May 2016
TABLE OF CONTENTS

COMMISSION DECISIONS
05-17-16

WARRIOR COAL, LLC

KENT 2011-1259-R

Page 913

05-17-16

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

PENN 2012-250-D

Page 935

COMMISSION ORDERS
05-19-16

WEVA 2014-685

ACI TYGART VALLEY

Page 939

ADMINISTRATIVE LAW JUDGE DECISIONS
05-02-16

SEC. OF LABOR O/B/O ERIC
GREATHOUSE v. MONONGALIA
COUNTY COAL CO.,
CONSOLIDATION COAL
COMPANY, MURRAY AMERICAN
ENERGY, INC., and MURRAY
ENERGY CORPORATION

WEVA 2015-904-D

Page 941

05-03-16

OAK GROVE RESOURCES, LLC

SE 2013-301

Page 957

05-03-16

OIL DRI PRODUCTION COMPANY

SE 2013-0507 M

Page 990

05-03-16

SIMS CRANE

SE 2015-315

Page 1008

05-03-16

ORIGINAL SIXTEEN TO ONE
MINE, INC.

WEST 2014-527-M

Page 1019

i

05-03-16

D. HOLCOMB & COMPANY, LLC

WEST 2015-382-M

Page 1074

05-11-16

PRODUCTOS DE AGREGADOS DE
GURABO

EAJA 2016-0003

Page 1077

05-11-16

THE OHIO VALLEY COAL
COMPANY

LAKE 2015-251

Page 1084

05-16-16

BLUE DIAMOND COAL COMPANY KENT 2014-0620

Page 1098

05-16-16

TRIAD UNDERGROUND MINING,
LLC

LAKE 2014-0610

Page 1101

05-16-16

EAGLE CREEK MINING, LLC

WEVA 2013-1149

Page 1104

05-18-16

MICHAEL WILSON v. JIM
BROWNING

KENT 2016-0095-D

Page 1161

05-25-16

MACH MINING, INC.

LAKE 2014-77

Page 1168

05-31-16

KENTUCKY FUEL CORPORATION

KENT 2015-575

Page 1222

ADMINISTRATIVE LAW JUDGE ORDERS
05-02-16

SEC. OF LABOR O/B/O JEREMY
COOTS v. YELLOW ROSE COAL
CO., LLC

KENT 2016-320-D

Page 1247

05-09-16

WEST ALABAMA SAND &
GRAVEL, INC.

SE 2009-870-M

Page 1250

05-10-16

SEC. OF LABOR O/B/O GEORGE M. WEVA 2016-274-D
SCOLES v. HARRISON COUNTY
COAL CO.

Page 1253

05-11-16

DOMINION COAL CORPORATION

VA 2015-285

Page 1256

05-16-16

SEC. OF LABOR O/B/O MICHAEL
MURRAY v. MACH MINING, LLC

LAKE 2016-186-D

Page 1258

ii

05-24-16

SANDRA G. MCDONALD v.
GEORGE KING, MARK TOLER,
GUARDCO SECURITY, LLC, and
NEW TRINITY COAL, INC., as
successor-in-interest to FRASURE
CREEK MINING, LLC

WEVA 2014-387-D

Page 1261

05-25-16

SEC. OF LABOR O/B/O JENNIFER
MORREALE v. VERIS GOLD USA,
INC., JERRITT CANYON GOLD,
LLC, WHITEBOX MANAGEMENT,
& ERIC SPROTT

WEST 2014-793-DM

Page 1267

05-26-16

SEC. OF LABOR O/B/O KELLY
RAWLEY v. J.L. SHERMAN
EXCAVATION

WEST 2016-467-DM

Page 1269

iii

Review was granted in the following cases during the month of May 2016:
United Mine Workers of America obo Mark A. Franks, et al. v. Emerald Coal Resources, LP,
Docket No. PENN 2012-250-D, et al. (Judge Miller, April 11, 2016)
Oak Grove Resources, LLC v. Secretary of Labor and Secretary of Labor v. Oak Grove
Resources, LLC, Docket No. SE 2009-261-R, et al. (Judge Moran, April 6, 2016)

Review was denied in the following cases during the month of May 2016:
Secretary of Labor v. Consol Pennsylvania Coal Company, LLC, Docket No. PENN 2015-41, et
al. (Judge Lewis, March 24, 2016)
Mark L. Lujan v. Signal Peak Energy, LLC, Docket No. WEST 2015-252-D (Judge Barbour,
January 15, 2016)
Secretary of Labor v. Stone Plus, Inc., Docket No. WEST 2013-263-M, et al. (Judge Gill, April
5, 2016)

iv

COMMISSION DECISIONS

38 FMSHRC Page 912

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May 17, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

v.

KENT 2011-1259-R
KENT 2011-1260-R
KENT 2012-705

WARRIOR COAL, LLC
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY: Jordan, Chairman; Cohen, and Nakamura, Commissioners
These proceedings, which arise under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), involve a citation and an order issued by
the Secretary of Labor’s Mine Safety and Health Administration (“MSHA”) to Warrior Coal,
LLC (“Warrior”) following its failure to comply with a request for information made by MSHA
investigators. The investigation was initiated after an inspector observed miners working in
close contact to multiple hazardous roof and rib conditions. MSHA’s request for information
about the position, shifts worked, and contact information for each mine employee was made
pursuant to section 103(h) of the Mine Act.1
Warrior contested the citation and the order before the Commission. After considering
motions for summary decision, a Commission Administrative Law Judge affirmed both the
citation and the order, assessed a penalty, and ordered that Warrior provide the requested
information. 35 FMSHRC 2968, 2976 (Sept. 2013) (ALJ).
Warrior petitioned the Commission for review of the Judge’s order. We granted review,
and for the reasons that follow, we affirm the order of the Judge.

1

Section 103(h) of the Mine Act requires mine operators to “provide such information,
as the Secretary . . . may reasonably require from time to time to enable him to perform his
functions under this Act.” 30 U.S.C. § 813(h).

38 FMSHRC Page 913

I.
Factual and Procedural Background
On May 10, 2011, an MSHA inspector visited the underground Cardinal Mine in
Kentucky owned by Warrior. During an inspection of the mine’s No. 2 unit, he observed
multiple hazardous roof and rib conditions in a place where miners were actively working. The
inspector immediately issued an order to withdraw the miners pursuant to section 107(a) of the
Mine Act.2 In addition, the inspector issued Warrior a citation and an order pursuant to section
104(d), 30 U.S.C. § 814(d). The citation alleged a violation of 30 C.F.R. § 75.202(a)3 for a
failure to protect miners from the hazards related to roof and rib falls. The order alleged that the
hazardous conditions were not listed in the pre-shift examination book, in violation of the safety
standard at 30 C.F.R. § 75.360(a)(1).4
Thereafter, MSHA began a special investigation into the hazardous roof and rib
conditions pursuant to section 110(c) of the Act, which addresses liability for corporate directors,
officers, or agents.5 The investigators suspected that the hazards may have existed for multiple
shifts and sought to interview Warrior’s employees. On June 21, 2011, the MSHA District
Manager sent Warrior a letter stating:
MSHA is conducting a preliminary investigation of a possible
willful/knowing violation. The Federal Mine Safety and Health
Administration (MSHA) is requesting the names, addresses,
positions, shift worked and telephone numbers of the employees at
the Cardinal Mine.
S. Ex. G; W. Ex. 1.
2

Section 107(a) states that “[i]f, upon any inspection . . . an authorized representative of
the Secretary finds that an imminent danger exists, such representative shall . . . issue an order
requiring the operator of such mine to cause all persons . . . to be withdrawn from . . . such area.”
30 U.S.C. § 817(a).
3

Section 75.202(a) states that “[t]he roof, face and rib’s 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.”
4

Section 75.360(a)(1) provides that “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 schedule to work or travel underground.”
5

Section 110(c) states that “[w]henever a corporate operator violates a mandatory health
or safety standard or knowingly violates or fails or refuses to comply with any order issued under
this Act or any order incorporated in a final decision issued under this Act . . . any director,
officer, or agent of such corporation who knowingly authorized, ordered, or carried out such
violation, failure, or refusal shall be subject to . . . civil penalties, fines, and imprisonment . . . .”
30 U.S.C. § 820(c).

38 FMSHRC Page 914

In response, Warrior sent the District Manager a letter which raised concerns that the
demand for information was “overly broad, unduly burdensome, an unwarranted invasion of
confidential and proprietary information of Warrior, and an unwarranted invasion of the privacy
of Warrior’s employees . . . .” S. Ex. H; W. Ex. 2. Warrior also represented that it would
cooperate with MSHA provided that MSHA first obtained the permission of the employees
involved. Id.
An exchange of several letters followed; in each of the letters, Warrior stated that it
disagreed with the scope of the request, and, in turn, the District Manager demanded that Warrior
provide his investigators with the list. Warrior continuously represented that it would not
provide employee contact information without first receiving prior approval from the individual
employees involved.
On July 14, 2011, MSHA issued Citation No. 8503376 to Warrior, alleging that Warrior
failed to provide requested information during an investigation in violation of section 103 of the
Act.6 After receipt of the citation, Warrior continued to refuse to supply the contact information.
Accordingly, MSHA issued an order to Warrior pursuant to section 104(b) of the Mine Act for
its failure to abate the violation.7
Warrior filed notices of contest with the Commission, and the proceedings were assigned
to an Administrative Law Judge. The Judge scheduled the case for a hearing. Thereafter, the
parties filed cross motions for summary decision and responses pursuant to Commission
Procedural Rule 67, 29 C.F.R § 2700.67.
The Judge granted the Secretary’s motion for summary decision, denied Warrior’s
motion, and ordered that Warrior provide the requested information to the Secretary. 35
FMSHRC at 2973-76. The Judge concluded that MSHA’s specific request to Warrior was
“reasonable and for a legitimate government purpose.” Id. at 2974. Accordingly, he affirmed
the citation and the order and assessed a civil penalty of $555. Id. at 2976.
On review before the Commission, Warrior asserts that section 103 of the Act does not
grant the Secretary the authority to compel an operator to produce the contact information of its
employees to MSHA investigators. Warrior also maintains that the Judge’s ruling conflicts with
an MSHA policy document that states that miner participation in interviews is “voluntary.”
6

Section 103(a) provides that “[a]uthorized representatives of the Secretary . . . shall
make frequent inspections and investigations in coal or other mines each year . . . .” 30 U.S.C.
§ 813(a). Section 103(h) states that “[i]n addition to such records as are specifically required by
this Act, every operator of a coal or other mine shall . . . . provide such information, as the
Secretary . . . may reasonably require from time to time to enable him to perform his functions
under this Act.” 30 U.S.C. § 813(h).
7

Section 104(b) authorizes an inspector to issue an order to an operator if, upon any
follow-up inspection of the mine, he determines that a violation was not abated in the time
specified. 30 U.S.C. § 814(b).

38 FMSHRC Page 915

Finally, Warrior contends that the Judge erred in affirming the section 104(b) order because the
violation of section 103(h) did not affect a physical location at the mine.
II.
Disposition
A.' Section 103(h) of the Mine Act authorizes the Secretary to make reasonable
requests for information from a mine operator as part of an investigation.
As noted above, section 103(h) of the Mine Act states that “[i]n addition to such records
as are specifically required by this Act, every operator of a coal or other mine shall . . . provide
such information, as the Secretary . . . may reasonably require from time to time to enable him to
perform his functions under this Act.” 30 U.S.C. § 813(h) (emphasis added).
The Commission had occasion to consider the reasonableness of the Secretary’s request
for records under section 103(h) in Big Ridge, Inc., 34 FMSHRC 1003 (May 2012), aff’d, 715
F.3d 631 (7th Cir. 2013), a case which involved citations issued during an audit of accident,
injury, and illness reports. In Big Ridge we made clear that the Secretary has broad authority to
request information from mine operators. As part of the audit, the Secretary requested access to
medical reports and payroll information, and issued citations alleging violations of 30 C.F.R. §
50.41 to the mine operators who refused to provide the requested information.8 On review, the
Commission concluded that the Secretary’s requests were within the broad scope of authority
provided by section 103(h) of the Mine Act. It stated that section 103(h) provides “clear
instructions that ‘information’ that is not specifically required to be maintained by the Act shall,
nonetheless, be provided to the Secretary to enable her to perform her functions, as long as the
request is reasonable.” Id. at 1012-13 (emphasis added and omitted).
In affirming the Commission’s decision, the Seventh Circuit emphasized that section 103
“unambiguously requires mines to provide MSHA with records, reports and information beyond
what mines are otherwise required to maintain.” 715 F.3d at 641. It further stated that the text of
section 103(h) “permits MSHA to make information demands for a wide range of purposes – any
reasonable requirement that would help MSHA fulfill the purposes of the Mine Safety Act.” Id.
Warrior incorrectly asserts that the court’s ruling in Big Ridge was premised on its
finding that the records at issue there were “relevant and necessary” for MSHA to verify whether
operators complied with Part 50 reporting requirements. W. Br. at 5. Although the posture of

8

30 C.F.R. § 50.41 states that “[u]pon request by MSHA, an operator shall allow MSHA
to inspect and copy information related to an accident, injury or illnesses which MSHA considers
relevant and necessary to verify a report of investigation required by § 50.11 of this part or
relevant and necessary to a determination of compliance with the reporting requirements of this
part.”

38 FMSHRC Page 916

the case in Big Ridge concerned MSHA’s records request pursuant to Part 50, the court did not
restrict its holding to the “relevant and necessary” language of that standard. It emphasized that:
[The text of section 103(h)] permits MSHA to make information
demands for a wide range of purposes – any reasonable
requirement that would help MSHA fulfill the purposes of the
Mine Safety Act.
715 F.3d at 641. The court then stated that “[s]ection 50.41 and the document demands here are
well within those bounds.” Id. at 642. It held that MSHA may reasonably require operators to
turn over records, even records they are not required to maintain, when that information would
enable MSHA to perform any of its functions under the Act. Id. at 641. In other words,
MSHA’s statutory authority is not limited to “relevant and necessary” information. 9
B.' The Secretary’s request was reasonable.
In determining the reasonableness of the Secretary’s document request, we will consider,
as the Big Ridge court did, whether the request is “sufficiently limited in scope, relevant in
purpose, and specific in directive so that compliance will not be unreasonably burdensome.” 715
F.3d at 646 (quotation omitted); see also id. at 642, 646-48.
Applying that framework here, we conclude that the request was clearly reasonable.
First, the request was relevant to MSHA’s purpose, which was to investigate if any agent of the
operator “knowingly authorized, ordered, or carried out” a violation of a mandatory safety
standard. 30 U.S.C. § 820(c). The investigation concerned serious failings with regard to roof
and rib control requirements. MSHA suspected that the roof and rib hazards had existed for
multiple shifts. Failures in these areas have a potential for the most serious safety consequences,
and the employees of the operator are the only potential witnesses who may have relevant
information.
While the scope of the request was broad, we conclude that the broad scope was justified
by the circumstances of the investigation. In connection with an investigation into a potential
systemic compliance failure, MSHA obviously must have access to a broad number of potential
employee witnesses, and must have the ability to follow the investigation where it leads without
unnecessary encumbrance. By having the names of all employees, MSHA can pursue the
investigation without the need to have further conversations with the operator, thereby
maintaining the important aspect of confidentiality during the progress of the investigation.
MSHA could have attempted to frame the request more narrowly by specifying types of job
duties at the mine. However, such an effort might have inadvertently omitted the identities of
persons not directly working on the section who nonetheless would have relevant information.
The Secretary correctly observes that employees might have information by dint of their duties in
9

Even if it could be said that MSHA must establish that the information it seeks from
Warrior is “necessary” for its investigation, MSHA has met this burden in this case. As noted,
infra, miners other than those who worked in the immediate area of the violations may have
relevant information, and MSHA must be able to follow the investigation where it leads.

38 FMSHRC Page 917

office administration or relationships with other employees rather than by virtue of their
particular duties at the operation.
We also conclude that the request was sufficiently limited in both time and manner.
MSHA requested only the names of the employees who were employed at the mine at the time of
the request. Furthermore, the manner is limited to obtaining a list of employees, with their shifts
and contact information. It does not include searching through Warrior’s offices for additional
documents.
In the Big Ridge decision, the Seventh Circuit recognized that while the Mine Act does
not empower MSHA to serve administrative subpoenas during an investigation, the power to
request information pursuant to section 103(h) “amounts to an administrative subpoena in
substance.” 715 F.3d at 646.10 Our determination here that the Secretary’s request is reasonable
is fully consistent with the broad authority the federal courts have accorded agencies’
enforcement of administrative subpoenas.
For example, the Supreme Court has held that an administrative subpoena issued by the
Secretary of Labor pursuant to the Walsh-Healey Act should be enforced if the “evidence sought
by the subpoena was not plainly incompetent or irrelevant to any lawful purpose of the Secretary
in the discharge of her duties under the Act.” Endicott Johnson Corp. v. Perkins, 317 U.S. 501,
509 (1943); see also United States v. Whispering Oaks Residential Care Facility, LLC, 673 F.3d
813, 818 (8th Cir. 2012) (“a subpoena ‘should be enforced when the evidence sought by the
subpoena is not plainly incompetent or irrelevant to any lawful purpose of the agency in the
discharge of its duties.’”) (citation omitted).
We also find the opinion of the Fourth Circuit in EEOC v. Randstad, 685 F.3d 433
(4th Cir. 2012) instructive. In that case, the EEOC filed an application to enforce an administrative
subpoena against an employment agency. The subpoena requested employment information from 13
offices in Maryland over a five-year period. The EEOC was investigating allegations of disability
discrimination based on an alleged literacy policy of the employer. The Fourth Circuit rejected the
employer's claim that the geographic and temporal scope of the subpoena went too far. Although the
10

Our dissenting colleague is deeply critical of the Seventh Circuit’s analogizing of
MSHA’s authority to request information pursuant to section 103(h) to the issuance of
administrative subpoenas, and suggests that the court may have been unaware of MSHSA’s lack
of general subpoena power. Slip op. at 15-16 n.1. It is certainly true that the Mine Act does not
provide MSHA with the express power to issue subpoenas except in connection with summoning
witnesses to appear and documents to be produced for investigatory public hearings. 30 U.S.C §
813(b). However, as discussed supra, the Mine Act, in section 103(h), clearly requires “every
operator of a coal or other mine [to] establish and maintain such records, make such reports, and
provide such information, as the Secretary . . . may reasonably require from time to time . . . .”
30 U.S.C. § 813(h) (emphasis added). Hence, although Congress did not give MSHA the power
to subpoena individuals to testify except in connection with investigatory public hearings, it did
give MSHA the power to reasonably require the production of records and other information
from operators. This power is properly analogized to the power to issue administrative
subpoenas for such records and information.

38 FMSHRC Page 918

employer argued that the subpoena should have been limited to the position assignments made only by
the complainant's office during the years he was temporarily employed there, the court disagreed, stating
that it and the district court “must defer to the EEOC's appraisal of what is relevant so long as it is not
obviously wrong. We conclude the thirteen-office, five year scope of the subpoena was not an
unreasonable exercise of the EEOC's discretion in deciding how to investigate whether [the
employer's] literacy policy was discriminatory.” Id. at 451 (citation omitted).11
The Supreme Court has also held that the burden of showing that the request pursuant to
a subpoena is unreasonable, and therefore should not be enforced, is on the subpoenaed party.
See Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 218 (1946) (holding that “[n]o sufficient
reason was set forth in the returns or the accompanying affidavits for not enforcing the
subpoenas, a burden petitioners were required to assume in order to make ‘appropriate
defense.’”); see also FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977) (“The burden of
showing that the request is unreasonable is on the subpoenaed party.”). If an operator has an
objection to the scope of a request made by the Secretary pursuant to section 103(h), it
appropriately bears the burden of identifying the basis for its objection that the request is not
reasonable.
Warrior did not carry that burden. Warrior’s submissions included a letter to the District
Manager stating that the scope of the Secretary’s request was too broad because it included
employees who were not underground miners. W. Ex. 6. Warrior failed, however, to provide
the Judge with specific objections stating why a certain category of employee would lack
relevant knowledge. Instead, Warrior requested that the Judge decide the case on the arguments
it presented in its motion for summary judgment. See 35 FMSHRC at 2973. In that motion,
Warrior argued that, as a general matter, section 103(h) does not provide the Secretary the right
to the disclosure of private contact information of miners, that the Secretary’s position was in
conflict with an MSHA handbook, that Big Ridge was distinguishable, and that the Secretary was
disregarding a miner’s right not to provide his contact information to MSHA. W. Mot. for Sum.
11

Commissioner Young’s reliance on United States v. Johnson, 628 F.2d 187, 193 (D.C.
Cir. 1980), slip op. at 17, is misplaced. Johnson involved a discharged employee’s request that a
government agency issue subpoenas for witnesses on his behalf. Our opinion rests not on
MSHA’s power to issue subpoenas, but on Congress’s explicit grant of authority to MSHA
pursuant to section 103(h) of the Act.
Commissioner Young relies on Donovan v. Dewey, 452 U.S. 594 (1981) for the Fourth
Amendment proposition that MSHA’s reasonable search must be both authorized by law and
necessary. Slip op. at 19. However, as the Seventh Circuit made clear in Big Ridge, the
protections available to mine operators under the Fourth Amendment when faced with a
documents request are best analogized to the protections available to a regulated entity which has
received a request for documents in the form of an administrative subpoena. Accordingly, it
distinguished the document request in Big Ridge from MSHA’s ability to conduct warrantless
physical searches of mine property considered in Donovan. Because Big Ridge, like this case,
did not involve a physical search of a mine, the Seventh Circuit concluded that “the Fourth
Amendment issues are better understood in terms of the law applicable to administrative
subpoenas.” 715 F.3d at 645.

38 FMSHRC Page 919

Dec. at 6-11. As to MSHA’s request being overly broad, Warrior’s argument for summary
decision was limited to the following general assertion: “The request was unreasonably broad
because it clearly sought information from people who MSHA knew would have no information
to provide.” Id. at 11.
Therefore, Warrior did not provide to the Judge any significant context or factual support
for its cursory contention that the Secretary’s request was “overly broad and not relevant.” PDR
at 6. The mere statement of the breadth of the request does nothing to explain why such breadth
makes the request unreasonable. Warrior needed to assert with particularity why inclusion of
non-underground miners resulted in overbreadth, created a burden, or otherwise was
unreasonable. It failed to do so.
MSHA’s information request placed virtually no “burden” upon the operator. Obviously
the operator could easily produce a list of its employees, and Warrior made no effort to
demonstrate any burden in doing so. As the Judge found, “[s]imply supplying the contact
information for its employees placed almost no burden on Warrior.” 35 FMSHRC at 2974.
Further, such disclosure did not impose any obligation upon any employee. Each
employee could choose whether to cooperate with any MSHA investigator who might contact
the employee. The information sought by the Secretary only enabled his representatives to
contact relevant witnesses away from the mine site, a measure that ensures that the identity of
potential witnesses remains confidential during the course of an investigation. See Commission
Procedural Rule 61, 29 C.F.R. § 2700.61 (“A Judge shall not, except in extraordinary
circumstances, disclose or order a person to disclose to an operator or his agent the name of an
informant who is a miner.”).
MSHA had an understandable preference to speak with potential witnesses in true
privacy rather than in a closed room at the workplace of the entity under investigation. MSHA
must be able to conduct an effective investigation. Therefore, an objection that MSHA could
satisfy its need to speak with potential witnesses by interviewing employees at the mine carries
no weight whatsoever.12
The Commission is mindful and protective of individuals’ right to privacy. However,
every individual working at a mine understands the dangers faced by miners. Therefore, in
undertaking such employment, individuals also understand that the Secretary has the important
task of assuring compliance with laws and regulations protecting the health and safety of miners.
Although employees may refuse to participate in an investigation by MSHA, it does not
overreach by obtaining their names and addresses in the course of conducting an ongoing
investigation into a serious safety situation at a mine.

12

Warrior suggests that the investigators could have visited the mine and asked miners
to join them at an off-site location for interviews. We reject this argument. The Mine Act does
not require such an ungainly process and, as stated above, MSHA is authorized to make
reasonable requests for information during an investigation.

38 FMSHRC Page 920

Accordingly, we hold that Warrior failed to demonstrate that any portion of the
Secretary’s information request was unreasonable.
C.' The Secretary’s special investigation handbook does not authorize Warrior’s
refusal to comply with the information request, and MSHA’s request did not
deprive Warrior of fair notice of its obligations under the Mine Act.
Warrior argues that the Secretary’s request for miner contact information impermissibly
forces it and its miners to participate in the Secretary’s investigation, which conflicts with
MSHA’s policy that states that participation in an investigation is voluntary. W. Br. at 6-9.
Warrior’s assertion is based on the statement “all information is voluntary and may be refused”
found in MSHA’s Special Investigations Procedures Handbook at page 5-9. W. Ex. 12.
We disagree. As to Warrior itself, the argument would give any operator carte blanche to
refuse to participate in an MSHA special investigation, which would eviscerate MSHA’s ability
to conduct a meaningful inquiry.
As to individual miners, there is no conflict between the MSHA Special Investigations
policy and the Secretary’s request to Warrior. Any miner contacted by the Secretary during the
course of the investigation can voluntarily choose whether to participate in a subsequent
interview and to what extent. Under the Secretary’s proposed investigation method, miners
retain their individual ability to make a decision for themselves, and inform the investigators of
their decision. The Handbook in no way sanctions Warrior’s refusal to comply with the
Secretary’s request.
Further, because there is no conflict between an employee’s right to choose whether to
participate in an investigation and the right of the Secretary to obtain material reasonably related
to its investigation, Warrior was not deprived of fair notice.
Finally, we note that it is well established that policy manuals are not officially
promulgated and do not prescribe rules of law that are binding on the Commission or its Judges.
King Knob Coal Co., Inc., 3 FMSHRC 1417, 1420 (June 1981) (citing Old Ben Coal Co., 2
FMSHRC 2806, 2809 (Oct. 1980)).
D.' The Secretary’s interpretation of section 104(b) of the Mine Act is reasonable.
The Judge concluded that an inspector can issue an order alleging a failure to abate a
violation pursuant to section 104(b), even if the inspector determines that no discrete physical
location in the mine is affected by the violation. 35 FMSHRC at 2975.
Warrior argues that the Judge erred, in that the language of the standard makes the
inspector’s ability to issue a section 104(b) order conditional on his determination that a specific
area has been affected. We disagree.

38 FMSHRC Page 921

Section 104(b) of the Mine Act states:
If, upon any follow-up inspection of a coal or other mine, an
authorized representative of the Secretary finds (1) that a violation
described in a citation issued pursuant to subsection (a) has not
been totally abated within the period of time as originally fixed
therein . . . and (2) that the period of time for abatement should not
be further extended, he shall determine the extent of the area
affected by the violation and shall promptly issue an order
requiring the operator of such mine or his agent to immediately
cause all persons, except those persons referred to in subsection
(c), to be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary determines
that such violation has been abated.
30 U.S.C. § 814(b) (emphases added).
Section 104(b) provides two conditions for the issuance of an abatement order: (1) a
violation has not been totally abated within the time period fixed and (2) the inspector
determines that the period for abatement should not be further extended. If those two conditions
are satisfied, the inspector must then “determine the extent of the area affected by the violation”
and issue the order which requires the withdrawal of miners from that area. It is this second set
of requirements that arguably injects ambiguity into the standard. The Mine Act provides no
specific direction for how an inspector is to proceed if he determines that a violation has not been
abated within the time fixed, the period should not be extended, but “the extent of the area
affected” language is not applicable.
When the Mine Act is silent on an issue, the Secretary’s interpretation which reasonably
effectuates the health and safety goals of the Act is controlling. Sec’y of Labor on behalf of
Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 115 (4th Cir. 1996). Deference is accorded to “an
agency’s interpretation of the statute it is charged with administering when that interpretation is
reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994)
(citing Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984)).
We conclude that the Secretary’s interpretation of the statute, permitting the issuance of a
section 104(b) order which states that the inspector determined that no area of the mine in
particular was affected by the violation, is a reasonable interpretation.
It is significant that nothing in the language of section 104(b) prohibits the Secretary from
issuing a “no area affected” order. The language indicates that, if the two conditions above are
met, the MSHA inspector “shall determine the extent of the area affected by the violation” and
order the appropriate withdrawal of miners from “such area” until it is determined that the
violation has been abated. Thus, if no specific area of the mine is affected by the violation, it is
reasonable to read the statute as providing that the inspector is to state that determination and
issue a corresponding section 104(b) order.

38 FMSHRC Page 922

The Secretary’s interpretation is also consistent with the remedial nature of the Act. See
Pattison Sand Co., v. FMSHRC, 688 F.3d 507, 513 (8th Cir. 2012) (“The Act is remedial in
nature and its terms should therefore be construed broadly.”). Furthermore, it is consistent with
the Mine Act’s structure and progressive enforcement scheme of increasingly severe sanctions
being applied when an operator incurs repeated violations. See 30 U.S.C. § 814(d) and (e).
A “no area affected” order provides an important deterrent to operators who fail to abate
violations in a timely fashion. Moreover, issuing such orders has been an ongoing and accepted
practice for many years. See Thunder Basin Coal Co., 16 FMSHRC 671 (Apr. 1994)
(acknowledging the Secretary’s practice of issuing “no area affected” section 104(b) orders).
The issuance of an order for a failure to abate promotes compliance by imposing a consequence
on an operator that refuses to comply with the Mine Act.
While the immediate result of miner withdrawal is not applicable if no physical space in
the mine is affected by the violation, the withdrawal of miners is not the only consequence
associated with the issuance of a section 104(b) order. Pursuant to section 105(b)(1)(A) of the
Act, 30 U.S.C. § 815(b)(1)(a), the Secretary is authorized to seek a separate civil penalty if an
operator has not corrected a violation in a timely manner, i.e., if the issuance of a section 104(b)
order for failure to abate the violation was warranted. Moreover, section 110(b)(1) of the Act, 30
U.S.C. § 820(b)(1), authorizes the assessment of a civil penalty on a daily basis if an operator
fails to abate a violation. Finally, a Judge can assess an elevated civil penalty as a result of an
operator’s failure to abate a violation. See 30 U.S.C. § 820(i) (“In assessing civil monetary
penalties, the Commission shall consider . . . [factors that include] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of a violation.”).
In these instances, the issuance of a “no area affected” section 104(b) order documents the
operator’s failure to comply, and the prospect of a higher penalty acts as a deterrent.
Our dissenting colleague suggests that the operator was not afforded due process
protection because “[r]ather than an opportunity to seek judicial review concerning the scope and
nature of the agency’s request . . . the operator was exposed to the threat of immediate and
coercive penalties simply for defending its fundamental rights.” Slip op. at 20. The Seventh
Circuit in Big Ridge categorically rejected a similar claim (that the mine operators’ due process
rights were violated because MSHA was allowed to impose daily penalties on mines not
complying with record demands before any opportunity for judicial review). After analyzing the
legislative history of the Mine Act, the Court found that the procedures for imposing penalties
were constitutional. 715 F.3d at 652-53. It also noted that the Secretary had granted the
operators’ request not to assess any failure-to-abate penalties until after the disposition of the
hearing before the Judge, and that the Commission granted the mine operators’ request to
expedite its review. Id. at 654. The Court concluded that “the penalties do not violate the mine
operators’ right to due process because the statutory scheme offered opportunities both for
review and to mitigate the penalties.” Id.
Moreover, although our colleague implies that Warrior was forced to pay penalties for its
failure to turn over the records without recourse to Commission review of MSHA’s request, this
was not the case. Pursuant to the scheme set forth by Congress in the Mine Act, the Secretary
proposed a penalty for Warrior’s failure to turn over the records, the operator contested the

38 FMSHRC Page 923

citation and the penalty, and was only ordered to pay a $550 penalty after the opportunity for a
hearing before a judge. In addition, there is no record of any proposed penalty for the failure to
abate order.13
For the aforementioned reasons, we conclude that the Secretary’s interpretation of section
104(b) of the Mine Act as authorizing MSHA inspectors to issue “no area affected” orders is
reasonable and should be given deference.
III.
Conclusion
We affirm the Judge’s decision to grant the Secretary’s motion for summary decision.
Accordingly, the citation and the order are both affirmed. Warrior is ordered to pay the assessed
civil penalty and to provide the requested information to MSHA within 30 days of the date of
this decision if it has not already done so.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

13

We also note that Warrior could have requested an expedited hearing before the Judge.
See Commission Procedural Rule 52, 29 C.F.R. § 2700.52.

38 FMSHRC Page 924

Commissioner Althen, concurring:
I concur with the majority decision. Commission precedent establishes that, although
MSHA does not have authority to issue administrative subpoenas except in very limited
circumstances, sections 103(a) and (h) of the Mine Act authorize MSHA to demand documents
beyond those required by the Act. Here, MSHA was pursuing an important investigation; the
document demand imposed virtually no burden on the operator, and implicated minimal, if any,
privacy rights. I think the request was “reasonable.”
However, I share many of the important concerns expressed in Commissioner Young’s
dissent. In particular, a document demand under section 103(h) is not an administrative
subpoena. There are important differences. A fundamental difference is the absence of a
hearing before assessment of a proposed civil penalty arising from the failure to comply with a
document demand.14 !The right to a fair hearing at a meaningful time and in a meaningful manner
is a fundamental requirement of the due process clause of the Fifth Amendment. Mathews v.
Eldridge, 424 U.S. 319, 333 (1976).
In Big Ridge, Inc. v. FMSHRC, 715 F.3d 631 (7th Cir. 2013), the Seventh Circuit offered
three reasons that a penalty assessment before a hearing in a document demand case did not
create constitutional difficulties: (1) mine operators could ask MSHA to delay imposing the
penalty; (2) penalties are not automatic; and (3) mine operators can contest a penalty assessment
before it becomes final. Id. at 653-54. The first two points rest upon a speculative, secular faith
in the goodwill of government.15 Only, the third point is substantive.
In Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), the Supreme Court did not find
a constitutional defect in a pre-hearing assessment of a civil penalty. However, the Court was
careful to state that it was the record in that case that did not support finding a constitutional
defect. Id. at 216-18. That case focused upon the jurisdiction of federal district courts and upon
the circumstances associated with inspections – that is, the type of MSHA actions that formed
14

There are other differences. For example, it appears that the operator never provided
the demanded information at issue in this case. Unless MSHA has kept a section 110(c)
investigation open for more than four years awaiting the names and addresses of all employees, it
completed its investigation without the operator’s compliance with the demand. Assuming that
is the case, if this proceeding was analogous to an administrative subpoena proceeding, then,
when the agency closed the investigation, a motion to compel compliance with a subpoena
would be moot. Here, apparently, the Secretary collects a monetary penalty even though MSHA
has foregone receipt of the documents in completing its investigation.
15

This unusual case provides only a modicum of justification for the Big Ridge court’s
initial propositions. Here, MSHA did not seek a daily fine for the failure to abate order, and
followed normal processes in assessing a fine for the section 104(a) citation. Indeed, the records
obviously were not of real interest to MSHA as it allowed the contest to continue for over four
years and, apparently, closed the investigation without obtaining the information. This provides
no comfort that in other cases, when MSHA actually wants the information, it will not propose
daily fines to coerce compliance before a hearing.

38 FMSHRC Page 925

the gravamen of the Court’s acceptance of warrantless inspections in Donovan v. Dewey, 452
U.S. 594 (1981). Such urgency does not attach to document demands and, thus, does not offer
the set of facts or intellectual underpinning upon which the Court rested its Thunder Basis
decision.
I do not find due process concerns sufficiently raised and articulated in this case to
warrant definitive analysis. However, I am uncomfortable with the notion that MSHA may
impose significant daily fines upon respondents to coerce compliance with a demand for records
before a fair hearing. A future case in which MSHA does not meet either of the first two
hypotheses of Big Ridge would present an opportunity to review the constitutionality of MSHA’s
imposition of severe, pre-hearing fines to coerce disclosure in the context of a specific
investigation or discrimination case.
In this regard, MSHA recently alleviated constitutional concerns over the right to
immediate review of a notice of safeguard by instituting a procedure for a technical citation
followed by a hearing. See Program Policy Letter (“PPL”) No. P14-V-02 (issued Sept. 24,
2014); Contest of Mine Approval Actions, MSHA’s Program Policy Manual, V.G-4. Such a
procedure for document demands, if coupled with an expedited hearing, would go far toward
vindicating the Seventh Circuit’s otherwise naïve assumptions about MSHA and toward assuring
the constitutionality of enforcement procedures for document demands under section 103(h).

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

38 FMSHRC Page 926

Commissioner Young, dissenting:
I joined our opinion approving the Secretary’s information request in Big Ridge, Inc., 34
FMSHRC 1003 (May 2012), despite some misgivings, because the Mine Safety and Health
Administration’s (MSHA) request was narrowly crafted and the information sought was
necessary to proper, specific and publicly-noticed auditing functions. Further, the rulemaking in
Big Ridge gave notice that the Secretary intended to seek precisely the types of information at
issue. Finally, and most critically, the information request at issue in Big Ridge was authorized
and directed by the Secretary’s own designated Administrator, whom Congress intended to
exercise the discretionary powers under the Act.
The current information request is not similarly graced, and the majority seeks to follow
an appeals court’s invitation16 – on an issue we pointedly did not address in our decision in Big
Ridge – to engage in an alarming and unconstitutional expansion of the law, and to permit the
sort of low-level policy freelancing the Supreme Court has expressly disapproved on Fourth
Amendment grounds. I dissent.
At the heart of the majority’s opinion lies the mistaken assumption that MSHA has the
authority to issue administrative subpoenas in connection with routine mine inspections.17 The
16

The Seventh Circuit’s reference to administrative subpoenas provides no support for
its recognition of a general subpoena power in the Mine Act. Like the majority (see n.2, infra),
the Court of Appeals simply assumes that the subpoena power exists, stating that it is “not
persuaded” otherwise. Big Ridge, Inc. v. FMSHRC, 715 F.3d 631, 642 (7th Cir. 2013). This is a
bare conclusion that cites no law governing the issuance of subpoenas under the Act or as a
general matter of administrative law. Somewhat ironically, the court states, “we conclude that
the record demands are best understood, in constitutional terms, as administrative subpoenas.”
Id. at 644. Of course, “in constitutional terms,” MSHA has no power whatsoever, except that
which has been bestowed by Congress. It may be understandable that the Court of Appeals
would assume that the Mine Act authorizes the issuance of administrative subpoenas – a
prerequisite to their use and enforcement under the Administrative Procedure Act. See 5 U.S.C.
§ 555(d) (requirement that agency subpoenas be “authorized by law”). It is relatively rare for an
agency not to have Congressional authorization to issue administrative subpoenas, which
suggests strongly that such power must be express, and not implied. See Edward A. Tomlinson,
Discovery in Agency Adjudication, 1971 DUKE L.J. 89, 93 n.19 (1971) (“Those few remaining
agencies which do not possess the subpoena power must obtain it from Congress.”)
17

In seeking to rationalize the Seventh Circuit’s position on administrative subpoenas,
the majority falls into the same trap as the appeals court but lacks the legally-valid fallback
position afforded by the distinguishable facts in Big Ridge. The appellate court could properly
have noted that Congress did, in fact, confer significant powers on the Secretary, along with the
appropriate rulemaking he had undertaken in direct support of the records request, and affirmed
our holding on that basis. Instead, it sought to overcome the significant impediments the
Supreme Court has imposed on agency searches and seizures by assuming, as the majority now
has in turn, that MSHA has a power Congress withheld from it. Thus, the majority’s
(continued…)

38 FMSHRC Page 927

problem with this rationale is that Congress not only failed to confer general administrative
subpoena power on MSHA, it designed the Mine Act to preclude any inferences in favor of that
power.
As we very recently held in Pocahontas Coal Company:
The precise list of jurisdictional triggers in section 105(d) strongly
indicates a Congressional intent to exclude other types of actions.
See Saxon v. Georgia Ass’n of Indep. Ins. Agents, Inc., 399 F.2d
1010, 1014 (5th Cir. 1968) (holding that “a power which has been
withheld or denied by Congress cannot be found to exist as an
‘incidental’ and ‘necessary’ power” when Congress has
specifically delineated other powers).
38 FMSHRC 157, 160-61 (Feb. 2012).
Despite our fresh recognition of this fundamental principle of statutory construction, the
majority finds a general subpoena power where none was given. Indeed, the Mine Act
authorizes subpoenas in only two circumstances: 1) to compel the attendance of witnesses when
the agency holds public hearings to assist its investigation following an accident or other
occurrence (section 103(b)); and 2) to authorize the Commission to compel the appearance of
witnesses and production of evidence for hearings (section 113(e)). 30 U.S.C. §§ 813(b), 823(e).
Not only is the express authority for subpoenas severely limited under the Act, the power
is extended to the Commission, and not the Secretary, except when summoning witnesses to
public hearings. This is important.18 “The Supreme Court has characterized as ‘treacherous
17

(…continued)
fundamental error is its endorsement of the Seventh Circuit’s assumption that the authority exists
and then analogizing the case at bar to cases where the issue was the scope of an authorized
administrative subpoena. These cases have no relevance because MSHA does not possess
subpoena power, and the alternative justifications offered have been expressly refuted by the
Supreme Court. See pp. 18-19, infra.
18

In addition to the case law cited in this opinion, it’s worth noting that, in a Report to
Congress directed by Public Law 106-544, Section 7, the Department of Justice expressly noted
the limited scope of the Secretary’s subpoena power under the Act. Citing section 103(b) of the
Act, the report states that this conferral is the Act’s sole administrative subpoena authority:
For the purpose of making any investigation of any accident or other occurrence
relating to health or safety in a coal or other mine, the Secretary may, after notice, hold
public hearings, and may sign and issue subpoenas for the attendance and testimony of
witnesses and the production or [sic] relevant papers, books, and documents, and
administer oaths.” Federal courts have long recognized that the subpoena power of the
Secretary under this and the predecessor Federal Coal Mine Health and Safety Act of
(continued…)

38 FMSHRC Page 928

business’ such imputations of power from one agency to an entirely different agency.” Peters v.
United States, 853 F.2d 692, 699 (9th Cir. 1988) (citing FTC v. Bunte Bros., Inc., 312 U.S. 349,
353 (1941)).
Peters is directly on point, and confronts the extension of subpoena power where none
was conferred by Congress. The Immigration and Naturalization Service (INS) assumed it had
the power to issue subpoenas because the Internal Revenue Service had been granted similar
power to issue summonses in an analogous situation. Id. at 698. In reversing the District Court’s
“expansive” reading of the authorizing statute, the Court of Appeals contrasted the inferred
power with the “specific legislative direction [given to the IRS] in an area heavily explored by
both Congress and the courts.” Id. at 698-99.
Here, the structure of that Act clearly evinces Congressional intent to limit the
Secretary’s subpoena power, by specifying this power may be wielded by the Secretary in only
one situation not at all like or related to the circumstances presented by this case. Further, the
legislative history and the structure and operation of the Act make clear that Congress intended
independent adjudication by the Commission, and placed significant restraints on the Secretary’s
ability to enforce the Act and to adjudicate issues unilaterally. Thus, except when MSHA
convenes a public hearing authorized by the Act, only the Commission has the authority to issue
subpoenas, as a necessary extension of its power to conduct hearings.
This necessity, too, has been examined in a Court of Appeals, which similarly found
unavailing the government’s arguments in favor of an inferred power to issue subpoenas. See
Johnson v. United States, 628 F.2d 187, 193 (D.C. Cir. 1980) (“Subpoena power is not an
intrinsic feature of the administrative process, and courts cannot engraft subpoena authority onto
an agency’s charter from Congress.”) (citation omitted). In Johnson, a discharged federal
employee claimed that his due process rights were violated by the Civil Service Commission’s
failure to issue subpoenas for witnesses on his behalf. Id. The Court of Appeals held that there
was no authority for the subpoenas sought by the employee. Id. Citing precedent, the Court
reiterated that “‘(t)he Commission cannot confer upon itself the power of subpoena in the

18

(…continued)
1969 (P. L. 91-173) is limited to public hearing settings, United States v. Blue Diamond
Coal Co., 667 F2d 510, 519 (6th Cir. 1981); UMWA v. Martin, 785 F. Supp. 1025, 1027
[n].1 (D.D.C. 1992). Thus, it is clear both from the wording of the statute and the court
interpretations that the subpoena power of the Mine Act is limited to investigatory public
hearings being conducted by the Secretary.
U.S. Department of Justice, Office of Legal Policy, Report to Congress on the Use of
Administrative Subpoena Authorities by Executive Branch Agencies and Entities, Appendix A-1
(emphasis added). Of course, pursuant to Section 112 of the Mine Act, all litigation by the
Solicitor before the Commission is subject to the direction and control of the Attorney General,
and the Justice Department’s frank appraisal in a statutorily-mandated report should thus be
accepted as authoritative.

38 FMSHRC Page 929

absence of a statute requiring it to hold hearings of the type involving subpoenas.’” Id. (citing
Deviny v. Campbell, 194 F.2d 876, 880 (D.C. Cir.), cert. denied, 344 U.S. 826 (1952)).19
One cannot overlook, in this context, the significance of Congress’ choice to establish an
independent Commission. Not only does the Labor Department lack the authority to conduct
hearings, but Congress assigned that function to another, distinct entity: the Commission.
Indeed, the Commission has express subpoena power as an extension of its authority to conduct
hearings under the Act. Where Congress has clearly delineated, and limited, the subpoena power
under the Mine Act, it is improper for the Commission – or the courts – to infer additional power
clearly withheld.20
Noting the Secretary’s own awareness that it lacks subpoena authority beyond that
expressed in the Act seems almost beside the point, in light of the overwhelming authority
weighing against a more expansive view. But the Secretary’s representatives did in fact seek
greater subpoena powers, and the sponsors of the bill acknowledged the Secretary’s absence of
authority to issue such subpoenas. See Big Ridge, 715 F.3d at 642 (citing Committee on
Education and the Workforce Democrats, H.R. 1373: The Robert C. Byrd Mine Safety
Protection Act of 2013, 113th Cong., 1st Sess. (Mar. 21, 2013) (citation omitted)). While the
Seventh Circuit dismissed this, id., the Secretary’s clear understanding of its administrative
boundaries is nothing less than an acknowledgment of the governing law here.
Even if one were to somehow find the request permissible under another theory, in this
context the request must be recognized on principle as facially overbroad and unreasonable
under Donovan v. Dewey, 452 U.S. 594 (1981). From conditions in one section of a mine,
MSHA has concocted theories justifying an unbounded inquisition into the operator’s affairs and
the authority, not only to question anyone whom it wishes on any subject, but to compel the
operator’s cooperation in what appears to be the classic – and forbidden – “fishing expedition.”
The agency presents no evidence of a mine-wide problem, but appears confident that it
would find one, but for the operator’s intransigence. See S. Br. at 20 (“At the beginning of its
19

The majority attempts to distinguish Johnson on its facts, but the fundamental legal
principles upon which the decision rests are express, forceful and controlling here and do not
depend on the peculiar circumstances of that case for their vitality.
20

Where some courts have inferred a subpoena power from a statute, the inference arose
from a statutory grant that implied the power by necessity. See U.S. v. Florida Azalea
Specialists, 19 F.3d 620, 622-23 (11th Cir. 1994) (court, citing Peters, affirmed issuance of
subpoena as within the scope of the subpoena authority conferred by Congress, even though the
specific circumstance was not expressed in the statute authorizing investigations by the Office of
Special Counsel); U.S. ex rel Richards v. De Leon Guerrero, 4 F.3d 749, 753 (9th Cir. 1993)
(subpoena power is inferred from the grant of audit power to the Department of Interior under
Insular Areas Act, which was expressly made “in addition to the authority conferred upon the
Inspector General by the Inspector General Act of 1978.”) (citation omitted). Both cases
followed Peters and specifically quoted its holding that “[t]he authority of an administrative
agency to issue subpoenas for investigatory purposes is created solely by statute.” Florida
Azalea, 19 F.3d at 623; De Leon Guerrero, 4 F.3d at 753.

