mathies element, the Judge found that the violation exposed miners to
the safety hazard of a belt fire from the friction caused by the belt cutting into the belt structure.
32 FMSHRC at 1023. We conclude that his finding of a hazard is supported by substantial
evidence.4 MSHA Supervisor Rennie testified that there were “a lot” of accumulations at the
tail, which extended almost 18 feet outby from the tail roller and were approximately two feet
deep. Tr. 36-37; 32 FMSHRC at 1022. He stated that an ignition source was presented by the
friction of the bottom belt sliding in the accumulations. Tr. 37; 32 FMSHRC at 1022. Rennie
testified that an additional ignition source was present in that the belt had become misaligned
and was rubbing against the belt structure. Tr. 37-38, 70; 32 FMSHRC at 1022. He explained
that the belt had cut into the belt structure almost one inch in depth, and the structure was very
hot to the touch. Tr. 37-38, 66. Applin, Big Ridge’s belt examiner, acknowledged that, although
the belt was shut down at the time of his examination, a belt running in accumulations would
constitute a hazard. Tr. 92. He explained that a “hazard is immediate danger that can cause a
fire or explosion or lack of oxygen or a combination of gas – anything that can do bodily harm,”
and that if he observed such a hazard, he would turn off the belt and have the hazard addressed.
Tr. 81-82.
As to the third and fourth elements of Mathies, the Judge found that the hazard of smoke
and fire would reasonably result in an injury that could reasonably be expected to be severe or
even fatal from smoke inhalation, carbon monoxide poisoning and/or burns. 32 FMSHRC at
1023-24. MSHA Supervisor Rennie testified that he determined that injury or illness was highly
likely given the amount of the cited accumulations and the presence of ignition sources. Tr. 4647, 70. He explained that smoke from a fire would move directly to miners working on the
section which could result in disorientation and that fatal injuries could result from a fire. Tr.
46-47, 67.

When reviewing an administrative law judge’s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “such relevant evidence as a reasonable
mind might accept as adequate to support [the Judge’s] conclusion.” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
4

35 FMSHRC Page 1528

Even if we were to accept Big Ridge’s argument that the material cited at the tail piece
did not constitute violative accumulations, the record is clear that accumulations existed along
the beltline. MSHA Supervisor Rennie testified that there were accumulations by the head roller
and inby to the No. 8 crosscut that ranged up to 5 inches in depth. Tr. 36-37; Gov’t Ex. A1. He
observed black float coal dust along the roof, rib, floor and belt structure. Gov’t Ex. A1. As
noted above, the belt rubbing against the belt structure constituted an ignition source for those
accumulations. Tr. 37-38, 66, 70. Thus, there remains substantial evidence in the record to
support the Judge’s S&S determination.
We find unpersuasive the operator’s argument that the Judge erred in determining that
the violation was S&S because he refused to consider the safety measures that Big Ridge had in
place, such as its fire detection and suppression systems. In Buck Creek Coal Co. v. FMSHRC,
the court rejected the operator’s contention that other fire prevention safety measures mitigated
the S&S nature of an accumulation. 52 F.3d at 136. The court reasoned that the fact that an
operator has “safety measures in place to deal with a fire does not mean that fires do not pose a
serious safety risk to miners.” Id.; see also AMAX Coal Co., 19 FMSHRC 846, 849-50 (May
1997). As the Commission has recognized, adopting the position that redundant mandatory
safety protections provide a defense to an S&S finding would lead to the anomalous result that
every protection would have to be nonfunctional before an S&S finding could be made.
Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369 (Oct. 2011).
Likewise, we are not persuaded by Big Ridge’s argument that the Judge erred by not
relying upon the MSHA report in his consideration of whether injury would be reasonably likely
to result from a belt fire. The report is a Power-Point presentation, entitled, “Reducing Belt
Entry Fires in Underground Coal Mines,” which was submitted by MSHA to the Belt Study
Commission in 2007, as part of an evaluation of the use of belt air to ventilate working sections.
R. Ex. 1; Tr. 622; Oral Arg. Tr. at 7-8. It would have been inappropriate for the Judge to draw
broad conclusions about the likelihood of injury from belt fires from the presentation, when the
presentation was prepared for a different reason and had a different focus. In any event, as the
Commission has long recognized, the question of whether a particular violation is S&S must be
based on the particular facts surrounding that violation. Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007, 2011-12 (Dec. 1987). Here, the Judge appropriately considered the nature of
the specific cited conditions in concluding that the violation cited in Order No. 6683824 was
S&S, and substantial evidence supports that conclusion.
Accordingly, we affirm the Judge’s S&S determination.
2.

The Judge’s conclusion that the violation resulted from
unwarrantable failure is reversed.

The Commission has defined unwarrantable failure as “aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation to a violation of the Act.” Emery
Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). It is characterized by “reckless disregard,”

35 FMSHRC Page 1529

“intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Id. at 200204.
The Commission has further recognized that whether conduct is “aggravated” in the
context of unwarrantable failure is determined by considering the facts and circumstances of
each case to determine if any aggravating or mitigating circumstances exist. Factors relevant to
that consideration include the length of time that the violation has existed, the extent of the
violative condition, whether the operator has been placed on notice that greater efforts were
necessary for compliance, the operator’s efforts in abating the violative condition, whether the
violation was obvious or posed a high degree of danger, and the operator’s knowledge of the
existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000);
Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). While an
administrative law judge may determine, in his or her discretion, that some factors are not
relevant, or may determine that some factors are much less important than other factors under the
circumstances, all of the factors must be taken into consideration. IO Coal Co., 31 FMSHRC
1346, 1351 (Dec. 2009).
Big Ridge argues that the Judge erred in concluding that the 4E belt accumulation
violation was unwarrantable. It contends that he failed to consider all of the factors identified by
the Commission as relevant to an unwarrantable failure consideration. It asserts that, moreover,
the Judge erred with respect to the factor of whether the operator had been placed on notice that
greater efforts were necessary for compliance. The operator explains that the Judge failed to
provide a qualitative analysis of the reasons that Big Ridge’s past violations would have put it on
notice with respect to the cited condition.
We disagree with Big Ridge that the Judge erred in his consideration of the operator’s
past violation history in his unwarrantable failure analysis. The Secretary submitted evidence
that the operator had 110 final citations and 8 final orders alleging violations of section 75.400
within the 15 months prior to issuance of the subject order. 32 FMSHRC at 1025; Tr. 48-49. It
was appropriate for the Judge to conclude that such violations were sufficient to place the
operator on notice that greater efforts were necessary for compliance with the standard. We do
not agree that past violations of section 75.400 can provide such notice only if they are factually
indistinguishable from the cited condition. Indeed, as recognized by the D.C. Circuit, the
Commission has concluded that “‘even if a different area was cited, past violations may,
nonetheless, provide an operator with sufficient awareness of an accumulation problem.’”5
Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012), quoting San Juan Coal
Co., 29 FMSHRC 125, 131 (Mar. 2007).

In any event, if the operator believed that some of the past violations were qualitatively
distinguishable so as not to place the operator on notice that greater efforts were necessary for
compliance with section 75.400, it was incumbent upon Big Ridge to place that evidence in the
record.
5

35 FMSHRC Page 1530

Nonetheless, we agree with Big Ridge that the Judge failed to consider relevant factors,
including the length of time that the violation existed, the operator’s efforts in abating the
violative condition, and the operator’s knowledge of the existence of the violation. If the
evidence in the record regarding these factors is weighed against the evidence and factors
considered by the Judge, there is not substantial evidence in the record to support the Judge’s
unwarrantable failure determination.
Regarding the length of time that the violation existed, the Judge did not resolve the
differences in testimony regarding when the accumulations existed on the morning of the
inspection. 32 FMSHRC at 1022-25. Mine Examiner Applin testified that he did not observe
any accumulations at the 4E tail piece during his examination at 3:15 a.m. and did not note the
presence of such accumulations in his examiners’ report. Tr. 84-85; R. Ex. 3. MSHA
Supervisor Rennie testified that he observed the cited accumulations at approximately 8:15 a.m.
on the morning of the inspection. Tr. 39-40. Section Foreman Holmes, however, testified that
he checked the 4E tail piece at 6:45 a.m. and just before 9:00 a.m. on the day of the inspection
and observed no accumulations. Tr. 102-03. He stated that, approximately 15 minutes after his
last inspection, he observed that the 4E tail was “gobbed out,” or full of coal fines. Tr. 107-09.
The record is undisputed that the 4E belt’s skirt rubber came out at some point, and that
coal can accumulate quickly under such circumstances. Tr. 44-45, 66, 109. Holmes concluded
that the cited accumulations at the 4E tail piece had resulted from the skirt rubber coming out.
Tr. 109. MSHA Supervisor Rennie also acknowledged that he had been informed that the
accumulations had been caused when the skirt rubber came out. Tr. 44-45, 66. Thus, regardless
of whether the accumulations existed at approximately 8:15 a.m. or at 9:15 a.m., it appears that
the accumulations at the tail piece likely occurred when the skirt rubber came out, and that the
violation did not exist for a lengthy period of time.
The Judge also did not consider Big Ridge’s actions in abating the violative condition.
32 FMSHRC at 1024-25. In considering the abatement element, the Commission focuses on
compliance efforts made prior to the issuance of the order. Enlow Fork Mining Co., 19
FMSHRC 5, 17 (Jan. 1997). Section Foreman Holmes checked the 4E tail piece at the beginning
of his shift, and again before 9:00 a.m. Tr. 102-03. Holmes observed the accumulations at the
tail piece at approximately 9:15 a.m. Tr. 107-08. He stated that it was his practice to check the
tail piece at the beginning of a shift and then approximately four to five times during the course
of a shift in order to monitor its condition. Tr. 102-03. The Secretary did not place evidence in
the record disputing Holmes’ testimony. Evidence of such monitoring does not support the
Judge’s finding that the operator’s actions in permitting the material at the 4E belt to accumulate
were aggravated.
For similar reasons, evidence regarding the operator’s knowledge of the existence of the
violation does not support the Judge’s unwarrantable failure finding. As discussed above, it
appears that the material at the tail piece existed for a brief period of time, and there is no
evidence in the record that the operator knew of the violative condition but failed to take

35 FMSHRC Page 1531

appropriate corrective action. The record on these factors does not reflect the reckless disregard
or serious lack of reasonable care that characterizes violations caused by unwarrantable failure.
Accordingly, we reverse the Judge’s determination that the violation described in Order
No. 6683824 was due to the operator’s unwarrantable failure to comply. We remand this matter
to the Chief Administrative Law Judge for assignment to a Judge for the reassessment of an
appropriate civil penalty.
II.
Order No. 6683087
A.

Factual and Procedural Background

On January 26, 2009, MSHA Inspector Scott Lee inspected the 1A belt at the mine.
32 FMSHRC at 1032. The 1A belt was approximately 500 feet long and had a water pump
beneath it. Id. The inspector issued Order No. 6683087, which alleged an S&S and
unwarrantable violation of section 75.400, because he observed accumulations of coal fines on
top of the water pump and on the skid plate, the plate on which the water pump rested. Id.
Inspector Lee described the accumulations on top of the water pump as 4 to 8 inches deep, 10.5
feet long, and 4 feet wide, and the accumulations on the skid plate as 4 to 6 inches deep. Id. He
testified that approximately 150 feet away from the water pump, the 1A belt was rubbing on a
damaged roller. Id. at 1033. Union President Greg Fort also testified that there were “quite a
bit” of coal fines around the top of the water pump and “around the external parts in the sides.”
Id.; Tr. 479.
Earlier that day, at approximately 8:00 a.m., Charlie Hyers, an examiner for Big Ridge,
had performed an onshift examination of the 1A belt. Tr. 553, 559. Hyers noted in the
examination book that the beltline was “dark in color.” R. Ex. 75.
Mike Davis, Big Ridge’s Safety Manager who accompanied Inspector Lee, disagreed
with the inspector’s description of the accumulations. 32 FMSHRC at 1033. He testified that
there were five rock dust bags on top of the water pump and less than an inch of accumulations
on top of the bags. Id. Davis further testified that the material on the skid plate was noncombustible gob. Id.; Tr. 541-42. He explained that when the pump is pushed, the skid plate
will push up fireclay and dirt from the floor in front of it. Tr. 521, 542.
The Judge upheld the violations and special findings. 32 FMSHRC at 1033. In ruling
that the violation was S&S, he found that the belt rubbing on the damaged roller constituted an
ignition source, although the pump itself did not. Id. He also concluded that the violation had
been caused by an unwarrantable failure because the amount of the accumulations on and around
the pump was extensive, they were hazardous due to the nearby ignition source of the damaged
roller, and because the operator was on notice that greater efforts were required to maintain the
subject belt. Id. The operator appealed the S&S and unwarrantable failure designations.

35 FMSHRC Page 1532

B.

Disposition
1.

The Judge’s conclusion that the violation was S&S is affirmed.

Applying the Mathies analysis, we conclude that the Judge properly determined that the
accumulation violation was S&S. Big Ridge conceded the violation in satisfaction of the first
Mathies element. As to the second Mathies element, the Secretary submitted evidence in the
record that the accumulations on the water pump contributed to the hazard of coal ignition, and
the Judge credited the Secretary’s evidence. The Commission has recognized that a judge’s
credibility determinations are entitled to great weight and may not be overturned lightly. Farmer
v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co.,
3 FMSHRC 2767, 2770 (Dec. 1981).
The Judge credited the testimony of Inspector Lee, as corroborated by Union President
Fort, that there were significant accumulations on the water pump. 32 FMSHRC at 1032.
Inspector Lee testified that the water pump was approximately 10.5 feet long and 4 feet wide,
and that the accumulations on top of the cover were 4 to 8 inches deep, while the accumulations
underneath the unit were 4 to 6 inches deep. Gov’t Ex. F1; Tr. 393. Lee testified that the
accumulations were black in color and estimated that, given their color, they were 99 to 100%
combustible. Tr. 392. Fort testified that the water pump had been under the belt approximately
three to four weeks and had accumulated quite a bit of coal fines, black in color, around the top
and along the sides of the pump. Tr. 478-79. Given this evidence, we find insufficient reason to
overturn the Judge’s credibility determinations that there were a significant amount of
combustible accumulations on the water pump.
The Judge also relied upon the presence of the broken roller as an ignition source for the
cited accumulations. 32 FMSHRC at 1033. Inspector Lee testified that there was a broken
bottom roller on the belt, and that the bottom belt had rubbed a flat spot on the roller. Tr. 398,
400, 404. He explained that the frictional heat constituted an ignition source and that the roller
was hot to the touch. Tr. 398-401, 404-05. Lee further stated that one end of the roller was in
contact with other accumulations he had cited along the beltline, and that belt shavings could
drop on the accumulations under the belt and start an ignition. Tr. 412. Fort observed belt
shavings that resulted from pieces of the belt being torn off from the friction. Tr. 483. As the
Judge found, Big Ridge’s expert, Chad Barras, testified that hot lubricant from damaged rollers
and belt shavings can generate enough heat to ignite coal. 32 FMSHRC at 1033; Tr. 639-40,
641.
As to the third and fourth elements of Mathies, there is evidence in the record that the
hazard from smoke and fire would reasonably result in a reasonably serious injury. Inspector
Lee explained that the accumulations and ignition source could have caused a fire or smoke
which could engulf the area. Tr. 404-05. He explained that miners can die from carbon
monoxide poisoning, get disoriented from smoke, and suffer burns from fires. Tr. 420-21.

35 FMSHRC Page 1533

For these reasons, we affirm the Judge’s determination that the violation was S&S as
supported by substantial evidence.
2.

The Judge’s conclusion that the violation resulted from an
unwarrantable failure is affirmed.

We conclude that substantial evidence supports the Judge’s determination that the
violation was caused by an unwarrantable failure. As discussed above, a majority has concluded
that the Judge’s findings that the violation was extensive and hazardous are supported by
substantial evidence.
Regarding the operator’s knowledge of the existence of the violation, the Judge found
that the report of the onshift examination had placed management on notice of the potentially
hazardous conditions along the 1A belt. However, even if we were to agree with Big Ridge that
Hyers’ examination report did not provide the operator with knowledge of the accumulations at
the water pump, we conclude that the operator had reason to know of the water pump
accumulations given the amount of time that they existed and their obviousness. Inspector Lee
testified that the condition was obvious, and that the belt examiners should have seen the
accumulations particularly since they knew the equipment was under the belt. Tr. 406. In
addition, he stated that the pump was very near the travel road where miners continually passed
under the belt. Tr. 399; Gov’t Ex. F3. The inspector further testified that the accumulations had
been there for “some time,” at least two to three shifts, but probably longer. Tr. 401, 402. There
is no record support of the operator’s efforts in abating the violation as a mitigating factor.
We further conclude that the Judge appropriately considered the factor of whether the
operator had been placed on notice that greater efforts were necessary for compliance. The
Judge also appropriately considered the operator’s past violations. Moreover, the record reveals
that MSHA held closeout and pre-inspection conferences with Big Ridge that provided the
operator with notice that greater efforts were necessary for compliance with section 75.400. 32
FMSHRC at 1025; Tr. 492-95. Union President Fort testified that compliance with section
75.400 “has been our big problem area” and that there were discussions in the meetings that the
operator had to “take control of [its section 75.400 violations] and get them down.” Tr. 494-95.
In the quarterly meeting on September 26, 2008, before issuance of the subject order, Big Ridge
was informed that violations of section 75.400 had increased 6% over the prior quarter and
comprised 24% of the cited violations. Tr. 497-98. MSHA also indicated that it wanted the
operator to have fewer violations of section 75.400 pertaining to equipment. Tr. 503-04.
Accordingly, we affirm the Judge’s determination that the violation cited in Order No.
6683087 was caused by an unwarrantable failure as supported by substantial evidence.

35 FMSHRC Page 1534

III.
Order No. 6683088
A.

Factual and Procedural Background

During the same inspection on January 26, 2009, MSHA Inspector Lee observed float
coal dust accumulations that were along the entire 1A beltline, from rib to rib, and coal fines that
were under the belt’s rollers and in the take-up and drive motors that were four to eight inches
deep. 32 FMSHRC at 1034; Tr. 410. The inspector observed that a damaged bottom roller had
dropped on one side, and the belt was rubbing on the roller. Tr. 411. One end of the damaged
roller was in contact with the accumulations. Tr. 412. Union President Fort also observed the
accumulations and that the damaged roller had torn pieces, or shavings, from the belt. Tr. 48283. Mine Examiner Hyers, who had examined the 1A belt prior to the inspection, noted in the
examination book that the 1A beltline was “dark in color.” Tr. 553, 557; R. Ex. 75. Inspector
Lee issued Order No. 6683088, alleging an S&S and unwarrantable violation of section 75.400.
The Judge affirmed the violation and special findings. 32 FMSHRC at 1033-34. Only the
unwarrantable failure designation was appealed.
B.

Disposition
The Judge’s conclusion that the violation was unwarrantable is affirmed.

We affirm the Judge’s finding of unwarrantable failure. Regarding the extensiveness of
the accumulations, Inspector Lee’s testimony that there were float coal dust accumulations from
rib to rib, along the entire length of the 500 foot-long belt, as well as accumulations 4 to 8 inches
deep under the belt rollers and in the takeup and drive motors, supports the Judge’s
extensiveness finding. Tr. 410. As the Judge stated, the inspector’s testimony was corroborated
by Union President Fort, who testified that there were “quite a few accumulations and a lot of
black coal dust in the area.” 32 FMSHRC at 1034; Tr. 483. We note that although three hours
elapsed between the time that the inspector issued the order and the time that he terminated it,
Bob Pate, the shift mine manager, testified that it took 30 minutes to shovel the beltline and 20 to
30 minutes to rock dust it. Tr. 528. We nonetheless conclude that there is substantial evidence
in the record to support the Judge’s finding.6
There is also substantial evidence in the record to support the Judge’s determination that
the operator had knowledge of the cited condition. See 32 FMSHRC at 1034. After examining
the 1A beltline on the day of the inspection, Big Ridge’s examiner, Hyers, placed a comment in
the examination book that read, “Beltline dark in color.” R. Ex. 75. Regardless of whether
Hyers believed the condition to be merely a condition rather than a hazard that required

The operator does not challenge the Judge’s finding that the violative condition was
obvious. BR Br. at 35-37; 32 FMSHRC at 1035. Accordingly, that finding stands.
6

35 FMSHRC Page 1535

immediate attention, as argued by Big Ridge, the notation gave the operator notice of a potential
accumulation violation along the beltline. Moreover, Inspector Lee testified that the
accumulations existed for at least one shift. Tr. 414-15. Although the operator had received
notice for that period of time, there is no evidence in the record that the operator took abatement
measures to address the accumulations prior to issuance of the order. Tr. 415.
The Judge did not specifically address whether the violative condition posed a high
degree of danger in his unwarrantable failure analysis. However, the Judge concluded that the
violation was S&S (which the operator did not challenge), and there is evidence in the record
regarding the danger posed by the violation. The record reveals that a damaged bottom roller
had dropped on one side and was making contact with the belt, and that one end of the roller was
in contact with the accumulations. Tr. 410-12. There were also belt shavings lying in the
accumulations. Tr. 483. As the Judge found, Big Ridge’s expert, Chad Barras, testified that hot
lubricant from damaged rollers and hot rubber and metal particles from a belt are a source of coal
ignition. 32 FMSHRC at 1034; Tr. 619-20, 639. Finally, for the reasons discussed above, we
hold that the operator’s past history of violations placed Big Ridge on notice that greater efforts
at compliance were necessary. Accordingly, we affirm the Judge’s unwarrantable failure
determination.
IV.
Order No. 6683968
A.

Factual and Procedural Background

On January 29, 2009, MSHA Inspector Larry Morris issued Order No. 6683968, alleging
an S&S and unwarrantable violation of section 75.400 due to accumulations at the 2C conveyor
belt. 32 FMSHRC at 1037. The order alleged that loose coal and coal fines were observed at the
2C belt tail piece, and ranged from 1 to 18 inches deep, 6 feet wide, and 15 feet long. Id. The
inspector observed that the accumulations on the floor were wet or damp but that the
accumulations at the tail roller were dry and powdery. Id. at 1038. Morris testified that the
rotating 2C belt and tail roller were in contact with the accumulations. Tr. 564.
Approximately two days before the citation was issued, Section Foreman Brad Champley
reported a spillage problem at the 2C belt to Terry Butler, a maintenance foreman. Tr. 589, 597.
Butler testified that he walked the entire belt and aligned it. Tr. 598. During the two hours
before the order was issued, the 2C tail piece had already been shoveled twice. Tr. 581-83, 591.
After the order was issued, the belt was removed from service and cleaned. Tr. 569. The
operator discovered that the belt was running out of alignment at crosscut 18. Tr. 569. Inspector
Morris testified that the operator placed the belt back into alignment, which corrected the
problem. Tr. 569.
The Judge affirmed the violation and special findings. He rejected the operator’s
argument that the material was non-violative spillage. 32 FMSHRC at 1038. The Judge

35 FMSHRC Page 1536

concluded that the cited accumulations were extensive and had not been cleaned with reasonable
promptness given the operator’s knowledge of the serious spillage problem at the tail piece. Id.
The Judge next found that the violative conditions were S&S. Id. at 1038. The Judge
credited the testimony of Inspector Morris that the material was significant in amount, black in
color, and was dry at the tail roller. Id. He also credited the testimony of Morris that the belt
and metal tail roller were in contact with the accumulations and inferred that such a condition
amounted to an ignition source. Id. at 1038-39. The Judge noted that the belt had become
misaligned, and that with continued normal mining conditions, the misaligned belt could create
metal or rubber shavings hot enough to ignite coal. Id. at 1039. Regarding his finding that the
violation was caused by the operator’s unwarrantable failure, the Judge concluded that the
violation was serious and obvious, and that the operator’s past violations placed it on notice that
greater compliance efforts were necessary. Id.
B.

Disposition
1.

The Judge’s conclusion that the operator violated section 75.400 is
affirmed.

Big Ridge argues that the cited material was mere spillage rather than violative
accumulations. It maintains that it attended to the spillage at the 2C tail piece in a timely
fashion, and that Section Foreman Champley had reported the condition and remedial measures
had been taken.
The D.C. Circuit has found unpersuasive an operator’s argument that coal accumulations
that resulted from a sudden spill were not violative accumulations. Black Beauty Coal Co. v.
FMSHRC, 703 F.3d 553, 558-59 (D.C. Cir. 2012). The Court relied upon Commission precedent
rejecting the position that accumulations of combustible materials may be tolerated for a
reasonable time. Id. It noted that the Commission has explained that section 75.400 is
“‘directed at preventing accumulations in the first instance, not at cleaning up the materials
within a reasonable period of time after they have accumulated.’” Id. (citations omitted).
Consistent with this precedent, we affirm the Judge’s finding of a violation. Here, the
operator had not taken appropriate action to prevent the accumulation of combustible materials.
As the Judge found, Foreman Champley knew that there was a problem of spillage at the tail
piece that needed constant attention. 32 FMSHRC at 1038. During the morning of the
inspection, the operator had shoveled the tail piece twice in the two hours before Inspector
Morris observed the cited condition, and only about one-and-a-half hours had elapsed between
the two cleanups. Tr. 581-83, 591. Champley knew that the problem with spillage at the tail
piece was not new and had brought his concerns about the spillage to Butler “a day or so” before
the inspection. Tr. 589, 597. Inspector Morris testified that the operator “knew [it] had a
problem with the belt and chose to periodically clean the tail piece and keep running coal, and by
continuing to run coal without correcting the problem, it allowed it to get in a citable condition.”
Tr. 566.

35 FMSHRC Page 1537

Moreover, substantial evidence supports the Judge’s finding that the accumulations
observed by Inspector Morris after the belt had been cleaned a second time were extensive.
Morris observed that the accumulations were approximately 15 feet long, extending a distance of
75% of the tail piece, were approximately 6 feet wide and 1 to 18 inches deep. Tr. 563, 569.
Regarding the amount of accumulations, Morris testified that “there was enough that it had
actually pushed the belt out away from the tail pulley approximately 2 inches.” Tr. 564.
Accordingly, we affirm the Judge’s determination that Big Ridge violated section 75.400.
2.

The Judge’s conclusion that the operator’s violation was S&S is
affirmed.

Applying the Mathies elements, we conclude that the Judge properly determined that the
violation was S&S. As discussed above, substantial evidence supports the Judge’s determination
of violation in satisfaction of the first Mathies element.
There is also substantial evidence to support the Judge’s determination that the second
Mathies element was satisfied and that the cited accumulations contributed to the hazard of a
coal ignition. The accumulations were extensive, as described above, and black in color.
Tr. 563, 572. The accumulations at the tail roller were dry and powdery,7 and the tail roller and
belt were in contact with the accumulations. Tr. 563-64, 566. In addition, the record reveals that
the belt was running out of alignment at the time Inspector Morris observed the conditions.
Tr. 569. As the operator’s expert testified, metal and rubber shavings worn from a misaligned
conveyor belt can become hot enough to constitute an ignition source. 32 FMSHRC at 1038;
Tr. 619.
As to the third and fourth elements of Mathies, the Judge found that the hazard of smoke
and fire would reasonably result in a severe or even fatal injury. 32 FMSHRC at 1039.
Inspector Morris testified that a fire would produce smoke and carbon monoxide, and that
breathing carbon monoxide can cause light-headedness, unconsciousness, and death, and that
miners could suffer burns from a fire. Tr. 567.
We do not find persuasive the operator’s argument that the violation was not S&S
because the accumulations had only existed for a short period of time and that regular
maintenance would have continued on the belt. The Commission has recognized that “[t]he
Mathies test requires evaluation of the violation at the time of citation, including an examination
of the risk of serious injury, given the presence of the violative condition in normal mining
operations.” Gatliff Coal Co., 14 FMSHRC 1982, 1986 (Dec. 1992) (emphasis added).

The inspector testified that he was accompanied by Bill Shovers, a miners’
representative, and that Shovers had agreed that the fines at the tail roller were dry. Tr. 565-66.
7

35 FMSHRC Page 1538

Accordingly, for these reasons, we affirm the Judge’s S&S determination as supported by
substantial evidence.8
3.

The Judge’s conclusion that the operator’s violation was
unwarrantable is affirmed.

We agree with the Judge’s determination that the operator’s knowledge of the violative
condition constituted an aggravating factor. 32 FMSHRC at 1038. The operator had reason to
know that there was an accumulation problem on the 2C belt given past spillage problems within
a day or two of the inspection and that the tail piece had to be shoveled twice during the two
hours before the inspection. Tr. 566, 569. As the inspector testified, Big Ridge essentially made
the decision to continue production and periodically clean the belt rather than stop the belt and
resolve the cause of the spillage problem. Tr. 566. In considering an operator’s efforts in
abating a violative condition, the Commission considers “whether the operator’s efforts to
comply with safety standards and to correct conditions that could lead to violations were taken
with sufficient care under the circumstances, even if ultimately unsuccessful in completely
preventing a violative condition.” Windsor Coal Co., 21 FMSHRC 997,1005 n.9 (Sept. 1999).
Big Ridge’s efforts in abating the violative condition prior to citation were insufficient, since
mine management knew of a continuing problem at the location but chose to take temporary
superficial measures rather than corrective action designed to prevent accumulations.
32 FMSHRC at 1038.
The operator does not dispute the Judge’s findings that the violation was serious and
obvious. Id. Although the Judge did not specifically address the factors of the extent of the
violation and the length of time that the violation existed with respect to his unwarrantable
failure determination, he made findings in other portions of his decision, based on evidence in
the record.
In the S&S portion of his decision, the Judge found that the cited accumulations
“probably had not been present for more than 30 minutes to an hour.” Id. at 1039. Even if such
a factor is considered mitigating, it is insufficient to outweigh other evidence relied upon by the
Judge in concluding that the violation was unwarrantable. Regarding the extent of the violation,
in the violation portion of his decision, the Judge found that the cited accumulations were
extensive in size and amount, and we have concluded that substantial evidence supports that
finding. Id. at 1038. Finally, for the reasons discussed above, we are not persuaded by Big
Ridge’s argument that the Judge erred in considering the operator’s past violations in
determining that it had been placed on notice that greater efforts were necessary for compliance
with the standard. Id. at 1034.

For the reasons discussed above, we find unpersuasive the operator’s arguments that
the Judge erred in his S&S determination by not taking into consideration the operator’s fire
detection and suppression systems and the MSHA report.
8

35 FMSHRC Page 1539

Accordingly, for these reasons, we affirm the Judge’s unwarrantable failure
determination.
V.
Conclusion
For the reasons discussed above, with respect to Order No. 6683824, the Commission
affirms the Judge’s conclusion that the violation of section 75.400 was S&S and reverses the
Judge’s determination that the violation resulted from unwarrantable failure. With respect to the
penalty assessed for the violation, we remand to the Chief Judge for reassignment9 and for the
reassessment of an appropriate civil penalty. With respect to Order No. 6683087, we affirm the
Judge’s determination that the violation was S&S and affirm the Judge’s unwarrantable failure
finding. With respect to Order No. 6683088, we affirm the Judge’s determination that the
violation of section 75.400 was caused by unwarrantable failure. With respect to Order No.
6683968, we affirm the Judge’s conclusions that the operator violated section 75.400, and that
the violation was S&S and caused by Big Ridge’s unwarrantable failure.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

9

Judge Melick retired prior to the issuance of this decision.

35 FMSHRC Page 1540

Commissioner Young, concurring in part and dissenting in part:
I concur with the majority in affirming the Judge’s determination that the violation of 30
C.F.R. § 75.400 alleged in Order No. 6683824 was significant and substantial (“S&S”) and in
reversing the Judge’s determination that the violation resulted from the operator’s unwarrantable
failure to comply with the standard. I join the majority in remanding the matter to the Chief
Judge for reassignment and for the reassessment of an appropriate civil penalty. As to Order No.
6683087, I join the majority in affirming the Judge’s determination that the violation of section
75.400 alleged in the order resulted from an unwarrantable failure. I join the majority in
affirming the Judge’s determination that the violation of section 75.400 alleged in Order No.
6683088 resulted from unwarrantable failure. I also join the majority in affirming the Judge’s
determination that the operator violated section 75.400 as alleged in order No. 6683968.
I write separately, and briefly, to dissent from the remaining sections of the majority
opinion.
I.
Order No. 6683087
I conclude that substantial evidence does not support the Judge’s determination that the
violation of section 75.400 alleged in Order No. 6683087 was S&S. In particular, I do not find
substantial evidence in the record to satisfy the second element set forth in Mathies Coal Co., 6
FMSHRC 1, 3 (Jan. 1984), that is, that the water pump accumulations contributed to the hazard
of a coal ignition. As the Judge found, the water pump itself did not constitute an ignition source
because the pump was equipped with solid state controls, which eliminate the possibility of
sparking. 32 FMSHRC 1020, 1033 (Aug. 2010) (ALJ); Tr. 515.
Moreover, the record does not support the Judge’s finding that the damaged roller
constituted an ignition source for the water pump accumulations. Inspector Lee testified that
there was a broken bottom roller on the belt, and that one end of the roller was in contact with
the accumulations he had cited in a separate order, Order No. 6683088. Tr. 398-99, 404, 412.
The inspector testified that the heat caused by the damaged roller constituted an ignition source.
Tr. 398-401, 404-05. Union President Fort also observed belt shavings in the area of the
damaged roller. Tr. 483. However, the damaged roller was approximately 150 feet away from
the pump. Tr. 398-99. The frictional heat of the damaged roller posed a hazard of ignition to the
accumulations in the area of the damaged roller, rather than to the water pump accumulations
which were 150 feet away. The ignition hazard of the accumulations in the area of the damaged
roller is addressed by allegations in Order No. 6683088 that the violative accumulations along

35 FMSHRC Page 1541

the 1A beltline were S&S.1 Gov’t Ex. G1. Even if the belt shavings remained on the belt, it is
possible that the shavings would have to travel the entire circuit of the belt before reaching the
water pump and would no longer be hot. Oral Arg. Tr. at 55-56. In any event, it is the
Secretary’s burden to establish how the circumstances presented here contributed to the hazard
of a mine fire, and I would hold that the Secretary failed to meet his burden.
II.
Order No. 6683968
I would also hold that the violation cited in this order was not S&S and that it did not
arise from the operator’s unwarrantable failure. As we have noted, our Mathies formulation
requires us to examine the confluence of factors to determine whether the hazard contributed to
by the violation would be reasonably likely to result in a serious injury. Texasgulf, Inc., 10
FMSHRC 498, 500, 501 (April 1988) (stating that when evaluating the reasonable likelihood of
a fire, ignition, or explosion, the Commission has examined whether a “confluence of factors”
was present based on the particular facts surrounding the violation). We have also noted that the
potential for injury must assume the continuation of normal mining operations. See U.S. Steel
Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
In this case, continued normal mining operations must take into account that the operator
was attending to the problem – imperfectly, and not wholly effectively, but with an ongoing
awareness of the circumstances. This monitoring and cleanup, though certainly far from the best
response among available options, significantly reduced the potential that these accumulations
would contribute to a mine fire or propagation hazard.
This is not a case where an operator asserts that it would have discovered a problem and
corrected it in the course of normal operations. See U.S. Steel, 7 FMSHRC at 1130 (“fact that
upon being told of a deficiency by an MSHA inspector an operator proceeds to make necessary
corrections, does not obviate the need for determining whether an injury would have been
reasonably likely to occur if mining operations had continued without the inspector’s
intervention”). Rather, the maintenance effort here was already underway, with awareness of the
nature and origin of the problem.
The burden of proof is on the Secretary to establish a reasonable likelihood of serious
injury arising from the hazard in this specific context. I would hold that the majority, like the
Judge, fails to account for the ongoing remedial measures aimed at the conditions in this order.
Similarly, I would hold that this violation did not result from the operator's unwarrantable
failure. Although the condition was obvious and extensive, and although accumulations may

Big Ridge has not challenged the Judge’s determination that the violation cited in
Order No. 6683088 was S&S.
1

35 FMSHRC Page 1542

pose a serious risk of fire or propagation, the intermittent intervals of accumulation were brief
and were being attended to. Tr. 581, 583, 589, 590-91, 597. Additionally, efforts were
underway to identify and address the misaligned belt which was causing the problem. Tr. 598.
This is thus not a case where the operator may be said to be recklessly disregarding or willfully
neglecting its duties. Nor is the danger so profound and its looming presence so evident that the
operator can be found to have engaged in anything worse than ordinary negligence.
Furthermore, the remedial steps being taken, while not wholly effective, are the type of
pre-citation mitigation which must be taken into account. See IO Coal Co., 31 FMSHRC 1346,
1356 (Dec. 2009) (holding that “[t]he focus on the operator's abatement efforts is on those efforts
made prior to the citation or order”). The operator’s attention also significantly reduces the
gravity of the situation. None of this was wholly addressed in the Judge's decision, and I would
hold that substantial evidence refutes, rather than supports, his conclusion that this violation
resulted from the operator’s unwarrantable failure. See Am. Mine Servs., Inc., 15 FMSHRC
1830, 1834 (Sept. 1993) (remand not necessary when record supports no other conclusion).

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

35 FMSHRC Page 1543

Distribution:
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N.W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 1544

COMMISSION ORDERS

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

June 4, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
PAY CAR MINING, INC.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
DYNAMIC ENERGY, INC.

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

Docket No. WEVA 2012-1435
A.C. No. 46-08884-286693

Docket No. WEVA 2012-1436
A.C. No. 46-09062-286698

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners
CORRECTED ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On July 6, 2012, the Commission received from a
representative for Pay Car Mining, Inc. (“Pay Car”) and Dynamic Energy, Inc. (“Dynamic”) two
motions seeking to reopen two penalty assessments that had become final orders of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1
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

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEVA 2012-1435 and WEVA 2012-1436, involving similar
procedural issues. 29 C.F.R. § 2700.12. Subsequent to the order issued on May 23, 2013, it was
determined that the motions to reopen incorrectly identified Pay Car as the operator in Docket
No. WEVA 2012-1436.
1

35 FMSHRC Page 1545

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The operators’ representative asserts that he received the proposed assessments on April
24, 2012, and placed them in his secretary’s work box for contest. Due to unforeseen medical
developments, the secretary did not contest the assessments until June 6, 2012. However, the
proposed assessment had become a final order on May 24, 2012. The Secretary of Labor does
not oppose the requests to reopen, but urges the representative to establish procedures to ensure
that personal developments do not prevent timely filing of future penalty contests. The Secretary
also notes that Pay Car is currently delinquent in the payment of approximately $91,946.
Having reviewed the operators’ requests and the Secretary’s responses, in the interests of
justice, we hereby reopen these matters and remand them to the Chief Administrative Law Judge
for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29
C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

/s/Michael G. Young
Michael G. Young, Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner

35 FMSHRC Page 1546

Distribution:
James F. Bowman, Representative
Pay Car Mining, Inc.
P.O. Box 99,
Midway, WV 25878
jimbowman61@hotmail.com
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance,
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 1547

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

June 6, 2013

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
HIDDEN SPLENDOR RESOURCES, INC.

:
:
:
:
:
:
:
:
:

Docket Nos.

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

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). At issue is whether these proceedings must
be stayed under an automatic stay provision of the Bankruptcy Code.
In these proceedings, Administrative Law Judge Richard Manning issued a decision
disposing of issues and assessing civil penalties relating to 23 citations and orders issued to
Hidden Splendor Resources, Inc. (“Hidden Splendor”) by an inspector with the Department of
, slip op. at 72-73,
Labor’s Mine Safety and Health Administration (“MSHA”). 34 FMSHRC
No. WEST 2009-208 (Dec. 20, 2012) (ALJ). On January 22, 2013, the Secretary of Labor filed
a petition for discretionary review with the Commission challenging three of the penalties
assessed by the Judge. The Commission subsequently granted the petition. On February 26,
2013, the Secretary designated her petition as her opening brief. Hidden Splendor did not file a
response brief.
On March 18, 2013, the Commission received a Suggestion of Bankruptcy from Hidden
Splendor, stating that it had filed a Chapter 11 bankruptcy petition in the United States
Bankruptcy Court for the District of Nevada. Hidden Splendor stated that, as a result, these
proceedings are automatically stayed pursuant to 11 U.S.C. § 362(a).

35 FMSHRC Page 1548

The Secretary subsequently filed with the Commission a statement in opposition to the
operator’s Suggestion of Bankruptcy and motion to reset the briefing schedule. The Secretary
asserts that the present proceedings should not be stayed because they fall within an exception to
the automatic stay provision of the Bankruptcy Code. The Secretary requests that the
Commission order the parties to resume briefing and proceed to decide the issues on review.
The operator did not file a response to the Secretary’s opposition.
Section 362(a) of the Bankruptcy Code provides that the filing of a Chapter 11
bankruptcy petition operates as an automatic stay of the continuation of administrative
proceedings against the bankruptcy petitioner.1 Section 362(b)(4) exempts from the automatic
stay provisions the continuation of a proceeding by a “governmental unit” to enforce the
governmental unit’s police or regulatory power.2
To determine whether proceedings fall within the police or regulatory power exception to
the automatic stay, courts have applied the pecuniary purpose test and the public policy test.

1

11 U.S.C. § 362, entitled “Automatic stay,” provides in part:
(a) Except as provided in subsection (b) of this section, a petition
filed under section 301, 302, or 303 of this title . . . operates as a
stay, applicable to all entities, of–
(1) the commencement or continuation, including the
issuance or employment of process, of a judicial, administrative, or
other action or proceeding against the debtor that was or could
have been commenced before the commencement of the case
under this title, or to recover a claim against the debtor that arose
before the commencement of the case under this title . . . .

2

Section 362(b)(4) provides in part:
(b) The filing of a petition under section 301, 302, or 303 of this
title . . . does not operate as a stay–
(4) under paragraph (1) . . . of subsection (a) of this section,
of the commencement or continuation of an action or proceeding
by a governmental unit . . . to enforce such governmental unit’s . . .
police and regulatory power, including the enforcement of a
judgment other than a money judgment, obtained in an action or
proceeding by the governmental unit to enforce such governmental
unit’s . . . police or regulatory power.

11 U.S.C. § 362(b)(4).

35 FMSHRC Page 1549

In re Halo Wireless, Inc., 684 F.3d 581, 588 (5th Cir. 2012). The “pecuniary purpose test asks
whether the government primarily seeks to protect a pecuniary governmental interest in the
debtor’s property, as opposed to protecting the public safety and health.” Id. (citations omitted).
The “public policy test asks whether the government is effectuating public policy rather than
adjudicating private rights.” Id. (citations omitted). Both tests contemplate the consideration of
“‘whether the particular regulatory proceeding at issue is designed primarily to protect public
safety and welfare, or represents a governmental attempt to recover from property of the debtor
estate, whether on its own claim, or the nongovernmental debts of private parties.’” Id. (citations
omitted).
As the Commission has previously recognized, the Secretary, the Department of Labor,
and MSHA are all “governmental units” within the meaning of the Bankruptcy Code.3 Jim
Walter Res., Inc., 12 FMSHRC 1521, 1530 (Aug. 1990) (“JWR”). The present case was brought
by the United States, through the Secretary, to effectuate and enforce mandatory safety standards
that implement the Mine Act. This is the kind of regulatory action covered by the police or
regulatory power exception to the automatic stay. See Holst Excavating, Inc., 17 FMSHRC 101,
102 (Feb. 1995); JWR, 12 FMSHRC at 1530.
Accordingly, this case shall proceed in accordance with the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Hidden Splendor must file its response
brief, if any, with the Commission within 30 days of the date of this order. The Secretary may
file any reply brief in accordance with the provisions of 29 C.F.R. § 2700.75(a)(2).

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

11 U.S.C. § 101(27) defines “governmental unit” as the “United States; . . . department,
agency, or instrumentality of the United States.”
3

35 FMSHRC Page 1550

Distribution:
Alexander H. Walker III
American West Resources, Inc.
57 West 200 South, Suite 400
Salt Lake City, UT 84101
Awalkerlaw@aol.com
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
721 19th Street, Suite 443
Denver, CO 80202-5268

35 FMSHRC Page 1551

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

June 27, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
L & L GRAVEL

:
:
:
:
:
:
:

Docket No. CENT 2012-73-M
A.C. No. 25-01093-269393-02

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On December 18, 2012, the Commission received from
L & L Gravel (“L&L”) 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

35 FMSHRC Page 1552

MSHA’s records indicate that the proposed assessment was delivered on October 17,
2011, and became a final order of the Commission on November 16, 2011. L&L asserts that its
office manager forgot to check one box on the contest form for Citation No. 8587317. A
settlement agreement for the remaining citations in this proposed assessment was approved by
Chief Administrative Law Judge Lesnick on July 26, 2012. The Secretary opposes the request to
reopen and notes that a delinquency notice was mailed to the operator on January 3, 2012, and
the case was referred to the U.S. Department of Treasury for collection on April 19, 2012.
Under Rule 60(c), a Rule 60(b) motion shall be made within a reasonable time, and for
reasons of mistake, inadvertence, or excusable neglect, not more than one year after the
judgment, order, or proceeding was entered or taken. This motion to reopen was filed more than
one year after becoming a final order. Therefore, L&L’s motion is untimely. J S Sand &
Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).
Accordingly, we deny L&L’s motion with prejudice.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

35 FMSHRC Page 1553

Distribution;
Susan Neil
Office Mngr.
L & L Gravel
P.O. Box 1
Thedford, NE 69166
llgravel@neb-sandhills.net
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 1554

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

June 27, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
L & W QUARRIES, INC.

:
:
:
:
:
:
:

Docket No. CENT 2013-162-M
A.C. No. 13-02138-293342

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On December 5, 2012, the Commission received from
L & W Quarries, Inc. (“L&W”) 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

35 FMSHRC Page 1555

The Department of Labor’s Mine Safety and Health Administration’s (“MSHA”) records
indicate that the proposed assessment was delivered on July 10, 2012, and became a final order
of the Commission on August 9, 2012. L&W asserts that it paid the proposed penalties in the
erroneous belief that payment would end any litigation arising from the alleged violations. In his
affidavit, L&W’s general manager contends that a significant factor in his decision to timely pay
the citations was that MSHA had not issued any penalties against individuals employed by L&W
under section 110(c) of the Mine Act, 30 U.S.C. § 820(c). Because MSHA sent proposed
assessments to two individuals on July 17, 2012, L&W seeks to reopen this matter to ensure that
payment will not constitute an admission of wrongdoing on the part of the company or its agents.
The Secretary opposes the request to reopen, noting that the operator’s concerns are
unfounded. The Secretary assures the operator that if the section 110(c) assessments proceed to
litigation, he will not argue that L&W’s payment estops its agents from litigating any aspect of
the underlying violations. Moreover, the Secretary established that the payment in this case was
postmarked on November 7, 2012, three months after the proposed assessment became a final
order, and almost four months after the individual assessments were issued.
Having reviewed L&W’s request and the Secretary’s response, we conclude that the
outcome of the matter before us will not prejudice any future section 110(c) proceedings.
Accordingly, the motion to reopen is denied.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

35 FMSHRC Page 1556

Distribution:
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 1557

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

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

v.
AMISTAD READY MIX

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

Docket No. CENT 2013-355-M
A.C. No. 41-04433-309396
Docket No. CENT 2013-356-M
A.C. No. 41-04433-275623
Docket No. CENT 2013-357-M
A.C. No. 41-04433-261135
Docket No. CENT 2013-358-M
A.C. No. 41-04433-249717
Docket No. CENT 2013-359-M
A.C. No. 41-04433-226284

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On March 21, 2013, the Commission received from Amistad
Ready Mix (“Amistad”) five motions seeking to reopen five penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).1
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).

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby consolidate
docket numbers CENT 2013-355-M, CENT 2013-356-M, CENT 2013-357-M, CENT 2013-358M and CENT 2013-359-M, all captioned Amistad Ready Mix, and involving similar procedural
issues. 29 C.F.R. § 2700.12.
1

35 FMSHRC Page 1558

We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).
The Department of Labor’s Mine Safety and Health Administration’s (“MSHA”) records
indicate that proposed assessment No. 000309396 was delivered on December 20, 2012, and
became a final order of the Commission on January 22, 2013. A delinquency notice was mailed
on March 7, 2013. Proposed assessment No. 000275623 was delivered on December 22, 2011,
and became a final order of the Commission on January 23, 2012. A delinquency notice was
mailed on March 7, 2012, and the case was referred to the U.S. Department of Treasury for
collection on June 28, 2012. Proposed assessment No. 000261135 was delivered on July 20,
2011, and became a final order of the Commission on August 19, 2011. A delinquency notice
was mailed on October 7, 2011, and the case was referred to the U.S. Department of Treasury for
collection on January 19, 2012. Proposed assessment No. 000249717 was delivered on March
23, 2011, and became a final order of the Commission on April 22, 2011. A delinquency notice
was mailed on June 8, 2011, and the case was referred to the U.S. Department of Treasury for
collection on September 29, 2011. Proposed assessment No. 000226284 was delivered on July
21, 2010, and became a final order of the Commission on August 20, 2010. A delinquency
notice was mailed on October 26, 2010, and the case was referred to the U.S. Department of
Treasury for collection on January 28, 2011.
Under Rule 60(c), a Rule 60(b) motion shall be made within a reasonable time, and for
reasons of mistake, inadvertence, or excusable neglect, not more than one year after the
judgment, order, or proceeding was entered or taken. The motions to reopen in Docket Nos.
CENT 2013-356-M, CENT 2013-357-M, CENT 2013-358-M and CENT 2013-359-M were filed
more than one year after becoming final orders. Therefore, these motions are untimely. J S
Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).
Regarding Docket No. CENT 2013-355-M, Amistad asserts that it has recently been told
that the penalties it received were exceedingly harsh for a quarry of its size. The Secretary
opposes the request to reopen, noting that the operator provided no explanation for its failure to
timely contest the proposed assessment.

35 FMSHRC Page 1559

Having reviewed Amistad’s requests and the Secretary’s responses, we conclude that
Amistad has failed to establish good cause for reopening the proposed penalty assessments.
Accordingly, we hereby deny Amistad’s motions to reopen.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

35 FMSHRC Page 1560

Distribution:
Sergio Galindo
Amistad Ready Mix Inc.
1661 Frontera Road
Del Rio, TX 78840
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 1561

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

June 27, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
LIVINGSTON STONE COMPANY, INC.

:
:
:
:
:
:
:

Docket No. LAKE 2012-870-M
A.C. No. 11-00102-279217

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On September 4, 2012, the Commission received from
Livingston Stone Company (“Livingston”) 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

35 FMSHRC Page 1562

MSHA’s records indicate that the proposed assessment was delivered on February 6,
2012, and became a final order of the Commission on March 7, 2012. Livingston’s safety
director asserts that after receiving the citations in December 2011, he discussed with counsel
Livingston’s intent to contest the proposed assessment. After receiving the proposed assessment,
the safety director timely emailed it to counsel along with copies of the citations, photographs,
and Livingston’s defenses. Livingston’s counsel states that she believed that Livingston had
already filed the contest. Counsel did not discuss this assessment with her client until Livingston
received a collection notice from the U.S. Department of Treasury, dated August 15, 2012.
The Secretary opposes the request to reopen and notes that MSHA mailed a delinquency
notice on April 23, 2012, and the operator does not explain why it took four months to request
reopening. The Secretary points out that the contest form Livingston forwarded to counsel was
not properly marked for contest, and that neither the remittance coupon nor the contesting
official information form was filled out. Under the circumstances, the Secretary maintains that
counsel should have contacted her client to confirm the operator’s intent. The Secretary further
notes that the counsel’s office does not appear to have an internal tracking system to monitor and
ensure that contests are timely filed. Moreover, under well-established case law, attributing the
failure to timely contest to the counsel rather than the operator, is not an adequate basis for
reopening.
The Commission has made it clear that where a failure to contest a proposed assessment
results from an inadequate or unreliable internal processing system, the operator has not
established grounds for reopening the assessment. Oak Grove Res., LLC, 33 FMSHRC 103, 104
(Feb. 2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining
Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067
(Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). Moreover, as the
Commission stated in M3 Energy Mining Co., 33 FMSHRC 1741, 1746 (Aug. 2011):
The fact that many of the inadequate and unreliable office
procedures in these cases occurred at counsel’s office rather than
the office of the operators does not affect our analysis. As the
Commission noted in Keokee Mining, LLC, 32 FMSHRC 64, 66
n.1 (Jan. 2010), “[i]n requesting relief from a final order, a client
may be held accountable for the acts and omissions of its
attorney.” Keokee Mining relied on Pioneer Investment Services
Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380, 397 (1993),
where the Supreme Court made clear that when a party’s failure to
meet a deadline was caused by the actions of its counsel, and the
issue is whether the party would be exonerated on the basis of
“excusable neglect,” the party would “be held accountable for the
acts and omissions of [its] chosen counsel.” This is because the
party “‘voluntarily chose this attorney as his representative in the
action, and he cannot now avoid the consequences of the acts or

35 FMSHRC Page 1563

omissions of this freely selected agent.’” Id. (quoting Link v.
Wabash R. Co., 370 U.S. 626, 633-34 (1962)).
(Footnote omitted). In this case, we conclude that the lack of any procedure to confirm that the
required paperwork was timely filed represents an inadequate or unreliable internal processing
system. We note that although the operator implemented new procedures to prevent future
defaults, this failure occurred in its counsel’s office. Counsel should take all steps necessary to
ensure that penalty contests are filed timely.
Having reviewed Livingston’s request and the Secretary’s response, we conclude that
Livingston has failed to establish good cause for reopening the proposed penalty assessment.
Accordingly, we hereby deny Livingston’s motion to reopen.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

35 FMSHRC Page 1564

Distribution:
Diana Schroeher, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corriidor Place, Suite D
Beltsville, MD 20705
dschroeher@gmail.com
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

35 FMSHRC Page 1565

ADMINISTRATIVE LAW JUDGE DECISIONS

35 FMSHRC Page 1566

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, D.C. 20004-1710
Telephone: (202) 434-9958
Fax: (202) 434-9949

June 3, 2013
:
CIVIL PENALTY PROCEEDING:
:
:
Docket No. KENT 2011-1093
:
A.C. No. 15-17497-255229
:
:
:
:
Mine: # 68
:

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

DECISION
Appearances: Alisha I.Wyatt-Bullman, Esq.; Leslie Brody, Esq., U.S. Department of Labor,
Atlanta, Georgia, on behalf of the Secretary
Noelle True, Esq., Rajkovich, Williams, Kilpatrick, & True, Lexington,
Kentucky, on behalf of Leeco, Inc.
Before:

Judge David F. Barbour

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor on behalf of the Mine Safety and Health Administration (MSHA) against Leeco, Inc.
(“Leeco”), pursuant to sections 105(d) and 110 of the Federal Mine Safety and Health Act of
1977.1 30 U.S.C. §§ 815(d), 820. The Secretary alleges that Leeco is liable for two violations of
§ 75.370(a)(1), a mandatory safety standard that requires a mine operator to develop and follow
a ventilation plan that is approved by the MSHA district manager. Once the plan is approved, an
operator must comply with all of its provisions. Wyoming Fuel Company n/k/a Basin Resources,
Inc., 16 FMSHRC 1618, 1624 (Aug. 1994) (citing UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir.
1989); Ziegler v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976); Freeman United Coal Mining Co.,
11 FMSHRC 161, 164 (Feb. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May
1987)). The Secretary proposes the assessment of $107,716.00 for the violations. The parties
presented testimony and documentary evidence at a hearing in Hazard, Kentucky. They also
filed post-hearing briefs. One alleged violation of section 75.370(a)(1), set forth in Order No.
8346197, was settled shortly before the hearing. Details of the settlement are discussed at the
end of this decision. The Secretary asserts that the remaining alleged violation, which is cited in
Order No. 8346316, is correctly characterized as a significant and substantial contribution to a
mine safety hazard ("S&S"), is the result of Leeco's high negligence and unwarrantable failure to
comply with the standard and that the penalty proposed – $47,716.00 – is appropriate.
Hilda L. Solis resigned as Secretary of labor on January 22, 2013. Deputy Secretary
Seth D. Harris is Acting Secretary of Labor.
1

35 FMSHRC Page 1567

STIPULATIONS
Before presenting testimony regarding the contested violation the parties stipulated as
follows:
1.

At all times relevant to this matter, Leeco was the
operator of Mine # 68.

2.

The Respondent’s operation at Mine # 68 involved
[products] which entered commerce or products
which affected commerce.

3.

Respondent admits that Order No. 8346316[, the
order in which the contested violation is alleged,]
was properly issued.

4.

Respondent admits to the fact of the violation in
Order No. 8346316.

5.

Mine # 68 produced 715,374 tons of coal
in 2010.

6.

Leeco terminated the conditions giving rise to the
[settled and contested] orders in a timely,
effective, and good manner.

7.

The proposed penalties for the [settled and contested] orders
will not affect Leeco's ability to continue in business.

8.

The MSHA inspectors' methane detectors and
anemometers, used to obtain methane and air
readings on November 4, 2010 [,] at Leeco's
Mine # 68[,] were properly calibrated.

See Tr. 18-20.
BACKGROUND
Mine # 68 is an underground bituminous coal mine located in Perry County, Kentucky.
On November 4, 2010, MSHA inspectors James Daniels and Gary Oliver were sent to the

35 FMSHRC Page 1568

mine.2 The inspectors’ visit was the result of an anonymous complaint filed with MSHA by a
Leeco miner.3 The complaint alleged “poor ventilation.” Tr. 77. On November 4 the mine was
on a 15-day spot inspection schedule and an approved ventilation plan was in place.4 Tr. 41, 4748; Ex. S-5. The mine also was subject to the provisions of section 104(d)(2) of the Act. 30
U.S.C. §814(d)(2). As a result, any alleged violation found by an inspector to be S&S and
caused by the unwarrantable failure of Leeco to comply was cited in a section 104(d)(2)
withdrawal order. Id.; see Tr. 65. The inspectors’ November 4 investigation resulted in the
issuance of the following order:
ORDER NO.
8346316

DATE
11/4/10

30 CFR §
75.370(a)(1)

The operator is not complying with the provisions of
the methane and dust control portions of the approved
ventilation plan for the 014 MMU. The Joy
Prior to starting with MSHA in 2007, James Daniels graduated from Morehead State
University with a bachelor’s degree in industrial technology. Tr. 36. Daniels minored in mining
technology. Id. After graduation, Daniels worked in the mining industry for 13 years. Tr. 37.
During nine of those years he was a foreman and two of the nine years were spent as a section
foreman at Mine # 68. Tr. 37-38. As a foreman, one of Daniels’ duties was to train miners on
maintaining proper ventilation. Tr. 38. Daniels has been an MSHA inspector for the past five
years. Tr. 39.
2

Gary Oliver started with MSHA in 2006. Prior to that he worked in the mining industry for five
years and at Mine # 68 for approximately two of those years. Tr. 71, 74. He also worked at Blue
Diamond Coal Company’s (“Blue Diamond’s”) Mine # 77 where he received his foreman
papers. Tr. 74, 147. Both Leeco and Blue Diamond are subsidiaries of the same parent
company, James River Coal Company (“James River”). Oliver has been an MSHA inspector for
the past six years. Tr. 70-71, 73.
3

Section 103(g)(1) of the Act provides:
Whenever . . . a miner . . . has reasonable grounds to
believe that a violation of this Act or a mandatory health
or safety standard exists . . . such miner . . . shall have a
right to obtain an immediate inspection by giving notice
to the Secretary or his authorized representative of such
violation or danger.
30 U.S.C. § 813(g)(1).

Pursuant to section 103(I) of the Act, a mine that liberates more than 200,000 cubic feet
of methane during a 24-hour period is subject to one spot inspection every 15 working days. 30
U.S.C. § 823(I).
4

35 FMSHRC Page 1569

continuous miner is observed mining in the No.4
heading without a properly installed line curtain for
methane and dust control. An attempt to take an air
reading with a properly calibrated anemometer
indicated that there was not enough air movement to
turn the blades to obtain an air reading. The currently
approved plan requires a velocity of 6,150 CFM of
air movement behind the line curtain. The installed
curtain was located approximately 25 feet from the
back of the miner and was not installed out into the
last open crosscut to deflect and move air up into
the entry where the miner is cutting and loading.
Additionally dust was suspended in the air so thick
that the lights on the miner and shuttle car were
[barely] visible from approximately 70 feet away.
These conditions expose the miners working in
the 014 MMU to the risk of fatal injuries if a
methane explosion were to occur and to
permanently disabling lung diseases from dust
inhalation. This mine is currently on a 15 day
103(I) spot inspection schedule due to methane
liberation[,] and methane explosions have historically
caused serious injuries and death to miners.
Exposure to respirable dust is the leading cause of
Black Lung and Silicosis disease in coal miners.
The section foreman was observed walking across
the last open crosscut and the amount of dust
suspended in the air would be recognized as a
hazard to miners by the most casual observer and
is a clear indication of problems with the
ventilation controls.
This failure to comply with the ventilation plan
constitutes more than ordinary negligence and is an
unwarrantable failure to comply with a mandatory
health and safety standard.
Ex. S-1.
Prior to entering Mine # 68 on November 4 Oliver reviewed the mine’s records. Tr. 79.
He found that the required pre-shift examinations were being conducted. Id. There were no
recorded hazardous conditions reported by the pre-shift examiners. Id.. Oliver then proceeded

35 FMSHRC Page 1570

underground and traveled to the No. 14 Section. Id. He was accompanied by Ricky Wells.5 Tr.
79-80. The men arrived at the last open crosscut in the No. Four entry of the No.14 section and
Oliver noticed what he thought was an excessive amount of dust in the air coming from the
entry. Tr. 79, 81-82; Ex. S-1. He also saw the section foreman, Bobby Meade, coming from the
No. Five entry to the last open crosscut of the No. Four entry.6 Tr. 83-84. Meade did not
immediately recognize Wells and Meade did not know Oliver. He therefore walked directly up
to the men, saw that one was Wells and introduced himself to Oliver. Wells explained to Meade
why he and Oliver were in the section. Tr. 158, 235, 301.
Oliver then walked toward the face of the No. Four entry where a continuous mining
machine (“continuous miner”) and a shuttle car were operating. Tr. 84-85. As he traveled
toward the face, he noticed what seemed to be an increasingly thick concentration of dust
suspended in the air, some of which he asserted was respirable.7 Tr. 129. Oliver flagged the
operator of the continuous miner who shut down the machine. Tr. 84-86. Oliver then
approached the continuous miner. He noticed that the middle part of the line curtain that was
used to direct air into the entry (the “deflector curtain”) was hanging from the mine roof while
the inby and outby parts of the curtain were lying on the mine floor.8 Tr. 86, 100. Oliver tried to
take an air reading inby the hanging part of the curtain but there was no air flow to turn the
blades of his anemometer. Tr. 86. The suspended dust and his inability to obtain an air reading
were indications to Oliver that there was no ventilation at the face or in the area of the
continuous miner. Tr. 87.
Ricky Wells is currently employed by James River as a mine superintendent. Tr. 22122. However, on November 4, 2010, Wells was the general mine foreman at Mine # 68. Tr. 7980. He had worked for Leeco for 15 years. Tr. 222. For approximately 11 of those years he
worked as a section foreman. At the time of the hearing, Wells had 28 years of experience in
underground coal mining. Tr. 222-23.
5

Bobby Meade, who is a current employee of Excel Mining Co., was employed as a
section foreman at Mine # 68 on November 4, 2010. Tr. 278. Prior to becoming a section
foreman, Meade worked as a roof bolting machine operator for approximately 10 years. Tr. 27980.
7
Coal dust is produced when coal is mined. The coal dust is often mixed with varying
amounts of dust from rock that is interspersed in the coal seam or that lies above or below the
seam. Coal dust presents two hazards: (1) an explosion hazard, and (2) a pneumoconiosis
hazard. Coal dust of a size that can pass through a 20 mesh screen can propagate an explosion
while coal dust that is larger has little, if any, influence on the development of an explosion.
Coal dust that is harmful from a pneumoconiosis standpoint measures 5 microns or less. Am.
Geological Institute, Dictionary of Mining Mineral and Related Terms (“DMMRT”) at 224
(1968). Oliver did not sample the dust to determine its content and size. Tr. 133.
6

The mining terms “inby” and “outby” are used as underground directional points of
reference. In general, “inby” means of or toward the working face and/or the interior of the
mine, and “outby” means away from the working face and/or toward the entrance of the mine.
See DMMRT (1968) at 572,778.
8

35 FMSHRC Page 1571

One of the sections of the mine’s approved plan is titled “Safety Precautions for
Scrubbers and Extended Line Curtains.” Ex. S-5 at 6. Part 3 of the section requires an air flow
of 6,150 cubic feet per minute (“cfm”) on the 014 mechanized mining unit. Tr. 87; Ex. S-5 at 6.
To achieve the required air flow the plan states:
Deflector curtains will be maintained, in all idle
places and places where work is being performed,
to provide air movement. The deflector curtain
will extend to within 40 feet of the face. Curtains
will extend [outby] the corner, into the intersection
a minimum of 4 feet.
Ex. S-5 at 2; see Tr. 178.
In addition, the plan requires that the curtain be maintained within 10 feet of the shuttle
car at all times. Tr. 102; Ex. S-5 at 2.
Meade testified that prior to seeing Oliver and Wells, the last time he was in the No. Four
entry, he saw Tom Hensley, the continuous miner operator, taking a first cut. Tr. 283. Meade
maintained that at that time the curtain was hung within 10 feet of the shuttle car and extended
into the crosscut as required. Tr. 286-87, 289-90. However, when Oliver saw the curtain it was
approximately 25 feet from the shuttle car and part of it was lying by the corner of the crosscut,
not in the crosscut. Tr. 102-103, 179; Ex. S-6. Oliver testified that it was possible the curtain
had once extended four feet into the crosscut as Meade claimed, but Oliver did not think it was
likely. Tr. 179.
Oliver asked Hensley why all but the middle part of the curtain was lying on the mine
floor. Tr. 90-91. Hensley replied that he accidentally tore down the curtain with the trailing
cable of the continuous miner when he was backing up. Tr. 90, 244-45. However, Oliver did not
see the trailing cable lying on top of the downed curtain. Tr. 168, 201. Also, if the curtain had
been pulled down by the trailing cable as Hensley maintained, Oliver believed the curtain would
not have come down at both ends with its middle part still hanging. Tr. 114, 168, 169.
Therefore, in his opinion, the curtain was most likely not properly installed in the first place. Tr.
90.
Wells countered that after Oliver spoke with Hensley, he attempted to rehang the curtain.
Wells stated that he had to pick up the curtain from underneath the cable. Tr. 241, 244-45. Wells
explained that trailing cables frequently became tangled in curtains, and it was the responsibility
of continuous miner operators to rehang the downed curtains. Tr. 273. Meade also asserted it
was possible for a cable to become tangled with a curtain in such a way that the curtain’s outby
and inby ends are torn down. Tr. 303-04, 306.
After inspecting the area where the continuous miner was operating, Oliver had Wells
gather all eight miners who worked on the No. 14 section for a safety meeting. Tr. 115, 277. At
the meeting, Oliver told the miners that running the continuous miner without ventilation was

35 FMSHRC Page 1572

inexcusable and that he did not want a situation where he had to explain to families that miners
died in a coal mine explosion because a curtain was not hung properly. Tr. 115.
Following the meeting, the miners rehung the curtain. Tr. 116. At first, the miners hung
the parts of the curtain lying on the ground, but when the curtain was rehung, it did not direct a
sufficient air volume to meet the requirements of the ventilation plan. Tr. 117. The miners then
added an additional 12-16 feet of curtain to the outby end of the original rehung curtain. Tr. 109.
The augmented curtain achieved the proper air flow. Tr. 108. The fact that a fairly large piece of
curtain had to be added to meet the requirements of the ventilation plan indicated to Oliver that
even if the curtain was hung before mining commenced in the entry, the curtain was not long
enough to extend into the crosscut and direct the air necessary to comply with the ventilation
plan. Tr. 117.
THE VIOLATION
Section 75.370(a)(1) states, “[t]he operator shall develop and follow a ventilation plan
approved by the district manager. The plan shall be designed to control methane and respirable
dust and shall be suitable to the conditions and mining system at the mine.” 30 C.F.R. §
75.370(a)(1). The order alleges that the plan in effect on the day of the inspection required 6,150
cfm of air behind the line curtain and Oliver testified that not only was the curtain down at both
ends, he could detect no air traveling in the entry. Tr. 86-77, 184. The parties stipulated that
Leeco violated section 75.370(a)(1) as charged, and I so find. Tr. 20; Stip. 4; Tr. 20.
Oliver determined that the violation was reasonably likely to cause fatal injuries, that it
was S&S, and that it was due to Leeco’s high negligence and unwarrantable failure to comply
with the cited standard. Ex. S-1.
S&S
An S&S violation is a violation "of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard." 30 U.S.C. § 814(d). A
violation is properly designated S&S, "if, based upon the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement Div., Nat'l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation,
the Secretary must prove: (1) the underlying violation; (2) a discrete safety hazard - that is, a
measure of danger to safety - contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will
be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); see also,
Buck Creek Coal Co., Inc. v. MSHA, 52 F.3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v.
Sec'y of Labor, 861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves "a reasonable
likelihood the hazard contributed to will result in an event in which there is an injury." U.S. Steel

35 FMSHRC Page 1573

Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on
the particular facts surrounding the violation and must be made in the context of continued
normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
The parties agree, and I have found, that the violation existed as charged. Tr. 20; Stip. 4.
infra. The Secretary charges that a total lack of ventilation led to the excessive atmospheric coal
dust noted by Oliver and contributed to the discrete safety hazards of a build up of methane to
explosive levels, a possible methane/coal dust explosion, and to the possibility of miners
contracting pneumoconiosis. Tr. 129-31, 133. The issue of whether the violation was
S&S turns on whether an explosion hazard was established by the Secretary and, if so, whether
the hazard was reasonably likely to cause an injury or injuries of a reasonably serious nature.9
Oliver, an experienced miner and mine inspector, believed that the lack of ventilation
was reasonably likely to result in an explosion. Tr. 129. The Commission has stated that in:
[E]valuating the reasonable likelihood of a
fire, ignition, or explosion, the Commission has
examined whether a 'confluence of factors' was
present based on the particular facts surrounding
the violation. Texasgulf, Inc., 10 FMSHRC 498,
501 (April 1988). Some of the factors include
the extent of accumulations, possible ignition
sources, the presence of methane, and the type
of equipment in the area. Utah Power & Light Co.,
12 FMSHCR 965, 970-71 (May 1990) (“UP&L”);
Texasgulf, 10 FMSHRC at 500-03.
Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). Oliver explained that for an explosion to
occur, oxygen, ignition, and fuel (coal dust, methane, or both) must be present. Tr. 189. I credit
Oliver’s testimony that a significant amount of coal dust was suspended around the continuous
miner and throughout the entry. Tr. 85. Oliver’s description of the dust as being so thick that the
continuous miner’s lights were barely visible from 70 feet is compelling, and Oliver’s extensive
experience in the mining industry gives added credence to his determination that the dust was
“excessive.” Ex. S-1.

As previously noted, Oliver did not sample the dust to determine its nature and content.
His belief that harmful respirable dust was present was based solely on his visual observations. I
agree with Administrative Law Judge Michael Zielinski who held in Leeco, Inc., 27 FMSHRC
39, 56 n.16 (Jan. 2005), that allegations of the presence of respirable dust based solely on visual
observations and without analytical evidence of harmful concentrations and length of exposure
cannot be considered in an S&S analysis.
9

35 FMSHRC Page 1574

Testimony from Wells and Meade indicated that Hensley left a brow standing and that at
the time of the inspection, Hensley was using the continuous miner to remove the brow.10 Tr.
245-46, 248. Leeco contended that the dust Oliver saw suspended in the entry’s atmosphere was
rock dust from the cut brow, not coal dust, and that the suspended dust could not have led to an
explosion. Tr. 190. I reject this contention and find that a significant amount of the suspended
dust was in fact coal dust. Coal was being cut in the No. Four entry on November 4. As Oliver
explained, “[I]t’s a coal mine. As they mine, they have to mine coal.” Tr. 202. It is reasonable
to assume that the large amount of dust came from the ongoing mining at the face, not from
cutting a single brow. In addition, and as I already have noted, Oliver, an inspector with
considerable experience as an inspector and a miner, believed the dust was coal dust. Tr. 70-74.
I take note of the fact that coal dust can be highly explosive in and of itself and that a
continuous miner’s bits can cause sparks when they strike naturally occurring rock in a coal
seam. See Tr. 130. In addition, even though Oliver did not detect methane prior to issuing the
order, he posited that if mining continued, methane could have been suddenly released. Tr. 127,
130-31. This scenario was not unlikely. The mine is gassy and at the time of the inspection it
was liberating at least 200,000 cfm of methane in a 24 hour period. Tr. 41, 75. Ongoing mining
would have released even more methane. Without ventilation, methane would not have been
diluted and the concentration of methane would have increased. Tr. 127. Moreover, when
methane interacts with coal dust, coal dust can lower the explosive range of methane making the
gas even more likely to explode. Tr. 128, 129-30. While there were methane sensors on the
continuous miner to give the continuous miner operator a warning when methane levels reached
1% and to shut down the machine when methane levels reached 1.5-2%, Oliver credibly asserted
that the sensors would not necessarily have prevented an explosion and that there have been
explosions in the past where sensors worked properly. Tr. 131-32.
Oliver also determined that an explosion was reasonably likely to result in fatal or serious
injuries. Tr. 136. There were eight miners working in the No. 14 section at the time the violation
was cited, and Oliver believed that all of them could have been affected. Tr. 135, 137. Given the
devastating potential of an explosion, I find that Oliver correctly determined that eight miners
were reasonably likely to have been severely injured or killed because of the violation.
Based on the amount of coal dust that was in the air, the large amount of methane that
was liberated and the large amount that reasonably could have been expected to be liberated as
mining continued, and based on the fact that as mining continued the continuous miner
represented an ongoing potential ignition source, I find that the lack of compliance with the
approved ventilation plan in the No. Four entry was reasonably likely to result in an explosion
causing fatalities and/or other injuries of a serious nature and that the violation was properly
found to be S&S.
A brow is rock that projects from an entry’s roof or from the top of a rib in an entry.
Tr. 245-46. A brow normally is supported or cut down to prevent it from falling and injuring a
miner or miners.
10

35 FMSHRC Page 1575

GRAVITY
The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the "focus of the seriousness of the violation is not necessarily
on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather
on the effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996). Here, the lack of ventilation due to Leeco’s noncompliance with its approved ventilation
plan could have resulted in an explosion which almost surely would have killed and/or injured
up to eight miners. The violation was very serious.
UNWARRANTABLE FAILURE
In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission
summarized the legal principles applicable to determining whether a violation is the result of an
unwarrantable failure:
The unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C.§ 814(d), and
refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp.,
9 FMSHRC 1997 (Dec. 1987), the Commission
determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence.
Id. at 2001. Unwarrantable failure is characterized
by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of
reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,
194 (Feb. 1991) ("R&P"); see also
Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 136 (7th Cir. 1995) (approving
Commission's unwarrantable failure test). Whether
conduct is "aggravated" in the context of
unwarrantable failure is determined by looking at
all the facts and circumstances of each case to see
if any aggravating factors exist, such as the length
of time that the violation has existed, the extent of
the violative condition, whether the operator has
been placed on notice that greater efforts are
necessary for compliance, the operator's efforts
in abating the violative condition, whether the
violation is obvious or poses a high degree of
danger, and the operator's knowledge of the
existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353

35 FMSHRC Page 1576

(Mar. 2000) ("Consol");
Cyprus Emerald Res. Corp., 20 FMSHRC 790,
813 (Aug. 1998), rev'd on other grounds,
195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co.,
19 FMSHRC 30, 34 (Jan. 1997);
Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(Feb. 1994); Peabody Coal Co.,
14 FMSHRC 1258, 1261 (Aug. 1992);
BethEnergy Mines, Inc., 14 FMSHRC 1232,
1243-44 (Aug. 1992); Quinland Coals, Inc.,
10 FMSHRC 705, 709 (June 1988). All of the
relevant facts and circumstances of each case must
be examined to determine if an actor's conduct is
aggravated, or whether mitigating circumstances exist.
Consol, 22 FMSHRC at 353. Because supervisors
are held to a high standard of care, another important
factor supporting an unwarrantable failure
determination is the involvement of a supervisor in
the violation. REB Enters., Inc., 20 FMSHRC 203,
225 (Mar. 1998).
Lopke Quarries, 23 FMSHRC at 711.
Oliver found that the violation was the result of high negligence and an
unwarrantable failure because of the amount of dust that was present, the failure of Meade to
take corrective measures despite the presence of the dust, the fact that the curtain was not rehung
after Oliver thought it was torn down, and because he believed that the curtain was likely never
installed correctly in the first place. Tr. 137-38.
OBVIOUSNESS
When Oliver and Wells stepped into the last crosscut of the No. Four entry to take the
first set of air readings, Oliver looked up and noticed that there was “a lot of dust in the air.” Tr.
82. While there is always some dust in the air when mining is underway, the dust Oliver saw
caught his attention because the amount seemed much more than normal. Tr. 82, 83. This
signaled to Oliver that the ventilation in the entry was defective. However, when Meade
approached Oliver and Wells, he was coming from the No. Five entry into the last open crosscut
of the No. Four entry. Tr. 83-84; Ex. S-10. Wells stated without contradiction that coming from
this direction, Meade would not have been in, nor seen, an abnormal amount of dust. Tr. 234.
Meade testified that he did not look toward the face of the No. Four entry as he was walking up
to Oliver and Wells, and Oliver did not ask Meade what he observed when walking towards
them. Tr. 165, 300-01. Moreover, at the time he approached the men, Meade was not on notice
that he should look for signs of defective ventilation in the entry. He credibly testified that when
he visited the No. Four entry earlier in the shift, he was “110 percent certain” that the curtain

35 FMSHRC Page 1577

was properly hung and the ventilation “was working properly.” Tr. 290-291. While there was “a
little dust” at the face, it was, he stated, no more than is always present when a continuous miner
cuts coal. Tr. 291. Meade’s testimony was logical and believable, and I conclude that Meade
was not on notice to look for excessive dust when he approached Oliver and Wells. In other
words, I conclude that while the amount of dust signaling the lack of ventilation was visually
obvious, the dust when first seen by Meade did not indicate that he should have been aware of
the violation and should have reacted to it in the short time that Oliver allotted to him. In fact,
all three of the men had to look toward the face in the No. Four entry to see that excessive dust
was present in the area of the continuous miner. Tr. 82, 234, 299-301. Further, all of the men
had to walk toward the area where mining recently occurred to see that the deflection curtain
was down. Tr. 86, 240-41, 301. It was in this area that Oliver confirmed there was no ventilation
in the vicinity of the miner. Therefore, I find that as Meade approached and reached Oliver the
thick dust in the atmosphere and the downed curtain were not so obvious as to alert Meade that
there was a ventilation problem that needed correcting. I also find the evidence does not
establish that the condition was known or should have been known to Meade earlier in the shift.
Degree of Danger
There was excessive dust and no ventilation in the area of the continuous miner. Tr. 8486. Although the record does not support a finding that methane was then present in the No.
Four entry (see e.g. Tr. 127), as stated above, methane was reasonably likely to be released as
mining continued based on the mine's history of liberating large amounts of methane. Tr. 127,
130-31. At the same time, the continuous miner could have caused sparks, an obvious ignition
source, and once the methane ignited, the concentrated coal dust could likely have propagated an
explosion resulting in the death and/or serious injury of up to eight miners. Tr. 132. There is no
gainsaying the fact that the violation posed a high degree of danger, one that required a
heightened level of awareness.
Length of Time
Oliver believed that the lack of required ventilation existed for “[p]robably close to 30
minutes” because he thought the entire cut had been mined while there was a lack of ventilation
and that “it would’ve taken approximately 30 minutes to mine what they had mined.” Tr. 120.
However, Oliver also testified that if Meade had stopped the continuous miner when Meade
came up to Oliver and Wells in the crosscut, Oliver would not have regarded the violation as
caused by Leeco’s unwarrantable failure. Speaking of Meade, Oliver stated:
[O]nce he observed that dust, that indicated
there was a problem with the ventilation.
And he [should have] stopped the miner
the same way I stopped the miner when
I entered that area. . . . [If he had stopped
the miner] [t]hat would’ve been a mitigating
factor and I would’ve considered that
he took . . . corrective action, and it

35 FMSHRC Page 1578

would’ve probably been moderate
negligence.
Tr. 121-22.
When Oliver was asked how much time elapsed between when he thought Meade should
have shut down the miner and when Oliver shut it down, Oliver replied. “[O]ne to two minutes.
From the time that he walked across over to where me and Rick Wells was and we kind of
exchanged hello . . . and I asked him where the miner was cutting, a minute, a minute and a
half.” Tr. 123. Oliver felt that Meade “could have signaled [the continuous miner operator] with
his cap light. He could’ve went over to the entry [and] hollered at him . . . to shut off [the
continuous miner.]” Tr. 123-24. Asked if there was a policy that required a section foreman to
go directly to an MSHA inspector, Oliver replied, “I don’t know that there [is] a policy that you
go immediately to an inspector. I mean, you talk to the inspector and you see what they want
and you assist them, yes there is that.” Tr. 124.
Oliver’s testimony indicates that his finding of unwarrantable failure was heavily
influenced by the fact that Meade did not take any action in the minute or two that it took Meade
to reach and to identify Oliver and Wells. Also factoring into his uwarrantable failure finding
was Oliver’s suspicion that the deflector curtain was not installed properly or, perhaps, was
never hung. Tr. 126-27. In Oliver’s view, Meade should have known that the curtain was either
improperly installed, that it had been torn down, or that it never was hung in the first place. Tr.
127. Although the continuous miner operator maintained that the curtain was properly hung but
was torn down when he backed up, Oliver questioned this. He testified that he asked Hensley
why he had not rehung the curtain. He stated that Hensley did not answer. Tr. 138-39. If the
curtain had in fact been torn down, Oliver believed it had been down for approximately 30
minutes. Tr. 139.
Having considered all of the testimony, I reject Oliver’s rationale that Meade’s failure to
stop the continuous miner before Oliver stopped it was indicative of an unwarrantable failure to
comply with the approved ventilation plan. As noted, Oliver’s testimony gave Meade one to two
minutes to take the action that Oliver thought was required. Tr. 123-24, 155-57. However, the
testimony made clear that Meade was confronted with a situation wherein two people whom he
did not recognize were unexpectedly present on a section for which he was responsible. It was a
natural thing for Meade to want to understand why the people were present. Failure to give
immediate priority in the very short time under consideration to the dust in the entry did not
represent aggravated conduct or more than ordinary negligence. Rather, I find the fact that
Meade first determined who was unexpectedly on the section represented normal conduct by a
responsible supervisor.
I also conclude that the Secretary did not establish that Meade knew or should have
known that the curtain was not hung or was improperly hung. If the Secretary had established
that mining began with the curtain down or mostly down, then Meade either knew or should
have known about the defect because as section foreman he was required to check the section for
compliance with all safety standards prior to mining beginning. The downed or improperly hung

35 FMSHRC Page 1579

curtain would have been a sign that non-compliance with the ventilation plan was likely.
However, the Secretary did not prove that the curtain was down or was improperly hung when
mining began. Oliver suspected that either might have been the case, but an unwarrantable
failure finding cannot be based on a suspicion. In fact, Oliver acknowledged his lack of
certainty. Asked if he thought Meade was aware the curtain was improperly hung, Oliver
replied, “I don’t know that he knew one way or the other.” Tr. 122.
Further, Wells testified that after Hensley had mined a cut in the No. Four entry and
started to clean up on the left side of the entry, the cable was thrown to one side where it caught
and pulled down the deflector curtain. Tr. 245, 246. In the meantime, as he was cleaning up
Hensley noticed a brow and chose not to rehang the curtain before removing the brow with the
continuous miner. Tr. 246, 259-60. This scenario is just as likely to have occurred as the curtain
being improperly hung to start with, and under the “pulled down” scenario there was no showing
by the Secretary that Meade should have known about the curtain’s defective placement. Under
these circumstances, I find that the length of time the violation existed is too speculative to be
part of the basis for an unwarrantable finding.
Extent of the Violation
The extensiveness factor involves consideration of the scope or magnitude of a violation.
Eastern Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010). The lack of required
ventilation existed in a relatively small area. The heavy concentration of suspended dust was
contained mostly in the No. Four entry, at the face and around the continuous miner, with some
dust traveling farther down to the last crosscut. The lack of ventilation was localized, which
means that Meade’s duty of care is judged on the knowledge he had or should have had of the
conditions in the No. 4 entry where the continuous miner was cutting. This is not a situation
where the scope of the violation was so extensive that management officials were apprised of or
should have been apprised of the situation numerous times before the violation was cited.
Operator's Knowledge of the Existence of the Violation
As noted, Oliver believed that Meade should have known about the violation because the
amount of dust should have caught his attention. Tr. 118. Oliver posited that if Meade was a
prudent foreman, it would have only taken him a few seconds to be alerted to a ventilation issue
when he reached the No Four entry. Tr. 118-19. Oliver did not believe that there were any
mitigating circumstances as to why Meade did not shut down the miner very shortly after
entering the entry. Tr. 121. If Meade had immediately shut down the machine, Oliver stated that
he most likely would have issued a 104(a) citation and marked the negligence level as moderate.
Tr. 122. I note, however, that as Mead approached the entry, there was no showing he looked
toward the face and saw the dust, the visual sign of the violation. I have found that Meade acted
as a responsible supervisor and that his failure to take corrective action in the very short time
given to him by Oliver was excusable.
Oliver also believed that the addition of 12-16 feet of curtain needed to abate the
violation suggested that the curtain was insufficient before mining started and that Meade should

35 FMSHRC Page 1580

have known about the lack of ventilation. Tr. 116-17, 120,127. However, prior to Oliver’s
arrival on the section, Meade examined all of the section’s entries and took air readings in each
entry to make sure the ventilation was working properly. Tr. 286-87, 289-90, 292, 295. Nothing
alerted him that there was an actual or potential problem with the ventilation in the No. Four
entry and Meade was a credible witness. Id. It is also highly unlikely that Meade would have
been able to examine all of the other entries in the No. 14 section and return to the No. Four
entry before Oliver arrived. In addition, Oliver acknowledged it was possible that the curtain
had been up and had extended four feet into the No. Four intersection. Tr. 179.
I find the evidence does not establish that Meade had a reason to believe there was a
violation in the No. Four entry and that Leeco had no reason to have, and in fact did not have,
prior knowledge of the violation.
Operator Placed on Notice that Greater Efforts at Compliance are Necessary
At the time of the inspection, Leeco was on a “section 104(d)” sequence. Tr. 42, 257.
Specifically, Mine # 68 received five 104(d) citations and orders for failure to maintain
ventilation between February 2010 and November 4, 2010.11 Exs. S-8-11; Tr. 207, 264-65.
Although Wells stated that to his recollection, the No. 14 section was never issued citations or
orders for violating the ventilation plan (Tr. 232), the citations and orders issued in other areas of
the mine in the nine months before November 4, 2010 should have put Leeco on notice that
greater compliance efforts were necessary to ensure required ventilation at the mine.
Operator's Efforts in Abating the Violation
The focus of the abatement effort factor is on the efforts (if any) that Leeco made prior to
November 4 to prevent violations of its ventilation plan. In general, the factor measures an
operator's response to violative conditions that were known to it or that should have been known
to it. Enlow Fork, 19 FMSHRC at 17. The record reveals that Leeco made efforts to prevent
violations of the approved plan by reminding its miners of the importance of adequate
ventilation. Wells stated that after receiving a citation or order for a ventilation plan violation,
his practice was to conduct a safety meeting with miners to discuss the violation and the proper
safety procedures to take to avoid future similar citations or orders. Tr. 257, 259. The miners
were also trained and required to take air readings if they thought ventilation had ceased. Tr.
320-21. According to Wells, continuous miner operators knew that when they knocked down a
ventilation curtain they should immediately rehang it. Tr. 260. Testifying about Hensley in
particular, Wells stated that Hensley had been trained and knew the requirements of the
ventilation plan, including the need to rehang torn down curtains prior to continuing mining. Tr.
257-58. Specifically, in this instance, Hensley was “written up” and “sent home” for failing to
rehang the curtain. Tr. 261-62. Moreover, in regard to action taken in other areas of the mine to
prevent ventilation violations, Wells testified that Leeco fired the foreman of the No. 10 Section
after two orders were issued for ventilation violations on February 10, 2010. Tr. 267. Further,
In addition, two 104(d) orders were issued for ventilation violations in other sections
of the mine on November 4, 2010.
11

35 FMSHRC Page 1581

Wells testified that he personally tried to prevent violations by always visiting at least one of the
three sections for which he was responsible during his shift, and as mentioned above, the section
bosses, including Meade, examined all of the entries on their sections. Tr. 270.
Wells was a credible witness, and I find that much of his testimony mitigates Leeco’s
level of negligence. While Leeco’s post-citation discipline of Hensley is not relevant to the issue
of Leeco’s aggravated conduct (Enlow Fork, 19 FMSHRC at 17) and while the required
examinations of its section bosses are not the kind of “extra effort” that ameliorates
unwarrantable failure, the company’s additional safety meetings following previously cited
ventilation violations qualify as efforts to address the problem over and above what was
required, as does its disciplining of those responsible for prior ventilation violations.12
Conclusion and Negligence Finding
As is almost always the case when considering an unwarrantable failure allegation, all of
the determinative factors do not point in one direction. While the violation was very serious, the
violation was localized and Meade’s lack of knowledge of the violation until very shortly before
it was cited and his failure to take action in the very short time afforded him by Oliver was
excusable. In addition, although they were unsuccessful in this instance, Leeco’s ongoing efforts
to prevent the kind of violation that occurred were laudatory. After considering and weighing all
of the factors, I conclude that a finding of unwarrantable failure is inappropriate. In reaching
this conclusion I have especially noted Oliver’s testimony that he most likely would have issued
a 104(a) citation with a finding of moderate negligence if Meade had shut down the continuous
miner down in the less than 2 minutes before Oliver acted. Tr. 123-24, 156-57. It is clear from
the testimony that Oliver did not account for the impact on Meade of seeing two persons he did
not recognize on the No. 14 section. Meade gave priority to finding out who the strangers were
and what they were doing on the section. His immediate failure to act with regard to the
continuous miner was understandable and the reason why he failed to act immediately
substantially undercuts Oliver’s unwarrantable finding. For all of these reasons I find that the
violation was not caused by Respondent's unwarrantable failure to comply with its ventilation
plan and that the company’s negligence was moderate.

The Secretary asserted that Leeco’s actions were not sufficient. Sec'y Br. at 18-19; Tr.
46. For example, Hensley told Wells that he did not hang the curtain back up because he “did
not figure it would hurt nothing,” an indication, according to the Secretary, that Leeco’s training
was not effective. Tr. 261. In addition, Leeco did not change the way it trained its miners after
the issuance of the five 104(d) citations and orders. Tr. 264-65, 268-69; Exs. S-8-11. While all
of this may be true, it is clear that Leeco tried to heighten its miners’ awareness of the
importance of compliance with the mine’s ventilation requirements. The effectiveness of its
efforts was ongoing in nature and cannot be judged by what may have been an aberrational
violation on November 4 or by prior violations about which the record reveals almost nothing.
12

35 FMSHRC Page 1582

OTHER CIVIL PENALTY CRITERIA
History of Previous Violations
Mine # 68’s history of violations is reflected in a report from MSHA's database. Ex. S13. The report lists violations issued at the mine and indicates that 755 violations became final
between May 2009 and November 2010. I accept the figures in the report as accurate and find
that the exhibit reflects a large history.
Size of the Operator
The parties did not agree on a characterization of the size of the operator, however they
stipulated that in 2010 the mine produced 715,373 tons of coal (Tr. 19; Stip. 5), and on the form
reflecting his calculation of the proposed penalty (MSHA Form 1000-179), the Secretary
assigned 13 out of a possible 15 points for the size of the operator. I find that Leeco is a large
operator.
Ability to Continue in Business
The parties stipulated that the proposed penalties will not affect Leeco’s ability to
continue in business, and I find that the same is true for the penalties assessed below. Tr. 20; Stip
7.
Good Faith Abatement
The parties stipulated that Leeco terminated the conditions giving rise to violation in a
timely, effective, and good manner. Tr. 19, Stip. 6.
CIVIL PENALTY ASSESSMENTS
ORDER NO.
8346316

DATE
11/4/10

30 CFR §
PROPOSED PENALTY
75.370(a)(1) $47,716.00

ASSESSMENT
$20,000.00

I have found that the violation was very serious and was caused by Leeco’s moderate
negligence. In all, eight miners were reasonably likely to suffer death and/or severe injuries as a
result of the violation. Given these findings and Leeco’s large size and large history of previous
violations, I find that a civil penalty of $20,000.00 is appropriate.

35 FMSHRC Page 1583

SETTLED VIOLATION
As stated at the outset, the parties settled the contested violation of section 75.370(a)(1)
set forth in Order No. 8346197. Tr. 14, 329-30. Counsels assert that the purposes of the Act will
be furthered if the company agrees it violated the standard as alleged and pays a penalty of
$50,000 for the violation. Tr. 329-30. I concurred and approved the settlement. Tr. 330.
ORDER NO.
8346197

DATE
11/4/10

30 CFR §
PROPOSED PENALTY
75.370(a)(1) $60,000.00

ASSESSMENT
$50,000.00

ORDER
It is ORDERED that Order No. 8346316 be MODIFIED from an order issued pursuant
to section 104(d)(2) of the Act (30 U.S.C. § 814(d)(2)) to a citation issued pursuant to section
104(a) of the Act (30 U.S.C. § 814(a)) and that the inspector’s negligence finding be changed
from “high” to “moderate.” It is also ORDERED that within 30 days of the date of this
decision, Leeco SHALL PAY a civil penalty in the total amount of $70,000.00.13 Upon
payment of the penalty, this matter IS DISMISSED.

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

Distribution (Certified Mail):
Alisha Wyatt, Esq., Leslie Brody, Esq., U.S. Department of Labor, Office of the Solicitor, 61
Forsyth Street, SW, Room 7T10, Atlanta, GA 30303
Noelle True, Esq., Rajkovich, Williams, Kilpatrick, & True, 3151 Beaumont Centre Circle, Suite
375, Lexington, KY 40513
/db
Payment shall be sent to: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
13

35 FMSHRC Page 1584

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

June 4, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CLINTWOOD ELKHORN MINING
COMPANY, LLC,
Respondent.

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CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2011-546
A.C. No. 15-19208-241954-01 YGX
Docket No. KENT 2011-547
A.C. No. 15-19208-241954-02 YGX
Mine: Hubble No. 6

DECISION
Appearances: For the Secretary: J. Malia Lawson, Esq., Nashville, TN
For the Respondent: Melanie J. Kilpatrick, Esq., Lexington, KY
Before:

Judge Tureck

These cases are before me on two Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration
(“MSHA”), against Clintwood Elkhorn Mining Company, Inc. (“Respondent”), pursuant to
Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§815 and
820 (“ Mine Act”). Both were issued on March 8, 2011. One was docketed as KENT 2011-546.
It alleges two violations of the Mine Act addressed in an order and a citation, and assessed a total
penalty of $5654. The second was docketed as KENT 2011-547. It concerns a single citation
and assessed a penalty of $162. Respondent contends that the order and both citations should be
vacated.
On motion by the parties, the two cases were consolidated for hearing and decision. A
formal hearing was held in Pikeville, Kentucky on March 13 and 14, 2012. At the hearing,
Secretary’s Exhibits 1-9, 14 and 16-25, and Respondent’s Exhibits 2, 3, 5, 6, 11 and 13 were
admitted into evidence,1 and each party provided testamentary evidence. Both parties then filed
post-hearing briefs, the last of which was received on June 6, 2012. Then on June 25th,

Citations to the record of this proceeding will be abbreviated as follows: SX –
Secretary’s Exhibit; RX - Respondent’s Exhibit; TR - Hearing Transcript.
1

35 FMSHRC Page 1585

Respondent filed both a response brief and a motion to strike footnote 5 of the Secretary’s posthearing brief. The Secretary responded to the motion to strike on July 13, 2012.
Respondent’s motion to strike footnote 5 of the Secretary’s brief is granted. That
footnote contains a discussion of four exhibits which were excluded from evidence at the
hearing. Accordingly, they are not part of the record, and this footnote is clearly improper. As I
stated in another case where the Secretary cited excluded evidence in a post-hearing brief, “it
seems like a back-handed attempt to get around evidentiary rulings that did not go the
Secretary’s way. The proper action for counsel to have taken would have been to file a posthearing motion for reconsideration of the evidentiary rulings made at the hearing.” Premier
Elkhorn Coal Co., KENT 2011-827, slip op. at 2 (Jan. 22, 2013).
Findings of Fact and Conclusions of Law
Hubble No. 6 Mine (“Hubble 6") is a drift coal mine located in Pike County, Kentucky. It
is a five-day, single shift mine employing about 12 miners on the shift. TR 280, 292. It is
operated by Hubble Mining Company (“Hubble”) under contract with the Respondent, which
leases the mineral rights for the mine from the mineral rights owner, Big Sandy Mineral
Company. (TR 278-79, 358). In addition to leasing the mineral rights and contracting with
Hubble to operate the mine, Respondent is an independent contractor providing engineering
services to Hubble. John George Blackburn is the Manager of Contract Mines for Respondent.
TR 317.
On November 2, 2010, MSHA mine inspector Craig Plumley conducted an inspection of
the Hubble No. 6 mine. He was accompanied by the Acting Assistant District Manager, David
Isom, and two ventilation specialists, Kenneth Fletcher and Barry Johnson. TR 24. When they
arrived at the mine, they met with Harold Akers, the owner of Hubble. Then Plumley and Isom
reviewed the wall map of Hubble 6 prepared as required by 30 C.F.R. §75.1200 (hereinafter
“1200 Map”). SX 7; TR 27. It was dated October 22, 2010, and showed the active works at the
mine. TR 26-27. Hubble 6 is identified on the map as Big Sandy Mineral Lease 63017. Adjacent
to Hubble 6, and part of the same mine seam, is the Blackhawk Mine, indicated on the map as Big
Sandy Mineral. Mining in the Blackhawk Mine ended in 1996. TR 27-28.
Plumley and Isom saw that borehole drilling had been done in Hubble 6. TR 25. In
discussions with Akers and Blackburn, Plumley found out that there had been water seeping into
Hubble 6 from the direction of the Blackhawk Mine. TR 31-32; see also TR 332-33. Blackburn
testified that although they had the final maps for the Blackhawk Mine when preparing the maps
for Hubble 6, they wanted to make sure that the hydrostatic barrier2 was in place, and the
workings at the Blackhawk Mine were not closer to Hubble 6 than they believed. TR 332-33.
There was no requirement that Clintwood Elkhorn do the borehole drilling (TR 31, 333); it only
would have been required if mining was going to be undertaken within the 200-foot test drill line.
A hydrostatic barrier is a block of coal large enough to prevent a blowout of water from
one mine into another. TR 334.
2

35 FMSHRC Page 1586

See §75.388(a).3 Respondent hired Target Drilling to do the borehole drilling. TR 333. Target
drilled three horizontal boreholes. The first, Borehole #1, did not encounter any voids. TR 336.
The second, Borehole #2, intercepted a void on September 30, 2010, after drilling over 1900 feet.
TR 347. After the void was intercepted, a third borehole, Borehole #3, was drilled. The drilling
of Borehole #3 started on or about October 4, 2010, and was completed before the 1200 Map was
prepared. But Target had not yet provided Respondent with a certified map, so Borehole #3 was
described as “proposed” on the 1200 Map. TR 352. Borehole #3 did not encounter a void. TR
347.
Citation 8226822
At the conclusion of his inspection, Plumley issued Citation 8226822. SX 2. This citation
alleges that respondent violated 30 C.F.R. §75.1200. This standard requires mine operators to
have “an accurate and up-to-date map of [the] mine” which shows, inter alia, “[a]djacent mine
workings within 1,000 feet[.]” The citation alleges that “[t]he operator failed to provide an
accurate mine map depicting the abandoned adjacent mine works, identified as Blackhawk
Mining Co.” The basis of the Secretary’s position is that maps of the Blackhawk Mine, which
Respondent relied on in preparing the 1200 Map, did not show the full extent of the mining
conducted at the Blackhawk Mine. Much of the dispute centers around whether mine maps
showing the extent of mine workings with open ends () rather than closed ends (§) can signify
that no further mining was done beyond the open ends. Apparently, there are no regulations under
the Mine Act governing how to signify the extent of mine workings on 1200 maps.4 So the
Secretary presented its witnesses, who testified that open ended workings signify that additional
mining may have occurred; and Respondent presented its witnesses, who testified that openended workings may indicate the full extent of the mining undertaken.
However, this dispute does not have to be resolved in the abstract. For the mining
engineer who certified the final Blackhawk Mine map (RX 3), Phillip Willis, testified at the
hearing. Willis currently is Respondent’s Chief Engineer. TR 234. But on February 28, 1996, he
was employed by the Wellmore Division of United Coal Company, for whom he started working
in 1987. TR 236. Wellmore Coal operated the Blackhawk Mine, and the Engineering
Department of Wellmore was responsible for creating the maps of the Blackhawk Mine. TR 237.
While working for Wellmore’s Engineering Department, Willis became familiar with how the
company created mine maps, and ultimately he became the engineer responsible for certifying the
Blackhawk Mine’s maps. TR 238.
Willis testified that no mining was done at Blackhawk Mine subsequent to February 28,
1996, and that Respondent’s Exhibit 3, the final map dated February 28, 1996, shows the full
extent of the of the workings at that mine. TR 239-41. This map contains both closed end and
There is no contention that Respondent planned to mine within the 200-foot test drill
line depicted on the 1200 Map.
3

4

Neither party cited any regulations in support of their respective positions on this issue.

35 FMSHRC Page 1587

open-ended entries. Willis testified that both mean the same thing - that it is the furthest extent of
the mine. TR 251. Willis then stated that Secretary’s Exhibit 7, the 1200 Map, accurately depicts
the Northeastern boundary of the Blackhawk Mine (TR 260-61), the part of the Blackhawk Mine
that is at issue.
Willis’s testimony was unequivocal and highly credible. The Secretary has not suggested
any reason for questioning Willis’s credibility other than that he now works for the Respondent.
See Secretary’s Post-Hearing Brief and Secretary’s Reply to Clintwood Elkhorn’s Post-Hearing
Brief. That is an unreasonable basis to discredit a witness’s testimony. Further, Plumley agreed
with the statement that “when an engineer submits the final map of a mine, that engineer has the
duty to show the full extent of the mining in that mine.” TR 129. Willis was not working for the
Respondent when he prepared the final Blackhawk Mine map. Fletcher echoed this testimony,
noting that “the map nomemclature that I’m familiar with in my work in the engineering, would .
. . say if it was a final map, that meant that it was final, there would be nothing else.” TR 180.
Plumley further admitted that he never used the open-ended concept to indicate that the extent of
an entry was unknown. TR 133. Moreover, Plumley admitted that MSHA inspectors would have
reviewed Blackhawk’s mine maps; and he agreed that “if MSHA inspectors saw that the
Blackhawk Mine was mining an entry further than what it was depicting on the mine map and the
ventilation map, you would certainly expect those MSHA inspectors to have issued citations and
addressed that issue with Blackhawk Mine,” and “Blackhawk Mine, to abate those citations,
would have corrected their map . . . .” TR 133. The testimony of Plumley and Fletcher supports
Willis’s testimony that the February 28, 1996 Blackhawk Mine map, as a final map, would have
depicted the complete mine works.
Accordingly, I find that the 1200 Map accurately shows the full extent of the Blawkhawk
Mine, and that the void intercepted by Borehole #2 was not the workings of the Blackhawk Mine.
Therefore, Citation 8226822 must be vacated.
Order 8226824
This order alleges a violation of §75.388(a), which requires that “[b]oreholes shall be
drilled in each advancing working place when the working place approaches - . . . (3) To within
200 feet of any mine workings of an adjacent mine located in the same coalbed unless the mine
workings have been preshift examined.” This order, as was the case with Citation 8226822, is
based on the contention that the 1200 Map is inaccurate. The Secretary contends that once the
void was intercepted, Respondent could not be certain of the location of the Blackhawk Mine’s
workings, and therefore the 200-foot test-drill line on the 1200 Map was no longer accurate. But
since I have found that the 1200 Map was accurate, this order has no factual basis. Accordingly,
it is vacated.
Citation 8247677
This citation alleges a violation of §75.372(a)(1), which requires operators to submit upto-date mine ventilation maps to MSHA every 12 months. Once again, the alleged violation is

35 FMSHRC Page 1588

based on the Secretary’s contention that the Blackhawk Mine was depicted inaccurately on the
Hubble 6 mine maps. Since I have found that the mine maps accurately depict the Blackhawk
Mine, this citation is vacated.
ORDER
It is ORDERED that Citation 8226822, Order 8226824, and Citation 8247677 are
vacated, and these cases are dismissed.
/s/ Jeffrey Tureck
Jeffrey Tureck
Administrative Law Judge
Distribution:
J. Malia Lawson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North,
Suite 420, Nashville, TN 37219
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, KY 40513

35 FMSHRC Page 1589

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

June 4, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

JUSTICE ENERGY COMPANY, INC.
Respondent.

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CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2011-220
A.C. No. 46-06578-000234420
Docket No. WEVA 2011-629
A.C. No. 46-06578-000240531
Mine: Red Fox Surface Mine

DECISION
Appearances:
For the Secretary: Douglas L. Sanders, Esq., Denver, CO
For the Respondent: James F. Bowman, Midway, WV
Before: Judge Tureck
This case is before me on two Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration
(“MSHA”), against Justice Energy Company, Inc. (“Respondent”), pursuant to Sections 105 and
110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§815 and 820 (“ Mine Act”).
The first, filed on April 27, 2011, was docketed as WEVA 2011-220. It alleges a single violation
of the Mine Act and assessed a penalty of $176. The second, filed on April 28, 2011, was
docketed as WEVA 2011-629. It alleges eight violations of the Mine Act and assessed $10,659
in penalties. Respondent has accepted three of the citations in Docket No. WEVA 2011-629 and
has agreed to pay the assessed penalties.1 Respondent contends that five of the remaining
citations should be vacated, and the penalty be reduced due to a lower level of negligence in the
remaining citation.

Respondent has accepted Citation 8103637 ($100); Citation 8103635 ($540); and
Citation 8103636 ($100).
1

35 FMSHRC Page 1590

A formal hearing was held in Beckley, West Virginia on October 23, 2012. At the
hearing, Government Exhibits 1-13, and Respondent’s Exhibits 1-3, were admitted into
evidence,2 and each party provided testamentary evidence. A list of stipulations was submitted
as Joint Exhibit 1. Both parties then filed post-hearing briefs, the last of which was received on
February 12, 2013.
Findings of Fact and Conclusions of Law
Respondent operates the Red Fox surface coal mine (“the mine”) located in McDowell
County, West Virginia. It is a mountaintop removal mine. TR1 109. The parties stipulated that
Respondent is a large size mine operator under the Mine Act. JX 1. Respondent is a subsidiary
of Mechel Bluestone. TR 207.
Either very late on October 13, 2010 or just after midnight on October 14, 2010, MSHA
inspector Joseph Jones was conducting an inspection of the mine. Jones had started at MSHA in
2008, and received his AR card in 2009. Prior to working at MSHA, he had worked in the
mining industry, both underground and at surface mines, for 16 years. TR 21-23. At 12:25 a.m.
on October 14, Jones issued two citations to Respondent, Nos. 8110204 and 8110205,
concerning the same truck, a 773B Cat haul truck,3 which was owned and operated by an
independent contractor, Appalachian Leasing. Appalachian Leasing also was cited for these
violations. TR 57, 61. The truck was hauling refuse from a preparation plant to the dump at the
mine. GX 5, 7; TR 25. Citation 8110204 listed nine separate defects regarding the haul truck
which were alleged to have been in violation of 30 C.F.R. §77.404(a).4 That section of the
regulations requires mobile equipment to be maintained in safe operating condition and to be
removed from service immediately if in unsafe condition. He also issued Citation 8110205
regarding the haul truck for violating §77.1104, which states that “[c]ombustible materials,
grease lubricants, paints, or flammable liquids shall not be allowed to accumulate where they can
create a fire hazard.” For both of these violations the citations state that injury was reasonably
likely and could reasonably be expected to be fatal; they resulted from high negligence; and
were significant and substantial (“S&S”). Respondent was assessed a penalty of $3,996 for each
of these violations. Respondent contests the determination of high negligence in Citation
8110204. For Citation 8110205, Respondent contests the occurrence of the violation and the
finding of high negligence. Respondent also contends that the violation in Citation 8110205 is
duplicative of Citation 8110204.
Citations to the record of this proceeding will be abbreviated as follows: GX
–Government Exhibit; RX – Respondent Exhibit; TR - Hearing Transcript.
2

At my request, subsequent to the hearing the Secretary submitted a photograph of a CAT
773B haul truck. I have marked this photograph as ALJX 1. Without objection, it is admitted
into evidence.
3

All of the regulations cited in this decision are contained in Title 30 of the Code of
Federal Regulations.
4

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The other citations still in contention were issued by MSHA Inspector Jeff Presley.
Presley began working for MSHA in 2007, and received his AR card in 2008. Prior to working
for MSHA, he had worked in the mining industry in underground mines since the early 1990's.
TR 88-89. He testified that although he did not work in surface mines, all underground mines
have surface areas and use large equipment aboveground, so he was familiar with what goes on
at surface mines even prior to his MSHA training. Further, a large part of his MSHA training
occurred in surface mines. TR 89-90.
Presley conducted three inspections of the mine which resulted in the issuance of
citations. On August 27, 2010, he issued Citation 8117589 for not using adequate dust control
measures in violation of §77.1607(i). GX 9. Presley testified that he observed two very large
rock trucks driving “head on” towards each other on the main haul road, and when the trucks
approached each other “the cloud of dust just engulfed both of them.” TR 92. However, both
trucks stopped without colliding. TR 92. Injury from this violation was found to be reasonably
likely and could reasonably be expected to be lost workdays or restricted duty; negligence was
low; two people would be affected; and the violation was S&S. Respondent was assessed a
penalty of $176 for this violation. Respondent contests the occurrence of this violation.
Presley also inspected the mine on October 12 and November 2, 2010. The citations
issued on October 12th have been resolved and are no longer at issue. He issued three citations
on November 2nd.. Citation 8069361 alleges a violation of §77.1605(l), which states that
“[b]erms, bumper blocks, safety hooks, or similar means shall be provided to prevent overtravel
and overturning at dumping locations.” The citation states that “[t]he berms at the dump site
above the main haul road are not being maintained to mid axle of the equipment being used.”
Presley testified that he was at the dump site and observed a rock haul truck backing up to the
berm. He stated that the berm was well below mid-axle height. He estimated that the berm was
only about 36 inches high whereas mid axle on the truck was about 68 or 72 inches. TR 102-03.
He believed that the berm was not close to being high enough to prevent one of these huge haul
trucks from backing over it and overturning. TR 106. The citation lists injury to be reasonably
likely and could reasonably be expected to be lost workdays or restricted duty. Presley
explained that the drop off at the dump site was not great and he “don’t believe the distance was
great enough that the truck’s going to roll enough times or be such a severe accident that it
would permanently disable or kill somebody.” TR 107. Further, he found Respondent’s
negligence to be moderate and the violation to be S&S. A penalty of $362 was assessed for this
violation. Respondent contests the occurrence of the violation.
Citation 8069362 (GX 12) alleges a violation of §77.1608(a), which requires dumping
locations and haulage roads to be kept “reasonably free of water, debris and spillage.” Presley
observed a rock in the middle third of the main haul road (TR1 110-11) which he has described a
being “1.5 times the size of a basketball” (id.), “beach ball size roughly. The size of a car tire”
(TR111). He noted that the rest of the road was in good condition, and this was the only rock on
it which could pose a hazard to the trucks. TR 112. Presley testified that the haul road where the
rock was located was a “high traffic area.” TR 117. The huge haul trucks, other heavy mine
equipment, small trucks and personal vehicles use it. TR 111, 116-17. He believes that a haul

35 FMSHRC Page 1592

truck’s tire could hit the rock, causing the truck to overturn or the rock to be propelled and hit
another vehicle. TR 116. The citation states that injury was reasonably likely and could
reasonably be expected to be lost workdays or restricted duty. Negligence was alleged to be
moderate, and the violation was S&S. A penalty of $362 was assessed for this violation.
Respondent contests the occurrence of the violation.
Citation 8069363 alleges a violation of §77.404(a). It states that Respondent’s fuel truck
was not being maintained in safe operating condition, alleging five defects. GX 13. The citation
states that injury was reasonably likely and could reasonably be expected to be lost workdays or
restricted duty. Negligence was listed as high, and the violation was found to be S&S. A
penalty of $1,203 was assessed for this violation. Respondent contests both the occurrence of
the violation and the finding of high negligence.
Discussion
Citation 8110204
Inspector Jones found that the 773B Caterpillar haul truck had the following safety
defects:
1. The ball stud that connects the left steering jack to the bell crank has excessive slack.
2. The left rear tires have 35 psi; they should have 85 psi.
3. The keeper on the upper pen for the passenger side bed lift jack has a bolt missing and
the pen is backing out.
4. The door stop is broken and allows the door to open too far, exposing the driver to a
fall hazard.
5. No signal light or marker lights are working.
6. The battery box is busted on the bottom and sagging from the weight of the batteries.
7. Excessive oil leaks under the bed inside the frame and on the motor are contributing to
accumulations of combustible materials.
8. The emergency steering is not working.
9. The access step on the passenger side of the machine is broken off.
Respondent concedes that these conditions existed and were reasonably likely to cause
injury. Resp’s Br. at 3. However, Respondent contends that it was not negligent. The truck was
owned and operated by another company, Appalachian Leasing. It was Appalachian Leasing’s
responsibility to conduct pre-shift inspections and make any necessary repairs. TR 59, 234.
Gilbert Witt, the safety manager at the mine, testified that Respondent has a program that
contract trucking companies must follow to be allowed to operate at the mine. TR 235; see RX
3. The contractors are required, inter alia, to provide all inspection and repair documentation
each month for trucks to be used at the mine. TR 236; RX 3. When the proper documentation is
provided, a truck is given a sticker which permits it to operate at the mine for the next month.
Respondent also conducts spot checks of contractors’ trucks. TR 237. Further, the Cat truck at
issue was used primarily at Black Bear Processing Plant, which was not owned by Bluestone

35 FMSHRC Page 1593

Mechel. TR 233-34. The truck came to the Red Fox mine only to haul refuse to the dump. TR
25, 233. Witt testified that the truck was at the processing plant 80% of the time, and spent the
remaining 20% hauling the plant’s refuse to the Red Fox mine’s dump. TR 233.
Nevertheless, the Secretary contends that Respondent was highly negligent in permitting
this truck to operate at the mine. Jones contends that Respondent should have known the truck
was in violation of the safety standards. TR 70. He notes that he never wrote so many violations
on a single truck. TR 40. Further, he stated that one of the truck’s left rear tires was visibly low,
and signal lights and marker lights were not working. TR 26-28. Since the inspection was being
conducted around midnight, that lights on the truck were not working should have been
noticeable to Respondent. In addition, the missing step on the passenger side of the truck and
the low tire pressure may have been visible, even at night, depending on the lighting at the mine.
But most of the truck’s defects were not visible without examining the truck
A citation regarding the truck’s condition alleging high negligence was also issued to
Appalachian Leasing. TR 59-60. It is hard to see how, based on the facts in this case, that
Respondent’s negligence could equal that of the company which owned and operated the truck
and was directly responsible for examining and maintaining it. Accordingly, although I
otherwise uphold the citation, I find Respondent’s negligence to have been moderate, not high.
Finally, considering all of the factors set out in §110(i) of the Mine Act, I find that a penalty of
$2500 is appropriate.
Citation 8110205
Respondent contends that the Secretary failed to prove a violation of §77.1104. The
citation states that “combustible materials, coal dust mixed with motor oil and hydraulic oil, have
been allowed to accumulate where they could create a fire hazard.” RX 7. Respondent argues
that the materials which may have accumulated on the motor of the Cat haul truck did not create
a fire hazard. Jones testified that what most concerned him was the accumulation of oil on both
sides of the engine. TR 44-46. He also found that hydraulic oil had leaked down the frame of
the truck. If the oil on the engine caught fire, the leaked hydraulic oil could cause the fire to
spread throughout the truck. TR 45. But Jones testified that he does not know the ignition point
of the accumulated oils, nor does he know the surface temperature of the sides of the engine. TR
72-73. He also did not know how much coal dust had accumulated on the engine (TR 71), nor
did the Secretary present any evidence of the ignition point of coal dust. Apparently, the
Secretary wants me to accept as a matter of faith the totally illogical contention that a truck’s
engine oil will catch fire at the temperature at which a truck’s engine operates.
Under these conditions, there is no basis to find that the accumulations of oil and coal
dust on the sides of the engine were combustible at the temperatures at which the truck operated.
Therefore, there is no evidence that they created a fire hazard. Further, Respondent presented
uncontradicted evidence that the ignition points of the oils which allegedly accumulated on the
engine were substantially higher than the temperature of the outside of the engine. See TR 23844; RX 1.

35 FMSHRC Page 1594

Therefore, Citation 8110205 is vacated. Since I am vacating this citation for the reasons
stated above, I will not address Respondent’s other contentions regarding this citation.
Citation 8117589
Section 77.1607(i) states that “[d]ust control measures shall be taken where dust
significantly reduces visibility of equipment operators.” Respondent alleges that it took
adequate dust control measures in that the four and a half miles of haul roads are watered
continuously on each shift by a full-time employee whose sole job it is to operate the water
truck. TR 212-14. Presley did not dispute this; in fact, he agrees that Respondent “kept pretty
good water on the roads most of the time.” TR 99. This explains why he found only low
negligence. Id. But Presley stated that the section of the haul road where he observed the two
trucks raising a cloud of dust was a particularly dry section of the road because it was near an
intersection and was heavily traveled, and it needed additional watering. TR 95-97.
Although Respondent disagrees with Presley’s description of the incident, Presley was
the only eyewitness to it to testify at the hearing, and I credit his observation that the road was
extremely dusty where the two trucks were approaching each other.5 Presley testified that he
was sitting about 100 to 150 feet from the haul road and slightly above it when he saw the two
haul trucks approaching each other head on from opposite directions. When they got close to
each other, all he could see from his vantage point was the rear foot or two of each truck. TR 9192. However, Presley’s testimony that the trucks were approaching each other “head on” is not
convincing. Doubtless, this conclusion was influenced by his belief that the haul road “wasn’t a
whole lot wider than two rock trucks passing”, and each rock truck was 24 feet wide. TR 94.
Although he did not measure the width of the haul road, he estimated that when two rock trucks
were passing each other, there was only five feet of space between them. Id. But subsequently,
he testified that the road was about 75 feet wide (TR 158); and Gilbert Witt, who as Mechel
Bluestone’s safety director should know, testified that the haul road at the point it was being
observed by Presley was 100 feet wide (TR 211), which is greater than the width of four rock
trucks. There would have been no reason for the trucks to approach each other head on when
the road was that wide. Moreover, Presley testified that he could clearly see the trucks’ drivers
in their cabs until their vehicles almost reached each other (TR 94), meaning that each driver
would have been able to see the other truck while the trucks were approaching each other. So
unless one or both of the drivers were asleep or suddenly incapacitated, it is hard to believe the
trucks would have been approaching each other head on. Further, Presley testified that the dust
cloud around the trucks dissipated in a few seconds. TR 156.

I find Respondent’s attempt to discredit Presley due to the vacation of citations he has
issued unconvincing. For one thing, citations can be vacated for reasons having nothing to do
with the validity of an inspector’s determinations. Moreover, even if other citations issued by
Presley have been vacated due to MSHA’s disagreement with his findings, that does not mean
that all of his inspections were faulty.
5

35 FMSHRC Page 1595

Accordingly, I find that Respondent’s negligence was low, as the Secretary alleged, and
injury due to the violation was unlikely.
The only remaining issue regarding this citation is whether the violation was significant
and substantial (“S&S”). 30 U.S.C. § 814(d)(1) provides:
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a
violation of any mandatory health or safety standard, and if he
also finds that, while the conditions created by such violation do
not cause imminent danger, such violation is of a nature as could
significantly and substantially contribute to the cause and effect
of a coal or other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation given to
the operator under this [Act].
The Commission and several courts of appeals have agreed that four
conditions must be met to find that a violation is “significant and
substantial”:
[T]he 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. Secretary of
Labor v. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984); see
also, Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99,
103 (5th Cir.1988); Consolidation Coal Co. v. Federal Mine
Safety and Health Review Comm'n, 824 F.2d 1071, 1075
(D.C.Cir.1987).
Since I have found that an injury was unlikely to result from the violation, I conclude that
the violation was not S&S.
Finally, I find that a penalty of $100 is appropriate for this violation.
Citation 8069361
Section 77.2(d) defines “berm” as “a pile or mound of material capable of
restraining a vehicle.” Presley testified that the berm at Respondent’s dump site was only
about 36 inches high, too low to restrain the huge rock trucks which used it. TR 102-03.

35 FMSHRC Page 1596

He added that “a [CAT] 793 rock truck wouldn’t even feel it. He’d back plumb through
it.” TR 106. Although Presley did not measure the height of the berm, he testified that he
knows from experience how high 36 inches is in relation to his body. TR 104.
Regardless, he stated that in order to be effective, the berm would have to reach at least
mid-axle height, which on a CAT 793 rock truck would be about 68 to 72 inches high (TR
102; see GX 11, at 2), and the berm at the dump site “was significantly inadequate. It was
pretty obvious.” TR 104. Because he believed the violation was obvious, he found
Respondent’s negligence to be moderate. TR 108-09. He also found that injury to the
driver could reasonably be expected to be lost workdays or restricted duty rather than
anything more severe because the dump site was not significantly elevated and if a truck
went over the edge he did not believe “the truck’s going to roll enough times or be such a
severe accident that it would permanent disable or kill somebody.” TR 107.
Respondent’s defense to this citation consists of two prongs. First, Respondent
contends that Presley’s testimony on this issue is inconsistent; but to the extent that he was
inconsistent the inconsistencies relate to irrelevant facts. Respondent has not even argued
that the berm at the dump site was higher than 36 inches. Second, Respondent contends
that the operator of the bulldozer which was working at the dump site would spot the rock
trucks to assure they did not drive through the berm. But the standard does not allow for
spotting as a means of preventing vehicles from overtraveling and overturning at dump
sites; the standard requires a physical barrier or restraint.
Therefore, I conclude that Respondent violated §77.1605(l). Moreover,
Respondent has not challenged the inspector’s determinations that an injury was
reasonably likely and would cause lost workdays or restricted duty; that Respondent was
moderately negligent; and that the violation was S&S; and I concur with all these
determinations. Finally, the Secretary assessed a penalty of $362 for this violation, which
I find appropriate.
Citation 8069362
This citation is based on the presence of a single large rock in the road. GX 12;
TR 112. The Secretary contends that “in allowing the rock to sit in the middle of the
active, main haul road, Respondent violated the cited standard.” Sec’y’s Br. at 25. But
the standard only requires that haulage roads be kept “reasonably free” of debris and
spillage. Both Presley and Witt testified that rocks on the haul roads are a common
occurrence at surface mines. TR 111-12, 224. Rocks often fall off haul trucks. TR 118,
222-24. Moreover, the haul roads are made of rock, as are the berms and embankments.
TR 117. Accordingly, it would not be unreasonable for a large rock to be in the road, and
the mere presence of one in the road would not necessarily equate with a violation of a
standard requiring roads to be kept “reasonably free” of debris. Presley did not see how
the rock came to be in the road or how long it had been there, but assumed it fell off a rock
truck. TR 119-21. Consistent with Presley’s surmise, Witt testified that the rock had
fallen off a truck as the truck was turning. TR 220. He added that the driver reported that

35 FMSHRC Page 1597

the rock had fallen onto the road, and a rubber-tired dozer was on the way to remove it
when the citation was issued. TR 220-21. Although Presley disputes that anyone reported
the rock in the road over the CB radio (TR 180), he admits the violation was abated by a
rubber-tired dozer moving the rock. TR 182.
Based on this evidence, I conclude that no violation of §77.1608(a) occurred. By
requiring that the roads be kept “reasonably free” of debris, the standard accepts that
perfection would be unreasonable to expect under the circumstances. The presence of a
single large rock on a surface mine haul road which was removed promptly after it was
discovered to be there is consistent with the road being kept “reasonably free” of debris.
It should be stressed that Respondent did not receive a citation for a violation of
§77.1607(aa), which requires that “trucks shall be trimmed properly when they have been
loaded higher than the confines of their cargo space.” Citation 8069362 should not be
permitted to serve as a backhanded means to establish a violation of that standard because
a large rock was found in the roadway. In any event, no evidence was presented that the
rock in question fell from an improperly loaded truck. TR 119-20. Accordingly, how the
rock came to be in the roadway is not relevant. What is relevant is that other than the
single large rock at issue, Presley conceded that the haul road was in good condition (TR
112); and the rock was removed from the roadway as soon as practicable.
Therefore, Citation 8069362 is vacated.
Citation 8069363
The Secretary alleges that Respondent’s fuel truck was not being maintained in
safe condition, in violation of 77.404(a), and it was required by that standard to have been
removed from service immediately, because:
The drive shaft for the fueling pump is bent and vibrating against
the frame of the battery box[;] the straps holding both fuel tanks are
loose[;] the hinges for the hood are loose and hood [sic] is broken to
the point it is very hard to open[;] the switch for the air on the
drivers [sic] seat does not work[;] and there is 1/4" of slack in the
steering jack on the off side of the machine.
Apparently, none of these alleged defects specifically violate any safety standards. Rather,
the Secretary is relying on Presley’s opinion that these factors affected the safe operation
of the fuel truck to prove his case.
Presley admitted that the driver’s seat can be adjusted manually, and there is no
requirement that trucks have an air-adjustable seat (TR 194). This is not a safety issue.
In regard to the hood of the fuel truck, Presley’s safety concern was that it could
bounce or break loose. TR 125. But both Presley and Witt testified, as was alleged in the

35 FMSHRC Page 1598

citation, that the hood was very heavy and hard to open. TR 126, 229, 232. Presley failed
to explain why a truck’s hood which was very heavy and often required two me to open it
would suddenly open by itself and possibly fall off the truck. The evidence fails to prove
that the fuel truck was not maintained in safe operating condition because the hood was
hard to open.
Next, Presley admitted that he received no training from MSHA or mining
equipment manufacturers regarding the wear on steering jacks (TR 138-40). Further,
Presley did not measure the slack in the steering jack. He determined that the steering
jack had one-quarter inch of slack just by looking at it. (TR 128). Presley’s testimony
that without measuring, “you can determine a quarter inch. Anybody, you know, can
determine a quarter inch” (TR 129), is ludicrous. Accordingly, I reject Presley’s opinion
regarding this contention. It is unprofessional and lacking in credibility.
In regard to the straps holding the fuel tanks, there was relatively little testimony.
The tanks sit on a bracing or shelf. TR 193, 227. Presley testified that he could see the
straps were loose and he could move them with his hands. TR 123-25. He inferred that
this condition could cause the fuel tanks to fall off the truck. Witt testified that only one
of the two fuel tanks was operational; the other was sealed shut because it had a hole in it.
TR 227. The only function the sealed fuel tank served was as a step for the driver to get in
the cab. Nevertheless, Witt did not dispute that the straps around both fuel tanks were
loose or that the fuel tanks could break off. TR 227-28. A fuel tank falling off a moving
truck, whether the tank is full or empty, presents an obvious hazard to other vehicles and
pedestrians, and possibly to the fuel truck itself.
Finally, the Secretary contends that the drive shaft to the fueling pump was bent
and was hitting the frame of the battery box. The Secretary argues that this creates a
safety hazard because the metal-on-metal contact could cause a spark which could ignite
the fuel or fumes given off by the battery. TR 123-24. The Secretary also argues that the
contact could cause the battery box to become loose, causing the battery to fall off the
truck. TR 124. Witt testified that the drive shaft had only a gradual bend (TR 226), in
contrast to Presley’s testimony that there was an obvious bend in the in the drive shaft.
TR 123. Witt also testified that the drive shaft was in a metal enclosure, and Presley
agreed that it would have to be guarded. TR 188, 226. When Presley was asked “[s]o if
the drive shaft’s guarded, then how is it rubbing against the battery box?”, his answer was
equivocal. TR 188. I find that the Secretary has failed to prove that the drive shift
presented a safety hazard.
The only alleged safety problem regarding the fuel truck which the Secretary has
proven was the loose straps on the fuel tanks. Nevertheless, since Witt testified that the
fuel tanks could fall off, this single deficiency is sufficient to prove that the fuel truck was
not being maintained in a safe operating condition, a violation of §77.404(a). But the
Secretary has not proven that it is reasonably likely a fuel tank would fall off the truck.

35 FMSHRC Page 1599

The fuel tanks sit on a platform or shelf, and obviously are connected to the truck itself in
order for the fuel to reach the engine. It would appear that the role of the straps is to keep
the tanks from moving around on the shelves or platforms. Although loose, the straps
were still intact, and there is no evidence that they were failing to hold the tanks in place
or that the tanks were in imminent danger of falling off. Therefore, I find that injury from
this violation was unlikely. Since injury was unlikely, the violation cannot be S&S.
Finally, since the straps were visibly loose, I find that negligence was moderate.
The Secretary assessed a penalty of $1,203 for the alleged violation in this citation.
However, only one of the five alleged deficiencies regarding the fuel truck was proven;
negligence has been reduced from high to moderate; injury has been found to be unlikely;
and the violation is not S&S. Under these conditions, I find that a penalty of $100 is
reasonable.
In sum, penalties totaling $3,800 are assessed for the violations which have been
proven or were unopposed.
ORDER
It is ORDERED that:
Citation 8103635 is unchanged, with an assessed penalty of $540.
Citation 8103636 is unchanged, with an assessed penalty of $100.
Citation 8103637 is unchanged, with an assessed penalty of $100.
Citation 8110204 is modified to reduce negligence from “high” to “moderate”, and
the assessed penalty is reduced to $2,500.
Citation 8110205 is vacated.
Citation 8117589 is modified from injury being “reasonably likely” to “unlikely”,
and the violation is changed from S&S to non-S&S. The assessed penalty is reduced from
$176 to $100.
Citation 8069361 is unchanged, with an assessed penalty of $362.
Citation 8069362 is vacated.
Citation 8069363 is modified from injury being “reasonably likely” to “unlikely”,
negligence reduced from “high” to “moderate”, and the violation from S&S to non-S&S.
The assessed penalty is reduced from $1,203 to $100.
It is further Ordered that Respondent pay a penalty of $3,802 within 30 days of the
date of this order.

/s/ Jeffrey Tureck
Jeffrey Tureck
Administrative Law Judge

35 FMSHRC Page 1600

Distribution:
Douglas L. Sanders, Esq., U.S. Department of Labor, Office of the Solicitor, 1999
Broadway, Suite 800, Denver, CO 80202
James F. Bowman, P.O. Box 99, Midway, WV 25878

35 FMSHRC Page 1601

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
FACSIMILE: (412) 928-8689

June 4, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

RAW COAL MINING COMPANY, INC.
Respondent

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CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2011-858
A.C. No. 46-06265-241821-01
Docket No. WEVA 2011-2051
A.C. No. 46-06265-255704-01
Docket No. WEVA 2011-409
A.C. No. 46-06265-235736

Mine: Sewell Mine B

DECISION
Appearances: Cheryl Carroll, Esq. & Aleksandr Felstiner, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, VA, for Petitioner;
James Bowman, Midway, WV, for Respondent.
Before:

Judge Steele

This case is before me on petitions for assessment of civil penalties filed by the Secretary
of Labor, (“Secretary” or “Petitioner”) acting through the Mine Safety and Health
Administration, (“MSHA”) against Raw Coal Mining Company, (“Raw Coal” or “Respondent”)
at the Sewell Mine B (“The Mine”), pursuant to Sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815, 820 (the “Mine Act” or “Act”). These dockets
involve four citations and two orders issued pursuant to the Act with assessed penalties totaling
$69,740. The parties presented testimony and documentary evidence at the hearing held in
South Charleston, WV, on September 25, 2012.

35 FMSHRC Page 1602

Common Facts and Law
The parties agreed to the following stipulations at the hearing:1
1)

The mine is a “mine” as that term is defined in section 802(h).

2)

The product of the mine entered commerce within the meaning and scope of
section 4 of the Mine Act, 30 U.S.C., Section 803.

3)

The citations/orders at issue in this matter were issued on the date stated therein
and were issued by a duly authorized representative of the Department of Labor,
MSHA.

4)

None of the exhibits that the parties intend to offer into evidence and that were
exchanged prior to hearing will be subject to objection as to authenticity.

5)

This proceeding is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its designated administrative law judges
pursuant to Section 105 and 113 of the Federal Mine Safety and Health Act of
1977(“the Act”)

6)

Raw Coal Mining Company, Inc. is the owner of Sewell Mine B.

7)

Raw Coal Mining Company, Inc. was an operator as defined by Section 3(d) of
the Act at the coal mine at which the citations and orders at issue in this
proceeding were issued.

8)

Raw Coal Mining Company, Inc. is considered a large mine operator and Sewell
Mine B is considered a large mine for purposes of 30 U.S.C. 820(i).

9)

The products of the mine at which the citations and orders at issue in the
proceeding were issued entered commerce or the operation or products thereof
affected commerce within the meaning and scope of Section 4 of the Act.

10)

Operations of Raw Coal Mining Company, Inc. at the coal or other mine at
which the citation and orders at issue in this proceeding were issued are subject
to the jurisdiction of the Act.

11)

The maximum penalty which can be assessed for these violations pursuant to 30
U.S.C. 820(i) will not affect the ability of Raw Coal Mining Company, Inc. to
remain in business.

12)

The individual or individuals whose signatures appear in block 22 of the
citations and orders that are issued in this proceeding were each acting in their
official capacity and as an authorized representative for the Secretary of Labor
when each citation and order was issued.

1

The numbered paragraphs correspond to those in the Secretary’s Pre-Hearing Report.

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13)

True copies of each of the citations and orders that are at issue in this
proceeding, along with any and all modifications and abatements, were served on
Raw Coal Mining Company, Inc. or its agents as required by the Act.

14)

The citations contained in Exhibit A attached to the Secretary’s Prehearing
Report are authentic copies of the citations and orders that are at issue in this
proceeding, including any and all modifications or abatements.

15)

Exhibit B attached to the Secretary’s Prehearing Report accurately sets forth the
total number of assessed violations for the 24 months preceding the month of the
referenced citations and orders. Such history of violations may be used to
calculate penalty assessment amounts for the citations at issue.

16)

The information contained in Exhibit A attached to the Secretary’s Petition for
Assessment of Civil Penalty regarding the mine tonnage of Raw Coal Mining
Company, Inc. accurately reflects tonnage production at Sewell Mine B.

17)

Each citation and order at issue in this proceeding may be admitted into evidence
without objection, although Respondent may dispute specific allegations
contained with the citation or order.

18)

Citation No. 8110734 should be affirmed as it was issued and the proposed
penalty should be affirmed.

Sec. Post-Hearing Brief, 2-4; Tr. 6.
Applicable legal principles
All four citations and two orders discussed below have been designated as Significant
and Substantial (S&S). S&S is described in section 104(d)(1) of the Act as a violation “of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S
“if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
As is well recognized, in order to establish the S&S nature of a violation, the Secretary
must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin Power Co.,
Inc. v, Sec’y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of most controversies regarding
S&S findings. The element is established only if the Secretary proves “a reasonable likelihood
the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining

35 FMSHRC Page 1604

Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the
particular facts surrounding the violation and must be made in the context of continued normal
mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining
Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). The Commission has provided additional
guidance: “We have emphasized that, in accordance with the language of section 104(d)(1), it is
the contribution of a violation to the cause and effect of a hazard that must be significant and
substantial.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
Further, “The Secretary need not prove a reasonable likelihood that the violation itself will
cause injury.” and “the absence of an injury-producing event when a cited practice has occurred
does not preclude a determination of S&S” Cumberland Coal Resources, LP, 33 FMSHRC 2357,
2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257,
1280-81 (Oct. 2010); Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou
Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). The Commission and courts have
observed that the opinion of an experienced MSHA inspector that a violation is S&S is entitled to
substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck
Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995).
The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the “focus of the seriousness of the violation is not necessarily
on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather
on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996) emphasis added. By definition, negligence is:
conduct, either by commission or omission, which falls below a standard of care
established under the Mine Act to protect miners against the risks of harm. Under
the Mine Act, an operator is held to a high standard of care. A mine operator is
required to be on the alert for conditions and practices in the mine that affect the
safety or health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices. The failure to exercise a high standard of care
constitutes negligence.
30 C.F.R. §100.3(d). The categories and definitions of the negligence criterion are as follows:
No negligence is where the operator exercised diligence and could not have
known of the violative condition or practice;
Low negligence is where the operator knew or should have known of the
violative condition or practice, but there are considerable mitigating
circumstances;
Moderate negligence is where the operator knew or should have known of the
violative condition or practice, but there are mitigating circumstances;
High negligence is where the operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances; and

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Reckless disregard is where the operator displayed conduct which exhibits the
absence of the slightest degree of care.
30 C.F.R. §100.3(d).
One of the citations and two of the orders were designated as unwarrantable failure.
The UWF terminology is taken from section 104(d)(1) of the Act, which establishes more severe
sanctions for any violation that is caused by “an unwarrantable failure of [an] operator to comply
with…mandatory health or safety standards.” 30 U.S.C. § 814(d)(1).
The term “unwarrantable failure” is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,”
“indifference,” or the “serious lack of reasonable care.” Id. at 2004; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189,193-94 (Feb. 1991). Aggravating factors include the length of time
that the violation has existed, the extent of the violative condition, whether the operator has been
placed on notice that greater efforts were necessary for compliance, the operator’s efforts in
abating the violative condition, whether the violation was obvious or posed a high degree of
danger and the operator’s knowledge of the existence of the violation. See Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23
FMSHRC 588, 593 (June 2001). All of the relevant facts and circumstances of each case must be
examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances
exist. Consol, 22 FMSHRC at 353.
The provisions of the Mine Act cited are as follows:
§104(d)(1). If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation of any
mandatory health or safety standard, and if he also finds that, while the
conditions created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall include such
finding in any citation given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within 90 days after the
issuance of such citation, an authorized representative of the Secretary finds
another violation of any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator to cause all
persons in the area affected by such violation, except those persons referred to in
subsection (c) to be withdrawn from, and to be prohibited from entering, such

35 FMSHRC Page 1606

area until an authorized representative of the Secretary determines that such
violation has been abated.
(2) If a withdrawal order with respect to any area in a coal or other mine has
been issued pursuant to paragraph (1), a withdrawal order shall promptly be
issued by an authorized representative of the Secretary who finds upon any
subsequent inspection the existence in such mine of violations similar to those
that resulted in the issuance of the withdrawal order under paragraph (1) until
such time as an inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses no similar violations, the
provisions of paragraph (1) shall again be applicable to that mine.
30 U.S.C. §814(d).
104(a). If, upon inspection or investigation, the Secretary or his authorized
representative believes that an operator of a coal or other mine subject to this Act
has violated this Act, or any mandatory health or safety standard, rule, order, or
regulation promulgated pursuant to this Act, he shall, with reasonable
promptness, issue a citation to the operator. Each citation shall be in writing and
shall describe with particularity the nature of the violation, including a reference
to the provision of the Act, standard, rule, regulation, or order alleged to have
been violated. In addition, the citation shall fix a reasonable time for the
abatement of the violation. The requirement for the issuance of a citation with
reasonable promptness shall not be a jurisdictional prerequisite to the
enforcement of any provision of this Act.
30 U.S.C. § 814(a).
Findings and Conclusions
1) Testimony of Eddie Bailey:
a. Background and Experience
Eddie Bailey has been an inspector with MSHA for five and a half years, and currently
serves as the ventilation supervisor for District 12. Tr. 17. Prior to that, he was a ventilation
supervisor in District 4 for one year. Tr. 17. Before becoming an inspector, Bailey worked as a
miner for Pinnacle Mining Company in Pineville, West Virginia, for two and a half years. Tr.
17-18. During that time, he worked as a long wall production supervisor and a long wall outby
supervisor. Tr. 18. As an outby production supervisor for one year, Bailey was in charge of all
outby head gate maintenance, including the long wall belt. Tr. 18. In this capacity, he was
responsible for belt maintenance, which included cleaning, dusting, and changing out rollers and
structures. Tr. 18. He has a bachelor’s degree in mining engineering and an associate’s degree in
electrical engineering technology from Bluefield State College. Tr. 17. Bailey was not a
certified foreman, so he never conducted pre-shift or on-shift examinations. Tr. 86-87.

35 FMSHRC Page 1607

b. Sewell Mine B
There are four belts in the Sewell Mine B. Tr. 20. The No. 1 belt is a short belt that is
approximately 12 cross-cuts long. Tr. 20. After a 90-degree turn, the 2 and 3 belts are in line. Tr.
20. Then, after a left-turn, the 4 belt was installed. Tr. 20. In addition to the belts, there are
tracks in the entry as well. Tr. 20. Man-buses (or mantrips) travel on the track haulageway,
which also serves as an escapeway. Tr. 20.
Miners work three shifts at the Sewell Mine B. Tr. 20. The day shift starts at 8:00 am;
the evening shift starts at 4:00 pm; and the owl (or “hoot owl”) shift starts at midnight. Tr. 20-21.
The mine only produces coal during the day and evening shift, while the owl shift serves as a
maintenance shift. Tr. 21. Bailey did not know if the belts were run on the owl shift. Tr. 21.
On September 8, 2010, Bailey was inspecting the Sewell Mine B. Tr. 18. He arrived at
the mine at 7:00 am, during the owl shift when the mine was not producing coal. Tr. 19. Bailey
contacted Superintendent Randy Campbell to inform him that he was starting the E01 inspection.
Tr. 19. Bailey then reviewed the pre-shift and on-shift examination books and the map, held a
safety talk with the entire day shift, and proceeded underground. Tr. 19.
c. Citation No. 8114320
Bailey issued Citation No. 8114320 for the violation on the No. 1 belt. Tr. 23. Bailey
traveled underground at approximately 8:40 am by foot inby the double doors, which are located
at the drift, in order to get on a mantrip to travel inside the mine. Tr. 21. The belt was running,
but Bailey was not sure if coal was being produced. Tr. 24. He was accompanied by an hourly
employee, whose name he could not remember. Tr. 23. Bailey testified that after going through
the double doors, but before he got to the first two crosscuts, he noticed a violation on the No. 1
belt. Tr. 22, 23. Bailey saw a large amount of coal under the belt, so he inspected further. Tr. 24.
He walked the entire belt, looking at the coal accumulations and rollers. Tr. 24. He noticed that
seven rollers were stuck or frozen,2 so he put his hand on the outside of the roller in order to
determine the reason why they were stuck. Tr. 24, 26-27. Bailey defined a roller that is stuck or
frozen as one that is touching the belt and not rolling when it should be. Tr. 27.
Bailey went out to tell Campbell about the violation, and Campbell shut the belts down.
Tr. 22, 24-25. Campbell began performing measurements and found that 31 rollers were
touching coal, 24 of which were turning in coal, and seven of which were stuck. Tr. 24-25.
Bailey testified that six of the rollers that he touched were warm or hot, even though the mine’s
ambient temperature was approximately 60 degrees, and he remembers that at least some of
these were frozen rollers. Tr. 25, 30, 122. A frozen roller cannot cause heat from the bearing,
but only from the belt rubbing the metal roller. Tr. 122. Bailey estimated that these rollers were
Throughout all the witness’s testimonies, the terms “stuck” and “frozen” are used
interchangeably.
2

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approximately 100 degrees. Tr. 123. The ignition temperature of coal varies, but Bailey
estimated that the coal in the mine would likely ignite at between 600-700 degrees, but also said
it could be as high as 1,000 degrees. Tr. 123.
Bailey testified that the No. 1 belt is approximately 12 crosscuts long, making it
approximately 850 feet long. Tr. 25. The belt is located on the right hand side as one enters the
mine, with the track on the left. Tr. 25. The belt is held up by belt stands, which has one long
bottom roller that traverses the width of the belt, and a top roller that is made up of three rollers
holding up the top belt. Tr. 25-26.
The rollers cited in the citation were all bottom rollers. Tr. 26. On cross-examination,
Bailey testified that there were no stuck top rollers in any of the belts that he examined. Tr. 116117. Bottom rollers wear out faster than top rollers, because they get more water and coal on
them. Tr. 117. He did not consider the lack of stuck top rollers as a mitigating circumstance. Tr.
117. Furthermore, bottom rollers in high impact areas that hold the belt up are likely to
deteriorate faster than normal rollers in a flat belt. Tr. 117. An example of a high impact area is
the crown of the slope of a belt that travels uphill and turns downhill. Tr. 118. In the high impact
area, the rollers carry more of the load, resulting in more pressure on the bearings. Tr. 118.
Bailey did not witness any coal on the belts that came out over the ball of the rail. Tr. 118-119.
He determined that the rollers were stuck by viewing that they were not knocking the
coal down and breaking it up, as turning rollers do when they are moving. Tr. 27. At the time, he
did not see what caused the rollers to become stuck. Tr. 27. However, after, a company
representative told Bailey that coal was removed and the rollers turned, he interpreted that to
mean that it was likely that accumulations were causing the rollers to freeze. Tr. 27. Bailey was
told by the operator that there were no bad bearings, flat rollers, or rollers that were worn
through so that the peripheries of the rollers were gone. Tr. 124-125. Bailey admitted that since
the No. 1 belt was not operating on the midnight shift, it was possible that water and coal fines
could have caused the rollers to seize between shifts. Tr. 125.
Bailey observed accumulations of coal beneath the frozen rollers, the top layer of which
was dry and touching the rollers. Tr. 27-28. He described the belt as being very close to the
ground, with the coal being four to 16 inches deep. Tr. 26. In most places, the coal was built up
to the belt. Tr. 26. The coal was layered, with the bottom portions being wet and the top portions
close to the belt being dry. Tr. 26. Bailey believed that the frozen rollers rendered the belt
unsafe to operate because they constituted a frictional heating hazard. Tr. 28. When the belt
continuously runs atop frozen rollers, the rollers create friction by rubbing along the belt rather
than turning with it. Tr. 28. Furthermore, coal is an abrasive substance that increases the
friction. Tr. 28. Bailey testified that the frozen rollers can generate enough heat to cause an
ignition of the coal they are touching. Tr. 30.
In the day shift pre-shift examination, the examiner would not be able to determine
whether the rollers were frozen if the belt was not moving. Tr. 125-126. However, Bailey stated
that they should have seen the coal accumulations that were causing the rollers to freeze. Tr.

35 FMSHRC Page 1609

125-126. An operator is not required to run the belt during a pre-shift examination, but it is
required to look for frozen rollers because they constitute a hazard. Tr. 159. In order to find
frozen rollers, it would be easiest to run the belt. Tr. 159. Similarly, accumulations of
combustible materials, such as coal, should be recorded as a hazard in a pre-shift examination.
Tr. 159-160.
Bailey asserted that Section 360 requires a pre-shift examination of the belt, because
miners would be traveling the entry. Tr. 126. Bailey did not believe that the fact that the belt
was not running during the midnight shift mitigated the operator’s negligence because the
extensiveness of the condition indicated that previous exams had also been deficient. Tr. 127.
He also stated that if all the coal had been wet, then perhaps that could have been a mitigating
circumstance. Tr. 128. However, in this instance, only the coal on the floor was wet. Tr. 128.
Bailey stated that a roller turns in coal when the coal has built up to the level where it is
touching the roller but the roller is not frozen. Tr. 29. The coal was dry that was surrounding the
rollers turning in the coal. Tr. 29. Bailey explained that this was because the spillage off the belt
is dry and most of the water was ground water. Tr. 29. Furthermore, the belt dries the top layer
of coal during its process of heating and cooling. Tr. 29.
Bailey testified that the 24 rollers that were turning in the accumulation rendered the belt
unsafe because they also increased the frictional heating on the coal. Tr. 29-30. With continued
operations, these rollers had an increased probability that they will similarly freeze. Tr. 29-30.
Bailey testified that a reasonably prudent mine operator would recognize the conditions he
witnessed and would have taken immediate corrective action. Tr. 30.
The belt had been running for approximately 45 minutes when Bailey cited them. Tr. 3031. There was not much pressure on the belts yet because there was little coal produced this
early in the shift. Tr. 31. Under normal mining operations, Bailey estimated that the belt would
be run for approximately 16 hours per day. Tr. 31. Bailey testified that he would expect
additional heat to be generated the longer the belt ran. Tr. 31. Wet and damp coal accumulations
also pose a hazard because in a heating event the coal dries out. Tr. 31-32. Additionally, in
winter months there is less water in the mine, so coal dries quicker. Tr. 32.
Bailey considered this information in determining that the violation was S&S. Tr. 31. He
testified that if left unabated, the conditions he witnessed would result in a frictional heating
event on the belt, igniting the coal fuel, and causing a fire in the belt entry. Tr. 32. He further
testified that a fire or ignition was reasonably likely to cause serious injury to miners. Tr. 32. At
the time Bailey issued the citation there were 12 miners working inby on the section. Tr. 32-33.
This created a danger, because in order to escape these miners would have to travel by the belt,
which is an alternate escapeway with a lifeline. Tr. 33. It is also a normal haul road, so that
people traveling the road could be exposed to hazards. Tr. 34. There is a further danger in that if
a fire rages out of control and damages the adjacent intake stopping line, it would short-circuit
the air, potentially pushing belt air to the face or cause smoke to enter the intake. Tr. 33. It was

35 FMSHRC Page 1610

for these reasons that Bailey designated everyone inby as exposed. Tr. 33. These miners would
be exposed to smoke inhalation and potential burns. Tr. 34.
Bailey testified on cross-examination that this condition could have led to lost workdays
for 12 miners even though there were emergency evacuation plans, directional lifelines,
additional SCSRs, a refuse chamber, and other plans to ensure safety. Tr. 128-129. This was
because that entry was used for travel as well as an alternate escapeway. Tr. 128. Bailey testified
that when a disaster occurs, one cannot always assume that all technologies and plans will be
followed, and cited the Sago and Upper Big Branch mine disasters as examples. Tr. 129.
The air was traveling outby, and anyone on the working section could travel all the way
down to the No. 1 belt without any difficulty. Tr. 130. If they were to run into smoke, then they
should cross the belt and enter the intake escapeway. Tr. 130. The man doors would be
approximately 300 feet away, and if one were somewhere in between the man doors, it would be
approximately 150 feet to get out of the entry. Tr. 130. Bailey stated that because the mine is
low and wet, crossing the No. 1 belt would be difficult. Tr. 130-131.
Bailey designated the citation as high negligence resulting from the operator’s
unwarrantable failure to comply with the standard. Tr. 34. Upon receiving the citation,
Campbell did not supply Bailey with any mitigating circumstances. Tr. 34-35. Bailey described
the conditions that he observed as extensive because it was a relatively short belt and had 31
rollers turning in coal. Tr. 35. He described it as so “excessive and extensive” that he observed
the rollers turning in coal even though he was not inspecting the belts at the time that he noticed
them. Tr. 35.
Bailey testified that company employees must have been aware of the issues with the
belt, including the owl shift foreman, the evening shift foreman, and two day shift foremen. Tr.
35-36. Furthermore, a pre-shift examiner would have also passed by the No. 1 belt. Tr. 36.
When one rides the man-bus down the track, the No. 1 belt is a distance of six inches to three
feet. Tr. 36.
Bailey estimated that this condition existed for at least two days and likely over a week.
Tr. 36-37. Bailey based these estimates on his experiences as a coal miner and inspector,
wherein he has been in over 20 different coal mines in the county in question. Tr. 37. It was
highly unlikely that the conditions Bailey witnessed could have been produced in the 45 minutes
that the belt had been running that morning. Tr. 37-38.

35 FMSHRC Page 1611

The violation was abated by sending nine miners for four hours to shovel and remove the
accumulations. Tr. 38-39. The manpower required to clean up a belt that was 12 cross-cuts long
was consistent with Bailey’s estimate that the accumulations existed for at least several days. Tr.
39.
There were three previous citations issued at the Sewell Mine B for accumulations. Tr.
39. The first citation was issued by Bailey 10 months prior to the hearing. Tr. 40. The second
citation was issued by Bailey nine months prior to the hearing. Tr. 40. The most recent citation
was issued by Rodney Lusk six and a half months prior to the hearing. Tr. 39-40. Bailey
confirmed in the mine data retrieval system that these citations were final orders. Tr. 40. Two of
the three citations were designated as S&S, and Bailey testified that these citations should have
put the operator on notice that greater efforts were needed to clean and maintain the No. 1 belts.
Tr. 41.
Bailey cited § 75.1725 in Citation No. 8114320 for the seven frozen rollers, but he could
have also cited § 75.400 for the coal. Tr. 119-121. He consolidated these violations so as not to
“double dip” or duplicate citations. Tr. 120-121. Bailey testified that he mentioned the 31 rollers
because they contributed to negligence and S&S. Tr. 121. The operator was not cited for coal
accumulations, however the presence of coal factors into whether the belt is safe because coal
provides the fuel in a possible fire. Tr. 121, 158-159. Bailey testified on cross-examination that
the seven frozen rollers, plus the additional rollers turning in the coal, plus the coal accumulation
all fit under the condition that he cited. Tr. 121-122.
d. Order No. 8114323
Bailey issued Citation No. 8114323 for a violation of Section 75.1731(a) on the No. 2
belt. Tr. 42. The No. 2 belt was not running at the time that the citation was written, because the
No. 1 belt had been shut off for the previous citation, which resulted in all the belts being turned
off. Tr. 42. Bailey described seeing engineering ribbon hanging from the roof bolts, as well as
paint on the structure where the rollers were located. Tr. 42-43. He testified that there was
visible damage to five bottom rollers that were marked by paint and ribbon, but could not recall
if it was flattening of the roller or a bearing issue that had “bored the roller out.” Tr. 43. He also
observed accumulations, which were causing the rollers not to turn, and instead act as scrapers
scraping coal off the bottom of the No. 2 belt. Tr. 43.
On cross-examination, Bailey testified that frozen rollers can become flat in a matter of
hours or a matter of weeks, depending on the pressure on the belt. Tr. 110. He was certain that
the rollers on the No. 1 belt were not flat, however he could not recall if any rollers on the No. 2
belt were flat. Tr. 110.
In order to abate the order, the operator replaced five rollers. Tr. 44. Bailey testified that
the damaged rollers were not touching the coal accumulations beneath them, but they still posed
a hazard. Tr. 44. Specifically, Bailey testified that they posed a fire hazard because of the metal
on metal grinding. Tr. 44. Bailey explained that a roller has three parts: a shaft, a bearing, and a

35 FMSHRC Page 1612

roller turning about the shaft. Tr. 44. If there is damage, and metal rubs against metal, then there
is a heating event, which can lead to a spark or ember falling into the coal below. Tr. 44. In this
instance, the coal below the rollers was dry. Tr. 44.
Bailey testified that damaged rollers increase the likelihood that coal will accumulate
around the rollers. Tr. 44. He described how a bottom roller can knock off coal. Tr. 45. The
coal is carried on the top surface of the belt and, as the belt travels over the discharge roller, the
top surface of the belt becomes the bottom of the belt. Tr. 45. Small particles of coal become
stuck to the belt, which the scraper on the discharge roller usually eliminates. Tr. 45. However,
some coal returns and, over time, turning and stuck rollers will knock the coal off as it is going
back to the tail of the belt. Tr. 45. Bailey testified that after the passage of enough time and
enough coal, accumulations may result from this. Tr. 45.
The five damaged rollers were not consecutive, but rather spread throughout the belt. Tr.
46. Bailey saw the paint on the structure, just above the roller, which is a typical mining practice
to identify a damaged roller. Tr. 45-46. Bailey did not see any paint on the rollers, only on the
frame, and did not know how long the paint had been on the frame. Tr. 147-148. Bailey
admitted on cross-examination that it was possible that the paint was being used to call attention
to rollers that were making noise. Tr. 150-151. He also saw flags tied to the roof bolts adjacent
to the damaged rollers, which is also a typical mining practice to identity a damaged roller. Tr.
45-46. Mines sometimes also hang ribbons from the roof to signify damaged roof bolts, bad
roof, or bad rib. Tr. 46-47. However, Bailey testified that he saw none of these reasons for why
ribbon was hanging. Tr. 47. Bailey believed the ribbon to also identify the damaged rollers
because it was the only place he saw ribbon on the track. Tr. 148-149. Furthermore, there was
one ribbon hanging from the roof bolt in each of these five locations. Tr. 149. When Bailey
issued this Order to Campbell, Campbell did not dispute Bailey’s conclusion that the ribbon and
paint were because of the rollers. Tr. 47. Similarly, no one else at the mine provided an alternate
reason as to why the structure was painted or why the ribbon was hung. Tr. 47-48.
Upon reviewing the Program Policy Manual for Section 75.1725, Bailey agreed that it
gives the inspector some discretion in whether to cite Section 1725 as an unsafe operating
condition. Tr. 115. If only one roller were frozen or damaged, and it was not producing heat and
there was no combustible material or fuel, Bailey stated that it would likely not affect the safe
operating conditions. Tr. 115.
Bailey designated the violation as S&S because a bad roller will result in metal on metal
grinding. Tr. 48. Once this occurs, the roller can get hot enough to start a fire or completely fail
and fall apart. Tr. 48. This made it a reasonably likely ignition source. Tr. 48. Additionally, the
rollers had deposited coal on the ground, which could serve as fuel if an ignition occurred. Tr.
48. Bailey testified that a fire or ignition was reasonably likely to cause serious injury to miners
because there are miners traveling in and out all day. Tr. 48. If a fire rages out of control, it can
damage the ventilation bradishes. Tr. 48. Bailey cited 12 persons affected for the same reason
that he cited 12 persons affected in Citation No. 8114320. Tr. 49. He believed that these 12
miners would suffer smoke inhalation and burns. Tr. 49. Bailey designated the violation as

35 FMSHRC Page 1613

resulting from the operator’s high negligence and unwarrantable failure to comply with the
standard, and he was not presented with any mitigating circumstances. Tr. 49.
The standard for citing high negligence is whether a violation is obvious or extensive
with no mitigating circumstances. Tr. 161. For high negligence, the operator either must know
or should have known about the condition. Tr. 161. Here Bailey believed that the operator either
knew or should have known because the rollers were identified with flagging or tape. Tr. 162.
Bailey testified that the violation had been made obvious by someone’s flagging and
painting it. Tr. 49-50. Bailey estimated that the condition existed for at least one day before he
issued the citation. Tr. 50-51. He based this estimation on the paint not being glossy, which
indicates that it was not new, and having dirt on it, which indicates that the mantrip has driven by
it several times. Tr. 51. Bailey admitted that it was possible that the frame was painted months
before and the rollers had been changed since that time, but stated that it would be an unlikely
coincidence for there to be paint at the only five rollers that were damaged. Tr. 148. Prior to
issuing the citation, Bailey believes that at least the following employees had passed the
violation: the evening shift foreman entering and exiting, the owl shift foreman entering and
exiting, and the day shift foreman entering. Tr. 50.
e. Citation No. 8114321
After citing the No. 1 belt, Bailey went to the section for an imminent danger run. Tr. 52.
As he went by the No. 3 belt head, Bailey flashed his light from the mantrip and noticed a large
pile of coal. Tr. 52. Bailey remarked to the person with whom he was traveling, “That’s a
violation. Let’s go down to the section to do an imminent danger run because the belts are down,
and then come back and evaluate it after.” Tr. 22-23, 52. Bailey recorded the violation at that
time, but he didn’t evaluate it by taking any measurements. Tr. 52-53.
When Bailey examined the No. 3 belt head, he found a large pile of coal, relative to the
low mine, within the drive and extending the 36-foot length of the guarding. T. 54. Bailey
measured the coal at between 10 to 28 inches deep, with a 4-inch margin of error, and testified
that it was touching the belt. Tr. 54-55. The accumulations were inside the guarding, and Bailey
measured them from outside the guarding using a tape measure. Tr. 55.
Bailey testified on cross-examination that the belt was approximately 42 inches wide and
the structure was roughly the width of the belt. Tr. 137. The 28 inches of coal that Bailey saw
inside the metal guards was in a pile, so there were lower areas as well. Tr. 137-138. A portion
of the coal was touching the belt, but Bailey could not remember if it was the 28-inch peak or
another section of the pile. Tr. 138.
Bailey testified that accumulations in the belt entry that can cause a frictional heating
hazard constitute violations of Section 75.1731(c). Tr. 56. Here the accumulations were a
frictional heating hazard because they reached the bottom belt. Tr. 56. Had the belt been running
at the time, rather than being down because the No. 1 belt was down, the belt would have been

35 FMSHRC Page 1614

running in the coal. Tr. 56. The belt is an abrasive surface, so that if it runs in coal it constitutes
a frictional heating hazard. Tr. 56. The heat dries out the coal and could ignite the coal. Tr. 5657.
The mine is required to have flame resistant belts, which means that the belt is selfextinguishing and won’t burn unless a direct flame is applied. Tr. 132. Bailey testified that a
flame resistant belt causes no less friction than a regular belt, and can still ignite the coal beneath
it. Tr. 57. Bailey described the coal here as similar in moisture content to the coal in the No. 1
belt, with the coal on the floor being wet, but dryer as it neared the belt. Tr. 57. The top layer of
coal was dry. Tr. 57.
On cross-examination, Bailey could not cite to any memoranda, program policy letters,
instructional letters, or other source that showed that a belt rubbing against coal can develop
frictional temperatures sufficient to ignite coal. Tr. 132. As an inspector, Bailey has seen solid
metal belt bottoms in tail pieces, with the belt running over the solid metal bottom each minute
that the belt is running. Tr. 133. However, he did not know of any fires caused by a flame
resistant belt running over metal bottoms in tail pieces. Tr. 133. In some coal mines there are
mobile bridges where the belt runs over solid metal bottom, which often causes friction. Tr. 133.
However, in the case of a bridge, the load is uniformly distributed. Tr. 133-134.
The operator had made no effort to clean the accumulation by the time that the condition
was cited. Tr. 58. Bailey marked this violation as S&S, explaining that the specific safety hazard
contributed to was a frictional heating event that would cause the fuel and coal to ignite and lead
to a fire on the belt. Tr. 58. Furthermore, as more coal accumulates, there is a larger area for
friction, which raises the likelihood of a frictional heating hazard. Tr. 85. Such an event would
be reasonably likely to cause serious injury to miners because the belt was on an alternative
escapeway. Tr. 58-59. There are miners traveling in and out daily, and they could be exposed to
smoke inhalation and burns. Tr. 59. Bailey also explained that as coal starts rubbing the bottom
of the belt and lifiting the bottom belt, it can un-train the belt, which leads it to spill more coal.
Tr. 85. Bailey cited 12 miners as affected for the same reason that he did so in citations 8114320
and 8114323. Tr. 59.
The belt could have been running for approximately 45 minutes by the time Bailey cited
it, but he does not believe that the conditions were created during that short time period. Tr. 59.
He reached this conclusion because the conditions were extensive, and there was little, if any,
coal run by that time in the morning. Tr. 59-60. Bailey testified that the conditions likely existed
for at least two days, and probably longer. Tr. 60. Bailey marked it as moderate, rather than
high, negligence because Campbell explained to him that the small holes in the guarding can
make accumulations difficult to see. Tr. 60-61. When Bailey cited the No. 3 belt there was no
one cleaning or working on it. Tr. 61. The violation was abated by removing the coal. Tr. 61.

35 FMSHRC Page 1615

f. Citation No. 8114322
After traveling the section and conducting the imminent danger run, Bailey traveled back
to evaluate the violation on the No. 3 belt drive. Tr. 61-62. He exited the mantrip looking outby
the belts on his left and, as he tried to travel around the mantrip, he began to struggle in the mud.
Tr. 62. Bailey determined the mud he encountered was a violation of 380(b)(1). Tr. 62.
Bailey described the belt as being on his left when facing outby. Tr. 62. The track was in
the center of the entry, and to the right of the outside rail was the lifeline for the alternative
escapeway. Tr. 62. MSHA requires a primary and secondary escapeway, and the track
haulageway is one of the escapeways in this mine. Tr. 160. The mine must maintain the entries
so that miners can walk the escapeway. Tr. 160-161. The rib is approximately four to six feet
from the rail. Tr. 62. The lifeline is attached to the roof bolts that are directly above the outside
track rail. Tr. 62-63.
Bailey described encountering thick solid mud as he exited the mantrip. Tr. 63. There
was a pump nearby, but the mud was too thick for the pump to help. Tr. 63. Bailey measured the
mud at 13 inches by measuring the depth of his deepest footprint. Tr. 63-64. The mud extended
from rib to belt, but the thicker mud was to the right of the rail between the rib, as one looked
outby. Tr. 64. The mud extended the length of two cross-cuts, which measures approximately
130-150 feet long. Tr. 64. Bailey testified on cross-examination that though the mud in the area
of the No. 3 drive was wet, there was no water running across the track. Tr. 138-139. The mud
was up to the ball of the rail. Tr. 139.
Bailey testified that the mud appeared solid, and it was impossible to determine where it
was shallow and where it was deep. Tr. 64. There were likely undulations and holes beneath the
mud, but one could not determine their locations through the mud. Tr. 65. The mine is a low
mine, approximately 48 inches high, so one must walk bent over. Tr. 65. Walking in this
manner, Bailey fell into the mud several times. Tr. 65.
Bailey designated the violation S&S because if an event occurred and miners were to use
this escapeway, there would be a hazard of tripping and falling down onto the rail or the ground.
Tr. 65-66. In the event of an emergency, if the miners could exit using the mantrip, then the mud
would have no effect on their ability to escape. Tr. 139. However, there is a possibility that the
mantrip would be unavailable due to battery trouble or other issues. Tr. 139-140. Exiting by foot
could result in one spraining or breaking a leg, knee, back, or wrist, as well as increased
exposure to smoke. Tr. 66-76. Furthermore, it would be difficult to carry an injured miner on a
stretcher in this escapeway. Tr. 66. Since the lifeline was located above the mud, it would be
impossible for a miner to use the lifeline and avoid the mud. Tr. 67. Under normal
circumstances, miners would be exposed to the mud during fire suppression checks, which
cannot be performed from the mantrip. Tr. 66, 68, 141.
Bailey testified that under normal continued mining operations the mud would persist for
the remainder of the day and evening shifts. Tr. 69. He arrived at this conclusion because there

35 FMSHRC Page 1616

was no effort being made to remove the mud. Tr. 69. Furthermore, it was not recorded in any
books that this mud constituted a hazard, which indicates that it was not a priority to abate. Tr.
69. Bailey estimated that the condition existed for at least one week prior to the citation. Tr. 69.
Bailey assessed the violation at moderate negligence because the mud was not apparent from the
mantrip, but rather required one to step off into it. Tr. 70. No one provided any additional
mitigating circumstances. Tr. 70. Bailey cited the violation as affecting one miner, because even
if there were 12 people evacuating, it would be likely that only one person would fall and be
hurt. Tr. 70. The mud was abated by adding water in order to liquefy it and allow the pump to
remove it. Tr. 70-71. Miners also shoveled out some of the mud, which was difficult because
there is only 12 inches between the belt and the roof. Tr. 142.
g. Citation No. 8114324
Bailey found five localized piles of coal underneath the damaged rollers at the No. 2 belt,
as well as accumulation within the guarding at the drive. Tr. 71. Bailey examined the coal and
determined that the coal under the rollers was dry. Tr. 71. He used his tape measure to
determine the height of the piles and found that the smallest pile was four inches deep and the
largest was 15 inches deep. Tr. 71.
Bailey determined that this violation was S&S for the same reason stated above with
regard to the fire hazards of damaged rollers. Tr. 72. He believed that the belt in this condition
would continue to be used in normal mining operations, which would lead to further
accumulations. Tr. 72. Bailey testified that he believed a fire ignition would be reasonably likely
to cause serious injuries. Tr. 72-73. If such a fire were to occur, it would affect the miners that
travel the track daily and those that use it as an alternative escapeway. Tr. 73. This could result
in smoke inhalation and burns. Tr. 73. Bailey estimated that this condition existed for one or
more days because the accumulations were caused by the rollers, and the rollers had been there
for some time. Tr. 73. Similar to the citations above, Bailey did not think that these
accumulations could have been caused during the 45 minutes that the belt was running that
morning. Tr. 73. Bailey assessed the violation at moderate negligence because the
accumulations were not as large, obvious, or extensive as what he discovered at the No. 1 and
No. 3 belts. Tr. 74. He cited 12 miners affected for the same reason listed in the above citation.
Tr. 74. No one from mine management provided any other mitigating circumstances. Tr. 74.
The violation was abated by the operator removing the coal from under the belt. Tr. 74.
h. Order No. 8114325
Bailey reviewed the mine’s pre-shift and on-shift examination records before proceeding
underground on September 8, and found no hazards or violations listed for the 1, 2, or 3 belts.
Tr. 75. Bailey reviewed the two previous weeks of examination records and found that there had
been no hazards or violations recorded on any of the belts in the two weeks prior to his
inspection. Tr. 75-76.

35 FMSHRC Page 1617

Under MSHA regulations, pre-shift examinations are required before miners work or
travel in an area that could contribute to a hazard. Tr. 76. It must be performed within 3 hours
prior to the shift on which work or travel is scheduled. Tr. 76-77. In this instance, the pre-shift
examination for the oncoming day shift would have to be performed between 5:00 and 8:00 am.
Tr. 77. The pre-shift examiner must record hazards and locations of hazards, as well as
corrective actions taken. Tr. 77. Such recordable hazards include bad roof, bad rib,
accumulations on a belt, broken rails on a track, or anything else that could potentially hurt a
miner. Tr. 77. Here, the operator was required to do a pre-shift examination of the belts because
they were in the entry that miners were working or traveling. Tr. 77. Furthermore, the belts were
in the same entry as the track haulage way. Tr. 77. Bailey stated on cross-examination that he
did not know if any miners were scheduled to work on the belts. Tr. 102-103.
Bailey testified that he believes that the operator had performed inadequate pre-shift
examinations previous to the day, owl, and evening shifts at the 1, 2, 3, and 4 belts. Tr. 78. The
cited conditions existed at the time of the pre-shift examinations, and since they were not
recorded, the examinations were inadequate. Tr. 78.
Most mines keep a pre-shift examination book, an outby or belt book for the belts, and a
section book for the haulageways and roadways. Tr. 78-79. Sewell Mine B had only one book,
where they kept their pre-shift and on-shift examinations. Tr. 79. They did not have a separate
book for their belt examinations, but rather wrote comments about the belt below the upper
section of the record in the pre-shift and on-shift book. Tr. 79. Bailey was only aware of some
smaller mines that keep records in this fashion. Tr. 79-80.
Bailey reviewed the pre-shift examination for the September 8 day shift, and it stated that
“1, 2, 3, and 4 belts okay … at the time of the exam.”3 Tr. 80; RX-1, p. 2. When the citations
were issued Bailey believed that the operator was regularly conducting pre-shift examinations of
the belts. Tr. 81. Bailey held this belief because the belts are mentioned in the reports. Tr. 81.
Furthermore, Bailey’s experience has taught him that many small mines include examinations of
the belt in the pre-shift examination so that a later supplemental examination would not be
needed. Tr. 81. A supplemental examination would be required if there was no pre-shift
examination performed on the belt and something occurred during the shift where someone had
to work on the belt. Tr. 82. In such a situation, a supplementary examination would have to be
performed to show that there were no hazards prior to sending someone to work on the belt. Tr.
82.
Bailey testified on cross-examination that the evening shift examiner would have to
perform a pre-shift examination for the entry because people would be traveling up the track. Tr.
106. He further stated that for the day shift there would have to be a pre-shift examination
because people work or travel in the entry, even if no one would be specifically working on the
belt. Tr. 106-107. In such a pre-shift examination, the examiner would have to look for any

3

Several of the words in the report, admitted as RX-1, are not legible.

35 FMSHRC Page 1618

hazard in the entry, including roof rib, broken rail, accumulations along the ribs, problems with
the high voltage wire running in the entry, track blockages, and other possible hazards. Tr. 107.
On cross-examination, Bailey testified that the belt was not running on the owl shift of
September 8, 2010, and agreed that if no one was scheduled to work on the belts, then there
would be no requirement for an on-shift examination. Tr. 103-104. Bailey said that in this
instance, miners traveled on the mantrip in the belt entry, which would require a pre-shift
examination. Tr. 104-105.
Bailey designated this order as S&S because the violation contributed to the specific
health or safety hazard of fire in the belt entry from a frictional heating event. Tr. 82. He also
marked it as high negligence and unwarrantable failure because the conditions were “absolutely
obvious and extensive.” Tr. 82. Bailey testified that the violations were so obvious that he
observed the violations at the No. 1 belt when he was not examining it. Tr. 83. He explained that
the examiners are agents of the operator, and they either knew or should have known that the
conditions existed. Tr. 82-83. Bailey testified that his rationale for marking 12 people affected
was the same as for the citations above. Tr. 83-84. The violation was abated by re-training all
examiners. Tr. 84.
On cross-examination, Bailey testified that he found unwarrantable failure because it was
obvious and extensive, as well as because he could place an agent in the entry making an
examination. Tr. 108.
In determining that the violation was the result of unwarrantable failure, Bailey wrote in
the Order, “The operator has not recorded one hazard or violation on any of the belts for at least
two weeks going back to 08/2010.” Tr. 88; GX-7. However, after reviewing the reports from the
two weeks previous to the citation, Bailey testified that hazards on the No. 4 belt (which he did
not travel to) were reported immediately, and hazards on the all the belts were reported 11 days
prior to the inspection. Tr. 88, 94. In the pre-shift report for September 7, 2010, it reports that
the No. 4 drive “needs cleaned.” Tr. 90; RX-1, p. 6. Bailey testified that this was proper
reporting of a hazard on a pre-shift report. Tr. 90. In the on-shift report, it lists as a hazard that
the No. 4 drive “needs cleaned,” and lists as an action taken, “Cleaned.” Tr. 91; RX-1, p.7. In
the September 6, 2010 report, it lists as a hazard on the belt that the “Section tail roller needs
cleaned.” Tr. 91; RX-1, p. 9, 10. In the on-shift report for the owl shift on September 7, 2010, it
states that the “Section tail roller needs cleaned.” Tr. 92; RX-1, p.3. This refers to coal
accumulation, and it is marked as “corrected” on the form. Tr. 92; RX-1, p.3. In the pre-shift
report for September 3, 2010, it states that the “Tail roller needs cleaned,” as the hazard, and
“reported” as the action taken. Tr. 92; RX-1, p.12. In the August 28, 2010 pre-shift report, it
states that “All tail pieces needs cleaned.” Tr. 93; RX-1, p. 42. Then, on the August 28, 2010
follow-up inspection it states that “1, 2, 3, and 4 belts cleaned on the drives.” Tr. 93; RX-1, p.43.
Bailey testified that if he had noticed these hazardous conditions in the book, it would not have
altered his designation of negligence because the only hazard related to the 1, 2, or 3 belts was
11 days prior to his citation. Tr. 94-95. Bailey stated that the way the entries are written lead

35 FMSHRC Page 1619

him to believe that these are not hazards that are being reported. Tr. 100. Bailey stated that most
of these were on-shift examinations, rather than pre-shift examinations. Tr. 155-156.
What is recorded in an on-shift examination for the belts does not factor into pre-shift
examination violations. Tr. 155. Bailey admitted to missing the one pre-shift examination record
11 days prior to the record, but stated that the other pre-shift examinations in the two weeks prior
to the citation were inadequate. Tr. 155. The on-shift and pre-shift exams are separate exams,
and proof that the operator worked on the belts in the on-shift exam does not indicate that
adequate pre-shift exams were being performed. Tr. 155-156.
On cross-examination Bailey agreed that the reports indicated that in the several weeks
prior to the citation the belt structure was changed, however he could not speak to the reason or
extent of these repairs. Tr. 95-98. Similarly, in the several weeks prior to the citation, the reports
indicate that there were six occasions where the belts were spot cleaned. Tr. 98-99. However,
Bailey testified that these appeared to be work orders rather than hazard reports, because there
was a lack of specificity to them. Tr. 100-101, 156.
With regard to mitigating circumstances, Bailey testified on cross-examination that it is
the inspector’s responsibility to ask and the operator’s responsibility to tell. Tr. 101-102. Bailey
usually tells the operator, “I feel this is high negligence because you knew or should have
known,” and then gives the operator a chance to respond with mitigating circumstances by
asking, “Are there any mitigating circumstances?” Tr. 102.
2) Testimony of James Anthony Graham:
a. Background and Experience
At the time of hearing, James Anthony Graham had worked for Raw Coal for two years
and three months. Tr. 165. He had 19 years of mine experience. Tr. 166. He started working for
Consolidation Coal Company, as a red cap laborer, and worked his way up to section foreman.
He then went to Cleveland Cliffs before coming to Raw Coal. He has West Virginia Assistant
Mine Foreman/Foreman, EMT Basic, and State of West Virginia certifications. Tr. 166. He is
currently the evening shift section foreman outby, and at the time of the citation was the foreman
supervisor for third shift. Tr. 165. As part of the third, or owl, shift, Graham supervised the
prepping of the mine for day shift production. Tr. 165. The third shift’s main duties included
cleaning, dusting, ventilating, building stoppings, cleaning up excess coal spillage in the
roadways, rock dusting, and putting up ventilation fixtures. Tr. 167. Graham’s immediate
supervisor is Fred Ciampanella. Tr. 191.
b. The Third Shift
The owl shift had belt work, such as belt moves and maintenance, at least once per week.
Tr. 165-166. When they were assigned to work on the belt, they made slices on the belt and
advanced and retreated the belt as necessary. Tr. 167. According to Graham’s directives, no one

35 FMSHRC Page 1620

was scheduled to work on the belts on the day shift of September 8, 2010. Tr. 167-168. Graham
testified that they were not required to conduct a pre-shift examination of the belts because no
one was going to be assigned to work on the belts that day. Tr. 168. They also did not perform
an on-shift examination because there was no coal production. Tr. 168-169. Alfred Ciampanella,
the mine foreman, was responsible for assigning pre-shift and on-shift examinations. Tr. 168.
Graham was not present at the mine when Bailey conducted his September 8 inspection.
Tr. 182-183. Graham conducted a pre-shift examination, but stated that he was looking at the
track rather than the belts.4 Tr. 183. During his day shift examination, Graham looked for rocks
on the belt, as well as significant rips or tears. Tr. 184. Graham testified that his remarks in the
examination book were only indicating that the belt should have been able to be turned on and
started. Tr. 186.
Graham performs pre-shift examinations for the oncoming day-shift only if he is on
notice that there will be workers on the belt in that shift. Tr. 186-187. Miners must travel each
day in the track haulageway, which requires them to travel past the belts. Tr. 187.
During his September 8 pre-shift examination, Graham was not looking for
accumulations on the belt, frozen rollers, or for rollers turning in accumulations. Tr. 191-192.
Graham could not see frozen rollers during his pre-shift examination even if he was looking at
them because the belt was not running. Tr. 203. However, he would have been able to see
accumulations if he had looked for them. Tr. 203. Graham said he did not see the accumulations
that Bailey viewed at the No. 1 belt because the belt is the last thing on his mind. Tr. 204.
Even if the belt is not running, Graham stated that he could see if coal was surrounding a
roller. Tr. 192. Graham stated that he looks for things on the belt even though he has no legal
obligation to do so, because otherwise Ciampanella would make his life difficult. Tr. 200. He
stated that for safety reasons, he records additional things that he sees along the belt that might
affect miners. Tr. 201. Graham testified that if he had seen a large accumulation that “would
have been large enough to stick out like a sore thumb” then he would have recorded it as an
accumulation that needed immediate attention. Tr. 192-193. He testified that he would not
record rollers that were flagged or painted. Tr. 193. Graham was not looking for problems with
the belt, other than major ones. Tr. 194. He stated that he did a visual ride-by and everything
looked intact. Tr. 195.
c. Citation No. 8114320
Graham performed a pre-shift examination of the track entry because miners use the area
for travel. Tr. 169. When Graham traveled the track entry out, he did not observe any
accumulations at the No. 1 belt. Tr. 169. He testified that the No. 1 belt is always wet and
muddy, because water is used to help control the coal dust and water is along that belt
Graham equivocated on whether in his report in the examination book, when he referred
to the “1, 2, 3, and 4 belts,” he was actually referring to the track. Tr. 183-184.
4

35 FMSHRC Page 1621

continuously. Tr. 169-170. When Graham performed his pre-shift examinations, the belt was not
running and he could not determine if there were any frozen rollers or rollers turning in coal. Tr.
170.
Graham testified that there was no potential hazard from the belts turning in mud. Tr.
170. He also stated that it would not be possible for 12 miners to suffer lost time injuries from
the condition cited, “unless they were like a moth drawn to the flame.” Tr. 171. He explained
that the way air moves on the belt would make it so any smoke, dust, or residue would be vented
outside. Tr. 171. The miners would be inby that area, and would have been notified and exited
the mine down the intake escapeway which is isolated with fresh air. Tr. 171. Furthermore, the
mine conducts escapeway drills when it does fire drills. Tr. 171-172.
On cross-examination, Graham testified that it is possible to see an accumulation after
passing through the double doors. Tr. 180. One could see an excessive accumulation at the No.
1, 2, or 3 belts that had pushed itself out along the track from the man-bus. Tr. 181. If the
accumulation were not so excessive, one would have to exit the man-bus and do a visual
inspection. Tr. 181. Furthermore, while riding on the man-bus, one can clearly see the belts and
any ribbon hanging from the roof. Tr. 181.
d. Citation No. 8114321
The accumulations cited in Citation No. 8114321 were located underneath the No. 3 belt
head. Tr. 172. Graham testified that the drive roller is approximately 14-16 inches off the
ground. Tr. 172-173. The air lock is approximately six feet high. Tr. 173. The belt conveyer is
approximately 4-6 feet off the ground. Tr. 173. The No. 3 belt head has an expanded metal
guard, which has a half-inch hole. Tr. 173. While riding in an area where the belt is only 40
inches high, one cannot see underneath the belt. Tr. 198. Graham stated that for these reasons it
is difficult to accurately determine the amount of accumulation in the metal guard without
removing the guard. Tr. 173.
The belt at the Sewell B Mine is flame resistant, which means that it only burns if
something burning is in contact with it. Tr. 174. The belt rubs along solid steel tail pieces with
flat steel in them for approximately 8-10 feet, which creates friction. Tr. 174. However, Graham
said that the friction would only cause the belt to get warm to the touch. Tr. 174. He testified
that if a smoke or fire condition were to occur, the smoke would exit towards the outside because
of the air flow in the mine. Tr. 174.
e. Citation No. 8114322
When Graham conducted his pre-shift examination on the morning of September 8, 2010,
he determined that the conditions at the No. 3 belt drive were as normal as any other shift. Tr.
175. He testified that there is always mud at the belt head because of the water used on the belts.
Tr. 175. The lifeline was over the solid track and one would have to deviate from the lifeline to
get into the mud. Tr. 175. If there was an emergency event, the miners would likely go on the

35 FMSHRC Page 1622

track-mounted battery powered man-bus and travel the secondary escapeway to the surface. Tr.
175-176. The mud would not hinder escape using the man-bus, which Graham described as
“very reliable.” Tr. 176-177. The man-buses also have voltage indicators on them, which helps
monitor the battery charge. Tr. 177. Graham testified that the height of the area—a little over
five feet—made it easy for a person to walk with a stretcher. Tr. 176.
f. Order No. 8114323
When Graham conducted his pre-shift examination on the morning of September 8, 2010,
he determined that the conditions at the No.2 belt entry were normal. Tr. 177. The belt was not
running. Tr. 177. Graham saw the paint on the structure, which he testified had been present for
as long as he’s been at the mine. Tr. 177-178. With regards to ribbons hanging from roof bolts,
Graham stated that they have no significance to him unless he hung them. Tr. 178. Graham
hangs ribbons for a variety of reasons, including using them to mark areas he wants to revisit,
and said there is no specific reason for hanging a ribbon. Tr. 178. Furthermore, he did not see
the ribbons hanging during his September 8 examination. Tr. 178. Graham testified that his
negligence should not have been determined to be high because he did what was required by
law. Tr. 179. He testified that the only thing he could have done additionally would have been
to fire boss that belt, and he had no instructions to do so. Tr. 179.
During a typical pre-shift examination, Graham examines the roof, rack, clearance, and
anything that might be in the track that might pose a hazard to a bus. Tr. 179. He looks for
anything that would be obvious, such as broken rails, broken bridles, tracks that are not blocked
properly, bad top, and hanging cable. Tr. 179. He described certain conditions as common,
including broken pieces of the belt structure, rollers that are out of the hanger, rock on the belt,
and the ribs having rolled and shoved the belt towards the track. Tr. 179. Graham agreed that a
damaged roller is a violation that should be recorded during a pre-shift examination of the belt.
Tr. 189. Similarly a roller turning in loose dry coal is a hazard that should be recorded during a
pre-shift examination of a belt. Tr. 189. Graham stated that if it were turning in wet coal, then it
would not be a violation. Tr. 190.
3) Testimony of Alfred Ciampanella:
a. Background and Experience
Alfred Ciampanella has worked as the mine foreman at Raw Coal since 2009. Tr. 206.
He has 40 years of mining experience, working for United States Steel, A.T. Massey, Hughes
Enterprise, Base Star Mining, Raw Coal Mining, and a few smaller enterprises. Tr. 206.
Ciampanella has the following certifications: West Virginia mine foreman, electrician, dust,
noise, and shop foreman; MSHA instructor; and several Joy certifications for equipment repair.
Tr. 207. He has been a certified foreman for 37 years and a certified electrician for 38 years. Tr.
207. In addition to working as mine foreman at Raw Coal, he has also worked as the face boss.
Tr. 207.

35 FMSHRC Page 1623

b. The Sewell Mine B
The mine works two production shifts beginning at 8:00 am and 4:00 pm, and one down
shift beginning at midnight. Tr. 207-208. The mine had no designated belt workers in September
2010. Tr. 208.
Ciampanella described the Sewell mines as damp mines. Tr. 211. Additionally, millions
of gallons of water are added each day in order to saturate the belts and keep the respirable dust
down and to help with heat problems. Tr. 211. This results in wet and muddy conditions in the
mine. Tr. 211.
There were 12 production workers on the day shift in September 2010. Tr. 208.
Ciampanella testified that the mine had purchased a new belt system, with the No. 1 belt having
been purchased in 2009, so they did not feel it was necessary to have an examiner or
maintenance people on the belt. Tr. 208, 253-254. He stated that pre-shift examinations of the
belt were only necessary when work was regularly scheduled to be done on the belt. Tr. 208-209.
On-shift examinations are required on the belt daily during production shifts. Tr. 209.
The mine did not employ any belt examiners or belt shovelers in any of the three shifts.
Tr. 228. There were also no regular maintenance or clean up program for the belts. Tr. 228.
Ciampanella was employed at the mine when citations were issued in 2009 for accumulations.
Tr. 229; GX-2. Following these citations there was no formal maintenance program change. Tr.
229-230. The mine operates without a belt man by relying on the foreman to see problems and
dispatch people during breakdowns and the hoot owl shift. Tr. 230. If something on a belt
needed attention, a miner would have to be pulled off of the section to go to the belt to make
repairs or the motor crew would call Campbell to do a supplementary exam. Tr. 231.
Ciampanella was one of the two section foremen on the September 8 day shift. Tr. 236237. However there were four certified foremen on shift, including Randy Campbell,
Ciampanella, Joey Proffitt, and Dennis Worthington. Tr. 237. Because the mine operated on a
day shift without a belt man, it relied on one of the foremen to see any problems with the belt,
recording them, and correcting them. Tr. 237.
The on-shift examination occurs any time after production is started. Tr. 233. Sometimes
the on-shift exam for the day shift is performed at the same time as the pre-shift exam for the
oncoming evening shift. Tr. 233. At the time of the citations, Ciampanella usually performed
on-shift examinations in the latter part of the day so that it could be included in his pre-shift. Tr.
234. He estimated that he usually performed examinations between 1:00 pm and 4:00 pm. Tr.
234. A motor crew travels up and down beside the belts between 8:00 am and 1:00 pm. Tr. 234.
Therefore if there was a hazard on the belt, the motor crew would be exposed to it as they
traveled back and forth. Tr. 235.

35 FMSHRC Page 1624

During the September 8 inspection no top rollers were found to be stuck. Tr. 214.
Ciampanella guessed that the reason for this is that the top rollers distribute weight better and
have superior bearings to the bottom rollers. Tr. 214-215.
Mines typically use a rope frame structure for the belt structure, however here the entire
mine uses a rigid metal structure. Tr. 210-211. Ciampanella described the metal structure as
being superior and “trouble-free.” Tr. 211.
Ciampanella estimated that there were approximately 4,000 rollers at the mine on all the
belts. Tr. 214. If there is a bad roller, usually only the roller needs to be changed. Tr. 212.
However, if there is a fault in the system and the belt is rubbing the stand, the whole structure
may have to be changed. Tr. 212. The roller sits in a bracket, and in order to change it one pops
it out and folds a new one in. Tr. 212-213. If the roller is stuck in spillage, then it may only need
to be shoveled or “pecked.” Tr. 213. If the roller is stuck due to water or other reasons,
sometimes one can simply touch it and it begins moving again. Tr. 213. Ciampanella defined a
damaged roller as having a variety of features including gutting, without bearing, broken
hangers, split or broken diameters, and containing holes. Tr. 213.
Ciampanella was already underground preparing to mine coal when Bailey began his
inspection on September 8. Tr. 237, 268. He traveled to the section on the man-bus in the track
haulageway. Tr. 237-238. Ciampanella did not see any of the belt conditions that Bailey cited,
however he does not make it a habit of examining the belt on the way to the section. Tr. 238.
Ciampanella could not remember if the belt was running that day when he traveled past it, but
testified that he is generally the one who gets it started. Tr. 239. He testified that it would have
been possible to see accumulations and hanging ribbon from the man-bus, if he was looking for
them. Tr. 239-240.
Ciampanella maintained that pre-shift examinations were only required where miners are
scheduled to work, not travel. Tr. 241. He also testified that pre-shift examinations for stuck
rollers are not required if the belts are not running. Tr. 243-244. Ciampanella testified that on
September 7, 2010, he conducted a full pre-shift exam because the belts were running. Tr. 244245; RX-1, p. 6. He personally examined the 1, 2, 3, and 4 belts for accumulations, as well as
frozen or damaged rollers. Tr. 245. With regards to the belts, Ciampanella wrote in his pre-shift
report “appears safe at time of exam.” Tr. 245; RX-1, p. 6. He testified that this meant that if he
saw an accumulation at one of the belts he probably would have reported it. Tr. 246-247.
Ciampanella testified that the pre-shift examination for the oncoming day-shift on
September 8 did not examine the belts. Tr. 247-248; RX-1, p. 2. The examination only looked at
the track entry and obvious conditions on the belt. Tr. 248. The report was called out by Graham
to Ciampanella, with Ciampanella writing it down. Tr. 248. The report states, “1 and 2 and 3 and
4 belts along none observed at time of exams,” which Ciampanella explained meant that the belts
were safe. Tr. 248-249; RX-1, p. 2.

35 FMSHRC Page 1625

Ciampanella testified that 10 of the 12 days prior to the citation work was done on the
belts during the day shifts. Tr. 250-251. He testified that when the records state “change
structure” they are referring to changing rollers. Tr. 251. Ciampanella denied that the records
indicated that there was at least one miner regularly working on the belts during the day shift,
because he may have been the one to change the rollers. Tr. 252. Since he is a certified miner,
he testified that he can perform the pre-shift examination as he worked. Tr. 253. However, he
admitted that at least some of the work must have been performed by a non-certified miner. Tr.
253.
c. Citation No. 8114320
After Citation No. 8114320 was issued, Ciampanella went down with men to clean the
condition. Tr. 215-216. Ciampanella believes that water, mud, and spillage were causing the
cited rollers to stick. Tr. 216. He testified that the belts are maintained by utilizing people to
work on them during breakdown procedures. Tr. 216-217. However, if they start noticing
accumulations, then they will attend to them immediately. Tr. 217. Ciampanella testified that his
deposition testimony that the mine often waited until the owl shift to change stuck rollers was
incorrect.5 Tr. 257. Ciampanella does not consider mud building up on the belt a hazard. Tr.
217.
Ciampanella testified that it took nine miners four hours to clean the accumulations at the
No. 1 belt because the roof is low in that area. Tr. 217-218. He further explained that the shovel
used holds approximately 35 pounds, and the miner has to navigate the weight over his head and
onto the belt. Tr. 218. It took approximately 2-3 hours to clean the No. 1 belt. Tr. 258. The
mine was under a D order and could not produce coal until the No. 1 belt was cleaned. Tr. 258.
He testified that it was possible that heat from a frozen or stuck roller will dry out accumulations
surrounding the roller. Tr. 258-259.
d. Citation No. 8114322
Ciampanella testified that he did not believe that the mud was where Bailey said it was
because of the placement of the belt line and the sump pumps. Tr. 221. Ciampanella was not
with Bailey when Citation No. 8114322 was issued. Tr. 268. He later observed the area from a
man-bus. 268-269. He saw mud on each side of the track, but did not measure the mud, and
admitted that it could have been 13 inches deep. Tr. 269.

Ciampanella appeared to contradict his deposition testimony often in his testimony. Tr.
255-265. Ciampanella repeatedly stated that he may have been confused or misunderstood
during the deposition. Tr. 257, 264. He also changed his opinion at points in his testimony. Tr.
265-266.
5

35 FMSHRC Page 1626

e. Citation No. 8114323
Hazards in the mine are supposed to be reported to Ciampanella, the mine foreman. Tr.
224. Ciampanella testified that he did not think that anyone reported any roller to him, including
the five that were cited. Tr. 224.
Ciampanella testified that he does not know who painted the belt frame or placed the
ribbons on the roof.6 Tr. 222. He testified that the use of ribbons was not a standard practice at
the mine, however he stated in the deposition that it was mine policy to flag bad rollers. Tr. 222,
267-268. All the foremen and a few of the miner operators have access to paint, but no one has
access to ribbon at the mine. Tr. 222-223, 266. He has no direct knowledge of anyone reporting
the specific area where there was paint or ribbons. Tr. 223. However, if he saw paint or ribbon,
Ciampanella said that he would stop and look at it. Tr. 224. If the belts were not running, he
would get off the man-bus and try the roller by hand to see if it was stuck. Tr. 224.
f. Citation No. 8114324
Ciampanella described the No. 2 belt drive as the wettest belt drive, and said that the air
goes straight to the surface. Tr. 225. When the belt comes away from the drive, it is
approximately 3 feet off the ground. Tr. 225. For approximately 75-85 feet it elevates itself back
to the bottom to where the bottom belt is the highest point out of the spillage. Tr. 225-226. He
said that there were wet clusters of wet coal fines and mud underneath the roller, but it takes a
long time for them to build up. Tr. 226. Furthermore, the mine occasionally cleans them up. Tr.
226.
g. Citation No. 8114325
Ciampanella designated Graham as the pre-shift examiner on the midnight shift. Tr. 226.
Ciampanella instructed Graham to make a pre-shift examination of the mines, but did not tell
him to examine the belts. Tr. 226-227. Ciampanella stated that if the belt is idle Graham does
not have to concentrate on it. Tr. 227. There was no one scheduled to work on the belt at the
beginning of the shift. Tr. 227.

Ciampanella appeared to change his deposition testimony concerning the mine’s policy
towards painting the structure when there is a problem with the rollers. Tr. 263-264. At hearing,
Ciampanella testified that it is not company policy or practice to paint or hang ribbons. Tr. 264.
However, he also said that occasionally they paint the rollers when there is a problem. Tr. 264265.
6

35 FMSHRC Page 1627

Discussion and Analysis
h. Citation No. 8114320
Citation No. 8114320 reads as follows:
The No. 1 underground belt was not being maintained in safe operating condition. Wet,
damp, and dry coal has accumulated on the belt for the entire length, 12 crosscuts,
resulting in 31 rollers turning or being stuck in the coal. The coal ranged in depths from
4 to 16 inches. At least seven rollers were stuck and at least 6 were warm to the touch.
The belt had been running for less than 45 minutes when the condition was observed.
The operator recorded for the last week that no violations were observed on the belt. The
operator engaged in aggravated conduct constituting more than ordinary negligence, in
that this condition was obvious and extensive, and no action was being taken to correct
the condition. This is an unwarrantable failure to comply with a mandatory standard.
The operator removed the belt from service immediately. Standard 75.1725(a) was cited
1 time in two years at mine 4606265.
The citation was issued pursuant to section 104(d)(1) of the Act for a violation of 30
C.F.R. 75.1725(a). The gravity was assessed as reasonably likely to lead to injury or illness,
with such injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it
was cited as Significant and Substantial with 12 persons affected, a high degree of negligence,
and an unwarrantable failure.
The citation was terminated approximately five hours later after nine miners spent four
hours cleaning the belt. All of the coal was removed from the belt and the rollers were freed,
making the belt safe to operate.
The Secretary argues that the conditions described in Citation No. 8114320 violated
75.1725(a), which requires that machinery be maintained in safe condition or removed from
service immediately. Inspector Bailey found seven stuck rollers and 24 rollers turning in dry
coal accumulations, which presented a frictional heating hazard. He testified that Raw Coal was
not operating the No. 1 belt in safe operating condition and that the belt had not been removed
from service, thereby violating the two duties imposed by §75.1725(a).
The Secretary further argues that the conditions satisfied the four Mathies criteria for
determining whether a violation is S&S: (1) the operator violated 75.1725(a), a mandatory safety
standard, by operating the No. 1 belt with seven stuck rollers surrounded by coal accumulations
and 24 bottom rollers turning in coal accumulations; (2) the violation contributed to the discrete
safety hazard of fire and smoke in the track/belt entry resulting from frictional heating leading to
an ignition of coal accumulations; (3) a fire or ignition would reasonably likely cause smoke
inhalation or burns to miners working underground; and (4) that such inhalation or burns are
reasonably serious in nature. The Secretary argues that the conditions were the result of high
negligence and aggravated conduct and therefore support a finding of unwarrantable failure.

35 FMSHRC Page 1628

The Respondent argues that the frozen rollers were not a violation of the regulation
because they were approximately 98-100 degrees, and auto ignition of the coal would not occur
unless the coal was at 600-700 degrees. Furthermore, the Respondent argues that the rollers that
were turning in coal were not a violation of Section 75.1725. In support of this position, the
Respondent cites MSHA’s Policy Program Manual, which states that frozen or damaged idler
rollers “could indicate” that the belt conveyor is not maintained in safe operating condition. The
Respondent argues that if the piles of mud were a violation of any regulation, then they should
have been cited under Section 75.400. However, in this instance, the inspector likely did not cite
them under 75.400 because the coal was so wet so as to not constitute a hazard. The Respondent
argues that the Secretary failed to sustain his burden of proving that Citation No. 8114320 was
an S&S violation. Further, the Respondent contends that “a remote or speculative likelihood of
the cited hazard contributing to an injury will not support a significant and substantial violation.”
Resp. Post-Hearing Brief, 14.
The Respondent also argues that the Secretary failed to sustain her burden of proving that
Citation No. 8114320 was caused by high negligence. The Respondent alleges that it conducted
proper on-shift examinations for each shift that coal was mined, and that if a hazardous condition
was observed it was corrected. Furthermore, pre-shift examinations were conducted on the track
entry, while also looking for hazardous conditions on the belt conveyors. The Respondent
argues that it had a good faith belief that it was not required to conduct pre-shift examinations
during the midnight shift because the belt was not running. This, it argues should be a mitigating
factor in assessing negligence. Furthermore, if the belts were not running, the examiner would
be unable to determine if rollers were stuck. Furthermore, the Respondent argues that part of the
basis for the inspector’s determination of high negligence was an incorrect belief that the
Respondent failed to record violations in the previous week. It maintains that because the rollers
were not worn flat, with only the bottom rollers stuck, one could see that the rollers had not been
stuck for an extended period.
The Respondent further argues that the Secretary failed to sustain her burden of proving
that Citation No. 8114320 was reasonably expected to cause lost work day injuries to 12 miners.
There were 12 miners working underground, and the Respondent contends that it is
unreasonable to expect all 12 miners to be injured even if the event were to occur. The
Respondent argues that since the air in the belt entries was traveling away from the working
sections, and escape from the mine was a short distance, most of the miners would have been
able to escape without injury. Furthermore, the mine was equipped with directional life lines,
additional SCSRs, a refuge chamber, and other emergency safety protections.

35 FMSHRC Page 1629

The Conditions Described in Citation No. 8114320 Violated 30 C.F.R. §75.1725(a)
Section 75.1725(a) of the regulations states:
(a) Mobile and stationary machinery and equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe condition shall be removed from service
immediately.
30 C.F.R. § 75.1725(a). The Commission has held that the standard for determining whether
machinery or equipment is in an unsafe operating condition is “whether a reasonably prudent
person familiar with the factual circumstances surrounding the allegedly hazardous condition,
including any facts peculiar to the mining industry, would recognize a hazard warranting
corrective action within the purview of the applicable regulation.” Alabama By-Products Corp.,
4 FMSHRC 2128, 2129-2130 (Dec. 1982). The Commission has interpreted §75.1725(a) as
imposing two duties upon an operator: “(1) to maintain machinery and equipment in safe
operating condition, and (2) to remove unsafe equipment from service. Derogation of either duty
violates the regulation. The Commission requires that the unsafe equipment be removed from
service immediately.” Id. (citations omitted). Accordingly, I find that the frozen rollers and
rollers turning in coal constituted a violation of §75.1721(a).
In Big Ridge, Inc., Judge Manning found that frozen rollers surrounded by accumulations
violated §75.1725(a). 34 FMSHRC 63, 87 (Jan. 2012) (ALJ). See also Solar Fuel Co., 9
FMSHRC 1966 (Nov. 1987) (ALJ) (finding nine frozen rollers and seven damaged rollers
violated §75.1725(a)). Similarly, in Consolidation Coal Co., Judge Koutras found a violation of
the frozen rollers and rollers turning in coal to constitute a violation of the regulation. 16
FMSHRC 2522, 2543-2545 (Dec. 1994) (ALJ).
Inspector Bailey issued Citation No. 8114320 for accumulations he viewed at the No. 1
belt. Tr. 23. He saw large accumulations as he was beginning his inspection, and upon further
inspection he noticed that seven rollers were frozen. Tr. 22-27. Bailey and Campbell began
performing measurements and found that 31 bottom rollers were touching coal, 24 of which were
turning in coal and seven of which were stuck. Tr. 24-25, 26. Bailey testified that six of the
rollers were warm or hot to the touch, even though the mine’s ambient temperature was
approximately 60 degrees. Tr. 25, 30, 133.
The coal accumulations ranged from four to 16 inches deep, and since the belt was so
close to the ground, the coal was piled up to the belt in many areas. Tr. 26. The coal was
layered, with the bottom portions being wet and the top portions close to the belt being dry. Tr.
26. Bailey testified that this rendered the belt unsafe because it created a frictional heating
hazard. Tr. 28, 29-30. When the belt continuously runs atop frozen rollers, the rollers create
friction by rubbing along the belt rather than turning with it. Tr. 28. Furthermore, coal is an
abrasive substance that increases the friction. Tr. 28. Bailey testified that the frozen rollers can
generate enough heat to cause an ignition of the coal they are touching. Tr. 30.

35 FMSHRC Page 1630

Under these conditions a reasonably prudent person familiar with the factual
circumstances would recognize this hazard and that machinery was not maintained in a safe
operating condition. In Highland Mining Co., Judge Moran found that “[i]t is undeniable that a
bottom roller running in coal creates the hazard of a frictional point. That is, such coal provides
the fuel and the friction created by the roller provides the heat.” 33 FMSHRC 657, 685 (March
2011) (ALJ). Similarly, the Commission has held that the “danger posed in underground coal
mining by a friction source that will lead to a heat buildup in an area where coal accumulations
could occur is obvious. Where such dangers are present due to defects in the operating condition
of equipment, that equipment cannot be considered in safe operating condition.” Alabama ByProducts, 4 FMSHRC at 2131.
The violation affected 12 miners because at the time that Bailey cited the Respondent
there were 12 miners working inby the belt. Tr. 33. The belt is near the drift, so miners working
inby would have to travel by it either in the primary or alternate escapeway. Tr. 33.
Additionally, if a fire rages out of control, it would potentially damage the adjacent intake
stopping line, which would short circuit the air and push the belt air to the face or cause smoke to
enter the intake. Tr. 33.
The Conditions Described in Citation No. 8114320 were Significant and Substantial
Having found that the conditions described in Citation No. 8114320 violated 30 C.F.R
75.1720(a), which is a mandatory safety standard, the first prong of the Mathies test is satisfied.
The second prong requires a determination of whether the violation contributed to a discrete
safety hazard. Inspector Bailey testified that the dry and wet coal would result in a frictional
heating event on the belt, igniting the coal, and causing a fire in the belt entry. The Commission
has similarly stated that damp or wet accumulations remain hazardous because they can dry out
slowly through the passage of time or quickly from a fire elsewhere in the mine. Black Diamond
Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 1985).
The third element of the Mathies test – a reasonable likelihood that the hazard
contributed to will result in an injury – is usually the most litigated prong. The Commission has
made it clear that the “test under the third element is whether there is a reasonable likelihood that
the hazard contributed to by the violation…will cause injury.” Musser Engineering Inc. and
PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010); see also Cumberland Coal Resources LP,
33 FMSHRC 2357, 2365-2369 (Oct. 2011). The Commission emphasized that the Secretary
need not “prove a reasonably likelihood that the violation itself will cause injury…” Id. Further,
the Commission reaffirmed the well-settled precedent that the absence of an injury producing
event, where a cited practice occurs, does not preclude an S&S determination. Id. (citing Elk
Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005) and Blue Bayou Sand and Gravel, Inc.,18
FMSHRC 853, 857 (June 1996)).
The Respondent here makes a similar mistake to the Operator in Musser Engineering, by
conflating “violation” with “hazard.” 32 FMSHRC at 1280-1281. Once it is established that the
cited violation will contribute to a hazard, the focus shifts from the cited violation to the hazard.

35 FMSHRC Page 1631

“The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.”
Id. Here the hazard is a fire and exposure to smoke. Bailey testified that a fire in the haul road
was reasonably likely to lead to smoke inhalation and burns. Tr. 34. The No. 1 belt is in the
track entry, so all shifts of miners enter and exit the mine traveling past this belt. Tr. 34, 234.
Furthermore, a fire in the track entry could cause damage to the adjacent intake stopping line,
which would short circuit the air and cause smoke to enter the intake and be circulated in the
working section where 12 miners were working. Tr. 33. These potential injuries are serious in
nature. Therefore, I find that that there was a reasonable likelihood that the hazard contributed
to by the violation would result in serious injuries, and therefore affirm the S&S designation on
the citation.
The Conditions Described in Citation No. 8114320 Were the Result of the Operator’s High
Negligence and Aggravated Conducts, Making it an Unwarrantable Failure
The evidence establishes that the violation resulted from the operator’s aggravated
conduct, characterized by such conduct as “reckless disregard,” “intentional misconduct,”
“indifference,” or the “serious lack of reasonable care.” Emery Mining Corp., 9 FMSHRC at
2004. Graham performed the pre-shift examination of the track entry and testified that he did not
observe any accumulations at the No. 1 belt. Tr. 169. At that time the belt was not running, and
Graham stated that he could therefore not determine if there were any frozen rollers or rollers
turning in coal. Tr. 170. However, Graham also testified that during his September 8 pre-shift
examination, he was not looking for accumulations on the belt, frozen rollers, or for rollers
turning in accumulations. Tr. 191-192. Graham testified that he did not see the accumulations
that Bailey viewed at the No. 1 belt because the belt is the last thing on his mind. Tr. 204.
Based on his previous mining experience and his knowledge of this mine, Bailey testified
that the conditions at the No. 1 belt existed for at least two days and likely over a week. Tr. 37.
Bailey described the accumulations as “excessive and extensive,” noticing problematic coal
accumulations at the belt almost immediately and from a distance. Tr. 22-24, 35. In all, there
were 31 rollers turning in coal, all on a relatively short belt. Tr. 35. Graham testified that if left
unabated, the condition could result in a frictional heating event on the belt, igniting the coal fuel
and causing a fire in the belt entry. Tr. 32. The accumulations were so extensive that it took nine
miners four hours to shovel and remove them. Tr. 38-39. In addition to Graham, two section
foremen traveled through the double doors—the spot from which Bailey saw the
accumulations—and past the four belts in the mine, all prior to Bailey’s investigation. Tr. 236238. In spite of these individuals walking past the accumulations touching the rollers, there was
no indication that corrective action was going to be taken. The mine was also on notice that
greater compliance was necessary, as it had been cited 3 times in the previous 11 months for
similar conditions at the No. 1 belt. See e.g. Peabody Coal Co., 14 FMSHRC 1258, 1263 (1992)
(Commission held that use of past violations to show aggravated conduct is not limited to the
same regulation as the one at issue). Furthermore, there was no evidence that there were any
efforts to abate the condition prior to the issuance of the Citation. I have considered all six
factors and find these conditions to constitute an unwarrantable failure.

35 FMSHRC Page 1632

i. Order No. 8114323
Order No. 8114323 reads as follows:
Five damaged bottom rollers were present on the No. 2 belt. These rollers were all
painted and flagged indicating that the operator knew the condition existed. These bad
rollers have scrapped coal from the bottom belt resulting in accumulation being present
directly under them that would contribute to the hazard that already exists. (see Cit. #
8114324) The operator engaged in aggravated conduct constituting more than ordinary
negligence in that this condition had been flagged both on the belt structure and on the
mine roof with ribbon and no action was taken to correct the violation before the belt was
put in service.
The Order was issued pursuant section 104(d)(1) of the Act for a violation of 30 C.F.R.
75.1731(a). The gravity was assessed as reasonably likely to lead to injury or illness, with such
injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was cited
as Significant and Substantial with 12 persons affected, a high degree of negligence, and
unwarrantable failure. The Order was terminated approximately two hours later after the
operator replaced five rollers.
The Secretary argues that the conditions described in Order No. 8114323 violated
75.1731(a), which requires that damaged rollers and other belt conveyor components that pose a
fire hazard be repaired or replaced immediately. Inspector Bailey observed ribbon hanging from
roof bolts and paint on the structure where five damaged rollers on the No. 2 belt were located.
He testified that operating the belt with damaged rollers was causing coal to accumulate.
The Secretary argues that the conditions satisfied the four Mathies criteria for
determining whether a violation is S&S: (1) the operator violated 75.1731(a), a mandatory safety
standard, by not replacing or repairing damaged rollers; (2) the violation contributed to the
discrete safety hazard of fire or smoke in the track/belt entry resulting from frictional heating
leading to an ignition of coal accumulations; (3) a fire, ignition, or smoke would reasonably
likely cause smoke inhalation or burns to miners working underground; and (4) that such
inhalation or burns are reasonably serious in nature. The Secretary argues that the obviousness
of the conditions and the operator’s lack of action show that it was the result of high negligence
and aggravated conduct and therefore supports a finding of unwarrantable failure.
The Respondent does not appear to argue that the cited rollers were not damaged, or that
it did not violate 75.1731(a). The Respondent argues that the Secretary failed to sustain her
burden of proving that Order No. 8114323 was an S&S violation with high negligence because
no facts were submitted on the actual conditions of the rollers. It argues that the violation had
more to do with the paint and ribbon, rather than the actual conditions of the rollers. The
Respondent contends that it was the paint and ribbon that were obvious, and not the condition of
the seven stuck rollers. Because paint and ribbons were not used to flag rollers at this mine, the

35 FMSHRC Page 1633

Respondent argues that the condition was not obvious. According to the Respondent, the paint
had been present for at least three months, and did not indicate hazardous conditions.
The Conditions Described in Order No. 8114323 Violated 30 C.F.R. §75.1731(a)
Section 75.1731(a) states:
(a) Damaged rollers, or other damaged belt conveyor components, which pose a fire
hazard must be immediately repaired or replaced. All other damaged rollers, or other
damaged belt conveyor components, must be repaired or replaced.
Judge Paez has described the purpose of §75.1731(a) at length:
In the standard's regulatory history, the Technical Study Panel (“the Panel”) identifies the
purpose of the standard as being the “[p]revention of belt fires,” because preventing such
fires “is a critical element in improving miners' safety, and proper maintenance and
examinations will reduce the likelihood of fires.” Safety Standards Regarding the
Recommendations of the Technical Panel on the Utilization of Belt Air and the
Composition and Fire Retardant Properties of Belt Materials in Underground Coal
Mining: Proposed Rule, 73 Fed. Reg. 35,026, 35,046 (proposed June 19, 2008) (to be
codified at 30 C.F.R. 75.1731(a)) [hereinafter “Proposed Rule”]…
Conveyor belts are significant contributors to underground mine fires. Indeed, MSHA
has determined that “fires in conveyor belt entries represent about 15 to 20 percent of all
underground coal mine fires.” Proposed Rule at 35,028. A belt haulage system such as
the one cited in this case is the mechanism by which coal is transported through the mine.
Generally, a belt will be hundreds to thousands of feet long and will move along groups
of rollers that form a “V” or “U” in the belt every several feet. They prevent coal from
slipping off by keeping the coal in the middle of the belt. See Stillhouse Mining, LLC, 33
FMSHRC 778, 780 (Mar. 2011) (ALJ). There will also generally be single rollers spread
out at wider intervals from each other. Id. These belt haulage systems can present an
ignition hazard. There are thousands of rollers along the belt, and any number of them
could become jammed and stop rotating fluidly or stop rotating altogether, creating
friction as the belt travels over the slowed or stopped roller. See id. at 810; Ala. By-Prods.
Corp., 4 FMSHRC at 2133. Stuck, malfunctioning, and damaged rollers are not
uncommon. The heat generated by the friction between the belt and a defective roller
heats up the roller and the belt, creating a potential ignition source. See Stillhouse, 33
MFSHRC at 810; Ala. By-Prods., 4 FMSHRC at 2133. Belt haulage systems are a major
source of fires in mines. Stillhouse, 33 FMSHRC at 810. According to MSHA's recorded
statistics, between 1980 and 2007, “[f]riction at the belt drive and along the belt was the
ignition source for 36 percent of the 65 conveyor belt fires reported.” Proposed Rule at
35,028. The Panel identified “[b]elts rubbing stands” and “damaged rollers” as two of the
indicators of increased ignition potential for examiners to look out for. Id. at 35,046.

35 FMSHRC Page 1634

San Juan Coal Co., 34 FMSHRC 2280, 2286-2287 (Aug. 2012) (ALJ).
Inspector Bailey saw paint on the structure and ribbon hanging from roof bolts along the
No. 2 belt. Tr. 42-43. Bailey described paint and ribbons as being a typical mining practice to
identify damaged rollers. Tr. 45-47. When he looked further, he saw visible damage to the five
bottom rollers where there was paint and ribbons. Tr. 43. He also saw accumulations, which
were causing the rollers to act as scrapers scraping coal off the bottom of the No. 2 belt. Tr. 43.
In order to abate the order, the Respondent replaced the five damaged rollers. Tr. 44.
The evidence further indicates that the damaged rollers were not immediately repaired or
replaced. The paint and ribbons at the five damaged rollers indicate that the Respondent was
aware that they were damaged, and did not repair or replace them. In his deposition,
Ciampanella stated that paint is used by a number of individuals at the mine to indicate that a
roller needs to be repaired.7 GX-A, p.33-34. Furthermore, it is highly improbable that the five
non-consecutive rollers that were damaged were coincidentally also the five rollers with paint
and ribbon. The violation was found to affect 12 miners for the same reasons described in
Citation 8114320, above. Tr. 48-49. Accordingly, I find that the conditions described in Citation
No. 8114323 constituted a violation of 30 C.F.R. 75.1731(a).
The Conditions Described in Citation No. 8114323 were Significant and Substantial
Having found that the conditions described in Citation No. 8114323 violated 30 C.F.R
75.1720(a), which is a mandatory safety standard, the first prong of the Mathies test is satisfied.
The second prong requires a determination of whether the violation contributed to a discrete
safety hazard. The damaged rollers on a running belt cause metal on metal grinding, which gets
worse over time, resulting in the rollers getting hot and possibly igniting nearby fuel sources and
causing smoke. Tr. 48. Here, there were coal accumulations under each of the five damaged
roller, which would serve as a fuel source if there were an ignition. Tr. 48. The coal making
contact with the damaged rollers was dry, and the coal at bottom was wet. Tr. 44. However, the
presence of some wet or damp coal is not determinative of whether the conditions are S&S,
because “damp coal dries in the presence of fire.” Utah Power & Light Co., 12 FMSHRC 965,
971 (May 1990). The evidence taken as a whole indicates that the violation contributed to the
possibility of a fire or ignition in the track entry, which is a discrete safety hazard
With regard to the third and fourth prongs of the Mathies test, Inspector Bailey testified
that a fire or ignition was reasonably likely to cause smoke inhalations or burns to miners
working underground. Tr. 49. The No. 2 belt is in the track entry, so that all shifts of miners and
foremen who enter and exit the mine travel past this belt. Tr. 48, 234. Furthermore, the track
entry is the mine’s alternate escapeway, so that miners working inby might use it for escape in an
emergency. Tr. 33. These conditions presented a reasonable likelihood that the hazard
contributed to would have resulted in a serious injury.
At hearing, Ciampanella contradicted his deposition testimony, stating that it was not
company policy to paint or hang ribbons at damaged rollers. Tr. 264-265.
7

35 FMSHRC Page 1635

The Conditions described in Citation No. 8114323 were the result of the Operator’s High
Negligence and Aggravated Conduct, making it an Unwarrantable Failure
The evidence presented by the Secretary establishes that this violation resulted from the
Respondent’s aggravated conduct, characterized as “reckless disregard,” “intentional
misconduct,” “indifference,” or the “serious lack of reasonable care.” Inspector Bailey testified
that the cited conditions existed for at least one day because the paint on the structure was
covered in dust and dirt, and not glossy. Tr. 50-51. Furthermore, the fact that the area with the
damaged rollers was painted and had ribbons hanging indicates that the mine was aware of the
conditions of the rollers and that they were obvious. Tr. 50. Several members of mine
management saw the paint and ribbons, which I find were indicative of damaged rollers, and
they did nothing to correct the problem. The damage to the rollers was visible to the eye and
posed a significant fire hazard. Tr. 43. There was no evidence that there were any efforts to
abate the condition prior to the issuance of the Citation. I have considered all six factors and
find these conditions to constitute an unwarrantable failure.
j. Citation No. 8114321
Citation No. 8114321 reads as follows:
Loose coal from wet to dry was allowed to accumulate in the belt entry at the No. 3 belt
head from 10 to 28 inches deep and for a distance of 36 feet. This coal was touching the
bottom of the belt which allowed it to contribute to a frictional heating hazard. This
condition is in the alternate escapeway and therefore has the potential to affect all miners
inby this point. This belt was removed from service immediately.
The citation was issued pursuant to section 104(a) of the Act for a violation of 30 C.F.R.
75.1731(c).8 The gravity was assessed as reasonably likely to lead to injury or illness, with such
injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was cited
as Significant and Substantial with 12 persons affected and a Moderate degree of negligence.
The Secretary argues that the conditions described in Citation No. 8114321 violated
75.1731(c), which prohibits materials in the belt conveyor entry that may contribute to a
frictional heating hazard. In the alternative, the Secretary argues that the conditions violate
75.400, which requires an operator to clean coal dust, loose coal, and other combustible
materials before they accumulate. In support of both theories, the Secretary notes that Inspector
Bailey observed a large pile of coal at the No. 3 belt drive behind the guarding while he was
riding on the man-trip towards the working section. Bailey measured the depth of the coal
accumulations and determined that the top layer was dry and in contact with the bottom belt,
thereby creating a frictional heating hazard.
This citation was amended to allege in the alternative an S&S violation of 30 C.F.R.
75.400. Tr. 7-8.
8

35 FMSHRC Page 1636

The Secretary argues that the conditions satisfied the four Mathies criteria for
determining whether a violation is S&S: (1) the operator violated either 75.400 or 75.1731(c), a
mandatory safety standard, by operating the No. 3 belt while the belt was in contact with
accumulations; (2) the violation contributed to the discrete safety hazard of smoke or fire in the
track/belt entry resulting from frictional heating leading to an ignition of coal accumulations; (3)
a fire or ignition would reasonably likely cause smoke inhalation or burns to miners working
underground; and (4) that such inhalation or burns are reasonably serious in nature. The
Secretary argues that the operator exhibited moderate negligence because it should have known
about the accumulations.
The Respondent argues that the Secretary failed to sustain her burden of proving that
Citation No. 8114321 was reasonably expected to cause lost work day injuries to 12 miners.
There were 12 miners working underground, and the Respondent contends that it is unreasonable
to expect all 12 miners to be injured even if the event were to occur. The Respondent argues that
since the air in the belt entries was traveling away from the working sections, and escape from
the mine was a short distance, most of the miners would have been able to escape without injury.
Furthermore, the mine was equipped with directional life lines, additional SCSRs, a refuge
chamber, and other emergency safety protections.
The Respondent argues that the Secretary failed to sustain her burden of proving that
Citation No. 8114321 was an S&S violation because it contends that a flame resistant belt would
not burn and the coal inside the belt guard would not burn.
The Conditions Described in Citation No. 8114321 Violated 30 C.F.R. §75.1731(c) or 30 C.F.R.
§75.400
Section 75.1731(c), which concerns the maintenance of belt conveyors and belt conveyor
entries, states:
Materials shall not be allowed in the belt conveyor entry where the material may
contribute to a frictional heating hazard.
Section 75.400, which concerns accumulation of combustible materials, states:
Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and
other combustible materials, shall be cleaned up and not be permitted to accumulate in
active workings, or on diesel-powered and electric equipment therein.
Bailey first noticed the large accumulations of coal at the No. 3 belt head as he was riding
the mantrip on an imminent danger run. Tr. 52. When Bailey examined the No. 3 belt head, he
found a large pile of coal within the drive and extending the 36-foot length of the guarding. Tr.
54. He measured the pile at between 10-28 inches, and testified that there were points where the
accumulation was touching the belt. Tr. 54-55, 137-138. The top layer of the coal was dry. Tr.

35 FMSHRC Page 1637

57. The accumulations in the belt entry could have caused a friction heating hazard because the
belt would be running in coal. Tr. 56. The belt is an abrasive surface, so that if it runs in coal it
constitutes a frictional heating hazard. Tr. 56.
The mine has flame resistant belts, which means that they will not burn unless a direct
flame is applied. Tr. 132, 174. The flame resistant belt causes no less friction than a regular belt
and may still ignite the coal beneath it. Tr. 57, 174. The coal accumulations that Inspector
Bailey observed at the No. 3 belt drive were violations of both §75.1731(c) and §75.400.
However, in order not to cite the Respondent twice for the same violation, I affirm Citation No.
8114321 as originally written.
The Conditions Described in Citation No. 8114321 were Significant and Substantial and 12
Miners were Affected
Having found that the conditions described in Citation No. 8114321 violated either 30
C.F.R 75.1731(c) or §75.400, which are mandatory safety standards, the first prong of the
Mathies test is satisfied. The second prong requires a determination of whether the violation
contributed to a discrete safety hazard. The belt running in coal accumulations is a frictional
heating hazard that can lead to fire and smoke at the belt or track entry. Tr. 58. Inspector Bailey
testified that as the belt continued to run, additional coal would accumulate, which would further
raise the likelihood of a frictional heating hazard. Tr. 85. Furthermore, as coal accumulates, it
can lift the bottom belt, causing it to become un-trained and spill more coal. Tr. 85.
With regard to the third and fourth prongs of the Mathies test, Bailey testified that a fire
or ignition was reasonably likely to cause smoke inhalations or burns to miners working
underground. Tr. 59. The No. 3 belt is in the track entry, so that all shifts of miners that enter
and exit the mine travel past the belt. Tr. 59. Furthermore, the track entry is the mine’s alternate
escapeway, so that miners working inby may use it in the event of an emergency. Tr. 33. Bailey
testified that 12 miners were affected because there were 12 miners working inby the section. Tr.
32-33, 59. In the event of an ignition or fire, all of these miners would be potentially affected by
smoke, fire, and a dangerous escapeway.
The Conditions described in Citation No. 8114321 were the result of the Operator’s Moderate
Negligence
Bailey determined that Citation No. 8114321 was the result of Respondent’s moderate
negligence because it should have known about the coal accumulations. Though the coal had
been running for approximately 45 minutes on the morning of the citation, Bailey did not believe
that the extensive conditions were created during that short period. Tr. 59-60. He estimated that
the conditions existed for at least two days. Tr. 60. Bailey designated the violations as resulting
from moderate, rather than high, negligence because Campbell told him that the small holes in
the guarding can make accumulations difficult to see. Tr. 60-61. I affirm Inspector Bailey’s
analysis and find that the conditions were the result of the Respondent’s moderate negligence.

35 FMSHRC Page 1638

k. Citation No. 8114322
Citation No. 8114322 reads as follows:
The alternate escapeway was not maintained in a safe condition to always assure passage
of anyone, including disabled persons. Thick mud was present in the escapeway at the
No. 3 belt drive for a distance of at least 2 crosscuts. This mud was up to 13 inches deep
and could result in a miner tripping while walking in the area.
The citation was issued pursuant to section 104(a) of the Act for a violation of 30 C.F.R.
75.380(d)(1). The gravity was assessed as reasonably likely to lead to injury or illness, with
such injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was
cited as Significant and Substantial with one person affected and a Moderate degree of
negligence.
The Secretary argues that the conditions described in Citation No. 8114322 violated
75.380(d)(1), which requires escapeways to be maintained in safe conditions such that all
persons are assured passage. Bailey observed thick mud stretching from the rib to the No. 3 belt,
which he measured at 13 inches deep and extending the distance of two crosscuts. The track/belt
entry has a lifeline because it is an alternate escapeway. Bailey testified that this alternate
escapeway was unsafe because it posed a slip and fall hazard and created increased difficulty of
carrying a stretcher through the area.
The Secretary argues that the conditions satisfied the four Mathies criteria for
determining whether a violation is S&S: (1) the operator violated 75.380(d)(1), a mandatory
safety standard, by allowing thick mud to exist in the alternate escapeway; (2) the violation
contributed to the discrete safety hazard of hindering escape from the mine in the event of an
emergency; (3) slipping or falling during an escape would slow a miner down, lead to increased
exposure to smoke inhalation, and possibly make escape in an emergency impossible; and (4)
that such inhalation is reasonably serious in nature. The Secretary argues that the operator
exhibited moderate negligence because it should have known about the mud in the alternate
escapeway.
The Respondent argues that the Secretary failed to sustain her burden of proving that
Citation No. 8114322 was an S&S violation. The Respondent contends that the mud would not
have had any significant impact on miners if they needed to escape via rail transportation or by
foot.
The Conditions Described in Citation No. 8114322 Violated 30 C.F.R. §75.380(d)(1)
Section 75.380(d)(1), which concerns escapeways, states:
Each escapeway shall be—(1) Maintained in a safe condition to always assure passage of
anyone, including disabled persons.

35 FMSHRC Page 1639

After Inspector Bailey returned from the imminent danger run, he exited the mantrip in
order to examine the No. 3 belt drive. Tr. 61-62. At this point he encountered thick solid mud.
Tr. 63. There was a pump nearby, but the mud was too thick for the pump to remedy the
problem. Tr. 63. Using his footprint, Bailey measured the mud at 13 inches deep in an area that
is only five feet high. Tr. 63-64, 176. The mud extended from rib to belt, with the thicker mud to
the right of the rail between the rib, as one faced outby. Tr. 64. The mud extended the length of
two cross-cuts, which measured approximately 130-150 feet long. Tr. 64. According to Graham,
there was always mud at the belt head. Tr. 175. Bailey struggled in the mud and fell several
times as he attempted to walk through the area. Tr. 62, 65.
The track entry was an alternate escapeway, with a lifeline in the deepest part of the mud.
Tr. 62, 67. The Commission has previously held that when assessing a violation of
§75.380(d)(1) in an escapeway, the judge should assess the dangers during an emergency rather
than during normal operations. Maple Creek Mining, Inc., 27 FMSHRC 555, 560 (2005).
[T]he test with respect to the use of an escape route is not whether miners have been
safely traversing the route under normal conditions, but rather the effect of the condition
of the route on miners' ability to expeditiously escape a dangerous underground
environment in an emergency.
The American Coal Co., 29 FMSHRC 941, 950 (Dec. 2007). The Commission further held that
“of particular importance in determining whether an escapeway is adequate under section 75.380
is the ability of miners to transport an injured miner on a stretcher through it.” Maple Creek
Mining, 27 FMSHRC at 560. As illustrated by Bailey’s difficulty traveling in the area, these
conditions illustrated that the escapeway was not being maintained in a manner that assured
passage of all persons, including disabled persons. Tr. 65-66. If an inspector walking through
the area under normal conditions found it difficult to traverse without slipping and falling, the
escapeway would pose a serious danger to miners—especially an injured miner in a stretcher—
during an emergency.
The Conditions Described in Citation No. 8114322 were Significant and Substantial and one
Miner was Affected
Having found that the conditions described in Citation No. 8114322 violated 30 C.F.R
75.380(d)(1), which is a mandatory safety standard, the first prong of the Mathies test is
satisfied. The second prong requires a determination of whether the violation contributed to a
discrete safety hazard. The mud in the alternate escapeway created an inability to escape the
mine quickly in the event of an emergency. Tr. 66-67. Inspector Bailey testified that the
condition would likely cause miners to slip and fall in the escapeway during normal travel and
during an evacuation. Tr. 65-67. Furthermore, since the lifeline was located above the mud, it
would be impossible for a miner to use the lifeline and avoid the mud. Tr. 67.

35 FMSHRC Page 1640

The Respondent argued that miners would be able to use the mantrip in the event of an
emergency, and thereby avoid the mud, but Bailey testified that there is no certainty that the
mantrip would be available. Tr. 139-140. Indeed, the very purpose of primary and alternate
escapeways is to allow miners
to quickly exit an underground mine and that impediments to a designated escapeway
may prevent miners from being able to do so. The legislative history of the escapeway
standard states that the purpose of requiring escapeways is “to allow persons to
escape quickly to the surface in the event of an emergency.” S. Rep. No. 91-411, at
83, Legislative History, at 209 (1975).
Mill Branch Coal Corp., 34 FMSHRC 2090, 2123-2124 (Aug. 2012) (ALJ) (emphasis in
original).
With regard to the third and fourth prongs of the Mathies test, the hazard of slipping and
falling, especially during an emergency, could result in one spraining or breaking a leg, knee,
back, or wrist, as well as increased exposure to smoke and other hazards. Tr. 66-67. Such an
injury would be significant in nature. Even in non-emergency situations, there is a discrete
danger of miners slipping and falling down onto the rail or the ground. Tr. 65-66. Such falls
could result in serious injuries.
Inspector Bailey cited the violation as affecting one miner, because even if all 12 miners
inby were evacuating, it would be likely that most of them would not sustain serious injuries due
to a slip or fall. Tr. 70. I credit Bailey’s testimony here and find it to be a reasonable conclusion.
The Conditions described in Citation No. 8114322 were the result of the Operator’s Moderate
Negligence
Inspector Bailey testified that the conditions described in Citation No. 8114322 were the
result of the Respondent’s moderate negligence because it should have known about the mud in
the alternate escapeway, given its extensiveness. Tr. 69. Though no one presented any
mitigating evidence, he found that it was not entirely visible from the mantrip, and one had to
step in it to become aware of it. Tr. 70. The violation was abated through a combination of
miners shoveling the mud and by adding water in order to liquefy it and allow the pump to
remove it. Tr. 70-71, 142. I therefore affirm that this citation was the result of moderate
negligence.
l. Citation No. 8114324
Citation No. 8114324 reads as follows:
Combustible material in the form of loose coal, wet to dry, was present on the No. 2 belt
under 5 bad rollers, and at the drive. This coal ranged from four inches deep under one
of the rollers to up to 15 inches deep at the drive. The coal located under the bottom

35 FMSHRC Page 1641

rollers had a reasonably likely ignition source to ignite the coal exposing all miners inby.
This entry is the alternate escapeway. (see Citation #8114323) The coal has been
removed from under the damaged rollers. The operator will be allowed additional time to
remove the coal at the drive.
The citation was issued pursuant to section 104(a) of the Act for a violation of 30 C.F.R.
75.400. The gravity was assessed as reasonably likely to lead to injury or illness, with such
injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was cited
as Significant and Substantial with 12 persons affected and a Moderate degree of negligence.
The Secretary argues that the conditions described in Citation No. 8114324 violated
75.400, which requires that loose coal and other combustible materials be cleaned up and not be
permitted to accumulate. Bailey found coal accumulations under five damaged rollers on the
No. 2 belt. The Secretary argues that the conditions satisfied the four Mathies criteria for
determining whether a violation is S&S: (1) the operator violated 75.400, a mandatory safety
standard, by not cleaning up these accumulations; (2) the violation contributed to the discrete
safety hazard of fire in the track/belt entry resulting from frictional heating leading to an ignition
of coal accumulations; (3) a fire or ignition would reasonably likely cause smoke inhalation or
burns to miners working underground; and (4) that such inhalation or burns are reasonably
serious in nature. The Secretary argues that the operator exhibited moderate negligence because
it should have known about the accumulations under the five damaged rollers.
The Respondent argues that the Secretary failed to sustain her burden of proving that
Citation No. 8114324 was reasonably expected to cause lost work day injuries to 12 miners.
There were 12 miners working underground, and the Respondent contends that it is unreasonable
to expect all 12 miners to be injured even if the event were to occur. The Respondent argues that
since the air in the belt entries was traveling away from the working sections and escape from
the mine was a short distance, most of the miners would have been able to escape without injury.
Furthermore, the mine was equipped with directional life lines, additional SCSRs, a refuge
chamber, and other emergency safety protections.
The Respondent further argues that the Secretary failed to sustain her burden of proving
that Citation No. 8114324 was an S&S violation. The Respondent contends that the
accumulations cited were not in contact with any moving parts or belt rollers. Furthermore, the
No. 2 belt was the wettest at the mine.
The Conditions Described in Citation No. 8114324 Violated 30 C.F.R. §75.400
Section 75.400, which concerns accumulations of combustible materials, states:
Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and
other combustible materials, shall be cleaned up and not be permitted to accumulate in
active workings, or on diesel-powered and electric equipment therein.

35 FMSHRC Page 1642

The Commission has held that a violative “‘accumulation’ exists ‘where the quantity of
combustible materials is such that, in the judgment of the authorized representative of the
Secretary, it likely could cause a fire or explosion if an ignition source were present.’” Utah
Power & Lighting Co., 12 FMSHRC 965, 968 (May 199), quoting Old Ben Coal Co., 2
FMSHRC 2806, 2808 (Oct. 1980), aff’d 951 F.2d 292 (10th Cir. 1991). Citing legislative history
and precedent, the Commission was clear that “[t]he standard was directed at preventing
accumulations in the first instance, not at cleaning up the materials within a reasonable period of
time after they have accumulated.” Id. Furthermore, the inspector’s judgment should be
reviewed judicially by reference to an objective test of whether a reasonably prudent person,
familiar with the mining industry and the protective purpose of the standard, would have
recognized the hazardous condition that the regulation seeks to prevent. Id., citing Canon Coal
Co., 9 FMSHRC 667,668 (Apr. 1987).
Inspector Bailey testified that there were five localized piles of coal underneath the
damaged rollers at the No. 2 belt. Tr. 71. He further found accumulations within the guarding at
the drive. Tr. 71. Upon measuring the piles, he found that the smallest pile was four inches deep
and the largest was 15 inches deep, with the coal directly under the rollers dry. Tr. 71. None of
the witnesses contradicted this testimony. Tr. 269-270. I find that the Respondent violated
§75.400 by permitting the cited accumulations to exist in a manner contrary to the regulation.
The Conditions Described in Citation No. 8114324 were Significant and Substantial and 12
Miners were Affected
Having found that the conditions described in Citation No. 8114324 violated 30 C.F.R
75.400, which is a mandatory safety standard, the first prong of the Mathies test is satisfied. The
second prong requires a determination of whether the violation contributed to a discrete safety
hazard. Inspector Bailey’s testimony establishes that the violation contributed to the discrete
safety standard of a fire in the track or belt entry for the same reason as the accumulations
discussed above. Tr. 48. This hazard resulted from the frictional heating hazard caused by the
damaged rollers on a running belt, which could ignite coal accumulations or cause smoke. Tr. 48.
Assuming normal continued mining operations, Bailey estimated that the belt would run until
midnight on September 8, during both of the mine’s production shifts. Tr. 48. This would allow
the metal on metal friction, described in citations above, to increase and cause the damaged
rollers to get hot enough to ignite the coal accumulations beneath them or cause smoke. Tr. 48.
Bailey’s testimony also satisfies the third and fourth prongs of Mathies, which require a
reasonable likelihood that the hazard contributed to would result in an injury, and that the injury
are reasonably serious in nature. A fire or ignition was reasonably likely to cause burns or lead
to smoke inhalations to miners underground. Tr. 49. The No. 2 belt is in the track entry, so all
shifts of miners enter and exit the mine traveling past this belt, exposing them to the hazard. Tr.
48, 234. Furthermore, the track entry is the mine’s alternate escapeway, which means that in the
event of an emergency miners working inby may need to escape using the track entry. Tr. 33.

35 FMSHRC Page 1643

The violation affected 12 miners because at the time that Bailey cited the Respondent
there were 12 miners working inby the belt. Tr. 33, 74. Additionally, if a fire rages out of
control, it would potentially damage the adjacent intake stopping line, which would short circuit
the air and push the belt air to the face or cause smoke to enter the intake. Tr. 33.
The Conditions described in Citation No. 8114324 were the result of the Operator’s Moderate
Negligence
Inspector Bailey testified that the conditions described in Citation No. 8114324 were the
result of the Respondent’s moderate negligence because it should have known about the coal
accumulations located under the five damaged rollers, given that they had existed for at least one
day. Tr. 73. The conditions should have been discovered and corrected during the September 8
preshift examination for the day shift, or by the two section foremen who traveled past the No. 2
belt at the start of the September 8 shift. Tr. 73. These facts indicate that the Respondent should
have known about the accumulations, and I affirm the citation as resulting from moderate
negligence.
m. Order No. 8114325
Order No. 8114325 reads as follows:
The operator conducted an inadequate preshift examination on the belts for the oncoming
day shift on this day and several shifts prior to that. Four violations were written on the
No. 1, 2, and 3 belts (Citation #’s 8114320, 8114321, and 8114324) during this shift. All
violations were deemed S+S by the authorized representative, and two of the four were
written as unwarrantable failure to comply with a mandatory standard. The operator has
not recorded one hazard or violation on any of the belts for at least 2 weeks going back to
8/2010. These conditions were obvious, extensive, and had existed for a period of time
longer than 2 shifts. The operator engaged in aggravated conduct constituting more than
ordinary negligence in that the conditions on the belt were obvious, and no examiner
made a record of the conditions in the examination book. This is an unwarrantable
failure to comply with a mandatory standard.
The Order was issued pursuant section 104(d)(1) of the Act for a violation of 30 C.F.R.
75.360(a)(1). The gravity was assessed as reasonably likely to lead to injury or illness, with such
injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was cited
as Significant and Substantial, with 12 persons affected, a high degree of negligence, and an
unwarrantable failure.
The Secretary argues that the conditions described in Order No. 8114325 violated
75.360(a)(1), which requires the operator to conduct pre-shift examinations in areas where
persons are scheduled to work or travel. The miners were scheduled to travel the track
haulageway, which is in the same entry as the Nos. 1, 2, and 3 belts. Therefore, the Secretary

35 FMSHRC Page 1644

argues that the conditions that Bailey cited in the Nos. 1, 2, and 3 belts were hazards that the
preshift examinations should have recorded.
The Secretary argues that the conditions satisfied the four Mathies criteria for
determining whether a violation is S&S: (1) the operator violated 75.360(a)(1), a mandatory
safety standard, by failing to conduct adequate preshift examinations; (2) the violation
contributed to the discrete safety hazard of fire in the track/belt entry resulting from frictional
heating leading to an ignition of coal accumulations; (3) a fire or ignition would reasonably
likely cause smoke inhalation or burns to miners working underground; and (4) that such
inhalation or burns are reasonably serious in nature. The Secretary argues that the conditions
were the result of high negligence and aggravated conduct and therefore support a finding of
unwarrantable failure.
The Respondent argues that the Secretary failed to sustain her burden that Order No.
8114325 was a violation of Section 75.360(a)(1). The Respondent contends that none of the
areas listed under Section 75.360(b) required a pre-shift examination of the belts. It contends
that because no work was scheduled on the track/belt entry for the following shift, it was not
required to conduct complete pre-shift examinations of the belts. Furthermore, it maintains that
on-shift examinations of the belts were being properly conducted. Additionally, the Respondent
argues that since it installed “top of the line” rigid metal frames with “life time bearing” in the
idler rollers, the belts were kept in line and level, thereby not requiring much maintenance.
The Respondent further argues that the Secretary failed to sustain her burden of proving
that Citation No. 8114325 was reasonably expected to cause lost work day injuries to 12 miners.
There were 12 miners working underground, and the Respondent contends that it is
unreasonable to expect all 12 miners to be injured even if the event were to occur. The
Respondent argues that since the air in the belt entries was traveling away from the working
sections, and escape from the mine was a short distance, most of the miners would have been
able to escape without injury. Furthermore, the mine was equipped with directional life lines,
additional SCSRs, a refuge chamber, and other emergency safety protections.
The Conditions Described in Order No. 8114325 Violated 30 C.F.R. §75.360(a)(1)
Section 75.360(a)(1), which concerns preshift examinations at fixed intervals, states:
Except as provided in paragraph (a)(2) of this section, a certified person designated by
the operator must make a preshift examination within 3 hours preceding the beginning of
any 8–hour interval during which any person is scheduled to work or travel underground.
No person other than certified examiners may enter or remain in any underground area
unless a preshift examination has been completed for the established 8–hour interval. The
operator must establish 8–hour intervals of time subject to the required preshift
examinations.

35 FMSHRC Page 1645

Inspector Bailey issued Order No. 8114325 for failure to conduct an adequate preshift
examination as required under §75.360(a)(1) following his finding of violations at the Nos. 1, 2,
and 3 belts that led to Citation Nos. 8114320, 8114321, 8114323, and 8114324. Section
75.360(a)(1) requires a preshift examination for every 8-hour interval during which persons are
scheduled to work or travel underground. Section 75.360(b)(1) specifies that these preshift
examinations must be conducted in roadways, travelways and track haulageways where persons
are scheduled to work or travel during the oncoming shift. The plain language of §76.360 is
“unambiguous.” Buck Creek Coal, Inc., 17 FMSHRC 8, 15 (Jan. 1995). On its face it is clear in
its requirement of a preshift examination in areas where miners are scheduled to work or travel.
The Respondent’s repeated arguments that preshift examinations are only required for areas
where miners are scheduled to work is a misreading of the regulation.
The Commission has recognized preshift examinations as “of fundamental importance in
assuring a safe working environment underground.” Buck Creek Coal, 17 FMSHRC at 15; see
also Jim Walter Resources, Inc., 28 FMSHRC 579, 598 (Aug. 2006). Chairman Jordan and
Commissioner Marks have referred to the preshift inspection requirement as “the linchpin of
Mine Act safety protections.” Manalapan Mining Co., Inc., 18 FMSHRC 1375, 1391 (August
1996) (Jordan and Marks, concurring and dissenting in part). MSHA requires several layers of
examinations, including on-shift, preshift, and weekly examinations, in order to ensure miner
safety. “These examinations are designed to create a multi-layer, prophylactic approach to the
identification and correction of hazardous or unsafe conditions in the mine.” Coal River Mining,
LLC, 34 FMSHRC 1087, 1095 (May 2012) (ALJ).
The Commission has clarified that the term “hazardous conditions” in §75.360(b) does
not require that the condition be S&S or reasonably likely to result in injury; rather, the term
“hazard” denotes a measure of danger to safety or health. Enlow Fork Mining Co., 1997 WL
14346, *7 (1997). “The Commission has approved the definition of “hazard” as “a possible
source of peril, danger, duress, or difficulty,” or “a condition that tends to create or increase the
possibility of loss.” Id.
The Nos. 1, 2, and 3 belts constitute areas where miners are scheduled to travel because
the track haulageway is located in the same entry. Tr. 77. Inspector Bailey testified that the
conditions he cited at the Nos. 1, 2, and 3 belts were hazards that should have been recorded by
the preshift examination records for the September 8, 2010 day shift. Tr. 78, 159-160. Graham,
the Respondent’s preshift examiner, agreed that a damaged roller, rollers turning in coal
accumulations, and a large accumulation of coal should all be recorded during a preshift
examination of the belts. Tr. 189-190, 192-193.

35 FMSHRC Page 1646

Bailey testified that he reviewed the preshift examination records for the preceding two
weeks and did not see any hazards or violations recorded on the Nos. 1, 2, or 3 belts.9 Tr. 75-76.
As discussed above, Bailey testified that the conditions that he observed on the belts had existed
for at least one day, and in some cases up to a week. Tr. 37, 51, 60, 73. Had adequate preshift
examinations been performed, these hazards would have been reported.
The crux of Respondent’s argument relies on an erroneous reading of §75.360 that only
requires preshift examinations for times when persons are scheduled to work. Tr. 209, 241; Resp.
Post-Hearing Brief, 20-22. However, §75.360(a)(1) is clear in requiring a “preshift examination
within 3 hours preceding the beginning of any 8-hour interval during which any person is
scheduled to work or travel underground.” 30 C.F.R. 75.360(a)(1) (emphasis added). Similarly,
section (b)(1), which is similarly applicable here, specifies that preshift examinations must be
performed in “roadways, travelways and track haulageways where persons are scheduled, prior
to the beginning of the preshift examination, to work or travel during the oncoming shift.” 30
C.F.R. 75.360(b)(1) (emphasis added). Furthermore, section (b)(10) specifies that preshift
examinations must be performed in “[o]ther areas where work or travel during the oncoming
shift is scheduled prior to the beginning of the preshift examination.” 30 C.F.R. 75.360(b)(10)
(emphasis added). Respondent’s interpretation of the regulation is highly selective and
unreasonable. The regulation is clear in its requirements of areas where miners work or travel.
The Respondent also argues that the belt system was new and the fact that no top rollers
were stuck or damaged shows that the belts were being properly maintained. However, this
argument misunderstands the regulation at issue. Section 75.360 requires the operator to
conduct preshift examinations before shifts where miners are scheduled to work or travel. If the
belt system is new and properly maintained, as Respondent asserts, then there should be no
hazards to report. However, neither the age of the system nor its maintenance reduce the
operator’s burden to conduct preshift examinations, and report any hazards discovered.
I find that Graham failed to conduct a proper preshift examination of the belts for the
oncoming September 8 day shift. Graham testified that he only looks for obvious hazards, such
as a broken piece of belt structure, a roller out of a hanger, or a belt with a rock fallen on it. Tr.
179. Graham testified that he was not looking for large accumulations at the belt, flagged
rollers, stuck rollers, or rollers turning in accumulations during his preshift examination on
September 8. Tr. 189-190, 192-194.

Bailey testified that there were hazards reported on the belts 11 days prior to the
inspection. Tr. 88, 94. At hearing, Bailey also reviewed the preshift and onshift reports, and
testified that most of the entries preceding the inspection were onshift reports, and many of them
were written so generally that he did not view them as reports of hazards. Tr. 100, 155-156.
9

35 FMSHRC Page 1647

The Conditions Described in Order No. 8114325 were Significant and Substantial
Having found that the conditions described in Order No. 8114325 violated 30 C.F.R
75.360(a)(1), which is a mandatory safety standard, the first prong of the Mathies test is
satisfied. The second prong requires a determination of whether the violation contributed to a
discrete safety hazard. Inspector Bailey’s testimony establishes that the violation contributed to
a discrete safety hazard; namely, a fire in the track/belt entry or smoke resulting from the
ignition of coal due to the frictional heating hazards cited in Citation/Order Nos. 8114320,
8114321, 8114323, and 8114324. Tr. 82. Each of these individual citations was found and
affirmed as S&S above. The details of how each cited condition contributed to a frictional
heating hazard, as well as smoke hazard, and how those hazards were reasonably likely to result
in a serious injury are discussed above. As such, the failure to perform adequate preshift
examinations, which allowed the violations discussed above to persist, is S&S.
The Conditions described in Order No. 8114325 were the result of the Operator’s High
Negligence and Aggravated Conduct, making it an Unwarrantable Failure
The evidence presented by the Secretary establishes that this violation resulted from the
Respondent’s aggravating conduct, characterized as “reckless disregard,” “intentional
misconduct,” “indifference,” or the “serious lack of reasonable care.” The Commission has held
that a preshift examiner acts as the agent of the mine operator when he is performing his
examinations and his conduct is imputable to the miner operator for unwarrantable failure
purposes. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 195-197 (Feb. 1991).
Inspector Bailey testified that he designated this order as an unwarrantable failure
because the conditions cited in Citation/Order Nos. 8114320, 8114321, 8114323, and 8114324
were obvious and extensive. Tr. 108. Nothing in the record contradicts this testimony. There
were no mitigating circumstances presented by the Respondent that would lower the negligence
involved. The conditions that Bailey cited had existed for at least a day and up to a week,
meaning that adequate preshift examinations were also not being conducted for similar lengths of
time. Tr. 37, 51, 60, 73. Had adequate preshift examinations been conducted, they would have
discovered the hazards cited. There is no evidence in the record that the Respondent attempted
to abate the conditions prior to the Order. The Respondent knew or should have known that
adequate preshift examinations were not being conducted because visible hazards existed, but
the examination book did not reflect this fact. In this particular case, I find that the requirement
for preshift examinations is a central concern of the Mine Act and the regulation is abundantly
clear. Therefore, though there is no indication that the Respondent received specific notice, I
find that the other factors support a finding of unwarrantable failure.
Civil Penalties
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Act are well-established. Section 110(i) of the
Act delegates to the Commission and its judges the authority to assess all civil penalties provided

35 FMSHRC Page 1648

in the Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. The Act requires, that in assessing civil monetary penalties, the Commission
[ALJ] shall consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect of the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. § 820(i).
I affirm Citation No. 8114320 as issued, and find that the Respondent violated 30 C.F.R.
75.1725(a). The citation was correctly designated as being S&S, resulting from high negligence
and an unwarrantable failure. Further, it was correctly designated as reasonably likely to lead to
injury or illness, with such injury or illness reasonably leading to lost workdays or restricted
duty and 12 miners affected. The Citation and penalty of $6,996.00 were correct as issued and
are affirmed.
I also affirm Order No. 8114323 as issued, and find that the Respondent violated 30
C.F.R. 75.1731(a). The Order was correctly designated as S&S, resulting from high negligence
and an unwarrantable failure. Further, the Order was correctly designated as reasonably likely
to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or
restricted duty, with 12 miners affected. The Order and penalty of $28,800.00 were correct as
issued and are affirmed.
I also affirm Citation No. 8114321 as issued, and find that the Respondent violated 30
C.F.R. 75.1731(c) and 30 C.F.R. 75.400. The Citation was correctly designated as S&S and
resulting from moderate negligence. Further, the Citation was correctly designated as
reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to
lost workdays or restricted duty and 12 miners affected. The Citation and penalty of $2,106.00
were correct as issued and are affirmed.
I also affirm Citation No. 8114322 as issued, and find that the Respondent violated 30
C.F.R. 75.380(d)(1). The Citation was correctly designated as S&S and resulting from
moderate negligence. Further, the Citation was correctly designated as reasonably likely to lead
to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted
duty and one miner affected. The Citation and penalty of $540.00 were correct as issued and
are affirmed.

35 FMSHRC Page 1649

I also affirm Citation No. 8114324 as issued, and find that the Respondent violated 30
C.F.R. 75.400. The Citation was correctly designated as S&S and resulting from moderate
negligence. Further, the Citation was correctly designated as reasonably likely to lead to injury
or illness, with such injury or illness reasonably leading to lost workdays or restricted duty and
12 miners affected. The Citation and penalty of $2,106.00 were correct as issued and are
affirmed.
I also affirm Order No. 8114325 as issued, and find that the Respondent violated 30
C.F.R. 75.360(a)(1). The Order was correctly designated as S&S, resulting from high
negligence and an unwarrantable failure. Further, the Order was correctly designated as
reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to
lost workdays or restricted duty, with 12 miners affected. The Order and penalty of $28,800.00
were correct as issued and are affirmed.
I have fully considered all six statutory penalty criteria and assess a civil penalty
in the amount of $69,348. Raw Coal is a large operator and the parties have stipulated
that the penalty will not have any effect on the operator’s ability to continue in business.
Stip. 8, 11. According to the Mine Data Retrieval System, the Sewell Mine B has a
significant history of violations. The negligence in several of the citations and orders
considered above was high, and the gravity was affirmed as reasonably likely to lead to
injury or illness, with such injury or illness reasonably leading to lost workdays or
restricted duty.
ORDER
For the reasons set forth above, the citations are AFFIRMED as indicated. Raw Coal
Mining Company is ORDERED TO PAY the Secretary of Labor the sum of $69,348.00 within
30 days of the date of this decision.10

/s/ William S. Steele
William S. Steele
Administrative Law Judge

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.
10

35 FMSHRC Page 1650

Distribution: (Certified Mail)
Cheryl E. Carroll, U.S. Department of Labor, 1100 Wilson Boulevard, 22nd Floor West,
Arlington, VA 22209
James F. Bowman, P.O. Box 99, Midway, WV 25878

35 FMSHRC Page 1651

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
FACSIMILE: (412) 928-8689

June 5, 2013

DOMINION COAL CORPORATION,
Contestant,
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
DOMINION COAL CORPORATION,
Respondent

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

CONTEST PROCEEDINGS
Docket No. VA 2011-334-R
Order No. 8185281; 03/02/2011
Docket No. VA 2011-549-R
Order No. 8173479; 06/27/2011
Mine: No. 36
Mine ID: 44-06759
CIVIL PENALTY PROCEEDING
Docket No. VA 2012-126
A.C. No. 44-06759-272556-01

Mine: No. 36

DECISION
Appearances:

Emily K. Hargrove, Esq., & Daniel Povich, Esq., U.S. Department of
Labor, Office of the Solicitor, Arlington, VA for the Secretary
Scott Wickline, Esq., Hardy Pence, PLLC, Charleston, WV for
Respondent

Before:

Judge Steele

STATEMENT OF THE CASE
This civil penalty proceeding is conducted pursuant to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (the “Mine Act” or “Act”). This matter
concerns Order Nos. 8185281 and 8173479 and Citation No. 8189545. However, at hearing
Dominion Coal Corporation (“Dominion” or “Respondent”) asserted that it would no longer
contest Citation No. 8189545. (Transcript at 7).1 Order No. 8185281 was issued under Section
104(d)(1) for failure to comply with 30 C.F.R. §50.10(d). Order No. 8173479 was issued under
Section 104(d)(2) for failure to comply with 30 U.S.C. §876(b). Both Orders were served on
1

Hereinafter references to the transcript will be cited “Tr.” with the page number.