38 FMSHRC Page 930

section 110 investigation, MSHA could not have known how long the [subject] violations had
existed, which agents knew or had reason to know of their existence, and whether the violations
occurred because of broader practices occurring elsewhere in the mine . . . .”) (emphasis added).
This is essentially an acknowledgment that MSHA, despite the broad – and Donovan-approved –
authority to enter the mine as part of the regular inspection process and to examine all
documentation in the mine, must nonetheless also be given general authority to demand
documentation that a low-level field agent (contra the Supreme Court’s proscription in Marshall
v. Barlow’s, Inc., 436 U.S. 307 (1978)) believes he may need to build a case without any reason
to believe, at the outset, that the case exists.
The agency’s argument is seductive. The logistical difficulty and inconvenience of
complying with the Secretary’s request in this case is, indeed, trivial. In light of the protracted
litigation that has ensued, it may in fact have been easier and less costly for the operator to
provide access to all of the contact information for everyone who works at the mine, just as it
may be more convenient to simply consent to an officer’s request to rifle through one’s
possessions on the street rather than insisting on a warrant. However, the Seventh Circuit’s
opinion in Big Ridge rests squarely on Donovan, which draws its force in turn from the Fourth
Amendment.
We might do well to remember, then, that Donovan explains conformance to
constitutional protections – it does not do away with them. Contrary to the majority’s
assumption, Donovan requires that a reasonable search be both authorized by law and necessary.
See Donovan, 452 U.S. at 599 (“Inspections of commercial property may be unreasonable if they
are not authorized by law or are unnecessary for the furtherance of federal interests.”). Thus, the
majority’s confidence in the breadth of the Seventh Circuit’s opinion – which dismisses with
hardly a concern the operator’s argument against the supposed “subpoena” power – is sorely
misplaced. Asserting that Congress “authorized” agency personnel below the Secretary to seek
any “relevant” information from operators, with the bounds of that inquiry left solely to those
subordinate agents, disregards Donovan and its constitutional underpinnings, as well as the Act’s
provision of a forum for ensuring the agency does not have the very sort of unfettered discretion
it claims before us in this case.
Donovan, in fact, speaks directly to just that problem:
“Where Congress has authorized inspection but made no
rules governing the procedures that inspectors must follow, the
Fourth Amendment and its various restrictive rules apply.”
Colonnade Corp. v. United States, supra, 397 U.S., at 77, 90 S.Ct.,
at 777. In such cases, a warrant may be necessary to protect the
owner from the “unbridled discretion [of] executive and
administrative officers,” Marshall v. Barlow’s, Inc., supra, 436
U.S. at 323, 98 S.Ct., at 1826, by assuring him that “reasonable
legislative or administrative standards for conducting an . . .
inspection are satisfied with respect to a particular

38 FMSHRC Page 931

[establishment].” Camara v. Municipal Court, 387 U.S. 523, 538,
87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967).
Id. Furthermore, the very concerns which led the same Supreme Court to disapprove of
warrantless searches under the Occupational Safety and Health Act in Marshall v. Barlow’s, Inc.
are present in this case. As the Donovan Court explained, in contrasting the regularity of
inspection spelled out in the Mine Act with the asserted authority to inspect the panoply of
businesses regulated under the OSHA:
In assessing this regulatory scheme [under the
Occupational Safety and Health Act], this Court found that the
provision authorizing administrative searches “devolves almost
unbridled discretion upon executive and administrative officers,
particularly those in the field, as to when to search and whom to
search.”
452 U.S. at 601 (emphasis added). This, then, represents the proper perspective for analyzing the
request at issue in this case: is there any limit or regularity inherent in the exercise of the
Secretary’s discretion under section 103(h), when employed by an inspector?
There is precious little. The request in Big Ridge involved an initiative developed by or
at the direction of the Assistant Secretary, published in advance, and subject to public review and
comment. The nexus between the information sought and the audit function for which it was
needed was, as we held and the Seventh Circuit affirmed, tightly focused.
Contrast those facts with the current request, initiated by the type of low-level field agent
whose discretion the Supreme Court found so troubling in Donovan and Barlow’s, Inc. Not only
does the agency assert de facto subpoena power has somehow been conferred (silently) all the
way from Congress to a mine inspector, it does so without even the modest due process
protections an actual subpoena might provide to its recipient. Rather than an opportunity to seek
judicial review concerning the scope and nature of the agency’s request here, as it would have
with a proper subpoena, the operator was exposed to the threat of immediate and coercive
penalties simply for defending its fundamental rights.21
21

This really is a matter of fundamental rights. As the Court of Appeals for the Sixth
Circuit has noted, and as the Secretary once conceded, the diminished expectation of privacy the
Supreme Court has applied to businesses, even those that are “pervasively regulated,” has not
abrogated the protections of the Fourth Amendment. McLaughlin v. Kings Island, Div. of Taft
Broadcasting Co., 849 F.2d 990, 993-94 (6th Cir. 1988), (citing New York v. Burger, 482 U.S.
691, 699 (1987)). Indeed, the Supreme Court established clear standards in Burger for balancing
(continued…)

38 FMSHRC Page 932

Those rights are the elephant in a relatively small room. Having been granted the power
to conduct unnoticed inspections, and access without a warrant to various documents and
information, the agency nonetheless asserts it must also have the power to require the operator to
produce documents beyond those needed to investigate a known violation, in order to determine
whether there might be other violations elsewhere in the mine, without providing any
foundational facts to gird its suspicions.
Speaking of facts, we should also recall that this case came to us on summary decision.
Thus, the majority today affirms the judge’s finding that the government was entitled to the
information it sought as a matter of law and that no plausible factual scenario – a rogue
inspector, government overreach on the particulars – might give pause on the way to affirmance.
This is a loose and dangerous game, with principles that protect the rights of a free people

21

(... continued)
the government’s interests against the Fourth Amendment rights of pervasively regulated
businesses:
[B]efore any such warrantless inspection or search is
constitutionally acceptable:
First, there must be a “substantial” government interest that
informs the regulatory scheme pursuant to which the inspection is
made.
Second, the warrantless inspections must be “necessary to further
[the] regulatory scheme.”
...
Finally, “the statute’s inspection program, in terms of the certainty
and regularity of its application, [must] provid[e] a constitutionally
adequate substitute for a warrant.” In other words, the regulatory
statute must perform the two basic functions of a warrant: it must
advise the owner of the commercial premises that the search is
being made pursuant to the law and has a properly defined scope,
and it must limit the discretion of the inspecting officers.
Id. at 994 (citing Burger, 482 US at 702-03) (ellipsis in original). The majority fails to even
consider that the Supreme Court has established benchmarks which control our evaluation of
such matters, let alone attempt to analyze the case before us against those benchmarks. There is
no administrative subpoena or any other “constitutionally adequate substitute for a warrant” here,
and as this opinion has noted, there are no real limits on the discretion exercised by the
Secretary’s delegates at the district level. The request is therefore invalid even if the Secretary
could establish that the first two Burger requirements have been met.

38 FMSHRC Page 933

arguably at stake. In the end, the fact that Ernest Miranda was probably guilty22 didn’t prevent
the Supreme Court from honoring the promises made by the Constitution, see Miranda v.
Arizona, 384 U.S. 436 (1966), and the fact that this petitioner operates a mine which failed to
fulfill its duties under the Mine Act – as almost all do, from time to time – should not preclude a
proper constitutional analysis in this case.
The Mine Act represents a negotiated settlement of contentious safety and health issues
among labor, industry and government interests. It was produced through compromise, and has
inured to the benefit of both the nation’s miners and the mining industry. As with all federal
laws, it must be read in harmony with the Constitution’s protection of fundamental rights. The
Commission must respect the Constitution’s limits on the exercise of federal power, and is also
bound to respect the terms of the Act as they were negotiated, including the significant
procedural limits imposed on the Labor Department and the requirement for independent
adjudication by the Commission. Extending to the agency powers that Congress withheld in
drafting the Act represents legal error and a breach of trust. Accordingly, I dissent.
/s/ Michael G. Young
Michael G. Young, Commissioner

22

After his confession was suppressed, Miranda was retried without it and convicted of
the kidnapping and rape of which he had been accused. See Arizona v. Miranda, 450 P.2d 364
(Ariz. 1969).

38 FMSHRC Page 934

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May 17, 2016
UNITED MINE WORKERS OF AMERICA
(UMWA), on behalf of MARK A. FRANKS
v.

PENN 2012-250-D

EMERALD COAL RESOURCES, LP
UNITED MINE WORKERS OF AMERICA
(UMWA), on behalf of RONALD M. HOY
v.

PENN 2012-251-D

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

PENN 2013-305
PENN 2013-306

EMERALD COAL RESOURCES, LP
BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION APPROVING SETTLEMENT
BY: THE COMMISSION
These cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (2012) (“Mine Act”). They involve complaints of discrimination and interference filed by
the United Mine Workers of America (“UMWA”) on behalf of Mark A. Franks and Ronald M.
Hoy pursuant to section 105(c)(3) of the Mine Act. 30 U.S.C. § 815(c)(3). After a hearing on the
merits, an Administrative Law Judge concluded that Franks and Hoy demonstrated that they had

38 FMSHRC Page 935

been discriminated against as a result of their participation in activities protected by the Mine
Act and in violation of section 105(c). 35 FMSHRC 1696 (June 2013) (ALJ).1
Emerald then petitioned the Commission for review of the Judge’s decision, which the
Commission granted. On review, a majority of the Commission affirmed the Judge’s decision in
result. 36 FMSHRC 2088 (Aug. 2014). Emerald then appealed the decision to the United States
Court of Appeals for the Third Circuit. For the reasons articulated below, the Third Circuit
vacated the Commission’s decision and remanded the cases to the Commission for further
analysis.2
The Commission’s decision to affirm the Judge’s decision, in result, was a split decision.
Commissioners Young and Cohen voted to affirm on the grounds that substantial evidence
supported the Judge’s conclusion that Emerald discriminated against Franks and Hoy in violation
of section 105(c) of the Mine Act. Id. at 2089-2103. Chairman Jordan and Commissioner
Nakamura voted to affirm the Judge’s decision in result after concluding that Emerald interfered
with the protected statutory rights of the miners in violation of section 105(c). Id. at 2104-2119.
Commissioner Althen voted to vacate the decision of the Judge. Id. at 2120-2144.
The Third Circuit concluded that the two opinions affirming the Judge’s decision
presented “conflicting rationales” to support the finding that Emerald violated section 105(c) of
the Mine Act, and therefore, the Commission failed to provide a majority rationale that was
“amenable to review.” Emerald Coal Res. LP, v. Hoy, 620 Fed. Appx. 127, 129, 132 (3rd Cir.
2015) (citation omitted). However, the Court further concluded that because “four of five
[Commissioners] agreed that the Mine Act was violated and relief was appropriate, [it]
believe[d] the agency should have a chance to explain its reasoning.” Id. at 133. Therefore, the
Court vacated and remanded the Commission’s decision, noting that it was not expressing an
“opinion as to how the Commission may decide the discrimination or interference issues or

1

The Judge ordered Emerald to take the following remedial actions: (1) provide backpay
to Franks in the amount of $1,168.68 plus interest and backpay to Hoy in the amount of
$1,963.93 plus interest; (2) post the decision at the mine site and provide notice to miners of their
rights under section 105(c); (3) remove all reference to the reprimand from the personnel files of
Franks and Hoy. 35 FMSHRC at 1707.
2

As a result of the Commission’s decision that Emerald violated the Mine Act, the
Secretary of Labor subsequently filed petitions for assessment of civil penalty pursuant to
sections 105 and 110 of the Mine Act. The proposed penalties were $20,000 each, for a total
penalty of $40,000. The parties filed joint stipulations addressing the penalty criteria, and the
Judge assessed the total penalty of $40,000. Unpublished Order (October 29, 2014) (Docket No.
PENN 2013-305 et al.).
Emerald petitioned the Commission for review of the Judge’s civil penalty decision.
However, no two Commissioners voted to grant the petition. Emerald then appealed the Judge’s
decision to the Third Circuit. The Third Circuit consolidated the civil penalty cases with the
other captioned matters.

38 FMSHRC Page 936

whether it should remand the case to the [Judge] to conduct the interference analysis in the first
instance . . . .” Id.
On remand to the Commission, a majority of the Commissioners voted to remand the
proceedings to the Judge “to conduct the interference analysis in the first instance” consistent
with the decision of the Third Circuit. 38 FMSHRC 226, 228 (Feb. 2016).
On April 11, 2016, the Judge issued her decision on remand. She concluded that Emerald
unlawfully interfered with the complainants’ rights under the Mine Act and assessed a total civil
penalty of $40,000. She also reiterated the provisions of her previous order described in footnote
1, supra. 38 FMSHRC __, slip op. at 11-13, No. PENN 2013-305 et al (Apr. 11, 2016).
On April 29, 2016, the parties filed a joint petition for discretionary review. The parties
also announced that they had reached a settlement, and requested approval of their settlement
agreement. The Commission has granted the petition for discretionary review in a separate
Direction for Review, and now disposes of the cases.
The parties’ joint request for approval of settlement was filed in accordance with section
110(k) of the Mine Act, 30 U.S.C. § 820(k), which provides, in relevant part, that “[n]o proposed
penalty which has been contested before the Commission under section 105(a) shall be
compromised, mitigated, or settled except with the approval of the Commission.” Commission
Procedural Rule 31 provides that a “proposed penalty that has been contested before the
Commission may be settled only with the approval of the Commission upon motion.” 29 C.F.R.
§ 2700.31(a). The movant is required to provide “facts in support of the penalty agreed to by the
parties.” 29 C.F.R. §§ 2700.31(b)(1), (c)(1).
The parties represent that Emerald’s mine has ceased production of coal and is now
closed. The parties further represent that Emerald and its parent company, Alpha Natural
Resources, Inc., have filed for bankruptcy. Additionally, the parties represent that Emerald
previously performed all the remedial actions ordered by the Judge: Emerald has provided
backpay to the miners, posted the decision and notice at the mine, and removed the reprimands
from the complainants’ personnel records. The parties now propose that Emerald pay a reduced
civil penalty in the amount of $20,000 in satisfaction of the violations of the Mine Act. The
parties represent that Emerald has assured the Secretary that the penalty agreed upon in
settlement will be paid in the ordinary course of business, pursuant to an Order of the
Bankruptcy Court.
The Secretary represents that he has determined that a total penalty of $20,000, rather
than the $40,000 ordered by the Judge, is appropriate in light of the facts that the Emerald Mine
is now closed, that Emerald and its parent company are now in bankruptcy, and that all other
remedies directed by the Judge, including backpay, have been fully performed.

38 FMSHRC Page 937

The parties’ joint request for approval of settlement is granted. We determine that the
parties have justified that a reduction of the penalty is appropriate given the change in the size of
the operator’s business. See 30 U.S.C. § 820(i) (“In assessing civil monetary penalties, the
Commission shall consider . . . the appropriateness of such penalty to the size of the business
charged. . . .”). Emerald Coal is ordered to pay the civil penalty of $20,000 within 30 days of the
issuance of this order.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

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

38 FMSHRC Page 938

COMMISSION ORDERS

!

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May 19, 2016

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

Docket No. WEVA 2014-685
Mine ID: 46-09192

v.
ACI TYGART VALLEY
BEFORE:

Jordan, Chairman; Young, Cohen, Nakamura and Althen, Commissioners
ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On March 18, 2014, the Commission received from ACI
Tygart Valley (“ACI”) a motion seeking to reopen an imminent danger order that had become a
final order pursuant to section 107(e) of the Mine Act, 30 U.S.C. § 817(e).
Under section 107(e) of the Mine Act, an operator who wishes to contest the issuance of
an imminent danger order under section 107(a) must notify the Secretary of Labor no later than 30
days after being notified of such order.
In evaluating requests to reopen final imminent danger orders, the Commission finds
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).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the imminent danger order was delivered on January 13, 2014, and
became a final order on February 12, 2014. ACI asserted that on February 24, 2014, it received
the results of the bottle samples which were taken by MSHA to substantiate the 107(a) imminent
danger order, and that based upon the results, it concluded that no imminent danger existed.
Since the period for contesting the violation had already expired by the time ACI received the
results of the bottle samples, ACI requested that the Commission reopen these proceedings. The
Secretary opposed the request to reopen. The Secretary noted that the reasonableness of the
imminent danger order did not depend on the results of the bottle samples, but on the information
available to the inspector when the order was issued. Therefore, the Secretary contended that the
operator did not have to wait until it received the results to contest the order.
38 FMSHRC Page 939

We note that the motion to reopen was filed only 34 days after the order became final,
and that the 104(a) citation issued in conjunction with the imminent danger order, Citation No.
8050878, was timely contested by the operator. Furthermore, we note that as the record has yet
to be developed in this matter, it would be prudent to reopen and remand this proceeding to an
Administrative Law Judge, so he or she may consider the Secretary’s argument in light of the
record.
Having reviewed ACI’s request and the Secretary’s response, in the interest of justice, we
hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

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

38 FMSHRC Page 940

ADMINISTRATIVE LAW JUDGE DECISIONS

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

SECRETARY OF LABOR, MSHA
on behalf of ERIC GREATHOUSE,
Complainant,

May 2, 2016

INTERFERENCE PROCEEDING
Docket No. WEVA 2015-904-D
MORG-CD-2015-07

v.
MONONGALIA COUNTY COAL CO.,
CONSOLIDATION COAL COMPANY,
MURRAY AMERICAN ENERGY, INC., and
MURRAY ENERGY CORPORATION,
Respondents.

Monongalia County Mine
Mine ID: 46-01968

SECRETARY OF LABOR, MSHA,
on behalf of RICKY BAKER,
Complainant,

INTERFERENCE PROCEEDING
Docket No. WEVA 2015-905-D
MORG-CD-2015-08

v.
OHIO COUNTY COAL CO.,
CONSOLIDATION COAL CO.,
MURRAY AMERICAN ENERGY, INC., and
MURRAY ENERGY CORPORATION,
Respondents.

Ohio County Mine
Mine ID: 46-01436

SECRETARY OF LABOR, MSHA,
on behalf of LEVI ALLEN,
Complainant,

INTERFERENCE PROCEEDING
Docket No. WEVA 2015-906-D
MORG-CD-2015-09

v.
THE MARSHALL COUNTY COAL, CO.,
MCELROY COAL COMPANY,
MURRAY AMERICAN ENERGY INC., and
MURRAY ENERGY CORPORATION,
Respondents.

Marshall County Mine
Mine ID: 46-01437

SECRETARY OF LABOR, MSHA,
on behalf of MICHAEL PAYTON,
Complainant,

INTERFERENCE PROCEEDING
Docket No. WEVA 2015-907-D
MORG-CD-2015-10

v.

38 FMSHRC Page 941

MARION COUNTY COAL CO.,
CONSOLIDATION COAL CO.,
MURRAY AMERICAN ENERGY INC., and
MURRAY ENERGY CORPORATION,
Respondents.

Marion County Mine
Mine ID: 46-01433

SECRETARY OF LABOR, MSHA,
on behalf of ANN MARTIN,
Complainant,

INTERFERENCE PROCEEDING
Docket No. WEVA 2015-908-D
MORG-CD-2015-11

v.
HARRISON COUNTY COAL CO.,
CONSOLIDATION COAL CO.,
MURRAY AMERICAN ENERGY INC., and
MURRAY ENERGY CORPORATION,
Respondents.

Harrison County Mine
Mine ID:46-01318

SECRETARY OF LABOR, MSHA,
on behalf of MARK RICHEY,
Complainant,

INTERFERENCE PROCEEDING
Docket No. LAKE 2015-616-D
MORG-CD-2015-12

v.
THE OHIO VALLEY COAL CO., and
MURRAY ENERGY CORPORATION,
Respondents.

Powhatan No. 6 Mine
Mine ID: 33-01159

DECISION AND ORDER
Before:

Judge Miller

These cases are before me upon a complaint of interference filed by the Secretary of
Labor (“the Secretary”) on behalf of six miner representatives pursuant to the interference
provisions of Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 815(c). On January 20, 2015, Complainants filed complaints with the Mine Safety
and Health Administration (MSHA) alleging that bonus plans implemented at Respondents’
mines violated Section 105(c) of the Mine Act. On July 31, 2015, the Secretary filed this action
on behalf of Complainants. The parties presented testimony and documentary evidence at a
hearing on March 2, 2016, in Pittsburgh, Pennsylvania. For the reasons that follow, I conclude
that Respondents interfered with the rights of Complainants under the Mine Act in violation of
Section 105(c).
At hearing, the parties presented a number of stipulations, as well as a number of
stipulated exhibits. The stipulations are a part of the record as Exhibit A, and the stipulated
exhibits are entered into the record as numbered. Based upon the stipulations, there is no issue as
to the jurisdiction of MSHA at the six mines named, and no issues of jurisdiction as to the

38 FMSHRC Page 942

Commission. Jt. Stips. ¶ 1. Complainants were all employed at the mines or serving as
representatives of miners at the time the matters arose. Jt. Stips. ¶¶ 15-26. Because the bonus
plans at issue at the six mines and the complaints regarding them are nearly identical, I have
addressed them together. The Secretary has proposed a civil penalty of $20,000 as to each of the
six mines.
I.

FINDINGS OF FACT

This case involves six mines located in West Virginia and Ohio: the Monongalia County
Mine (previously known as Blacksville No. 2 Mine), the Ohio County Mine (previously known
as Shoemaker Mine), the Marshall County Mine (previously known as McElroy Mine), the
Marion County Mine (previously known as Loveridge Mine), the Harrison County Mine
(previously known as Robinson Run No. 95 Mine), and the Powhatan No. 6 Mine. Jt. Stips. ¶¶ 5,
6, 8-13. The mines are owned and operated by wholly-owned subsidiaries of Murray Energy
Corporation (“Murray Energy”). Jt. Stips. ¶¶ 2-13. The subsidiaries as well as Murray Energy are
named as respondents. The six complainants are members of the UMWA and representatives of
miners at the mines who work or have worked as miners at the named mines. Jt. Stips. ¶¶ 15-26.
In January 2015, Respondents implemented the “Safety and Production Bonus Plans” at
issue at six underground coal mines under their control. Jt. Stips. ¶¶ 36, 39, 43, 46, 50, 54.
Hourly employees were notified of the bonus plans in letters distributed in November 2014 and
January 2015. Jt. Stips. ¶¶ 28, 30. The plans offer miners money bonuses if their assigned section
produces a certain amount of coal during their shift. Jt. Exs. 20-25. The bonus amounts range
from $50 to $250 per shift depending on how much coal is produced. Id. Miners who do not
work in a coal production area (“outby employees”) are eligible for bonuses at a lower rate—ten
percent of the bonuses earned by the production crews on their shift. Id.
The bonus plans also provide that certain circumstances disqualify miners from receiving
a bonus, notwithstanding sufficient coal production. First, to be eligible for a bonus, a section
crew member must be “physically present the entire shift, including time spent switching at the
face, during the shift the bonus share is earned.” Jt. Exs. 20-25. Employees who are not on
production crews must also be present for the entire shift to share in the bonus. Id. Second, if a
“lost time accident” occurs that incapacitates a crew member, the entire crew is disqualified from
receiving the bonus for that shift. Id. Finally, a crew working on a section may be disqualified if
an MSHA inspector issues a certain type of citation or order to that section. If an MSHA
inspector issues a citation designated as significant and substantial (“S&S”), all crews that
worked on the cited section are disqualified from earning a bonus for that day. Id. If a
withdrawal order under Section 104(d) or 104(b) of the Mine Act is issued and is attributable to
the crews working on the section, all the crews on that section are disqualified from receiving the
bonus for seven consecutive days. Id.
The bonus and safety plans at issue were designed by Senior Vice President of Murray
Energy Corporation John Forelli. Jt. Stips. ¶ 31; Tr. at 265. Forelli based the plans in part on
plans that were already in place for supervisors at the mine. Jt. Stips. ¶ 33; Tr. at 307-08, 310.
Forelli testified that the company’s motivation in implementing the plans was to improve
production and safety at the mines. Tr. at 265-66. The bonus amounts were intended to be high

38 FMSHRC Page 943

enough to motivate workers but not so high that miners would risk their safety. Tr. at 277-79;
315. Forelli also believed that awarding the bonus on a per-shift basis would minimize the
chance of miners taking safety risks: a miner faced with addressing an unsafe condition would
know that even if he lost the bonus that day, he would have an opportunity to earn it the next
day. Tr. at 277-78.
Before the plans were implemented, Forelli and other managers held meetings with
members of the mine committee of the local union at each mine. Tr. at 147-50, 287. A number of
alterations were made to the original plans as a result of these meetings. For example, in
response to complaints from the union that the lost-time injury disqualification would discourage
reporting of injuries, Forelli added the phrase “that incapacitates the crew member during the
shift” to clarify that the disqualification would depend on when the injury was incurred rather
than when it was reported. Tr. at 271, 288-89. To the provision disqualifying miners for 104(d)
and 104(b) orders, Forelli added the phrase “attributable to the crews working on that section” so
that crews would not be disqualified for violations that were beyond their control. Tr. at 270; Jt.
Exs. 20-25. A term providing for an additional inspection by the union safety committee each
month was added to the plans at the Ohio County and Powhatan No. 6 mines. Tr. at 268-69; Jt.
Exs. 21, 25.
Forelli testified that once the plans were implemented, he reviewed production data from
the mines to see whether production had improved, but he did not reach a definite conclusion. Tr.
at 297-301. Forelli also reviewed daily and quarterly safety reports from the mines and did not
see a discernible difference in safety after the plans were implemented. Tr. at 293-96.
The Secretary presented witnesses from the mines who testified about the effects the
bonus plans had on conditions at the mines.1 Several witnesses testified that they observed that
miners were less willing to serve as walk-around representatives after the bonus plans were
implemented. Tr. at 46-47, 117-18, 152. The witnesses agreed that a person who served as a
walk-around representative on a shift would be counted as an outby employee for purposes of the
bonus and so would earn ten percent of the bonuses earned by the production crews on his shift.
1

Respondents argue that the Secretary failed to present any witness testimony regarding
the effects of the plans at three of the mines. Resp. Br. at 28-29. At hearing, I did not allow the
Secretary to put on several witnesses whose testimony I believed would be cumulative. I find
that, in view of the similarity of the plans, the testimony of the witnesses at hearing was
probative as to the effects of the plans at all of the mines, and the testimony of additional
witnesses was not necessary. This manner of accepting testimony of a representative number of
employees has been approved for many years in other employment related actions. Courts
overwhelmingly recognize the propriety of using representative testimony to establish a pattern
of violations that include similarly situated employees who did not testify. See, e.g., Garcia v.
Tyson Foods, Inc., 770 F.3d 1300, 1307 (10th Cir.2014), Reich v. S. New England Telecomm.
Corp., 121 F.3d 58, 67 (2d Cir.1997) (“[I]t is well-established that the Secretary may present the
testimony of a representative sample of employees as part of his proof of the prima facie case
under the FLSA.”); Reich v. Gateway Press, Inc., 13 F.3d 685, 701 (3d Cir.1994) (“Courts
commonly allow representative employees to prove violations with respect to all employees.”);
Brock v. Tony & Susan Alamo Found., 842 F.2d 1018, 1019–20 (8th Cir.1988)

38 FMSHRC Page 944

Tr. at 46, 178, 243, 283. Ann Martin, chairman of the Safety Committee at the Harrison County
Mine, testified that a young miner who had frequently volunteered to be a walk-around
representative declined after the bonus plan was implemented because he did not want to miss
out on earning the bonus. Tr. at 152. Martin observed that miners became more willing to walk
with inspectors when the bonus plan was discontinued at her mine. Tr. at 156, 166. Timothy
McCoy, a member of a production crew at the Marshall County Coal Mine, testified that his
coworkers discouraged him from serving as a walk-around representative because a less
experienced person would be sent to replace him, affecting the crew’s ability to achieve a bonus.
Tr. at 113-14.
Witnesses for the Secretary also testified about the plan’s impact on miners’ willingness
to report injuries. The miners understood the plans to disqualify everyone on the crew from
receiving a bonus for the day if anyone on the crew was involved in a “lost time accident” during
the shift. Tr. at 53, 159-60; Jt. Exs. 20-25. Several witnesses had observed or heard about
instances of miners deciding not to report injuries they sustained on the job because they did not
want to disqualify themselves and their coworkers from receiving the bonus. Tr. at 54-55, 112.
Levi Allen, UMWA local president at the Marshall County Coal Mine, described an incident in
which a miner sustained a shoulder injury during his shift but decided not to report it because he
“didn’t want to take money off of everybody.” Tr. at 226. Allen testified that after the bonus plan
was implemented at his mine, he got three times as many calls about miners leaving the mine
without reporting an accident. Tr. at 229. At the Ohio County and Powhatan No. 6 mines, the
plan included a term providing that the Mine Safety Committee and Mine Safety Director would
jointly review any accident to ensure that it was correctly documented. Jt. Exs. 21, 25. However,
the chairman of the safety committee at Powhatan No. 6 testified that he had never been asked to
review any accident reports. Tr. at 327-28. Thus, I find that the extra provision did not lessen the
effect of the bonus plans on injury reporting at those two mines.
The witnesses also testified that they believed miners were less willing to report
dangerous conditions in the mine while the bonus plans were in effect. Tr. at 48, 50, 112, 158,
213. They attributed this in part to the provisions of the plan disqualifying miners from the
bonus for citations and orders received inby the tailpiece. Tr. at 48, 112, 162. The witnesses
explained that even if MSHA did not issue a disqualifying citation, reporting a dangerous
condition to management or requesting an inspection took time away from production and so
would lessen the crew’s chance of earning a bonus that day. Tr. at 50, 251. McCoy described an
incident in which a miner expressed that he was unwilling to report a safety hazard because
MSHA would come and the crew would lose the bonus the next day. Tr. at 141-42. Martin
testified that in her capacity as chairman of the local union safety committee, she received fewer
reports from miners about safety hazards while the plans were in effect. Tr. at 158, 166. As with
the injury disqualification provision, the witnesses believed that peer pressure exacerbated the
effect of the plans on safety reporting. Tr. at 50-51, 114, 163. Martin emphasized the importance
the miners placed on earning a good income, which meant that the bonuses had a substantial
effect on them. Tr. at 163.
At all of the mines except for Harrison County, the bonus plan contained a provision
stating that all “production and safety standards, including roof control, ventilation, and rock
dusting, shall be maintained on all shifts where the bonus thresholds are reached. Any major

38 FMSHRC Page 945

deviation will disqualify a crew from receiving the bonus award.” Jt. Exs. 20-23, 25.
Presumably, this provision was meant to encourage compliance with safety standards even where
MSHA was not involved. Allen described an incident at the Marshall County Coal Mine in
which a crew had failed to rock dust as required but had attained the level of production to
qualify for a bonus. Tr. at 217-18. The next crew reported the rock dusting problem to
management, and the first crew lost their bonus under the “standard deviation” provision. Id.
However, the second crew also ended up not achieving a bonus because of the time it took them
to report the problem to management and correct the problem. Tr. at 219-20. Allen thus
explained that in most cases, a crew would not bother to report the deviation and so the provision
would have little effect. Tr. at 220.
Finally, the witnesses for the Secretary testified that the plans had resulted in miners
taking shortcuts related to safety, particularly in the areas of rock dusting, roof bolting,
equipment checks, and ventilation. Tr. at 51-52, 105-07, 153, 223. They explained that safetyrelated maintenance tasks and fixing hazards slowed down production and so could prevent the
crew from receiving the biggest bonus. Tr. at 49, 107-08, 159, 218. Not only the bonus itself but
also peer pressure motivated miners to move quickly and skip safety steps. Tr. at 50, 106-07.
The local union membership at the Powhatan No. 6 and Harrison County mines voted
against adopting the bonus plans, and as a result, the plans are no longer in effect at those mines.
Jt. Stips. ¶¶ 52, 53, 56, 57. The plan was discontinued as a result of arbitration at the Marion
County Mine. Jt. Stips. ¶¶ 48, 49. The plans remain in effect at the Monongalia, Ohio County,
and Marshall County mines. Jt. Stips. ¶¶ 38, 42, 45.
II.

ANALYSIS

The prohibition against interference is established in Section 105(c)(1) of the Mine Act,
which provides:
No person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any miner,
representative of miners or applicant for employment in any coal
or other mine subject to this Act because such miner,
representative of miners or applicant for employment has filed or
made a complaint under or related to this Act, including a
complaint notifying the operator or the operator’s agent, or the
representative of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other mine … or
because of the exercise by such miner, representative of miners or
applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.
30 U.S.C. § 815(c)(1) (emphasis added). Section 105(c)(2) permits a miner or his representative
to file a discrimination complaint with the Secretary if he believes “that he has been discharged,

38 FMSHRC Page 946

interfered with, or otherwise discriminated against” in violation of the Mine Act. 30 U.S.C. §
815(c)(2).
A majority of the Commission has recognized that “the Mine Act establishes a cause of
action for unjustified interference with the exercise of protected rights which is separate from the
more usual intentional discrimination claims evaluated under the Pasula-Robinette framework.”
UMWA on behalf of Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2103 n.22 (Aug.
2014) (Young & Cohen, Comm’rs), vacated, 620 Fed. Appx. 127 (3d Cir. 2015); id. at 2105-07
(Jordan & Nakamura, Comm’rs). To make out a claim of discrimination under the PasulaRobinette framework, an employee must prove that he engaged in protected activity and suffered
an adverse employment action motivated at least in part by the protected activity. Turner v. Nat’l
Cement Co. of Cal., 33 FMSHRC 1059, 1064 (May 2011); Sec’y of Labor on behalf of Pasula v.
Consol. Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. Consol.
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). In contrast, in interference cases,
the Commission has accepted claims where the complainant did not actually engage in protected
activity or where the conduct complained of was verbal harassment rather than a classic adverse
employment action. See Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC 1
(Jan. 2005); Moses v. Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168
(6th Cir. 1985). In these cases, the Commission has focused not on the employer’s motive, but
rather on whether the conduct would “chill the exercise of protected rights,” either by the directly
affected miner or by others at the mine. Gray, 27 FMSHRC at 8; Moses, 4 FMSHRC at 1478-79.
Although the Commission as a whole has not outlined a framework for analyzing
interference claims, two Commissioners recently proposed a framework that has since been
adopted by several of the Commission’s Administrative Law Judges. Franks, 36 FMSHRC at
2108 (Jordan & Nakamura, Comm’rs); see Sec’y of Labor on behalf of McGary v. Marshall Cty.
Coal Co., 37 FMSHRC 2597, 2603-04 (Nov. 2015) (ALJ); McGlothlin v. Dominion Coal Corp.,
37 FMSHRC 1256, 1264-65 (June 2015) (ALJ); Pendley v. Highland Mining Co., 37 FMSHRC
301, 309-11 (Feb. 2015) (ALJ). Under the Franks test, an interference violation occurs if:
(1) a person’s action can be reasonably viewed, from the
perspective of members of the protected class and under the
totality of the circumstances, as tending to interfere with the
exercise of protected rights, and
(2) the person fails to justify the action with a legitimate and
substantial reason whose importance outweighs the harm caused to
the exercise of protected rights.
Franks, 36 FMSHRC at 2108. This approach is consistent with Commission precedent
addressing interference with employee rights, in which the Commission has focused on the effect
of the employer’s conduct on employees’ exercise of protected rights rather than on the motive
behind the employer’s conduct. See Gray, 27 FMSHRC at 9 (analyzing whether employer’s
statements were coercive based on reasonable inferences of the miner); Moses, 4 FMSHRC at

38 FMSHRC Page 947

1479 (holding that actions constituted interference because they “could logically result in a fear
of reprisal and a reluctance to exercise the right in the future”).
The framework proposed in Franks is similar to that used by the National Labor
Relations Board (NLRB) in cases involving the interference provision of the National Labor
Relations Act (NLRA). Section 8(a)(1) of the NLRA provides that “It shall be an unfair labor
practice for an employer to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed” in Section 7 of the Act. 29 U.S.C. § 158(a)(1). In evaluating Section 8(a)(1)
claims, “the Board first examines whether the employer’s conduct reasonably tended to interfere
with Section 7 rights. If so, the burden is on the employer to demonstrate a legitimate and
substantial business justification for its conduct.” Cal. Newspapers P’ship, 343 N.L.R.B. 564,
565 (2004). The analysis “does not turn on the employer’s motive or on whether the coercion
succeeded or failed.” Am. Freightways Co., Inc., 124 N.L.R.B. 146, 147 (1959); see also Medeco
Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 747 (4th Cir. 1998). Rather, the question is “whether the
employer engaged in conduct which, it may reasonably be said, tends to interfere with the free
exercise of employee rights under the [NLRA].” American Freightways, 124 N.L.R.B. at 147. If
the employer produces a “legitimate and substantial business justification” for its action, the
Board must then “strike the proper balance between the asserted business justifications and the
invasion of employee rights in light of the [NLRA] and its policy.” NLRB v. Fleetwood Trailer
Co., Inc., 389 U.S. 375, 378 (1967); Cal. Newspapers P’ship, 343 N.L.R.B. at 565.
Respondents urge the Court to instead apply the test for interference used in a 2001 ALJ
decision, Secretary of Labor on behalf of Feagins v. Decker Coal Co., 23 FMSHRC 47 (Jan.
2001) (ALJ). Resp. Br. at 9. Under the Decker test, the complainant must prove either that “the
challenged action was taken with the intent to damage or deny rights assured under the Act” or
that there is a causal relationship—that is, “exercise of a protected right[] is the
acknowledged cause of damage to the person attempting to exercise the protected right.” 23
FMSHRC at 50. This test is rooted in the statutory language of Section 105(c), which prohibits
“interfere[nce] with the exercise of the statutory rights of any miner … because of the exercise
by such miner … of any statutory right afforded by” the Act. 30 U.S.C. § 815(c)(1) (emphasis
added). However, the Commission in Gray rejected a “literal interpretation” of Section
105(c)(1), which “might require the actual or attempted exercise of a right before the protection
of [that section] comes into play.” 4 FMSHRC at 1480. Instead, the Commission has focused on
the likely effect of an operator’s actions on the future exercise of rights by miners. See Gray, 27
FMSHRC at 9; Moses, 4 FMSHRC at 1478-79. Additionally, the Commission suggested in Gray
that intent is not a necessary element of an interference claim, finding that the judge erred by
focusing primarily on the intent behind a supervisor’s statements to a miner. 27 FMSHRC at 10.
The Commission’s approach is consistent with NLRB cases involving interference,
which do not require proof that the employee actually attempted to exercise a protected right.
See, e.g., Medeco, 142 F.3d at 745 (“An employer’s coercive action affects protected rights
whenever it can have a deterrent effect on protected activity. This is true even if an employee has
yet to exercise a right protected by the Act.”); Jeannette Corp. v. NLRB, 532 F.2d 916, 918 (3d
Cir. 1976) (holding work rule invalid under Section 8(a)(1) because of its “tendency to inhibit”
protected activity without deciding whether protected activity in fact occurred). Further, it is well
established under NLRA case law that unlawful motive is not a necessary element of an

38 FMSHRC Page 948

interference claim. See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 22-23 (1964); Am.
Freightways Co., 124 N.L.R.B. 146, 147 (1959). I find that the test used in Decker Coal does not
accurately reflect the Commission’s current approach to interference, and thus reject the
Respondent’s argument to apply it here.
a. Interference with Protected Rights
The Commission has recognized conduct as tending to interfere with the exercise of
protected rights on a number of occasions. In Moses v. Whitley Development Corp., the
Commission found that coercive interrogation and harassment of a miner after an accident report
was made at the mine constituted interference because it could chill the exercise of protected
rights by miners. 4 FMSHRC 1475, 1478-79 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985).
Two Commissioners came to a similar conclusion in Franks, where two miners were
interrogated and suspended after a safety complaint was made at the mine. UMWA on behalf of
Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2104 (Aug. 2014) (Jordan & Nakamura,
Comm’rs) (finding that the actions could have a chilling effect on miners’ willingness to make
complaints in the future), vacated, 620 Fed. Appx. 127 (3d Cir. 2015). Finally, in Gray, the
Commission determined that potentially threatening comments made by a supervisor about an
employee’s participation in a grand jury proceeding could constitute interference if the judge
found that the comments were coercive in light of the totality of circumstances. Sec’y of Labor
on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC 1, 10-11 (Jan. 2005).
A number of ALJ decisions have also addressed the issue of interference. These cases
have primarily involved threatening or harassing behaviors towards miners in relation to safety
complaints. See e.g. Pendley v. Highland Mining Co., 37 FMSHRC 301 (Feb. 2015) (ALJ)
(finding that interference occurred when coworker verbally and physically harassed miners’
representative while he exercised his walk-around rights); Shemwell v. Armstrong Coal Co., 36
FMSHRC 2352 (Aug. 2014) (ALJ) (finding that interference occurred where supervisor told
miner it was futile to make safety complaints and encouraged other employees to build a record
against the miner after he made a complaint); Sec’y of Labor on behalf of Clapp v. Cordero
Mining, LLC, 33 FMSHRC 2977 (Dec. 2011) (ALJ), aff’d, 699 F.3d 1232 (10th Cir. 2012)
(noting that threatening comments made to an employee after she made a safety complaint were
interference, but resolving case under discrimination provision because she was actually
discharged). The issue of a work rule or policy that interferes with employee rights was
addressed in Secretary of Labor on behalf of McGary v. Marshall County Coal Co., 37
FMSHRC 2597 (Nov. 2015) (ALJ). In that case, the ALJ found that a mine operator interfered
with employee rights to make complaints to MSHA when the operator required employees to
report all safety complaints to mine management and announced the policy in a speech by the
CEO threatening closure of the mine. Id. at 2606-07.
In addition to these cases, the Commission has recognized that “case law interpreting the
National Labor Relations Act, upon which the Mine Act’s antidiscrimination provisions are
modeled, provides guidance on resolution of discrimination issues.” Sec’y of Labor on behalf of
Johnson v. Jim Walter Res., 18 FMSHRC 552, 558 n.11 (1996); Delisio v. Mathies Coal Co., 12
FMSHRC 2535, 2542-43 (Dec. 1990); see also Gray, 27 FMSHRC at 9-10 (reviewing NLRB
precedent in discussion of interference provision). Courts interpreting the NLRA have

38 FMSHRC Page 949

determined that conferral of a benefit on employees can constitute interference under Section
8(a)(1) if the benefit is withheld from employees who exercise a protected right. For instance, in
NLRB v. Rubatex Corp., the Fourth Circuit determined that a company interfered with
employees’ right to strike when it paid a $100 bonus to employees who worked through a strike.
601 F.2d 147, 150 (4th Cir. 1979). Similarly, in Lynn-Edwards Corp., the NLRB held that
interference occurred when a company included a provision in its retirement plan suggesting that
coverage would be withdrawn if employees unionized. 290 N.L.R.B. 202, 205 (1988); see also
Torbitt & Castleman, Inc. v. NLRB, 123 F.3d 899, 907 (6th Cir. 1997) (holding that solicitation
of grievances during union campaign violates Section 8(a)(1) if employer suggests that
grievances will only be resolved if employees reject union representation).
Respondents’ bonus plans promise bonuses ranging from $50 to $250 per shift (or less
for outby employees) based on the amount of coal produced. Jt. Exs. 20-25. Testimony at
hearing indicated that the effect of the bonuses is to create pressure on miners to maximize shortterm production at the expense of safety. Because the bonus is based on the amount of coal
produced by the crew as a whole, each worker feels pressure to work as fast as possible so as not
to take away from potential bonuses for the other workers. The result is that miners take
shortcuts that affect safety and result in a denial of the plan benefits to miners who exercise their
rights under the Mine Act. Several witnesses described seeing areas that were not adequately
rock dusted because miners were in a hurry, or where additional roof bolts should have been
installed but were not. Tr. at 51-52, 105-06, 153, 217-18. These safety-related tasks take
additional time, and miners are therefore reluctant to do them under the bonus plans because they
are less likely to achieve the production goals. Tr. at 119.
In addition to creating a climate adverse to safety, the bonus plans affect miners’
willingness to exercise specific rights under the Act. The Commission has observed that in
framing the Mine Act, Congress believed that the “participation [of miners] in the enforcement
of the Act is essential to the achievement of safe and healthful mines.” Sec’y of Labor on behalf
of Pasula v. Consol. Coal Co., 2 FMSHRC 2786, 2790 (Oct. 1980), rev’d on other grounds sub
nom. Consol. Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). Thus, the Act gives miners the
right to notify MSHA officials or the operator of unsafe conditions or practices in the mine that
require attention. See id.; 30 U.S.C. §§ 813(g)(1), 815(c)(1). The Commission has determined
that miners also have the right to refuse to work in conditions that threaten their health or safety
as well as to report injuries and accidents to the operator. Pasula, 2 FMSHRC at 2790-93; Swift
v. Consol. Coal Co., 16 FMSHRC 201, 205 (Feb. 1994). Yet, under the bonus plan, a miner who
refuses to work, along with everyone else on his crew, will not receive the benefit of a bonus.
Finally, the Act provides that when MSHA conducts an inspection of the mine, a representative
of the miners at the mine “shall be given an opportunity to accompany the Secretary or his
authorized representative . . . .” 30 U.S.C. § 813(f). If the representative of miners is an
employee of the operator, the Act guarantees that he “shall suffer no loss of pay during the
period of his participation in the inspection . . . .” Id. The right to accompany an inspector is
frequently referred to as the “walk-around right.” The Secretary alleges that the bonus plans at
issue here interfere with all of these rights. First Amended Comp. at 16-19.
The Secretary’s witnesses at hearing explained that miners are reluctant to report safety
issues to management or MSHA under the bonus plans because making the report and

38 FMSHRC Page 950

undergoing an inspection take away from production time. 2 Tr. at 50, 251. Further, the bonus
plans disqualify a crew working on a section from receiving the bonus if an MSHA inspector
issues an S&S citation during any shift on that section that day. Jt. Exs. 20-25. If a withdrawal
order under Section 104(d) or 104(b) is issued to a section and is attributable to the crews
working on that section, all the crews on that section are disqualified from receiving the bonus
for seven consecutive days. Id. The effect of these provisions is to penalize miners who make
safety complaints to MSHA, since a complaint to MSHA that results in a violation will prevent
the miner from receiving the bonus. The provisions also create peer pressure against making
complaints, since the entire crew loses the bonus if a violation is found. The witnesses described
instances of miners being unwilling to report violations because of a desire to keep the bonus. Tr.
at 112, 114, 141, 158. Representatives from the safety committees at the mines reported that
miners were reporting fewer violations and were less likely to bring up safety concerns when
asked. Tr. at 158, 166.
Respondents argue that under the bonus plans, “there is no correlation between reporting
rights under the Mine Act and the disqualification provisions.” Resp. Br. at 15. They contend
that “there is absolutely no correlation between the act of reporting and the issuance of a citation
or order resulting from a hazard in the mine.” Id. But in fact there is an obvious correlation:
when a miner reports a hazard to MSHA, the hazard is substantially more likely to be discovered
by an MSHA inspector and thus result in a citation than if the miner were to ignore the hazard
and wait for someone else to address it. Thus, the miner who reports the violation, along with his
co-workers, are more likely to be disqualified from the bonus that day. The provision
disqualifying miners from bonuses for S&S violations is analogous to the situation in the NLRB
case Rubatex Corp., in which a bonus was offered to employees who worked through a strike.
601 F.2d at 150. Employees who exercise their statutory right are less likely to receive the bonus,
and therefore are discouraged from exercising the right. This is interference with a protected
right under Section 105(c).

2

Respondents argue that much of the Secretary’s evidence about the impact of the bonus
plans on miners was in the form of inadmissible hearsay testimony. Resp. Br. at 18-20.
Respondents also argue that they did not have the opportunity to cross-examine witnesses when
information was provided through hearsay. Id. at 19. I reject these arguments for several reasons.
First, pursuant to the Commission’s Rules of Procedure, hearsay testimony is admissible when
relevant. 30 C.F.R. § 2700.63. Here, the testimony was based on first-hand conversations and
observations, and with few exceptions was not only reliable but relevant. Next, much of the
hearsay testimony to which Respondents objected went to the state of mind of miners with
regard to the plan, which would in most cases be admissible even under the Federal Rules of
Evidence. Fed. R. Evid. 803(3); see, e.g., Tr. at 141, 152. Finally, counsel for the respondents put
on no evidence to refute the hearsay testimony, nor did they put forth a witness who was not
adversely affected by the bonus plans. The Secretary argues persuasively that admitting hearsay
testimony serves the Mine Act’s goal of protecting miner informants, which is necessary in an
interference case where miners may feel intimidated. Sec’y Br. at 28 (citing Revelation Energy,
LLC, 36 FMSHRC 1581, 1599 (June 2014) (ALJ)). I do not find that the Secretary’s use of
hearsay evidence was problematic here.

38 FMSHRC Page 951

The bonus plans provide for different levels of bonuses for miners working on production
crews at the face and those working outby. Employees working outby receive only ten percent of
what the production sections on their shift earned. Jt. Exs. 20-25. The miner witnesses testified
that this provision has affected miners’ willingness to serve as walk-around representatives
during inspections of the mine. See 30 U.S.C. § 813(f). The witnesses explained that under the
bonus plan, miners who serve as walk-around representatives are treated as outby employees. Tr.
at 46, 178, 243, 283. Union representatives from the mines testified that they had difficulty
finding miners to walk with inspectors after the plans were implemented because the miners did
not want to miss out on the larger bonus. Tr. at 46-47, 152. Although a miner who typically
works outby would earn the same bonus if he walked with an inspector, a miner who typically
works in the production area could see a substantial difference in pay. Section 103(f) specifically
guarantees that a miner serving as a walk-around representative “shall suffer no loss of pay
during the period of his participation in the inspection.” 30 U.S.C. § 813(f). Respondents argue
that there would be no loss of pay if a production crew member served as a representative, since
there is no guarantee that production crew members will earn a bonus every shift. Resp. Br. at
16. In some circumstances, the bonus earned by a miner on walk-around could even be higher
than what he would have earned working on the production crew. Id. But I find that this would
make little if any difference to a miner considering whether or not to act as a walk-around
representative. There is no question that some miners are discouraged from serving as walkaround representatives because they would miss out on the chance to get a larger bonus.
Finally, the bonus plans provide that if a “lost time accident” occurs that incapacitates a
crew member, the entire crew is disqualified from receiving the bonus for that shift. Jt. Exs. 2025. Several witnesses had observed or heard about miners deciding not to report injuries they
sustained on the job that they otherwise would have reported, instead choosing to “rough it out”
so they and their coworkers would not lose the bonus for the shift. Tr. at 54-55, 112. A miner’s
right to report injuries to the operator is essential to the “free flow of information” about the
conditions at a mine, and the bonus plans have undermined that arrangement at these mines. See
Swift, 16 FMSHRC at 205. A miner who incurs a “lost time” injury must choose between
exercising his right to report the injury and getting a bonus. This is an impermissible burden on
his right to report.
Respondents place much emphasis in their brief on the Commission’s decision in Swift v.
Consolidation Coal Co., 16 FMSHRC 201 (1994). In that case, the Secretary argued that a
program that penalized miners who sustained injuries on the job interfered with miners’ rights to
report injuries. Id. at 202-03. The Commission found that the program did not on its face violate
Section 105(c). Id. at 208. However, the Commission noted that the case did not involve any
evidence of actual negative effects on miners’ exercise of their rights. Id. at 207 n.6. In this case,
by contrast, the Secretary has presented ample evidence of actual interference. Additionally,
Swift was decided as a 105(c) discrimination case rather than an interference case, and thus is
distinguishable from the case at hand. See id. at 205-06.
The evidence presented at hearing demonstrates that the bonus plans discourage miners
from exercising their rights to make safety complaints, report injuries, and serve as walk-around
representatives. However, Respondents argue that a miner who decides not to report an injury or
safety violation or who otherwise disregards safety is not acting “reasonably,” and therefore any

38 FMSHRC Page 952

effect the plans have on miners’ exercise of their rights should not be considered interference.
Resp. Br. at 21-23. Rather, Respondents argue that the “reasonable miners” relevant to the case
are the Secretary’s witnesses at hearing, who testified that they were not affected by the financial
incentives in the bonus plans or by peer pressure to disregard their safety rights. Id. at 23. I do
not find merit to this argument. First, the miners who testified gave a number of examples of
how the plan interfered with miners, and even if some of those who testified were not swayed by
the bonus, they observed and talked to others who were. The appropriate inquiry under the
Franks test is whether the actions of the operator in instituting the plan could reasonably be
viewed, from the perspective of members of the protected class and under the totality of the
circumstances, as tending to interfere with the rights of the miners. The Secretary presented
sufficient evidence to demonstrate that a reasonable miner would in fact be swayed by the
promise of additional income to sidestep some safety precautions. The Commission has clearly
expressed that “reasonable miners” can be dissuaded from exercising their rights in some
instances of extreme pressure. See Gray, 27 FMSHRC at 9-10; Moses, 4 FMSHRC at 1478-79
(“Such actions may not only chill the exercise of protected rights by the directly affected miners,
but may also cause other miners, who wish to avoid similar treatment, to refrain from asserting
their rights.”).
While the Secretary has the burden of proof in this case, the Respondents had the
opportunity to present evidence on any issue raised by the Secretary, including the effect the plan
had on miners. Respondents raise issues about how reasonable miners reacted to the plan, yet
Respondents called no witnesses and provided no other evidence to the contrary. The Secretary,
on the other hand, has demonstrated the strong effect of the bonus plans on miners’ behavior.
While the bonus amounts are not extraordinarily large, the amounts for production crewmembers
are large enough to matter to most miners. Tr. at 163. The witnesses at hearing also emphasized
the intensity of the peer pressure fostered by the plans. The bonus plans make it so that a miner
must decide whether it is worth taking money out of his own pocket and those of his entire
section every time he considers reporting an unsafe condition or an injury. This impact on a
miner’s decision to exercise his rights constitutes a coercive pressure analogous to the
interrogation and harassment discussed by the Commission in Moses and Gray. A reasonable
miner would be dissuaded from exercising his rights in this situation. Therefore, the bonus plans
interfere with the protected rights of miners.
b. Legitimate and Substantial Reason
Under the Franks framework, if it is determined that a mine operator’s conduct interfered
with the protected rights of miners, the inquiry proceeds to whether the operator had a
“legitimate and substantial reason” for the action “whose importance outweighs the harm caused
to the exercise of protected rights.” UMWA on behalf of Franks v. Emerald Coal Res., LP, 36
FMSHRC 2088, 2108 (Aug. 2014) (Jordan & Nakamura, Comm’rs), vacated, 620 Fed. Appx.
127 (3d Cir. 2015). Franks involved the coercive interrogation and ultimate suspension of two
miners after a safety complaint was made at the mine. Id. at 2113-16. The operator justified its
actions by arguing that it had a responsibility to investigate safety complaints at the mine. Id. at
2116. While the Commissioners agreed that this was an “important interest,” they noted that the
operator could have obtained the information it sought through other means, particularly through
speaking with the union safety committeeman. Id. at 2117. The operator’s interest therefore did

38 FMSHRC Page 953

not outweigh the potentially long-term negative consequence of discouraging miners from
making safety complaints. Id. at 2117.
In NLRB cases, courts typically take a similar approach of requiring that the employer’s
conduct be calibrated so as to minimize the effect on employee rights. See, e.g., Hyundai Am.
Shipping Agency, Inc. v. NLRB, 805 F.3d 309, 314 (D.C. Cir. 2015) (blanket confidentiality rule
on all matters under investigation by employer was overbroad); Consol. Diesel Co. v. NLRB, 263
F.3d 345, 353-54 (4th Cir. 2001) (investigation of employees for harassment after they discussed
union with coworkers not justified by interest in maintaining harmonious workplace because
effect on rights too great); Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 747 (4th Cir. 1998)
(confidentiality term in contract with employee that interfered with his right to discuss conditions
of employment with coworkers not justified by interest in preventing misinformation among
employees, since providing accurate information would have served the same purpose);
Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir. 1976) (rule prohibiting discussion of wages
not justified by desire to keep employees working during work hours, since it applied all the
time). Courts are more likely to find an employer’s substantial business justification to be
persuasive when the employer’s interest is important and the impact on employee rights is
minimal. See, e.g., Desert Palace, Inc., 336 N.L.R.B. 271, 272 (2011) (confidentiality policy
regarding an investigation of drug activity at workplace justified as means of protecting
witnesses and preserving evidence); Cal. Newspapers P’ship, 343 N.L.R.B. 564, 565-66 (2004)
(editors who informally reprimanded reporter for speaking to city council about union had
legitimate interest in protecting newspaper from appearance of conflict of interest, which
outweighed impact on employee). Tenuous or speculative benefits are insufficient to justify
interference. See, e.g., Nat’l Steel & Shipbuilding Co. v. NLRB, 156 F.3d 1268, 1271-72 (D.C.
Cir. 1998) (employer’s videotape surveillance not justified where it provided minimal additional
security and employer had little reason to suspect misconduct would occur); Cal. Acrylic Indus.,
Inc. v. NLRB, 150 F.3d 1095, 1100 (9th Cir. 1998) (anticipation of violence did not justify
surveillance where employer showed no basis for its concern).
Respondents argue that their reason for implementing the bonus plans was to improve
production and safety at the mines. Resp. Br. at 24; Tr. at 266. Senior Vice President John Forelli
testified that he gathered data on production at the mines after the plans were implemented to see
if it had improved. Tr. at 297. He was unable to reach a definite conclusion as to whether the
plans were effective, in part because he did not have data from before the plans were
implemented. Tr. at 297-301. Murray also had a system for reviewing safety data that pre-dated
the bonus plans. Tr. at 306. Forelli personally compared safety data from before and after the
bonus plans were implemented to see if the plans had affected safety, but did not observe any
clear patterns. Tr. at 294-95.
A mine operator certainly has a right to implement programs to assure that miners are
producing at the best rate possible. However, because I have found that the plans at issue
interfere with safety and the rights of miners, they must be reviewed with a more careful eye.
Respondents credibly assert that their motivation in implementing the plans was to increase
production. Respondents also claim that the bonus plans were tailored so as not to interfere with
any rights under the Mine Act. Resp. Br. at 23. The bonuses are of a moderate size and are
renewed each shift, which Forelli believed would ensure that miners were not tempted to bypass
safety measures. Forelli met with union representatives before implementing the bonus plans and

38 FMSHRC Page 954

attempted to address some of their concerns about safety. Respondents also argue that the
provisions disqualifying miners from earning the bonus for safety violations and injuries were
intended to encourage safety. Resp. Br. at 26. However, the company is unable to show that the
plans have actually been effective at improving or maintaining safety at the mines. Even more
significantly, the company has been unable to establish that the plans actually resulted in
increased production at any of the mines. In contrast, the harm to miners’ rights is evident.
Miners at these mines are discouraged through peer pressure and personal financial incentives
from making safety complaints, reporting injuries, and serving as walk-around representatives.
These rights are essential to safety at the mines. For the Mine Act to function as Congress
intended, miners must be able to freely participate in its enforcement scheme. See S. Rep. No.
95-181, at 30 (1977). The uncertain benefits that Respondents put forth do not outweigh these
harms. Accordingly, I find that the bonus plans violate Section 105(c) of the Mine Act.
III.

PENALTY AND REMEDIES

Section 105(c)(2) authorizes the Commission to require a person who has committed a
violation of section 105(c)(1) “to take such affirmative action to abate the violation as the
Commission deems appropriate.” 30 U.S.C. § 815(c)(2). The Secretary asks the Court to order
the mines to rescind the bonus plans, post a notice at the mines for six months reflecting the
court-ordered rescission, and mail such notice to the homes of all miners and all representatives
of miners at the mines. In addition, the Secretary asks the Court to assess a civil penalty of
$20,000 for each of the six violations.
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). 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 judge must
consider six statutory penalty criteria: the operator’s history of violations; its size; whether the
operator was negligent; the effect on the operator’s ability to continue in business; the gravity of
the violation; and whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping
with this statutory requirement, the Commission has held that judges must make findings of fact
on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd,
736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion “bounded by proper
consideration of the statutory criteria and the deterrent purposes underlying the Act’s penalty
scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 (May 2000).
In this case, Murray is considered a large operator for penalty purposes. The gravity of
the matters is serious, as the bonus plans could reasonably threaten safety for all employees at
the mines. The mines have received numerous discrimination complaints in the past, including a
recent interference complaint in which they were fined $30,000 per mine. The operator was
moderately negligent in instituting the bonus plans. At three of the mines, the plan is no longer in
effect as a result of arbitration initiated by the UMWA. Considering all of the factors, I find that
a $25,000 penalty per mine is appropriate.

38 FMSHRC Page 955

IV.

ORDER

Based on my conclusion that the bonus plans interfered with the protected rights of
miners under the Act, Respondents are ORDERED to rescind the bonus plans that remain in
effect and cease and desist from implementing any other similar plans. Respondents are further
ORDERED to post a notice at each of the six mines for a period of six months. The Notice shall
be no smaller than 10” by 13”, on white paper with clear lettering in a font over 12-point, and
shall indicate that miners have a right to file any claim of interference without fear of harassment
or retaliation, that the bonus plans are rescinded effective immediately, that the mine has
interfered with the rights of miners in putting the plans in place, and that all bonuses earned up
until that date will be paid as promised. The notice shall be posted, within 30 days, in a
conspicuous place in at least two locations at each mine where it is available to all miners on all
shifts.
Finally, within 40 days of the date of this decision, Respondents are ORDERED to pay a
civil penalty of $150,000 to the Secretary of Labor.

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

Distribution: (U.S. First Class Certified Mail)
Anthony Jones, Jordana Greenwald, Philip Mayor, U.S. Department of Labor, Office of the
Solicitor, 201 12th Street South, Suite 401, Arlington, VA 22202
Philip K. Kontul, Thomas A. Smock, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., One PPG
Place, Suite 1900, Pittsburgh, PA 15222
Art Traynor, Laura Karr, United Mine Workers of America, 18354 Quantico Gateway Drive,
Suite 200, Triangle, VA 22172

38 FMSHRC Page 956

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

May 3, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. SE 2013-301
A.C. No. 01-00851-315187-01
Docket No. SE 2013-352
A.C. No. 01-00851-317727-01

v.

OAK GROVE RESOURCES, LLC,
Respondent

Docket No. SE 2013-368
A.C. No. 01-00851-319550
Docket No. SE 2013-399
A.C. No. 01-00851-320606-01
Mine: Oak Grove
DECISION

Appearances: Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, on behalf of the Petitioner;
R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania,
on behalf of the Respondent.
Before:

Judge Feldman

These consolidated civil penalty proceedings are before me based on petitions for
assessment of civil penalty filed by the Secretary of Labor (“Secretary”) under section 105(d) of
the Federal Mine Safety and Health Act of 1977, as amended (“the Mine Act”), 30 U.S.C. §
815(d), against the Respondent, Oak Grove Resources, LLC (“Oak Grove”). A hearing was held
on September 1 and September 2, 2015, in Birmingham, Alabama.
I.

Settled Violations

These consolidated dockets concern a total of 24 citations and orders. Prior to the
hearing, the parties advised that 17 of the 18 citations at issue in Docket No. SE 2013-352, and
two of the three 104(d)(2) orders at issue in Docket No. SE 2013-301, had settled. The record at
the hearing was left open for the parties to submit their written settlement terms, which were
filed on February 19, 2016.

38 FMSHRC Page 957

a. Docket No. SE 2013-352
Regarding the 17 settled citations in Docket No. SE 2013-352, the parties’ settlement
terms include reducing the total civil penalty from $23,559.00 to $15,713.00. Specifically, the
settlement terms provide for reducing the degrees of negligence attributable to the cited violative
conditions in Citation Nos. 8524989 and 8524999 to “low” and “moderate,” respectively, with
corresponding penalty reductions. Regarding Citation No. 8526401, the parties agree to modify
the number of people affected from eight to one, with a corresponding penalty reduction.
Additionally, the parties agree to reduce the total civil penalty in Citation Nos. 8524490,
8524979, 8524982, 8524987, 8524991, 8524993, 8524994, 8524995, 8524996, 7684600,
8524499, and 8524500, from $17,108.00 to $11,019.00 based on the vagaries of litigation, and
pay the Secretary’s proposed penalties in full for Citation Nos. 8524983 and 8524491.
One
citation, Citation No. 8520665, remains at issue in Docket No. SE 2013-352.
b. Docket No. SE 2013-301
Regarding the two settled 104(d)(2) orders in Docket No. SE 2013-301, Order Nos.
8524255 and 8524258, the parties’ settlement terms maintain the unwarrantable failure
designations, but reduce the total civil penalty from $51,300.00 to $38,475.00. Order No.
8520666 in Docket No. SE 2013-301 remains at issue in this proceeding.
Consequently, the parties’ settlement agreement reducing the total civil penalty for the
settled 19 citations and orders in Docket Nos. SE 2013-352 and SE 2013-301 from $74,859.00 to
$54,188.00 shall be approved as consistent with the penalty provisions of section 110(i) of the
Mine Act.
II.

Disposition of Violations at Issue
a. Summary of Violations at Issue

In addition to the two violations remaining at issue in Docket Nos. SE 2013-352 and SE
2013-301, the two orders at issue in Docket No. SE 2013-399 and the single order at issue in
Docket No. SE 2013-368 have also been adjudicated in this proceeding. Of these five contested
citations and orders, two orders concern allegedly impermissible coal dust accumulations along
each of two conveyor belt lines, and two orders concern associated allegedly insufficient preshift examinations. These alleged accumulations and pre-shift examination violations have been
attributable to unwarrantable failures. The remaining citation concerns an allegedly hazardous
conveyor belt that was reportedly observed rubbing against the mine roof at the site of an
overcast.
The Secretary initially proposed a total civil penalty of $259,848.00 in satisfaction of
these four contested orders and one contested citation. The Secretary’s initial total proposed civil
penalty included a proposed penalty of $146,400.00 for the alleged accumulations violation in
Order No. 8520664 in Docket No. SE 2013-368 that was designated as a repeated flagrant
violation. As discussed below, the flagrant designation was deleted prior to the hearing. See
Order Deleting Flagrant Designation, 37 FMSHRC 1311 (June 2015) (ALJ). Consequently, the

38 FMSHRC Page 958

Secretary reduced the proposed penalty for Order No. 8520664 to $70,000.00 — the maximum
penalty provided for unwarrantable failure violations under 30 U.S.C § 820(a)(1). As a result, at
the time of the hearing, the Secretary was proposing a total civil penalty of $183,448.00 in
satisfaction of these four contested orders and one contested citation. The parties’ briefs have
been considered in the disposition of this matter.
b. Order No. 8520664 in Docket No. SE 2013-368 (Main North 3 Belt
Accumulations)
i. Pre-Hearing Deletion of Flagrant Designation
Order No. 8520664, issued on October 3, 2012, alleges a violation of section 30 C.F.R. §
75.400. Order No. 8520664 states:
1

Combustible material in the form of float coal dust and dry hard packed coal fines
were allowed to accumulate on the roof, ribs, footwall, and belt structure of the
Main North 3 belt entry. The hard packed coal fines were in contact with moving
rollers on the belt line in multiple locations along the belt entry. The float coal
dust existed on the roof, ribs, footwall, and belt structure from the Main North 3
Tail Piece extending outby to crosscut 27. This is an approximate distance of
2100 feet. Due to the extensive amount of accumulations and that this belt is
examined every shift this constitutes more than ordinary negligence and is an
unwarrantable failure to comply with a mandatory health and safety standard.
Standard 75.400 was cited 92 times in two years at mine 0100851 (91 to the
operator, 1 to a contractor).2 This violation is an unwarrantable failure to comply
with a mandatory standard.
Gov. Ex. 5. As previously noted, the accumulation condition cited in Order No. 8520664 was
initially designated by the Secretary as a “repeated flagrant” under section 110(b)(2) of the Mine
Act, for which the Secretary sought a proposed enhanced civil penalty of $146,400.00. The
flagrant designation was deleted by an interlocutory order on June 1, 2015. Order Deleting
Flagrant Designation, 37 FMSHRC 1311 (June 2015) (ALJ). The interlocutory order is
incorporated by reference.

1

30 C.F.R. § 75.400 provides:

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.
2

This notation of 92 section 75.400 violations in the two year period prior to the issuance
Order No. 8520664 cannot be reconciled with the Assessed Violation History Report that reflects
34 section 75.400 violations during the relevant time period. See Gov. Ex. 1

38 FMSHRC Page 959

As the criteria for a repeated flagrant violation essentially remains a matter of first
impression, it is helpful to summarize the rationale for deleting the repeated flagrant designation
in this matter. It is axiomatic that the Mine Act provides for the application of
“increasingly severe sanctions for increasingly serious violations or [increasingly inexcusable]
operator behavior.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 828 (1981). Consistent
with this statutory scheme, section 110(b)(2) of the Mine Act, which increases the maximum
civil penalty for extremely hazardous violations deemed “flagrant,” was promulgated by
Congress in 2006 following the Sago and Darby Mine disasters. Section 110(b)(2) provides:
Violations under this section that are deemed to be flagrant may be assessed a
civil penalty of not more than $220,000. For purposes of the preceding sentence,
the term “flagrant” with respect to a violation means a reckless or repeated failure
to make reasonable efforts to eliminate a known violation of a mandatory health
or safety standard that substantially and proximately caused, or reasonably could
have been expected to cause, death or serious bodily injury.
30 U.S.C. § 820(b)(2) (emphasis added). Thus, section 110(b)(2) applies only to the most
hazardous and egregious violations.
Section 75.400, the mandatory standard prohibiting coal dust accumulations cited in
Order No. 8520664, is the most frequently cited mandatory standard in underground coal mines.
For example, section 75.400 violations constituted eleven percent of all citations issued at
underground coal mines in 2015. MSHA, Most Frequently Cited Standards,
http://arlweb.msha.gov/stats/top20viols/top20viols.asp (last visited April 25, 2016).
While the condition cited in Order No. 8520664 appeared to be a routine accumulations
violation, in that it lacked the presence of an identifiable ignition source, the Secretary relied on a
“predicate violation history” to support his designation of a repeated flagrant violation. However,
if violative coal dust accumulations in proximity to a properly-functioning conveyor system can
be elevated to a flagrant violation based on a “predicate history of violations,” the vast majority
of section 75.400 violations can be deemed flagrant.
Consequently, in an effort to narrow the issues, on March 14, 2014, the parties were
ordered to address whether a section 75.400 violation can be elevated to a repeated flagrant
violation based solely on a history of violations, if the cited condition can only contribute to a
reasonably serious injury, rather than proximately cause serious bodily injury or death.
36
FMSHRC 815 (Mar. 2014) (ALJ).
In response, the Secretary conceded that “[b]oth reckless and repeated flagrant
designations require violations that substantially and proximately caused, or reasonably could
have been expected to cause, death or serious bodily injury.” Sec’y Resp. to Order Scheduling
Briefing, at 6 (Apr. 22, 2014). In other words, the Secretary conceded that a violative condition
that cannot reasonably be expected to be the proximate cause of serious injury or death cannot be
elevated to a flagrant violation based simply on a history of violations. In this regard, at an oral

38 FMSHRC Page 960

argument held on March 4, 2015, for the purpose of addressing the criteria for a repeated flagrant
violation, the Secretary’s counsel stated:
We absolutely agree that history alone cannot elevate a violation to a flagrant
violation. There is no dispute about that from the Secretary’s perspective.
And I think as [the Court] read yourself from the Secretary’s response to your
briefing order, the Secretary has noted that both reckless and repeated flagrant
designations require violations that substantially and proximately caused or
reasonably could have been expected to cause, death or serious bodily injury.
Order Deleting Flagrant Designation, 37 FMSHRC at 1313 (citing Oral Arg. Tr. 29-30).
Following consideration of the Secretary’s April 22, 2014, response, the Secretary was
ordered to file a prehearing brief addressing whether the cited violative condition in Order No.
8520664 satisfies the requisite criteria for establishing a repeated flagrant violation under section
110(b)(2) of the Mine Act. Specifically, the requisite criteria were identified as follows:
1. A repeated flagrant violation is a flagrant violation that is demonstrated by
either:
a. A repeated failure to eliminate the violation properly designated as
flagrant, or
b. A relevant history of violations that also meet the requirements for
a flagrant violation with respect to knowledge, causation and
gravity, as enumerated below.3
2. A flagrant violation must be a known violation that is conspicuously
dangerous, in that it cannot reasonably escape notice.
3. A flagrant violation must be the substantial and proximate cause of death
or serious bodily injury that has occurred or can reasonably be expected to
occur.
a. A substantial and proximate cause is a dominant cause without
which death or serious bodily injury would not occur.
b. A serious bodily injury is a grave injury that results in significant
debilitating and/or permanent impairment.
c. Such injury is reasonably expected to occur if there is a significant
probability of its occurrence.
36 FMSHRC 1777, 1789-90 (June 2014) (ALJ).

3

This criterion that predicate violations must also meet the requirements for a flagrant
violation was included at the suggestion of the Secretary. 36 FMSHRC at 1789 n.13. However, I
believe a history of relevant violations can provide a basis for a “repeated” designation, for a
violation otherwise properly designated as flagrant, regardless of whether the previous violations
satisfy the statutory definition of flagrant.

38 FMSHRC Page 961

In response to the above criteria, the Secretary asserted that:
In the present case, hard packed coal fines were in contact with moving rollers on
the belt line in multiple locations along the belt entry. Given these ignition
sources, it is reasonably expected that, as normal operations continued, serious
and/or deadly injures from burns and smoke inhalation would result from a fire or
explosion. These injuries would be the proximate and direct result of the fire or
explosion because the accumulations would be the necessary fuel source that,
when combined with oxygen and an ignition source, would cause the fire or
explosion.
Sec’y Pre-Hearing Statement, at 2 (Aug. 7, 2014) (emphasis added). The Secretary’s response
relied upon a traditional significant and substantial (“S&S”) analysis. Specifically, the Secretary
conflated the contribution of a condition to an event resulting in injury of a reasonably serious
nature, based on the potential for future ignition sources that may arise during the course of
continued mining operations, with the actual presence of ignition sources that have caused, or
can be reasonably expected to proximately cause, death or serious bodily injury.
Reduced to its core, while all flagrant violations are S&S, it is only the most hazardous of
S&S violations that can properly be designated as flagrant. By way of illustration, an S&S
violation is one that, in the context of continuing mining operations, is reasonably likely to
contribute to a hazard that will result in an injury of a reasonably serious nature. In contrast, a
flagrant violation is a violation that, itself, presents a present hazard that either has caused, or can
be reasonably expected to proximately cause, death or serious bodily injury.
On June 1, 2015, I issued an interlocutory order deleting the flagrant designation in Order
No. 8520664, which stated, in pertinent part:
While the cited accumulations may have been exposed to future ignition sources
based on conveyor belt defects that may occur during the course of continued
mining operations, the undisputed material facts demonstrate that the cited
accumulations were not in proximity to any identifiable ignition source, such as a
misaligned belt or defective roller on October 3, 2012, the date Order No.
8520664 was issued. In this regard, the Secretary[’s counsel] forthrightly
conceded during oral argument [in this matter]:
COURT:

Was there any evidence of any heat? . . .

COUNSEL:

And the simple answer I’d like to give you . . . is at the time
the violation was issued, there is no evidence of heat
sufficient to ignite coal at the time the violation was issued.

[Oral Arg.] Tr. 129-130 (emphasis added).
Moreover, the cited accumulations were remotely located where they could not be
exposed to ignition sources at the mine face. In this regard, at oral argument, the

38 FMSHRC Page 962

parties stipulated that the location of the cited accumulations was approximately
.58 miles from the zero-gate continuous mining development area, .96 miles from
an active working face, and 2.3 miles from an active long wall mining face. [Oral
Arg.] Tr. 139-40; Oral Arg. Jt. Ex. 1. Rather, the Secretary repeatedly relies on
speculation that there will be future sources of heat that will arise during the
course continued mining operations, as a basis for asserting that the cited
accumulations could reasonably be expected to cause death or serious bodily
injury. Sec’y Resp., at 6-10. In his brief, the Secretary also repeatedly proposes
that the “the rationale for presuming ‘continued mining operations’ applies
equally to ‘flagrant’ and [S&S] determinations.” Id. at 18-22. Consistent with this
proposition, at oral argument the Secretary[’s counsel] stated:
COUNSEL:

If the Court doesn’t agree that the concept of continued
normal mining operations applies in a flagrant violation,
then the Court should rule that way, we would lose this
case.

[Oral Arg.] Tr. 151-52. Precisely.
Fundamentally, the Secretary must not be permitted to use interchangeably the
term “actual (present) ignition source” with the term “potential ignition source”
that may occur as a consequence of a future defect in the conveyor belt system
during continued mining operations. In the present case, in the absence of ignition
sources, the cited accumulations themselves are not capable of combustion and, as
such, cannot be the proximate cause of serious bodily injury or death, as
contemplated by section 75.400. Consideration of potential exposure to a future
ignition source based on continued mining operations in the context of a
traditional S&S analysis goes beyond scope a flagrant analysis.
Rather, whether the facts surrounding a violation support a flagrant designation is
determined by the facts as they existed at the time the citation was issued. Coal
dust accumulations not in the presence of ignition sources can be a contributing
cause of injury if they propagate an explosion. However, such accumulations
cannot be the proximate cause of injury.4 To conclude otherwise, would be to
render the vast majority of prohibited accumulations under section 75.400 flagrant
violations. . . . Simply put — if everything is flagrant, nothing is flagrant. Nor
does the Secretary have the prosecutorial discretion to arbitrarily and capriciously
label violations as flagrant.
Order Deleting Flagrant Designation, 37 FMSHRC at 1318-19.

4

There may be exceptional cases where the depth of prohibited coal dust accumulations
and their contact with multiple turning rollers causes demonstrable suspension of coal dust that
could be construed as reasonably expected to be the proximate cause of propagation and resultant
serious bodily injury or death, thus satisfying the statutory definition of flagrant.

38 FMSHRC Page 963

In the final analysis, it cannot be ignored that Congress elected not to provide for the
imposition of flagrant designations based on a timeline when it promulgated section 110(b)(2) of
the Mine Act, as it did for withdrawal orders under section 104(d)(1). Rather, Congress provided
a definition that requires that a violation deemed flagrant must have proximately caused death or
serious bodily injury, or could be reasonably expected to do so.5 The Mine Safety and Health
Administration’s (“MSHA”) persistent attempts to elevate a violation to a repeated flagrant
status under section 110(b)(2) primarily based on a history of violations, despite the statutory
definition of a flagrant violation provided by Congress, is simply not supportable.6 See Order
Deleting Flagrant Designation, 37 FMSHRC at 1321.
The Secretary did not request interlocutory review of the June 1, 2015, Order Deleting
the Flagrant Designation in Order No. 8520664. Consequently, the Secretary was ordered to file
an amended petition for civil penalty. In response, on August 21, 2015, the Secretary filed an
Amended Petition for the Assessment of Civil Penalty in Docket No. SE 2013-368, replacing the
enhanced $146,400.00 penalty sought for Order No. 8520664, with a proposed penalty of
$70,000.00—the statutory maximum penalty for a violation attributable to an unwarrantable
failure. While not necessarily binding, it is noteworthy that, at the hearing, counsel for the
Secretary represented that the Secretary is no longer pursuing the repeated flagrant designation
for the accumulation violation cited in Order No. 8520664. Tr. 16-17.
ii. Post-Hearing Findings of Fact
The Oak Grove Mine is an underground coal mine in Jefferson County, Alabama. During
the course of MSHA Inspector Alveriado Getter’s October 3, 2012, inspection, he traveled the
Main North 3 belt entry, where he reportedly observed the accumulation conditions described in
Order No. 8520664. Tr. 33-34. As previously noted, the area where the cited accumulations were
located was approximately .58 miles from the Zero Gate continuous mining development area,
.96 miles from an active working face, and 2.3 miles from an active longwall mining face. Order
Deleting Flagrant Designation, 37 FMSHRC at 1318 (citing Oral Arg. Tr. 139-40 and Oral Arg.
Jt. Ex. 1).
5

It is clear that the term “proximately” must be read into the statutory phrase “reasonably
expected to cause” that refers to situations where serious death or bodily injury has not yet
occurred. I recognize that the Secretary has been persistently vague on this point. To conclude
otherwise — that violations that can reasonably be expected to contribute to, or are a secondary
cause of, serious bodily injury or death, could be properly designated as flagrant — would blur
the distinction between flagrant and routine S&S violations.
6

I am cognizant that the Commission has held that past violative conduct may be
considered in determining whether to cite a condition as a repeated flagrant violation. Wolf Run
Mining Co., 35 FMSHRC 536, 541 (Mar. 2013). Of course, a history of violations may be an
aggravating factor that is always relevant in determining the amount of the enhanced civil
penalty that should be assessed pursuant to section 110(b)(2). See also 30 U.S.C. § 820(i).
However, the Commission has not determined that a history of violations can serve as a basis for
elevating a violation, not otherwise flagrant, to a repeated flagrant status. See Order Deleting
Flagrant Designation, 37 FMSHRC at 1313 n.4.

38 FMSHRC Page 964

As stated in Order No. 8520664, Getter testified that he observed accumulations of float
coal dust, coal fines, and hard packed coal beginning at the feeder and extending 2,100 feet
outby along the beltline.7 Tr. 44. However, Getter further testified that, while the identified
accumulations were “not continuous” along the cited 2,100 feet of belt line, the accumulations
were not so sporadic to justify breaking up the condition into multiple violations. Tr. 44. Order
No. 8520664 states that “hard packed coal fines were in contact with moving rollers on the belt
line in multiple locations along the belt entry.” Gov. Ex. 5 (emphasis added). When asked at the
hearing to quantify “multiple locations,” Getter stated that there were “more than twenty”
locations where hard packed coal fines were in contact with moving rollers. Tr. 70. However,
Getter conceded that neither the order, nor his contemporaneous inspector notes, provide details
regarding the depth and extensiveness of the cited accumulations, or their proximity to rollers.
See Tr. 70; Gov Ex. 3. Consequently, Getter cannot rely on any past recollection recorded to
refresh his memory with respect to the depth and extent of the accumulations he observed three
years earlier.
Getter believed that the cited accumulations were properly designated as S&S given the
extensiveness he reportedly observed. Tr. 54-56. As relevant ignition sources, Getter relied on
the purported frictional heat caused by the contact of accumulations with turning rollers, without
alleging that any of the rollers were defective. Tr. 55-56. Getter conceded, however, that he did
not take any heat readings, or see any signs of heat, i.e. smoke, or observe any defective rollers,
to support his belief that the accumulations were in proximity to an ignition source. Tr. 56.
Moreover, Getter did not express a concern that the cited accumulations could “propagate” an
explosion occurring elsewhere in the mine. Tr. 59-60. Getter asserted that the cited
accumulations could not have occurred during the present shift, but rather opined that the
accumulations had been present over nine shifts (three days), during which time at least five
examiners should have examined the belt entry. Tr. 46-48.
As a result of his observations, Getter issued Order No. 8520664 for a violation of section
75.400, characterizing the cited accumulations as S&S in nature, because of their potential to
cause a fire that will result in smoke inhalation and burn-related injuries to 35 miners working
the 14 East entry, the Zero Gate entry, and the longwall, “because the air on the [cited] belt line
is utilized to ventilate [these inby] sections.” Tr. 56-59. Getter attributed the cited accumulations
to a “high” degree of negligence, given his belief that it existed for at least nine shifts. Tr. 60-61.
Thus, Getter characterized the cited accumulations as attributable to an unwarrantable failure.
Oak Grove’s witnesses disputed the nature and extent of the accumulations characterized
by Getter, arguing that the accumulations were minimal. Tr. 131, 144-45, 147, 168. For example,
consistent with Getter’s testimony that the cited accumulations were “not continuous,” Oak
Grove Safety Inspector Larry Taft, who accompanied Getter during his inspection, testified that

7

Order No. 8520664 also refers to nondescript float coal dust “on the roof, ribs, footwall,
and belt structure.” The Secretary did not provide any testimony at the hearing regarding the
nature and extent of accumulations on the roof, ribs, and footwall.

38 FMSHRC Page 965

the accumulations along the Main North 3 belt were intermittent, characterizing the
accumulations as barely notable relative to the visible rock dust. Taft testified:
Counsel:

And Main North 3 belt that day, how would you describe the float
coal dust?

Taft:

Light gray.

Counsel.

Okay. Was it continuous?

Taft:

No, sir. You’d come to a crosscut that may be, like I said, might be
light gray, you needed to sweep it. And then the next two or three
crosscuts would be white, then a little light gray area, and a little
darker gray area and then white again. It was not dark gray or
heavy gray or black the entire length of the belt. No, sir.

Tr. 131. Although neither Getter’s testimony, his citation, nor his contemporaneous notes
quantified the depth of the cited accumulations, Taft further testified:
Judge:

The areas that it was dark gray almost black, would you say it was
three inches, six inches, less than three inches; how would you
quantify [the amount of accumulations]?

Taft:

Oh, probably 16th to an 8th inch. So less than three inches.

Judge: 16th to an 8th inch. So less than three inches?
Taft:

Oh, gosh, yes.

Tr. 144-45; see also Tr. 173 (testimony of Oak Grove foreman Keith Miller that the
accumulations present along the Main North 3 belt line were “about a quarter of an inch”).
Given Getter’s failure to quantify the extent of the cited accumulations, it is noteworthy that the
Secretary did not make an effort at the hearing to rebut the testimony of Taft and Miller that the
cited accumulations were significantly less than alleged by the Secretary.
Oak Grove’s witnesses do, however, admit that there were accumulations in proximity to
the mini-washer, a filtering device used to separate coal and rock from water being pumped
through the mine to prevent coal and rock deposits from clogging the water lines. Tr. 134-36. At
the mini-washer, located a few feet outby from the intersection of the Main North 3 belt and the
Zero Gate belt, coal and rock are filtered from the water lines and dumped onto the Main North 3
belt. Tr. 131-32. Oak Grove’s witnesses acknowledged that accumulations are common where
the mini-washer dumps the coal and rock extracted from the water lines onto the belt, as they
were a normal byproduct of mini-washer operations. Tr. 134, 140, 219-20. On this point, Taft
conceded that the accumulations at the mini-washer were significant enough to result in contact
with a single belt roller located near the mini-washer site. Tr. 135. Taft quantified these
accumulations as approximately four to six inches in depth, amounting to “about six shovels

38 FMSHRC Page 966

full.” Tr. 139. However, Oak Grove’s witnesses also asserted that accumulations at the miniwasher are extremely wet by nature. Tr. 135-36; 170-71. Taft described the the cited
accumulations at the mini-washer as so saturated that water would run out of them when
squeezed. Tr. 136.
Contrary to Getter’s testimony, Taft did not recall any locations where belt rollers were
turning in accumulations of coal dust, other than at the mini-washer. Tr. 136. Taft believed that
the “hard packed coal fines . . . in contact with moving rollers . . . in multiple locations,”
described by Getter in the order, may have referred to clumps of caked mud that had stuck to the
belt frame, rather than hard packed coal fines. Tr. 148-49.
Oak Grove foreman Keith Miller testified that abatement of Order No. 8520664 began
immediately. Tr. 178. Miller testified that the wet accumulations near the mini-washer were
shoveled and that the belt entry was bulk rock dusted to take advantage of the de-energized belt.
Tr. 178. Order No. 8520664 was officially abated at 3:05 p.m. on October 3, 2012, about five
hours after its issuance. Tr. 51; Gov. Ex. 5.
iii. Fact of the Violation
Section 75.400 requires that coal dust “shall be cleaned up and not be permitted to
accumulate” where miners are usually required to work or travel. 30 C.F.R. § 75.400. Thus,
consideration of whether a 75.400 violation has occurred requires an analysis of both the
quantity and the duration of the cited conditions. Although Oak Grove disputes that there were
sufficient coal fines in the belt entry to constitute a violation of section 75.400, Oak Grove
concedes that the accumulations near the mini-washer were sufficient, alone, to support the cited
violation. Resp. Br., at 9. With respect to the accumulations in the belt entry, although Getter
neither documented, nor testified, regarding the depth or nature and extent of the cited
accumulations, the Secretary will be afforded the benefit of the doubt that the accumulations
along the belt line, although intermittent, were also sufficient to constitute a violation of section
75.400.
iv. S&S
Turning to whether the cited accumulations were properly characterized as S&S, a
violation is properly designated as S&S in nature if, based on the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to by the violation
will result in an injury or an illness of a reasonably serious nature. Cement Div., Nat’l Gypsum, 3
FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission explained:
In order to establish that a violation of a mandatory safety standard is [S&S]
under National Gypsum, the Secretary of Labor must prove:

38 FMSHRC Page 967

(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 [by the violation] 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; see also Austin Powder Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff’g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). With respect to the third
element of Mathies, an S&S finding requires a determination that the violation contributes
significantly and substantially to the cause and effect of a hazard. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (Aug. 1984). Resolution of whether a particular violation of a mandatory
standard is S&S in nature must be made assuming continued normal mining operations. U.S.
Steel Mining Co., Inc., 1 FMSHRC 1125, 1130 (Aug. 1985). Thus, consideration must be given
to both the time frame that a violative condition existed prior to the issuance of a citation, and the
time that it would have existed if normal mining operations had continued. Bellefonte Lime Co.,
20 FMSHRC 1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986). In the final
analysis, the essence of an S&S violation is whether it is reasonably likely that the hazard
contributed to by the violation will result in an event in which there are serious or fatal injuries.
Bellefonte, 20 FMSHRC at 1254-55.
As a general proposition, the Secretary has the burden of proving each element of a
citation or order by the preponderance of the evidence, based on direct evidence or adequate
circumstantial evidence. See Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152-53 (Nov.
1989) (citations omitted). The Commission has noted that the burden of showing something by a
preponderance of the evidence standard requires the trier of fact to believe that the existence of a
fact is more probable than its nonexistence. Rag Cumberland Res. Corp., 22 FMSHRC 1066,
1070 (Sept. 2000) (citations omitted).
Here, the Secretary has demonstrated that the first, second, and fourth elements of
Mathies are satisfied in that the cited accumulations constituted a violation that posed a discrete
safety hazard, i.e. a fire or explosion, that was capable of causing injury of a reasonably serious
nature. However, as a general matter, accumulations prohibited by section 75.400 are not
S&S per se. Rather, when reduced to its core, satisfying the remaining third element in Mathies
requires the Secretary to bear the burden of demonstrating that it is reasonably likely that the
hazard contributed to by the cited accumulations will result in a fire or explosion, causing
serious, if not fatal, burn-related or smoke inhalation injuries. See Bellefonte, 20 FMSHRC at
1254-55.
With respect to evaluating the likelihood of a fire, the Commission has noted that, in
order for ignitions or explosions to occur, there must be a confluence of requisite factors.
Texasgulf, 10 FMSHRC 498, 501 (Apr. 1988). Namely, these factors are the presence of oxygen
and fuel in proximity to ignition sources. With respect to the question of whether violative
accumulations are properly characterized as S&S, as oxygen is ever-present, the focus shifts to
the extent of the accumulations and whether the cited accumulations are in proximity to potential
ignition sources. Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997) (citing Utah Power &

38 FMSHRC Page 968

Light Co., 2 FMSHRC 965, 970-71 (May 1990)); Texasgulf, 10 FMSHRC at 500-03. With
regard to the necessity of the Secretary to identify potential ignition sources to justify an S&S
designation, the Commission has stated:
It was within the province of the Judge to require evidence of a heat source close
enough to sufficient quantities of dust as a prerequisite to concluding that there
was a likelihood of a fire from the accumulations.
Twentymile Coal Co., 36 FMSHRC 1533, 1545 (June 2014).
Giving the Secretary the benefit of the doubt that the cited accumulations were not
properly rock dusted and thus constituted a combustible fuel source, the Secretary has failed to
adequately demonstrate that the cited accumulations were in proximity to any identifiable
ignition source. As an initial matter, the cited accumulations were far removed from any
potential acute ignition source at the face, such as sudden friction-related sparking. Getter’s
attempts to identify any local ignition sources in proximity to the cited accumulations were
unpersuasive. Significantly, Getter failed to identify any potential beltline-related ignition
sources, such as defective rollers or rubbing belts.
Rather, Getter relied on contact between dry accumulations and the resultant frictional
heat from the moving parts of a properly-functioning beltline to support his S&S designation.
Getter opined:
Judge:

So your position is that any dry accumulations in the vicinity of a
conveyor belt would constitute an S&S violation and a fire hazard.

Getter:

Yes, sir. Yes, Your Honor.

Judge:

Even if the belt is normally operating, if there are no defects in the
belt; is that correct?

Getter:

If it’s operating, yes, Your Honor.

Judge:

That is dry accumulations in the vicinity of the belt.

Getter:

Yes, sir. In contact with the belt, Your Honor, or the moving parts
of the belt.

***
Judge:

So do I understand you to say that that’s an ever-present fire
hazard?

Getter:

Yes, Your Honor.

38 FMSHRC Page 969

Judge:

If the belt is operating normally without any hiccups?

Getter:

Yes, Your Honor.

Tr. 68-69; 108-09.
Getter’s approach to the S&S analysis would impermissibly render the vast majority of
section 75.400 violations per se S&S. It is noteworthy that in the two year period preceding the
issuance of Order No. 8520664, Oak Grove was cited 34 times for violating section 75.400. Gov.
Ex. 1. Of these violations, only eleven of the 34 were designated as S&S. Id. Consequently, the
majority of the remaining violations were characterized as not reasonably likely to contribute to a
serious injury.
In noting Getter’s failure to identify the presence of ignition sources, I am cognizant that
determining the likelihood of injury posed by the hazard, i.e. fire or explosion, caused by the
violation must be viewed in the context of continued mining operations. U.S. Steel Mining Co.,
Inc., 1 FMSHRC at 1130. Thus, the probability of a future beltline defect is a proper
consideration. However, even considering continued mining operations, the Secretary must
demonstrate sufficient quantities of coal dust accumulations in contact with moving beltline parts
to support an S&S finding.
Here, Getter quantified the accumulations as “extensive” and in contact with “more than
twenty” turning belt rollers, and “dry hard packed coal fines [that] were allowed to accumulate
on the roof, ribs, footwall, and belt structure.” Gov. Ex. 5; Tr. 70. However, Getter was unable to
articulate the extensiveness or depth of any of these accumulations that were allegedly touching
rollers. It is noteworthy that Getter’s contemporaneous inspection notes also do not quantify the
extent of the cited accumulations. See Gov. Ex. 3. Moreover, Getter’s testimony was devoid of
any references to the float coal dust allegedly on the roof, ribs, and belt structure, cited in the
order. As such, Getter’s testimony, given the Secretary’s burden of proof, can only be
characterized as vague and unconvincing. Rather, I credit the testimony of Oak Grove witnesses
Taft and Miller that the hard packed accumulations were no more than a quarter inch in depth,
sporadic, and, at least, partially rock dusted.8
Furthermore, with respect to the cited accumulations at the mini-washer, Oak Grove
conceded that the wet accumulations were in contact with a turning roller. Given the waterlogged nature of these accumulations, their contact with a moving roller is not reasonably likely
to result in a fire or explosion. Thus, the soupy accumulations at the mini-washer do not, alone,
rise to the level of an S&S violation.

8

The lack of detail in Getter’s testimony regarding the accumulations he cited in Order
No. 8520664 is in stark contrast to the detailed description provided by Inspector Womack
regarding the accumulations he cited in Order No. 4694424, discussed hereinafter.

38 FMSHRC Page 970

With regard to the likelihood of a propagation hazard, the Commission has noted that
“[i]t has long been recognized that a large expanse of float coal dust accumulations . . . can lead
to the dust being put into suspension from normal mining operations.” Twentymile, 36 FMSHRC
at 1543. As an initial matter, the subject order characterizes a substantial, if not a majority of the
cited accumulations, as “dry hard packed coal fines . . . on the roof, ribs, footwall, and belt
structure.” Gov. Ex. 5. Such hard packed accumulations are not readily capable of propagation.
Moreover, Getter’s testimony, given its lack of specificity, failed to demonstrate that the cited
accumulations constituted a large expanse of coal dust capable of propagation. Finally, even
Getter was admittedly not concerned that the cited accumulations had the potential to propagate
an explosion caused by an ignition elsewhere in the mine, such as at the various working faces.
Tr. 59-60. Rather, Getter testified that his primary concern was a fire caused by the local ignition
of the cited accumulations in the belt entry. Tr. 59-60.
In the final analysis, the Secretary has failed to meet his burden of proof to demonstrate
that the cited accumulations in Order No. 8520664 were reasonably likely to result in a fire or
contribute to an explosion. Consequently, the S&S designation in Order No. 8520664 is
deleted.
v. Unwarrantable Failure
As a general proposition, an unwarrantable failure is aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (1987). An
unwarrantable failure is characterized by “indifference,” a “serious lack of reasonable care,”
“reckless disregard,” or “intentional misconduct.” Id. at 2003-04; see also Buck Creek Coal, 52
F.3d 133, 136 (7th Cir. 1995) (approving the Commission’s unwarrantable failure test). Whether
conduct is “aggravated” in the context of an unwarrantable failure is determined by looking at all
the facts and circumstances of a case to see if aggravating or mitigating factors exist. See IO
Coal Co., 31 FMSHRC 1346, 1350-51 (Dec. 2009). The Commission has identified several such
factors, including: the length of time a 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 was obvious,
whether the violation posed a high degree of danger, and the operator’s knowledge of the
existence of the violation. Id. These factors are viewed in the context of the factual
circumstances of each case. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). All
relevant facts and circumstances of each case must be examined to determine whether a miner
operator’s conduct is aggravated or if mitigating circumstances exist. Id.
The Secretary contends that the cited accumulations conditions in Order No. 8520664
were attributable to a “high” degree of negligence sufficient enough to constitute an
unwarrantable failure. In support of the unwarrantable failure designation, Inspector Getter
submits that the reported extensiveness of the cited accumulations, as well as his belief that the
accumulations existed for at least nine shifts, provide an adequate basis for an unwarrantable
failure designation. Tr. 60-61.

38 FMSHRC Page 971

However, the evidence does not support Getter’s assertion that the cited accumulations
were extensive. Rather, the evidence reflects that there were wet accumulations near the miniwasher and sporadic accumulations of less than a quarter of an inch along the cited 2,100 feet of
belt line. The accumulations near the mini-washer did not pose a high degree of danger given
their extremely wet consistency. Getter’s claim that other accumulations were in contact with
numerous rollers cannot be substantiated, given the lack of specificity of Getter’s testimony
regarding the depth and extensiveness of the accumulations.
Furthermore, as discussed below, the fact that the examination reports reflect that the
Main North 3 belt line had been cleaned twice in the three days preceding the issuance of Order
No. 8520664 undermines Getter’s belief that the cited accumulations went unaddressed over a
period of nine shifts. In sum, there is insufficient evidence of aggravating factors, such as length
of time, extensiveness and obviousness, and degree of danger. While the history of section
75.400 violations is sufficient to have placed Oak Grove on notice that greater efforts were
necessary in eliminating accumulation violations, given the non-S&S nature of the subject
accumulations and Oak Grove’s efforts at good faith abatement, the history of violations, alone,
is inadequate to support an unwarrantable failure designation.
Consequently, the record, when viewed in its entirety, supports that the cited
accumulations are attributable a “moderate” degree of negligence. Accordingly, Order No.
8520664 shall be modified from a section 104(d)(2) order to a section 104(a) citation, to
reflect that the cited accumulations were not attributable to an unwarrantable failure.
vi. Civil Penalty
The Commission outlined the parameters of its responsibility for assessing civil penalties
in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:
The principles governing the Commission’s authority 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 “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) and 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 and 2700.44. The Act requires that, “[i]n assessing civil monetary
penalties, the Commission [ALJ] shall consider” 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 violations, and [6] the

38 FMSHRC Page 972

demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)). The Commission has noted that the de novo
consideration of the appropriate civil penalties to be assessed does not require “that equal weight
must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19
FMSHRC 1495, 1503 (Sept. 1997).
In keeping with this statutory requirement, the Commission has held that “findings of fact
on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC
287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion, which is bounded by proper
consideration for the statutory criteria and the deterrent purposes of the Mine Act. Id. at
294; Cantera Green, 22 FMSHRC 616, 620 (May 2000).
Oak Grove is a large mine operator and it has neither been contended nor shown that the
proposed penalty for this violation is disproportionate to the size of the business or that it would
impede its ability to remain in business. The cited accumulations were abated in a timely
manner. While the Secretary now proposes a penalty of $70,000.00—the maximum penalty for
an unwarrantable non-flagrant violation—as discussed herein, the gravity of the subject violation
and the degree of negligence attributable to Oak Grove is no more than moderate. However, the
history of Oak Grove’s violations of section 75.400 is an aggravating factor.
Given the deletion of the S&S and unwarrantable failure designations, a civil penalty of
$5,200.00 shall be imposed for Citation No. 8520664.
c. Order No. 8520666 in Docket No. SE 2013-301 (Main North 3 Belt
Examinations)
i. Findings of Fact
Inspector Getter believed that the cited accumulations in Citation No. 8520664 along the
Main North 3 belt line should have been observed by five examiners over nine shifts prior to the
issuance of the violation. Gov. Ex. 2; Tr. 60-61. After observing the accumulation conditions that
gave rise to the issuance of Order No. 8520664, Getter returned to the surface of the Oak Grove
Mine to inspect the mine’s pre-shift examination books for the operative nine preceding shifts
from September 30 to October 3, 2012. Tr. 50-51. Getter testified that inspection of the books for
that period confirmed his belief that accumulations in the Main North 3 belt had not been cleaned
for nine shifts. Tr. 50-51.

38 FMSHRC Page 973

After reviewing the pre-shift examination books, Getter issued 104(d)(2) Order No.
8520666, which alleges an inadequate pre-shift examination in violation of 30 C.F.R. §
75.360(a)(1).9 Order No. 8520666 provides:
The operator failed to make an adequate examination of the Main North 3 belt
entry. Accumulations of float coal dust and hard packed coal was allowed to exist
for an approximate distance of 2100 feet from the tail piece outby to Crosscut 27.
This belt line is examined 3 times each day. 5 different examiners have traveled
this belt line in the past 9 shifts. Due to the extensive amount of accumulations in
the cited area it is obvious to the casual observer this condition has existed for an
extended period of time. Due to 5 examiners traveling through the cited area and
the extent of the accumulations this constitutes more than ordinary negligence and
is a failure to comply with a mandatory health and safety standard. Standard
75.360(a)(1) was cited 1 time in two years at mine 0100851 (1 to the operator, 0
to a contractor). This violation is an unwarrantable failure to comply with a
mandatory standard.
Gov. Ex. 2. Getter characterized the cited violation as S&S and attributable to “high” negligence
constituting an unwarrantable failure. The Secretary has proposed a $52,500.00 penalty for Order
No. 8520666. Order No. 8520666 was timely abated on October 4, 2012. It is noteworthy that
the Secretary did not proffer a copy of the relevant pre-shift examination notations in support of
Order No. 8520666.
Oak Grove management personnel Taft and Miller both opined that the extent of the
accumulations in the Main North 3 belt entry, as they existed during Getter’s October 3
inspection, could have been noted as remarks by pre-shift examiners, but they did not warrant
notations as hazards. Tr. 142, 189-90, 208. Nevertheless, they testified that the mine’s pre-shift
examination logs demonstrate that accumulations in the Main North 3 belt line had, in fact, been
cleaned twice during the operative nine shifts from September 30 to October 3, 2012. Tr. 213-14.
ii. Fact of Violation
Section 75.360(a)(1) requires a certified person to conduct a pre-shift examination, for
the purpose of identifying any hazardous conditions, in the three hours preceding the start of a
shift in areas where persons are scheduled to work or travel. See Cumberland Coal Res., LP, 32
9

Section 75.360(a)(1) states:

Except as provided in paragraph (a)(2) of this section, a certified person
designated by the operator must make a pre-shift 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 pre-shift
examination has been completed for the established 8-hour interval. The operator
must establish 8-hour intervals of time subject to the required pre-shift
examinations.