35 FMSHRC Page 1652

Respondent. The Secretary seeks civil penalties in the amount of $30,000.00. A hearing was
held in Grundy, VA on December 12, 2012 where the parties presented testimony and
documentary evidence. After the hearing, the parties submitted Post Hearing Briefs.
STIPULATIONS
The parties have stipulated to the following:
1. Dominion was an “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C.
§803(d), at Mine #36.
2. Respondent’s Mine #36 is a “mine” as that term is defined in Section 3(h) of the Mine
Act, 30 U.S.C. §803(h).
3. Operations at Respondent’s Mine #36, where the Orders at issue in this proceeding
were issued, are subject to the jurisdiction of the Mine Act.
4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designed Administrative Law Judges pursuant to §§105
and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823.
5. The total proposed penalty for the Orders in this proceeding will not affect
Respondent’s ability to continue in business.
6. The Orders at issue in this proceeding were issued by an authorized representative of
the Secretary.
ORDER NO. 8173479
1. Contents of the Order
On June 27, 2011 at 10:20 a.m., Inspector Dennis Shortt (“Shortt”) issued to Respondent
Order No. 8173479. Simmons found:
The approved Emergency Response Plan for this mine was not being followed. A
communications failure occurred on 6/24/2011 at approximately 6:00 pm.
Wireless communication capability was lost from T-1 belt drive up to an
including the T section. The plan states that the operator will notify MSHA of a
communication system failure that extends longer than 12 consecutive hours. The
operators has not reported the failure
Government’s Exhibit 1 (Hereinafter GX-1). Shortt noted that the gravity of this violation was
“No Likelihood,” “No Lost Workdays,” and would affect ten persons. Id. He further marked
that Respondent exhibited “High” negligence with respect to this violation. Id. Shortt noted that
the respondent terminated the cited condition on June 27, 2011 by reporting the failure. Id.

35 FMSHRC Page 1653

On June 27, 2011 at 1:37 p.m., Shortt issued a modification of the order changing the
“Condition or Practice” section to include the following:
The wording in this violation should also state: Management engaged in
aggravated conduct constituting more than ordinary negligence in that the
operator failed to comply with the Approved Emergency Response Plan. This
violation is an unwarrantable failure to comply with a mandatory standard.
Id.
2. Legal Standards
Order No. 8173479 was issued under Section 104(d)(2) of the Mine Act. That provision
provides the following:
If a withdrawal order with respect to any area in a coal or other mine has been
issued pursuant to paragraph (1), a withdrawal order shall promptly be issued by
an authorized representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar to those that resulted in
the issuance of the withdrawal order under paragraph (1) until such time as an
inspection of such mine discloses no similar violations. Following an inspection
of such mine which discloses no similar violations, the provisions of paragraph
(1) shall again be applicable to that mine.
30 U.S.C. § 814(d)(2).
The Order deals with an alleged violation of Section 316(b) of the Mine Act (titled
“Communication facilities; locations and emergency response plans”). That section provides, in
pertinent part, the following:
Accident preparedness and response
(1) In general - Each underground coal mine operator shall carry out on a
continuing basis a program to improve accident preparedness and response at
each mine.
(2) Response and preparedness plan
(A) In general - Not later than 60 days after June 15, 2006, each
underground coal mine operator shall develop and adopt a written accident
response plan that complies with this subsection with respect to each mine
of the operator, and periodically update such plans to reflect changes in
operations in the mine, advances in technology, or other relevant
considerations. Each such operator shall make the accident response plan
available to the miners and the miners' representatives…

35 FMSHRC Page 1654

(E) Plan content-general requirements - To be approved under
subparagraph (C), an accident response plan shall include the following:
(i) Post-accident communications - The plan shall provide for a
redundant means of communication with the surface for persons
underground, such as secondary telephone or equivalent two-way
communication…
(F) Plan content-specific requirements…
(ii) Post accident communications - Not later than 3 years after
June 15, 2006, a plan shall, to be approved, provide for post
accident communication between underground and surface
personnel via a wireless two-way medium, and provide for an
electronic tracking system permitting surface personnel to
determine the location of any persons trapped underground or set
forth within the plan the reasons such provisions can not be
adopted. Where such plan sets forth the reasons such provisions
can not be adopted, the plan shall also set forth the operator's
alternative means of compliance. Such alternative shall
approximate, as closely as possible, the degree of functional utility
and safety protection provided by the wireless two-way medium
and tracking system referred to in this subpart.
30 U.S.C. §876(b).
3. Summary of Testimony
a. Testimony of Dennis Allen Shortt, Jr.:
Shortt started in the coal industry in 1994. (Tr. 15). He attended college and worked in
the industry through a Co-Op program. (Tr. 15). After college he worked in the mines as a
maintenance foreman until 2003. (Tr. 15). He was out of the industry until 2005 when he went
to MSHA. (Tr. 15). He has worked for MSHA for seven years. (Tr. 14-15).
Shortt is an electrical specialist for MSHA. (Tr. 14). In that capacity, he checks the main
power distribution system throughout the mine, starting with the substations. (Tr. 16). He also
checks ground faults, cables, pumps, gas, fire suppression systems, and seal marking systems.
(Tr. 16). In addition, he reviews emergency response plans (“ERP”). (Tr. 16). For an electrical
specialist, the ERP mostly consists of the tracking and communication system. (Tr. 16). 2

2

The wireless communication system is designed to allow miners to communicate
throughout the mine at specific areas while they are working. (Tr. 40). The communication
system helps miners escape during an emergency. (Tr. 49).

35 FMSHRC Page 1655

Shortt went to #36 Mine with Gary Perkins, another electrical specialist, to terminate
citations issued by Perkins. (Tr. 17-18). That morning he reviewed the mine file and those
citations. (Tr. 18). When he arrived at the mine, he found out that the carbon monoxide system
was down. (Tr. 18). He waited to see if they would fix the CO system so he could proceed
underground and terminate the citation there, but they did not. (Tr. 18-19).
While he waited, Shortt learned that the communication system was down on the T
Section. (Tr. 19). He believed he learned this when he overheard a conversation on the mine
page pole (a hard-line communication system). (Tr. 19). Two inspectors, Frankie Sullivan and
Wade Taylor, were going to the section and when they arrived at T-1 there was no wireless or
hard-line communication. (Tr. 19, 48). The communications were down from T-1 belt drive all
the way up to and including T Section. (Tr. 20, 48).
Shortt spoke with Dan Vance (“Vance”), the chief electrician. (Tr. 19-20). Vance was
aware and said the wireless system went down the previous Friday. (Tr. 19-20). Vance said
there was a high-voltage problem: a miner struck a cable and caused an arc, spark, or surge in the
system. (Tr. 20). This caused the power supplies to go out on the wireless system and he had
ordered power supplies. (Tr. 20). Vance showed Shortt the purchase order where he had
ordered power supply replacements. (Tr. 20).
Vance stated that he did not know that he was required to report the failure. (Tr. 20, 46,
49). He offered no other reasons for the failure to report. (Tr. 21). He was not trying to hide
anything. (Tr. 44-45). However, Vance did report the condition before Shortt learned about it
from other sources. (Tr. 45). Shortt did not read anything negative into that fact. (Tr. 45).
Vance admitted to Shortt that he had attended a class taught by Jason Lane (“Lane”), an
electrical supervisor with MSHA a month earlier. (Tr. 20-21, 47-49). The class was offered
because there was confusion about the ERP requirements. (Tr. 21). Respondent voluntarily
agreed to have its employees participate and Shortt believes that is a good thing. (Tr. 33). Shortt
reviewed Respondent’s ERP that was apparently in effect when the Order was issued (GX-2).
(Tr. 21-22). The maintenance requirements on page 5 state, “[t]he operator shall [sic] the MSHA
Hotline of a communication system failure that extends longer than 12 consecutive hours at 1800-746-1553.” (Tr. 22).3 Shortt assumed Lane discussed this section in class. (Tr. 22, 34).
Despite the class, Vance did not report the communication outage. (Tr. 48). On crossexamination he conceded that he was not at the class and does not know what was discussed.
(Tr. 34-35, 42). He just knows what Lane taught the electrical specialists. (Tr. 35, 49). Lane
told Shortt that an outage for any reason was reportable. (Tr. 49).
The ERP says that Respondent must notify MSHA of communication failures lasting
longer than 12 hours but it does not say when that notification must take place. (Tr. 42-43).
Vance fixed the high voltage problem, but not the communication problem, on Friday because he
was waiting for parts. (Tr. 43-44). As far as Shortt knew, Respondent ran coal on the weekend.
(Tr. 43). Vance was not working on the system when Shortt arrived on Monday; he was waiting
3

(Tr. 22).

There was an obvious typo in the ERP and Shortt believes it has since been corrected.

35 FMSHRC Page 1656

for parts. (Tr. 44). Shortt did not think it would be reasonable for Vance to wait until the failure
was corrected before reporting. (Tr. 45). Shortt believed that if the communication system goes
down on Friday at 5:00 pm it must be reported even if no one will be at the mine during the
weekend. (Tr. 41). He said this during inspections. (Tr. 41). If there was confusion about the
requirements, then the question should have been asked; especially in light of Lane’s class. (Tr.
41).
The purpose of the reporting requirements was to help MSHA collect data on the
reliability of new systems. (Tr. 35). The wireless system was a new requirement for the mining
industry. (Tr. 30-31). There were different manufacturers of different types of wireless systems.
(Tr. 31). The mining environment and changing conditions in mining created some unique
challenges to wireless systems. (Tr. 31-32). During this period, operators were having some
issues with these systems. (Tr. 32). Shortt conceded that this situation was not like the reporting
requirement of an accident where MSHA needs to take control of the scene, preserve evidence,
and conduct an investigation. (Tr. 35). Time would not be of the essence. (Tr. 35-36).
Shortt recalled that Respondent’s wireless system had been up since May 11, 2011, a
month before it was cited. (Tr. 31). Respondent and other operators had a lot of questions about
the new reporting requirements under the ERP. (Tr. 32). An operator seeking clarification from
MSHA is a good sign that it wants to comply. (Tr. 32). Respondent trained its employees,
including Vance, on the ERP. (Tr. 32). Shortt felt Respondent did its part in training and getting
“ahead of the game” as far as reporting was concerned. (Tr. 33).
Only the T-section was down and to the best of Shortt’s understanding, wireless
communications at Mine #36 R Section and U section were not down. (Tr. 36-37). The ERP
discusses the system as a singular unit. (Tr. 36).
Shortt’s notes at Page 6 show that the wireless system was down because of a groundfault condition, not because of a defect in the wireless system. (Tr. 38). A surge in the high
voltage took out the power supplies for the system. (Tr. 39). However, he maintained that the
ERP did not limit the reporting requirement to certain conditions. (Tr. 39). He believed
reporting was required regardless of cause. (Tr. 40).
Shortt reviewed an MSHA Escalation Report dated June 24, 2011 (GX-3). (Tr. 23). An
Escalation Report is a record of communication with MSHA’s 1-800 number. (Tr. 23-24). The
report stated, “Details provided by customer. The caller is reporting their tracking and
communication system is down. The caller stated the system has been down since 9:10 last night
6/23/2011 in section A of the mine.” (Tr. 24). Shortt included this in his notes at page 11
because he called Lane to see if any failure had been reported for #36. (Tr. 23). He learned that
#36 had not reported a communication failure but #30 had. (Tr. 23, 32-33). There were two
sections in #30. (Tr. 24). Tim Thompson, the safety director for Dominion Coal reported this
condition. (Tr. 24-25).
Shortt reviewed Order No. 8173479 (GX-1). (Tr. 17). He issued a 104(d)(2) order
because Vance was the chief electrician and had been negligent. (Tr. 26). He went to Lane’s
class and had knowledge of reporting requirements. (Tr. 26). Shortt learned from the mine file

35 FMSHRC Page 1657

that Respondent was already on the (d) sequence. (Tr. 26). Shortt did not go underground and
actually observe the violation. (Tr. 27). He wrote the citation based on information he got from
Vance. (Tr. 27).
With modifications, Shortt wrote the Order as no likelihood, no lost workdays, non S&S,
and no miners affected. (Tr. 46). He initially marked the Order as “unlikely” because it was just
a reporting requirement. (Tr. 25). He later changed it to “no likelihood” after speaking with his
supervisors. (Tr. 25). They decided that no people would be affected and therefore there was no
likelihood of injury. (Tr. 25-26). That is also why he marked no lost workdays. (Tr. 26).
Shortt marked “High” negligence because Vance knew the system was down from the
previous Friday and did not report it. (Tr. 26). Also, the negligence was designated as high, in
part because the ERP was approved in December 2009. (Tr. 27-28). On cross examination,
Shortt conceded that the cut-off date for implementing the ERP was June 15, 2011. (Tr. 28, 31).
Shortt’s deposition at page 51 also conceded this point. (Tr. 29-30). He explained that the plan
was approved in 2009 and no changes were made between 2009 and 2011. (Tr. 47). Shortt does
not believe there could be an honest mistake about reporting after Lane’s class; which cleared up
any gray areas. (Tr. 37). Another mine, #30, received the class and properly reported an outage
in one section. (Tr. 37). Shortt did not believe there were any mitigating circumstances. (Tr.
46-47).
The violation was terminated when it was reported, but Shortt does not know when the
actual problem was corrected. (Tr. 51-52).
b. Testimony of Ricky Keith Lawson:
Lawson had worked in the coal industry for 33 years. (Tr. 53). He had first-class
foreman’s paper, repairmen’s paper, advanced first aid, and a dust card. (Tr. 53). He worked for
Dominion for around 14 or 15 years. (Tr. 53). At the time Order No. 8173479 was issued,
Lawson was the superintendent at #36. (Tr. 54, 63). A number of people, including Vance,
reported to Lawson. (Tr. 63). Lawson reviewed reports on a daily basis. (Tr. 63-64).
Lawson was familiar with Order No. 8173479 (GX-1). (Tr. 54). Lawson was also
familiar with the ERP for Mine #36 (GX-2). (Tr. 54-55). Lawson received yearly training by
Respondent on this ERP, as did Vance. (Tr. 55, 65). He also received special voluntary training
by Lane in May 2011. (Tr. 55-56, 68). Respondent’s superintendents, chief electricians, and
anyone dealing with wireless communications attended that training. (Tr. 58). The tracking and
communications requirements were about to go into effect and the training covered issues related
to that event. (Tr. 56, 65). Those new requirements included a new wireless communication
system and reporting duties. (Tr. 56). He could not remember the particulars of that training and
was unsure if Lane discussed reporting. (Tr. 68). The reason the training was set up was
because people had questions. (Tr. 69). The effective date for the ERP was June 15, 2011. (Tr.
56). Respondent had the wireless system in place at #36 by May 2011. (Tr. 56-57).
There were different manufacturers of wireless systems in the industry. (Tr. 57). The
mining environment and the changing conditions in a mine create unique challenges to wireless

35 FMSHRC Page 1658

communication. (Tr. 57). Lawson described how Respondent had problems with its system.
(Tr. 57, 66). On cross examination he conceded that was one of the reasons MSHA wanted to
track outages. (Tr. 66). Respondent and other operators had questions about the reporting
requirements for communication system failures in the summer of 2011. (Tr. 57-58). The
questions dealt with both the communication system and the reporting requirements. (Tr. 58).
The power went down on T Section on Friday June 24, 2011. (Tr. 58-59, 61). This
power outage caused problems with the wireless communication, because without power the
wireless system cannot work. (Tr. 59, 61). Lawson learned about it on Friday via his home
telephone. (Tr. 64-65, 69). There was no problem with the wireless; it was a high voltage
problem. (Tr. 61). Vance worked on the power problem. (Tr. 59). He was responsible for
reporting outages. (Tr. 59-60). Lawson could not recall if they moved coal on Saturday at the
time they only produced every other weekend. (Tr. 70).
Lawson reviewed the Post-Accident Tracking Section on the ERP (GX-2). (Tr. 60). On
cross examination he conceded that the ERP was approved in 2010 and the reporting requirement
was there in 2010. (Tr. 65). He now knows that if communications go down on a single section
he must report the condition. (Tr. 60). However, at the time of the outage this was a “gray
area.” (Tr. 60). Similarly, the ERP says that the operator must report communication systems
failures that extend longer than 12 consecutive hours but it does not say when to report. (Tr. 62).
Lawson discussed the Order with Vance. (Tr. 67). They did not discuss confusion over
reporting, only the power. (Tr. 67). Lawson believed he spoke with Shortt on the day of the
Order. (Tr. 66). He was aware that Shortt had issued a (d)(2) Order. (Tr. 66). He could not
recall if he told Shortt that he believed he did not have to report the condition because it was only
on the T section or because it was a power failure issue. (Tr. 66-67). He could not recall the
reasons he gave to not reporting. (Tr. 67). On cross examination Lawson conceded that the
communication requirements are in the ERP because in an emergency it is important for the
outside to communicate with miners. (Tr. 67). If there was an emergency it would not matter if
the power was down in the entire mine. (Tr. 67-68). He agreed that it did not matter what
caused an outage in an emergency. (Tr. 68).
Lawson did not know if Respondent’s other mines reported a wireless failure at this time.
(Tr. 61). Respondent was not trying to avoid reporting requirements. (Tr. 61).
4. Contentions of the Parties
The Secretary contends that Order No. 8173479 was validly issued, that the violation had
no likelihood of resulting in a no lost-workday injury, that no people were affected, that
Respondent was highly negligent, that the violation was caused by an unwarrantable failure, and
that the proposed civil penalty is, if anything, too low. The Secretary argues that the citation is
valid because power and communication went down and there was no report. (Secretary’s PostHearing Brief at 12-13). The Secretary argues that, with respect to gravity, the violation
prevented proper implementation of vital accident preparedness systems. Id. at 14. Further,
Respondent’s actions were highly negligent and the result of an unwarrantable failure because
the area and time of the violation were extensive, the danger was obvious, there was notice to

35 FMSHRC Page 1659

Respondent of the need to comply, knowledge of the violation, and abatement only occurred
after the Order was issued. Id. at 16-19. Finally, the Secretary argues that the penalty should be
increased to $16,000.00 in light of the seriousness of the violation. Id. at 31.
Respondent contends that Citation No. 8173479 was not validly issued, that it did not
exhibit high negligence, that the violation was not the result of an unwarrantable failure, and that
the proposed penalty is inappropriate. Respondent argues that the citation was not valid because
this was a power failure not a communications system failure, and because the standard did not
state a time at which a report to MSHA had to be made. (Respondent’s Post-Hearing Brief at 45). Respondent argues that it was not negligent or guilty of an unwarrantable failure because of
several mitigation factors, including their efforts to comply and sincere belief that a report was
not necessary in this situation. Id. at 9-12.
5. Findings and Conclusions
a. Validity
Pursuant to 30 U.S.C. §876(b) Respondent maintained an ERP. According to page 5 of
that Plan, “The operator shall [notify] the MSHA Hotline of a communication system failure that
extends longer than 12 consecutive hours at 1-800-1553.” (GX-2).4 It is uncontested that on
June 24, 2011, at approximately 6:00 pm Mine #36 experienced a power outage that resulted in a
failure of the communication system. (Tr. 19-20, 58-59, 61). Further, it is uncontested that
Respondent did not report this failure to MSHA until MSHA’s inspection on the following
Monday, June 27. (Tr. 19, 43, 67).
Therefore, the only issue that remains to determine whether this Order is Valid is if this
outage had to be reported. Respondent argues in its brief that this failure was not reportable
because there was no system failure and because there was no time frame within which a system
failure must be reported. Respondent’s Post-Hearing Brief at 4-8.
With respect to the claim that the cited condition was not a system failure, Respondent
notes that the communication system was down not as a result of a “system failure” but instead
because of a power outage. Id. at 4. It argues that power outages, even if they result in loss of
communication, are not required to be reported. Id. It supports this argument with several
claims. First, Respondent cites Shortt’s testimony to the effect that the purpose of the reporting
requirement is to allow MSHA to evaluate wireless communication systems in order to
determine that a loss of communication due to a power outage, to argue that a power outage does
not relate to the reliability of the communication system. Id. at 4-5. It argues that the sort of
reliability that MSHA wants to evaluate only deals with failure in the internal aspects of the
communication system. Id. at 5. It goes so far as to say that reporting power outage as
communication system failures would cause MSHA to reject communication systems for
“failures” when, in fact, the systems functions perfectly. Id.

4

The evidence established at hearing that there was a scrivener’s error in that plan and
that the word “notify” should be included after the word “shall”. (Tr. 22).

35 FMSHRC Page 1660

I do not find this to be a compelling argument. Respondent speculation as to how MSHA
analyzes reported data has no basis in any evidence in the record. There is no reason to believe
that MSHA’s reporting requirements are different based on the cause of the communication
system failure. If one is to speculate on MSHA’s use of the reporting data, it is entirely possible
that MSHA could glean important information about the reliability of a particular
communication system based on the way it performs in the event of a power failure. Perhaps
MSHA could determine how a communication system would behave in the event of a mine
emergency that results in a power outage. Surely such an event is not beyond the realm of
possibility. In fact, in a catastrophic event like a fire or explosion it might be likely. In short,
MSHA is in the best position to determine the information it needs to evaluate the effectiveness
of various communications systems.
Also, I do not believe that requiring a report in the cited situation will decrease safety by
marking a compliant system as a “failure.” MSHA requires notification any time a wireless
communication system goes down and presumably uses the data it receives in a manner
consistent with the regulation’s objectives. Information on how systems fare when the power
goes out is certainly relevant to the regulations objective of communicating with miners in the
event of an emergency. Further, Respondent presented no evidence to support its contention that
MSHA regards all system failures as equal. It is possible that MSHA considers the reasons for a
failure in its evaluation so that an otherwise stellar system would not be rejected solely because it
fails during a power outage.
Respondent also claims that the wording of subpart (a) and subpart (b) of the ERP
indicate that a “power outage” or the system “being down,” should not be considered a system
failure. Specifically, Respondent argues that subpart (a) on page 5 of the ERP describes what
should be done in the event of a “communication loss,” which it argues is applicable to any loss
of communication in a broad sense. Respondent’s Post-Hearing Brief at 6, FN 4. It further
argues that subpart (b), the part at issue here, refers to a “system failure” not a communication
loss, showing that this section has a narrower meaning that only deals with communication
losses caused by internal communication system failures. Id.
Once again, Respondent’s argument is not compelling. The entire focus of the section,
entitled “Survivability Requirements,” is the operation of the communication system. There is
no indication that some subparts of that section are talking about broader or narrower issues.
Respondent does not explain why subpart (a) would be broader than the rest of the section.
Subpart (a) states, “In the event that communication is lost, the operator shall begin repairs to the
system immediately…” (Emphasis added). If this section were talking about a broader
conception of communication as a whole rather than just the internal system, it would make little
sense for the first step in repairing lost communication to be to repair “the system.” If anything,
these two subparts show that the ERP treats “lost communications” and “system failure”
synonymously. A loss of communication is system failure and there is no reason to believe ERP
contemplates different reporting or repairing requirements based on the cause of that failure. As
a result, the loss of communication in the cited situation, even though it was caused by a power
outage, was a reportable system failure under the ERP.

35 FMSHRC Page 1661

Respondent’s next argument is that it was not required to report the cited condition
because there was no time frame within which a system failure must be reported. Id. at 6.
Respondent notes that ERP page 5, Subpart (b) states a system failure, “[t]hat extends longer
than 12 consecutive hours,” be reported, but is silent as to when that report must be made. Id. at
6-7. Respondent states that MSHA learned about the condition about 52 hours later but that
there is no way to know if it would have been a violation at 51 hours or after an 8 hour shift. Id.
There is perhaps some truth to that. However, taken to its logical conclusion,
Respondent’s position would mean that it would never have to report a system failure. If 52
hours is absolutely permissible, then why would 52 days or 52 years not be absolutely
permissible? Of course, such a result would be absurd. In the absence of a set deadline, the only
way to read a reporting requirement is that a report be made within a reasonable time. See Steele
Branch Mining, 15 FMSHRC 597, 601-602 (Apr. 1993) (“Where a standard is silent as to the
period of time required for compliance, the Commission has imputed a reasonable time.”) citing
Penn Allegh Coal Co., 3 FMSHRC 2767, 2771 (Dec 1981); Monterey Coal Co., 5 FMSHRC
1010, 1019 (June 1983); and Old Ben Coal Co., 3 FMSHRC 608, 610–611 (March 1981); see
also Cyprus Emerald Resources Corp., 20 FMSHRC 790, 798-799 (Aug. 1998).
I do not need to define what a reasonable amount of time for delay would have been in
this case. Suffice it to say that a delay of over two days after the system failure is not reasonable
in light of the goal of quickly providing MSHA with information to allow evaluation of
communication systems.5 This is especially true in light of the fact that Respondent did not
report the failure to the proper hotline, but was instead cited by Shortt. There is no indication
that Respondent would have ever reported the failure had Shortt not issued the Order.
Finally, with respect to all of Respondent’s arguments regarding the validity of this order,
it cites to no authority and simply appeals to my “common sense.” However, I do not believe
that common sense dictates the finding urged by Respondent. As a result, I find that this Order
was validly issued. 6

5

However, it is significant that the number Respondent was to call, 1-800-746-1553, is
the same number used for reporting accidents. That section states that “[t]he operator shall
immediately contact MSHA at once without delay and within 15 minutes,” when an accident
occurs. 30 CFR § 50.10. The fact that the number given in the ERP was for a fast-response
hotline with expertise in serious, even deadly, accidents indicates that the report should have
been made rapidly.
6

At hearing, Respondent’s witness raised the issues that communication system here was
down in only one section and that it was only required to report system-wide failures. (Tr.6667). As with the argument that it was not required to report communication failures caused by
power outages, there is no reason to believe there is a distinction between communication loses
in one area or in the entire mine. As Lawson conceded, it would not matter in an emergency if
power was down in one area of the entire mine. (Tr. 67-68). Furthermore, Respondent did not
brief this issue. Therefore, I find it is not a mitigating factor.

35 FMSHRC Page 1662

b. Gravity
The Secretary presented evidence that there was no likelihood of a lost workday injury
and that no miners were affected. (Tr. 25-26, 46). This means this violation is merely a
paperwork violation. Respondent did not contest these determinations in its Post-Hearing Brief.
Therefore, I find that the Secretary proved the gravity in the Order by a preponderance of the
evidence.7
c. Unwarrantable Failure and Negligence
Order No. 8173479 was marked as an unwarrantable failure and high negligence. The
Commission has recognized the close relationship between a finding of unwarrantable failure
and a finding of high negligence. San Juan Coal Co., 29 FMSHRC 125, 139 (Mar. 2007)
(remanded because a finding of high negligence without a corresponding finding of
unwarrantable failure was “seemingly at odds.”). Emery Mining Corp., defines an unwarrantable
failure, as “aggravated conduct constituting more than ordinary negligence.” Emery Mining
Corp., 9 FMSHRC 1997, 2002 (Dec. 1987). The Commission formulated a six factor test to
determine aggravating conduct. IO Coal Co., Inc., 31 FMSHRC 1346, 1350-1351 (Dec. 2009).8
Before discussing the high negligence designation, I will consider each of those factors in turn:
1. Extent of the violative condition
According to the evidence presented at hearing, this condition affected the entirety of the
T-Section. (Tr. 20). This was one of only three active working sections of the mine and
therefore constituted a large area of the working area of the mine. Respondent presented no
evidence that would suggest this outage was less extensive.
2. The Length of Time of the Violation Existed
According to the evidence presented at hearing, the communication system went down at
approximately 6:00 p.m. on June 24 and was still down, and unreported, on Monday morning
when Shortt arrived. This means that the extensive communication failure existed for more than
50 hours before MSHA learned of the condition.
7

The Secretary argues that there was some higher degree of gravity in this violation, even
arguing that it could be S&S. Secretary’s Post-Hearing Brief at 14-15. However, this
contradicts the opinion of the inspector; an opinion that is entitled to considerable deference.
MSHA inspectors are entitled to a certain level of deference as to their findings and opinions.
See e.g. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998) and Buck Creek
Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995). As a result, I will not disturb the
gravity cited in the Order.
8

While an administrative law judge may determine, in his discretion, that some factors
are not relevant, or may determine that some factors are much less important than other factors
under the circumstances, all of the factors must be taken into consideration and at least noted by
the judge. IO Coal, 31 FMSHRC at 1351

35 FMSHRC Page 1663

Respondent presented no evidence that would suggest the violation existed for a shorter
time. However, it argued that the length of time in this case is immaterial because the standard
contained no deadline for reporting the condition. Respondent’s Post-Hearing Brief at 12.
However, as discussed earlier, the absence of a set deadline cannot be used to ignore the
reporting requirement entirely. This was an unreasonably long delay in reporting the cited
condition. Therefore, I cannot find the lack of a set deadline in the ERP to be a mitigating factor
with respect to the unwarrantable failure determination.
3. Whether the violation is obvious or poses a high degree of danger
As already discussed with respect to gravity, this particular violation did not pose a high
degree of danger. However, the complete failure of the communication system in 1/3 of the
active working sections of the mine was readily apparent. In fact, Respondent actually knew
about the condition almost immediately, on Friday evening and did not report it.
4. Whether the operator had been placed on notice that great efforts
were necessary for compliance or on notice that this was an issue.
This factor is the most heavily contested in this case. The Secretary argues that
Respondent voluntarily agreed to participate in training with MSHA and therefore should have
known the reporting requirements. Secretary’s Post-Hearing Brief at 17-18. Furthermore,
Respondent’s other conversations with MSHA indicate that Respondent was on notice. Id. at 18.
Respondent counters, citing the same conversations and training to assert that it was attempting
to be proactive in compliance with the rules and that its assumption that the power outage was
not a reportable “system failure” was reasonable. Respondent’s Post-Hearing Brief at 10-11.
Also, Respondent notes that Shortt was not present for the training conducted by Lane and
therefore cannot attest to whether this particular issue was discussed. Id. at 10. Finally,
Respondent argues that the requirements had only become effective nine days before the power
outage and therefore they lacked experience with respect to whether this was an issue. Id. at 11.
I do not believe that the factors cited by the Respondent mitigate the fact that Respondent
was on notice that it was required to report the cited condition. Vance, Respondent’s official
responsible for reporting outages, knew or should have known that this was a reportable
condition. The fact that Respondent spoke with MSHA about the ERP and requested training is
admirable, but it does not mitigate this particular violation. If anything, it shows that MSHA was
available to speak with Respondent about any “gray areas” that existed in the enforcement of the
ERP and was willing to work with Respondent to ensure compliance. Respondent’s decision to
assume that it was not required to report the outage, in light of the fact that it has admitted that it
was confused about the requirements, was not reasonable. The prudent course of action would
be to err on the side of caution and report the condition to MSHA. Respondent’s conduct is best
seen as a break from its previous proactive attitude with resepct to the communication system.
Similarly, I do not believe it is relevant that Shortt was not present for Respondent’s
training. It is not important whether Respondent’s employees were specifically told that they
were required to report a communication system failure under any circumstances. Instead, it is

35 FMSHRC Page 1664

important that Respondent knew that MSHA would be focusing on these new communication
systems and that MSHA was willing to answer questions to assist in compliance. There is no
evidence to suggest that Respondent was not aware of these facts.
Finally, the fact that the standard was new is not a mitigating factor. The Secretary
presented evidence showing that the ERP had been in effect for a considerable amount of time,
even if it had not yet been mandatory. Perhaps even more importantly, the legal requirement to
follow the ERP did not contain a grace period. It would not have mattered if the power outage
had occurred on the day the law became effective, Respondent was responsible for following the
law. Again, if there was any legitimate confusion, MSHA was available for consultation.
5. The operator’s efforts in abating the violative condition
Respondent only reported the wireless outage when directed to do so by Shortt. There is
no evidence to suggest Respondent’s agents would have reported the outage of their own accord.
6. Operator’s knowledge of the existence of the violation
Well-settled Commission precedent recognizes that the negligence of an operator’s agent
is imputed to the operator for penalty assessments and unwarrantable failure determinations. See
Whayne Supply Co., 19 FMSHRC 447, 451 (Mar. 1997); Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194-197 (Feb. 1991); and Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-1464
(Aug. 1982). An agent is “any person charged with responsibility for the operation of all or part
of a…mine or the supervision of the miners in a…mine.” 30 U.S.C. §802(e). A supervisor’s
knowledge and involvement is an important factor in an unwarrantable failure determination.
See Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) citing (REB Enterprises, Inc., 20
FMSHRC 203, 224 (Mar. 1998) and Secretary of Labor v. Roy Glenn, 6 FMSHRC 1583, 1587
(July 1984). In this case, it is undisputed that both Lawson and Vance were aware that wireless
communications were unavailable and did not report the condition.
Respondent does not contest the supervisory status of the Mine Superintendent (Lawson)
and Chief Electrician (Vance). Instead, it argues that they did not have knowledge because that
this sort of event was reportable. Respondent’s Post-Hearing Brief at 12. As previously stated,
even if Respondent did not know of the requirements it should have known or at least known to
ask about the proper actions to take. This is not a mitigating circumstance.

35 FMSHRC Page 1665

Further, high negligence exists where the operator knew or should have known of the
violative condition or practices and there are no mitigating circumstances. 30 C.F.R. § 100.3(d).9
The Secretary presented extensive evidence that Respondent’s conduct exhibited high
negligence. Specifically, Vance knew the system was down from the previous Friday and did
not report it. (Tr. 26). The ERP was approved on December 2009 and MSHA had conducted
classes to ensure that Respondent was aware of its requirements. (Tr. 27-28, 37). Shortt did not
believe there were any mitigating circumstances. (Tr. 46-47).
Respondent argues that there are several mitigating circumstances. The list of mitigating
factors provided by Respondent include many of the same arguments it used in defending against
the unwarrantable failure designation. Specifically, it argued its failure to report was a
reasonable mistake (especially in light of the fact that the standard was new), that there was no
deadline for making a report, that the employees were not trained to know this was a reportable
event, and the fact that that Respondent was proactive in installing the communication system.
For the same reasons described above, these are not mitigating circumstances.
Respondent also provided several other possible mitigating factors. Respondent’s PostHearing Brief at 12, FN 12. Those possible mitigating factors are irrelevant. Specifically,
Respondent argues its negligence in failing to report the condition was mitigated by the fact that
the gravity was low, because it ordered pieces to fix the power outage, and because the purpose
of the reporting requirement was to test reliability rather than deal with an immediate safety
concern. Id. None of these are relevant to the question of whether Respondent knew or should
have known it was required to report the outage and are not mitigating factors.
Considering the six factors of the Emery Mining Corp. test, the Secretary has proven by a
preponderance of the evidence that this violation was an unwarrantable failure. Furthermore,
none of the factors discussed at the hearing or in Respondent’s brief mitigate Respondent’s
negligence or undermine the unwarrantable failure designation.

9

Under Commission precedent and promulgated standards, negligence “is conduct, either
by commission or omission, which falls below a standard of care established under the Mine Act
to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required
to be on the alert for conditions and practices in the mine that affect the safety or health of
miners and to take steps necessary to correct or prevent hazardous conditions or practices.” Id.
Low negligence exists when “[t]he operator knew or should have known of the violative
condition or practice, but there are considerable mitigating circumstances.” Id. Moderate
negligence is when “[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” Id. High negligence exists when “[t]he
operator knew or should have known of the violative condition or practice, and there are no
mitigating circumstances.” Id. Finally, an operator exhibits reckless disregard where it acts
without the slightest degree of care. 30 C.F.R. § 100.3(d). Mitigating circumstances may
include, but are not limited to, actions taken by the operator to prevent or correct hazardous
conditions or practices. Id.

35 FMSHRC Page 1666

d. Penalty
Under the assessment regulations described in 30 CFR §100, the Secretary proposed a
penalty of $4,000.00 for Order No. 8173479. However, in his Post-Hearing Brief, the Secretary
requested the penalty be increased to $16,000. In light of the operator’s history (16 violations of
Section 316(b) at this mine since 1/17/2012 (GX-2)), it’s size, it’s negligence, it’s ability to stay
in business, the gravity of the violation, and the abatement; I do not believe an increase in the
penalty is appropriate. Instead, I affirm the originally assessed penalty of $4,000.00.
ORDER NO. 8185281
1. Contents of the Order
On March 2, 2011 at 9:20 a.m., Inspector Cornelius M. Simmons issued to Respondent
Order No. 8185281. Simmons found:
The operator of this mine has failed to contact MSHA immediately upon
discovery of accident unplanned roof fall. A roof fall occurred in the #2 entry of
the CJ&L intake of this mine within fifty feet of the surface. In the weekly
examiner takes and records an air reading in this portal. In the record of the
weekly examination the air reading stated “a movement of air”. The surface of the
#2 entry has been covered with dirty by using an end loader. The teeth marks
from the loader bucket are visible in the dirt. It is obvious that the weekly
examiner was aware of the unintentional roof fall and it was not reported as
required since the fall was above the anchorage horizon of the roof bolts. The
operator of this mine has engaged in aggravated conduct because they knew this
fall had occurred and did not report it. This violation is an unwarrantable failure
to comply with a mandatory standard.
Government’s Exhibit 1 (Hereinafter GX-1). Simmons noted that the gravity of this violation
was “No Likelihood,” “No Lost Workdays,” and would affect one person. Id. He further
marked that Respondent exhibited “Reckless Disregard” with respect to this violation. Id.
However, on March 3, 2011 Simmons issued a modification, changing the negligence from
“Reckless Disregard” to “High.” Id.
2. Legal Standards
Order No. 8185281 was issued under Section 104(d)(1) of the Mine Act. That provision
provides the following:
If, upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions created by such violation
do not cause imminent danger, such violation is of such nature as could
significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard, and if he finds such violation to be caused by an

35 FMSHRC Page 1667

unwarrantable failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation given to the operator
under this chapter. If, during the same inspection or any subsequent inspection of
such mine within 90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of any mandatory health or
safety standard and finds such violation to be also caused by an unwarrantable
failure of such operator to so comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area affected by such violation, except
those persons referred to in subsection (c) of this section to be withdrawn from,
and to be prohibited from entering, such area until an authorized representative of
the Secretary determines that such violation has been abated.
30 U.S.C. § 814(d)(1).
The Order deals with an alleged violation of 30 C.F.R. §50.10(d) (titled “Immediate
notification.”). That section provides the following:
The operator shall immediately contact MSHA at once without delay and within
15 minutes at the toll-free number, 1–800–746–1553, once the operator knows or
should know that an accident has occurred involving:
(d) Any other Accident
30 C.F.R. §50.10(d).
3. Summary of Testimony
a. Testimony of Cornelius Mack Simmons:
Simmons started in the coal industry in 1974. (Tr. 72). He worked at Dominion #36
from 2003 to 2007. (Tr. 72-73). He ran equipment and did repair work. (Tr. 73). He did not
have any examination duties and was not a foreman, although he does have foreman papers. (Tr.
73). Simmons had been a coal mine inspector for MSHA for about six years. (Tr. 71-72). As an
inspector, Simmons duties include finding violations in coal mines. (Tr. 73).
At the time of issuance, Simmons had inspected #36 for two or three inspection periods.
(Tr. 73-74). He was familiar with the CJ&L intake entryway. (Tr. 74). He had inspected it twice
before the issuance of Order No. 8185281 on March 2. (Tr. 74). The CJ&L air intake was used
to ventilate the mine, remove harmful gasses and/or render them harmless, and to help carry dust
away from working miners. (Tr. 74). There were three entries into CJ&L. (Tr. 74). Simmons
sketched a map of the CJ&L (GX-3). (Tr. 74-76). He labeled the entries 1, 2, and 3. (Tr. 76).
The circles on the map are timbers. (Tr. 79). There were timbers across all three entries. (Tr.
118). The entries were approximately 20 feet wide and four feet tall. (Tr. 76). The distance from
the entryway, outby the timbers, to the surface was about 100 feet. (Tr. 76-77).

35 FMSHRC Page 1668

Under 30 C.F.R. §75.364(b)(1) Respondent is required to travel one of the entries in its
entirety weekly to record hazards (including bad top and harmful gases), methane accumulations,
and air tank leaks. (Tr. 74, 77, 97, 118). “Traveling in its entirety” means traveling from start to
finish. (Tr. 78). There were no signs directing the examiner which entry to travel. (Tr. 118). It
was not necessary to actually travel out of the portal. (Tr. 113-114). Respondent had to record
their findings in a weekly record. (Tr. 77).10 It also had to take air readings in each of the three
entries. (Tr. 77-78, 97). Entry #1 contained an old fan housing that would allow travel outside.
(Tr. 97-98). On cross examination, he conceded that if an examiner traveled the entirety of the
#1 Entry weekly but not the #2 Entry, then the examiner complied with 30 C.F.R. 75.364(b)(1)
(Tr. 98, 114). Respondent was not cited for a violation of that standard. (Tr. 98).
On March 2, 2011 Simmons went to #36. (Tr. 80). He went into the mine office and
reviewed the weekly book. (Tr. 80, 83). The report for #2 entry did not contain a normal air
reading but instead said there was a movement of air. (Tr. 80).11 The measurements showed that
the amount of air moving dropped from 30,000 to 50,000 feet per minute to 60 feet per minute.
(Tr. 81, 90-92). This signified an air blockage. (Tr. 81). Below 50 feet per meter the blades on
the anemometer will not turn. (Tr. 91). On cross examination, Simmons conceded that
Respondent was not required to maintain any specific cubic feet of movement or any specific
velocity in #2 entry and was not cited for failure to maintain air velocity. (Tr. 96). Further, the
CJ&L intake was supplemental ventilation for the mine. (Tr. 96). By the time of the hearing the
CJ&L was sealed. (Tr. 96).
At some point he traveled underground with T.J. Howington (“Howington), a weekly
mine examiner. (Tr. 83). Simmons and Howington traveled all three entries in their entirety and
had done so in the past. (Tr. 78-79). He had not seen dangers in these areas before. (Tr. 79).
Simmons asked why there was no air reading and Howington told him there had been a roof fall
a few weeks earlier, after February 11, 2011. (Tr. 81, 83). Howington said it had occurred right
after there was a gas inundation on T Section. (Tr. 83). Simmons asked Howington if anyone
had reported the roof fall. (Tr. 82). Howington did not answer so Simmons asked again. (Tr.
82). Howington said he did not know what Lawson had done. (Tr. 82).
At the #2 Entry, Simmons and Howington saw downed timbers, a sign of danger. (Tr.
84). There were no danger signs on the timbers. (Tr. 85). Timbers are used to support the roof.
(Tr. 87). Timber does not necessarily mean the area is dangered off; in some cases people can
travel through timbers. (Tr.87). It was possible to travel through the timbers here. (Tr. 87-88).
There was a roof fall in the area. (Tr. 84). Some rocks fell and pulled the heads off of
the bolt. (Tr. 84). Inby there was so much rock that the bolts were not visible. (Tr. 84, 85). The
10

Respondent records weekly examination results in the weekly books. (Tr. 82). The
books cannot be altered and they must be kept for one year. (Tr. 82). The weekly reports
contain air readings, locations traveled, hazards, and corrections. (Tr. 82).
11

A “movement of air” is not enough to be measured by an anemometer. (Tr. 81, 90).
An anemometer is a tool used to measure air. (Tr. 90). It measures air velocity and is used to
determine the quantity of air passing through an area. (Tr. 90).

35 FMSHRC Page 1669

bolts were probably covered; likely more than the length of the bolts that had fallen out. (Tr.
85). The top of the fall was at least five feet tall. (Tr. 84-85, 95,100, 118). However, he would
have exposed himself to danger by looking, so it may have been higher. (Tr. 84-85). In his
deposition he stated that the material was as high as the entry or higher. (Tr. 101, 108). On cross
examination he conceded that the entry was around four feet before it fell, though his notes say
five feet. (Tr. 101, 108). However, he stated that when the fall occurred, it pulled some material
from the bolts, broke the heads off, and left these bolts sticking down from the top. (Tr. 102).
Beyond that point, more fell in, so there was at least five feet in the fall. (Tr. 102). The fall was
as wide as the entry, but thicker in the middle than at the sides. (Tr. 85, 102). He could not walk
through the entryway and could not get beyond the fall. (Tr. 85).
Respondent had reported unplanned roof falls at Dominion #36 to MSHA in the past.
(Tr. 98-99). Simmons does not know why Respondent would not report this roof fall, but they
still may have had an incentive he did not know about. (Tr. 99-100).
Simmons and Respondent disagreed on whether the #2 entry was dangered-off. (Tr. 114).
Examiners know not to travel in a dangered-off area. (Tr. 115). If #2 Entry had been dangeredoff and the examiners knew it then the area would not be a place where miners were normally
required to work and travel. (Tr. 115-116). As a result, an unplanned roof fall, even above the
anchorage, would not be reportable. (Tr. 116).
Simmons was familiar with the mud seam that ran from Entry #3 to Entry #1. (Tr. 89).
The CJ&L had mud seams depositing loose material on the mine floor in all three entries through
roof cracks. (Tr. 90, 102-103). There were mounds of dirt, about a foot high, where material
had fallen. (Tr. 89, 102-103). It was possible to walk over that material and Simmons had done
so. (Tr. 90). There was mud between the portal and the dual row of timbers in #2 entry that had
dribbled down. (Tr. 103). He could not see what was inside this pile of debris. (Tr. 103-104).
A mud seam can deposit material on the mine floor from up into the mountain above the entry.
(Tr. 103, 111). The amount of deposits can vary depending on climate conditions and rain. (Tr.
103). The roof fall had rocks in it. (Tr. 90, 105). Simmons did not see any way to differentiate
between material that fell from the mud seam and how much came from a rock fall. (Tr. 104).
There was some material from the mud seam with rock on top. (Tr. 104-105).
Simmons reviewed Citation No. 8186555, which was issued on August 15, 2011 and
stated that mud accumulated in the CJ&L up to half the entry. (Tr. 106, 117). The inspector did
not indicate seeing any roof bolts pulling down near the mud seam in this citation. (Tr. 117).
The citation was beyond the timbers. (Tr. 117). Mud depositing is not an unplanned roof fall.
(Tr. 108). Respondent was not cited for an unplanned roof fall on August 15. (Tr. 108).
With Respect to Order No. 8185281, if a mud seam deposited two and a half feet of
material, it would not be an unplanned roof fall absent other evidence the fall was above the
anchorage. (Tr. 108-109). The evidence that this fall was above the anchorage was that there
were four-foot bolts and a five-foot entry. (Tr. 110). Simmons testified that if two and a half
feet came from a mud seam and two and a half feet came from a rock fall then it would still be an
unplanned roof fall. (Tr. 110-111). However, he admitted that the fact alone that there was a
mud seam depositing material is not evidence of a roof fall above the anchorage. (Tr. 111-112).

35 FMSHRC Page 1670

Good evidence of a roof fall above the anchorage would be more material falling out and
roof bolts. (Tr. 112). Simmons testified that he had seen unplanned roof falls with roof bolts in
the material. (Tr. 112, 118). He did not see a single roof bolt in the material here. (Tr. 113).
However, if the fall is deep the roof bolts will not be seen. (Tr. 118-119). The bolts break off in
the top and stayed there. (Tr. 119). This is because they had been there so long and the heads of
the bolts pulled off. (Tr. 119). This just leaves the bolts sticking in the top hanging down. (Tr.
119). The bolts had to be buried in the material. (Tr. 119).
In the CJ&L Simmons could not take an air reading because, as he learned when he went
outside, Respondent had used an end loader to push dirt from outside. (Tr. 85-86). Therefore he
does not know if the fall would have blocked the air. (Tr. 85). Howington said that when Stacy
found the rock fall they had covered it up. (Tr. 86). He did not know whether the dirt was
causing the air restriction or if it was the material in the #2 Entry. (Tr. 116). All portals had a
“do-not-danger” sign on the screen so no one would enter from the outside. (Tr. 114).
Simmons issued Order No. 8185281 (GX-1) for failure to report an unplanned roof fall at
or above the anchorage zone. (Tr. 94). On cross examination, Simmons admitted that the fact
that the fall was above the anchorage zone was the only support he gave for the Order. (Tr. 95).
Further, he admitted that nothing in the inspection notes, the Order, or the deposition testimony
says that travel or ventilation was impeded. (Tr. 95-96).
Simmons marked Order No. 8185281 with no likelihood of an injury. (Tr. 88, 113). This
was because the fall already occurred; this was just a failure to report. (Tr. 88). That is the same
reason it was marked no lost workdays. (Tr. 88). The Order was not S&S because Simmons did
not expect people other than possibly weekly examiners to travel through the #2 entry. (Tr.113).
It was a paper violation. (Tr. 113).
Simmons marked Order No. 8185281 as reckless disregard. (Tr. 88). However, he later
talked to Stacy and his supervisors and decided it should be high negligence. (Tr. 88-89).
Several foremen knew of the fall and did not report it as he should have. (Tr. 89).
b. Testimony of Greg Ratliff:
Ratliff worked for Respondent as a production manager and had worked in the mines for
27 years. (Tr. 121-122). A production manager helps with production, cut cycles, and mining.
(Tr. 121-122). He worked as a belt shoveler, electrician, section foreman, maintenance foreman,
chief electrician, mine foreman, and superintendent. (Tr. 122). He began with Respondent in
1988 and worked at #36 as superintendent from roughly 2000-2008. (Tr. 122-124, 135). He then
left that mine. (Tr. 135).
As superintendent, he had been through the mine and knew its intake entries, including
the CJ&L. (Tr. 124). The CJ&L intake provides extra air for the mine. (Tr. 124). Ratliff
reviewed a map of the CJ&L intake entries (RX-1). (Tr. 125). One of the entries, #3, has a fan
house. (Tr. 125). The map appeared accurate. (Tr. 125). On cross examination he conceded it
was only accurate as of 2009, he did not know if it was accurate for March 2, 2011. (Tr. 137).

35 FMSHRC Page 1671

Respondent conducted a weekly examination of the CJ&L wherein an examiner checked
the roof conditions, the travel ways, and the air course. (Tr. 125). Only one entry had to be
examined in its entirety. (Tr. 125-126, 139). He did not believe that they ever had to check for
hazards in all three entries. (Tr. 139). However, if an examiner is traveling and sees a hazard, he
is still required to report it in the weekly book, regardless of the entry. (Tr. 140). Further, air
readings were taken at each entry. (Tr. 140). The only people who travel in the CJ&L intake
were certified examiners. (Tr. 141).
Entry #3 had a path of travel where examiners could traverse the full length of the entry.
(Tr. 129). To travel the entry in its entirety, an examiner would walk down the entry on the right
rib to the fence portal and go out the fan door. (Tr. 129).
Since 2009 it had not been possible to conduct the examination in Entry #2. (Tr. 126). In
that year a state inspector issued a violation because the roof bolt plates deteriorated, so
Respondent dangered it off. (Tr. 126). The area was dangered off outby the dual row of timbers
and inby the portal, about 20 feet by 70 feet of space. (Tr. 126, 138, 142). The area remained
unchanged from the time it was dangered off to March 2. (Tr. 143). Ratliff does not recall two
rows of timbers also across Entry #1 and #3. (Tr. 138). To prevent people from entering the #2
Entry from outside, Respondent put up a chain-link fence and conducted regular security patrols.
(Tr. 127). These fences were placed on all three portals, though Ratliff did not recall if there
were dangers signs on all three. (Tr. 138).
Ratliff knew that the area was dangered off because he personally placed the timbers.
(Tr. 127). He also placed a “danger-do-not-enter” sign on one of the timbers. (Tr. 127).
Respondent also wrote in chalk on the timbers and painted the ribs. (Tr. 127-128). The date
board in the #2 Entry was near the center, on one of the timbers. (Tr. 130). Respondent did not
authorize anyone to enter the dangered-off area. (Tr. 128). The weekly examiners were aware
that the #2 Entry was dangered off. (Tr. 128). Ratliff never traveled into the dangered-off area
after placing the timbers. (Tr. 129).
There is a difference between dangered off areas and dangered off spots. (Tr. 128). To
danger off an entire area, Ratliff would place a double row of timbers and a “do not enter” sign.
(Tr. 128). To danger off a small spot he would just place some timbers or cribs that had
“danger” written on them. (Tr. 128). It is possible to travel around such spots. (Tr. 128). There
were danger spots in Entry #1 and #3. (Tr. 128).
Ratliff knew Howington as a contract belt examiner. (Tr. 129). Weekly examiners were
trained that the #2 Entry was dangered off. (Tr. 130). David Addair (“Addair”) was a weekly
examiner of the CJ&L intake before Howington. (Tr. 130). Addair showed Howington the area
and told him it was dangered off. (Tr. 130). No examiners were authorized to remove the danger
sign in the #2 Entry. (Tr. 131). He believed that the Entry remained dangered off after he ceased
to be superintendent. (Tr. 131). He also believed that Howington knew that this area was
dangered off. (Tr. 131). However, on cross examination Ratliff conceded that he did not work
at the mine when Howington conducted the examinations. (Tr. 137).

35 FMSHRC Page 1672

There is a difference between material from a mud seam and a roof fall. (Tr. 131-132).
Ratliff never saw an unplanned roof fall in the dangered-off area of Entry #2. (Tr. 132).
Simmons notes indicate that Ratliff found a roof fall there in February 2011 are inaccurate. (Tr.
133). However, he saw material from the mud seam there. (Tr. 132). Depending on the
weather, mud or draw rock can build up quickly. (Tr. 132-133). Ratliff did not believe that the
seam would weaken the roof, but it was an adverse condition. (Tr. 138-139).
When mining a new portal, it is standard practice to use bolts at least a foot longer than
the normal bolts within 150 feet of the portal. (Tr. 133-134). The dangered off area in Entry #2
was within 150 feet of the portal. (Tr. 134). However, Ratliff was not able to confirm that
longer bolts were used there. (Tr. 134). He did not know what type of bolts were required by
the roof control plan. (Tr. 139).
Ratliff was not in the CJ&L intake when Order No. 8185281 was issued. (Tr. 130). He
had no idea what the area looked like on the day of the Order or between 2009 and March 2011.
(Tr. 136-137). However, he was in the CJ&L intake both before and after the issuance. (Tr.
130-131). On cross examination he discussed his deposition testimony wherein he stated he was
not in the area on the day of the citation and could not recall the last time he was there before the
Order. (Tr. 136-137). However, on re-direct examination he noted that in his deposition that he
had been in the area of Entry #2 within the last year. (Tr. 141). He did not recall the exact time
in his deposition, though he guessed around June 2011. (Tr. 141-142). This deposition
testimony refreshed Ratliff’s recollection; he was in the #2 entry of the CJ&L intake in the
summer of 2011. (Tr. 142).
c. Testimony of Timothy Harold “T.J.” Howington, Jr.:
Howington did not speak to Respondent’s counsel or the Secretary before the hearing.
(Tr. 158). Howington had been in the coal industry for 12 years. (Tr. 145). In March 2011, he
worked for Abby contractor at #36. (Tr. 146). He had done so for about two years starting in
2009 or 2010. (Tr. 146). Before that, he had worked for a time at #36 as an outby boss. (Tr.
146). As outby boss he examined belts, pre-shifted the mine, assigned work to care for and clean
drives, and checked for hazardous conditions and corrected them. (Tr. 146-147). If he could not
correct it, he would danger it off. (Tr. 147). To do this he would build something or set timbers
and put up a sign. (Tr. 147). He would also talk to the superintendent to correct a condition. (Tr.
147). Hazardous conditions were recorded in a book. (Tr. 147). There were many belt books at
#36 including the main book and the books for Sections U and T. (Tr. 147).
Howington was familiar with the CJ&L. (Tr. 148). He was responsible for taking three
air readings and drift amounts for the each of the three entries there. (Tr. 148). There were
timbers in each entryway of the CJ&L. (Tr. 148). At #2 Entry, where he took an air reading,
there were eight timbers set. (Tr. 148). The area was dangered off behind the timbers. (Tr.
149). He was told never to go beyond the timbers. (Tr. 162). On a weekly basis, the examiner
would be in the CJ&L and that person knew not to go beyond the dual row of timbers in the #2
entry. (Tr. 160). Entry #2 was not an active working area of the mine. (Tr. 166). He did not
believe there were timbers in the #1 Entry. (Tr. 149). There were two rows of timbers and an
old fan in the #3 Entry. (Tr. 149). The timbers were placed evenly across the 18-20 foot entries

35 FMSHRC Page 1673

and spaced four feet apart. (Tr. 149-150). He did not think there were dangers signs on the
timbers or the word “danger” written on the rib in Entry #2 or #3. (Tr. 151). Howington knew
Addair, another miner who took him through the CJ&L and showed him how to do a weekly
exam. (Tr. 159). Addair showed him where the area was dangered off with eight timbers. (Tr.
159). Addair might have showed him a danger sign. (Tr. 159). Addair told him that the entries
were dangered off from access because the bolts had rotted, creating unsupported top. (Tr. 160).
Howington was required to check for hazardous conditions in the CJ&L intake. (Tr.
150). He looked to see if there were hazardous conditions in each entry. (Tr. 150). He would
look behind the timbers for hazardous conditions. (Tr. 150). He went behind the timbers in the
#3 entry where the fan housing was located. (Tr. 150). However, there was a safe path in the #3
entry to allow weekly examination. (Tr. 160).
Howington recalled traveling with Simmons in the CJ&L at least one time, in March
2011. (Tr. 151, 153). He went to do his weekly examination and Simmons went with him. (Tr.
153). When they started Howington told Simmons there had been a roof fall. (Tr. 153).
Simmons asked if it had been reported and Howington said he was sure Respondent did. (Tr.
153). They went to the area and looked at the fall. (Tr. 153).
Howington learned about the roof fall from someone else but could not remember who.
(Tr. 154-156). He learned about it when the mine had flooded and they had to pump out the
CJ&L. (Tr. 155). He did not see it then because the mine was idle and only bosses were present,
but Stacy and Ratliff had run water line in Entry #3. (Tr. 155-156). The fall happened sometime
in a two-week period between an examination (where he did not see the condition) and the water
situation. (Tr. 165). On the third week he saw the fall. (Tr. 165). His best guess was that it
occurred between January 2 and March 2. (Tr. 165-166).
There was a mud seam in the CJ&L intake that deposited material on the bottom in the #2
entry and the whole area. (Tr. 160-161). Depending on weather conditions a lot of material
could be deposited. (Tr. 161-162). If mud fell from the deposit it would not have been a roof
fall. (Tr. 163). However, Howington believed that the material behind the timbers was where
the roof had given way. (Tr. 161-163). All of the material was from the top. (Tr. 163). That is
why it was dangered off. (Tr. 162). He could see the bolts hanging down. (Tr. 164). The fact
that the bolts were out was an indication of how much had fallen. (Tr. 164). He could see the
bolts with the glue packed around it. (Tr. 164). He could not remember if there were bolts at the
bottom in addition to the bolts at the top. (Tr. 164). The bolts at the top were still anchored.
(Tr. 164).
Howington did not recall discussing the previous day’s air readings with Simmons. (Tr.
154). He had recorded a finding of “air movement” in a weekly record book. (Tr. 156). This
means that there is enough air for the blades of the anemometer to move but not enough to get a
good reading. (Tr. 156).
During the examination, Howington and Simmons walked to the portals in each entry but
he could not recall going beyond the timbers. (Tr. 151). The portals were where the entries
opened to the surface. (Tr. 152). All three portals were fenced off from outside. (Tr. 152). It is

35 FMSHRC Page 1674

only possible to reach the outside through a door in the fan housing. (Tr. 152). None of the
portals had danger signs. (Tr. 152). He recalled exiting out the #3 Entry. (Tr. 152). He could
not remember if he went to the fence in #2 Entry. (Tr. 142-153). They went outside. (Tr. 157).
There they saw dirt pushed up against the outer entry of #2. (T. 157). He did not know why this
was done or who did it. (Tr. 157).
d. Testimony of David Addair:
Addair worked as a mine foreman for Respondent and had been in the mines for about 32
years. (Tr. 169). He had worked as an outside man, a scoop man, miner operator, and foreman.
(Tr. 169). He started with Respondent in January 2006 and was a full time employee starting in
2008. (Tr. 169-170). He is a certified foreman, electrician, shop foreman, dust sampler, and is
certified in first aid. (Tr. 170).
He worked at #36 from January 2006 to October 2010 as a belt examiner. (Tr. 170). He
also examined the CJ&L. (Tr. 171). The CJ&L provides extra intake of air. (Tr. 171). There
were three entries to the CJ&L, examined weekly. (Tr. 171). Only certified examiners entered
the CJ&L. (Tr. 173). To examine CJ&L, he would take air readings, put on the date, initials,
and check for hazardous conditions. (Tr. 171). He did not travel all three entries, he just
traveled one in its entirety, usually #3. (Tr. 171-172, 177). Entry #3 had the door to get outside
in the fan housing. (Tr. 172). He took air readings in all three entryways, including #2. (Tr.
176). He did this even though it was dangered off but did not know why. (Tr. 177). However,
he did not go beyond the double row of timbers to take air readings. (Tr. 181-182).
He had to check for hazardous conditions. (Tr. 177). If he saw a hazardous condition he
would take care of it. (Tr. 178). While he only traveled up one entry, he would look in the
others. (Tr. 178). If he saw a hazardous condition he would fix it or danger it off. (Tr. 178).
However, he never found any hazardous conditions in his weekly reports that he could not fix.
(Tr. 179). He would not know about a hazardous condition in an entry if he did not travel it.
(Tr. 182). All weekly reports were in the foreman’s office. (Tr. 180). He filled them out and the
superintendent countersigned. (Tr. 180).
Addair did not go down #2 Entry after they set the timbers. (Tr. 172). Entry #2 was
dangered off with a piece of belt with “danger” written on it. (Tr. 172-173). It was hanging in
the center of the first row of timbers on the inby side. (Tr. 173). Employees were not supposed
to go beyond the dual row of timbers. (Tr. 173). There were areas where danger was written in
chalk in #1 and #3 Entries. (Tr. 173). However, there was a path on the right side of #3 to walk.
(Tr. 174). On cross examination, he conceded that there were two rows of timbers and danger
signs across all three entries. (Tr. 179). He crossed the timbers in the #3 Entry. (Tr. 179).
Sometimes they would travel #1 up to the portal. (Tr. 179). He crossed timbers that had
“danger” on them. (Tr. 179).
The last three months he was a belt examiner, Howington took over examining the CJ&L.
(Tr. 170-171, 174). Addair walked Howington through the CJ&L and told him how to do the
exam. (Tr. 174-175). Addair told Howington the #2 Entry with the dual rows of timbers were
dangered off. (Tr. 175). He was not sure that he told Howington not to go beyond the dual row

35 FMSHRC Page 1675

of timbers, but he knew what the timbers meant. (Tr. 175). When he showed Howington the
area, the danger sign was there. (Tr. 175). Addair left #36 in October of 2010 and had not been
doing examinations of the area for three months prior to his departure. (Tr. 180). He did not
know anything about the conditions after Howington took over. (Tr. 180-181).
There was a mud seam in the CJ&L. (Tr. 175). The mud seam deposited material in the
dangered-off area. (Tr. 175). The amount depended on the weather. (Tr. 175-176).
When driving a new portal entry, within 150 feet of the portal, it is proper procedure to
use bolts a foot longer than usual. (Tr. 176). The dangered off area in #2 was within 150 feet of
the portal. (Tr. 176).
4. Contentions of the Parties
The Secretary contends that Order No. 8185281 was validly issued, that there was no
likelihood that the violation would result in a no lost-workday injury, that one person was
affected, that Respondent was highly negligent, that the violation was caused by an
unwarrantable failure, and that the proposed civil penalty is, if anything, too low. The Secretary
argues that the citation is valid because a roof fall above the anchorage in a working section of
the mine occurred and was not reported. (Secretary’s Post-Hearing Brief at 22-26). The
Secretary argues that the Respondent’s actions were highly negligent and the result of an
unwarrantable failure because the area and time of the violation were extensive, the danger was
obvious, there was notice to Respondent of the need to comply, knowledge of the violation, and
abatement only occurred after the Order was issued. Id. at 28-29. Finally, the Secretary argues
that the penalty should be increased to $14,000.00 in light of the seriousness of the violation. Id.
at 31.
Respondent contends that Citation No. 8185281 was not validly issued, that it did not
exhibit high negligence, that the violation was not the result of an unwarrantable failure, and that
the proposed penalty is inappropriate. Respondent argues that the citation was not valid because
the alleged violation did not occur in a working section and did not occur above the anchorage.
(Respondent’s Post-Hearing Brief at 17-25). Respondent argues that it was not negligent or
guilty of an unwarrantable failure because of several mitigation factors including their lack of
knowledge and sincere belief that a report was not necessary in this situation. Id. at 26-28.
Further, Respondent contends that Howington was not an agent of Respondent. Id. at 29.
5. Findings and Conclusions
Order No. 8185281 was issued for an alleged violation of 30 C.F.R. §50.10(d), requiring
an operator to contact MSHA within 15 minutes of several specific dangers or “Any other
Accident.” The regulations further define an “Accident” as, among other things, “An unplanned
roof fall at or above the anchorage zone in active workings where roof bolts are in use; or, an
unplanned roof or rib fall in active workings that impairs ventilations or impedes passage.” 30
C.F.R. §50.2(h)(8). Therefore, the threshold issue in determining if this standard applies is
whether the alleged roof fall occurred in active workings. If the cited condition did not occur in
active workings then it is not necessary to determine whether the alleged fall occurred above the

35 FMSHRC Page 1676

anchorage zones, impaired ventilation, or impeded passage because the alleged fall would not be
reportable.
Both the Mine Act and the Secretary's regulations define active workings as “any place in
a coal mine where miners are normally required to work or travel” 30 U.S.C. § 878(g)(4) and 30
C.F.R. § 75.2. In this case, the Secretary argues that the #2 Entry, where the cited condition was
found, was an active working section where miners were normally required to work and travel.
Specifically, Simmons testified that Respondent was required to travel one of the entries in its
entirety to conduct inspections. (Tr. 74, 77, 97, 118). The Commission has held that areas that
are required to be inspected are active workings. See e.g. Consolidation Coal Company, 22
FMSHRC 340, 348 (Mar. 2000) and Emerald Mines, 7 FMSHRC 437, 440-41 (Mar. 1985).
Respondent countered that the Plan only required Respondent to inspect one of the
entries in the CJ&L, that it always inspected the entry with the fan housing, and that the #2 Entry
was dangered-off such that no one was required to enter the area. It is undisputed that
Respondent was only required to inspect one of the three entries; even Simmons testified that
this was the case. (Tr. 98, 114, 139, 171-172, 177). Respondent’s witnesses testified that they
always chose to inspect the entry with the fan housing because it had an unobstructed path to
inspect in its entirety. (Tr. 129, 171-172, 177). Howington also testified that while the entries
were dangered-off, there was a clear path in the fan house entry allowing it to be inspected in its
entirety. (Tr. 160). Simmons was the only witness who testified that anyone inspected Entry #2
in its entirety. Specifically, he claimed that he and Howington had done so on more than one
occasion. (Tr. 78-79). Howington did not recall that event. (Tr. 151).
Respondent claims that it did not inspect the #2 Entry because that entry was dangeredoff. This is the crux of the issue here. The Commission has held that when an area has been
dangered-off it is no longer an active working. Cyprus Empire Corporation, 12 FMSHRC 911
(May 1990). Even Simmons conceded during cross-examination, if the #2 Entry had been
dangered-off and the examiners were aware of that fact the area would not be an active working.
(Tr. 115-116). Respondent presented evidence to show that the area was dangered-off. (Tr. 126,
177). Further, Ratliff testified that everyone was aware that the #2 Entry was dangered off. (Tr.
128). Howington confirmed that the #2 Entry was dangered off and that this was known by the
examiners. (Tr. 149, 160). Ratliff, Howington, and Addair disagree about how the #2 Entry was
dangered off, but all agree that no one was supposed to enter the area.
The only witness who testified that the miners were regularly required to enter the #2
Entry was the one witness, Simmons, who did not work there. (Tr. 85-88). In addition to
Simmons testimony, the Secretary provided three arguments in his brief explaining why this area
was not dangered-off. First, the Secretary argued that the timbers did not indicate that the area
was dangered off. Specifically, he pointed to Simmons testimony that timbers were designed to
allow people to enter the area and that Simmons, Howington, & Addair did so. Secretary’s PostHearing Brief at 24. However, I note that the Secretary’s argument that Simmons, Howington,
and Addair traveled beyond the timbers is not based on the record. Id. It is true that Simmons
testified he and Howington went past the timbers into the area. (Tr. 78-79). However, The
Secretary cites to page 151 of the transcript for the proposition that Howington confirmed that
assertion. On that page of the transcript, Howington specifically stated that he did not travel

35 FMSHRC Page 1677

beyond the timbers with Simmons. In fact, he also stated that he knew never to go beyond the
timbers and stated he could not recall traveling to the portal in the #2 Entry. (Tr. 152-153, 160).
Further, the Secretary cites to page 179 for the proposition that Addair stated he traveled beyond
the timbers. However, that page deals with Entry #1, not Entry #2. (Tr. 179). Addair never said
he traveled beyond the timbers in Entry #2; in fact he was emphatic that the area was dangeredoff. (Tr. 172-173). The Secretary did not prove by a preponderance of the evidence that the
timbers were placed in Entry #2 to allow miners to travel in that area or that miners regularly
worked or traveled there. I do not believe inspector’s entrance into a dangered-off area can, on
its own, transform a dangered-off area into an active working section.
The Secretary also argues that there is a conflict in the in the testimony about what
measures were taken to danger off Entry #2. Secretary’s Post-Hearing Brief at 25. The
Secretary therefore asserts that the area was not actually dangered off. Specifically, some
witnesses testified that there were timbers across all three entries. Id. Some witnesses testified
that there were danger signs at Entry #2 (or all of the Entries) while others did not. Id. The
Secretary’s argument confuses appearance for substance. The Secretary is correct that the three
witnesses who worked at the mine differed on how the area was dangered off.12 Furthermore, it
is true that some of the witnesses testified that there were signs and/or timbers across all of the
entries. (Tr. 114-115). However, Ratliff, Howington, and Addair all testified unequivocally that
the #2 Entry was dangered off with timbers and that they knew not to enter the area. (Tr. 126,
128,149, 160, 177). Further, they all testified that while there were timbers and blocked off areas
in the other entries, there was an open travel path in Entry #3. (Tr. 129, 160, 174).13 Clearly the
miners who worked at #36 were aware of the active and inactive status of the various entries.
Simmons was the only witness who was not aware that it was impermissible to enter the #2
Entry. Simmons’ belief was likely the result of confusion or misunderstanding and not because
the area was active.
Finally, the Secretary argues that, as long as the CJ&L was open, Respondent was
required to maintain and examine the area. The Secretary asserts that before the alleged fall the
examiners could have traveled any of the entries and nothing would stop them from continuing
to do so after the fall. As previously stated, it is clear that the miners who worked at #36 were
aware of the conditions in the CJ&L and that they were not permitted to go beyond the timbers in
the #2 Entry. The Secretary provides no evidence to support his claim that the determination that
this area was not active was made only for the purposes of the hearing or that miners regularly
entered the area behind the timbers in Entry #2.

12

Ratliff testified that he placed timber to block the #2 Entry, wrote in chalk on the rib,
and place a “do-no-enter” sign. (Tr. 127-128). Howington testified that there were timbers
across the entry. (Tr. 159). Addair testified that there was a piece of belt with the word “danger”
written on it. (Tr. 172-173).
13

I find that Howington’s testimony on these points particularly probative because he no
longer works for the Respondent and was even subpoenaed by the Secretary to testify.

35 FMSHRC Page 1678

I do not find any of the Secretary’s arguments to be compelling. In light of the evidence,
I find that the #2 Entry was dangered-off and therefore not an active working. As a result, 30
C.F.R. §50.10(d) does not apply in this matter as there was no reportable accident as defined in
30 C.F.R. §50.2(h)(8). Therefore, I find that the Secretary has not proven by a preponderance of
the evidence that a violation has occurred. This Order is DISMISSED and no civil penalty will
be levied.
ORDER
In light of the affirmation of Order No. 8173479 and the dismissal of Order No. 8185281,
Respondent, Dominion Coal Corporation, is hereby ORDERED TO PAY the Secretary of
Labor the sum of $4,000.00 within 30 days of the date of this decision.14

/s/ William S. Steele
William S. Steele
Administrative Law Judge
Distribution: (U.S. Certified Mail)
Emily K. Hargrove, Esq. & Daniel D. Povich, Esq., U.S. Department of Labor, Office of the
Solicitor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209.
Wm. Scott Wickline, Esq. & David J. Hardy, Esq., Hardy Pence PLLC, 500 Lee Street, East,
Suite 701, PO Box 2548, Charleston, WV 25329

14

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

35 FMSHRC Page 1679

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
FACSIMILE: (412) 928-8689

June 6, 2013

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of DARRICK PIPER,
Complainant
v.
KENAMERICAN RESOURCES, INC.,
Respondent

:
:
:
:
:
:
:
:
:
:

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2013-751-D
MSHA Case No.: MADI-CD 2013-16

Mine: Paradise #9
Mine ID: 15-17741

DECISION AND ORDER
REINSTATING DARRICK PIPER
Appearances: Donna E. Sonner, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, representing the Secretary of Labor (MSHA) on behalf of
Darrick Piper
Todd C. Myers, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC,
Lexington, Kentucky, representing KenAmerican Resources, Inc.
Before:

Judge Andrews

Pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (AAct@),
30 U.S.C. ' 801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor (ASecretary@) on May
14, 2013, filed an application for temporary reinstatement of Darrick Piper (“Piper” or
“Complainant”) to his former position with KenAmerican Resources, Inc., (AKenAmerican@ or
ARespondent@) at the Paradise #9 Mine pending final hearing and disposition of the case.
On February 1, 2013, Piper filed a Discrimination Complaint alleging that his December
31, 2012 termination was motivated by his protected activity.1 The Secretary filed an
application for temporary reinstatement on March 19, 2013. On April 5, 2013, the Secretary
1

Under the Act, protected activity includes filing or making a complaint of an alleged
danger, or safety or health violation, instituting any proceeding under the Act, testifying in any
such proceeding, or exercising any statutory right afforded by the Act. See 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).

35 FMSHRC Page 1680

submitted an unopposed motion to dismiss the application, and an Order granting the dismissal
was issued on April 8, 2013.
On March 27, 2013, Piper filed a second Discrimination Complaint based upon
KenAmerican’s failure to recall him after layoff.2 The Secretary initiated a second investigation
and filed a renewed application for temporary reinstatement on May 14, 2013. In the
Secretary=s application, he represents that the complaint was not frivolously brought, and
requests an Order directing Respondent to reinstate Piper to his former position as a shuttle car
driver at the Paradise #9 Mine.
Respondent filed a request for hearing on May 22, 2013. An expedited hearing was held
in Madisonville, Kentucky on May 30, 2013. The Secretary presented the testimony of the
Complainant, and the Respondent had the opportunity to cross-examine the Secretary=s witness,
and present testimony and documentary evidence in support of its position. 29 C.F.R.
'2700.45(d).
Respondent also filed a Motion to Dismiss just prior to the hearing with a brief on the
issue of whether Piper was a “miner” at the time of the alleged discrimination. In his prehearing brief, the Secretary opposed the motion. At the hearing, the parties restated their
positions on the issue. As will be explained in greater detail herein, the Motion to Dismiss
should be, and is, DENIED.
For the reasons set forth below, I grant the application and order the temporary
reinstatement of Piper.
Temporary Reinstatement
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
Ato play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif 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., 1st 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).
With respect to temporary reinstatement, section 105(c)(2) provides, “if the Secretary
finds that such complaint was not frivolously brought, the Commission, on an expedited basis
upon application of the Secretary, shall order the immediate reinstatement of the miner pending
final order on the complaint.” 30 U.S.C. 815(c)(2). In adopting section 105(c), Congress
2

The terms “recall” and “rehire” are used throughout the decision synonymously.

35 FMSHRC Page 1681

indicated that a complaint is not frivolously brought if it Aappears 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= Aappears to have merit@ standard,
the Commission and the courts have also equated Anot frivolously brought@ to Areasonable cause
to believe@ and Anot 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).
Temporary Reinstatement is a preliminary proceeding, and narrow in scope. The plain
language of the Act states that “if the Secretary finds that such complaint was not frivolously
brought, the Commission, on an expedited basis upon application of the Secretary, shall order
the immediate reinstatement of the miner pending final order on the complaint.” 30 U.S.C. §
815(c)(2). The judge must determine whether the complaint of the miner “is supported
substantial evidence and is consistent with applicable law.”3 Sec=y of Labor on behalf of Peters
v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). 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). A temporary reinstatement
hearing is held for the purpose of determining Awhether the evidence mustered by the miners to
date established that their complaints are nonfrivolous, not whether there is sufficient evidence
of discrimination to justify permanent reinstatement.@ Jim Walter Resources, 920 F.2d at 744.
“Congress intended that the benefit of the doubt should be with the employee, rather than the
employer, because the employer stands to suffer a lesser loss in the event of an erroneous
decision since he retains the services of the employee until a final decision on the merits is
rendered.” Sec’y of Labor, on behalf of Curtis Stahl v. A&K Earth Movers Inc., 22 FMSHRC
233, 237 (ALJ)(Feb. 2000).
In order to establish a prima facie case of discrimination in a full discrimination
proceeding under section 105(c) of the Act, a complaining miner must establish (1) that he
engaged in protected activity and (2) that the adverse action complained of 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).
However, in the instant matter, Piper 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, a similar analytic framework is considered within the Areasonable cause to
believe@ standard. Thus, there must be Asubstantial evidence@ of both the applicant=s protected
activity and a nexus between the protected activity and the alleged discrimination. The
3

ASubstantial evidence@ means Asuch 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)).

35 FMSHRC Page 1682

Commission has acknowledged that it is often difficult to establish a Amotivational 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). 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 further considered the 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).
The evidence4
On March 27, 2013, Piper filed a Discrimination Complaint, which included a brief
Discrimination Report, which stated:
I was laid off on 12/31/12 due to Excessive Absenteeism. Some of [the] absences were
due to work related injuries that were being handled by Workers Compensation and
were counted against me in the Excessive Absenteeism program and should not have
been. Since the time of my lay off others that were laid off at the same time as I was, for
the same reason (Excessive Absenteeism) have recently been called back to work. I was
told on March 27, 2013 that the Company could not talk to me about this and that I
would not be recalled due to the fact that I have filed a previous 105c Complaint against
the Company. At this time I am requesting temporary reinstatement and back pay from
the date of lay off.
GX-5.
Following the filing of the complaint, the Secretary performed an investigation and
determined that the Complaint was not frivolously brought. On May 14, 2013, the Secretary
filed an Application for Temporary Reinstatement of Darrick Piper. GX-2.
Submitted with the Application for Temporary reinstatement was the May 6, 2013
Declaration of Special Investigator Curtis R. Hardison. The Declaration, in pertinent part, is as
follows:
4

The findings of fact are based on the record as a whole, including exhibits admitted, and
witness testimony. Any failure to provide detail as to each witness’s testimony, any admitted
exhibit, or other evidence of record is not to be deemed a failure on my 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).

35 FMSHRC Page 1683

1. I am a Special Investigator employed by the Mine Safety and Health Administration,
United States Department of Labor, and 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 Darrick Piper. My
findings as a result of this investigation disclosed the following:
a. Darrick Piper began working for KenAmerican in 2007.
b. On December 31, 2012, Piper was laid off.
c. Piper filed a discrimination complaint with MSHA on February 1, 2013. An
application for Temporary Reinstatement was filed on March 19, 2013. That
Application was subsequently withdrawn.
d. Since the time of Piper’s layoff, other employees who were laid off at the same
time for the same reason have been called back to work. The other miners who
were called back do not have as many miner credentials as he has obtained. He
has MET Training, Fire Brigade Training, and can operate the continuous miner,
scoop, roof bolter and shuttle car.
e. On or about March 27, 2013, Mr. Piper called Ron Winebarger at KenAmerican
and asked when was going to get his job back. Winebarger told him he filed a
case against KenAmerican and he could not speak to him. Mr. Piper then filed a
discrimination complaint on March 27, 2013.
3. Based upon my investigation of these matters, I have concluded that Piper engaged in a
protected activity when he filed his initial discrimination complaint on February 1, 2013
and that his March 27, 2013 complaint of discrimination was not frivolously brought.
GX-2.5
Darrick Piper has 23 years of underground and surface mining experience. Tr. 18-19. He
first worked at Beech Creek Energy in Beech Creek, Kentucky for four years, operating the track
hoe and dozer at the strip mine. Tr. 19. He then hauled coal for Ray Jones Trucking for 15 years,
between 1992 and 2007. Tr. 19.
Piper started working for KenAmerican in 2007. Tr. 20. His first jobs with the company
involved shoveling belts and working on the units. Tr. 20. Piper then operated the Fletcher roof
bolter, the scoop, the shuttle car, and the miner. Tr. 20. Piper has fire brigade training and Mine
Emergency Technician (MET) training. Tr. 21. Out of over 300 miners at the mine, Piper was
one of 22 on the fire brigade. Tr. 22.

5

The Declaration by the Special Investigator is part of GX-2, however it is also stamped
“Exhibit ‘A’” on the bottom.

35 FMSHRC Page 1684

Piper has knee problems and has sustained injuries at work that caused him to take time
off. Tr. 40-41. In October 2012, Piper reported to Mine Foreman Jeremy Carroll that he believed
that his face boss was using drugs.6 GX-2, Decl. Kirby Smith. In Piper’s February 1, 2013,
discrimination complaint, the Special Investigator found that as a result of Piper’s complaint he
was transferred from the shuttle car to the scoop, a job that exacerbated his knee problems. GX2, Decl. Kirby Smith. Furthermore, Piper’s November 2012 evaluation was modified from twos
and threes (out of a scale of one to three) to ones and twos. GX-2, Decl. Kirby Smith.
Piper was laid off on December 31, 2012, and filed a discrimination complaint on
February 1, 2013.7 Tr. 23. At the time, 10 other employees were laid off for reasons that
Respondent claims were related to economic conditions. Tr. 52, 58. On January 1, 2013, Piper
ran into the director of Human Resources, Ronald Winebarger, at a store called Uncle Lee’s.8 Tr.
34, 53. Winebarger was with his daughter, and Piper asked if the two of them could speak
privately. Tr. 53. Winebarger complied and Piper asked Winebarger about his layoff. Tr. 53.
Winebarger responded that the primary criterion that was used in his layoff was his excessive
absenteeism. Tr. 53. Piper asked about being recalled to work and Winebarger told Piper to
check back with him in a couple of weeks. Tr. 34.

6

GX- followed by a number refers to a Government Exhibit. RX- followed by a number
refers to a Respondent’s Exhibit.
7

When Piper was laid off, his benefits and compensation were terminated. Tr. 51. Piper
received unemployment benefits, which terminated on April 9, 2013 after he got another job. Tr.
37. Piper currently operates a dozer and track hoe for Pollard & Son. Tr. 37. He earns $16 per
hour, with no benefits. Tr. 38. Prior to his layoff, Piper was making at KenAmerican $22.50 per
hour, with an additional three to four hours per day of overtime at $32.25 per hour. Tr. 42-43.
He had health insurance, a 401(k), and other benefits. Tr. 43.
8

Ronald D. Winebarger is the director of Human Resources at KenAmerican and he
testified at the hearing. Tr. 48. In his capacity as director of Human Resources, Winebarger hires
and terminates employees, handles benefits, helps employees understand the handbook,
administers discipline, and generally helps employees with the day-to-day understanding of the
operations of the mine. Tr. 48.
Winebarger has a master’s degree in business administration from the Oakland City
University. Tr. 49. He is a certified underground and surface miner and mine foreman, with over
20 years of underground coal mining experience. Tr. 49. He has run all of the underground
equipment and has participated in all aspects of underground mining. Tr. 49-50.
Winebarger is both an underground and surface instructor. Tr. 49. He is a mine
emergency technician and instructor, as well as a certified CPR instructor. Tr. 49. He is certified
in dust sampling calibration and maintenance and an impoundment inspector and instructor. Tr.
49.

35 FMSHRC Page 1685

In February, Piper went to KenAmerican and spoke with the general manager, Randy
Wiles. Tr. 34-35. Wiles told Piper, “you may be the best miner man that we have down there,”
and told him that “there’s a good chance that you will get your job back.” Tr. 35. Wiles told
Piper that the layoffs were due to the economic conditions and that the first to get laid off were
the individuals with excessive days off. Tr. 36. Piper also spoke with Winebarger, and
Winebarger described the conversation as being similar to the one they had at Uncle Lee’s. Tr.
54.
Winebarger testified that there was a hiring freeze for a few months after the layoff. Tr.
57. After there was enough attrition through layoff or voluntary quits, KenAmerican lifted the
hiring freeze at the end of February. Tr. 57. The general manager approached Winebarger and
told him that they needed to start rehiring, and to first consider the individuals that were laid off.
Tr. 58. Winebarger reviewed the 10 files of the individuals that were laid off, including Piper’s.
Tr. 58. Piper never filed a formal application for reemployment with KenAmerican. Tr. 37. He
then took the files to Joe Manning, the general mine foreman, and they went through each file
together, looking primarily at the individual’s record of excessive absenteeism. Tr. 58-59. If
they felt individuals would not continue to have absenteeism problems, then they invited those
individuals in to talk with them. Tr. 58-59. The individuals called in were Bobby Morris, Tony
Young, Billy Lear, Lawrence Bowman, James Duncan, and Justin Bennett. Tr. 59-61.
Winebarger did not have counsel present when he talked with these individuals. Tr. 64. He
testified that he would contact counsel to be present if he needed to contact Piper. Tr. 64.
Those individuals came and spoke with Winebarger and Manning. Tr. 59. They were
asked general questions about what they were doing, whether they had found other employment,
and about their feelings towards reemployment at KenAmerican. Tr. 59. Winebarger offered
reemployment to Morris, Young, Lear and Duncan. Tr. 60. Morris, Lear, and Young accepted
the offer of reemployment and came back to work at KenAmerican. Tr. 60. Morris was a roof
bolt operator, Young was a shuttle car and scoop operator, and Lear was a shuttle car operator.
Tr. 61. These other employees did not have fire brigade or MET training, nor did they have the
same experience in operating the roof bolters, scoops, or miner. Tr. 25.
Other individuals with excessive absenteeism were laid off and recalled. Tr. 64. None of
those individuals filed discrimination complaints. Tr. 64. Winebarger testified that this was
because Piper had a history of absence problems stretching back to 2009, and they became worse
in the end of 2012. Tr. 65.
KenAmerican had two absenteeism policies. Tr. 66. An employee is found to be in
violation of the first policy if he has three or more occurrences of absenteeism and has an
absence rate above 2.5%.9 Tr. 66-67. An employee is found to be in violation of the second
absenteeism program if he has two unexcused absences within a 60-day period. Tr. 67. When
9

Winebarger testified that an “occurrence” is defined as “either one absence by itself or a
group of absences due to a single event.” Tr. 66.

35 FMSHRC Page 1686

that occurs, the employee is labeled an “irregular worker” and retains the designation unless six
months pass without an additional absence. Tr. 67. Winebarger testified that at the time of the
layoff, Piper was in violation of both policies. Tr. 67. Some of these absences were due to a
work-related knee injury, which Piper explained to HR at the time of the absences. Tr. 40-41.
Billy Lear, who was laid off at the same time as Piper and subsequently recalled, was
also in violation of both policies. Tr. 67. He was recalled over Piper because he had no absences
in the prior 12 months and was close to the one-year anniversary of his two unexcused absences.
Tr. 68. The two other workers that accepted the offer of recall were not in violation of either
policy. Tr. 68. The worker who declined the offer of recall was in violation of the absenteeism
policy, but he did not have an absence in the previous 12 months. Tr. 68.
On March 27, 2013, after hearing that three of the individuals that were laid off with
Piper were recalled, Piper called Winebarger. Tr. 23. Winebarger told Piper that he could not
speak to him because Piper had filed a complaint against the company.10 Tr. 23. Winebarger
testified that he responded in this manner because KenAmerican counsel have previously
advised him to have counsel present when speaking with anyone that is a party to litigation
against the mine. Tr. 55. Piper understood Winebarger’s comment to mean that he was being
“blackballed.” Tr. 41-42:
Q. When you had the conversation with Mr. Winebarger on or about March 27th, I know
there’s been a discussion as to your summary of that conversation and this
complaint.
When he told you that he couldn’t talk to you, what did you—since you had filed a
complaint against them, what did you think that that meant?
A. Well, at that time, in that given time, it just really devastated me at that time, you
know, saying that you had filed a lawsuit against the company and now we can’t
even communicate with each other, now what have I done, you know?
Q. And if you can’t communicate, can you get your job back?
A. No. You cannot do that. So at this period of time, I thought, well, they don’t want to
talk to me because I have drawn a lawsuit against them, so then that made me feel
like I was being blackballed.
Tr. 41-42.

10

Winebarger testified that he told Piper the following: “I can’t talk to you right now.
You have a discrimination complaint against us, and I can’t talk to you about this right now.” Tr.
55. Winebarger denied ever saying that Piper would never be recalled because of his complaint.
Tr. 56.

35 FMSHRC Page 1687

After speaking with Winebarger, Piper filed a discrimination complaint with MSHA on
March 27, 2013. Tr. 24; GX-5.
Contentions of the Parties
The Secretary argues that the scope of a temporary reinstatement hearing is limited to a
determination of whether the complaint was frivolously brought. Under that standard, the
Secretary maintains that Piper should be reinstated to his previous position at KenAmerican.
The Secretary further argues that Piper was a “miner” for the purposes of his discrimination
complaint under the Act. The Secretary connects the several complaints that Piper made,
referring to them as “directly and inextricably linked,” and argues that but for his initial
complaint he would have been recalled to work. Sec. Pre-Hearing Brief, 10-11. The Secretary
argues that in order to effectuate the safety purposes of the Act, the term “miner” in 105(c) must
include a miner who is not currently working in the mine.
The Respondent argues that Piper was not a “miner” under the Act, but rather an
applicant for employment, and therefore is not entitled to temporary reinstatement. Citing
Young v. Lone Mountain Processing, Inc., 20 FMSHRC 927, the Respondent maintains that
temporary reinstatement is not an available remedy. Piper’s lay off meant he was a former
employee and had lost his status as a “miner” when he filed the March 27, 2013 discrimination
complaint. Therefore, according to Respondent, the Act only allows for a full discrimination
hearing.
Findings and conclusions
Protected activity and “miner” status
Piper engaged in protected activity when he filed a discrimination complaint with
MSHA on February 1, 2013. GX-1. Section 105(c)(1) prohibits discrimination against a miner
in exercising his statutory rights. 30 U.S.C. §815(c)(1). Furthermore, it specifically prohibits
discrimination based on a miner having “instituted or caused to be instituted any proceeding
under or related to this chapter…or because of the exercise by such miner, representative of
miners or applicant for employment on bealf of himself or others of any statutory right afforded
by this chapter.” Id. See also Secretary on behalf of Strattis v. ICG Beckley, LLC, 32 FMSHRC
614, 616 (June 2010)(ALJ)(holding that filing a 105(c) discrimination complaint is a protected
activity for which operators are barred from retaliating).
In the instant case, Piper also engaged in protected activity when he complained about
his fire boss using drugs and when he missed work due to injuries. GX-2, Decl. Kirby Smith.
See James Eldridge v. Sunfire Coal Company, 5 FMSHRC 408, 464 (March 1983)(miner’s
work refusal protected when he refused to work beyond his normal shift because of his
communicated concerns that he was “too tired and exhausted” to continue working). What
followed was a series of protected activities and resulting adverse employment actions that each
relate back to the former. Piper was laid off and filed a Section 105(c) complaint alleging that

35 FMSHRC Page 1688

the layoff was discriminatory. Tr. 23. Then, as a result of his filing a discrimination complaint,
Piper was not recalled when other miners with lesser experience or credentials were recalled.
These protected activities cannot be viewed in isolation, as the Respondent insists, because each
flows from the previous one.
The Respondent argues that since Piper’s second discrimination complaint concerning
his not being recalled was filed after he was laid off, then Piper was not a “miner,” and
therefore not entitled to temporary reinstatement. Respondent argues that Piper was an
“applicant for employment,” and cites to Secretary of Labor, obo Ray Young v. Lone Mountain
Processing, 20 FMSHRC 927 (Sep. 1998), for the proposition that applicants for employment
are not entitled to temporary reinstatement. In Lone Mountain Processing, the Commission
held that an applicant for employment is not entitled to temporary reinstatement. Id. at 930.
However, the facts in Lone Mountain are significantly different than the facts at hand, making
the case inapposite to Piper’s situation. In Lone Mountain, the complainant was employed at
one mine that was not party to the proceedings and he was an applicant at a second mine. Id. at
927-928. His protected activity occurred during the application process at the second mine,
where he had never worked. Id. With regard to this second mine, there was no question that the
complainant was an applicant for employment, as he had no previous employment relationship.
I specifically find that Lone Mountain is distinguishable; hence it does not control the outcome
in this case.11
11

Even under the holding in Lone Mountain, Piper is not precluded from pursuing
temporary reinstatement. However, it may be worthwhile, upon presentation of an appropriate
case or controversy, to revisit the holding in Lone Mountain. Former Commissioner Marks
argued in his dissent, and the undersigned agrees, that the intent of Congress in Section 105(c)(2)
is ambiguous. 20 FMSHRC at 934-935. Commissioner Marks noted that though the text of the
Section alternates between “any miner or applicant for employment or representative of miner”
and “miner,” the text repeatedly uses the term “such” to relate back to previous sentences:
Any miner or applicant for employment or representative of miners who believes
that he has been discharged, interfered with, or otherwise discriminated against by any
person in violation of this subsection may, within 60 days after such violation occurs, file
a complaint with the Secretary alleging such discrimination. Upon receipt of such
complaint, the Secretary shall forward a copy of the complaint to the respondent and
shall cause such investigation to be made as he deems appropriate. Such investigation
shall commence within 15 days of the Secretary's receipt of the complaint, and if the
Secretary finds that such complaint was not frivolously brought, the Commission, on an
expedited basis upon application of the Secretary, shall order the immediate
reinstatement of the miner pending final order on the complaint.
30 U.S.C. 815(c)(2)(emphasis added). The combination of the alternating subject and the
use of “such” to continuously relate back creates a significant ambiguity in the text. As such,
(continued…)

35 FMSHRC Page 1689

In the instant case, Piper was a “miner” within the definition of the Mine Act when he
began engaging in the protected activities that set the chain of claimed discrimination and
adverse actions in motion.12 His second discrimination complaint of March 27, 2013 is
inextricably linked to his employment at Respondent’s mine and his first discrimination
complaint, which Piper filed for the alleged discrimination suffered while employed at
Respondent’s mine. GX-5. Indeed, the subject of Piper’s second discrimination complaint
concerned his not being recalled following what he believed to be a discriminatory layoff. GX5. Under these circumstances, it would make little sense to analyze Piper’s second
discrimination complaint in isolation from the chain of events that led to the instant
discrimination complaint. As long as this complaint of discrimination relates back to when
Piper was a “miner,” then he is eligible for temporary reinstatement. Under Respondent’s
argument, miners could too easily be stripped of their status as “miners” and therefore lose a
significant protection that is at the heart of the Mine Act.13
Adverse Action
The Commission has defined “adverse action” as:
“‘[A]n action of commission or omission by the operator subjecting the affected miner to
discipline or a detriment in his employment relationship.”’ 601 F.3d at 428 (quoting Sec'y
on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984)).
At the same time, the Commission has recognized that, while “discrimination may
manifest itself in subtle or indirect forms of adverse action,” at the same time “an adverse
action ‘does not mean any action which an employee does not like.”’ Hecla-Day Mines
Corp., 6 FMSHRC at 1848 n.2 (quoting Fucik v. United States, 655 F.2d 1089, 1096 (Ct.
11

(…continued)
deference should be accorded to “an agency’s interpretation of the statute it is charged
with administering when that interpretation is reasonable.” Energy West Mining Co., 40 F.3d
457, 460 (D.C. Cir. 1994)(citing Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984). However, it is understood and emphasized that the majority
opinion in Lone Mountain now stands as precedent.
12

“Miner” is defined generally in Section 3(g) as “any individual working in a coal or
other mine.” 30 U.S.C. 802(g).
13

The purpose of the protection is to encourage miners Ato play an active part in the
enforcement of the [Mine Act]@ recognizing that, Aif 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., 1st 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).

35 FMSHRC Page 1690

Cl. 1981)). Consequently, where the action alleged to be adverse against the miner is not
self-evidently so - such as a discharge or suspension would be - the Commission will
closely examine the surrounding circumstances to determine the nature of the action. Id.
at 1848. “Determinations as to whether an adverse action was taken must be made on a
case-by-case basis.” Id. at 1848 n.2.
Secretary of Labor, obo Lawrence L. Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1930
(Aug. 2012). Under this definition, the Respondent’s failure to recall, or even seriously
reconsider, Piper was an adverse action. Piper was among 10 employees that were laid off on
December 31, 2012. Tr. 52. When the hiring freeze was lifted in late February, the general
manager told Winebarger that the company needed to start rehiring and that he should begin with
the miners that were laid off. Tr. 58. Six of the 10 laid off employees were called in for an
interview, and Piper was not among them. Tr. 59-61. None of the individuals invited for
interview had filed discrimination complaints. Tr. 64. Winebarger testified that the interviews
were informal and he did not have counsel present. Tr. 59, 64. However, if he had invited Piper
for an interview, he would have had counsel present for the meeting. Tr. 64. Of these six
individuals invited to interview, four were offered their jobs back, and three accepted the offer.
Tr. 60. These employees did not have fire brigade or MET training, as Piper did. Tr. 25. They
also did not have the same experience as Piper in operating the roof bolters, scoops, or miner. Tr.
25.
Winebarger testified that the primary reason that Piper was not considered for recall was
because he was in violation of both of the operator’s absenteeism policies. Tr. 67. However
Billy Lear, the employee recalled as a shuttle car driver (which was also Piper’s position), was
also in violation of both of the absenteeism policies. Tr. 67. Winebarger explained that Lear’s
record of absenteeism was improving when he was laid off and Piper’s was getting worse. Tr.
65, 68. However, Piper explained that the absences prior to his layoff were the result of his
work-related knee injury. Tr. 40-41.
Piper began working for Pollard & Son on April 9, 2013, and is currently earning $16 per
hour, with no benefits, at his job operating the track hoe and dozer. Tr. 37. Had Piper been
recalled to his position operating the shuttle car at KenAmerican, he would be earning $22.50
per hour (plus an additional three to four hours per day of overtime at $32.25 per hour) and
would have health insurance, a 401(k) plan, and other benefits.14 Tr. 42-43. The Respondent’s

14

There is some inconsistency over Piper’s rate of pay. At hearing, Piper testified that he
earned $22.50 per hour in regular pay and $32.25 per hour in overtime pay. Tr. 42-43. In his
February 1, 2013 Discrimination Complaint, Piper reported that he earned $21.50 per hour in
regular pay and $33.00 per hour in overtime pay. GX-1. In his March 27, 2013 Discrimination
Complaint, Piper reported that he earned $21.00 per hour in regular pay and $32.25 per hour in
overtime pay. GX-5. The precise amount is not essential to the holding because each amount is
significantly more than his current rate of pay.

35 FMSHRC Page 1691

failure to recall Piper was a significant detriment in his employment relationship and therefore
constituted an adverse action.15
Nexus between the protected activity and the alleged discrimination
Having concluded that Piper engaged in protected activity, the examination now turns to
whether that activity has a connection, or nexus to the subsequent adverse action, namely the
failure to recall Piper for employment at KenAmerican.
The Commission has recognized that a nexus between protected activity and a
subsequent adverse action is rarely supplied exclusively by direct evidence. Phelps Dodge
Corp., 3 FMSHRC at 2510. More often, the determination of nexus is made by the trier of fact
drawing an inference from circumstantial evidence. Id. In the instant case, inferences may be
drawn from the evidence presented. 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; and (3) coincidence in time between the protected
activity and the adverse action. CAM Mining, LLC, 31 FMSHRC at 1089. The Commission has
also stated that it is appropriate for the judge to look at instances of disparate treatment of the
complainant. See, e.g., Phelps Dodge Corp., 3 FMSHRC at 2510. It is not necessary, however,
to establish all four indications of discriminatory intent. For example, where there is knowledge
of the protected activity and coincidence in time between the protected activity and the adverse
action, a causal connection is supported. Sec’y of Labor, on behalf of Yero Pack v. Cimbar
Performance Minerals, 2012 WL 7659706, *4 (ALJ)(Dec. 2012).
Knowledge of the protected activity
Winebarger testified that he had knowledge of Piper’s protected activity of filing the
discrimination complaint against KenAmerican. Tr. 55. Indeed, it was because of his
knowledge of the complaint that Winebarger refused to speak with Piper on the phone on March
27, 2013. Tr. 55.
Hostility or animus towards the protected activity
“Hostility 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, 2
FMSHRC 2508, 2511 (Nov. 1981)(citations omitted). I find significant animus towards the
protected activity in Winebarger’s phone conversation with Piper. Prior to filing his complaint,
Winebarger told Piper to keep checking in with him about the possibility of being recalled. Tr.
15

That Piper did find other employment is not a bar to reinstatement and the income is
not relevant in the context of temporary reinstatement. Sec’y of Labor v. North Fork Coal Corp.,
33 FMSHRC 589, 592 (March 2011).

35 FMSHRC Page 1692

34. However, after filing the February 1, 2013, discrimination complaint, Winebarger told
Piper that he could not speak to him because he filed a discrimination complaint. Tr. 23, 55-56.
Winebarger testified that since Piper filed a complaint against the company, he meant that he
could not speak with Piper without counsel present. Tr. 55. However, Winebarger did not relay
the need for counsel. Tr. 55. Instead, Winebarger simply stated that he could not speak to Piper.
Tr. 55. Winebarger is the individual at the company responsible for all employment decisions.
Tr. 48. Having refused to speak to Piper, it was not clear how it would be possible for Piper to
be recalled to work. Tr. 41-42. Therefore, Piper’s conclusion that he was being blackballed
from the mine for bringing a discrimination complaint was reasonable. Tr. 41-42.
I also find circumstantial evidence of animus in Winebarger’s decisions not to call Piper
in for an interview or recall him. Piper had more certifications, training, and experience than
the other miners that were called in for interview and the miners that received offers of
reemployment. Tr. 25. Several of these miners were in violation of one or both of the absentee
policies, just like Piper. Tr. 64, 68. However none of the miners called in for interview or
eventually recalled had filed discrimination complaints. Tr. 64. Therefore, I find the failure of
the Respondent to interview and recall Piper to be circumstantial evidence of animus towards
his protected activity.
Coincidence in time between the protected activity and the adverse action
With regards to coincidence in time between the protected activity and the adverse
action, the Commission has noted, A[a] three week span can be sufficiently close in time@,
especially when there is evidence of intervening hostility, animus or disparate treatment. CAM
Mining, LLC, 31 FMSHRC at 1090. Likewise, in All American Asphalt, a 16-month gap
existed between the miners= contact with MSHA and the operator=s failure to recall miners from
a layoff; however, only one month separated MSHA=s issuance of a penalty resulting from the
miners= notification of a violation and that recall failure. Sec=y of Labor on behalf of Hyles v. All
American Asphalt, 21 FMSHRC 34 (Jan. 1999). Similarly, in Pamela Bridge Pero v. Cyprus
Plateau Mining Corp., the Commission found a five-month gap to constitute close temporal
proximity between the protected activity and the adverse employment action. 22 FMSHRC
1361, 1365 (Dec. 2000). The Commission stated AWe >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.=@ Sec=y of Labor on behalf of Hyles v. All American
Asphalt, 21 FMSHRC 34, 47 (Jan. 1999)(quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC
523, 531 (Apr. 1991).
In the instant case, the protected activity occurred on February 1, 2013 when Piper filed
his first discrimination complaint. Tr. 23. The hiring freeze was lifted in late February, and the
adverse action of not inviting him for an interview and not recalling him began at that time. Tr.
57. I find that this several-week span between the protected activity and adverse action is
sufficiently close in time.

35 FMSHRC Page 1693

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). In the instant case, I find evidence of disparate treatment in the fact
that other miners with lesser qualifications and records of absenteeism who had not filed
discrimination complaints were invited for interview and recalled, while Piper was not. Tr. 25,
64, 68.
Conclusion
At all times relevant to this decision, Complainant was a “miner” for the purpose of
section 105(c) of the Act. The Discrimination Complaint of March 27, 2013 appears to have
merit, and the Secretary has carried his burden of showing that Piper’s complaint was not
frivolously brought. I find that temporary reinstatement of Piper is warranted. No inferences
should be drawn regarding the ultimate disposition of the complaint in any subsequent
proceeding on the merits.
ORDER
Based on the above findings, the Secretary=s Application for Temporary Reinstatement
is granted. Accordingly, KenAmerican Resources is ORDERED to provide immediate
reinstatement to Darrick Piper, at the same rate of pay for the same number of hours worked,
and with the same benefits, as at the time of his discharge.
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 KenAmerican
Resources did not violate Section 105(c) of the Act.

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

35 FMSHRC Page 1694

Distribution: (Certified Mail)
Donna E. Sonner, Esq., Office of the Solicitor, US Department of Labor, 618 Church St., Suite
230, Nashville, TN 37219-2440
Todd C. Myers, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre
Circle, Suite 375, Lexington, KY 40513
Darrick Piper, 3233 Merle Travis Highway, Beechmont, KY 42323

35 FMSHRC Page 1695

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

June 6, 2013
UNITED MINE WORKERS OF AMERICA, :
(UMWA), on behalf of MARK A. FRANKS, :
Complainant,
:
:
v.
:
:
EMERALD COAL RESOURCES, LP,
:
Respondent,
:
:
UNITED MINE WORKERS OF AMERICA, :
(UMWA), on behalf of RONALD HOY,
:
Complainant,
:
:
v.
:
:
EMERALD COAL RESOURCES, LP,
:
Respondent.
:

DISCRIMINATION PROCEEDING
Docket No. PENN 2012-250-D
PITT-CD 2012-04
Emerald Mine No. 1
Mine ID 36-05466
DISCRIMINATION PROCEEDING
Docket No. PENN 2012-251-D
PITT-CD 2012-05
Emerald Mine No. 1
Mine ID 36-05466

AMENDED DECISION1
Appearances: Laura Karr, United Mine Workers of America, Triangle, Virginia, for
Complainants
R. Henry Moore, Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, for Respondent
Before:

Judge Miller

These cases are before me on complaints of discrimination brought by United Mine
Workers of America (“UMWA”), on behalf of Mark A. Franks (“Franks”) and Ronald Hoy
(“Hoy”), against Emerald Coal Resources, LP (“Emerald”), pursuant to Section 105(c) of the
Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c) (the “Act”). The
parties presented testimony and documentary evidence at a hearing beginning on Wednesday,
April 10, 2013 in Pittsburgh, Pennsylvania.

1

The original decision in this matter was issued on June 3, 2013. Due to an oversight,
Respondent was ordered to make payment to the Complainants, post this decision and the
associated notice, and remove mention of the discipline from the employees personnel files
within “ten” days of the date of that decision. This Amended Decision corrects these errors and
orders that Respondent make payment, post the decision and notice, and remove all references to
and reasons for the reprimand within “thirty” days. June 3, 2013 remains as “date of decision”
or “date of order” for any calculation of time that relies upon the date the decision was issued.

35 FMSHRC Page 1696

I. BACKGROUND
Emerald Coal Resources (“Emerald”) operates Emerald Mine No. 1, an underground coal
mine in Green County, Pennsylvania. Jt. Stip. ¶ 1. Emerald is a large operator, who is subject to
the jurisdiction of the Act. At the time relevant to this case, September through November of
2011, Emerald employed Mark Franks and Ronald Hoy as beltmen at Mine No. 1.
On November 10, 2011 Franks and Hoy filed separate discrimination complaints with the
U.S. Department of Labor’s Mine Safety and Health Administration (“MSHA”). In the
complaints, the miners stated that Emerald had “targeted”/“singled them out” “for participating
and cooperating in a 103(g) Complaint investigation conducted by MSHA.” Complaint of
Discrimination, Ex. A pp. 2, 4. Both alleged that they had been “harassed” and “suspended for
seven calendar days for cooperating” with MSHA during a 103(g) Hazard Complaint
investigation. Id. Franks and Hoy seek to be compensated for the seven calendar day
suspension, including regular, overtime and holiday pay. Both miners seek to have any reference
of this matter removed from their work records and an order entered requiring the mine to stop
harassing employees who participate in MSHA investigations. Following the submission of the
complaints to MSHA, the matters were investigated by an MSHA special investigator who
determined that violations of 105(c) had not occurred. Id. at Ex. B pp. 1-4. On April 23, 2012,
pursuant to 30 U.S.C § 105(c)(3), the United Mine Workers of America, acting on behalf of
Franks and Hoy, filed the instant complaint of discrimination with the Commission.2 For the
reasons set forth below, I conclude that both Hoy and Franks have demonstrated a prima facie
case of discrimination and that the defense set forth by the mine operator is pretextual.
II. FINDINGS OF FACT
The findings of fact are based on the record as a whole and my careful observation of the
witnesses during their testimony. In resolving any conflicts in testimony, I have taken into
consideration the interests of the witnesses, corroboration, or lack thereof, and consistencies or
inconsistencies in each witness’s testimony and between the testimonies of witnesses. In
evaluating the testimony of each witness, I have relied on his or her demeanor. Any failure to
provide detail on each witness’s testimony is not to be deemed a failure on my 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).
The complaint filed on behalf of Franks and Hoy, along with the joint stipulations filed
by the parties and the testimony of Franks and Hoy, demonstrate that, on or about September 22,
2011, an anonymous 103(g) complaint was made to MSHA. Jt. Stip. ¶ 12. The 103(g)
2

The single complaint filed with the Commission was done on behalf of both Franks and
Hoy. While both Franks and Hoy initially filed separate individual complaints with MSHA,
given that their complaints are essentially identical, they are both being addressed in this single
decision.

35 FMSHRC Page 1697

complaint alleged, in part, that a fireboss had not conducted an adequate inspection of a beltline.
Following the filing of the anonymous hazard complaint, an MSHA inspector conducted a
hazard complaint investigation at Mine No. 1. Jt. Stip. ¶¶ 12-14; Jt. Ex. 1. During the
investigation into the hazard complaint, the MSHA inspector spoke to, and took statements from,
approximately 34 miners and supervisory personnel, including Franks and Hoy. Jt. Stip. ¶¶ 1415, 29, 31-33, 38.
The stipulations of the parties, along with the testimony, explain that, on or about
September 28, 2011, Franks was approached by MSHA inspector Thomas Bochna, who
questioned him about the fireboss issue contained in the hazard complaint. Jt. Stip. ¶ 14. Franks
responded that he knew the name of the fireboss who had failed to perform the examination. Id.
On the same shift, Franks was called into an office with Bochna, Bochna’s supervisor, David
Severini, the Emerald Compliance manager, William Schifko, an Emerald management trainee,
Adam Strimer, the UMWA local president, Anthony Swetz, and the miners’ representative,
Bruce Plaski. Jt. Stip. ¶¶ 15, 16. Franks was asked if he was comfortable with everyone being in
the room, and was informed that Bochna had told Severini that Franks knew the name of the
person who had allegedly failed to conduct an adequate beltline inspection. Jt. Stip. ¶¶ 18, 19.
Franks refused to provide the name of the person during that meeting, and also refused to do so
during a follow-up meeting later that same day and again on the following day. Jt. Stip. ¶¶ 20,
22, 24, 26.
On October 4, 2011, Hoy’s supervisor asked Hoy, who was not present for the earlier
interviews, to go to Schifko’s office. Jt. Stip. ¶ 29. There, Hoy met with, among others, Schifko,
MSHA Inspector Severini, MSHA Inspector Tony Setaro, and UMWA Mine Committeeman
Douglas Scott, who arrived after Hoy asked for union representation. Jt. Stip. ¶ 33. Severini
informed Hoy, as he had Franks, that the mine could not retaliate against Hoy for meeting with
MSHA or providing information. Id. In response to a question from Severini, Hoy explained
that he had observed several occasions when an examiner had not properly examined the
conveyor belts, however, Hoy refused to provide the name of the examiner who allegedly had
not properly performed the examinations. Jt. Stip. ¶¶ 34, 35.
Hoy testified that, before being called into a meeting with the MSHA investigator and
mine management, he had provided the name of the fireboss to the safety committee
representative, David Moore. (Tr. 18-19, 20, 21). Hoy understood that, by giving the name to
the safety committee representative, he was following the steps required by the union. (Tr. 43).
He believed it was up to Moore to follow through, determine if there was a problem, and advise
mine management. (Tr. 42, 43). MSHA conducted approximately 34 interviews in which they
questioned the adequacy of the inspection on the beltline, but did not include Moore in those
interviews. (Tr. 130). As a result of the interviews and the investigation into the 103(g)
complaint, MSHA found that the allegation concerning the examinations of the beltline was
unfounded. Jt. Stip. ¶¶ 37, 38; Jt. Ex. 2. After MSHA completed its investigation on October 4,
2011, Emerald began its own investigation into the allegations contained in the 103(g)
complaint. Jt. Stip. ¶ 39.
On October 20, 2011, Hoy, accompanied by UMWA Committeeman Douglas Scott, met
with Schifko, Swetz, and Emerald Human Resources Manager Chris Hayhurst. Jt. Stip. ¶ 42.

35 FMSHRC Page 1698

Franks met with the group the same day. Jt. Stip. ¶ 40, 41. During their respective meetings,
Franks and Hoy again declined to provide the name of the examiner that they believed was
responsible to conduct the examination. Jt. Stip. ¶¶ 40, 42. Both repeated that he had provided
the information to the safety representative, David Moore, and that they were not required to
give further information, as they were protected by the 103(g) complaint. (Tr. 19, 20, 21, 38, 46,
49, 50, 52, 58). Hoy told Schifko that the questions constituted harassment and he would be
filing a complaint of discrimination under Section 105(c) of the Act. On October 24, 2011, in
the presence of Schifko, Hayhurst and Swetz, Franks again declined to name the individual. Jt.
Stip. ¶ 43. On November 9, 2011 Franks and Hoy were summoned to yet another meeting with
Schifko and Emerald mine management. Both Franks and Hoy again declined to provide a name
of a fireboss who may have conducted an inadequate inspection. Jt. Stip. ¶¶ 45, 48. Hoy recalls
that Schifko already knew the name of the fireboss who was accused of not making an
examination because he was told by Mark Cole, a beltman at the mine. (Tr. 22). At no time
were Franks and Hoy advised that any disciplinary action would follow if they failed to provide a
name of a fireboss. (Tr. 23, 40). However, at the end of their respective meetings, Franks and
Hoy were each handed a memorandum that stated they had been suspended for seven days for
“failure to provide information [he had] . . . concerning serious allegations of safety violations.”
Jt. Stip. ¶¶ 46, 49; Jt. Exs. 3 and 4.
Franks and Hoy both credibly testified regarding the events leading up to the suspensions.
The facts stated above are, for the most part, undisputed and subject to stipulation. There is a
dipuste of fact, however, related to the incidents that occurred prior to the 103(g) complaint and
are raised by the Respondent’s witness, David Moore, a member of the union safety committee.
Franks, Hoy, and David Baer, a UMWA member, all testified that Hoy approached Moore to
complain about an examination of the E1 belt in July. (Tr. 61). Hoy remembered speaking to
Moore again on August 17 at the beginning of the midnight shift and once more on August 29.
(Tr. 24-25). Hoy testified that Moore told Hoy he already knew which fireboss Hoy was talking
about and was already looking into it. While Moore agreed that Hoy mentioned a problem with a
fireboss in July, he denied that Franks and Baer were present and denied further discussions in
August. (Tr. 123). According to Moore, when he spoke with Hoy in July, Hoy told him that
there was a problem on the E1 longwall belt and asked Moore if he saw the fireboss. (Tr. 123).
Moore responded that he was off the beltline when the fireboss went through, but that he had
seen the dates, times and initials, so he didn’t think there was a problem. (Tr. 123-124). Moore
testified that he told Hoy that he would speak to the firebosses to make sure they were all doing
the mandated belt inspections. (Tr. 124). Moore agreed that he knew what Hoy was referring to,
but stated that Hoy did not give him a name and Moore did not ask. Moore denied having any
other conversations with Hoy after that day. (Tr. 125). Moore testified that he was in Beckley
on August 17 at the time Franks and Hoy allege they approached him a second time with the
complaint about a fireboss. (Tr. 122). Moore also explained that Franks and Hoy are not limited
to bringing safety complaints to him, and that they can also speak to the company about a
problem if they see one. (Tr. 126).
I resolve the dispute of fact in favor of Franks and Hoy. I do not find Moore to be a
credible witness. His answers were opaque and evasive. He insisted that he only spoke to Hoy
once, yet Franks, Hoy and Baer remember Hoy speaking to Moore about the issue at least twice,
and also remember that Hoy gave Moore the information to identify the fireboss. The fact that

35 FMSHRC Page 1699

Hoy may have remembered or written down the incorrect day in August does not change my
assessment. All agree that Moore spoke to Hoy in July, and Franks and Hoy also agree they
spoke to Moore at the end of August. Both times, the miners expected that the information they
provided to Moore would be checked out and given to the appropriate safety committee or
management. While, on one hand, Moore testified that he didn’t know who Hoy was talking
about, he also testified that he was aware of a time in July when someone mentioned the fireboss
neglecting his job and Moore checked for the dates, times and initials and believed the
examination was completed. (Tr. 127-128). Clearly Moore was made aware of who was being
accused, not only by Hoy, but by other miners. I also find that both Franks and Hoy believed
they were following the UMWA normal procedure by providing information to Moore as their
safety representative, and that, by doing so, they were following UMWA rules and protecting
themselves from company retaliation. Finally, I find it unusual that Moore was not among the 34
persons interviewed by MSHA about the fireboss issue that was contained in the 103(g)
complaint, since he did have some information about the matter. Moore accompanied the
inspector for at least part of the investigation that resulted from that complaint, and he was
interviewed by the company after MSHA had determined that the 103(g) complaint was
unfounded.
David Baer, a member of the UMWA, provided further evidence that Franks and Hoy,
not Moore, remember the events as they occurred. Baer was present in August when Franks and
Hoy talked to Moore. (Tr. 64). Baer remembers that Hoy told Moore he wanted to make a
complaint about a fireboss and Moore asked Hoy if he was talking about Gary Cortland. (Tr.
64). Moore said that he already knew about it. (Tr. 64-65). Hoy asked Moore to look into it to
see if the fireboss was doing his job. (Tr. 65). On August 29, Baer observed Hoy ask Moore if
Moore had followed up and looked into it, and Moore said he was still looking into it. (Tr. 65).
Baer assumed they were talking about the same individuals during both encounters. (Tr. 66).
Baer agreed that Franks and Hoy were correct in bringing the matter to Moore’s attention, since
he is a member of the safety committee. (Tr. 68-69). In Baer’s view, if there is a serious safety
matter, it is best to go to the safety committee and follow their instructions. (Tr. 68-69, 71).
William Schifko and David Moore disagree and instead submit that miners do not necessarily
have to bring an issue to a safety committee member, but they may take it directly to
management. (Tr. 93).
William Schifko, a member of Emerald’s safety department, was present when Franks
and Hoy met with MSHA regarding the 103(g) complaint. (Tr. 73-74). Schifko was also
involved in the company’s investigation into the examinations of the belt and re-interviewed the
miners questioned by MSHA as well as some additional personnel. (Tr. 91). Schifko opined
that it is important for the mine to know the names of persons accused of not doing their jobs
because the company must have sufficient evidence to take action against them. He explained
that the mine conducted its own investigation after MSHA’s so that the mine could “dig a little
deeper” into the merits of the complaint. (Tr. 76). One of the persons interviewed by MSHA,
and by Schifko separately, was Mark Cole. (Tr. 77). According to Schifko, Cole seemed
nervous when he spoke with MSHA, and it was apparent that Cole was confused. (Tr. 77-78,
90). Cole gave two dates for alleged incomplete belt examinations, both in July, but no
documentation, and no name of the fireboss who failed to conduct the examinations. (Tr. 77).
When Cole was re-interviewed by Schifko, he changed his testimony from the earlier interview

35 FMSHRC Page 1700

with MSHA and told mine management that “he didn’t see anything.” (Tr. 78). Schifko
interpreted Cole’s behavior and statements to mean that Cole had been “coerced” by others to
provide information in the initial interview. (Tr. 78-79). While his testimony on the issue was a
bit unclear, Schifko repeated that, as of the time of the hearing, he still didn’t have a name. (Tr.
81). However, he did agree that once he received information concerning the date and shift of
the alleged failed beltline inspection, he could determine who was responsible to conduct the
examinations. (Tr. 81). So, in fact, Schifko had a good idea which fireboss was being accused
and he agreed that he told Hoy that he had an idea of who it was. (Tr. 81). However, Schifko
insisted that he must have a name from Franks and Hoy in order to take any action. (Tr. 82). I
find Schifko to be a polished but disingenuous witness. He asserts that none of the 34 miners
who provided information to MSHA during the 103(g) investigation were disciplined. However,
when pressed, he acknowledged that only three people made allegations about the fireboss;
Franks, Hoy, and Cole. (Tr. 97). Cole recanted and Franks and Hoy were suspended. (Tr. 99).
The UMWA local president, Anthony Swetz agreed that Franks and Hoy should not have
withheld the names of the firebosses that they accused. (Tr. 143). However, he did not address
the behavior of Moore and his failure to support Franks and Hoy and provide the information to
MSHA and the mine operator. Swetz testified that the mine has discharged employees for not
conducting adequate examinations, but explained that the mine must have solid information to do
so. (Tr. 140-143). He opined that miners are not required to take safety complaints to their
union representative and that they may take the complaints directly to mine management. (Tr.
145, 148). Swetz agreed that he would expect the safety committeeman to investigate and, if
there was some validity to the complaint, then go to management. (Tr. 145). Swetz testified that
the miners’ rights were explained to Franks and Hoy by MSHA, and they were asked if they
were comfortable with everyone being present during the interviews, to which they both
answered that they were. (Tr. 146, 147, 149). Swetz did not think it was his obligation to
explain their rights any further since Franks and Hoy, like all UMWA members, were aware of
their rights. (Tr. 147, 151-152).
III. ANALYSIS3
Section 105(c)(1) of the Act, 30 U.S.C. § 815(c)(1), provides that, a miner cannot be
discharged, discriminated against, or interfered with in the exercise of his statutory rights
because: (1) he “has filed or made a complaint under or related to this Act, including a complaint
. . . of an alleged danger or safety or health violation[;]” (2) he “is the subject of medical
3

Complainants, through the UMWA, spent much of their post-hearing brief arguing that
the Respondent “interfered” with their rights under the Act. The brief separates the interference
into three alleged acts: (1) Interference with the Complainant’s Mine Act rights by the presence
of Emerald managers at the Complainant’s meetings with MSHA inspectors; (2) Interference
with Complainant’s Mine Act rights by interrogating Complainants regarding details of the
safety hazard complaints made to MSHA; and (3) Interference with Complainant’s Mine Act
rights by discriminating against them in violation of Section 105(c)(1) by suspending them from
work. While I do not necessarily dispute the alleged separate acts of “interference,” I address
them together as one.

35 FMSHRC Page 1701

evaluations and potential transfer under a standard published pursuant to section 101[;]” (3) he
“has instituted or caused to be instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding[;]” or (4) he has exercised “on behalf of
himself or others . . . any statutory right afforded by this Act.”
In order to establish a prima facie case of discrimination under Section 105(c)(1), a
complaining miner must show: (1) That he engaged in protected activity; and (2) that the adverse
action he complains of was motivated at least partially by that activity. Driessen v. Nevada
Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec’y on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (Apr. 1981); Sec’y 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 (3d Cir. 1981).
The operator may rebut the prima facie case by showing either that
no protected activity occurred or that the adverse action was in no
part motivated by the protected activity. . . . If the operator cannot
rebut the prima facie case in this manner, it nevertheless may
defend affirmatively by proving that it was also motivated by the
miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone.
Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328-329 (Apr. 1998) (citations omitted).
Factors to be considered in assessing whether a prima facie case exists include the operator’s
knowledge of the protected activity, hostility or “animus” towards the protected activity, timing
of the adverse action in relation to the protected activity, and disparate treatment. Sec’y on
behalf of Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508 (Nov. 1981).
a.

Protected Activity

The Act’s discrimination provisions provide miners with protections against reprisal for
certain protected activities in the hope that miners will be willing to aid in the enforcement of the
Act and, in turn, improve overall safety. While section 105(c)(1) does not include the term
“protected activity,” Commission cases have nevertheless found that the section defines certain
protected activities. An individual covered by the Section engages in protected activity if (1) he
“has filed or made a complaint under or related to this Act, including a complaint . . . of an
alleged danger or safety or health violation[;]” (2) he “is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 101[;]” (3) he “has instituted or
caused to be instituted any proceeding under or related to this Act or has testified or is about to
testify in any such proceeding[;]” or (4) he has exercised “on behalf of himself or others . . . any
statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1).
The legislative history of the Mine Act states that that Congress intended “the scope of
the protected activities be broadly interpreted by the Secretary, and intends it to include not only
the filing of complaints seeking inspection under Section 104(f) or the participation in mine
inspections under Section 104(e), but also the refusal to work in conditions which are believed to
be unsafe or unhealthful and the refusal to comply with orders which are violative of the Act or

35 FMSHRC Page 1702

any standard promulgated thereunder, or the participation by a miner or his representative in any
administrative and judicial proceeding under the Act.” S. Rep. No. 95-181 at 35 (1977)
(emphasis added). Moreover, the history notes that “the listing of protected rights contained in . .
. [what eventually became section 105(c)(1)] is intended to be illustrative and not exclusive[, and
that the section should ] be construed expansively to assure that miners will not be inhibited in
any way in exercising any rights afforded by the legislation.” Id. The Commission and Courts
have recognized the “illustrative” as opposed to “exclusive” nature of the list provided in Section
105(c)(1) by adopting the “work refusal doctrine,” which is not explicitly addressed in 105(c)(1).
Simpson v. FMSHRC, 842 F.2d 453 (D.C. Cir. 1988); Sec’y on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980); Sec’y on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (Apr. 1981).
In order to sustain a discrimination complaint, Franks and Hoy must first demonstrate
that they have engaged in an activity or activities that are protected by Section 105(c) of the
Mine Act. The record before me clearly establishes that they both engaged in a protected
activity when they made a safety complaint to David Moore, a member of the UMWA safety
committee, when they provided information to MSHA during the course of the 103(g)
investigation, and when they provided information to Emerald during the mine’s follow up
investigation. I have found that, on at least two occasions, Franks and Hoy made the complaint
to Moore with the more than reasonable expectation that the UMWA representative would take
care of the complaint. In addition, Franks and Hoy were not required to provide information
directly to the company or to MSHA that they had already provided to the safety representative.
The fact that they spoke with MSHA inspectors and then participated in an investigatory meeting
with MSHA, with Emerald present, is also a protected activity. In addition, the fact that they
were asked by company management to address the allegations contained in the 103(g)
complaint, after MSHA had found no violation, is further protected activity. Emerald insists that
the involvement of Franks and Hoy in the two investigations may not be considered protected
activity because Franks and Hoy refused to give the name of the fireboss accused of failing to
conduct an inspection of the beltline. I find Emerald’s claim to be without merit and instead,
address it as an affirmative defense.
b.