38 FMSHRC Page 974

FMSHRC 442, 446 (May 2010); RAG Cumberland Res., LP, 26 FMSHRC 639, 651, 653 (Aug.
2004); Enlow Fork Mining Co., 19 FMSHRC at 14. In determining whether a violation of section
75.360(a)(1) has occurred, the proper inquiry is whether the subject pre-shift examination was
adequately performed, as evidenced by appropriate notations and actions documented in the
mine’s examination book. See, e.g., RAG Cumberland Resources LP, 26 FMSHRC at 647
(holding that although mandatory standards may not explicitly require adequate or effective
measures by mine operators, such a requirement is implicit in the standard’s underlying
purpose), aff’d 171 Fed. Appx. 852 (D.C. Cir. 2005). It is noteworthy that the Secretary did not
proffer the relevant examination book notations to support his assertion that inadequate pre-shift
examinations had occurred.
Obviously, pre-shift and on-shift examinations must be adequate, rather than perfunctory.
However, not every violation detected during an MSHA mine inspection gives rise to a
companion violation of section 75.360(a)(1) simply because the cited violation was not noted in
a pre-shift examination book. In resolving the adequacy of examinations, it is helpful to apply
the Commission’s reasonably prudent person test: namely, whether “a reasonably prudent
person, familiar with the mining industry and the protective purposes of [section 75.360(a)(1)]”
would have a reasonable basis to believe that the subject pre-shift examinations were sufficiently
thorough. See Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987).
Unlike the Secretary, Oak Grove proffered the relevant examination book notations.
Turning to the relevant entries in the examination book, despite Getter’s testimony and belief
that there were no relevant notations, there is documentation of several efforts to clean
accumulations in the Main North 3 belt entry during the shifts proceeding Getter’s inspection.
Specifically, the mine’s examination books demonstrate that accumulations along the Main
North 3 belt line were flagged as hazards during the September 30 evening shift, the October 1
day shift, and the October 2 evening shift. Resp. Ex. 1. These three identified accumulations
hazards were noted in Oak Grove’s examination book as cleaned during the shifts following their
notation. Id.
As previously noted, the Secretary has the burden of proof with respect to the alleged preshift examination violation. Despite Getter’s testimony to the contrary, the above entries
demonstrate that accumulations in the Main North 3 belt entry were not ignored in the shifts
preceding the issuance of Order No. 8520664.
Given the relevant examination notations, as well as Getter’s inability to specifically
describe the nature and extent of the cited accumulations claimed to be overlooked by examiners,
the record evidence fails to demonstrate that the subject pre-shift examinations were perfunctory
or otherwise inadequate. Consequently, Order No. 8520666 shall be vacated.

38 FMSHRC Page 975

d. Citation No. 8520665 in Docket No. SE 2013-352 (Main North 3 Belt
Maintenance)
i. Findings of Fact
An overcast is an enclosed airway structure that separates intake air from return air in the
same entry, permitting intake and return air currents to pass by one another. As a general matter,
overcasts in belt entries require belt lines to be elevated to pass over the overcast structure.
During the course of Inspector Getter’s October 3, 2012, inspection of the Main North 3 belt
line, he observed evidence of the elevated portion of the belt line rubbing the roof as it passed
over the overcast.
Although it was unclear whether the belt was rubbing the roof at the time of the
inspection, Getter testified that the fact that the belt was rubbing the roof was evidenced by a
“smooth finish” and a “sheen” on the metal roof channel straps, Decatur plates, and roof bolt
heads, as if they were being polished by the belt. Tr. 77. Despite the rubbing, Getter did not
observe any damage to the belt itself. Tr. 88; see Tr. 126. Getter explained that the contact
between the belt line and the roof was intermittent. Specifically, Getter testified:
The belt was contacting the roof sporadically as it was loaded or unloaded, so to
speak . . . . So whenever the belt was loaded, it was not contacting the roof. But
after the whatever was loaded into the belt line went through and the belt was
clear, it would physically raise up and contact the roof.
Tr. 72.
Below where the belt was rubbing, Getter testified that the word “drop” had been written
on the belt structure, along with an arrow pointing upward to the area of contact between the belt
and the roof. Tr. 87. While Getter could not determine when this notation had been written, he
concluded that someone had detected the need for a belt adjustment, but failed to ensure that the
adjustment was made. Tr. 87, 91.
As a result of his observations, Getter issued 104(a) Citation No. 8520665, which alleges
a violation of 30 C.F.R. § 75.1725(a).10 Citation No. 8520665 states:
The operator failed to maintain the Main North 3 belt line in safe operating
condition. Approximately 50 feet outby the first over cast outby the tail piece the
elevated belt was contacting the roof, roof bolt heads, decatur plates and roof
channels. The belt had been contacting the roof for an extended period of time.
This was evident due to the roof being worn and the roof bolt heads, decatur
plates, and roof channels being worn and having a polished appearance. Standard
10

30 C.F.R. § 75.1725(a) provides: “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.”

38 FMSHRC Page 976

75.1725(a) was cited 17 times in two years at mine 0100851 (17 to the operator, 0
to a contractor).
Gov. Ex. 4.
Getter testified that the rubbing belt, as well as the metal splices in the belt, created the
potential for frictional heat and sparks when contacting the metal roof channel straps, Decatur
plates, and roof bolt heads. Tr. 76-77. Getter opined that float coal dust on the floor, ribs, and
belt structure could be ignited by the heat and potential sparks caused by this rubbing. Tr. 76-77.
However, there was a significant separation between any frictional heat and sparks caused by the
rubbing belt and the accumulations that concerned Getter. In this regard, the coal accumulations
on the mine floor and any coal fines on the belt structure were located approximately 15 feet
below, and two to three feet below, the area of rubbing, respectively.11 Tr. 82-83. Although
Getter conceded at hearing that the belt was made of flame resistant materials, and that there was
no float coal dust located on the roof itself, Getter believed that the heat and sparks caused by
contact between the belt and the roof could ignite the accumulations on the floor and belt
structure. Tr. 76-78, 88, 90. In such an event, a fire or explosion could result, causing
“permanently disabling” injuries to the 35 miners working at the 14 East entry, the Zero Gate
entry, and the longwall. Tr. 88-90. Consequently, Getter designated Citation No. 8520665 as
S&S in nature.
In view of the fact that the condition had not been corrected despite the “drop” notation at
the site of the contact, Getter attributed the violative condition to “high” negligence. Tr. 87.
Citation No. 8520665 was abated about five hours after its issuance, after the belt structure was
lowered and a patch of non-abrasive fire retardant Teflon material was affixed to the roof. Gov.
Ex. 4; Tr. 102. The Secretary has proposed a $12,248.00 civil penalty for Citation No. 8520665.
Although Oak Grove Safety Director Taft, who accompanied Getter during the
inspection, and foreman Miller testified that they did not observe the belt rubbing the roof at the
time of the inspection, both Taft and Miller conceded that there was evidence of frictional
contact between the belt and the roof. Tr. 127, 177. Despite its apparent relevance, Taft disputed
the significance of the “drop” notation, asserting rather that notations, such as “lower,” were
written elsewhere on the belt structure for various reasons. Tr. 129. With respect to the likelihood
of ignition, Miller testified that he does not believe that methane accumulations in roof pockets
presented a source of fuel for ignition. Tr. 176-77.

It is noteworthy that I do not consider, nor has the Secretary argued, that the belt
maintenance defect at issue in Citation No. 8520665 was a local ignition source for the purposes
of the accumulations cited in Order No. 8520664. As discussed hereinafter, the hazard
contributed to by this belt maintenance defect condition was not related to float coal dust
accumulations, but rather methane pockets that may have accumulated near the roof.
11

38 FMSHRC Page 977

ii. Fact of the Violation
Section 75.1725(a) requires that belt line systems must be maintained in safe operating
condition. 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,
2129-30 (Dec. 1982). With respect to frictional heat, the Commission has held that
a belt rubbing or cutting into the belt structure, along with combustible accumulations and
possible ignition sources, constituted a hazard in violation of section 75.1725(a). Martinka Coal
Co., 15 FMSHRC 2452, 2456 (Dec. 1993); Jim Walter Resources, 18 FMSHRC 804, 817 (May
1996); Alabama By-Products, 4 FMSHRC at 2130-31.
Consequently, it is well-settled that a source of ignition caused by frictional heat and
sparking in the presence of oxygen and sources of fuel in an underground mine poses a
significant hazard. Unlike at the mine face where there is also potential frictional heat and
sparking, along belt lines there are no methane monitors to guard against pockets of methane that
may accumulate in the irregularities of a mine roof. As such, a reasonably prudent person must
conclude that a belt generating frictional heat and sparking at the mine roof, in proximity to
potential pockets of methane, constitutes an impermissible unsafe operating condition. In view of
the undisputed evidence of frictional contact between the belt and roof, the Secretary has
demonstrated the fact of the violation of section 75.1725(a).
iii. S&S
The Secretary has demonstrated that the first, second, and fourth elements of Mathies are
satisfied in that the cited unsafe condition posed a discrete safety hazard, i.e. a fire or explosion,
that was capable of causing injury of a reasonably serious nature. The focus of the S&S analysis
now shifts to the third element of Mathies, which requires the Secretary to demonstrate that it is
reasonably likely that the hazard contributed to by the cited belt malfunction will result in a fire
or explosion, causing serious or fatal burn-related or smoke inhalation injuries. See Bellefonte, 20
FMSHRC at 1254-55. Resolution of whether a violation of a mandatory standard is S&S in
nature must be made assuming the cited condition remains unabated during the course of
continued normal mining operations. U.S. Steel Mining Co., 1 FMSHRC at 1130.
As an initial matter, I do not find the potential for frictional heat and sparking as a source
of ignition reasonably likely to result in combustion of the cited coal fines and float coal dust
accumulations that are located from two to 15 feet from the source of the friction. However, it is
reasonably likely, given continued mining operations, that the subject frictional heat and
sparking caused by the cited condition will ignite pockets of methane in the mine roof, resulting
in reasonably serious fire or smoke-related injuries. Consequently, the S&S designation in
Citation No. 8520665 shall be affirmed.

38 FMSHRC Page 978

iv. Civil Penalty
As previously noted, the Secretary has proposed a $12,248.00 civil penalty for Citation
No. 8520665. It is not contended that this penalty is disproportionate to the size of the business,
or that it would impede its ability to remain in business. While the cited condition was abated in
a timely manner, the evidence supports the Secretary’s contention that the condition was
attributable to a “high” degree of negligence. The “high” negligence designation is justified by
the location of the notation “drop” directly under the area where the belt was contacting the roof.
This notation demonstrates that Oak Grove allowed the condition to exist despite its recognition
of the ignition hazard. Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984).
The dearth of mitigating factors does not warrant reducing the civil penalty proposed by
the Secretary. Consequently, a civil penalty of $12,248.00 shall be imposed for Citation No.
8520665.
e. Order No. 4694424 in Docket No. SE 2013-399 (Slope Belt Accumulations)
i. Findings of Fact
On September 25, 2012, while conducting a quarterly inspection of the Oak Grove Mine,
MSHA Inspector Steve Womack inspected the mine’s slope belt, while accompanied by MSHA
supervisor Brandon Russell and Oak Grove company representative William Wilson. Tr. 260-61.
The slope belt is the last belt carrying coal out of the Oak Grove Mine. Tr. 263. It is located in a
sloped 16 foot diameter tunnel that connects the surface to the underground coal seam. Tr. 263.
The slope belt is suspended above the tunnel floor, as high as five or six feet off the ground, by
roof chains. Tr. 399. The slope belt runs from the head drive unit on the surface to the tailpiece at
the tunnel’s deepest point, 3,500 feet below. Tr. 263. The tunnel is angled at approximately 1216 degrees. Tr. 263. At the 3,500 foot mark there is an exit crossover that allows miners on the
slope to cross over into an adjacent entry. Tr. 368-69.
At the base of the slope belt is the dump bunker, a pit that collects all of the coal arriving
on belts throughout the mine. Tr. 357-58. The miner assigned to work at the dump bunker
controls vibrating feeders at the bottom of the pit that periodically releases quantities of coal into
a chute that ultimately deposits the coal onto the slope belt to be carried to the mine surface. Tr.
356-58. Personnel at the dump bunker can speed up or slow down the dumping process to
regulate the amount of coal being deposited onto the slope belt. Tr. 357-58. The slope belt is the
exclusive method of moving coal to the surface of the Oak Grove Mine. Tr. 263.
Womack, Russell, and Wilson began their inspection at the surface, descending down the
slope tunnel on a walkway that runs along the right side of the slope belt when traveling in an
inby direction. Tr. 264, 267. Womack testified that the first 200 feet of the belt line were
unremarkable. Tr. 269. Beginning at the 200 foot mark, however, Womack testified to periodic

38 FMSHRC Page 979

“deep” and “massive spillage” on the tunnel floor, and seven inches of “dried” and “anthill-type”
accumulations on the metal belt structure. Tr. 270-73. Along this stretch, Womack observed “a
couple feet of accumulation” on the tunnel floor beneath the belt. Tr. 272-73. These
accumulations were spilling out from under the belt, causing accumulations of approximately
nine inches of coal deposits alongside the adjacent walkway. Tr. 272-73.
Wilson disputes Womack’s reported observation of accumulations of “a couple feet”
located beneath the belt beginning at the 200 foot mark. Although Womack believed the
accumulations were significant, Wilson characterized the accumulations beginning at the 200
foot mark as “small accumulations.” Tr. 359. Wilson quantified these accumulations as varying
from eight to 24 inches deep. Resp. Ex. 5. Wilson characterized the accumulations as “[not]
continuous” and “staggered.” Tr. 385. Having disputed the depth of these accumulations
reportedly observed by Womack, Wilson testified that none of these accumulations were in
contact with turning rollers. Tr. 360-61.
Sensitive to Womack’s concerns about the accumulations beginning at the 200 foot mark,
Wilson used his radio to call for men to be assigned to the slope belt to start the cleanup process.
Tr. 351, 377. Typically, the slope belt is initially cleaned by removing any accumulations in
proximity to the dump bunker. Tr. 354. After accumulations are removed from the dump bunker,
the accumulations along and under the slope belt are removed by washing the slope belt tunnel
with a powerful water hose located at the surface. Tr. 355. Accumulations that are washed from
the surface down to the 3,500 foot mark accumulate in a wash hole where they are collected to
be re-deposited onto the belt. Tr. 367-68.
As Womack, Russell, and Wilson descended the slope tunnel, at the 2,340 foot mark,
Womack reportedly observed that the bottom belt was running in the accumulations and a
bottom roller was turning in the coal fines. Tr. 290. At this location, there were two bottom
rollers missing, causing the belt to sag and run in the accumulations below. Gov. Ex. 6; Tr. 290.
Wilson’s testimony supports Womack’s contention that there were excessive
accumulations around the 2,340 foot mark. However, Wilson opined that these accumulations
were caused by a broken belt line support chain, which caused the belt line to sag. Tr. 359-60.
Wilson asserts that it is possible that these accumulations built up instantaneously when the chain
broke. Tr. 363. Wilson testified that he did not believe that Womack observed the broken chain
during the course of the inspection, although it is difficult to comprehend how Wilson knew what
Womack did or did not see. Tr. 380-81. Nevertheless, it is significant that on cross-examination
Oak Grove did not seek an acknowledgment from Womack as to whether the belt line support
chain was, in fact, broken.
Wilson also testified that at the 2,340 foot mark there was a pipe lodged beneath the belt
line, causing otherwise normal spillage to accumulate more quickly. Tr. 360-61. Wilson
conceded that, here, one roller was turning in accumulations. Tr. 359; Resp. Ex. 5. While it is
unclear when use of powerful hoses at the surface to clean the slope belt began, Wilson opined
that the accumulations at the 2,340 foot mark were likely exacerbated by the washing process
that he called for earlier in the inspection. Tr. 363. However, Wilson’s opinion is belied by his
testimony that he saw no evidence of coal and water running down the slope until he was at the

38 FMSHRC Page 980

2,600 foot mark. Tr. 366, 379. Thus, the evidence reflects that the accumulations at the 2,340
foot mark were not the result of, or exacerbated by, the cleaning process. Wilson opined that the
accumulations at the site of the alleged broken belt line support chain were quite extensive,
estimating that they totaled approximated 20 tons. Tr. 370.
Inby from the 3,200 foot mark to the 3,500 foot mark, Womack also observed
accumulations as much as 24 inches in depth, and “up to 47 inches” near the tailpiece. Gov. Ex.
6. Womack estimated that the extent of the cited accumulations along the entire slope belt line
totaled approximately 4,200 tons. Tr. 280.
From the 3,200 foot mark to the 3,500 foot mark, Wilson acknowledged that “7 inches to
12 inches, even perhaps some places [as much as] 24 inches,” of accumulations were present. Tr.
398-99. Wilson, however, asserts that the accumulations near the tailpiece were clearly the result
of the washing process that was initiated during the inspection. Tr. 371-72.
Furthermore, from the buildup at the 2,340 foot mark to the 3,400 foot mark, Wilson
testified that he observed no accumulations in contact with rollers. Tr. 367. Thus, although the
accumulations under the belt may have been as deep as 47 inches in places along the entirety of
the belt line, both Womack and Wilson agree that, with the exception of the extensive
accumulations at the 2,340 foot mark, there were no other accumulations touching rollers.
Obviously, accumulations of 24 inches would ordinarily contact rollers. However, here, the cited
accumulations were separated from the slope belt, which was suspended as high as five or six
feet off the ground by roof chains. Tr. 399.
As a result of his observations, Womack issued 104(d)(2) Order No. 4694424. Order No.
4694424 alleges a violation of 30 C.F.R. § 75.400. Order No. 4694424 states:
From the 200 ft. marker of the Slope Belt continuing to the 3000 ft. marker, and
again from 3200 to the 3500 ft. marker, run of mine spillage has been allowed to
accumulate beneath the bottom belt from the walkway to the offside rib. The
depth ranges up to 24 inches and near the tailpiece up to 47 inches. The spillage is
dry to damp with sporadic areas which are wet. Dried coal spillage averaging 7
inches in height is present on nearly all top idlers metal framework. From 2340 to
2440 the bottom belt is running in the spillage and a bottom roller is turning in the
coal fines. 2 bottom rollers are missing at this location. This is an unwarrantable
failure to comply with a mandatory health & safety standard constituting more
than ordinary negligence.
Gov. Ex. 6. Womack designated the cited conditions as S&S, asserting that they could
“reasonably likely” result in a “lost workdays or restricted duty” injury to four miners. Womack
attributed the conditions to a “high” degree of negligence and an unwarrantable failure to comply
with section 75.400 of the Secretary’s mandatory standards. The Secretary has proposed a
$32,800.00 civil penalty in satisfaction of Order No. 4694424.

38 FMSHRC Page 981

Order No. 4694424, which was issued on September 24, 2012, was abated at 4:00 a.m. on
September 27 after Oak Grove contacted MSHA to advise that it had finished cleaning the slope
belt. Tr. 296. Womack opined that Oak Grove was working on cleaning these accumulations
during the entire two day abatement period, as the order shutting down the slope belt effectively
shut down the entire Oak Grove Mine. As Womack explained, “[t]he slope belt shuts down,
nothing moves. You can’t mine coal on any of the sections because you have no way of
transporting it.” Tr. 296-97. The abatement states:
The combustible accumulations of loose coal have been removed from the slope
belt. The loose coal has been washed to the sump at the bottom of the slope,
loaded on the belt, and removed from the mine.
Gov. Ex. 6.
With respect to the S&S designation, Womack testified that the roller turning in
accumulations, as well as the belt dragging in accumulations, caused frictional heat that created a
potential ignition source for accumulations of coal fines and float coal dust. Tr. 282-85. The
potential for smoke caused by smoldering or ignited coal in the slope tunnel is of particular
concern because there are only two avenues of escape for personnel in proximity to the slope
belt—traveling the slope tunnel to the surface or using a crossover located at the 3,500 foot
mark. Tr. 285-86. In addition, the accumulations presented tripping hazards inherent in using the
steep slope walkway as an escapeway. Tr. 285-86.
Womack asserted that the subject smoke inhalation and tripping hazards will result in at
least “lost workdays or restricted duty” injuries when viewed in the context of continued mining
operations. Tr. 289. Womack further asserted that the cited hazard would “reasonably likely”
affect four miners—the four miners he encountered working the slope during his inspection. Tr.
293. Although Womack was concerned that the cited accumulations constituted a fire hazard,
Womack believed that the accumulations along the slope belt did not present a propagation
hazard as they are “a couple of miles” from any working faces. Tr. 300-01.
Womack attributed the cited conditions to a “high” degree of negligence evidencing an
unwarrantable failure. Womack’s findings predominantly are based on the extensiveness of the
accumulations and the protracted length of time the coal dust and coal fines were permitted to
accumulate. Tr. 294-95. Womack believed that the cited accumulations existed for a
considerable period of time, estimating that the dried anthill-type coal fines that accumulated on
the belt structure existed for three days. Tr. 294. Womack testified that this type of coal fine
accumulation can only occur over a period of time. Tr. 323-24. During that time, Womack
believes that between 9 and 12 examinations had taken place. Tr. 325. Womack elaborated:
The examiner[s] no way could not have seen the extensive amount of material.
Even absent what was under the belt, the dried material on top, I mean, on every
roller. You just don’t miss that. It’s just even an untrained miner is going to, you

38 FMSHRC Page 982

know, going to question that. You know, how long it had been there,
management, I mean, certainly they—they have to have knowledge of this. . . .
Tr. 295.
ii. Fact of the Violation
As previously noted, section 75.400 requires that coal dust “shall be cleaned up and not
be permitted to accumulate” where miners are usually required to work or travel. Thus,
consideration of whether a 75.400 violation has occurred requires an analysis of both the
quantity and the duration of the cited conditions. As a threshold matter, it is noteworthy that Oak
Grove does not contest the fact of the violation in Order No. 4694424 in its post hearing brief.
Order No. 4694424 addresses two types of accumulations: the extensive accumulations at the
2,340 foot mark that were in contact with the suspended belt line and its turning roller,
characterized by Oak Grove witness Wilson as totaling as much as 20 tons of coal material; and
extensive coal dust and coal fine accumulations on or under the slope belt throughout a
significant portion of the 3,500 foot tunnel floor, which were not in contact with moving belt
components.
I am mindful that the use of a high-pressure hose to clean the slope entry from the
surface, which began during Womack’s inspection, may have concentrated greater
accumulations at the lower portions of the slope belt and at the tailpiece. However,
notwithstanding Oak Grove’s apparent admission of the fact of the violation, it cannot be
reasonably argued that the cited accumulations, either the 20 tons of accumulations at the 2,340
foot mark alone, or along the entire belt slope in amounts totaling 4,200 tons, do not constitute
impermissible accumulations of combustible material in violation of section 75.400.
iii. S&S
In evaluating the propriety of an S&S designation, the Secretary has demonstrated that
the first, second, and fourth elements of Mathies are satisfied in that the cited accumulations
constituted a violation that posed a discrete safety hazard, i.e. a fire and resultant smoke, that was
capable of causing injury of a reasonably serious nature. In this regard, I credit the Secretary’s
assertion that smoke presents a significant hazard when present in the slope tunnel, as miners
working in the vicinity of the slope may rely on the slope belt tunnel as a means of escape to the
surface.
Thus, the S&S analysis shifts to the third dispositive element of Mathies that requires
consideration of whether it is reasonably likely that the hazard contributed to by the cited
accumulations will result in a fire or explosion, causing serious or fatal burn-related or smoke
inhalation injuries. Bellefonte, 20 FMSHRC at 1254-55. The likelihood of such injury must be
viewed in the context of continued exposure to the hazard posed by the violation assuming the
violation continued unabated in the face of normal mining operations. Southern Oil Coal Co., 13
FMSHRC 912, 916-17 (June 1991); Halfway, Inc., 8 FMSHRC at 12; U.S. Steel Mining Co.,
1 FMSHRC at 1130.

38 FMSHRC Page 983

While it is true that a substantial portion of the cited accumulations were located on the
tunnel floor, far removed from any source of frictional heat caused by the suspended turning belt
or its rollers, the uncontroverted evidence reflects that the accumulations at the 2,340 foot mark
were in contact with the moving suspended conveyor belt and a turning roller. It is clear that it is
reasonably likely that combustible coal accumulations in contact with the potential frictional heat
caused by this condition, if left unabated, will contribute to a fire that will result in injuries of a
reasonably serious nature. Consequently, the Secretary has demonstrated, by a
preponderance of the evidence, that the cited accumulations were properly designated as
S&S.
iv. Unwarrantable Failure
The cited accumulations in Order No. 4694424 were attributed to a “high” degree of
negligence that evidences an unwarrantable failure to comply with section 75.400. As previously
noted, an unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC at 2001. The Commission has identified the
indicia of an unwarrantable failure: the length of time a 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 was obvious, whether the violation posed a high degree of danger, and the operator’s
knowledge of the existence of the violation. See IO Coal Co., 31 FMSHRC at 1350-51.
The evidence reflects that the accumulations at the 2,340 foot mark, which were several
feet in depth and encompassing the suspended belt and a turning roller, were extensive, obvious,
and hazardous given the accumulation’s proximity to potential frictional heat. To counter its
apparent failure to address these extensive accumulations, Oak Grove relies on its assertion that
the significant accumulations at the 2,340 foot mark in the slope tunnel occurred immediately
prior to Inspector Womack’s inspection, as a consequence of a recently-broken belt support
chain and a pipe that had become lodged below the belt. Although Womack did not testify that
he observed either the alleged broken chain or lodged pipe, Oak Grove shall be given the benefit
of the doubt that the chain was in fact broken, and that the pipe was indeed lodged below the belt
line.
Not surprisingly, however, this is not the first time where I have encountered a mine
operator’s claim that the subject violation occurred only moments before the inspector arrived at
the working place. Of course, such unsubstantiated, self-serving claims should be given little
weight. In fact, the defects relied upon by Oak Grove as justification for the accumulations at the
2,340 foot mark are implicating, rather than exonerating, factors. The Commission has long
recognized that “the substantial evidence standard may be met by reasonable inferences drawn
from indirect evidence.” McCoy Elkhorn Coal Corp. 36 FMSHRC 1987, 1999 (Aug. 2014)
(citing Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984)). Here, the inference
sought by Oak Grove—namely, that the extensive accumulations were caused by a broken chain
and lodged pipe that occurred immediately prior to Womack’s arrival at the slope tunnel — is
speculative and self-serving, and cannot be drawn from any indirect evidence. Rather, the
reasonable inference is that the cited conditions at the 2,340 foot mark existed for a significant

38 FMSHRC Page 984

period of time during which coal accumulated in the slope tunnel despite the slope belt being
manned by Oak Grove personnel.
With respect to the totality of the accumulations cited in Order No. 4694424, the
extensiveness of the accumulations provides the inescapable conclusion that they were allowed
to accumulate over a significant period of time. In this regard, Wilson conceded that the
accumulations removed from the 2,340 foot mark totaled approximately 20 tons. Additionally,
Womack testified that a total of 4,200 tons of materials had accumulated along the length of the
3,500 feet of slope belt tunnel.
The extensiveness of the total cited accumulations is further evidenced by the fact that it
took Oak Grove two days to abate the order. In this regard, the two-day abatement is significant
in that shutting down the slope belt meant halting production across the entire Oak Grove Mine.
Thus, the record amply supports that the accumulations existed for a significant period of time
and that they were obvious due to their extensive nature.
Oak Grove was also on notice that greater efforts were necessary for controlling coal
accumulations at its Oak Grove Mine facility. In this regard, MSHA’s records reflect that Oak
Grove was cited 34 times for violating section 75.400 during the two years preceding the
issuance of Order No. 4694424. Gov. Ex. 1. Finally, as discussed above, the cited accumulations
were hazardous in that they could contribute to serious burn or smoke inhalation-related injuries
to personnel working in proximity to the slope belt.
In sum, the Secretary has demonstrated that the subject accumulations were extensive,
obvious, hazardous in nature, and existed for a significant period of time. Thus, the Secretary
has demonstrated the necessary criteria to support the alleged high degree of negligence
necessary for the unwarrantable failure designation in Order No. 4694424.
v. Civil Penalty
The Secretary has proposed a penalty of $32,800.00 for Order No. 4694424. As
previously noted, it has not been contended that the Secretary’s proposed penalty will adversely
affect Oak Grove’s ability to remain in business. The subject accumulations are attributable to a
high degree of negligence. The hazard contributed to by the violation is serious in gravity.
Finally, Oak Grove’s history of section 75.400 is an aggravating, rather than mitigating, factor.
Consequently, a civil penalty of $32,800.00, as proposed by the Secretary, shall be
imposed for the cited coal accumulations in Order No. 4694424.
f. Order No. 4694426 in Docket No. SE 2013-399 (Slope Belt Examination)
i. Findings of Fact
After observing the conditions cited in Order No. 4694424, Inspector Womack returned
to the surface to inspect Oak Grove’s examination books. The relevant examination records,
which were proffered by Oak Grove rather than the Secretary, reflect that notations of

38 FMSHRC Page 985

accumulations along the slope belt were made during the three shifts preceding Womack’s
inspection. For example, the pre-shift examination for the September 24, 2012, evening shift
includes a “remark” that the slope belt should be cleaned from the 2,360 foot mark to the wash
hole. Resp. Ex. 6. Additionally, the pre-shift examination for the September 25, owl shift, the
shift immediately preceding Womack’s inspection, notes two accumulation hazards along the
slope: namely, from the 100 foot mark to the 400 foot mark; and from the 2,280 foot mark to the
2,520 foot mark. Resp. Ex. 6. The former notation was acknowledged by Womack in Order No.
4694426. However, Womack testified that he “missed” the latter notation when inspecting the
examination book. Tr. 328.
As a result of his review of the examination book, Womack issued 104(d)(1) Order No.
4694426, alleging a violation of 30 C.F.R. § 75.363(b).12 Order No. 4694426 provides:
Adequate examinations are not being conducted and recorded on the Slope Belt
at this mine. Inspections of the Slope Belt revealed missing & defective rollers,
plus coal spillage from 200 ft to the tailpiece, approx 3300 ft up to 47 inches in
depth and dried accumulations of coal fines on belt structure averaging 7 inches in
height throughout the 3300 feet of area. Pre-shift record for 09/24/2012 and owl
shift and evening shift do not list these hazards. Day shift on 09/25/2012 only lists
spillage from 100 ft to 400 ft mark. These conditions are obvious to even the most
casual observer. This is an unwarrantable failure to comply with a mandatory
health and safety standard, constituting more than ordinary negligence.
Gov. Ex. 7 (emphasis added). Womack characterized the cited violation as S&S and attributable
to “high” negligence constituting an unwarrantable failure. The Secretary has proposed a
$15,900.00 penalty for Order No. 4694426. Order No. 4694426 was timely abated on September
25, 2012.
ii. Fact of the Violation
As a threshold matter, there is a substantive distinction between the cited mandatory
section in 75.363(b), which requires that examination books shall be maintained for the purpose
of recording hazardous conditions found by mine examiners, and the mandatory standard
requiring adequate pre-shift examinations in section 75.360(a)(1). See supra, n.9. It is irrefutable
12

30 C.F.R. § 75.363(b) states:

A record shall be made of any hazardous condition and any violation of the nine
mandatory health or safety standards found by the mine examiner. This record
shall be kept in a book maintained for this purpose on the surface at the mine. The
record shall be made by the completion of the shift on which the hazardous
condition or violation of the nine mandatory health or safety standards is found
and shall include the nature and location of the hazardous condition or violation
and the corrective action taken. This record shall not be required for shifts when
no hazardous conditions or violations of the nine mandatory health or safety
standards are found.

38 FMSHRC Page 986

that Oak Grove maintained a pre-shift examination record book, given the examination book
entries noted above. Consequently, at the hearing, I expressed my concern that the Secretary was
alleging a violation of section 75.363(b) that requires that pre-shift examination records be kept,
rather than section 75.360(a)(1) that requires that pre-shift examinations be adequately
performed. Specifically:
Judge:

Why did you issue this 75.363(b) versus 75.360(a)[(1)]?

Womack:

Well, [363(b)] is the record of that examination. I feel very
strongly that, you know, a mine examiner is the first—it’s the
utmost defense that the miners have before they go into the mine.
That examiner looks at an area where people are going to work and
travel. If he doesn’t do his job, then you’ve got miners that are
going into this area unaware. So if he failed to put that record
down and notify the people that we have a problem here, then
he’s—he’s not only failed at his job, he’s putting people in a
hazardous situation.

Judge:

No, I understand, but I don’t know that it makes any difference,
but wouldn’t it have been more appropriate based on this citation
for you to believe that he—that you could have cited an inadequate
pre-shift?

Womack:

Yes, I think I could have.

Judge:

Is there a substantive distinction between this, the failure to record
under section 75.363(b), versus an inadequate pre-shift
examination under 75.360(a)(1)?

Womack:

No, sir. I—

Judge:

Basically the same thing?

Womack:

I could have went actually either way.

Judge:

They’re basically the same thing; there’s no reason why you chose
one over the other, is what I’m saying.

Womack:

No, sir, not other than, you know, just this 363(b) mentions the
records.

Judge:

Okay.

38 FMSHRC Page 987

Womack:

To me, the record is the important thing here. Getting those
hazards listed in the record so that action can be taken.

Tr. 302-03.
Womack asserts, in essence, that the mandatory standards in sections 75.360(a)(1) and
75.363(b) are duplicative and indistinguishable. However, these mandatory standards are not
duplicative in that they impose distinctly different duties on mine operators. Sumpter v. Sec’y of
Labor, 763 F.3d 1292, 1301 (11th Cir. 2014) (holding that “citations and orders are not
duplicative as long as the standards impose separate and distinct duties”). Contrary to Womack’s
opinion, which addresses a question of law, these mandatory standards impose different
obligations—to maintain an examination record book, and to perform adequate examinations, as
evidenced by notations in the examination record book. In this regard, the failure to effectively
note a hazardous condition in an existing pre-shift examination book after an examination occurs
is a reflection on the adequacy of the examination, not whether the examination record book is,
in fact, being maintained.
Despite my expression of concern that section 75.360(a)(1), rather than section
75.363(b), is the appropriate mandatory standard in question, to date, the Secretary has not, at
trial or in his post-hearing brief, sought to modify or otherwise argue in the alternative that a
violation of section 75.360(a)(1) is in issue. Make no mistake, I would have unhesitatingly
granted the Secretary’s motion to amend Order No. 4694426 to include an alleged violation of
section 75.360(a)(1), as undoubtedly Oak Grove would not have been prejudiced thereby.
However, it is not the role of a Commission judge to be an eraser on the Secretary’s pencil.
Consequently, having failed to assert a violation of the relevant mandatory standard in
section 75.360(a)(1), Order No. 4694426 must be vacated.
ORDER
In view of the above, IT IS ORDERED that Citation No. 8520665 and Order No.
4694424 ARE AFFIRMED. Accordingly, IT IS ORDERED that Oak Grove Resources, LLC
shall pay a penalty of $12,248.00 in satisfaction of Citation No. 8520665 and $32,800.00 in
satisfaction of Order No. 4694424.
IT IS FURTHER ORDERED that Order No. 8520664 IS MODIFIED from a section
104(d)(2) order to a section 104(a) citation, thus deleting the unwarrantable failure designation.
IT IS FURTHER ORDERED that the 104(a) Citation No. 8520664 IS MODIFIED from an
S&S to a non-S&S citation. Accordingly, IT IS ORDERED that Oak Grove Resources, LLC
shall pay a civil penalty of $5,200.00 in satisfaction of Citation No. 8520664.
IT IS FURTHER ORDERED that Order Nos. 8520666 and 4694426 ARE
VACATED.
IT IS FURTHER ORDERED that consistent with the parties’ settlement terms, Oak
Grove Resources, LLC SHALL PAY a total civil penalty of $54,188.00 in satisfaction of
Citation Nos. 8524989, 8524999, 8524490, 8524979, 8524982, 8524987, 8524991, 8524993,

38 FMSHRC Page 988

8524994, 8524995, 8524996, 7684600, 8524499, 8524500, 8526401, 8524983 and 8524491 in
Docket No. SE 2013-352, and Order Nos. 8524255 and 8524258 in Docket No. SE 2013-301.
In view of the above, IT IS ORDERED that Oak Grove Resources, LLC pay, within 40
days of the date of this Decision, a total civil penalty of $104,436.00, consisting of a total civil
penalty of $50,248.00 for the five citations and orders adjudicated in this proceeding, in addition
to $54,188.00 for the 19 settled citations and orders.13
IT IS FURTHER ORDERED that upon timely receipt of the total $104,436.00
payment, the civil penalty proceedings in Docket Nos. SE 2013-301, SE 2013-352, SE 2013-368,
and SE 2013-399 ARE DISMISSED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

Distribution: (Electronic and Certified Mail)
Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219
Jennifer Booth Thomas, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219
R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222
/acp

13

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. Please
include the Docket No. and A.C. No. noted in the above caption on the check.

38 FMSHRC Page 989

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

May 3, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. SE 2013-0507 M
A.C. No. 22-00035-325870

v.

Docket No. SE 2013-0558 M
A.C. No. 22-00035-328667

OIL DRI PRODUCTION COMPANY,
Respondent.

Docket No. SE 2014-0104 M
A.C. No. 22-00035-337763
Mine: Ripley Mine and Mill

DECISION AND ORDER
Appearances:

Daniel Brechbuhl, Esq, U.S. Department of Labor, Denver, CO, for the
Petitioner;
Douglas Graham, Esq., Oil-Dri Corporation of America, Chicago, IL, for
the Respondent.

Before:

Judge L. Zane Gill

This proceeding, under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1994), involves five section 104(a) citations, 30 U.S.C. § 814(a), issued by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Oil Dri Production
Company at its Ripley Mine and Mill. The Secretary and the Respondent settled seven citations
prior to trial: 8731992, 8731994, 8731995, 8731999, 8730316, 8730317, and 8730318. The
parties presented testimony regarding the remaining five citations in Nashville, Tennessee. In
summary, I find that:




For Citation No. 8731981, the Secretary failed to prove by a preponderance of the
evidence that the accumulated waste material created a fire hazard. I vacate the citation;
For Citation No. 8731989, Oil Dri violated Section 56.20003(a), there was moderate
negligence, and I assess a penalty of $100.00;
For, Citation No. 8731997, Oil Dri violated Section 56.14201(b), there was high
negligence, the significant and substantial designation was warranted, and I assess a
penalty of $4,300.00;

38 FMSHRC Page 990




For Citation No. 8731998, Oil Dri violated Section 56.17001, there was high negligence,
the significant and substantial designation was warranted, and I assess a penalty of
$4,800.00;
For Citation No. 8636886, Oil Dri violated Section 56.14132(b)(1), there was high
negligence, the significant and substantial designation was warranted, and I assess a
penalty of $6,000.00.

Basic Legal Principles
Significant and Substantial
The citation and orders in dispute and discussed below have been designated by the
Secretary as significant and substantial (“S&S”). 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 question of whether a
particular violation is S&S must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007 (Dec. 1987). S&S enhanced enforcement is applicable only to violations of mandatory
health and safety standards. Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir.
1999). The Secretary bears the burden of proving all elements of a citation by a preponderance
of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone Coal
Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d, 151 F.3d 1096 (D.C. Cir. 1998); Jim
Walter Res., Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s burden
is to prove the violations and related allegations, e.g., gravity and negligence, by a
preponderance of the evidence.”)
In Mathies Coal Co., the Commission established the standard for determining whether a
violation was S&S:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard – that is, a measure of
danger to safety – contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984).
The third element of the Mathies test presents the most difficulty when determining
whether a violation is S&S. In U.S. Steel Mining Co., the Commission provided additional
guidance: “[T]he third element of the Mathies formula ‘requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury.’” 7 FMSHRC 1125, 1129 (Aug. 1985) (citing U.S. Steel Mining Co., 6 FMSHRC 1834,

38 FMSHRC Page 991

1836 (Aug. 1984)). The Secretary, however, “need not prove a reasonable likelihood that the
violation itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct. 2011)
(citing Musser Eng’g, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010)), aff’d, 717 F.3d 1020 (D.C.
Cir. 2013). Further, the Commission has found 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)). This evaluation is also made in consideration of the length of
time that the violative condition existed prior to the citation and the time it would have existed if
normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S. Steel
Mining Co., 6 FMSHRC 1573, 1574 (July 1984).1
Negligence
“Negligence” is not defined in the Mine Act. The Commission, has, however,
recognized that “[e]ach mandatory standard … carries with it an
accompanying duty of care to avoid violations of the standard, and
an operator’s failure to meet the appropriate duty can lead to a
finding of negligence if a violation of the standard occurs.” A.H.
Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining
whether an operator met its duty of care, we consider what actions
would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the
relevant facts, and the protective purpose of the regulation. See
generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).
Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); Jim Walter Res., Inc., 36 FMSHRC
1972, 1975 (Aug. 2014); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008). “Thus in
making a negligence determination, a Judge is not limited to an evaluation of allegedly
‘mitigating’ circumstances. Instead, the Judge may consider the totality of the circumstances
holistically.” Brody Mining, LLC, 37 FMSHRC at 1702.
Indeed, Part 100 regulations “apply only to the proposal of penalties by MSHA and the
Secretary of Labor; under both Commission and court precedent, the regulations do not extend to
the independent Commission, and thus the MSHA regulations are not binding in any way in
Commission proceedings.” Id. at 1701-02 (citing Jim Walter Res., Inc., 36 FMSHRC at 1975
n.4; Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[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
1

It must be noted that the Fourth and the Seventh Circuits have changed the
Commission’s precedent under Mathies by placing the emphasis and bulk of the analysis on the
second element of the test. See Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148 (4th Cir.
2016); Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014). This
Respondent, however, is not located in either of those Circuits, and thus, my analysis uses the
traditional Mathies test.

38 FMSHRC Page 992

Commission.”), aff'g 5 FMSHRC 287 (Mar. 1983)). Although the Secretary’s part 100
regulations are not binding on the Commission, the Secretary’s definitions of negligence in those
provisions are illustrative.
Mitigation is something the operator does affirmatively, with knowledge of the potential
hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes
actions taken by the operator to prevent or correct hazardous conditions.
Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (Mar. 1983),
aff’d, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(Apr. 1987)). 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 Fauver).
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. The Commission has recognized that the
likelihood of injury is to be made assuming continued normal mining operations without
abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC at 1130.
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). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
said penalty. 29 C.F.R. § 2700.28.
Under section 110(i) of the Mine Act, the Commission is to consider the following when
assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness
of such penalty to the size of the business of the operator charged; (3) whether the operator was
negligent; (4) the effect on the operator’s ability to continue in business; (5) the gravity of the
violation; and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C
§ 820(i). Thus, 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.”); see American Coal Co.,
35 FMSHRC 1774, 1819 (June 2013) (ALJ Zielinski).
The Commission has repeatedly held that substantial deviations from the Secretary's
proposed assessments must be adequately explained using the Section 110(i) criteria. E.g.,

38 FMSHRC Page 993

Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000). 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 FMSHRC at 621.
Stipulations
1. Oil Dri was at all times relevant to these proceedings engaged in mining activities at the
Ripley Mine and Mill in or near Ripley, Mississippi;
2. Oil Dri’s mining operations affect interstate commerce;
3. Oil Dri is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq.;
4. Oil Dri is an “operator” as that word is defined in section 3(d) of the Mine Act, 30 U.S.C.
§ 803(d), at the Ripley Mine and Mill (Federal Mine I.D. No. 22-00035) where the
contested citations in these proceedings were issued;
5. The Administrative Law Judge has jurisdiction over these proceedings pursuant to
section 105 of the Act;
6. On or about May 20, 2013 through May 28, 2013, MSHA Supervisor Inspector Billy
Randolph was acting as a duly authorized representative of the United States Secretary of
Labor, assigned to MSHA, and was acting in his official capacity when conducting the
inspection and issuing the citations from dockets SE 2013-507-M, 2013-558-M, and
2014-104-M at issue in these proceedings;
7. The citations at issue in these proceedings were properly served upon Oil Dri as required
by the Act, and were properly contested by Oil Dri;
8. The citations at issue in these proceedings may be admitted into evidence by stipulation
for the purpose of establishing their issuance. The truthfulness or relevancy of any
statements asserted therein is not stipulated to by the parties;
9. Oil Dri demonstrated good faith in abating the violations;
10. Without Oil Dri admitting the propriety or reasonableness of the penalties proposed
herein, the penalties proposed by the Secretary in this case will not affect the ability of
Oil Dri to continue in business.
Joint Prehearing Report, pg. 1-2.

38 FMSHRC Page 994

Citation No. 8731981
Inspector Randolph2 issued Citation No. 8731981, pursuant to Section 104(a) of the Mine
Act, to Oil Dri at its Ripley mine May 20, 2013, alleging a violation of 30 C.F.R. § 56.4104(a).
(Ex. S-3) Section 56.4104(a), a mandatory safety standard, states that “[w]aste materials,
including liquids, shall not accumulate in quantities that could create a fire hazard.” 30 C.F.R. §
56.4104(a). The citation alleges:
Oil and other combustible material had accumulated around the
new Ag hot kiln. 55 gallon drums and gallon buckets of lubricant
were stored on the working platform. Miner[s] are exposed to this
hazard daily during routine maintenance. Injuries to miners would
result in smoke inhalation, burns, and other disabling injuries.
(Ex. S-3)
The citation alleged that an injury was unlikely but could be reasonably expected to be
permanently disabling, one person could be affected, and the violation was a result of moderate
negligence. Id. The Secretary argued that the accumulation of waste materials (excess oil from a
kiln stored in open buckets) could create a fire hazard if exposed to heat because of its inherent
combustibility. (Sec’y Br. at 6) The Respondent argued that there was no risk of ignition
because the oil’s flashpoint exceeded the temperature in the area. (Resp. Br. at 7) The
Respondent also argued a lack of fair notice because MSHA inspectors had never cited Oil Dri
for this or identified it as a violation in the past. (Resp. Br. at 8)
The Secretary bears the burden of proving all elements of a citation by a preponderance
of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone Coal
Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d, 151 F.3d 1096 (D.C. Cir. 1998); Jim
Walter Res., Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s burden
is to prove the violations and related allegations, e.g., gravity and negligence, by a
preponderance of the evidence.”). Here, the Secretary must prove by a preponderance of
evidence that waste material accumulated, and that the accumulation “create[d] a fire hazard.”
30 C.F.R. § 57.4104(a).
The regulation, however, is silent on the quantity of waste that is
allowed to accumulate before a waste pile is considered to be a fire
hazard. Therefore, the appropriate analysis is whether a
“reasonably prudent person familiar with the mining industry and
2

At the time of the hearing, Randolph had been working for MSHA for approximately 15
years, and had been a field office supervisor since 2005. (Tr. 21:5-22) He had approximately 40
years’ experience in the mining industry before coming to MSHA. (Tr. 24:15-16) A trainee, Bill
Hyde, was present during the inspections, shadowed Randolph, wrote the field notes, and
assisted in drafting the citations. However, at the time of the inspection he was not an authorized
representative, and did not sign his name on the citations. None of this decision is based on
Hyde’s field notes.

38 FMSHRC Page 995

the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.” Canon Coal
Co., 9 FMSHRC 667, 668 (Apr. 1987); Rock of Ages Corp. v.
Secretary of Labor, 170 F.3d 148, 156 (2d Cir. 1999); Walker
Stone Co. v. Secretary of Labor, 170 F.3d 1080, 1083-1084 (10th
Cir. 1998). This test is an “objective – not subjective – analysis of
all the surrounding circumstances, factors, and considerations
bearing on the inquiry in issue.” Canon Coal Co., 9 FMSHRC at
668. In Essroc Cement Corp., 33 [F]MSHRC 459 (Feb. 2011)
(ALJ Manning), Administrative Law Judge Manning vacated a
citation that alleged a violation of § 56.4104(a) and found that:
“[T]he Secretary did not meet the burden of establishing that the
condition created a fire hazard. The flashpoint of hydraulic fluid is
quite high and there were no ignition sources in the area. A spark
or other similar event would be insufficient to ignite the fluid […]
Without a realistic possibility of a fire hazard, there is no
violation.” 33 FMSHRC at 465.
Hecla Ltd., 36 FMSHRC 2600, 2604 (Sept. 2014) (ALJ Gill) (footnotes omitted).
A trunnion is used to rotate the kiln at Oil Dri’s mine. High flashpoint oil is used to
prevent steel-on-steel contact where the kiln drum contacts the trunnion. The oil must be
changed frequently. (Tr. 238:25 – 239:17) The waste oil at issue here came from the trunnion’s
oil-changes. Id.
There is no dispute that high flashpoint waste oil was stored in buckets on a walkway
near the kiln.3 (Tr. 35:25 – 36:6; Tr. 40:18-23; Tr. 41:13-21; Tr. 241:25 – 242:3; Tr. 275:5-11)
The Secretary argued that if the oil got hot enough, it would ignite. (Tr. 41:25 – 42:2) However,
Inspector Randolph could not remember what the oil was called or what the label on the buckets
said. (Tr. 119:1-11) He believed that the trunnion oil was a mixture of two oils, one with a
flashpoint of 250 degrees Fahrenheit, and the other 700 degrees. (Tr. 44:11-17) Randolph did
not say where he got this information. Respondent’s witness, Steve Gibens,4 testified that Oil
Dri uses 460 oil, which has a flashpoint of 338 degrees Fahrenheit. (Tr. 243:9 – 243:16; Ex. R-7)
I credit Gibens’ testimony regarding the type of oil, its flashpoint, and its use.