Adverse Action

As a result of their involvement in the 103(g) complaint, Franks and Hoy each received a
seven day suspension. The parties agree that the suspension is an adverse action. The parties
have further agreed to the amount of back pay that may be due as a result of both miners being
suspended.
c.

Discriminatory Motive

The connection between the protected activities and the adverse action is the more
difficult issue. The Commission has determined that the hostility or “animus” towards the
protected activity, timing of the adverse action in relation to the protected activity, and disparate
treatment may all be considered in determining the existence of a connection between the
protected activity and the adverse action. Sec’y on behalf of Chacon v. Phelps Dodge
Corporation, 2 FMSHRC 2508 (Nov. 1981).

35 FMSHRC Page 1703

Having found that Franks and Hoy engaged in protected activity, and that they were
subject to adverse actions on the part of Emerald, it is necessary to determine whether Emerald
was motivated, at least in part, by those protected activities to issue disciplinary action in the
form of a seven day suspension. The Commission has recognized that direct evidence of actual
discriminatory motive is rare. Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent. Sec’y on behalf of Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2510–11 (Nov. 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983); Sammons v. Mine Services Co.,
6 FMSHRC 1391, 1398–99 (June 1984). As the Eighth Circuit analogously stated with regard to
discrimination cases arising under the National Labor Relations Act in NLRB v. Melrose
Processing Co., 351 F.2d 693, 698 (8th Cir.1965):
It would indeed be the unusual case in which the link between the
discharge and the (protected) activity could be supplied exclusively
by direct evidence. Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence, circumstantial or
direct, the [NLRB] is free to draw any reasonable inferences.
Franks and Hoy credibly testified that the adverse action was close in time to the
protected activity. In fact, the parties agree to the facts that establish a timeline of the complaints
made, involvement in both the MSHA and Emerald investigations, all culminating in the
suspension of the two miners.
I find that credible evidence supports that Franks and Hoy suffered hostility as a result of
their actions, and were treated differently than other miners. A part of the circumstantial indicia
of discriminatory intent by a mine operator against a complaining miner includes hostility
towards the miner because of his protected activity and disparate treatment of the complaining
miner by the operator. Sec’y on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC at 2510.
The mine demonstrated hostility toward Franks and Hoy when mine personnel repeatedly called
the complainants into the office as part of an investigation and demanded that they turn over the
name of the fireboss about whom they complained. Given that Moore was not asked for the
name, and that Schifko was seemingly aware of the miner about whom the complaint was made,
it is reasonable to infer that Emerald’s continued questioning and harassment of Franks and Hoy
amounted to hostility toward them for making accusations against a fireboss. In addition, Hoy
explained that he was told by a co-worker that he had a target on his back after making the
complaint about the examinations of the beltline. (Tr. 33, 51). Moreover, after Franks and Hoy
explained that they had followed the UMWA procedure and provided the fireboss’ name to the
safety committee representative, the mine failed to speak with Moore and ascertain from him the
name of the fireboss. Finally, both Franks and Hoy were under the impression that the mine was
aware of the fireboss named because another miner, Cole, had reported his name. The mine
refused to acknowledge the right of Franks and Hoy to go through the safety committee
representative and harassed them for employing that protection. The miners utilized the avenue
open to them, making a complaint through a safety representative, to avoid the very thing that

35 FMSHRC Page 1704

happened to them, constant harassment and finally retaliation for expressing concern over what
they believed to be a fireboss’ failure to carry out his duties.
Emerald asserts that Franks and Hoy were not treated differently from other miners. It
asserts that 34 miners were interviewed by MSHA, and even more by the mine, but that none of
those miners received any adverse action. The mine argues that Franks and Hoy would have
been treated likewise had they been willing to provide the name of the fireboss accused of failing
to make a belt examination directly to management instead of through the safety representative.
I find it telling that Schifko acknowledged that only three complaints were made, and one of
those was recanted. The two that stayed true to their complaint, Franks and Hoy, were the two
who were disciplined. (Tr. 99). I find that the circumstantial evidence points to the fact that
Franks and Hoy were disciplined, not for failing to provide information, but for making a safety
complaint and participating in the 103(g) investigation.
While it may be true, as Emerald asserts, that Franks and Hoy could have refused to
provide information to MSHA with mine management present, or that they could have brought
the complaint about the fireboss to mine management directly, or even that they could have
provided the information privately to MSHA, it does not negate the fact that they made a
complaint and, as a result, were disciplined. Given the specific circumstances discussed above, I
find that Franks and Hoy have demonstrated a nexus between the adverse action and the
protected activity and, therefore, have proven a prima facie case of discrimination.
d.

Affirmative Defenses

Having found that Franks and Hoy have established a prima facie case of discrimination,
I must now consider whether Emerald disciplined both miners for unprotected activity and
“would have taken the adverse action for the unprotected activity alone.” Sec’y on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-818 (Apr. 1981); Sec’y on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980).
The Commission has enunciated several indicia of legitimate non-discriminatory reasons
for an employer's adverse action. These include evidence of the miner's unsatisfactory past work
record, prior warnings to the miner, past discipline consistent with that meted out to the
complainant, and personnel rules or practices forbidding the conduct in question. Bradley v.
Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). The Commission has explained that an
affirmative defense should not be “examined superficially or be approved automatically once
offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982). In reviewing
affirmative defenses, the judge must “determine whether they are credible and, if so, whether
they would have motivated the particular operator as claimed.” Bradley v. Belva Coal Co., 4
FMSHRC at 993. The Commission has stated that “pretext may be found . . . where the asserted
justification is weak, implausible, or out of line with the operator's normal business practices.”
Sec'y on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990).
Emerald argues that the failure of a fireboss to conduct a mandated examination is a
serious safety issue, and that Franks and Hoy were disciplined solely for failing to provide mine
management the name of the fireboss whom they accused of not conducting an examination of

35 FMSHRC Page 1705

the belt. Emerald attempts to analogize the situation in Sec’y on behalf of Pack v. Maynard
Dredging Co., 11 FMSHRC 168 (Feb. 1989) to the case at hand. Emerald asserts that, in Pack,
the Commission “upheld the discharge of a miner for failing to report a serious safety violation
to the operator.” Cemex Br. 12. However, Pack is easily distinguished. In Pack, unlike in the
present matter, both the judge and Commission relied upon that mine’s “established policy”
requiring mine personnel to report safety and health hazards to their “supervisor.” 11 FMSHRC
at 171. In the case at hand, it is clear that Emerald had no such policy that required all personnel
to report safety and health hazards exclusively to their supervisors. Rather, it was accepted
practice at the mine to report safety and health hazards to mine management or members of the
safety committee. Here, I have already found that the complainants not only alerted Moore, a
member of the safety committee, of the issue, but also identified the fireboss.
There are no allegations that Franks and Hoy had an unsatisfactory work performance
history, or were given prior warnings or discipline. The mine asserts that Franks and Hoy
violated the company policy by refusing to provide the name of a fireboss whom the
Complainants alleged did not conduct a required belt examination. I find the argument to be
without merit. First, I have already found that Franks and Hoy did provide the name, albeit
through the safety representative for the UMWA. Moreover, both Franks and Hoy learned that
Cole had provided the name to Schifko and Schifko acknowledged that, based upon the date and
the shift information he received, he was aware of the name of the fireboss who allegedly missed
the examination. There were two names of possible firebosses mentioned at hearing, and both
were interviewed by MSHA and mine management. Even so, the mine questioned Franks and
Hoy and demanded that they directly provide the name of the fireboss they accused, and
continued to do so even after MSHA left the mine after it found that the allegation regarding the
belt examinations was without merit.
Instead of closing the matter, based upon the many interviews and the findings of MSHA,
Emerald re-interviewed each witness, added more witnesses to the list, and continued to demand
names from Franks and Hoy. Emerald insists that it did so with a valid justification; to
determine if a fireboss had committed a serious infraction by not making a required belt
examination. If the information was so critical, I see no reason why MSHA could not have
questioned the UMWA safety representative who was given the information by Franks and Hoy.
It appears that the mine questioned the union representative, Moore, but there was no discussion
at hearing regarding what information was sought or provided by him. In fact, Moore testified
that he knew who Franks and Hoy were complaining about, and he had already checked the
dates, times and initials to see if the examination had been done, and was satisfied that it had
been. In the end, Franks and Hoy were the only miners to make the complaint about the fireboss
and, tellingly, were the only miners who were disciplined. Cole originally made a similar
complaint, but it was withdrawn and he was saved from disciplinary action.
Based upon all of these facts, I cannot agree that Emerald has demonstrated a legitimate
business purpose for the discipline. I find that the stated business purpose is not credible, and is
instead a pretext to punish Franks and Hoy for making a complaint about a fireboss. While I
agree that it is important for the mine to discover whether or not a fireboss is conducting required
examinations, the mine had several opportunities to discover who was accused and, in my view,
based upon information gained from others, including information about the date and the shift,

35 FMSHRC Page 1706

the mine did know which fireboss was accused. Moreover, both MSHA and the state inspector
conducted thorough investigations and found no reason to believe that the fireboss had not acted
properly. There could be no other reason to continue to harass Franks and Hoy about a name,
except for the purpose of retaliating against them for complaining about the fireboss. After
carefully considering the credibility of all witnesses, I find that Emerald did not have a legitimate
business reason to terminate Franks and Hoy, and that the mine’s affirmative defense is without
merit.
IV. PENALTY
The cases for Franks and Hoy were brought by them individually with the assistance of
the UMWA and, therefore, no penalty has been proposed by the Secretary. Pursuant to
Commission Procedural Rule 44(b), 29 C.F.R. § 2700.44(b), a copy of this decision is being sent
to the Secretary for the assessment of a civil penalty against Emerald Coal Resources.
V. ORDER
Emerald Coal Resources is ORDERED to pay back pay to Mark Franks in the amount of
$1,168.68, and to Ronald Hoy in the amount of $1,963.93, with interest at 8% from the date it
was due.4 Such payments shall be made within thirty days of the date of this order. Emerald
shall, within thirty days of the date of this order, post this decision along with a visible notice on
a bulletin board that is accessible to each and every employee, explaining that the company has
been found to have discriminated against an employee, that such discrimination will be
remedied, and that it will not occur in the future. The notice shall inform all employees of their
rights in the event they believe they have been discriminated against. All reference to the
reprimand received by Franks and Hoy, and the reasons therefore, shall, within thirty days of the
date of this order, be removed from their respective personnel files or other employment records.
Such reprimand will be removed and shall not be used or considered as a basis for any future
action against Franks or Hoy. This case is referred to MSHA for assessment of a civil penalty.

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

4

The back pay calculation is based upon the calculations in Respondent’s Exhibit 1,
agreed to by the parties.

35 FMSHRC Page 1707

Distribution:
Laura Karr, United Mine Workers, 18354 Quantico Gateway Drive, Triangle, VA 22172
R. Henry Moore, Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty Ave.
Pittsburgh, PA 15222
Ronald Hoy, 13 Bonasso Drive, Fairmont, West Virginia, 26554
Mark Franks, 253 Braddock Avenue, Uniontown, PA 15401
Melanie Garris, Office of Civil Penalty Compliance, MSHA, U.S. Department of Labor, 1100
Wilson Blvd., 25th Floor, Arlington, VA 22209-3939
Jason Grover, Office of the Solicitor, U.S. Department of Labor, 1100 Arlington Blvd., 22nd
Floor, Arlington, VA 22209

35 FMSHRC Page 1708

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, D.C. 20004-1710
Telephone: (202) 434-9900 Fax: (202) 434-9949

June 12, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
JIM WALTER RESOURCES, INC.
Respondent.

:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. SE 2010-351
A.C. No. 01-01401-205059

Mine: No. 7 Mine

DECISION
Appearances: Sophia Haynes, United States Department of Labor, Office of the Solicitor,
Atlanta, GA, for Petitioner.
John B. Holmes, III and Josh Bennett, Maynard, Cooper & Gale, P.C.,
Birmingham, AL, for Respondent.
Before:

Judge L. Zane Gill

This case deals with a single 104(a)1 citation issued by an inspector for the Mine Safety
and Health Administration (“MSHA”) on October 26, 2009, involving the mine property
identified above.2 Citation Number 7699497 alleges a violation of the mandatory standard found
at 30 C.F.R. § 75.380(d) (1). Counsel for the Secretary of Labor made a motion during the
hearing to amend the citation to allege a 104(d) violation, citing Federal Rule of Civil Procedure
15, and Commission Procedural Rule 2700.10.
The case was heard on April 10, 2012 in Birmingham, Alabama.
For the reasons discussed below, I deny the Secretary’s Motion to Amend and conclude
that Respondent was in violation of 30 C.F.R. § 75.380(d) (1), as originally alleged, and impose
the civil penalty originally proposed in the Secretary’s Petition.
Findings of Fact
Section 104(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., (1994) (the “Act” or “Mine Act”).
1

Various other citations related to and consolidated with this case were settled prior to
this trial.
2

35 FMSHRC Page 1709

Stipulations
The parties submitted the following stipulations at the hearing, (See Ex. S-7):
1.

Respondent, Jim Walter Resources, also known as JWR, is subject to the Mine
Safety Health Act of 1977, as amended.

2.

The Administrative Law Judge has jurisdiction to hear and decide this case
pursuant to Section 105 of the Act of 1977.

3.

On October 26, 2009 MSHA Inspector Gregory Willis was acting in his official
capacity when he issued to Respondent JWR Citation No. 7699497.

4.

Citation No. 7699497 contained in this docket was served on JWR or its agent as
required by the Act.

5.

Citation No. 7699497 contained in this docket is authentic and may be admitted
into evidence for purposes of establishing its issuance but not for the purpose of
establishing the accuracy of any statements asserted therein.

6.

The Administrative Law Judge has the authority to assess the appropriate civil
penalty under Section 101(i) of the Act if he finds that the citations at issue state a
violation of the Act and the regulations.

7.

The operator demonstrated good faith abatement of Citation No. 7699497.

8.

The area coursing from the North Mains to the 7-11 escape hoist shaft cited by
Inspector Gregory Willis in Citation No.7699497 was an alternate escapeway for
JWR No. 7 Mine on October 26, 2009.

9.

JWR No. 7 Mine was subject to spot inspections for methane under Section
103(I) of the Mine Act on October 26, 2009.

10.

JWR timely contested Citation No. 7699497 contained in this Docket and timely
served a corresponding answer to the Proposal of the Secretary of Labor and
MSHA for Assessment of Civil Penalty.

11.

Respondent JWR is a large coal operator reporting 3,187,772 tons of coal in 2008.

35 FMSHRC Page 1710

Fact Summary
The Jim Walter Resources (“JWR”) No. 7 Mine (“the mine”) produces bituminous coal.
(Tr. 16:6-8) On October 26, 2009, MSHA Coal Mine Inspector Greg Willis (“Willis” or
“Inspector Willis”) conducted a regular inspection of the mine. (Tr. 16:24-17:1) Before entering
the mine, Willis reviewed the record books at the surface. (Tr. 17:23-18:3) His inspection
focused on the secondary escapeway/return aircourse of the North Mains. (Tr. 18:4-7) He was
accompanied by a JWR supervisor, Ricky Parker, and a union representative, Mr. Ross. (Tr.
18:10-13) Willis went to the No. 3 section, right side, and entered the return air course. (Tr.
18:20-19:4) There he inspected the ventilation and general condition in the entry, including the
condition of the escapeway and lifeline. (Tr. 19:5-13) At the time of the inspection, the alternate
escapeway was approximately 4,700 feet long, 20 feet wide, and 7 to 10 feet high. (Tr. 102:21103:1, 25:3-8) The accumulation of water was located some 3,500 to 4,000 feet outby and
approximately 700 to 1,200 feet from the escape hoist at the end of the escapeway. (Tr. 105:613). Willis observed a 52 foot section of escapeway that was covered rib-to-rib by water ranging
from 1 to 11 inches in depth. (Tr. 25:9-26:6) The water was clear; the bottom was clearly visible.
(Tr. 20:1-3, 25:9-26:6) The bottom was otherwise smooth and good. (Tr. 66:9-67:2) There were
no slip or trip hazards under the water. (Tr. 66:9-67:2, 106:3-19) A pump line was present in the
area to be used when and if necessary. (Tr. 107:7-8)
Willis and Parker testified that they followed the lifeline through the water accumulation
and never encountered water at or over the tops of their 14 to 16 inch high boots. (Tr. 26:4-24,
69:25-70:15, 108:8-21) The men slowed down as they waded through the pool. Parker testified
that he had no problem walking through it. (Tr. 109:5-25) Willis stated that he slowed down, but
that he usually goes slowly when he conducts an inspection. (Tr. 27:11-21, 75:3-20)
Willis concluded that the water accumulation constituted a hazard. (Tr. 26:21-27:1) He
told his companions that he would cite JWR under 30 C.F.R. § 75.380(d) (1) (Tr. 20:4-25),
which covers maintenance of escapeways in bituminous and lignite mines. (Tr. 22:11-17)3 In
Willis’ opinion, the flooding created a slip or trip hazard that could cause sprains, strains, or
pulled muscles. (Tr. 46:21-25) The water in the escapeway was the only basis for the citation.
Willis alleged moderate negligence based on his understanding that return air passages must only
be inspected relatively infrequently–every seven days–which he considered a mitigating factor.
(Tr. 51:7-52:3) He assumed that the water had been in the condition he observed for up to three
days. (Tr. 52:17-25) He saw no indication that JWR had done anything to remove the water (Tr.
53:1-4) and concluded that the hazard was extensive and obvious. (Tr. 52:4-16) Willis was aware
that JWR had been cited for violating the same mandatory standard before and factored that into
his assessment of the violation. (Tr. 53:5-13) JWR abated the violative condition within a few
hours by installing a pump and removing the water from the escapeway. (Tr. 54:21-55:3, 73:7-9)

“Each escapeway shall be--(1) Maintained in a safe condition to always assure passage
of anyone, including disabled persons.” 30 C.F.R. § 75.380(d).
3

35 FMSHRC Page 1711

Willis rated this hazard as unlikely to cause injury. (Tr. 75:21-24, Ex. S-1) Willis’ supervisor
reviewed and approved the citation without change. (Tr. 59:19-61:1)
At hearing, JWR called Scott Hannig as a witness.4 Hannig testified that clear water at
such a depth would neither hinder the passage of four miners carrying another miner on a
stretcher nor come into contact with the stretcher. (Tr. 89:11-20) Hannig stated that there is no
official regulation as to how much water accumulation is necessary before it constitutes a hazard,
however, he is aware of a rule-of-thumb used in mine rescue exercises that anything less than
knee deep is considered passable. (Tr. 87:8-25) Hannig testified that accumulated water below
boot-top level over an obstruction-free bottom would not hinder the evacuation of a section crew
or a disabled miner. (Tr. 89:11-20)
Evidence Relating to the Secretary’s Motion to Amend
Willis had less than one year of experience when he wrote Citation Number 7699497.
(Tr. 45:8-11) He testified that he made a mistake when he wrote the citation because he should
have written it as a 104(d) violation. Willis evaluated what he observed without fully factoring in
the emergency circumstances under which miners would need to use the secondary escapeway.
(Tr. 45:2-16) Under the stress and panic of an emergency, anything that could hinder a safe and
effective evacuation takes on greater significance. (Tr. 32:17-33:14, 35:10-13) In retrospect,
Willis feels that he should have elevated the likelihood of injury, increased the negligence
assessment, alleged a Significant and Substantial (“S&S”) violation, and written the citation
under section 104(d). (Tr. 31:25-32:12)
The Citation
Citation Number 7699497 reads as follows:
The alternate escape way coursing from the North Mains to the 7-11 escape hoist
shaft is not being maintained to assure passage of anyone, including disabled
persons. Between spads 16706 and 16685 there is an accumulation of water that
measures 52 feet long by 20 feet wide (rib to rib) by 11 inches deep. This
accumulation of water impedes travel along the alternate escape way. (Ex. S-1)
The citation was written as a Section 104(a) (1) violation. The gravity was assessed as
“unlikely.” The potential injury severity was assessed as “lost workdays or restricted duty” and

When the citation was issued in 2009, Hannig was a JWR mine foreman and captain of
the mine’s rescue team. (Tr. 84:12-18) At that time Hannig also had 14 to 15 years of experience
in mine rescue that included directing evacuations, determining passability of escapeways, and
evacuating disabled persons in mock evacuations. (Tr. 85:7-87:7)
4

35 FMSHRC Page 1712

affecting only one person. The operator’s negligence level was assessed as “moderate” and the
proposed fine was $127.00.5 (Ex. S-1)
The Standard
30 C.F.R. § 75.380(d) (1) provides:
Each escapeway shall be maintained in a safe condition to always assure passage
of anyone including disabled persons.
Discussion and Analysis
Motion to Amend
The Secretary elicited testimony from Inspector Willis at the hearing that he had erred
when he issued the citation as he did. Willis testified that, in hindsight, he should have issued a
l04(d) citation, alleging moderate negligence, affecting ten people, resulting from an
unwarrantable failure to comply, and with the S&S designation. (Tr. 30:4-17, 45:2-16, 49:7-13)
Based on that testimony, the Secretary made a Motion to Amend the petition to align it with
Willis’ revised assessment, pursuant to Commission Procedural Rule 2700.10 and Federal Rule
of Civil Procedure 15. (Tr. 55:4-58:1) Counsel for JWR opposed the amendment. (Tr. 30:4-14,
31:14-32:15)
The grant or denial of a motion for leave to amend is within the sound discretion of the
court and will be reversed only for an abuse of discretion. Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U.S. 321, 330 (1971); Foman v. Davis, 371 U.S. 178, 182 (1962). Federal
Rule of Civil Procedure 15(a) mandates that leave to amend “shall be freely given when justice
so requires.” Wyo. Fuel Co., 15 FMSHRC 1107, 1108 (June 1993).
The court can refuse to grant leave to amend a pleading only where it will result in
undue delay, [results from] bad faith or a dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, [results in]
undue prejudice to the opposing party by virtue of allowing the amendment, or for
reasons of futility of amendment.
Dennis v. Dillard Dept. Stores, Inc., 207 F.3d 523;(8th Cir. 2000).

If the Motion to Amend were granted, the proposed penalty would increase to
$2,000.00, the minimum penalty associated with an unwarrantable failure. (Sec’y Post Hr’g Br.,
Sec. III(5)).
5

35 FMSHRC Page 1713

The Commission has held that Federal Rule of Civil Procedure 15 is an appropriate guide
for changes of pleadings. Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990).6 Rule 15(b)
(1) deals with motions to amend raised during a trial. This rule allows–and even encourages–the
court to grant a motion to amend so long as doing so facilitates a full adjudication of the merits
of the case and the opposing party fails to show prejudice. Rule 15(b) (2) applies when evidence
supporting a motion to amend is entered into the record either by the express or implied consent
of the non-moving party.
Rule 15(b) (1) contemplates a situation where the non-moving party is aware of the intent
of the moving party to amend and has an opportunity during the hearing to convince the court
not to grant the motion. Rule 15(b) (2) deals with a situation where evidence that could support
an amendment of the pleadings enters the record without objection by the non-moving party
either: (1) because the party becomes aware of the potential for amendment and explicitly
consents that the pleadings be conformed and amended to the actual evidence and argument
presented; or (2) the non-moving party does not explicitly consent to the amendment, but the
evidence and argument are presented in such a way that his/her consent to the amendment can be
implied.
JWR objected to the Secretary’s evidence that she used to justify her oral Motion to
Amend the Pleadings. As a result, Rule 15(b) (1) applies:
If, at trial, a party objects that evidence is not within the issues raised in the
pleadings, the court may permit the pleadings to be amended. The court should freely
permit an amendment when doing so will aid in presenting the merits and the
objecting party fails to satisfy the court that the evidence would prejudice that party’s
action or defense on the merits. The court may grant a continuance to enable the
objecting party to meet the evidence.
Fed. R. Civ. P. 15(b) (1).
However, Rule 15 should not be read in isolation, particularly when the issue is prejudice
to the opposing party and dilatory motive. Commission Procedural Rule 53 gives the parties a
mechanism to seek court approval of any amendments to their pleadings in a pre-hearing
conference and/or statement. 29 C.F.R. § 2700.53. In addition, Commission Procedural Rule
10(c) obligates a party who intends to make a motion to amend its pleadings–or any other motion
made in writing prior to the hearing–to make reasonable efforts to confer with the opposing party
first. 29 C.F.R. § 2700.10(c). The purpose of this rule is to avoid surprise motions at trial that
could unnecessarily complicate the hearing process or create the potential of prejudice against

Commission Procedural Rule 1(b) provides that on any procedural question not
otherwise regulated by Commission Procedural Rules, the Mine Act, or the Administrative
Procedure Act,“the Commission and its Judges shall be guided so far as practicable by the
Federal Rules of Civil Procedure.” 29 C.F.R. § 2700.1(b).
6

35 FMSHRC Page 1714

the non-moving party.7 These rules bring order, fairness, and efficiency to the motion process
whenever a party is able to predict the need to make such a motion. Any effort by a party to
avoid or subvert the obligation to confer prior to making such a motion is highly disfavored by
the court.
In this instance, the Court presumes the Secretary knew of the opportunity and obligation
to disclose any need to amend her petition prior to the hearing. The Court ordered both parties to
confer and submit a Joint Pre-Hearing Statement prior to the hearing. (Pre-Hr’g Order; Jt. PreHr’g Stmt.) However, prior to hearing neither the Court nor JWR was apprised in writing or
otherwise by the Secretary of her intent to seek amendment to the pleadings. (Tr. 56:3-5)
Furthermore, it is apparent from the Secretary’s argument and Inspector Willis’ testimony that
the Secretary planned in advance to present evidence at hearing to form the basis for an
amendment to her pleadings. Despite the rules requiring disclosure and conference under these
circumstances, the Secretary first announced her intent to seek amendment during the hearing.
(Tr. 55:4-13)
JWR’s Post-Hearing Brief raised points which, when considered in concert with both the
Commission Procedural Rules and Federal Rule of Civil Procedure 15, convince the Court that
JWR’s interests would be prejudiced if the Secretary were allowed to amend. Throughout the
nearly two-year period between the filing of this citation and the hearing date, the Secretary
allowed the original pleadings to stand. The first time the issue of possibly charging the alleged
violation under section 104(d), with all its more severe implications, was revealed to JWR or the
Court was during the hearing. As a result, JWR had no meaningful opportunity to prepare for the
new charge and its related consequences.
In Cumberland Coal Resources, LP, the Commission rejected a motion to amend
pleadings to conform to evidence in the record when the first time the Secretary specifically
referred to evidence to support her claim was during oral argument. See,Cumberland Coal Res.,
LP, 32 FMSHRC 442, 446-49 (May 2010) (noting that the Secretary had “ample opportunity” to
reveal her plan to amend her pleadings in such a manner that would not have created prejudice to
the operator). In this case, the Secretary offered up evidence for the first time at hearing to
support her oral Motion to Amend the Pleadings to conform to the very evidence just introduced.
Because the Secretary failed to give JWR or the Court any advance notice of her intent, the
motion appears to have been part of a conscious strategy to bypass the pre-hearing rule
mechanism. This strengthens JWR’s argument that it was prejudiced by not having a realistic
opportunity to respond to and prepare a defense against the significantly enhanced new charges.
It also unnecessarily requires the Court to enforce reasonable compliance with its rules,
requirements that should have been obvious.

Federal Rule of Civil Procedure 15(a) (2) also requires a party to confer with the
opposing side before moving the court for leave to amend its pleadings: “In all other cases, a
party may amend its pleading only with the opposing party’s written consent or the court’s leave.
The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a) (2).
7

35 FMSHRC Page 1715

The Court has considered the various factors related to this issue including: counsel’s
prior intent to amend, her opportunity and obligation to avail herself of the orderly and
prescribed means to amend provided in both the Federal Rules of Civil Procedure and the
Commission’s Procedural Rules, the lapse of two years during which a motion to amend could
have been brought, and the magnitude of the consequences to JWR arising from approval of the
proposed amendment. Based on those factors, it is the Court’s conclusion that the Motion to
Amend was made in bad faith, resulted from dilatory motive, and would result in undue
prejudice to the operator if granted. Accordingly, the Secretary’s Motion to Amend is Denied.
The Court could deny the Secretary’s Motion to Amend on the basis of Federal Rule of
Civil Procedure 15(b) (1) and prejudice alone, however, a separate basis for denial emerges
when we consider Rule 15(b) (2). As discussed above, Rule 15(b) (2) allows a change in
pleadings, even after a hearing, if the supporting facts have been tried with the express or
implied consent of the parties. Fed. R. Civ. P. 15(b) (2). The purpose of this rule is to allow the
parties to conform their pleadings to the issues that were actually tried. In keeping with this
purpose, implied consent can be found where “the opposing party recognized that a new matter
was at issue during the trial and that evidence was introduced to prove that [new] issue.”
Cumberland, 32 FMSHRC at 447-48 (emphasis added) (citing 3 James Wm. Moore et al.,
Moore’s Federal Practice ¶ 15.18[1], at 15-73 (3d ed. 2002)). In determining whether there was
implied consent, the Commission considers whether the trial record reflects that the opposing
party understood that the moving party was litigating the unpleaded issue. See Cumberland, 32
FMSHRC at 448. However, in Cumberland the Commission also held that consent to try a new
issue cannot be implied if it is based on the same evidence in the record that was relevant to an
issue that was pleaded prior to the hearing. See Cumberland, 32 FMSHRC at 447-49. In other
words, in circumstances of implied consent to amend pleadings under Rule 15(b) (2), there must
be evidence in the record in addition to and distinct from the evidence supporting the issues
originally plead.
As pointed out in JWR’s Post-Hearing Brief, the “new” evidence provided by Inspector
Willis affected no substantive change in the facts on which the original petition was based. This
was confirmed by the Secretary when she stated that her proposed amendment was not based on
any new facts or evidence. (Tr. 56-58) The only deviation from the facts supporting the
Secretary’s original theory of the case is Inspector Willis’ statement that he failed to evaluate the
observed conditions in the light of a possible emergency situation, and as a result failed to allege
the higher level of violation that the proposed amendment seeks. (Tr. 27-30) The Court agrees
with JWR’s argument that such ex post facto corrections are based solely on speculation and
hindsight. (JWR Br. 12) Inspector Willis’ mea culpa does not tend to make the presence of water
in the secondary escapeway any more probable to cause injury to miners, nor does it add
anything substantive to the facts supporting the alleged violation. As a result, there is no new or
distinct evidence from which to imply consent to amend, even if one ignores JWR’s objection to
Willis’ new assessment of the situation he saw in the mine.
Accordingly, the Secretary’s Motion to Amend is denied on the basis of Rule 15(b) (1)
and (b) (2) for the reasons just given.

35 FMSHRC Page 1716

Violation of the Standard
The Commission held in The American Coal Company that the “applicable statute and
legislative history emphasize the need for miners on a working section to exit a mine
expeditiously in emergency situations.” Am. Coal Co., 29 FMSHRC 941, 952 (Dec. 2007). The
Commission went further to state that “[r]eady access to escapeways for all miners is a key
component of an effective evacuation of a mine.” Id. Section 75.380(d) (1) of Title 30 of the
Code of Federal Regulations requires that each escapeway be maintained in a safe condition to
always assure passage of anyone. The Commission has determined that the language of this
section imposes on operators a duty to maintain escapeways that satisfy a general functional test
of “passability.” Utah Power & Light Co., 11 FMSHRC 1926, 1930-31 (Oct. 1989). In
determining whether the standard has been violated, each case must be examined on its own
facts. Harlan Cumberland Coal Co., 19 FMSHRC 911, 916 (May 1997). In evaluating an
escapeway violation, the Commission has held that evacuation standards are different from other
mine safety standards. Cumberland Coal Res. LP, 33 FMSHRC 2357, 2367 (Oct. 2011). They
are intended to apply meaningfully only when an emergency actually occurs and are violated if
escape is impeded in any way. See id. Therefore, evacuation standards are evaluated under an
emergency scenario. See id. at 2366.
There is no question that the amount and extent of water described in this record would,
even under the calmest and most benign of circumstances, impede, to some extent, the
passability of the secondary escapeway. There is also no question that the existence of
emergency conditions increases the likelihood that an obstacle, which under non-emergency
circumstances might be no more than an annoyance, would become a real and dangerous
impediment to free passage. In short, any condition that could degrade the passability of an
escapeway in an emergency and can be mediated beforehand is a violation of the standard. This
point was implicitly recognized by JWR’s witness, Hannig, when he testified that he would have
pumped this area if a pump were handy. (Tr. 99:16-100:1) All other aspects and permutations of
the evidence in the record are relevant to the calculus of gravity and negligence. Accordingly,
the conditions described by Willis in Citation Number 7699497 violated 30 C.F.R. § 75.380(d)
(1).
Negligence
Section 110(i) of the Mine Act requires that in assessing penalties the Commission must
consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(i). Each
mandatory standard thus carries with it an accompanying duty of care to avoid violations of the
standard. An operator’s failure to meet the appropriate duty can lead to a finding of negligence if
a violation of the standard occurs.
Negligence “is conduct, either by commission or omission, which falls below a standard
of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §
100.3(d). “A mine operator is required . . . to take steps necessary to correct or prevent hazardous
conditions or practices.” Id. The water accumulation impeded free passability in the secondary
escapeway and was thus a hazard that JWR had an obligation to correct or prevent.

35 FMSHRC Page 1717

When determining the degree of negligence, “MSHA considers mitigating circumstances
which may include, but are not limited to, actions taken by the operator to prevent or correct
hazardous conditions or practices.” Id. Reckless disregard may be found when “[t]he operator
displayed conduct which exhibits the absence of the slightest degree of care.” 30 C.F.R. §
100.3(d) tbl.X. High negligence is when “[t]he operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.” Id. Moderate
negligence is when “[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” Id. Low negligence is when “[t]he operator
knew or should have known of the violative condition or practice, but there are considerable
mitigating circumstances.” Id. A finding of no negligence is appropriate when “[t]he operator
exercised diligence and could not have known of the violative condition or practice.” Id.
This citation alleges moderate negligence. According to the guidance in Section 110(i),
“low” or “moderate” negligence may be found when an operator knew or should have reason to
know about a violative condition. Id. The evidence on this point is quite limited. The secondary
escapeway had been examined on October 22nd, four days before the citation was issued. (Tr.
51:7-22, 72:8-20) JWR’s examiner did not make any notation about water or any other potential
hazard in the record for the examination on October 22nd. (Tr. 72:11-13) And Inspector Willis
found that examination to be compliant. (Tr. 72:8-20) Inspector Willis guessed that the water had
been as he found it for three days, and testified that “the water could have been there at the time
[of the examination] but possibly not at [the] depth [Inspector Willis observed].” (Tr. 52:7-25,
72:8-10; Sec’y Ex. 1) But given the lack of any hazard notation from the October 22
examination, it is equally logical, if not more so, to infer that the accumulation was not present
in any form at the time of the examination and gradually developed over the next three days.
Willis even admitted in his inspection notes (Sec’y Ex. 1) that he could not prove that JWR’s
management should have known about the cited accumulation. Furthermore, Willis himself
treated the possibility of non-discovery as evidence of mitigation which affected his assessment
of negligence at the “moderate” level. (Tr. 51:7-53:4) JWR did what was required of it in
examining its secondary escapeway on a weekly basis. There is nothing to support a finding that
JWR failed to exercise reasonable diligence in conducting its weekly examination. In sum, the
evidence does not support Willis’ “moderate” negligence assessment. In keeping with Section
110(i), the Court’s finding is “no negligence.”
Gravity (“Seriousness”)8
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is
viewed in terms of the potential or actual seriousness of the violation. See Sellersburg Stone Co.,
5 FMSHRC 287, 294-95 (Mar. 1983) aff’d, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987). The gravity analysis focuses on factors such
as the likelihood of an injury, the severity of an injury, and the number of miners potentially
injured. Gravity is “often viewed in terms of the seriousness of the violation.” Consolidation

The citation in this case, as originally written, does not allege that the violation was
S&S or that it constituted an unwarrantable failure to comply with the standard in question.
8

35 FMSHRC Page 1718

Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996). The seriousness of a violation can be examined
by looking at the importance of the standard which was violated and the operator’s conduct with
respect to that standard, in the context of the Mine Act’s purpose of limiting violations and
protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134,
140 (Jan. 1990) (ALJ). The Commission has recognized that the likelihood of injury is to be
made assuming continued normal mining operations without abatement of the violation. See
Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986).
Contrary to the argument in JWR’s Post-Hearing Brief, the water accumulation in the
secondary escapeway is a citable hazard under 30 C.F.R. § 75.380(d) (1). The court is persuaded
by the Inspector’s rationale that in an emergency situation–regardless of whether JWR’s
management knew of it–the water accumulation would pose a real impediment to escape. Willis
considered many factors in assessing the gravity alleged in the citation: the extent of the water
accumulation; the condition of the floor; the clearness of the water; the dimensions of the
escapeway; the gassy condition of the mine; and the existence and condition of the life line.
Although he paid greater attention to the complications an emergency situation would bring in
the context of his attempt to ramp the violation up to a higher level9, he did have in mind that this
hazard existed in an emergency escapeway when he made his original assessment. No other
evidence was allowed into the record that bears on the issue of gravity as viewed by Willis at the
time of the citation. He was aware that in the event of an emergency scenario with thick smoke
or airborne dust, the air would be going out of the mine through the escapeway and would
probably be smoky or dusty with poor visibility. (Tr. 27:22-29:5, 32:17-33:7) This mine was
known to Willis to be “gassy” and has been elevated to spot checks for methane, thus increasing
the likelihood of an explosion or fire. (Tr. 42:14-25; Ex. S-7 No. 9) Willis was aware that there
would be a sense of urgency, if not panic, that could increase the likelihood that a condition
deemed unremarkable under calmer circumstances would take on more dire dimensions in an
emergency scenario. (Tr. 35:10-13) Willis duly considered that any normally-avoidable
impediment could significantly impede evacuation in an emergency. From Willis’ experience
with mock mine emergency training, he was aware that the potential hazard was compounded by
the real possibility that a stretcher evacuation might be necessary. (Tr. 33:8-14) In light of all
this, Willis determined that the water accumulation could reasonably cause slip and trip injuries
such as strains, sprains, and pulled muscles. (Tr. 46:21-25)
The citation categorizes the gravity of an event arising from this violation as potentially
causing lost workdays or restricted duty for a single miner, but that such an event would be
unlikely to occur. (Ex. S-1) The evidence discussed above supports that assessment, and JWR
did not argue against it, other than to claim that there should have been no citation written at all.
It is of some note that Willis did not treat the violation as significant enough to require
evacuation of the mine or rerouting of the escapeway. (Tr. 74:8-75:2) Instead, he abated the
citation when JWR pumped the water out. (Tr. 72:21-73:4) Willis’ supervisor reviewed Willis’
citation and notes and allowed them to stand without alteration. (Tr. 60:14-21) The Court sees no
The Court sustained objections to the admissibility of Willis’ testimony about his
reasons for wanting to charge the violation at the higher level. (Tr. 31:7-8, 46:7-8)
9

35 FMSHRC Page 1719

reason to view Inspector Willis’ initial gravity assessment in any light different that he did at the
time he wrote the citation. Accordingly, the violation’s gravity assessment is sustained.
Penalty
The principles governing the authority of Commission administrative law judges to assess
civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the
Mine Act delegates to the Commission and its judges the authority to assess all civil penalties
provided in [the Act]. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). When an operator notifies the Secretary that it intends to
challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §
2700.28. The Act requires that in assessing civil monetary penalties, the Commission and its
Administrative Law Judges consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the operator
was negligent, [4] the effect on the operator’s ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the person charged
in attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
The allegations in the Secretary’s petition regarding those six penalty factors were
not factually contested by JWR at the hearing. (Ex. S-5) The Court accepts the Secretary’s
allegations regarding the operator’s size and recognizes the stipulation that the violation
was abated in good faith. The Court has considered the history of past violations at this
mine as summarized in Exhibit S-5, including the citation for the standard discussed above.
After considering all of the penalty criteria, I assess a penalty of $100.00.
Order
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess
a total penalty of $100.00. JWR is hereby ORDERED to pay the Secretary of Labor the
sum of $100.00 within 30 days of the date of this decision.

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

35 FMSHRC Page 1720

Distribution: (Certificate Return Receipt)
Sophia E. Haynes, Esq., United States Department of Labor, Office of the Solicitor, 61 Forsyth
Street, SW, Suite 7T10, Atlanta, Georgia 30303
John Holmes, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North, 2400
Regions/Harbert Plaza, Birmingham, Alabama 35203
Guy W. Hensley, Walter Energy, Inc., 3000 Riverchase Galleria, Suite 1700, Birmingham,
Alabama 35244

35 FMSHRC Page 1721

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
FACSIMILE: (412) 928-8689

June 12, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
CONSOLIDATION COAL COMPANY,
Respondent

:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2011-1854
A.C. No. 46-01436-254778
Docket No. WEVA 2011-1855
A.C. No. 46-01436-254778

Mine: Shoemaker Mine

AMENDED DECISION
Appearances:

Rebecca J. Oblak, Esq., Bowles Rice, Morgantown, WV 26505
Andrea J. Appel, Esq. and Elaine M. Abdoveis, Esq., U.S. Department of
Labor, Office of the Regional Solicitor, Philadelphia, PA 19106

Before:

Judge Lewis

STATEMENT OF THE CASE
This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et
seq. (the “Act” or “Mine Act”). The Secretary of Labor has filed a Petition for Assessment of
Civil Penalty pursuant to Sections 104(a) and 105(d) of the Act, 30 U.S.C. §815(d), in
connection with Order Nos. 8030970 and 8033057 and Citation No. 8033058. A hearing was
held in Pittsburgh, Pennsylvania on October 18, 2012. The parties subsequently submitted posthearing briefs.
ISSUES
The general issues to be determined are whether Respondent violated 30 C.F.R. §75.400
as alleged in Order Nos. 8030970 and 8033057 and whether Respondent violation 30 C.F.R
§75.360(b)(3) as alleged in Citation No. 8033058. Specific issues include whether these
violations were substantial and significant in nature (“S&S”) and/or constituted unwarrantable
failure.

35 FMSHRC Page 1722

STIPULATIONS
The parties have entered into several stipulations, introduced as Parties Joint Exhibit 1.
Those stipulations include the following:
1. Respondent, Consol Energy, Inc. – Shoemaker Mine is an “operator” as defined in
Section 3(d) of the Federal Mine Safety and Health Act of 1977, as amended
(hereinafter referred to as the “Mine Act”), 30 U.S.C. Section 802(d), at the
Shoemaker Mine where the alleged Orders/Citation at issue in this proceeding were
issued; and,
2. Shoemaker Mine is owned and operate by Respondent, Consol Energy, Inc.; and,
3. The operations of Respondent at the Shoemaker Mine are subject to the jurisdiction
of the Mine Act; and
4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Commission (hereinafter “FMSHRC”) and its designated Administrative Law Judge
pursuant to Sections 104, 105, 113 of the Mine Act; and.
5. The alleged Orders and Citation and terminations involved herein were properly
served by a duly authorized representative of the Secretary of Labor upon an agent of
the Respondent at the dates, times and places stated therein, and may be admitted into
evidence for the purpose of establishing their issuance; and
6. True copies of the above-captioned alleged Order Numbers and alleged Citation
Number were served on Respondent or its agents as required by the Mine Act; and
7. Each party shall stipulate to the authenticity and admissibility of the other party’s
exhibits, but not to the relevancy or the truth of the matters asserted therein; and
8. Any formal MSHA computer printout reflecting Respondent’s history of violations is
an authentic copy and may be admitted as a business record of the Mine Safety and
Health Administration; and
9. The imposition of the proposed penalties will have no effect on Respondent’s ability
to remain in business; and
10. Respondent demonstrated good faith in the abatement of the alleged Orders and
Citations at issue in this proceeding.
Joint Exhibit 1 (see also Transcript Page 6).1

1

Hereinafter, the transcript of the proceeding shall be referred to as “Tr.”

35 FMSHRC Page 1723

LAWS AND REGULATIONS
The citation involved in this matter, Citation No. 7033058, was issued under Section
104(a) of the Federal Mine Safety & Health Act of 1977. That provision provides the following:
If, upon inspection or investigation, the Secretary or his authorized representative
believes that an operator of a coal or other mine subject to this Act has violated
this Act, or any mandatory health or safety standard, rule, order, or regulation
promulgated pursuant to this Act, he shall, with reasonable promptness, issue a
citation to the operator. Each citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to the provision of
the Act, standard, rule, regulation, or order alleged to have been violated. In
addition, the citation shall fix a reasonable time for the abatement of the violation.
The requirement for the issuance of a citation with reasonable promptness shall
not be a jurisdictional prerequisite to the enforcement of any provision of this Act.
30 U.S.C. § 814(a)
Citation No. 8033058 deals with an alleged violation of 30 C.F.R. §75.360(b)(3) (titled
“Preshift Examination”). That section provides the following:
(b) The person conducting the preshift examination shall examine for hazardous
conditions, test for methane and oxygen deficiency, and determine if the air is
moving in its proper direction at the following locations:
(3) Working sections and areas where mechanized mining equipment is being
installed or removed, if anyone is scheduled to work on the section or in the area
during the oncoming shift. The scope of the examination shall include the
working places, approaches to worked-out areas and ventilation controls on these
sections and in these areas, and the examination shall include tests of the roof,
face and rib conditions on these sections and in these areas.
Both Orders involved in this matter, Order Nos. 8030970 and 8033057, were issued
under Section 104(d) of the Federal Mine Safety & Health Act of 1977. That provision provides
the following:
(1) If, upon any inspection of a coal or other mine, an authorized representative of
the Secretary finds that there has been a violation of any mandatory health or
safety standard, and if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of such nature as could
significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard, and if he finds such violation to be caused by an
unwarrantable failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation given to the operator
under this chapter. If, during the same inspection or any subsequent inspection of
such mine within 90 days after the issuance of such citation, an authorized

35 FMSHRC Page 1724

representative of the Secretary finds another violation of any mandatory health or
safety standard and finds such violation to be also caused by an unwarrantable
failure of such operator to so comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area affected by such violation, except
those persons referred to in subsection (c) of this section to be withdrawn from,
and to be prohibited from entering, such area until an authorized representative of
the Secretary determines that such violation has been abated.
(2) If a withdrawal order with respect to any area in a coal or other mine has been
issued pursuant to paragraph (1), a withdrawal order shall promptly be issued by
an authorized representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar to those that resulted in
the issuance of the withdrawal order under paragraph (1) until such time as an
inspection of such mine discloses no similar violations. Following an inspection
of such mine which discloses no similar violations, the provisions of paragraph
(1) shall again be applicable to that mine.
30 U.S.C. § 814(d)
Order Nos. 8030970 and 8033057 deal with alleged violations of 30 CFR §75.400 (titled
“Accumulation of combustible material”). That section provides the following:
Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on diesel- powered and electric equipment
therein.
30 CFR §75.400.
The Secretary maintains that the citation and both orders were based upon violations that
were S&S in nature. Well-settled Commission precedent sets forth the standard used to
determine if a violation is S&S. A violation is S&S “if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Div., National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). The Commission later clarified this standard, explaining:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).

35 FMSHRC Page 1725

The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the “focus of the seriousness of the violation is not necessarily
on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather
on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996) emphasis added.
The term “gravity” in the Mine Act is contained in Section 110(i), which states that in
determining the appropriateness of a penalty, the Secretary must consider, among other things,
“the gravity of the violation.” 30 U.S.C. §820. The Secretary promulgated three factors under 30
C.F.R. §100.3(e) to determine the gravity of a citation for purposes of determining the penalty.
Those factors are:
[T]he likelihood of the occurrence of the event against which a standard is
directed; the severity of the illness or injury if the event has occurred or was to
occur; and the number of persons potentially affected if the event has occurred or
were to occur.
30 C.F.R. §100.3(e).
Pertinent regulations and well-settled Commission precedent deal with the standard for
negligence under the Act. Negligence “is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to protect miners against the risks
of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required to be on the alert for conditions
and practices in the mine that affect the safety or health of miners and to take steps necessary to
correct or prevent hazardous conditions or practices.” Id. Low negligence exists when “[t]he
operator knew or should have known of the violative condition or practice, but there are
considerable mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew
or should have known of the violative condition or practice, but there are mitigating
circumstances.” Id. High negligence exists when “[t]he operator knew or should have known of
the violation condition or practice, and there are no mitigating circumstances.” Id. See also
Brody Mining, LLC, 2011 WL 2745785 (2011)(ALJ). Finally, the operator is guilty of reckless
disregard where it “displayed conduct which exhibits the absence of the slightest degree of care.”
30 C.F.R. § 100.3(d). MSHA considers mitigating circumstances which may include, but are not
limited to, actions taken by the operator to prevent or correct hazardous conditions or practices.
Id.
According to the Commission, an unwarrantable failure is defined as “aggravated
conduct constituting more than ordinary negligence.” Emery Mining Corp., 9 FMSHRC 1997,
2002 (Dec. 1987). The Commission explained the judge’s role in determining whether conduct
is aggravated as follows:
Aggravating factors include the length of time that the violation has existed, the
extent of the violative condition, whether the operator has been placed on notice
that greater efforts were necessary for compliance, the operator’s efforts in
abating the violative condition, whether the violation was obvious or posed a high
degree of danger, the operator’s knowledge of the existence of the violation…

35 FMSHRC Page 1726

While an administrative law judge may determine, in his discretion, that some
factors are not relevant , or may determine that some factors are much less
important than other factors under the circumstance, all of the factors must be
taken into consideration and at least noted by the judge.
IO Coal Co., Inc., 31 FMSHRC 1346, 1350-1351 (Dec. 2009).
VIOLATIONS
1. Order No. 8030970
On October 14, 2010 at 10:15 a.m. Inspector David M. Edwards (“Edwards”) issued to
Respondent Order No. 8030970. Edwards found:
Accumulations of combustible material consisting of loose coal, loose fine and
ground up coal, and coal dust including float coal dust deposited on rock dusted
surface was [sic] being permitted to accumulate on the No. 8 Beltline from the
belt regulator located at #8-50 crosscut to the belt drive and take-up area located
at #8-1 crosscut. The accumulations coming in contact with the belt rollers
measured anywhere from 2 to 3 feet in width and 24 inches in dept packed around
he roller shaft and bearings were warm to touch. Float coal dust, black in color,
was present on the bottom directly under the belt rollers approximately 6 feet in
width and on the belt structure and water lines at the cited location. The conveyor
belt of the No. 8 Beltline was not properly aligned from crosscut #8-46 to #8-47.
The bottom belt was rubbing against the belt structure creating frictional heat
which poses a fire hazard. Damaged rollers were present at crosscut #8-23
(Bottom Roller) and #8-3 crosscut (2 Bottom Rollers). Management was engaged
in aggravated conduct constituting more than ordinary negligence in that the area
was pre-shift and the conditions were not reported or worked on. This violation is
an unwarrantable failure to comply with a mandatory standard. This mine has
received 137 (75.400) citations over the past 2 years.
Government Exhibit 6.2 Edwards noted that the risk of injury or illness for this violation was
“Reasonably Likely,” “Lost Workdays or Restricted Duty,” “S&S” and would affect 1 person.
He further found that Respondent exhibited “High” negligence with respect to this violation.
Respondent took action to terminate the condition on October 14, 2010 at 10:30 p.m.
Under “Subsequent Action” Edwards noted:
The operator had miners shoveling on the beltline from approximately 1:00 p.m.
to 10:00 p.m. to complete the cleaning and the belt line was rock dusted from the
belt drive to the belt regulator at #8-50 crosscut.

2

Government exhibits will hereinafter be referred to as “GX” followed by the number.

35 FMSHRC Page 1727

Id. On October 18, 2010, Edwards modified the body of the Order with respect to Condition or
Practice, adding:
The heavy accumulations were present from #8-36 crosscut extending outby to
#8-15 crosscut, a total distance of approximately 2,100 linear feat.
Id.
2. Order No. 8033057
On October 26, 2010 at 10:10 a.m. Inspector James Gropp (“Gropp”) issued Respondent
Order No. 8033057. Gropp found:
Loose dry coal, coal dust, including float coal dust, black in color was permitted
to accumulate on the active 8 South continuous miner sections on the left side,
MMU 032, and the right side, MMU 016, at the following locations:
1) 15A #0 entry from the face at approximately 2+10 for a length of 80 feet outby.
The accumulations were 4 to 15 ½ feet wide and were 4 to 15 inches in depth.
2) Intersection of 15A #0 and 8 South #1 at spad 6+94 where the miner had holed
8 South #2 to #1 crosscut allowing accumulations that were 15 ½ feet wide, 4 to 9
inches in depth and 10 feet in length outby the side of the intersection.
3) Intersection of 8 South #2 entry at 6+94 where the miner had holed 8 South #3
to #2 crosscut allowing accumulations 15 ½ feet wide, 4 to 19 inches in depth and
12 feet in length on the outby side of the intersection.
4) Crosscut of 8 South #4 to #3 between 6+94 to 5+75 a distance of
approximately 140 feet in length, 15 ½ feet wide and 8 to 12 inches in depth.
5) 8 South #4 entry starting at approximate spad 5+20 for a length of 60 feet in
length that was 14 feet in width and 12 inches in depth.
6) 8 South #6 entry starting at approximate spad location 4+15 for a distance of
30 feet inby where the miner head had scaled the right side rib maneuvering
around the corner from #5 to #6 creating accumulations that were 12 to 24 inches
in depth and ranged from 2 ½ feet to 6 feet in width.
7) 8 South #8 entry at 6+28 where the miner had holed the crosscut #5 to #6 that
were 12 to 24 inches in depth and ranged from 6 to 15 ½ feet in width.
The standard 75.400 was cited 139 times at this mine in the last two years. The
operator engaged in aggravated conduct constituting more than ordinary
negligence in that the mine clean up program was not being followed and

35 FMSHRC Page 1728

permitted accumulations to exist in the active workings of 8 South. This violation
is an unwarrantable failure to comply with a mandatory standard
GX-9. Gropp noted that the risk of injury or illness for this violation was “Reasonably Likely,”
“Lost Workdays or Restricted Duty,” “S&S” and would affect 10 persons. He further marked
that Respondent exhibited “High” negligence with respect to this violation. Respondent took
action to terminate the condition on October 26, 2010 at 14:10, Calloway noted:
The accumulations were cleaned and removed from the mine.
Id. On October 27, 2010 at 12:51 p.m., Gropp modified the body of the Order with respect to
Condition or Practice, replacing any mention of “032” with “083,” adding:
The wrong MMU number was entered for the 8 South Left side section.
Id.
3. Citation No. 8033058
On October 27, 2010 at 1:30 p.m. Gropp issued Respondent Citation No. 8033058.
Gropp found:
An inadequate pre-shift examination was conducted on the midnight shift of 1026-2010 preceding the oncoming day shift on the 8 South continuous miner
sections, left side MMU 083 and right side MMU 016. The hazardous conditions
of combustible coal accumulations that existed, including their locations, were not
reported and entered into the pre-shift report and no actions were taken to
immediately correct the obvious conditions that were noted in the Order No.
8033057.
GX-12. Gropp noted that the risk of injury or illness for this violation was “Reasonably Likely,”
“Lost Workdays or Restricted Duty,” “S&S” and would affect 10 persons. He further found that
Respondent exhibited “High” negligence with respect to this violation. Respondent took action
to terminate the condition on October 27, 2010 at 1:31, Calloway noted:
The hazardous conditions cited were corrected on 10-26-2010 at 1410 hours,
therefore the citation is terminated.
Id.

35 FMSHRC Page 1729

SUMMARY OF THE TESTIMONY
1. Testimony of Inspector David M. Edwards
A. Edwards’ Qualifications and Work History
Edwards worked at MSHA’s St. Clairsville, Ohio Office. (Tr. 15). He has a degree in
electromechanical engineering at Belmont Technical College. (Tr. 97). Before joining MSHA,
he worked for 18 years in the mining industry, all underground. (Tr. 19-20). From 2000 to 2006
he worked as a foreman at Shoemaker Mine, the mine at issue. (Tr. 21). Edwards’ training as a
foreman included fire boss training and his duties included pre-shift examinations. (Tr. 21). In
April 2006, Edwards was laid off. (Tr. 22). Edwards joined MSHA on January 7, 2007. (Tr. 15,
22). He had 21 weeks of instruction at the Academy in Beckley, West Virginia. (Tr. 16). He
also received on-the-job field training including specialized instruction on fire hazards and
combustible accumulations. (Tr. 16). Edwards’ other specialized certifications included
foreman’s papers in Ohio and West Virginia and an examiner certification for Consol. (Tr. 19,
21). He was authorized to train underground examiners and certify mine foremen. (Tr. 19).
B. Edwards’ Testimony about Activities Conducted Before the Inspection
Edwards conducted an EO1 inspection on Shoemaker on October 14, 2010. 3 (Tr. 22-23).
Edwards arrived at the mine at 7:15 a.m. (Tr. 24-25). Shoemaker has three portals: Golden
Ridge, Whittaker, and River. (Tr. 25). Edwards met Terry Wilson, a foreman trainee, at
Whittaker. (Tr. 25). Edwards had never met Wilson before and Wilson said it was his first day.
Tr. (98-99). Edwards also notified the UMWA representative, Steve Lavenski, who was
permitted to travel with the inspector. (Tr. 25).
Edwards testified that in order to prepare for an inspection, an inspector must review
uniform mine files, the ventilation plan, the roof control plan, the emergency response plan, the
mine-specific safeguards related to injuries in the past caused by transportation, the violation
history, and the mines (d) series status. (Tr. 24). He also reviewed the pre-shift examination
records for the areas he was going to travel. (Tr. 26, 99). He reviewed notes from the previous
(midnight) pre-shift and perhaps even farther back. (Tr. 26). He will not conduct an inspection
without reviewing the pre-shift examinations. (Tr. 101). Finally, Edwards filled out the
inspection cover sheet (GX-7). (Tr. 32). The cover sheet shows the date of the inspection, the
event number for the EO1, the arrival time and the list of records checked. 4 (Tr. 32).

3

An EO1 inspection is a regular, quarterly inspection of the entire mine. (Tr. 23).

4

There was an error on this form; Edwards flipped the miner’s representative and the
company representative. (Tr. 32). He inserted the wrong names on the lines. (Tr. 33, 98).

35 FMSHRC Page 1730

C. Edwards’ Testimony Regarding the Inspection
i. Conditions Observed
Edwards, Wilson, and Lavenski rode inby to do the pre-operational checks to make sure
that it was safe to travel. (Tr. 26). En route, Edwards observed the roof condition, rib
conditions, tie line, and ventilation. (Tr. 26). The rail jeep could not be parked at 9 Belt so
Lavenski took it to 7 North. (Tr. 26-27, 98). Edwards inspected the No. 9 Belt and issued no
citations. (Tr. 27- 28).
After inspecting 9 Belt, Edwards and Wilson began to move down 8 Belt. (Tr. 28). The
8 Belt was approximately 5-6,000 feet long. (Tr. 28-29). Edwards reviewed roof conditions, rib
conditions, ventilation, accumulations, belt structure, belt rollers, and CO monitors. (Tr. 28). In
doing so, he noticed fire hazards. (Tr. 28). After determining a “fire triangle” existed, Edwards
issued a withdrawal order (Order No. 8030970, GX-6). (Tr. 31). To have a fire triangle, there
must be an accumulation of combustible material, an ignition source, and 20.8% oxygen. (Tr.
96-97). He ordered the belt shut down to be cleaned and realigned. (Tr. 34).
At the hearing, Edwards described each element of the fire triangle present here. First, at
intermittent locations from 8-50 to 8-1 along 2,100 feet of the 5,000 foot belt Edwards noticed
float coal dust and other accumulations.5 (Tr. 29, 34, 36, 93, 138). Edwards noted the largest
accumulation started at 8-36 crosscut and extended outby, towards the drive, to 8-15 crosscut. 6
(Tr. 37). On cross examination, Edwards conceded that he was not sure of how many
accumulations were present. (Tr. 138-140). He believed there were five or six, though he did
not write the number down. (Tr. 138-140). Edwards testified to several kinds of accumulations
including loose coal, loose fine and ground-up coal, coal dust, and float coal dust. (Tr. 45). He
described black float coal dust as an accumulation of combustible material with the consistency
of talcum powder. (Tr. 46). Edwards saw the black float coal dust on the belt line, the belt
structure, the water line, and under the belt rollers. (Tr. 41-42). He found float coal dust was on
the mine surfaces as well, including rock dusted areas. (Tr. 41). Edwards observed that the float
coal dust covered most of the width of the entry, including the floor, ribs, and roof. (Tr. 42,
139). He stated that float coal dust as thin as a piece of paper can be an explosion hazard. (Tr.
41). Float coal dust must be mixed with rock dust so that the combination is 80% incombustible
material. (Tr. 47). While mixed rock dust and coal dust will vary in color, depending on the
components, Edwards noted that black color indicates that it is mostly coal dust. (Tr. 48, 49).
However, gray coal dust is still an accumulation. (Tr. 49-50). The only way to know the content
of dust was to take a sample. (Tr. 47). Edwards admitted that he did not take any samples. (Tr.
137). Neither Edwards nor Wilson had a sieve. (Tr. 49).
5

94.

There was not a solid line of accumulations; some spots were worse than others. Tr. 93,

6

He took some measurements with the 25-foot tape measure. (Tr. 137-138). He
measured the width of the accumulations by using the width of the 72-inch belt and the depth of
the accumulations with the tape measure. (Tr. 137).

35 FMSHRC Page 1731

With respect to air quality, Edwards testified that this area had 20.8% oxygen and 0%
methane (despite the fact this was a gassy mine on a five-day spot). 7 (Tr. 30).
Finally, Edwards testified to three ignition sources on the belt line: belt rubbing the
structure, rollers running in accumulations, and damaged rollers. (Tr. 29-30, 34-35, 37, 39, 4243, 130). The belt was rubbing structure at 8-46 to 8-47 crosscut. (Tr. 29-30, 34, 42, 130).
Upon observing this condition, Edwards shut down the belt. (Tr. 30, 52, 130). The belt rubbing
the structure was a violation of 75.1731(b) and, as a result, Edwards issued a citation. (Tr. 30).
Edwards issued this as a 104(a) citation, marked as S&S. 8 (Tr. 31). Edwards explained that this
condition created frictional heat against the metal parts of the belt structure. (Tr. 42-43). The
belt ran so fast that it could cut through metal. (Tr. 43). The belt was warm to the touch,
smoking, and smelled of burning rubber. (Tr. 43). The belt structure was hot, not just warm.
(Tr. 43). Edwards asserted Wilson also felt the belt was hot. (Tr. 43). To correct this condition,
the operator had to train the belt, or move it so it was no longer rubbing. (Tr. 131, 132).
In addition, Edwards observed belt rollers spinning in coal accumulations between 8-36
and 8-15. (Tr. 29, 35, 37, 39). These were the accumulations that concerned him most. (Tr.
139). Edwards testified the accumulations were about as wide as the belt. (Tr. 38). He
measured them at about two or three feet deep. (Tr. 38). However, Edward’s notes indicated
that the belt was three feet in width and 24 inches in depth. (Tr. 38). These accumulations
included wet material. (Tr. 35, 39). However, Edwards noted wet dust can dry out and become
combustible. (Tr. 35). Under normal mining operations, if this was allowed to continue,
Edwards believed there was a potential for a fire. (Tr. 39). The area was rock-dusted. (Tr. 3536). However, float coal dust on top of rock dusted was still an accumulation. (Tr. 35-36).
Finally, Edwards observed damaged rollers, a violation of §75.1731(a). (Tr. 30, 35, 43).
There were two damaged bottom rollers at the 8-3 crosscut and one at the 8-23 crosscut. (Tr. 4344). When the rollers break in two, inspectors call them “pizza cutters,” and all of the broken
rollers Edwards found here were pizza cutters. (Tr. 45). He explained that the metal from the
roller cuts into the metal shafts and creates heat. (Tr. 30, 45). He considered this a fire hazard in
light of the accumulations and the 20.8% oxygen atmosphere. (Tr. 45). He testified that to
correct these problems the belt must be shut down and the rollers changed out. (Tr. 131).

7

Edwards knew this was a gassy mine because every quarter MSHA takes a return bottle
sample and sends them to the labs for analysis. (Tr. 60). This showed how much methane was
liberated from the coal mine at various strategic locations in the return air for 24 hours. (Tr. 60).
These numbers together dictate how often a mine needs to be on a spot inspection for methane.
(Tr. 60). Shoemaker was on a five-day spot. (Tr. 60-61). This means every fifth day the mine
needs an EO2 inspection for liberation of methane. (Tr. 60-61).
8

Edwards called his supervisor, Joe Facello (“Facello”), at the mine before he returned to
the field office. (Tr. 163). Edwards was not directed to issue the Order. (Tr. 163). He only
called to ensure that writing 104(a) citations (for belt rubbing structure and other issues) in
addition to the order was the appropriate process. (Tr. 163, 164).

35 FMSHRC Page 1732

Edwards contended this was “the worst belt line” he had ever seen. (Tr. 50, 126-127,
165). Edwards maintained this opinion on cross examination, though he admitted he had only
taken five measurements. (Tr. 139). He claims that Wilson also said this was the worst belt he
had seen at Consol. (Tr. 40).
ii. The Meaning of “Warm to the Touch” According to Edwards
According to Edwards, warm to the touch was not a term with a specific definition or
temperature; it just means warmer than under normal conditions. (Tr. 117- 119). Edwards
believed warm to the touch is serious; it indicates a potential ignition source. (Tr. 118, 122).
Under normal mining conditions, something is wrong and will get worse. (Tr. 117, 121, 122).
Similarly, Edwards did not know what temperature hot to the touch would be. (Tr. 125). The
belt rubbing the structure was hot, meaning it would burn his hand. (Tr. 121). Edwards did not
know how hot a roller must be or how long it must run to start a fire. (Tr. 118, 122). Edwards
did not believe the exact temperature was significant; it was just important that a belt was not
supposed to be warmer than room temperature. (Tr. 170-171).
Neither Edwards nor Wilson had a heat gun. (Tr. 40). He has never carried a heat gun as
an AR nor has he asked an operator to test the heat of structure. (Tr. 125). Edwards took no
objective tests of the frictional heat source; he just used his hand. (Tr. 132). He noted that there
was smoky hot rubber. (Tr. 119). On cross examination, Edwards admitted that he was not
aware of any belt fires at Shoemaker mine due to accumulations. (Tr. 142).
iii. After The Issuance of Order No. 8030970
Edwards notified Wilson that the belt or section would be down. (Tr. 51, 128-129, 160).
Edwards believed Wilson informed management. (Tr. 52). Edwards believes he notified Tex
Raider (“Raider”), a belt coordinator. (Tr. 52-53, 130). He did not know what time he provided
notice. (Tr. 128-129). Edwards told Raider that the belt needed to be shut down and Raider
promised to do so. (Tr. 53, 135). Respondent had to eliminate the ignition sources, change the
rollers, and clean the accumulations. (Tr. 53, 135). The belt was shut down for an hour or an
hour and a half for realignment. (Tr. 141).
Edwards went home. (Tr. 54). He testified that Afternoon Foreman Eric Turner
(“Turner”) called him at 10:00 p.m. (Tr. 55, 57). Turner stated the belt was trained, the rollers
were changed, and the ignition sources corrected. (Tr. 56). Edwards went back to the mine (Tr.
56). All of the conditions were corrected. (Tr. 57). The belt was not running while he was
underground. (Tr. 57). Edwards did not believe it was running while the citations were being
abated. (Tr. 57). Edwards testified that Order No. 8030970 at page 3 states that the operator
shoveled and rock dusted the belt line for approximately 9 hours. (Tr. 57-58).
D. Edwards’ Testimony on the Negligence Finding in Order No. 8030970
Edwards testified that the operator exhibited high negligence. (Tr. 142). Edwards made
this determination because the pre-shift exam was inadequate and the conditions were obvious
and extensive. Edwards referred to the last pre-shift examination report of the No. 8 Belt before

35 FMSHRC Page 1733

his inspection. (GX-8, Tr. 66). The examiner was an agent of the operator and responsible for
preventing accumulations of combustible material in active workings. (Tr. 64-65, 142). The
examiner inspected this area and only noted that the area needed to be swept. (Tr. 143-144).
Edwards also referred to Citation No. 8030971. 9 (GX-9, Tr. 66, 67). The citation was issued for
an inadequate examination of the No. 8 Belt. (Tr. 67, 68). Edwards noted that the violation was
final and the penalty, $9,100.00, had been paid without modification. (Tr. 68). Edwards
believed the cited condition did not occur after this pre-shift examination. (Tr. 72, 143, 169).
Based on his experience, Edwards knew that the accumulations could not have happened that
quickly. (Tr. 72). Beyond high negligence, Edwards believed that the failure to take, or even
mark the need for, corrective action was an unwarrantable failure. (Tr. 64, 70-71).
On cross-examination Edwards discussed the fact that there were some notations on the
pre-shift record. Entry No. 4 for the pre-shift examination on October 14, 2010 noted 8-15 to 836 needed to be swept. (Tr. 151-152). Edwards marked that this condition was not reported in
Order No. 8020970 because he believed that this notation was a report of a condition, just not the
condition he observed. (Tr. 65, 152). He believed that the fact that the area where he found the
heaviest accumulations only stated “needs swept” and listed no corrective action was important.
(Tr. 65, 70-71). Edwards believed that if an area needs swept, it does not mean anything beyond
float coal dust needs to be swept. (Tr. 144, 168). These accumulations were obvious, extensive
and existed for some time. (Tr. 65). Edwards testified that the existence of these accumulations
constituted an unwarrantable failure. (Tr. 65).
Edwards conceded that he did not look at any of the other pre-shift examinations beyond
October 14, 2010. (Tr. 143-144). At hearing, Edwards reviewed several other pre-shift
examinations, including those that stated there were areas that needed to be swept, areas where
belt was rubbing the structure, areas with accumulations under the rollers, and broken rollers.
(Tr. 147-149). Edwards admitted that he did not talk to the pre-shift examiner, Wilhem, who
was not present. (Tr. 145).
In addition to the pre-shift examination evidence Edwards reviewed a MSHA record of
the violation history for the Shoemaker during the previous two years. (GX-5, Tr. 67-68).
Edwards testified that this history showed Shoemaker had 137 citations for §75.400 over the last
two years. 10 (GX-4, 5 p. 61-71; Tr. 69). Edwards had issued a §75.400 violation at Shoemaker
in the past. (Tr. 70). When doing so, he spoke with management about corrective actions, the
conditions found, and things to improve upon. (Tr. 70). Edwards was not sure as to what mine
location the 137 part §75.400 citations were issued or if it was for the same or similar condition
cited here. (Tr. 159-160). However, Edwards knew the mine had a significant history of
violating §75.400. (Tr. 165-166).

9

The evidentiary support for this citation will be discussed below.

10

Thirty C.F.R. §75.400 is a “Rules to Live By” standard. (Tr. 151). The Rules to Live
By identify and informs operators of the standards that result in the most fatalities when violated.
(Tr. 69, 150, 151).

35 FMSHRC Page 1734

Edwards felt Respondent’s conduct was aggravated because of Aracoma and the other
history of death from fires on belt lines. 11 (Tr. 155). On cross examination, Edwards admitted
that this situation was not like Aracoma, but stated that he was trying to prevent such a situation
from occurring. (Tr. 156-157). Edwards also believed the conduct was aggravated because of
the inadequate pre-shift reports, the inadequate examinations, and the condition was obvious and
extensive. (Tr. 158). Edwards thought the pre-shift examiner downplayed the conditions. (Tr.
158). On cross examination, Edwards conceded that things can change in a matter of seconds in
a coal mine and he was uncertain about how long the condition was obvious. (Tr. 159). He did
not ask anyone how long the condition existed. (Tr. 159).
E. Edwards’ Testimony on the Gravity of Order No. 8030970
Edwards testified that the minimal gravity of Order No. 8030970 was lost workdays or
restricted duty. (Tr. 58-59). It could have been worse. (Tr. 58-59). He believed that miners
could have been exposed to smoke inhalation or burns resulting in permanently disabling or fatal
injuries. (Tr. 58). Edwards found that this was reasonably likely to occur because the fire
triangle was present. (Tr. 59). Further, he believed the specific hazard created was fire on the
belt line or an explosion. (Tr. 59-60).
According to Edwards, the likelihood of the cited danger was increased because there
were three equally important ignition sources: belt rubbing the structures, damaged rollers, and
accumulations of coal turning in the rollers. (Tr. 133, 164-165). Belt rubbing the structure was
an ignition source because friction causes the structure to get hot and the roller to warm. (Tr. 62,
133-134). On cross examination, Edwards admitted that it was possible for a belt to go out of
alignment in a matter of seconds. (Tr. 132). He admitted that even if the belt was misaligned,
there was a CO system and water sprays on the belt. (Tr. 132). He also testified that there was
no methane detected and that the belt was fire resistant. (Tr. 133).
Edwards stated rollers packed and spinning in accumulations were ignition sources
because the coal acts as a restriction on the roller turning, causing frictional heat. (Tr. 61).
Edwards further testified that broken rollers are an ignition source because uneven rolling can
cause frictional heat. (Tr. 61-62). Also, damages rollers can break in two and cut into the metal
causing arcing and sparking. (Tr. 61-62, 125-126). Here, Edwards touched the broken bearings
and rollers and they were warm. (Tr. 62, 126). He did not see any pizza cutter rollers or sparks
but he heard damaged rollers. (Tr. 126).
Edwards noted that one person, the examiner, would be affected by this condition. (Tr.
63-64). Belt lines might have a shoveler though Edwards did not see one here. (Tr. 64).

11

The Aracoma Alma #1 Mine experienced a mine fire on January 19, 2006 caused by
frictional heat generated by a misaligned longwall belt. See Report of Investigation Fatal
Underground Coal Mine Fire January 19, 2006 Aracoma Alma Mine #1 Aracoma Coal
Company, Inc. Stollings, Logan County, West Virginia I.D. No. 46-08801. The fire resulted in
the deaths of two miners. Id.

35 FMSHRC Page 1735

Edwards discussed why he found this violation to be S&S. With respect to Order No.
8030970, Edwards testified that Respondent violated §75.400. (Tr. 152). He believed the hazard
in this case was the risk of fire on the belt line. (Tr. 152). Although no methane was present, he
testified that Shoemaker was a gassy mine on a five-day spot. (Tr. 153, 169). Methane can be
liberated from the ribs, roof, the coal on the beltline or the coal in a stockpile at the surface. (Tr.
169). If there was a fire on the belt line, the examiner would be exposed. (Tr. 153-154).
Edwards testified that the reasonably likely injury would be smoke inhalation, or burns, resulting
in lost workdays, restricted duty, and possibily permanently disabling or fatal injury. (Tr. 153154). Finally, Edwards believed Respondent exhibited negligence. (Tr. 154). According to
Edwards, if all five criteria are met then a violation was S&S. (Tr. 154). This was true even
though Edwards never heard of a belt fire at Shoemaker Mine. (Tr. 154-155).
F. Edwards’ Testimony Rejecting Possible Mitigating Factors
Edwards conceded that some of the accumulations on the mine bottom were damp to wet.
(GX-7, page 19, Tr. 63, 122-123, 134). However, he did not feel this was a mitigating factor
because wet coal will dry out under normal mining conditions and become combustible. (Tr. 63,
122-124). The belt will run and the air will dry out the coal. (Tr. 123, 166). The fact that there
was a working CO system and water sprays did not change his opinion that this was an S&S
violation. (Tr. 166-167). He testified that the CO monitors will only note when there is already
a fire, not the danger of a fire. (Tr. 167). He further noted the water sprays were designed to
prevent coal dust suspension not to suppress fires. (Tr. 168). He also opined that a fire resistant
belt does not mean flammable material was not a hazard. (Tr. 167).
G. Edwards’ Testimony Regarding the Photographs
Neither Edwards nor Wilson took photographs; they had no cameras. (Tr. 72-73).
Respondent provided pictures that were allegedly taken within sixty minutes of the writing of
Order No. 8030790. 12 (Tr. 73). Respondent submitted 19 photographs numbered 12-30 and
Edwards discussed each one. (Tr. 74-93). Edwards testified that the photographs showed
accumulations of coal dust. (Tr. 75-93). He also observed that most of the photographs did not
show the amount of accumulation that was present when he issued Order No. 8030970. (Tr. 7592). In addition, Edwards noted that one photograph (#23) showed strands of the belt breaking
off. (Tr. 86-87). He claimed that this was an indication of belt rubbing structure. (Tr. 86-87).
He described how the structure becomes ragged and will slice the belt. (Tr. 87). However,
Edwards also noted that the photographs were often dark in the background and overly bright
where the flash or photographer’s head lamp cast light. (Tr. 75-93).
In reviewing the photographs, Edwards often testified that there was no indication that
the areas shown were at Shoemaker mine; however, he had no reason to believe it was a different
mine. (Tr. 74-93, 161). Respondent’s McElroy and Shoemaker mines look identical. (Tr. 161-

12

The photographs are contained in Respondent’s Exhibit 3, with each given a separate
page number. Tr. 73. Respondent’s exhibits will hereinafter be referred to as “RX” followed by
the number.

35 FMSHRC Page 1736

162). Edwards was not present when the photos were taken, so he did not know when they were
taken or who took them. (Tr. 162).
II. Testimony of James Gropp
A. Qualifications and Work History
Gropp had twenty years of experience before going to MSHA, fourteen years
underground, all with Respondent. (Tr. 175-176, 178). He received a Bachelor’s degree in
Mining Engineering from the University of Pittsburgh in 1987. (Tr. 174). As an employee for
Respondent, Gropp acted as an industrial engineer, a section foreman, a project engineer, a shift
foreman, a mine engineer, and a track and construction foreman. (Tr. 177). In those capacities,
Gropp performed pre-shift examinations of the active workings. (Tr. 178-189). He had been
employed by MSHA since April 2007. (Tr. 173). MSHA provided him with specialized
training, including on-the-job training with journeymen inspectors and 21 weeks of training at
the Academy. (Tr. 174). The 21 weeks in Beckley included classes on law, regulation, policy;
citation and order writing; and all the different aspects of Parts 75 and 48. (Tr. 174).
B. Gropp’s Testimony about Activities Conducted before the Inspection
Gropp conducted an E01 inspection of Shoemaker on October 26, 2010. (Tr. 180). He
was also at Shoemaker to run a noise survey on an MMU section. (Tr. 181). That day he
calibrated his instruments, got his inspection gear, drove to the mine, and arrived after 7:00 a.m.
(Tr. 181). Upon arrival, he reviewed the pre-shift book, on-shift books, and the weekly
permissibility books. (Tr. 182).
C. Gropp’s Testimony Regarding the Inspection
Upon entering the mine, Gropp did not immediately begin the survey; instead, he began
an imminent danger run on all areas inby the tailpiece. (Tr. 182-183). This was done to ensure
that nothing would result in an injury while he was there. (Tr. 183). He testified that this was
standard procedure. (Tr. 183). He began around 9:00 a.m. (Tr. 183). The company escort was
Gary Rose (“Rose”) along with Craig Norton (“Norton”), a foreman trainee, and the union
representative was John Miller. (Tr. 183). Upon arriving at the section he stopped at the rightside power center, dropped off his gear, and then went towards the face. (Tr. 184).
Gropp noticed an accumulation of coal just inby the power center. (Tr. 184). Then he
traveled up the right side face of the No. 8 entry and saw a second accumulation of coal. (Tr.
184). He then informed Norton this was a violation. (Tr. 184). He ran the faces from 8 to 5 to
4. (Tr. 184). As he went from 4 to 3, he saw more accumulations and he told Norton it was bad.
(Tr. 184). Then he examined 2, 1, and 0 entries of the 15D section. (Tr. 184). He found more
accumulations and issued Order No. 8033057. (Tr. 184). Upon leaving the faces, Gropp entered
the No. 4 entry and saw more accumulations where a piggyback loader was dumping. (Tr. 185).
This coal was 60 feet from the intersection of the face outby. (Tr. 185). Gropp added this to the
accumulation order. (Tr. 185).

35 FMSHRC Page 1737

Gropp testified regarding a mine map of Shoemaker. (GX-15, Tr. 187-189). The map
included some of the areas Gropp inspected (it did not include the area where one accumulation
was found). (Tr. 187-188). Gropp marked the map 1-7 to show the accumulations he found.
(Tr. 188, 197). The accumulations here were in the active workings of 8 South. (Tr. 199-200).
There were some pieces of equipment on top of the accumulations observed including a bolter by
the face of the 15A 0 entry. (Tr. 200). The first accumulation (sixth in the Order) was inby the
tailpiece in area 6. (Tr. 190). This accumulation was not on the map; it was outby. (Tr. 190).
This was a heavily traveled area and the accumulation was on the right side of the entry. (Tr.
190). Gropp believed this accumulation occurred when a miner cut the rib while trying to
maneuver in a tight area with the bits on. (Tr. 190). The accumulation was 30 feet in length, 12
to 24 inches in depth, and two and a half to six feet wide. 13 (Tr. 190). The accumulation was
made of coal. (Tr. 191). Gropp testified that he knew this because it was black and he could see
where the rib was cut. (Tr. 191). He believed the operator should have scooped coal and put it
on the belt. (Tr. 192).
The second accumulation (seventh in Order No. 8033057) was near the face of the No. 8
entry. (Tr. 192). The accumulation spanned 6 plus 28. (Tr. 193). This accumulation resulted
from the miner holing through crosscut 7 to 8. (Tr. 193). When a miner goes from a crosscut to
an entry, it is called holing through. (Tr. 192). This process causes coal to fall outside of the
crosscut. (Tr. 192). Holing through is a normal part of the mining process and result in
accumulations of coal and stone. (Tr. 193). There was a fan on top of these accumulations so
Respondent could not have loaded them up. (Tr. 192-193). They were as wide as the entry or
from to six to 15 and a half feet, 12 to 24 inches in depth. (Tr. 193). The operator should clean
accumulations before mining 40 feet and did not do so here. (Tr. 193).
The next coal accumulation (listed fourth in Order No. 8033057) was in the crosscut 4 to
3 and completely covered the crosscut. (Tr. 193-194). The accumulation went from rib to rib
and was 140 feet long. (Tr. 194). The coal was 8 to 12 inches in depth and fifteen and a half feet
wide. (Tr. 194). Gropp had to walk over the accumulation as would anyone conducting a preshift. (Tr. 194). At this location Gropp told Respondent he would issue an order. (Tr. 247-248).
The next accumulation (listed third in Order No. 8033057) was also from holing into an
entry from a crosscut at approximately 6 plus 94. (Tr. 194-195). The coal fell inby and outby
the crosscut. (Tr. 194). The coal had not been cleaned. (Tr. 194). The accumulation was 15
and a half feet wide, 4 to 18 inches in depth, and 12 feet long on the outby side. (Tr. 195).
The next accumulation (listed second in Order No. 8033057) was in the No. 1 entry 8
south. (Tr. 195). This accumulation was also caused by holing in to an entry. (Tr. 195). It was
15 and a half feet wide, four to nine inches in depth, and 10 feet long. (Tr. 195).

13

The measurements listed in the Order No. 8030970 that were 15 and a half feet or less
were made with the tape measure, the other measurements were walked off with each step being
a yard. (Tr. 198). When Gropp took the measurements the Norton and Miller were with him;
however, Rose may have left. (Tr. 241).

35 FMSHRC Page 1738

The next accumulation (listed first in Order No. 8033057) was at the 15 A 0 entry. (Tr.
195-196, 243). The operator had just taken the miner out and never pushed the coal back to the
face or loaded it out. (Tr. 196, 243-244). Gropp believed the miner was pulled out on that shift,
but it could have been earlier. (Tr. 244-245). Gropp did not know if the scoop was down. (Tr.
244-245). Gropp believed Respondent was cutting without a loader because it was being fixed.
(Tr. 196, 245). There was 80 feet of coal from the face outby, the accumulation was four to 15
and a half feet wide and four to 15 inches deep. (Tr. 196, 244). Gropp believed a drag bar made
this accumulation. (Tr. 196-197). Occasionally coal will fall onto the bottom when it is being
loaded or moved. (Tr. 196-197). Shuttle cars have a drag bar to keep the roads smooth. (Tr.
196-197). On cross examination, Gropp conceded that some of this coal could have been added
to after the pre-shift examination. (Tr. 265).
The next accumulation (listed fifth in Order No. 8033057) was outby the face of No. 4
where Respondent had the loader piggybacked. (Tr. 197). The accumulation stretched from 5
plus 20 for 50 feet. (Tr. 197). The accumulation was 14 feet wide and 12 inches deep. (Tr.
197). Gropp believes the drag bar was involved here and that coal was dragged off shuttle cars
by cables on the top. 14 (Tr. 197, 254-255). However, it was possible that coal fell when the
shuttle car hit a rut. (Tr. 255-256). Gropp did not know what the bottom was made of here. (Tr.
254). If the bottom here were clay, whether it had ruts would depend on the moisture. (Tr. 254).
He did not know if the bottom was wet was because he could not see through the coal. (Tr. 254).
At these areas, Gropp saw various kinds of coal accumulations. (Tr. 199). The difference
between loose coal, loose fine and ground-up coal, coal dust, and float coal dust is size, and they
are all combustible. (Tr. 199). Neither Gropp nor anyone else had a sieve. (Tr. 199-200).
However, he knew float coal dust was present because miners produce it. (Tr. 199). Further,
coal on the tram road would be pulverized by equipment. (Tr. 199). Black float coal dust means
there was fresh coal that has never been rock-dusted. (Tr. 201-202). Rock dust is white and a
mix of coal and rock dust is gray. (Tr. 202). Gropp did not take any photographs because he did
not have a camera. (Tr. 203). He did not believe anyone else had one. (Tr. 203).
Gropp knew that these accumulations were not the result of sloughage because they
spanned the entire entry from rib to rib. (Tr. 202). Sloughage is usually on the side by the rib.
(Tr. 202). Accumulations 2, 3, and 7 resulted from holing into the crosscut. (Tr. 250). This was
not sloughage. (Tr. 250-25)1. However, the miner often hits the ribs and causes sloughage. (Tr.
251). This was what happened at accumulation No. 6. (Tr. 251). This probably happens more
than once in a given shift. (Tr. 251). With respect to accumulation Nos. 3 and 4, Gropp did not
see a roof bolting machine correcting sloughage from the roof. (Tr. 251-252). He did not
believe the material falling here was slate. (Tr. 252-253). Gropp was familiar with the slate at
Shoemaker. (Tr. 252). The slate was usually white to gray in color though he has seen it look
black. (Tr. 252). The accumulation was coal with perhaps a little stone. (Tr. 252-253).
However, Gropp conceded that he took no samples at any of the areas of accumulation. (Tr.
258). He did not know if anyone took samples. (Tr. 259).
14

The miner cable was hanging up at the No. 3 entry across crosccut 3 to 4 and the
shuttle cars were passing and likely scraping the coal from the cars. (Tr. 216). This would apply
to accumulation Nos. 4 and 5, but mostly 4. (Tr. 216).

35 FMSHRC Page 1739

Gropp’s impression of the working section was that there were about 400 feet of total,
obvious, and extensive accumulations. (Tr. 204). The accumulations felt like walking on sand.
(Tr. 204). A majority of the accumulations were on the left side, although Citation No. 8033058
was written for both sides. (Tr. 233). Two examiners walked the area without noting anything.
(Tr. 233). Gropp never noticed anyone cleaning the accumulations and was not told why
Respondent was not doing so. (Tr. 245, 280-281). Gropp did not write the citation for
inadequate exam on October 26 because there were two people doing exams and he wrote the
Order for both sides. (Tr. 275). During the investigation, Gropp did not observe anyone trying
to clean. (Tr. 203). Gropp issued Order No. 8033057 (GX-10) at 10:10 a.m. for violation of
§75.400. (Tr. 185, 187).
Respondent terminated the Order using three shuttle cars, two loaders, a scoop and
people using shovels. (Tr. 205). Ten people cleaned the area in about four hours. (Tr. 205).
D. Gropp’s Testimony on the Length of Time the Condition Existed, the Pre-shift
Examinations and Clean-Up Plan
Accumulation No. 1 existed anywhere from one to three shifts. (Tr. 211). Gropp
hypothesized the time based of the rate of mining (between 32 and 36 feet per day) and the
distance between the accumulations and the face. (Tr. 256-267). The accumulation could not
have occurred during the inspection because the left side had not started mining. (Tr. 212).
Accumulation No. 2 existed for one to two days. (Tr. 212-213). The accumulation could
not have occurred during the inspection because the left side had not started mining. (Tr. 213).
Accumulation No. 3 occurred before No. 2 and so existed one to three days. (Tr. 213,
264). The accumulation could not have occurred during the inspection because the left side had
not started mining. (Tr. 213).
Accumulation No. 4 could have existed one to two shifts. (Tr. 213-214, 264). The coal
was there because it was getting drug off the top of the shuttle cars. (Tr. 213-214, 264). Gropp
saw shuttles but did not see them in the accumulations because the left side was not producing.
(Tr. 264). The spill could not have occurred during the inspection for that reason. (Tr. 214).
Accumulation No. 5 could have existed longer because of the way Respondent set up the
miner with the piggyback loader. (Tr. 214). When Respondent ran the shuttle car from the face
and dumped the coal on the ground, it covered up the miner cable. (Tr. 214). The accumulations
were likely there the whole time Respondent mined the crosscut from 4 to 3 and across the 15A.
(Tr. 214). The accumulations could have been there one to three shifts or one to three days. (Tr.
214). The time would depend on whether the accumulations had ever been cleaned. (Tr. 214,
215). The accumulation could not have occurred during the inspection because the left side had
not started mining. (Tr. 215). The left side did not have shuttles running at the time. (Tr. 254).
Accumulation No. 6 existed a day. (Tr. 215). Gropp learned this from the dayshift
foreman on the right side, Yorty. (Tr. 215).

35 FMSHRC Page 1740

No. 7 existed for one or two shifts, a day at most. (Tr. 215). Respondent holed crosscut
7 to 8 and turned up at that point. (Tr. 215-216).
Gropp admitted that some of the accumulations may have occurred after the last pre-shift
examination and before the inspection, notably 1, 4, and 5. (Tr. 224-225). All of No. 1 could
have occurred after the last pre-shift if Respondent had mined the entire area in 3 hours. (Tr.
225). However, Nos. 4 and 5 were too extensive to have been completely deposited in that time.
(Tr. 225). Gropp did not believe Nos. 2, 3, 6, and 7 occurred since the last pre-shift. (Tr. 225).
Gropp believed that the examiner would have seen the seven accumulations. (Tr. 225).
However, he did not ask anyone how the coal got there as he did not think it was important. (Tr.
256). The exception was accumulation No. 6, where he spoke to the foreman and learned that
the bits on a miner had caused the accumulation a day before on dayshift. (Tr. 257-258).
Gropp referred to a pre-shift and on-shift examination report for 8 south left and right for
10-26 on the midnight shift. 15 (GX-14, Tr. 227-228). Nothing in the report stated anything
about accumulations on the left side. (Tr. 228-229). Gropp did not talk to the pre-shift
examiner, although he had in the past. (Tr. 266). However, on cross examination, Gropp
admitted that the on-shift report stated that No. 6 cross 7, cross 8, last open needed dusted. (Tr.
269-270). The report stated that this condition was corrected. (Tr. 269-270). However, Gropp
felt this condition was not part of the violation. (Tr. 270). The report just stated the area needed
to be dusted, not that there were accumulations. (Tr. 270). Another on-shift report notation dealt
wtih four areas (1 was 4 entry, 2 was feeder, 3 was tail, and 4 was 0 entry). (Tr. 271). This was
the section Gropp was on. (Tr. 272). Gropp did not look at this on-shift before the hearing. (Tr.
272-273). The report stated there were coal accumulations in all of these areas and that the
problem was corrected. (Tr. 272). Gropp testified that if the problems were corrected, they must
have occurred again. (Tr. 272). However, even if people had worked on the area, Gropp would
not change his evaluation because of the amount of accumulations. (Tr. 278-279).
As a result of the observations above, Gropp also issued Citation No. 8033058 (GX-12),
for inadequate pre-shift. (Tr. 226, 231). Gropp referred to the notes that substantiate the citation
during his testimony. (GX-13, Tr. 226-227). Citation No. 8033058 was not issued until October
27, 2010, because the area cited was supposed to be examined by two different people. (Tr.
230). Gropp did not feel comfortable issuing a citation on the October 26 as a result of not
knowing who did what at the time. (Tr. 230). He changed his mind after talking with his
supervisor and realizing that something should have been on the books. (Tr. 227, 230). Two full
mining crews and two other people worked on the section following the exam. (Tr. 233). The
examiner reviewed these hazardous conditions and did not report them. (Tr. 233). The

15

A pre-shift report is prepared before anyone can go underground for the next shift to let
people know about hazardous condition in the area. (Tr. 229). An on-shift exists so an examiner
can record air readings, the error, observations, and corrections of violations or hazardous
conditions during the shift. (Tr. 229). The on-shift in GX-14 did not occur on the same shift as
Gropp’s inspection. Tr. 230. Instead, it occurred on the previous midnight shift. Tr. 230.

35 FMSHRC Page 1741

conditions existed for a period of time, an exam occurred, and the condition was not corrected.
(Tr. 275-276).
Gropp also testified that the mine had been cited 139 times for §75.400 in the last two
years. (Tr. 223). Gropp learned this number from a computer program before issuance of Order
No. 8033057. (Tr. 224). He also recalled from the file review that this violation was common.
(Tr. 224). Gropp conceded that these citations were not issued in the same location. (Tr. 266267). He also conceded that §75.400 is one of the top five violations in the country. (Tr. 277).
Gropp was familiar with the Shoemaker clean-up program. (RX-9; Tr. 216-217, 245).
When Gropp worked at Shoemaker the cleanup sequence was as follows: the section was mined
for 40 feet and the loader would clean up, then Respondent would apply rock dust, and then this
would be repeated for the 300-foot entry. (Tr. 248). Once a face was finished, the miner
operator would back the miner up the length of the cut, approximately 30 feet with the pan up in
the air, then he would drop the pan and push the coal back up to the face. (Tr. 248-249). Then,
it would be loaded out with a loader into shuttle cars. (Tr. 248-249). If the loader was down, he
would use the miner because it also has a shovel. (Tr. 248-249). If the miner had already been
taken out before the loader went down, the miner would be brought back in. (Tr. 249-250). The
miner was a large piece of equipment though Gropp did not believe it was very slow. (Tr. 250).
Respondent did not conform to the clean-up plan with respect to the following sections:
No. 1 stated that all coal spills will be cleaned up. (Tr. 217, 221). No. 2 stated, “after dusting,
loader needs to be backed up 50 feet and both ribs pushed up to miner.” (Tr. 221). Instead of the
loader, a miner could be used. (Tr. 221-222). No. 5 stated, “Coal spillage and accumulations
near the fan will be cleaned up as mining progresses.” (Tr. 217-218, 222). No. 6 stated, “Return
entries should be mined 30 feet passed center. The miner will be backed up 30 feet and push
coal into the face past the last channel and loaded out.” (Tr. 218). No. 9 stated, “areas that
cannot be cleaned with scoop or loader will be shoveled out and cleaned up.” (Tr. 217, 222).
No. 10 stated, “No. 8 south and 8 north mains will be cleaned in the same manner as listed
above.” 16 (Tr. 217). No. 8 stated, “After holing to crosscut 1 to 2, No. 2 entry will be scooped
starting two breaks from the face on both sides. Any cables in the entry need to be hung so they
will not be damaged.” (Tr. 219). No. 14 stated, “At any time the loader is down and running
into shuttle cars mine 40 feet back miner up and clean ribs and coal spilled from the shuttle car
then dust before mining continues after the entry or crosscut is finished the entire area is to be
scooped then dusted.” (Tr. 219). According to Gropp, these failures were a point in determining
negligence because the conditions existed in the active workings of the mine and should have
gotten attention. (Tr. 234).
Gropp found Order No. 8033057 to be an unwarrantable failure because the examiner
would follow the same route as his inspection. (Tr. 210-211). Also, the accumulations were
obvious and extensive. (Tr. 210-211, 266). Gropp believed the accumulations existed between
one and three days total. (Tr. 211). Gropp believed that Respondent did nothing to correct the
problem here. (Tr. 266). He further stated that the number of people in the area affects the
16

“Above” referred to No. 7 which stated, “After holing the middle crosscut, miner will
be backed up 30 feet; clean both ribs as well as the coal in the intersection.” (Tr. 218-219).

35 FMSHRC Page 1742

unwarrantable failure finding. (Tr. 223). 8 South was well-traveled because it was the future of
the mine. (Tr. 223). The section foreman, the CM coordinator, the mine foreman, and upper
management would all be interested in this spot. (Tr. 223).
E. Gropp’s Testimony on the Gravity of Order 8033057 and Citation No. 8033058
Gropp evaluated the gravity of Order No. 8033057 as reasonably likely, lost workdays or
restricted duty, S&S and ten persons affected. (Tr. 205). Gropp evaluated Order No. 80332057
as reasonably likely to result in an injury because: combustible material was present; there was
an ignition source of electrical cables in and on the coal; there was a bolter on top of the
accumulations; and the mine liberated methane and was on a five day spot inspection. (Tr. 206).
Gropp testified that the specific hazard created by the condition was an ignition of combustible
material or a propagation of an explosion if there was a face ignition or explosion. (Tr. 205). He
believed that if an ignition were to occur, at a minimum, there would be smoke inhalation and
respiratory damage. (Tr. 205-206, 232). He also felt a miner could suffer crushing internal
injuries from explosive forces. (Tr. 206, 232). He believed that these sorts of injuries would at
least result in lost workdays or restricted duty. (Tr. 206).
With respect to likelihood Gropp found many ignition sources. Shoemaker has a history
of cable violations. (Tr. 207). At the time of issuance, Respondent had five citations in the
previous month for openings in cables. (Tr. 207). Gropp was not sure if the cables he saw that
day were damaged; he did not check them or issue a citation for them. (Tr. 208, 259). It would
not have mattered to him if the cables were not damaged; cables can be damaged and are
damaged regularly. (Tr. 208, 259-261, 279). Cables can be damaged by wire mesh, by stones,
or by equipment. (Tr. 262). Numerous hazards result from cables sitting in a coal pile, including
heat. (Tr. 279). Also, there were other ignition sources. (Tr. 261). Methane was an ignition
source when the face was actively being mined and Shoemaker was on a five-day spot. (Tr. 207208, 279-280). Gropp testified that, given the accumulations here, if there was a methane
ignition it could put fine coal dust into the air and propagate an explosion. (Tr. 280). However,
he never heard of a face ignition propagating at Shoemaker. (Tr. 281). The shuttle car with a
cable on top, the bolter cable on top of the accumulations in 15A, and the fan cable on right side
of No. 7 were also ignition sources. (Tr. 261). However, Gropp did not examine or issue any
citations with respect to this equipment. (Tr. 261).
Gropp believed ten people would be affected because there were ten people inby the
violation where the air would travel. (Tr. 208, 273). Gropp wrote the citation as affecting ten
people because there were violations on both air splits. (Tr. 277-278). The miner was operating
on the right with an operator, two bolters, a utility man, and a loader operator. (Tr. 208, 273).
On the left there were three people hanging curtains and two bolters. (Tr. 208-209, 273).
Gropp testified that Citation No. 8033058 (GX-12) was an S&S violation for the same
reasons as Order No. 8033057. (Tr. 231-232). There were accumulations of combustible
material; an ignition source from the cables and methane; and, people affected with no action
taken to correct the problem. (Tr. 232). Also, an examination was made but the violations were
still present, there were accumulations, there were cables, and the mine was on a five day spot.
(Tr. 274-275).

35 FMSHRC Page 1743

III. Gary Rose
A. Rose’s Qualifications and Work History
Rose graduated from high school and had no further education. (Tr. 283). He had
assistant foreman certifications, MSHA training cards, an EMT certification, and a dust
certification. (Tr. 283). He worked at Shoemaker as a Section Foreman. (Tr. 283-284). Before
Shoemaker, he worked two years at another mine as a roof bolter, miner operator, and shuttle car
operator. (Tr. 284). At the time of the citation, he was a CONSOL safety inspector. (Tr. 284).
B. Rose’s Testimony Regarding Order No. 8030970
Rose was familiar with Order No. 8030970. (Tr. 389). He learned that the Order had
been issued when he went to work on the afternoon shift. (Tr. 389). He did not know when the
Order was issued. (Tr. 390). He was told by The Safety Department to go to No. 8 Belt and take
pictures. (Tr. 389-390). He took the photos contained in RX-3. (Tr. 389). Rose did not have a
copy of the Order or know where the violations were found, so he tried to take pictures of areas
that may have been violations. (Tr. 391, 410). Rose took the photographs between 4:30 and
5:30 on the same day the violation was issued. (Tr. 391-392, 410). Rose testified that the
photographs showed that the cited areas were muddy and well rock-dusted. (Tr. 392-409). He
testified that the belt was 5,200 feet long and was wet for its whole distance. (Tr. 396-397). In
addition, he believed the photographs indicated that there were no significant accumulations of
coal dust. (Tr. 392-409). With respect to photograph #23, Rose testified that the two strings
hanging down from the belt were normal and not a hazardous condition. (Tr. 403).
No one traveled with Rose when he took the photographs. (Tr. 409). Rose did not take
any notes or sample with the photographs. (Tr. 409-410). While he was taking photos Rose
never observed anyone working on the belt. (Tr. 402). Rose stated that the belt was running.
(Tr. 402).
C. Rose’s Testimony Regarding the Accumulations cited in Order No. 8033057
Rose was familiar with Order No. 8033057, as he was with Gropp when it was issued.
(Tr. 284-285). The inspection began where the No. 7 was marked on the map. (Tr. 285). They
then made their way across the faces and ended up at No. 1. (Tr. 286).
At No. 1, the last place the parties visited, the miner pulled out. (Tr. 286-287).
Respondent was done mining and had re-hung the curtain. (Tr. 286-287). Rose did not know
when the miner had moved out. (Tr. 287). He conceded that Respondent had not cleaned up 40
feet of accumulation. (Tr. 286-287). When a miner pulls out of an area the proper protocol was
for the scoop to clean up. (Tr. 288). The operator should then push everything up to the face
and rock dust. (Tr. 288). If the scoop was down, the loader was used, and if the loader was
down, the miner must be used. (Tr. 288-289, 304-305). Rose testified that both pieces of
equipment were down here. (Tr. 289). As a result, dusting would have been done by hand
instead of with a loader. (Tr. 305-306, 315). No one was rock dusting by hand here, but Rose

35 FMSHRC Page 1744

testified that within 40 feet of the face, rock dusting was not required. (Tr. 315). Unlike Gropp,
Rose saw no accumulation 80 feet outby, four to 15 feet wide, and four to 15 inches deep. (Tr.
287). Rose did not measure and did not recall Gropp doing so. (Tr. 287). Rose measured by
counting roof straps, which were spaced four feet apart. (Tr. 288). Rose did not know how long
it would take to fix the scoop. (Tr. 289). It can take 20-30 minutes to bring the miner back. (Tr.
289, 305). Rose did not recall Gropp asking why the area was not clean. Tr. 290.
No. 2 was at the intersection of 15A number 0 and 8 south 1 at spad 694. (Tr. 290).
Rose did not see Gropp or Miller take any measurements here. (Tr. 290-291). The bottom was
muddy clay with ruts formed in it. (Tr. 291). Also, there was some sloughage from equipment
hitting the rib. 17 (Tr. 291).
No. 3 and 4 dealt with areas being center bolted. (Tr. 292). Mesh was being placed
because the top was bad and needed more support as a precaution. (Tr. 292-293, 307-308). At
the time of the inspection the equipment was there though Respondent was not putting the mesh
up. (Tr. 293, 309). Rose was not aware if the miners were bolting on the same shift as the
inspection; it could have been on the last shift. (Tr. 309-310). The falling rocks were black or
green and slimy. (Tr. 293). None of the rock was touching the ribs. (Tr. 294). Rose did not
agree with Gropp that the accumulations were all the way across the entry. (Tr. 294-295). The
accumulation was stone with a little coal mixed in. (Tr. 295, 311). Rose did not recall Gropp
taking measurements in No. 3 or No. 4 and he did not take any. (Tr. 297, 311).
No. 5 was at 8 south 4 entry or spad 5 plus 20. (Tr. 297). Rose did not recall an
accumulation there. (Tr. 297). Rose was not with Gropp at this location. (Tr. 304).
No. 6 was a muddy tram road with a buggy sitting in the entry. (Tr. 297). There was a
very large puddle of water in the area. (Tr. 297). Shuttle cars go through the area to haul coal.
(Tr. 296). If a shuttle car hits the ruts, it can hit a rib and knock rock or coal from the rib. (Tr.
296, 312-313). Rose did not see this happen. (Tr. 296, 312-313). Sometimes coal will fall out
of the shuttle car if there was a bad operator or from hitting ruts. (Tr. 296-297, 313, 315).
No. 7 was located in 8 south No. 8 entry and was near where the fan was sitting, with
mining occurring straight up from the fan. (Tr. 297). Rose stated this was an area that was holed
through with a little accumulation next to the rib. (Tr. 297). To clean a hole through,
Respondent must use a loader and shovel at the end of every shift. (Tr. 298). Rose testified that
this area was going to be cleaned after the shift, when Respondent mined more than 40 feet. (Tr.
313).
Rose did not know why his assessment was so different from Gropp’s. (Tr. 298). The
only discussion Rose and Gropp was that Gropp said it looked pretty bad and then he issued
Order No. 8033057. (Tr. 298). Rose did not take notes or photos on the day of the Order. (Tr.
17

Whether or not sloughage from the rib is combustible depends on whether it is coal,
whether it is rock dusted, and whether there is methane in the air or another source of ignition.
(Tr. 306). However, material is combustible whether or not there is an ignition source. (Tr. 306307).

35 FMSHRC Page 1745

304). Rose did not accompany the pre-shift examiners (McCauley, Pribila, and Wilhelm) when
they examined this area. (Tr. 312, 314). Rose did not have any first hand knowledge of how or
when these accumulations occurred. (Tr. 312). Gropp took no measurements, no dust or air
samples, no photographs, and did not check the ventilation to Rose’s recollection. (Tr. 302-303).
Rose was with Gropp most of the time, although he walked away occasionally because Norton
and Miller were there as well. (Tr. 302). He was with him at all the cited areas, except for No.
5. (Tr. 302). Gropp did not discuss any ignition sources or cables. (Tr. 303). Rose did not
know the average amount of mining per shift in this area. (Tr. 305).
D. Rose’s Testimony Regarding the Clean-up Plan
Shoemaker mine had a clean-up and rock dusting plan. (Tr. 299). In a miner section,
after the miner moves out, the coal must be scooped up and rock dusted. (Tr. 299). Dusting
must occur every 40 feet, though after every 40 feet Respondent dusted the last 80 feet. (Tr.
299). This was to comply with the new regulations. (Tr. 300).
E. Rose’s Testimony Regarding Gropp’s Actions After the Investigation
When Gropp said he was going to issue an Order, Rose contacted his supervisor, Hough.
(Tr. 301-302). Rose did not help clean the areas covered by Order No. 8033057 nor did he know
how many people were involved or how long it took to clean. (Tr. 313).
IV. Testimony of Brian Hough
A. Qualifications and Work History
Hough received a Bachelor’s degree and a Master’s in Safety Management at West
Virginia University. Tr. 317. Hough was trained in the Fundamentals of Supervision, Business
Essentials, C.F.R. Training, and Managing Your Body by Consol. Tr. 317. He was a certified
Mine Foreman in West Virginia, an MSHA instructor, a Con Ed instruction, a West Virginia
EMT miner, and had a MSHA dust certification. Tr. 317. Hough had a total of twelve years of
mining experience. Tr. 319. Hough received his assistant mine certification in 2003 and
upgraded to a mine foreman a year ago. Tr. 347. He was an assistant mine foreman at the time
of these violations. Tr. 348.
B. Hough’s Testimony Regarding Gropp’s Inspection
Hough was familiar with the Order No. 8033057 and he learned about it from Rose at the
time of issuance. (Tr. 319-320). When he learned of Order No. 8033057, Hough examined the
pre-shift and on-shift book, made copies, and headed into the mine. (Tr. 320). Hough went
underground at approximately 10:40 a.m. (Tr. 351-352). When he got there, he talked to Gropp
and then reviewed all of the locations in the Order. (Tr. 321). He did not take notes beyond
mental notes and did not take any photos because he did not have a permissible camera. (Tr.
349-350). Hough did not accompany the pre-shift inspector. Tr. 351. He did not measure the

35 FMSHRC Page 1746

accumulations. (Tr. 351). He did not see the accumulations occur and he did not sample them to
determine their composition. (Tr. 351).
After looking at the areas Hough told Gropp he did not think the accumulations justified
an Order. (Tr. 321). He testified that he informed Gropp that the accumulations were minimal
given the size of the area. (Tr. 321-322). The accumulations occurred in an area that was well
over 1,000 feet from one side of the section to the other and had two separate MMUs with two
separate crews. (Tr. 321-322). However, Hough conceded that it was possible to have a single
accumulation so bad as to justify a withdrawal order, though that did not occur here. (Tr. 352).
C. Hough’s Testimony regarding the Accumulations cited in Order No. 8033057
In Order No. 8033057, No. 1 was listed as four to 15 inches deep. (Tr. 322-323). Hough
testified that this was not possible because the drag rails on the shuttle car prevent accumulations
of that depth. (Tr. 322-323). Further, based on roof straps Hough saw only 40 feet of
accumulation, not 80. (Tr. 323). Hough believed the last 40 feet do not need to be cleaned. (Tr.
355-356). On cross examination, Hough admitted that the 40-foot requirement was not part of
the regulations and only comes from Respondent’s clean-up plan. (Tr. 357-358). Hough did not
know why the area was not cleaned. (Tr. 324). The delay may have been because the bolter was
in the area. (Tr. 324). It would take a long time, up to an hour, to move the miner back in place
because the ventilation would have to be moved. (Tr. 324, 359-360). It would be the section
supervisor’s decision whether to move the miner back in or wait for the loader and scoop to be
fixed. (Tr. 325, 356-357). It was also his responsibility to ensure accumulations stay at no more
than 40 feet. (Tr. 325, 356-357). Hough spoke with the section supervisor (he cannot recall who
that was). 18 (Tr. 325). He told the supervisor to move the miner back in to clean up. (Tr. 325).
No. 2 was located at the intersection of 15A 0 and 8 South No. 1. (Tr. 325). Hough saw
material on the ground, some of which had been pushed by the shuttle cars. (Tr. 327). Some of
the accumulation was rock material as there was a 12-18 inch stone binder at the lower part of
Shoemaker. (Tr. 327). The area was also moist and slippery from seepage. (Tr. 327-328). This
can cause stone to fall out of the binder in the rib and accumulate. (Tr. 327-328). This material
was not combustible. (Tr. 327-328). He testified that it was mostly rock and mud including clay
from the bottom. (Tr. 328, 360). However, Hough did not take any samples. (Tr. 328, 360).
Hough did not believe these conditions warranted an order. (Tr. 328). On cross examination,
Hough conceded that stone that falls from the rib falls onto the rib lines and if it falls from the
roof it falls straight down. (Tr. 360). He also admitted that coal could come out of the shuttle
cars because of ruts in the clay. (Tr. 352). Hough described the drag rails suspended from the
shuttle cars to prevent ruts deeper than 4-inches. (Tr. 352-353). However, he noted that the rails
only prevent the car from bottoming out; they do not eliminate all ruts. (Tr. 352-353). A rut
could be a foot deep before the shuttle care bottomed out and the ruts could fill with coal. (Tr.
353-355).

18

Tr. 357.

Later, he remembered the supervisor on the left was Pribila and the right was Yorty.

35 FMSHRC Page 1747

No. 3 was at the intersection of the 8 south and the 2 entry. (Tr. 328). There was
material falling from the roof at this location. (Tr. 361). However, it was slate and was being
bolted. (Tr. 361). This action was not a hazard because bolts were being added, though the
situation may be dangerous if not corrected. (Tr. 361-362). The falling shale was not listed on
the pre-shift or on-shift report, though examiners sometimes feel this was hazardous. (Tr. 362364). However, the reports do not mean that mining occurred here, it only means that the power
was on. (Tr. 364-365). Coal sloughage from the roof would be combustible. (Tr. 366).
No. 4 and 5 were a combined area for piggybacking. (Tr. 329-331). This was an area
where coal from one shuttle car was dropped and then placed on another shuttle car. (Tr. 329331). Piggybacking occurs when shuttle car cables are not long enough to reach from the
loading point to the belt. (Tr. 330, 366). Coal must be placed on the bottom for piggybacking.
(Tr. 330). At a certain level, that accumulation is not permissible, maybe 20 tons. (Tr. 366).
However, Hough did not believe what he saw on the bottom warranted an order. (Tr. 331).
Hough did not know how much energy went through a trailing cable. (Tr. 365).
Hough did not recall No. 6. (Tr. 331).
No. 7 was where the mine fan was sitting and the employees were setting up to mine.
(Tr. 331). There were rib sloughage, some coal, some rock, in this area. (Tr. 331).
D. Hough’s Testimony Regarding the Clean-Up Plan and Cleaning in General
Hough was familiar with the clean-up and rock dusting plan. (Tr. 334). The clean-up
plan goes into effect at the end of each shift; employees clean the tailpiece and their areas at the
shift change. (Tr. 334). The plan was not updated on a set schedule. (Tr. 335).
When a miner is holing in and there are accumulations as a result, the loader can turn
into the crosscut and attempt to clean up the mess. (Tr. 332). It is very difficult because of the
angle of the turn so usually Respondent has to shovel. (Tr. 332). Respondent has to wait until
the area is holed through and then roof bolted before the accumulation can be cleaned. (Tr. 332).
E. Hough’s Testimony Regarding Examinations cited in Citation No. 8033058
Hough was also familiar with Citation No. 8033058. (Tr. 336). It was true the pre-shift
records do not include any information regarding this area. (Tr. 336-337). However, this was
because any violations were corrected before the last three hours of the shift and so the on-shift
took credit. (Tr. 342-343). Between pages 62 and 79 of the on-shift report, there were many
entries that listed cited conditions and noted that the violations had been corrected during the
shift. (Tr. 337-342). Hough showed these reports to Gropp so that he would see the attempts to
correct violations. (Tr. 342). Gropp said he felt there was not enough effort. (Tr. 342).

35 FMSHRC Page 1748

Hough testified that the purpose of a pre-shift was to take care of hazardous conditions
and to then report those conditions to the record book. 19 (Tr. 344). He testified that pre-shift
hazards must be corrected or dangered off before anyone can go into the section. (Tr. 344, 347).
This was different than an on-shift hazard. (Tr. 344-345). In that case, the condition must still
be corrected but the whole area does not need to be dangered off. (Tr. 344-345). However,
hazardous violations must be dangered off, even when discovered on-shift. (Tr. 345). Hough
felt that nothing listed in the on-shift report required dangering off because the conditions were
not hazardous, just violations. (Tr. 345).
On cross-examination, Hough discussed why the on-shift did not list all of the
accumulations in Order No. 8033057. (Tr. 369). He stated that the on-shift report might have
included No. 6 from the Order and indicated the condition was corrected. (Tr. 369-370). He
also noted accumulations in the No. 8 entry were cleaned and dusted. (Tr. 370-37)1. On-shifts
for 0 Entry and Feeder tail also stated that conditions needed to be cleaned up. (Tr. 371). He
also referred to the pre-shift report for the shift where Gropp issued the violations. (Tr. 371).
That report stated 0 entry had loose coal accumulations and this was listed as a violation. (Tr.
371). Also, No. 4 entry from 4 to 3 had accumulation and the condition was listed as a violation.
(Tr. 371-372).
Hough stated that there was no way to determine how long accumulations existed besides
watching their creation. (Tr. 332, 366-367). Even knowing the rate of mining would not be
accurate because mining distances can vary daily. (Tr. 333). On a good day, a miner can
advance 200 feet. (Tr. 333). Hough did not know the rate of mining per shift at the time of
Order No. 8033057. (Tr. 367). However, records existed that Hough could have checked if he
wanted to dispute MSHA’s estimate of mining rates per shift. (Tr. 367-368). Hough did not
know why he and Gropp came to such different conclusions on how long the condition existed.
(Tr. 334). According to Hough, at times in the past, even with Gropp, this amount of
accumulation would warrant a citation, not an order. (Tr. 334).
V. Testimony of Tom Skrabak
A. Qualifications and Work History
Tom Skrabak (“Skrabak”) graduated from high school. (Tr. 373, 374). He was certified
as a mine Foreman. (Tr. 374). He had fire and shot papers in Ohio and West Virginia, as well as
a training certificate with MSHA. (Tr. 374). He had 41 years of mining experience. (Tr. 376).
He worked on miner sections, had done construction underground, and worked as section
foreman, shift foreman, and mine foreman. (Tr. 376). Skrabak had been employed by
Respondent at Shoemaker and has been for 23 years. (Tr. 374). His position at the time of the
19

Hough opined that all violations are not necessarily hazardous conditions. (Tr. 346).
He stated that the accumulations here were not a hazardous condition and would not be unless
they were extreme. (Tr. 346). However, Hough did not actually see the conditions. (Tr. 346347). He reviewed the books and found that the examiner did not believe the conditions were
extreme. (Tr. 346-347). Hough did not know if the miners stopped mining to clean them up.
(Tr. 347).

35 FMSHRC Page 1749

hearing was General Mine Foreman; however, on October 14, 2010, he was an Assistant Mine
Foreman in charge of the Whittaker Portal. (Tr. 374).
B. Skrabak’s Testimony Regarding Order No. 8030970
Skrabak was familiar with Order No. 8030970. (Tr. 376-377). He became familiar when
he was called about it on the afternoon of the October 14 by the assistant superintendent at
Golden Ridge. (Tr. 376-377). He stated that he had no knowledge of the Order and that it had
not been issued to him. (Tr. 377).
C. Skrabak’s Testimony Regarding Edward’s Inspection
On the day at issue, Skrabak saw Edwards in the morning and had a non-substantive
conversation; however, he did not go underground. (Tr. 378). Instead, he went to a meeting at
the Golden Ridge. (Tr. 378). Skrabak’s meeting was at the engineering department. (Tr. 383384). There was a screen showing belt production in that office. (Tr. 384- 385). Skrabak even
has one at his home because a down belt means no production. (Tr. 384-385). During the
meeting only one alarm summary went off. (Tr. 385). Skrabak was not sure what time the alarm
occurred. (Tr. 385). The summary stated “Disconnect, drive disconnect 1, disconnect 2,” and
was for 8 Belt. (Tr. 385). “Drive disconnect” indicated that the belt was down because the
power was disengaged. (Tr. 385- 386). A radio communication showed the belt was down
because rollers were being changed. (Tr. 386). Skrabak learned the reason at his meeting and
was told by one of the surveyors. (Tr. 386). He did not remember the belts going down at any
other time. (Tr. 380). The meeting started at around 10:00 a.m. and ended around 1:00. (Tr.
383-384). He then went to the superintendent’s office and discussed other matters before leaving
at 2:00. (Tr. 383-384).
When Skrabak saw Edwards coming out of the mine, he asked how the inspection went
and Edwards told him he “got you for a few.” (Tr. 381). “Got you for a few” indicates to
Skrabak that there were a few citations. (Tr. 382). Edwards gave no indication of an order. (Tr.
382). Skrabak did not learn about Order No. 8030970 until the phone call later. (Tr. 382). It
was MSHA protocol to inform the mine foreman or assistant mine foreman when an Order was
issued. (Tr. 383). Normally, when an order was issued, the section or belt was shut down until
the situation was corrected. (Tr. 383, 386-387). As an assistant mine foreman, Skrabak would
know if the belt shut off. (Tr. 381).
Skrabak learned about Order No. 8030970 around 4:00. (Tr. 387). After receiving the
call, Skrabak went into the foreman’s office and obtained a copy of the Order. (Tr. 378-380).
Skrabak read the Order and called the assistant superintendent back. (Tr. 380). Skrabak never
saw the condition, had no firsthand knowledge of the condition, and did not walk with the
inspector. (Tr. 388).
CONTENTIONS OF THE PARTIES
The Secretary contends that Order No. 8030970 was validly issued. (Secretary’s PostHearing Brief at p. 2). He also argues the violation of the standard was reasonably likely to result

35 FMSHRC Page 1750

in lost workday injuries, and would affect 1 person. GX-6. The Secretary claims that the
violation was S&S (Secretary’s Post-Hearing Brief at p. 7). Finally, he argues the violation was
the result of high negligence and constituted an unwarrantable failure. (Id. at 14). Respondent
argues that there were no significant accumulations of combustible material. (Respondent’s
Post-Hearing Brief at p. 30-33). It also contends that no injury was reasonably likely, that the
condition was not S&S, and that no one would be affected. (Id. at pp. 37-39). Finally, it argues
that it did not exhibit negligence and there was no unwarrantable failure. (Id. at pp. 39-40).
The Secretary contends that Order No. 8033057 was validly issued. (Secretary’s PostHearing Brief at p. 18). He also argues the violation of the standard was reasonably likely to
result in lost workday injuries, and would affected 10 persons. GX-10. The Secretary claims that
the violation was S&S. (Secretary’s Post-Hearing Brief at p. 26). Finally, he argues the
violation was the result of high negligence and constituted an unwarrantable failure. (Secretary’s
Post-Hearing Brief at p. 29). Respondent argues that there were no significant accumulations of
combustible material. (Respondent’s Post-Hearing Brief at pp. 40-47). It also contends that no
injury was reasonably likely, that the condition was not S&S, and that no one would be affected.
(Id. at pp. 47-49). Finally, it argues that it did not exhibit negligence and there was no
unwarrantable failure. (Id. at pp. 49-50).
The Secretary contends that Citation No. 8033058 was validly issued. (Secretary’s PostHearing Brief at p. 31). He also argues the violation of the standard was reasonably likely to
result in lost workday injuries, and would affect 10 persons. GX-12. The Secretary claims that
the violation was S&S. (Secretary’s Post-Hearing Brief at p. 33). Finally, he argued the
violation was the result of high negligence. (Id. at p. 34). Respondent argues that the pre-shift
examinations were conducted properly. (Respondent’s Post-Hearing Brief at pp. 50-52). It also
contends that that no injury was reasonably likely, that the condition was not S&S, and that no
one would be affected. (Id. at pp. 53-54). Finally, it argues that it did not exhibit high
negligence. (Id. at p. 54).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Order No. 8030970
A. The Secretary has sustained his burden of proof by the preponderance of evidence that
§75.400 was violated
With respect to Order No. 8030970, the Secretary presented sufficiently probative
evidence of impermissible coal dust accumulations at the subject mine so as to establish a
violation of §75.400.
Edwards gave credible testimony regarding coal dust accumulations along the No. 8
Beltline. Edwards observed areas with coal fines, some that had actually accumulated up to the
rollers and the roller structure. The rollers were turning in the accumulations. (Tr. 29). Edwards
found coal, loose coal, actual coal particles, and coal lumps on the belt line and also ignition
sources from 8-46-8-47. (Tr. 29).

35 FMSHRC Page 1751

Edwards used a tape measure to measure the accumulations, some of which were up to
three feet in height and six feet in width. (Tr. 36-38). As to the height of the accumulations, the
belt structure was not consistently the same distance from the bottom. Some rollers were as little
as one foot from the bottom. (Tr. 38). The accumulations were found to be sometimes coming
into contact with rollers. 20 (Tr. 38). Edwards touched rollers that were packed in
accumulations; the rollers were warm to the touch. (Tr. 39).
At hearing Edwards referred to his underground notes (GX-7) which were consistent with
his in-court testimony. Respondent cross-examined Edwards regarding the pristine nature of his
notes and regarding the actual time and place the Order was written. Although Edwards’
testimony was somewhat problematic on these minor points, the ALJ found Edwards’ testimony
on the whole to be reliable, credible, consistent, and not impeached despite Respondent’s
vigorous cross-examination. (see also Secretary’s Post-Hearing Brief at p. 3, Footnote 2).
The ALJ also notes Respondent’s hearing cross-examination of Edwards and brief
arguments that the Secretary’s case was not supported by any photographic, heat measurement,
or coal particle testing evidence.21 (see inter alia Tr. at 40, 49, 72, 119, 125 and Respondent’s
Post-Hearing Brief at p. 9 and 33).
The ALJ concurs that, in the best of all evidentiary worlds, MSHA inspectors would
carry cameras to photograph all violation scenes, sieves to measure coal dust particles, coal dust
meters,22 specimen bags to collect samples, and heat guns to measure friction temperatures. But,
mines are not sterile environments where precise empirical testing can always be conducted.
Moreover, placing aside questions of practicality, our current case and statutory law do not
require such proof to establish the safety standard violations at issue.
An inspector’s testimony, standing alone, if found credible and reliable, may constitute
sufficient evidence to prove the existence of a safety violation and, indeed, its S&S nature. See
Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-1279 (Dec. 1998) (holding that the
opinion of an investigator that a violation is S&S is entitled to substantial weight); Buck Creek
Coal, Inc. v. MSHA, 52 F.3d 133, 135-136 (7th Cir. 1995) (ALJ did not abuse discretion in

20

See also, Edwards’ descriptions of damaged rollers at 8-3 and 8-23 crosscuts that could
become frictional heat sources. (Tr. 44-45).
21

The ALJ notes that Respondent also failed to present any scientific testing evidence.
The problematic nature of its proffered photographs shall be discussed infra.
22

MSHA is encouraging underground mine operators themselves to collect and evaluate
rock dust/coal samples. Last year, NIOSH verified the effectiveness of the coal dust
explosibility meter (CDEM) to evaluate rock dust/coal dust samples to determine whether rock
dusting was adequate to prevent explosions. See MSHA Program Information Bulletin No. P1301, “Availability of a Report on the Use of the Coal Dust Explosibility Meter,” dated Jan. 25,
2012.

35 FMSHRC Page 1752

crediting expert opinion of experienced inspector); and Cement Division., National Gypsum Co.,
3 FMSHRC 822, 825-826 (Apr. 1981) (regarding the probative value of inspector’s judgment).
In the case sub judice, the ALJ recognizes that Edwards had not been working many
years as an inspector for MSHA at the time of the instant inspection.23 However, the ALJ rejects
any argument advanced by the Respondent contending that Edwards’ testimony should be
accorded little weight due to his short time with MSHA. (see inter alia Respondent’s PostHearing Brief at p. 34). As indicated supra, Edward, in fact, had 18 years of underground coal
mining experience prior to joining MSHA, including more than 6 years as a certified mine
examiner for Respondent in the Shoemaker Mine. (Tr. 19, 21-22).
After careful evaluation of the evidence, the ALJ finds that Edwards was an experienced
miner who could readily identify the type of unreported impermissible accumulations cited in his
order. The ALJ found Edwards’ actual measurement of the accumulations and contemporaneous
notes to further corroborate his testimony. As shall be discussed infra, Edwards’ testimony was
essentially unrebutted as to the fact of the violation. Thus, the ALJ accords Edwards’ testimony
substantial weight.
The ALJ notes Edwards’ concession that there were areas of the beltline that were wet,
damp, rock dusted, and/or not in violation of 75.400 and notes Respondent’s arguments
regarding such.24 However, Edwards credibly testified that there were other significant areas of
the beltline that had “major impermissible violations” starting at the 8-36 crosscut and extending
to the 8-15 crosscut, a total distance of 2,100 linear feet. (Tr. 36-37). Despite Respondent’s
vigorous cross-examination, Edwards persuasively opined that given “the conditions of
23

At page 2 of his brief, footnote 1, the Secretary ably summarized Edwards’ experience:

MSHA Coal Mine Inspector David M. Edwards (“CMI Edwards”) has
been employed by MSHA since January 7, 2007 (Tr. 15). During his tenure with
MSHA, CMI Edwards has attended the 21-week coal mine inspector training
program and traveled (sic) with certified Coal Mine Inspectors for on-the-job
training (Tr. 16). Both the training program and the on-the-job training
specifically covered the areas of fire hazards and combustible accumulations (Tr.
16-19). CMI Edwards has earned his certified mine foreman’s papers in Ohio and
West Virginia and, since joining MSHA, has earned a certified electrician’s card
for both surface and underground and an MSHA training certificate to train
underground examiners to qualify for certification as mine foremen (Tr. 19). CMI
Edwards had 18 years of underground coal mine experience prior to joining
MSHA, including more than six years as a certified mine examiner for Consol
Energy in the Shoemaker Mine (Tr. 19, 21). At Shoemaker, CMI Edwards was a
certified mine foreman, conducted pre-shift examinations and received fire-boss
training (Tr. 21). CMI Edwards has an Associate’s Degree in Electro-Mechanical
Engineering (Tr. 20).
24

The ALJ shall discuss infra why such possibly mitigating evidence as general wetness,
rock dusting, and intermittent non-violative areas would not necessarily preclude findings of
S&S and/or unwarrantable failure.