3

There is a dispute whether there were rags in the area as well. However, the only
testimony from Randolph about rags in the area were “yes” answers to two leading questions
from Secretary’s counsel. Rags were not mentioned in the citation. There is no testimony about
how many rags there were, where the rags were located, or whether they were saturated with oil.
There is also no evidence in the record to show whether or how the rags could ignite. I therefore
disregard all testimony about the presence of rags in the area. It must be noted, however, that
even if I found that there were rags in the area, there was no ignition source, and therefore, no
fire hazard.
4

At the time of the hearing, Gibens was the plant superintendent. (Tr. 236:9-13)

38 FMSHRC Page 996

Despite the fact that Randolph testified that it was hot in the area where the oil was kept
(Tr. 40:25 – 41:6), he did not measure the temperature. (Tr. 118:19-21) Gibens, however,
testified that at the cap of the trunnion, where the oil is applied, the temperature is approximately
200 degrees Fahrenheit. (Tr. 245:2-4) Additionally, the temperature of the handrails and the
catwalk in the area was approximately 150 degrees Fahrenheit. (Tr. 245:5-6) These temperatures
are not high enough to ignite the oil. Randolph also testified that there were no open flames in
the area and no other ignition source. (Tr. 32:23 – 33:3; Tr. 42:9-12; Tr. 122:1-4) There was no
realistic fire hazard here. The Secretary failed to prove by a preponderance of the evidence that
the accumulated waste material created a fire hazard. The citation is vacated.
Citation No. 8731989
Randolph issued Citation No. 8731989, pursuant to Section 104(a) of the Mine Act, to
Oil Dri at its Ripley mine on May 20, 2013, alleging a violation of 30 C.F.R. § 56.20003(a). (Ex.
S-4) Section 56.20003(a), a mandatory safety standard, states that “[w]orkplaces, passageways,
storerooms, and service rooms shall be kept clean and orderly.” 30 C.F.R. § 56.20003(a). The
citation alleges that:
The work walk way adjacent to the RVBM dryer had spillage
running over the toe boards extending down approximately 8 feet
in length[,] and also on the tail end of the walkway [there] was
spillage on the steps extending up [the] belt line another 8 foot
[sic] approximately. A slip and fall hazard existed.
(Ex. S-4)
Violation
The citation alleged that an injury was unlikely, that an injury could reasonably be
expected to be permanently disabling, one person could be affected, and the violation was a
result of the Respondent’s moderate negligence. Id. The regulation has two elements: 1) the
area cited must be a “workplace,” “passageway,” “storeroom,” or “service room”; and 2) the area
shall be kept clean and orderly. 30 C.F.R. § 56.20003(a). The Respondent did not dispute that
an accumulation existed, but it argued the area was not a “workplace” or a “passageway.” (Resp.
Br. at 9)
“Workplace” and “passageway” are not defined in the Mine Act or in the Part 56
definitions section. The Commission “looks to the commonly understood definition of the
term.” Taft Prod. Co., 36 FMSHRC 522, 526 (Feb. 2014) (ALJ Gilbert) (citing Nat’l Cement
Co., 27 FMSHRC 721, 726 (Nov. 2005); Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec.
2006); Drillex, Inc., 16 FMSHRC 2391, 2395 (Dec. 1994) (stating that “[i]n general, absent
express definitions, statutory terms should be defined according to their commonly understood
definitions.”)). However, the ordinary meaning of the words used in a statute cannot be applied
to produce absurd results. Jim Walter Res., Inc., 28 FMSHRC at 987; Nat’l Cement, 27
FMSHRC at 728. In Taft, the ALJ defined workplace as “a place where work is done”; defined
passageway as “a way that allows passage”; and defined passage as a “way of exit or entrance: a

38 FMSHRC Page 997

road, path, channel, or course by which something passes.” Taft Prod. Co., 36 FMSHRC at 526
(citing Merriam Webster’s Online Dictionary). When applied to the facts before me, these
definitions do not produce absurd results.
Randolph believed the area in question was a travelway, or passageway, because there
were handrails, toe boards, and a ladder going up to a platform. (Tr. 47:2-8) Additionally,
miners worked in the area. Miners did various types of maintenance on the machinery in the
area, e.g., changing out motors, equipment, belt sheathing, or simply greasing or servicing
equipment. (Tr. 47:12-23) No one was working in the area at the time the citation was written,
and there were no footprints in the spillage. (Tr. 128:15-22) The Respondent admitted that
miners would access the area from time to time to clean or perform maintenance. (Tr. 251:18-22)
A reasonably prudent person familiar with the mining industry would recognize that the
area in question was a workplace and a passageway. Accumulation of Oil Dri’s clay product in
this area was thus prohibited under the standard. See U.S. Silica Co., 32 FMSHRC 1699, 170608 (Nov. 2010) (ALJ Miller); USS, a Div. of USX Corp., 13 FMSHRC 145, 153 (Jan. 1991) (ALJ
Broderick); Brubaker-Mann, Inc., 8 FMSHRC 1482, 1483 (Sept. 1986) (ALJ Morris). I
conclude that Oil Dri violated Section 56.20003(a).
Gravity and Negligence
The spillage in question was approximately four inches deep and eight feet long. (Tr.
49:11 – 50:5) Randolph testified that a miner could not access the middle of the belt line without
going through the spillage. (Tr. 131:12-14) Randolph envisioned slip, trip, and fall hazards,
which could result in restricted duty injuries or worse. (Tr. 49:15 – 50:20) Randolph believed an
injury was unlikely because miners were not in the area on a regular basis. Management would
have to send a miner to the area for a specific reason. (Tr. 53:6-16) Randolph did not expect
more than one person to fall at a time. (Tr. 51:14-20) I agree.
Randolph characterized the negligence as moderate because Oil Dri did not have a
history of the committing violation, and it cleaned the area daily. (Tr. 52:9-14) A reasonably
prudent person familiar with the mining industry would not have allowed clay spillage to
accumulate as it did in this area. The violative condition should have been found during a
workplace examination. I agree that this violation arose from moderate negligence.
Penalty
The operator does not have a history of violating this standard. The mine operates
128,832 mine hours per year. The operator was moderately negligent. An injury here could
result in lost work days or restricted duty. Payment of a penalty will not the affect the operator's
ability to continue in business. The operator demonstrated good faith in abating the violation.
For these reasons, I assess a penalty of $100.00.

38 FMSHRC Page 998

Citation No. 8731997
Randolph issued Citation No. 8731997, pursuant to Section 104(a) of the Mine Act, to
Oil Dri at its Ripley mine on May 21, 2013, alleging a violation of 30 C.F.R. § 56.14201(b). (Ex.
S-5) Section 56.14201(b), a mandatory safety standard, states: “[w]hen the entire length of the
conveyor is not visible from the starting switch, a system which provides visible or audible
warning shall be installed and operated to warn persons that the conveyor will be started. Within
30 seconds after the warning is given, the conveyor shall be started or a second warning shall be
given.” 30 C.F.R. § 56.14201(b). The citation alleges that:
Five open conveyors were noted as not having an audible or start
up warning system installed. A system to alert person who could
be exposed of [sic] the hazard of the equipment starting was not
provided. Other exposed belt conveyors were also not provided
with a warning system. Crushing fatal injuries are likely to result
if normal mining operation continues to exist with this hazard.
(Ex. S-5)
Violation
The citation alleged that an injury was reasonably likely, could reasonably be expected to
be fatal, the violation was significant and substantial, there was moderate negligence, and one
person could be affected. (Ex. S-5) There is no dispute that the entire length of the conveyor was
not visible from the start switch. (Tr. 58:8-13; Tr. 234:2-8) There were approximately five
conveyors of different lengths located throughout the mine. (Tr. 58:18-24) The Respondent put
on evidence that a manual start-up alarm5 was in place and all operators were trained to use it.6
(Sec’y Br. at 15; Resp. Br. at 10) Respondent argued that the citation should be vacated. (Resp.
Br. at 10)
It was very noisy in the area where the conveyors were located. (Tr. 59:3-5) Inspector
Randolph felt that a permanently installed start-up alarm of some sort was needed to warn miners
working near conveyors to stand clear when the conveyors were about to start. (Tr. 61:15-23;
Tr.139:19-23) During the inspection, Randolph asked the plant operator and the miners’
representative if there was a start-up alarm for the conveyor belts. Both admitted that there was
none. (Tr. 55:23 – 56:18; Tr. 61:1-6; Tr. 136:14-20) Both also admitted that start-up alarm
systems had existed in the past, but none was in place at the time of the inspection. (Tr. 136:1420)
The day after the inspection, the Respondent claimed that a manual alarm system was, in
fact, in place. (Tr. 64:14-20; Tr. 228:25 – 229:14; Tr. 256:8-11) The Respondent’s witnesses
testified that miners were trained to activate the alarm before the conveyor belt was turned on.
5

This case did not deal with whether a visible warning device was in place.

6

There had been no training for a start-up alarm system since August 2011. (Ex. R-6)

38 FMSHRC Page 999

But, the miners present during the inspection, including the plant operator, did not know an
alarm system existed. (Tr. 228:18-21; Tr. 279:4-7)
Respondent’s post-hearing argument focused on the language of the regulation.
Respondent argued that all the regulation required was that a start-up alarm system, which could
be a manual alarm, be installed. (Resp. Reply Br. 18-19) It is true that having a manual alarm
installed can satisfy the standard. See Tilcon Conn., Inc., 18 FMSHRC 90, 95-96 (Jan. 1996)
(ALJ Hodgdon); MSHA, U.S. Dep’t of Labor, Program Policy Manual, Vol. IV, Part 56/57, at
54 (Feb. 2003: Release IV-21) (stating the standard “has been uniformly interpreted by MSHA,
and its predecessor organizations, to include both automatic and manual conveyor alarm
systems”). However, merely installing a manual alarm defeats the fundamental purpose of the
Mine Act, which is to protect the health and safety of miners. To satisfy the standard, an alarm
must be installed and actually used before the conveyor starts. Anything else “would thwart the
underlying purpose of the standard and must be avoided.” RAG Cumberland Res., 26 FMSHRC
639, 648 (Aug. 2004) (citing Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993)).
Indeed, the purpose of the Part 56 regulations is “the protection of life, the promotion of health
and safety, and the prevention of accidents.” 30 C.F.R. § 56.1. The mere installation of a startup alarm does not satisfy the purpose of the standard. I conclude that Oil Dri violated Section
56.14201(b).
Negligence
Randolph testified that there was an alarm mechanism for shut-down, but not for start-up.
To him, this proved that the Respondent had to know that there was no start-up alarm. (Tr.
66:16-19) Randolph justified the moderate negligence determination because the violating
condition had existed for years, which he felt constituted a form of mitigation based on “fair
notice.” (Tr. 67:21 – 68:2) It is unclear from the record what Randolph’s reference to “fair
notice” meant or how it related to mitigation. In general, fair notice is not considered a
mitigating circumstance. Mitigation is something the operator does affirmatively, with
knowledge of the potential hazard being mitigated, that tends to reduce the likelihood of an
injury to a miner. Nonetheless, Oil Dri was not performing required workplace exams, which, if
it had, would have alerted miners to the existence or lack of a start-up alarm. (Tr. 62:22 – 63:2;
Tr. 64:5-13; Tr. 135:20-24)
I find that the mine had not used a start-up alarm system for years, had not been
performing workplace examinations, and the miners, including the plant operator, did not know
anything about a start-up alarm. It is clear that the Respondent failed to train its employees
properly and failed to perform adequate workplace examinations. A reasonably prudent person
familiar with the mining industry would have known of the need for and lack of a start-up alarm
system, would have installed such a system, and would have trained miners to use the start-up
alarm before starting the conveyor. I conclude that this violation arose from high negligence.
Gravity
Randolph believed this violation was reasonably likely to cause a fatal injury because he
was aware of fatalities resulting from this type of violation in the past. (Tr. 62:4-12) He testified

38 FMSHRC Page 1000

to the danger inherent in a conveyor starting up when miners are not aware of it. (Tr. 62:4-12)
Randolph believed that only one miner would be involved if the conveyor started without an
alarm. (Tr. 65:17-21) I agree with the inspector’s assessment.
Significant and Substantial
The first and fourth prongs of the Mathies test have been satisfied. Respondent’s failure
to have and use a start-up alarm created a discrete safety hazard which could have resulted in
serious injuries to a miner. The remaining question is whether there was a reasonable likelihood
that the hazard contributed to would result in an injury.
Randolph designated the gravity as reasonably likely to occur because there were
multiple conveyors in the plant, and because the workspace next to the conveyors was confined.
(Tr. 62:13-21) A miner could be seriously injured by a conveyor starting up without his
knowing about it. (Tr. 73:16-20) It is reasonably likely that an unsuspecting miner working on a
belt could get pulled into the conveyors.
I conclude that the Secretary proved by a preponderance of the evidence that the
significant and substantial designation was warranted here.
Penalty
The operator does not have a history of violations for this standard. The mine operates
128,832 mine hours annually. The operator was highly negligent, and the violation was S&S. A
fatal injury could have resulted. Payment of a penalty will not affect the operator’s ability to
continue in business. The operator demonstrated good faith in the abatement of the violative
condition. I assess a penalty of $4,300.00.
Citation No. 8731998
Randolph issued Citation No. 8731998, pursuant to Section 104(a) of the Mine Act, to
Oil Dri at its Ripley mine on May 21, 2013, alleging a violation of 30 C.F.R. § 56.17001. (Ex. S6) Section 56.17001, a mandatory safety standard, states that “[i]llumination sufficient to
provide safe working conditions shall be provided in and on all surface structures, paths,
walkways, stairways, switch panels, loading and dumping sites, and work areas.” 30 C.F.R. §
56.17001. The citation alleges that:
The truck warehouse loading dock employee is stated [sic] to
average 4 to 6 trucks at night being loaded. The illumination
where the trucks back up into the locking system was not adequate.
The light directly above the loading surface perimeter would not
come on. Also four other lights surrounding the dock area was
[sic] not working. Miners climb down the dock and manually

38 FMSHRC Page 1001

chock the truck wheels at times. A hazard to one of these miners
exist [sic] of being crushed by a truck due to poor illumination.
(Ex. S-6)
Violation
The citation alleged that an injury was reasonably likely, could reasonably be expected to
be fatal, the violation was significant and substantial, there was a high degree of negligence, and
one person could be affected. (Ex. S-6) The parties disputed whether there was sufficient
illumination at the loading dock.
The Commission has found that the judge must make a factual determination based on
the working conditions in the cited area and the nature of the illumination provided to determine
whether there was “illumination sufficient to provide safe working conditions.” Capitol
Aggregates, Inc., 3 FMSHRC 1388, 1388 (June 1981), aff’d, 671 F.2d 1377 (5th Cir. 1982)
(unpublished table decision). Randolph admitted that MSHA’s standards do not speak of a
minimum number of lights. It is up to the inspector to determine whether there was sufficient
illumination. (Tr. 148:21 – 149:15)
Randolph testified that when he inspected the loading dock it was dark. Five out of the
seven lights installed at the loading dock were not working. (Tr. 75:15-19; Tr. 78:20 – 79:1; Tr.
145:9-17; Ex. S-6) He asked workers at the dock if the lights could be turned on. The lights
were burnt out, not turned off. (Tr. 79:4-11) Respondent admitted that at least one of the loading
dock’s main lights was not functioning on the day of the inspection. (Tr. 255:25 – 266:15)
Randolph testified that when a truck backed into the loading dock, there was an area
approximately 150 feet in back of it with no light at all. (Tr. 145:9-17) He did not think there
was sufficient lighting at the loading dock, particularly in the area where the trucks maneuvered
to back into the dock. He believed the lack of illumination violated the intent of the standard,
which is to prevent a truck driver from running over a miner while backing up. (Tr. 156:20-23)
Respondent argued that the lights in the loading dock area were sufficient to illuminate
the dock itself and several feet beyond it. (Tr. 196:18 – 197:7; Tr. 219:14-20; Tr. 222:24 – 223:2;
Tr. 226:16-18)
Respondent’s photo exhibits R-12 and R-13 were not taken the day of the inspection.
They were taken at a later date and showed more working lights than existed at the time of the
inspection. The photos show a shed with lights which had not been built at the time of the
inspection. All four lights on the loading dock are on in the photos, even though the Respondent
admitted at least one of them was out at the time of the inspection. (Tr. 180:15-18; Tr. 284:1623; Tr. 285:10-16; Ex. R-11)
Based on Randolph’s testimony and the photo exhibits R-11, R-12, and R-13, I find that
the illumination at the loading dock was insufficient. Respondent violated Section 56.17001.

38 FMSHRC Page 1002

Negligence
Randolph chose to classify this violation as involving high negligence because there had
been a fatality at a sister plant under similar circumstances, and the miners present during this
inspection knew about it. (Tr. 81:15-17; Tr. 83:2-9; Tr. 92:3-10; Ex. S-10) Additionally,
Randolph testified that to ameliorate the lack of lighting, the Respondent should have used a
spotter to help drivers back their trucks into the loading dock. (Tr. 91:11-16) Respondent used a
spotter at another dock at the same mine site. (Tr. 80:22 – 81:6) Randolph asked the miners
present during the inspection if the Respondent performed workplace exams, to which they
responded that they did not. (Tr. 75:20-23) This was an aggravating circumstance for Randolph.
A reasonably prudent person familiar with the mining industry would have made sure
that the loading dock was adequately illuminated at night, especially when trucks back into the
dock. Further, if the Respondent had been performing workplace exams, the poor illumination
issue would have been corrected. I concur with Inspector Randolph that this violation involved
high negligence.
Gravity
It was reasonably likely that a pedestrian walking in the poorly lit loading dock parking
area could be hit and possibly killed by a truck. (Tr. 81:10-12; Tr. 90:20-22) If this were to
occur, it is likely that only one person would be injured. (Tr. 90:24-25)
Significant and Substantial
The first and fourth prongs of the Mathies test have been satisfied. The lack of adequate
illumination created a discrete safety hazard which could have resulted in serious injury. The
remaining issue is whether there was a reasonable likelihood that the hazard would occur.
Miners loaded five to seven trucks at this dock every night. (Tr. 81:22-23) Randolph
observed truck drivers getting out of their trucks and walking around the loading area. (Tr. 89:213) There was poor visibility due to insufficient illumination. The truck Randolph saw backing
into the dock area had no back-up alarm (discussed below), and pedestrians were in the area. (Tr.
92:11-20) It was reasonably likely that this situation could result in serious injury to a miner.
The Secretary proved by a preponderance of evidence that the significant and substantial
designation was warranted.
Penalty
The operator had no history of violating this standard. The mine operated 128,832 mine
hours per year. The operator was highly negligent and the violation was S&S. It was reasonably
likely that a fatality could result from this violation. Payment of a penalty will not affect the
operator’s ability to continue in business. The operator the demonstrated good faith in abating
the violation. A penalty of $4,800.00 is justified and reasonable.

38 FMSHRC Page 1003

Citation No. 8636886
Randolph issued Citation No. 8636886, pursuant to Section 104(a) of the Mine Act, to
Oil Dri at its Ripley mine on May 28, 2013, alleging a violation of 30 C.F.R. § 56.14132(b)(1).
(Ex. S-7) Section 56.14132(b)(1), a mandatory safety standard, states that:
[w]hen the operator has an obstructed view to the rear, selfpropelled mobile equipment shall have -- (i) An automatic reverseactivated signal alarm; (ii) A wheel-mounted bell alarm which
sounds at least once for each three feet of reverse movement;
(iii) A discriminating backup alarm that covers the area of
obstructed view; or (iv) An observer to signal when it is safe to
back up.
30 C.F.R. § 56.14132(b)(1) (emphasis added). The citation alleges that:
The 18 wheel over the road customer truck Freightliner #104 vin#
211J44788 had backed into the loading dock without an automatic
alarm. The fork lift operator stated he was in the area on the
ground at this time [and] stated that he had spotted the truck. The
driver had no idea of a spotter program and [the] plant supervisor
stated they [did not have] a spotter program. Crushing fatal
accident had occurred at another Oil Dry [sic] plant on Oct. 20th
2010[.] [T]he company has exhibited aggravated conduct by not
controlling this violation at this operation.
(Ex. S-7)
Violation
The citation alleged that injury was reasonably likely and could reasonably be expected
to be fatal, the violation was significant and substantial, it involved high negligence, and one
person would be affected. (Ex. S-7) This citation was issued a week after the first set of citations
described above, when Randolph went back to the mine for abatement purposes. He observed a
truck at the same loading dock as the previous week (Tr. 94:10-18) backing up without a back-up
alarm or spotter.7 (Tr. 79:24 – 20:2; Tr. 94:20-22; Tr. 94:24 – 95:2; Tr. 95:25 – 96:6; Tr. 97:1824)
The Respondent argued that it had an observer program in place to signal trucks while
backing up into the loading dock. (Resp. Br. at 16) It argued that as soon as a truck came on site,
the driver was directed by signage to go to the drivers’ lounge to sign in, receive instructions
7

The Respondent argued that there is a difference between a “spotter,” as Randolph
testified, and an “observer,” as the regulation signifies. It is clear from the record that “spotter”
and “observer” mean the same thing for purposes of this regulation. (Resp. Br. at 15) As such, I
find the Respondent’s argument unconvincing.

38 FMSHRC Page 1004

and a loading slip, and for the Respondent to tell the driver which loading dock to use. (Tr.
182:11 – 183:6; Tr. 198:23 – 199:2) After that, the miner working the loading dock (the same
miner who checked the truck in) was to observe the truck back into the loading dock and lock the
truck into place. (Tr. 183:19 – 184:3; Tr. 199:19-25) The Respondent claimed that if the
observer saw a pedestrian miner in the path of a truck backing up, the observer could stop the
truck. (Tr. 222:10-17)
Despite this argument and the testimony of Respondent’s witnesses, Randolph testified
that he saw no spotter or observer and concluded that no such program was in place, and if it was
in place, it was ineffective. (Tr. 100:13 – 101:25; Tr. 173:2-5) Indeed, when Randolph asked a
driver if there was a spotter program in place at the loading dock, the driver denied knowing
about it. (Tr. 89:25 – 90:9) Randolph also asked Diego Mejia8 if the Respondent had a spotter
program, and Mejia answered in the negative. (Tr. 179:15-20) Even if the Respondent intended
for there to be an observer in place, there was no communication between the miner claiming to
be the observer and the driver backing into the loading dock. (Tr. 90:13-15) This defeats the
purpose of the standard, which is to protect pedestrian miners from being hit by a truck backing
up.
I find that there was no observer program in place, and if Respondent intended for there
to be one in place, it was ineffective. A reasonably prudent person familiar with the mining
industry would have had an observer program in place, and would have communicated this to the
truck drivers. Oil Dri violated Section 56.14132(b)(1).
Negligence
Randolph believed this citation arose from high negligence because there had been a fatal
truck accident at a related company, the Respondent knew about it, and Randolph considered it
Respondent’s responsibility to ensure that a similar accident did not happen again. (Tr. 107:1014; Tr. 108:2-7) This was the only testimony regarding the negligence determination.
This is sufficient evidence to support the conclusion that a reasonably prudent person
familiar with the mining industry would have assured there was an adequate observation
program in place and properly implemented. The inspector had been at the mine the previous
week discussing the fatality at the sister plant and the lighting issues at the loading dock, which
implicated a claim by the Respondent that it had an observer program in place. This violation
involved high negligence.
Gravity
It is likely that a miner would be killed if hit by a truck backing into the loading dock
area. (Tr. 105:15-19) Randolph believed that one person would be affected per incident. (Tr.
105:21-23) I agree.

8

At the time of the inspection, Mejia was the night shift plant supervisor. (Tr. 177:18)

38 FMSHRC Page 1005

Significant and Substantial
The first and fourth prongs of the Mathies test have been met. The failure to have an
observer in place to monitor a truck without an alarm while backing up creates a discrete safety
hazard. This hazard could have resulted in serious injuries. The remaining question is whether
there was a reasonable likelihood that the hazard would result in an injury.
Randolph thought it reasonably likely that an accident would happen because truck
drivers get out of their trucks and walk around in the loading dock area for various reasons,
including chocking their wheels (Tr. 105:25 – 107:1; Tr. 219:23-220:3) or going into the break
room or bathroom. This increases the chance that one of them might get hit by another driver’s
truck, particularly at night. (Tr. 102:14 – 103:6; Tr. 1047:6-11; Ex. S-8) Randolph felt that the
lack of a functioning observer system was unsafe, even if the lighting issue were resolved. (Tr.
96:10-16)
The Secretary proved by a preponderance of evidence that the significant and substantial
designation was warranted.
Penalty
The operator does not have a history of violating this standard. The mine operates
128,832 mine hours per year. The operator was highly negligent and the violation was S&S. A
fatal injury could have resulted. Payment of a penalty will not affect the operator's ability to
continue in business. The operator demonstrated good faith in abating the violating condition.
The Secretary specially assessed this penalty at $9,300.00. I find that because Randolph had
been at the mine the previous week discussing the loading dock and the issues that were present,
Oil Dri should have been on notice that greater efforts to comply with the Mine Act were
warranted. I therefore assess the penalty at $6,000.00.
WHEREFORE, it is ORDERED that Oil Dri pay a penalty of $15,200.00 within thirty
(30) days of the filing of this decision.
It is further ORDERED that Citation No. 8731981 be VACATED.

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

38 FMSHRC Page 1006

Distribution:
Daniel Brechbuhl, Esq., U.S. Department of Labor, Office of the Solicitor, Cesar E. Chavez
Memorial Building, 1244 Speer Blvd., Suite 216, Denver, CO 80204
Douglas Graham, Esq., Oil-Dri Corporation of America, 410 N. Michigan Avenue, Suite 400,
Chicago, IL 60611

38 FMSHRC Page 1007

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

May 3, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2015-315
A.C. No. 08-01336-381845 (B1758)

v.
SIMS CRANE,

Mine: S.D.I. Quarry

Respondent

DECISION AND ORDER
Appearances:

Daniel R. McIntyre, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for Petitioner
W. Ben Hart, CMSP, W. Ben Hart & Associates, Tallahassee, Florida, for
Respondent

Before:

Judge McCarthy
I.

STATEMENT OF THE CASE

This case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“the Secretary”) against Sims Crane (“Sims” or “Respondent”), pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C. §
815(a). This docket was designated for Simplified Proceedings and contains one section 104(a)
citation alleging a violation of a mandatory health and safety standard.
A hearing was held in Miami, Florida on March 31, 2016. During the hearing, the parties
offered testimony and documentary evidence.1 Witnesses were sequestered. Thereafter, the
parties presented closing arguments in lieu of submitting post-hearing briefs, pursuant to
Commission Procedural Rule 108(e), 30 C.F.R. § 2700.108(e).
For the reasons set forth below, I affirm Citation No. 8819088, but increase the level of
negligence from “moderate” to “high.” I assess a civil penalty of $300.
1

In this decision, “Tr.” refers to the hearing transcript; “Ex. ALJ-#” refers to the ALJ’s
exhibits; “Ex. S-#” refers to the Secretary’s exhibits; and “Ex. R-#” refers to the Respondent’s
exhibits. Exs. ALJ-1, ALJ-2, S-1, S-2, S-3, S-4, R-1, R-3, R-7, R-8, R-9, R-10, and R-11 were
received into evidence at the hearing. Tr. 9-11, 60, 75, 104-108, 122-123. Exs. R-2, R-4, and R5 were marked for identification at hearing, but were not offered into evidence. Tr. 63, 75-76.
Finally, I found Ex. R-6 irrelevant and excluded it from record evidence. Tr. 78-79, 101.

38 FMSHRC Page 1008

Based on the entire record, including my observation of the demeanor of the witnesses,2
and after considering the parties’ closing statements, I make the following findings:
II. STIPULATIONS AND GENERAL FACTUAL BACKGROUND
A. Stipulations of Fact and Law
At hearing, the parties agreed to the following stipulations:
1. Jurisdiction exists because Respondent was an operator of a mine as defined in
section 3(b) of the Mine Act, 30 C.F.R. § 803(b), and the products of the subject mine
entered into the stream of commerce or the operations or products thereof affected
commerce within the meaning and scope of section 4 of the Act, 30 U.S.C. § 803.
2. Sims is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq.
3. The Administrative Law Judge has jurisdiction over these proceedings pursuant to
§ 105 of the Mine Act.
4. The MSHA citation at issue in this proceeding was properly served upon Sims as
required by the Mine Act.
5. The citation at issue in this proceeding may be admitted into evidence by stipulation
for the purpose of establishing its issuance.
6. The penalties proposed by the Secretary in this case will not affect the ability of Sims
to continue in business.
7. Sims was at all times relevant to these proceedings engaged in mining activities at the
S.D.I. Quarry located in or near Florida City, Florida.
8. Sims’ mining operations affect interstate commerce.
9. Sims in an “operator” as that word is defined in § 3(d) of the Mine Act, 30
U.S.C. § 803(d), at the S.D.I. Quarry (Mine ID No. 08-01336) where the contested
citation in this proceeding was issued.

2

In resolving conflicts in the testimony, I have taken into consideration the demeanor of
the witnesses, their interest in this matter, their experience and credentials, the inherent
probability of their testimony in light of other events, the corroboration or lack of corroboration
for the testimony given, and the consistency, or lack thereof, within and between the testimony
of witnesses.

38 FMSHRC Page 1009

10. On the date the citation in this docket was issued, the issuing MSHA metal/non-metal
mine inspector was acting as a duly authorized representative of the Secretary,
assigned to MSHA, and was acting in his official capacity when conducting the
inspection and issuing the MSHA citation.
11. Sims demonstrated good faith in abating the alleged violation.
Exs. ALJ-1, ALJ-2; Tr. 9-11.
B. General Factual Background
MSHA Inspector Robert Peters3 issued the disputed citation at S.D.I. Quarry in Florida
City, FL on April 7, 2015. Exs. S-2; ALJ-1; Tr. 36-37. During the inspection, the mine had
contractors on-site to complete modifications to its plant. Tr. 24. As part of these modifications,
the mine employed Sims to perform crane operations that day. Tr. 24, 101-104. Contractors
performing services at mines must comply with MSHA health and safety standards. Tr. 38. The
citation at issue alleges that Sims’ crane operator and helper did not stay clear of a suspended
load, violating MSHA standard 30 C.F.R. § 56.16009. Ex. S-2. The independent facts and
circumstances surrounding the citation are discussed in greater detail below.
III. PRINCIPLES OF LAW
A. Establishing a Violation
To prevail on a penalty petition, the Secretary bears the burden of proving by a
preponderance of the evidence that a violation of the Mine Act occurred. RAG Cumberland Res.
Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001). A mine
operator is held strictly liable for violations that occur at its mine. Spartan Mining Co., 30
FMSHRC 699, 706 (Aug. 2008). An operator may avoid liability only by showing that it was
not properly on notice of the violative nature of its conduct. Even in the absence of actual notice,
the Secretary may properly charge an operator with a violation when a reasonably prudent person
familiar with the protective purposes of the cited standard and the factual circumstances
surrounding the allegedly hazardous condition, including any facts peculiar to the mining
industry, would have recognized a hazard warranting corrective action within the purview of the
applicable regulation. LaFarge North America, 35 FMSHRC 3497, 3500-01 (Dec. 2013); Ideal
Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (Dec. 1982).

3

Peters is a mine safety and health inspector at MSHA’s Bartow, Florida field office. Tr.
21. Peters has been working at MSHA for the past 19 years, and prior to working at MSHA, he
spent 26 years working in underground coal mining. Id. To be an MSHA inspector, Peters
completed a 26-week long training course. He also attends refresher training every two to three
years. Tr. 22- 23. His formal education includes three years in college studying electrical
engineering. Tr. 21.

38 FMSHRC Page 1010

B. Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of
the standard 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, e.g., Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ).
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. The Commission has recognized that an
assessment of the likelihood of injury is to be made assuming continued normal mining
operations, without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985).
C. Negligence
Negligence is not defined in the Mine Act. The Commission has found “[e]ach
mandatory standard thus carries with it an accompanying duty of care to avoid violations of the
standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15
(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under
the cited standard, the Commission considers what actions would have been taken under the
same or similar circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 6
FMSHRC 1908, 1910 (Aug. 1984). See also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975,
1976-77 (Aug. 2014) (requiring Secretary to show that operator failed to take specific action
required by standard violated); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008)
(negligence inquiry circumscribed by scope of duties imposed by regulation violated).
Although MSHA’s regulations regarding negligence are not binding on the Commission,
see Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines
negligence by regulation in the civil penalty context 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. The
negligence criterion assigns penalty points based on the degree to
which the operator failed to exercise a high standard of care.
When applying this criterion, MSHA considers mitigating

38 FMSHRC Page 1011

circumstances which may include, but are not limited to, actions
taken by the operator to prevent or correct hazardous conditions or
practices . . . .
30 C.F.R. § 100.3(d).
MSHA regulations further provide that mitigation is something the operator does
affirmatively, with knowledge of the potential hazard being mitigated, and that tends to reduce
the likelihood of an injury to a miner. This includes actions taken by the operator to prevent or
correct hazardous conditions. 30 C.F.R. § 100.3(d). According to MSHA, the level of
negligence is properly designated as high when “[t]he operator knew or should have known of
the violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R. §
100.3, Table X. The level of negligence is properly designated as moderate when “[t]he operator
knew or should have known of the violative condition or practice, but there are mitigating
circumstances.” Id. The level of negligence is properly designated as low when there are
considerable mitigating circumstances surrounding the violation. Id.
Recently, the Commission held that Commission judges are not required to apply the
level-of-negligence definitions in Part 100 and may evaluate negligence from the starting point
of a traditional negligence analysis rather than from the Part 100 definitions. Brody Mining,
LLC, 37 FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor, 809
F.3d 1259, 1263-64 (D.C. Cir. 2016). Moreover, because Commission judges are not bound by
the definitions in Part 100 when considering an operator’s negligence, they are not limited to a
specific evaluation of potential mitigating circumstances, and may find “high negligence,” in
spite of mitigating circumstances, or moderate negligence, without identifying mitigating
circumstances. Brody, 37 FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. In this regard,
the gravamen of high negligence is “an aggravated lack of care that is more than ordinary
negligence.” Brody, 37 FMSHRC at 1701, (citing Topper Coal Co., 20 FMSHRC 344, 350)
(Apr. 1998). Thus, in making a negligence determination, a Commission judge is not limited to
an evaluation of allegedly mitigating circumstances and may consider the totality of the
circumstances holistically. Under such an analysis, an operator is negligent if it fails to meet the
requisite high standard of care under the Mine Act. Id.
D. Penalty Assessment
The Act requires that the Commission consider the following statutory criteria when
assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness
of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability
to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after
notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30
U.S.C. § 820(i). The Commission is not required to give equal weight to each of the criteria, but
must provide an explanation for any substantial divergence from the proposed penalty based on
such criteria. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008).
As I discussed in my final Big Ridge decision, in an effort to avoid the appearance of
arbitrariness, I look to the Secretary’s penalty regulations and assessment formula as a reference

38 FMSHRC Page 1012

point that provides useful guidance when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC
1677, 1681-82 (July 2014) (ALJ); see also Wade Sand & Gravel, supra, at 1880 n.1 (Chairman
Jordan and Commissioner Nakamura, concurring). See also Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945) (holding that an agency’s interpretation of its own regulation
should be given controlling weight unless it is plainly erroneous or inconsistent with the
regulation). This formula is not binding, but operates as a lodestar, since factors involved in a
violation, such as the level of negligence, may fall on a continuum rather than fit neatly into one
of five gradations. Unique aggravating or mitigating circumstances will be taken into account
and may call for higher or lower penalties that diverge from this paradigm. My independent
penalty assessment analysis applies to the citation at issue in this case.
IV. FURTHER FINDINGS OF FACT, ANALYSIS,
AND CONCLUSIONS OF LAW
A. Citation No. 8819088: Failure to Stay Clear of Suspended Load
1. Further Findings of Fact
Inspector Peters began his inspection of S.D.I. Quarry at about 7:00 a.m. on April 7,
2015. Tr. 24. During the inspection, a mine supervisor informed Peters that the mine had
contractors on-site to perform modifications to the mine’s plant. Id. While inspecting the plant,
Peters saw a crane operating approximately 50 feet away. Tr. 24-25. The crane had a spreader
bar attached to its hoist hook. Tr. 24, 29-30.
A spreader bar is a rigging device used to aid crane operators in picking up heavier loads
by distributing the load of the lift across multiple connection points. Tr. 29. The spreader bar
that was attached to the crane that Peters observed consisted of a steel cylinder measuring
approximately 14 feet long and 8 inches in diameter.4 Tr. 118; Exs. S-4, R-10. The spreader bar
was hung from the crane’s hoist hook by cables, which looped through to U-shaped shackles at
each end of the spreader bar. Tr. 30, 93; Ex. S-4. Steel pins inserted through the shackles
secured the shackles and cables to the spreader bar. Tr. 30-31, 94; Ex. S-4. The steel pins could
be removed to detach the spreader bar from the cables and crane. Tr. 31. The spreader bar

4

Inspector Peters initially estimated that the spreader bar measured 10 feet long and 6
inches in diameter. Ex. S-2. However, crane helper, William Assad, subsequently testified that
the spreader bar measured 14 feet long and 8 inches in diameter. Tr. 119-11. Assad is a certified
rigger and oiler at Sims and has been working there for two years. Tr. 116; Ex. R-11. He has
nine years of experience working in the crane industry. Tr. 117. His training includes both onthe-job training and an apprenticeship program provided by a local union. Id. Based on Assad’s
first-hand experience with the assigned task, I credit Assad’s testimony and find that the spreader
bar measured 14 feet by 8 inches.

38 FMSHRC Page 1013

weighed approximately 625 pounds.5 Tr. 118; Ex. R-10. When rigged up, the spreader bar is
typically suspended at around chest to head height. Tr. 125.
The spreader bar was rigged to the crane and suspended approximately 25- to 35-feet in
the air when Peters observed it. Tr. 25, 29, 111; Ex. S-3. At that point in time, the spreader bar
had been lifted in order for crane operator Milton Minchener6 (“Minchener”) to scope out the
crane. Tr. 111-12, 127. Minchener testified that he had finished scoping and began swinging
and cabling the spreader bar down into the area where he and Assad would finish attaching the
load they were assigned to move. Tr. 111-12. Meanwhile, Peters saw crane helper William
Assad standing directly underneath the suspended spreader bar. Tr. 24; Ex. S-2. Peters
immediately went over toward the crane to tell Assad to move out from underneath the spreader
bar. Tr. 25.
Peters informed Assad that he was issuing a verbal imminent danger order for standing
underneath a suspended load in violation of MSHA standards.7 Tr. 25-26. During this
conversation, Minchener got out of the crane cab and walked over to Peters and Assad, passing
underneath the spreader bar to get to their location. Tr. 34-35. When Minchener arrived,
Inspector Peters informed him that he could not walk underneath a suspended load. Id.
Minchener disagreed with the inspector and walked back toward the crane cab, passing
underneath the spreader bar once more. Tr. 36.
Upon examining the situation further, Peters issued Citation No. 8819088, alleging a
violation of 30 C.F.R. § 56.16009. Ex. S-2. Inspector Peters determined that this alleged failure
to stay clear of a suspended load was unlikely to cause injury or illness to any workers, but that
any injury could reasonably be expected to be fatal if the spreader bar fell and struck a miner.
Tr. 37; Ex. S-2. Peters designated the operator’s negligence as moderate. Ex. S-2. Sims abated
the violation by removing miners from the area underneath the spreader bar and lowering the
spreader bar onto a truck. Tr. 38; Ex. S-2.

5

Sims Safety Director, Robert Berry, testified that a 10-foot by 6-inch spreader bar
weighed 163 pounds. Tr. 88. However, the spreader bar actually measured 14 feet by 8 inches.
According to Assad, a 14-foot by 8-inch spreader bar would weigh about 625 pounds. Tr. 118;
Ex. R-10. Again, I credit Assad’s testimony based on his experience with the assignment and
find that the spreader bar weighed about 625 pounds.
6

Minchener is a certified crane operator at Sims Crane. Tr. 101; Ex. R-7. He has been
employed at Sims Crane for five years and has worked in the crane industry for nine years. Id.
His training in crane rigging procedures includes on-the-job training and a four-year
apprenticeship program, which covered OSHA and industry standards. Tr. 102.
7

Peters later determined that the violation did not meet the criteria for an imminent
danger order and instead issued the instant citation. Tr. 26; Ex. S-2.

38 FMSHRC Page 1014

At the hearing, Sims called safety director Berry to discuss crane operation and industry
standards.8 Tr. 55. Berry was not involved in the incident that led to the disputed citation, but
offered testimony based on his knowledge and professional experience training crane operators
and riggers. Tr. 55-58. According to Berry, the spreader bar did not constitute a load under
OSHA standards. Tr. 60-65; Exs. R-2, R-3. OSHA defines “load” as the objects or weight of
objects being hoisted, referring to both the objects and any load-attaching equipment. Id. Berry
opined that a spreader bar does not constitute a load under OSHA’s definition until it is attached
to the object being lifted. Tr. 76. Berry also explained that OSHA standards allow workers to
stand within the “fall zone” of suspended loads in certain situations, which include rigging up a
load. Tr. 65-69; Ex. R-3. OSHA defines “fall zone” as the area in which it is reasonably
foreseeable that suspended materials could fall in the event of an accident. Ex. R-3. Berry
additionally testified that if the spreader bar were to fall, it would have not caused any major
injuries. Tr. 91-92.
2. Analysis and Conclusions of Law
i. Violation of 30 C.F.R. § 56.16009
30 C.F.R. § 56.16009 provides that “[p]ersons shall stay clear of suspended loads.” The
standard aims to prevent individuals from being hit and injured by such loads should they fall or
swing. The Secretary contends that Respondent’s crane operator and helper violated the standard
by walking directly underneath the suspended spreader bar. Tr. 131-133. Respondent, on the
other hand, relies on OSHA standards to assert that the spreader bar did not constitute a “load”
and that its workers were allowed to be within the spreader bar’s fall zone. Tr. 18, 145-146.
It is undisputed that both Assad and Minchener walked directly beneath the suspended
spreader bar. The issue here is whether the spreader bar constituted a “load.” MSHA regulations
do not define the term “load,” nor has the Commission provided a clear definition of the term. In
the absence of a statutory or regulatory definition, the Commission applies the ordinary meaning
of a term. Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug. 2008). Commission judges have
relied on the dictionary definition of the term “load” in their interpretations of 30 C.F.R. §
56.16009.9 See e.g., CCC Group, Inc., 34 FMSHRC 1192, 1196 (May 2012) (ALJ); Haines &
Kibblehouse, Inc., 30 FMSHRC 504, 516 (Jun. 2008) (ALJ).
The dictionary defines a “load” as a “weight or mass that is supported.” The American
Heritage Dictionary of the English Language 1025 (4th ed. 2009). In this case, the spreader bar
weighed approximately 625 pounds. Tr. 118; Ex. R-10. It was supported by cables, which hung
8

Berry is the corporate safety director at Sims Crane. Tr. 55; Ex. R-1. He has been
employed at Sims Crane for the past seven years and has over 40 years of experience in the crane
industry, 26 of which dealt with crane safety. Tr. 55. He is a certified crane operator and
practical examiner. Id.; Ex. R-1. He has also taught crane operating and rigging for the past 20
years. Tr. 56; Ex. R-1.
9

Although my colleagues decisions are not binding on me, they provide guidance to the
extent their reasoning is persuasive.

38 FMSHRC Page 1015

from the crane’s hoist hook and attached to the spreader bar by removable pins and shackles. Tr.
30, 93; Ex. S-4. Although the spreader bar was secured by cables and pins, those equipment
pieces could fail and cause the spreader bar to fall. Tr. 92-95. Under the ordinary meaning of
the term, therefore, I conclude that the spreader bar constituted a “load” for purposes of 30
C.F.R. § 56.16009.
Furthermore, OSHA standards are not legally binding on MSHA. Respondent has
stipulated that it is subject to the jurisdiction of the Mine Act, was engaged in mining activities at
the times relevant to this proceeding, and is an operator as defined by the Mine Act. Ex. ALJ-1.
Therefore, I find that the OSHA regulations and definitions that Respondent’s relies upon are not
dispositive for purposes of determining whether Respondent violated the MSHA standard.10
Accordingly, I find that Respondent violated 30 C.F.R. § 56.16009.
ii. Gravity
Inspector Peters designated the violation’s gravity as unlikely to result in injury or illness.
Ex. S-2. He also found that if any injury or illness did occur, it would be fatal and affect one
person. Id. The Secretary requests that I uphold the inspector’s gravity findings. Tr. 143-144.
Respondent agrees with the inspector’s “unlikely” designation and does not make any arguments
as to the number of persons affected. Tr. 145. However, Respondent disagrees that any injury
resulting from the violation would be fatal. Tr. 47-48, 92.
I affirm the inspector’s gravity designations. Inspector Peters determined that the
spreader bar was securely attached to the crane. Tr. 45-46. For this reason, the inspector
appropriately designated the probability of injury as unlikely. Also, I discount Berry’s testimony
that the spreader bar would cause only a minor injury if it fell on a worker, particularly since he
was mistaken when he testified that the spreader bar was only 163 pounds. Tr. 92. Subsequent
credited testimony from Respondent’s witness Assad revealed that the spreader bar actually
weighed over 3.5 times more. Tr. 118; Ex. R-10. In the event of an accident, a 625-pound steel
10

I note, however, that the cited OSHA regulations are not inconsistent with my finding
that the spreader bar constituted a “load” under 30 C.F.R. § 56.16009. First, 29 C.F.R.
§ 1926.1417(e) provides conditions that must be met in order for an operator to leave crane
controls unattended. Although the standard provides an exception for working gear, such as a
spreader bar, it does not explicitly permit standing beneath working gear. Second, 29 C.F.R. §
1926.1425(b) allows employees to be directly beneath a load in certain limited situations,
including hooking or attaching loads. However, the spreader bar in this case was already
attached to the crane. Tr. 24, 29-30. Minchener testified that he was in the process of moving
the spreader bar to an area for additional rigging. Tr. 111-112. Assad testified that rigging
generally occurred when the spreader bar was suspended at chest to head height. Tr. 125. This
testimony and the fact the spreader bar was suspended over 25 feet establishes that neither
employee was attaching any objects to the crane at the time relevant to the citation’s issuance.
Tr. 25, 29, 111. Lastly, 29 C.F.R. § 1926.1401 provides a definition for the term “load,” which
explicitly includes the weight of any load-attaching equipment, such as a spreader bar, as part of
a load.

38 FMSHRC Page 1016

spreader bar could potentially crush and fatally injure any worker caught beneath it.
Accordingly, I find that this violation created an unlikely, but fatal risk of injury to one worker.
iii. Negligence
Inspector Peters charged Respondent with moderate negligence in connection with this
violation. Ex. S-2. The Secretary requests that the undersigned at least uphold the inspector’s
negligence designation, but notes that the record could support a finding of high negligence. Tr.
137. Respondent made no specific arguments with respect to negligence in its closing statement,
but requested that I vacate the citation as a whole. Tr. 147.
I find that this violation resulted from Respondent’s high negligence. Inspector Peters
testified that he designated the violation’s negligence as moderate because Assad and Minchener
were unfamiliar with MSHA regulations and had not performed work at a mine before. Tr. 38.
However, Inspector Peters explicitly informed Minchener that walking underneath the suspended
spreader bar violated an MSHA standard. Tr. 36. At that point, I find that the operator should
have known of the violative practice. Yet, Minchener blatantly dismissed the inspector’s
instruction and violated the standard by walking underneath the spreader bar a second time. Id.
Respondent offers no other mitigating circumstances for its crane operator’s brazen behavior in
disregarding the inspector’s instruction concerning the MSHA standard. Based on a totality of
the circumstances, therefore, a finding of high negligence is appropriate.
iv. Penalty Assessment
As previously discussed, the Mine Act requires the Commission to consider the six
criteria set forth in section 110(i), 30 U.S.C. § 820(i), when assessing a civil penalty. I look to
the Secretary’s penalty regulations and proposed assessment as a helpful starting point when
independently assessing the statutory penalty criteria to avoid the appearance of arbitrariness.
The Secretary proposed that Sims pay a penalty of $100, the minimum penalty amount
under the Secretary’s criteria set forth in 30 C.F.R. Part 100. Sec’y Pet. The parties have
stipulated that Sims abated this violation in good faith and that the proposed penalty will not
affect Sims’ ability to remain in business. Ex. ALJ-1. The Secretary’s penalty petition
demonstrates that he adequately accounted for Sims’ size, violation history, and good-faith
abatement efforts in reaching his proposed penalty. See Ex. S-1; Sec’y Pet. I affirmed the
Secretary’s gravity findings, but have increased the negligence from moderate to high. Because I
find that the violation resulted from Respondent’s high negligence, I determine that a penalty
higher than the Secretary’s proposed assessment is warranted.
Based on the legal principles outlined above and my consideration of the six statutory
penalty factors, I find that an assessment of $300 is appropriate. Accordingly, I assess a civil
penalty of $300 against Respondent for the instant violation.

38 FMSHRC Page 1017

V. ORDER
For the reasons discussed above, Citation 8819088 is hereby AFFIRMED, but
MODIFIED to increase the level of negligence to from “moderate” to “high.” In addition, Sims
Crane is ORDERED to pay the penalty amount of $300.00 for this violation within thirty (30)
days of the date of this Decision and Order.11

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

Distribution:
Daniel R. McIntyre, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Boulevard, Suite 216, Denver, CO 80204
W. Ben Hart, CMSP, W. Ben Hart & Associates, 2916 East Park Avenue, Tallahassee, FL
32301

11

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.

38 FMSHRC Page 1018

!

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May 3, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2014-527-M
A.C. No. 04-01299-345516
Docket No. WEST 2015-158-M
A.C. No. 04-01299-366336
Docket No. WEST 2015-251-M
A.C. No. 04-01299-368842
Mine: Sixteen to One Mine

v.

Docket No. WEST 2015-77-M
A.C. No. 04-03065-363861
Docket No. WEST 2015-78-M
A.C. No. 04-03065-363861
Docket No. WEST 2015-240-M
A.C. No. 04-03065-368847
Docket No. WEST 2015-381-M
A.C. No. 04-03065-372727

ORIGINAL SIXTEEN TO ONE
MINE, INC.,
Respondent.