35 FMSHRC Page 1753

accumulations, the continuous presence of ignition sources and also knowing the oxygen
content,” the cited area was the “worst beltline” he had ever seen. (Tr. 50, 127). Thus, even
accepting there were various areas of the belt line at Shoemaker Mine that were in compliance
with §75.400 on October 14, 2010, the ALJ is persuaded that significant lengths of Beltline No. 8
were in violation.
The Secretary’s position that §75.400 was violated is not only supported by the case
record but also by applicable law. At hearing and in its brief, Respondent indicated that various
areas along the belt line were wet, muddy, or rock-dusted. (See Respondent’s Post-Hearing
Brief at p. 11-13). However, such factors do not necessarily mandate against a finding of a
§75.400 violation. In Utah Power & Light, 12 FMSHRC 965, 969 (May 1990) (citing Black
Diamond Coal Company, 7 FMSHRC 1117, 1120-21 (Aug. 1985), the Commission held that
dampness in coal did not render it incombustible and that wet coal can eventually dry out in a
mine fire and ignite. See also Black Diamond, 7 FMSHRC at 1121 (“a construction of (§75.400)
that excludes loose coal dust that is wet or allows accumulations of loose coal dust mixed with
non-combustible materials defeats Congress’ intent to remove fuel sources from the mine and
permits potentially dangerous conditions to exist.”).
It is black letter law that the Secretary bears the burden of proof to establish the fact of
violation by the preponderance of evidence. Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(Nov. 1989). However, this burden of proof standard only requires that the trier-of-fact conclude
the “existence of a fact is more probable than its nonexistence.” RAG Cumberland Resources
Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). As discussed supra, Edwards’ essentially
unrebutted testimony establishes by the preponderance of the evidence that §75.400, as cited in
Order No. 8030970, was violated. Moreover, there is also additional inferential evidence in the
record supportive of a finding of violation.
Final Order No. 8030971 (GX-9) contains an unwarrantable failure finding that was
uncontested by Respondent and reads as follows:
A record of hazardous conditions for the No. 8 beltline pre-shift was no recorded
in the preshift report located on the surface. A hazardous condition which existed
from #8-50 to #8-1 crosscut of the No. 8 Beltline was not recorded on the
midnight shift of 10/14/2010. The area was preshifted at 5:36 a.m. by an
examiner and the condition was obvious and extensive and was not worked on or
corrected and not entered into the record book on the surface for that purpose.
The condition is described in Order #8030970. This order is written in
conjunction with that order. This violation is an unwarrantable failure to comply
with a mandatory standard. The mine has received 6 citations of 75.360(f) over
the past 2 years. Management engaged in aggravated conduct constituting more
than ordinary negligence in that the area was preshifted and a hazardous condition
was not reported or corrected.
(GX-9).

35 FMSHRC Page 1754

As averred under the condition or practice section, this Order finding a pre-shift
examination violation was based upon “the condition…described in Order #8030970.” In his
brief the Secretary properly points out pertinent Commission law indicating that for purposes of
the Act, paid penalties that have become final orders pursuant to §105(a) reflect violations of the
Act and the assertion of violation contained in the citation is regarded as true. See inter alia Old
Ben Coal Company, 7 FMSHRC 205, 209 (Feb. 1985), (Secretary’s Post-Hearing Brief at p. 4),
and (GX-5, page 53 - indicating Respondent had paid a $9,100.00 penalty associated with Order
No. 8030971).
The ALJ notes Respondent’s argument that the penalty was “inadvertently paid” and that,
in any case, Edwards was unaware of the payment when he issued Order No. 8030970.
(Respondent’s Post-Hearing Brief at p. 15 and Tr. 149-150). Respondent’s uncontested payment
of the penalty at No. 8030971 may not invoke strict rules of res judicata or collateral estoppel, or
constitute an admission as to violation of §75.400 as cited in Order No. 8030970. However, the
ALJ finds that an adverse inference may reasonably be drawn from said uncontested payment,
further supporting the Secretary’s position.
As noted supra, Respondent presented testimony from Gary Rose in an effort to undercut
Edward’s testimony. Rose’s testimony, however, was not persuasive that no violation of
§75.400 had taken place. The safety inspector at the Shoemaker Mine when Order No. 8030970
was issued, Rose had not been informed of such until nearly five hours after issuance. 25 (Tr.
389-390). Rose did not see any of the cited accumulations, did not see Order No. 8030970
before or during his photographs of the beltline, and had no actual knowledge of the specific
areas that Edwards had cited. (Tr. 389-391, 410). Rose’s “random” photographs were taken
more than 7 hours after this order was issued. Tr. 390-392.
Although Beltline No. 8 was approximately 5,000 to 6,000 feet long, Respondent only
proffered 19 of Rose’s photographs for admission into evidence. Rose admitted that he had
taken no notes, contemporaneous or otherwise, associated with the photographs and was solely
testifying from memory. (Tr. 410). The ALJ gave credence to Rose’s testimony only to the
extent that there may have been various areas along the belt line that had no impermissible
accumulations.26
In the final analysis, the ALJ finds Edwards’ testimony to be more credible regarding the
violative accumulations located along approximately 2,000 feet of the No. 8 Beltline. None of
Rose’s photographs were clearly established to have depicted the actual beltline areas that
Edwards found to be in violation. (see also Secretary’s Post-Hearing Brief at p. 5-6 regarding
such). The ALJ also finds that the testimony of Respondent’s witness, Tom Skrabak, was of

25

Due to changing conditions associated with mining operations and environment, the
ALJ had to consider the possibility that the scenes photographed by Rose may not have been an
accurate reflection of the conditions witnessed by Edwards at the actual time of the inspection.
26

Inter alia the ALJ has considered this to be a mitigating factor in denying the
Secretary’s request for an increased penalty beyond $4,000.00.

35 FMSHRC Page 1755

little probative value. Skrabak had no actual first hand knowledge of the cited accumulations.
(see also Secretary’s Post-Hearing Brief at p. 6 regarding such).
In view of the foregoing the ALJ finds that there was a clear violation of §75.400 as set
forth in Order No. 8030970.
B. Respondent’s violation of §75.400 was Significant and Substantial in nature
Taking into consideration the record in toto and applying pertinent case law, the ALJ
finds that Respondent’s violation of §75.400 was significant and substantial in nature. The first
element of Mathies – the underlying violation of a mandatory safety standard – has clearly been
established.
As to the second element of Mathies – a discrete safety hazard, that is a measure of
danger to safety, contributed to by the violation – the record again clearly establishes satisfaction
of such. Abundant case law has held that combustible accumulations create significant explosion
and propagation hazards. see Old Ben Coal Co., 1 FMSHRC 1954 (Dec. 1979); Black Diamond
Coal Company, 7 FMSHRC supra; and Amax Coal Co., 19 FMSHRC 846 (May 1997).
Furthermore, Commission Judges have long recognized that coal accumulations along conveyor
belts and/or longwall shields contribute to the safety hazard of a mine fire or explosion. Consol
Pennsylvania Coal Co., 32 FMSHRC 545, 560-561 (May 2010) (ALJ Bulluck); San Juan Coal
Co., 28 FMSHRC 35, 39 (Jan. 2006) (ALJ Hodgdon) (reversed and remanded on other grounds);
Mountain Coal Co. LLC, 26 FMSHRC 853, 868 (Nov. 2004) (ALJ Manning); Clinchfield Coal
Co., 21 FMSHRC 231, 241 (Feb. 1999) (ALJ Barbour).
As discussed supra, Edwards credibly testified regarding extensive combustible
accumulations under and along the No. 8 Beltline. The violative condition at issue, the
impermissible accumulations, contributed to the discrete safety hazard of a mine fire or
explosion. These accumulations were combustible and could provide the fuel source for a fire or
explosion. (Tr. 46, 48-49, 59-60, 94-97). Thus, the Secretary has clearly established that the
second prong of Mathies was met.
The third element of the Mathies test – a reasonable likelihood that the hazard contributed
to will result in an injury – is usually the most litigated prong. The Commission has made it
clear that the “test under the third element is whether there is a reasonable likelihood that the
hazard contributed to by the violation…will cause injury.” Musser Engineering Inc. and PBS
Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010); see also Cumberland Coal Resources LP, 33
FMSHRC 2357, 2365-2369 (Oct. 2011). The Commission emphasized that the Secretary need
not “prove a reasonably likelihood that the violation itself will cause injury…” Id. Further, the
Commission reaffirmed the well-settled precedent that the absence of an injury producing event,
where a cited practice occurs, does not preclude an S&S determination. Id. (citing Elk Run Coal
Co., 27 FMSHRC 899, 906 (Dec. 2005) and Blue Bayou Sand and Gravel, Inc.,18 FMSHRC
853, 857 (June 1996)).
It is essentially uncontested that the hazard contributed to by the cited accumulation(s)
was a fire or explosion, and such a hazard would have a reasonable likelihood of resulting in an

35 FMSHRC Page 1756

injury, including, at the very least, smoke inhalation and burns. (see Tr. 58-59; see also Black
Diamond Coal Company, 7 FMSHRC at 1120 wherein the Commission noted “Congress'
recognition that ignitions and explosions are major causes of death and injury to miners…”). At
hearing, Edwards described belt rollers turning in accumulations of coal, float coal dust on belt
structures and water lines, the conveyor belt at No. 8 beltline not being properly aligned, and
damaged rollers. (see GX-6 and Tr. 29, 34-37, 41-47, 50-51, 61-62, 133).
In Amax Coal Co., supra, the Commission upheld the ALJ’s finding that belt running on
packed coal was a potential source of ignition for accumulations of loose, dry coal and float coal
dust along the belt line, and that the condition presented a reasonable likelihood of an injury
causing event. In addition, in Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June
1994), the Commission held that accumulation violations may properly be designated as S&S
where frictional contact between belt rollers and the accumulations, or between the belt and
frame, results in a potential ignition source for the accumulations. The Commission in MidContinent found it was immaterial that there was no identifiable hot spot in the accumulation
because continued normal mining operations must be taken into account when evaluating the
circumstances. In the present case, if the violative condition had been allowed to persist, it
would have reasonably led to smoke, fire and, potentially, an explosion. Further, an additional
ignition source was present in the form of the misaligned belt rubbing the structure, which could
generate frictional heat. Even if the coal near the damaged rollers and misaligned belt had been
wet, the Commission has recognized that wet coal can dry out and ignite. See Black Diamond
Mining Co., supra at 1121. The preceding rulings, including those in Musser and Cumberland
Coal, would all suggest a finding that Mathies third element was met in the case sub judice.
C. Respondent’s argument that there was not a confluence of factors present that would
sustain a designation of S&S is specifically rejected.
Citing, inter alia, U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Mar. 1984), the
Respondent argued that the record did not establish “a confluence of factors present that would
sustain a designation of significant and substantial.” (See Respondent’s Post-Hearing Brief at p.
37-38). To the extent that Respondent maintains its cited case law and/or interpretations of such
stands for the proposition that the hazard contributed to must be reasonably likely to result in an
actual accident or untoward event, the ALJ rejects such as being inapposite to the above-cited
Commission jurisprudence. However, even if Respondent’s proposed analysis of Mathies’ third
element were utilized, the ALJ agrees with the Secretary’s arguments that a finding of S&S
would still be warranted (See also Secretary’s Post-Hearing Brief at p. 9-14).
In determining whether a violation is reasonably likely to lead to injury, the likelihood of
injury must be considered in the contest of “continued normal mining operations.” See MidContinent, 16 FMSHRC at 1221-1222). Additionally, when evaluating the reasonably likelihood
of a fire, ignition, or explosion, the Commission has held that the examination of the confluence
of factors must be based upon the particular facts surround the violation. Enlow Fork Mining
Co., 19 FMSHRC 5, 9 (Jan. 1997) (quoting Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988).
“Some of the factors include the extent of accumulations, possible ignition sources, the presence
of methane, and the type of equipment in the area.” Id. citing Utah Power & Light Co., 12
FMSHRC at 970-971 (1990); Texasgulf, 10 FMSHRC at 500-503.

35 FMSHRC Page 1757

At hearing Edwards discussed the necessary confluence of factors at the subject mine by
referring to the existence of a “fire triangle.” (Tr. 96). The necessary components of a fire
triangle are: (1) an accumulations of combustible materials (fuel); (2) the presence of ignition
sources; and (3) 20.8% oxygen content in the air. All were all found by Edwards during his
inspection. (See inter alia Tr. 28-31, 34, 45, 50-51, 59, 96). The combustible “fuel” found by
Edwards included loose coal, loose fine and ground up coal, and coal dust (including float coal)
along the No. 8 Beltline.
As noted supra, both at hearing and in its Post-Hearing Brief, Respondent has attempted
to diminish the combustible nature of the impermissible coal accumulations by emphasizing the
dampness/wetness along the belt line and by arguing that the subject was rock dusted. 27 (see
Respondent’s Post-Hearing Brief at p. 8, 11-13, 31-33, 38-39 and Tr. 35, 39, 123, 134, 392-407).
However, both in Utah Power & Light and Black Diamond, the Commission observed that wet
coal wet coal will eventually dry out during normal mining operations and that loose coal mixed
with non-combustible materials may nonetheless pose a hazard. (See also Tr. 35, 63, 122, 123
for Edwards’ observation that wet dust will become combustible once dried out.).
Further, the photographic evidence presented by Respondent to prove the accumulations
were wet and/or rock dusted was often of problematic probative value. As noted supra, Edwards
was uncertain as to whether the scenes depicted in Rose’s photographs were of the actual sites
Edwards had inspected or, indeed, were even taken at Shoemaker. (see inter alia Tr. 74-75, 77,
80, 82-84, 86, 88-89, 91-93, 161-162).
It was difficult to ascertain whether the photographed coal dust in some offered exhibits
was lighter because of rock dusting or because of photo flashing. (see also Tr. 75-76, 78, 81, 8384, 86, 88-93, 396, 404). Some of the photographed areas were so dark that one was left to
speculate whether the area depicted was wet or had a coating of dry black coal dust. In weighing
the probative value of the photographs, the ALJ carefully considered Edwards testimony that he
had observed many areas where the coal dust was dry, black in color, and/or where the coal dust
appeared to lay on top of the rock dust.28 (Tr. 75-77, 79, 82-83, 85, 88, 91-93). Contrary to
Respondent’s arguments, the ALJ finds that Edwards’ testimony established the existence of
combustible materials which would be one of the necessary tri-part elements in the “fire
triangle.”
Further, at hearing Edwards testified at length regarding the No. 8 Beltline being out of
alignment and rubbing the metal belt structure at crosscuts 8-47 to 8-46. (GX-6, 7; Tr. 29-30, 34,

27

Respondent’s Post-Hearing Brief at p. 38 cites Tr. 294-295 for the proposition that the
cited area was damp to wet. However those pages contain Rose’s testimony on Order No.
8033057 and are not relevant to the immediate discussion on Order No. 8030970.
28

The black color of the float coal dust would, on visual inspection, indicate little or no
non-combustible rock dust component.

35 FMSHRC Page 1758

42-43). This rubbing of the belt on the metal structure with the associated friction heat29 was a
potential ignition source for the combustible accumulations – thus constituting the second
necessary component of the fire triangle. The ALJ notes Respondent’s argument that “warm”
rollers are common and do not constitute a hazard. However, according to above cited case law,
the ALJ must consider that, with continuing normal mining operations, rollers subject to
continued frictional heat may also rise in temperature, posing a hazard for fire and explosion.
(See also Secretary’s Post-Hearing Brief at p. 11-12).
Other potential ignition sources found by Edwards were belt rollers in contact with,
turning in, and impacted by the accumulations. (Tr. 29, 35, 37, 39, 50-51, 61, 133). These
accumulations coming into contact with the belt rollers were extensive: they measured two to
three feet in width and 24 inches in depth and were packing around roller shafts. (GX-6, 7; Tr.
35-38). The bearings of the impacted rollers were also found to be heating up – another potential
ignition source for the accumulations. (Tr. 61-62, 133-134). Float coal dust, black in color, was
observed directly under the belt rollers on the bottom, approximately 6 feet in width. The dust
was also found on the belt structure and water lines. (GX-6, 7; Tr. 41-42). Again, under normal
mining conditions pursuant to the above-cited Commission holdings, these conditions could
worsen until a fire and/or explosion occurred. (see also Highland Mining Company, LLC, 31
FMSHRC__, slip op., KENT 2009-1241 (January 28, 2013) (ALJ Rae); Tr. 61-62, 117; and
Secretary’s Post-Hearing Brief at p. 11 regarding the danger of the belt becoming an ignition
source with continued friction).
The ALJ notes that another potential ignition source was methane. The subject mine is a
gassy mine.30 In fact, the Shoemaker mine was on a 5-day spot inspection for high methane
levels on the day of the inspection. (Tr. 42, 60). Although not detecting any methane during his
inspection, Edwards testified that methane can be liberated at any time to provide an ignition
source. (Tr. 169). Further, the Commission has directly held that low levels of methane at a
time of violation do no preclude methane from being a factor in the S&S designation. See U.S.
Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (holding that whether a violation is S&S
designated depends on the circumstances that would have existed if normal mining operations
continued31 after the time the violation was cited, and, finding that methane levels can rise
quickly during mining operations). Thus, in addition to the frictional heat associated with the
29

See inter alia Tr. 43 wherein Edwards testified that when he and Terry Wilson touched
the belt it was “actually hot.”
30

Pursuant to 30 U.S.C. §813(i) a gassy mine liberates more than one million cubic feet
of methane.
31

As noted infra, for S&S determinations the evaluations of the reasonable likelihood of
an injury should be made assuming continued normal mining operations. See U.S. Steel Mining
Co., 6 FMSHRC at 1836. Further, the determination of S&S must not be based on the facts
existing at the time of the citation issued but also in the context of continued mining operations
without any assumptions as to abatement. Secretary of Labor v. U.S. Steel Company, Inc., 6
FMSHRC 1573, 1574 (July 1984). Thus, it cannot be inferred that the violative condition will
cease. Secretary of Labor v. Gatliff Coal Company, 15 FMSHRC 1982, 1986 (Dec. 1992).

35 FMSHRC Page 1759

misaligned belt, impacted and damaged rollers, the possibility of a methane release in the subject
gassy mine were all part of the confluence of factors justifying an S&S designation.
Further, at hearing Edwards also gave unrebutted testimony that the subject area had a
20.8% oxygen content which was sufficient for creation of the third part of the “fire triangle.” In
Highland Mining Company, supra and Clinchfield Coal Co., supra, ALJs Rae and Barbour
respectively addressed similar fact patterns where accumulations created a reasonably likelihood
of fire or explosion so as to satisfy Mathies’ third element. (see Highland Mining at 15-16 and
Clinchfield at 241-242).
In Highland Mining, ALJ Rae found that rollers turning in a quantity of recently spilled
coal posed a hazard of fire. Rae rejected the mine operator’s position that evidence suggesting
that the spill was recent or that the coal was wet vitiated the third element of Mathies. (See
Highland Mining at 14-16).
In Clinchfield, ALJ Barbour noted that there were locations where rollers were turning in
the accumulations, places where stuck or misaligned rollers caused the belt to rub against the belt
structure, portions of the accumulations that ranged from damp to wet, places where the belt was
rubbing in the damp to wet accumulations and float coal dust laying on the belt structure. Id. ALJ
Barbour specifically found that the belt rubbing against the belt structure produced friction,
which generates heat, and was a reasonably likely ignition source. Id. ALJ Barbour explained:
Further, while many of the accumulations ranged from damp to wet, there were
places where the belt was rubbing in the damp to wet accumulations, which
meant that heat was being produced and therefore the accumulations were
drying. This too meant that as mining continued, it was reasonably likely that
even some of the damp to wet accumulations could have ignited.
Finally, there was the highly explosive float coal dust that lay on the belt
structure from the portal to the Y… As mining continued, the places where the
belt was malfunctioning could have generated heat sufficient to touch off an
ignition. As [the MSHA Inspector] noted, “It only takes one frictional source to
ignite coal dust” Once there was an ignition, the float coal dust could have
propagated an explosion along the beltline.
Id. (see also Secretary’s Post-Hearing Brief at p. 12-14).
The ALJ has considered the nature and the extent of the accumulations, the oxygen
levels, the fact that the subject mine was gassy, and the multiple ignition sources. A conclusion
that a belt fire was reasonably likely to occur under continued normal mining operations is
persuasively supported by the record. In light of such, the ALJ is further persuaded by the
arguments advanced by the Secretary (see inter alia Secretary’s Post-Hearing Brief at p. 13) that
even if he were required to prove that the violation itself was reasonably likely to lead to injury,
Mathies third element has been established.

35 FMSHRC Page 1760

D. The record clearly established that the fourth element of Mathies is satisfied
Under Mathies, the fourth and final element that the Secretary must establish is that there
is “a reasonable likelihood that the injury in question will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC at 1574. Smoke inhalation and
burns sustained in a mine fire or explosion would inarguably be considered serious injuries. (See
Tr. 58-59). The ALJ agrees that at least one person, as found in the order, would suffer such
injuries. (See GX-6 and Tr. 64). Thus, the Secretary has carried his burden as to all of the
elements of Mathies as to Order No. 8030970.
For reasons set forth within, the ALJ affirms the Order as written as to the gravity found
by Edwards.
E. Respondent’s violation constituted an unwarrantable failure to comply with §75.400
In a decision issued on February 1, 2013, the Commission recently addressed the specific
question of when combustible coal accumulations in violation of 30 C.F.R. §75.400 constituted
an unwarrantable failure on the part of the operator to comply with mandatory health and safety
standards. (See Secretary of Labor v. Manalapan Mining Company, Inc., 35 FMSHRC__, slip
op., (February 2, 2013), 2013 WL 754106).
In Manalapan, the Commission reviewed the factors to be evaluated in determining
unwarrantable failure:
In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission
determined that unwarrantable failure is aggravated conduct constituting more
than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by
such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or
a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA,
52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure
test).
Whether conduct is “aggravated” in the context of unwarrantable failure is
determined by looking at all the facts and circumstances of each case to see if any
aggravating factors exist, including (1) the extent of the violative condition, (2)
the length of time that the violative condition existed, (3) whether the violation
posed a high degree of danger, (4) whether the violation was obvious, (5) the
operator’s knowledge of the existence of the violation, (6) the operator’s efforts in
abating the violative condition, and (7) whether the operator had been placed on
notice that greater efforts were necessary for compliance. See IO Coal Co., 31
FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC
790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999).
These seven factors need to be viewed in the context of the factual circumstances
of a particular case, and some factors may be irrelevant to a particular factual
scenario. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).

35 FMSHRC Page 1761

Nevertheless, all of the relevant facts and circumstances of each case must be
examined to determine if an operator’s conduct is aggravated, or whether
mitigating circumstances exist. Id.; IO Coal, 31 FMSHRC at 1351.
Id. at 5.
Considering each of these factors seriatim, the ALJ finds that Respondent’s conduct
constituted an unwarrantable failure to comply with §75.400.
As to the extent of violation factor, as discussed supra, Edwards’ description of the cited
coal accumulations was credible as to the extensive nature of such, being present over 2000 feet
of No. 8 Beltline. Given the extent of the accumulations, it was quite apparent to Edwards that
the violative condition had existed over a significant length of time. Respondent’s own pre-shift
examination report, performed hours before Edward’s inspection, noted that the area where
Edwards found the violations – crosscuts 8-15 to 8-36 – needed swept. (GX-8; Tr. 70-71, 142144). Such extensive accumulations – taking many miners over 9 hours to shovel – would very
likely have taken place over a long period. See Windsor Coal Co., 21 FMSHRC 997, 1001-1004
(Sept. 1999) (extensive accumulations that existed for longer than one shift warranted an
unwarrantable failure finding).
As to whether the violations posed a high degree of danger, the ALJ has carefully
considered the evidence presented by Respondent that various areas along the No. 8 Beltline
were damp, wet, muddy, had been rock dusted, that there was a working CO System present on
the belt, that there were water sprays, that the belt was constructed from fire resistant material,
and that the methane readings taken during the examination were 0%. (See inter alia Tr. 166169; see also Respondent Post-Hearing Brief at p. 9). The ALJ grants that such factors might
arguably be considered mitigating so as to diminish the degree of danger posed by the violative
conditions. However, as discussed supra, just as such factors do not preclude an S&S
designation, the ALJ finds that a diminished degree of danger does not vitiate a finding of
unwarrantable failure.
As noted supra, the ALJ gave only partial credence to the testimony presented by
Respondent. Edwards credibly disputed the extent of wetness and/or rock dusting in the areas of
the beltline that he actually cited. Further, Edwards persuasively testified that a CO monitor will
only alarm when there is already a fire, not where there is a danger of fire. (Tr. 167). In
addition, water sprays were primarily designed for dust suspensions, not fire suppression. (Tr.
168). Furthermore, the fact that the belt was made of fire-resistant material did not vitiate the
hazard of combustible accumulations. (Tr. 167). Given the above-cited case law holding that
the ALJ must assume continuing mining operations and possible drying out of combustible
materials, a diminished degree of danger at the time of actual inspection would not necessarily
preclude an unwarrantable failure finding.
The ALJ is also mindful of the Commission’s admonition in Manalapan that while the
factor of dangerousness may be so severe that, by itself, it warrants of finding an unwarrantable
failure, the absence of significant danger does not necessarily preclude a finding of
unwarrantable failure. Manalapan at 6. Pursuant to the Commission’s holding, the undersigned

35 FMSHRC Page 1762

has “considered the evidence relating to the danger factor, determined whether it was an
aggravating or mitigating circumstance, and weighed it against the other relevant factors to
determine whether the operator’s conduct under the circumstances amounted to an unwarrantable
failure.” Id.
In weighing the other relevant aggravating factors, discussed herein, even if the degree of
danger posed by the accumulations had been somewhat diminished, the ALJ finds that
Respondent’s conduct was nonetheless impermissibly reckless.
As to whether the “violation was obvious,” the ALJ again notes Edwards’ description of
the violative area as “the worst belt line” he had ever seen. (Tr. 50, 127). Even if Edwards had
used exaggerated phraseology in describing the violative conditions existent, it is nonetheless
clear from his testified to observations that the impermissible accumulations would have been
obvious to a reasonably prudent person, familiar with the mining industry and the protective
purpose of §75.400. Given the extent of the violative condition and the length of time it must
have existed, the ALJ finds that the operator knew or should have known of its existence.
As to Respondent’s efforts in abating the violative condition and as to whether
Respondent had been placed on notice that greater efforts were necessary for compliance, the
ALJ essentially adopts the arguments advanced by the Secretary regarding such. (See also
Secretary’s Post-Hearing Brief at p. 15-16).
Inter alia, Respondent had been issued 137 violations of 30 C.F.R. 75.400 for
impermissible accumulation of combustible material at Shoemaker miner in the two years prior
to the issuance of this Order. (GX-4, 5 p. 61-71; and Tr. 69). Although not knowing the specific
number of §75.400 violations prior to his inspection, Edwards, based upon his review of the
mine file, knew that Shoemaker had a significant violation history. (Tr. 165-166) (see also case
law cited by Secretary holding that repeated similar violations may be relevant to determining
unwarrantable failure. Such prior violations serve to put an operator on notice that greater efforts
are necessary for compliance with the pertinent safety standard violated. San Juan Coal Co., 29
FMSHRC 125, 131 (Mar. 2007).32 Further, during his previous quarterly inspection, Edwards
specifically discussed with mine management their need to address the problem of impermissible
accumulations. (Tr. 70).
In view of the foregoing the ALJ holds that a finding of unwarrantable failure is
warranted.

32

See also Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001) (finding
unwarrantable failure indicated when the operator was cited 88 times during the prior two years
period for §75.400 violations).

35 FMSHRC Page 1763

F. The civil penalty of $4,000.00 is affirmed
Section 110(i) of the Mine Act establishes the six criteria to be considered in determining
the appropriateness of a civil penalty.33
Further, the Commission has outlined its authority for assessing civil penalties in
Douglas R. Rushford Trucking, stating “the principles governing the Commission’s authority to
assess civil penalties de novo for violations of the Mine Act are well established.” 22 FMSHRC
598, 600 (May 2000). While the Secretary’s system for points in Part 100 of 30 C.F.R. provides
a recommended penalty, the ultimate assessment of the penalty is solely within the purview of
the Commission. Id. Thus, a Commission Judge is not bound by the penalty recommended by
the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). The de novo
assessment of civil penalties does not require each of the penalty assessment criteria to be given
equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
After reviewing all of the relevant facts and weighing the 110(i) factors applicable to
such, the ALJ finds no reasons to depart upward or downward from the original $4,000.00
amount proposed by the Secretary.
II. Order No. 8033057
A. The Secretary has also sustained his burden of establishing that §75.400 was violated
as set forth in Order No. 8033057.
As described supra, on October 26, 2010 Inspector James Gropp issued Order No.
8033057 to Respondent for violation of §75.400. (GX-10).
During his EO1 quarterly inspection of Shoemaker (Tr. 180), Gropp34 – like Edwards on
October 14, 2010 – found extensive impermissible accumulations of combustible materials.35
Gropp measured accumulations of coal created when the mining machine cut into the rib while
being maneuvered. (Tr. 190-191). Gropp measured each accumulation up to 25 feet with a tape
measure and stepped off larger accumulations, using each of his steps for one yard. (Tr. 191192, 198). Like Edwards, Gropp documented his observations with contemporaneous notes.
33

“[T]he Commission shall consider the operator’s history of previous violations, the
appropriateness of such penalty to the size of the business of the operator charged, whether the
operator was negligent, the effect on the operator’s ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.” 30 U.S.C. §820(i).
34

Gropp was accompanied by UMWA Safety Committee representative, John Miller,
Respondent representative, Foreman trainee Craig Norton, and Safety Inspector, Gary Rose. (Tr.
183).
35

See summary of Gropp’s testimony supra for full description of impermissible
accumulations.

35 FMSHRC Page 1764

(Tr. 186). (Respondent clarified that Gropp recorded his observations underground and filled in
his administrative details and summary questions/answers aboveground. Tr. 238-239).
At the time of the inspection, Respondent was actively mining on the right side face and
the left side face. Gropp did not observe anyone preparing to clean or actually cleaning
accumulations. (Tr. 280- 281).
The first impermissible accumulation that Gropp cited was located just inby the section
tail piece. (see impermissible accumulation No. 6 on Order No. 8033057, GX-10). The
accumulation had been created by the miner (machine) gouging into the right rib. (Tr. 190-191).
The accumulation measured 30 feet long, 12 to 24 inches deep and 2.5 to 6 feet wide. (Tr. 190).
While such gouging accumulations are not unusual when the miner is being moved into a
new entry, these accumulations had not been scooped or loaded into a shuttle car to be put on a
belt and removed from the mine. (Tr. 191-192). Gropp testified that the impermissible
accumulations had existed for at least one day prior to his investigation. He had been informed
by the right side day shift foreman, Mr. Yorty, that the miner had been moved around the corner
during the day shift the day before the investigation. (Tr. 215, 257-258).
The next accumulation found by Gropp was the No. 8 entry and cited as No. 7 on the
Order and map. (GX-10, 15; Tr. 192-193). This accumulation was on the entire width of the
entry – 6 to 15 ½ feet – and measured 12 to 24 inches deep. (Tr. 193). Gropp observed that
Respondent had moved a fan on top of the accumulations along with the fan cables. (Tr. 193).
A loader could not, given such, be brought in to clean up the accumulations (Tr. 192-193). In
order to determine how long the cited accumulations had existed prior to his inspection, Gropp
calculated Respondent’s rate of mining, using inter alia, beeper machine shifts for the 30 shifts
prior to his inspection. (Tr. 211-212). Averaging the numbers, Gropp concluded that
Respondent mined an average of 36 feet per shift on the left side and 33 feet on the right side.
(Tr. 212). Based upon his calculation, Gropp concluded that the impermissible accumulations,
as cited at No. 7 on the Order and Map, had existed for at least one to two shifts. 36 (Tr. 215216).
Gropp next described another §75.400 violation at the crosscut of 4 to 3, No. 4 in the
Order: the “whole crosscut was completely accumulated in coal.” (Tr. 193-194). Gropp had to
walk over the accumulations which measured 140 feet long, 8-12 inches deep, and the entire
width of the entry (15 ½ feet wide). (GX-10, 15; Tr. 194). Gropp opined that a miner cable,
loader cable, and water line hung from the mine roof, had likely shoved coal from the top of a
shuttle car as it had driven underneath. (Tr. 202-203, 216). Gropp determined that this
accumulation had also existed for at least one to two shifts prior to his inspection and would not
have occurred since the last pre-shift examination. (Tr. 213).
Gropp further testified regarding the impermissible accumulation cited as No. 3 on the
Order and map. (GX-10, 15, Tr. 194-195). This accumulation was also extensive, measuring 15
36

See also Secretary’s Post-Hearing Brief argument regarding Respondent’s failure to
challenge Gropp’s calculations at p. 20-21; see also Tr. 215-216.

35 FMSHRC Page 1765

½ feet in width, four to 18 inches in depth, and 12 feet long. (Tr. 195). Gropp concluded that
this accumulation had resulted from holing through, both inby the crosscut, at the face, and outby
the crosscut. (Tr. 195).
Gropp indicated that Respondent had also failed to clean up this accumulation and had
continued mining. (Tr. 195). Gropp concluded that this accumulation had existed for at least
one to three days prior to his inspection. (Tr. 213). Gropp further opined that the accumulation
could not have occurred since the last pre-shift accumulation. Respondent had not yet started
mining on the left side during the inspection shift. Given Respondent’s mining pattern, this
accumulation had to occur prior to the No. 2 accumulation found by Gropp. (Tr. 213).
With respect to the violation cited No. 2 on the Order, Gropp measured the accumulations
as 15 ½ feet wide, four to nine inches deep, and 10 feet long. This accumulation, which was
located near the No. 1 entry of the 8 South Section, was the result of Respondent holing through
from a crosscut. (GX-10, 15; Tr. 195). Gropp against determined that the accumulation had
existed at least 1 to 2 days prior to his inspection, and , because Respondent had not yet started
mining on the left side, could not have occurred since the last pre-shift examination. (Tr. 212213).
In reference to the cited accumulation, identified as No. 1 on the Order, Gropp
determined that Respondent recently finished mining this entry and pulled the miner out without
ever having pushed the coal back into the face or loading it out. (GX-10, 15, Tr. 196). The
loader that would have moved this accumulation had been switched out for maintenance. (Tr.
196). Gropp measured the accumulation as being four to 15 ½ feet wide, four to 15 inches deep,
going from the face where Respondent finished mining outby 80 feet in length. (Tr. 196).
Gropp further observed a bolter operating in the face of the 15 AO entry on top of the
accumulation at the time of the inspection. (Tr. 200). Gropp determined that this accumulation
had also existed for at least one to two shifts prior to his inspection. (Tr. 211).
The final impermissible accumulation cited in the Order, No. 5, was outby the face of No.
4 where Respondent had the loader “piggy-backed” (dumped coal onto the ground to move it
from one shuttle car to another because each shuttle has a trailing cable that can only travel 1,000
feet) (GX-10, 15; Tr. 197). This accumulation measured 60 feet long, 14 feet wide and 12 inches
deep (Tr. 197). This accumulation was also likely the result of cables shaving coal from the top
of a shuttle car (Tr. 216), the coal then being spread out by the drag bar on the bottom of the
shuttle car (Tr. 197). Gropp determined that this accumulation could have existed for up to three
days (Tr. 214-215). In any event, this accumulation could not in any way have occurred since the
last pre-shift examination, because Respondent had not yet started mining on the left side during
the inspection shift. (Tr. 214).
At the time of his inspection, Gropp observed that all of the cited accumulations were
dry. (Tr. 278). He further testified that each accumulation consisted of loose coal, loose fine and
ground up coal, and coal dust including float coal dust (Tr. 199). Gropp conceded that no one
present had sieves to measure particle sizes. (Tr. 200). However, regardless of particle sizes, all
of the accumulations were combustible and had been left by Respondent. (Tr. 203-205). Gropp
further noted that the coal in the cited accumulations was black in color in that the coal was just

35 FMSHRC Page 1766

freshly produced from the mining process and had never been rocked dusted. (Tr. 202). Gropp
did not believe the accumulations were sloughage: sloughage is usually on the side of the rib; the
cited accumulations were the entire entry width from rib to rib.37 (Tr. 202).
Gropp testified that the accumulations in Order No. 8033057 were extensive and obvious:
the accumulations were from rib to rib, measuring, in total, 400 feet in length; much of these
accumulations were outby the face, an area where they should not have been. (Tr. 204). It
would not have been possible for the impermissible accumulations not to have been noticed. (Tr.
204). Respondent had utilized three shuttle cards, 2 loaders, and ten miners using shovels, to
abate the violations.
The undersigned found Respondent’s attempts at hearing to rebut Grupp’s testimony to
be less than persuasive. Gary Rose, the safety inspector at Shoemaker mine when Order No.
8033057 was issued, conceded that he had taken no contemporaneous notes during the
inspections nor had he taken any of his own measurements of the cited accumulations. He
conceded that it was difficult to remember specifics due to the lapse of time. (Tr. 304, 311).
Additionally, Rose admitted that he had no firsthand knowledge of how or when many
accumulations had been made. (Tr. 312). Further, Rose’s explanation for why Respondent had
not timely dealt with the accumulations was less than compelling. (See also Secretary’s PostHearing Brief at p. 24-25). For example, when asked why Respondent had not attempted hand
dusting accumulations, Rose answered: “I do not have any idea why they were not doing it at
that time.” (Tr. 306).
Respondent’s second witness, Brian Hough, also did not give persuasive evidence to
contradict or rebut Gropp’s testimony regarding the §75.400 violation. Hough also had taken no
contemporaneous notes, measurements, or photographs of the cited violations but was instead
relying on “mental notes.”38 (Tr. 349-350). Further, Hough testified that he had not seen any
accumulations made nor did he sample any accumulations to determine what they were made of.
(Tr. 351). It would be impossible for Hough to determine how long the accumulations had
existed. (Tr. 366-367). Hough admitted that, after the Order was issued, he had the miner
brought back in to clean up the cited accumulations. (Tr. 325).
The ALJ, hereby, incorporates his rationale supra, as to the applicable case law
supporting a finding of §75.400 herein without a full recitation thereof.
Gropp, like Edwards, was an experienced miner.39 While Gropp, like Edwards, had not
worked for MSHA for a prolonged period, Gropp had 20 years of experience in mining as well
37

In any case, Respondent admitted that rib sloughage constituted combustible material.
(Tr. 306-307).
38

The ALJ found the Secretary’s argument in his Brief at pages 25-26 persuasive as to
the limited probative value of Hough’s testimony.
39

see summary of Gropp’s background supra and summary of such in Secretary’s PostHearing Brief at 18, footnote 6.

35 FMSHRC Page 1767

as a B.S. in mining engineering. The ALJ found Gropp to be a credible and reliable historian as
to his descriptions of the violative conditions at Shoemaker and accorded substantial weight to
Gropp’s testimony. The ALJ found Gropp’s testimony to be more than sufficient to establish the
fact of violation of §75.400.
B. Respondent’s violation of §75.400 was Significant and Substantial in nature
The ALJ notes that much of the rationale and case law discussed supra as to Order No.
8030970 is equally applicable to the consideration of Order No. 8033057. The ALJ again
incorporates said rationale and case law citations without full recitation thereof herein.
The ALJ again finds that all of the Mathies elements are met. There was a violation of a
mandatory standard. A discrete safety hazard – a mine fire or explosion – was contributed to by
the violation. (Tr. 205). Gropp’s observation of extensive combustible accumulations at the
active 8 South continuous miner section was credibly described. These accumulations, just as
the accumulation described by Edwards, would provide a fuel source for fire or explosion. (Tr.
205-206).
Utilizing the Musser/Cumberland interpretation as to the third element of Mathies and
applying the rationale used above as to Order No 8030970, there was clearly a reasonable
likelihood that the discrete safety hazard contributed to would result in an injury. As testified to
by Gropp, a mine fire or explosion would be reasonably likely to result in smoke inhalation,
respiratory damage, and crushing internal injures. Such injuries would result in lost workdays or
restricted duty to at least the 10 miners Gropp actually observed near the cited accumulations: a
miner operator, two bolters, a utility man, and a loader operator on the right side and 2 bolter
operators and three miners hanging curtains on the left side. (Tr. 208-209, 273-274).
Considering the specific fact pattern established and applicable Commission jurisprudence
discussed infra, the ALJ finds that the Secretary has again carried his burden of proving Mathies
third element as to Order No. 8033057.
The ALJ further accepts the argument advanced by the Secretary that, given the extensive
combustible accumulations, oxygen level, and ignition sources testified to by Gropp, there was a
reasonably likelihood of a fire and/or explosion at the subject mine. (See Secretary’s PostHearing Brief at p. 27-29).
At the time Gropp issued Order No. 8033057, Shoemaker was a “gassy mine” on 5-day
spot inspection because of the high concentration of methane liberated and recorded during the
previous inspection quarter. (Tr. 206-207). Respondent did not dispute that Shoemaker liberates
more than a million cubic feet of methane a day. (Tr. 207). The cited accumulations were
located at the active working face; there could have been face ignitions. (Tr. 280). Equipment
and electrical cables were in and on the combustible accumulations (Tr. 200, 206-207, 261-263,
274-275). Shoemaker had, within the last month, been issued five citations for electrical cable
openings. (Tr. 207, 259-260, 279). Given that cables are regularly damaged during the mining

35 FMSHRC Page 1768

process, the Secretary established a reasonable likelihood of fire or exploration at Shoemaker
Mine. 40 (Tr. 208, 262).
The Secretary persuasively cited several ALJ decisions containing similar fact patterns
finding that an S&S violation of §75.400 was warranted. (see Secretary’s Post-Hearing Brief at
p. 28-29, including holdings in United States Steel Mining Company, Inc., 5 FMSHRC 1873
(Oct. 1983) (ALJ Broderick) and Youghiogheny and Ohio Coal Co., 8 FMSHRC 330 (Mar.
1986) (ALJ Maurer))
In United States Steel, given that the subject mine was gassy and on a 103(i) spot
inspection for methane, that face ignitions had occurred in the past, and that mobile mining
equipment operated in the cited areas, ALJ Broderick found S&S. 5 FMSHRC at 1875. In
Youghiogheny and Ohio Coal, considering inter alia, evidence of insufficient rock dusting, the
fact that the mine was gassy, and on the 103(i) spot inspection for methane, ALJ Maurer
concluded that S&S was warranted. 8 FMSHRC at 334.
In light of Gropp’s testimony regarding the extensiveness of accumulations, the
significant length of time they were allowed to exist, and the multiple ignition sources existent, a
conclusion that a fire or explosion was reasonably likely to occur under continued normal mining
operations is supported by the record and above-cited case law. Thus, even if the Secretary had
to prove the within §75.400 violation was reasonably likely to lead to injury, the third element of
Mathies for this order has been established.
It is essentially undisputed that the injuries expected to result from the hazard of a fire or
explosion would be of a reasonably serious nature. The fourth element of Mathies has also been
clearly established.
C. Respondent’s violation as set forth in Order No. 8033058 constituted an unwarrantable
failure
The same rationale and case law utilized by this Court as to Order No. 8030970 is
essentially applicable to this Order. The ALJ again incorporates such within without full
recitation.
Applying the Manalapan factors seriatim, the ALJ finds that Gropp credibly described
the extensive nature of the violative conditions. The impermissible coal accumulations had
existed for a significant length of time. Inter alia, the amount of time expended and the number
of individuals required to abate the condition is supportive of such.
The ALJ was not persuaded by the arguments advanced by Respondent in its brief that a
lesser degree of danger was posed by the cited conditions. (see Respondent’s Post-Hearing Brief
at p. 43-49). However, as noted supra, even if the ALJ were to find that Respondent’s cited
factors diminished the degree of danger presented by the §75.400 violations, such a diminished
40

Trailing cables, even if intact at the time of the inspection, have been found to be
ignition sources for coal accumulations. Utah Power & Light, 12 FMSHRC 965, 971 (1990).

35 FMSHRC Page 1769

degree of danger would not, under Manalapan, necessarily vitiate a finding of unwarrantable
failure.
There are other relevant aggravating circumstances to justify an unwarrantable failure
designation, even if the degree of danger was somewhat diminished. Respondent has clearly
been placed on notice that greater efforts were necessary to prevent §75.400 violations from
occurring. Respondent had been issued 139 violations of §75.400 for impermissible
accumulations of combustible materials at the Shoemaker mine in the 2 years prior to the
issuances of this Order. (GX-4, 5, page 61-71, Tr. 267) (This number included unwarrantable
failure Order No. 8030970 discussed infra).41
As to Respondent’s efforts to abate the violative condition prior to issuance of the Order,
Respondent admitted it was dilatory in such: Respondent essentially conceded that it chose not
to clean up accumulations because the scoop and loader were broken and moving the miner or
hand dusting would have taken too long. As noted by the Secretary, Respondent’s inactions
appeared to violate its own clean up plan. (Secretary’s Post-Hearing Brief at p. 30; Tr. 218, 221223).
Finally, as properly pointed out by the Secretary, Respondent’s conduct in essentially
ignoring the impermissible accumulations was especially egregious given the high traffic in the
cited areas with numerous individuals walking on and around the combustible materials. (See
Secretary’s Post-Hearing Brief at p. 30; Tr. 223). Therefore, the ALJ is constrained to conclude
that the instant violation was the result of Respondent’s unwarrantable failure and high
negligence.
D. The civil penalty of $14,743.00 is affirmed
After carefully considering all of the criteria for assessing a civil penalty as set forth at 30
U.S.C. §820(i), including, inter alia, the fact that Respondent is a larger operator whose ability to
stay in business will not be affected by payment of the civil penalty, the ALJ affirms the
Secretary’s original assessed penalty of $14,743.00.

41

The ALJ notes Respondent’s argument that the Secretary has failed to present a
sufficient “breakdown” of the previous 139 citation that had been issued. (Respondent’s PostHearing Brief at p. 33). Respondent cited no case or statutory law for the proposition that such a
failure would preclude an S&S or unwarrantable failure finding. Indeed, our Commission case
law indicates that previous violations cited, not just those involving the same facts, constitute an
aggravating factor. (see inter alia San Juan Coal Co., 29 FMSHRC at 131 (past violations in a
different area of the mine may provide an operator with sufficient awareness of an accumulation
problem to be considered for unwarrantable failure).

35 FMSHRC Page 1770

III. Citation No. 8033058
A. Respondent violated §75.360(b)(3) as set forth in Citation No 8033058
It is black letter Commission case law that pre-shift examinations are of fundamental
importance in assuring a safe working environment for miners. (See Buck Creek Coal Co., Inc.,
17 FMSHRC 8, 15 (Jan. 1995); Enlow Fork Mining Co., 19 FMSHRC at 15).
On October 27, 2010 Gropp, after consulting his supervisor, issued Citation No.
8033058, determining that there were inadequate pre-shift examinations conducted on the
midnight shift of October 26, 2010 preceding the oncoming day shift on the 8 South continuous
miner section, left side MMU 083 and right side MMU 016 (GX-12). Gropp’s citation was
essentially based on Respondent’s pre-shift examiners’ failure to note and report the hazardous
accumulations described supra and set forth in Order No. 8033057. (GX-12). Despite the
obvious and extensive accumulations testified to by Gropp, the pre-shift examiners for the 8
South Right section and 8 South Left section recorded no observations of dangerous or
hazardous conditions. (GX-14; Tr. 231).
Even accepting Respondent’s argument that Accumulation Nos. 1, 4, and 5 may have
occurred between the time the 8 South right pre-shift examinations had occurred and the time of
the inspection – the ALJ finds that even lesser accumulations would have constituted a hazardous
condition where the pre-shift examinations were conducted. In order to have given proper
warning to miners, all 7 hazardous accumulations should have been observed, noted, and
recorded on the pre-shift examinations. (Tr. 211-215, 225).
Inter alia, the ALJ notes the following: accumulation No. 6 had existed for at least one
day, when Respondent moved the miner to a new entry. (Tr. 215, 257-258); given that no
mining had taken place on the left side between the pre-shift examination and the inspection,
accumulation Nos. 2, 3, 6, and 7 would have been present on the 8 South Left section at the time
of the pre-shift examination. (Tr. 211-215, 225). Moreover, much of Respondent’s hearing
testimony was not presented to show that the accumulations had not existed but to explain why
such had not been timely abated prior to inspection. (See also Secretary’s Post-Hearing Brief at
p. 33).
A review of the testimony and hearing record reveals clear and convincing evidence,
unrebutted by Respondent, that there were extensive impermissible accumulation existent at the
time of the pre-shift examinations and that such were not reported in violation of §75.360(b)(3).
B. Respondent’s violation was Significant and Substantial
The ALJ incorporates his review of the applicable standards under Mathies to establish
Respondent’s violation was significant and substantial. The Secretary has persuasively carried
its burden of proving the fact of a §75.360(b)(3) violation and that discrete safety hazard (mine
fire or explosion) was contributed to by that violation. (Tr. 232, 274-275).

35 FMSHRC Page 1771

The third Mathies element is met pursuant to the Musser/Cumberland interpretations. It
is readily apparent that the hazard of a mine fire or explosion at the cited areas in Shoemaker
mine, where 10 miners were working, would be reasonably likely to result in an injury. For
reasons already discussed supra the ALJ is persuaded that, even if the Secretary were required to
show that the violation was reasonably likely to lead to injury, given the factual situation existent
at Shoemaker Mine, the Secretary could carry this even more onerous burden. (see also
Secretary’s Post-Hearing Brief at p. 34).
The fourth prong of Mathies has also been established. As discussed supra, should there
be a fire or explosion, the injuries that would be suffered by miners could be expected to be of a
reasonably serious nature. Here, at least 10 miners working the cited area would be exposed to
such serious injuries as smoke inhalation with associated respiratory damage and internal injuries
from explosion. (Tr. 232, 274-275).
C. Respondent was highly negligent in failing to record and report the impermissible
accumulations found by Gropp
§100.3(d) provides that, under the Mine Act, an operator is held to a high standard of
care. Inter alia, a mine operator is required to be on the alert for conditions and practices that
affect the safety of miners and to take steps necessary to prevent hazardous conditions. The preshift examiners’ failure to report the hazardous conditions existent at Shoemaker Mine was
found by Gropp to have constituted a grossly negligent departure from the standard of care
imposed by the Mine Act.
Given that the required examinations were “of fundamental importance in assuring a safe
work environment” (See Buck Coal Co., supra) – the ALJ finds that Respondent’s pre-shift
examiners were clearly derelict in their duty to report hazardous conditions and agrees with the
high degree of negligence found by the inspector.
The Secretary has ably set forth a summary of the facts established at hearing that would
support a high negligence assessment. (see Secretary’s Post-Hearing Brief at p. 35-36).
Notwithstanding Respondent’s arguments otherwise, the pre-shift examinations were not
conducted in a fashion consistent with what a reasonably prudent person, familiar with the
mining industry and protective purposes of §75.400 and §75.360(b)(3), would have done. The
pre-examination reports failed to fulfill the primary goal of giving fair and adequate notice of
potential hazards to miners. The above-cited record compellingly establishes the high degree of
negligence found by Gropp. Both of Respondent’s examiners traveled the same route as Gropp.
(Tr. 233, 275-276). Many of Respondent’s managers and employees passed through the cited
area. (Tr. 233-234). Respondent violated its own clean up program with regard to the
accumulations. (Tr. 234).
Respondent was clearly put on notice that greater efforts were necessary to ensure
adequate pre-shifts were being performed: Respondent had received 17 violations of §75.360 in
the two years prior to the issuance of the within citation (GX-5 at 55-52). Respondent had been
issued an unwarrantable failure order for failing to report hazardous coal accumulations on
October 14, 2010 pre-shift examination (GX-9). Respondent had paid the penalty for this order

35 FMSHRC Page 1772

(GX-4). Respondent had been issued 139 violations of 30 C.F.R. §75.400 for impermissible
accumulations of combustible material at Shoemaker Mine in the two years prior to the issuance
of Order No. 8033057 (GX-5 at 61-71, Tr. 223). Respondent had been issued an unwarrantable
failure order on October 14, 2010 (GX-6).
Like the Secretary, the ALJ was troubled by Respondent’s seeming policy and practice
not to record or correct pre-shift hazards so as to avoid down-time in production. The ALJ
essentially adopts the Secretary’s rationale regarding such as further grounds for a finding of
high negligence. (see Secretary’s Post-Hearing Brief at p. 36-37).
The ALJ affirms the assessed civil penalty of $6,996.00.
ORDER
It is hereby ORDERED that Citation No. 8033058 and Order Nos. 8030970 and
8033057 are AFFIRMED.
Respondent is ORDERED to pay civil penalties in the total amount of $25,739.00 within
30 days of the date of this decision.42

/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge
Distribution:
Rebecca J. Oblak, Esq., Bowles Rice, 7000 Hampton Center, Suite K, Morgantown, WV 26505
Andrea J. Appel, Esq. and Elaine M. Abdoveis, Esq., U.S. Department of Labor, Office of the
Regional Solicitor, Region III, 170 S. Independence Mall West, Suite 630E, The Curtis Center,
Philadelphia, PA 19106

42

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

35 FMSHRC Page 1773

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

June 13, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.

AMERICAN COAL COMPANY,
Respondent

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

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2011-183
A.C. No. 11-02752-236894-01
Docket No. LAKE 2011-184
A.C. No. 11-02752-236894-02
Docket No. LAKE 2011-242
A.C. No. 11-02752-239778-01
Mine: The American Coal Co. New Era

DECISION
Appearances: Bryan R. Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, on behalf of the Secretary of Labor;
Jason W. Hardin, Esq., Fabian & Clendenin, Salt Lake City, Utah, for American
Coal Company.
Before:

Judge Zielinski

These cases are before me on Petitions for Assessment of Penalty filed by the Secretary
of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C.
§ 815(d). The seven petitions originally set for hearing alleged that The American Coal
Company (“AmCoal”) is liable for 141 violations of the Secretary’s Mandatory Safety Standards
for Underground Coal Mines,1 and proposed the imposition of civil penalties in the total amount
of $461,580.00. Prior to the hearing, the parties settled 130 of the violations for which a total of
$260,169.00 in penalties had been assessed. The settlement included 53 of the 56 violations in
LAKE 2011-183, and all violations in LAKE 2010-835, LAKE 2011-243, LAKE 2011-590 and
LAKE 2011-702. A Decision Approving Partial Settlement ordering AmCoal to pay penalties in
the amount of $177,414.00 was entered this date.

1

30 C.F.R. Part 75.

35 FMSHRC Page 1774

A hearing was held in Evansville, Indiana on the remaining 11 violations, and the parties
filed briefs after receipt of the transcript.2 In the course of the hearing, the Secretary vacated
Citation No. 8423569 in Docket No. LAKE 2011-183. Tr. II 82. Remaining at issue are 10
violations for which the Secretary has proposed penalties in the amount of $187,811.00. For the
reasons that follow, I find that AmCoal committed nine of the violations, and impose civil
penalties in the total amount of $18,500.00.
Findings of Fact - Conclusions of Law
At all times relevant to these proceedings, AmCoal operated the Galatia Mine, an
extremely large underground longwall coal mine, located in Saline County, Illinois.3
Underground coal mines must be inspected by the Secretary’s Mine Safety and Health
Administration (“MSHA”) four times each year.4 The citations litigated by the parties were
issued during inspections of the mine in July, August and September of 2010.
Citation No. 8424040 (LAKE 2011-184)
Citation No. 8424040 was issued by MSHA inspector Wendell Crick5 at 10:45 a.m. on
August 30, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R.

The hearing commenced on November 27 and ended on November 29, 2012. The
transcripts for the three hearing days are referred to as “Tr. I”, “Tr. II” and “Tr. III” respectively.
2

On September 24, 2010, the Galatia Mine was split into two separate mines. The mine
identification number assigned by MSHA, 11-02752, was retained by the original mine and
preparation plant, which was renamed “The American Coal Company New Era Mine.” The
mine that was split off, the “New Future Mine,” was issued Mine ID No. 11-03232. All of the
violations in these proceedings were issued under the original identification number.
3

4

30 U.S.C. § 113(a).

Crick has been an MSHA surface mine inspector since August of 2007, has undergone
initial and refresher training, and has received specialized training as an unlimited surface
instructor, and in the areas of dust certification, maintenance and calibration of dust machines,
and impoundment examination. He inspected the Galatia mine for 3 years while assigned to the
Benton, Illinois field office. Prior to joining MSHA, he worked in the mining industry for 22
years, and held certifications from the State of Kentucky. He is a volunteer fireman, and has
been an instructor in the use of CPR and first aid. Tr. I 13-16.
5

35 FMSHRC Page 1775

§ 75.1712-3(a),6 which requires that “bathing facilities, change rooms, and sanitary toilet
facilities shall be provided with adequate light, heat, and ventilation so as to maintain a
comfortable air temperature and to minimize the accumulation of moisture and odors, and such
facilities shall be maintained in a clean and sanitary condition.” The violation was described in
the “Condition and Practice” section of the citation as follows:
The bath house facility located at the plant area has not been maintained in a
sanitary condition. Upon inspection, mold, dirt, and garbage was found on the
floors and walls of the facility. The two shower rooms have mold on the floors
and walls. One of these shower rooms is used by management personnel on a
daily basis.
Ex. G-16.
Crick determined that the violation was reasonably likely to result in a lost workdays or
restricted duty injury, that it was significant and substantial (“S&S”), that 10 persons were
affected, and that the operator’s negligence was high. A regularly assessed civil penalty in the
amount of $15,570.00, was proposed for this violation.
The Violation
Crick was conducting a regular quarterly inspection of the surface areas of the Galatia
mine, when he visited the building housing the bathhouse, locker room, and lunch room facilities
for the preparation plant. He arrived at the bathhouse shortly after 10:00 a.m., and was
accompanied by Michael Smith, an AmCoal safety representative. The building in question
contained a lunchroom, a large shower room used by rank and file miners, a locker room,
offices, and a smaller shower room across a hallway used by foremen and other supervisory
personnel. The facilities were used by 20-30 miners, or more, depending on the number working
a particular shift. Miners whose shift was ending would enter the facility, discard their soiled
clothing, take showers, don clean clothing and leave. There was a boot wash station near the
entrance that men were encouraged, but not compelled, to use. Presumably, miners also ate their
lunches in the lunch room. Foremen moved through the area, providing work assignments to
miners starting their shifts, and, occasionally, used the larger shower room.
Crick observed a number of conditions that led him to conclude that the facility was not
being kept in a clean and sanitary condition. Dirt, clay, gravel and black coal residue, had been
tracked into the facility, covering a large portion of the floor in the locker room and extending
into the lunch room. Tr. I 27. Crick observed boot prints in the dirt on the floor leading into the
locker room, but did not observe footprints in the shower area. Tr. I 28. The floor in and near
Crick originally cited 30 C.F.R. § 71.400, a regulation that applies to surface mines, as
the standard violated. At the hearing, the Secretary moved to amend the citation to allege a
violation of section 75.1712-3(a), which is the comparable provision applicable to surface areas
of underground coal mines. The unopposed motion was granted. Tr. I 12-13.
6

35 FMSHRC Page 1776

the large shower room was washed clean. He conceded that some tracking of dirt could be
expected, but not to the extent of covering the floor. Tr. I 59. Trash and garbage overflowed
several containers in the lunch and locker rooms, and had been pushed to the side of walkways.
Crick also observed a black substance, that he believed was mold, on the walls and floor
of the main shower room.7 The shower room was fairly large, approximately 15 x 20 feet, with
multiple shower heads mounted on towers rising from the painted concrete floor. The walls
were faced with white ceramic tile that extended down close to the floor. There was a course of
concrete block between the tile and the floor. The black substance was on the walls, in the grout
between the tile, and on the more porous concrete block and mortar around the base of the walls.
Tr. I 28, 82. Although Crick did not test the substance, he believed that it was mold based upon
training films he had seen; he stated “I know what mold is.” Tr. I 47. Crick saw no evidence
that cleaning had been done in the recent past. Tr. I 35.
Smith, who had retired prior to the hearing, confirmed the presence of the black
substance, but disputed that it was mold, noting that miners ending their shift had black coal dust
on their clothing and faces, and there was black particulate matter on the floor of the shower
room, partially washed down into the drains. Tr. I 73-75. Smith also believed that the dirt on
the floor was nothing more than what would normally be expected after a large group of dirty
miners cleaned up after a shift. He explained that there were three locker/shower facilities at the
Galatia mine, and that each was cleaned after every shift change. The larger facility, at the New
Era portal, was cleaned first, followed by smaller facilities, including the prep plant. Since it
was just after 10:00 a.m., the prep plant facility had not yet been cleaned after the shift change
that had occurred 2-3 hours earlier, which largely explained the condition of the facility.
Crick was very familiar with the Galatia mine, including the prep plant, having inspected
it over a three-year period beginning in August 2007. Tr. I 16, 29. He had warned AmCoal
officials about conditions in the bath facilities on prior occasions. Tr. I 30, 51. Because of the
extent and nature of the conditions, he believed that they must have occurred over “a
considerable amount of time;” mold “just doesn’t happen overnight.” Tr. I 31, 45. I find that the
conditions represented a build-up of dirt and trash that occurred over more than one shift change.
I also find, based on Crick’s experience and training, that the black substance on the walls in the
shower room was mold, and that the bathing facilities and change room were not maintained in a
clean and sanitary condition. The standard was violated.

Crick testified that the mold was in the main shower room, not in the smaller shower
room used by the management personnel. However, the citation and his notes refer to both
rooms, and he concluded that there must have been some mold in the smaller room. Tr. I 68-69.
7

35 FMSHRC Page 1777

Significant & Substantial
The Commission reviewed and reaffirmed the familiar Mathies8 framework for
determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65
(Oct. 2011):
The S&S terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if,
based on the particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822,
825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be
of a reasonably serious nature.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d
133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103
(5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable
likelihood of injury should be made assuming continued normal mining
operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The
Commission has emphasized that it is the contribution of a violation to the cause
and effect of a hazard that must be significant and substantial. U.S. Steel Mining
Co., 6 FMSHRC 1834, 1836 (Aug. 1984).
....
....
The Commission recently discussed the third element of the Mathies test
in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81
(Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine
map). The Commission held that the “test under the third element is whether
there is a reasonable likelihood that the hazard contributed to by the violation,
i.e., [in that case] the danger of breakthrough and resulting inundation, will cause
injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove
a reasonable likelihood that the violation itself will cause injury.” Id. The
8

Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984).

35 FMSHRC Page 1778

Commission concluded that the Secretary had presented sufficient evidence that
miners who broke through into a flooded adjacent mine would face numerous
dangers of injury. Id. The Commission also emphasized the well-established
precedent that “the absence of an injury-producing event when a cited practice
has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal
Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc.,
18 FMSHRC 853, 857 (June 1996)).
I have found a violation of a safety and health standard. It contributed to hazards,
a slip and fall hazard and exposure to mold that Crick believed could lead to infection.
Whether the violation was S&S turns on whether an injury or illness was reasonably
likely to result from the hazards contributed to and whether it would have been
reasonably serious.
Crick believed that the primary hazard contributed to by the conditions was the
health hazard presented by the dirt and mold.9 His concern was a “staph[ylococcus]
infection . . . any type of infection” that could “lead to amputation of a finger or hand . . .
if it’s not stopped in time.” Tr. I 32-33. He posited that men in the shower, who could
have cuts on their hands or feet, could brush up against the walls, and “that mold and
stuff gets in their hand and it could be infected . . . reasonably likely they are going to
have to receive medical treatment.” Tr. I 34. Crick was somewhat circumspect in
supporting his infection theory. He testified that he had seen training films that linked
mold to staph infections, but could not state when or where he had seen them. Tr. I 5557. He related that as a volunteer firefighter, a first responder, he was trained to assume
that everyone was contagious, and to take precautions if he suffered a cut in moldy, dirty
or rusty conditions. Tr. I 33-34. In the course of his training, he had “seen several times
things that become these types of infections.” Tr. I 34.
Both parties rely on materials discussing potential health hazards presented by
mold. The Secretary introduced an article titled, Facts about Mold and Dampness,
published by the Center for Disease Control and Prevention. Ex. G-17. It notes that a
2004 study by the Institute of Medicine (“IOM”) “linked” indoor exposure to mold with
“upper respiratory tract symptoms, cough[ing], and wheeze[ing] in otherwise healthy
people; with asthma symptoms in people with asthma; and with hypersensitivity
pneumonitis in individuals susceptible to that immune-mediated condition.” Id. at 1.
The document also notes that the IOM found comparable linkage to such symptoms from
“exposure to damp indoor environments in general.” Id. at 1. AmCoal relies on
guidelines published by the World Health Organization in 2009, which are referenced in
At the hearing, Crick described a slip/fall hazard presented by the dirty floor.
However, he noted on the citation that the violation presented a health, rather than a safety,
hazard. Tr. I 60. He also did not mention a slip and fall hazard in his notes. Tr. I 60. I find that
the hazard presented by the dirty floor did not present a reasonable likelihood of a reasonably
serious slip and fall injury, either alone or in conjunction with the infection hazard.
9

35 FMSHRC Page 1779

the CDC document. Ex. R-66. It notes that the guidelines show that the IOM reviewed a
number of mold-related studies and concluded that there was not “sufficient evidence of a
causal association” between the presence of mold and any adverse health effects. Id. at
67-68. The WHO guidelines concluded that the “epidemiological evidence is not
sufficient to conclude causal relationships between indoor dampness or mould and any
specific human health effect.” Id. at 89. AmCoal contends that other materials support
the WHO conclusions. Ex. R-64, R-65. A report from the American Industrial Hygiene
Association, entitled “Facts About Mold,” notes that “most people have no reaction when
exposed to molds,” and that “small amounts of mold growth in workplaces or homes
(such as mildew on a shower curtain) are not a major health concern.” Ex. R-65 at 3. A
publication by the Occupational Safety and Health Administration, “Preventing MoldRelated Problems in the Indoor Workplace, OSHA 3304-04N 2006, contains similar
conclusions, i.e., most people experience no health effects from exposure to molds in
indoor or outdoor air, and that the most common health effects associated with mold
exposure include allergic reactions similar to common pollen or animal allergies.
Ex. R-64 at 9.
None of the materials submitted suggest a relationship between mold and a
bacterial staph infection. The available information with respect to the subject of health
effects posed by the presence of mold, which is likely a complex subject, suggests that
exposure to mold, or the damp environs of the shower room, would be unlikely to
produce adverse health effects, at least in healthy individuals. Also to be considered is
the relatively short-term exposure of miners, who would most likely be in the shower
room for only a few minutes each day.
Based upon the foregoing, I find that the Secretary has failed to prove, by a
preponderance of the evidence, that the hazards contributed to by the violation were
reasonably likely to result in an injury or illness of a reasonably serious nature.10 The
violation was not S&S. I find that an injury or illness resulting in no lost work days was
unlikely to result to one person.11
The Commission has held that the judgment of an MSHA inspector is an “important
element” in determining whether a violation is S&S. Harlan Cumberland Coal Co.,
20 FMSHRC 1275,1278 (Dec. 1998). The weight to which an inspector’s S&S opinion is
entitled must be evaluated on the particular facts of the case, including the relevance of the
inspector’s experience.
10

The number of persons affected by a violation is part of the gravity assessment. As
stated in the Secretary’s penalty assessment regulations; “Gravity is determined by the likelihood
of the occurrence of the event against which a standard is directed; the severity of the illness or
injury if the event has occurred or was to occur; and the number of persons potentially affected if
the event has occurred or were to occur.” 30 C.F.R. § 100.3(e). MSHA’s Citation and Order
Writing Handbook for Coal Mines and Metal and Nonmetal Mines, provides a further
(continued...)
11

35 FMSHRC Page 1780

Negligence
Crick rated AmCoal’s negligence as high because there was at least some mold in
the foremen’s shower room, and he concluded that the conditions in the facility had
existed for a considerable period of time, such that they should have been observed by
management personnel who frequently moved through the area. In addition, he had
provided at least one warning to keep such facilities clean during a previous inspection,
although he could not remember when that warning was given. Tr. I 30, 50-51. He had
also issued a citation for unclean bathhouse facilities, as had other inspectors. Crick
testified that at least one such citation was issued on June 7, 2009, but it does not appear
on reports of previous violations introduced by the Secretary. Tr. I 37-39; Ex. G-28,
G-30. The Secretary’s “R-17" report of violations that became final from January 14,
2009 through April 13, 2010, lists four non-S&S violations of section 75.1712-3(a),
which were issued on April 25, 2007, October 17, 2007, February 28, 2008 and
November 9, 2009. Ex. G-28.
The violation history provided some notice to AmCoal that attention was needed
to cleaning of bathhouse facilities, as did Crick’s prior warning. However, the violations
of record were not S&S and were spaced out over a considerable period of time, such that
any notice to AmCoal of a need for greater compliance as of August 2010 was not as
indicative of culpability as more recent violations or warnings would have been. While I
have found, as Crick asserted, that the conditions had occurred over more than one shift,
there can be little question that a considerable portion of the dirt and trash was the result
of the third shift’s use of the facility. The third shift’s contribution would have been
present at 10:45 a.m., because cleaning would not have occurred until later, after the New
Era facilities had been cleaned. The mold, possibly mildew, would most likely have been
present for a longer period of time, and could have been observed by supervisory
personnel who frequented the area, but who most likely would have spent the majority, if
not all of, their time in the lunch room and changing room.12
Considering these factors, I find that AmCoal’s negligence with respect to this
violation was moderate.
(...continued)
explanation of the term persons affected: “ The number of persons affected is the number of
persons who would be expected to be injured if an accident or overexposure occurred as a result
of the violation.” U.S. Department of Labor, Mine Safety and Health Administration, Coal Mine
Safety and Health, Metal and Nonmetal Mine Safety and Health, Handbook Number PH08-I-1,
March 2008, at 17.
11

While Crick had noted the presence of mold in the foremen’s shower area, his
testimony evidences that the conditions in that area must not have been comparable to those in
the main shower room.
12

35 FMSHRC Page 1781

Citation No. 8424958 (LAKE 2011-183)
Citation No. 8424958 was issued by MSHA inspector Bernard Reynolds13 on July
14, 2010. It was issued pursuant to section 104(a) of the Act and alleges a violation of
30 C.F.R. § 75.202(a), which requires that “[t]he roof, face and ribs of areas where
persons work or travel shall be supported or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock bursts.” Ex. G-32.
Reynolds determined that the violation was reasonably likely to result in a lost workdays
or restricted duty injury, that it was S&S, that one person was affected, and that the
operator’s negligence was moderate. A specially assessed civil penalty in the amount of
$7,700.00, was proposed for this violation.
AmCoal withdrew its contest to the violation and the special findings. Tr. II 41.
It challenges only the amount of the penalty. The area in question was located at the
shaft bottom, where the elevator discharged and picked up all men and material entering
and leaving the mine through the New Future portal. It was adjacent to a brow that had
most likely been created by a fall of about 4 feet of material. Reynolds noticed that the
roof bolts in an area that measured 6 x 6.5 feet, from competent bolt to competent bolt,
were not supporting the roof. The bearing plates on the bolt heads were no longer in
contact with the roof. The bolts were “torque - tension, double lock” bolts, generally six
feet long, but may have been up to 8 or 9 feet long. Such bolts are anchored with a
locking device on the upper end, that is reinforced with resin. The torqueing of the bolt,
compresses the bearing plate against the roof, squeezing the roof layers together. If the
plate is not in contact with the roof, no roof support is provided, and the bolt is little more
than steel rod sticking down through a hole.
The unsupported area was relatively small, encompassing only 39 square feet.
Reynolds confirmed that just one competent bolt, properly positioned in that area, could
have satisfied the requirements of AmCoal’s roof control plan. Tr. I 112-13. However,
there were 10-12 damaged bolts in the area, many more than were required under the
plan.14 Some additional bolts may have been installed to provide support for the brow
created by the previous roof fall. They could also have been replacements for bolts that
Reynolds had been an MSHA inspector for 4.5 years at the time of the hearing, and
has undergone initial and refresher training. After working one year in the mining industry in
1979, he obtained a mining engineering degree, and then began working for Freeman United
Coal Company. After 3 years, he began working at the Galatia mine for Kerr-McGee Coal
Corporation, AmCoal’s predecessor as mine operator. He worked at the Galatia mine for 11
years, in a variety of capacities, including familiarization with the mine’s roof support systems.
13

Reynolds recorded in his notes that “several” or “many” bolts in the area were
damaged, suggesting that some were not. However, he testified that all bolts in the subject area
were damaged, such that none were supporting the roof. Tr. II 25.
14

35 FMSHRC Page 1782

had been damaged. An incident of damage by mobile equipment typically does not
involve more than one bolt. Tr. I 107. Since damaged bolts are not removed, it is likely
that the bolts were damaged in a series of incidents, over a considerable period of time,
e.g., a bolt might be damaged, a new bolt would be installed to provide required support,
the new bolt might then be damaged, and another bolt would be added, and so on.
Tr. I 110, 114-15.
While AmCoal has withdrawn its contest to the fact of violation and the special
findings, it is unfortunate that the status of the damaged bolts remains unknown, i.e.,
whether they all had been required to support the brow, or had been added periodically to
substitute for damaged bolts. Considering the number of damaged bolts, it is highly
likely that they were damaged in a series of incidents. If they were substitute bolts,
inadequate support would have existed only from the time that the last-installed substitute
bolt was damaged. If they were all required to support the brow, the roof would have
been inadequately supported from the time the first bolt was damaged, and the
inadequacy of the support would have grown as successive bolts were damaged.
Reynolds’ assessment of gravity does not appear to have been based on the more serious
scenario.
Reynolds testified that the area was between two busy areas of the mine, the main
maintenance shop and the rock dust bore hole, such that miners had “plenty of reason” to
go through the area. While he was inspecting the area and issuing the citation, miners on
two golf carts attempted to drive through it. However, he indicated in his notes that
“most day-to-day traffic bypasses the area,” and stated that he had not seen equipment
staged in it. Tr. I 117; Ex. G-32.
Reynolds rated AmCoal’s negligence as moderate because the condition was
obvious, had occurred over several shifts, and should have been seen by a preshift
examiner. He did not feel that the violation was one that “glares at you,” to justify a
determination of high negligence, and tends to rate negligence as “moderate” if the
question is close. Tr. I 108. He also agreed that the condition most likely was created by
a series of events that occurred over a period of time, and that he could not determine
when any of the bolts had been damaged. Tr. I 114-15. If, as Reynolds noted, the
majority of incidents of equipment damage to bolts involve one bolt, and the overall
condition was created by a series of such events, then to portray the violative condition as
10-12 damaged bolts could be misleading. In fact, there could have been a substantial
number of damaged bolts in that area for some time, and the roof would have been
adequately supported as long as one properly positioned bolt remained competent.
Damage to that one competent bolt would have created a violative condition, and
AmCoal’s culpability would be measured not by its failure to observe a large number of
damaged bolts, no doubt a well-known condition, but that there was no longer a bolt
providing support, i.e., the last-installed replacement bolt had been damaged, and there is
no evidence as to when that may have occurred. Considering that the damage may well
have occurred prior to the last preshift examination, approximately 2 to 5 hours earlier,

35 FMSHRC Page 1783

and that an examiner should have paid close attention to what was obviously a
problematic area, Reynolds’ assessment of moderate negligence appears conservative.
Citation No. 8427602 (LAKE 2011-184)
Citation No. 8427602 was issued by Reynolds at 1:00 p.m., on August 30, 2010,
pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.1720(a),
which requires that miners wear “[p]rotective clothing or equipment and face-shields or
goggles when welding, cutting, or working with molten metal or when other hazards to
the eyes exist from flying particles.” The violation was described in the “Condition and
Practice” section of the citation as follows:
A miner was observed cutting steel anchoring rods with an
oxygen/acetylene powered cutting torch, without wearing protective
cutting goggles designed for this job. This condition existed at the belt
drive pad for the 1WHG unit on 6 seam at the New Future portal.
Ex. G-22.
Reynolds determined that it was reasonably likely that the violation would result
in a permanently disabling injury, that the violation was S&S, that one person was
affected, and that the operator’s negligence was high. A regularly assessed civil penalty,
in the amount of $5,961.00, was proposed for this violation.
AmCoal does not challenge the fact of the violation. It disputes the gravity and
negligence allegations and the amount of the penalty.
S&S
The fact of the violation has been established. The miner was wearing ordinary
safety glasses, rather than goggles designed for use when cutting metal with a torch. The
violation contributed to a discrete safety hazard, an increased risk that a piece of molten
metal, or a spark, would contact his eyes and cause injury.15 Any such injury would be
serious. Consequently, whether the violation was S&S turns on whether it was
reasonably likely that the hazard would result in an injury.

Reynolds so-described the potential injury in his notes. Ex. G-22. At the hearing, he
also posited that a burn to the eye might be inflicted by the brightness of the torch. Tr. II 45-46,
58-59. As noted above, the standard, by its terms, addresses conditions where “other hazards to
the eyes exist from flying particles.” The Secretary’s argument is directed to Reynolds’
“primary concern,” i.e., that “a piece of molten hot material, or dust or debris could contact the
miner’s eye.” Sec’y. Br. at 15. I find that the violation did not contribute to a hazard associated
with the brightness of the torch.
15

35 FMSHRC Page 1784

Reynolds was accompanied by Mike Harris, at the time AmCoal’s safety director
at the New Future portal. They proceeded to the area of the first west headgate on the 6
seam, which was being prepared for mining. A large concrete pad had been poured to
serve as a foundation for the belt head drive. In order to keep the pad from moving, 3/4 inch steel rods were inserted into the mine floor and were grouted in, similar to roof
bolts. They extended from 1 to 2 feet above the pad.
As Reynolds and Harris approached the area, a miner, Harley Partridge, had his
back to them, and was using an oxygen/acetylene torch to cut the rods off, flush with the
pad. He noticed the light from their cap lamps as they approached, and turned to greet
them. It was apparent that he was wearing regular safety glasses, not appropriate cutting
goggles, and Harris reminded him that he needed his goggles. Tr. II 69. Partridge went
to his supply bag to get his goggles, but they weren’t there. He indicated that they had
been there that morning. The hoses to the torch were disconnected, until proper cutting
goggles could be obtained, and Reynolds issued the subject citation.
The Secretary contends that the safety glasses worn by Partridge were not sealed
around the eyes, and that flying debris could blow around them. Cutting goggles,
designed for such use, would have had a rubber enclosure that would keep material from
coming in from the sides. Consequently, it was reasonably likely that the miner would
suffer a serious eye injury. AmCoal argues that the miner’s position, and the
combination of his safety glasses and hard hat, furnished protection nearly as effective as
cutting goggles, and that an eye injury was not reasonably likely.
Reynolds described the function of the torch. Acetylene gas is discharged around
the periphery of a circular head, heating the metal to be cut. Once the metal is heated to
near molten state, oxygen at high pressure is released through a small hole in the center
of the torch, blowing the molten metal away in small hot particles, or sparks. Having
operated such a torch, he described a process whereby even experienced operators would
experience a “pop,” or minor explosion, at the tip of the torch, which “very possibly”
could throw molten material back toward the operator.16 Reynolds had also suffered an
eye injury while working on the surface in the 1980s, when a particle of coal was blown
by wind into his eye, despite his wearing of “old horned-rimmed” safety glasses that had
side shields. Tr. II 47, 60.
At the hearing, Harris produced a pair of safety glasses, like those worn by
Partridge, and a hard hat. He demonstrated that the glasses were “wrap around” style,
that left “very little space” on the top, bottom and sides, for any particle or object to pass
by. Tr. II 71. The hard hat added to the protection, because its 2 to 2.5 inch bill
projected out over the glasses, further obstructing objects that might approach from the
Reynolds testimony as to molten material being thrown back toward the torch
operator was not convincing. He did not mention such an effect when he first described the
cutting process, and did so only in response to a suggestion by counsel. Tr. II 51, 55.
16

35 FMSHRC Page 1785

front or top. He described cutting goggles as being made of clear plastic, with ventilation
holes, similar to “glasses that fit over glasses.”
Partridge was kneeling and was operating the torch at arms length, pointing it
down and away from his face. Tr. II 60-61, 68. It took very little time to cut a rod;
Harris estimated about ten seconds. There is no evidence as to how many rods needed to
be cut, or how much of the job Partridge had completed before Reynolds and Harris
arrived.
Tr. II 76-77.
There is no question that the safety glasses worn by Partridge provided some
protection from bits of molten metal or sparks that were produced by the cutting action of
the torch. The Secretary maintains that they did not form a complete seal, such that
debris could blow around them. While that statement may be technically accurate, it
does not address the size of any gaps, or the likelihood of such an event occurring.
Reynolds does not appear to have made an assessment of the effectiveness of Partridge’s
safety glasses. He did not record, in the citation or his notes, that safety glasses were
being worn, and did not recall at the hearing whether or not Partridge was wearing safety
glasses, stating “[w]hatever he had on was clear and not sealed completely around your
eyes. There would be ways for flying debris to blow around them.” Tr. 47, 59; Ex. G22.
This statement, like the Secretary’s argument, convincingly establishes the
violation, but does little to explain why an injury causing event would be reasonably
likely to occur. It appears that Reynolds’ evaluation of gravity was based, almost
exclusively, on the fact that Partridge was not wearing cutting goggles. It does not
appear that he attempted to assess the degree of protection provided by the safety glasses
and hard hat. Harris’ demonstration, donning the safety glasses and hard hat, showed
that there was no direct path for a particle to strike an eye, and very little space on the
bottom or sides for anything to blow by. The torch was directed down and away from
Partridge’s face, and actual cutting action was very brief. There is no evidence of
significant air movement, like the wind that played a role in Reynolds old injury. While
there is no evidence of the number of rods that Partridge had, or would have cut, it was
most likely not a large number, and there is nothing to indicate that Partridge would have
engaged in other cutting or welding tasks without wearing appropriate goggles.
Consequently, the duration of the violation was, and would have been less than five
minutes of actual cutting.
Considering all of the above factors, I find that the hazard contributed to was
unlikely to result in a permanent injury, and that the violation was not S&S.

35 FMSHRC Page 1786

Negligence
Reynolds evaluated AmCoal’s negligence as high, and recorded the following in
his notes:
High Negligence
No operator can be excused from requirement of wearing proper eye
protection while cutting or welding. Safety talk given in recent days prior
- 4 days earlier - following another citation for same infraction.
Ex. G-22.
Reynolds consulted MSHA records prior to the hearing and confirmed that
another citation alleging a violation of the same standard had been issued a few days
earlier. Tr. II 52-54, 62-63. That citation apparently prompted AmCoal to give training,
in Reynolds’ words, “demanding from everybody that they be sure and wear their cutting
goggles when they are using a torch or welder.” Tr. II 53. This was the thrust of the
evidence introduced by the Secretary to establish that AmCoal’s negligence was high.
No evidence was introduced during the Secretary’s case, that an AmCoal agent
was aware, or should have been aware, that Partridge was not wearing cutting goggles
while cutting the rods. However, the Secretary elicited, on cross-examination of Harris,
that Partridge’s supervisor, the belt foreman, should have checked on his miners once per
shift, and, at least when present, should have assured that they were using any required
personal protection equipment (“PPE”). Tr. II 78-79. The Secretary concedes that
Partridge’s negligence cannot be imputed to AmCoal, but argues that the belt foreman
should have checked on him as he began his job to make sure he was wearing cutting
goggles, and that his failure to do so justifies a finding of high negligence against
AmCoal. This is especially so because the issuance of another citation that same day for
failure to wear protective equipment should have put AmCoal on notice that training
alone was not sufficient to ensure that miners would wear PPE. Sec’y. Br. at 16-17.
The Secretary’s argument reaches too far. The belt foreman was responsible for
the conveyor belts, which no doubt encompassed a considerable area. Tr. II 76. He was
not in the area when the citation was issued, and there is no evidence that he was aware
of, or in any way condoned, the violation. Tr. II 73, 76. It would almost certainly have
been physically impossible for the belt foreman to have checked on every miner under
his supervision as he began an assigned task. That a foreman is required to check on his
workforce once per shift, does not suggest anything close to a duty of constant
supervision, especially for a foreman with responsibility over a large area.
The Secretary introduced no evidence to establish that the foreman should have
anticipated that Partridge would not wear PPE, for example that he had done so in the
past. AmCoal provided required periodic training on use of cutting goggles and other

35 FMSHRC Page 1787

personal protective equipment. Moreover, 4 days prior to the issuance of the subject
citation, it provided specialized training on use of PPE, including cutting goggles. This
was done in response to a citation that had been issued for a violation of the standard.
The recent increased emphasis on the use of PPE, weighs heavily against any argument
that the foreman should have anticipated Partridge’s actions.
Nor was there any evidence that AmCoal had failed to discipline miners who
violated the PPE standard. The only evidence as to discipline is that Partridge was
suspended for the violation. Tr. II 73-74. AmCoal provided all required safety
equipment to miners, and maintained a “cabinet” where such items were available at the
start of each shift. Harris had manned the cabinet at the start of the shift on which the
citation was issued. Tr. II 74.
The citation relied on by the Secretary to put AmCoal on notice that its training
was insufficient was issued that same morning, at 9:15 a.m., for miners not wearing
respiratory protection at the New Era portal, some distance removed from the New
Future portal. MSHA inspectors typically type and deliver citations at the end of the
inspection day, after coming to the surface. The actual citation was most likely not
delivered to AmCoal safety personnel until well after it had been issued. Whether the
issuance of that citation should have put AmCoal on notice that miners would disregard
the emphasis on use of PPE and risk incurring discipline is debatable. However, having
been issued only a few hours earlier than the instant citation, whatever notice it provided
could have had no impact on the instant violation.
I find AmCoal’s negligence with respect to the violation was low to moderate.
Citation No. 7575299 (LAKE 2011-183)
Citation No. 7575299 was issued by then MSHA inspector James Rusher17 on
July 14, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R.
§ 75.517, which provides that “[p]ower wires and cables . . . shall be insulated adequately
and fully protected.” The violation was described in the “Condition and Practice”
section of the citation as follows:
The energized power cable serving the No. 39 battery charger was no
longer adequately insulated and fully protected. There were four
Rusher retired prior to the hearing. He had worked in the mining industry for 12
years before joining MSHA in 1978. He participated in the first inspection of the Galatia mine
when it opened in 1983 under the ownership of Kerr-McGee, and inspected the mine regularly
through his retirement in 2011. He obtained a bachelor’s degree in workforce education,
completed numerous training courses, and has maintained certifications, such as his electrical
card.
Tr. II 83-85.
17

35 FMSHRC Page 1788

rips/holes in the outer jacket which exposed the inner insulated
conductors. In one of the tears of the outer jacket, the inner white in color
insulated conductor was torn open which exposed the inner energized bare
wires. This condition was found in the No. 6 seam bottom shop at the No.
39 battery charger.
Ex. G-1.
Rusher determined that it was reasonably likely that the violation would result in
a fatal injury, that it was S&S, that one person was affected, and that the operator’s
negligence was high. A specially assessed civil penalty, in the amount of $47,000.00,
was proposed for this violation.
AmCoal withdrew its contest of the violation and the special findings on gravity.
It challenges the negligence determination and the amount of the penalty. Tr. II 82.
Negligence
Rusher was passing through the No. 6 seam bottom shop, a maintenance shop,
when he noticed a knot in the cable supplying 480-volt power to the No. 39 battery
charger. He examined the knot, and immediately saw that the outer jacket of the cable
had been torn open, exposing the inner conductors. The insulation on the white
conductor had been damaged, and he could see the copper conductor itself. The damage
was to the top side of the knot, such that a person who might have stepped on it could
have been electrocuted. The shop floor was damp, and there were footprints in the area.
Miners might have accessed the area for a number of reasons, including to use or inspect
the charger, distribute rock dust, or set a roof prop. Consequently, he determined that the
violation was reasonably likely to result in a fatality and that it was S&S.
Rusher evaluated AmCoal’s negligence as high. He explained his rationale as
follows: there were “several shop people working there, somebody, including the
supervisor, should be checking equipment.” Tr. II 98. The shop repairmen each held
electrical cards and were trained to identify hazardous electrical conditions. “[I]t was so
easy for me to find . . . the guys that work [there] . . . should have seen that, especially
when you think about the time I wrote it . . . 11:45 . . . . Half the shift is over, and they
still hadn’t done anything.” Tr. II 98.
The problem with that analysis is that, with the exception of the passing reference
to the “supervisor,” the repairmen were rank-and-file miners, whose negligence cannot
be imputed to AmCoal. Tr. II 124-25, See, e.g., U.S. Coal, Inc., 17 FMSHRC 1684, 1686
(Oct. 1995). The operators of the shield movers using the charger and those applying
rock dust or setting props would also have been hourly employees. Tr. II 124. As to the
shop supervisor, Rusher indicated that he typically would give men instructions near the
work bay or the “grease pit,” and the knot in the cable could not be seen from those areas,

35 FMSHRC Page 1789

unless one was specifically looking for it. Tr. II 169-71; Ex. G-, R-77. The supervisor
would typically leave to visit production units and then return. Tr. II 125, 169. He was
not required to conduct a preshift or onshift examination of the area.
Electrical equipment, such as the charger, must be examined weekly by a
qualified person acting as an agent of the operator.18 Tr. II 94; 30 C.F.R. § 75.512-2; U.S.
Coal,
17 FMSHRC at 1688. The last weekly examination of the charger and its cable occurred
on July 11, 3 days prior to the issuance of the citation. Tr. II 141-42; Ex. R-62. The
notations in the weekly examination records showed that on the date of the examination,
the examiner “put ground cable and clamp on,” indicating that a problem was found and
corrected. Ex. R-62. A Battery Charger Permissibility Check List, which guides the
examiners, provides that the cable should be checked for damage and/or bad splices,
which should have resulted in the discovery of any defects, especially one as obvious as
the cited condition. Tr. II 143-44; Ex. R-51. No cable defects were noted on the report
of the examination. Ex. R-62.
The charger is not a stationary piece of equipment; it could be picked up with a
scoop and moved to other areas of the mine. Tr. II 87, 155. Rusher opined, on rebuttal,
that the charger was routinely located in the maintenance shop, and that it appeared to
have been there for “quite a long time.” Tr. II 172-73. While he did not know when the
charger had been placed there, from the amount of dust on it, considering that there was
not a lot of dust in that area, he was led “to believe that it had been there for quite a
while.” Tr. II 173. He agreed that it was “possible . . . but not probable,” that the dust
could have accumulated while the charger was in a different location. Tr. 173-74.
Keith Violett, an AmCoal safety specialist who accompanied Rusher, confirmed
that the inner conductors were exposed and that the insulation on the white conductor
was damaged such that copper was visible. Tr. II 153. He testified that the white
conductor appeared “fairly white” leading him to conclude that “it hadn’t been exposed
very long.” Tr. II 130.
The Secretary argues that the charger was in its location at least since the July 11
electrical examination, that the knot must have been in the cable at that time, that the
tears in the cable occurred as the knot was being dragged, i.e., that they existed before
July 11, and that the examiner must have failed to examine the cable thoroughly to
discover the defect which may have been hidden by the knot. Sec’y. Br. at 19-20.

Rusher noted that AmCoal had a policy of requiring pre-operational checks of
equipment, but he was uncertain whether it applied to equipment that was not located in a
working section. Such checks would have been conducted by the person operating the
equipment, an hourly employee. Tr. II 94, 102.
18

35 FMSHRC Page 1790

While the Secretary’s theory is plausible, it is not persuasive. First, it is not
reflected, or even hinted at, in Rusher’s contemporaneous notes, in which his assessment
of negligence is based virtually exclusively on the failure of the hourly shop workers to
have noticed the obvious hazard and corrected it. Violett and Rusher disagreed on the
location of the knot, and the layout of the cable. Violett testified that the knot was near a
travelway to the left of the power center and charger, where it may have been damaged
by passing equipment. Tr. II 136-38, 146-48; Ex. R-77. Rusher was certain that the knot
and exposed wires were in close proximity to the charger, and that the nature of the tear
evidenced that it had been caused by the knot snagging on something sharp as the cable
was dragged.19 Tr. II 103-04, 164-67; Ex. R-77. Accepting Rusher’s description of the
scene, the Secretary’s theory requires a finding that the person conducting the weekly
electrical examination failed to observe the hazard. The damaged and exposed
conductors were clearly visible; not partially hidden as posited by the Secretary.20
Rusher repeatedly noted that they were easy to see. AmCoal’s records of weekly
examinations of electrical equipment establish that the charger was examined on July 11,
while it was in the shop, and that a ground cable and clamp were installed.
I find it highly unlikely that a competent electrical examiner would have failed to
notice the obvious tears in the cable jacket, even if he did not carefully examine the cable
as he was required to do. The obvious damage to the cable was very close to the charger,
and the examiner identified and repaired an apparent defect on the charger. Other
explanations for the damage, e.g., that the knot was actually located near a travelway and
was struck by a piece of mobile equipment, or that the charger may have been moved
after the July 11 exam and returned to the shop prior to the inspection, appear equally, if
not more probable.21

Rusher testified that when a cable is dragged and it snags on something, “there’s a
tear pretty big that tapers off. That’s how this was, indicating to me that it snagged on
something.” Tr. II 103-04. That explanation is somewhat inconsistent with the citation and his
notes, wherein he states that there were “four” tears, rips, or holes in the cable’s outer jacket.
Ex. G-1.
19

There is no evidence to suggest that anyone would have had reason to re-position the
cable, except the possibility noted by AmCoal that the charger itself may have been moved after
the July 11 examination.
20

Rusher’s conclusion that the charger had been in the shop for more than 3 days rested
largely upon his recollection of events that occurred over 2 years prior to his testimony. While
he appeared to be an honest and forthright witness, who had a reasonably accurate recollection of
events, I find it difficult to place a high level of confidence in an estimate of the length of time
the charger had been in that position, based upon recollections of the quantity of dust that may
have been on the charger, compared to estimates of the quantity of dust that may have existed in
the air in that area of the shop over several previous days.
21

35 FMSHRC Page 1791

I find that the Secretary has failed to prove that AmCoal’s negligence was high,
i.e., that it “suggests an aggravated lack of care that is more than ordinary negligence.”
Eastern Ass. Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991). I find that AmCoal’s
negligence with respect to this violation was moderate.
Citation Nos. 7575300 and 7575301 (LAKE 2011-183)
There are very few standards addressing hazards associated with the
transportation of men and materials in mines. However, pursuant to section 314(b) of the
Act, and the Secretary’s regulations, authorized representatives of the Secretary may
issue orders, called “safeguards” to address hazards related to the transportation of men
and materials at a particular mine. 30 U.S.C. § 874(b); 30 C.F.R. § 75.1403. The mine
operator is obligated to comply with a safeguard, violations of which may subject it to
citations or orders issued pursuant to section 104 of the Act. Cyprus Cumberland Res.
Corp, 19 FMSHRC 1781 (Nov. 1997).
Safeguards are issued by individual MSHA inspectors, who do not follow a notice
and comment rulemaking procedure. Recognizing the “unusually broad grant of
regulatory power” granted to MSHA, the Commission, in Southern Ohio Coal Co.,
7 FMSHRC 509, 512 (Apr. 1985) (“SOCCO I”), held that “safeguards must be drafted
with specificity, so that operators receive adequate notice of the conduct required and the
conditions covered by the safeguard.” The American Coal Co., 34 FMSHRC 1963, 1967
(Aug. 2012). While the Secretary’s authority to issue a safeguard is interpreted broadly,
the language of a safeguard, which may be issued without consulting with representatives
of the operator, must be narrowly construed,. Cyprus Cumberland, 19 FMSHRC at 1785;
SOCCO I, 7 FMSHRC at 512.
Safeguard No. 7568565 was issued at the Galatia mine on August 3, 1998, and
provides:
Bottom irregularities, debris in the form of rock that had fallen from the
roof, and wet and muddy conditions were present on the mine travelways
at the following locations: on the Main East travelway from no. 69 to no.
85 crosscut, on the 6th North travelway from the mouth to no. 28 crosscut,
and for the entire 6 North 5A unit travelway, a distance of approximately
20 crosscuts. This Notice to Provide Safeguards requires that all mine
travelways be kept as free as practicable of bottom irregularities, debris
and wet and muddy conditions that could affect the control of mobile
equipment traveling these areas.
Ex. G-3, R-11.

35 FMSHRC Page 1792

The validity of Safeguard No. 7568565 was recently upheld by the Commission
in a separate challenge by AmCoal, the Commission noting that it has “consistently
treated safeguards that specify hazardous conditions and specify a remedy as valid
safeguards.” American Coal, 34 FMSHRC at 1969, 1974 (emphasis in original). It
concluded that the safeguard specifies the nature of the hazard, “i.e., bottom
irregularities, debris, and muddy conditions in a travelway that could affect the control of
mobile equipment[,]” and specifies a remedy, “i.e., all mine travelways are to be kept as
free as practicable of bottom irregularities, debris, and muddy conditions that could affect
the control of mobile equipment.” Id. at 1974.
Citation Nos. 7575300 and 7575301 allege violations of Safeguard No. 7568565.
AmCoal challenges both citations, arguing that a narrow interpretation of the safeguard,
under Cyprus Cumberland and SOCCO I, requires that all of the conditions identified in
the safeguard be present before a violation can be established, i.e., that there must be
bottom irregularities and debris and muddy conditions. Since there is no evidence that
debris was present,22 AmCoal argues that the citations must be vacated. The Secretary
counters that AmCoal’s reading of the safeguard is overly strict.
Any of the conditions addressed by the safeguard could threaten the loss of
control of mobile equipment. Under AmCoal’s reading, compliance with the safeguard
could be achieved by simply removing as little as one piece of debris from a travelway
that was so wet and muddy, with bottom irregularities, that the loss of control of mobile
equipment was threatened. The safeguard specified three hazardous conditions, bottom
irregularities, debris and wet and muddy conditions, and it specified a remedy for those
conditions. Under the safeguard, AmCoal was obligated to keep its travelways as free as
practicable from any and all of the three hazardous conditions. The safeguard was issued
in 1998 and, until the recent challenge to its facial validity, AmCoal and MSHA
apparently did not have widely divergent views on the breadth and scope of the
safeguard. AmCoal’s strict interpretation argument, which is directed to Citation Nos.
7575300 and 7575301, is rejected.

While not reflected in the citation or his notes, Rusher testified that he recalled
brushing against a splintered piece of board in the area that was the subject of Citation No.
7575300. Tr. II 306-12; Ex. R-12. AmCoal disputes Rusher’s testimony. The rejection of
AmCoal’s narrow interpretation argument obviates the need to resolve that issue, at least for
present purposes.
22

35 FMSHRC Page 1793

Citation No. 7575300
Citation No. 7575300 was issued by Rusher at 12:38 p.m. on July 15, 2010,
pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.1403, and
charges AmCoal with violating Safeguard No. 7568565. The violation was described in
the “Condition and Practice” section of the citation as follows:
The following condition existed that could adversely affect the control of
mobile equipment traveling through the area of the 6th West longwall
travel road from crosscut No. 38 to 44 which had wet and muddy
conditions. Additionally, several more areas of this road are quickly
deteriorating from wet and muddy conditions, resulting in several ruts in
the road. Finally, a four wheel drive AL Lee diesel mantrip was found
stuck in the mud at the overcast at this travel road for the past ten minutes.
A second mantrip was parked just outby this overcast for any emergencies
in case this AL Lee mantrip could not get out of the mud.
A safeguard has previously been issued requiring that all mine travelways
be kept free as practicable of bottom irregularities, debris, and wet and
muddy conditions that could affect control of mobile equipment.
This standard was cited 71 times in two years at this mine.
Ex. G-2.
Rusher determined that the violation was reasonably likely to result in lost
workdays or restricted duty injuries, that it was S&S, that three persons were affected,
and that the operator’s negligence was high. A specially assessed civil penalty in the
amount of $25,800.00 was proposed for this violation.
The Violation
Rusher inspected the Galatia mine on July 15, 2010. After reviewing examination
books, conducting a safety talk, and terminating some previously issued citations, he
proceeded underground, escorted by AmCoal safety representative, Keith Violett. They
proceeded up the Main North travelway to several worked-out and sealed areas, and after
inspecting the seals proceeded inby. They traveled approximately 125 breaks, up the
Main North travelway to the entrance to the 6th West (“6W”) longwall panel headgate
entries. There was an overcast at the intersection of the 6W travel road - and the Main
North travel road.23 To provide clearance for traffic on the 6W travel road, the road bed
was excavated several feet. Water infiltrating the mine collected in the low spot,
softening the fire clay floor, and creating very wet and muddy conditions. AmCoal had
installed an air-driven pump in a sump at that location, but conditions had deteriorated
An overcast is an enclosed airway constructed so as to allow an air current to pass
over another air current. Tr. II 180-81.
23

35 FMSHRC Page 1794

such that the travelway under the overcast was, at least temporarily, impassable. A fourwheel-drive diesel mantrip was mired in the mud at that location. Another mantrip was
parked on the Main North travelway for use in an emergency.
Rusher proceeded past the overcast and walked inby on the 6W travel road. It
was the middle of three entries, the entry on the left was the belt entry and the one on the
right was the return and the secondary escapeway. Crosscuts on the entries were
numbered consecutively, with No. 1 being the first crosscut off the Main North
travelway. Crosscuts were made approximately every 150 feet.24 When Rusher reached
the area of crosscuts 38-44, he encountered knee-deep wet, muddy and rutted conditions,
which extended for 900 feet, and rendered the travelway, in his opinion, impassable. Tr.
II 182-85, 219.
Although Rusher stated that debris, such as roof bolts or pieces of bridge boards,
could be buried in muddy conditions, he did not state that he observed any such objects
in the cited area on the 6W travel road and did not record any such observations in the
citation or his notes. Tr. II 189-90; Ex. G-2. However, he later indicated that there was
one broken piece of bridge board, a “spear,” that brushed against his leg, and which he
threw away. Tr. II 306, 311-12. He did not state that he regarded the piece of wood as
an impediment to mobile equipment travel, and did not cite it as a violation of the bridge
board safeguard.
Rusher opined that the wet, muddy, rutted condition of the 6W travel road
between crosscuts 38 and 44, and other areas, could affect the control of mobile
equipment, particularly small vehicles, such as mantrips and golf carts.25 Tr. II 199. He
posited that the operator of a mantrip carrying 8-10 men could lose control while
attempting to traverse the rutted mud, and strike the coal rib at an angle. Miners riding in
the vehicle could be thrown out and, possibly, run over by the vehicle as it continued
through the mud.
AmCoal did not present any evidence challenging Rusher’s description of the
conditions in the cited area. His conclusion that they could affect the control of mobile
equipment appears reasonable, and I so find. The standard was violated.

Rusher thought that coal pillars were 90 feet wide. Tr. II 185; Ex.G-33. However,
AmCoal points out that mine maps introduced into evidence, with survey spads noted thereon,
show that crosscuts were on 150-foot centers. Tr. II 29-30; Ex. R-56.
24

Large vehicles travel slower than smaller ones, and the operators would not tend to
loose control in such conditions, although they might become mired, or have to maneuver
through.
25

35 FMSHRC Page 1795

S&S
The conditions on the 6W longwall travelway violated the safeguard standard. A
measure of danger to safety, a discrete safety hazard, was contributed to by the wet,
muddy conditions, an operator’s ability to control a piece of mobile equipment in the area
was impaired which could result in injuries to a miner or miners.26 The remaining issues
in the S&S analysis are whether the hazard contributed to by the violation was likely to
result in an injury, and whether such an injury would be reasonably serious. AmCoal
concedes that a reasonably serious injury could possibly occur. It argues that the
conditions were unlikely to result in an injury.
Rusher posited that the operator of a mantrip carrying 8-10 miners could lose
steering control while trying to navigate the rutted, muddy travelway causing the mantrip
to strike a rib at an angle, and that “at least two to three” miners would suffer injuries
from being thrown out, or from being run over by the mantrip after being thrown out.
Tr. II 186-88. AmCoal argues that the cited condition did not exist for a significant
period of time, and that it had taken measures to keep the travelway as free as practicable
from wet and muddy conditions.
It is not clear how long the condition had existed. Water infiltration was a
prevalent condition in the mine, and, as evidenced by Citation No. 7575301, which
Rusher issued a little over 2 hours later, conditions of travelways can deteriorate rapidly.
Rusher traveled the Main North travel road on his way to the 6W longwall travel road,
and did not observe any violative conditions. When he rode back down that road, after
issuing Citation No. 7575300 at 12:38 p.m., he found that conditions on the Main North
travel road had deteriorated “in a matter of hours,” and issued Citation No. 7575301 at
2:50 p.m. Tr. II 229. The Secretary conceded that it was “likely” that the conditions
cited in 7575301 “deteriorated rapidly.” Sec’y. Br. at 22.

The Secretary argues that the violation also contributed to another hazard, delayed
evacuation in case of an emergency, and exposure to injuries from sharp objects in the mud. No
such hazards were noted, or alluded to, in the citation or Rusher’s notes. As discussed above,
there was no debris in the area, with the limited exception of a possible splintered piece of bridge
board. AmCoal argues that no such hazard can be associated with the cited violation, noting that
it does not include an allegation of failure to maintain an escapeway or any other standard
associated with responses to emergency conditions; that the primary escapeway remained
passable because the mantrip did not completely block the travelway; and that Rusher confirmed
that the alternate escapeway through the return entry of the 6W headgate entries was in good
condition and the “entire route [was] passable.” Tr. II 222; Ex. G-2. Rusher also agreed that no
escapeway violation was involved and that the hazard associated with Citation Nos. 7575300 and
7575301 was the loss of control of mobile equipment. Tr. II 230. I find that the additional
hazards advanced by the Secretary are neither factually nor legally supported.
26

35 FMSHRC Page 1796

When asked whether the conditions in the 6W travel road could have deteriorated
rapidly, Rusher pointed out that the “unit’s” mantrip was stuck under the overcast at the
mouth of the road, and that the crew apparently walked in, because there was no mantrip
up at the unit. Tr. II 313-14. However, he had previously testified that there was a
mantrip at the unit “that they obviously had got in there some way.” Tr. II 186. In
addition he had stated: “there were men in here at the active unit mining coal. Whether
these men knew that their travel road out of here was blocked or not, I don’t know.”
Tr. II 181. AmCoal points out that its Production and Delay reports for July 15 show that
the midnight crew and the oncoming day shift did not experience delays in traveling to
and from the unit. Ex. R-58 at 19, 20. Those reports show overall travel times between
the unit and the portal of 40-45 minutes, consistent with what Rusher had thought they
would be, which indicates that the 6W travel road was passable and that the miners could
not have walked nearly a mile to the unit.27 I find that the 6th West travel road was open
and passable at 9:30 a.m., three hours before Rusher issued the citation. Conditions at
the overcast and crosscuts 48-54 deteriorated thereafter. The mantrip mired in the mud
under the overcast was there long enough that a back-up mantrip was brought to the area
and parked next to it. The cited conditions existed for approximately 2 hours before the
citation was issued.
It is unclear how long the conditions would have existed under continued normal
mining conditions. AmCoal had installed an air-driven pump in the vicinity of crosscuts
48-54 to remove water, and Rusher observed that the pump was running. Tr. II 197.
There was also a pump working on the Main North road before the intersection with the
6W road. Tr. II 198, 231. Rusher testified that, to the best of his recollection after 2.5
years, there was a miner in the crosscut 48-54 area using a jackhammer to create a sump
for a pump in the hard pan bottom. Tr. II 306-08. Since there was a pump running in
that area, it appears that if there was a miner digging a new sump, AmCoal may have
been in the process of installing another pump at the location. Rusher had indicated,
“they were trying to work on it.” Tr. II 308.
There is limited evidence as to when the conditions were actually abated. The
P&D report shows a delay of 15 minutes, from 12:34 to 12:39, due to “Belts/AFC
shutdown (travelway blocked).” Ex. R-58 at 20. The citation was terminated 4 days
later, on April 19; the termination sheet reflecting that the water and mud had been
removed and the road had been graded. Ex. G-2. It is doubtful that abatement occurred
in 15 minutes, because Rusher would still have been in the area, and most likely would
have terminated the citation at that time. April 19 was the date specified on the citation
for termination. It is doubtful that the travel road to the 6W longwall would have been
allowed to remain in what Rusher believed to be an impassable condition for a significant
AmCoal points out in its brief, referencing testimony, mine maps in evidence, and
spad numbers reflected thereon, that crosscuts 38 to 44 ranged from 5,285 feet to 6,185 feet from
the Main North travel road, approximately twice as far as Rusher had estimated. Resp. Br. n.16
at 63.
27

35 FMSHRC Page 1797

length of time. As noted in the discussion of negligence, AmCoal had a road grader for
use in maintaining travel roads. However, it was out of service on July 15. Rusher
opined that grading could have been done by other means, e.g., by dragging a steel beam
through the area, which he had seen done in other mines. Tr. II 303.
I find that the condition would have existed for approximately one shift under
continued normal mining conditions. A limited number of mantrips transporting mining
crews would have attempted to pass through the 6W longwall travel road in that time
frame. The diesel mantrip mired in mud under the overcast would have had to have been
removed before vehicles from outby could have traveled up the road.
The S&S designation, and the Secretary’s arguments on the nature and
seriousness of the hazards presented by the condition of the road, are somewhat at odds
with Rusher’s determination to allow almost 4 days, up to April 19 at 8:00 a.m., for the
citation to be terminated. Ex. G-2. While he felt that AmCoal could have made more of
an effort to address the conditions, he was “not suggesting that you shut down the unit.”
Tr. II 303. Rusher was familiar with the Galatia mine, and knew that water infiltration
impacting roadways affected main entries and travel roads everywhere in the mine. Tr. II
197. Yet he was not aware of any incidents resulting in injuries from a mantrip going out
of control in muddy road conditions. Tr. II 300. Nor was he aware of any such injuries
occurring in
any other mine, although he did not profess to know all the data for the nation’s mines.
Tr. II 300-01.
Considering the length of time that the condition had existed and would have
existed under continued normal mining conditions, the limited number of times that a
mantrip carrying passengers would likely have encountered the conditions, and the fact
that there is no evidence of any injuries resulting from the loss of control of mobile
equipment in wet, muddy, rutted conditions, I find that the hazard contributed to was
unlikely to result in an injury and that the violation was not S&S.28
Negligence
Rusher’s determination that AmCoal’s negligence was high rested upon a number
of factors. He believed that the mantrip mired in mud at the overcast belonged to the
incoming day shift crew, such that supervisors of the incoming day shift and the
subsequently departing midnight shift would have had to walk through the conditions on
As noted in the discussion of bridge board safeguard citations, infra, relevant accident
history should be considered in evaluating whether a violation was S&S. While the Secretary,
through Rusher’s hypothetical examples of how injuries might result from the hazard,
established that an injury causing event could happen, he failed to prove that it was reasonably
likely that such an event will occur. Musser Engineering, 32 FMSHRC at 1281; Amax Coal Co.,
18 FMSHRC 1355, 1358-59 (Aug. 1996).
28

35 FMSHRC Page 1798

the 6W travel road. Tr. II 200-01, 313. He knew that a citation for similar conditions
had been issued a week earlier on the same road, that he issued two such citations that
day, and that the safeguard standard had been cited 71 times in two years at the mine.
Tr. II 194-95, 200; Ex. G-2, G-4. In light of what he believed was AmCoal’s knowledge
of the conditions, he felt there should have been more of an effort to address them, such
as pulling a drag through, or installing more pumps, especially since the road grader was
inoperable.29 Tr. II 309.
If the day shift and midnight shift supervisors had been forced to walk in and out
of the unit on the 6W travel road, through the cited conditions, AmCoal could be charged
with direct knowledge of the conditions several hours before they were cited. However,
as found above, the conditions did not exist when the shift change occurred, and the
respective crews, one traveling inby at 8:30 a.m. and one departing at 9:30 a.m., were
able to navigate the road without delay. The cited conditions developed after the shift
change, and there is no evidence that AmCoal managers were aware of them prior to their
being cited.
The fact that similar conditions had been cited on the same roadway one week
earlier evidences that AmCoal was on notice that such a condition had developed.
However, such wet and muddy conditions were prevalent in the mine, and the fact that a
citation had recently been issued for a different area of the road does little to elevate
AmCoal’s negligence with respect to this violation; nor does the fact that Rusher issued
the subject citation, and one later that afternoon for conditions that all agree developed
rapidly. Rusher acknowledged that there are over 20 safeguards in effect at the mine, and
that citations for 71 safeguard violations could have been for any one of those. Tr. II
300.
The lack of evidence to establish that AmCoal had direct knowledge of the
conditions several hours prior to the issuance of the citation largely undercuts the
significance of Rusher’s perceived lack of effort to address the conditions, although
AmCoal may have been in the process of installing an additional pump at the location.
As Rusher readily acknowledged, water infiltration in the mine was a wide-spread
and persistent problem. Several measures had been employed to address it, but it was not
always contained. The road grader was inoperable on the day in question. The Secretary
questions whether equipment from a nearby mine should have been pressed into service.
However, there is no evidence as to how long it would have taken to obtain and employ
such equipment, what effect it would have had on the other mine, which was also “wet,”
or how long the grader was expected to be out of service.

Rusher testified that he wondered why the road grader was not in the area. Tr. II 302.
However, when he wrote the citations he apparently was aware that the road grader was
inoperable that day, because it was reflected in his notes. Tr. II 302; Ex. G-2.
29

35 FMSHRC Page 1799

Based upon the foregoing, I find that AmCoal’s negligence was no more than
moderate.
Citation No. 7575301
Citation No. 7575301 was issued by Rusher at 2:50 p.m. on July 15, 2010, about
two and one-half hours after he had issued Citation No. 7575300. It also alleged a
violation of Safeguard No. 7568565. The violation was described in the “Condition and
Practice” section of the citation as follows:
There are wet and muddy conditions along with deep ruts and rough areas
in the road that affect the control of mobile equipment operating on the
Main North travel road. This condition exists at approximately crosscuts
No. 82 to 86 and crosscuts No. 48 to 50 on the Main North travel road. A
safeguard was previously issued on this condition that states that all mine
travelways be kept free as practicable of bottom irregularities, debris, and
wet and muddy conditions that could affect control of mobile equipment.
This standard was cited 72 times in two years at this mine.
Ex. G-5.
Rusher determined that the violation was reasonably likely to result in lost
workdays or restricted duty injuries, that it was S&S, that two persons were affected, and
that the operator’s negligence was high. A specially assessed civil penalty in the amount
of $21,900.00 was proposed for this violation.
The Violation
Rusher was on his way out of the mine, having issued the previously discussed
safeguard citation for conditions on the 6W travelway. As he proceeded south on the
Main North travel road, he encountered portions of the roadway that were wet and
muddy, with deep ruts, at crosscuts 82-86 and 48-50. At 2:50 p.m., just over 2 hours
after having issued the citation on 6W travelway, he issued Citation No. 7575301, for a
violation of the same safeguard. The conditions were “basically” the same as those cited
on the 6W travelway, and posed “virtually the same hazard.” Tr. II 202-03. For the
reasons stated above with respect to Citation No. 7575300, I find that the conditions
violated the safeguard.
S&S
I also find, as with Citation No. 7575300, that the violation was not S&S. Rusher
explained that the violation and hazard presented were virtually the same as those he
determined for Citation No. 7575300, and the S&S analysis presents the same issues as
with that citation. The Main North road was not blocked, and mantrips traveling the road

35 FMSHRC Page 1800

at that time of day tended to be occupied by only a driver and one passenger. Tr. II 205.
Consequently, he determined that two persons would be affected if the hazard resulted in
an injury causing event. Rusher had traveled the Main North road on his way up to the
6W longwall panel, and had did not observe conditions that violated the safeguard.
Tr. II 228-29. He agreed that the conditions had changed in a matter of hours, and the
Secretary confirmed that “it is likely that [the conditions] developed rapidly.” Sec’y. Br.
at 22. As with those on the 6W road, they most likely would have been addressed before
they had existed a full shift, possibly sooner because of their location.
Considering the length of time that the condition had existed and would have
continued to exist under continued normal mining conditions, the limited number of
times that a mantrip carrying passengers would likely have encountered the conditions,
and the fact that there is no evidence of any injuries resulting from the loss of control of
mobile equipment in wet, muddy, rutted conditions, I find that the hazard contributed to
was unlikely to result in an injury and that the violation was not S&S.
Negligence
The evidence relevant to AmCoal’s negligence with respect to this violation is
similar to that for Citation No. 7575300, except that the fact that the violative condition
existed only for a short period of time is uncontested. Since it did not exist during the
shift change, there is no argument that supervisors traveling with mining crews observed
the hazardous condition. However, Rusher noted that the Main North road was an
“active travelway” used by “supervisors of all kinds.” Tr. II 207. He added that “hardly
a day ever went by I didn’t see a management person on any shift I go on.” Id. He
believed that a manager should have seen the conditions.
While it is possible that an AmCoal agent observed the violative condition before
the citation was issued, it is equally, if not more plausible, that none did. The condition
existed at 2:50 p.m. It did not exist when Rusher traveled the area on his way to the 6th
West longwall panel. Rusher’s notes reflect that he arrived at the mine at 7:15 a.m.,
participated in a safety talk at 8:00 a.m., terminated citations, inspected mobile
equipment, and inspected a number of seals of mined-out areas. Ex. G-2. He then
proceeded to the 6W travel road, and issued Citation No. 7575300 at 12:38 p.m. He most
likely passed through the area later cited at approximately 11:00 a.m. The violative
condition, which did not exist at that time, developed rapidly, and was cited at 2:50 p.m.
It most likely would have existed for no more than two hours before Rusher issued the
citation. Accepting Rusher’s observation that the Main North road was traveled by a
variety of supervisors in addition to those traveling with mining crews, and that he
observed a “management person” traveling the road at least once per shift on the vast
majority of days he was in the mine, it is, at best, possible that a member of AmCoal’s
management observed the violative condition, and, if so, would have had very little time
to address it. A pump had been installed in the area, and Rusher posited that another
pump may have been needed to handle the water.

35 FMSHRC Page 1801

Considering the above, and the bulk of the analysis of the negligence issue
discussed with respect the Citation No. 7575300, I find that AmCoal’s negligence with
respect to this citation was no more than moderate.
Citation Nos. 8423567 and 8423568 (LAKE 2011-183)
Citation No. 8423567 was issued by MSHA inspector Keith Roberts30at 10:00
a.m. on July 14, 2010, pursuant to section 104(a) of the Act, and alleges a violation of
30 C.F.R. § 75.202(a), which requires that “[t]he roof, face and ribs of areas where
persons work or travel shall be supported or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock bursts.” The violation
was described in the “Condition and Practice” section of the citation as follows:
An area of unsupported rib coal is present along the 7th West Headgate
(003-0) travel road (Entry #2) between XC-34 & XC-35. Three sections
of broken, loose and overhanging rib are present on the south side rib.
The sections are approximately 4' - 5' L x 4' H x 8" T and are separated
from the pillar approximately 1.5" - 2". The entry has been mined into the
soft, unconsolidated floor clay to an approximate depth of 18". The floor
clay and the bottom sections of rib coal have sloughed away to create the
cited condition.
This travel road is frequented by miners operating open-type personnel
vehicles and by miners traveling on foot. This standard was cited 111
times in two years at this mine.
Ex. G-13.
Roberts determined that the violation was reasonably likely to result in a lost
workdays or restricted duty injury, that it was S&S, that one person was affected, and that
the operator’s negligence was high. A specially assessed civil penalty in the amount of
$25,800.00 was proposed for this violation.
The Violation
AmCoal was in the process of developing a new longwall panel, and was using
continuous miners to create a three-entry access to the panel. The left entry facing inby,
Roberts, currently a regulatory compliance officer for White Oak Resources, worked
for MSHA from 1999 to 2011, during which time he conducted numerous inspections of the
Galatia Mine. Prior to joining MSHA, he worked for 15 years as a staff safety engineer at the
Galatia Mine while it was operated by AmCoal’s predecessor Kerr-McGee. He also had worked
for 11 years as a miner, section foreman and training and labor specialist for Old Ben Coal
Company.
30

35 FMSHRC Page 1802

the #1 entry, was the belt entry, the middle entry was the travelway - the 7 West
Headgate (“7WHG”) travelway, and the right entry was the return. A minimum mining
height of 7 feet was required in the travelway to accommodate longwall shields that
would have to be transported to the set-up entries for the panel. The coal seam in that
area was only 5.5 to 6 feet thick. To obtain the required clearance, AmCoal determined
to mine approximately 18 inches of the soft fire clay from the mine floor, rather than the
harder limestone and sandstone layer above the coal seam.
That practice can lead to problems with stability of the ribs. The softer clay tends
to deteriorate, and slough away, removing support from the edge of the coal rib. The
load pan on a continuous miner, or the bucket of a scoop, can cut into the clay,
exacerbating the process. If significant undercutting of the coal rib occurs, the face of the
rib may slough or spall, falling to the mine floor, and/or toppling into the travelway.
AmCoal was encountering significant water in the 7WHG entries. The solid limestone
roof had given way to water-bearing sandstone, and water was flowing into the entries
from the roof. Watersheds and barrel sumps were being installed to remove the water,
but the area was very wet, particularly near the faces.
On July 14, Roberts traveled the 7WHG travelway, accompanied by Matt Mortis,
AmCoal’s safety director. As they arrived at the section, they parked their ride, and their
attention was drawn to a piece of yellow “caution” flagging tape that had been hung from
a roof bolt near the south rib of the entry, between crosscuts 34 and 35, about one
crosscut outby the section transformer and one crosscut inby the mantrip parking area.
Ex. G-13. Upon closer examination, it was apparent that three sections of rib coal had
broken away from the pillar. As Roberts recorded in the citation and his notes, the pieces
were approximately 4 to 5 feet long, 4 feet high and 8 inches thick. They were separated
from the pillar by approximately 1.5 to 2 inches. At that location, approximately 18
inches of floor clay had been mined and the clay had “spalled from beneath the rib coal.”
Ex. G-13. Mortis confirmed the accuracy of Roberts’ description of the violative
condition. Tr. III 72.
Roberts issued Citation No. 8423567 for the unsupported rib, and, also issued
Citation No. 8423568 for inadequate preshift and onshift examinations because the
condition was “easily visible” and had not been recorded in the examination books that
he had reviewed prior to going underground. AmCoal does not challenge the fact of the
section 75.202(a) violation. However, it does challenge the inadequate preshift
examination citation, as well as the special findings, negligence determinations and the
amounts of the penalties for both violations.
S&S
The unsupported rib violation has been established. There were large sections of
coal rib that had broken away from the coal pillar. The violation contributed to a discrete
safety hazard, a risk that the unsupported rib sections would fall and strike a miner. The

35 FMSHRC Page 1803

sections of rib were large, and any such injury would be serious. Consequently, whether
the violation was S&S turns on whether it was reasonably likely that the hazard
contributed to would result in an injury.
The loose rib sections were sizeable, 4 to 5 feet long, 4 feet high and 8 inches
thick. While they might have fallen straight down, i.e., remained upright, 90% of the
time they would topple over into the travelway. Tr. II 280. Absent something that would
have caused the coal to break up and roll, the sections would have fallen approximately 4
feet into the travelway. Tr. II 277. Miners typically walk near the center of the 18-20
foot wide entry. Id. However, Roberts testified that they might have occasion to hang
cable on the rib, or could get close to the rib in a golf cart, if passing another vehicle. Id.
As previously noted, there was a piece of yellow caution tape adjacent to the area
in question. It was hung from a roof bolt, 4 feet away from the rib at the outby end of the
loose pieces. Tr. II 293, Tr. III 81. Yellow flagging generally indicates that caution
should be used; red flagging indicates “stop,” i.e., do not proceed. Tr. II 253, Tr. III 21,
30-32, 57. Flagging material, 3/4 inch wide tape, in both yellow and red, was readily
available to all miners working in the area.31
Terry Hill, an experienced AmCoal mine examiner, conducted the preshift
examination of the area in question between 5:00 a.m. and 7:00 a.m. the morning of July
14. He explained that red flagging is used to prevent access to hazardous areas, e.g.,
areas of unbolted roof. Tr. III 56. Yellow flagging, indicating caution, is used to warn of
equipment or material parked out of a line of sight, or bad rollers on a belt line. Tr. III
57. He has never hung a yellow flag near a rib as a sign to “keep and eye on it.” Tr. III
67-68. If he thought there was an issue with a rib, he would examine it and would red
flag it if it was hazardous, e.g., “spalling off, you know the rib falling off.” Tr. III 62. If
it was not hazardous, he would not flag it.
Stacy Hill, the face boss for the midnight shift, 12:00 a.m. to 8:00 a.m. on July 14,
offered similar explanations for use of flagging. He tries to reserve red flagging for
hazardous roof conditions. Tr. III 30. He has used yellow flagging to mark a rib that he
did not believe was hazardous, but that needed to be watched, and believed that the
yellow flag indicated that the condition was “not that bad” when the flag was hung, or it
“would have been addressed,” i.e., “it wouldn’t have been there.” Tr. III 33-35.
Roberts downplayed the significance of the fact that there was a yellow flag hung
at the location of the violation. It is not mentioned in the citation, and appears only on
the last page of his notes, in his discussion of the duration of the violation. Ex. G-13.
Roberts testified that, as he walked up, he observed “the condition,” the undercut
evidenced by the contrast of the gray clay and the black coal rib, which was “easily
Examiners carry red and yellow flagging. It is available on the units, in the dinner
hole and on equipment. Tr. III 30, 65.
31

35 FMSHRC Page 1804

visible.” Tr. III 240, 244. He denied that his attention was drawn to the area by the
yellow tape, adding that “at some point” he would “probably note the flagging.” Tr. III
262. In contrast, Mortis testified that when he and Roberts arrived at the section and
started walking toward the face, their attention was drawn to the area by the yellow tape.
Tr. III 71.
Mortis’ rendition of events strikes me as considerably more likely. The yellow
tape was designed to call attention to an area or condition. It most likely would have
been far more visible than the undercut, especially in typical underground low light
conditions. Roberts described the undercut as a contrast between gray fire clay and the
black coal rib. Mortis testified that the rib coal would probably have been lightened by
rock and road dust. Tr.III 78.
The sections of loose rib coal were 4 feet high. If they fell, they most likely
would have toppled over, landing approximately four feet into the travelway.32 Miners
using the travelway, whether walking or riding, would tend to stay near the middle of the
entry, and would typically have been at least 5 feet away from the rib.33 Consequently,
falling sections of rib would have been unlikely to cause injury to miners using the
roadway, even if they fell while a miner happened to be passing that particular location.
The presence of the yellow flagging almost certainly rendered the possibility of
injury even more unlikely. The yellow caution flag, hanging 4 feet off the rib, would
have been clearly visible to anyone approaching the area. The normal reaction to the flag
would have been to avoid the area near the rib. Roberts opined that miners might be on
foot hanging cable along the rib, and that a golf cart passing another cart might come
close to the rib. However, there is no indication of whether, or how often, that was likely
to occur. It is doubtful that any miner would have worked at the rib line, given the
presence of the warning tape, and the obvious loose coal, and drivers of golf carts would
also have been unlikely to travel in the area marked by the yellow tape, even if they had
to pull over to let another cart pass.
I find that the hazard contributed to was unlikely to result in an injury producing
event and that the violation was not S&S.