Mine: Plumbago Mine
DECISION AND ORDER

Appearances:

Michele A. Horn, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, Colorado, for Petitioner
Michael M. Miller, pro se, Alleghany, California, for Respondent

Before:

Judge Moran

38 FMSHRC Page 1019

The Original Sixteen to One Mine and the Plumbago Mine are underground gold mines
of historical significance within California’s Alleghany Mining District. Tr. 17-18.1 A hearing
regarding the citations associated with the dockets listed above was held in Nevada City,
California from November 17-19, 2015. Seven citations were settled or vacated at the hearing.2
Before turning to the particular contested matters, the Court believes it is important to
make the following comments. For several of the citations in these various dockets the Court
reduced the civil penalty from the amount proposed initially and, in some instances, from revised
amounts sought by the Secretary at the hearing. The Court wishes to advise Respondent that it
should not take the reductions as signaling that, by going to hearing, penalties may be reduced.
Respondent is not new to mining, nor to MSHA, and as such, it may be that in future litigation
penalty amounts may be adopted as originally proposed or as revised by the Secretary during a
hearing. It is also possible that penalties may be increased by the Court beyond the amounts
sought by the government. Of course, the penalty for established violations is dependent upon
the particular facts adduced at each hearing.
A Preliminary Matter Pertaining to All of the Contested Matters in This Litigation
A running controversy during the hearing involving discovery was whether Respondent
requested copies of the inspectors’ field notes associated with the various citations. See, e.g., Tr.
123, 302-04. The Court ultimately resolved this dispute by requiring counsel for the Secretary to
determine if Mr. Miller made a request for the field notes of the inspectors who testified in this
proceeding. If no request was made, that would end the matter, in terms of Respondent making
objections about their absence. If the request was made, then the Secretary’s Counsel was to
advise as to the date such documents were delivered to Respondent, assuming such delivery was
made. If, despite such a request, the field notes were not delivered, then the Court instructed that
1

The Court will use the designations “Tr.” to refer to the hearing transcript, “GX” to
refer to the Secretary’s exhibits, and “RX” to refer to Respondent’s exhibits.
2

At the outset of the hearing Respondent withdrew its contests related to Citation Nos.
8698193 (WEST 2014-527-M), 8783100 (WEST 2014-527-M), and 8793807 (WEST 2015-251M), agreeing to pay the associated penalties as proposed. Tr. 10-11. The Secretary’s post-hearing
brief includes Citation No. 8793615 as among those in which Respondent withdrew its contest,
but that Citation was among the contested matters during the hearing. See discussion infra for
GX 33, which is the exhibit associated with Citation No. 8793615. For Citation No. 8793616
(WEST 2015-78-M), the Secretary agreed to modify the citation to reflect lost workdays or
restricted duty from the original designation as fatal, with the penalty remaining as proposed. Tr.
11. During the hearing, the Secretary agreed to modify Citation No. 8698194 (WEST 2014-527M) to No Likelihood, No Lost Workdays and Low Negligence and to reduce the penalty to
$50.00. The Secretary vacated Citation No. 8793619 (WEST 2015-158-M) at hearing. Citation
No. 8698227 (WEST 2015-78-M) was accepted by the operator with the Secretary agreeing to
remove from Section 8 of the citation the sentence, which reads, “This mine has been in
operation in the past during times of favorable commodities prices, and the mine is having
rehabilitation activity been [sic] performed.” Sec’y’s Post-hearing Br. 4, 35 (quoting the
citation) (“Sec’y Br.”).

38 FMSHRC Page 1020

Counsel was to deliver all such field notes to Respondent, and Respondent would then have 2
weeks to review those notes and, if applicable, to identify in what manner the absence of those
notes disadvantaged Respondent. Tr. 304-05.
Following the Court’s instructions at the hearing, Attorney Horn responded on November
21, 2015, as follows:
Cc: Michael Miller (mmeistermiller@gmail.com)
Subject: Original Sixteen to One discovery
Your Honor,
In response to directions given by you at the hearing last week, I have inquired as
to whether or not the General Field Notes associated with the seven dockets
discussed at hearing were sent to Mr. Miller prior to hearing.
Per my records I received only one discovery request from the operator. It was
sent on September 30, 2015, via e-mail and the discovery portion of the message
from Mr. Miller read, “Please send me the citations MSHA has issued for the next
hearing.”
In response to this request, I sent the citations, citation notes and photographs for
each citation which was discussed at the hearing last week. Contrary to my stated
belief last week, I did not send the General Field Notes.
However, as the Mr. Miller’s discovery request was limited to “citations” it is my
understanding that this ends any issue regarding the non-production of the
General Field Notes.
Thank you.
Michele Horn
The Court responded to Attorney Horn’s email as follows:
Saturday, November 21, 2015
Dear Attorney Horn (and Mr. Miller):
Thank you, Attorney Horn, for your prompt attention to this issue. On the basis
of your message below, you are correct that, per my order during the hearing, and
your message, below, which relates that “as the Mr. Miller’s discovery request
was limited to “citations” it is [the Secretary’s] understanding that this ends any
issue regarding the non-production of the General Field Notes.” Thus, absent Mr.
Miller being able to show that he sent you or a representative for the Secretary a
specific request seeking the General Field Notes related to the dockets in issue
during our hearing this past week, the matter is ended.

38 FMSHRC Page 1021

I want to reiterate that I appreciate the professionalism displayed by all during the
hearing.
Sincerely, Judge William Moran
No such showing was thereafter provided by Mr. Miller, thereby resolving the issue in the
Secretary’s favor.
Respondent’s Post-hearing Brief
The Court read and considered Respondent’s post-hearing brief and makes the following
observations and comments about it. Not every point raised in the brief is discussed, but the
entire brief was considered. Part of that consideration involves the Court’s discretion as to the
need to comment upon specific parts of the brief. The same principle was applied to the
Secretary’s post-hearing brief — not every contention is addressed. Among the contentions
made in Respondent’s Brief were the claims that some of the inspectors hired by MSHA are not
qualified; that the Plumbago Mine, while a mining operation, is not conducting mining activities;
and that the activities at that mine do not affect interstate commerce. Mr. Miller’s position is that
only Inspector Rogers was qualified and competent to conduct the inspections and issue the
citations/orders which resulted from those events. The Court rejects each of these contentions, as
they are without any merit.
The Court notes that even if one were to accept Respondent’s claim that nearly all of the
MSHA inspectors involved here were unqualified, a claim with which the Court does not agree
at all, nearly all of the various citations in this litigation were established apart from one’s
mining knowledge. A few examples clearly show this. Citation No. 8783098 involved a
violation of 30 C.F.R. § 57.15031(a) for failing to have a self-rescuer within 25 feet of a
worker’s location. If a self-rescuer is more than 25 feet away, there is a violation, and no
previous mining experience is needed to make such a determination. Another example, among
many such instances in this litigation, is Citation No. 8793805, which involved finding
combustible materials, such as grass, brush, wood, and rubbish within 25 feet of a powder
magazine. No mining expertise is required to make such a determination, though in fact the
issuing inspector had 18 years of such experience. While more examples are not needed, a few
more are here included. It is noted that Citation No. 8785247 involved a vehicle with no
functioning brake or tail lights, a violation which Respondent acknowledged to exist. As a last
illustration, Citation No. 8793806 involved a magazine that was not bullet resistant, as it had a
steel exterior of about 1/8 inch with an interior lining of about 1/2 inch of plywood, instead of
the required 1/4 inch of steel and 2 inches of hardwood.
Respondent also maintains that citations/orders must be the result of “specific conditions
at the mine.” Resp’t’s Post-hearing Br. 4. The Court was attentive to this claim, both at the
hearing and during the Court’s close review of the transcript, as reflected in this fifty-plus page
decision, and finds that, for each alleged violation (other than the one that was dismissed), the
violations were both established and based upon the specific conditions at the mine. To the
extent that prior history was referenced during the course of the testimony, a mine’s history of

38 FMSHRC Page 1022

violations and extensive mining experience are factors which may be taken into account, per the
statutory penalty criteria, where violations have been established.
Of great concern to the Court, Respondent asserts that its “miners are ragingly mad with
the administrative agency legislated to protect them. Mr. Boylan and his supervisors put them
out of work.” Resp’t’s Post-hearing Br. 7. Except for the instances where inspectors found
employees working at Respondent’s mine, despite a live withdrawal order in place, no one with
MSHA put any employee out of work. The larger problem, and it must be faced directly, is that
Respondent objects to MSHA’s lawful presence and the carrying out of its Mine Act obligations
through the statutorily-mandated inspections under that Act. The sadly contentious nature of the
relationship between MSHA and Respondent will not improve until Respondent comes to accept
that MSHA’s presence and its inspections are legitimate. While it may be potentially useful for
the MSHA district office to have discussions with Respondent, nothing positive can come of
such discussions until Respondent first accepts the legitimacy of MSHA, its authorized
representatives, the inspectors, and their statutory inspection obligations and duties. The Court
calls upon Mr. Miller to discard the combative and non-productive approach, as reflected
vividly in his post-hearing brief, and to have a change of heart and attitude, as he
approaches the last years of working experience in the mining industry.
The Court also fully considered Mr. Miller’s Reply Brief. That submission largely
continues with the themes raised in Respondent’s post-hearing brief, and the Court will not
revisit those contentions. One distinction is that, for the Reply Brief, Respondent raises specific
objections for a few of the citations. Having reviewed those contentions, not all merit a response
from the Court. Where the Court considers that a response is warranted, those will be addressed
infra.
Respondent’s Challenge to MSHA’s Jurisdiction
Throughout this litigation, Respondent has also taken the position that MSHA lacks
jurisdiction to inspect its mines. The Court read all of the contentions made by Respondent and
rejects them without qualification. Nothing sums up Respondent’s position better than the
concluding line from its post-hearing reply brief which asserts that not a one of “[t]he citations
and orders issued should not be affirmed by the court.” Resp’t’s Reply Br. 9.
At the hearing, the Court explained to Mr. Miller that the federal courts have long ago
affirmed the jurisdiction and breadth of the Mine Act. Nevertheless, a few cases, among a
plethora of such holdings, are noted. In Cyprus Industrial Minerals Co. v. FMSHRC, 664 F.2d
1116 (9th Cir. 1981), it was held that digging a tunnel into a hill for the purpose of assessing the
value of talc deposits constitutes mining, even if minerals were not being extracted. In D.A.S.
Sand & Gravel, Inc. v. Chao, 386 F.3d 460 (2d Cir. 2004), it was held that the Commerce Clause
permits Congress to regulate mines whose products are sold entirely intrastate. Finally, in

38 FMSHRC Page 1023

Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D.C. Cir. 1984), it was held that Congress
intended the definition of a mine under the Act to be given the broadest possible interpretation.3
Legal Standards
Significant and Substantial
The Significant and Substantial (“S&S”) terminology is taken from section 104(d) of the
Mine Act, 30 U.S.C. § 814(d), and refers to “significant and substantial,” i.e., 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. Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co., 6 FMSHRC 1 (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.
Id. at 3-4 (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). The S&S determination “must be made at the time the citation is issued
‘without any assumptions as to abatement’ and in the context of ‘continued normal mining
operations.’” Paramont Coal Co., 37 FMSHRC 981, 985 (May 2015) (quoting U.S. Steel
Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).
Negligence
As the Commission recently clarified, “judges are not required to apply the definitions of
Part 100.” Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015). Rather,
judges may evaluate negligence from the starting point of a traditional negligence
analysis rather than based upon the Part 100 definitions. Under such an analysis,
an operator is negligent if it fails to meet the requisite standard of care - a standard
of care that is high under the Mine Act[.]
Id. Accordingly, “a Commission Judge may find ‘high negligence’ in spite of mitigating
circumstances or may find “moderate” negligence without identifying mitigating circumstances.”
Id. at 1703. The Commission has stated that “the gravamen of high negligence is that it

3

As the D.C. Circuit noted its Carolina Stalite decision, “Cases decided by the Third,
Ninth, and Fourth Circuits accord with [its] interpretation of the Act, and uniformly recognize
section 3(h)’s ‘sweeping definition’ of a mine.” 734 F.2d at 1554 (emphasis added).

38 FMSHRC Page 1024

‘suggests an aggravated lack of care that is more than ordinary negligence.’” Id. (quoting
Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)).
Unwarrantable Failure
The Commission has stated that an “unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.” Manalapan Mining Co., 35 FMSHRC 289, 293
(Feb. 2013). Unwarrantable failures are characterized by such conduct as “‘reckless disregard,’
‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable care.’” IO Coal Co.,
Inc., 31 FMSHRC 1346, 1350 (Dec. 2009) (quoting Emery Mining Corp., 9 FMSHRC 1997,
2003-04 (Dec. 1987)).
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.
Manalapan Mining Co., 35 FMSHRC at 293. When determining whether a violation was due to
an unwarrantable failure, the Court must consider all relevant factors and the relevant facts and
circumstances of the case to determine whether the actor’s conduct was aggravated and whether
mitigating circumstances exist. IO Coal, 31 FMSHRC at 1351.
Penalty Determinations
“The Mine Act sets forth a bifurcated penalty scheme under which the ‘Secretary
proposes penalties before a hearing based on information then available to him and, if the
proposed penalty is contested, the Commission affords the opportunity for a hearing and assesses
[the] penalty.’” Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101 (Dec. 2014) (quoting
Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147, 1151-52 (7th
Cir. 1984)). Under this bifurcated scheme, “[t]he Secretary's regulations at 30 C.F.R. Part 100
apply only to the Secretary's penalty proposals, while the Commission exercises independent
‘authority to assess all civil penalties provided [under the Act]’ by applying the six criteria set
forth in section 110(i) [of the Mine Act].” Id. (quoting 30 U.S.C. § 820(i)). The six section
110(i) 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

38 FMSHRC Page 1025

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).
Findings of Fact and Conclusions of Law for the Citations and Orders in These Dockets
Docket No. WEST 2014-527-M (Sixteen to One Mine)
Citation No. 87830984
Proposed Penalty: $100.00. Penalty Assessed: $50.00.
The Secretary called MSHA Inspector Miles Frandsen, regarding Citation No. 8783098,
GX 2(a).5 The inspector issued the citation to the Sixteen to One Mine on January 23, 2015, for
an alleged violation of 30 CFR § 57.15031(a).6 Sec’y Br. 5. Frandsen found a worker, a
contractor employee, without his self-rescuer device within the specified footage of his work
area. The type of self-rescuer used for this type of mine, a metal-nonmetal mine, scrubs carbon
monoxide from the air. Tr. 20-21. The cited standard requires that the device be within 25 feet
of the worker’s location. The worker in this instance was about 50 feet away from the device.
Tr. 22. The inspector listed the likelihood of injury as “unlikely.” His concern was that if a wall
of smoke were to enter the mine and the worker couldn’t get to and find the self-rescuer, the
worker could perish from the smoke exposure. Tr. 23. However, the inspector did not find
anything that would be likely to cause a fire, noting, for example, that the mine’s timbers were
moist. Id. Frandsen’s view was impacted by a personal experience where a miner couldn’t get
to his self-rescuer, even though it was on the other side of the shuttle car. In that instance, the
self-rescuer was a mere 5 to 6 feet away from the miner. Tr. 24. The inspector considered the
negligence to be moderate, as the owner, Mr. Miller, did not challenge the distance from the
worker to the self-rescuer, and had advised the worker to keep it “in the area.” Tr. 25. The
inspector stated that a self-rescuer is as important in a gold mine as it is in a coal mine. Tr. 33.
4

The R-17 reports are GX 17 for the Sixteen to One Mine and GX 40 for the Plumbago
Mine. Tr. 660. The reports detail the mines’ respective histories of violations.
5

By stipulation, Respondent agreed to the admission of the government’s exhibits,
designated GX 1 through GX 40. Tr. 26.
6

Standard 30 C.F.R. § 57.15031, titled “Location of self-rescue devices,” provides:

(a) Except as provided in paragraph (b) and (c) of this section, self-rescue devices
meeting the requirements of standard 57.15030 shall be worn or carried by all
persons underground.
(b) Where the wearing or carrying of self-rescue devices meeting the
requirements of standard 57.15030 is hazardous to a person, such self-rescue
devices shall be located at a distance no greater than 25 feet from such person.
(c) Where a person works on or around mobile equipment, self-rescue devices
may be placed in a readily accessible location on such equipment.

38 FMSHRC Page 1026

Frandsen affirmed that he marked that a fatality could occur, a conclusion based on one not
being able to breathe due to smoke from a fire. Tr. 34. However, he also marked that it was an
unlikely to occur event. Thus, he expressed that “[i]t’s not the likelihood of the fire, it’s the
result of not having [a self-rescuer] when [one is] in a fire.”7 Tr. 35.
Jonathan Farrell, a long-term employee of Respondent, testified with regard to the selfrescuer citation. Farrell was not present when the citation was issued but he believed that,
because the mine has a reversible fan, ventilation can be controlled. It was also his view that the
individual was within a safe distance of the self-rescue device. Tr. 66.
Mr. Miller also testified, asserting that the person cited was not a miner, nor an employee,
but instead was an outside contractor’s employee who was doing exploratory work. Tr. 49. The
operator also defended this citation by attesting that at the time the citation was written there
were no hazards in the mine that would lead to the self-rescuer being needed and that a selfrescuer is only needed in an emergency situation. As such, the contractor’s failure to wear the
device should be evaluated as if conditions existed such that a self-rescuer was needed. Tr. 50.
The Court rejects this viewpoint and incorporates the Secretary’s arguments addressing this issue
in its post-hearing brief but, for the other articulated reasons, including those in footnote seven,
supra, does not adhere to the claim that the violation was S&S.
As the Secretary has noted, the standard requires, generally, that self-rescue devices be
worn or carried “by all persons underground.” 30 C.F.R. § 57.15031(a). However, where doing
so would be hazardous, the 25 foot rule applies, and the citation in this instance involved that
exception. The Secretary correctly observes that there “is no requirement of any legal

7

Respondent stated that the cited area was a main adit and that there was no hazard
present, as the rock there is very competent. Tr. 50. Respondent also expressed that there was
no risk of a fatality because a person would only need to walk a short distance to safety, the mine
is naturally ventilated, and the distance to the portal was less than 2,500 feet. Regarding the
mine’s natural ventilation, the ventilation direction is determined by factors such as the
barometric pressure and temperature. Tr. 52-53. Respondent’s argument in this regard, beyond
air movement, is the amount of air in the mine. Respondent asserted that with “35 miles of
tunnels” in the mine, there are millions of cubic feet of open space and many ways to exit the
mine. In Respondent’s view, that makes the notion that one might not have sufficient air to
breath farfetched. Tr. 53-54. Respondent also opined that there was not sufficient fuel to create
a fire. Tr. 50. For those reasons, Respondent believed that the citation should have been marked
as “no likelihood” and the mine’s negligence was none. Tr. 51. Under those conditions,
Respondent urges, with the device not more than 50 feet away, the citation should not have been
issued. Tr. 51. Respondent admitted that the cited worker was there at the invitation of
Respondent and had been given the 40-hour site-specific mine training. Tr. 55. Respondent
could not recall whether he informed the workers that the self-rescue device had to be within 25
of where they were working. Tr. 56. Respondent continued to assert that the worker was not a
contractor, but did not commit as to whether he contended that the worker was not covered under
the Mine Act. Id.

38 FMSHRC Page 1027

relationship between the person underground and the mine operator nor is there any requirement
that the person be employed as a miner.” Sec’y Br. 6.
This violation was conceded in that Respondent admitted that the device was not within
25 feet of the miner. The citation was issued as unlikely, non-S&S, fatal, moderate negligence,
and one person affected, with a proposed penalty of $100.00. The Secretary’s Part 100
procedures for proposed assessment of civil penalties does not allow for a penalty of less than
$100.00.8 The Court is not so restricted as it looks to the statutory criteria, not Part 100. Given
the conditions at this small mine, and the other evidence adduced, a fatal accident was not likely
to be the result but rather lost workdays or restricted duty. Accordingly, the Court declines to
modify the citation to reasonably likely and S&S. A penalty of $50.00 is imposed for this
violation.
Citation No. 8783099
Proposed Penalty: $100.00. Penalty Assessed: Dismissed.
Citation No. 8783099, GX 3, citing 30 C.F.R. § 57.12010,9 was addressed by Inspector
Frandsen. Issued on January 23, 2014, the inspector alleged finding the mine’s phone line
touching a 480-volt power cable in several places underground. Tr. 37. The hazard was not
what one might anticipate, however, as it did not involve any shock hazard. Instead, it pertained
to the electrical field around the power cable. Where that cable touches the phone line, the
electrical field from the cable has the potential to cause the phone line to malfunction, but only
during equipment start-up. Photos showed the phone line touching the cable. GX 3c (the phone
line is white). The inspector stated that it was unlikely that the power cable would short out the
phone line. Tr. 40. This was because the mine did not then have any electrical equipment
underground that would cause a surge when such equipment was started. Id. The inspector
defended his designating the injury as “fatal” on the basis that if one couldn’t use the phone for
help one could perish. The negligence was marked as moderate because a part-time electrician
was designated to do the electrical work and this problem was obvious. Id.
The Court asked the inspector about this citation and the standard cited, which is titled
“Isolation or Insulation of Communication Conductors.” 30 C.F.R. § 57.12010 (emphasis
added). The inspector stated that the standard requires that such telephone lines have to be
protected either by isolation or by suitable insulation and in this instance there was neither
protection. Tr. 42. Abatement was achieved by separating the lines. Id.
Upon questioning by Respondent, the inspector admitted that he had no idea how long
the condition had existed. Tr. 43. He did not know precisely what type of phone line was being
8

Part 100 actually provides for a minimum penalty of $112.00, but a 10% “good faith”
allowance may be factored in “where the operator abates the violation within the time frame set
by the inspector.” 30 C.F.R. § 100.3(f).
9

The cited standard, § 57.12010, “Isolation or insulation of communication conductors,”
provides: “Telephone and low-potential signal wire shall be protected, by isolation or suitable
insulation, or both, from contacting energized power conductors or any other power source.”

38 FMSHRC Page 1028

used. Respondent also inquired about SO wire10 and its use for phone lines. Tr. 43-44.
Respondent’s non-attorney representative Mr. Michael Miller testified about this citation. He
stated that the insulation on the phone line was approved for underground use when it was
purchased, that the wire is “well-insulated,” and that it works. Thus, Miller contended that the
wire had suitable insulation. Tr. 67. Miller also asserted that the inspector’s designating the
violation as potentially involving a fatality was too speculative. Tr. 68. Still, Miller did concede
that the phone lines did touch the 480 volt power cable in several locations. Miller stated that the
power cable had been there for some 15 or 20 years and the phone line was there and subject to
numerous MSHA inspections without any citations being issued for this issue. Miller believed
that the issuing inspector cited the condition because his background was mostly associated with
coal mines and Miller considered the comparison inapt because the differences between the
Sixteen to One Mine and a coal mine are so profound. Tr. 70. Miller continued, stating that the
phone line insulation, as shown by GX 3c, was intact. As to the electrical lines, he stated that,
being SO wires, they were already double insulated, and such electrical wires are MSHA
approved. Tr. 71. Thus, Miller maintained that the phone wires are unlike house phone wires
and would not be subject to the concerns expressed by the inspector. Tr. 72. Miller then
reaffirmed his stance that the phone wires were adequately insulated. Id. This view was based
upon his knowledge of the phone wires when they were purchased. Tr. 73.
The Secretary recalled the inspector, who stated that the power line has insulation in that
the individual conductors are insulated and the jacketing around those conductors serves as
protection, as opposed to insulation. Tr. 74. The same, he stated, is true of the phone line as it
too has insulation on the inside wires and, like the power line, there is an outer covering, which
he again distinguished as “protection” as opposed to “insulation.” Id. Still, the inspector stated
that the phone line’s insulation was not sufficient to meet the cited standard, 30 C.F.R. §
57.12010, asserting that the standard requires additional insulation for the phone line. Tr. 75.
However, the Court observed that the standard does not express that there must be additional
insulation. Id. The Court pressed the inspector to explain his basis for asserting that the
insulation on the phone line was not suitable. Tr. 77. The inspector maintained that his MSHA
training was that when such wires touch, they are to cite the standard as being violated. Id. The
Court then asked the inspector if there was any telephone wire that would meet the standard’s
requirement for adequate insulation and was advised there is no such wire. Id.
While isolating the phone line from the power cable is an option, the phone line can be
wrapped with simple electrical tape to provide the insulation sufficient to protect the signal. Tr.
79. The inspector repeated that he evaluated the violation as unlikely, noting that there was “no
underground equipment that would probably generate [the electrical field that concerned him].”
Tr. 79. Despite that concession, he believed that it was possible, in the future, that such
equipment could be added at some time. Tr. 79. Based on the inspector’s later response, the
Court asked why he did not mark the citation as “no likelihood” as opposed to “unlikely.” Tr.
80. In response, apparently not understanding the question, he stated that he did not remember
what was in the mine. Id. Respondent was successful in bringing out the lack of prior MSHA
enforcement of this standard for the phone lines. Tr. 81.

10

SO refers to cable that is suitable for severe duty. Tr. 78.

38 FMSHRC Page 1029

Upon consideration, this citation, No. 8783099, is DISMISSED. The Secretary was
unable to authoritatively respond to the Respondent’s contention that the SO cable meets the
standard. Further, the inspector’s admission that there was no underground equipment that
would probably generate the electrical field that concerned him suggests that the violation was
not present with the equipment then in the mine.
Docket No. WEST 2015-77-M (Plumbago Mine)
Citation No. 8698235
Proposed Penalty: $5,000.00. Penalty Assessed: $500.00 (five hundred).
Citation No. 8698235, GX 19, dated May 12, 2014, and citing 30 C.F.R. § 50.10(a),11
was issued because there was a death on the mine property which was not reported to MSHA.
Tr. 512. The deceased was Mr. Buck Barker, who was present at the mine site strictly as a
caretaker, not as a miner. Tr. 513. He died on May 2, 2014.
The standard cited requires that MSHA be notified within 15 minutes when anyone dies
on a mine site. In this instance, notification did not occur until after the citation was issued. Tr.
513. The inspector stated that the standard exists because MSHA has jurisdiction at mines and
when someone dies it is part of their responsibility to determine the cause of death. Tr. 514. He
acknowledged that some deaths at a mine are unrelated to mining activity. For example, one
could simply have a heart attack. Nevertheless, the circumstances do not change the duty to
report. Tr. 514. Mr. Barker’s living quarters at the mine were near a historical building at the
mine. Tr. 515; GX 19c, photo 1.
The citation was listed as non-S&S, no lost workdays, and no likelihood because it was a
notification, that is, a reporting, standard. Tr. 516. However it was marked as high negligence
because the operator has been in the mining industry for a long time and knew of the requirement
when a person dies at a mine site. In fact, the inspector asserted that Mr. Miller had dealt with a
mine site fatality previous to this one. Id. The inspector, speaking to the issue of the operator’s
knowledge of the mine site death, stated that workers at the mine informed him that the mine
operator called the local authorities about the death. Tr. 518. The individual had died a couple
of days before the inspector’s arrival. Tr. 518. Mr. Miller did not ask any questions of the
inspector about GX 19.
Mr. Miller testified about GX 19, stating that, far from Mr. Barker being a “caretaker,”
the mine was a caretaker for him. Tr. 532. Miller believed that the cited standard’s reference to
whether an operator knew or should have known of an accident occurring was inapplicable
because no accident was involved; instead, the 80-year-old man simply died of natural causes.
Tr. 533. Miller added that he believed he spoke with someone in the MSHA district office for
clarification on this matter but never received any response. The Court then took note that the
11

30 C.F.R. § 50.10, titled, “Immediate notification,” provides: “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: (a) A death of an individual at the mine.”

38 FMSHRC Page 1030

definition of “accident” under § 50.2(h), means the death of an individual at a mine. Tr. 536.
Mr. Miller responded to the Court’s observation, effectively acknowledging that he was in
violation of the standard. Tr. 536.
Taking into account the undisputed role of the deceased, who was not in any manner a
miner, nor one who provided service to the mine in the way, for example, that an independent
contractor might aid in the mine’s operation, and that this individual, who acted solely as a
caretaker, essentially by his presence to deter trespassers, and also considering that the mine did
contact other authorities, albeit not MSHA, the Court imposes a significantly reduced penalty of
$500.00. This penalty is consistent with the “no likelihood,” “no lost workdays,” non-S&S
findings on the citation. In context, the negligence is found to be “low,” not the “high”
designation made by the inspector.
Citation No. 8698236
Proposed Penalty: $112.00. Penalty Assessed: $75.00.
Citation No. 8698236, GX 20a, a section 104(a) citation, was issued on May 13, 2014, at
the Plumbago Mine. This citation was issued because of an earlier-issued section 104(g)(1)
order issued May 6, 2014, requiring the miners to be withdrawn from the mine until they
received training. When the inspector returned to the mine for a compliance follow-up visit on
May 13th, the miners were still working at the site, despite not having received the training. Tr.
519. At the time of the return visit, miners “Britt [McDaniel] and Joseph [Sauer]” were present
and they were working in the shop at the mine site. Tr. 521, 525. They informed that they had
received some training, that is, a “safety talk,” from Mr. Miller, but did not know it if was in
compliance with the earlier-issued order. Tr. 521-22. Also, Mr. Miller told them it was okay for
them to be working at the site. Tr. 525. The inspector noted that if the required Part 48 training
had been done, there would be a record of that. Id.
At the time of his follow-up visit on May 13, 2014, no training plan had been submitted
to MSHA for the Plumbago Mine. No records were produced for the inspector, nor had the
section 104(g) withdrawal order been terminated. Tr. 523-24. The citation was marked as no
likelihood and non-S&S, since it was a violation of a section of the Act but not a violation of a
safety or health standard. Though the inspector initially marked it as “reckless disregard,” he
ultimately marked the violation as high negligence, feeling that it met that lesser criteria better.
Tr. 525. Mr. Miller did not ask any questions of the inspector about Citation No. 8698236.
Mr. Miller testified about the charge of working in the face of a withdrawal order. He
began by stating that after the inspector raised the matter, he went back to the training records for
the Sixteen to One Mine and determined that the only difference between that mine and the
Plumbago was the communications. Tr. 537. However, this testimony related to the training
plan, and not to the training itself. Tr. 538. Miller then conceded that there was a “paper
problem” but adamantly asserted that no one was in any danger, and he believed they were not in
violation based on his understanding of the law. Miller believed that everyone was trained and
also had years of experience with his operations. Id. Miller reiterated that his men were trained
but that, as a small operation, the paperwork lags behind. Tr. 539. Small mining operations such
as these mines, Miller stated, are overwhelmed with paperwork. Id. Though he conceded that he

38 FMSHRC Page 1031

allowed the miners to go back to work, he probably told them to work on the surface only, not
underground. Tr. 540.
Miller then asserted that he had certificates of training for Britt McDaniel, Skyler Noble,
Joseph Sauer and Kevin George, dated July 22, 2014, to support his contention that those miners
were not “newly hired experienced miners.” Tr. 541-42; RX 6. He stated that all the miners did
was move over to a different mine, from the Sixteen to One Mine to the Plumbago. Tr. 542. An
objection was made by the Secretary as the document related to the Sixteen to One Mine and it
involved annual refresher training, not newly hired experienced miner training. Id. Besides, the
training applied to the wrong mine, and there was the additional issue of it not being newly hired
experienced miner training. Instead the proposed exhibit related to annual refresher training.
Mr. Miller countered that the miners were not “newly hired,” as that would mean, in Miller’s
view, that the miners were coming to the property for the very first time. Tr. 544. At most, he
contended, they had made a paperwork error. The Court observed that, if it can be shown that
the miners met the qualifications at the Sixteen to One Mine, such a fact could impact the penalty
assessment. The Court allowed the exhibit, RX 6, a two page document, to be admitted. Tr.
545.
On cross-examination of Mr. Miller, he admitted that RX 6 reflects training records
pertaining to the Sixteen to One Mine. Tr. 548. Miller stated that he completed the training for
Britt McDaniel, Skyler Noble, and Joseph Sauer. Though he did not make out the forms, per RX
6, he did sign them. Tr. 549. Miller agreed that he is a certified MSHA trainer and that, as such,
he is aware that annual refresher training is not the same as newly hired experienced miner
training. Tr. 550. However, he stated he did not know that such training has to be site specific.
Id. Mr. Miller expressed that he could not answer the question of whether every mine requires
its own training plan, stating “there’s too many unknowns” in the question posed. As an
example of an “unknown,” Miller stated that he did not know the definition of a mine as used in
the question. Tr. 551. Significantly, Miller did concede that there was no training plan in
existence for the Plumbago Mine at the time that the miners signed the training plans reflected in
RX 6. Id. Miller agreed that the training record for Kevin George, per RX 6, was for newly
employed experienced miner training on May 20, 2014. Tr. 552.
Continuing with regard to GX 20, relating to the first working in the face of an order
received by Miller regarding this litigation, when Mr. Miller was asked if he was upset upon
receiving the first 104(g)(1) withdrawal order on May 13th, he responded that he knew from his
employees that the order had been issued and that he “probably got on the phone right away.”
Tr. 554. He believed that the only issue was the training, not the paperwork. Id. He admitted
that when inspector Dan Boylan returned to the mine on May 13th, MSHA considered the miners
at the Plumbago mine to not be properly trained. Tr. 555. However, Miller denied that he sent
the miners back to work without the required training being received. Id. His support for that
view is that those miners had the training, albeit for the Sixteen to One Mine, but that there was
no difference in the training for those two mines, except, as noted, for a different
communication system at the Plumbago. Id. He then suggested, imprecisely, that the next
morning they got the “procedure” (possibly referring to the communication system or perhaps
the whole paperwork for the Sixteen to One Mine) in writing and took it over to the Plumbago

38 FMSHRC Page 1032

Mine. Id. However, he admitted that he had not submitted a plan to MSHA, but added that he
didn’t know he needed to do that. Tr. 556.
On further cross-examination, Miller agreed that following Inspector Boylan’s issuance
of a withdrawal order at the Plumbago Mine on May 17, 2014, the miners then came to the
Sixteen to One Mine and met with him, informing him of the withdrawal order. Tr. 560. Miller
then telephoned MSHA about the issue. However, he denied asking Boylan “what the hell” he
was doing at the Sixteen to One Mine office. He could not recall if Boylan told him he had
issued a 104(g) withdrawal order, or whether the inspector asked to see the mine’s training
records. Tr. 561. Miller agreed that he knew the issue was the training of his miners. Tr. 562.
On May 13, 2014, Boylan issued the working in the face of an order violation (GX 20a),
but he had not delivered the 104(g)(1) order in person prior to that date. Tr. 570. Boylan saw
what would become RX 6 on the first day he arrived at Plumbago in connection with the hazard
complaint on May 6, 2014, but determined that it was insufficient because it related to the
Sixteen to One Mine, not the Plumbago Mine. Tr. 572. Training is site specific. Tr. 572-73.
This is because a training plan must address the geology, hazards, and conditions relevant to the
particular mine site and these mines are at different sites. Tr. 573.
Mr. Miller attempted to show that the geology for the two mines was essentially the
same, and by that, he was suggesting that one could have a single plan which applied
simultaneously to both mines. Tr. 574. The inspector conceded that the geology was not
different; rather the violation was based on the lack of a plan for the Plumbago Mine. Tr. 57475. The Court then interjected that even if Mr. Miller could establish that in every regard the
Sixteen to One and the Plumbago mines were identical, it still wouldn’t affect the requirement to
have a separate plan for each mine. Tr. 576. As noted, such a consideration could be considered
in assessing a penalty. Mr. Miller noted that he had previously conceded that there was no
separate plan for the Plumbago. Id.
Upon consideration of the evidence adduced, the Court imposes a civil penalty of $75.00.
This takes into account the slight differences between the plans but still holds Respondent
responsible for the compliance obligation.
Docket No. WEST 2015-78-M (Plumbago Mine)
Order No. 8698224
Proposed Penalty: $112.00. Penalty Assessed: $112.00.
Inspector Boylan testified regarding the section 104(g)(1) order, Order No. 8698224.12
This matter arose in connection with a verbal hazard complaint received by MSHA on May 5,
2014. Tr. 386. The complaint was anonymous and made by telephone. Thereafter, it was
assigned to Boylan. The allegation was that the Plumbago Mine had no telephone and no permit
for explosives storage and use, and that there was drug and alcohol storage, production, and/or
12

As they are related, Order No. 8698224, Citation No. 8698225, and Citation No.
8698226 are discussed together.

38 FMSHRC Page 1033

use at the mine. In addition, the complaint asserted that workers were concerned over news that
a caretaker at the property had died.
Finding the Plumbago Mine took some research on the inspector’s part, but three IDs
came up using MSHA’s data retrieval system. Those ID numbers are reflected in GX 18. Tr.
386-88. The IDs, however, do not provide GPS locations, so the inspector had to drive to the
vicinity and then try to find the mine. Tr. 389. Since the information MSHA had listed the
mines as “abandoned,” there were no directions to the mine, nor to a mine office location. Tr.
390. Eventually, the inspector found the location, coming upon a gated entrance with an old mill
and rail dumps. At that time he also saw yellow caution tape on the gate leading to the mine. He
then walked past the gate, arriving at the portal, some 1,700 feet from that point. Along the way
to the portal he saw signs that mining activity had been taking place, observing relatively new
PVC pipe, a box for power lines, with the box in the “on” position, and an electric locomotive of
the type used for underground mining. The tracks were also shiny, an indicator of use. New
timber and tools were also present outside of a shop and tools were in front of the portal. Tr.
395. These observations led him to conclude that there was mining activity.
No one was presently at the site but he then came into contact with someone who lived
on a hill near the mine site, who informed him that people were coming and going from the site
location. He told the inspector that the Miller boys were going in there. Tr. 396. Soon after that
exchange, the inspector related that people started to show up at the site; they were Britt
McDaniel, Joseph Sauer, and Skyler Noble. Tr. 397. Those individuals informed him that they
were rehabilitating the mine and had been working there for about six months and were presently
about 1,000 feet into it. They also confirmed to the inspector that this was the Plumbago Mine.
Tr. 398. Interviewing the men, they spoke of their activities at the site, such as removing poor
timber and replacing it with new wood, and checking ground and roof control for safety. Tr.
399.
All of the information led the inspector to conclude that it was an active mine site.
Checking with his MSHA office, the inspector received confirmation that no one had reported
the mine as being active. Further, he confirmed that no training plan had been submitted for the
mine. Tr. 400. The individuals he interviewed advised that they had some training a few months
earlier, but as there was no training plan for the mine, such training was for a different mine. Tr.
401. He later learned that the training the men mentioned was annual refresher training, but for
the Sixteen to One Mine. Id. Original Sixteen to One Mine, Inc., owns the Plumbago Mine. Tr.
402.

38 FMSHRC Page 1034

Based upon his investigation, as described above, Boylan issued Order No. 8698224, a
section 104(g)(1) order, GX 21(a), invoking 30 C.F.R. § 48.6.13 The order alleged that miners
had not received the newly hired, but experienced, miner training. Tr. 402. The order withdrew
the miners from the mine site, as untrained miners are deemed to be a hazard to themselves. A
safety meeting was held the day after he issued the citation. Tr. 403. The order was marked as
“reasonably likely” and “S&S.” The inspector’s issue was the miners not being trained under a
training plan associated with the mine where they were working. Those miners had exposure for
about six months, working in the formerly abandoned mine, as they made their efforts at the
mine’s rehabilitation. Training plans must take into account the specific hazards at the specific
mine. Tr. 404-05. The inspector also marked the Order as “fatal” because the history of mine
fatalities correlates with untrained miners. Tr. 405. Also, the inspector considered that the mine
did not have a ventilation plan or a mine rescue plan. Tr. 406. The negligence was marked as
“high” because training is “101” for mining (i.e., a basic requirement) and the operator, being a
“blue card holder” is able to give the training. This means that the operator, Mr. Miller, as a blue
card holder, was well aware of the training requirements. Id. Subsequently, changes were made
to some of the order’s designations, lowering them. Tr. 408.
In later testimony regarding this order, Inspector Boylan stated that he discussed the order
with Mr. Miller in person. Tr. 566. This happened on the same date that Boylan came to the
Sixteen to One Mine office after informing the miners of the withdrawal order. Boylan affirmed
that, through his conversation, it was clear that Miller knew that he had issued a withdrawal
order for failure to train the miners. Tr. 567. Boylan stated that in response Miller was upset and
believed that the mine had been shut down. The mine was not shut down, but the miners had
been withdrawn. Id. Because of the heated atmosphere, Boylan decided not to issue the order
that day. Instead he returned to the MSHA office, typed out the order and delivered it via email,
confirming by the software program that the order had been delivered. Tr. 569.

13

30 C.F.R. § 48.6, titled “Experienced miner training,” provides:

(a) Except as provided in paragraph (e), this section applies to experienced miners
who are —
(1) Newly employed by the operator;
(2) Transferred to the mine;
(3) Experienced underground miners transferred from surface to
underground; or
(4) Returning to the mine after an absence of more than 12 months.
(b) Experienced miners must complete the training prescribed in this section
before beginning work duties. Each experienced miner returning to mining
following an absence of 5 years or more, must receive at least 8 hours of training.
The training must include the following instruction . . . [the standard then details
the course of instruction in subsections (b)(1) through (b)(12) and (c) through (e)].

38 FMSHRC Page 1035

Respondent’s post-hearing reply brief asserts that
[t]he opening quote of the citation implies that the miners lacked the required
training to act as trained miners. This is patently false. These miners have long
standing employment with Respondent. At most this is paper dumbness. There
could not be an allegation of fatal. Negligence was zero. The proof is in our
history.
Resp’t’s Reply Br. 4. Respondent misses the point. The order alleged that miners had not
received the newly hired, but experienced, miner training. This was established. Respondent’s
contention only serves to show that it could have easily complied with the requirement.
Training, for experienced and new miners, is a recognized safety fundamental. Characterizing it
as “paper dumbness” is a misguided view.
Order No. 8698224 is upheld and the findings of the inspector are affirmed. The Court
imposes a penalty of $112.00.
Citation No. 8698225
Proposed Penalty: $100.00. Penalty Assessed: $100.00.
Citation No. 8698225, GX 22, citing 30 C.F.R. § 48.3(a)(3), was also written on the same
day as GX 21. It was based on the lack of an approved Part 48 training plan prior to the
reopening and reactivation of the Plumbago Mine. Tr. 408. For this citation, the inspector
marked it as no likelihood, no lost workdays, and non-S&S. He so marked it because he
regarded it as a recordkeeping violation. However, because Mr. Miller was well aware of the
requirements, he designated it as “high negligence.” Tr. 409.
The Court upholds the violation and agrees that “high negligence” is the appropriate
characterization. This finding is also appropriate when the violation is viewed in the context of
Order No. 8698224, GX 21, and Citation No. 8698226, GX 23, as they are related. A penalty of
$100.00 is assessed.
Citation No. 8698226
Proposed Penalty: $100.00. Penalty Assessed: $100.00.
Inspector Boylan’s testimony also addressed Citation No. 8698226, GX 23, for failing to
notify MSHA before starting operations, per 30 C.F.R. § 57.1000. Tr. 409. Prior to the
inspector’s arrival at the mine, MSHA had not been notified of the mine’s rehabilitation status.
Tr. 410. For this violation too, the inspector marked it as no likelihood, no lost work days and
non-S&S, because he viewed it as a paperwork violation. Id. The reasons for the notification
requirement are obvious. With awareness of mining activity: MSHA can arrive for help if the
situation calls for it; it can make sure there are training plans; and, more fundamentally, it
enables the agency to perform within its jurisdiction to inspect mines. Id. In the six months of
failing to notify MSHA of the activity, at least one inspection would have otherwise occurred.
Tr. 411. As before, the negligence was listed as “high” because the operator has a long history
of mining and was well aware of these requirements. Id. In addition, the inspector learned that

38 FMSHRC Page 1036

other agencies had been notified of the mine’s new activity. Tr. 413. Employee Rae Bell
allegedly told the inspector that OSHA had been notified, but that Mr. Miller deliberately did not
notify MSHA. Id. Later the same day, the inspector was at the Sixteen to One Mine and he met
Miller there. Miller stated MSHA had no jurisdiction at the Plumbago Mine and was upset that it
had been shut down. Tr. 415-16. As noted, while the mine had not been shut down, effectively
it had been, as its employees could not work there until their training had been completed.
Mr. Miller’s cross-examination of the inspector began with inquiring about the basis for
the inspector being on the Plumbago Mine property, which he characterized as “private.” Tr.
418. Miller asserted that MSHA did not have jurisdiction over the mine. This, he stated, was
based on Section 4 of the Mine Act, the text of which was read into the record. That section,
titled “Mines Subject to Act,” provides: “SEC. 4. Each coal or other mine, the products of which
enter commerce, or the operations or products of which affect commerce, and each operator of
such mine, and every miner in such mine shall be subject to the provisions of this Act.” Tr. 421.
From this, Miller asserted that no products entered into production from the operation, and
therefore there was no impact on interstate commerce. Id. In addition, there was not any
equipment there that would affect interstate commerce. Tr. 422. Mr. Miller then asked the
inspector to distinguish between mining activity and tunneling. The inspector stated that mining
is “producing, exploration and development and rehabilitation.”14 Tr. 425. This claim by
Respondent, that jurisdiction was lacking, completely lacking in merit, has been discussed
earlier.
Mr. Miller then testified about the foregoing, grouped matters, beginning with offering
RX 3 for identification. The Secretary objected to the exhibit as not relevant, as it reflects an
approved training plan for the Sixteen to One Mine. These matters all relate to the Plumbago
Mine, and therefore the training plan for another mine was not material. However, the Court
utilized its discretion and admitted the exhibit, while noting that the weight afforded the exhibit
was a distinct matter. Tr. 432. Miller then moved for the admission of RX 4, the Plumbago
Mine’s MSHA-approved Part 48 underground mining plan, dated June 26, 2014. The Court
noted and Miller affirmed that his point in offering the exhibit was to show that it is virtually
identical to the plan for the Sixteen to One mine. Tr. 433. The Court noted that the exhibit also
can be viewed from a different perspective, as it shows how easy it would have been for the mine
to have been in compliance, in large measure by just changing the name of the mine on the title
page. Id.

14

Although Mr. Miller was then challenging the inspector’s experience, the citations in
issue at this point in the proceeding were Order No. 8698224 (GX 21), Citation No. 8698225
(GX 22), and Citation No. 8698226 (GX 23), involving, respectively, newly hired experienced
miner training, no training plan, and no notification before starting operations. Tr. 429. The
inspector stated that he has never worked in an underground mine. Id. The Court finds that
Inspector Boylan was a well-qualified and knowledgeable inspector, who spoke with detail, both
credibly and convincingly, regarding each of the citations/orders about which he testified.

38 FMSHRC Page 1037

The Court upholds the violation and agrees that “high negligence” is the appropriate
characterization. This finding is also appropriate when the violation is viewed in the context of
Order No. 8698224, GX 21, and Citation No. 8698225, GX 22, as they are related. A penalty of
$100.00 is assessed.
Citation No. 8698228
Proposed Penalty: $243.00. Penalty Assessed: $243.00.
Inspector Boylan also testified regarding Citation No. 8698228, GX 25a, issued May 7,
2014, and citing 30 C.F.R. § 49.215 for the Plumbago Mine’s failure to “have at least two mine
rescue teams available onsite, nor an alternative compliance under the small and remote mine
rescue capabilities.” Tr. 437. Such an alternative plan has to be applied for and sent to the
MSHA district office. That MSHA office had no such record on file. Tr. 438. Small mines are
required to have their own mine rescue team or to have an agreement with another mine to
provide mine rescue. The Plumbago mine had neither arrangement. Tr. 438-39. The inspector
looked for documentation at the mine and the MSHA district office, but none was at either
location. Tr. 439.
The inspector marked the citation as S&S and reasonably likely because, in context, there
was no mine rescue, no ventilation plans, and no escape and evacuation plan, but there was
exposure of miners. Miners had been working, untrained, and underground for six months in this
formerly abandoned and now rehabilitated mine. Tr. 439. He added that the standard he cited is
considered an “emergency standard.” This didn’t mean that there was an emergency underway,
but rather that mine rescue comes into play when the event of a disaster has occurred to address
15

Section 49.2, titled “Availability of mine rescue teams,” provides:

(a) Except where alternative compliance is permitted for small and remote mines
(§ 49.3) or those mines operating under special mining conditions (§ 49.4), every
operator of an underground mine shall:
(1) Establish at least two mine rescue teams which are available at all
times when miners are underground; or
(2) Enter into an arrangement for mine rescue services which assures that
at least two mine rescue teams are available at all times when miners are
underground.
(b) Each mine rescue team shall consist of five members and one alternate, who
are fully qualified, trained, and equipped for providing emergency mine rescue
service.
(c) To be considered for membership on a mine rescue team, each person must
have been employed in an underground mine for a minimum of one year within
the past five years. For the purpose of mine rescue work only, miners who are
employed on the surface but work regularly underground shall meet the
experience requirement. The underground experience requirement is waived for
those miners on a mine rescue team on the effective date of this rule.
(d) Each operator shall arrange, in advance, ground transportation for rescue
teams and equipment to the mine or mines served.