There is no indication of any conditions that would have caused the coal to roll, which
appears unlikely considering that the floor consisted of soft clay.
32

Many of the vehicles that passed the area would not have had canopies. However, the
presence of a canopy would have had little bearing on the likelihood of a rider being injured by a
falling rib, which would most likely have struck the vehicle from the side.
33

35 FMSHRC Page 1805

Negligence
There is no question that the unsupported rib presented a hazardous condition. It
is also apparent that someone at AmCoal had observed something that caused concern
about the rib, although the condition may not have been as severe when the flag was
hung. The critical question as to the negligence determination, as well as whether there
was an inadequate preshift examination, is when the condition occurred, specifically,
whether it existed for a sufficient length of time that an agent of AmCoal should have
observed it.
Roberts’ testimony on the duration of the violation was quite limited. When
asked about the entry of “duration” in his field notes, he explained:
Well, on duration, I reasoned that the condition had to be present at
least one shift, probably longer. There was a piece of yellow flagging
along the side of the rib, which to me would indicate that the area was
beginning to deteriorate.
Tr. III 253.
He went on to state:
Seeing that flag there indicated to me that somebody at least saw
the rib at some point in time and reasoned that it’s not looking real good
and that was the reason for the flagging. There was no equipment parked
in the area. There was no other reason for a yellow flag to be posted at
that location.
But the rib I believe existed at least during the time that the section
foreman was on the unit, and based on the flagging probably at least one
shift prior to that and probably longer.
Tr. III 253-54.
Opinions of experienced inspectors as to the duration of a condition or violation
are frequently offered in a variety of contexts, typically, as here, to establish that a
condition existed when an earlier examination was or should have been conducted. Often
there is some obvious, or at least arguable, basis for crediting the estimate. For example,
an estimate as to the length of time that accumulations of coal, or a certain thickness of
float coal dust, had been present might be supported by evidence as to the rate that such
substances would be expected to be deposited in the given area.

35 FMSHRC Page 1806

There is no such evidence to support Roberts’ opinion on duration.34 The loose
sections separated from the pillar at some point. However, there is no obvious
relationship between the fact of the separation and when it occurred. It appears that
Roberts placed a great deal of significance on the presence of the yellow flagging. Yet,
there is no explanation as to why the presence of flagging should indicate that the
condition existed for any particular length of time. Certainly, one could hardly dispute
Roberts’ conclusion that someone had seen rib conditions that raised a concern prior to
his discovery of the condition. But there is no evidence as to when the flagging was
hung. The identity of the person that hung the flagging, and the time that the flagging
was hung are unknown.35 Tr. II 283, Tr. III 74. Given the ready availability of flagging
tape, Stacy Hill opined that the flag could have been hung by a scoop operator, or other
hourly employee. Tr. III 48-49.
Terry Hill, who conducted the preshift examination on the morning of July 14, did
not observe any hazards in the 7WHG travelway, and so noted on the Preshift Mine
Examiners Report. Tr. III 58-60; Ex-R-60 at 6. He testified that he did not observe a
condition like that observed by Roberts, and that it could not be determined how long the
condition had existed, because “conditions change by the minute.” Tr. III 66. He
explained that if he had seen a yellow flag, he would have checked the conditions in the
area. If they presented a hazard, he would have hung red flagging and contacted a
supervisor to remedy the problem. He would have taken the yellow flag down if the area
was not hazardous. Tr. III 60, 62-63. Hill was cognizant of potential rib problems when
he conducted the preshift examination between 5:00 a.m. and 7:00 a.m. that morning. He
had identified hazardous rib conditions, “rib rash” and “loose rib,” and noted them in his
preshift report. It is highly unlikely that he would have failed to notice yellow caution
tape hanging near a rib. I find that the caution tape was not present during the preshift
examination.

Roberts raised some question as to exactly what the violation was. At one point he
indicated that the undercutting of the rib “in and of itself” was a violation. Tr. II 240. However,
the citation was issued for “bottom sections of the coal rib” that had sloughed away from the
pillar. Ex. G-13. In addition, abatement of the violation was accomplished by taking down the
loose rib sections. There is no indication that it included supplemental support of the rib where
it had not sloughed, or other measures to address undercut areas. Tr. II 254-55, Tr. III 72-73;
Ex. G-13. The Secretary described the violative condition as consisting of “three pieces of loose
rib.” Sec’y. Br. at 29. I find that the violation consisted of loose, unsupported sections of the
coal rib that had sloughed away from the pillar.
34

The midnight shift personnel, including the person that conducted the preshift
examination for the oncoming day shift, had departed the mine by the time Roberts issued the
citation. Tr. II 283.
35

35 FMSHRC Page 1807

As Roberts’ notes indicate, citations had been issued for unsupported ribs in the
same unit and another unit within the previous 3 weeks, and citations for roof/rib control
violations had been issued 111 times in the past 2 years. He had also discussed with
AmCoal safety department personnel problems with rib support in areas where
significant floor clay was being mined, and had emphasized the need to monitor rib
stability.
Tr. II 250-51; Ex. G-13. AmCoal “concedes that it had been placed on notice that
increased efforts to comply with roof control standards, insofar as they related to rib
control issues, were needed at that time in that section.” Resp. Br. at 82. It maintains
that it had increased its efforts to identify and address such conditions.
As evidence of its efforts, AmCoal points to the fact that hazardous rib conditions
were identified in both examinations conducted on July 14 prior to issuance of the
citation. Stacy Hill, who conducted the onshift examination during the 12:00 a.m. to 8:00
a.m. shift, testified that undercut ribs could loose strength and that he actively monitored
rib conditions. Tr. III 15-16. In the course of his onshift examination, he identified
hazardous rib conditions in the #3 entry and began re-supporting the rib with roof bolts,
actions that he recorded in his production and delay, and onshift reports. Tr. III 15-16;
Ex. R-58, R-60 at 5. Roberts acknowledged that the records reflected that hazardous rib
conditions had been reported and addressed. Tr. II 270. Terry Hill, identified hazardous
rib conditions during his preshift examination, took steps to address them, and duly
reported them on his preshift report. Tr. III 56-58; Ex. R-60 at 6. Roberts also
acknowledged that hazardous rib conditions were noted and addressed as a result of the
preshift examination. Tr. II 274.
I find that the violative condition, the loose and unsupported sections of rib that
had separated from the coal pillar, occurred after Terry Hill performed his preshift
examination, and that the yellow flag was hung thereafter. While it is possible that the
condition existed when section foremen arrived with the day shift and departed with the
midnight shift, that has not been established by the evidence. Hazardous rib conditions
were identified and addressed as a result of both examinations that occurred immediately
prior to issuance of the citation, indicating that AmCoal was monitoring rib conditions as
it had been advised to do.36 I find that AmCoal’s negligence with respect to Citation No.
8423567 was low to moderate. Citation No. 8423568, the examination violation, will be
vacated.

The Secretary argues that AmCoal exhibited high negligence because it took a “waitand-see” approach to sloughing ribs. Sec’y. Rp. Br. at 32. However, that statement is based on a
misinterpretation of Terry Hill’s testimony. He did not view “sloughing ribs” as not being
hazardous. Rather he was addressing “sloughing floor clay.” Tr. III 67. Roberts sanctioned that
approach. He had told AmCoal that it “either had to install rib supports or be diligent in taking
down the loose ribs,” i.e., monitor the rib conditions and promptly take down any sections that
became loose. Tr. II 250.
36

35 FMSHRC Page 1808

Citation Nos. 8424517 and 8426154
Citation Nos. 8424517 and 8426154 allege violations of a safeguard requiring that
“bridging lumber” be secured and that loose or dislodged lumber be removed from
travelways.
The Galatia mine has experienced significant water infiltration since its opening.
In low, or especially wet spots, water softens the fire clay mine floor making it difficult
to maintain roadways. Various steps have been taken to keep the roadways passable,
including pumping water, depositing gravel and rock dust, and installing wooden
“bridges,” assemblies of lumber intended to provide a more firm travelway surface. Prior
to 2005, bridges were nailed together, and were much more fragile. Since that time, they
have been made of three layers of approximately 2" by 10" rough-sawn lumber, bolted
together. As fabricated, they are approximately 10 feet wide, 16 feet long and 6 inches
thick. A photograph of new bridges, ready for installation in the mine, was introduced
into evidence. Ex. R-70. Bridges were placed in particularly soft locations, and were
typically covered with gravel. Over-traveling mobile equipment pressed them into the
mine floor. A piece of heavy mobile equipment, e.g., a ram car hauling supplies, can
place considerable stress on a wooden bridge. Not infrequently, boards are broken and
dislodged from bridges.37
In 1990, when Kerr-McGee Coal Corporation operated Galatia, a fatal accident
involving a dislodged bridge board occurred. A ram car rode over a 12-foot-long bridge
board that was lying in a soft, muddy travelway parallel to the direction of travel. As the
car’s forward wheel finished traversing the board, it pressed the end of the board down
into the mine floor, which cantilevered the opposite end up into the air. As depicted in a
photograph, the operator’s compartment of that particular type of ram car was directly
behind the wheel, and about 12 feet away from it. Ex. R-71. The elevated end of the
board entered the compartment and impaled the operator as the car continued to move
forward. MSHA investigated the accident, and issued a report. Ex. R-68.
As a result of the accident, Notice to Provide Safeguard No. 3538483 was issued
on August 17, 1990. It states, in pertinent part:
The established rubber-tired (off track) haulage roadway located in the
No. 1 entry of the 1st East Longwall tailgate entries was not maintained to
allow safe passage of miners and material. Numerous pieces of bridging
lumber (2-1/2" x 10-1/2" x 12'-14'), which were used to stabilize the mine
floor, were dislodged or protruding from the mine floor along the travel
entry. This is a notice to provide safeguards requiring all bridging lumber
Wooden bridges are no longer installed in the Galatia mine. AmCoal has found that a
product called “bottom ash” resulting from the generation of electricity provides more effective
control of soft, muddy travelway conditions. Tr. III 145-46.
37

35 FMSHRC Page 1809

used on the mine floors be secured or that loose and dislodged pieces of
lumber be re-secured or removed from the travelway.
Ex. G-19.
The persistent and widespread wet conditions in the Galatia mine resulted in
hundreds of bridges being installed in numerous locations. JX-1 at 277-79. High
volumes of mobile equipment traffic, especially heavy pieces of equipment such as shield
movers and ram cars carrying supplies, frequently resulted in damage to bridges. Pieces
of bridge boards broken from a bridge and dislodged boards could regularly be found in
muddy travelway areas. When found by MSHA inspectors, violations of the safeguard
standard would be cited. Several bridge board safeguard violations were at issue in a
previously heard and decided case. American Coal Co., 33 FMSHRC 2511 (Oct. 2011)
(ALJ). The history of the use of bridge boards, including the 1990 accident, the issuance
of the safeguard, and the effect of active mining on bridge boards, was thoroughly
examined in the prior hearing. In order to avoid duplicating that effort, the parties
stipulated that a substantial portion of the record from that hearing could be incorporated
into the record in these cases. Accordingly, the record was left open to allow the
submission of designated portions of the prior hearing transcript, and a cross-reference of
exhibits introduced in that proceeding, to exhibits introduced in the present record.38
The record from the previous hearing, as supplemented by the current record,
establishes that heavy equipment, e.g., a ram car hauling supplies, could do considerable
damage to a bridge in a single pass. 33 FMSHRC at 2522; JX-1 at 67, 240, 277-78, 306,
343. Broken or dislodged bridge boards could remain covered with mud and be brought
to the surface by a passing vehicle. 33 FMSHRC at 2534; JX-1 at 256, 359. Many
different types of mobile equipment use the travelways, including shield movers, ram
cars, scoops, tractors, end loaders, mantrips and golf carts. The varying configurations of
the vehicles, particularly the locations of operators and/or passengers, present different
potentials for injuries to miners caused by loose lumber. 33 FMSHRC at 2518; JX-1 at
45, 88, 97, 230-32. Following the 1990 accident, steel bar “lips” were welded along the
top edge of ram car operator compartments in an effort to prevent boards from riding up
the side and entering the compartment. JX-1 at 274; Ex. R-71. While the bars might
catch some boards, boards 4 feet long or longer continued to present a risk of injury.
JX-1 at 229-30, 236. Following the 1990 accident, Kerr-McGee, and later AmCoal, have
conducted periodic training on the dangers posed by loose and dislodged bridge boards
and emphasized the requirement of the safeguard that they be secured or removed from
travelways. 33 FMSHRC at 2522-23; JX-1 at 224-25, 279, 349. Since the 1990 fatal
accident, there have been no fatal, permanently disabling or lost time injuries suffered as
a result of loose or dislodged bridge boards at the Galatia mine. Tr. III 117-19;
JX-1 at 98, 278, 367.
Joint Exhibit 1 (JX-1) consists of portions of the transcript of the previous hearing,
and Joint Exhibit 2 (JX-2) consists of a cross reference of previous and current exhibits.
38

35 FMSHRC Page 1810

Citation No. 8424517 (LAKE 2011-242)
Citation No. 8424517 was issued by MSHA inspector Danny Ramsey39 on August
23, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. §
75.1403, and charges AmCoal with violating Safeguard No. 3538483. The violation was
described in the Condition and Practice section of the order, as amended, as follows:
Bridging lumber was observed in the Main North travelway from #144
cross cut to the 8th West Headgate unit. The bridging lumber measured
approximately 2 feet in length to 16 feet in length. Safeguard #3538483
requires all bridging lumber used on the mine floor to be secured or that
the loose and dislodged pieces of lumber be re-secured or removed from
the travelway.
Standard 75.1403 was cited 67 times in two years at mine 1102752 (67 to
the operator, 0 to a contractor).
Ex. G-18.
Ramsey determined that the violation was reasonably likely to result in a fatal
injury, that it was S&S, that one person was affected, and that the operator’s negligence
was moderate. A specially assessed civil penalty in the amount of $18,700.00 was
proposed for this violation.
The Violation
Ramsey was traveling the Main North travelway when he encountered a wet,
muddy area near the #145 crosscut. The roadway was relatively flat and passable, but
there were ruts approximately 1 foot deep, and heavy equipment would likely have to
“squirm” to get through. Tr. III 90. He observed bridge boards, crib ties and cap boards
in the travelway and along the ribs, and measured two bridge boards, one was
approximately 2 feet long, and the other was approximately 16 feet long.40 One end of
the longer board was elevated approximately 12-18 inches in the air. The other end was
Ramsey joined MSHA in 2003, and has been trained as a ventilation and roof control
specialist, as well as a special investigator. He has extensive experience in the mining industry,
beginning in 1972. He worked at the Galatia mine from 1996 through 2002, holding positions,
including longwall coordinator and superintendent.
39

The safeguard specifies that bridging lumber is to be secured or removed. It does not
address crib ties, cap blocks, or any other type of debris. Under the narrow interpretation rule of
Cyprus Cumberland and SOCCO I the presence of crib ties and cap boards cannot be considered
part of the violative condition, although they may have been citeable under a different safeguard,
e.g., Safeguard No. 7568565.
40

35 FMSHRC Page 1811

under the mud, most likely attached to the bridge because the board could not be
removed by hand. Tr. III 91.
AmCoal does not challenge the fact of violation. It argues that the gravity and
negligence designations are inappropriate and that the assessed penalty is excessive.
S&S - Gravity
It is undisputed that the bridge boards were in the travelway in violation of the
safeguard standard. A measure of danger to safety, a discrete safety hazard, was
contributed to by the failure to re-secure or remove the partially dislodged 16-foot piece
of bridging lumber from the travelway, i.e., that a person using the travelway would be
injured by the board.41 While some injuries resulting from the violation, e.g., a contusion
resulting from incidental contact, might not have been reasonably serious, the majority of
the injuries posed by the presence of the lengthy board, which could impale an equipment
operator or passenger, would be reasonably serious. As is often the case, the primary
issue in the S&S analysis is whether the hazard contributed to by the violation was
reasonably likely to result in an injury.
Although the citation indicates that there were more than two bridge boards present,
Ramsey identified only two. His notes indicate that material was present in the roadway and
along the ribs, where mud had been pushed up. Boards along the ribs would not present a
significant hazard, even if they were of appreciable length. There is no evidence as to other
bridge boards, i.e., their size, number, or location, and they will not be considered other than to
establish the violation. The 2-foot board did not contribute to a discrete safety hazard. At the
prior hearing, Keith Roberts, an MSHA inspector who had worked for 15 years as a safety
engineer at the Galatia Mine for AmCoal’s predecessor as operator, testified that he would not
issue a citation for pieces of bridge lumber that were not of sufficient size to create a hazard.
JX-1 at 454. There, the S&S analysis focused on boards that were long enough to present a
hazard, e.g., 4 feet or longer. 33 FMSHRC at 2518, 2523, 2532. Here, the concern about shorter
boards was described by Ramsey with respect to a piece of equipment of a certain configuration,
the end loader, an articulated vehicle on which a tire was approximately 4 feet away from the
operator’s cab. The potential for injury was described as a board being thrown out from under
the spinning tire into the operator’s compartment. The tire could nearly come into contact with
the operator when the vehicle was fully articulated. However, the end loader, the only vehicle
described as having that particular configuration, had metal and rubber belt fenders around the
tire, which Ramsey implicitly conceded would stop a short board. Tr. III 102-03. In addition,
while it certainly is possible that a smaller board could be pushed back by a spinning tire on a
piece of equipment “squirming” to get through deep mud, there would need to be some
significant gap between the tire and the compartment before a board would be a concern. If the
tire were in close proximity to the cab, mud, debris, or boards, which would move away from a
spinning tire at a tangent, would pass under the operator’s cab. Moreover the area in question
was relatively flat, straight and passable, such that significant articulation of a vehicle would
have been highly unlikely.
41

35 FMSHRC Page 1812

Ramsey’s primary concern was the 16-foot board, which he believed presented a
potential for a fatal injury. He had read about the 1990 accident that prompted the
issuance of the safeguard, and believed that it was reasonably likely that the long board
would cause a fatal injury by impalement. As with the inspectors who issued bridge
board safeguard violations at issue in the prior case, his determination appears to have
been based almost exclusively on the fact of the 1990 accident. 33 FMSHRC at 2523.
He stated that he marked every bridge board safeguard violation as fatal. Tr. III 121. An
AmCoal official testified in the prior hearing that all MSHA inspectors marked such
violations fatal. JX-1 at 295.
As noted in the 2011 Decision, the 1990 accident was a highly unusual incident
that occurred under very specific conditions. While it is not outside the realm of
possibility that a fatal impalement-type injury might occur with a long board, it is highly
unlikely that such an event would occur. 33 FMSHRC at 2523. There, the presence of
multiple boards of appreciable length, in a very muddy, wet travelway, where operators
of heavy equipment had to struggle to climb a grade as the travelway emerged from
under an overcast, was found to be S&S. Here, there was a single, partially dislodged
board, 16 feet in length, in a relatively flat, passable, travelway with 6"-12" of mud.
The 16-foot board was longer than the wheel-to-cab distance of any piece of
equipment discussed at either hearing. Consequently, as situated, it could almost
certainly not have been cantilevered up into the cab of a piece of mobile equipment as in
the 1990 accident. The fact that it most likely remained attached to the bridge, rendered
such an occurrence even more unlikely. It is significant that the board was protruding up
above the travelway surface some 12"-18". While a ram car or another piece of heavy
equipment would most likely have pushed it down, pushed it out of the way, or broken it
off, there was a potential for it to enter the open riders’ compartment of a smaller vehicle,
such as a golf cart. Ramsey was concerned about such an occurrence. However, Robert
Bretzman, another MSHA inspector with extensive mining experience, who issued a
similar bridge board safeguard violation, opined that injuries to operators of open
vehicles like golf carts would not be reasonably likely because they could see and avoid
bridge boards. Tr. III 177-78. See discussion of Citation No. 8426154, infra.
AmCoal places considerable emphasis on the fact that, in the more than 20 years
since the 1990 accident, bridge boards have not caused any injuries at Galatia or any
other mines where they have been used. The Secretary countered, citing Elk Run Coal
Co., Inc., 27 FMSHRC 899, 906 (Dec. 2005), that the absence of an injury-producing
event when a cited practice has occurred does not preclude an S&S determination.
AmCoal, in turn, points out that in Elk Run the Commission was careful to add, “[t]his is
not to say that a history of roof falls in a mine is not pertinent to the consideration of the
reasonable likelihood of an injury.” Id. at 906.42 AmCoal argues that, in light of the
42

In support of this observation, the Commission cited as examples two cases in which
(continued...)

35 FMSHRC Page 1813

lengthy period during which no bridge board injuries occurred, the Secretary has failed to
establish a reasonable likelihood that the hazard contributed to “will cause injury,” citing
Musser Engineering, 32 FMSHRC at 1281.
It is clear that the absence of an injury-producing event while a cited practice has
occurred does not preclude an S&S finding. However, relevant accident history can and
should be considered in the S&S determination. While there is no evidence that the
specific condition cited by Ramsey had existed for an appreciable length of time, similar
conditions have existed almost daily for over 20 years following the 1990 accident.
There was general agreement that large numbers of wooden bridges have been used in
Galatia’s wet/muddy travelways prior to and after the 1990 accident, and that high
volumes of heavy mobile equipment traffic exact a heavy toll on the bridges, such that
broken and dislodged bridge boards were almost constantly lying in travelways, visible
or covered.43 Violations of the bridge board safeguard have been cited, not infrequently,
by MSHA inspectors, and AmCoal personnel, who have been trained to remove bridge
board hazards, have no doubt removed a large number of boards over the years.
Bretzman testified that AmCoal was well aware of the importance that MSHA placed on
compliance with the bridge board safeguard, and that citations would be issued whenever
loose or dislodged bridge boards were found in travelways. Tr. III 179-80.
Despite what was most likely frequent exposure of numerous equipment operators
to various sized pieces of bridge boards in travelways, there have been no serious injuries
caused by bridge boards since 1990; in fact, there have been no injuries at all. This is
true even though bridges installed prior 2005 were much more fragile, and prone to
breaking up. In addition, bridges have been used in other wet/muddy mines, and there is
no evidence of bridge board related injuries in such mines. Tr. III 117-19. The tragic
accident in 1990 established that loose or dislodged bridgeboards in travelways present a
safety hazard. While it demonstrated that the hazard could cause a serious injury, it does
not establish that such an injury would be reasonably likely to occur.
The subject condition existed for an unknown length of time. There is no
evidence from which it could be determined how long the board had been dislodged. It
was not noted during the preshift examination that was conducted between 4:00 a.m. and
8:00 a.m. that morning, a few hours before the citation was issued. Ex. R-60 at 24-25.
(...continued)
judges erred in failing to consider histories of roof falls and unstable roof in making S&S
determinations. Lion Mining Co., 18 FMSHRC 695, 699 (May 1996); Youghiogheny & Ohio
Coal Co., 9 FMSHRC 2007, 2012 (Dec. 1987).
42

At the prior hearing, Stephen Willis, AmCoal’s manager of health and safety, testified
that hundreds of bridges had been used at the Galatia mine, that damage by heavy equipment was
“ongoing” and “never ends,” and that clean-up of loose and dislodged bridge boards was going
on “constantly.” JX-1 at 277-79.
43

35 FMSHRC Page 1814

Since there is no evidence to establish that it had been dislodged at some earlier point in
time, I find that it was dislodged after the preshift examination had been conducted, most
likely by the mobile equipment traffic associated with the morning shift change and
supplying the new shift. Under normal continued mining conditions, the hazardous
condition could have been expected to continue to exist until the next preshift
examination, i.e., 12:00 p.m. to 4:00 p.m. The condition was obvious, and the long board
should have been identified and removed during that examination.
Considering the length of time that the violation had existed and would have
continued to exist under normal continued mining operations, less than one shift, the
lengthy history of similar conditions having resulted in no injuries, and the nature of the
specific condition, I find that the hazard contributed to was unlikely to cause a lost work
days injury and was not S&S.
Negligence
Ramsey determined that AmCoal’s negligence was moderate. AmCoal contends
that its negligence was no more than low, arguing that the Secretary offered no evidence
that anyone at AmCoal knew about the dislodged boards before the citation was issued.
Ramsey could not determine how long the boards had been in the travelway. Tr. III 112;
Ex. G-18. Their presence had not been noted during the preshift examination that was
conducted that morning. Ex. R-60 at 24-25. However, he had issued a citation for a
violation of the bridge lumber safeguard one month earlier, and would have spoken to
mine management officials about it. Consequently, the Secretary contends that AmCoal
was on notice of a need for greater compliance efforts with respect to the bridge board
standard.
At the earlier AmCoal hearing, it was established that virtually any piece of heavy
equipment can break lumber from a bridge simply by maneuvering through one of the
muddy areas where bridges are typically located. Loose or dislodged bridge boards may
remain in the mud, virtually invisible until disturbed by a passing vehicle. JX-1 at 256.
AmCoal was well aware of the problems posed by bridges, and provided training on the
dangers posed by bridge boards and the obligation to comply with the safeguard by
removing them from travelways. AmCoal had been cited for 67 violations of the general
safeguard standard in the preceding 2 years. However, as Ramsey conceded, there were
over 20 safeguards in effect at the mine. There is no evidence as to which, if any, of
those violations involved loose bridging lumber, with the exception of the citation that
Ramsey had issued a month earlier. AmCoal was well aware of the hazards posed by
loose or dislodged bridging lumber, and had taken steps to address that hazard.
Compliance with the safeguard was an ongoing topic of training. The fact that a citation
related to bridging lumber had been issued one month earlier, and that other violations
had been issued under the broad safeguard standard, did not significantly enhance
AmCoal’s negligence with respect to this violation.

35 FMSHRC Page 1815

The presence of crib ties and cap boards, in Ramsey’s words “scattered through
there,” is troubling. Tr. III 127. While they are not within the applicable scope of the
safeguard, they were pieces of wood lying in the travelway that could possibly have been
considered to be debris that should have been removed under the previously discussed
safeguard.44 The presence of those boards, along with the two bridge boards that Ramsey
cited, at least suggests that AmCoal should have been paying more attention to its
obligation to remove dislodged bridge boards from travelways.
I find that AmCoal’s negligence was moderate.
Citation No. 8426154 (LAKE 2011-184)
Citation No. 8426154, was issued by MSHA inspector Robert Bretzman45 on
September 2, 2010, pursuant to section 104(a) of the Act, and alleges a violation of 30
C.F.R. § 75.1403. It charges Respondent with violating the previously discussed bridge
board safeguard. The violation was described in the “Condition and Practice” section of
the citation as follows:
The 6W Longwall Travelway was not kept free of debris, the travelway
was also wet and muddy. A broken bridge board was along the side of the
travelway. The bridge board had been run over by mobile equipment.
The part of the board which was exposed was approximately 42 inches
long by 8 inches wide. Standard 75.1403 was cited 67 times in two years
at mine 1102752 (67 to the operator, 0 to a contractor).
Ex. G-21.
Bretzman determined that the violation was reasonably likely to result in a fatal
injury, that it was S&S, that one person was affected, and that the operator’s negligence
was moderate. A regularly assessed civil penalty in the amount of $5,080.00 was
proposed for this violation.

Crib ties are square or rectangular pieces of lumber that are stacked to make a crib.
They are typically 4"x4" or 4"x6" and 3 or 4 feet long. Cap boards are wooden wedges driven
between the crib and the mine roof. Some of the crib ties and cap boards were in the travelway,
and some had been thrown to the side. Tr. III 128-29.
44

Bretzman has over 25 years of experience in the coal mining industry, much of it as a
maintenance supervisor. He also was responsible for setting up longwall panels, and
maintaining travelways to facilitate that activity. He joined MSHA in 2007, and has been
trained as a special investigator. Tr. III 147-49.
45

35 FMSHRC Page 1816

The Violation
Bretzman was part of an MSHA team that intended to inspect AmCoal’s longwall
mining operation on September 2, 2010. A team was used in order to minimize down
time for the high-production longwall mining machinery. As he traveled up the 6 West
longwall travelway, the mantrip went through a wet, muddy area. AmCoal had placed
gravel in the middle of the travelway in an attempt to repair it. Bretzman was a
passenger, riding on the right side of the vehicle, and saw a loose, dislodged bridge board
on the right side of the travelway. He measured the exposed portion of the board. It was
42 inches long and 8 inches wide. An additional part of the board, of unknown length,
was buried in the mud. The board was flagged, to prevent further travel in the area, and
Bretzman proceeded inby to participate in the longwall inspection. When he returned, he
was told that the board had been removed, and he terminated the citation.
As with the previous bridge board citation, AmCoal does not dispute the fact of
the violation. It challenges the gravity and negligence designations and the amount of the
penalty.
Significant and Substantial
The fact of the violation has been established. A measure of danger to safety, a
discrete safety hazard, was contributed to by the failure to re-secure or remove the loose,
dislodged piece of lumber from the travelway, i.e., that a person using the travelway
would be injured by the board. An injury inflicted by this relatively lengthy board, that
could impale an operator or passenger, would be reasonably serious. The primary issue
in the S&S analysis is whether the hazard contributed to by the violation was reasonably
likely to result in an injury.
Bretzman was unable to determine how long the board, which had been covered
at one time, had been exposed. Tr. III 167. Mine examiners who had passed through the
area on previous shifts noted the muddy conditions and work being done to remedy those
conditions. Ex. R-59 at 24-30. As Bretzman noted, AmCoal management was well
aware of the importance that MSHA placed on compliance with the bridge board
safeguard. Tr. III 167. Supervisors had passed through the area in conjunction with the
shift change. The exposed board was obvious. It most likely was dislodged, or became
exposed, as a result of the shift change traffic, and most likely would have been removed
before or during the next examination, i.e., by the end of the shift. Consequently, the
hazard would have existed for less than one shift.
Bretzman knew the miner who was killed in 1990, and he was familiar with the
facts of that bridge board accident. Tr. III 151. It obviously was a major factor in his
determination that the board could cause a fatal injury, because he was not aware of any
other injuries occurring due to the presence of loose or dislodged bridge boards.
Bretzman related that there have been incidents, including injuries, related to bolts,

35 FMSHRC Page 1817

pieces of wood and other debris being run over by mobile equipment. Tr. III 162. He
had been struck by debris that had been run over by a vehicle he was riding in, although
he did not suffer an injury resulting in lost work days. Tr. III 160, 173. He viewed the
high volume of traffic as a significant consideration in determining that an injury was
reasonably likely, because of the number of persons that would have been exposed to the
hazard. Tr. III 177-78.
In general, there have been high volumes of traffic on most, if not all, of the
Galatia mine’s travelways. As noted above, hundreds of wooden bridges have been
placed in wet and muddy areas, and mobile equipment has frequently dislodged pieces of
lumber from those bridges. Yet, there have been no injuries attributable to loose and
dislodged bridge boards in more than 20 years, with the exception of the 1990 incident.
As with the previous citation, considering the length of time that the violation had
existed and would have continued to exist under normal continued mining operations,
less than one shift, and the lengthy history of similar conditions having resulted in no
injuries, I find that the hazard contributed to was unlikely to cause a lost work days injury
and was not S&S.
Negligence
Bretzman rated AmCoal’s negligence as moderate. However, he noted that he
could have rated the negligence higher because the board was found at the beginning of
the shift and supervisors had been through the area. Tr. III 161. The Secretary adds that
AmCoal should have been on notice of a need for greater compliance efforts because of
numerous citations for safeguard violations, including the issuance of two citations for
violations of the bridge board safeguard within the past month.
If the dislodged board had been obvious when the area had been examined, or
when supervisors passed through, AmCoal’s negligence could well have been high.
However, Bretzman could not determine when the board had become exposed.
Tr. III 167. Consequently, there is insufficient evidence to support a finding that the
examiner or other supervisors were highly negligent. It was noted on the citation that the
general safeguard standard had been violated 67 times in the past 2 years. However,
violations of the more than 20 safeguards in effect at the mine did not significantly
enhance AmCoal’s negligence with respect to this bridge board safeguard violation.
Nor do the citations for violations of the bridge board safeguard establish prior
notice on the facts of this case, because they do not necessarily evidence a need for
greater compliance efforts. Bridge boards can be broken loose, or previously dislodged
bridge boards can be pushed to the surface, by any of the numerous pieces of heavy
equipment using the travelways of the large Galatia mine. AmCoal’s obligation under
the safeguard is to re-secure or remove such boards, and it had taken substantial steps to
meet its obligation, in the form of periodic training. MSHA’s enforcement efforts, of

35 FMSHRC Page 1818

which AmCoal was well aware, further emphasized the need for compliance. Ramsey
was unable to tell when the bridge boards he cited on July 19 and August 23, had been
dislodged. While it is possible that he was not the first individual to have observed the
boards, the areas had been examined not long before the citations were issued and no
hazards were noted. In short, the presence of the bridge boards in the travelways, in
itself, does not compel a conclusion that AmCoal should have done something more than
it was doing to comply with the safeguard. Neither inspector identified additional
measures that AmCoal should have employed to find and remove bridge boards.
The citation was based on the presence of one bridge board. That board could
have been dislodged or brought to the surface shortly before Bretzman found it. It was
visible for some period of time before it was found, but that time period is unknown.
I find AmCoal’s negligence to have been low to moderate.
The Appropriate Civil Penalties
As the Commission reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760,
1763-64 (Aug. 2012):
Section 110(i) of the Mine Act grants the Commission the authority to assess
all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs
that the Commission, in determining penalty amounts, shall consider:
the operator's history of previous violations, the appropriateness of
such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
Under this clear statutory language, the Commission alone is responsible
for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at
1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s
proposed penalties . . . we find no basis upon which to conclude that [MSHA’s
Part 100 penalty regulations] also govern the Commission.”). While there is no
presumption of validity given to the Secretary’s proposed assessments, we have
repeatedly held that substantial deviations from the Secretary’s proposed
assessments must be adequately explained using the section 110(i) criteria.
E.g., Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612
(May 2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge
need not make exhaustive findings but must provide an adequate explanation of
how the findings contributed to his or her penalty assessments. Cantera Green, 22

35 FMSHRC Page 1819

FMSHRC at 622. In addition to considering the statutory criteria, the judge must
also set forth a discernible path that allows the Commission to perform its review
function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).
Although all of the statutory penalty criteria must be considered, they need not be
assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
Generally speaking, the magnitude of the gravity of a violation and the degree of operator
negligence are important factors, especially for more serious violations for which substantial
penalties may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge justified in relying
on utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co.,
30 FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based
upon findings of extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC
705, 713 (July 2001) (judge did not abuse discretion by weighing the factors of negligence and
gravity more heavily than the other four statutory criteria).
Findings on Penalty Criteria
Good Faith - Operator Size - Ability to Continue in Business
The parties stipulated that AmCoal abated the violations timely and in good faith, and
that the proposed penalties would not affect its ability to remain in business. Tr. 5-6. The
parties did not stipulate to the size of AmCoal as an operator. However, forms reflecting
calculations of penalty assessments were filed with the petitions and indicate that AmCoal is a
very large operator, as is its controlling entity, and I so find. AmCoal’s good faith abatement
efforts should be considered a minor mitigating factor in the penalty assessment process. The
fact that it is a very large operator and that the proposed penalties would not affect its ability to
remain in business, while not aggravating factors, indicate that a penalty should be higher than
that which would be imposed on a smaller operator.
History of Violations
AmCoal’s history of violations is reflected in several exhibits. A report generated from
MSHA’s database, typically referred to as an “R-17” shows closed violations with a final order
date between January 14, 2009 thru April 13, 2010. Ex. G-28. The report reflects that 889
violations became final in that time period, 135 of which were S&S, and 7 of which were
specially assessed. Another report shows all violations issued between July 14, 2008 and July
14, 2010. Ex. G-30. Copies of some of the citations issued for roof and rib control violations
were also introduced into evidence. Ex. G-29. I accept the figures reflected in the reports as
accurate. However, the overall violation history is deficient in that it provides no qualitative
assessment, i.e., whether the number of violations is high, moderate or low. See Cantera Green,
22 FMSHRC at 623-24.46
46

This is particularly disconcerting because, in denying Respondent’s motion to compel,
(continued...)

35 FMSHRC Page 1820

Qualitative violations’ history information can be found on the forms reflecting
calculations of the proposed assessments. The Secretary’s Part 100 regulations for regular
penalty assessments take into account two aspects of an operator’s violation history, the “total
number of violations and the number of repeat violations of the same citable provision of a
standard in a preceding 15-month period.” 30 C.F.R. § 100.3(c). Only violations that have
become final are used in the calculations. For total violation history, points used in the penalty
calculation are assigned on the basis of the number of violations per inspection day, ranging
from 0 points for 0 to 0.3 violations per day to 25 points for in excess of 2.1 violations per day.
Forms reflecting regular penalty assessments for three of the litigated violations in Docket No.
LAKE 2011-184 reflect an assessment of 10 points for AmCoal’s overall violation history.
I find that AmCoal’s overall history of violations, as relevant to these violations, was
moderate, and should be considered a neutral factor in the penalty assessment process.
Gravity - Negligence
Findings on gravity and negligence are set forth in the discussion of each violation.
The Secretary’s Penalty Assessment Process – Special Assessments vs. Regular Assessments
The Secretary specially assessed penalties for seven of the litigated violations. The
special assessments totaled $161,200.00, which is 245% higher than the total of $46,694.00 that
would have resulted from the regular assessment process. AmCoal argues that the Secretary’s
secretive special assessment process arbitrarily subjects it to substantially enhanced penalties,
and deprives it of due process. While, as explained below, AmCoal’s arguments are ultimately
unavailing because the Commission imposes civil penalties de novo, the Secretary’s
determination to specially assess a civil penalty has significant practical consequences. In
AmCoal’s words, “the large disparity between the proposed special assessments and what would
have resulted under the regular assessment guidelines, make informal resolution of such matters
almost impossible and make time consuming and costly trials much more likely.” Rsp. Br. at 7.
In addition, Commission ALJs are obligated to explain any substantial divergence
between a penalty imposed and that proposed by the Secretary. As explained in Sellersburg
Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984):
When . . . it is determined that penalties are appropriate which substantially
diverge from those originally proposed, it behooves that Commission and its
judges to provide a sufficient explanation of the bases underlying the penalties
(...continued)
the absence of qualitative information in the typical violation history reports was highlighted,
and the parties were instructed that the statutory penalty criteria should be regarded as
substantive elements of their respective cases, and should not be treated as afterthoughts. Order
Denying Motion to Compel, (November 15, 2012).
46

35 FMSHRC Page 1821

assessed by the Commission. If a sufficient explanation for the divergence is not
provided, the credibility of the administrative scheme providing for the increase
or lowering of penalties after contest may be jeopardized by an appearance of
arbitrariness.
The lack of transparency in the Secretary’s special assessment process, as discussed
below, coupled with the Secretary’s refusal to disclose the bases for specially assessing a
penalty,47 can frustrate attempted explanations. A review of the Secretary’s penalty assessment
procedures may assist in understanding problems that may be posed by special assessments.
Through notice and comment rulemaking, the Secretary has promulgated regulations
specifying the “Criteria and Procedures for Proposed Assessment of Civil Penalties.” 30 C.F.R.
Part 100. Those regulations provide two options for determining the amount of a civil penalty to
be assessed by the Secretary, regular assessment and special assessment. 30 C.F.R. §§ 100.3,
100.5(a), (b). Penalties for the vast majority of violations are determined through the “regular
assessment” process, whereby penalty points are assigned pursuant to criteria and tables that
reflect the factors specified in sections 105(b) and 110(i) of the Act.48 30 C.F.R. §100.3. Under
the regulations, penalty points are assigned based on the size of the operator and the operator’s
controlling entity; the operator’s history of previous violations; the operator’s history of repeat
violations of the same standard; the degree of the operator’s negligence; and, the gravity of the
violation, including the likelihood of an occurrence of an event against which a standard is
directed, the severity of injury or illness if the event were to occur, and the number of persons
potentially affected if the event were to occur. A penalty amount is determined by applying the
total of the points assigned to a “Penalty Conversion Table,” which specifies penalties ranging
from $112.00 for 60 or fewer points, up to the statutory/regulatory maximum of $70,000.00 for
144 or more points. That figure may then be adjusted by reducing it by 10% if the operator
demonstrated good faith in abating the violation. 30 C.F.R. §100.3(f). A further reduction may

Operators frequently seek production of documents used in the special assessment
process, specifically the “Special Assessment Review Form (“SARF”),” which contains the
issuing inspector’s recommendation as to the appropriateness of a special assessment and his
reasons therefore, as well as the recommendations of supervisors up the chain of command. The
Secretary consistently objects to production on grounds of relevance and deliberative process
privilege. As noted in an order denying a motion to compel production of SARFs, Commission
Judges have split on whether the forms are discoverable. Big Ridge, Inc., 34 FMSHRC ___,
Order Denying Respondent’s Motion to Compel, (November 9, 2012) (ALJ). AmCoal’s motion
to compel production of SARFs in these cases was denied. Order Denying Motion to Compel
(November 15, 2012).
47

A report reflecting AmCoal’s history of violations showed that 889 violations had
become final during the pertinent period, 865 of which had been regularly assessed. Ex. G-28.
An additional 17 violations had received small “single penalty” assessments, an option no longer
available.
48

35 FMSHRC Page 1822

occur if the operator can demonstrate to MSHA’s District Manager that the penalty will
adversely affect its ability to continue in business. 30 C.F.R. §100.3(h).
The regulations also provide that MSHA may elect to waive the regular assessment
process if it determines that conditions warrant a special assessment. 30 C.F.R. §100.5(a), (b).
The regulations do not further explain what conditions may warrant a special assessment.49 Nor
do they identify how the amount of a special assessment will be determined, other than to state
that “the proposed penalty will be based on the six criteria set forth in 100.3(a). All findings
shall be in narrative form.” Id. The narrative findings for special assessments are typically brief
and conclusory. They include a reference to the gravity of the violation, e.g., “serious,” the
negligence of the operator, e.g., “high,” and relate that “[b]ased on the six criteria set forth in
30 CFR 100.3(a) and the information available to the Office of Assessments, it is proposed that”
the operator be assessed the following civil penalty. E.g. Ex. R-13. Additional information can
be gleaned from a “Special Assessment Narrative Form,” which reflects a calculation of both a
regular assessment and the special assessment for a violation. Both calculations follow the
format of the regular assessment process, except that additional points are assigned in the special
assessment for gravity and negligence factors.50 The resulting penalty points totals are then
compared to the Penalty Conversion Table. A range for a proposed special assessment is
established by adding and subtracting 25% from the table result, and the proposed special
assessment is selected from within that range. For example, the special assessment calculation
for Citation No. 8423567 resulted in a penalty point total of 128, for which the table specified a
penalty of $25,810. The range for the special assessment was $19,300 to $32,200, and the
proposed special assessment was $25,800. A regular assessment for the violation was calculated
as $7,579. Ex. R-14.
Method for Determining the Amount of Penalties for the Litigated Violations
The purpose of explaining significant deviations from proposed penalties is to avoid the
appearance of arbitrariness. Similarly situated operators, determined to be liable for violations
of similar gravity, negligence and other penalty criteria, ideally should not be assessed
significantly different penalties. Absent some guideline, however, a judge has no quantitative
reference point to aid in specifying a penalty within the current statutory/regulatory range of
$1.00 to $70,000.00. The Secretary’s regulations for determination of a penalty amount by a
regular assessment,
In 2007, the Secretary substantially amended the penalty regulations, significantly
increasing penalties for most violations, eliminating the single penalty assessment, and deleting
language from section 105(a) that specified eight categories of violations “that would be
reviewed to determine whether a special assessment is appropriate,” including, “[v]iolations
involving an extraordinarily high degree of negligence or gravity or other unique aggravating
circumstances.” Ex. R-36, 30 C.F.R. Part 100 Final Rule, 72 Fed. Reg. 13,592, 13,621 (March
22, 2007).
49

50

There is also a slight difference in treatment of the good faith abatement factor.

35 FMSHRC Page 1823

30 C.F.R. §100.3, take into consideration all of the statutory factors that the Commission is
obligated to consider under section 110(i) of the Act. The product of that regular assessment
formula provides a useful reference point that would promote consistency in the imposition of
penalties by Commission judges.51
Accordingly, in determining penalties for the litigated violations, the penalty produced by
application of the Secretary’s regular assessment formula will be used as a reference point, and
adjusted depending on the particular findings with respect to the statutory penalty criteria. The
tables and charts in the regulations provide a limited number of categories for some factors. For
example, the table for operator’s negligence consists of five gradations, ranging from “No
negligence” to “Reckless disregard.” 30 C.F.R. §100.3(d). In reality, however, the degree of an
operator’s negligence will fall on a continuum, dictating that adjustments will generally be
required. Other unique circumstances may dictate lower or higher penalties. Violations
involving “extreme gravity” and/or “gross negligence,” or, as stated in the former section 105(a),
“an extraordinarily high degree of negligence or gravity, or other unique aggravating
circumstances,” may dictate substantially higher penalty assessments. A party seeking a reduced
or an enhanced penalty must assume the burden of producing evidence sufficient to justify any
requested adjustment. Where the Secretary urges a penalty higher than that derived by reference
to the regular assessment process, e.g., a higher penalty resulting from the special assessment
process, he will have the burden of establishing the appropriateness of the higher penalty, based
upon the statutory penalty criteria.
In conclusion, whether the Secretary proposes a regularly or a specially assessed penalty
is not relevant to the Commission’s determination of a penalty amount. While AmCoal’s
arbitrariness and due process arguments are unavailing,52 its concerns about the practical
implications of the Secretary’s determination to specially assess a violation, especially when the
assessment is not based upon extreme gravity and/or gross negligence, are well founded, as
evidenced by these proceedings.

See Magruder Limestone Co., Inc., 35 FMSHRC ___ (May 21, 2013) (ALJ) (slip op.
at 27) (regular assessment regulations provide a helpful guide for assessing an appropriate
penalty that can be applied consistently).
51

AmCoal argued that the absence of criteria specifying what violations would be
specially assessed, and how special assessments would be determined, renders the special
assessment process impermissibly vague in violation of the due process clause, citing FCC v.
Fox Television Station, Inc., 132 S.Ct. 2307, 2317 (2012). It also argued that the process cannot
pass muster under the Commission’s reasonably prudent person test, described in Lanham Coal
Co., 13 FMSHRC 1341, 1343-44 (Sept. 1994). However, as the Secretary pointed out, the FCC
and Lanham cases involved substantive standards, not penalties, and AmCoal did not challenge
the language of any of the mandatory standards.
52

35 FMSHRC Page 1824

Docket No. LAKE 2011-183
Citation No. 8424958
Citation No. 8424958 alleged a violation of the roof and rib control standard, that was
reasonably likely to result in a lost work days injury to one person, was S&S and the result of
AmCoal’s moderate negligence. AmCoal withdrew its contest to the citation and special
findings, and challenged only the amount of the penalty. A specially assessed civil penalty in the
amount of $7,700.00 was proposed for this violation.53 Ex. R-13. The calculation of the
proposed special assessment is set forth on a Special Assessment Narrative Form. Ex. R-14.
That form also demonstrates that a penalty of $2,282.00, would have been assessed under the
regular assessment formula contained in the Secretary’s Part 100 regulations, 30 C.F.R. Part 100.
In proposing an enhanced penalty, the Secretary argues, in essence, that the gravity of the
violation was more serious and AmCoal’s negligence was higher than charged in the citation. In
addition, he contends that the imposition of higher penalties is warranted to discourage
AmCoal’s “knowingly passive” approach to addressing particular hazards that repeatedly occur.
As noted previously, Reynolds’ testimony on the gravity of the violation varied somewhat from
what he had recorded in his contemporaneous notes. He testified that the condition presented a
hazard of rocks falling from the roof and, since the area was “heavily traveled” there was an
“increased risk to that many miners.” Tr. II 31-35. In contrast, his notes reflect that most traffic
bypassed the area, one person, the material man, was identified as being affected by the
violation, and that miners traveled the area “at least once per shift,” observations more consistent
with the assessment of gravity in the citation. Ex. G-32.
This violation involves neither extreme gravity, nor gross negligence, factors that have
justified imposition of substantial penalties in other cases. Nor has the Secretary presented
evidence sufficient to justify a finding that AmCoal demonstrated a knowingly passive approach
to addressing known hazards.54 As noted above, however, the inspector’s determination of
In March 2010, MSHA implemented a Rules to Live By program (“RTLB”) that
placed increased enforcement emphasis on certain standards that had been more frequently cited
in fatal accident investigations from 2000 - 2008. Ex. G-31. Under the RTLB program,
violations of the subject standards were to be reviewed for possible special assessment of
penalties. Because section 75.202(a) was one of “those standards for increased attention,”
Reynolds prepared and forwarded a Special Assessment Review Form, and the violation was
ultimately specially assessed. Tr. II 8. AmCoal’s motion to compel production of the SARF
over the Secretary’s objection on grounds of deliberative process privilege and relevance was
denied.
53

MSHA’s violation history report shows that 69 roof/rib control violations became
final in the pertinent 15-month period, six of which involved high negligence. AmCoal notes
that the Secretary’s penalty assessment regulations provide for enhanced penalties for repeat
(continued...)
54

35 FMSHRC Page 1825

moderate negligence was conservative. Damage to the bolts most likely occurred over a
considerable period of time. While additional bolts were most likely added to compensate for
some of the damaged bolts, the area clearly presented ongoing roof control issues and should
have been closely examined, especially because it was immediately adjacent to a significant
prior roof fall.
Considering the factors enumerated in section 110(i) of the Act, and guided by the
Secretary’s regulations governing regular assessments, I impose a penalty in the amount of
$4,500.00 for this violation.
Citation No. 7575299
Citation No. 7575299 alleged a violation related to exposed electrical conductors on a
power cable in the bottom maintenance shop, that was reasonably likely to result in a fatal injury
to one miner, and was attributable to AmCoal’s high negligence. AmCoal withdrew its contest
to the violation and the findings on gravity. It challenged the negligence determination and the
amount of the penalty. AmCoal’s negligence was found to be moderate, rather than high. A
specially assessed civil penalty of $47,000.00 was proposed by the Secretary. In contrast, a
penalty of $14,334.00 would have been proposed if the violation had been regularly assessed.
Ex. R-14.
The Secretary argues that the extreme levels of gravity and negligence warrant
heightened penalties. The gravity of the violation was very serious, but not extreme. AmCoal’s
negligence was moderate. These factors, alone, or in combination, are not comparable to those
found to have justified substantial enhancements of penalties in the cases cited above. If the
assessment calculations are adjusted to reflect moderate negligence, the result would be a special
assessment of approximately $14,743.00, and a regular assessment of $4,329.00. Both
calculations include a significant enhancement for the serious gravity of the violation. They are
232% higher than if the reasonably likely injury would have resulted in lost work days rather
than a fatality. Considering the factors enumerated in section 110(i) of the Act, and guided by
the Secretary’s regulations governing regular assessments, I impose a penalty in the amount of
$7,500.00. Citation No. 7575300
Citation No. 7575300 alleged a violation of a safeguard that required that travelways be
kept as free as practicable from wet and muddy conditions that could affect control of mobile
equipment. It was alleged that the violation was reasonably likely to result in a lost work days
injury to three miners, and was attributable to AmCoal’s high negligence. AmCoal’s challenge
to the violation was rejected. However, it was found that the violation was unlikely to result in
an injury, was not S&S, and that AmCoal’s negligence was moderate, rather than high. A
(...continued)
violations, and that 8 penalty points were assigned for repeat violations in both the regular and
special assessment calculations. Ex. R-14. That factor produced an increase of 90% in both the
regular and special assessment calculations.
54

35 FMSHRC Page 1826

specially assessed civil penalty of $25,800.00 was proposed by the Secretary. A penalty of
$6,997.00 would have been proposed if the violation had been regularly assessed. Ex. R-14.
Applying the reductions in the level of gravity and negligence would produce a penalty in the
range of $425.00 under the Secretary’s Part 100, regular assessment regulations. The relatively
low gravity of the violation and the moderate level of negligence would not justify a
substantially enhanced penalty. The Secretary argues that a substantial penalty is necessary to
prompt AmCoal to address such conditions, which it “has the means and ability to avoid.”
Sec’y. Rp. Br. at 8. Such considerations are essentially reflected in the analysis of AmCoal’s
negligence with respect to the violation. It employed several measures to address the chronic
conditions, most sanctioned by the MSHA inspector who wrote the citations. As to other
possible actions, the Secretary did not establish that AmCoal had knowledge of the conditions
sufficiently in advance to have effectively employed such measures. Upon consideration of the
above, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount
of $2,000.00.
Citation No. 7575301 also alleged a violation of the wet, muddy travelway safeguard that
was reasonably likely to result in a lost work days injury to two miners, and was attributable to
AmCoal’s high negligence. AmCoal’s challenge to the violation was rejected, and it was found
that the violation was unlikely to result in an injury, was not S&S, and that AmCoal’s negligence
was moderate, rather than high. A specially assessed civil penalty of $21,900.00 was proposed
by the Secretary. A penalty of $ 5,962.00 would have been proposed if the violation had been
regularly assessed. Ex. R-14. Applying the reductions in the level of gravity and negligence
would produce a penalty in the range of $363.00 under the Secretary’s Part 100, regular
assessment regulations. The relatively low gravity of the violation and the moderate level of
negligence would not justify a substantially enhanced penalty. Considering the factors
enumerated in section 110(i) of the Act, I impose a penalty in the amount of $1,500.00.
Citation No. 8423567 alleged a violation of the rib and roof control standard that was
reasonably likely to result in a lost work days injury to one miner, and was attributable to
AmCoal’s high negligence. AmCoal did not challenge the violation. It was found that the
violation was unlikely to result in an injury, was not S&S, and that AmCoal’s negligence was
low to moderate, rather than high. A specially assessed civil penalty of $25,800.00 was
proposed by the Secretary. A penalty of $7,579.00 would have been proposed if the violation
had been regularly assessed. Ex. R-14. Applying the reductions in the level of gravity and
negligence would produce a penalty in the range of $309.00 under the Secretary’s Part 100,
regular assessment regulations.
The Secretary urges the imposition of substantially enhanced penalties for this violation
based upon the high negligence allegation and the overarching “deterrence” theme, i.e., to
discourage AmCoal from taking a “wait and see” approach to known problems. As noted above,
however, AmCoal’s negligence was found to be low to moderate, in part, because the
examination records showed that hazardous rib conditions were being identified, reported and
addressed. The low to moderate level of negligence, and the relatively low level of gravity,
would not justify a substantially enhanced penalty. Considering the reductions in the level of

35 FMSHRC Page 1827

negligence and gravity, and the factors enumerated in section 110(i) of the Act, I impose a
penalty in the amount of $1,000.00.
Docket No. LAKE 2011-184
Citation No. 8424040 alleged a violation of the standard requiring that bathing facilities,
change rooms, and sanitary toilet facilities be maintained in clean and sanitary condition. It was
alleged that the violation was reasonably likely to result in lost work days injuries to 10 miners,
that the violation was S&S, and that AmCoal’s negligence was high. However, the violation was
found to have been unlikely to result in an injury to one miner, it was not S&S, and AmCoal’s
negligence was moderate. A regularly assessed civil penalty of $15,570.00 was proposed by the
Secretary. Applying the reductions to the gravity and negligence factors in the Secretary’s
regular assessment calculation would result in a penalty in the range of $243.00. Considering
the above, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the
amount of $500.00.
Citation No. 8427602 involved a miner’s failure to wear protective goggles when using a
torch to cut metal rods. The violation was alleged to be S&S, reasonably likely to result in a
permanent injury, and the result of AmCoal’s high negligence. A regularly assessed civil
penalty of $5,961.00 was proposed by the Secretary. The violation was found not to be S&S,
unlikely to result in a permanent injury, and that AmCoal’s negligence was low to moderate.
Those findings would result in a penalty in the range of $243.00 under the Secretary’s regular
assessment regulations. Considering the factors enumerated in section 110(i) of the Act, I
impose a penalty in the amount of $500.00.
Citation No. 8426154 alleged a violation of the safeguard standard, specifically the
safeguard requiring the removal of loose and dislodged pieces of bridging lumber from
travelways. It was alleged that the violation was reasonably likely to result in a fatal injury to
one miner, that it was S&S, and that AmCoal’s negligence was moderate. A regularly assessed
civil penalty of $5,080.00 was proposed for this violation. However, it was found that the
violation was unlikely to result in a lost work days injury, and that it was not S&S. Those
findings would result in a penalty in the range of $309.00 under the Secretary’s regular
assessment regulations. Considering the factors enumerated in section 110(i) of the Act, I
impose a penalty in the amount of $500.00.
DOCKET NO. LAKE 2011-242
Citation No. 8424517 also alleged a violation of the bridging lumber safeguard, that was
reasonably likely to result in a fatal injury, was S&S and that AmCoal’s negligence was
moderate. A specially assessed civil penalty of $18,700.00 was proposed for this violation.
Ex. R-30. If the violation had been regularly assessed, the proposed penalty would have been
$5,504.00. Ex. R-31. There is no explanation in the record as to why this citation was specially
assessed, whereas Citation No. 8426154, which alleged a violation of the same standard and
reflects the same gravity and negligence determinations, was not. The SARF for this violation,

35 FMSHRC Page 1828

which was apparently mistakenly filed along with the petition, lends support to AmCoal’s
arbitrary assessment argument. The “serious or aggravating circumstances” asserted to justify
the inspector’s recommendation for a special assessment consisted of “[t]his mine has been cited
67 times for violation of this standard/safeguard. The mine has also experienced a fatality
resulting from the condition cited.” This is somewhat misleading, because the 67 violations
were not of the bridging lumber safeguard, but were violations of the general safeguard standard,
i.e., any of over 20 safeguards in effect at the mine. While there was a fatality due to a
bridgeboard, it occurred in 1990, under conditions that were dissimilar to those cited, and the
fact that there have been no injuries since 1990 attributable to bridge boards is not mentioned.
The violation was found to be unlikely to result in a lost work days injury and was not S&S.
Those findings would result in a penalty in the range of $335.00 under the Secretary’s regular
assessment regulations. Considering the factors enumerated in section 110(i) of the Act, I
impose a penalty in the amount of $500.00.
ORDER
Citation No. 8423568 is VACATED. Citation No. 8424958 is AFFIRMED. Citation
Nos. 7575299, 7575300, 7575301, 8423567, 8424040, 8427602, 8426154 and 8524517 are
AFFIRMED as modified. Respondent is ORDERED to pay civil penalties in the total amount
of $18,500.00 within 45 days.

/s/ Michael E. Zielinski
Michael E. Zielinski
Senior Administrative Law Judge
Distribution (Certified Mail):
Bryan R. Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 800, Denver. CO 80202-5710
Jason W. Hardin, Esq., Fabian & Clendenin, 215 South State Street, Ste. 1200, Salt Lake City,
UT 84111-2323

35 FMSHRC Page 1829

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
th

721 19 STREET, SUITE 443
DENVER, CO 80202-2536
303-844-5267/FAX 303-844-5268

June 13, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

:
:
:
:
:
:
:
:
:
:

v.
BOWIE RESOURCES, LLC,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2010-1727
A.C. No. 05-04591-228196-01
Docket No. WEST 2011-278
A.C. No. 05-04591-237614-01
Bowie No. 2 Mine

DECISION
Appearances:

Jeffrey M. Leake, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Manning

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Bowie Resources, LLC (“Respondent” or “Bowie”) pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act” or “Mine
Act”). The parties introduced testimony and documentary evidence at a hearing held in
Glenwood Springs, Colorado, and filed post-hearing briefs.
Bowie operates the Bowie No. 2 Mine in Delta County, Colorado. Two section 104(a)
citations were adjudicated at the hearing and four citations were settled at the hearing. The
Secretary proposed a total penalty of $23,500.00 for the two citations that were adjudicated.
I. BASIC LEGAL PRINCIPLES
A.

Significant and Substantial

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

35 FMSHRC Page 1830

Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC
1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin
Power Co., Inc., 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is most difficult to apply. The element is
established only if the Secretary proves “a reasonable likelihood the hazard contributed to will
result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129
(Aug. 1985). An S&S determination must be based upon the particular facts surrounding the
violation and must be made in the context of continued normal mining operations. Texasgulf, Inc.,
10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will
cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing
Musser Engineering, Inc. and PBS Coals, Inc. 32 FMSHRC 1257, 1281 (Oct. 2010)).
The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the “focus of the seriousness of the violation is not necessarily
on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on
the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996). The Commission has emphasized that, in accordance with the language of section
104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a violation to the cause and effect of a
hazard that must be S&S. U.S. Steel Mining Co., 6 FMSHRC at 1575. With respect to citations or
orders alleging an accumulation of combustible materials, the question is whether there was a
confluence of factors that made an injury-producing fire and/or explosion reasonably likely.
UP&L, 12 FMSHRC 965, 970-71 (May 1990). Factors that have been considered include the
extent of the accumulation, possible ignition sources, the presence of methane, and the type of
equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-03.
B.

Negligence

The Secretary defines conduct that constitutes negligence under the Mine Act as follows:
Negligence is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to
protect miners against the risks of harm. Under the Mine Act, an
operator is held to a high standard of care. A mine operator is
required to be on the alert for conditions and practices in the mine
that affect the safety or health of miners and to take steps necessary
to correct or prevent hazardous conditions or practices. The failure
to exercise a high standard of care constitutes negligence.
30 C.F.R. § 100.3(d).

35 FMSHRC Page 1831

II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Citation No. 8470097; WEST 2010-1727
On May 26, 2010, MSHA Inspector Brad Allen issued Citation No. 8470097 under
section 104(a) of the Mine Act, alleging a violation of section 75.1725(c) of the Secretary’s
safety standards. The citation states, in part:
The mine operator failed to ensure that repairs or maintenance
shall not be performed on machinery until the power is off and the
machinery is blocked against motion. . . . [T]his inspector observed
a miner standing in the conveyor of the [Stamler feeder breaker]
removing wire from the pick breaker while the power was
energized (as evidenced by discussion with the miner who stated
the machine was not locked out, but the breaker on the machine
was kicked and the switch (conveyor) was turned off). Neither of
these switches were visible from the miner’s position at the pick
breaker and neither provided means to prevent turning the switches
on. . . .
(Ex. G-21). Inspector Allen determined that an injury was reasonably likely to occur and that
such an injury could reasonably be expected to be fatal. Further, he determined that the violation
was S&S, the operator’s negligence was moderate, and that one person would be affected.
Section 75.1725(c) of the Secretary’s safety standards provides that “[r]epairs or maintenance
shall not be performed on machinery until the power is off and the machinery is blocked against
motion . . . .” 30 C.F.R. § 75.1724(c). The Secretary proposed a penalty of $7,100.00 for this
citation under his special assessment regulation. 30 C.F.R. § 100.5.
1.

Summary of Evidence

At the time of the inspection, Inspector Allen observed a miner performing maintenance
inside of a Stamler feeder breaker. (Tr. 128). The miner was in a bent-over position cutting wire
off the pick breaker. Id. Inspector Allen testified that a feeder breaker is a large machine that
feeds coal into a pick breaker which crushes the coal. Id. After talking with the miner, the
inspector learned that the power at the circuit breaker was off and the conveyor switch was
neutral, but the pick breaker on the feeder breaker was not locked and tagged out. (Tr. 134).
The inspector testified that the citation was S&S because there was a reasonable
likelihood of significant injury. (Tr. 145, Ex. G-22). The inspector believed that it would be
easy for a miner to start a feeder breaker not blocked against motion while another miner was
performing maintenance on the machine. (Tr. 138). Once the feeder breaker is energized and a
miner is working inside the machine there is reasonable likelihood that the miner will be fatally
entangled. (Tr. 136). Inspector Allen indicated that locking out and tagging out the feeder
breaker would remove the possibility that anyone else could start the machine and it would block
it against motion. Id.

35 FMSHRC Page 1832

The inspector testified that the efforts of the miner to prevent the pick breaker from being
turned on were a mitigating factor and the mine operator’s negligence was moderate. (Tr. 146;
Ex. G-22).
Christopher Solaas was the miner performing maintenance on the pick breaker when the
citation was issued. (Tr. 167). Mr. Solaas testified that he did not lock out and tag out the pick
breaker because he was not doing electrical work. (Tr. 170). Mr. Solaas believed that he
effectively blocked the equipment against motion due to the precautionary measures he took and
the photo eyes mounted on the feeder breaker that prevented the pick breaker from running
continuously. (Tr. 173-174). Mr. Solaas asserted that locking out and tagging out a piece of
equipment simply prevents miners from using that equipment. (Tr. 182).
2.

Summary of the Parties’ Arguments

The Secretary argues that Respondent violated section 75.1725(c) because a miner
performed maintenance on a pick breaker when the feeder breaker was not blocked against
motion. The Secretary cites the standard which requires that repairs or maintenance shall not be
performed on machinery until the power is off and the machinery is blocked against motion.
(Sec’y Br. 14). Inspector Allen issued a citation when he observed a miner performing
maintenance on a pick breaker that was not blocked against motion. Id.
The Secretary further asserts that the violation was S&S because it met the four elements
of the Mathies standard. There was a violation of section 75.1725(c), the violation exposed the
miner to a discrete safety hazard of fatal entanglement, and there was a reasonable likelihood of
injury because it would be relatively easy for another miner to inadvertently start the feeder
breaker while the miner in question was performing maintenance inside the pick breaker. (Sec’y
Br. 18). Inspector Allen testified that there were a number of different ways that the feeder
breaker could be turned on and fatally entangle a miner performing maintenance on the pick
breaker. Id.
The Secretary maintains that the violation was the result of Respondent’s moderate degree
of negligence. (Sec’y Br. 20-21). The Secretary believes that the miner took remedial measures
to ensure that the feeder breaker could not be turned on, but the mine operator had notice of
MSHA’s stringent protocols in regard to blocking the machine against motion. Id.
Respondent argues that no violation of section 75.1725(c) occurred because the cited
standard does not require power to be locked and tagged out. (Bowie Br. 6). Respondent
believes that the cited standard only requires that the power be off. Id. If the standard required
lock out/tag out procedures, it would have used those terms. Id. Mr. Solaas indicated that the
feeder breaker was deenergized because the circuit breaker was pulled and the selector switch was
in an off position. (Bowie Br. 7-8).
Respondent also maintains that lock out/tag out procedures can be required for electrical
work, but such procedures have no application to blocking machinery against motion. (Bowie Br.
7). Certain MSHA regulations specifically require lock out/tag out for electrical work. Id.
Respondent states that it is undisputed that the miner was not performing electrical work on the
feeder. Id.

35 FMSHRC Page 1833

Respondent contends that the court should reject the Secretary’s argument that turning off
the power was insufficient to block against motion. (Bowie Br. 9). Respondent contends that
such interpretation is contrary to the language of the Secretary’s Program Policy Letter (“PPL”).
Id. Respondent relies upon numbered paragraph one in the PPL, which suggests different ways to
block the motion of machinery. (Ex. G-24 at 2). Respondent maintains that because the miner
undertook protective measures to block the motion of the machine as described in the PPL, the
citation should be vacated.
3. Discussion and Analysis
I find that Citation No. 8470097 was a violation of section 75.1725(c) because a miner
performed maintenance on a pick breaker when the feeder breaker was not blocked against
motion. The inspector observed a miner in a bent-over position, who was not visible from any
direction except from the hopper end, cutting wire off the pick breaker. The miner was
performing maintenance when cutting and removing wire from the pick breaker.
Although the miner turned off the circuit breaker and the conveyor switch on the machine
was in neutral, the feeder breaker was not blocked against motion. I credit the inspector’s
testimony that Bowie violated the safety standard because the only way to block the feeder
breaker against motion was to lock out the machine. (Tr. 136). The machine was not blocked
against motion because the miner only opened the circuit breaker and put the conveyor switch in
neutral. Such actions did not “block” the machine from motion. Id. Some machinery that is
locked out could still injure a miner based upon the forces of gravity or stored mechanical
energy, but in this case locking out the feeder breaker would effectively block all motion.1
Respondent argued that section 75.1725(c) only requires machinery to be deenergized
and blocked against motion, but not locked out and tagged out. Respondent relied upon Island
Creek Coal Co., where the Commission, in a split decision, let the judge’s dismissal of a citation
stand and held that the standard requires that machinery be blocked against motion, but not
locked out and tagged out, which is covered by an electrical standard. 22 FMSHRC 823,825
(July 2000). The Island Creek decision is distinguishable from this case because the Secretary is
not arguing that the safety standard requires that machinery be locked out, but argues that under
the facts presented here locking out the feeder breaker was the only option available to prevent
the movement of the pick breaker in the feeder. In Island Creek Coal Co., the Secretary argued
that locking and tagging out a machine was an integral requirement of 75.1725(c). In this case,
however, the Secretary argued that by failing to lock out and tag out the feeder, Respondent had
not blocked the machine against motion. Indeed, former Commissioner Verheggen stated in
Island Creek that the Secretary “could simply have argued before the judge that the operator
violated section 75.1725(c) because it failed to block the belts against motion, [but he] chose
instead to erroneously argue that the ‘blocked against motion’ requirement was equivalent to a
‘lock and tag out’ requirement developed for electrical work.” 22 FMSHRC at 833. Thus,
because another miner could have closed the circuit breaker and activated other switches to start

1

For example, locking out a machine that uses hydraulics or compressed air may not
block components of that machine against motion. In such an instance other blocking devices
would be required.

35 FMSHRC Page 1834

the machine in this case, Respondent had not blocked the feeder breaker against motion.2 The
standard requires that the operator do more than simply stop, shut down, or deenergize
machinery before maintenance is performed; it requires the operator to affirmatively block the
machinery against motion. The Secretary’s PPL does not change that requirement.
I find that the Secretary did not establish that the violation was S&S. Although the
Secretary established the first two elements of the Mathies test, evidence presented by Bowie
shows that an injury was unlikely. In order for the feeder breaker to start moving, several steps
would have been necessary. A miner would have needed to activate several different switches.
In most instances, the belt would have to be started at the same time unless the feeder was
operated in manual mode. (Tr. 183, 191-92). It was highly unlikely that anyone would take such
actions and it is also unlikely that if someone did try to start the feeder that Mr. Solaas would not
have noticed. One of the switches that required activation was on the feeder near Solaas. While
it was possible that all these steps could be completed while Solaas was in the feeder, it was
highly unlikely.
I find that the gravity was serious because, if the feeder were activated, Solaas would
have received very serious injuries and such injuries could have been fatal. I find that the
violation was a result of Respondent’s moderate negligence. The cited violation posed a
dangerous hazard to the miner performing maintenance on the pick breaker and the operator
should have known that more was required to block the motion of this machine.
The citation is hereby MODIFIED to a non-S&S violation of section 75.1725(c). A
penalty of $2,000.00 is appropriate for this violation.
B. Citation No. 8470076; WEST 2011-278
On May 3, 2010, Inspector Allen issued Citation No. 8470076 under section 104(a) of the
Mine Act, alleging a violation of section 75.220(a)(1) of the Secretary’s safety standards. The
citation states, in part:

2

Commission Judge McCarthy recently issued a decision that included an excellent
discussion of the problems the Secretary has created for himself when citing an electrical
standard in situations where it does not apply. In that case, the Secretary attempted to use an
electrical standard (section 56.12016) to protect miners from hazards presented by the movement
of mechanical parts while equipment is being repaired. MacGruder Limestone Company, Inc.,
35 FMSHRC ___, slip op. at 15-18, No. CENT 2010-1256-M (May 21, 2013). Judge McCarthy,
following decades of precedent, vacated the citation because the cited safety standard protects
miners against the dangers of electric shock and electrocution while maintenance is being
performed rather than the hazard of becoming entangled in the moving parts of equipment. Id.
The instant case is different, however, because section 75.1725 is not an electrical safety
standard but was drafted to require that machine parts be blocked to prevent movement.
Although section 75.1725 does not require that equipment be locked out or tagged out when
maintenance is performed, it does require that machinery be blocked against motion and, under
the facts of this case, the only way that motion can be affirmatively blocked is by attaching a
lock on the breaker for the feeder.

35 FMSHRC Page 1835

The mine operator failed to follow page 20 of the roof control plan,
approved by the District Manager. The Continuous Mining
Machine operator in the 1st West active mining section . . . cutting
coal in the #3 face inby crosscut 17 did not observe the “Red
Zone” safety precautions. This Inspector observed the continuous
Mining Machine Helper approach the remote controlled Joy
Continuous Mining Machine . . . while backing away from the face
and the operator failed to stop the machine. A brief period after,
the Continuous Mining Machine Operator and helper as well as the
safety person were standing near the bumper, inby the tail of the
machine and the operator started the continuous mining machine
pump motor and was preparing to tram inby, endangering himself
and two other miners. This creates a crushing hazard to miners.
(Ex. G-2). Inspector Allen determined that an injury was highly likely to occur and that such an
injury could reasonably be expected to be fatal. Further, he determined that the violation was
S&S, the operator’s negligence was moderate, and that three persons would be affected. Section
75.220(a)(1) of the Secretary’s regulations requires operators to “develop and follow a roof
control plan, approved by the District Manager, that is suitable to the prevailing geological
conditions and the mining system to be used at the mine.” 30 C.F.R. § 75.220(a)(1). The
Secretary proposed a penalty of $16,400.00 for this citation under her special assessment
regulation. 30 C.F.R. § 100.5.
1.

Summary of Evidence

On May 3, 2010, Inspector Brad Allen issued Citation No. 8470076 as a violation of
section 75.220(a)(1) because several miners entered the “red zone” while the continuous mining
machine “CMM” was in operation, which the Secretary contends violates the mine’s roof control
plan. (Tr. 19, Ex. G-2). The red zone is often called the “danger area” or “danger zone.”
Inspector Allen walked into the No. 3 face and, from 100 feet away, observed the CMM
operator backing the machine away from the face. (Tr. 21). Inspector Allen testified that he
observed the continuous mine helper “CMH” approach the CMM to retrieve the miner cable as
the CMM backed out of the face. Id. By approaching the CMM, as it was in operation, the
CMH had entered the red zone. Id. Inspector Allen continued walking toward the CMM, where
he observed the CMM operator stopping the machine. (Tr. 26). He then observed the CMM
operator, the CMH, and a Bowie safety manager standing near the bumper of the machine. Id.
The Inspector testified that the three miners were positioned in a small space, approximately 4 to
5 feet wide, between the CMM and the rib wall. (Tr. 28). Inspector Allen was standing 20 feet
from the CMM when the CMM operator began tramming, or actually moving the CMM, while
all three miners were positioned in that same area. (Tr. 30).
The inspector testified that the citation was S&S because the cited violation was
reasonably likely to cause a serious injury. (Tr. 63). He marked the location of the CMM
operator, the CMH, and the Bowie safety manager in relation to the CMM in Government
Exhibit 6, which shows the miners in an area that he designated as a red zone. (Tr. 24-26, Ex. G6). He testified that the red zone is a dangerous area whenever the CMM is in operation. (Tr.
67). The inspector issued the citation because any miner that is in a red zone while the CMM is

35 FMSHRC Page 1836

in operation violates the roof control plan. Id. Inspector Allen indicated that the roof control
plan required that “during mining and place changing cycles” all employees must be under
permanent roof support and not exposed to sudden movement of the mining equipment or other
pinch points. (Tr. 33, Ex. G-3).
The inspector designated this citation as fatal because the violation of the roof control
plan exposed the miners to pinch points around the CMM. (Tr. 67, Ex. G-2). He believed that
the position of the miners while the CMM was in operation would expose them to sudden
movement and that they could be crushed between the CMM and the rib. (Tr. 34). Inspector
Allen determined that the violation resulted from the mine operator’s moderate negligence. (Ex
G-2). He believed that the way the CMM operator was running the machine near the two other
miners and himself was careless, reckless, and dangerous. (Tr. 88).
During cross-examination, Inspector Allen testified that, at the time he observed the
alleged violation of the roof control plan, the CMM was mining in the straight, not turning a
crosscut. (Tr. 69-70). The citation specifically alleges that Bowie failed to follow page 20 of the
roof control plan. (Ex. G-3). That provision of the plan depicts a CMM turning a crosscut to the
left and one to the right, but does not depict a CMM mining straight ahead. (Tr. 70-72).
Inspector Allen testified that the section of Government Exhibit 6 that he marked to show the
position of the miners was not included in the roof control plan at the time he issued the citation.
(Tr. 71).
The Inspector testified that in the body of the citation, he described the CMM as
preparing to tram when he observed the three miners standing near the bumper of the machine.
(Tr. 80, Ex. G-2). In Inspector Allen’s field notes, he describes the CMM as beginning to tram
(Tr. 81, Ex. G-20). Inspector Allen also testified that he did not describe in his field notes which
side the helper was on, what he was doing, or how far away he was from the CMM when the
machine was in operation. Id.
Inspector Allen testified that the roof control plan is somewhat vague as to the exact areas
where the red safety zones exist around a CMM. (Tr. 83, Ex. G-19). The day after this
inspection, Inspector Allen recommended that the roof control plan be modified to include all red
zone diagrams as well as the itemized list of safety precautions to follow while miners are
working around CMMs at the mine. Id. The inspector testified that he made these
recommendations on a Plan Review form dated May 4, 2010, and agreed that the roof control
plan was vague concerning this issue. Id.
Kyle Ledger was the CMM operator at the mine in the No. 3 entry when the citation was
issued. (Tr. 98). Mr. Ledger testified that the mining cable came out of the right side of the
CMM, but crossed over to the left side of the machine. (Tr. 94). At that time, he was standing
on the left side of the CMM. Ledger testified that at the time the inspector arrived he was in the
process of taking cut No. 2 from the left side of the entry. Id. He then finished that cut and
backed the CMM up and positioned it on the right side to take cut No. 3. (Tr. 95). As he backed
up the CMM, he testified that he stayed behind the tail of the CMM. Id. Once the CMM was
repositioned, he shut the machine off and helped move the cable out of the way against the left
rib. (Tr. 95-97). He then began to move the CMM toward the face on the right side of the entry
when the Inspector flagged him to stop. Id. Mr. Ledger testified that at no time was he, the

35 FMSHRC Page 1837

CMH, or the Bowie safety manager in the red zone, which was on the right side of the CMM,
while the machine was in operation. (Tr. 96-99).
2.

Summary of the Parties’ Arguments

The Secretary argues that Bowie violated section 75.220(a)(1) because several miners
entered the “red zone” in the No. 3 entry while the CMM was in operation. The Secretary cites
the roof control plan, which requires that during mining all employees must be under permanent
support and not exposed to sudden movements of the mining equipment or other pinch points.
(Sec’y Br. 8). Inspector Allen testified that three miners were exposed to sudden movements of
the CMM while in operation. Id.
The Secretary maintains that the violation was S&S because it met the four elements of
the Mathies test. There was a violation of the mandatory safety standard, the action of the CMM
operator created a discrete safety hazard to miners that were in the red zone, and injury to the
three miners was reasonably likely because the miners were positioned between the CMM and
the coal rib when the CMM was tramming. (Sec’y Br. 9-11). The Secretary believes that there
was a reasonable likelihood that the hazard contributed to would have resulted in a serious
injury because Inspector Allen testified that if the CMM were to suddenly pivot into the three
miners the resulting injuries would have been significant or fatal.
The Secretary asserts that the violation was the result of Respondent’s moderate
negligence. (Sec’y Br. 11-12). Inspector Allen testified that he believed that the CMM operator
was careless but he was not acting as an agent of the operator. The Secretary states that Bowie
had notice of the dangers related to CMMs and notice of MSHA’s intent to enforce section
75.220(a)(1). Id.
Respondent argues that no violation of section 75.220(a)(1) existed because the roof
control plan only applies to a CMM turning a crosscut, not mining into a straight. (Bowie Br. at
16-17). The CMM was mining into a straight when Inspector Allen observed the alleged red
zone violation so Respondent believes there was no violation of the roof control plan. Id.
Respondent also argues that it did not violate the cited provision of the roof control plan
as the plan is interpreted by the Secretary. (Bowie Br. at 19, Ex. G-3). The CMM operator
testified that at no time was he, the CMH, or the Bowie safety manager in the red zone while the
CMM was in operation. (Bowie Br. at 20-23)
Respondent asserts that the roof control plan was ambiguous because it did not include
red zone diagrams or descriptions that included the conditions at issue. (Bowie Br. at 19-20).
The roof control plan did not incorporate MSHA’s red zone drawings that the inspector relied
upon at the hearing with the result that the citation must be vacated. Id.
3.

Discussion and Analysis

I find that the Secretary did not establish a violation of section 75.220(a)(1) because the
cited provision of the roof control plan was ambiguous when applied to the facts of this case.
The inspector specifically cited a violation of page 20 of the roof control plan. That page only
shows diagrams of CMMs turning into entries from crosscuts. The two diagrams depict a CMM
turning a crosscut to the left and a crosscut to the right, but do not depict a CMM mining straight

35 FMSHRC Page 1838

into a heading as occurred here. In order to show that a plan provision is not ambiguous, the
Secretary must satisfy its burden by establishing that the provision was intended to apply to
CMMs mining into a straight. See Jim Walter Resources, Inc., 9 FMSHRC 903 (May. 1987).
The language of the plan that references the two diagrams is on page 11 of the plan. It states, in
pertinent part, “[w]hen turning a crosscut, personnel shall remain under permanent roof support
and out of the danger areas as shown on page [20] of the plan.” (Ex. G-3, p. 11).3 The two
diagrams show situations in which the CMM is turning. Nothing in the diagrams or in the
language of the plan that references the diagrams indicates that red zones are created when the
CMM is operating on the straight with the tail piece directly behind the CMM. The CMM was
not turning a crosscut at the time the inspector observed the conditions.
In his brief, the Secretary referred to a provision of the plan that was not cited by the
inspector or otherwise referenced in the citation. This section of the roof control plan states that
“[a]t all times during the mining and place changing cycle, all employees will be under
permanent support and not exposed to sudden movement of the mining equipment or other pinch
points.” (Ex. G-3, p. 11). The inclusion of this provision in the plan creates an ambiguity
because it is inconsistent with the language related to the diagrams on page 20.
The Secretary also supported the inspector’s assertion that the miners were in an area
designated as a red zone by referring to Government Exhibit 6. (Tr. 24-26, Ex. G-6). This
exhibit, entitled “Red Zones Are No Zones,” includes eleven diagrams that illustrate red zones
when a CMM is positioned for different types of cuts. The exhibit used by Inspector Allen to
show the miners’ location is not controlling because the particular diagram on the exhibit he
referenced was not included in the mine’s roof control plan. (Tr. 118-19; Ex. G-3). It is
noteworthy that the inspector testified that he believed that the plan was vague as to the exact
procedures for red zone safety and he recommended that the plan be modified to include red
zone diagrams that accurately depict the use of CMMs at this mine. (Tr. 83; Ex. G-19).
In Jim Walters, the Commission held that in plan violation cases, the Secretary “must
establish that the provision allegedly violated is part of the approved and adopted plan that the
cited condition or practice violates the provision.” 9 FMSHRC at 907. The Commission also
held that the Secretary must dispel any ambiguity in the plan by “establishing the intent of the
parties on the issue through credible evidence as to the history and purpose of the provision and
evidence of consistent enforcement.” Jim Walter Resources, Inc., 28 FMSHRC 579, 589 (Aug.
2006) (citations omitted). In the present case, the drawings on page 20 of the plan and the
interpretative language on page 11 seem to suggest that a red zone only exists under the plan
when a CMM is turning into a heading. A different provision in the roof control plan and her
exhibit with eleven red zone diagrams seem to suggest that danger zones around CMMs should
be much more extensive and that they should apply whenever the CMM is in operation. I find
that the intent of the parties is not at all clear on this issue and the Secretary did not present
credible evidence to clear up this ambiguity. The Secretary did not present evidence as to the
3

The page numbers on the copy of the roof control plan submitted by the parties were
missing on some pages. In addition, in some cases the pagination was ambiguous. In this
decision, page 11 refers to the page entitled “XI Safety Precautions during Mining” and page 20
refers to the page with two diagrams showing a CMM turning from a crosscut into the entry
being mined.

35 FMSHRC Page 1839

history and scope of the roof control plan with respect to red zones or relating to any previous
enforcement activity concerning red zones. Inspector Allen noted that he had never observed
miners working in the red zone around a CMM during previous inspections at this mine. (Tr.
87).
I find that the Secretary did not satisfy his burden of proving that the conditions Inspector
Allen observed on May 3, 2010, violated the Mine’s roof control plan. As a consequence, the
Secretary did not establish a violation of 75.220(a)(1). Citation No. 8470076 is hereby
VACATED.
III. SETTLED CITATIONS
On May 16, 2013, I granted the Secretary’s motion to approve partial settlement in these
cases. I approved the settlement of Citation Nos. 8470080, 8470098, and 8470323 in WEST
2010-1727 and Citation No. 8470075 in WEST 2011-278. I ordered Bowie to pay a total penalty
of $7,900.00 for those four settled citations.
IV. APPROPRIATE CIVIL PENALTY
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I have considered the Assessed Violation History Reports, which are
not disputed by Bowie. (Exs. G-1 & 21). At all pertinent times, Bowie was a large mine
operator. The violations were abated in good faith. The penalty assessed in this decision will
not have an adverse effect on Bowie’s ability to continue in business. The gravity and
negligence findings are set forth above.
V. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation No.

30 C.F.R. §

Penalty

75.1725(c)

$2,000.00

75.220(a)(1)

VACATED

WEST 2010-1727
8470097
WEST 2011-278
8470076
TOTAL PENALTY

35 FMSHRC Page 1840

$2,000.00

For the reasons specified in this decision, the citations are MODIFIED or VACATED as
described above. Bowie Resources, LLC, is ORDERED TO PAY the Secretary of Labor the
sum of $2,000.00 within 30 days of the date of this decision.4

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

Distribution:
Gregory Tronson, Esq., Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO 802025708
R. Henry Moore, Esq., Jackson Kelly, 3 Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222
RWM/jm

4

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

35 FMSHRC Page 1841

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Avenue N.W. Suite 520 N
Washington, D.C. 20004-1710
(202) 434-9933

June 14, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
GOPHER CONSTRUCTION INC.
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner
v.
DONALD TIBBALS, employed by
GOPHER CONSTRUCTION, Inc.

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2010-470-M
A.C. No. 26-02630-204647-01
Docket No. WEST 2011-73-M
A.C. No. 26-02630-233808

Docket No. WEST 2011-863-M
A.C. No. 26-02630-250694 A

Mine: Mull Lane

DECISION
Appearances:

Joseph M. Lake, Esq. and Cheryl L. Adams, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California for the Petitioner
Donald W. Tibbals, pro se, and Jacob Lake, pro se, Fernley, Nevada for
the Respondent.

Before:

Judge Moran

In this decision under the Federal Mine Safety and Health Act, (“Mine Act” or “Act”)
Gopher Construction, (“Gopher”), at its Mull Lane Pit, was cited by MSHA for alleged
violations of berm standards found at 30 C.F.R. § § 56.9300 and 56.9301. For the latter
standard, MSHA also contends that Donald Tibbals, the owner of Gopher, knowingly violated
that provision, and on that basis seeks personal liability against him under section 110(c) of the
Act. Gopher denied all charges, asserting not only that the standards had not been violated but
also that MSHA did not have jurisdiction over Mull Lane, as the operation had closed. An
evidentiary hearing was held on September 20, 2012 in Sparks, Nevada.

35 FMSHRC Page 1842

For the reasons which follow, the Court finds that there was jurisdiction under the Mine
Act and it upholds the violations charged to Gopher, while significantly reducing the penalties
for those violations from the amounts proposed by the Secretary. As for the section 110(c)
charge, the Court dismisses that matter, finding that Mr. Tibbals did not knowingly violate the
standard.
The Issue of MSHA Jurisdiction
At the outset of addressing this issue, the Court notes that there is essentially no factual
dispute over the activity observed by the Inspector at the time he was at the Mull Lane Mine.
Rather, the jurisdictional dispute involves whether, despite that activity, the mine had “closed”
vis-a-vis MSHA’s jurisdiction over that activity.
MSHA Inspector Jason Jeno inspected Gopher’s Mull Lane Mine on October 15, 2009 as
part of a regular, or “EO1,” inspection. Upon arriving, he observed “approximately three miners
on the mine site,” and also saw some haul trucks in the back. To him, “[i]t looked like they were
moving some material [adding that there was] “an excavator operating as well.” Tr. 37. Based
on what he saw, the Inspector “assumed [the trucks] were getting loaded by the excavator and
then hauling material to a location to dump it.” He stated that the trucks “were backing up on [a
stockpile] and dumping material over the edge.” Tr. 37.1 The Inspector described Mull Lane as
a typical sand and gravel operation. Tr. 29-30. He added that, based on information given him
by Gopher employee Alan Skinner, Gopher was “moving raw material from a corner of their pit
and were moving it over to a staging area, or a stockpile, to be crushed, to have a crusher come
in and crush it down at a later date [for sale].” Tr. 139-140. From that conversation, it was
Inspector Jeno’s understanding that there was a dispute between Gopher and the BLM and that
Gopher had to get some material moved out of the way. Tr. 46. It was also the Inspector’s
“understanding” that Gopher was moving the material down and that they were going to crush it
at some later time. Tr. 46. Although the Inspector could not recall if he included Skinner’s
remarks in his notes, he affirmed that, apart from that, he still would have cited the operation
because he believed that the mine was not closed but rather was operating. Observing what he
considered to be dangerous dumping activity, the Inspector issued an imminent danger order and
noted violations related to that activity. The day after observing the alleged violations, the
Inspector returned to the mine to serve the citations, viewing, in terms of activity on that second
day “some customer trucks being loaded out . . .” Tr. 194.

The Inspector drew a diagram, sketching an aerial view of the mine site as it appeared
on the date of his inspection. Tr. 40, Gov. Ex 44. Describing the activity as a “circular process,”
he explained that trucks were being loaded by an excavator, traveling down the haul road, and
upon reaching the stockpile area, they would back up to the stockpile, until they were right to the
edge of it and then dump their loads. Following the dumping, the trucks would then make
several turns, come down a ramp and return to the loading area. Tr. 41.
1

35 FMSHRC Page 1843

Respondent has challenged MSHA’s jurisdiction on the grounds that its Mull Lane
operation had closed and therefore that the activity observed by the Inspector was construction
activity, not mining. Although not formally testimony, the Court notes the following from the
opening remarks of Mr. Tibbals at the hearing. These are mentioned because they may be
deemed as admissions and also because Mr. Tibbals, who is not an attorney, acted pro se and
because there is largely no dispute about his opening remarks. In fact, the Court concludes that
accepting Mr. Tibbals’ opening statement about Gopher’s activity, but not accepting the
assertions about the effect of that activity, establishes, together with the record as a whole, that
Gopher’s cited activity was plainly mining and therefore under MSHA’s jurisdiction.
In his opening remarks, Gopher’s Mr. Tibbals acknowledged that the Bureau of Land
Management (“BLM”) is the neighbor of Mull Lane pit. The BLM property has a use permit
from the Nevada State Department of Transportation (“NDOT”) on that land and they use it to
extract gravel for highway projects. Mull Lane mines on its side and BLM mines on its side.2
Tibbals stated that the last time NDOT did a job there, they left a 1 to 1 slope, that is a slope of
30 feet down on a 1 to 1 slope. Asserting that high school students travel along the fence line
separating Mull Lane from the BLM site, Tibbals was concerned that a student could be injured
because of that steep incline. This prompted him to discuss his concerns with BLM in April
2008. His suggestion was to eliminate the steep pinnacle separating the two property lines.
Once BLM accepted his proposal, they “started back in the Mull Lane pit,” that is, they opened it
up to accomplish the goal of establishing a 3 to 1 slope in place of where the 1 to 1 slope existed.
Thus, Gopher’s purpose was to do a “safety reclamation.” Tr. 20-21. As Gopher’s mining
business had already stopped, Gopher rented the crushing equipment and began re-sloping the
pit. Tibbals emphasized that the material they were removing was from BLM land but it was not
intended for crushing nor for anything else. Id. Thus, Tibbals maintained that the order of
events was that it filed a mine closure on the first of October and then began getting ready to put
the fence line in. Tr. 22. He further explained in his opening that there was insufficient material
to establish the fence line, so they brought in an excavator and two haul trucks to accomplish
that. Accordingly, Gopher maintains that at that point in time it was acting as a contractor and
that it had a contractor’s license to build the boundary line fence. Papers were filed with MSHA,
closing the mine. Tr. 22. Although the mine is closed, Tibbals acknowledged that occasionally
they go to the site with a loader and load material from there for local deliveries. Tr. 24.
However, it labeled this activity as a load-out site, and not a crushing or mining site. Gopher
maintained that the site is already mined out so that the prospect of further mining there is highly
doubtful, as that would require taking material from BLM property. Tr. 24.
In sum, the Court finds, on either of two theories, that MSHA jurisdiction was
established. First, there is ample evidence that Gopher continued to “mine,” per its contract with
BLM. Additional discussion about this follows. Second, even if viewed strictly as a re-sloping
activity, that plainly falls within reclamation activity. The mining process is not so narrowly

Mr. Tibbals stated that BLM owns the property but leases it to the Nevada Department
of Transportation for aggregate purposes. Tr. 24.
2

35 FMSHRC Page 1844

construed so as to end when the last shovelful of material is removed from its natural deposit.
Such a conclusion would be artificial and illogical. This is because the mining process continues
as the minerals are relocated. The process also continues with any necessary steps to shut down
the mining site, whether that is a temporary or permanent status.
DOL 17 is the statement MSHA Inspector Van Wey obtained from Mr. Tibbals. Tr. 219.
The Petitioner acknowledges that Gopher had submitted a mine closure notice “about a couple of
weeks before [the inspection in issue here].” Tr. 233-234. Van Wey was asked whether, if
Gopher was moving material and building a fence line, and doing some excavating, and
otherwise working along the border between the two properties, whether that would be
considered mining activity. Tr. 235. He responded that he would consider such activity as part
of the mining process, as reclamation has been considered to be part of that process. He noted
that the area that was being excavated was created because of the mine site and that if the mine
were not there, the fence line issue would never have been created. Accordingly, it was his view
that reclamation activity, taking down this particular area to re-establish a fence line, was a direct
result of mining activity. Accordingly, he would consider that to be mining activity. Tr. 235.
The Court agrees.
Challenging Inspector Van Wey’s statement that Gopher was mining, the Inspector was
asked by the Respondent about DOL 30 at page 4, where Mr. Skinner responded that the
operation was “putting in a fence.” Tr. 261. The Inspector did agree that, if he were to come
upon this operation, putting aside that it is a mining operation, and he observed someone moving
material to put in a fence, he would not find that sufficient to consider it as mining. Tr. 262.
However, he added that if he saw individuals working on a stockpile, and dumping there, he
would consider that mining. Tr. 262. Even that activity, however, that is, backing up to a
stockpile and dumping would only be mining at a mine site. Tr. 263. The Court finds that
examining the fence activity in isolation, ignoring the context of that activity, would create an
inaccurate picture.
The Respondent’s Exhibit B, their contract with BLM to construct a new fence line, was
used in an effort to counter the Secretary’s contention that Gopher was mining. The Court asked
some questions about this last issue. It posed to the witness, “If in fact Gopher Construction
sends a letter to BLM in April 2008 in which they talk about that they would like to close [their]
pit and use the property for other purposes, if [the inspector] accept[s] that as an accurate
statement, on what basis did [he] determine that the mine was still in operation at the date of
these citations?” Tr. 265. The Inspector’s responded that MSHA considers activities such as the
fence line, to be part of the reclamation process, with the reminder that this area was created as a
mine. Tr. 265.
Gopher’s owner, Mr. Tibbals, testified and, as he was acting pro se, his testimony was
presented in a narrative form. His testimony largely tracked his opening remarks. He stated that
Gopher and the Bureau of Land Management/ Nevada Department of Transportation shared a
property line. His concern was “the fence line [which] had a foot of dirt on each side of the
fence line and a near vertical slope on each side.” Tr. 270. Tibbals repeated that the mine

35 FMSHRC Page 1845

closure was filed October 1, 2009. After that, the mine was in “construction mode” and it was in
that mode “to finish the toe of the slope and to put a fence in for BLM.” Tr. 272. Tibbals stated
that mining has never resumed at Gopher after that date. Tr. 273. If one were to visit the site
today, one would see stockpiles of material on the site, including the stockpile that was discussed
at this hearing. Tr. 273. No heavy equipment is present there. The “construction mode” was
completed in November 2009. He added that the fence project took only ten days to complete.
Tr. 274. Mr. Tibbals does continue to own the property but that, as of November 2009, the
operation has not sold any product, nor done anything with the materials on it. Some existing
material, which he stated had been previously processed, had been delivered. He admitted that
some 60,000 tons of gravel, which has commercial value, remains at the site and that it could be
sold if the economy recovers. Tr. 274- 275.
On cross-examination Mr. Tibbals agreed that Gopher had a contract to purchase
materials from BLM. Tr. 293, DOL 26, at page 4. The contract the government is referring to
was to purchase land or property from BLM’s site, abutting the Gopher mine. Tr. 293-294.
Under that contract, dated October 4, 2008, Gopher removed some 31,000 cubic yards of
material from BLM property. Tr. 294. When the Court inquired as to the relevance of this
activity, occurring as it did more than a year before the citations in issue here, the government
asserted that the reclamation process occurring here was as a result of this removal process the
year before. Tr. 295. The fence line, Mr. Tibbals agreed, was the property line between Gopher
and the BLM property. Tr. 295. That material, removed from BLM property was crushed by
Gopher, but it has not yet been sold. Tr. 296. If the economy rebounds, it is Gopher’s intention
to sell that material. Tr. 297.
Gopher was getting ready to install the fence line but had not yet started doing that at
the time of the inspection. This was its obligation under the contract with BLM. Tr. 297.
As reflected at Exhibit B, under provisions four and five, Gopher was responsible for
establishing a fence line after removing the material from BLM’s property. Tr. 299. Thus, the
connection between Gopher’s mining activity and the fence line is undeniable. That removed
material has been stockpiled but not crushed nor sold. Tr. 299. DOL 28 shows sales by Gopher
during the week of the inspection in issue and that material was sold from the Mull Lane pit at
that time.
Inspector Jeno stated that when he went to the mine site, he was not aware that the mine
had been closed nor that paperwork associated with that closing had been submitted to MSHA.
Tr. 82. Respondent’s Exhibit A was admitted and it reflects that the Respondent did in fact
submit such closure paperwork, dated October 1, 2009. Tr. 83.3 However, it is noted that
Gopher described its operation as “temporarily closed.” Id. As mentioned earlier, it is Gopher’s
position that, on October 15, 2009, Gopher Construction was operating as a construction

The same exhibit is reflected in Gov. Ex. 25., albeit without a second page to it. That
second page is apparently simply a confirmation that the facsimile transmitting the information
was successfully sent. Tr. 85.
3

35 FMSHRC Page 1846

company at Mull Lane for the purpose of constructing a fence line, pursuant to Gopher’s contract
with the Bureau of Land Management. R’s Br. at 2.4 Gopher admits that, in constructing the
fence line, it used heavy equipment to move earthen material for the purpose of establishing that
fence line. Id. at 3. Gopher emphasizes that the establishment of the fence line was its “sole
purpose” for entering the mine site. Accordingly, it asserts that it was present at Mull Lane
“with the intent to construct a fence line and only that.” Id. at 3 (emphasis added). In this
respect, Gopher points out that Gopher Construction also operates as a licensed construction
company in Nevada, holding a Nevada Contractor License, and it maintains that it was acting in
that capacity on October 15, 2009. Thus, Gopher argues that it operates in two capacities; as the
operator of sand and gravel mines and as a construction company and building contractor. Id. at
2-3.
Gopher does not take issue with the assertion that reclamation activity is within MSHA’s
jurisdiction. It simply contends that it was not doing reclamation work at the time of the alleged
violation. Instead, as just mentioned, it was acting as a site contractor, simply moving earth to
construct the fence line between its land and that of BLM. Thus, it contends tha its role was then
confined to that of a building contractor in furtherance of carrying out its contractual obligation
with the BLM.5 Gopher adds that the material was moved during the construction of the fence
line and then dumped into an existing stockpile. That stockpile, it declares, was never to be
crushed. In support of that claim, Gopher states that, even now, that material remains in the
stockpile and it has never been crushed, nor sold. R’s Br. at 3. In its Response Brief, Gopher
notes that it does not take issue with the claim that the cited activity comes within the ambit of
interstate commerce. R’s Response Br. at 3. Instead, as noted before, Gopher’s jurisdictional
challenge is directed to whether mining was being conducted. It notes again that its mining
operations at the site had been suspended since October 1, 2009. It was after that closing that
Mr. Tibbals instructed his crew to begin constructing the fence line per the contract with the
BLM. Thus, Gopher maintains that, as soon as it closed the mine, it began construction of the
fence and that an additional motivation for that work was Mr. Tibbals’concern over the safety of
local high school students who walk along that fence line. R’s Response Br. at 3-4.
The Secretary agrees that to be subject to the Mine Act, a site must meet the definition of
a mine and that the activity must affect interstate commerce. Sec. Br. at 7, citing 30 U.S.C.
§802(h)(1), 30 U.S.C. § 803. Looking to the pertinent provision, a mine is defined as “an area of
land from which minerals are extracted in nonliquid form” and “lands, excavations . . . slopes,
equipment, machines, tools, or other property . . . used in, or to be used in, or resulting from the
work of extracting such minerals from their natural deposits in nonliquid form.” The Secretary
places emphasis on the words “or resulting from the work of extracting such minerals from their

4

count.

Respondent’s brief was not paginated. Page number references reflect the Court’s page

The Court would point out however, that Gopher did not simply appear on the scene as
a fence contractor. There was a history there and that history was mining.
5

35 FMSHRC Page 1847

natural deposits in nonliquid form” portion of that definition. Id. at 7. The Secretary also points
out what is indisputable – it was the intent of Congress to broadly construe the Act’s definition
of a “mine.”6
Here, the Secretary contends that Gopher was so excavating minerals from their natural
deposits, with the intent to crush and sell that material. It also contends that the material was
being excavated as part of reclamation work at the Mull Lane site, in order to restore the land to
its original contour. Sec. Br. at 8, citing Donovan v. Carolina Stalite Co., 734 F. 2d 1547, 1554
(D.C. Cir. 1984). The Secretary points to Gopher’s contract with the United States Bureau of
Land Management (“BLM”) to “purchase and remove 31,000 cubic yards of sand and gravel
from BLM’s land . . . [and in order to accomplish that agreement] Gopher used a dozer, feeder,
crusher, and other equipment [to remove the] sand and gravel off of BLM land [and] into the
Mull Lane pit and [then] to process [that] material.” Id. Thus, the Secretary contends that
Gopher’s extraction and processing of the sand and gravel makes its site a mine.7 Id. at 9.
The Secretary further asserts that “[a]fter Gopher removed and processed the sand and
gravel from BLM’s property, Gopher’s contract required [it] to re-establish a fence line between
Mull Lane and BLM’s neighboring property.” On the date of the MSHA inspection in issue
here, Gopher determined that more material was needed to establish the fence line and an
excavator and two haul trucks were being used at that time to build that fence line. Id. at 9.
It is the Secretary’s position this work “to restore the land and re-establish the fence line was
reclamation activity subject to MSHA’ jurisdiction.” Id. Accordingly, the Secretary returns to
the “resulting from” language to support its contention that the cited activity was reclamation
work. Id. at 10, citing a host of administrative law judge decisions upholding jurisdiction over
reclamation activities. Restating its argument, the Secretary contends that, as the Respondent
was excavating and moving material resulting from its prior extraction of minerals from their
natural deposits, this constituted mining activity, in the form of reclamation work. The Court
agrees that, at a minimum, reclamation work was occurring.

In this regard, the Secretary observes that the Senate Report for the Mine Act provided
that “it is the Committee’s intention that what is considered to be a mine and to be regulated
under this Act be given the broadest possible interpretation, and it is the intent of this Committee
that doubts be resolved in favor of inclusion of a facility within the coverage of the Act.” Sec.
Br. at 8, citing S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Act,
at 602.
6

The Secretary cites Central Concrete Products, 12 FMSHRC 102 (1990), Valley Rock
Sand & Gravel, 4 FMSHRC 113 (1982), and Cedar Lake Sand & Gravel, 480 F. Supp. 171
(E.D. Wisconsin 1979), but all for a proposition that is undisputed: sand and gravel operations
meet the definition of a mine.
7

35 FMSHRC Page 1848

Though noted earlier in this decision, as MSHA field office supervisor Troy Van Wey,
expressed: “[the] area that was being excavated was created because the mine site’s there. If the
mine site wasn’t there, it would never have been created. So reclamation, taking this particular
area to re-establish a fence line, was a direct result of mining activity.” Sec. Br. at 11, Tr. 235.
Accordingly, with the fence line and associated activity, work was still needed to be done to
bring the property back to its pre-mining state, restoring it to its original contour. Therefore, the
Secretary contends, MSHA’s jurisdiction continued. The Secretary adds that “Gopher was [also]
excavating minerals in nonliquid form on the date of the inspection and there is evidence that
Gopher intended to crush this material.” Id. at 12. As crushing is part of the processing of sand
and gravel before the finished product may be sold to customers, the Secretary offers that this
“evidence” constitutes an additional basis to conclude that this excavating was mining activity,
leading to such material entering commerce. Id.
Interstate Commerce.
Respondent’s owner, Don Tibbals, while stating that he has been operating Gopher
Construction since 1978, acknowledged that he has been in the surface mining industry for over
45 years. Operating a total of 5 open pit sand and gravel mines, Gopher informed that two of its
operations, including the “Mull Lane Pit” operation (“Mull Lane”), which is the subject of this
litigation, were not presently operational. The Mull Lane Pit has been closed since 2009 and, as
noted, Gopher submitted to MSHA notification that operations at that site had ceased.
The Secretary asserts that Gopher’s mining operation affects interstate commerce.8
Citing Section 4 of the Mine Act, the Secretary notes both that the provision covers mining
activities which affect commerce and that the authority to so regulate such interstate commerce
is to be broadly construed. As this is a plain and inarguable point of law, there is no purpose
served to a further discussion and the Court agrees that, on multiple grounds, Gopher’s activity
affected interstate commerce. In fact, Gopher subsequently dropped this argument. Rather, the
sole jurisdictional issue in dispute is whether Gopher was engaged in mining.9

Here Gopher has conceded that a rock quarry comes within the “expansive definition of
the term “mine” and it withdrew the claim that its activity was not interstate commerce.
8

It is noted that one argument, made to distinguish an activity from mining, is the claim
that a “borrow pit” is involved. The 1979 MSHA/OSHA Interagency Agreement, (“Agreement”)
describes such borrow pits as “an area of land where the overburden, consisting of
unconsolidated rock, glacial debris, or other earth material overlying bedrock is extracted from
the surface. Extraction occurs on a one-time basis or 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. Thus, if earth is being extracted from a pit and is used as fill
(continued...)
9

35 FMSHRC Page 1849

A few additional observations are made about Gopher’s notification of the mine closing
and its contract with BLM. As noted, per Gopher’s Exhibit A, its mine closing letter to MSHA’s
Elko, Nevada office on October 1, 2009 lists the mining operation at its Mull Lane Pit as
“temporarily closed.” Exhibit B, which relates to Gopher’s contract with BLM informs, in a
letter dated April 15, 2008, that Gopher wanted to “close our pit and use the property for other
purposes.” That letter continues that “[i]n order to [close the pit] it would benefit all parties if
[Gopher] were to remove the slope an put a new fence line on [Gopher’s] property.” Gopher
stated it was “willing to pay a small Royalty on approval of 50,000 cy of removed material.”10
Subsequently, the Nevada Department of Transportation wrote to Gopher on February 3, 2009
regarding the removal of “the mineral aggregates” from that pit, per BLM Contract No. NVN085629. The letter noted that Gopher was authorized to remove 31,000 cubic yards and that the
material was to be removed so that a 3:1 slope would result. February 3rd letter, attached
Gopher’s contract with BLM. That contract is described as a “Contract for the Sale of Mineral
Materials.” Thus, BLM was selling mineral materials (sand and gravel) in the quantity of 31,000
cubic yards to Gopher for a selling price of $16,275.00. Gopher signed this contract on
September 4, 2008. Distinct from Gopher’s Exhibit B, the contract within that exhibit has its

(...continued)
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. MSHA, US. Dep't. Of Labor, Program Policy
Manual, Section 4, I.4-3 (1996) and MSHA-OSHA Interagency Agreement, 44 Fed. Reg. 22827
(1979). Cases interpreting the borrow pit as a very narrow exception include Secretary of Labor
v. State of Alaska, Department of Transportation, 33 FMSHRC 1550, 2011 WL 3794325, June
15, 2011 (Judge Miller), and Kerr Enterprises., Inc, 26 FMSHRC 953, 957 (Dec. 2004)
(ALJ)(“Kerr”) and New York State Department of Transportation, 2 FMSHRC 1749, 1761 (July
1980) (ALJ). (State entity that extracts and screens sand for use as a traction control material in
winter operates a mine and did not qualify for the “borrow pit” jurisdictional exception).
Although the operator used a scalping screen to remove wood debris from earthen material at an
extraction pit, the operation did not qualify for the borrow pit exception because the material
was sold for use in a variety of purposes that were not bulk fill related.
9

The evidence does not support that the activity at issue here could be considered as a
borrow pit, but even if, for the sake of argument, it was assumed to be one, the Agreement
provides that borrow pits located on mine property are not part of OSHA’s jurisdiction.
Accordingly, the Court concludes that the “borrow pit” exception, which is a very narrow
exception to jurisdiction, essentially limited to using nearby bulk material for fill, was clearly not
involved here.
From the same Exhibit B, on October 28, 2008, Gopher noted that it was authorized to
remove 31,000 CY in order to eliminate a peak or pinnacle between the two properties but that it
needed to remove an additional 19,000 CY to complete the project.
10

35 FMSHRC Page 1850

own distinct Exhibit “B.” The contract’s Exhibit B contains three salient pieces of information,
at stipulations 2, 4, and 5, which inform about Gopher’s activity. Stipulation 2 provides that
Gopher is entitled to “extract and remove mineral materials from the public lands only [and that]
[p]rocessing, segregation, and stockpiling of mineral materials on the public lands are not
authorized under [the] contract.” Stipulation 4 informs that Gopher “will be responsible for the
cost of restoration and reestablishment of the existing center-west 1/16 corner, Sec. 24, T. 20N,
R. 24E, that must be removed to facilitate material removals from the contract area. The
operator will also be responsible for the restoration or reestablishment of any additional survey
monuments, corners, or accessories that are destroyed in the course of operations.” Finally, and
most importantly with regard to this litigation, Stipulation 5 provides that “[t]he operator will be
responsible for replacing the boundary fence that must be removed to facilitate material removals
from the contract area. The boundary fence must be of the same construction as that which
resides on site at present, which is 3 strand barbed wire with T-posts.”
A reading of these papers from Respondent’s Exhibit B leads to the inescapable
conclusion that Gopher’s activity regarding the fence line cannot be fairly characterized in the
manner urged by Gopher as “construction” work. Clearly, this activity was inextricably related
to Gopher’s mining activity and at the very least constituted reclamation activity. Accordingly,
the Court concludes that Gopher was engaged in mining at the time of the cited violations.
The Alleged Violations
Docket No. WEST 2011 73 M
On October 15, 2009 Gopher was issued Citation No. 6387450, a section 104(d)(1)
citation for violating 30 C.F.R. 56.9301. Gov. Ex 1. MSHA proposed a $6,624.00 civil penalty
for this. The cited standard, entitled, “Dump site restraints,” provides: “Berms, bumper blocks,
safety hooks, or similar impeding devices shall be provided at dumping locations where there is
a hazard of overtravel or overturning.” “Berm” is a defined term, found at 30 C.F.R. § 56.2, as
“a pile or mound of material along an elevated roadway capable of moderating or limiting the
force of a vehicle in order to impede the vehicle’s passage over the bank of the roadway.”
Docket No. WEST 2011 863 M – The 110(c) action against Mr. Tibbals
On October 15, 2009, Donald W. Tibbals was issued a section 104(d)(1) citation arising
out of the same facts from Docket No. WEST 2011 73M, next above. The Secretary seeks a
$3,700.00 civil penalty for this.
Docket No. WEST 2010 470-M
Also on October 15, 2009, Gopher was issued a section 104(d)(1) order for violating 30
C.F.R. 56.9300(b). Order No. 6387451. Entitled “Berms or guardrails,” it requires that
“(a) Berms or guardrails shall be provided and maintained on the banks of roadways where a
drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in

35 FMSHRC Page 1851

equipment. (b) Berms or guardrails shall be at least mid-axle height of the largest self-propelled
mobile equipment which usually travels the roadway.”11
Findings of Fact
Docket No. WEST 2011-73 M
Inspector Jeno addressed Citation No. 6387450, which relates to Docket WEST 2011-73
M. Referring to his earlier testimony in connection with the jurisdiction issue and regarding the
activity of the haul trucks he observed at the site, the Inspector again stated that he saw a haul
truck backing up to the edge of a stockpile that was being created, and witnessed “material
sloughing out from underneath the tires, as the truck was backing up to the edge.” Tr. 49. Seeing
the truck’s rear axle starting to sink in the soft ground, Inspector Jeno thought that the truck was
going to go all the way over the edge.12

The full text of standard 30 CFR § 56.9300 provides, (with bold print added for
subsection b), “Berms or guardrails. SAFETY DEVICES, PROVISIONS, AND
PROCEDURES FOR ROADWAYS, RAILROADS, AND LOADING AND DUMPING SITES
(a) Berms or guardrails shall be provided and maintained on the banks of roadways where a
drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment. (b) Berms or guardrails shall be at least mid-axle height of the largest self-propelled
mobile equipment which usually travels the roadway. (c) Berms may have openings to the
extent necessary for roadway drainage. (d) Where elevated roadways are infrequently traveled
and used only by service or maintenance vehicles, berms or guardrails are not required when all
of the following are met: (1) Locked gates are installed at the entrance points to the roadway.
(2) Signs are posted warning that the roadway is not bermed.
(3) Delineators are installed along the perimeter of the elevated roadway so that, for both
directions of travel, the reflective surfaces of at least three delineators along each elevated
shoulder are always visible to the driver and spaced at intervals sufficient to indicate the edges
and attitude of the roadway. (4) A maximum speed limit is posted and observed for the elevated
unbermed portions of the roadway. Factors to consider when establishing the maximum speed
limit shall include the width, slope and alignment of the road, the type of equipment using the
road, the road material, and any hazardous conditions which may exist. (5) Road surface traction
is not impaired by weather conditions, such as sleet and snow, unless corrective measures are
taken to improve traction. (e) This standard is not applicable to rail beds.”
11

The Inspector stated that photograph 11-2 shows the vertical edge in the back. As this
was not evident to the Court, the Inspector drew a circle around the area of the vertical drop-off
he was describing. Tr. 157. Adding to his testimony, the Inspector marked on Exhibit 44, using
a green ink marker, to indicate where the trucks were coming to the edge and dumping, as well
as the trucks’ backing up direction. The Inspector also marked on the exhibit the approximate
location where he was standing alongside Mr. Skinner. Tr. 59. Although the word “stockpile”
(continued...)
12

35 FMSHRC Page 1852

This situation prompted him to issue an oral imminent danger order to Gopher employee,
Alan Skinner.13 Tr. 49. Mr. Skinner advised that the road had been built a few days earlier by
Mr. Tibbals himself and that the work crew had been instructed to dump the loads off the
stockpile in the manner that the Inspector had observed. That is, the drivers were instructed to
bring the truck’s rear axle right to the edge until it started to sink in the ground and then to stop
and dump.14 Tr. 52. Inspector Jeno stated that, at this dumping location, there was no berm
present. According to the Inspector, Mr. Skinner related that he had brought up the subject with
Mr. Tibbals regarding the matter of installing some berms or dump site restraints at the stockpile
(i.e. dumping) area and, as discussed later, for the other violation, along the haul road, to make
them safer, but that Mr. Tibbals turned down the suggestion, telling him to continue with the
procedure that he had instituted, as described above. As discussed later, the Court views this
oral recounting as at odds with Mr. Skinner’s statement to the MSHA Investigator. Gov. Ex. 30.
Later, Inspector Jeno spoke with Mr. Tibbals about this matter and he advised that the
method the Inspector had observed was as he had directed his workers to operate. Tr. 54.
Mr. Tibbals rejected the Inspector’s suggestions to build a dump restraint or to dump on the
ramp itself because, according to the Inspector’s retelling, that would require another piece of
(...continued)
appears on this Exhibit, that term actually refers to a ramp area. Accordingly, the Inspector’s
use of the word “stockpile” was meant to convey the area where the trucks backed up and
therefor not what one typically imagines when that term is used. Tr. 60. The whole area, the
Inspector explained, was a ramp and the trucks backed up on that ramp, with the ramp being
about the width of four or five of the trucks using it. Tr. 60. Using “X’s,” the Inspector marked
to show where the material was ending up. Tr. 63. Gov. Ex. 44. The letter “B” was added to
the Exhibit by the Inspector to show where the rear tires of the truck were positioned at the
dumping point. Tr. 64. Inspector Jeno also testified about several photographs he took at the
time in issue. Tr. 65-66. Gov. Ex. 3, at page 4 of 5. This photo shows the tracks created by the
haul truck which he observed on that date. As noted, it was the observation of the trucks’
dumping activity that caused the Inspector to issue the imminent danger order. Although the
Court expressed that the subject photograph did not appear to show that there was much of a
drop-off from the point where the tire tracks end, the Inspector informed that the loader was “20
feet just down on the slope on the other side of that.” Tr. 68. The Court notes that the
photograph does vividly display the “sinking action” created by the trucks’ tires as they backed
up to the dumping point. Gov. Ex. 3 at page 5 of 5, another photograph, depicts where the
Inspector was standing when he saw what he believed to be an imminent danger and it also
shows the area where the trucks were backing up and dumping over the edge. The Court notes
that from this vantage point one can appreciate that the 20 foot drop-off was significant. Tr. 72.
12

Mr. Skinner was also identified as the “lead man.” That person directs the workforce
when the foreman or the owner is not present. Tr. 51.
13

Skinner told the Inspector that the trucks were dumping approximately 20 loads per
day, per shift. Tr. 53.
14

35 FMSHRC Page 1853

equipment and consequently Tibbals would have to pay another individual. Tr. 54. In a
subsequent conversation between Jeno and Tibbals about this issue, but this time with Inspector
Jeno’s Supervisor participating in the conference call, Mr. Tibbals reiterated that, in his view, the
berms15 that were present were more than adequate.
Based on his observations, the Inspector concluded that standard 56.9301 was being
violated, on the grounds that the standard requires dump restraints where equipment is dumping
over the edge, or near an edge, in order to prevent overtravel. Tr. 72. He marked the gravity as
“highly likely,” with that determination factoring the number of trucks making dump trips
throughout the day, a number which he estimated to be about 20 times. In the Inspector’s view,
the idea that a truck would back up until its rear axle was right at the drop-off edge and at which
point that axle would then start to sink in the loose, uncompacted, material, was in clear violation
of the standard’s requirements. Tr. 73. The circumstances were aggravated because, in the
Inspector’s view, that material could give-way at any moment. He also believed that a fatality
could result, as a consequence, if a vehicle were to go off the edge and overturn. Tr. 73.
Inspector Jeno did agree that the material absorbed the tires when the truck backed up
and that the tires did sink into the material. Tr. 92. The Inspector further conceded that, based
on a photograph within DOL 3, the tire tracks appear to have sunk some six to eight inches into
the soil. Tr. 99. In the Court’s view this sinking appears to be more than six to eight inches, but
certainly, DOL 3 at photograph 4 of 5, shows this sinking action occurred. Speaking to
Gopher’s contention that the dumping location was on an incline, while the Inspector could not
recall the steepness of the incline as the trucks backed up the ramp to the dumping point, he did
agree that the trucks were backing up an incline in that dumping process. Tr. 93. However, the
Inspector expressed that the fact there is an incline as one backs up does not constitute an
exception to the requirement to provide a berm. Tr. 93. Nor, he added, is there an exception
from the requirement to provide a berm if a truck, when backing up, is sinking in the material
from its own weight as it moves back to the edge. Tr. 94. As discussed infra, the Court agrees
with both of these conclusions. The Inspector did not agree with the suggestion that when a haul
truck sinks into material, that action constitutes an impeding device, because the truck could still
travel over the edge.16 Tr. 95. Had the truck applied a “little more power,” he believed, it would
have gone over the edge. The Inspector admitted that, with regard to the vertical area where he
contended there was no berm, he did not take a photograph of that condition. Tr. 175.17
This reference to berms, the Inspector explained, related to the other violation
involving the issue of the need for berms to be installed along the road.
15

As discussed later, the Court agrees that the sinking action is not a similar impeding
device but not with the Inspector’s reasoning that it did not meet the standard because a truck
could still go over the edge. An impeding device is only that. To “impede” means to interfere
with or slow the progress of something. It does not suggest an absolute barrier.
16

17

The Court noted that the Inspector stated that he did not walk in that area because of
(continued...)

35 FMSHRC Page 1854

As Inspector Jeno agreed that, before one reaches the edge of the material, there was a
build-up of material where those tire tracks ended, the Court inquired why that build-up did not
constitute a berm. Tr. 142. The Inspector stated that the build-up observed was created by the
weight of the truck backing up, just before the truck stopped. He did not consider this to
constitute a berm because it was not a pre-existing impeding device. Rather, it was created as
the trucks operated, backing up. When asked how high the truck-created build-up was, the
Inspector estimated it to be 16 to 18 inches, but it was noted that the trucks’ mid-axle height was
30 inches. Per section 56.9300, berms are required to be at least of mid-axle height. Thus,
although the Inspector conceded that the next truck then arriving at the dump location would
come up against the berm just created by the prior truck’s activity, it would still not be of
sufficient height because it was not of mid-axle. Tr. 144. The Inspector’s overriding point was
that tires sinking into material does not provide an impeding device. Tr. 146.
The Secretary contends that rather than any berm being present, Gopher’s activity of
backing up might have created some loose mounds of material but that this was merely
incidental to that work and in any event it did not create a berm or similar impeding device.18
Sec’s Opp.
at 5.
As noted, Respondent Tibbals’ view is that the practice he instituted at the dumping
location, where a truck operator, upon seeing his truck’s wheels sinking into the soft material,
would then stop the truck, satisfies the standard. Respondent’s theory is that, by the truck
sinking into the ground, that action satisfied the standard on the basis that it created an impeding
device. An alternative theory, the Respondent also argues that a berm doesn’t stop a truck in any
event. Rather, in Gopher’s view, it is the truck operator that stops the truck. This alternative
theory is rejected by the Court as plainly contrary to the standard’s requirement.
In its Response Brief, Gopher repeats its defense and adds some additional arguments to
this charge. It points to DOL 3.1, a photograph, as the “exact conditions” observed by the
Inspector and from that contends that the photo demonstrates that trucks stop about 3 feet from
the edge of the dump site where a berm was created by the impeding device of the material, and
began to dump [its] load. Thus, Gopher contends that the photo demonstrates both the truck

(...continued)
concerns about the integrity of the material there. The Court also noted that there is no
requirement that photos be taken to establish a violation. Tr. 177-179.
17

Although the Secretary concedes that a berm is not an absolute barrier to preventing
overtravel, it must “be capable of restraining a vehicle through reasonable control and guidance
of vehicular motion.” Here, it contends, the loose, uncompacted, material, created in the process
of backing up, could not achieve that. Sec’s Opposition at 5. Nor were these alleged “berms,”
such as they were, in place before the dumping activity. Instead they were created by the sinking
action of the truck’s weight as it would back up to the edge.
18

35 FMSHRC Page 1855

stopping 3 feet from the edge of the dump site “with an impeding device and this resulted in a
berm,” thereby satisfying the standard’s requirements. Gopher contends that if its arrangement
does not amount to an impeding device, then MSHA needs to clarify its standard so that the
mining community can understand what is acceptable. R’s Response Br. at 4. Further, it
discounts the testimony of the MSHA Inspectors that its arrangement did not meet the standard
as simply “the personal testimony of two individuals” expressing their interpretation of the
standard, and nothing more. It also argues that, as the dictionary definition of “impede” means
to bar or hinder progress, its arrangement meets the wording of the standard.19 Id. at 5.
Gopher also emphasizes that MSHA Inspector Jeno omitted that the standard in issue, 30
C.F.R. 56.9301, allows “other similar impeding devices.” R’s Response Br. at 2. Again, it is
Gopher’s position that, in compliance with that provision, its trucks approached the 6 to 7
percent inclined ramp to the dump site and when the driver observed the truck’s rear tires “reach
the impeding device shown in DOL 3.1 they would stop and dump their loads.” Id. Gopher also
points to a MSHA Handbook at pg. 15, and Section G, Safe dumping practices near the edge of a
stockpile. There, under “good practices,” it advises that “[t]he top of the dump should be kept
sloped a small amount, perhaps 2 to 3 percent, so that in backing up to dump, the trucks will be
going up a slight grade.” Id. at 3. Gopher asserts that it bettered that advice, by having a 6 to 7
percent inclined slope up to the dumping point and it views this slope to be an additional
impeding device. The Court rejects this contention as unsupported by the standard. An incline
is plainly not a “similar impeding device.”
Gopher has also maintained that the berm in issue was mid-axle height. R’s Br. at 3. Mr.
Tibbals stated that he acted as a spotter and that when the haul truck’s rear tires “started to settle
in the soft material” the trucks were directed to stop at that point and to dump their loads. Thus,
Gopher states that it implemented this procedure and considered it to be “training.” It asserts
that the truck operators felt very comfortable with this procedure. Gopher believes that its
procedure fell well within the MSHA guidelines because its method of using the sinking action
of material to warn the haul truck operator that it was safe to stop and dump their loads
constitutes an impeding device. Gopher adds that MSHA’s Guidelines acknowledge that these
devices are not intended to stop a truck a haul truck from going over the edge or from overtravel
or overturning, but rather to alert a driver that he is at the stop and dump point. Thus, Gopher
maintains that it “constructed the required impeding device and administered [the] required
training . . . as to the safest method of dumping their loads in [that] location.” R’s Br. at 4.