38 FMSHRC Page 1038

the need of rescuing miners who are in danger underground or trapped. Tr. 439-40. For those
reasons, he also marked the citation as fatal. The citation was issued under section 104(d)(1)
because of his determination that elevated negligence was involved, that the mine operator knew
of the requirement, and that the requirement for a mine rescue team is basic and fundamental, not
to mention that mine operator Miller used to be involved with mine rescue teams. Tr. 440.
In his cross examination regarding the mine rescue citation, Mr. Miller began with
proposed exhibit RX 5, a letter from “Barrick Goldstrike Mines” to Mr. Miller as the manager of
the Sixteen to One Mine, dated April 1, 2014. The inspector acknowledged he had seen the letter
before. Tr. 451. Mr. Miller asked no other questions of the inspector about the letter. Mr.
Miller attempted to use the letter to show that Barrick Mines would help in the event of a mine
emergency. Tr. 452. The problem with it is that it references only the Sixteen to One Mine, not
the Plumbago Mine. Tr. 452. Miller agreed that the letter makes no reference to the Plumbago
Mine. Tr. 453. The Court ruled that the letter was not material to the issue of whether there
were two mine rescue teams available and committed to respond to an emergency at the
Plumbago Mine and therefore proposed exhibit RX 5 was not admitted. Tr. 454.
Upon consideration of the evidence for this citation, the proposed penalty of $243.00 is
adopted and imposed.
Citation No. 8698229
Proposed Penalty: $308.00. Penalty Assessed: $154.00.
For Citation No. 8698229, GX 26a, issued May 7, 2014, to the Plumbago Mine, and
citing 30 C.F.R. § 57.11053, the inspector cited the lack of an escape and evacuation plan. A
plan was not available for posting at the mine and therefore, in the event of a mine disaster, there
were incomplete, non-existent, or inaccurate emergency plans. Tr. 441. Such a plan, obviously,
is to address an emergency for miners as well as for rescue personnel or even mine visitors. Tr.
442. Mr. Miller stipulated that the mine did not have such a plan. Tr. 443, 458. Taking into
account that the miners told him they had radios to call out in such an event, the inspector
initially marked the citation as non-S&S and unlikely. However, after considering other
deficiencies, involving the absence of a ventilation plan and mine rescue training, he then
considered it to be reasonably likely. Tr. 444. He also marked the gravity as ‘fatal’ and high
negligence. Id. Without such a plan, if an emergency arose, one would not have a specific
escape and evacuation plan, which plan would facilitate rescues, too. With a plan, people would
know the way in and out and where miners were working. It was also designated as high
negligence because the operator was well aware of the standard. Id. With the inspector’s
reassessment, he then revised the citation to a section 104(d)(1) violation. Tr. 445.
Subsequently, however, as reflected on the fourth continuation page and Exhibit A to the penalty
petition, the inspector later re-evaluated the paper and reduced the violation to a section 104(a)
moderate negligence citation.
Mr. Miller’s cross-examination for GX 26 began by characterizing the citation as relating
to a tunnel. The inspector stated that he did not go underground for this citation, as it involved
the failure to have an escape and evacuation plan in the event of an emergency. Tr. 457. Apart
from the claim that the mine was a tunnel, Respondent presented no defense to this citation.

38 FMSHRC Page 1039

The plan is obviously important, but given the small size of the mine, in terms of
employees, and given the inspector’s initial assessment that the gravity was unlikely, and that the
miners had radios, a lesser penalty is appropriate. The Court imposes a civil penalty of $154.00
for this violation.
Citation No. 8698230
Proposed Penalty: $308.00. Penalty Assessed: $154.00.
Citation No. 8698230, GX 27, citing 30 C.F.R. § 57.8520,16 was addressed. As originally
issued, the violation was written as a section 104(a) citation. This involved the Plumbago
Mine’s failure to have a ventilation plan. Such a plan must be filed with the MSHA district
office, but the inspector found none. Further, no plan was at the mine office and the miners did
not know of such a plan either. Tr. 447. The inspector did know that the ventilation was natural,
i.e. not accomplished through mechanical means. However, the miners didn’t know where the
ventilation was coming from. Id. As with Citation No. 8698229, GX 26a, the inspector revised
his initial citation upward to S&S, likely, high negligence, and fatal, and converted it to a
104(d)(1) order after considering the other related violations for lack of mine rescue and escape
plans. In the event of a fire, a ventilation plan is used to control it, by having knowledge of the
airflow in the mine. The reasoning for those designations followed that cited by the inspector for
Citation No. 8698229. Tr. 448. Just as with Citation No. 8698229, however, the inspector later
reduced the negligence from high to moderate and re-evaluated the 104(d)(1) order to a 104(a)
citation, as evidenced by the fourth continuation page of the citation. For GX 27, Mr. Miller
stipulated that no plan of the mine ventilation system was set out by the mine operator in written
form. Tr. 460. Mr. Miller’s defense for Citation Nos. 8698228, 8698229, and 8698230 began by
questioning his witness, Mr. Farrell, about mining law in 1872. Tr. 462.
The violation is upheld. Applying the same reasoning used for Citation No. 8698229,
GX 26, the Court imposes a civil penalty of $154.00.

16

Section 57.8520, titled “Ventilation plan,” provides:

A plan of the mine ventilation system shall be set out by the operator in written
form. Revisions of the system shall be noted and updated at least annually. The
ventilation plan or revisions thereto shall be submitted to the District Manager for
review and comments upon his written request.
The standard goes on to provide a detailed list of such plan’s requirements, “where applicable.”
See § 57.8520(a)-(e).

38 FMSHRC Page 1040

Citation No. 8698231
Proposed Penalty: $100.00. Penalty Assessed: $100.00
Inspector Boylan testified about Citation No. 8698231, GX 28, issued to the Plumbago
Mine on May 5, 2014, and citing standard 30 C.F.R. § 57.18009. 17 Tr. 465. The standard
requires that a person be designated as the one in charge at a mine in the event of an emergency.
When the inspector asked about who was so designated, no one was identified. Tr. 467. This
was another violation for which the inspector changed his original designations upward to S&S
and reasonably likely, high negligence and fatal. Here again, his more serious assessment was
based upon the other violations he found during his inspection, such as the lack of a mine rescue
team, and no escape and evacuation plan. Tr. 467-68. He later reduced the designations back to
unlikely, no lost workdays, moderate negligence, and non-S&S, according to the second
continuation sheet provided with the citation and the penalty petition.
Mr. Miller testified regarding Citation No. 8698231. Speaking to the competent person
issue, Miller asserted that Britt McDaniels “has been a competent person working for our
company . . . [and] Joseph Sauers is a competent person also.” Tr. 484. He added that the mine
had radio communications. Id. The Court noted that the standard requires a competent person,
designated by the mine operator, is to be in attendance but the inspector testified that no such
person was present. Tr. 485. Miller then stated that Britt McDaniels, Joseph Sauer, and Skyler
Noble were all at the mine that day and that all were competent persons. Tr. 486. Miller then
reiterated that he designated McDaniels as the competent person at the Plumbago Mine and if
that person was not there at a given time, Sauers was there. Tr. 487. Miller stated that he so
designated those people as competent persons at the mine, “[p]robably well before May.” Id.
While he could not give a precise date, Miller stated that it was approximately in January 2013.
Tr. 488. Miller’s position was that the miners there at the time of the citation’s issuance simply
didn’t speak up, viewing the inspector as a “stranger.” Tr. 491.
The Court noted that Miller’s testimony about the date he designated those individuals
had implications about his claim concerning when the Plumbago Mine became active. Tr. 489.
In light of the testimony from Respondent, Attorney Horn recalled Inspector Boylan.
Boylan stated that when he was at the mine he identified himself as an MSHA Inspector to the
miners at that site. Tr. 505-06. Boylan reaffirmed that when he spoke with Britt McDaniels,
asking if he knew who the designated person in charge in case of an emergency was, he
responded there was none. Tr. 506. On re-cross, Boylan was asked how he identified himself to
“Britt [McDaniel] and Joseph [Sauer].” Tr. 510. The inspector stated he responded: “My name
is Dan, I’m with the Mine Safety and Health Administration, and I’m here on [a] hazard
complaint.” Id. Mr. Miller had no questions of the inspector about the citation reflected in GX
28. Tr. 483.
The Court finds that this violation was established and imposes the penalty as proposed.
17

Section 57.18009, titled “Designation of person in charge,” provides: “When persons
are working at the mine, a competent person designated by the mine operator shall be in
attendance to take charge in case of an emergency.”

38 FMSHRC Page 1041

Citation No. 8698232
Proposed Penalty: $112.00 Penalty Assessed: $112.00
Citation No. 8698232, GX 29, citing 30 C.F.R. § 57.4533(a),18 issued May 7, 2014,
pertained to the mine shop, which was located right outside the portal, and asserts that the shop
was not constructed of non-combustible materials. Mr. Miller then stipulated to the fact of
violation. Tr. 469. However, Respondent did challenge the fatal and moderate negligence
designations. The inspector stated that GX 29c accurately represented what he observed: the
shop’s proximity to the mine portal. A concern is that, with such combustible construction,
smoke could enter the mine if the shop caught fire. Tr. 472. A fire, and smoke from it, could
impede the ability to exit the mine. Id. At the time of the citation’s issuance, there was only one
portal, also as depicted in GX 29c. Moderate negligence was marked, on the basis that the
inspector had no facts as to how often the mine operator had been on site and evaluated the mine
property. Tr. 473.
Regarding Citation No. 8698232, Miller stated that his remarks applied to that citation
and “the other one,” apparently referring to Citation No. 8698233. He asserted there are two
portals and that the second portal in fact is more than 100 feet from the building. He described
the two portals as “like a Y.” Tr. 492. Miller asserted that if the building did catch fire no
danger would be presented. He based this on the statement that air was coming out of the portal,
not going into it. Despite that assertion, the violation was abated by installing a sprinkler system,
a fix Miller described as “very expensive.” Tr. 493.
Mr. Miller had no questions of the inspector about the citation reflected in GX 29. Tr.
483. Upon consideration of the record evidence, the Court adopts the findings and proposed
penalty derived therefrom. Therefore, the $112.00 penalty is imposed.
Citation No. 8698233
Proposed Penalty: $100.00. Penalty Assessed: $75.00.
Citation No. 8698233, GX 30, citing 30 C.F.R. § 57.9300(a)19 and issued May 7, 2014,
involved the lack of a berm on the roadway leading up to the mine. The roadway was elevated
and miners used the road to travel to and from the mine. Tr. 473. Photos designated GX 30c
were offered to show the cited road condition. Though he did not measure the elevation, the
18

Section 57.4533, titled “Mine opening vicinity,” provides: “Surface buildings or other
similar structures within 100 feet of mine openings used for intake air or within 100 feet of mine
openings that are designated escapeways in exhaust air shall be — (a) Constructed of
noncombustible materials.”
19

Section 57.9300, titled “Berms or guardrails,” provides at subsection (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.” As
mid-axle height was mentioned in the testimony, subsection (b) of the standard is here noted. It
states that such “[b]erms or guardrails shall be at least mid-axle height of the largest selfpropelled mobile equipment which usually travels the roadway.”

38 FMSHRC Page 1042

inspector estimated it to be about 38 feet in height. GX 30c, photo two, shows the edge of the
elevated roadway. Also, clarifying the photo’s depiction, the inspector affirmed that, in photo
one of GX 30c, the roadway cited is to the left of the private property sign. Tr. 477. The
inspector agreed that, per that photo, he believed a berm was needed from the private property
sign up to the gate. Id. No berm was present along the cited part of the roadway. The road itself
was 18 feet wide. The inspector designated the citation as non-S&S and unlikely because it was
not a haulage road, but instead was used to enter or exit the mine. However, he did mark it as
“fatal” because, if a vehicle did go over the roadway edge, one would receive fatal crush and
impact injuries. Once again, the negligence was marked as moderate because the inspector had
no evidence that the mine operator was aware of the condition. Tr. 476. Thus, quite favorably to
the mine operator in the Court’s view, the inspector viewed the absence of evidence that the
operator knew of the issue as a mitigating factor. Id.
Miller agreed that photo one of GX 30c was a fair representation, but asserted that photo
two was not. He maintained that the depth of the rock cannot be seen and that there was a berm
that came up to the mid-axle of the pickup truck. Tr. 494. He contended that repeated grading of
the road over the years had created a sufficient berm. Later, the berm height was increased when
they brought in a loader. Miller’s position was that the citation should be vacated. Tr. 496.
On redirect for GX 30c, photo 3, Boylan was asked if he saw a berm in that photo, and he
responded that he did not and that the photo reflected the condition of the roadway on May 6,
2014. Tr. 507. Directed to the right side of the photo where PVC pipe is shown, the Inspector
stated that he did not consider that area of the roadway to have a berm. While he agreed that
there appeared to be a “bump” or a “little material raised up” there, it was not a berm, as it was
not mid-axle height of the vehicle that used that road, which was a pickup truck. Tr. 507-08. He
did not measure the mid-axle height of the truck because it was so obvious that the berm was not
mid-axle height. Tr. 508. The inspector stated that he did consider the density of forest in that
location but added that the majority of the trees were not up to the roadway’s edge. It was his
view that one who over-traveled the road would overturn before going into the trees. Tr. 509.
483.

Mr. Miller had no questions of the inspector about the Citation reflected in GX 30. Tr.

The violation was established. However, given the small size of this mine and the
minimal traffic along the cited berm-less road, a penalty of $75.00 is imposed.

38 FMSHRC Page 1043

Citation No. 8698234
Proposed Penalty: $100.00. Penalty Assessed: $100.00.
Citation No. 8698234, GX 31, citing standard 30 C.F.R. § 57.4131(a), 20 was issued May
8, 2014. For this matter, at issue was timber being stored about ten feet from the portal. As
mentioned earlier, the standard requires that no more than one day’s supply of combustible
material may be stored within 100 feet of the mine opening. Tr. 478-79. The condition was
photographed. GX 31c, photo 2. The wood, the pieces of timber, which the inspector cited,
were not related to the building shown in the bottom center of the photo. Tr. 479. Mr. Miller
stipulated that the material cited was less than 25 feet from the portal. Tr. 480. The citation was
marked as non-S&S and unlikely as the inspector did not see any ignition sources or other
sources of combustion such as liquids or gases. Tr. 481. He concluded that there was more than
a one-day supply of wood by speaking with the miners at the site and learning how long the
wood had been there and upon being informed that the mining progress had been slow going.
Tr. 481. He never learned how long the wood had been there, other than being told it was more
than a day. Id. He marked the violation as fatal because of the combustible materials’ closeness
to the mine entrance and because of the adverse impact it would have with mine rescue and
escape and evacuation if a fire were to occur. Id. For the same reasons he gave earlier, no
information as to the operator’s knowledge of the condition, he marked the negligence as
moderate. Tr. 482. Mr. Miller had no questions of the inspector about the citation reflected in
GX 31. Tr. 483.
Regarding the one-day supply of lumber issue, Miller repeated that there are two adits,
forming a Y shape, with the second adit of the Y being 100 feet from the other. Miller also
asserted that, as any experienced miner would know, the wood cited was less than a one day’s
supply, especially when one is renovating a tunnel. Tr. 497. Miller added that because the air
exits from that portal, even if the material did catch on fire, no smoke could enter it. Tr. 498. He
added that there were no sources of fire. Miller concluded by stating that his only defense
regarding that citation is that there was not more than a day’s supply of lumber. Tr. 499.
Attorney Horn then asked Miller, regarding GX 31c, photo 2, whether one of more of the lines
depicted in that photo were electrical. Tr. 501. Miller admitted that to be the case, but
responded that the electrical line or lines had no bearing on the citation regarding the wood. Tr.
502. Miller then agreed that there was a compressor at the mine and that it was powered by
electricity. Tr. 504.

20

provides:

The cited standard, § 57.4131, titled, “Surface fan installations and mine openings,”

(a) On the surface, no more than one day's supply of combustible materials shall
be stored within 100 feet of mine openings or within 100 feet of fan installations
used for underground ventilation.
(b) the one-day supply shall be kept at least 25 feet away from any mine opening
except during transit into the mine.
(c) Dry vegetation shall not be permitted within 25 feet of mine openings.

38 FMSHRC Page 1044

On redirect for Citation No. 8698234, Attorney Horn asked Inspector Boylan how he
determined that there was more than a one day’s supply of lumber. The inspector advised that it
was based on his interviewing the miners. Further, nothing else he learned contradicted that
view. Tr. 509.
Upon consideration of the record evidence, the Court adopts the findings in the citation
and the proposed penalty derived therefrom. Therefore, the modest $100.00 penalty is imposed.
Citation No. 8785247
Proposed Penalty: $100.00. Penalty Assessed: $75.00.
Inspector Nicholas Basich testified regarding Citation No. 8785247, which pertained to
an alleged violation of a vehicle with no functioning brake or tail lights at the Plumbago Mine.
The cited standard was 30 C.F.R. § 57.14100(b).21 Respondent agreed to the conditions and
practices section of the citation, conceding the vehicle did not have functioning brake and tail
lights, per item 8. Tr. 204. That the lights were non-functioning does not fully describe the
condition, because the vehicle had no such lights present at all. Tr. 205. Miller did challenge the
claim that the condition had been that way for about two months. A photo of the vehicle appears
in GX 32c. The inspector did acknowledge the presence of a bar with a red rectangle on the back
of the cab, but he did not know if it was a functioning brake or warning light. However, he did
not consider it to be a brake or warning light. Tr. 207. The hazard is, with non-functioning
lights, persons might be unaware of the vehicle stopping. Tr. 208. In addition, miners were in
the truck’s seats. However, the inspector listed the violation as non-S&S and unlikely. Tr. 209.
He believed the condition had existed for two months. The inspector acknowledged learning that
the needed lights had been purchased but not yet installed. Tr. 210. The inspector listed the
negligence as “high” because the condition had existed for some time and the operator was
aware of it. Id. As such lights are warning devices, the inspector stated that their absence is
plainly a safety defect. Id.
Mr. Miller objected only to the high negligence designation for Citation No. 8785247.
To begin, he stated that the light on the top of the cab was a brake light. Tr. 213. Further, the
truck was never used at night, and in Miller’s view, it did not need tail lights. In addition, he
took issue with the inspector’s claim that people would not be able to see the truck stop without
the presence of such lights. Though he ordered his workers to install the lights, they failed to do
so. Tr. 214. Miller felt the negligence should be low or at least moderate.
The truck was used to transport miners to various mines. At that time he employed five
miners. Tr. 216. The truck transported men over a seven mile stretch of county road. Tr. 217.
Miller continued to object to calling the site a mining operation. Rather he called it a
“rehabilitation of an abandoned piece of property.” Id. As noted, Respondent’s claims that
Plumbago is not a mine have been rejected.

21

30 C.F.R. § 57.14100(b) requires that “[d]efects on any equipment, machinery, and
tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to
persons.”

38 FMSHRC Page 1045

Considering Mr. Miller’s credible testimony on this matter, the Court agrees that high
negligence is inappropriate and that moderate negligence is more accurate. Accepting the other
designations made by the inspector, including that the violation was properly determined to be
non-S&S, the Court imposes a penalty of $75.00 for this violation.
Citation No. 8793615
Proposed Penalty: $100.00. Penalty Assessed: $100.00.
Citation No. 8793615, GX 33, citing 30 C.F.R. § 57.12028,22 was issued on September 4,
2014, for the Plumbago Mine. Tr. 579. That citation related to testing for continuity and
resistance for electrical components, a requirement to be performed annually as well as after
installation and changes to such electrical components. Tr. 580. The inspector could find no
record of the test having been performed and he also learned, through interviewing the miners,
that it had not been done. Id. The standard is important as a failsafe and to ensure that the
electrical equipment is operating correctly and safely. Id. Such testing must be recorded. The
inspector inquired at the Sixteen to One Mine office and at the Plumbago Mine site as to such
records, but none were presented. Tr. 581. The inspector also inquired, apart from the lack of
records, whether the testing had been done, and learned from mine employee Britt McDaniel that
it had not and that he would have been the person to do that. Tr. 582. Mr. Miller then stated
that, assuming the inspector was accurately testifying about Mr. McDaniel’s conversation, the
citation was “deserved.” Tr. 583. Miller then stipulated that the gravity and negligence
markings for the citation were as written (unlikely for gravity, restricted duty or lost workdays,
non-S&S, and moderate negligence). Id.
Accordingly, based on the foregoing, the Court imposes the same $100.00 penalty as
proposed by the Secretary.
Citation No. 8793617
Proposed Penalty: $100.00. Penalty Assessed: $50.00.
Citation No. 8793617, GX 35, issued September 4, 2014, involves standard 57.15030,23
and the requirement for a weight test for self-rescuer devices. Those devices must be maintained
in good condition and there is a requirement that they be inspected, with a weight test, within 90
days. Tr. 585. The weight test is not explicitly required in the standard. Rather, a program
policy manual provides for such test. Mr. Miller then stipulated to the fact of violation for this
citation as well. Tr. 586. He also agreed to each of the designations on the citation, save the
22

30 C.F.R. § 57.12028, titled “Testing grounding systems,” provides: “Continuity and
resistance of grounding systems shall be tested immediately after installation, repair, and
modification; and annually thereafter. A record of the resistance measured during the most recent
test shall be made available on a request by the Secretary or his duly authorized representative.”
23

30 C.F.R. § 57.15030, titled, “Provision and maintenance of self-rescue devices,”
provides: “A 1-hour self-rescue device approved by MSHA and NIOSH under 42 CFR part 84
shall be made available by the operator to all personnel underground. Each operator shall
maintain self-rescue devices in good condition.”

38 FMSHRC Page 1046

marking that it would be fatal. Tr. 587. With that designation, the last item in dispute for that
citation, the inspector explained that he marked it as fatal because it is a life-saving device, called
into use in an emergency and that, if it did not work when needed for an escape, the
consequences would be fatal. Tr. 588.
Mr. Miller, objecting to the fatal designation, stated that there were two or three devices
out of compliance with the 90 day requirement and essentially asserted that his son, an employee
at the mine, was behind in the paperwork, and at that, he was late by only two to four days. Tr.
589. As to the fatality designation, Mr. Miller stated that air rapidly exits from the mine and the
tunnel itself is very short. Tr. 590.
The inspector was then recalled. He acknowledged that the weight tests were not many
days overdue but that he still believed the fatal designation was appropriate. Though unlikely
that the devices were in a non-maintained condition, he still asserted that if they did not function,
the expected injury would be fatal. Tr. 591.
Given that not all the devices were out of compliance and that the period of noncompliance was only a few days, the Court assesses a civil penalty of $50.00 for this conceded
violation.
Docket No. WEST 2015-158-M (Sixteen to One Mine)
Citation No. 8785248
Proposed Penalty: $100.00. Penalty Assessed: $25.00.
Inspector Nicholas Basich testified regarding this citation, which alleged a violation of 30
C.F.R. § 57.14207.24 Miller stipulated to the “Condition or Practice” section of the citation —
that the truck was parked without its parking brake being set — but he asserted that it was on
level ground. He took issue with the moderate negligence designation. Tr. 220. Miller also
disputed that the condition exposed miners to the hazard of contact by a slow moving vehicle.
Inspector Basich stated that if the vehicle were bumped and it jumped out of park, it could have
begun a slow roll, exposing miners to bumps or bruises. Tr. 221. However, the inspector
conceded it was very unlikely that, if bumped, the truck would jump out of park. Tr. 223. The
truck was not being used at the time he cited it. He marked it as moderate negligence because
the standard is one within the “Rules to Live By,” meaning many accidents have been associated
with it. Tr. 222. MSHA wants mine operations to set the parking brake in all instances, not
simply when a vehicle is on a grade. On cross-examination, referring to the photograph in GX
10c, the inspector agreed that there was a bank and a tree on the other side of the truck and it was
his understanding that the truck had recently been brought to the location where he observed it.
Tr. 226. There was no indication that the truck had been tagged out, nor did the miner
accompanying him assert that. Id.
24

Section 57.14207 requires that “[m]obile equipment shall not be left unattended unless
the controls are placed in the park position and the parking brake, if provided, is set. When
parked on a grade, the wheels or tracks of mobile equipment shall be either chocked or turned
into a bank or rib.”

38 FMSHRC Page 1047

Mr. Miller then testified about the citation, stating that there was no way another vehicle
could bump the truck in that location. Tr. 228. Further, he stated that the truck, a used vehicle,
had been recently purchased and had not yet been put in service. Tr. 229. Miller also disputed
that two people worked at that location. Tr. 230. Miller couldn’t speak to whether it had been
tagged out, but he maintained it was at that location and not to be used until it had been checked
out. Id. Therefore, he believed the citation should be vacated. Tr. 231. On cross-examination,
he did acknowledge there was another vehicle near the cited one but contended that it was also
there for repair work to be done. Tr. 233.
Upon consideration of the testimony, including the small size of the mine, the Court finds
that the negligence was low and imposes a penalty of $25.00.
Citation No. 8785249
Proposed Penalty: $100.00. Penalty Assessed: $ 50.00.
Inspector Basich testified regarding Citation No. 8785249, GX 11a, citing 30 C.F.R. §
57.6132(a)(6)25 and issued September 9, 2014, at the Sixteen to One Mine. While inspecting the
area around a magazine, the inspector noticed there was no sign informing that explosives were
present. Tr. 236. The standard requires posting signs so that one shooting at the signs would not
accidentally hit the magazine. Tr. 237. Shooting at signs is apparently a common practice in
rural areas. Tr. 250. GX 11c consists of photographs of the cited condition and its abatement,
and the white box depicted in the center of photo one is the magazine. Tr. 237-38; GX 11c.
Detonators were stored in the magazine. The posting requirement applies to all approaches. Tr.
239. There was one sign on an A frame but it had fallen and therefore was not readily visible
upon approaching the magazine. Id. From two approaches to the magazine, signs were not
readily visible. Photos six and seven of GX 11c show the abatement of the condition. Tr. 24142. The citation was marked as non-S&S and unlikely. This was based on the fact that those
who worked at the mine site knew of the magazines. Tr. 242. However, the inspector deemed
the negligence as moderate because these standards are well known in the mining industry. Tr.
243. Also relevant to the negligence determination was that it was obvious that the signs were
not present. Tr. 244. He marked the injury as “fatal” because an explosion at the magazine
could produce such a result. Id. Two magazines were cited for the one violation; one was the
detonator magazine and the other was the high explosive/blasting agent magazine. Their relative
locations were about 100 to 150 feet apart. Tr. 245.
On cross-examination, the inspector stated that simply seeing the magazines and no
readily visible signs prompted the citation’s issuance. Tr. 246. For the other magazine, the
“powder” magazine, a sign was visible, but only from one direction. Tr. 247. Thus, the
inspector agreed that there was a sign at both magazines but they were not readily visible. Id.
25

30 C.F.R. § 57.6132(a)(6), titled “Magazine requirements,” provides, in relevant part,
“Magazines shall be . . . [p]osted with the appropriate United States Department of
Transportation placards or other appropriate warning signs that indicate the contents and are
visible from each approach, so located that a bullet passing through any of the signs will not
strike the magazine.”

38 FMSHRC Page 1048

He also agreed that the miners knew of the magazines’ locations.26 Tr. 248. The inspector did
sum up the issue with regard to both magazines. For photo one in GX 11c, depicting the
detonator magazine, there were two approaches to it. Tr. 253. For that magazine, he saw only
one sign and it had become loose so that it was not readily visible. However, two signs were
needed. For the high explosives/blasting agent magazine, shown in GX 11c, photo 4, there were
also two approaches. Tr. 256. Here, too, there was only one sign. Tr. 257.
Mr. Miller then testified about this citation involving the warning signs. He did not
believe that any citation should have been issued. Other than the miners, anyone else on the
property would be trespassers. However, he then volunteered that a creek passes through his
property and that people are permitted to walk along it; they are not trespassing. Tr. 259. Miller
viewed adding more signs as an invitation encouraging people to shoot at them. Tr. 260.
Therefore, he wanted the signs to be in the least conspicuous location. Tr. 262. Miller also was
of the opinion that there was only one approach, not two, to the magazines. Tr. 261. In addition,
Miller did not think that a bullet would ignite the magazines, because the contents are nondetonating. Tr. 263.
This violation was established, but the Court takes into consideration that, while they
were insufficient, there were signs present. Upon further factoring in the small nature of this
mine and Mr. Miller’s testimony (though his views were misplaced about whether more signs
were ill-advised, as the standard requires appropriate warning signs from each approach), the
Court views the negligence as less than moderate. A civil penalty of $50.00 is imposed.

26

As a side note, relating to an earlier citation, and referring to GX 11c, photo 1, the
inspector agreed green vegetation is depicted in that photo and that he did not write a citation
regarding that, because the vegetation was green. Tr. 250.

38 FMSHRC Page 1049

Citation No. 8785250
Proposed Penalty: $100.00. Penalty Assessed: $75.00.
Inspector Basich also testified regarding Citation No. 8785250, GX 12, issued on
September 10, 2014, and alleging a violation of 30 C.F.R. § 57.8520.27 Tr. 265. This dealt with
alleged deficiencies in the mine’s ventilation plan. Such plans, while not needing MSHA’s
approval, still must be submitted to the agency. The inspector asserted that the deficiencies
27

A detailed standard, § 57.8520, titled “Ventilation plan,” provides:

A plan of the mine ventilation system shall be set out by the operator in written
form. Revisions of the system shall be noted and updated at least annually. The
ventilation plan or revisions thereto shall be submitted to the District Manager for
review and comments upon his written request. The plan shall, where applicable,
contain the following:
(a) The mine name.
(b) The current mine map or schematic or series of mine maps or schematics of an
appropriate scale, not greater than five hundred feet to the inch, showing:
(1) Direction and quantity of principal air flows;
(2) Locations of seals used to isolate abandoned workings;
(3) Locations of areas withdrawn from the ventilation system;
(4) Locations of all main, booster and auxiliary fans not shown in
paragraph (d) of this standard.
(5) Locations of air regulators and stoppings and ventilation doors not
shown in paragraph (d) of this standard;
(6) Locations of overcasts, undercasts and other airway crossover devices
not shown in paragraph (d) of this standard;
(7) Locations of known oil or gas wells;
(8) Locations of known underground mine openings adjacent to the mine;
(9) Locations of permanent underground shops, diesel fuel storage depots,
oil fuel storage depots, hoist rooms, compressors, battery charging stations
and explosive storage facilities. Permanent facilities are those intended to
exist for one year or more; and
(10) Significant changes in the ventilation system projected for one year.
(c) Mine fan data for all active main and booster fans including manufacturer's
name, type, size, fan speed, blade setting, approximate pressure at present
operating point, and motor brake horsepower rating.
(d) Diagrams, descriptions or sketches showing how ventilation is accomplished
in each typical type of working place including the approximate quantity of air
provided, and typical size and type of auxiliary fans used.
(e) The number and type of internal combustion engine units used underground,
including make and model of unit, type of engine, make and model of engine,
brake horsepower rating of engine, and approval number.
30 C.F.R. § 57.8520.

38 FMSHRC Page 1050

included a failure to indicate air flow direction on the plan. Tr. 267. Also, the plan did not
indicate seals for a vent, though there was a vent and sealed workings. The plan needs to indicate
abandoned workings and seals. Tr. 268. Areas withdrawn from the ventilation system need to
be on the plan, too. For such areas, the plan has to inform if air is flowing through withdrawn
areas. Also, locations of known underground openings adjacent to the mine must be indicated on
the plan. Diagrams, descriptions, or sketches showing how ventilation is achieved in each
typical working place and the approximate quantity of air and the size and type of auxiliary fans,
as well as the ventilation quantity and direction of airflow for current working places at the time
of an inspection, must be provided. Still, despite the deficiencies alleged, the citation was
marked as unlikely and non-S&S because the inspector found that the air was good. Tr. 270.
However, because of the importance of the information in a mine emergency, the citation was
marked as fatal, in terms of expected injury. Id. The lack of such information would hinder a
mine rescue operation. Negligence was deemed “moderate” because the mine had submitted a
plan, and the inspector’s review of the mine’s records reflected that some of the deficiencies had
been raised to the mine at a prior time.
During cross-examination, the inspector stated that he did not believe that the plan’s
deficiencies were made knowingly. The inspector confirmed that he had been told by a mine
employee that there were abandoned areas that had been sealed off. However, the inspector did
not dispute that if it were asserted there were no seals at the mine, he could not contradict such a
claim, except for the one employee who told him there were seals. Tr. 276. The inspector
agreed that he did find a drawing in the records about the seven existing openings. Id. Asked if
such a drawing would aid a mine rescue effort, the inspector’s response was that this information
would need to be part of the ventilation plan, not merely among the mine’s records. Tr. 276-77.
As noted, the inspector agreed that if the mine had no seals, the ventilation plan need not reflect
the absence of seals.
In the course of cross-examination, the Secretary’s Counsel stipulated that the ventilation
plan does not reference mine rescue operations. Tr. 279. Respondent offered for identification
an escape and evacuation plan, proposed exhibit RX 2, and the Secretary raised an issue about its
materiality to the alleged violation. Tr. 280. Mr. Miller described it as “an Exploration and
Operation Nonspecific Escape and Evacuation Plan.” Tr. 278. Some confusion developed about
the nature of the exhibit and its materiality to the citation. The inspector could not recall if the
proposed exhibit was among the papers presented to him when he asked to see the ventilation
plan. Tr. 281. He viewed the proposed exhibit RX 2 as an escape and evacuation plan. Tr. 282.
He acknowledged that RX 2 shows some information about air flow and quantity and direction
but he could not recall if the mine’s ventilation plan was more specific or not. The inspector
could not identify whether the plan reflected in RX 2 was the plan submitted to MSHA. Tr. 283.
Despite the momentary confusion, the inspector confirmed that whatever ventilation plan was
presented to him on the day of his inspection, it had the deficiencies he described. Tr. 284. RX
2 was later admitted into evidence. Tr. 359.
The inspector considered the citation to be a recordkeeping violation. Tr. 300. Inspector
Basich expressed the view that the accuracy of a mine’s ventilation plan would be critical to
mine rescue and recovery efforts, and it could impact how quickly such operations could proceed
and such delays could create a fatal condition at the mine. He elaborated, using the example of a

38 FMSHRC Page 1051

mine fire and knowing how oxygen would be supplied to that fire, that knowing the direction
smoke moves in such an event would be important. Tr. 309.
Mr. Miller then spoke to Exhibit GX 12. He stated that his mine does not use seals. He
asserted that the employee who referred to seals meant barricades, diversions, or tarps to direct
air, but they are not seals. Tr. 314. He acknowledged that, based on what he learned from the
inspector’s testimony, the map had deficiencies. Tr. 315. He also admitted that, in order to
terminate the citation, the map had to be updated. Id. RX 2 is the map that the mine had at the
time of the citation. Tr. 315. It was Miller’s testimony that the mine made good faith efforts to
have the plan contain all the required information and this included working with an MSHA
inspector some three or four years ago, all in an attempt to have the mine’s paperwork be
compliant. On that basis, Miller believed that no negligence should be assigned to the violation.
Tr. 316. Low or moderate negligence would be unfair because the mine has worked hard with
MSHA to be in compliance on its paperwork. Miller also believed that no lost workdays should
have been marked because there was no likelihood for such an event to occur. This is because of
the site specifics, because of ways to get out of the mine, and because of the lack of fuel for a
fire, among other reasons. Tr. 318-21.
The violation is upheld. Miller essentially conceded the fact of violation. Upon
consideration, taking into account testimony regarding Miller’s prior efforts and that the record
was not clear as to the presence, or the lack of, seals, the Court deems the negligence to be
slightly less than moderate. As noted earlier, for each of the contested citations, at both mines,
these are very small mining operations, with size being a penalty factor to consider. Given these
factors a civil penalty of $75.00 is imposed.
Citation No. 8793618
Proposed Penalty: $100.00. Penalty Assessed: $50.00.
Testimony was received with regard to Citation No. 8793618, GX 6a, issued on
September 9, 2014. For this matter, citing 30 C.F.R. § 57.14100(b),28 which was in the upper
shop, the inspector observed a hook for a two-ton hoist with its safety clip incorrectly installed,
as it was on the outside of the hook. Tr. 333-34. The hoist was not being used when the
inspector observed the condition of the hook, but it was ready and available for use. Tr. 333.
The clip, when on the inside of the hook, prevents material from sliding out of it. He considered
the clip, in the condition observed, to be a safety defect. Tr. 334-35. GX 6c, a photo, displays
the clip when correctly installed. Tr. 335. The inspector marked the violation as non-S&S and
unlikely because the hook was rarely used. He determined that any injury would be lost
workdays or restricted duty because the hook was being used within its capacity. It would be
when positioning something that had been lifted when the risk of the item coming off the hook
would be greater. Tr. 336. The negligence was marked as moderate because it had not been
reported to management and the person who incorrectly installed the clip didn’t recognize that it
was incorrect. Tr. 337.
28

Section 57.14100, titled “Safety defects; examination, correction and records,”
provides, for the cited subsection: “(b) Defects on any equipment, machinery, and tools that
affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.”

38 FMSHRC Page 1052

On cross-examination by Mr. Miller, he began by focusing on the words “in a timely
manner” from the cited standard, § 57.14100(b). However, those words were not important to
the violation in this instance. The standard is directed at safety defects, and when such defects
are present, the standard directs that such defects be corrected in a timely manner. Tr. 338-39.
Jonathan Farrell testified for Respondent regarding the hoist citation and GX 6c, stating
that he had used that hoist. He agreed that the purpose of the clip is to keep a chain or strap from
sliding off the hook. However, he contended that, if one uses a chain or strap that uses the hook
fully, the clip needs to be bypassed for such circumstances and then returned to its normal
position. Clarifying his remarks, Farrell contended that the clip would then be repositioned so
that it once again acts as a safety device. Tr. 364. While he conceded that the clip is meant to be
moved back and forth, but not sideways (i.e., left or right), Farrell maintained that as a practical
matter it was so moved to accommodate such larger chains or straps. Tr. 365. Farrell contended
that the clip itself was fine; it was not replaced. Abatement was achieved by simply
repositioning it on the hook. Id. However, Farrell agreed that if the clip for the hook had been
used as depicted in GX 6c, its purpose would’ve been defeated. Tr. 366.
Mr. Miller then added his own testimony about the hook and clip citation, stating that his
experience using the clip was the same as Farrell’s. Id.
As the Secretary noted in the post-hearing brief:
Farrell [the mine’s surface superintendent] agreed that the safety hook is intended
to keep chains or straps from sliding off the hook when the hoist is in use. (Tr.
362-363). Farrell also testified that when the chains or ropes that are too large to
fit through the hook opening with the safety clip attached, that the clip is bypassed
by placing the clip outside the hook, as it was found by the inspector, and then
replacing the clip inside the hook for [subsequent] use. (Tr. 363). On crossexamination, Mr. Farrell admitted that this is not how the safety clip is designed
to be used; generally the clip moves frontwards and backwards within the bounds
of the hook and [that it] is not designed to move around the tip of the hook to the
outside. (Tr. 365). Farrell also admitted that if the hook were used in the
condition in which it was found by the inspector, that the intended safety
protections provided by the safety clip would have been defeated. (Tr. 365-366).
That the safety latch “could” have been replaced prior to use does not mean that
the latch “would” have been replaced prior to [its next] use. Respondent
admit[ted] that had the hoist been used in the condition in which it was found by
the inspector, it would have been a safety hazard. (Id.).
Sec’y Br. 16.
The violation was established. Given the small size of the mine, the infrequent use of the
hoist, and the “unlikely” gravity designation, the Court assesses a civil penalty of $50.00 for this
violation.

38 FMSHRC Page 1053

Citation No. 8793620
Proposed Penalty: $100.00. Penalty Assessed: $75.00.
Regarding Citation No. 8793620, GX 8, issued September 10, 2014, to the Sixteen to
One Mine and citing 30 C.F.R. § 57.4131(a),29 the issuing inspector observed combustible
material stored about 15 feet from the mine opening at the 800 portal. Tr. 342. GX 8c is a photo
of the condition observed by the inspector. His concern was with the wooden rails and the pallet,
per that photo. Id. As the wood appeared to be weathered, the inspector believed that condition
increased the chance of it being combustible. He concluded that the wood was more than a one
day’s supply because it was being stored there. In addition, he saw the same material there the
day before he issued the citation. Tr. 345. The hazards associated with such storage, if it were to
catch fire, are the risk of smoke entering the mine and impeding the ability to leave the mine
portal. Tr. 345. He stated that the mine “probably [had] quite a few [portals]” but the 800 portal,
which is in the photo GX 8c, is the main one. Tr. 346. Miners did work underground that day.
As noted, the mine uses natural ventilation. Though he could not recall the weather on the day
the inspector issued the citations, he remembered it “being fairly dry.” Tr. 347. The citation was
marked as unlikely and non-S&S, because he did not see any immediate ignition sources around.
In addition, while it was more than a one day’s supply, the amount was not very large. Id. Lost
workdays and restricted duty was marked because he believed that could be the effect of smoke
inhalation. Id. Negligence was marked as moderate because it had not been reported to
management.
On cross-examination, the inspector repeated that he considered the material to be more
than a one day supply, because he observed it the previous day. Tr. 349. Mr. Miller asked if the
standard’s concern was over the quantity of timber, not the time it remained at the location. The
inspector expressed that the intent was to permit such material near the portal when it is intended
to bring it into the mine, as opposed to storing it outside the portal. Tr. 350.
Regarding Citation No. 8793620, Mr. Miller stated that the amount of wood was very
small. It was used as track ties to fix rails. He agreed with the inspector’s designation of
unlikely, as there was no possibility of smoke going into the mine at that location, as the air exits
there. Tr. 370. Miller maintained that the wood the inspector saw was in transit to the mine and
that it was impractical to store it elsewhere. Tr. 368-70. He also asserted that the amount of
wood did not impede the entrance to or exit from the mine. Tr. 371. Mr. Farrell also testified
about this citation. It was his position that the standard speaks to the quantity of wood, not the
length of time it is so located. Tr. 373. He contended that the amount of wood depicted in the
photo was less than a one day’s supply, and as such he believed it could remain there
indefinitely. Id.
In the Secretary’s cross-examination of Miller, regarding the combustible material
citation, Miller did not deny that the combustible material had been as depicted in GX 8c for
more than one day. Tr. 381. He also agreed that a day’s supply of lumber will vary from day to
day, depending on the mine’s particular needs. Id.

29

This text of this standard, § 57.4131, appears above. See supra note 20.

38 FMSHRC Page 1054

The citation, issued at unlikely, non-S&S, lost workdays or restricted duty, moderate
negligence, and affecting one person, was assessed at $100.00. Given the inspector’s remarks
about the attendant circumstances,30 and the small size of the mine, a civil penalty of $75.00 is
imposed for this demonstrated violation.
Citation No. 8793621
Proposed Penalty: $100.00. Penalty Assessed: $100.00.
Inspector Boylan testified about Citation No. 8793621, GX 9, issued September 10, 2014,
at the Sixteen to One Mine for an alleged violation of 30 C.F.R. § 57.11053,31 pertaining to
30

In determining the civil penalty the Court also took into account the points and
contentions referenced in the Secretary’s post-hearing brief where it was noted:
The operator claims that the amount of wood the inspector found was minimal
and far less than a days’ supply of wood [and that] [t]he operator also claims that
air was exiting the 800 portal on the day of the citation and, accordingly, there
was no danger to miners from the accumulated combustible material. (Tr. 370).
However, even if, on that date of the citation, air was exiting the 800 portal, the
mine utilizes natural ventilation, and the direction of mine air changes with
temperature and barometric pressure would likely expose miners on a later date.
(Tr. 187). See, U.S. Steel Mining, 7 FMSHRC 1125, 1130 (1985). (Courts should
consider alleged violations in terms of continued mining operations.).
Sec’y Br. 18. Having considered those points and contentions, along with the factors noted
above, the Court determines that $75.00 is the appropriate civil penalty.
31

The cited standard, § 57.11053, titled “Escape and evacuation plans,” provides:

A specific escape and evacuation plan and revisions thereof suitable to the
conditions and mining system of the mine and showing assigned responsibilities
of all key personnel in the event of an emergency shall be developed by the
operator and set out in written form. Within 45 calendar days after promulgation
of this standard a copy of the plan and revisions thereof shall be available to the
Secretary or his authorized representative. Also, copies of the plan and revisions
thereof shall be posted at locations convenient to all persons on the surface and
underground. Such a plan shall be updated as necessary and shall be reviewed
jointly by the operator and the Secretary or his authorized representative at least
once every six months from the date of the last review. The plan shall include:
(a) Mine maps or diagrams showing directions of principal air flow,
location of escape routes and locations of existing telephones, primary
fans, primary fan controls, fire doors, ventilation doors, and refuge
chambers. Appropriate portions of such maps or diagrams shall be posted
(continued...)

38 FMSHRC Page 1055

shortcomings with the mine’s escape and evacuation plan. The plan did not illustrate escape
routes available from the working area which was then at the end of the 800 level. Tr. 351-52.
Thus, this violation was based on the escape routes not being indicated on the map. Tr. 352.
The escape and evacuation plan was posted, albeit with the cited deficiency, throughout the
mine. While at that location, the inspector asked the miners how they could get out if they
needed to escape. The miners explained how they would escape but none of it was explained on
the map. Tr. 353-54. In addition, the importance of the information is that such escape routes
need to be inspected at regular intervals. Tr. 354. However, as the miner the inspector spoke
with, Reed Miller, Mr. Miller’s son, indicated that he knew how to get out, the inspector marked
the violation as “unlikely.” Tr. 354, 357.
Still, the inspector marked the injury, if the event were to occur, as fatal. Tr. 355.
Negligence was deemed as moderate because there were postings of the plan, but there was no
update for the working area. Id. The inspector believed that RX 2 was the map he saw
underground, and about which he believed was deficient, as noted in his citation. To be
sufficient, the map needed to illustrate the paths for escape from the mine. Only the main travel
way, marked in yellow, was indicated, but two evacuation routes also needed to be listed. Tr.
359; RX 2. A single escape route is permitted only at the very beginning of a mine’s excavation,
but in such circumstances there must be a rescue chamber. Tr. 360.
On cross-examination by Mr. Miller, the inspector was shown RX 2, which was still not
an exhibit at that point in the hearing, and the inspector acknowledged seeing a pick and shovel
depiction on it. Tr. 356. However, that concession did not undercut that the violation was
clearly established. As the Secretary observed in the post-hearing brief:
At the time of the inspection, there were miners working at the end of the 800
level who, when questioned by the inspector, could not indicate a designated
escape route. . . . While there were escape routes available from the area where
the miners were working, those routes were not clear to the miners nor were they
reflected on the mine Escape and Evacuation Plan that was posted throughout the
31 (…continued)

at all shaft stations and in underground shops, lunchrooms, and elsewhere
in working areas where persons congregate;
(b) Procedures to show how the miners will be notified of emergency;
(c) An escape plan for each working area in the mine to include
instructions showing how each working area should be evacuated. Each
such plan shall be posted at appropriate shaft stations and elsewhere in
working areas where persons congregate;
(d) A fire fighting plan;
(e) Surface procedure to follow in an emergency, including the
notification of proper authorities, preparing rescue equipment, and other
equipment which may be used in rescue and recovery operations; and
(f) A statement of the availability of emergency communication and
transportation facilities, emergency power and ventilation and location of
rescue personnel and equipment.

38 FMSHRC Page 1056

mine and which was given upon request by mine personnel to the inspector. (Tr.
352-354). . . . [B]ecause in the event of an emergency, there needs to be
established escape routes so that mine rescue and emergency personnel know
where to find miners, the inspector found that the failure to designate escape
routes and mark them on the Escape and Evacuation Plan to reasonably be
expected to cause fatal injuries. (Tr. 355). And, because there was an Escape and
Evacuation Plan, but that plan had not been updated, the inspector found that the
operator had engaged in moderate negligence. (Id.).
Sec’y Br. 19.
Mr. Miller testified about the escape and evacuation citation. He contended that one
entry and exit is allowed at a mine in the “steering phases of exploration.” He asserted that the
mine was in such a phase, that is, this was an “exploration project.” Tr. 374-75. They were not
in production. He believed that RX 2 meets the standard’s requirements. Tr. 376. He added that
the location was less than 2,500 feet from the portal to the workplace. He also asserted that there
are other ways to get out of the mine, but if the mine were to designate them, MSHA would then
inspect them. Tr. 375. The government then cross-examined Mr. Miller. Referring to GX 9,
Miller stated he was referring only to his son, Reed. Tr. 376. As for the other individuals Miller
mentioned, he asserted they were not miners, but were task trained. Tr. 377. He asserted
however that those individuals were very familiar with the mine and that they knew “all the ins
and outs of it.” Id. Again, Miller asserted that no secondary escapeway is required at the mine.
The Court asked questions pertaining to GX 9 and the escape and evaluation plan. Miller
agreed that the plan did not illustrate the escape routes for the working area of the mine. He also
agreed that, per RX 2, the map of the escape and evaluation plan is depicted by the yellow line.
Tr. 382. He agreed that only a single route is shown, but maintained that only one route was
required. Id.
Further, addressing Respondent’s contentions in defense, the Secretary accurately
observes that RX 2 was a deficient Escape and Evacuation plan, noting that the
only escape route indicated on the map is the main travelway; the travelway is not
especially designated as an escape route but is a generally accepted escape route.
(Tr. 358-359). And, even though each mine is required to have two escape routes
at all times, only one is reflected on the map. (Tr. 359, 382).
Sec’y Br. 19-20.32

32

Though the Secretary of necessity addressed Respondent’s contention that the mine
was in exploration mode and therefore only one escapeway was necessary, it challenged that
assertion, noting:
The Metal/Non-Metal Program Policy Manual, §57.11050, states that the phrase
“’exploration or development’ should be used in its narrowest sense, i.e., while
(continued...)
38 FMSHRC Page 1057

The violation was established. Upon consideration, given the importance of escape and
evacuation plans for all mines, the Court imposes the same, modest penalty amount proposed by
the Secretary in the amount of $100.00.
Docket No. WEST 2015-240-M (Plumbago Mine)
Citation No. 8793801
Proposed Penalty: $100.00. Penalty Assessed: $50.00.
Inspector Rogers spoke about Citation No. 8793801, citing 30 C.F.R. § 57.11012,33
which the Court described as the “bulkhead violation.” Tr. 127, 178; GX 36a. This occurred at
Respondent’s Plumbago Mine. Tr. 129. The citation stated:
There was no bulkhead or any other form of protection, installed at the #1 raise to
prevent material from sliding down the approx. 55 degree dip angle and
contacting miners as they travel this area. This raise had been mined-out
previously and an ore chute, ladderway and some stalls were installed. The old

32

(…continued)
ore body is being initially developed, or development or exploration work is being
conducted as an extension of a currently producing mine.” (emphasis added). In
addition, §57.11050(b) requires that a mine without two escapeways have,
instead, a refuge chamber; the operator admits that it does not have a refuge
chamber. (Tr. 380). See also, Small Mine Development, 37 FMSHRC 1892,
1898 (2015) (“Given the importance the standard places upon providing
duplicative means of survival in an emergency, it makes sense that the same
protections be extended to miners who are engaged in exploration or development
work, which carries with it many of the same dangers as production mining.”).
[The] Original Sixteen to One Mine does not satisfy the definition of “exploration
or development” as defined in the Program Policy Manual. This is an old mine
with over 35 miles of tunnels. (Tr. 53). The individuals underground . . . were
not in a newly developed portion of the mine or in an area of the mine that was
being extended. (Tr. 375-376). They were working in worked-out area of the
mine within 2500 feet of the portal (Tr. 374). The mine operator cannot, by
improperly claiming exploration, deny these workers, and other miners entering
the mine, two safe means of escape.
Sec’y Br. 20-21. The Court agrees with the Secretary’s observations about the standard’s
requirements.
33

30 C.F.R. § 57.11012, titled “Protection for openings around travelways” provides:
“Openings above, below, or near travelways through which persons or materials may fall shall be
protected by railings, barriers, or covers. Where it is impractical to install such protective
devices, adequate warning signals shall be installed.”