Gopher also refers to MSHA’s Dump Point Inspection Handbook, noting first that the
Handbook was never presented to it until after the hearing in this matter. Gopher’s position in
reaction to the Handbook is twofold: first, since the handbook had not previously been presented
to it, it should not be used to establish the government’s interpretation of the alleged violations,
and second, Gopher should only be held to the requirements of the standard, as set forth in the
Code of Federal Regulations, and not the handbook. R’s Response Br. at 5. However, as noted
infra, Gopher refers to the Handbook itself where it believes it aids its arguments. This decision
is made apart from the Handbook and therefore moots this contention of Gopher.
19

35 FMSHRC Page 1856

Gopher believes that if MSHA will only permit specific impeding devices, the agency needs to
identify them. Id. at 6.
The Court observes that for the sinking process to be considered as a compliance method,
one would have to conclude that this constituted a similar impeding device. The Court is of the
view that a sinking action, although it may serve to alert or warn a truck driver as to the point to
stop and dump the load, cannot be considered to be such a “similar impeding device.”20 As
noted by Judge Miller in Sec. v. Eureka Rock, 34 FMSHRC 476, 2012 WL 894520, ( Feb. 21,
2012), “Administrative regulations are generally subject to the same principles of construction
as statutes. Miller v. United States, 294 U.S. 435, 442 (1935). In analyzing the rules of statutory
construction, the Supreme Court of the United States has stated that the established canon of
construction is that similar language contained within the same section of a statute must be
accorded a consistent meaning.” Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522
U.S. 479, 501 (1998). The Supreme Court has further held that “there is a natural presumption
that identical words used in different parts of the same acts are intended to have the same
meaning. Atlantic Cleaners & Dryers, Inc. v United States, 286 U.S. 427 (1932). Furthermore,
in Morton Int'l Inc., 18 FMSHRC 533 (Apr 1996), this Commission held that “regulations should
be read as a whole giving comprehensive, harmonious meaning to all provisions”. Id at 536.”
So too, in Tamko Roofing Products v. Sec. of Labor, 27 FMSHRC 829, 2005 WL 3198668,
(Nov. 2005)(Judge Melick), it was noted that “[u]nder the rule of statutory and regulatory
construction, ejusdem generis, when specific examples set forth in a statute or regulation are
followed by general words, the general words are construed to embrace only objects *832
similar in nature to the specific examples. Garden Creek Pocahontas Company, 11 FMSHRC
2148 (November 1989); 2A Sutherland Statutes and Statutory Construction § 47.17 (6th ed.).”21
Accordingly, the Court determines that the “sinking action” which occurred here does not
constitute a “similar impeding device” and that the standard was violated. However, that
determination is a very different matter from issues of intentional conduct and unwarrantability.
In terms of the negligence associated with this citation, the Inspector considered it to be
“reckless disregard” because Mr. Tibbals had both ordered and observed the procedure, which
the Inspector viewed to be a dangerous dumping practice. Tr. 74. While the Inspector’s
testimony was imprecise on this, the Citation issued to Gopher, as distinguished from the 110(c)

The Solicitor’s attorney stated that he was unaware of any MSHA policy statement
explaining the term “similar impeding devices.” Tr. 148.
20

Although the judge applied the principle to find that “counterweights [were] not of the
same or similar nature as the specific items listed in the standard i.e. “gears, sprockets, chains,
drive, head, tail, and take-up pulleys, fly wheels, couplings, shafts, [and] fan blades” all of which
have the potential for creating dangerous pinch points and/or entanglements [, and that]
[c]ounterweights [were] therefore not within the scope of items covered by the standard,” the
rule applies both to exclude as well as include categories. Id.
21

35 FMSHRC Page 1857

action against Mr. Tibbals, listed the negligence as “high,” and not as “reckless disregard.” Also
considered by the Inspector in this regard was Mr. Tibbals’ rejection of Mr. Skinner’s expressed
concerns about the dumping practice. Tr. 74. The same considerations also led the Inspector to
conclude that the violation was an unwarrantable failure. The Inspector determined that this
practice had been going on for “approximately two days.” Tr. 74. This matter was specially
assessed. Tr. 75-76. Gov. Ex. 4.
Inspector Jeno also marked this Citation as “significant and substantial” and an
“unwarrantable failure.” A significant and substantial (“S&S”) violation is described in section
104(d)(1) of the Act as a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §
814(d)(1). A violation is properly designated S&S “if, based upon the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Div., Nat'l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). The Commission has explained that “[i]n order to establish that
a violation of a mandatory safety standard is significant and substantial under National Gypsum,
the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
“Unwarrantable failure,” has been defined by the Commission as “aggravated conduct
constituting more than ordinary negligence.” Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987). The Commission has stated that whether a citation is an “unwarrantable failure” is a
question that should be evaluated based on the facts and circumstances in each case, and in light
of each of the following factors: 1) the length of time that the violation has existed; 2) the extent
of the violative condition; 3) whether the operator has been placed on notice that greater efforts
were necessary for compliance; 4) the operator's efforts in abating the violative condition; 5)
whether the violation was obvious or posed a high degree of danger; and 6) the operator's
knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340 (Mar.
2000); IO Coal Co., 31 FMSHRC 1346 (Dec. 2009).
As noted, the violation has been established. Gopher’s “sinking action” did not
constitute a “similar impeding” device. The violation was also “S&S.” The discrete safety
hazard was the risk of vehicle overtravel and overturning if it were to go beyond the edge of the
dumping location. The Court relies upon the Inspector’s opinion to support its conclusion that
there was a reasonable likelihood that absence of a similar impeding device would contribute to
the occurrence of an injury. Apart from the Inspector’s opinion, it is obvious that the absence of
such a device would so contribute to an injury. Finally, if the event were to occur, such injury
would be of a reasonably serious nature. This conclusion is also reached on the basis of the

35 FMSHRC Page 1858

Inspector’s opinion as well as the obviousness of the result if a truck were to go over the dump
site edge.
The Court does not believe, however, that this violation was an “unwarrantable failure”
for a number of reasons. The violation was not of long duration, and its extent was limited to
this single dumping location. The condition was immediately abated. More importantly, there
was a genuine, though misguided, conclusion on Gopher’s and Mr. Tibbals’ part, that its method
satisfied the standard. Respondent makes no contention that it did not know of the need for an
impeding device. Rather, it erroneously concluded that its method equated to such a device. As
DOL 3, 4 of 5, shows, there was a significant sinking action which had an impeding effect, albeit
not one that satisfied the standard. Credibility necessarily plays a role in the Court’s conclusions
for this issue, as well as for the related conclusion, to be addressed next, to the section 110(c)
charge. Having concluded that Gopher and more particularly, Mr. Tibbals, genuinely, and not
completely unreasonably, concluded that his method satisfied the standard, the Court finds that
there was moderate negligence involved. It bears emphasis however that, in the future, and now
being well-informed about the requirements for compliance, Mr. Tibbals must apply a less
creative approach to compliance for this standard or be at high risk for a significantly higher
penalty.
Upon consideration of all the statutory criteria,22 the Court imposes a civil penalty of
$2,000.00.
Docket No. WEST 2011-863 M ; the section 110(c) matter
The Secretary maintains that Donald Tibbals violated section 110(c) of the Mine Act,
contending that he knowingly authorized, ordered or carried out the violation of 56.9301. There
is no 110(c) charge associated with the roadway berm violation under section 56.9300(b).
For this alleged violation, associated as it is with Citation No. 6387450, the dump site restraint
violation, the Secretary seeks a penalty of $3,700.00 be assessed against Mr. Tibbals. Gov. Ex.
8.

Raising an economic hardship consideration, Gopher describes itself as a small family
business and asserts that, if the proposed fines were imposed, it will make it “extremely hard” to
remain in business. Thus, it contends that such fines would place the employment of family members
22

and “over 20 miners and their families [at risk of being] without employment.” R’s Response Br. at 10.
No genuine issue was presented to establish that the proposed penalties here would affect the ability of
the mine to continue in business, as Gopher never provided any documents to back up such a claim. Tr.
197. That aside, the Court did express, upon evaluating the testimony of Mr. Tibbals, that it concluded
Gopher runs a responsible operation, and that it is an operation that cares about the safety of its miners.
Tr. 203. DOL 32, relating to the mine’s citation history, was also part of the record and it was considered
for penalty purposes. The mine’s production history, as recorded in form 5002, per DOL 42, is another
document that was considered. Tr. 195.

35 FMSHRC Page 1859

Mr. Tibbals’ response to the section 110(c) citation is in accord with Gopher’s
contentions for that associated matter. Consistent with those arguments, Mr. Tibbals reiterates
that he provided what was required by MSHA standards and Guidelines under that underlying
provision. This included instructing and showing his employees how to dump in a safe manner.
R’s Br. at 4-5. It notes that no one was injured and contends that no employee voiced safety
concerns over the procedure that was employed. Id. at 4. Accordingly, Mr. Tibbals contends
that he acted in a responsible manner, careful to avoid placing any miners in harm’s way and
that, from his perspective, no penalty should be assessed. Id. at 5. Mr. Tibbals further submits
that his testimony demonstrates that he did not knowingly and willingly place his employees
in any hazardous or dangerous situations.23 Further, it notes that the statement of Alan Skinner
to MSHA does not support the contention that this matter was a knowing violation. Skinner did
not say anything about the issue because he did not feel that the practice was unsafe, believing
that there was no hazard involved. Gov. Ex. 30 at 4.
Section 110(c) states: “Whenever a corporate operator violates a mandatory health or
safety standard … any director, officer, or agent of such corporation who knowingly authorized,
ordered, or carried out such violation, failure, or refusal shall be subject to the same civil
penalties …” 30 U.S.C. § 820(c). An individual is subject to personal liability under section
110(c) if he is “in a position to protect employee safety and health [and] fails to act on the basis
of information that gives him knowledge or reason to know of the existence of a violative
condition.” Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d
632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983). The Commission noted in Secretary v.
Matney, employed by Knox Creek Coal Corp., 34 FMSHRC 777, 2012 WL 1799023, April 25,
2012, that “The proper legal inquiry for determining liability under section 110(c) is whether the
corporate agent knew or had reason to know of a violative condition. Kenny Richardson, 3
FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied,
461 U.S. 928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358,
362-64 (D.C. Cir. 1997). To establish section 110(c) liability, the Secretary must prove that an
individual knew or had reason to know of the violative condition, not that the individual
knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992)
(citing United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)). **6.
The Commission has explained that “‘[a] person has reason to know when he has such
information as would lead a person exercising reasonable care to acquire knowledge of the fact
in question or to infer its existence.”’ Id. (citation omitted). In addition, section 110(c) liability
is generally predicated on aggravated conduct constituting more than ordinary negligence.
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).

In its Response Brief, relating to the section 110(c) charge, Mr. Tibbals, repeats that he
never authorized or directed his employees to dump in an unsafe manner. With many family
members employed by Gopher, he argues that it is false to suggest that he would ever put such
relatives in a dangerous position. The Response Brief then repeats the procedures, instruction
and training Mr. Tibbals employed to ensure that the dump cycle was performed safely. R’s
Response Br. at 6.
23

35 FMSHRC Page 1860

In support of the Court’s conclusions, it notes that, per Mr. Tibbals statement to the
MSHA investigator on December 9, 2009, he related “spend[ing] 2 hours on October 13, 2009
observing and training[.] He stood as a spotter and instructed the haul truck operators to back
up, watch their rear tires, and when the rear tires started to settle in the soft material to stop and
dump their load. [The mine then] repeated this [practice for] several dump cycles and even had
the operators park their trucks and observe the other truck dumping. . . . When the operators
and [Tibbals] felt comfortable with the training [he] left the site and returned four hours later for
another hour of observation. [He] returned twice the following day to observe the procedure[.]
[E]veryone was comfortable and understood the procedure and any hazards that may be
involved. ...” Gov. Ex. 17, at p. 9. This statement is consistent with Mr. Tibbals’ testimony, as
well as the Court’s overall assessment that he was acting in misguided good faith, running an
operation that did take into account safety considerations and in a manner which refutes the
allegations of a section 110(c) violation.24 It also contradicts the Secretary’s claim that Mr.
Tibbals was solely motivated to save time by employing his “ground sinking” method of
restraint. Nevertheless, as noted, the Court did uphold the violation of 30 C.F.R. §56.9301 from
Docket No. WEST 2011-73-M and imposed, upon consideration of all the statutory factors, a
significant penalty.
For the reasons articulated above, relating to the underlying dump site restraint citation,
the Court concludes that Mr. Tibbals did not have knowledge or reason to know that the
procedure he employed failed to constitute a similar impeding device. Accordingly, with the
caveat that future citations regarding berm related violations will not be viewed in such a lenient
light, the Court vacates the section 110(c) matter.
Docket No. WEST 2010-470 M
Regarding the one matter involved with this docket, a section 104(d)(1) Order, No.
6387451, the Secretary seeks a penalty of $2,976.00. Tr. 147. Gov. Ex 9 and 10. This citation
was also issued on October 15, 2009 and, as noted earlier, it pertains to an alleged violation of
56.9300(b), another berm-related standard. This condition was in a separate, but adjacent,
location from the aforementioned dump site citation. In the Court’s estimation, DOL exhibit
11 represents the best photographs among the photographic exhibits to gain an appreciation of
this condition cited for this Order. At this location, the Inspector observed “where there were no
berms alongside the roadway where the haul trucks had been traveling.” Tr. 150. The Inspector
identified this distinct area as “the ramp and going down.” Tr. 150. As just mentioned, it was
near the area where the truck drivers would back up to the stockpile and dump their loads. The
cited road section had an approximate 15 foot slope and, at the location where the trucks would
turn left upon leaving the dump point, there was a vertical drop-off of 8 to 9 feet. Tr. 151. Gov.
photographs DOL 11. The Inspector marked the area where berms were needed with a zig-zag

This observation by the Court is tied to the dump site violation. As noted, Mr. Tibbals
was not charged with any 110(c) liability in connection with the other violation, involving the
berm citation under section 56.9300.
24

35 FMSHRC Page 1861

blue line, and the letter “C” was added to the exhibit to identify the subject area for this citation.
This was the only area where berms were needed, for this alleged violation. Tr. 153. The
Inspector added that some of this area, about a 14 foot section, had berms of 18 to 20 inches in
height but that the rest of that area had no berms. The bermed portions were constructed of dirt.
Tr. 154. DOL photo 11-2 is a clear photo of the ramp. The Inspector was at ground level when
he took photograph 11-2. As mentioned, trucks used this ramp when exiting the dump site.
Referring again to DOL Exhibit 9, the roadway, the Inspector stated that his concern was
with one 100 foot area. He walked the ramp and observed that there were some areas along this
100 section with little or no berm along it. Tr. 161. The Inspector used a tape measure to
determine the berm height in this area. Mid-axle height for the trucks using this area was about
30 inches. Here again, it was asserted that Mr. Alan Skinner, an employee at the Respondent’s
operation, advised the Inspector that he had spoken with Mr. Tibbals about the need to install
berms but that he was told the condition was adequate and that the road should continue to be
used in its present state. Tr. 162. Because of the frequency of the road use, the Inspector
believed that the gravity, that is the danger of overturning, was “highly likely.” Tr. 163-164.
He added that since the drivers descending the ramp had to make a tight turn and because the
roadway was only about 14 feet wide, if the turn was not made all the way, the risk of overtravel
existed. Tr. 164. He believed that if this were to occur fatal injuries could result. Tr. 164. The
Inspector also marked the negligence as “reckless disregard” for this citation, again because Mr.
Tibbals was at the site and had constructed the road. Tr. 165. The condition had been present
for about two days.
Upon cross-examination, the Inspector explained that his reference to 15 feet referred to
the angle of the slope but that 25 feet was associated with the 100 feet, which included the
horizontal and vertical line together. These were estimates on his part. Tr. 168.25 In sum, it was
the Inspector’s testimony that he found a 100 foot length, with a 15 foot slope, and that berms
were absent from that area, as reflected on DOL 11-2. In response to the Court’s inquiry, the
Inspector agreed that some areas had no berm at all and that other portions did have some
berming but that nowhere was there berming of sufficient, that is to say, of mid-axle height. Tr.
175. The standard, 30 C.F.R. § 56.9300(b), requires that “Berms or guardrails shall be at least
mid-axle height of the largest self-propelled mobile equipment which usually travels the
roadway.”

The Inspector was then directed to DOL 11-2 and a barrel which appears in that photo.
There was general agreement that the barrel, which was a 50 gallon size, was about 35 inches
tall. Tr. 169. Gopher’s intention in referencing the barrel was to show that the berms were of a
height sufficient to meet the standard’s requirement. The Inspector then repeated that he was not
contending that there was a 15 foot drop-off, but rather that it was a 15 foot slope. Tr. 169. This
slope was then marked on that photo, as the Inspector circled the area, with a broken, or dotted
line. Tr. 170. A green line was used for this marking, to indicate the 15 foot slope. Tr. 170.
25

35 FMSHRC Page 1862

Regarding its defense to the roadway berm requirement, Gopher notes that in the
Secretary’s photographic evidence at the hearing, a 55 gallon drum is depicted. That drum,
Gopher states, has an approximate height of 36 inches. From this, Gopher concludes that “the
distance of drop off based on [the picture of the drum] can only be an approx[imate] height of
36" over a 2% slope which falls within the MSHA Guidelines.” R’s Br. at 5. Restated, Gopher,
using the photo of the drum as a reference point, contends that photo establishes that the berm in
issue was high enough (i.e. at least 36" or more)” to satisfy the standard. In its Response Brief to
the berm citation, Gopher repeats its contention that the 55 gallon drum pictured in DOL 11.2 is
about 36" in height. Noting that the Inspector referred to an approximate 15 foot drop off, it
contends that this estimate, based on the drum height reference, had to be inaccurate and that the
drop off was “less than 36" with a less than 2% slope tapering back to ground level [and that this
meets the requirements of 30 C.F.R. 9000(b). R’s Response at 3. Further, in its Response Brief,
Gopher contends that while the Inspector referred to two areas of concern, his citation only
identified one area. Gopher states that, in abating this citation, the Inspector only required it
dump two loads of material from a loader along the haul road, as reflected in DOL 11.3.
Accordingly, Gopher is contending that the Inspector did not identify a second area of concern
until his testimony at the hearing and that such claims should be rejected by the Court in
evaluating whether there was a violation. R’s Response Br. at 7. Although the Court
considered these contentions, it concludes that the Secretary did establish the violation. Berms
were needed and missing in the location identified by the Inspector.
Upon consideration of the record evidence, the Court concludes that the violation of 30
C.F.R. § 56.9300(b) was established. However, given that the section 104(d)(1) citation,
No. 6387450, pertaining to Docket WEST 2011-73, was modified to a section 104(a) citation
because it was not an unwarrantable failure, the Order here must also be modified to account for
that change. This Order must also be modified because the Court finds that it too was not the
result of an unwarrantable failure. Given the relatively short distance needing berming, the
relatively short drop-off, and the short period of time that the roadway had been in operation, the
Court believes that these considerations work to diminish the negligence involved. However,
moving to the S&S designation, the testimony, including the frequency with which trucks were
traveling the roadway, establishes that there was a reasonable likelihood that the absence of
berms could contribute to a reasonably serious injury occuring, should a truck leave the roadway.
In sum, the Court concludes that the violation was significant and substantial and of moderate
negligence. For this, it imposes a civil penalty of $1,500.00 penalty.
Summary
Based on the foregoing, the Court upholds Citation No. 6387450, but modifies it to a
section 104(a) citation, finding the negligence to be “moderate” and that it was “significant and
substantial. For this, a civil penalty of $2,000.00 is imposed. For Order No. 6387451, the Court
also finds that the violation was established, but that it was not an unwarrantable failure, but
rather that moderate negligence was involved. Consequently, that Order is modified to a section
104(a) citation with a finding that it too was significant and substantial. As mentioned above, a
civil penalty of $1,500.00 is imposed. The section 110(c) matter has been vacated. It is hoped

35 FMSHRC Page 1863

that Mr. Tibbals will reflect upon the determinations made here, realize that harsher conclusions
could have been reached, and make adjustments accordingly for his future mining activities.
Order
Within 40 days of the date of this decision, Respondent Gopher Construction, Inc. is
ORDERED TO PAY a civil penalty in the total sum of $3,500.00. Upon payment of the
penalty, this proceeding is DISMISSED.

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

Distribution: (E-mail and Certified Mail)
Joseph M. Lake, Esq. and Cheryl L. Adams, Esq., Office of the Solicitor, U.S. Department of
Labor, 90 7th Street, Suite 3-700, San Francisco, CA 94103
Donald W. Tibbals, 1625 E. Newlands Drive, Fernley, Nevada, 89408

35 FMSHRC Page 1864

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004

June 19, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of REUBEN SHEMWELL,
Complainant,
v.
ARMSTRONG COAL COMPANY, INC. &
ARMSTRONG FABRICATORS, INC.,
Respondents

:
:
:
:
:
:
:
:
:

DISCRIMINATION PROCEEDING
Docket No. KENT 2013-362-D
MADI CD 2013-01
Parkway Mine Surface Facilities
Mine ID 15-19356

DECISION ON LIABILITY
AND
CEASE AND DESIST ORDER
Appearances: Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Secretary of Labor;
Tony Oppegard, Esq., Lexington, Kentucky, for Reuben Shemwell;
Mason L. Miller, Esq., and Adam K. Spease, Esq., Miller Wells, PLLC,
Louisville, Kentucky, for Armstrong Coal Company, Inc., and Armstrong
Fabricators, Inc.; and Daniel Z. Zaluski, Esq., Madisonville, Kentucky,
for Armstrong Coal Company, Inc.
Before:

Judge Feldman

Reuben Shemwell’s employment as a welder with Armstrong Coal Company
and/or Armstrong Fabricators (collectively referred to as “Armstrong”) was terminated
on September 14, 2011. Shemwell filed a discrimination complaint with the Mine Safety
and Health Administration (“MSHA”) on January 23, 2012. Shemwell’s complaint initiated
discrimination proceedings to determine whether his discharge was motivated, at least in part,
by safety related activities protected under section 105(c)(1) of the Federal Mine Safety and
Health Act of 1977 (the “Act” or “Mine Act”). Section 105(c)(1) provides in pertinent part:
No person shall discharge or in any manner discriminate against
. . . or otherwise interfere with the exercise of the statutory rights
of any miner . . . because such miner . . . has instituted or caused
to be instituted any proceeding under or related to this Act . . . or
because of the exercise by such miner . . . of any statutory right
afforded by this Act.
30 U.S.C. § 815(c)(1).

35 FMSHRC Page 1865

During the pendency of MSHA’s discrimination investigation, the Secretary of Labor
(“the Secretary”) applied for Shemwell’s temporary reinstatement. In the temporary
reinstatement proceeding, the Federal Mine Safety and Health Review Commission
(“the Commission”) determined that Shemwell’s complaint was not frivolous. 34 FMSHRC
1580, 1582-83 (July 2012) (holding that substantial evidence supports a finding that Shemwell’s
complaint was not frivolously brought), aff’g 34 FMSHRC 1464 (June 2012) (ALJ). Armstrong
recognizes the finality of the Commission’s preliminary decision that Shemwell’s complaint
appears to have merit.1 Oral Arg. Tr. 158-59.2 Upon the culmination of MSHA’s investigation,
the Secretary declined to bring a discrimination complaint on Shemwell’s behalf.
Following the Secretary’s decision not to pursue Shemwell’s discrimination case,
on August 22, 2012, Armstrong filed a civil tort suit in the Commonwealth of Kentucky’s
Muhlenberg Circuit Court alleging that Shemwell’s discrimination complaint brought
before the Commission constitutes a “Wrongful Use of [Commission] Civil Proceedings.”3
Circuit Court Complaint at 7, No. 12-CI-00897 (Aug. 22, 2012).
Currently before me is a January 8, 2013, discrimination complaint filed by the
Secretary on behalf of Shemwell pursuant to section 105(c)(2) of Act.4 30 U.S.C. § 815(c)(2).
The Secretary asserts that Armstrong’s civil suit in Kentucky violates section 105(c)(1) because
it interferes with Shemwell’s right to file a discrimination complaint. The Secretary filed
an amended complaint on February 13, 2013, proposing a civil penalty of $70,000.00 for
Armstrong’s alleged violation of the statute. Armstrong alleges that the civil suit cannot be
A not frivolously brought finding is the equivalent of a determination that Shemwell’s
discrimination complaint “appears to have merit” or that there is a “reasonable cause to believe”
Shemwell is the victim of discrimination. 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).
1

Transcript references to the Oral Argument conducted at the Commission’s
headquarters on February 27, 2013, will be designated as “Oral Arg. Tr.” Reference to the
transcript of Shemwell’s May 23, 2012, temporary reinstatement hearing will be designated as
“Temp. Reinst. Tr.”
2

The action brought in Kentucky was jointly initiated by Armstrong Coal Company, Inc.
and Armstrong Fabricators, Inc.
3

Shemwell’s January 23, 2012, complaint is the basis for a pending private 105(c)(3)
discrimination case in Docket No. KENT 2012-1497-D, filed on August 27, 2012, that is not
a subject of this proceeding. It is not uncommon for the Commission to find discrimination in
a private proceeding brought by a miner despite the Secretary’s determination not to pursue
a complaint on the miner’s behalf. See, e.g., Ross v. Shamrock Coal Co., 15 FMSHRC 972,
974-76 (June 1993); Meek v. Essroc Corp., 15 FMSHRC 606, 612-13 (Apr. 1993); Womack v.
Graymont Western US, Inc., 25 FMSHRC 235, 261-63 (May 2003) (ALJ); Adkins v. Ronnie
Long Trucking, 21 FMSHRC 171, 176-77 (Feb. 1999) (ALJ).
4

35 FMSHRC Page 1866

a violation of the Mine Act because it is protected by the First Amendment right to petition.
Armstr. Br. at 1. The First Amendment provides:
Congress shall make no law . . . abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.
U.S. Const. amend. I.
I. Statement of the Case
In addressing this matter, I am reminded of a landlord-tenant case in which it was alleged
that there was excessive noise emanating from an apartment leased by Sokolow that was
disturbing Levin, the lessee of the apartment below. Louisiana Leasing Co. v. Sokolow,
266 N.Y.S.2d 447 (Civ. Ct. 1966). Sokolow is reported to have said “this is my home, and
no one can tell me what to do in my home.” Id. at 448-49. Although Sokolow was not evicted
because it was determined that the noise from his apartment was not excessive, the Judge noted
that property rights are not absolute because of the common law right of other tenants to quiet
enjoyment. The Judge noted that there is “a prevalent notion that stems from the ancient axiom
that a man’s home is his castle.” Id. at 449. However, the Judge indicated that, despite this
prevailing notion, it must be remembered that “Mr. Sokolow’s castle is directly above the castle
of Mr. Levin.” Id.
Louisiana Leasing illustrates that, in an orderly society, one cannot seek to exercise an
asserted right if it interferes with the manifest right of another. Thus, one cannot commit
slander, or hide behind an asserted First Amendment right after yelling “fire” in a crowded
theater.
Yet, Armstrong asserts that it would have an unfettered First Amendment right to bring a
civil suit against Shemwell even if the Commission ultimately determines Shemwell’s discharge
was motivated by discrimination. Thus, Armstrong argues its civil suit cannot be held to violate
section 105(c)(1) of the Mine Act. In this regard, Armstrong boldly proclaims that resolution
of this case in favor of its asserted First Amendment right is “simple,” stating:
Armstrong, like every other person in the United States, has a
sacred and fundamental First Amendment right to file a lawsuit
against persons they believe have wronged them. No statute and
no public interest, no matter how noble (such as the safety goals
of the Mine Act), can infringe upon that right. And regardless
of what this body thinks of the merits of Armstrong’s state court
lawsuit, one thing is always true: Armstrong has a constitutional

35 FMSHRC Page 1867

right to file it, and by definition it therefore cannot be a violation
of the Mine Act (or the Mine Act is unconstitutional). Like it
or not, it is that simple.
Armstr. Br. at 1.5
As an initial matter, this Commission has been delegated by Congress to adjudicate
cases brought under the Mine Act. 30 U.S.C. §§ 815(d), 823(a). The Commission is not
required to adopt Armstrong’s “like it or not” assertion of an absolute First Amendment right.
Rather, as discussed below, longstanding case law, as well as the Mine Act and its legislative
history, clearly reflect that Shemwell’s statutory right to bring his discrimination case preempts
Armstrong’s civil tort claim regardless of whether the Commission ultimately grants or denies
Shemwell’s complaint.
Even if Armstrong’s civil suit were not preempted because it is not in conflict with
section 105(c)(1) of the Act, the civil suit is not protected by the First Amendment because it is
both baseless and retaliatory.6 Thus, Armstrong’s assertion of a “sacred and fundamental”
constitutional right to file a state law suit, even if it conflicts with rights conferred by a federal
statute, must be rejected.

The common element in this matter is Armstrong’s attempt to elevate itself, on
constitutional grounds, above the body delegated with adjudicative authority. In this regard,
Armstrong asserts its unfettered right to petition cannot be infringed under any circumstances.
For example, at Oral Argument, Armstrong maintained that it would also have the right to file
a state tort suit against an employee filing a discrimination claim with the Equal Employment
Opportunity Commission under Title VII (Pub. L. 88-352, as amended), or against employees
filing applications for unemployment or workmen’s compensation with state agencies under
programs created by the Social Security Act (Pub. L. 271, 74th Cong. [H.R. 7260]; approved
Aug. 14, 1935, as amended), based solely on a claim that the filings were not made in good faith.
Oral Arg. Tr. 55-58.
5

The civil suit is baseless for several reasons, including the fact that it is contrary to
state law. Requisite elements of a cause of action for “Wrongful Use of Civil Proceedings” in a
Kentucky civil suit are absent. For example, a Kentucky cause of action for Wrongful Use of
Civil Proceedings requires a finding in the allegedly misused proceeding in favor of the Plaintiff
bringing the state tort action. D’Angelo v. Mussler, 290 S.W.3d, 75, 79 (Ky. App. 2009).
However, a Commission decision concerning whether Shemwell is the victim of discrimination
has yet to occur. In addition, Kentucky tort law requires that Shemwell’s complaint lack
probable cause. Id. This is contradicted by the Commission determination, for temporary
reinstatement purposes, that Shemwell’s complaint has not been frivolously brought.
34 FMSHRC at 1582-83.
6

35 FMSHRC Page 1868

II. Background
Reuben Shemwell was employed by Armstrong as a welder since April 19, 2010.
34 FMSHRC at 1467. In April 2011, Shemwell, after being overcome by fumes while welding,
complained to David Lander, Armstrong’s dragline manager, about the need for greater
respirator protection. Id. at 1467-68. In response to Shemwell’s complaint, Armstrong
purchased new respirators. Id. at 1468. Within several weeks of Shemwell’s protected safety
complaint, Lander executed two verbal warnings in June 2011, admonishing Shemwell for
excessive cell phone use. Id. The verbal warnings were followed by a July 22, 2011, written
warning, advising Shemwell that he would be terminated by December 2011 if his cell phone use
continued. Id. Lander subsequently recommended Shemwell’s reassignment to Armstrong’s
fabrication shop where Oscar Ramsey, the manager of the shop, could observe Shemwell
under closer supervision. Id. at 1469. Upon consultation with Human Resources Director
Gary Phillips, Ramsey recommended Shemwell’s September 14, 2011, discharge after reportedly
observing Shemwell using his cell phone several times a day.7 Id.
Following his termination, Shemwell met with Ronnie Drake, Director of the Kentucky
Office of Mine Safety and Licensing. Temp. Reinst. Tr. 152-53. Upon learning of the
circumstances surrounding Shemwell’s dismissal, Drake advised Shemwell to contact MSHA.
Temp. Reinst. Tr. 152-53. Shortly thereafter, Shemwell telephoned Kirby Smith, an MSHA
Special Investigator in District 10, located in Madisonville, Kentucky, who advised Shemwell
to come to his office to file a complaint with the clerical processor. Temp. Reinst. Tr. 152-53.

Armstrong alleges Shemwell’s termination could not have been motivated by
discrimination because neither Ramsey nor Phillips had any knowledge of Shemwell’s respirator
complaint at the time of Shemwell’s discharge. Armstr. Br. at 20. As an initial matter, it is not
credible that Ramsey, the manager responsible for the welding of equipment, was unaware
of the circumstances surrounding Armstrong’s purchase of new respirators. In any event, the
Commission has stated that “[a]n operator may not escape responsibility by pleading ignorance
due to the division of company personnel functions.” William Metz v. Carmeuse Lime, Inc.,
34 FMSHRC 1820, 1826 (Aug. 2012) (citing Metric Constructors, Inc., 6 FMSHRC 226, 230
n.4 (Feb. 1984)). The Commission has similarly held that the small size of an operation supports
an inference that an operator was aware of a miner’s protected activity. Morgan v. Arch of Ill.,
21 FMSHRC 1381, 1391 (Dec. 1999). Lander was in direct communication with Ramsey.
It is undisputed that Lander, the recipient of Shemwell’s respirator complaint, initiated the
disciplinary action that Ramsey ultimately relied upon to terminate Shemwell.
7

35 FMSHRC Page 1869

Shemwell filed his complaint at the District 10 office on January 23, 2012.8 Temp.
Reinst. Tr. 152-53. At that time, April Marks, the complaint processor, transcribed on
Shemwell’s complaint the reason given to him by Armstrong for his discharge. Temp. Reinst.
Tr. 156-57, 125-27. Namely, the complaint indicated that Shemwell was terminated for
excessive cell phone use. Armstr. Br. Ex. 2. Smith interviewed Shemwell on January 26, 2012,
at which time he determined Shemwell had a colorable claim of discrimination because he
“had engaged in protected activity by reporting the harmful fumes and vapors emitted during
the welding process.” Temp. Reinst. Tr. 154-55. Smith testified that it was not uncommon for
miners to lack awareness of the significance of their protected activity with respect to their rights
under section 105(c). Temp. Reinst. Tr. at 157.
The Secretary subsequently filed an application for Temporary Reinstatement which
was granted following an evidentiary hearing. Shemwell’s temporary reinstatement ultimately
was affirmed by the Commission in a decision that determined Shemwell’s discrimination
complaint was not frivolously brought. 34 FMSHRC at 1582-83. The Commission’s
Temporary Reinstatement decision was not appealed. Consequently, the Commission’s not
frivolously brought determination has become final. On July 27, 2012, the Secretary advised
Shemwell that she had declined to bring a section 105(c)(2) discrimination complaint on his
behalf. Armstr. Br. Ex. 3. Consequently, the temporary reinstatement was dissolved on
September 13, 2012.9 34 FMSHRC 2549 (Sept. 12, 2012) (ALJ).
Following the Secretary’s decision not to pursue Shemwell’s complaint, Armstrong
filed the subject state civil tort action on August 22, 2012, seeking compensatory and punitive
damages. Cir. Ct. Comp. at 9. The civil action is premised on a state tort cause of action for
“Wrongful Use of Civil Proceedings.” Id. at 7. Armstrong’s tort action is based on its assertion
that, regardless of the merits of his complaint, Shemwell did not believe he was discriminated

Section 105(c)(2) of the Act requires that discrimination complaints be filed within
60 days of the alleged adverse action. 30 U.S.C. § 815(c)(2). In the temporary reinstatement
proceeding, Armstrong filed a Motion to Dismiss on grounds that Shemwell’s complaint was
untimely. Armstrong’s motion was denied as there was no showing that it was prejudiced
by the late filing of Shemwell’s complaint. 34 FMSHRC 894, 899-900 (Apr. 2012) (ALJ).
On appeal, the Commission stated that the timeliness of Shemwell’s complaint should be
resolved in the proceeding on the merits. 34 FMSHRC at 1582.
8

The recision of Shemwell’s reinstatement was based on a Court of Appeals decision
concerning the interpretation of section 105(c) that reinstatement terminates if the Secretary
declines to bring a discrimination complaint on behalf of the miner. North Fork Coal Corp. v.
FMSHRC, 691 F.3d 735, 738 (6th Cir.) (Aug. 14, 2012). The recision was not based on the
merits of Shemwell’s complaint. The Commission’s decision that Shemwell’s complaint was
not frivolous remains the law of the case. Thus, as noted by the Secretary, recision of the
temporary reinstatement does not transform Armstrong into the prevailing party in the temporary
reinstatement proceeding. Sec’y Resp. Br. at 9.
9

35 FMSHRC Page 1870

against when he filed his complaint on July 23, 2012. Id. at 5; Oral Arg. Tr. 32, 140. Therefore,
Armstrong argues Shemwell intentionally initiated a false discrimination action for the sole
purpose of imposing litigation costs on Armstrong, despite a final Commission reinstatement
determination that Shemwell’s complaint appears to have merit. Cir. Ct. Comp. at 5-6.
The Secretary filed this section 105(c)(2) discrimination proceeding on January 8, 2013.
Oral Argument was conducted at the Commission’s Headquarters in Washington, D.C. on
February 27, 2013, at which time Armstrong maintained that “the First Amendment right
to file . . . a petition in court trumps all other interests, statutes or rights.” Oral Arg. Tr. 59.
Specifically, Armstrong alleged that its Kentucky lawsuit cannot be a violation of section
105(c)(1) because it is immunized by its First Amendment right to file a petition, even if doing
so interferes with Shemwell’s statutory rights, even if Shemwell’s complaint is ultimately found
to be meritorious, and even if the state suit creates a chilling effect. Oral Arg. Tr. 32-34; 124;
133.
The essence of Armstrong’s assertion is that it is Shemwell’s right to file a complaint under the
Mine Act that is preempted, rather than Armstrong’s right to bring a state civil suit.
The Secretary argues that the state civil action is not protected by the First Amendment
because it is preempted by the purpose of the Mine Act. Oral Arg. Tr. 105. Furthermore, even
if it were not in conflict with the Mine Act, the Secretary argues the civil suit is not worthy of
First Amendment protection because it is baseless and retaliatory. Oral Arg. Tr. at 175-77.
The parties’ Post Oral-Argument Briefs filed on May 10, 2013, and their response briefs filed
on May 25, 2013, have been considered in the disposition of this matter.
III. Legal Framework for Discrimination
The anti-discrimination provisions of section 105(c) protect miners who exercise rights
granted to them under the Mine Act. To establish a case of discrimination, Shemwell must
demonstrate that the Kentucky civil suit is a prohibited adverse action in response to the exercise
of his protected right to file a discrimination complaint. A miner alleging discrimination under
the Act establishes a prima facie case of prohibited discrimination by proving that he engaged in
protected activity, and that the adverse action complained of was motivated in any part by that
activity. Sec’y of Labor on behalf of Pasula, 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other
grounds, 663 F.2d 1211 (3rd Cir. 1981); Robinette v. United Castle Coal Co., 3 FMSHRC 803,
817 (Apr. 1981). The operator may rebut the prima facie case by showing that no protected
activity occurred, or that the adverse action was in no part motivated by protected activity.
Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut the prima facie case in this
manner, it nevertheless may defend affirmatively by proving that it would have taken the adverse
action for the miner’s unprotected activities alone. Id. at 817, citing Pasula, 2 FMSHRC at
2799.

35 FMSHRC Page 1871

The Commission has long recognized the important role of the section 105(c):
That Congress gave miners many valuable rights under the 1977
Mine Act clearly demonstrates the congressional view that their
participation in the enforcement of the Act is essential to the
achievement of safe and healthful mines. This is particularly true
of the right to complain to the operator and to the Secretary of
alleged dangers or violations. MSHA inspectors cannot be
everywhere at once, nor can they be expected to be so familiar
with every mine that they will become aware of every condition or
practice in need of correction. The successful enforcement of the
1977 Mine Act is therefore particularly dependent upon the
voluntary efforts of miners to notify either MSHA officials or the
operator of conditions or practices that require correction.
Pasula, 2 FMSHRC at 2790.
The fundamental purpose of the Mine Act is clear. The statute declares, “the first priority
and concern of all in the coal or other mining industry must be the health and safety of its most
precious resource - the miner.” 30 U.S.C. § 801(a). With this in mind, the statute further states,
“the operators of such mines with the assistance of the miners have the primary responsibility
to prevent the existence of [unsafe] conditions and practices in such mines.” 30 U.S.C. § 801(e).
In this regard, the Legislative History emphasizes the raison d’être of the 1977 Act:
If our national mine safety and health program is to be truly
effective, miners will have to play an active part in the
enforcement of the Act. The Committee is cognizant 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. 95-181, at 35-36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623-24 (1978).
Thus, to achieve this statutory goal, it is crucial that miners be sufficiently protected from
retaliatory conduct to allow them to feel comfortable actively engaging in efforts to promote
mine safety.
In the final analysis, the issue to be resolved in a discrimination proceeding is whether
there was a discriminatory motive for the adverse action as claimed by the miner. Although
a mine operator’s admission of discriminatory motive is rare, the grant of a discrimination
complaint cannot be based solely on conjecture that adverse action was motivated by protected
activity. In such circumstances, discrimination can be proven by circumstantial evidence such

35 FMSHRC Page 1872

as knowledge of protected activities, hostility towards protected activity, coincidence in time
between the protected activity and the adverse action, and disparate treatment. Sec’y of Labor
on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981).
IV. Discussion and Evaluation
a. Statutory Violation
As a threshold matter, Armstrong asserts that Shemwell is not entitled to protection under
section 105(c)(1) because he was no longer an employee of Armstrong when the state civil suit
was filed, and therefore is not a miner for the purposes of the Act. Armstr. Br. at 13; Armstr.
Resp. Br. at 5. Armstrong’s assertion is without merit. Armstrong’s state suit was filed on
August 22, 2012, while Shemwell was temporarily reinstated to his employment with
Armstrong, as the temporary reinstatement was not dissolved until September 13, 2012.10
Furthermore, even if Shemwell had not been temporarily reinstated, an individual retains his
status as a miner under the Act where the asserted protected activity occurs during the miner’s
employment, or where the protected activity is the filing of a discrimination complaint after the
miner has been discharged.11
Having concluded that Shemwell has retained his status as a miner at all times relevant
to this proceeding, the focus shifts to whether Armstrong’s state suit constitutes a violation
of section 105(c)(1). The operative language in section 105(c)(1) is that mine operators are
prohibited from interfering with a miner’s right to institute a discrimination proceeding under the

Armstrong asserts that Shemwell’s temporary reinstatement dissolved on July 27,
2012, when the Secretary declined to pursue Shemwell’s complaint. Armstr. Resp. Br. at 14.
However, it is the Commission, not the Secretary, who has the authority to rescind an order
granting temporary reinstatement. The Commission’s rescission was effective as of
September 13, 2012.
10

Armstrong, primarily relying on the statement in Shemwell’s January 23, 2012,
complaint that he was terminated for excessive cell phone use, contends that the filing
of the complaint did not constitute protected activity because it was filed in bad faith.
Armstr. Br. at 11. To accept this proposition, one must conclude that state mining official
Ronnie Drake and MSHA Special Investigator Kirby Smith, who encouraged Shemwell to
pursue his complaint, are co-conspirators. Obviously, the assertion that there is a bad faith
impediment to the protected nature of Shemwell’s complaint, based on speculation that
Shemwell believed he could not prevail, is without merit. It is ironic that Armstrong asserts that
its own purported good faith motivation for filing its civil suit cannot be questioned, because
“evidence of Armstrong’s intent can only come from Armstrong itself.” Armstr. Br. at 14.
11

35 FMSHRC Page 1873

Mine Act. The term “interfere” means “to be or create a hindrance or obstacle.” The American
Heritage Dictionary 913 (4th Ed., 2009). It is uncontested that Armstrong’s initiation of its state
suit was motivated by Shemwell’s exercise of his statutory right to initiate a discrimination
proceeding.
With respect to whether the Kentucky civil suit seeking to recover compensatory and
punitive damages from Shemwell serves as an impediment to Shemwell’s statutory right to seek
redress as an alleged victim of discrimination, one need only look to the Supreme Court, which
stated:
A lawsuit no doubt may be used by an employer as a powerful
instrument of coercion or retaliation. As the [National Labor
Relations] Board has observed, by suing an employee who files
charges with the Board or engages in other protected activities,
an employer can place its employees on notice that anyone who
engages in such conduct is subjecting himself to the possibility
of a burdensome lawsuit. Regardless of how unmeritorious the
employer’s suit is, the employee will most likely have to retain
counsel and incur substantial legal expenses to defend against it
[citation omitted]. Furthermore, as the Court of Appeals in the
present case noted, the chilling effect of a state lawsuit upon an
employee’s willingness to engage in protected activity is
multiplied where the complaint seeks damages in addition to
injunctive relief [citation omitted]. Where, as here, such a suit is
filed against hourly-wage [employees] or other individuals who
lack the backing of a union, the need to allow the Board to
intervene and provide a remedy is at its greatest.

35 FMSHRC Page 1874

Bill Johnson’s Restaurants, Inc v. NLRB, 461 U.S. 731, 740-41 (1983).12 Thus, it is abundantly
clear that Armstrong’s state suit is an adverse action that violates section 105(c)(1) of the Act
because it interferes with Shemwell’s statutory right to file a discrimination complaint.13
It is important to emphasize that Armstrong’s civil suit is a violation of section 105(c)(1)
regardless of the ultimate outcome of Shemwell’s pending private discrimination complaint.
Miners must be free to file safety related complaints regardless of whether they are ultimately
determined to be meritorious. The denial of a complaint of discrimination by the Commission is
based on a finding that the complainant failed to demonstrate, by a preponderance of the
evidence, that he was discriminated against. See Pasula, 2 FMSHRC at 2799. It is not a finding
that discrimination did not occur.
b. First Amendment Right to Petition
The question in this case is whether the First Amendment right to petition immunizes
Armstrong from Mine Act liability for bringing a Kentucky civil suit which is facially
discriminatory and prohibited by section 105(c)(1) of the Act. The First Amendment right to
petition state courts is a fundamental element of the Bill of Rights. As a general proposition, state
suits brought by employers against employees are protected by the right to petition unless they are
preempted. See, e.g., Bill Johnson’s, 461 U.S. at n.5 (noting that federally preempted lawsuits by
employers may be enjoined); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,
514 (1972) (“First Amendment rights are not immunized from regulation when they are used as
an integral part of conduct which violates a valid [federal] statute”). Preemption is particularly
relevant where, as in this case, enforcing one party’s right to petition a state court would interfere
with another party’s right to petition a federal agency. 404 U.S. at 512 (noting that civil suits
brought “to discourage and ultimately to prevent the respondents from invoking

Bill Johnson’s involves the following facts: a waitress filed a complaint with the
NLRB alleging that she had been terminated in retaliation for engaging in pro-union picketing;
her employer then filed a state suit alleging that the picketers had harassed customers, created a
threat to public safety, and libeled the employer; the waitress then filed a second complaint with
the Board alleging that the state civil suit had been filed in retaliation for protected activities.
461 U.S. at 733-35. In Bill Johnson’s, the Court determined that the employer’s civil suit was
not preempted because retaliatory motive alone does not constitute a violation of the relevant
provisions of the National Labor Relations Act, nor did the suit otherwise conflict with federal
law. Id at 742-43 & n. 5. Although the restaurant’s actions may have been retaliatory, the court
determined, despite the burden placed on the defendant, an unpreempted state suit is entitled to
First Amendment protection “unless . . . the suit has no reasonable basis.” Id. at 755-56.
12

Once it has been established that a protected activity and an adverse action occurred,
an operator may present an affirmative defense by demonstrating that it would have taken
the adverse action regardless of the miner’s protected activities. Robinette, 3 FMSHRC at 817.
However, this defense is not available here, as the civil suit and Shemwell’s discrimination
complaint are inextricably linked. See Cir. Ct. Comp., at 7.
13

35 FMSHRC Page 1875

the processes of the administrative agencies and courts” fall within an exception to the immunity
provided by the First Amendment).
As discussed below, with regard to state suits brought by employers that are not
preempted because they do not conflict with federal law, it is noteworthy that the Commission has
looked for guidance to case law interpreting the National Labor Relations Act (“NLRA”). See,
e.g., Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 616 (Apr. 1993) (recognizing that
the Commission looks to case law interpreting relevant remedial provisions of the NLRA for
guidance with respect to accomplishing the Mine Act’s remedial goals). Consistent with NLRA
case law, the right to petition does not immunize suits which are both objectively baseless and
subjectively motivated by an unlawful purpose. BE & K Constr. Co. v. NLRB, 536 U.S. 516, 53132 (2002).
c. Preemption as a Bar to First Amendment Protection
The doctrine of preemption is derived from the Supremacy Clause of the Constitution,
which provides that “[the] Constitution, and the Laws of the United States . . . shall be the
supreme Law of the Land . . . any thing in the Constitution or Laws of any state to the contrary
notwithstanding.” U.S. Const. art. VI, § 2. The supremacy of the “laws of the United States”
applies to any federal law, including a regulation of a federal agency. Thus, the Federal
Supremacy Clause trumps conflicting state law, including conflicting suits brought under state
tort law. Preemption can either be express or implied.
With respect to express preemption, the Supreme Court has noted that Congress can
insulate its statutory goals from state laws that undermine its legislative purpose by enacting
statutes that explicitly preempt state law. English v. General Electric Co., 496 U.S. 72, 78
(1990). With this in mind, Congress’ enactment of section 506(a) of the Mine Act explicitly
states:
No state law . . . shall be superseded by any provision of this
chapter or order issued or any mandatory health or safety standard,
except insofar as such State law is in conflict with this chapter or
with any order issued or any mandatory health or safety standard.
30 U.S.C. § 955(a) (emphasis added). Thus, the Mine Act recognizes, in essence, the sanctity of
the First Amendment with respect to civil suits brought under state law, unless such suits interfere
with the rights of miners granted under the statute. Armstrong’s reliance on the
First
Amendment as an absolute right that shields it from liability for violations of the Mine Act is
misplaced, as it is inconsistent with the preemption provision of the statute.
Even if section 506(a) of the Mine Act was narrowly construed, such that Armstrong’s tort
action was not expressly preempted, the tort action would still be precluded by implied
preemption, also known as conflict preemption, if furtherance of the tort proceeding frustrates a

35 FMSHRC Page 1876

federal purpose.14 In this regard, longstanding case law notes that even if the state action were not
explicitly preempted by statute, a state law is also preempted where it actually conflicts with or
“stands as an obstacle to the accomplishment and execution of the full purposes and objectives
of Congress.” English, 496 U.S. at 79 (citing Hines v. Davidowitz, 312 US 52, 67 (1941)).15
As previously noted, the clear statutory language and legislative history reflect that the Mine Act
is predicated on encouraging the cooperation and participation of both mine operators and miners
in achieving a safe mining environment. The explicit statutory language and legislative history
noted above need not be repeated. See Section III, supra.
In short, it is paramount that miners must be insulated from any chilling effect that would
inhibit their willingness to report safety related concerns to mine management. Determining
whether there is objective evidence of a chilling effect depends on whether the adverse action
“reasonably tended to discourage miners from engaging in protected activities.” Sec’y of Labor
on behalf of Poddey v. Tanglewood Energy, Inc., 18 FMSHRC 1315, 1321 (Aug. 1996) (citing
Sec’y of Labor on behalf of Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 552, 558
(Apr. 1996)). Can anyone deny that the prospect of a miner being sued in state court for filing a
protected complaint that is pending before the Commission is a significant disincentive for miner
participation? In this regard, since Armstrong contends it has a right to petition in state court
even if the miner’s discrimination complaint is granted, Shemwell’s counsel correctly asserts:
every miner would know that even if he files and wins a
discrimination complaint . . . he could still be dragged into a state
court by his employer and interrogated about his motivation for
having filed the complaint. It would be the rare miner who would
Armstrong’s tort action clearly frustrates the Act’s statutory goal of encouraging
miner participation in matters of safety. However, tort actions related to a federal statute are not
preempted when they do not conflict with the purposes of the statute. For example, by way of
contrast, in Wyeth v. Levine, 555 U.S. 555 (2009), the plaintiff brought a failure-to-warn civil
suit against a drug company under state tort law after she suffered irreversible gangrene
requiring the amputation of an arm after being injected with the drug Phenergan. The drug
company sought to preempt the state tort action, claiming it was immunized from such lawsuits
because the drug warning label was approved by the Food and Drug Administration. The Court
held that, while “some state-law claims might well frustrate the achievement of congressional
objectives, this is not such a case.” Id. at 581.
14

The Supreme Court has also recognized federal preemption where state law “regulates
conduct in a field that Congress intended the Federal Government to occupy exclusively.”
496 U.S. at 78-79. The Secretary asserts that field preemption applies, because the Act
comprehensively regulates the filing of discrimination complaints by miners. Sec’y Br. at 14.
However, section 506(a) does permit some state regulation of mining, and it is noteworthy that
Kentucky has its own state agency governing mining. Whether Armstrong’s Kentucky civil suit
is preempted under the doctrine of field preemption need not be addressed, in view of the fact
that the civil suit is clearly preempted under the express and implied preemption doctrines.
15

35 FMSHRC Page 1877

file a discrimination complaint over health or safety issues under
such circumstances.
Shemwell Br. at 8 (emphasis in the original). It is evident that the chilling effect of Armstrong’s
civil suit clearly frustrates the fundamental statutory goal of encouraging miner involvement in
safety related matters.
With regard to the potential chilling effect, Armstrong argues that its civil suit would only
discourage false and maliciously filed claims, and that section 105(c) does not protect claims
made in bad faith. Armstr. Br. at 29; Armstr. Resp. Br. at 5-6. However, the D.C. Circuit Court
has held that a miner who complained to MSHA’s predecessor safety agency was protected
against retaliatory action even if the complaint was made in bad faith. Munsey v. FMSHRC, 595
F.2d 735, 742, 745 (D.C. Cir. 1978); Sec’y Resp. at 2. In any event, the treatment of a fraudulent
discrimination claim goes beyond the scope of this proceeding. The Commission has already
determined that Shemwell’s complaint is not frivolous, and, the full merits of Shemwell’s
complaint have yet to be adjudicated. Thus, the record is devoid of any evidence that
Shemwell’s claim has been fraudulently brought.
It should be noted that Armstrong makes several assertions in an attempt to avoid
preemption which should not be ignored. As an initial matter, Armstrong argues that the
Kentucky court is the only forum that could provide compensatory and punitive relief for
Shemwell’s alleged tort of “Wrongful Use of Civil Proceedings,” as Congress did not delegate to
the Commission the authority to award such relief.16 Armstr. Br. at 9. Armstrong misses the
point. The exposure to compensatory and/or punitive damages would discourage miners from
exercising their statutory rights. Thus, to allow a state court to grant monetary damages against a
miner for filing a safety related complaint, a remedy that was not authorized by Congress in the
Mine Act, would undermine the goal the Act seeks to accomplish - miner participation in safety
matters. See, e.g., San Diego Bldg. Trades Council v Garmon, 359 U.S. 236, 246-47 (1959)
(noting that “to allow the State to grant a remedy here which has been withheld from the NLRB
only accentuates the danger of conflict”).17 Moreover, the prospect of a multi-million dollar
corporation instituting a civil suit that seeks to collect monetary damages from a rank-and-file

It is noteworthy that the NLRB has rejected a similar argument that the respondent had
no forum for damages arising from false claims, stating that employers can bring evidence of the
invalidity of employee’s claims to the Board’s attention, in which case the Board would
withhold reinstatement and/or backpay. Federal Security, Inc., 359 NLRB No. 1, 15-16 (2012).
16

Similarly, the Secretary asserts that “the fact that Congress chose not to . . . provide an
avenue by which mine operators could recover damages against miners who file complaints in
bad faith, reflects Congress’ considered judgment about how risks of loss should be distributed
between miners and mine operators.” Sec’y Resp. Br. at 3.
17

35 FMSHRC Page 1878

miner for bringing a discrimination case before the Commission is unsettling.18 Rather,
Armstrong’s focus should be demonstrating in a relevant Commission proceeding that its
discharge of Shemwell was not motivated by discrimination.
In addition, Armstrong asserts its First Amendment right to petition cannot be curtailed,
arguing:
There is simply no basis in the language of the First Amendment for
a finding that Congress may perform an end run around the
protections of the Right to Petition by drafting legislation allegedly
preempting that right. Put differently, you can’t preempt the First
Amendment.
Armstr. Br. at 6 (emphasis in the original).
Armstrong’s focus is misplaced. The doctrine of preemption does not apply to
constitutional rights. Rather, preemption applies, in appropriate circumstances, to state law,
including tort actions. Thus, the issue to be resolved is whether the Kentucky suit is preempted
because it is prohibited by the plain language of section 105(c)(1) of the Mine Act. As discussed
above, a long line of case law reflects that preemption is a well-settled doctrine that is applied to
preclude state actions when such actions violate or conflict with federal law. Armstrong’s suit
brought under Kentucky tort law conflicts with the Mine Act. Acceptance of Armstrong’s
proposition that the right to petition is absolute and immunizes its violation of the Act would, in
effect, preempt the doctrine of preemption. In other words, Armstrong’s assertion of its
entitlement to an absolute First Amendment right ignores the fundamental belief of the framers of
the Constitution in the supremacy of federal law expressed in Article VI. Armstrong’s reliance on
a First Amendment right must be rejected.
d. Baseless and Retaliatory
The facts in this case require preemption of the state civil suit because it is a direct attack
on activity protected under section 105(c)(1) of the Act. However, there may be instances where
employers have a subjectively genuine desire to test the legality of conduct that is related to
protected activity. Under such circumstances, civil suits that constitute genuine petitioning
are entitled to First Amendment protection. As a general matter, such civil suits are considered to
be genuine if the employer’s belief is both “subjectively genuine and objectively reasonable.” BE
& K, 536 U.S. at 533-34.
Thus, civil suits that do not conflict with federal law, although they are related to subject
matter regulated by federal statute, are protected by the First Amendment provided that the civil
As reflected on its internet home page, Armstrong Energy, “through its 100% owned
subsidiary Armstrong Coal, is a leading producer of steam coal in the Illinois Basin. Armstrong
controls over 300 million tons of proven and provable coal reserves and operates seven mines in
Western Kentucky.” Armstrong Home Page, www.armstrongcoal.com.
18

35 FMSHRC Page 1879

action is not both baseless and retaliatory. For example, assume a mine operator is aware that a
miner has filed a safety related complaint with MSHA. The mine operator has filed a suit for
defamation against that miner, based on the miner’s widespread dissemination of his claim that
the mine operator’s extracted material is adulterated and unfit for use. The miner claims the
defamation suit is motivated, at least in part, by his safety related protected activity. The
defamation suit is entitled to First Amendment protection if the suit is not baseless, even if it is
retaliatory.19 See, e.g., BE & K, 536 U.S. 516 (holding that a civil suit brought by a construction
contractor alleging that unions had intentionally delayed a project was not within the scope of the
relevant provisions of the NLRA, and was protected by the First Amendment provided it was not
both objectively baseless and subjectively motivated by an unlawful purpose.)
i. Baselessness
The Supreme Court has held that a lawsuit is objectively baseless if “no reasonable
litigant could realistically expect success on the merits.” Prof’l Real Estate Investors, Inc. v.
Columbia Pictures Indus., Inc., 508 US 49, 60 (1993). There are several reasons why Armstrong
cannot realistically expect to succeed in Kentucky. The Commission has determined that
Shemwell’s complaint has not been frivolously brought. A not frivolously brought finding is
the equivalent of a determination that Shemwell’s discrimination complaint “appears to have
merit” or that there is a “reasonable cause to believe” Shemwell is the victim of discrimination.
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). Armstrong does not dispute the finality of the
Commission’s determination. Oral Arg. Tr. 158-59. It is manifestly unreasonable for Armstrong
to believe that it has a realistic chance to prevail in Kentucky, based on an alleged misuse by
Shemwell of a Commission proceeding, when the Commission has finally determined that
Shemwell’s discrimination complaint appears to have merit. Shemwell having satisfied a
“probable cause to believe” burden of proof before the Commission strips Armstrong of any
realistic expectation that it could succeed on the merits in Kentucky.20
The Commission looks to indirect evidence of discrimination, as mine operators rarely if
ever admit to a discriminatory motive. Chacon, 3 FMSHRC at 2510. In this regard, irrespective
of the Commission’s final “not frivolous” determination, there is undisputed indirect evidence
of discrimination sufficient to demonstrate that Shemwell’s claim appears to have merit.
Shemwell’s complaints about fumes were directly communicated in April 2011 to Lander,
The First Amendment protection afforded civil suits, provided they are not baseless,
even if they are retaliatory, is the functional equivalent of the affirmative defense enunciated in
Robinette, 3 FMSHRC at 817, that miners can defend against discrimination by demonstrating
that they would have taken the adverse action regardless of the protected activity. See n. 13,
supra.
19

It is worth noting, as a general matter, the Supreme Court has held that probable cause
is an absolute defense to the common law tort claim of Wrongful Proceedings. Prof’l Real
Estate Investors, 508 U.S. at 63.
20

35 FMSHRC Page 1880

who in June 2011 began a series of verbal and written disciplinary actions reportedly based
on Shemwell’s excessive cell phone use that ultimately culminated in his September 2011
discharge. Thus the facts establish knowledge of the protected activity,21 and coincidence in time
between the protected activity and the adverse action - two of the elements of indirect evidence of
discrimination in Chacon. Consequently, there is strong circumstantial evidence of
discrimination that renders Armstrong’s civil action baseless.
Regardless of the Commission’s “not frivolously brought” determination and the indirect
evidence reflecting the possibility of a discriminatory motive, Armstrong’s civil suit is baseless
because it fails to meet two essential elements of state tort law. First, the Kentucky tort of
“Wrongful Use of Civil Proceedings” requires that the allegedly misused civil proceeding
terminate in favor of the party filing the state tort action. D’Angelo v. Mussler, 290 S.W.3d, 75,
79 (Ky. App. 2009). It is undisputed that there has been no final Commission determination
on the merits concerning whether Shemwell’s discharge was motivated by discrimination.
Oral Arg. Tr. 39. Thus, applying Kentucky law, Armstrong’s civil suit is facially baseless,
as it is premature because the Commission has yet to rule on Shemwell’s complaint.22
In addition, the civil suit is baseless because Kentucky law requires Armstrong to
demonstrate that Shemwell’s complaint lacked probable cause when it was filed before
the Commission. D’Angelo, 290 S.W.3d at 79. As previously noted, a Commission “not
frivolously brought” finding is substantively analogous to a proceeding that “appears to
have merit” or a proceeding where there is “reasonable cause to believe” the claim alleged.
Jim Walter, 9 FMSHRC at 1306. Armstrong’s reliance on its self-serving assertion that
Shemwell did not have reasonable cause to believe he was discriminated against, despite indirect
evidence of a possible discriminatory motive, cannot be reconciled with Commission case law.23
Armstrong’s allegation that those involved in Shemwell’s termination had no
knowledge of his protected activity is lacking in merit. See n. 7, supra.
21

Armstrong asserts that the underlying proceeding terminated in Armstrong’s favor
when the Secretary issued a letter declining to pursue Shemwell’s discrimination complaint.
Armstr. Resp. Br. at 14. Neither the Secretary’s decision not to pursue a discrimination
proceeding on behalf of a miner, nor the dissolution of a temporary reinstatement order,
terminates a discrimination proceeding before the Commission. In this regard, the court has
noted that “the merits of the miner’s discrimination complaint [can only be] resolved by an
administrative law judge (“ALJ”), with further discretionary review provided by the
Commission.” North Fork v. Gray, 691 F.3d 735, 738 (6th Cir. 2012). Consequently,
the subject discrimination proceeding is not terminated until there is a final determination
on the merits of Shemwell’s complaint.
22

Armstrong contends that the Commission’s reinstatement decision merely deals with
the appearance of Shemwell’s claim, regardless of its truth, and is therefore not a finding with
respect to probable cause to believe. Armstr. Br. at 22; Armstr. Resp. Br. at 15. Armstrong’s
(continued...)
23

35 FMSHRC Page 1881

In an attempt to demonstrate that its civil suit is meritorious, Armstrong relies on
Shemwell’s statement in his initial discrimination complaint that “I was discharged from my job
for using my cell phone at work.” Armstr. Br. Ex. 2. However, as mine operators rarely admit a
discriminatory motive, it is essential that determining whether a miner has a colorable claim of
discrimination must await the MSHA investigator’s analysis of the circumstances surrounding the
miner’s discharge. To exclude MSHA participation in evaluating a complaint would reward mine
operators who mislead miners by concealing their discriminatory intent. Thus, the operative date
for determining the validity of Shemwell’s complaint is January 26, 2012, when
he met with Kirby Smith, rather than January 23, 2012, when the clerical assistant completed
Shemwell’s complaint application. In this regard, the Commission has stated, “it is the scope of
the Secretary’s investigation, rather than the initiating complaint, that governs the permissible
ambit of the complaint filed with the Commission.” Sec’y on behalf of Dixon v. Pontiki Coal
Corp., 19 FMSHRC 1009, 1017 (June 1997). Thus, when viewed in the context of MSHA’s
discrimination filing procedures, there is an inadequate basis for Armstrong’s claim that
Shemwell’s complaint lacked probable cause, a required element for the Kentucky civil action.
Finally, to accept Armstrong’s proposition that a litigant can sue an opponent solely on the
assertion that a claim was insincerely brought would result in an endless series of frivolous
lawsuits. It is ironic, if not hypocritical, that Armstrong maintains that its good faith motivation
for filing its civil suit cannot be questioned, because “evidence of Armstrong’s intent can only
come from Armstrong itself.” Armstr. Br. at 14. The gravamen of Armstrong’s statement is that
evidence of Shemwell’s intent can only come from Shemwell himself. Thus, Armstrong’s attack
on Shemwell’s motivation is based on mere speculation, with no meaningful indirect evidence of
bad faith or fraudulent intent. In the final analysis, Armstrong’s claim of “Wrongful Use of Civil
Proceedings”: lacks a predicate final Commission decision on the merits; is inconsistent with
significant indirect evidence supporting a colorable claim of discrimination; and is inconsistent
with Kentucky case law. As such, the civil suit is baseless, in that it is not objectively reasonable.
ii. Retaliation
Objectively baseless suits that are not subjectively genuine because they are motivated by
an unlawful purpose are exempted from First Amendment protection. BE & K, 536 U.S. at 531.
Such suits are deemed not to be genuine when they attempt to mask an unlawful retaliatory
motive by disingenuously claiming the motive is to challenge the conduct that is the subject of the
suit. Here, Armstrong is attempting to conceal its illegal interference with Shemwell’s 105(c)
rights by attacking in a state court action Shemwell’s motivation for filing a discrimination
complaint. However, Armstrong has failed to demonstrate any reasonable basis for asserting
Shemwell’s discrimination complaint constitutes an abuse of process. The Commission has
determined that Shemwell’s complaint is not frivolous. Moreover, Armstrong’s state suit

(...continued)
contention is a distinction without a difference.
23

35 FMSHRC Page 1882

lacks a prerequisite element in that there has been no final adjudication of the complaint.
Consequently, Armstrong’s assertion of its First Amendment right as a shield to its manifest
violation of section 105(c)(1), in the name of a “Wrongful Use of Civil Proceedings” action,
is pretextual in nature.
The fact that Armstrong’s civil suit is aimed at the act of filing the discrimination
complaint, rather than challenging the merits of the complaint, is further evidence of a retaliatory
motive. In fact, Armstrong has expressed a disinterest in the ultimate outcome of Shemwell’s
complaint, asserting it is justified in bringing the state action even if Shemwell ultimately prevails
in the Commission discrimination proceeding. Oral Arg. Tr. 17, 19, 50-51, 133.
Thus, the primary effect of the civil suit is to discourage future complaints, rather than to achieve
vindication through defending against Shemwell’s complaint. See, e.g., Prof’l Real Estate,
508 U.S. at 60-61 (finding that sham anti-trust litigation exists when the plaintiff has no
reasonable expectation of prevailing, and the true purpose of the suit is to interfere with the
business of a competitor).
Finally, Armstrong’s civil suit seeks to recover compensatory and punitive damages
from Shemwell. Suits to recover extreme damages have been deemed to be retaliatory in
factually similar NLRB cases. See, Petrochem Insulation, Inc. v. NLRB, 240 F.3d 26, 33
(Ct. App. D.C. Cir. 2001). In the final analysis, Armstrong’s civil suit is not subjectively
genuine because, regardless of its ostensible purpose of recovering damages, its real purpose is
to interfere with Shemwell’s statutory right. Bill Johnson’s, 461 U.S. at 740 (noting the potential
retaliatory nature of state suits brought by employers seeking to recover compensatory damages
against employees who bring charges under a federal statute).
V. Conclusion
In view of the above, Armstrong’s civil tort action, brought in the Commonwealth of
Kentucky’s Muhlenberg Circuit Court, violates section 105(c)(1) of the Mine Act because it
interferes with Shemwell’s statutory right to file a discrimination complaint. In this regard,
the civil suit is not protected by the First Amendment, as it is in violation of, and preempted by,
federal law. Even if Armstrong’s suit were not preempted, it is not protected by the First
Amendment because it is both objectively baseless and motivated by the unlawful purpose of
violating the anti-retaliation provisions of section 105(c)(1) with impunity.
VI. Interim Remedy - Cease and Desist Order
The Commission has been delegated broad remedial power to remove the burdens
suffered by the victims of discrimination. The Commission, in Sec’y of Labor on behalf of James
Rieke v. Azko Nobel Salt, Inc., 19 FMSHRC 1254 (July 1997), citing the provisions of section
105(c)(2), the relevant legislative history, and its longstanding case law, recognized its broad
authority to grant appropriate relief given the myriad of circumstances that confront miners who
have experienced discrimination. It stated:

35 FMSHRC Page 1883

“The Commission shall have authority . . . to require a person
committing a violation of this subsection to take such affirmative
action to abate the violation as the Commission deems appropriate,
including, but not limited to, the rehiring or reinstatement of the
miner to his former position with back pay and interest.” 30 U.S.C.
§ 815(c)(2). As the Commission stated in Secretary of Labor on
behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 142
(February 1982), this is a “broad remedial charge” and that “so long
as our remedial orders effectuate the purposes of the Mine Act, our
judges and we possess considerable discretion in fashioning
remedies appropriate to varied and diverse circumstances.” Thus,
the Commission reviews the judge's remedial order for abuse of
discretion and to ensure that it effectuates the purposes of the Mine
Act.
The Mine Act's legislative history similarly indicates Congressional
intent for expansive remedial relief to victims
of discrimination:
It is the Committee's intention to protect miners
against not only the common forms of
discrimination, such as discharge, suspension,
demotion, reduction in benefits, vacation, bonuses
and rates of pay, or changes in pay and hours of
work but also against the more subtle forms of
interference . . . .
...
It is the Committee's intention that the Secretary
propose, and that the Commission require, all relief
that is necessary to make the complaining party
whole and to remove the deleterious effects of the
discriminatory conduct . . . .
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 accordance with these principles, the Commission endeavors to
make miners whole and to return them to their status before the
illegal discrimination occurred. Secretary of Labor on behalf of
Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2056
(December 1983) . . . . “‘Unless compelling reasons point to the

35 FMSHRC Page 1884

contrary, the full remedial measure of relief should be granted
to
[an improperly] discharged employee.’” Arkansas-Carbona,
5
FMSHRC at 2049 (quoting Secretary of Labor on behalf of Gooslin
v. Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982)).
Azko Nobel Salt, Inc., 19 FMSHRC at 1257-58.
In providing full remedial relief, the Commission has cautioned that “a miner should not
be worse off than he otherwise would have been because he has chosen to vindicate his rights
under the Mine Act.” Id. at 1259. In other words, Shemwell must be relieved, with all deliberate
speed, of the financial burden and anxiety caused by having to defend a civil suit simply because
he exercised his statutory right as a miner.
Ordinarily, affirmative steps required by a mine operator to relieve a miner of the effects
of discrimination, such as back pay and reinstatement, must await a final decision on relief.
Under such circumstances, the violative Kentucky tort action would remain unabated for several
months, during which time the parties are entitled to file petitions for relief before an ultimate
decision on relief can be issued.24
This matter presents the novel question of whether an order requiring Armstrong to cease
and desist its prosecution of its civil suit can be issued now, or, whether it must be delayed until
a final decision on relief. A stay of implementation is, in effect, a delay in implementation.
Consequently, it is helpful to apply the criteria for determining whether remedial action ordered
to be taken by a mine operator in a Commission proceeding should be stayed to the issue of
whether the cease and desist order should be delayed. The criteria are: (1) whether there is a
likelihood of Armstrong prevailing on appeal; (2) whether Armstrong will be irreparably harmed
if the cease and desist order is not delayed; (3) whether not delaying the cease and desist order
creates an adverse effect on others; and (4) whether not delaying the cease and desist order is in
the public interest. See Kevin Baird v. PCS Phosphate Company, Inc., 33 FMSHRC 127, 128-29
(Feb. 2011) (citing Virginia Petroleum Jobbers Ass’n v. Federal Power Commission, 259 F.2d
921, 925 (D.C. Cir. 1958).25

As provided herein, the parties have been given until July 30, 2013, to confer for the
purpose of agreeing on the specific relief to be awarded, and until August 23, 2013, to file either
a joint stipulation on relief or individual petitions for relief. Therefore a decision on relief would
likely not be issued until October 2013.
24

By way of analogy, it is noteworthy that under Commission Rule 45(f), a judge’s
decision ordering temporary reinstatement will not be stayed, absent extraordinary
circumstances, during the pendency of a Commission appeal. 29 C.F.R. § 2700.45(f). Similar to
the considerations dictating the expeditious temporary reinstatement of a miner to achieve the
resumption of the payment of his wages, expeditious action is required to relieve Shemwell of
the ongoing harm caused by Armstrong’s violative civil suit.
25

35 FMSHRC Page 1885

With respect to the first factor, notwithstanding the propriety of preemption, having
determined that the civil suit is baseless, it is not likely that Armstrong will prevail on appeal.
With regard to irreparable harm, it is significant that Armstrong’s suit is premature under
Kentucky tort law, since no final decision has been issued in the Commission proceeding alleged
to have been misused. Moreover, withdrawal of Armstrong’s suit can be without prejudice,
permitting Armstrong to once again bring its civil proceeding in the unlikely event Armstrong is
ultimately successful on appeal. Turning to the third factor, the cease and desist order must not
be delayed because to do so would have a chilling effect on similarly situated miners who would
be discouraged from bringing safety related complaints. Finally, not delaying the cease and desist
order is in the public interest because it will further the Mine Act’s goal of ensuring that miners
play an active role in achieving a safer working environment. Consequently, an order requiring
Armstrong to cease and desist should not be further delayed.
Consistent with the Commission’s broad remedial powers, it is unreasonable to permit
Armstrong to continue to interfere with Shemwell’s statutory right to file his discrimination
complaint. Moreover, it is imprudent to further delay the removal of the chilling effect imposed
on rank-and-file miners by allowing the civil suit to continue. Consequently, Armstrong shall be
ordered to cease and desist prosecution of its Kentucky suit by filing an appropriate motion to
dismiss, within 40 days of the date of this decision on liability.26
ORDER
Accordingly, IT IS ORDERED that the discrimination complaint filed by the Secretary
on behalf of Shemwell pursuant to section 105(c)(2) of the Act, as a consequence of Armstrong’s
civil suit for “Wrongful Use of Civil Proceedings,” is granted.27
IT IS FURTHER ORDERED that Armstrong, within 40 days of the date of this
decision, cease and desist from prosecuting its civil suit brought against Shemwell in the
Commonwealth of Kentucky’s Muhlenberg County Circuit Court by filing an appropriate
motion to dismiss.28
It is worth noting that providing Armstrong with a 40 day period to withdraw its state
suit comports with the Commission’s holding in Cordero Mining, LLC, 2011 WL 7144301,
Docket No. WEST 2010-1773-D, slip op. (Dec. 2011), which requires that a mine operator be
provided with a minimum 30 day period in which to request a stay before the Commission.
26

The civil penalty to be assessed for this statutory violation will be addressed in the
Decision on Civil Penalty and Supplemental Decision on Relief.
27

The Secretary may consider imposition of a daily penalty pursuant to section 110(b)
of the Act if Armstrong fails to timely withdraw its state civil suit. Section 110(b) provides
for assessment of a civil penalty of up to $7,500.00 for each day an operator fails to correct a
violation for which a citation has been issued under section 104(a). Section 104(a) authorizes
the Secretary to issue citations for violations of the Act or any order promulgated pursuant
(continued...)
28

35 FMSHRC Page 1886

This Decision on Liability is an interim decision. It does not become final until a
Decision on Civil Penalty and Supplemental Decision on Relief is issued. Accordingly, IT IS
FURTHER ORDERED that the parties should confer before July 30, 2013, in an attempt to
reach an agreement on the specific relief to be awarded. Such relief may include, but is not
limited to: appropriate attorney’s fees associated with Shemwell’s defense in the Kentucky civil
suit; reimbursement of any other relevant expenses incurred by Shemwell; compensation for any
impediment the civil suit may have caused with regard to Shemwell’s ability to successfully
procure equivalent employment in the mining industry, less any income earned from alternative
employment;29 and compensation for any demonstrable physical or emotional harm related to the
civil action and reimbursement for any medical expenses related thereto.
If the parties agree to stipulate to the appropriate relief to be awarded they shall file a Joint
Stipulation on Relief on or before August 23, 2013. An agreement concerning the scope and
amount of relief to be awarded shall not preclude either party from appealing this decision.
If the parties cannot agree on the relief to be awarded, the parties ARE FURTHER
ORDERED to file, on or before August 23, 2013, Proposals for Relief specifying the
appropriate relief to be awarded. Any claim for reimbursement, or for health related issues, must
be accompanied by documentary evidence. If separate Proposals for Relief are filed, I will confer
with the parties to determine if there are disputed factual issues that require an evidentiary
hearing.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

(...continued)
to the Act. 30 U.S.C. §§ 820(b), 814(a). The determination in this proceeding that Armstrong’s
civil suit violates section 105(c)(1) of the Act is the substantive equivalent of a citation issued
for a violation of the Act. Significant daily civil penalties may be needed to encourage
companies with extensive financial resources to abate violations while they litigate or appeal
their validity. Thunder Basin Coal Co., 19 FMSHRC 1495, 1505 (Sept. 1997). Operators who
choose not to abate violations while continuing to litigate must “be prepared to bear the
consequences of that decision.” Id.
28

An administrative law judge has noted that a complainant may be awarded relief
if his former employer interfered with his ability to obtain subsequent employment. Joseph W.
Herman v. Imco Services, 4 FMSHRC 1540, 1549 (Aug. 1982) (ALJ).
29

35 FMSHRC Page 1887

Distribution (by regular mail and electronic mail):
Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Adam K. Spease, Esq., Miller Wells, 710 W. Main Street, 4th Floor, Louisville, KY 40202
Mason L. Miller, Esq., 300 E. Main Street, Suite 360, Lexington, KY 40507
Daniel Z. Zaluski, Esq., 407 Brown Road, Madisonville, KY 42431
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg,
KY 41858
/tmw

35 FMSHRC Page 1888

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
th

721 19 Street, Suite 443
Denver, CO 80202-2536
303-844-5267/FAX 303-844-5268

June 20, 2013
NORTHSHORE MINING COMPANY,
Contestant,
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner,
v.

NORTHSHORE MINING COMPANY,
Respondent.

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CONTEST PROCEEDING
Docket No. LAKE 2010-361-RM
Citation No. 6492348; 01/12/2010
Northshore Mining
Mine ID. 21-00831

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2010-756-M
A.C. No. 21-00831-219864-01
Docket No. LAKE 2011-482-M
A.C. No. 21-00831-247106
Docket No. LAKE 2011-664-M
A.C. No. 21-00831-252297
Northshore Mining Company

DECISION
Appearances: Karen E. Bobela, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;
Patrick W. Dennison, Esq., and Jason P. Webb, Esq., Jackson Kelly PLLC,
Pittsburgh, Pennsylvania, for Respondent.
Before:

Judge Manning

This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor (the “Secretary”), acting through the Mine Safety and Health Administration
(“MSHA”), against Northshore Mining Company (“Northshore” or “Respondent”) pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(the “Mine Act”). The parties introduced testimony and documentary evidence at a hearing held
in Duluth, Minnesota and filed post-hearing briefs.
Northshore operates a plant at Silver Bay, Minnesota, that produces iron ore pellets from
the taconite that it mines at the Babbit Mine. Eight section 104(a) citations and one section

35 FMSHRC Page 1889

104(d)(1) citation issued at the plant were adjudicated at the hearing. The plant is a “mine”
under section 3(h)(1) the Mine Act. 30 U.S.C. § 802(h)(1).
I. BASIC LEGAL PRINCIPLES
A.

Significant and Substantial

The Secretary alleges that the violations discussed below were of a significant and
substantial (“S&S”) nature. An S&S violation is a violation “of such nature as could significantly
and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30
U.S.C. § 814(d) (2006). A violation is properly designated S&S, “if, based upon the particular
facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the
Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC
1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin
Power Co., Inc., 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is most difficult to apply. The element is
established only if the Secretary proves “a reasonable likelihood the hazard contributed to will
result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129
(Aug. 1985). An S&S determination must be based upon the particular facts surrounding the
violation and must be made in the context of continued normal mining operations. Texasgulf, Inc.,
10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will
cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing
Musser Engineering, Inc. and PBS Coals, Inc. 32 FMSHRC 1257, 1281 (Oct. 2010)).
The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the “focus of the seriousness of the violation is not necessarily
on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on
the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996). The Commission has emphasized that, in accordance with the language of section
104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a violation to the cause and effect of a
hazard that must be S&S. U.S. Steel Mining Co., 6 FMSHRC at 1575. With respect to citations or
orders alleging an accumulation of combustible materials, the question is whether there was a
confluence of factors that made an injury-producing fire and/or explosion reasonably likely.
UP&L, 12 FMSHRC 965, 970-71 (May 1990). Factors that have been considered include the
extent of the accumulation, possible ignition sources, the presence of methane, and the type of
equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-03.

35 FMSHRC Page 1890

B.

Negligence and Unwarrantable Failure

The Secretary defines conduct that constitutes negligence under the Mine Act as follows:
Negligence is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to
protect miners against the risks of harm. Under the Mine Act, an
operator is held to a high standard of care. A mine operator is
required to be on the alert for conditions and practices in the mine
that affect the safety or health of miners and to take steps necessary
to correct or prevent hazardous conditions or practices. The failure
to exercise a high standard of care constitutes negligence.
30 C.F.R. § 100.3(d). The Commission has defined an unwarrantable failure as aggravated
conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997,
2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining
Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995).
Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is determined
by looking at all the facts and circumstances of each case to see if any aggravating factors exist,
such as the length of time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts are necessary for compliance,
the operator’s efforts in abating the violative condition, whether the violation is obvious or poses
a high degree of danger, and the operator’s knowledge of the existence of the violation. See e.g.
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar violations are
relevant to an unwarrantable failure determination to the extent that they serve to put an operator
on notice that greater efforts are necessary for compliance with a standard. Peabody Coal Co., 14
FMSHRC 1258, 1261 (Aug. 1992).
II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Citation No. 6556570; LAKE 2011-664-M
On February 23, 2011, Inspector William Soderlind issued Citation No. 6556570 under
section 104(a) of the Mine Act, alleging a violation of section 56.12004 of the Secretary’s safety
standards. The citation states, in part:
The heat lamp mounted on the electrical box was found hanging by
its two inner conductors on the side of the box. The hole in the
box had a sharp metal edge the conductor insulation was rubbing
on, and the lamp would sway back and forth when the door to the
box was opened. In this condition the lamp would not be
grounded.

35 FMSHRC Page 1891

(Ex. G-V). Inspector Soderlind determined that an injury was reasonably likely to occur and that
such an injury could reasonably be expected to be fatal. Further, he determined that the violation
was S&S, the operator’s negligence was moderate, and that one person would be affected.
Section 56.12004 of the Secretary’s regulations requires that “[e]lectrical conductors exposed to
mechanical damage shall be protected.” 30 C.F.R. § 56.12004. The Secretary proposed a
penalty of $8,209.00 for this citation.
1. Summary of Evidence
Inspector Henry Soderlind testified that he issued Citation No. 6556570 on February 23,
2011, at Respondent’s plant (the “Mine”). (Tr.I 10-11).1 The inspector issued the citation as a
violation of 30 C.F.R. 56.12004 because an ungrounded heat lamp violated the safety standard.
(Tr.I 13-14). The lamp was mounted on an electrical box and functioned 24 hours a day. (Tr.I
13-14). It swayed when the door to the electrical box opened or closed, causing the inner
conductors to move across the sharp, metal edge of the box. Id. Grease, a greasy rag, and straws
were in the box that operated the lubrication controls. The electrical box was inside the
lubrication control box. (Tr.I 16; Ex. G-HH). Inspector Soderlind testified that the room was
covered in grease. (Tr.I 16-17).
Inspector Soderlind testified that Citation No. 6556570 was S&S. The cited conditions
presented shock and burn hazards. (Tr.I 19). The shock hazard posed the risk of fatality to
miners through electrocution. (Tr.I 22). The inspector testified that the cited condition was
reasonably likely to cause an injury because the area was greasy and a lube technician opened the
box and moved the inner conductors without locking or tagging out the system. (Tr.I 18). The
movement of the door and the lamp was likely to expose the inner conductors. (Tr.I 19).
Conditions in the area were wet. (Tr.I 21). If the cabinet was not grounded, it could become
energized. Id.
Inspector Soderlind designated Citation No. 6556570 as the result of Respondent’s
moderate negligence because the condition was obvious. (Tr.I 23). The inspector testified that a
lube technician stated that he had found the hazard in the morning, but had not addressed it. (Tr.I
25).
Tim Aijala, who was Northshore’ s safety inspector at the time the citation was issued,
testified that the room was dry and neither the floor nor walls had any grease upon them during
the inspection. (Tr.I 80). Aijala testified that the lube technician was in the process of writing a
work order for the underlying condition when Aijala and the inspector discovered the condition.
(Tr.I 82).
Mark Steven Saari, who was the lube technician referenced by the inspector, testified that
he returned to the office to submit a work order immediately after noticing the cited condition,
which occurred shortly before the inspector issued a citation. (Tr.I 118). He did not submit the
1

Each day of this two-day hearing has a separate transcript and each transcript begins at
page 1. Therefore, I refer to the transcript from the first day of the hearing as “Tr.I” and the
transcript from the second day as “Tr.II.”

35 FMSHRC Page 1892

order until after the inspection, however, because Aijala asked him to return to the area of the
cited condition. (Tr.I 127). He did not post hazard tape because he did not have any and did not
believe that anyone else would enter the area. (Tr.I 117). Saari entered the area containing the
cited condition once each week; only lube technicians had reason to enter the area and Saari was
the only lube technician responsible for this area. (Tr.I 115,124).
2. Discussion and Analysis
Respondent argues that the Secretary did not satisfy his burden of proving a violation of
section 56.12004 because the wires were covered with insulation that protected them from
mechanical damage. The potential for damage to the insulated conductors arose when the door
was opened and closed, but only lube technicians entered the room.
Respondent also asserts that the citation was not S&S because the cited condition was not
likely to cause an injury. No bare copper wires were exposed and only the red wire posed a
danger. The red wire, moreover, would trip the breaker if it contacted the panel. The control
panel was also properly grounded.
The fatal designation is also inappropriate, according to Respondent, because 110 volts is
unlikely to cause a fatality, especially considering the use of AC power, the steel grounding
system, and the electrical rated boots of the lube technician.
The Secretary argues that the citation was a violation of section 56.12004 that was
reasonably likely to contribute to a serious injury. The inner conductors of a heat lamp were
exposed to mechanical damage from the sharp edge of a door that opened and closed against the
conductor, which could lead to a fatal electrocution. The room that housed the cited condition
was covered in grease, ice, and snowmelt. The heat lamp was not grounded and could electrify
the entire panel. The box was continually opened and closed.
The Secretary contends that the citation was the result of high negligence because the
condition was obvious, the operator knew or should have known of the condition, and there were
no mitigating circumstances.
I find that Citation No. 6556570 represented a violation of section 56.12004 because the
inner conductor of the heat lamp was exposed to mechanical damage. Although the actual
copper wires were not exposed due to their insulation, the outer jacket was missing. The purpose
of the outer jacket is to protect the inner conductor from damage, especially mechanical damage.
Despite the presence of insulation, a conductor violates section 56.12004 if it lacks an outer
protective jacket or structure of some sort.
I find that Citation No. 6556570 was not S&S because the cited condition was not
reasonably likely to cause an injury. Respondent violated section 56.12004, which posed the
hazard of a lethal shock to a miner because 110 volts is likely to cause a fatality. The Secretary
failed to show, however, that the cited condition was reasonably likely to cause an injury
assuming continued mining operations. The conductors remained insulated. That insulation
would only be worn off to expose the copper wires if the door to the box was opened numerous

35 FMSHRC Page 1893

times. Traffic in the area was low and the box was not frequently opened. The inspector did not
note any wear or damage to the insulation at the time that he viewed the conductor. I credit the
testimony of Northshore’s witnesses that the lube technician had noticed the condition and was in
the process of writing it up so that it would be corrected. Therefore the insulation was unlikely
to be damaged. Without the insulation being damaged, a miner would be unlikely to be injured
by the cited condition even when touching the insulated wires inside the box.
I find that Respondent’s negligence was low because Saari credibly testified that he was
in the process of getting the condition repaired before the inspector examined the electrical box.
The lube shack was only entered once or twice a week, so the condition was not an open and
obvious condition. The Secretary did not establish that the condition had existed for any length
of time.
Citation No. 6556570 is hereby MODIFIED to a non-S&S, low negligence violation of
section 56.12004. A penalty of $200.00 is appropriate for this violation given the low likelihood
that anyone would have been injured by the violation.
B. Citation Nos. 6556571 and 6556572; LAKE 2011-664
On February 23, 2011, Inspector Soderlind issued Citation No. 6556571 under section
104(a) of the Mine Act, alleging a violation of section 56.12017 of the Secretary’s safety
standards. The citation states, in part:
A Lube Technician opened an electrical box and started moving
inner conductors around. The power to the electrical box was
verified as having been de-energized, but it was not locked out and
tagged out. No other measures were taken to prevent someone
from inadvertently energizing the electrical box in the Lube House.
(Ex. G-W). Inspector Soderlind determined that an injury was unlikely to occur but that
such an injury could reasonably be expected to be fatal. Further, he determined that the
operator’s negligence was moderate and that one person would be affected. Section 56.12017 of
the Secretary’s regulations requires:
[p]ower circuits shall be deenergized before work is done on such
circuits unless hot-line tools are used. Suitable warning signs shall
be posted by the individuals who are to do the work. Switches shall
be locked out or other measures taken which shall prevent the
power circuits from being energized without the knowledge of the
individuals working on them.
30 C.F.R. § 56.12017. The Secretary proposed a penalty of $585.00 for this citation.
On February 23, 2011, minutes after issuing Citation No. 6556572 in the same location,
Inspector Soderlind issued Citation No. 6556572 under section 104(a) of the Mine Act, alleging a
violation of section 56.12017 of the Secretary’s safety standards. The citation states, in part:

35 FMSHRC Page 1894

Two electricians were working on remounting a heat lamp on the
electrical box in the Lube House. This circuit had not been locked
and tagged out, and no other measures were taken to ensure the
circuit would not be energized inadvertently while repairs were
taking place.
(Ex. G-X). Inspector Soderlind determined that an injury was unlikely to occur but that such an
injury could reasonably be expected to be fatal. Further, he determined that the operator’s
negligence was moderate, and that two persons would be affected. The Secretary proposed a
penalty of $634.00 for this citation.
1. Summary of Evidence
Inspector Soderlind testified that he issued Citation Nos. 6556571 and 6556572 shortly
after he issued Citation No. 6556570. (Tr.I 29). The conductors were inside the electrical box,
which was the same box that the lamp referenced in Citation No. 6556570 was attached to. Both
Citation Nos. 6556571 and 6556572 resulted from Northshore employees addressing the
condition cited in Citation No. 6556570.
The inspector issued Citation No. 6556571 as a result of the lube technician opening the
electrical box and touching the conductors without locking or tagging it out and he issued
Citation No. 6556572 as a result of the same actions performed by two electricians. (Tr.I 28).
Saari testified that he did not handle any conductors or wires within the electrical box; he
inspected the box visually. (Tr.I 129). In both instances, the circuits were deenergized, but there
were no locks, guards, or signs to prevent the circuits from being reenergized. (Tr.I 31, 34).
Inspector Soderlind designated Citation Nos. 6556571 and 6556572 as unlikely to lead to
an injury and non-S&S because the circuit was de-energized. (Tr.I 41). The inspector designated
the likely injury to a miner as a fatality. Id.
The inspector designated Citation Nos. 6556571 and 6556572 as the result of
Respondent’s moderate negligence. The inspector testified that a manager of Northshore
witnessed the violation cited in Citation No. 6556571 and did nothing to stop the actions of the
lube technician. (Tr.I 42). The Inspector also believed that “everybody knows” that they must
lock and tag out circuits. (Tr.I 43).
Tim Aijala accompanied Inspector Soderlind during his inspection. Aijala testified that
the lube room was small and two people could fit inside it, but uncomfortably. (Tr.I 79). While
the inspector viewed the lube technician touching the conductors, Aijala was outside of the lube
room because three people could not fit in the room. (Tr.I 85-86). Aijala testified that he stayed
within view of the motor control center (“MCC”) the entire time the electricians and the lube
technician contacted the electrical box. (Tr.I 86-89). The MCC was adjacent to the lube shack.
No one could enter the MCC room to reenergize the electrical box without Aijala seeing them;
the area had little traffic and even less pedestrian traffic. (Tr.I 109).

35 FMSHRC Page 1895

Mike Ketola, the process manager at Northshore, is an electrical engineer. He testified
that it was highly unlikely that the cabinet could become electrified because the circuit breaker
would trip and the entire electrical system was grounded appropriately. (Tr.I 138-39, 144).
Ketola did not believe that a fatality was likely to result from the underlying conditions. (Tr.I
141).
2. Discussion and Analysis
Respondent contends that it did not violate section 56.12017 as alleged in Citation Nos.
6556571 and 6556572. Relating to Citation No. 6556571, Saari did not contact the conductors
and therefore did not perform “work.” With regard to both citations, Aijala acted as a sentry,
complying with section 56.12017 by supplying “other measures” to prevent the power circuits
from becoming reenergized.
Respondent asserts that Citation Nos. 6556571 and 6556572 are not the result of
moderate negligence. Aijala did not witness Saari contact the conductors inside the panel and
Respondent trains employees to perform lock out and tag out procedures when doing electrical
work. Respondent’s management was not aware of the cited condition and any negligence
concerning either citation is attributable to hourly workers only. Citation Nos. 6556571 and
6556572, therefore, are not the result of Respondent’s moderate negligence.
The Secretary argues that Citation Nos. 6556571 and 6556572 both violated section
56.12017 because Northshore employees worked on an electrical box without locking or tagging
out the power circuit. The inspector issued Citation No. 6556571 when he witnessed a lube
technician touching inner conductors with his bare hands. The inspector issued Citation No.
6556572 when he saw electricians contact the inner conductors without locking or tagging out
the circuit. With regard to both Citation Nos. 6556571 and 6556572, Respondent did not lock
out, tag out, or use any alternative methods to prevent a circuit from being reengergized while
miners worked upon it, which is a violation of section 56.12017.
The Secretary also argues that Citation Nos. 6556571 and 6556572 were the result of
high negligence because the condition was obvious, the operator knew or should have known of
the violations, and there were no mitigating circumstances.
I find that Citation Nos. 6556571 and 6556572 were violations of section 56.12017.
Respondent did not lock or tag out the circuit while two electricians worked upon it. I also credit
Inspector Soderlind’s testimony that Saari contacted and worked upon the same conductor
without locking or tagging out that conductor. Although Aijala testified that he remained within
sight of the MCC room, I find that his presence did not constitute “other measures” under the
standard. I find that Aijala stood outside of the lube shack because the room was too small to fit
him, not with the specified intent of stopping the power circuit from being reenergized. If Aijala
stood in his position with the actual intent of preventing reenergization, he would have
positioned himself directly in front of the door to the MCC. He could also have locked the door
to the MCC room, which is what Inspector Soderlind made the electricians do when he noticed
them working without following lock out and tag out procedures.

35 FMSHRC Page 1896

Three employees, two of which were electricians, worked on electrical conductors
without locking and tagging out the circuit, suggesting that Respondent has not been vigilant in
following its lock out and tag out procedures. Although Aijala’s presence contributed to the
unlikely designations of these citations, I find that it did not qualify as the “other measures” that
“shall prevent the power circuits from being energized.” Respondent violated section 56.12017
twice; once when its lube technician worked on a conductor that was not locked out or tagged
out and once when two of its electricians did so.
I find that an injury was highly unlikely in this instance. The violations occurred in a
remote area so it was extremely improbable that anyone would have entered the MCC to close
the circuit, especially since Mr. Aijala was in the area. The violations were not S&S.
I find that Citation Nos. 6556571 and 6556572 were the result of Respondent’s moderate
negligence. Respondent should have known of these violations, as its safety inspector was
present at the time. Three employees, two of which were electricians, did not lock or tag out the
circuit while they performed work upon it, suggesting that Respondent has been negligent in
training or enforcing its lock-out procedures.
Citation Nos. 6556571 and 6556572 are hereby AFFIRMED. A penalty of $500.00 for
each violation is appropriate because of the low likelihood that the violations would have
resulted in any type of injury.
C. Citation No. 6556582; LAKE 2011-664
On March 3, 2011, Inspector Soderlind issued Citation No. 6556582 under section 104(a)
of the Mine Act, alleging a violation of section 56.14112(b) of the Secretary’s safety standards.
The citation states, in part:
One miner was operating a hand-held electric grinder without the
provided guard in place during operation. No fire extinguisher was
present at this location at the time. This condition exposes miners
to coming in contact with moving machine parts resulting in
lacerations, burns and/or other injuries.
(Ex. G-V). Inspector Soderlind determined that an injury was reasonably likely to occur and that
such an injury could reasonably be expected to result in lost workdays or restricted duty. Further,
he determined that the violation was S&S, the operator’s negligence was moderate, and that one
person would be affected. Section 56.14112(b) of the Secretary’s regulations requires that
“[g]uards shall be securely in place while machinery is being operated, except when testing or
making adjustments which cannot be performed without removal of the guard.” 30 C.F.R. §
56.14112(b). The Secretary proposed a penalty of $1,530.00 for this citation.
1. Summary of Evidence
Inspector Soderlind issued Citation No. 6556582 as a violation of section 56.14112(b)
caused by the operator’s moderate negligence because he observed two miners working to thaw a

35 FMSHRC Page 1897

frozen pipe and one was using a grinder without its guard. (Tr.I 155). That miner admitted to
removing the guard and then using the grinder, even though he knew that doing so violated the
Mine Act. (Tr.I 158, 161). The inspector testified that the grinder was used in a visible, high
traffic area of the Mine. (Tr.I 157). The inspector initially thought that this citation resulted
from Respondent’s high negligence, but he could not establish that management had any
knowledge of the condition. Id.
Tim Aijala testified that the area where the miners were working was easy to see, but that
it was difficult to discern that the miner was using a grinder without a guard. (Tr.I 173-74). The
miners were given a grinder with a guard, but they removed the guard to accommodate a larger
cutting wheel. If the miners wanted to use a larger grinder with a guard, they could have walked
50 feet to a maintenance silo to obtain one, which is the action the miners took to terminate the
citation. (Tr.I 171). Aijala testified that Respondent has a “self-directed” workforce; it depends
upon thoroughly training its employees and having the employees rely upon that training instead
of providing constant supervision. (Tr.I 176, Tr.II 30).
Scott Blood, the senior safety representative at Northshore, testified that the miners who
removed the guard from the grinder were disciplined. The training at Northshore makes miners
aware that they should not tamper with safety equipment and the miners who removed the guard
from the grinder should have known not to do so. (Tr.I 183-84). The disciplined miners were
experienced and Blood did not believe that Respondent’s management could have done anything
further to prevent their actions. (Tr.I 184).
2. Discussion and Analysis
Respondent does not dispute the violation of section 56.14112(b) and the S&S
designation of Citation No. 6556582, but disputes the moderate negligence determination and the
amount of the penalty. The negligence of rank-and-file, hourly miners cannot be attributed to
management. The miners involved knowingly acted against their training and were in an area
where a passerby could not see their tools. The Secretary’s moderate negligence designation is
unfounded because Respondent should not have known of the cited conditions.
The Secretary argues that the violation was the result of Respondent’s moderate
negligence because the condition was obvious and Respondent should have known of the
condition when it assigned the miner to work on the frozen pipe.
I find that Respondent’s violation of section 56.14112(b) was the result of Respondent’s
low negligence. The negligence of rank-and-file miners is not attributable to an operator for the
purposes of negligence designations and penalty amounts. Southern Ohio Coal Co., 4 FMSHRC
1459, 1462 (Aug. 1982). When, however, “a rank-and-file employee has violated the Act, the
operator's supervision, training and disciplining of its employees must be examined to determine
if the operator has taken reasonable steps to prevent the rank-and-file miner's violative conduct.”
Id. (emphasis in original). Northshore trains its workforce but then, once trained, the workforce
is largely self-supervised. In this instance, management would not have known that the two
miners used a grinder without a guard unless it had a supervisor standing right in the immediate
vicinity. Under the facts of this case, I find that the negligence of the two miners should not be

35 FMSHRC Page 1898

attributed to management. This finding is, by necessity, very factually specific and situations
could arise in which the failure to more closely supervise employees could lead to a higher level
of negligence.
Citation No. 6556582 is hereby MODIFIED to reduce the negligence to “low.” A
penalty of $800.00 is appropriate for this violation.
D. Citation No. 6556545; LAKE 2011-482
On January 12, 2011, Inspector Soderlind issued Citation No. 6556545 under section
104(a) of the Mine Act, alleging a violation of section 56.12004 of the Secretary’s safety
standards. The citation states, in part “[t]here was a broken piece of conduit running along the
outside of the Pellet Plant behind furnace number 6 exposing miners to electrical shock/burn
hazards resulting in serious injury.” (Ex. G-R). Inspector Soderlind determined that an injury
was unlikely to occur but that such an injury could reasonably be expected to be fatal. Further,
he determined that the operator’s negligence was moderate and that one person would be
affected. The Secretary proposed a penalty of $2,901.00 for this citation.
1. Summary of Evidence
Inspector Soderlind testified that the citation was a violation of section 56.12004 due to
exposed conductors. (Tr.I 185; Ex. G-R). Two sections of the metal conduit were detached
approximately 6 to 7 feet above the ground on the exterior of a building. (Tr.I 189-90; Ex. R-T).
An electrician certified that the conductors were exposed and that the circuit was live. (Tr.I 190).
In the inspector’s opinion, this condition was unlikely to cause injury. (Tr.I 195). The conduit
carried 480 volts, which could cause a fatality. (Tr.I 192-93).
The conductors were not damaged, but the Inspector was concerned that weather or the
act of opening and closing a nearby door would cause mechanical damage to the conductors.
(Tr.I 198, 205). He was primarily concerned that an exterior door located about 90 to 100 feet
away was banging against the metal conduit. (Tr.I 218). Inspector Soderlind acknowledged that
the circuit may or may not be grounded. (Tr.I 207).
Inspector Soderlind believed that this condition was obvious. (Tr.I 196, 217). He also
testified that Respondent was put on notice that greater efforts to comply with section 56.14112
were necessary because over the two prior years, Respondent was cited 51 times under the
section. (Tr.I 196, 212 ). The inspector did not know how long the condition existed. (Tr.I 210).
Brian Gene Hill, who works at Northshore in pelletizer operations, escorted Inspector
Soderlind on his January 12, 2011, inspection. (Tr.I 221). Hill testified that the area where the
cited conductor was exposed is not well-traveled, seldom passed by pedestrians, and vehicles
passed 20 to 30 feet away. (Tr.I 222, 229). Hill did admit that pedestrians will sometimes walk
through this area due to spillage in the building, which is what he and the inspector did. (Tr.I
232-33). Miners sometimes park vehicles in the area to perform mechanical work. Id.
Hill testified that the conductor was still protected and that there were no hazards that
could damage the remaining protection. (Tr.I 225-26). He also testified that he would not

35 FMSHRC Page 1899

perform the simple task of fixing the conduit covering because he is not an electrician. (Tr.I
228). Hill stated that no one examined this area and that he did not believe that examinations
were required. (Tr.I 227).
2. Discussion and Analysis
Respondent argues that it did not violate section 56.12004 because the conductor was
neither exposed to mechanical damage nor unprotected. The Secretary did not show that the
conductor was exposed to mechanical damage because the inspector’s testimony was unreliable.
The conductor was not bare copper wire; it was protected by a black outer jacket.
Any injury or illness could not reasonably be expected to be fatal according to
Respondent. The electrical systems at the Mine are grounded to prevent electricity from
traveling through human bodies.
The Secretary argues that the cited condition was unlikely to cause an injury, but that the
resulting injury was reasonably likely to be fatal because although the conductor was distant
from the ground, it carried 480 volts of electricity.
The Secretary also argues that the citation was the result of Respondent’s moderate
negligence because the condition was obvious; Respondent was on notice that greater efforts
were necessary to comply with section 56.12004, and Respondent should have known about the
condition.
I find that Respondent violated section 56.12004. I credit Inspector Soderlind’s
testimony that the cited condition exposed a conductor to mechanical damage. Although the
copper wire was not visible, the conductor was not adequately protected from mechanical
damage. The opening and closing door was cited as the cause of the damage to the conduit, but
it was 100 feet away. The precise cause is unknown. An injury was unlikely because the outer
jacket around the conductors was intact. The violation was not S&S. A fatal accident could not
occur unless the outer jacket was damaged, the copper wires were exposed, and the grounding
system failed to function. The chance of a fatal accident was remote at best.
I also find that Northshore’s negligence was low to moderate. On one hand, it was on
notice to fully protect conductors from mechanical damage. On the other hand, the violation was
in a remote location that was not a working place or near a working place. See 30 C.F.R. § 56.2.
Citation No. 6556570 is hereby MODIFIED to reduce the negligence slightly. A penalty
of $500.00 is appropriate for this violation.

35 FMSHRC Page 1900

E. Citation No. 6556888; LAKE 2011-664
On February 15, 2011, Inspector Robert A. Marincel issued Citation No. 6556888 under
section 104(a) of the Mine Act, alleging a violation of section 56.14132(b)(1)(i) of the
Secretary’s safety standards. The citation states, in part:
A GMC 3500 flatbed high rail truck, company number CAR-20,
was not provided with an automatic reverse activated back up
alarm, exposing miners to a back into/over hazard. The truck had a
restricted view to the rear from a Sullair compressor mounted on
the bed of the truck. The truck was observed backing at the north
side of the tails load out building, without a spotter present, or any
audible alarm.
(Ex. G-L). Inspector Marincel determined that an injury was reasonably likely to occur and that
such an injury could reasonably be expected to be fatal. Further, he determined that the violation
was S&S, the operator’s negligence was low, and that one person would be affected. Section
56.14132(b)(1)(i) of the Secretary’s regulations requires that “[w]hen the operator has an
obstructed view to the rear, self-propelled mobile equipment shall have…an automatic reverseactivated signal alarm[.]” 30 C.F.R. § 56.14132(b)(1)(i). The Secretary proposed a penalty of
$1,304.00 for this citation.
1. Summary of Evidence
Inspector Robert Marincel testified that he issued the citation because he observed a
vehicle with a restricted rear-view travel in a reverse direction and did not hear an automatic
back-up alarm function, which is a violation of section 56.14132(b)(1). (Tr.II 40, 50). Inspector
Marcincel testified that the cited vehicle travels throughout the plant and into areas with foot
traffic. (Tr.II 43-44). The foot traffic in the area where the inspector cited the vehicle was the
inspector himself and Aijala, but he believed contractors used the area as well. (Tr.II 43).
The cited condition caused the hazard of a miner being struck or run over by the vehicle.
(Tr.II 46). The inspector believed that the cited condition was reasonably likely to cause an
injury because the vehicle was used throughout the plant in areas foot traffic would be present
and also during times of darkness. (Tr.II 47). Inspector Marincel designated the citation as fatal
because the vehicle could crush a miner and cause a fatality. (Tr.II 50).
Inspector Marincel designated Citation No. 6556888 as the result of Respondent’s low
negligence. He believed that the cited condition existed for about a month and that Respondent
should have known of the condition. (Tr.II 38, 48).
Aijala testified that there was no foot traffic in the cited area except for miners who were
actually using the vehicle. (Tr.I 242). The vehicle in question is a GMC pick-up truck, not a
piece of heavy equipment, according the Aijala. (Tr.I 253). The vehicle moved an average of
three times during each 12 hour shift for a total of 400 yards each time. (Tr.I 252). The vehicle
only traveled in reverse once per 12 hour shift, at the beginning of each shift, when the examiner
of the vehicle served as a spotter. (Tr.I 247, 252). There were no pedestrians in the parking lot

35 FMSHRC Page 1901

when the vehicle reversed. (Tr.I 252). At all other times, the vehicle turned around in a loop
because there wasn’t space to turn around in another manner. (Tr.I 242). There were no other
vehicles that operated in this low-traffic area. Id.
Aijala claims that he and the inspector did not witness the vehicle reverse. (Tr.I 255).
The vehicle travels to other sections of the mine 10 percent of the time. (Tr.I 259, 263-64). The
obstruction that blocked the driver’s sight on the vehicle existed for a month before the inspector
issued the citation. (Tr.I 261). There was also a crane and a contractor’s trailer in the area where
the inspector cited this condition. (Tr.I 262-63).
2. Discussion and Analysis
Respondent argues that it did not violate section 56.14132(b)(1)(i) and was not negligent
for doing so because the cited vehicle never reversed without the use of a spotter. The inspector
did not witness the truck reverse until he requested the truck to do so and the inspector acted as
the spotter at that time. Aijala’s testimony and Respondent’s standard practices contradict the
inspector’s claim that he viewed the truck reverse without a spotter.
If the cited condition did violate section 56.14132(b)(1)(i), however, Respondent
contends that the citation was not S&S. The truck is used sparingly in an area with little traffic
and does not typically reverse. When the truck reversed, a spotter was used. The rear view of
the truck was only partially obstructed and dual side mirrors provided a rear view.
The Secretary argues that Citation No. 6556888 is an S&S violation of section
56.14132(b)(1)(i). Inspector Marincel witnessed the cited vehicle, which had a restricted rear
view, travel in reverse with no back-up alarm or spotter. This created the hazard that a pedestrian
could be struck by the vehicle, which is reasonably likely to be fatal. An injury was reasonably
likely to occur because the cited vehicle operates at various locations throughout the mine that
have foot traffic and it operates during both day and night. The Secretary contends that the
violation was the result of Respondent’s high negligence because the cited condition existed for
30 days.
I find that Respondent violated section 56.14132(b)(1)(i). To satisfy his burden, the
Secretary must prove that the operator reversed the cited equipment without either a backup
alarm or a spotter. See River Cement Co., 10 FMSHRC 1027, 1029-30 (Aug. 1988) (ALJ). I
credit Inspector Marincel’s testimony that he witnessed the vehicle travel in reverse without
either a back-up alarm or spotter. Respondent, therefore, violated section 56.14132(b)(1)(i)
because the Secretary provided convincing evidence of a specific time when the cited vehicle
reversed without either a spotter or a backup alarm. I do not credit the company’s evidence that
a spotter is always present when the truck is operated in reverse.
I also find that the violation was S&S. The cited condition presented the hazard that a
miner would be struck or run over by the cited vehicle, which could cause a fatal injury.
Although Respondent argues that the vehicle was seldom used, not used close to pedestrians, and
did not often reverse, I find that an injury was reasonably likely to occur. I credit the
uncontroverted testimony of the inspector and Aijala that vehicles of the model cited by the

35 FMSHRC Page 1902

inspector are used throughout the mine. Even if the vehicle is seldom used and only in one area
as Respondent argues, the failure to have a functioning back-up alarm creates a serious risk that a
pedestrian would be hit. I credit the inspector’s testimony that contractor employees were present
at the facility and their presence made the lack of a back-up alarm especially hazardous.
I find that the violation was the result of Respondent’s moderate negligence. The
inspector designated the negligence as low, but the Secretary argues that it should be raised to
high. I find the negligence to be moderate because the compressor that obstructed the view of
the driver had recently been installed on the back of the truck. Placing the compressor at the
back of the truck should have alerted Northshore that a functioning backup alarm must be
present.
Citation No. 6556888 is hereby MODIFIED to a moderate negligence designation. A
penalty of $2,000.00 is appropriate for this violation.
F. Citation No. 6556561; LAKE 2011-664
On February 22, 2011, Inspector Soderlind issued Citation No. 6556561 under section
104(a) of the Mine Act, alleging a violation of section 56.11001 of the Secretary’s safety
standards. The citation states, in part:
The main gas ductwork on the south side of the 502 and 602
precipitators was being used to access the main duct sprayers. No
hand rail was provided. Foot tracks were easily observed in the
fines material and measured less than 2 ft. away from the edge of
the ductwork where a fall of approximately 15 ft. existed. There
were also five inch high seams for the ductwork every three feet,
approximately, which created a tripping hazard.
(Ex. G-Y). Inspector Soderlind determined that an injury was reasonably likely to occur and that
such an injury could reasonably be expected to be fatal. Further, he determined that the violation
was S&S, the operator’s negligence was moderate, and that one person would be affected.
Section 56.11001 of the Secretary’s regulations requires that “[s]afe means of access shall be
provided and maintained to all working places.” 30 C.F.R. § 56.11001. The Secretary proposed
a penalty of $2,901.00 for this citation.
1. Summary of Evidence
Inspector Soderlind issued the citation because he believed, based upon the presence of
footprints, that miners had walked across elevated ductwork that exposed them to a 15 foot fall.
(Tr.I 272). The duct was 5.5 feet wide and footprints were visible 2 feet from the drop-off. (Tr.I
276). Although chains blocked the path to the ducts, the chains were not fastened during the
inspection. (Tr.I 276). Inspector Soderlind testified that manager Lyle Dugas told him that
miners might have walked across the duct as a shortcut. (Tr.I 274). The ducts lacked handrails
and the inspector observed no evidence that miners who crossed it had used fall protection. (Tr.I
275, 279). Pieces of ductwork project five inches upward, with the result that the surface of the

35 FMSHRC Page 1903

duct is not a flat surface. (Tr.I 273, 277). There was safe access to the sprayers on the other side
of the sprayers, but miners presumably used the cited access as a shortcut to access the sprayers.
(Tr.I 296). The inspector did not witness any miners using the cited access point or walking
upon the ductwork. (Tr.I 285).
Inspector Soderlind testified that he did not see evidence suggesting the use of fall
protection, but he also stated that he expected it to be used in the area and it could have been
used. (Tr.I 275-76). He did not view any points where a miner could attach fall protection, but
he did not remember specific features of the area either. (Compare Tr.I 279, 293 with Ex. RNN). He further testified that this citation could be abated by the operator using fall protection to
access the work area from every access point. (Tr.I 283).
Inspector Soderlind believed that the 15 foot fall onto hard surfaces and sharp metal
framework below the ductwork would likely result in a fatality. (Tr.I 280). The inspector
testified that it was reasonably likely that a miner would fall off of the duct. Id. Inspector
Soderlind testified that dust accumulated in the area quickly, but that there were still several
evident tracks. Id. The edges that stuck up above the ducts could cause a miner to trip,
especially because the area was dark. Id. Respondent presented no evidence to the inspector that
miners used fall protection in the cited area. (Tr.I 284).
Inspector Soderlind designated the violation as being the result of Respondent’s moderate
negligence because the condition was obvious. (Tr.I 281). The clasp on the chain barrier that
was down was corroded shut, which suggested that this condition existed for an extended period
of time. (Tr.I 281).
Hill testified that the cited ducts had thermal couplers and a flop-gate upon them that
sometimes required maintenance. (Tr.II 6). Hill testified that the subject footprints likely existed
for a period of time. (Tr.II 9). Miners were required to travel upon the ducts to perform
maintenance following an occurrence such as a furnace outage. (Tr.II 8; Ex. R-F). Miners
performing this maintenance would be wearing fall protection and the area provided places to tie
off. (Tr.II 9). Hill believed that Lyle Dugas’ statements to the inspector about why the duct was
used must be correct. (Tr.II 13). Hill testified that a miner was not likely to fall off of the
ductwork in the cited area because any miner working upon the ductwork would be tied off and
would have to be well out of the work area to fall. (Tr.II 16).
Blood testified that miners were required and trained to use fall protection in the cited
area. (Tr.II 25-26). Blood testified that there were points for miners to secure fall protection in
the cited area. (Tr.II 28, 32).
2. Discussion and Analysis
Respondent argues that it did not violate section 56.11001 because it provided safe access
to its miners. The Secretary failed to prove that safe access was not provided and maintained in
the cited area and the inspector focused on the use of fall protection instead of safe access.
Respondent required the use of fall protection to access the cited area. The inspector did not
realize that the cited access point was the safest access to maintain thermal couplers and not a

35 FMSHRC Page 1904

shortcut to the sprayers. The detachable chain used on the cited access point shows that it was
not merely a shortcut.
Respondent also argues that the use of fall protection and the safety of a work area are
unrelated to the safe access required by section 56.11001. The cited point of access did not
present a hazard to miners; the hazard of a 15 foot fall cited by the inspector pertained to the
working area, not the access point.
Respondent asserts that Citation No. 6656561 was not S&S because the Secretary failed
to establish a reasonable likelihood that the cited condition would contribute to an injury. The
fall hazard existed away from the area where miners would be traveling, very few miners
traveled in the area, and the tripping hazards were clearly visible.
The Secretary argues that Citation No. 6656561 was S&S because the cited condition was
reasonably likely to contribute to a serious injury. A 15foot fall onto hard ground created a safety
hazard that could cause a fatal accident. The area was dark, there were flanges to trip on, and
miners did not wear fall protection. Based upon the foot traffic in the area and the footprints
upon the ductwork, an injury was reasonably likely to occur.
The Secretary also argues that Respondent’s moderate negligence caused the condition
cited in Citation No. 6656561. The condition was obvious, existed for some time, and
management actually knew of the cited condition.
I find that the Secretary did not satisfy his burden to show that Respondent failed to
provide a safe means of access to a work area in violation of section 56.11001. Fall protection
can constitute a safe means of access for the purposes of section 56.11001 if the operator
maintains the requirement to use that fall protection. See Lopke Quarries, Inc., 23 FMSHRC
705, 709 (2001). Although the Inspector did not see evidence that fall protection was used and
the operator did not inform him that it was at the time of the inspection, he admitted that fall
protection may have been used and did not see any miners access the ductwork without using
such protection. In addition, even though the inspector testified that he did not see any places for
a miner to secure fall protection, he seemed unsure about the specific features of the area,
whereas witnesses for Respondent, who are more familiar with the cited area, confidently
described various points where a miner could safely secure fall protection while working on the
ductwork. The Secretary failed to satisfy his burden to show that a safe means of access was not
provided by Respondent.
Citation No. 6656561 is hereby VACATED.
G. Citation No. 6556827; LAKE 2011-482
On January 5, 2011, Inspector Marincel issued Citation No. 6556827 under section
104(a) of the Mine Act, alleging a violation of section 56.11001 of the Secretary’s safety
standards. The citation states, in part:

35 FMSHRC Page 1905

A safe means of access was not provided to load the used mantels
and bowls onto the flatbed trailer in the east truck bay, exposing
miners to a fall hazard. Some miners used a 6 foot ladder to either
access the trailer bed to remove the lifting slings from the mantels
and then cut off the pad eyes prior to shipping, or just stand on the
ladder to remove slings and cut off the pad eyes. The ladder at the
site was 30 inches from the north side hand railing….The next
floor down beyond the hand railing was 15 feet 10 inches from the
top of the railing.
(Ex. G-I). Inspector Marincel determined that an injury was reasonably likely to occur and that
such an injury could reasonably be expected to be fatal. Further, he determined that the violation
was S&S, the operator’s negligence was low, and that one person would be affected. The
Secretary proposed a penalty of $1,944.00 for this citation.
1. Summary of Evidence
Inspector Marincel issued the citation as a violation of section 56.11001 because he saw a
6-foot ladder set up beside a handrail in the fine crusher building. (Tr.II 85). The handrail was
15 feet and 10 inches above a concrete floor. (Tr.II 73). Climbing the ladder placed a miner’s
entire body above the handrail; the handrail was 37.5 inches high while the highest ladder rung
being used was 45.5 inches high. (Tr.II 71-72). The handrail was 30 inches from the ladder.
(Tr.II 73). Miners climbed the ladder to remove pad eyes with a torch. (Tr.II 71). The hose for
the cutting torch could cause the ladder to tip, throwing the miner over the handrail. Id. A
sufficient distance for the ladder to be away from a railing would be the sum of the height of the
person and the height of the ladder combined. (Tr.II 92). Inspector Marincel testified that
miners would not be required to use fall protection while working upon the ladder. (Tr.II 83).
The ladder was stable. (Tr.II 85).
Inspector Marincel designated the citation as S&S. Marincel believed that the cited
condition was reasonably likely to contribute to an injury because he assumed that the operator
continually worked on the crusher components and changed crusher bowls and mantels once
each week. (Tr.II 74). The inspector stated that falls of eight feet can be fatal, which is why he
believed the hazard of a 15 foot, 10 inch fall was likely to cause a fatality. (Tr.II 78).
Brandon Goutermont, a fine crusher operator, testified that he escorted Inspector
Marincel on January 5, 2011. Goutermont testified that he used the ladder to climb onto the
trailer to remove the pad eyes. (Tr.II 104). He did not carry the torch on the ladder because he
could reach the top of the trailer to place the torch there. (Tr.II 105). A miner would work in the
area of the cited condition about once each week. (Tr.II 112). The ladder was typically only
used by employees who were too short to reach the pad eyes from the floor. (Tr.II 77, 85-86,
112-13). The ladder has been used for this purpose for at least four years. (Tr.II 107).

35 FMSHRC Page 1906

2. Discussion and Analysis
Respondent argues that it did not violate section 56.11001 because the ladder in the cited
area provided safe access. It is undisputed that a ladder is a safe means of access, that the cited
ladder was in good condition, and that it was placed on solid ground 30 inches from the handrail.
Miners maintained three points of contact while using the ladder. The use of the ladder did not
present a hazard and under the reasonably prudent person test Respondent did not violate section
56.11001.
Respondent also argues that Citation No. 6556827 was not S&S. Inspector Marincel
based the S&S designation upon a dissimilar fatalgram and did not see or know how the cited
ladder was being used. The ladder was stable, in good condition and seldom used. The
Secretary did not present evidence to prove that Citation No. 6556827 was S&S.
The negligence designation for Citation No. 6556827 should be “None” because the cited
condition existed during various inspections over the course of seven years and was not cited
according to Respondent. Respondent could not have known that the condition constituted a
violation of section 56.11001.
The Secretary argues that a miner’s feet would be above the handrail when stepping on to
the rung of the ladder closest to the top of the trailer, which could cause the ladder to tip and
force the miner to fall over the top of the rail.
The Secretary also argues that the citation was S&S. An injury was reasonably likely to
occur due to the frequency with which miners must cut pad eyes off of bowls and mantles. The
cited condition posed the hazard of a 15 foot drop onto concrete, which is likely to cause a fatal
injury. The inspector’s determination that the violation was the result of Respondent’s low
negligence should be affirmed because management was apparently unaware that the ladder was
used in the cited manner.
I find that the condition cited in Citation No. 6556827 did not violate section 56.11001.
The Secretary failed to satisfy his burden to show that a violation existed.2 Although Inspector
Marincel testified that a miner could capsize the ladder during a descent and fall over the railing,
the inspector also agreed that the cited ladder was stable, secure, and would be safe if it were
further from the railing. If the ladder would not present a hazard when moved further from the
railing, it would not present a hazard 30 inches from the railing either. Increased distance from a
railing does not make a ladder less likely to tip and fall. Although the possible injury a miner
could sustain may depend upon the location of a ladder, a violation of section 56.11001 does not
2

The Secretary also argues that Respondent indicated that it would not challenge the fact
of the violation at the hearing with the result that Respondent’s evidence should therefore be
excluded from my analysis. In its amended prehearing statement, Northshore indicated that it
would be challenging the S&S designation, the fatal designation, and the amount of the penalty.
(P. 5). I reject this argument; the Secretary did present evidence at the hearing to demonstrate that
a violation occurred. The parties did not stipulate to the violation. I am vacating the citation
based upon the fact that the Secretary’s reasoning is illogical, as described above.

35 FMSHRC Page 1907

depend upon the distance of a fall from a ladder. It is undisputed that a solidly erected ladder
can provide a means of safe access to a working place. There was no showing by the Secretary
that Northshore’s employees misused the ladder to create a hazard of falling.
Citation No. 6556827 is hereby VACATED.
H. Citation No. 6492348; LAKE 2010-756
On January 12, 2011, Inspector Thaddeus Sichmeller issued Citation No. 6492348 under
section 104(d)(1) of the Mine Act, alleging a violation of section 56.11016 of the Secretary’s
safety standards. The citation states, in part:
The snow was not being removed sanded or salted where person[s]
were accessing the entrance of the guard shack and in the rear of
the building where the portable generator was
operating….Multiple footprint[s] were observed, created by
person[s] accessing the guard shack in the buildup of snow along
with the generator area.
(Ex. G-C). Inspector Sichmeller determined that an injury was reasonably likely to occur and
that such an injury could reasonably be expected to result in lost workdays or restricted duty.
Further, he determined that the violation was S&S, the operator’s negligence was high, and that
one person would be affected. The citation was the result of Respondent’s unwarrantable failure
to comply with a section 56.11016. Section 56.11016 of the Secretary’s regulations requires that
“[r]egularly used walkways and travelways shall be sanded, salted, or cleared of snow and ice as
soon as practicable.” 30 C.F.R. § 56.11016. The Secretary proposed a penalty of $8,400.00 for
this citation.
1. Summary of Evidence
Inspector Sichmeller issued Citation No. 6492348 as a violation of section 56.11016
because Respondent did not clear 1 to 2 inches of snow at the entrance to the rear of the guard
shack where a portable generator was located, which created a slip and fall hazard. (Tr.II 120,
124). The inspector noted that the snow contained many footprints. (Tr.II 121). The compacted
snow was slippery. (Tr.II 141). This hazard could affect anyone who entered the mine because
mine policy required that all people checking in at the mine must go to the guard shack. (Tr.II
124).
On January 6, 2011, Inspector Sichmeller notified Respondent that he was concerned
about their snow and ice removal. (Tr.II 132). The mine had received previous citations alleging
the failure to remove snow and miners had previously slipped and fell due to snow. (Tr.II 132,
142). The mine had recorded seven slip and fall injuries, three of which were snow and ice
related. (Tr.II 143; Ex. G-DD). The inspector also informed Respondent that future violations
would entail elevated negligence designations. (Tr.II 132). On January 7, 2011, Inspector
Sichmeller discussed snow and ice conditions with two members of Respondent’s management,
one of whom argued that injuries at the mine were not snow and ice related. (Tr.II 135).

35 FMSHRC Page 1908

On January 11, 2011, Inspector Sichmeller notified Respondent during their daily closeout meeting that snow must be removed from the guard shack and the parking lots. (Tr.II 128).
When the inspector returned to the mine on January 12, 2011, snow was present at the guard
shack entrance. Id. Respondent notified Inspector Sichmeller that it had not cleared the snow
due to darkness, but miners continued to access the area after dark. (Tr.II 129).
Inspector Sichmeller believed that an injury was reasonably likely to occur due to the
number of previous slip and fall accidents at Respondent’s mine as well as in the industry in
general. (Tr.II 146). Inspector Sichmeller testified that he designated Order No. 6492348 as
likely to cause lost work days or restricted duty because sprains, strains and broken bones often
result from slips and falls. (Tr.II 145-46).
The cited condition was obvious, existed for about two days, was extensive, and
management had knowledge and prior notice of the cited condition because the inspector notified
management about the condition the day before he issued the violation. (Tr.II 147-48).
Scott Blood testified concerning Respondent’s snow removal policies. After a snowfall,
two trucks work to clear the snow from the roads and parking lots and continue working until all
areas are cleared. (Tr.II 174-75). A shovel and a mix of sand and salt are located at each
entrance and miners are instructed to use the equipment to clear the entrances when they use the
entrance. (Tr.II 175). Snow will not be cleared until a miner accesses a particular entrance.
(Tr.II 175-76). Blood testified that on January 11, 2011, he asked the inspector if the area that
needed to be cleared of snow was in front of the guard shack, where the plows were unable to
reach certain “V” shaped patches of snow. (Tr.II 184, 209). When the inspector answered in the
affirmative, Blood immediately called and instructed an employee to clear the discussed patches
of snow, which that employee did. (Tr.II 185; Ex. R-QQ). Blood rushed to make the call
because the heavy equipment operators leave the mine at 3:00 p.m. and it was approaching 3:00.
(Tr.II 210). Blood testified that had he known that the area behind the guard shack needed to be
cleared, it could have been shoveled. Id. Blood testified that he did not know that the area near
the generator needed cleared and testified that the inspector did not alert him that it did. (Tr.II
187). Blood believed that Respondent “did exactly what [the inspector] asked” of it on January
11, 2011. (Tr.II 197). There was no ice present, even beneath the snow. (Tr.II 173, 196; Ex. RQQ)
After January 6, 2011, when Inspector Sichmeller alerted Respondent that its snow
removal was insufficient, Blood reminded employees to clear and spread salt at all entrances.
(Tr.II 192). Blood testified that he and most other managers do not enter through the guard shack
and did not know of the snow between the shack and the generator. (Tr.II 205).
Inspector Sichmeller testified that on January 11, 2011, he informed Respondent’s
management that snow must be cleared from parking areas in the entire mine and “access to the
guard shack[.]” (Tr.II 212). The inspector did not use the words “sidewalk,” ”travelway,” or
“walkway up to the steps” during this conversation. (Tr.II 216).

35 FMSHRC Page 1909

2. Discussion and Analysis
Respondent argues that it did not violate section 56.11016 because the cited area was not
a regularly used walkway or travelway. Section 56.11016 does not require that operators remove
snow from every surface, only snow that is located on regularly traveled walkways. Respondent
cleared all of its regularly used walkways and provided access to the guard shack before the
inspector issued Citation No. 6492348. The area between the guard shack and the generator was
not regularly traveled and the generator had only been present for one day.
Citation No. 6492348 was not S&S because the cited condition was unlikely to contribute
to an injury, asserts Respondent. The snow that was present was too insignificant to be slippery,
constitute a hazard, or be a violation of section 56.11016. There was no ice and no injuries have
been reported as a result of slipping upon snow without ice.
Citation No. 6492348 was not the result of Respondent’s unwarrantable failure because
its conduct was not “aggravated,” according to Respondent. The cited condition was not
obvious, extensive, and the operator made a good faith effort to abate the condition before it was
cited by the MSHA inspector.
The Secretary argues that Citation No. 6492348 was S&S because compacted, slippery
snow was reasonably likely to contribute to a serious injury. The area behind the guard shack
was regularly traveled for as long as the generator remained in place; a failure to promptly sand,
salt or clear this area of snow constituted a violation of section 56.11016 and could cause injuries
including sprains, strains, or broken bones. The compacted, slippery nature of the snow as well
as the history of injuries resulting from slips and falls in similar conditions at the mine and across
the industry show that these injuries were reasonably likely to occur.
The Secretary argues that the violation was the result of Respondent’s high negligence
and unwarrantable failure to comply with the safety standard. The condition was obvious,
existed for two days, posed a high degree of danger due to the area’s extensive foot traffic, and
the operator should have known of the cited condition. Prior to issuing Citation No. 6492348,
the inspector issued other citations to Respondent alleging violations of 56.11016 and discussed
the need to address snow removal, which gave Respondent notice that greater efforts were
necessary to comply with section 56.11016.
I find that Respondent violated section 56.11016 because it failed to clear, sand, or salt a
regularly traveled walkway. Although Respondent argues that the area between the generator
and the guard shack was not regularly traveled, the copious amount of footprints witnessed by
the inspector suggest otherwise. Although the generator was located in the area for only one day
at that time, the walkway was still regularly used at the time of the inspection; fuel must be
added to the generator. In addition, the miners who created those footprints could have cleared
the snow or sanded or salted the walkway, which means compliance with the standard did not
occur as soon as practicable.
I find that the violation was not S&S because the cited condition was not reasonably
likely to contribute to an injury. A violation existed and the hazard of a serious injury resulting
from a slip and fall was also present. Based upon the testimony of the witnesses and the video

35 FMSHRC Page 1910

evidence provided by Respondent, however, I find that there was no ice in the cited area and the
snow was not reasonably likely to cause a slip and fall injury. The snow appears to be
insignificant, which coincides with the testimony of Blood and Inspector Sichemeller. The snow
also appears to be rather dry. It had snowed about one inch on the night of January 11 and there
was no additional snow fall before the citation was issued. (Tr.II 173). It is unlikely that this
snow could cause an injury. The plant is located in northern Minnesota where snow is
commonplace and there was no showing that miners wear footwear that would be unsuitable for
use in the snow. Only miners would be in the cited area; visitors would enter the guard shack
along one of the shoveled and salted walkways. The Secretary did not establish that the
conditions were reasonably likely to cause someone to slip.
I also find that the violation was the result of Respondent’s low negligence, rather than
high negligence. The violation was not extensive because every other regularly traveled
walkway around the guard shack was cleared and sanded or salted. Only a small area between
the generator and guard shack remained uncleared. The inspector, furthermore, based his
negligence and unwarrantable failure designations upon the fact that the operator knew of the
violation based upon his conversation with management. Based upon the testimony, however, it
is clear that management and Inspector Sichmeller had a significant misunderstanding and
Respondent was not aware that the condition the inspector wanted addressed was behind the
guard shack. As a result of the inspector’s conversation with management, furthermore, Blood
testified that he took fast and direct efforts to abate what he believed was the condition of
concern. These efforts suggest a sincere desire and effort to correct the condition, but the snow
remained on the travelway due to a misunderstanding. The main entrances to the guard shack
had been cleared of ice and snow as well as a path to the parking area. The condition was not
obvious unless someone went behind the guard shack because the snow was not deep.
Citation No. 6556570 is hereby MODIFIED to a non-S&S violation resulting from
Respondent’s low negligence without an unwarrantable failure. A penalty of $300.00 is
appropriate for this violation.

35 FMSHRC Page 1911

III. SETTLED CITATIONS
The parties settled a number of the citations in these dockets at the hearing. In LAKE
2011-482-M, the parties agreed to settle 17 of the 19 citations in the docket with the following
terms:
Citation
6556814
6556511
6556512
6556513
6556518
6556820
6556528
6556529
6556532
6556533
6556534
6556831
6556832
6556833
6556540
6556546
6556837

Proposed
Penalty
$4,689.00
$4,329.00
$460.00
$2,106.00
$3,405.00
$3,689.00
$745.00
$334.00
$1,412.00
$425.00
$263.00
$1,304.00
$2,901.00
$1,304.00
$745.00
$946.00
$1,304.00

Settled
Penalty
$2,106.00
$3,000.00
$460.00
$946.00
$687.00
$1,111.00
$530.00
$334.00
$1,412.00
$425.00
$263.00
$1,000.00
$2,200.00
$1,304.00
$300.00
$946.00
$264.00

35 FMSHRC Page 1912

Terms of Settlement
Low Negligence
Low Negligence
Low Negligence
Non-S&S
Lost Workdays/Restricted Duty
Non-S&S

Low Negligence
Non-S&S

In LAKE 2011-664-M, the parties agreed to settle 17 of the 23 citations in the docket
with the following terms:
Citation
6556566
6556897
6556573
6556900
6556576
6556577
6556902
6556583
6556584
6556585
6556586
6556587
6556588
6556907
6556910
6556912
6556913

Proposed
Penalty
$499.00
$263.00
$1,304.00
$263.00
$2,282.00
$2,901.00
$263.00
$190.00
$190.00
$334.00
$1,304.00
$585.00
$1,304.00
$585.00
$460.00
$687.00
$263.00

Settled
Penalty
$499.00
$175.00
$1,100.00
$175.00
$2,282.00
$585.00
$175.00
$0.00
$175.00
$334.00
$1,304.00
$0.00
$1,250.00
$585.00
$0.00
$687.00
$175.00

Terms of Settlement
Lost Workdays/Restricted Duty
Non-S&S
Lost Workdays/Restricted Duty
Non-S&S
Lost Workdays/Restricted Duty
Vacate

Vacate

Vacate
Lost Workdays/Restricted Duty

The proposed penalty amount for LAKE 2011-482-M is $17,288.00 and the proposed
penalty amount for LAKE 2011-664-M is $ 9,501.00. I have considered the representations and
documentation submitted and I conclude that the proposed partial settlement is appropriate under
the criteria set forth in Section 110(i) of the Act. The parties’ motion to approve these
settlements is GRANTED.
IV. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I have considered the Assessed Violation History Reports, which were
submitted by the Secretary with her brief. At all pertinent times, Northshore was a large mine
operator. The violations were abated in good faith. The penalties assessed in this decision will
not have an adverse effect upon Northshore’s ability to continue in business. The gravity and
negligence findings are set forth above.

35 FMSHRC Page 1913

V. ORDER
Based upon the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation No.
30 C.F.R. §
Penalty
LAKE 2010-756-M
6492348

56.11016

$ 300.00

56.12004
56.11001

300.00
VACATED

56.11001
56.12004
56.12017
56.12017
56.14112(b)
56.14132(b)(1)(i)

VACATED
200.00
500.00
500.00
800.00
2,000.00

LAKE 2011-482-M
6556545
6556827
LAKE 2011-664-M
6556561
6556570
6556571
6556572
6556582
6556888

SUBTOTAL
SETTLED CITATIONS
TOTAL PENALTY

4,600.00
26,789.00
$31,389.00

Northshore Mining Company is ORDERED TO PAY the Secretary of Labor the sum of
$31,389.00 within 30 days of the date of this decision.3 Docket No. LAKE 2010-361-RM is
hereby DISMISSED.

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

3

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

35 FMSHRC Page 1914

Distribution:
Karen E. Bobela, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd.,
Suite 515, Denver, CO 80204 (Certified Mail)
Patrick W. Dennison, Esq., Jackson Kelly, Three Gateway Center, 401 Liberty Ave., Suite 1340,
Pittsburgh, PA 15222 (Certified Mail)
RWM/bjr

35 FMSHRC Page 1915

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
FACSIMILE: (412) 928-8689

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of Randall T. Lester,
Complainant
v.
KNOX CREEK COAL CORP.,
A subsidiary of ALPHA NATURAL
RESOURCES, INC.,
Respondent

June 20, 2013
:
TEMPORARY REINSTATEMENT
:
PROCEEDING
:
:
Docket No. VA 2013-387-D
:
MSHA Case No.: NORT-CD-2013-03
:
:
:
:
:
:
:
Mine: Tiller No. 1
:
Mine ID: 44-06804
:

DECISION AND ORDER
REINSTATING RANDALL T. LESTER
Appearances: Ann C. Webb, Esq., and Robert Wilson, Esq., U.S. Department of Labor, Office
of the Solicitor, Arlington, VA, representing the Secretary of Labor (MSHA)
Alexis Ronickher, Esq., and Abigail Cook-Mack Esq., Katz, Marshall & Banks,
LLP, Washington, D.C., representing Randall T. Lester
Stephen M. Hodges, Esq., Penn, Stuart, & Eskridge, Abingdon, VA, representing
Knox Creek Coal Corp.
Before:

Judge Steele

Pursuant to section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977 (AAct@),
30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor (ASecretary@) on June 3,
2013, filed an Application for Temporary Reinstatement of miner Randall T. Lester (“Lester” or
“Complainant”) to his former position with Knox Creek Coal Corp., (AKnox Creek@ or
ARespondent@) at the Tiller No. 1 Mine pending final hearing and disposition of the case.
That application followed a Discrimination Complaint filed by Lester on April 24, 2013,
that alleged, in effect, that his termination was motivated by his protected activity. The
complaint was amended by Lester’s counsel on May 23, 2013. The Secretary represents that this

35 FMSHRC Page 1916

Complaint was not frivolously brought and requests an Order directing Respondent to reinstate
Lester to his former position as a scoop operator.
Respondent filed a request for hearing on June 6, 2013. A hearing was held in Abingdon,
VA on June 13, 2013. The Secretary presented the testimony of the complainant. Respondent
had the opportunity to cross-examine the Secretary=s witnesses and present testimony and
documentary evidence in support of its position. 29 C.F.R. '2700.45(d).
For the reasons set forth below, I grant the application and order the temporary
reinstatement of Lester.
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 Ato
play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif 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., 1st 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).
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 Awhether 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 Aappears 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= Aappears to have merit@ standard, the Commission and the courts have also
equated Anot frivolously brought” to Areasonable cause to believe” and Anot 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
1

ASubstantial evidence@ means Asuch 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)).

35 FMSHRC Page 1917

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).
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 the
adverse action complained of 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).
However, in the instant matter, the Secretary and Lester 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
Amotivational 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 the 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).
Stipulations
The parties stipulated to the following legal and factual propositions:
1.

Respondent is the owner and operator of Tiller No. 1 Mine.

2.

The Tiller No. 1 Mine has products that enter commerce or has operations or
products that affect commerce and is a “coal or other mine” as defined by
Section 3(h)(1) of the Act.

3.

Operations of the Tiller No. 1 Mine are subject to the jurisdiction of the Act.

4.

This proceeding is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its designated Administrative Law Judges
pursuant to Section 105 and 113 of the Act.

35 FMSHRC Page 1918

5.

Respondent is a mine operator as defined by Section 3(d) of the Act.

6.

Lester was employed by Respondent at Tiller No. 1 Mine from April 2001 to
June 2005, from August 2005 to March 2008, and, most recently, from January
19, 2010 until April 23, 2013.

7.

Lester was discharged from his employment at Tiller No. 1 Mine on April 23,
2013.

8.

Lester was at all relevant times herein a miner as defined by Section 3(G) of
the Act.

(Transcript at 6).2
Contentions of the Parties
On April 24, 2013, Lester executed a Summary of Discriminatory Action. It was filed
with his Discrimination Complaint. In this statement he alleged the following:
I was fired from Knox Creek Coal Corp., Tiller No. 1 Mine on April 23,
20013(sic).
I took a person leave day on 4/22/13. I called in according to procedures.
I went back to work on my regular shift on 4/23/13. I worked the full shift with
no problems. At the end of the shift, I was told to go outside. I was told I was
needed in the office across the road.
When I got to the office, Ron Patrick, someone from Human Resources and a
security guard were there. I was told I was discharged for making threats against
personnel, which did not happen.
I believe I was fired because I talked to Lannie Gilbert from MSHA about a
discrimination case a former employee filed.
I want a job back, preferably at another mine, with backpay and all benefits
restored. I want temporary reinstatement.
Application at Exhibit B, p. 2. Furthermore, Lester submitted, through counsel, a Second
Amended Charge of Discrimination that explained his factual contentions and request for relief
in this matter. Id. at p. 3-19.
2

Hereinafter references to the transcript will be cited “Tr.” with the page number.

35 FMSHRC Page 1919

Submitted with the application was the May 29, 2013 Declaration of David Earl Smith, a
Special Investigator employed by the Mine Safety and Health Administration. Smith stated that
he investigated Lester’s discrimination claim against Respondent. Smith laid out the facts that
he had determined based on his investigation. Application at Exhibit A, p. 2-6. He determined:
3.

There is reasonable cause to believe that Lester was discharged because he had
engaged in protected activities. Lester engaged in protected activity when he met
with MSHA on at least three occasions and provided information concerning
conditions and practices at the Tiller No. 1 mine. Lester suffered an adverse action
when he was discharged on April 23, 2013. The alleged threats against personnel
reported by foreman Stiltner were pretext to terminate Lester because he had
engaged in protected activity.

b.

Based on my investigation to this date, I have concluded there is reasonable cause
to believe that Lester was discharged because he engaged in protected activities by
complaining about unsafe practices at the mine, and testifying to MSHA in its
investigation. I have concluded that the complaint filed by Lester was not
frivolous.

Id. at 5-6.
Respondent disputes Lester’s claim that he was laid off for voicing safety concerns.
Instead it claims that he was laid off for making death threats against upper management.
Respondent further contends that its president made the decision to discharge Lester without
knowledge of his protected activity. Further, Respondent claims it would have taken the same
action even if it knew about the protected activity because of the seriousness of the death threats.

35 FMSHRC Page 1920

Summary of Testimony3
Direct Testimony of Randall T. Lester
Lester is 51 years old and was last employed on April 23, 2013 by Respondent at Tiller
No. 1. (Tr. 28-29). He has between 26 and 27 years of experience, 10 or 11 of those years at
Tiller No. 1. (Tr. 28). He last worked as a scoop operator but has held other positions.4 (Tr. 29).

3

While only three witnesses testified in this proceeding, there were considerably more
people discussed. Furthermore, there is a rather dense web of hearsay in this proceeding. While
hearsay is permissible, it is also confusing. As a result, I include this list of people mentioned
multiple times to attempt to limit confusion:
1. Randall T. Lester – The complainant.
2. Nick Stiltner – a mine foreman and Lester’s immediate supervisor.
3. Lannie Gilbert – an MSHA investigator.
4. Jeremiah Heaton – a former employee of Respondent who had also filed a
discrimination complaint.
5. David Smith – an MSHA investigator.
6. Mark Jackson – a member of upper management at the mine. One of
Lester’s supervisors.
7. Ron Patrick – the President of Knox Creek Coal Corp.
8. Scott Jessee - a member of upper management at the mine. One of
Lester’s supervisors.
9. Dedra Helbert – Respondent’s human resources representative.
10. Lynn Blevins – A security guard at the Mine.
4

Lester was a scoop operator when he was fired and is also a fair to pretty good miner
operator. (Tr. 42). Continuous miner operators make more money than scoop operators. (Tr.
42). Lester has cut cables while operating the miner, but many people cut cables. (Tr. 46). The
one he cut was an electrical cable that ran a large piece of equipment. (Tr. 46). It costs money
and time to fix a severed cable. (Tr. 46). It is serious when a miner goes down because it costs
money. (Tr. 46-47). They tag and lock out the equipment when it happens so you might call it a
hazard. (Tr. 47). Lester was not fired or suspended with intent to discharge after this incident.
(Tr. 48). Steve Addison, a supervisor, did not suspend him for three days, Lester quit. (Tr. 48).
Addison confronted him about cutting the cable but did not fill out discharge papers. (Tr. 48).
Lester was never involved in a collision with his scoop. (Tr. 47). Lester has financial difficulty,
including paying to support his ex-wife and his children. (Tr. 43-44). He has wanted a
continuous miner job for a long time and asked for it repeatedly. (Tr. 44). He believes that
Respondent assigned less qualified people to that task. (Tr. 44).

35 FMSHRC Page 1921

He worked both day and evening, on the swing shift.5 (Tr. 29). Lester’s immediate supervisor
was Nick Stiltner (“Stiltner”). (Tr. 29-30).
Lester met with MSHA investigators approximately three times. (Tr. 30, 49). The first
meeting was at the end of February with Lannie Gilbert (“Gilbert”) in Lester’s driveway. (Tr.
30, 49). Gilbert asked about the discrimination complaint of Jeremiah Heaton (“Heaton”). (Tr.
30-31). Lester told MSHA that he was concerned about Heaton’s safety with the track duster.
(Tr. 40). Heaton had not been in the mines long and Lester felt that he had not been given a
chance at the mine. (Tr. 40). Lester may have told Gilbert that Heaton got “railroaded” at the
mine. (Tr. 49-50). Lester had trained Heaton for three days to a week on the duster, but he is
not positive on the time. (Tr. 50). Respondent’s attorneys also interviewed Lester regarding
Heaton and training of the duster. (Tr. 31, 51). Lester was not sure if that interview was before
or after his meeting with Gilbert. (Tr. 31).
After meeting with the MSHA manager, Lester told Stiltner he was talking to MSHA
about Heaton. (Tr. 31-32). Lester believed that Stiltner already knew of the meeting because he
was ordered to talk to Respondent’s lawyers a short time before he was fired. (Tr. 32).
Lester’s second meeting with MHSA occurred with Gilbert and David Smith (“Smith”)
around April 17, 2013 at the V&V Restaurant. (Tr. 32-33, 40, 68, 76). Gilbert called Lester and
said he wanted him to meet with Smith about advance notice.6 (Tr. 67). Lester had already
spoken to Investigator Gilbert about the issue. (Tr. 67-68). At this meeting, they discussed
advance notice. (Tr. 33). He may have talked about advance notice in February also. (Tr. 53,
55). The last instance of advance notice occurred before the Heaton case, two or three months
earlier. (Tr. 53, 76). Mark Jackson (“Jackson”) would give the advance notice. (Tr. 57, 68, 76).
He would sit in the office and when he saw inspectors he would run to the intake phone. (Tr.
57). He would call to both sections, but Lester could not make out what Jackson was saying.
(Tr. 57). He did not know what he was saying but believed he was calling to tell about
inspectors. (Tr. 57). Lester also told the MSHA investigators that safety conditions at the mine
improved when Alpha took over from Massey, but that improvements took time. (Tr. 55-56, 76).
When Alpha came in, Ron Patrick (“Patrick”) was made president. (Tr. 56). However, while
Patrick and Dave Cramer were new, the rest of the supervisors remained the same. (Tr. 94).
That night, Lester told Stiltner he had met with Gilbert and Smith. (Tr. 34, 40). He also
complained about the way Jackson and Scott Jessee (“Jessee”) had treated him. (Tr. 40-41). This
meant that he did not like they way they handled their jobs. (Tr. 45). Jessee and Jackson had the
power to decide who would get that job and Lester was a little upset that he did not get it. (Tr.
45). He did not like that he was kept on one piece of equipment when Jessee knew he was good
5

Swing shift means working two weeks on day then two weeks on evening and then
going back to day shift. (Tr. 29).
6

Advance notice is the illegal practice of providing warning that an inspector has arrived
at a mine. (Tr. 57).

35 FMSHRC Page 1922

on all of the equipment. (Tr. 45). He does not think they have anything against him because
they let him get lots of hours. (Tr. 46). He could not figure out why they would not give him the
job. (Tr. 46). Lester also told Stiltner about other meetings he had with MSHA. (Tr. 41). This
conversation occurred before Lester was discharged. (Tr. 34, 41).
Lester’s third meeting with MSHA (this time only Smith) occurred around April 19, 2013
at the V&V Restaurant. (Tr. 34, 77). There, Lester signed a statement regarding advance notice.
(Tr. 34, 77). He does not have a copy, although his lawyer got one. (Tr. 77-78). Lester also
told Smith about another person at the mine who had asked him about a safety issue. (Tr. 35).
Lester told the miner that he agreed with the safety concern and said he had to talk to the boss
about it. (Tr. 35). Smith gave Lester books on miners’ rights. (Tr. 35). Lester took them to
work that evening and gave one to the other miner and kept one. (Tr. 35).
Lester was next scheduled to work the following Monday, but took a personal day and
returned on the April 23, 2013, day shift. (Tr. 35-36). That day, a miner named Johnson asked
him if he had talked to MSHA. (Tr. 36-37). Lester said he might have talked about the Heaton
case. (Tr. 37). Bobby Jackson also asked and Lester told him the same thing. (Tr. 37). Further,
while Lester was working on the scoop, Stiltner ran over and asked if Lester really talked to
MSHA. (Tr. 37). Lester said he had. (Tr. 37).
On April 23, Lester worked approximately 9 and a half hours. (Tr. 37). At the end of the
shift, Terry Belcher told him that Jessee wanted to speak to him in the main office but did not
know why. (Tr. 37). Lester took a shower and went to the office. (Tr. 37-38). When he arrived
Patrick was present with papers in his hand, as was Dedra Helbert (“Helbert”). (Tr. 38). There
was another man in the office who Lester thought might be the security guard. (Tr. 38). Patrick
then told him that someone said he was threatening personnel, but Lester denied the accusation.
(Tr. 38-39, 89). Patrick then said Lester was fired. (Tr. 39). Lester reiterated that he had not
threatened anyone and said that the decision to fire him was instead related to the Heaton
discrimination proceeding. (Tr. 39). Patrick just rolled his shoulders. (Tr. 39). Patrick did not
say he was being fired for going to MSHA. (Tr. 89). The security guard led him out.7 (Tr. 39).
No one ever talked to Lester about threats before he was terminated. (Tr. 95).
On cross examination, Lester discussed an interview he gave with a reporter from the
Washington Post on June 2, 2010. (Tr. 62-63). This was shortly after the disaster at Massey’s
Upper Big Branch and he was interviewed because Knox Creek was owned by Massey. (Tr. 63).
Lester told the reporter that safety had improved since he started in 1980 because he did not
7

Lester spoke to Heaton on the phone after Lester was fired. (Tr. 78-79). He did not
communicate with Heaton after Heaton was fired but before Lester was fired. (Tr. 79). They
only spoke on the phone the day after Lester’s discharge. (Tr. 84). Heaton called Lester to
apologize and thank him for testifying for him. (Tr. 84-85). Heaton had learned Lester was fired
from another former miner. (Tr. 84-85). Heaton never told him the amount of his discrimination
settlement. (Tr. 85). Lester never heard the amount before he was fired, but heard it was six
figures. (Tr. 85-87).

35 FMSHRC Page 1923

want the mine shut down. (Tr. 63-64). He said positive things about the company. (Tr. 64).
However, he also spoke about advance notice. (Tr. 94). Those comments made it into the
article. (Tr. 94). Lester believes that tension regarding his safety concerns built up over the
years leading to his firing and that the Washington Post story was part of it. (Tr. 64-65). He
believes management, (Jessee, Jackson, Dave Roughner, and others) kept their eye on him to see
if he would report to MSHA. (Tr. 65).
Lester had told Respondent that management was getting better with respect to safety.
(Tr. 51). Lester admitted that he never told Respondent’s counsel or anyone else present about
advanced notice, cutting corners, or violating safety laws. (Tr. 51). Lester stated that
Respondent’s counsel never asked about advance notice. (Tr. 52). Advance notice is serious.
(Tr. 52). Lester is also familiar with the Running Right program instituted by Alpha. (Tr. 65).
At meetings he was told to report safety violations whether anonymously or through
management’s open door policy. (Tr. 66, 88). He did not complain to the company about
advance notice. (Tr. 66). Lester had submitted very few anonymous safety concerns. (Tr. 88).
He also participated in one EIG meeting where he was encouraged to talk about safety but he did
not talk about advance notice.8 (Tr. 66). He only told Gilbert and Smith about it and those
conversations were after Respondent would not give him the miner job. (Tr. 66-67).
Lester never told Stiltner that he was upset at Jackson and Jessee and that he would walk
into their office and harm them without remorse.9 (Tr. 39). He made no other statement that
could be interpreted as a threat of violence. (Tr. 39). Lester agreed that if he made a death threat
he should be fired. (Tr. 59). He received a handbook during training saying there was zero
tolerance for violence and threats. (Tr. 59-60). Lester has a bit of a temper and occasionally
raises his voice when talking to people. (Tr. 60). However, he does not get so angry that he
begins to shake. (Tr. 60). Stiltner never saw him begin to shake. (Tr. 60).
About a month before he was fired, Lester had an argument with Jackson because
Jackson gave him an unexcused absence. (Tr. 60-61). Lester went from the mine to the office,
about a quarter of a mile away and across four lanes of traffic. (Tr. 61). Helbert and Christy
Myers were in the office. (Tr. 61). Lester did not lose his temper but started to cry because he
did not know what anyone had against him. (Tr. 61-62). Lester did not think Jessee had
anything against him because he gave him overtime but felt that Jackson did (Tr. 62). He asked
Jackson about it, but Lester does not know what the problem is. (Tr. 62).
8

The meaning of “EIG” was never developed at hearing. They are apparently meetings
wherein employees are encouraged to voice safety concerns to management.
9

Lester knows where Stiltner lives. (Tr. 89). Lester has been to Stiltner’s house and
knows his wife. (Tr. 90). He lives off a country road in the hollow, about a half mile from the
main road. (Tr. 90-91). He did not go by Stiltner’s house within ten days of his discharge. (Tr.
91). Lester does not own a gun. (Tr. 62). He used to have a .22 mag rifle, but six to eight
months before the hearing it was stolen. (Tr. 62).

35 FMSHRC Page 1924

Since April 23, 2013 Lester has tried to find another job without success. (Tr. 41). He
wants to be reinstated with Respondent. (Tr. 41).
Testimony of David Earl Smith
Smith is currently employed by MSHA as a special investigator and has held that
position for approximately three years. (Tr. 100-101). In that capacity he investigates 105(c)
termination complaints, 110 investigations, and other preliminary investigations. (Tr. 101). To
conduct a 105(c) investigation, Smith first determines whether a temporary reinstatement was
requested, which creates a shortened time-frame for gathering facts, about 15 days. (Tr. 101102). He then determines whether the case was frivolously brought, whether the complainant is
a miner, if he engaged in protected activity, and whether there was an adverse action. (Tr. 102).
In this case, Smith decided that the complaint was not frivolously brought. (Tr. 102, 115). He
made this determination after interviewing management personnel. (Tr. 102). It was significant
that Lester was terminated three days after Smith met with him. (Tr. 102-103).
Smith met Lester the first time at the V&V Restaurant in Richlands a week before he was
terminated, to discuss advance warning. (Tr. 105).10 They met two days later on April 19, 2013
at the same location and Lester signed a statement. (Tr. 105). Lester also stated that another
miner had talked to him about an order from a foreman that he believed was unsafe. (Tr. 105106). Lester asked Smith the proper way to refuse to take an unsafe action so Smith gave him
two copies of the miners’ rights book and two business cards with contact information. (Tr.
106). Smith believes these meetings were protected activity. (Tr. 106).
On April 24, Lester was scheduled to meet with Smith but said that he had been
discharged. (Tr. 107). Lester believed he was fired because he met with MSHA and told his
supervisor about the meeting. (Tr. 107). Smith believed this was an adverse action. (Tr. 107).
Smith was certain that protected activity occurred because he was the one who
interviewed Lester. (Tr. 107-108). The fact that Lester told Stiltner about the substance of those
meetings convinced Smith there was a nexus. (Tr. 107-108). Smith interviewed Stiltner. (Tr.
108). He learned that Lester had spoken to Stiltner on a couple of occasions in the week prior to
the discharge. (Tr. 108-109). Stiltner said that Lester had talked to him about meeting MSHA
and about the Heaton case. (Tr. 108). Lester also told Stiltner that Jackson was the person he
observed giving advance notice. (Tr. 108). At first Stiltner thought Lester was joking, but the
second time he knew Lester was serious. (Tr. 108-109). It was at this time that Stiltner said that
10

At their first meeting, Gilbert came as well because he knew Lester and had a rapport
with him. (Tr. 103). Gilbert met Lester during the Heaton 105(c) investigation on February 12,
2013. (Tr. 103-104). At that earlier meeting, there may have been some talk of advance notice,
but Smith does not remember what Gilbert told him; the purpose was the 105(c) investigation.
(Tr. 104).

35 FMSHRC Page 1925

Lester threatened people. (Tr. 108). Stiltner told Smith he reported the alleged threats on
Monday evening. (Tr. 109). Smith conceded that Stiltner said that Lester told him he was going
to bring a gun and leave the people lying on the floor and not care. (Tr. 124).
Smith interviewed Helbert and she said that Patrick e-mailed her on Monday evening at
approximately 5:00 p.m. and asked her to investigate the threats. (Tr. 109-110). Helbert said
she went to work at 6:00 a.m. on the 23rd, and talked to Stiltner before he went underground.
(Tr. 110). She also said she spoke with Jessee and Jackson and, later in the day, to a rank-andfile miner, Reynolds. (Tr. 110). Reynolds told Helbert that Lester talked about the Heaton case
but had not threatened him and that he had not heard him threaten anyone else. (Tr. 110-111).
Reynolds told Helbert that Lester was talking about Heaton’s large settlement. (Tr. 111).
Reynolds also told Heaton that Lester had talked to MSHA. (Tr. 111). Neither Jessee nor
Jackson told Helbert that they received any direct threats; just that Stiltner told them that Lester
had threatened them. (Tr. 111-112). Helbert said Stiltner was the only person who heard the
threats, there were no other witnesses. (Tr. 112). Helbert said she did not speak to Lester about
the threats. (Tr. 112).
Smith interviewed Patrick who said he had first learned about the threats when Jackson
called him on Monday evening. (Tr. 113). According to Patrick, Stiltner had told Jackson of the
alleged death threat on Monday and that Jackson had called Jessee, who then called Patrick. (Tr.
113-114). Patrick said he then called Helbert and told her to conduct an investigation. (Tr. 114).
Patrick never spoke to Stiltner or Lester directly. (Tr. 114). Later on Tuesday, Helbert and
Patrick met and she told him of her findings. (Tr. 115). Patrick said he fired the Lester because
he thought the charge was very serious in nature. (Tr. 124). Patrick said the firing was for the
death threat, not the MSHA investigation. (Tr. 124). He specifically denied firing for going to
MSHA. (Tr. 125). Smith does not know Patrick to be a liar and has only met him three times.
(Tr. 125).
Smith took notes during his interviews of Patrick, Stiltner, Helbert, and others. (Tr. 115).
Those notes are currently in the possession of Smith’s supervisor, Mr. Clay. (Tr. 115).
Smith looked at his signed affidavit. (Tr. 120). The words are his, but he did not
physically prepare the document. (Tr. 121). The document was prepared with information
Smith provided, but the Solicitor’s office completed the document it. (Tr. 121). Smith’s role is
simply to gather facts without regard to whether they are favorable to the government or the
Respondent. (Tr. 122-123). He provided those facts to the Secretary and the Secretary produced
the affidavit. (Tr. 123). Page 5, paragraph 3 of the affidavit says that the death threats were a
pretext, which Smith thinks means Respondent covered up the fact that they fired Lester for
protected activity. (Tr. 126-127). It appears Respondent used a pretext. (Tr. 127). Patrick
alone made the decision to fire Lester, but coming up with the pretext was collaborative. (Tr.
127-128). The evidence for that collaboration comes from the investigation he conducted,
including interviews. (Tr. 128).

35 FMSHRC Page 1926

On cross examination, Smith admitted that it is possible for a person to file a complaint
with MSHA that is unjustified. (Tr. 128). Smith did not see anything to substantiate that Lester
made a threat. (Tr. 129). Stiltner made a statement, but there was no other witness. (Tr. 129130). Sometimes there are no witnesses to a conversation, but Smith does not know if Stiltner
made the threats up out of whole cloth. (Tr. 130).
Lester told Smith that he had been passed over for a miner job for which he was
qualified. (Tr. 132). He did not say anyone in particular had passed him over; just management
had done so several times. (Tr. 132-133). Lester said he told Stiltner he was tired of the way the
company treated him and that they were passing him over because he cooperated with MSHA.
(Tr. 133).
Testimony of Ron Patrick
Ron Patrick lives in Abingdon and works as President of Knox Creek, a position he has
held since January 2013. (Tr. 134-135). Before that he was a manager of operations, but the
change in position was mostly just a title change. (Tr. 135). Patrick has been a superintendent
or supervisor in the coal industry for over thirty years. (Tr. 135). He worked for Pittston Coal
and then Alpha. (Tr. 135). They are both large, publicly-traded companies. (Tr. 135). Patrick
is aware that miners have the right to make safety complaints to the government without
repercussions. (Tr. 136). He has never been accused before of violating that right. (Tr. 136).
The day before the discharge, Jessee and Patrick were at a regional safety meeting. (Tr.
138). That night, Jessee called Patrick and told him about the threats. (Tr. 139). So he took the
information to Helbert, the HR person, and asked her to investigate. (Tr. 139-140). Helbert
investigated for Patrick. (Tr. 140). Stiltner told Helbert that Lester said that if he came to the
mine and shot Jessee or Jackson it would not bother him. (Tr. 140). Helbert passed this
information along to Patrick. (Tr. 140).
On April 23, 2013 Patrick decided to fire Lester. (Tr. 136). He had the final authority.
(Tr. 136). He spoke with the legal department and his boss. (Tr. 136). This was not to get
permission, but to let them know what was happening. (Tr. 136). Lester was fired for making
threats against upper management. (Tr. 136). He had no reason to doubt the report or to believe
Stiltner made up the threats. (Tr. 137). But he had not spoken directly to Stiltner or Lester. (Tr.
144-145). All of his information came from Jessee and Helbert’s interview with Stiltner. (Tr.
145). Helbert did not interview Lester as part of her investigation. (Tr. 145-146). He did not
expect someone who had threatened to kill two people to admit it to the company president and
saw no reason for an interview. (Tr. 148).
Patrick did not know that Lester was meeting with MSHA. (Tr. 137). Helbert says she
told him on the day of the discharge that Lester was meeting with MSHA but he did not know
until that morning. (Tr. 137, 140). He does not recall getting that information, but Helbert says
she told him. (Tr. 137, 140). Whether he knew it or not, Lester’s interaction with MSHA was
not considered in the decision to discharge. (Tr. 138, 140). Even if he knew, he would have

35 FMSHRC Page 1927

fired him anyway because of the death threats. (Tr. 138). Respondent has a policy in the manual
issued to every employee that states there is a zero tolerance policy for threats in the workplace.
(Tr. 138). Patrick heard the testimony that Lester said he was fired in connection to the Heaton
case and that Patrick shrugged his shoulders, but Patrick said this was not true. (Tr. 142). Lester
asked if it was related to the Heaton matter and Patrick said absolutely not. (Tr. 142).
When Lester was fired, Patrick decided to have a security guard, Lynn Blevins, present
because Lester had threatened to kill two members of upper management. (Tr. 141). Blevins is
an employee of the company and there for personal physical security. (Tr. 142). Patrick did not
report the threats to the police, Blevins did. (Tr. 149-150). Patrick does not know if the police
took a statement from Stiltner and Stiltner never handed in any written documents to Patrick or
Helbert. (Tr. 150). Patrick learned of the threat on Monday night and then went to work a full
shift on Tuesday, however not at the mine. (Tr. 147-148).
Patrick is not aware of any advance notice at the mine since he took over. (Tr. 141). He
is personally committed to safety and does not approve of advance notice. (Tr. 141). He has
told all of his subordinates about his positions. (Tr. 141). Patrick has safety meetings with
miners called EIG meetings once a month. (Tr. 142). Hourly employees are encouraged to
come to the meetings. (Tr. 142-143). At those meetings they review observation cards and
safety concerns. (Tr. 143). Patrick has attended many at Tiller. (Tr. 143). There are also
Running Right cards available to make anonymous complaints, which are reviewed monthly.
(Tr. 143). Lester attended one of these meetings, but Patrick was not present and does not know
if he spoke. (Tr. 143). Patrick has an open door policy so that miners can talk to him about
safety issues. (Tr. 143-144). Lester has never taken advantage of that policy. (Tr. 144).
Patrick was not aware of the Washington Post article until this case. (Tr. 144).
Findings and conclusions
Protected Activity and Adverse Employment Action
The Mine Act contains safeguards for miners engaged in protected activity. Specifically,
§105(c)(1) states, in relevant part:
No person shall discharge or in any manner discriminate againstYor otherwise interfere
with the exercise of the statutory rights of any minerYin any coal or other mine subject to
this chapter because such minerYhas filed or made a complaint under or related to this
chapter, including a complaint notifying the operator or the operator's agentYof an
alleged danger or safety or health violation in a coal or other mine.
30 USC ' 815(c)(1). As shown previously, to support a temporary reinstatement there must be
protected activity with a connection, or nexus, to an adverse employment action. The initial
issue is whether Lester engaged in activity that triggered those protections.

35 FMSHRC Page 1928

Under the Act, protected activity includes filing or making a complaint of an alleged
danger, or safety or health violation, instituting any proceeding under the Act, testifying in any
such proceeding, or exercising any statutory right afforded by the Act. See 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). In this
matter it is uncontested that Lester met with MSHA employees Gilbert and Smith on at least
three occasions. (Tr. 30-35, 40, 49, 53-55, 68, 76-77, 105, 137, 140). During those meetings
Lester discussed his testimony in an MSHA proceeding (the discrimination claim of Heaton) and
also made a complaint about alleged dangers (advance notice and the other miner’s desire to
refuse unsafe work). (Tr. 30-35, 40, 49-50, 57, 67-68, 76-77, 105-106). It cannot be seriously
argued that meeting with MSHA to discuss safety concerns and MSHA proceedings is
unprotected. Such a discussion would be exactly the kind of dialogue that §105(c) seeks to
protect. Therefore, Lester’s claim that he was engaged in protected activity is not frivolous.
The next issue is whether Lester suffered an adverse action. According to the Act and
well-settled Commission precedent, suffering a discharge is an adverse employment action. 30
USC ' 815(c)(1); see also Moses v. Whitley Dev. Corp. 4 FMSHRC 1475, 1478 (Aug. 1982).
Again, it is uncontested that Lester was discharged from his position as a scoop operator. (Tr.
39, 107, 136). Therefore, Lester’s claim that he suffered an adverse employment action is not
frivolous.
Nexus between the protected activity and the alleged discrimination
Having concluded that Lester engaged in protected activity, the examination now turns to
whether that activity has a connection, or nexus, to the subsequent adverse action, namely the
April 23, 2013 termination. The Commission recognizes 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 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. Lester testified that he told his foreman, Stiltner, that
he met with representatives of MSHA to discuss the Heaton discrimination proceeding and the
issue of advance notice. (Tr. 31-32, 34-35, 40, 107-108). The conversations with Stiltner
occurred during the week before Lester was fired, with one conversation occurring on April 17,
2013. (Tr. 34, 40, 107-108). Lester also handed out a brochure in the mine with an MSHA

35 FMSHRC Page 1929

employee’s name and contact information on April 19, 2013. (Tr. 35). All of these events
occurred before the ultimate decision to fire Lester was made. Furthermore, Patrick testified that
Helbert said she had told him that Lester was meeting with MSHA on the morning of April 23.
(Tr. 137, 140). This occurred at approximately the same time he had decided fire Lester. (Tr.
137, 140). Thus, I find that Complainant and the Secretary have raised a non-frivolous issue as
to whether Respondent had knowledge of the protected activity when the decision was made to
fire Lester.
Coincidence in time between the protected activity and the adverse action
The Commission has accepted substantial gaps between the last protected activity and
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 at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523,
531 (Apr. 1991).
In the present matter, the time between the Lester’s final protected activity and the
termination was approximately three to four days. Lester testified that he met with Gilbert and
Smith on April 17, 2013 and discussed safety and then signed a statement regarding those safety
discussions on April 19, 2013. (Tr. 30-35, 40, 49, 53-55, 68, 76-77, 105, 137, 140). He was then
fired on April 23, 2013. (Tr. 39, 107, 136). This easily meets the Commission’s requirements.
Thus, I find that the time span between the protected activities and the adverse action is
sufficient to establish a nexus.
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).
As noted above, the time between Lester’s protected activity and his discharged was
between three and four days. In that time, Lester worked only two shifts. Furthermore, as noted
above, the Secretary has raised a non-frivolous issue as to whether Respondent had knowledge
of the protected activity. There was little time for Respondent to manifest additional animus
towards that protected activity. The possibility of animus is shown by the close proximity of the

35 FMSHRC Page 1930

termination. I find that this close connection between the possibly known protected activity and
the adverse employment is circumstantial evidence of animus.
There may also be a non-frivolous issue as to whether Respondent showed animus
toward earlier protected activity conducted by Lester. Specifically, Lester testified that he spoke
to the Washington Post about advance notice in the mine. (Tr. 62-65, 94). Lester’s pleadings
noted that a couple of weeks after that article ran, MSHA contacted Lester regarding that claim
and initiated a proceeding against Respondent. (Second Amended Charge of Discrimination at p.
5). Lester refused to testify, after allegedly being pressured by Respondent. Id. After the article
ran, Lester testified that he felt that Respondent kept a close eye on him and that members of
management, in particular Jackson, prevented him from getting promotions. (Tr. 44-46, 65).
The definition of protected activity includes situations where a miner has “caused to be instituted
any proceeding under or related to this chapter.” 30 USC ' 815(c)(1). While Lester may not
have intended to initiate a proceeding when he spoke to the reporter, a proceeding was instituted
and the Commission has consistently found that Congress intended section 105(c) to be broadly
construed to afford maximum protection for miners exercising their rights under the Act. See
Sec'y of Labor o/b/o Charles H. Dixon et. al. v. Pontiki Coal Corp., 19 FMSHRC 1009, 1017
(June 1997) (citing Swift v. Consolidation Coal Co., 16 FMSHRC 201, 212 (Feb. 1994) (“the
anti-discrimination section should be construed ‘expansively to assure that miners will not be
inhibited in any way in exercising any rights afforded by the legislation.”’)(quoting S. Rep. No.
181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, 94th Cong., 2d Sess., at 624 (1978).
The Secretary has raised a non-frivolous point as to whether Respondent’s increased scrutiny of
Lester and refusal to promote him following those proceedings show animus toward Lester’s
earlier protected activity. This could support an inference that the discharge at issue here was
the result of similar animus.
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). In this case, Lester was fired for allegedly threatening to kill members
of upper management. There is no evidence on record of any other employees punished less
severely for the same or similar alleged misconduct. Therefore there is no evidence of disparate
treatment. However, 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.
As has already been shown, there is sufficient evidence to conclude that this
discrimination claim was not frivolously brought as it relates to animus, knowledge, and
coincidence in time. Therefore, I find that the Secretary has established a nexus between
Lester=s protected activity and the Respondent=s subsequent adverse action.

35 FMSHRC Page 1931

Conclusion
In concluding that Lester’s complaint herein was not frivolously brought, I give weight to
the evidence of record that he met with MSHA representatives. I also conclude that there were
non-frivolous issues as to whether Respondent was aware of Lester’s actions, that Respondent
showed animus toward Lester=s alleged protected activities, and that there was a close
connection in time between his alleged protected activity and his April 23, 2013 discharge.
Respondent asserts that its discharge of Respondent was based on his unprotected
activities, specifically threatening to kill members of upper management. I find that
Respondent=s evidence on this record is not sufficient to demonstrate that Lester=s complaint of
discrimination was frivolously brought. To the contrary, since the allegations of discrimination
have not been shown to be lacking in merit, I find they are not frivolous.11
11

At this point I would like to briefly note that there are several issues that were raised at
the hearing that were not addressed in my “findings and conclusions.” Similar to Judge Gill’s
decision in Sec’y of Labor on behalf of Kenneth R. Wilder v. Private Investigation and Counter
Intelligence Services, Inc. and Bledsoe Coal Corp., 33 FMSHRC 1667, n. 5 (ALJ) (July 2011),
and Judge Andrew’s decision Sec’y of Labor on behalf of Brad Houston v. Highland Mining
Company, LLC, 2013 WL 2286139, n. 8 (ALJ) (April 29, 2013), I find the following is a list of
ancillary facts broached at the hearing which may be relevant for a trial on the merits, but are not
relevant to the limited temporary reinstatement hearing:
1. Conflicting testimony regarding Lester’s alleged threat to murder members of
upper management;
2. The claim that Lester was “shaking” in anger or, in general, had a temper;
3. Whether Lester has a gun;
4. Lester’s knowledge about Stiltner’s home;
5. Lester’s acquaintance with Stiltner’s wife;
6. Lester’s personal financial situation;
7. Lester’s alleged conversation with Heaton about settlement amounts;
8. Lester’s relative skill as a scoop operator or a miner operator;
9. The location of Lester’s statement;
10. Whether things got better at the mine after Alpha took over;
11. The specific contents of Lester’s conversations with Gilbert and Smith;
12. The content and location of Smith’s notes;
13. Anything specifically related to the Heaton case or the amount of the
settlement in that case;
14. Whether, in the words of Respondent’s counsel, Patrick is a “liar,” and his
general credibility.
None of these pieces of evidence speak to whether this complaint was frivolously brought
or deal with the nexus between protected activity and adverse action. The Commission has been
(continued…)

35 FMSHRC Page 1932

ORDER
Based on the above findings, the Secretary=s Application for Temporary Reinstatement is
granted. Accordingly, Respondent is ORDERED to provide immediate reinstatement to Lester,
at the scoop operator’s rate of pay for the same number of hours worked, and with the same
benefits, as at the time of his discharge. If Respondent is concerned about the safety of miners or
members of upper management, I would be willing to consider an agreement for economic
reinstatement of Lester.
/s/ William S. Steele
William S. Steele
Administrative Law Judge
Distribution: (Certified Mail)
Ann C. Webb, Esq., and Robert Wilson, Esq., U.S. Department of Labor, Office of the Solicitor,
1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247
Alexis Ronickher, Esq., and Abigail Cook-Mack Esq., Katz, Marshall & Banks, LLP, 1718
Connecticut Ave., N.W., 6th Floor, Washington, DC 20009
Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212

/tjb

11

(…continued)
clear that this review is limited to review of these issues. Therefore these issues are
beyond the scope of this decision.

35 FMSHRC Page 1933

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Ave., N.W., Suite 520-N
WASHINGTON, DC 20004-1710
TELEPHONE: (202) 434-9958 / Fax: (202) 434-9949

June 28, 2013
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),1
Petitioner,
v.
TRIVETTE TRUCKING,
Respondent.

:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. KENT 2011-1223
A.C. No. 15-17360-248538 Q080

Mine: PE Southern Pike County

DECISION
Appearances: Jennifer Booth Thomas, Esq., U.S. Department of Labor, Office of the
Solicitor, Nashville, TN
For the Petitioner
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, Lexington, KY
For the Respondent
Before: Judge Tureck
This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”),
against Trivette Trucking (“Respondent”), pursuant to Sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§815 and 820 (“ Mine Act”). The Secretary assessed
penalties against Respondent totaling $140,000 for two alleged violations of mandatory safety
standards at Premier Elkhorn Coal Company’s (“PE”) PE Southern Pike County Mine (“Mine”).
The Secretary contends that each of these violations was significant and substantial, involved
high negligence, and was an unwarrantable failure to comply with mandatory safety standards.
Respondent challenges both the occurrence of the violations and its alleged negligence.
On January 22, 2013, I issued a decision in Premier Elkhorn Coal Co., KENT 2011-827.
Trivette was a trucking contractor for PE, hauling coal from the coal pit to the processing plant.
KENT 2011-827 (“PE case”) concerned a fatal accident to Steve Johnson, one of Trivette’s
employees, who was hauling coal at the Mine. MSHA issued two citations against PE, alleging
Hilda L. Solis resigned as Secretary of Labor on January 22, 2013. Deputy Secretary
Seth D. Harris is the Acting Secretary of Labor.
1

35 FMSHRC Page 1934

in one that the truck was overloaded, and in the other that its brakes were defective. At the same
time the citations against PE were issued, MSHA issued substantively identical citations to
Trivette.
My decision in the PE case, which followed a two day hearing in Pikeville, Kentucky on
December 14 and 15, 2011, and the submission of post-hearing briefs by the parties, vacated the
citations against PE and dismissed the case. The Secretary filed a petition for review which was
accepted by the Commission on February 17, 2013. KENT 2011-1223 initially was assigned to
Judge Bullock, who scheduled a hearing for February 26-27, 2013. Since I had just issued a
decision regarding the same accident, it was decided to reassign this case to me. Accordingly,
Judge Bullock canceled the hearing, and the case was transferred to me on February 13th.
Following a conference with counsel, it was agreed that this case would be decided on
cross-motions for summary decision, with reliance on the record in the PE case. The parties
filed joint stipulations and cross-motions for summary decision.2 But in reality, this is not a
summary proceeding. It actually is a litigated case on a stipulated record. That record consists
primarily of the transcript and exhibits from the PE case, copies of which I have included in the
record in this case. In addition, the parties submitted a list of 19 stipulations, which I have
marked as Joint Exhibit 2 and admit into evidence.3 Finally, the Secretary enclosed many
documents with the motion for summary decision. Most of these are in the record of the PE
case, and there is no reason to have duplicate exhibits in this record. Those that are not, and
which should be a part of this record, are the orders issued against Trivette, which were marked
as GTX 4 (Order 8230314) and GTX 5 (Order 8230315). Also, the Secretary submitted a copy
of his Petition for Discretionary Review in the PE case (GTX 3), and a copy of his brief to me in
the PE case (GTX 13). Since briefs are not evidence, they will not be admitted into evidence in
this case. However, they will be retained in the file as any brief would to illustrate the

The Memorandum of Law in Support of Secretary’s Motion for Summary Decision
contains an embarrassing number of factual errors. On page 2 alone, the Secretary incorrectly
states that Johnson’s truck was the sixth truck loaded on the morning of December 12, 2009;
that the truck “veered left onto the berm”;
2

that Transcript pages 150, 205-06, 217 and 228 contain testimony that Johnson’s truck
was traveling down “a ‘very steep’ 17 percent grade”; and that Transcript pages 149 and 179
contain testimony that Johnson drove along a state highway before turning onto a private haul
road on Premier property. Most troubling is the statement that Johnson’s truck veered left onto
the berm. The direction the truck traveled before it crashed into the berm is a key factor in both
this case and the PE case, and the record in the PE case repeatedly and incontrovertibly contains
testimony and other evidence that Johnson’s truck drove perfectly straight into the berm.
3

Citations to the record will be abbreviated as follows: JX – Joint Exhibit; GX –
Government’s Exhibit from KENT 2011-827; RX – Respondent’s Exhibit from KENT 2011827; TR – Hearing Transcript from KENT 2011-827; GTX – Government” Exhibit filed with
KENT 2011-1223.

35 FMSHRC Page 1935

Secretary’s position in these matters. Finally, the Secretary submitted several exhibits which I
had excluded from evidence in the PE case. They will be discussed infra.
Findings of Fact and Conclusions of Law
The parties have stipulated the following :
1.
On December 12, 2009, a fatal accident occurred at the PE Southern Pike County
Mine, Mine ID No. 15-17360.
2.
Just prior to the accident, the deceased, Steve Johnson, was operating Truck No.
P419. Truck No. P419 is a 2006 International, VIN No. 1HTXHAPTX63J233337.
3.
At the time of the accident, Steve Johnson was an employee of Trivette Trucking.
Mr. Johnson worked as the chief mechanic at Trivette Trucking. Mr. Johnson had approximately
thirty (30) years experience as a truck driver and truck mechanic. Trivette Trucking is a
contractor for Premier Elkhorn Coal Company.
loaded.

4.

On the morning of December 12, 2009, Mr. Johnson's truck was the fifth truck

5.
After being loaded, on the morning of December 12, 2009, Mr. Johnson exited the
coal pit and drove to a location on the haul road where another truck driver, Carl Collier, was
located. Mr. Johnson parked the truck in the haul road and Mr. Collier helped him look at the
steering system. Neither Mr. Johnson nor Mr. Collier detected any leaks in the steering system.
Mr. Collier got into the operator's cab and turned the steering. No leaks were detected and the
pump reservoir was full of fluid. Mr. Johnson then proceeded to drive the truck on the haul road.
6.
The sixth truck to be loaded on the morning of December 12, 2009 was driven by
Tim Bentley. While descending a section of the haul road, Mr. Bentley observed the truck driven
by Mr. Johnson overturned in the roadway. Mr. Bentley stopped and parked his truck on the haul
road above the accident site and walked down to the scene of the accident. There were no
eyewitnesses to the accident.
7.
The cab of the truck involved in the accident was not significantly damaged. The
doors functioned properly and all the cab glass was intact. A seat belt was provided and was
operative when tested.
8.
Just prior to the accident, Mr. Johnson attempted to jump from the cab of the
truck while it was in motion. He was struck by the left rear tandems, resulting in fatal injuries.
9.
MSHA interviewed drivers from Trivette Trucking after the accident. The drivers
stated during the interviews that pre-operative examinations were conducted daily and that
deficiencies were corrected prior to using the trucks.

35 FMSHRC Page 1936

10.

The service brakes on Mr. Johnson’s truck were defective.

11.
The broken worm gear in the steering gear box was caused by the accident, rather
than having caused the accident.
12. On the morning of the accident, MSHA received a hazardous condition complaint
about the general condition of Trivette Trucking fleet of trucks.
13.

Trivette Trucking is a contractor for Premier Elkhorn Coal Company.

14.

Trivette Trucking’s operations affect interstate commerce.

15.
Premier Elkhorn Coal Company contracted Trivette Trucking to haul coal at PE
Southern Pike County [Mine]. PE Southern Pike County Mine is a "mine" as that term is
defined in Section 3(h) of the Mine Act, 30 U.S.C. § 802(h).
16.
Copies of the violations at issue in this proceeding were served on Trivette
Trucking by an authorized representative of the Secretary.
17.

Trivette Trucking timely contested the violations.

18.
Trivette Trucking is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and the presiding Administrative Law Judge has the authority to
hear this case and issue a decision regarding this case.
19.
business.

The proposed penalties will not affect Trivette Trucking’s ability to remain in

Trivette Trucking is located in Virgie, Kentucky. It is an independent contractor
providing coal hauling services to PE and other coal companies. The PE Southern Pike County
Mine is located in Myra, Kentucky, and is a surface coal mine. TR 24. Coal from the coal pit was
hauled by contractors, including Respondent, to the preparation plant for processing, but only on
Saturdays. TR 24-26. The preparation plant was located about six to seven miles from the coal
pit. TR 27. Steve Johnson was the Chief Mechanic for Respondent (TR 90), and as part of his
duties for Respondent he also drove a coal truck.
Early on the morning of Saturday, December 12, 2009, Johnson drove a red 2006
International Paystar coal truck, number P419, from Respondent’s garage to the Mine. TR 9091. The truck had three axles, with tandem wheels on the two rear axles. Johnson was the only
one of the coal truck drivers that morning who drove an International coal truck at the Mine (TR
123-24); the others drove Mack trucks. TR 75-76. At the Mine, Johnson’s truck was loaded with
coal by Bobby Warf, who at the time was a front-end loader operator for PE (TR 124). After his
truck was loaded with coal, Johnson, over the CB radio, stated that he was having trouble with
his truck’s power steering. TR 110-12; 139-40. Johnson pulled his truck over, and he and

35 FMSHRC Page 1937

another coal truck driver, Carl Collier, then checked out the truck and did not find any leaks in
the steering system. JX 2, at ¶5; TR 105; GX 4, at 2-3. In his conversation over the CB radio,
Johnson did not report a problem with the truck’s brakes. TR 140. Johnson then proceeded to
drive down the Mine’s haul road on the way to the preparation plant. It was still dark at the time.
TR 34.
The haul road was a gravel road with berms on both sides. TR 28. On the right, there
was a hill behind the berm; on the left, the road dropped off. The road had a steep downward
grade of 15 to 18 percent for about 1300 feet. About 30 to 40 yards after the site of the crash the
haul road crosses an intersection, at which point it becomes level or very slightly upgrade for
about two miles. TR 318, 378, 419. According to PE’s Manager of Safety and Environmental
Affairs, David Lee Wilder, coal trucks generally traveled very slowly – not more than 10 miles
per hour - on the haul road. TR 150. At some point Johnson’s truck left the normal travelway and
started heading directly toward the left berm. Johnson jumped from the truck and unfortunately
“he rolled underneath the back tandems on the left side and was dragged all the way down . . .
the hillside. . . . At some point the truck flipped over” onto the driver’s side. TR 44. Johnson
was killed.
MSHA mine inspector and accident investigator Debra Howell was the lead investigator
of the accident that killed Johnson on December 12, 2009, and she testified at the PE hearing.
She was notified of the accident at home by the MSHA District Manager at 8:30 that morning,
and arrived at the Mine sometime between 11:00 and 11:30 a.m. Also at the mine were Hank
Bellamy, the head of accident investigations for MSHA for the District; Greg Hall, an engineer;
State mine inspectors; David Wilder; and several miners TR 30, 33, 35. Apparently, no
representative from Respondent was present. Howell talked to some of the miners, including the
driver of the truck which followed Johnson’s and who discovered the accident, and found out
that there were no witnesses to the accident. TR 33. She then went to the scene of the accident.
She saw that there were no skid marks, which led her to conclude that “there were no brakes in
operation.” TR 45; see also TR 33. She also concluded that the truck was overloaded.
MSHA issued two orders against Respondent following its investigation of the accident.
Order No. 8230314 alleges that:
[T]he driver of the . . . truck . . . failed to maintain control of the
loaded truck as it was descending the mine haul road. Overloading of
the truck was a factor in the driver losing control. The estimated
weight of the loaded truck was 37,600 pounds over the maximum
GVWR [gross vehicle weight rating] recommended by the
manufacturer. Management was aware that the trucks were routinely
overloaded and did nothing to stop this practice.
The order states that the safety standard violated was 30 C.F.R. §77.1607(b), which
states: “Mobile equipment operators shall have full control of the equipment while it is in
motion.” It adds that the violation resulted in a fatality, was significant and substantial (“S&S”),

35 FMSHRC Page 1938

and was high negligence. Finally, the violation was alleged to have been an unwarrantable
failure to comply with a mandatory safety standard. A $70,000 penalty was assessed for the
violation.
Respondent contends that the Secretary failed to prove that the truck was overloaded.
Further, Respondent contends that even if the Secretary proved that the truck was carrying a load
in excess of the GVWR, the Secretary has not proven that the weight of the truck’s load was
hazardous or contributed to the accident.
Order No. 8230315 alleges that:
The 2006 International Paystar . . . haul truck . . . was not equipped
with adequate brakes. [Specifically],
1. Both the left and right side brake drums on the steering axle had
deposits of dried grease on the drum lining friction surface. These
conditions compromise the braking capacity.
2. The brake on the right rear tandem axle did not function when tested.
3. Wear on the brake drums in excess of maximum allowable diameter
was found on the right front tandem and the [sic] both the left and
right side of the rear tandems.
4. Bluing was found on the right side drum on the front tandem and the
left side drum on the rear axle. Bluing indicates excessive heat.
These conditions compromise the braking capacity.
This order states that the safety standard violated is 30 C.F.R. §77.1605(b), which
requires mobile equipment to be equipped with “adequate brakes”. Again, the citation notes that
a fatality had already occurred, that the violation was S&S, and that it resulted from high
negligence. Finally, it was alleged to have been an unwarrantable failure. MSHA also assessed a
$70,000 penalty for this violation.
Respondent contends that the Secretary has failed to prove that the truck’s brakes, though
defective, were inadequate to stop the truck. In addition, Respondent alleges that it was not
negligent even if the brakes were inadequate.
Order 8230314
Inspector Howell based her conclusion that Johnson’s truck was overloaded on her
assumptions that the loaded truck weighed more than its gross vehicle weight rating and that a
truck is overloaded if it carries a load in excess of the GVWR. TR 47-48. In fact, Order 8230314
is premised on MSHA’s contention that Johnson lost control of his truck because it was
overloaded, i.e., hauling more weight than it could carry safely, and the Secretary’s expert
witness, Ronald Medina, concluded that Johnson’s truck was overloaded solely because its load
exceeded the manufacturer’s GVWR. GX 25, at 8; see also TR 224-26.

35 FMSHRC Page 1939

But the Secretary has failed to prove that Johnson’s truck was overloaded, i.e., that it was
carrying a load that was too heavy for the safe operation of the truck. There are several
independent grounds, any one of which would be sufficient by itself, to find that the Secretary
has failed to prove this key element of the case.
First, the Secretary has failed to prove how much the loaded truck weighed prior to the
crash. It is undisputed that Johnson’s coal truck was not weighed after it was loaded with coal,
for at the Mine the loaded coal trucks are weighed at the preparation plant. Nor was the coal
weighed while it was being loaded into the truck, or after the crash. TR 128, 135-36, 331. At the
hearing in the PE case, the Secretary attempted to introduce evidence regarding the weight of the
four trucks loaded before Johnson’s on the morning of December 12, 2009, but I excluded this
evidence. TR 70-71. The Secretary has also submitted this evidence here, as Proposed Exhibit
GTX 6 to its motion for summary decision. I see no reason to change my ruling. For as I stated
in the PE decision, the other four trucks were Mack trucks, not International trucks as Johnson’s
was. There is no evidence that these trucks had the same GVWR as Johnson’s International
truck or the same size bed as Johnson’s (e.g., TR 76-77). Nor was any evidence presented
regarding whether these Mack trucks had been modified to carry heavier loads. Even if the Mack
trucks loaded before Johnson’s International truck carried loads of about 120,000 pounds, it
would not prove that Johnson’s truck had a similar load. For these reasons, even if I had
admitted this document into evidence, I would not have given it any weight.
At the PE hearing I also excluded evidence of the weight of loads Truck P419 hauled on
prior dates, and the Secretary has re-submitted this evidence in this proceeding as Proposed
Exhibits GTX 7-10 to his motion. I reiterate my ruling in the PE case that the Secretary failed to
establish an adequate foundation for these exhibits, and accordingly they will not be considered
here as evidence of the weight that truck was hauling on December 12, 2009.4 Again, had I
These documents show loads hauled by Truck P419 on November 21, November 25,
December 5 and December 11, 2009. Counsel for the Secretary could not state whether these
were the complete records of the loads the truck hauled during the three-week period covered by
these documents. See TR 61-68. Had these been the complete records for this truck, these
exhibits would have been probative, and I would have admitted them into evidence. But absent
such a foundation, it cannot be determined whether the truck’s records which were produced at
the PE hearing reflect the usual loads Truck P419 hauled or were atypically heavy loads.
Further, it appears that only two of the 17 loads reflected in these documents were hauled at the
PE Southern Pike County Mine, which could be significant. (The mine is listed as Seam 112 on
Proposed Exhibit GTX 6. Only Proposed Exhibit GTX 8 reflects haulage at Seam 112.)
4

It is interesting that despite having had these deficiencies in its evidence pointed out
through my rulings in the PE case, the Secretary made no effort in this case to lay appropriate
foundations for this evidence. If in fact the evidence I excluded could actually prove the facts the
Secretary contends it does, that would not have been difficult. For example, if the Secretary
(continued...)

35 FMSHRC Page 1940

admitted these documents into evidence, I would not have given them any weight. Without
credible evidence of the truck’s weight at the time of the crash, it is impossible for the Secretary
to prove that the truck was overloaded.
A second independent reason to find that the Secretary failed to prove that Johnson’s
truck was overloaded is that, even assuming the Secretary had proven that Johnson’s truck
carried a load which exceeded the manufacturer’s GVWR, there is no proof that exceeding the
manufacturer’s GVWR is per se hazardous. The Secretary has not pointed to a definition of
“overloaded” in the Mine Act, the safety standards promulgated under the Mine Act, or any
other Federal or State statute or regulation; nor has the Secretary shown that the GVWR has been
adopted as the weight limit for a truck’s safe operation under any such statute or regulation. Yet
it is clear from the citation and the evidence presented by the Secretary that in the context of this
case she is defining “overloaded” as a load in excess of the manufacturer’s GVWR. There is no
basis in this record to support the Secretary’s reliance on the GVWR as a maximum safe load for
a truck to carry. Since MSHA has not formally adopted the GVWR as a standard for determining
a truck’s safe hauling capacity, nor even promulgated any regulations governing truck load
weights (e.g., TR 83-84), the Secretary’s bald-faced assertion that a truck carrying a load in
excess of the GVWR is overloaded and therefore hazardous clearly is insufficient to establish
that Johnson’s truck was overloaded.
In fact, the record contradicts such a conclusion. For one thing, the evidence establishes
that Kentucky permits trucks to operate in excess of the manufacturer’s GVWR if a fee is paid
(TR 87), which indicates that Kentucky does not believe the GVWR is the limit of the weight
trucks can haul safely. Rather, the weight limits imposed on trucks by Kentucky relate to the
wear trucks cause to the roads, not to how much weight trucks can carry safely. See, e.g., Ky.
Rev. Stat. 189.222(1)(2009). Moreover, if the GVWR is intended to be a per se limit by the
manufacturer on the load a truck may carry safely, and is a reliable measure of that limit, it is
reasonable to assume that MSHA would have promulgated a safety standard prohibiting the
operation of mining trucks hauling loads in excess of the GVWR. That it has not done so, but
has promulgated hundreds of pages of regulations governing mine safety to the nth degree
including numerous standards governing vehicular safety, speaks volumes regarding the use of
the GVWR as a safety standard. In addition, modifications to a truck subsequent to its
manufacture can substantially increase the loads it is capable of hauling. Things that can cause a
truck’s capacity to increase include relatively routine items as changing a truck’s tires and
springs, and major modifications such as replacing an axle. TR 490-91, 496.

(...continued)
believes the records proffered for Truck P419 are the complete records for that truck
during the period they cover, an appropriate Trivette employee could have been deposed on that
point, or a request to admit the completeness of the records could have been served on
Respondent. That the Secretary appears to be resting on his hope that the Commission will
reverse my evidentiary rulings rather than correcting the deficiencies in the evidence, leads me
to believe that my conclusions regarding the probative value of the excluded exhibits are
justified.
4

35 FMSHRC Page 1941

Accordingly, there is no basis to find that it is inherently unsafe for a truck to haul a load
in excess of the manufacturer’s GVWR.
There is a third independent factor mandating a finding that the Secretary failed to prove
that Johnson’s truck was overloaded. Even accepting the Secretary’s contention that Johnson’s
truck was hauling a load of around 120,000 pounds at the time of the crash, the evidence
establishes that the weight of the load was not hazardous. Both parties’ expert witnesses in the
PE case testified that 120,000 pounds was not an unsafe load for Johnson’s coal truck to haul.
Ronald Medina is a mechanical engineer employed by MSHA. TR 247. He testified as an
expert witness for the Secretary regarding braking and steering systems.5 Medina testified that
Johnson’s truck was capable of hauling a load of 120,000 pounds since he had hauled loads of
that weight in that truck previously. TR 313. PE’s expert, Steve Rasnick, a highly experienced
mechanic, also testified that the truck would have been capable of hauling that heavy a load. TR
522. As Rasnick put it, “It’s a coal truck. It was built to haul. . . . [T]hat truck was well capable
of handling it [a 120,000 pound load].” Id.6 Further, Respondent and PE had excellent records
regarding safety in 2009, reporting no accidents of any kind resulting in lost work days due to
injury that year prior to the one that killed Johnson. TR 102-05. Finally, there does not appear to
have been any incentive for PE to load Respondent’s trucks with more coal than they could haul
safely. PE paid Respondent by the amount of coal hauled. TR 187. Therefore, it does not
appear that PE would profit by overloading Respondent’s trucks. It would have cost PE the
same whether trucks hauled 82,600 or 120,000 pound loads to get the coal from the Mine to the
preparation plant. I find that the evidence fails to prove that Johnson’s truck was carrying a load
that was too heavy for it to haul safely.
Accordingly, the Secretary has failed to prove that the truck which Johnson was driving
on the morning of December 12, 2009, was overloaded, i.e., hauling a load that was heavier than
it could safely handle.
In my decision in the PE case, I held that since the crux of the Secretary’s case regarding
this violation was that Johnson lost control of his truck because it was overloaded, and the
evidence did not support this contention, the citation had to be dismissed. I cited Judge Gill’s
decision in Clintwood Elkhorn Mining Co. v. Secretary of Labor, 32 FMSHRC 1880 (ALJ
2010), in which Judge Gill similarly concluded that the GVWR cannot be used to determine that
a truck is overloaded. Accordingly, he dismissed an order alleging a violation of §77.1607(b)
Medina's expertise regarding these subjects – particularly steering systems – was
unimpressive. It is unclear why the Secretary chose him to be its expert witness in this case.
Respondent's expert, a truck mechanic with only a high school diploma, knew much more about
both of these systems than Medina despite Medina's degree in mechanical engineering.
5

Had I admitted into evidence the weight records for coal haul trucks that the
Secretary proffered in the PE case, and here as Proposed Exhibits GTX 6-10, they would
have shown that the trucks routinely carried loads of about 120,000 pounds without
incident.
6

35 FMSHRC Page 1942

because “it is clear that the gravamen of the investigation and subsequent actions is the alleged
overloading of trucks.” Id. at 1890 n.8. The Secretary petitioned for review of Judge Gill’s
decision, and the Commission granted the petition. Significantly, the Secretary did not appeal
Judge Gill’s holding that the Secretary failed to prove that the truck was overloaded. In regard
to the alleged violation of §77.1607(b), the Secretary’s appeal was limited to whether, despite
failing to prove overloading, a violation of that standard nevertheless was established. In a
decision issued on February 25, 2013, subsequent to my decision in the PE case, the Commission
reversed Judge Gill’s holding,7 stating:
We conclude that the judge erred in his interpretation of 30 C.F.R.
§ 77.1607(b). In order to establish a violation of section
77.1607(b), the Secretary must only demonstrate, by a
preponderance of the evidence, that the operator failed to maintain
full control of a piece of equipment while it was in motion.
Nothing in the language of the standard requires the Secretary to
prove a causal or contributing factor for the loss of control, as
suggested by the judge.
Clintwood Elkhorn Mining Co., KENT 2011-40-R et al., slip op. at 6 (Feb. 25, 2013).8 It was
not controverted in Judge Gill’s case that the driver had failed to 1maintain control of his truck,
nor was it controverted here that Johnson failed to maintain control of his truck. Accordingly, I
hold that the Secretary has proven a violation of §77.1607(b).
Since a violation has been proven, I must address the gravity of the
violation and Respondent’s degree of negligence, and assess an appropriate
penalty. The first two parts of the determination of gravity are simple, since the
injury occurred and it was a fatality. Also, there does not seem to be a dispute
over the number of persons affected, which is one – the driver.
That leads to consideration of whether the violation was significant and
substantial (“S&S”), as is alleged by the Secretary. Respondent contends that the
violation was not S&S.

Unlike the Secretary’s motion for summary decision, Respondent’s motion, written over
three months after the Commission’s decision in Clintwood Elkhorn, fails to point out that Judge
Gill’s decision was reversed.
7

The Commission has granted the Secretary’s petition for discretionary review in the PE
case, and it is likely that my holding that the Secretary failed to prove a violation of §77.1607(b)
will be reversed. See Direction for Review, Premier Elkhorn Coal Co., KENT 2011-827 (Feb.
27, 2013).
8

35 FMSHRC Page 1943

Thirty U.S.C. § 814(d)(1) provides:
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a
violation of any mandatory health or safety standard, and if he
also finds that, while the conditions created by such violation do
not cause imminent danger, such violation is of a nature as could
significantly and substantially contribute to the cause and effect of
a coal or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation given to
the operator under this [Act].
The Commission and several courts of appeals have agreed that four conditions
must be met to find that a violation is “significant and substantial”:
[T]he underlying violation of 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.
Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984); see also
Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir.1988);
Consolidation Coal Co. v. Federal Mine Safety and Health Review Comm'n, 824
F.2d 1071, 1075 (D.C.Cir.1987).
It would seem that any violation of §77.1607(b) would be S&S. For if a mobile
equipment operator loses control of the equipment, it would create a danger to safety with
a reasonable likelihood of a reasonably serious injury. This case is a prime example.
Johnson lost control of his truck, which ultimately caused it to crash into a berm and turn
over onto its side. Although Respondent argues that Johnson probably would not have been
killed, and speculates that he might not have suffered an injury at all, had he stayed in the
cab, it cannot seriously be argued that there was no reasonable likelihood of a reasonably
serious injury to the driver when a loaded, out of control coal truck turns over. Therefore,
I hold that the violation was S&S.
The next issue is negligence. The Secretary contends that Respondent was highly
negligent, and engaged in aggravated conduct constituting an unwarrantable failure to
comply with a safety standard, because “management was aware that the trucks were
routinely overloaded and did nothing to stop this practice.” GTX 4. Respondent argues that

35 FMSHRC Page 1944

it was not negligent because “[t]here was no proof of any causal factor that could or should
be attributed to Trivette Trucking as to why the driver of the truck lost control.”
Respondent’s Motion at 10. Since I found that the Secretary failed to prove that the truck
was overloaded, the Secretary’s contentions regarding Respondent’s negligence and
aggravated conduct must be rejected. Therefore, I conclude that Respondent was not
negligent, and did not engage in an unwarrantable failure to comply with a safety standard,
in regard to its violation of §77.1607(b).
Finally, the assessment of a penalty must be considered. The Secretary assessed a
penalty of $70,000 for this violation. The assessed penalty was premised on proof of high
negligence and an unwarrantable failure due to overloading of Johnson’s truck. Overloading
was the crux of this case regarding the violation of §77.1607(b). The Secretary has not
addressed the amount of a reasonable penalty in the absence of the truck being overloaded.
Section 110(i) of the Mine Act lists the factors to be considered in assessing a
penalty. These factors are:
the operator’s history of previous violations, the
appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the
effect on the operator’s ability to continue in business, the
gravity of the violation, and the demonstrated good faith of
the person charged in attempting to achieve rapid compliance
after notification of a violation.
First, there is no evidence that Respondent has ever been cited for a violation of §77.1607(b), let
alone that a violation of that standard has ever been proven. Second, since the parties stipulated that
the proposed penalties would not affect Respondent’s ability to remain in business, I find that any
penalty assessed for this violation which does not exceed $70,000 would not be inappropriate in
relation to Respondent’s size. Next, I have found that Respondent was not negligent, but the
violation resulted in a fatality and was S&S. The final factor appears inapplicable to the facts of this
case.
The key point regarding this order is that although the Secretary has proven a violation of
§77.1607(b), the Secretary has not shown that there was anything the Respondent should have done
that would have prevented the accident. As was pointed out above, the Secretary’s case was
premised on the allegation that Johnson lost control of his truck because it was overloaded, and the
$70,000 penalty was based on the allegation that Respondent was aware that its trucks were
routinely overloaded and did nothing about it. In failing to prove these contentions, the basis for the
Secretary’s special assessment no longer applies. However, since a fatality occurred and the
violation was S&S, I will assess a penalty of $1,000 for the violation of §77.1607(b).

35 FMSHRC Page 1945

Order 8230315
The parties have stipulated that the service brakes on Johnson’s truck were defective. Nevertheless,
Respondent contends that the truck’s brakes were adequate, and therefore it was not in violation of
§77.1605(b). Also at issue is the Secretary’s contention that these defective brakes contributed to
the accident which resulted in Johnson’s death.
Medina testified that the braking system on Johnson’s truck was thoroughly inspected as part of the
accident investigation. Medina testified that the brake drum on the right of the rear axle did not
function, and was in that condition at the time of the accident. TR 285-86. In addition, in his report
he stated that he found some dried grease on only the right front brake drum, but the left front brake
drum was dry. GX 25, at 7. However, he testified at the hearing that he found grease on the front
linings, which would have “greatly reduce[d] the braking capability . . . .” TR 287. This discrepancy
is not explained. He also found that the three rear brake drums they were able to inspect (one wheel
could not be removed from the truck) were all worn past the point where they should have been
replaced. TR 288-89; GX 25, at 9. Finally, he found bluing in some of the brake drums, which he
stated is symptomatic of the brake drums having gotten very hot at some point. TR 291-92.
However, he admitted that once brake drums return to their normal temperature, bluing is
insignificant. TR 295. He stated that all of these defects existed at the time of the accident. TR
295-96.
Medina believes that even if the truck was not overloaded, the condition of the brakes would have
created an unsafe situation. TR 322-23. He concluded that the accident occurred because the brake
defects caused the driver to lose control of the truck. TR 323-24.
However, Medina admitted that the accident could have been caused by other factors. For one thing,
it is possible that the driver missed a gear and accidentally shifted into neutral, which Medina
testified is easy to do (TR 321, 336-37). He stated that “I don’t have conclusive evidence of that.
Just suggest – the circumstances suggest it.” TR 342. If the truck was in neutral, the truck would
pick up speed on the downgrade and the Jake brake (see infra) would not operate. TR 319, 321.
Medina also posited that Johnson may have been driving too fast (TR 335-37, 403); and it is his
opinion that the truck was traveling too fast for the defective brakes to stop it. TR 336-37. He bases
this on how far Johnson’s truck slid after it hit the berm. TR 330, 335-36. But even if he is right that
the distance the truck slid after it hit the berm shows that it was traveling at excessive speed when
it crashed, Medina fails to take into account the obvious point that if the truck’s brakes were
defective, leading to the accident, Johnson’s truck doubtless would have been traveling overly fast
at the time it impacted the berm. That does not mean that the truck was going overly fast when
Johnson lost control of it. Further, I find it significant that neither the report prepared by the
accident inspector, Debra Howell (GX 4), nor Medina’s report, mention that the truck was being
driven at an excessive rate of speed at the time of the accident or that the speed at which the truck
was being driven caused the accident. There is no indication in the record of when or why Medina
changed his mind to conclude that speed had an impact on the accident. Accordingly, I give no
weight to Medina’s testimony that excessive speed played a role in causing the accident.

35 FMSHRC Page 1946

Medina also had a change of heart regarding the condition of the parking brake. His report does not
note any problems with the parking brake (see GX 25, at 8-9), a finding which was echoed by
Howell in her accident report. GX 4, at 5. Yet Medina testified at the hearing that 25% of the
parking brake system was not functional. Again, there is no explanation for this inconsistency.
PE’s expert, Rasnick, disagreed with Medina on several points. For one thing, he believes that the
amount of grease Medina found on the brake drum would not have rendered the brake unsafe. He
testified that brake drums have to be saturated with oil or grease before they become unsafe. TR
468-69. He also testified that the bluing found on the brake drums was of no significance. He said
that what matters is whether there are heat stress cracks inside the drums. Medina admitted there
were none. TR 289. Rasnick also stated that the bluing could have occurred months ago. TR 47071. Next, Rasnick disputed Medina’s allegation that excessive truck speed contributed to the
accident. He stated that Medina’s report (GX 25) indicates that the truck was in fourth gear, and in
that gear the truck could not have been going more than 14 miles per hour. TR 472; see also GX
25, at 2. But he is incorrect in saying that Medina’s report shows that the truck was in fourth gear,
as the transmission was found to be in neutral after the crash. GX 25, at 2. However, since Medina
pointed out that the gear may have been pushed into neutral as a result of the accident, it could have
been in fourth gear before the crash; and Medina concedes as much. TR 340. Regardless, the truck
was found to be in “low range and low split.” TR 340.
That Johnson’s truck was not traveling at an excessive rate of speed at the time it crashed is also the
opinion of PE’s safety manager, David Wilder. Contrary to Medina’s testimony, Wilder stated that
Johnson’s truck did not go very far once it struck the berm and turned over. TR 428-29. Further,
Wilder pointed out that the cab of the truck was undamaged, that even the glass and mirrors were
intact. TR 426. Based on these factors, he believes the truck was traveling no more than 10 miles
per hour when it crashed. TR 432.
Wilder believes that the accident was caused by a problem with the truck’s steering, not the brakes.
TR 430-31. He stated that he knew Johnson personally, and he “was one of the best drivers on the
property.” TR 432. He testified that Johnson should have been able to keep his truck in the road
even without any brakes if he could have turned the steering wheel the slightest amount. TR 430-31.
I find that the Secretary’s assertion that the accident resulted from defective brakes is questionable
at best. First, there are three different braking systems that Johnson could have employed to stop
or slow down the truck. The truck had six drum brakes, two on each axle. TR 267. These brakes
are activated when the driver steps on the brake pedal, which sends air pressure to the brake system.
These are the service brakes. Then there are spring brakes on the two rear axles, which do not rely
on air pressure and function as the parking brake. TR 268-69. Finally, the truck has an engine brake
– the Jake brake – which has the ability to slow the truck as long as the truck is in gear. TR 319.
Although the Secretary contends that the truck’s service brakes were defective, the evidence shows
that only one of the six drum brakes was too worn to have functioned. Rasnick testified that if only
one of the drum brakes was not functioning, the brakes on the other five wheels would have stopped
the truck. TR 522-23, 527-29. Further, no deficiencies were found in either the parking brake or the

35 FMSHRC Page 1947

Jake brake. GX 25, at 5, 8; GX 4, at 5. Significantly, the only brake drivers generally used on the
haul road was the Jake brake. TR 319, 344.
In addition, assuming that Johnson could not stop the truck because his brakes failed, why would
he not have attempted to turn the truck so it stayed on the road?
He was familiar with the haul
road, and had to know that it would very shortly level out, permitting him to eventually stop even
with seriously defective brakes. TR 419, 421. Yet the truck did not turn at all – it headed off the
normal travelway straight into the berm from 283 feet away. TR 424. There is no credible evidence
that the truck was traveling more than the usual rate of speed of not more than 10 miles per hour at
which the coal trucks generally went down the haul road prior to the time Johnson lost control of
the truck. But even if the truck was going more than 10 miles per hour – even if it was going much
more than 10 miles per hour – Johnson should have been able to at least start turning the truck to try
to keep it on the road. TR 430. Yet the truck did not deviate from the path it took directly into the
left berm. Also significant is that Johnson drove the truck from Trivette’s location to the Mine on
the morning of the accident. If his brakes were as defective as the Secretary alleges, it is hard to
believe that a mechanic of his experience would not have noticed that something was wrong with
them. But he stopped to check the steering after his truck was loaded, not the brakes.9
Further, it was discovered that several seals in the truck’s steering mechanism had been
installed backwards, which resulted in power steering fluid leakage. GX 25, at 3. The power
steering fluid was below the “add” line on the power steering dipstick. Id. Low power steering fluid
could have caused a reduction in the steering performance or “hard” steering, although by itself it
would not have caused the steering to fail. Id. at 4; GX 26, at 3. Nevertheless, that the seals were
installed backwards indicates that maintenance of the steering system was being performed
incorrectly, which could have caused the steering system to fail on December 12, 2009.
In her report of the accident investigation, Inspector Howell concedes that deficiencies in the
steering could have contributed to the accident. GX 4, at 7. The Secretary has not contended that
the alleged overloading affected the truck’s steering, only the truck’s capacity to stop. Yet under
the circumstances of this case, the most logical assumption is that the truck crashed due to a steering
problem. It is highly significant that just prior to the accident, Johnson was so concerned about his
truck’s steering that after the truck was loaded with coal he stopped the truck and, with another
driver, inspected the steering system as best they could under the circumstances. He did not report
any problems with the truck’s brakes. Within a very short time after Johnson resumed driving, the
truck crashed by going straight into the left side berm without deviating from its course. In regard
to the brakes, although problems were found, the brakes apparently had functioned properly earlier
that morning when Johnson drove the truck to the mine and immediately after it was loaded with
coal. Further, there is no evidence that the Jake brake, which Johnson most likely would have been
relying on to slow the truck at the time he lost control of it, was defective. Attributing the accident
9

In my decision in the PE case, I discussed the possibility that the broken worm
gear inside the steering box, which was discovered after the accident, may have caused
the crash. See KENT 2011-827, slip op. at 11. However, the parties in this case have
stipulated that the broken worm gear was caused by the accident.

35 FMSHRC Page 1948

to brake failure considering the low rate of speed at which the truck was likely traveling probably
would have required three separate braking systems to have failed simultaneously.
To state the salient facts in this case in their simplest, a highly experienced coal truck driver,
who is also the trucking company’s chief mechanic, complains about a problem with his truck’s
steering, and minutes later is killed in an accident where the truck travels perfectly straight out of
the normal travelway for 283 feet and crashes into a berm. Yet MSHA determined that the accident
was caused by deficient brakes in an overloaded truck, dismissing a problem with the steering as a
possible cause.
To give the Secretary his due, the cause of the accident in this case is far from
straightforward, and since the truck’s brakes were deficient it is possible that they played a role in
the accident. But even if the brakes were not working at all, that would not explain why Johnson
could not steer the truck away from the berm. Absent proof that the brakes would have been
incapable of slowing down the truck enough to permit Johnson to steer it, it is hard to ignore the
obvious – that Johnson could not steer the truck. Under these circumstances, attributing the accident
to defective brakes in an overloaded truck appears illogical.
Adding to the uncertainty, if only the brakes were not functioning, Johnson should have been
able to steer the truck so that it would not have crashed into the berm. But the truck did not turn at
all; it drove straight into the berm. On the other hand, if only the steering was not working, Johnson
should have been able to stop the truck before it reached the berm. The way this accident makes the
most sense is if both the steering and the brakes were not applied or stopped functioning
simultaneously. In regard to the former, something physically could have happened to Johnson just
prior to the crash which caused him to lose control of the vehicle. But there is no medical evidence
which addresses Johnson’s condition at the time of the crash,10 and that he jumped from the truck
shows that he was conscious just before the truck struck the berm. In regard to the brakes and
steering failing simultaneously, Rasnick proposed a scenario in which both the brakes and the
steering would have been rendered ineffective. He believes that Johnson’s truck went into what is
called limp mode or idle mode. TR 454.
[I]f it’s [the truck] in idle mode, you’re not going to have the Jake brake, you’re
going to lose air pressure, or it’s not going to run like it should because it’s going to
be running anywhere from eight [hundred] to 1,000 RPMs a minute [instead of 1400
to 1600]. And if he’s used his air pressure up and he’s trying to get it into a ditch,
you couldn’t steer it and try to get into the ditch to stop the truck, probably. TR 482.
Rasnick’s testimony on this point is not air-tight. It depends to a significant extent on a
printout by a Cummins dealer from the truck’s electronic control module, which is somewhat
similar to an airliner’s black box (TR 382). RX 1. Cummins is the company which
It does not appear that a post-mortem examination was conducted, and the
condition of Johnson’s remains after the crash may have made such an examination
impossible.
10

35 FMSHRC Page 1949

manufactured the truck’s engine. The significance of this report is disputed by Medina
(TR 385-91), and I find Rasnick’s testimony regarding this document confusing.
Accordingly, I cannot find that the accident resulted from the truck going into idle mode
even though it is consistent with the evidence of the accident. Yet it is another possible
cause of the accident to consider.
Based on the foregoing, I conclude that the Secretary has failed to prove that
Johnson’s truck crashed due to defective brakes.
However, the Secretary has shown that there were defects in the service brakes on
Johnson’s truck. For one of the drum brakes was worn to the point that it was ineffective,
and three others were worn below recommended levels. But the regulation in question, 30
C.F.R. §77.1605(b), requires brakes to be “adequate”, not perfect. If a truck’s brakes are
worn, but are still capable of stopping it, are those brakes adequate?
Judge Feldman faced a similar issue in Nally & Hamilton Enterprises, Inc., 31
FMSHRC 689 (June 23, 2009) (ALJ), rev’d on other grounds 33 FMSHRC 1759 (Aug.
11, 2011) (hereinafter “N&H”). As in this case, N&H concerned an alleged violation of
§77.1605(b). The truck involved, although not a coal truck, also was a three axle tandem
vehicle. The inspector had found that one of the six brake assemblies was not adjusted
properly, which allegedly would have a negative impact on the five other brakes.
Nevertheless, it appeared that overall, the brakes were working.
In order to determine whether §77.1605(b) had been violated, Judge Feldman
turned to the dictionary for guidance:
The applicable meaning of the term adequate is “. . . fully sufficient for a
specified or implied requirement. Webster’s Third New Int’l Dictionary,
Unabridged 25 (2002). An entity is “sufficient” when it is “marked by
quantity, scope, power, or quality to meet with the demands, wants, or
needs of a situation or of a proposed use or end.” Id at 2284.
The plain use of the terms “adequate” and “sufficient” reflects that section
77.1605(b) is a functional standard. In other words, service brakes can be
deemed adequate as contemplated by section 77.1605(b) even if a
component part is in need of adjustment. Thus, the dispositive question is
whether the braking system on the . . . truck was functioning adequately.
N&H at 694-95.
Since there is no further guidance in 30 C.F.R. Part 77 regarding when brakes in trucks
are deemed adequate, Judge Feldman referred to the regulations governing trucks used in surface
metal and non-metal mines. Thirty C.F.R. §56.14101(a)(1) states that “self-propelled mobile
equipment shall be equipped with a service brake system capable of stopping and holding the

35 FMSHRC Page 1950

equipment with its typical load on the maximum grade it travels.” He applied this standard in
concluding that the Secretary had failed to prove that the truck’s brakes were inadequate in
violation of §77.1605(b), since the evidence indicated that despite the problem with one of the
brakes, the truck’s driver believed the brakes were functioning normally. N&H at 695.
Judge Feldman’s discussion of this issue is very well reasoned, and I will apply his
analysis to this case. Accordingly, it is not enough for the Secretary to prove that there were
problems with the truck’s brakes. Instead, the Secretary must prove that the brakes on Johnson’s
truck were not capable of stopping and holding the truck with its typical load on the maximum
grade it travels. Specifically, did the Secretary prove that the brakes on Johnson’s truck were
incapable of stopping it on the haul road?
There were two ways in which the Secretary could have met this burden. First,
she could have proven that the accident was caused by the defects in the brakes. But
based on the record before me, the cause of Johnson’s fatal accident is at best
inconclusive. In fact, it is more likely that the accident was caused by a failure of the
steering system, or by other problems which caused both the brakes and the steering to
fail simultaneously, rather than defective brakes. Second, the Secretary could have
proven that the defects with the truck’s brakes were significant enough to cause the
brakes to fail in typical usage regardless of whether they caused the accident. In this
regard, it is doubtful that Johnson believed the truck’s brakes were not functioning
adequately. Johnson frequently, if not routinely, drove this particular truck, and had
driven it on at least some occasions in the weeks before the accident. TR 123-24, 432.
Further, he had driven the truck that morning from Trivette’s garage to the Mine without
pointing out any problems with the brakes. In addition, Rasnick’s testimony that the
brakes, in the condition they were in, were adequate and would still have been able to
stop Johnson’s truck going down the haul road, is well explained.
In regard to both factors, I give little weight to Medina’s opinion due to his
demonstrated lack of expertise, inconsistency between his report and testimony and in his
testimony itself, and generally poor reasoning.
Therefore, I find that the Secretary has failed to prove that the brakes on
Johnson’s truck were not adequate. Accordingly, Order No. 8230315 must be vacated.11
At the conclusion of the discussion in his brief regarding this citation, the
Secretary referenced six citations and orders (Proposed Exhibits GTX 14-19) issued to
Trivette for operations at the PE Southern Pike County Mine on the same date as the
orders in this case, and a Decision Approving Settlement issued by Judge Gill on October
24, 2012 which encompasses them and four other citations (Proposed Exhibit GTX 20).
Two of those citations allege unwarrantable failures concerning a single truck during the
same inspection, for failing to conduct an adequate pre-shift examination (GTX 14), and
failing to maintain the truck in a safe manner (GTX 15). The Secretary has proffered
(continued...)
11

35 FMSHRC Page 1951

ORDER
IT IS ORDERED that Order No. 8230315 is VACATED.
IT IS FURTHER ORDERED that Order No. 8230314 is modified from high
negligence to no negligence, and Respondent shall pay a penalty of $1,000 within 30
days of this decision.
/s/ Jeffrey Tureck
Jeffrey Tureck
Administrative Law Judge

Distribution:
Jennifer Booth Thomas, Esq., U.S. Department of Labor, 618 Church Street, Suite 230,
Nashville, TN 37219
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, 151 N. Eagle Creek Drive,
Suite 310, Lexington, KY 40509
(...continued)
these exhibits in the apparent belief that they provide probative evidence that
“Trivette Trucking engaged in a practice of wanton disregard of the safety of its
employees.” Secretary’s Motion at 12. Exhibits GTX 14-19 were culled from GX 18 in
the PE case, an exhibit containing a multitude of unproven citations and orders against
Trivette which I excluded as having no probative value. TR 239-43. That these citations
and orders in GTX 14-19 were the subjects of a settlement agreement does not make
them more probative, for entering into a settlement is not an admission of the truth of the
allegations contained in a citation or order and the agreement contains no findings of fact
or conclusions of law. Further, none of these exhibits concern a violation of the same
standards which are alleged to have been violated by Trivette in Orders 8230314 and
8230315. Accordingly, Proposed Exhibits GTX 14-20 will be excluded.
11

35 FMSHRC Page 1952

ADMINISTRATIVE LAW JUDGE ORDERS

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

June 4, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
WEBSTER COUNTY COAL,
Respondent.

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
WARRIOR COAL LLC,
Respondent.

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
HOPKINS COUNTY COAL, LLC.,
Respondent.

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CIVIL PENALTY PROCEEDING

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CIVIL PENALTY PROCEEDING

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CIVIL PENALTY PROCEEDINGS

35 FMSHRC Page 1953

Docket No. KENT 2011-1580
A.C. No. 15-02132-000264085
Mine: Dotiki Mine

Docket No. KENT 2012-27
A.C. No. 15-17216-000267090
Mine: Cardinal

Docket No. KENT 2012-446
A.C. No. 15-18826-000275031
Elk Creek Mine
Docket No. KENT 2012-861
A.C. No. 15-18826-000284552

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
RIVER VIEW COAL LLC,
Respondent.

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CIVIL PENALTY PROCEEDING
Docket No. KENT 2012-661
A.C. No. 15-19374-000280614
Mine: River View

AMENDED ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY
DECISION AND DENYING SECRETARY’S MOTION FOR SUMMARY DECISION
The Order Granting Respondent’s Motion for Summary Decision and Denying Secretary’s
Motion for Summary Decision issued May 28, 2013, is hereby amended pursuant to Commission
Rules 31 (g) and 69(c), 29 C.F.R. 2700.31(g) and 2700.69(c), to read as set forth below. This
Order is reissued to correct clerical errors.
Procedural History and Summary of Facts
These dockets are before me on petitions for penalties filed by the Secretary pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 et seq. (2000)
(the “Act”). On March 7, 2013 upon request by counsel, I consolidated these dockets for
submission of motions for partial summary decision in accordance with Section 2700.67 of the
Federal Mine Safety and Health Review Commission’s Procedural Rules, 30 C.F.R. § 27.00.67.
Each of these operators is a subsidiary of Alliance Coal, LLC (“Respondent”) and is located in the
Commonwealth of Kentucky.
Each of these dockets contains violations issued against the operators during regular
inspections conducted by a Mine Safety and Health Administration (MSHA) inspector for
violations of three mandatory standards involving oil and gas wells located within the coal mine.
The predicate standard cited is 30 C.F.R. § 75.1700 which states:
Each operator of a coal mine shall take reasonable measures to locate oil and gas
wells penetrating coalbeds or any underground area of a coal mine. When located,
such operator shall establish and maintain barriers around such oil and gas wells in
accordance with State laws and regulations, except that such barriers shall not be less
than 300 feet in diameter, unless the Secretary or his authorized representative permits
a lesser barrier consistent with applicable State laws and regulations against hazards for
such wells to the miners in such mine, or unless the Secretary or his authorized
representative requires a greater barrier where the depth of the mine, other geological
conditions, or other factors warrant such a greater barrier.

35 FMSHRC Page 1954

The Secretary alleges that in each of these cited mines, the operator mined within the 300
foot barrier without seeking MSHA approval. There are a total of five cited violations of this
mandatory standard among these five dockets related to 117 permits issued by the Commonwealth
of Kentucky.
Believing that the bore holes were not either gas or oil wells under Kentucky law, the
Respondent did not so label them on the mine maps. This resulted in the issuance of five
violations under Section 75.1200 and four violations of Section 75.372. These two closely related
mandatory standards require, in relevant part, that the certified mine maps show either producing
or abandoned oil and gas wells located within 500 feet of such mine; and, the ventilation maps
contain the location of all known oil and gas wells and other drill holes that penetrate the coalbed,
respectively. 30 C.F.R. § 75.1200(k) and § 75.372(b)(5).
The parties have stipulated that the MSHA inspectors relied upon information gathered
from the Commonwealth of Kentucky Department for Natural Resources Office of Mine Safety
and Licensing to determine that the holes were oil and/or gas wells. They have further stipulated
that no advisory statements were provided to these mines that these holes were considered oil or
gas wells prior to the issuance of these citations and orders. Based upon information obtained
from MSHA’s data retrieval system, each of these mines has been inspected by MSHA since 2006
between 1,127 and 4,358 inspection days after the holes were drilled.1 If these holes are not
considered oil and gas wells, the Secretary agrees that the Respondent’s maps are correct. (Joint
Exhibit A.)
The Joint Stipulations submitted by counsel also provide a chart of each of the wells at
issue here listed by mine name, record and permit number. Beside each permit number is the date
drilling of the hole commenced, date completed and date plugged, the geological survey
designation and whether any production of oil or gas resulted. The earliest one drilled was in
1944 and last one in 1998, the majority of them being drilled between 1960 and 1987. Of the 117
bore holes listed, not one of them produced any oil or gas. All of them were listed as “dry and
abandoned” and were plugged the same day drilling was completed or very shortly thereafter.
(Joint Exhibit A.)2

Data prior to 2006 is no longer available. The number of inspection days is as follows:
Dotiki Mine, 4,358 days; Cardinal Mine, 3,014 days; Elk Creek Mine, 2,737 days; River View
Mine, 1,127 days.
1

There was one permit, number 11087, issued to Elk Creek Mine in 1964 not at issue in
these proceedings, which produced oil for some period of time. By letter dated April 11, 2006,
MSHA approved the operator’s request to mine within 70 feet of the coal barrier.
2

35 FMSHRC Page 1955

Summary Decision Standards
Commission Rule 67 sets forth the guidelines for granting summary decision:
(b) A motion for summary decision shall be granted only if the entire record, including
the pleadings, depositions, answers to interrogatories, admissions, and affidavits shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a matter of law.
29 C.F.R. §2700.67(b).
The Commission “has long recognized that [ ] ‘summary decision is an extraordinary
procedure,’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under which
the Supreme Court has indicated that summary judgment is authorized only ‘upon proper showings
of the lack of a genuine, triable issue of material fact.’” Hanson Aggregates New York, Inc., 29
FMSHRC 4, 9 (Jan. 2007)(quoting Energy West Mining Co., 16 FMSHRC 1414, 1419 (July
1994)). In reviewing the record on summary judgment, the court must evaluate the evidence in
“the light most favorable to…the party opposing the motion.” Hanson Aggregates at 9 (quoting
Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962). Any inferences “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 motions.’” Hanson Aggregates at 9 (quoting Unites
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
The issues presented in this penalty proceeding are whether the bore holes identified by
their corresponding permit numbers are oil and gas wells as contemplated within mandatory
standard 75.1700, and if so, was Respondent provided fair notice of MSHA’s interpretation of the
terms to assess penalties against it.
The parties have not provided any conflicting material facts which would prevent issuance
of summary decision on the issue of fair notice. However, as set forth in more detail below, the
issue of whether the bore holes come within the definition of oil and gas wells contemplated by the
MSHA regulation is not appropriately decided here by summary decision.3

Had the Secretary of Labor taken this case to hearing and presented expert witness
testimony to address the issues discussed below and proposed an interpretation of the mandatory
standard on behalf of MSHA, this issue could well have been resolved at hearing. However, I
would not have changed my decision on the issue of fair notice as discussed in this decision. The
citations and orders herein would still have been vacated.
3

35 FMSHRC Page 1956

ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS
Definition of Oil and Gas Wells
Both parties agree that the definition of oil and gas wells is not defined within the MSHA
regulations. They have asked that the terms be defined by me herein. I decline to do so. The
Secretary has not provided a proposed definition for the terms while the Respondent suggests
MSHA should follow State law. The issue, however, is not simply a question of choice of law
between State and Federal statutes or defining an ambiguous term found in a Federal regulation as
counsel proposes.
The Commonwealth of Kentucky defines a “well” as any “bore hole drilled or proposed to
be drilled for the purpose of producing natural gas or petroleum or one through which natural gas
or petroleum is being produced.” KY. REV. STAT. ANN. § 353.010(19) (West 2012). It then goes on
to define a “gas well” as any well that produces natural gas not blended with oil or producing more
than 10,000 cubic feet of gas to every barrel of oil. KY. REV. STAT. ANN. § 353.010(10)(West
2012). An “oil well” is defined as any well that produces at least one barrel of oil in conjunction
with producing natural gas. KY. REV. STAT. ANN. § 353.010(14) (West 2012). The “Dictionary
of Mining, Minerals, and Related Terms,” Second Edition, U.S. Dept. of the Interior, 1996 defines
a “well” as a borehole sunk in the ground for the purpose of obtaining oil, gas, water etc. There is
no separate definition of a gas or oil well in this source. 17 C.F.R. § 229.1205 (“Drilling and other
exploratory and development activities”) separates the definitions of wells into categories
depending upon their production. A “dry well” is one that cannot provide sufficient quantities to
make completion as an oil or gas well economically justifiable. Similarly, Pennsylvania, West
Virginia, Texas, Tennessee and Alaska, to name a few states, define oil and gas wells based upon
productivity in terms of cubic feet of gas produced to the number of barrels of oil. (See generally,
58 PA. CONS. STAT. § 502 (2011); W. VA. CODE § 35-4-2 (2013); TEX. NAT. RES. CODE ANN.§
86.002 (West 1977); TENN. COMP. R. & REGS. 1040-02-09-.04 (2013); and, ALASKA ADMIN. CODE
tit. 20, § 25.990 (2013).
Reading the various statutes and regulations as well as general discussions on dry wells and
their reclamation, it becomes abundantly clear that wells in the general sense transition into oil or
gas wells when a sufficient quantity of the mineral is found to make it economically worth the cost
of completion of the well by installing ejection equipment and factoring in associated costs of
production compared to market value. A well may have been categorized as “dry” even when a
reservoir of oil or gas is present if the cost of completion outweighed the expected profit (or loss)
at the time it was drilled. A dry well may be re-entered and re-completed many years after it has
been labeled as “dry” when the market factors change – the price of the product goes up or the
costs of production goes down due to better surveying techniques or lower equipment costs. Thus,
relying on any one State’s terminology is misdirected. It could produce wildly differing
definitions across the country causing more ambiguity and confusion. More significantly,
however, it would impose upon MSHA, whose purpose under the Act is to protect the health and
safety of miners, definitions based upon commercial considerations. The legislative purpose of
Section 75.1700 is to prevent inundations of gas and oil in the mines which could lead to potential

35 FMSHRC Page 1957

fatalities. Leg. Hist., Federal Coal Mine Health and Safety Act of 1969 (Comm. Print, 1970), pp.
83-84. Taking note of the fact that coal mines produce methane, some in great quantities, it is
conceivable that a well labeled as “dry” could still produce a sufficient amount of methane to
cause an inundation or other safety hazards and still be less than an amount commercially viable
for production.
I would surmise that there are other important considerations involved in crafting a
definition of oil and gas wells to address the health and safety issues of concern to MSHA besides
those I have mentioned herein. It appears to me that the matter should be addressed through either
rule making proceedings or at the least through meaningful discussion between technical experts
and regulatory authorities leading to promulgation of agency-wide informational bulletins or other
directives providing the mine operators with a clear meaning of the terms used in this mandatory
standard. Summary decision is not the appropriate vehicle by which to do so particularly with the
paucity of facts and absent a well-reasoned and clearly stated proposed definition provided by the
Secretary.
Fair Notice
The Respondent’s position with respect to lack of fair notice is well taken. It has been
stipulated that the wells were drilled between 1944 and 1998. Since 2006, there have been between
1,127 and 4,358 inspection days spent at these mines with no previous citations issued under this
standard. By regulation, the mine and ventilation maps have been submitted and approved by
MSHA’s district office every year with the same designations as they appear currently. It has also
been stipulated by the Secretary that no advisory statements were provided to these mines advising
them that the drill holes were considered oil or gas wells. The Respondent, in the absence of
MSHA guidance, relied upon Kentucky’s statutes and the letter from the Commonwealth’s
Commissioner of the Department of Natural Resources as the basis of their belief that the dry wells
are not contemplated within the meaning of oil and gas wells. I find their reliance is
understandable and reasonable and that the Secretary has not met her burden of proving fair notice
was provided to Respondent that a different definition should apply. By the Secretary’s own
admission, there is no definition of the terms. It would be patently unfair to hold the Respondent
accountable 15 years later without warning for violation of a standard, the meaning of which the
Secretary cannot articulate.
The citations and orders issued for violations of mandatory standard 30 C.F.R. § 75.1700 in
these five dockets must be vacated. The citations and orders issued under mandatory standards 30
C.F.R. § 75. 1200 and § 75.372 must also be vacated for the reasons set forth herein.

35 FMSHRC Page 1958

ORDER
The Secretary’s motion for partial summary decision is DENIED. The Respondent’s
motion for partial summary decision is GRANTED. I further ORDER
1. Citation Nos. 8502461, 8502462 and 8502463 in Docket No. KENT 2011-1580 are
VACATED.
2.Citations Nos. 8502423, 8502424 and 8502425 in Docket No. KENT 2012-27 are
VACATED.
3. Citation Nos. 8502319 and 8502320 in Docket No. KENT 2012-446 are VACATED.
4. Order Nos. 8502375, 8502376 and 8502377 in Docket No. KENT 2012-861 are
VACATED and this case is DISMISSED.
5. Citation No. 8502378 and Order Nos. 8502379 and 8502380 in Docket No. KENT 2012661 are VACATED and this case is DISMISSED.
The parties are further ORDERED to confer for the purposes of settlement negotiations.
Should settlement not be reached within 30 days, they are directed to contact the court for the
purpose of setting a hearing date.
/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge
Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Ste.
230, Nashville, TN 37219
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Ste. 375, Lexington, KY 40514

35 FMSHRC Page 1959

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

June 5, 2013
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
WHITE BUCK COAL COMPANY,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. WEVA 2013-614
A.C. No. 46-09154-314388-01

Mine: Pocahontas Mine

ORDER DENYING STAY
Before: Judge Lesnick
This case is before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
The Secretary of Labor's Conference and Litigation Representative ("CLR") has filed a
motion requesting that the assignment of the captioned docket be stayed for 180 days due to a
"high rate of contests coupled with MSHA's limited staff." In the past, I have granted stay
requests with similar justifications. Recently, however, the Acting Secretary of Labor assured
Congress that MSHA is able to keep caseloads at a manageable level, despite a significant
reduction in the staffing of the MSHA Litigation Backlog Project (MLBP).1
While I certainly understand the CLR’s justification, as the Commission is also
contending with the current backlog, I believe the CLR’s suggested remedy is misguided.
Given that the Acting Secretary of Labor has assured Congress that the Department of Labor
has the resources to manage the backlog, the CLR must look within his own Agency for a
remedy to his "high rate of contest" and "limited staff[ing]."

On March 15, 2013, Senators Rockefeller, Miller, Manchin and Rahall sent a letter to
Acting Secretary Harris expressing their concerns regarding the Department of Labor's decision
to disproportionately reduce MSHA's staffing as a result of sequestration. The MLBP is being
reduced from 74 FTEs to 44 FTEs. On May 13, 2013, Acting Secretary Harris responded to the
Senators, stating that the reduction was justified due to the Secretary's ability to maintain a
manageable caseload following the success of MLBP's efforts to reduce the backlog since 2010,
as well as MSHA's new strategy to reduce the number of citations contested.
1

35 FMSHRC Page 1960

WHEREFORE, the motion to stay assignment is DENIED; and it is ORDERED that
this docket be ASSIGNED in due course.

/s/ Robert J. Lesnick
Robert J. Lesnick
Chief Administrative Law Judge
Distribution:
Ernie Ross Jr., CLR
U.S. Department of Labor, MSHA
100 Bluestone Rd.
Mt. Hope, WV 25880-1000
R. Henry Moore, Esq.
Jackson Kelly PLLC
Three Gateway Center, Suite 1500
401 Liberty Avenue
Pittsburgh, PA15222
/cd

35 FMSHRC Page 1961

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

June 21, 2013
SECRETARY OF LABOR, MSHA,
on behalf of TIMOTHY ORR,
Complainant,
v.
CML METALS CORP.,
Respondent.

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TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2013-831-DM
RM-MD 13-06
Mine: GDC Crusher #1
Mine ID: 42-01927

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION
This case is before me on an application for temporary reinstatement under section 105(c)
of the Federal Mine Safety and Health Act of 1977 filed by the Secretary of Labor on behalf of
Timothy Orr. On May 30, 2013 Respondent filed a response and requested a hearing on the
issue. Shortly thereafter, on June 7, 2013 Respondent filed a Motion for Summary Decision for
Lack of Jurisdiction and Memorandum in Support (the “Motion”). On June 20, 2013 the
Secretary filed an Opposition to Respondent’s Motion and Memorandum in Support (the
“Opposition”), in which he alleges that jurisdiction is proper.
I. DISCUSSION
Commission Procedural Rule 67 sets forth the following grounds for granting summary
decision:
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a
matter of law.
29 C.F.R. § 2700.67. Based upon the facts set forth in the filings of the parties, I find that there
is no genuine issue as to any material fact and that the question of jurisdiction may properly be
decided based on the record before me. For the reasons that follow, Respondent’s motion is
DENIED.
Respondent set forth the following relevant facts. The GDC Crusher #1 Mine (the
“mine”) is an iron ore mine. CML Mot. Ex. A ¶ 4. CML Metals is a contractor that processes
the iron ore in a mill adjacent to the excavation site. CML Mot. Ex. A ¶ 6. Once the ore has
been processed, it is loaded onto railroad cars on railroad tracks located adjacent to the mill and
excavation site. CML Mot. Ex. A ¶ 7. The rail line consists of 18 miles of railroad track (the

35 FMSHRC Page 1962

“spur”) that extends from a Union Pacific railroad line to the mine and beyond. CML Mot. Ex.
A ¶ 8. The spur and real property upon which it sits are owned by Union Pacific. CML Mot. Ex.
A ¶ 9. CML Railroad, a separate entity doing business as PIC Railroad, Inc., leases the spur
from Union Pacific. Mot. Ex. A ¶ 10. CML Railroad also leases rail cars used to transport the
ore. CML Mot. Ex. A ¶ 12. The spur, rail cars, and locomotives have, in the past, been
inspected by the Federal Railroad Administration. CML Mot. Ex. A ¶ 1. Complainant Orr was
hired by Respondent, CML Metals, to maintain and repair railroad cars and the spur. CML Mot.
Ex. A ¶¶ 21, 23. On or about February 25, 2013, Complainant claims to have received an injury
while repairing a rail car. CML Mot. Ex. A ¶ 26. CML reported the injury to the Federal
Railroad Administration (the “FRA”). CML Mot. Ex. A ¶ 30. MSHA inspected the spur and rail
cars for the first time in May of 2013. CML Mot. Ex. A ¶ 20. Several additional facts were
contained in the Respondent’s motion but are disputed by the Secretary.
The Secretary added the following relevant facts. Gilbert Development Corporation
(“GDC”), the excavation operator, transports the iron ore from the excavation site, via haul truck,
to a crusher, where it is crushed. Sec’y Opp. Tromble Decl. ¶ 5. The crushed material is then
stockpiled by a bulldozer, fed into a feeder, and then transported to the mill via conveyor belt.
Id. CML Metals, the mill operator, processes, dries, and then stockpiles the iron ore outside of
the mill. Id. ¶ 10. The mill is approximately one mile from the extraction pit. Id. ¶ 6. CML
Metals then transports the stockpiled material into a feeder, and onto a conveyor belt that
delivers the material to the tipple at the loadout, which is approximately 300 feet from the mill.
Id. ¶¶ 10, 11, 12. At the tipple, CML Metals employees deposit the material into railcars that sit
on rail lines that extend past the tipple and come within approximately 60-70 feet of the mill. Id.
¶¶ 8, 12; Sec’y Opp. Ex. 4, 5. The spur on which the loadout sits connects to Union Pacific’s
main line. CML Mot. Ex. A ,¶¶ 8, 24; Sec’y Opp. Ex. 2. CML Railroad is a wholly owned
subsidiary of CML Metals. Sec’y Opp. Ex. 1, ¶ 14. The spur lease agreement between Union
Pacific and CML provides CML with “full and exclusive use of the [Railroad spur] for operation
of rail freight service, including the right to access and interchange traffic directly with all
present and future railroads at Iron Springs UT, provided, however that [CML] may not use the
[Railroad Spur] for passenger operations.” Sec’y Opp. 5 (citing Ex. 6, p. 6). The spur consists
of two segments; the (1) “Industry Track,” a three to four mile segment which connects the area
of the pit, mill, and tipple to the (2) remainder of the spur leading to the main line. Sec’y Opp.
Tromble Decl. 17; Sec’y Opp. Ex. 2. Trains travel on the “Industry Track,” down the remainder
of the spur, to the main line and “then to ports on the west coast of the United States.” Sec’y
Opp. 5 (citing Sec’y Opp. Tromble Decl. 17; Sec’y Opp. Ex. 2). CML Metals President and CEO
Dale Gilbert has represented that CML Metals “produces, ships, markets, and sells iron ore,
primarily for export to China but also sells ore to domestic buyers.” Sec’y Opp. 2 (citing Ex. 1).
Gilbert has stated that “rail shipping is the life blood of CML Metals’ business” and “occurs on a
24 hour bases every day of each year[.]” Sec’y Opp. 4 (citing Ex. 1). As recently as 2010, Dale
Gilbert was Vice President of GDC, the entity responsible for extraction of the ore from the pit.
Sec’y Opp. 6 (citing Gilbert Development Corp., 32 FMSHRC 185 (Feb. 2012) (ALJ)). Orr
received MSHA Part 48 “new miner training” on March 4-5, 2013.
Respondent, CML Metals, asserts that the Secretary, acting under the Mine Act, lacks
jurisdiction in this matter because the Complainant does not meet the definition of “miner” under
the Act. CML Mot. 2. Specifically, Respondent argues that “[w]ith respect to the safety of

35 FMSHRC Page 1963

railroad workers, including safety when repairing railcars Congress has . . . granted jurisdiction
to” the FRA. CML Mot. 5. Moreover, the Secretary has assigned jurisdiction to OSHA for any
“claims of discrimination for reporting [railroad] safety violations.” CML Mot. 5-6.
Respondent argues that, because Orr only worked on the rail cars and the spur, and not in
the actual production of iron ore, he is not a miner as defined by the Mine Act. While
Respondent asserts that where jurisdictional questions have arisen, the Commission has
employed a two part “functional test” which addresses “(1) whether the operation in question
performs one of more the activities listed in 30 U.S.C. § 802(h)([1]) [and in Appendix A of the
OSHA/MSHA Interagency Agreement]; and (2) a review of the nature of the activities being
performed.” CML Mot. 8 (citing Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 7 (1982)). Further,
they assert, neither “railroad car” repair nor “railroad operation” are listed in the Act’s definition
of “mine” or as part of “mining operations.” and the nature of railroad car repair, is not “minerelated.” CML Mot. 9. Given the Federal Railroad Agency’s past consistent oversight and
inspection activities, as well as MSHA never having previously conducted an inspection of the
area, proper authority should rest with the Federal Railroad Agency and OSHA. CML Mot. 1112.
The Secretary argues that Respondent is not entitled to summary decision and that
jurisdiction is proper. The Secretary asserts that what is to be considered a “mine” under the Act
should be given the broadest possible interpretation. Sec’y Opp. 9-10. Moreover, the Act’s
plain language and the Secretary’s reasonable interpretation of any ambiguities in the Act
establish that jurisdiction is proper. Sec’y Opp. 10. The Secretary argues that the “loadout,”
qualifies as a mine under two theories. First, the “loadout is part of a private way or road
appurtenant to the Mine – the Railroad Spur.” Sec’y Opp. 11. Second, the loadout and spur “are
lands – which include structures, facilities, equipment, machines, tools or other property - on the
surface used in the work of preparing minerals.” Id. Given that Orr worked at the loadout and
on the spur, he was a “miner” under the Act. Id. Moreover, the OSHA/MSHA Interagency
Agreement’s lack of inclusion of “railroad car repair” in its list of activities subject to Mine Act
jurisdiction is immaterial, as the list is only illustrative and not exhaustive. Id. 17. Finally, any
lack of prior inspections or other enforcement activity related to the subject area is immaterial
when it comes to the question of jurisdiction in this matter. Id. 17-18.
Section 4 of the Mine Act, 30 U.S.C. § 803, provides that each “coal or other mine” is
subject to the provisions of the Act. “Coal or other mine” is defined under § 3(h)(1) of the Act to
mean:
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,

35 FMSHRC Page 1964

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.
30 U.S.C. § 802(h)(1).
The legislative history of the Mine Act indicates that Congress
intended a broad interpretation of what constitutes a “coal or other
mine” under the Act. The Senate Committee stated that “what is
considered to be a mine and to be regulated under this Act [shall]
be given the broadest possibl[e] interpretation, and . . . doubts
[shall] be resolved in favor of … coverage of the Act.” S. Rep. No.
95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor,
Comm. on Human Res., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 602 (1978). See Marshall v.
Stoudt's Ferry Preparation Co., 602 F.2d 589, 591-92 (3d Cir.
1979), cert. denied, 444 U.S. 1015 (1980) (“[T]he statute makes
clear that the concept that was to be conveyed by the word [mine]
is much more encompassing than the usual meaning attributed to it
[-] the word means what the statute says it means.”).
Shamokin Filler Company, Inc., 34 FMSHRC 1897, 1902 (Aug. 2012). Section 3(g) defines
“miner” as “any individual working in a coal or other mine.” 30 U.S.C. § 802(g). Section 3(d)
defines “operator” as “any owner, lessee, or other person who operates, controls, or supervises a
coal or other mine or any independent contractor performing services or construction at such
mine[.]” 30 U.S.C. § 802(d)
In the instant case, I find that both CML Metals and CML Railroad are “operators” of
“mines” as those terms are defined by the Act. CML Metals is engaged in the milling of iron ore
that is extracted from the adjacent excavation site. The mill can be classified as a “structure,”
“facility” and/or “equipment” that is used in, or to be used in, the milling of minerals and,
accordingly, is a “mine” as defined by the Act. I further find that the loadout area of the rail line,
or spur, that runs to the GDC Crusher #1 Mine, CML Mot. Ex. A ¶ 10, is a “private way . . .
appurtenant to” both the excavation site and mill and, accordingly, is a “mine” as defined by the
Act.
The terms “private” and “appurtenant,” as used in Act’s definition of “coal or other
mine,” have been determined to be “ambiguous” terms. Sec’y of Labor (MSHA) v. National
Cement Co. of California, 494 F.3d 1066, 1074-77 (D.C. Cir. 2007). When a statute has been
found to be ambiguous on an issue, a determination must be made as to whether an agency’s
interpretation of that statute is a reasonable one. Chevron, U.S.A., Inc v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843-44 (1984). When “an agency’s interpretation of the statute it is
charged with administering . . . is reasonable[,]” deference must be afforded to such
interpretation. Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994). In
Sec’y of Labor (MSHA) v. National Cement Co. of California, 573 F.3d 788, 792 (D.C. Cir.
2007) the court found the Secretary’s respective interpretations of “private” and “appurtenant” to

35 FMSHRC Page 1965

be reasonable, and, accordingly found that those interpretations were due deference. There, the
court succinctly articulated the Secretary’s interpretation of the two terms.
“[P]rivate” roads are those restricted to a particular group or class
of persons (not to a particular person) and . . . “appurtenant to”
requires only 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.)
Id. at. 791 (citing National Cement Co. of California, 30 FMSHC 668, 672 (Aug. 2008). Here,
the spur and the loadout area were certainly “private.” The spur, which is leased by CML
Railroad from Union Pacific, as well as the loadout area, are used exclusively by, and for the sole
benefit of, the various entities engaged in the extraction, milling and processing of ore at this
particular site. This restriction on use is a clear indication of the “private” nature. Moreover, the
spur and loadout area provide a right of way to both the adjacent mill and excavation operation,
thereby making them “appurtenant to” those respective areas. Given the fact that the loadout and
rail line would be useless, at least to CML Railroad, without the presence of adjacent excavation
and mill sites, it is clear that the rail and the loadout area were a “way” to a “more important
thing.” Accordingly, I find that the spur and loadout area come within the Act’s definition of
“mine”. To find otherwise would ignore that the excavation site, mill, loadout, and spur are
essential parts of the mining process at this particular operation and would fly in the face of
Congress’s intent that what is considered to be a mine be given the broadest possible
interpretation.
Commission ALJ Koutras addressed a somewhat similar issue regarding a railroad in
Harman Mining Corp., 3FMSHRC 45 (Jan 1981), aff’d sub nom Harman Mining Corp. v.
FMSHRC, 671 F.2d 794 (4th Cir. 1981). In Harman, a fatal railroad haulage accident occurred at
the operator’s central preparation plant. A railroad employee was killed when struck by a
runaway car. The operator argued that MSHA had no jurisdiction because the accident did not
occur at a “coal or other mine” and, further, that the Mine Act did not include the transportation
of prepared coal in its definition of mine. The railroad cars in Harman were loaded at the
preparation plant, dropped onto the tracks and moved off by the railroad. The Judge found that
the rail cars were part of the process at the preparation plant, that the track was “an integral and
indispensable part of . . . [the] mining operations[,]” and that, accordingly, the activities in that
area were subject to MSHA jurisdiction. Id. at 51. While the Commission declined review, on
appeal, the Fourth Circuit agreed with the Judge and held that the car dropping activity and
subject section of track fit within the Act’s definition of “mine,” which Congress intended to “be
given the broadest possible interpretation[, and to which any] . . . doubts be resolved in favor of
inclusion of a facility within the coverage of the Act.” Harman, 671 F.2d at 796-797 (citing S.
Rep. No. 95-181, 95th Cong., at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on
Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of
1977, at 602 (1978) (“Legis. Hist.”). Moreover, the court held that it is “immaterial” who owns
the tracks when the evidence shows that the tracks are used by another party as part of its day to
day operations. Harman, 671 F.2d at 796.

35 FMSHRC Page 1966

In TXI Operation, LP., 23 FMSHRC 54 (Jan. 2001) (ALJ), Judge Feldman found that
MSHA’s enforcement authority extended to a Union Pacific railroad crossing that granted
exclusive access to the operator, TXI. The judge held that it was clear that the railroad crossing
was a “private way or road” that was “appurtenant” to the mine and, accordingly, fit within the
Act’s definition of “coal or other mine.” He noted that evidence that the operator was a licensee
and lessee of the railroad crossing was “indicia of the requisite mine operator responsibility and
control warranting a finding of Mine Act jurisdiction” and that, but for the mine, no motorists
would have traveled over the railroad crossing. Id. at 60.
Here, just as in Harman and TXI Operations LP, the rail line, and/or area where the rail
line passes, is an integral part of the mine operation. As lessee, CML Railroad enjoys exclusive
use of the spur line and is charged with maintenance of such. CML Railroad uses the loadout
area and spur, over which it maintains exclusive control under the lease agreement, for the
singular purpose of loading and transporting ore to the Union Pacific mainline and then on to its
customers. The only beneficiaries of this exclusive use are CML Railroad, CML Metals and the
extraction operator at GDC Crusher #1 Mine. Even though Complainant may have been
performing work on a railroad car leased by CML Railroad, and was working on a spur leased
from Union Pacific, the railroad car and spur are inextricably tied to the mining process.
Moreover, there is Commission precedent for upholding citations and orders related to railcar
inspection and repair. See U.S. Steel Group, Minnesota Ore Operations, 15 FMSHRC 1720
(Aug. 1993) (ALJ).
Given that Orr was an employee of CML Metals and working in what I have already
found to be a mine, I find that, at all times relevant to this proceeding, he was a “miner” as
defined by the Act.
Much of CML’s Motion was spent arguing that Federal Railroad Administration
jurisdiction over the rail spur preempts MSHA’s jurisdiction. I find this argument to be without
merit. The Commission has previously addressed the question of jurisdictional preemption by
other agencies in the context of independent contractors who are found to be “operators” under
the Act. In Williams Natural Gas Co., 19 FMSHRC 1863 (Dec. 1997), the Commission found
that a company that was delivering natural gas to a mine and transforming the natural gas into
quantities and pressures required to start large kilns necessary to produce cement at the mine was
an “operator” and therefore subject to the jurisdiction of the Mine Act. The Commission rejected
the company’s argument that Department of Transportation regulations covering interstate
natural gas pipelines preempted MSHA jurisdiction. The Commission noted that an express
indication of preemption of MSHA jurisdiction did not exist. The same is true here.
Accordingly, I reject CML’s argument.

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II. ORDER
Given the undisputed facts and the legal reasoning set forth above, I find the Orr was a
miner as defined by the Act, that CML metals, who employed Orr, as well as CML Railroad are
mine operators and that MSHA has jurisdiction in this matter. The Respondent’s Motion for
Summary Decision is DENIED.

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

Distribution:
Matthew B. Finnigan, Office of the Solicitor, U.S. Department of Labor, 1244 Speer Boulevard,
Suite 515, Denver, CO 80204
Bryan J. Pattison, Michael F. Leavitt, Durham Jones & Pinegar, P.C., 192 East 200 North, 3rd
Floor, St. George, Utah 84770

35 FMSHRC Page 1968