38 FMSHRC Page 1058

dilapidated timber and material build-up, posed a fall of material hazard to miners
traveling the main haulage.
For this matter, Respondent agreed with the condition and practice cited, including
sections 10 and 11, listing the gravity as unlikely and the negligence as moderate, except where
the citation asserted that “[t]he old dilapidated timber material buildup posed a fall of material
hazard to miners.” Tr. 127. The area cited involved a chute and a ladder. Tr. 136. The inspector
cited a mined out area where he found either a slick or a slide or a hanging wall that was on the
primary travel way. That travelway was for ore cars or personnel on foot. There were no
bulkheads34 and therefore any materials, if they came out, would come at the hip or mid-torso
level of a miner. Also the drift (i.e., tunnel) was not very wide, only about 8 feet or less,
therefore there would be exposure every time one passed that area. Tr. 129.
Describing the area of the cited condition, the inspector stated that the travelway had a 55
degree angle and there was a ladder that went up that raise. See GX 36C. He asserted that
“[t]here appeared to be some loose material that was on the right rib.” Tr. 131. He conceded
that the material he was concerned about wasn’t probably all that loose, but if any did come
down it would come into the drift. Tr. 132. Because the materials were not “all that loose,” he
marked the violation as unlikely and non-S&S. Id. Negligence was marked as moderate,
because in his estimation there did not appear to be a high degree of hazard. Id. It was the
failure to install a bulkhead that drove his conclusion that the negligence was moderate.
Similarly, he marked the injury as lost workdays or restricted duty because the angle any
material would take was not severe. This led him to conclude that no fatality would result. Tr.
132-33. Respondent was permitted to install a nine-wire type (i.e., material similar to a chain
link fence) bulkhead to remedy the problem, as that means would also allow one to visualize the
area above. This abatement satisfied the inspector because, again, his concern was that smaller
materials could strike a miner. If larger items had been his concern that remedy would not have
been acceptable. Tr. 134.
On cross-examination, the inspector stated that he saw other areas that had a raise, where
bulkheads had been installed for support. He reaffirmed that he did not climb the ladder at that
location. Tr. 135. He agreed the ladder was not recently installed and he found no troubling35
amount of rock fall below or around it. The inspector did not know what the angle of repose was
of the rock left in the chute or raise. Tr. 136.
The inspector believed that the Plumbago Mine had two to three employees. Tr. 137. In
his opinion, they were decent hands, that is, fairly knowledgeable individuals. Id.

34

A bulkhead, typically, is used to barricade and block an area off for ventilation or to
address some other potential hazard. Tr. 130. In this instance, its function would be to stop
materials from going into the drift. Tr. 131.
35

Respondent employed the word “troubling” in his question to the inspector. Tr. 136.

38 FMSHRC Page 1059

The Court had a few questions, beginning with GX 36c, the photograph associated with
the citation. The inspector agreed that it was taken from the bottom, and directed upwards. His
concern was material falling down, from the top area of the photo. Tr. 138. The bulkhead’s
function, being placed at the bottom, where the inspector was standing when taking the photo,
would be to act as a barrier for anything which might fall down. Tr. 139. This area, within
which things could fall down, was about 17 and a half feet wide. The opening from where he
was standing was from left to right, and he was about in the centerline of that. Id. The raise in
the photo goes up at an angle. Although the area cited had been mined out, it was along a
primary travelway. Tr. 140. Without the bulkhead, material falling from above could potentially
strike miners traveling by that area. Tr. 141. Again, abatement was achieved by installing a wire
mesh bulkhead, not a wood bulkhead. The bulkhead would span the approximate 17 feet
comprising the bottom length of the travel area. Tr. 142.
In his defense to the bulkhead citation, Respondent Miller testified that he believed
Plumbago is not a mine, but rather an abandoned piece of property, that once was a mine.36 Tr.
178. It was his view that no bulkhead was needed because there is no evidence of debris below.
Tr. 179. Thus, he asserted that nothing could fall down from above. Respondent contended that
the ground above was very competent and therefore nothing could fall out from above. As
noted, Respondent took issue with calling Plumbago a mine. Rather, he asserted that it is a
tunnel. There was no intention of mining. Tr. 180. Respondent asserted that there was only one
stull present. It appears to the left side of the ladder. A stull is a single vertical pole. It is used
instead of having caps or sets or rock bolts. Id. Respondent Miller, while admitting that he has
not gone up the ladder, stated that someone else had done so. He also asserted that the scene
captured in the photo exhibit has probably been that way for more than 30 years. Tr. 181. Thus,
having assessed the situation, Respondent maintained that it would be frivolous to install a
barricade. Tr. 182. Respondent asserted that generalities about other mines simply did not apply
to this situation, noting that the inspector admitted that not every raise needs a bulkhead and that
he saw no loose material. Id. Accordingly, he compromised with the inspector by installing the
chain link fence, though that too, in his view, was completely unnecessary. Tr. 183.
On cross-examination, Mr. Miller again took issue with a question which included
describing the cited area as part of a mine. The Court interjected that the inspector agreed that
the cited location was not an active mine, but that miners traveled along the area to get to the
mine. Miller agreed with that description. Tr. 184. The problem with that claim is that such
locations are indisputably part of the mine and Respondent’s contention is not worthy of
additional comment. Miller, agreeing that the angle of the dip was 55 degrees and that the angle
of repose was 35 to 37 degrees, still did not agree that anything that came loose from the rise
would fall down it. However, his answer was not helpful to his position, as he asserted that
“[t]here’s a big 17 feet. We don’t know what else is up [there] . . . [but he then agreed that] if
you throw a ball up, it’s going to come down.” Tr. 185. Counsel for the Secretary then asked,
“[I]f a rock would come loose or piece of wood would come loose or anything else that happens
to be up in this old mined out section would come loose . . . there’s nothing to stop it from
36

All claims made by the Respondent that the Plumbago or the Original Sixteen to One
Mine are not mines are without any merit. The acknowledged use and purpose of these is to
mine gold ore.

38 FMSHRC Page 1060

coming out of the rise, correct?” Tr. 186. Critically, Miller acknowledged that it was
“absolutely true. That is true.” Id.
Upon consideration, the violation was clearly established, but given the small size of the
mine, that the condition had been that way, and uncited, for a very long period of time, and in
consideration of the inspector’s evaluations of gravity and negligence, including that it was,
properly, deemed non-S&S, a penalty of $50.00 is imposed.
Citation No. 8793802
Proposed Penalty: $100.00. Penalty Assessed: $50.00.
Citation No. 8793802, GX 37, was issued on October 22, 2014, also at the Plumbago
Mine. Cited was standard 30 C.F.R. § 57.8527,37 for a failure to conduct oxygen testing. Tr.
145. Upon speaking with the miners, including Ms. Rae Bell, Respondent’s office manager, the
inspector determined none of them were aware of any such testing being done. Id. The
inspector stated that he would not enter any mine without an oxygen detector. Tr. 146. This
mine utilizes “natural ventilation,” meaning that its ventilation is non-mechanical. Tr. 147.
Oxygen testing is done to make sure miners have a minimum of 19.5% oxygen. Using his
oxygen detector, the inspector found the oxygen level to be 20.6%. While the frequency of
testing depends upon the particular metal/nonmetal mine, he believed that, at a minimum, such
testing should occur weekly. Natural ventilation, he stated, only increases the importance of
such testing because old workings, such as in this instance, can produce gasses. Tr. 149. Here,
he found no evidence that any such testing had been done. This included, as noted, asking about
the issue. Id.
Upon cross-exam, Respondent asked about the types of devices that would satisfy the
standard, and the inspector (Rogers) gave some examples of such devices, some of which were
multi-gas detectors. A flame safety lamp would also suffice. Tr. 150. The Court pointed out
that the standard commands that such devices shall be used. The Inspector agreed that the
Plumbago Mine is a non-gassy mine. Tr. 152.
In his defense, Miller stated that the mine is non-gassy, that no blasting takes place, that
there was only a very small crew (2 or 3 persons) working, and that the climate is “consistent and
predictable.” There are only occasional changes in the barometric pressures. For short periods
there can be stagnant air. During winter, air is entering the mine, while in the summer it is
coming out. Further, Miller stated that he has a flame safety gas lamp, which he has used often
enough to inform himself that there is no oxygen problem at this site. In addition, some of those
working in the mine, including Miller’s son, wear a device that is set to alarm at 19.6% and that
device has never been triggered. Tr. 187-88. Miller’s overarching point was that, as there are
millions of cubic feet of open space and the oxygen levels are always at 20.6%, testing the air is
pointless. Tr. 188. On cross-examination by the Secretary, Miller affirmed that he has tested for
oxygen at the Plumbago Mine. He stated that he usually tested once a week and that he had an
oxygen tester until he purchased the small detector device he referred to during his direct
37

Section 57.8527, “Oxygen-deficiency testing,” provides: “Flame safety lamps or other
suitable devices shall be used to test for acute oxygen deficiency.”

38 FMSHRC Page 1061

testimony in defense. In response to further questions, Miller stated that he used a flame safety
lamp to test for oxygen around May 2014, but now he relies upon the other, new, device.38 Tr.
192. However, at the time of the citation’s issuance, he only had the flame safety lamp to detect
for oxygen. Tr. 193.
Asked about his practice of testing for oxygen when opening up new areas of the tunnels,
Miller stated that they did not test for oxygen because there was no need to do such tests, as the
mine has open stopes throughout, with raises going up every hundred feet or so. Tr. 194. In what
may fairly be described as an afterthought, Mr. Miller brought up that the miners usually carry a
BIC-type lighter, as may used by those who smoke cigarettes, and his belief that such lighters are
“suitable” as detectors for bad air. Tr. 196-97.
Inspector Rogers was then recalled and asked about the use of BIC-type cigarette lighters
as a suitable oxygen testing device. While such lighters can be indicators of oxygen, he stated
that the flame on them will not illuminate when oxygen levels are around 16%, but the MSHA
standard requires oxygen to be at 19.5%. Therefore, the device’s use would not be sufficiently
protective. In candor, the inspector admitted that back in the 1970s he used such cigarette
lighters to check for oxygen. Tr. 200-01. The BIC lighter issue aside, the inspector stated that
when he issued his citation, the miners told him they were unaware of such testing for oxygen
being done, and neither the lead miner nor Mr. Miller later asserted to him that they were using
suitable devices to test for oxygen. Tr. 201.
The violation was established but given the mine’s small size, that the gravity was
marked as unlikely, that it was non-S&S, and that the Court, based on Mr. Miller’s testimony,
considered the negligence to be low for this matter, a civil penalty of $50.00 is imposed.

38

Miller did not precisely identify the detection device, being uncertain about its name.
Instead, he described it as a “little yellow device” that he bought in 2015 that tests for oxygen
and cost about $200.00. Tr. 192-93.

38 FMSHRC Page 1062

Docket No. WEST 2015-251-M (Sixteen to One Mine)
Citation No. 8793805
Proposed Penalty: $243.00. Penalty Assessed: $150.00.
MSHA Inspector Stephen P. Rogers also testified for the Secretary. Rodgers has 18 years
of employment with MSHA and significant mining experience apart from his years with MSHA.
Tr. 85-89. Directed to Citation No. 8793805, issued November 4, 2014, Rodgers, citing 30
C.F.R. § 57.6101(a),39 issued it upon finding combustible materials — grass, brush, wood, and
rubbish — within 25 feet of a powder magazine. GX 13c; Tr. 89. The concern is that a fire
could propagate to that area and create an explosive hazard to the magazine, which was a
blasting cap magazine. The inspector took measurements of the proximity of the combustible
materials to the magazine, and Respondent stipulated that the material was within 25 feet of the
magazine. Tr. 92. Still, the inspector found the gravity to be unlikely and also non-S&S. This
was due to the lack of an ignition source for the cited material, such as a forest fire or vehicles in
the area. Further, he noted that a lot of the brush had been cut back, so he concluded that it was
not reasonably likely. Tr. 93. As the matter involved explosives, he did not feel that he could
legitimately rate it any lower, as the “no lost workdays” category is primarily reserved for
paperwork type violations. If a fire were to occur around a magazine, the practice is to simply
get away from the area. One does not try to fight such a fire when explosives are involved. Tr.
94. The inspector did mark the negligence as “high,” explaining that a powderman, that is, one
who is handling explosives, has great responsibility in such matters, which includes making sure
that the magazine area is clean and clear. Id. On cross-examination, the inspector stated that the
most likely source of a problem developing would be in connection with a forest fire occurring.
While the inspector acknowledged that some work at cleaning up the area had been done, he did
not view it as a “work in progress.” Tr. 98. The inspector’s notes also reflect that the condition
was visible from the main road and therefore easily apparent to the mine operator. Tr. 101. The
inspector did agree that his notes reflect that the mine operator had been making some efforts to
clean up the area, but that the work had not been completed. Tr. 103.
Respondent, in its defense to this citation, called Mr. Miller. Miller testified that this was
“a work in progress.” Tr. 154. He stated that the mine was aware of the issue. However, he
stated that something must have interrupted the effort, and that something else took precedence.
Also, he stated that the wooden spool was not within 25 feet, that the 55 gallon drum had some
trash in it and was to be removed later, and that the 2x4’s, in his opinion, could not have
presented a significant fuel source. Tr. 155. He also stated that non-els (non-electric blasting
39

Section 57.6101, titled “Areas around explosive material storage facilities,” provides:

(a) Areas surrounding storage facilities for explosive material shall be clear of
rubbish, brush, dry grass, and trees for 25 feet in all directions, except that live
trees 10 feet or taller need not be removed.
(b) Other combustibles shall not be stored or allowed to accumulate within 50 feet
of explosive material. Combustible liquids shall be stored in a manner that
ensures drainage will occur away from the explosive material storage facility in
case of tank rupture.

38 FMSHRC Page 1063

caps) are not self-detonating and that his recollection was that the inspector expressed his main
concern as a forest fire. He believed that there was “no possibility” that a fire could ignite this.
Id. In fact, he added that a disposal method for old explosives is to burn them. Tr. 156.
However, he acknowledged the importance of clearing brush from around a magazine. Id. He
also stated that there was very little fuel near the magazine and that the photo exhibit, GX 13,
does not accurately represent the conditions that were present. Tr. 157. Thus, as the miners are
there every day and are therefore more familiar with the situation, he viewed the condition as
very remote and highly unlikely to occur. In the Secretary’s cross-examination of Mr. Miller,
Miller acknowledged that the condition was visible every day from the road. Tr. 160. He
reaffirmed his view that there was not sufficient brush to justify the citation’s issuance. In his
view, the only real trash was the 2x4’s he mentioned earlier. As to the Secretary’s claim of brush
close to the magazine, Miller described it as “green” and added that, if it’s green, it’s not brush,
and it need not be removed. Tr. 161. Thus, he believed that the issue was minimal, stating that
the grass didn’t appear as in the photo and that it was clipped very low with a Weedeater. Tr.
162. However, he admitted that CAL-OSHA had been out and told him that the area needed to
be trimmed. Tr. 163. Again, he stated that the area had been considerably cleaned up since then
and that CAL-OSHA did not issue a citation. He conceded that there had been a drought in the
area for a long time. Id.
Following that, the Secretary recalled Inspector Rogers. Tr. 164. Redirected to GX 13c,
he was asked about whether there was vegetation that he considered to be brush and therefore
needed to be cleaned. He referred to his notes, and they reflected that he tested some of the
brush to make sure that it was dry and crumply, not wet-type material. Tr. 165. Speaking to the
material in the photo, GX 13c, to the right of the magazine, he concluded that none of that was
acceptable. It had to be removed as in his view it could start a fire. Tr. 166.
Because this small mining operation was making some efforts at cleaning up the brush,
coupled with the inspector’s admission that there were no immediate ignition sources observed,
the Court views the negligence to be moderate, not high. Considering that view of the
negligence and the small size of the mine, the Court imposes a penalty of $150.00 for this
violation.

38 FMSHRC Page 1064

Citation No. 8793806
Proposed Penalty: $100.00. Penalty Assessed: $75.00.
Inspector Rogers testified regarding Citation No. 8793806, issued November 4, 2014, and
citing 30 C.F.R. § 57.6132(a)(3).40 GX 14. The particular cited subsection requires that
magazines are to be bullet resistant. The cited magazine is the same one cited in Citation No.
8793805, which contained blasting caps. Tr. 104-05. The inspector stated that the magazine was
not bullet resistant as it had a steel exterior of about 1/8 of an inch with an interior lining of about
1/2 an inch of plywood. Tr. 105. In contrast, the ATF standard requires magazines to have a 1/4
of an inch of steel and 2 inches of hardwood. Tr. 106. Respondent stipulated that the cited
magazine’s exterior was 1/8 inch thick steel and it was lined with plywood. Tr. 121-22. The
hazard is that if one were to shoot at the magazine, a bullet could penetrate it and detonate the
explosives inside. The inspector acknowledged the scenario was unlikely as the mine’s gate is
locked and no hunting is permitted on the privately-owned land. Tr. 107. Negligence was also

40

30 C.F.R. § 57.6132, titled “Magazine requirements,” provides:

(a) Magazines shall be—
(1) Structurally sound;
(2) Noncombustible or the exterior covered with fire-resistant material;
(3) Bullet resistant;
(4) Made of nonsparking material on the inside;
(5) Ventilated to control dampness and excessive heating within the
magazine;
(6) Posted with the appropriate United States Department of
Transportation placards or other appropriate warning signs that indicate
the contents and are visible from each approach, so located that a bullet
passing through any of the signs will not strike the magazine;
(7) Kept clean and dry inside;
(8) Unlighted or lighted by devices that are specifically designed for use in
magazines and which do not create a fire or explosion hazard;
(9) Unheated or heated only with devices that do not create a fire or
explosion hazard;
(10) Locked when unattended; and
(11) Used exclusively for the storage of explosive material except for
essential nonsparking equipment used for the operation of the magazine.
(b) Metal magazines shall be equipped with electrical bonding connections
between all conductive portions so the entire structure is at the same electrical
potential. Suitable electrical bonding methods include welding, riveting, or the
use of securely tightened bolts where individual metal portions are joined.
Conductive portions of nonmetal magazines shall be grounded.
(c) Electrical switches and outlets shall be located on the outside of the magazine.
30 C.F.R. § 57.6132 (emphasis added).

38 FMSHRC Page 1065

evaluated as low as the magazine had been there for years, yet was not cited in previous
inspections.
On cross-examination, the inspector stated that the cited magazine was a Class 2, which
refers to a surface portable. Tr. 109, 111. There was another Class 2 magazine on the property,
but it met the ATF standard. Tr. 110. The Respondent apparently filed paperwork with the fire
marshall which listed the magazine as a Class 3 or 4 magazine. Tr. 112. Although the
Respondent attempted to show that blasting agents need only be stored in a Class 4 magazine,
the MSHA standard requires that the magazine must be bullet resistant. Tr. 114. MSHA accepts
only Class 1 and 2 magazines. The inspector opined that, because the detonators were stored
only in Ziploc bags, they would mass detonate. Tr. 117. In determining that the cited magazine
did not meet the MSHA standard for bullet resistance, the Inspector relied upon the ATF and
IME (Institute of Makers of Explosives) standards. Tr. 106, 121. Asked about the inspector’s
view that the magazine provided less protection to mine personnel than a bullet resistant one
would, the inspector stated that the bullet resistant magazine would reduce the likelihood of a
projectile penetrating the magazine. Therefore, the inspector’s concern was focused on the
construction of the magazine, not its particular location. Tr. 125.
In his testimony related to this citation, involving the thickness of the metal and the
wood, and referring to Ex. 14, Mr. Miller stated that these were non-el detonating caps, and it
was his view that they were “legal” as ATF inspected this, that is the thickness, the type of lock,
etc. Tr.168. Miller’s perspective was that ATF’s view overrides MSHA’s requirements. Id.
Miller then proposed to enter as an exhibit a three page email between Respondent’s employee,
Rae Bell Abrogast, and Inspector Rogers. This was admitted as RX 1. Tr. 173.41 This was
offered as mitigating evidence, with the purpose of showing that detonators that will not mass
detonate may be stored in a Class 4 magazine. Miller maintained that this magazine had passed
inspection for “years and years and years.” Tr. 171-72. To abate the citation, Respondent had all
of the explosives removed from it. Tr. 172.
This citation was assessed at $100.00. Upon consideration of the statutory criteria, the
mine’s small size, and Mr. Miller’s testimony on this matter, including that the magazine had not
been cited in previous inspections, the Court imposes a civil penalty in the amount of $75.00.

41

The Court raised an issue about the proposed exhibit, because the email is dated June
15, 2015, but the citation was issued November 14, 2014. Therefore it was unclear if the email
related to Citation No. 8793806. Tr. 174. However, ultimately, the Court decided to admit the
exhibit. That said, the Court expressed that it could be given little weight because OSHA’s and
ATF’s views do not control. The Court did not decide then the impact of such information in
evaluating gravity or negligence. Tr. 176.

38 FMSHRC Page 1066

Docket No. WEST 2015-381-M (Plumbago Mine)
Citation No. 8698267
Proposed Penalty: $2,000.00. Penalty Assessed: $2,000.00.
Inspector Daniel Boylan spoke to Citation No. 8698267, GX 38a, issued June 25, 2014,
citing section 103(a) of the Mine Act.42 This was issued because of the alleged denial of entry to
conduct an inspection. The inspector was at the Plumbago Mine with Inspector Jason Jeno for a
compliance follow-up visit. That related to miner training and the training plan and to make sure
that the miners had been withdrawn per the previous order. Tr. 600. When they arrived, they
found that miners were working at the mine. Tr. 601. Mr. Miller then arrived at the site. The
inspectors talked with the miners to determine why they were present, and they also examined
some documents to determine if there were records of training. Mr. Miller asked to speak with
the inspectors.
According to Inspector Boylan’s testimony, while Miller was initially cordial, the
inspector stated that Miller’s attitude changed after the inspectors asked if a miners’ rep was
available to be present for such conversation. Miller, the inspector stated, informed that he
would do the talking, not the inspectors. Tr. 603. The ensuing conversation became heated and
Mr. Miller was angry, again, according to the inspector. The inspector stated that Miller asserted
that there was no jurisdiction for their presence, Tr. 604, a perpetual assertion of Miller, which,
as noted, was reasserted in Respondent’s post-hearing briefs.
The inspectors informed Miller that he should direct his jurisdiction contentions to the
MSHA District Office, not to them. Id. Miller then walked away and told his employees not to
talk with the inspectors and for them to go home. Miller told the inspectors he was not talking
with them anymore. With everyone leaving the mine site, the inspectors then left, too. Tr. 606.
As all the employees had departed, the inspectors could not continue the inspection. The citation,
reflected in GX 38, was issued as a violation of the Mine Act, and as such no safety standard was
invoked. It was marked as non-S&S, no likelihood, and no lost workdays. However, it was also
marked as high negligence, because Miller was well aware of MSHA’s right to inspect. Tr. 607.
Citation Nos. 8698267 and 8698268 were each issued on June 25th, and for both, the
inspector recommended a special assessment. This was because the inspector viewed the
negligence involved for these two as “elevated.” Elaborating, the inspector stated that Citation
No. 8698268, involving the second instance of miners working in the face of an order, was
associated with the need for withdrawal for the training to be conducted. The negligence for
Citation No. 8698267 was elevated, the inspector maintained, because it is common knowledge
that one may not impede MSHA inspections. Tr. 609.
The Court noted that, in making penalty determinations, it does not make “special
assessments,” but instead looks to the statutory penalty criteria only. In that regard it asked the
inspector to further explain the basis of his “high negligence” designation. The inspector stated
42

Citation Nos. 8698267 and 8698268 were discussed together at the hearing and are so
presented here.

38 FMSHRC Page 1067

that he found no mitigating factors and that Miller knew of MSHA’s right to inspect. Tr. 610-11.
On further cross-examination, the inspector stated that he had to leave the mine site to get the
approval for the “impeding” citation. This required traveling some distance away from the mine,
as the cell phone coverage was poor at the mine site.43 Tr. 613.
Denial of entry to conduct an inspection, as occurred here, is a very serious violation.
Upon consideration of the record evidence for this matter, the Court finds that the proposed
penalty of $2,000.00 remains appropriate and is so imposed.
Citation No. 8698268
Proposed Penalty: $2,000.00. Penalty Assessed: $2,000.00.
Citation No. 8698268, GX 39, was issued June 25, 2014, at the Plumbago Mine. Tr. 52627. Four miners were at the mine at that time, moving a locomotive and working in the shop.
For this matter, too, the earlier mentioned 104(g)(1) order, see discussion supra pp. 16-17, was
still in effect, and because of that no miners should have been working. The citation, issued as a
violation of the Mine Act itself, as opposed to a specific safety standard, was marked as no lost
workdays, no likelihood, and non-S&S. However it was also marked as “reckless disregard.”
That last designation was used because it was the second instance of the mine working in the
face of an order. Tr. 528. The inspector viewed it as demonstrating no apparent care in terms of
abating the original order. Id. Again, the Plumbago Mine had not submitted a training plan to
MSHA. Upon inquiring about any training they may have received, the inspector found some
documents, but no “5000” training forms. Instead there was only something “scribbled off” with
“Plumbago” written on the top of the form. Tr. 529. The form that was presented to him did not
indicate that the required training had been completed, nor did it demonstrate that newly hired
experienced miner training had been done. A proper form needs to show various numbers of
training categories and certification that they had been done. The form that was presented to him
had none of those items. Tr. 530.
Mr. Miller did not ask any questions of the inspector about Citation No. 8698268. As
noted, this citation involved the assertion of working in the face of an order. Tr. 546. Mr. Miller
again asserted that the required training was in fact given.
In cross-examination about Citation No. 8698268, again, the second citation involving
working in the face of a withdrawal order, Miller acknowledged that he had knowledge that his
men were told to leave the mine and that they needed to be trained, but he added that they had
been working for him for years. When pressed about whether at that time he knew of the
withdrawal order, Miller stated he did not know, and that he did not know “when [he] was
delivered these final orders.” Tr. 563. The Court did not find this claim to be credible. When
asked to acknowledge the state of his awareness about the order’s issuance versus receipt of the
order itself, he stated there was a “huge difference” between “having something written and
something orally given.” Tr. 564. He did admit that he knew MSHA had issues with the

43

Initially, Mr. Miller expressed concern about the time when the citation was issued, but
the day it was issued, June 25th, was not in dispute. Tr. 615.

38 FMSHRC Page 1068

training of miners at the Plumbago Mine. Id. However, he stated that he did not know that he
had received the first citation for working in the face of a withdrawal order. Id.
Mr. Miller then testified again about these matters. Tr. 620. He stated that he is well
aware of MSHA’s right to inspect but contended that he did not impede or deny their inspection.
Tr. 624. He also stated that he is the president and director of the Sixteen to One Mine, and a
shareholder, but not the owner. Tr. 621. When asked about his role at the Plumbago Mine, he
stated that he is responsible for all operations, and the one who oversees, but that he is not the
“day-to-day person” at the mine. Tr. 622. The latter tasks are done by competent, qualified, and
lead miners under him. Id. He reiterated that he did not and has not ever told employees to leave
mine property due to the presence of a mine inspector. Tr. 624. He also denied that he told the
miners to leave and lock the mine entrance gate. Tr. 624-25. Instead, Miller stated that his
miners told him that they did not want to stay at the mine with the inspectors present. Tr. 626.
He told them they could stay or leave, as they preferred, because that is the mine’s policy on
such matters. Tr. 627. Elaborating, Miller stated that the mine’s policy is that miners can leave
“[f]or any reason that personally upsets them.” Tr. 627. Yet, the miners were still paid for the
day, even though they left the mine. Tr. 631. The policy, Miller contended, applies for any
reason and is not just about mine inspectors. Tr. 627. Miller did not deny that he told the
inspector that he was not going to talk about the issue any longer and that he then left in his
truck. Tr. 628-29.
As noted, these events occurred at the Plumbago Mine. Tr. 631. Miller stated that he then
drove back to the Sixteen to One mine office. Miller maintained that he could not recall if he
was given the citation on June 25th. Tr. 632. Miller stated that, when he concluded that the
conversation with the inspector would not “go anywhere,” he decided that he would leave the
mine, and left it to the miners as to whether they wished to remain or leave. Tr. 633. Miller
admitted that he may have acted “a little bit excited,” but he was not confrontational or
threatening to the inspector. Tr. 635. Miller denied that he arrived at the mine on that day in
order to challenge the jurisdiction of the inspectors. Tr. 638. However, once there, he admitted
that he told the inspectors, politely, that they had no jurisdiction over the property. Tr. 638-39.
He also admitted that, once they started talking, he knew the inspectors were there for the
purpose of conducting an inspection. Tr. 639-40. It was Miller’s statement that he chose to
leave the mine property, but he agreed that he could have stayed and allowed the MSHA
inspectors to finish their inspection. Tr. 643.
In light of Mr. Miller’s testimony, Inspector Boylan was then recalled. He contradicted
Miller’s testimony, stating that the miners were instructed to leave the mine by Mr. Miller. Tr.
645. Further, he never heard Miller tell the miners they could stay or leave as they wished, nor
did he hear any miners state that they didn’t want to remain at the site. The inspector also took
note that the Mine Act provides for miners to still receive their pay when a withdrawal order is
issued and he so advised the miners of that. Thus, the inspector was firm that Miller told the
miners to leave the site and to lock the gate behind them. Tr. 646.
The impeding order was subsequently lifted, upon the mine operator allowing the
inspection to proceed. Tr. 647. Upon handing the citation for impeding to Miller, he relented,
the inspection began, and the order was lifted. Tr. 648. On subsequent re-cross-examination, the

38 FMSHRC Page 1069

inspector agreed that he knew that all the paperwork for Plumbago was at the Sixteen to One
office, so there was no need to return to the Plumbago Mine for that issue. Thus, the inspector
admitted that the Plumbago Mine records were kept at the Sixteen to One Mine and that, as it
was a matter of paperwork, he could obtain the records for the Plumbago there.
However, the inspector stated that he still elected to go to the Plumbago mine site first.
Tr. 651. When asked why he chose to go to the Plumbago, the inspector stated that, while that
mine tends to keep its records at the Sixteen to One mine office, he had a second reason for
going to the Plumbago site, namely to determine if miners were working in defiance of the order
issued at the Plumbago. Tr. 653. Thus, he had a valid, independent, reason to return to the site.
The Court notes that this was certainly his legitimate prerogative. The inspector added that when
they went to the Plumbago, he and the other inspector were presented with some documents but,
as noted earlier, that those documents were “nowhere near [the] training documents required.”
Tr. 654.
After considering the credibility of the inspector and that of Mr. Miller, at least as to
these two matters, Citation Nos. 8698267 and 8698268, the Court finds that the Inspector’s
version of the events is more credible. As noted in the discussion for Citation No. 8698267,
denial of entry to conduct an inspection, as occurred here, is a very serious violation. Upon
consideration of the record evidence for this matter and the statutory criteria, the Court finds that
a civil penalty of $2,000.00 remains fully appropriate for Citation No. 8698268.
Settled and Vacated Citations
At the hearing, seven citations were settled or vacated. Respondent withdrew its contest
of the following citations and agreed to pay the originally proposed penalty: Citation Nos.
8698193 (WEST 2014-527-M), 8783100 (WEST 2014-527-M), and 8793807 (WEST 2015-251M).
For Citation No. 8793616 (WEST 2015-78-M), the Secretary agreed to modify the
citation to reflect lost workdays or restricted duty from the original designation as fatal, with the
penalty remaining as proposed. The Secretary also agreed to modify Citation No. 8698194
(WEST 2014-527-M) to no likelihood, no lost workdays, and low negligence and to reduce the
penalty to $50.00.44
Citation No. 8698227 (WEST 2015-78-M) was accepted by Respondent, and the
Secretary agreed to remove the following sentence from Section 8 of the citation: “This mine has
been in operation in the past during times of favorable commodities prices, and the mine is
having rehabilitation activity been [sic] performed.”
44

For the record, this matter involved 30 C.F.R. § 57.16001, titled “Stacking and storage
of materials,” which provides that supplies shall not be stacked or stored in a manner which
creates tripping or fall-of-material hazards. The inspector found, at the second level of the upper
shop, an above-ground location, materials were stacked in front of shelves which he believed
created a tripping hazard for those accessing the shelves. Tr. 328. It was appropriate to settle
this matter.

38 FMSHRC Page 1070

Finally, in an exercise of his prosecutorial discretion as recognized in RBK Construction,
Inc., 15 FMSHRC 2099 (Oct. 1993), the Secretary vacated Citation No. 8793619 (WEST 2015158-M) at hearing. Having been vacated by the Secretary, Citation No. 8793619 is hereby
DISMISSED WITH PREJUDICE.
The Court has considered the representations submitted in these cases and concludes that
the proffered settled citations are appropriate under the criteria set forth in section 110(i) of the
Act.
Summary of Violations and Penalties Imposed by the Court
Docket No. WEST 2014-527-M
Citation/Order No.
8698193
8783098
8783099
8783100
8698194
TOTAL:

Assessment
$100.00
$100.00
$100.00
$100.00
$100.00
$500.00

Settlement Amount
$100.00
$50.00
DISMISSED
$100.00
$50.00
$300.00

Assessment
$5,000.00
$112.00
$5,112.00

Settlement Amount
$500.00
$75.00
$575.00

Assessment
$112.00
$100.00
$100.00
$100.00
$243.00
$308.00
$308.00
$100.00
$112.00
$100.00
$100.00
$100.00
$100.00

Settlement Amount
$112.00
$100.00
$100.00
$100.00
$243.00
$154.00
$154.00
$100.00
$112.00
$75.00
$100.00
$75.00
$100.00

Docket No. WEST 2015-77-M
Citation/Order No.
8698235
8698236
TOTAL:
Docket No. WEST 2015-78-M
Citation/Order No.
8698224
8698225
8698226
8698227
8698228
8698229
8698230
8698231
8698232
8698233
8698234
8785247
8793615

38 FMSHRC Page 1071

8793616
8793617
TOTAL:

$100.00
$100.00
$2,083.00

$100.00
$50.00
$1,675.00

Assessment
$100.00
$100.00
$100.00
$100.00
$100.00
$100.00
$100.00
$700.00

Settlement Amount
$25.00
$50.00
VACATED
$50.00
$75.00
$75.00
$100.00
$375.00

Assessment
$100.00
$100.00
$200.00

Settlement Amount
$50.00
$50.00
$100.00

Assessment
$243.00
$100.00
$100.00
$443.00

Settlement Amount
$150.00
$75.00
$100.00
$325.00

Assessment
$2,000.00
$2,000.00
$4,000.00

Settlement Amount
$2,000.00
$2,000.00
$4,000.00

Docket No. WEST 2015-158-M
Citation/Order No.
8785248
8793618
8793619
8785249
8793620
8785250
8793621
TOTAL:
Docket No. WEST 2015-240-M
Citation/Order No.
8793801
8793802
TOTAL:
Docket No. WEST 2015-251-M
Citation/Order No.
8793805
8793806
8793807
TOTAL:
Docket No. WEST 2015-381-M
Citation/Order No.
8698267
8698268
TOTAL:

TOTAL PENALTY ASSESSED BY THE COURT:

38 FMSHRC Page 1072

$7,350.00

ORDER
It is ORDERED that Citation No. 8793616 be MODIFIED to reduce the reasonably
expected injury from fatal to lost workdays or restricted duty.
It is ORDERED that Citation No. 8698194 be MODIFIED to reduce the likelihood of
injury or illness to no likelihood, to reduce the reasonably expected injury to no lost workdays,
and to reduce the level of negligence to low negligence.
It is ORDERED that Citation No. 8698227 be MODIFIED to remove the following
sentence from Section 8 of the citation: “This mine has been in operation in the past during times
of favorable commodities prices, and the mine is having rehabilitation activity been [sic]
performed.”
Respondent Original Sixteen to One Mine, Inc., is ORDERED to pay a total civil penalty
of $7,350.00 within 30 days of the date of this decision.45 Upon receipt of payment, this case is
DISMISSED.

/s/ William B. Moran
William B. Moran
Administrative Law Judge
Distribution:
Michele A. Horn, Esq., U.S. Department of Labor, Office of the Solicitor, 1224 Speer
Boulevard, Suite 216, Denver, CO 80204-3518
Michael M. Miller, Original Sixteen to One Mine, Inc., 527 Miners Street, P.O. Box 909,
Alleghany, CA 95910

45

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

38 FMSHRC Page 1073

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May 3, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING:
Docket No. WEST 2015-382-M
A.C. No. 45-03570-371757

v.
Mine: Black Diamond Quarry

D. HOLCOMB & COMPANY, LLC,
Respondent.

DECISION
Appearances:

Hanah Harris-Yager, Esq., U.S. Department of Labor, Office of the
Solicitor, Denver, Colorado for Petitioner
Denis J. Holcomb, D. Holcomb & Company, LLC, Port Angeles,
Washington for Respondent

Before:

Judge David Barbour

This proceeding arises under the Federal Mine Safety and Health Act of 1977, as
amended, 30 U.S.C. § 801 et seq. It involves one alleged violation of the Secretary of Labor’s
mandatory safety standards for metal/non-metal mines found at 30 C.F.R. Part 56. The violation
allegedly occurred on June 25, 2014, at the scale house trailer of the Black Diamond Quarry, a
construction sand, gravel and rock quarry owned and operated by D. Holcomb & Company,
LLC. According to the Secretary, on that date an inspector from the Secretary’s Mine Safety and
Health Administration (“MSHA”) entered the trailer and observed a generator running inside the
building near a company supervisor and a customer (a truck driver). According to the inspector,
exhaust from the generator was not being vented directly outside, and the supervisor was not
monitoring the exhaust to determine the carbon monoxide (“CO”) levels inside the trailer.
The inspector checked the level and found it was in excess of 180 parts per million four feet
inside the trailer’s only functioning door. The inspector cited the company for a violation of 30
C.F.R. § 56.5002, a mandatory safety standard requiring in part that “gas . . . surveys . . . be
conducted as frequently as necessary to determine the adequacy of control measures.” The
inspector found that the violation was highly likely to result in the deaths of the supervisor and
the customer and that the violation was a significant and substantial contribution to a mine safety
hazard. The inspector further found the alleged violation was the result of the company’s “high”
negligence.1
1

Compounding the company’s negligence was the fact the company was cited previously
for operating a generator inside the scale house trailer and for not monitoring the gas levels while
doing so.

38 FMSHRC Page 1074

After issuance of the citation, MSHA applied its special assessment procedures and
proposed a civil penalty of $52,000 for the alleged violation. The company contested the
proposal, and the Secretary petitioned the Commission to assess the penalty. The company
answered the Secretary’s assertions by stating the inspector who cited the company for the prior
violation told the company if the windows in the scale house were kept open the generator could
be used inside. The company asserted all of the windows and the trailer’s only door were open
when the generator was running. The company also asserted that exposure of persons inside the
scale house was limited to two minutes.
After the answer was received, the Chief Judge assigned the case to the court which
issued a prehearing order requiring the parties to confer to determine if they could settle the
matter. The court also required the parties to exchange information, and the court set out the
rules for discovery. Subsequently, the parties reported they were unable to agree on a settlement.
Upon receiving the report, the court asked counsel for the Secretary and the representative of the
operator if they would agree to the appointment of a settlement counsel to work independently of
the court to resolve the case short of a hearing. The parties agreed, and the court appointed an
independent settlement counsel. However, to preclude open-ended discussions, the court also set
the case for hearing on March 29, 2016, in Port Angeles, Washington. The court made clear to
the parties that if the efforts of the settlement counsel failed, the case would be heard on March
29.
In mid-March, 2016, the settlement counsel advised the court that his efforts were not
successful. The case then proceeded to hearing and the parties appeared with documentary
evidence and witnesses on the appointed day at the appointed hour in Port Angeles.2
The trial was scheduled to begin at 8:30 a.m., but due to a previously scheduled jury call,
the clerk of the court advised all present that the room in which the case would be heard would
not be available until approximately 9:30 a.m. The delay proved fortuitous. The court asked
counsel and the representative of the company to use the time to make a final attempt to settle the
case, and after a face-to-face discussion and a telephonic conference with the Solicitor’s Office,
counsel and the representative agreed to a compromise settlement. When the clerk then
announced that the hearing room was available, the court convened the hearing so that counsel
for the Secretary could describe the settlement and move for its approval. Upon hearing the
explanation, the court granted counsel’s motion for approval. Tr. 12. The court incorporates the
explanation and the court’s approval into the decision by reference.3 Tr. 9-12.

2

Shortly before March 29, 2016, counsel for the Secretary withdrew and a substitute
counsel entered her appearance on the government’s behalf.
3

The court again thanks counsel and the representative for their persistence and their
patience with one another and reiterates its view that the settlement is in the best interest of all
involved. See TR. 7-12.

38 FMSHRC Page 1075

THE SETTLEMENT
CITATION NO. DATE
8780364
6/25/14

30 C.F.R. §
56.5002

PROPOSED PENALTY
$52,500

SETTLEMENT
$30,000

Under the agreement, the compromise penalty will be paid in the amount of $2,500 per
month for a period of 12 consecutive months. Tr. 11.
ORDER
On June 1, 2016, the company SHALL PAY the Secretary of Labor the first of 12
consecutive payments each in the amount of $2,500. The other eleven payments of $2,500
SHALL BE PAID on the first business day of each succeeding month (to wit: July 1, August 1,
September 1, October 3, November 1 and December 1, 2016 and January 2, February 1, March
1, April 3 and May 1, 2017).4 Upon the completion of full payment, this case IS DISMISSED.

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

Distribution: (Certified Mail)
Hanah Harris-Yager, Esq., U.S. Department of Labor, Office of the Solicitor, MSHA Backlog
Project, 1244 Speer Boulevard, Suite 216, Denver, Colorado 80204
Denis J. Holcomb, Owner, D. Holcomb & Co., LLC, 112 Klahanie View Drive, Port Angeles,
Washington 98363
/db

4

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.

38 FMSHRC Page 1076

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May 11, 2016
PRODUCTOS DE AGREGADOS DE
GURABO,
Petitioner,
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent.

EQUAL ACCESS TO JUSTICE
PROCEEDING
Docket No. EAJA 2016-0003
Formerly SE-2013-0449-M
Mine ID No.: 54-00316
Mine: Productos de Agregados de Gurabo

DECISION AND ORDER
Before: Judge Lewis
This case is before me upon an Application for Fees and Other Expenses filed by
Productos de Agregados de Gurabo (“P.A.G.,” or “Operator,” or “Petitioner,”) pursuant to the
Equal Access to Justice Act, 5 U.S.C. § 504 (the “Act”) and the Federal Mine Safety and Health
Review Commission’s (the “Commission”) implementing regulations at 29 C.F.R. § 2704.100 et
seq.
PROCEDURAL HISTORY
On April 12, 2013, MSHA Inspector Isaac Villahermosa conducted an inspection of the
Petitioner’s Productos de Agregados de Gurabo surface mine. The inspector issued Citation No.
8723601 for violation of 30 C.F.R. § 56.11001, “Safe Access,” on the same date. Productos de
Agregados de Gurabo, 37 FMSHRC 2441 (Oct. 2015).
After extensive prehearing discovery and numerous prehearing motions, a hearing was
held on April 29 and 30, 2015 in Carolina, Puerto Rico.
On October 28, 2015, I issued a decision and order, vacating Citation No. 8723601,
essentially holding that the Secretary had failed to present sufficiently reliable evidence to
support a finding of a § 56.11001 violation. Productos de Agregados de Gurabo, 37 FMSHRC
2441 (Oct. 2015).

38 FMSHRC Page 1077

Neither party filed a petition for discretionary review with the Commission following the
issuance of said October 28, 2015 decision nor did any party seek review by the Circuit Court.1
On February 22, 2016, the Petitioner filed the subject application for fees and expenses.2
5 U.S.C. § 504.
1

The Commission also did not direct the case for review on its own motion, pursuant to
29 C.F.R. § 2700.71.
2

The operator’s February 22, 2016 motion for fees explicitly stated that it was “under
the inherent power of the court.” Resp’t Productos de Agregados de Gurabo’s Petition for
Attorneys’ Fees and Litigation Expenses, at 1 (emphasis in the original).
Notwithstanding the Petitioner’s failure to title its claim as an application for EAJA fees,
this Decision and Order treats P.A.G.’s February 22, 2016 filing as a petition for EAJA fees.
Despite the operator’s insistence that the filing was made under the Court’s inherent
powers to award fees, the remainder of the filing uses language inseparable from its EAJA
context, including terms like “prevailing party,” and “adversary proceeding,” in addition to
arguing that “the position of the agency was not substantially justified.” Id., at 2-3. These are all
terms specifically associated with EAJA proceedings and indeed, despite the Petitioner’s
protestations to the contrary, the filing otherwise follows a standard EAJA petition format.
Furthermore, it is unclear as to what “inherent powers,” the Petitioner refers to. Id., at 1.
The Commission is not a court of general equity, and has no apparent “inherent powers,” at least
none this Court is comfortable exercising absent controlling Commission precedent. See Jim
Walter Resources, 15 FMSHRC 782, at 790 (May 1993) (holding that the Commission is not a
court of general equity, and that it is a fundamental premise that equity aids only those who have
vigilantly pursued their rights). Moreover, as the Commission reasoned in Kaiser Coal
Corporation, “[w]e begin with the fundamental principle that, as an administrative agency
created by statute, we cannot exceed the jurisdictional authority granted to us by Congress.”
Kaiser Coal Corporation, 10 FMSHRC 1165, at 1169 (Sept. 1988). And, “[i]t also is a longstanding rule of law that the consent of the United States to be sued will not be extended beyond
its literal terms and will not be implied.” Nibali v. United States, 634 F.2d 494, 497 (Ct. Cl.
1980), citations omitted.
The Court declines to endorse Petitioner’s view, and will not extend the United States’
consent to be sued beyond the four corners of the statutes at issue.
In an attempt to have its cake and eat it too, the Petitioner contends in its March 31, 2016
filing that “the Commission will be furthering Congress’s policy choice when Congress enacted
the EAJA” by awarding P.A.G. attorneys’ fees. Resp’t’s Reply to the Secretary of Labor’s
Response and Objections, at 8. Similarly, the Petitioner attempts to evade the 30-day requirement
under EAJA by arguing that these time limits do not apply to the Court’s inherent equity powers.
(continued…)

38 FMSHRC Page 1078

On March 24, 2016, the Secretary of Labor filed a response and objection to the
Petitioner’s application, contending, inter alia, that Petitioner’s application was time-barred.
On April 4, 2016, the Secretary filed its sur-reply.
LAW AND REGULATIONS
29 C.F.R. § 2704.100 sets forth the purpose of Commission rules as to applications for
Equal Access to Justice Act fees under 5 U.S.C. § 504:
The Equal Access to Justice Act, 5 U.S.C. § 504, provides for the award of
attorney fees and other expenses to eligible individuals and entities who are
parties to certain administrative proceedings (called “adversary adjudications”)
before this Commission. An eligible party may receive an award when it prevails
over the U.S. Department of Labor, Mine Safety and Health Administration
(“MSHA”), unless the Secretary of Labor's position in the proceeding was
substantially justified or special circumstances make an award unjust. In addition
to the foregoing ground of recovery, a non-prevailing eligible party may receive
an award if the demand of the Secretary is substantially in excess of the decision
of the Commission and unreasonable, unless the applicant party has committed a
willful violation of law or otherwise acted in bad faith, or special circumstances
make an award unjust. The rules in this part describe the parties eligible for each
type of award. They also explain how to apply for awards, and the procedures and
standards that this Commission will use to make the awards. In addition to the
rules in this part, the Commission's general rules of procedure, part 2700 of this
chapter, apply where appropriate.
29 C.F.R. § 2704.100.

2

(…continued)
Id., at 10. The Petitioner attempts to argue “in the alternative” that the filing should be treated as
a properly filed EAJA petition. Id., at 11.
Given that this Court has no inherent powers to render the relief sought, given the
Petitioner’s failure to cite a single FMSHRC decision for the proposition supporting the
Commission’s “inherent power,” to award attorneys’ fees, and given the Petitioner’s initial
decision to submit a filing that conformed almost totally to a standard EAJA format, this matter
was properly docketed EAJA 2016-0003, and will be treated as such. The Petitioner’s arguments
to the contrary lack any grounding in Commission precedent, betray a troubling
misunderstanding of the separation of powers, and fail to persuade.

38 FMSHRC Page 1079

29 C.F.R. § 2704.206 sets forth when an application may be filed:
(a)! An application may be filed whenever the applicant has prevailed in the
underlying proceeding or in a significant and discrete substantive portion of
that proceeding. An application may also be filed by a non-prevailing party
when a demand by the Secretary is substantially in excess of the decision of
the Commission and is unreasonable when compared with such decision. In
no case may an application be filed later than 30 days after the Commission's
final disposition of the underlying proceeding, or 30 days after issuance of a
court judgment that is final and nonappealable in any Commission
adjudication that has been appealed pursuant to section 106 of the Mine
Act, 30 U.S.C. § 816.
(b)!If review or reconsideration is sought or taken of a decision on the merits as to
which an applicant has prevailed or has been subjected to a demand from the
Secretary substantially in excess of the decision of the Commission and
unreasonable when compared to that decision, proceedings for the award of
fees shall be stayed pending final disposition of the underlying controversy.
(c)! For purposes of this part, final disposition before the Commission means the
date on which a decision or order disposing of the merits of the proceeding or
any other complete resolution of the proceeding, such as a settlement or
voluntary dismissal, becomes final (pursuant to sections 105(d) and 113(d) of
the Mine Act (30 U.S.C. §§ 815(d) and 823(d))) and unappealable, both
within the Commission and to the courts (pursuant to section 106(a) of the
Mine Act (30 U.S.C. § 816(a)).
29 C.F.R. § 2704.206.
ISSUE
Given the above procedural history and applicable law and regulations, must Petitioner’s
application for EAJA fees be denied on the basis of untimely filing?
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In my original, underlying decision I noted that the Petitioner’s extensive prehearing
challenges to Mine Act jurisdiction were clearly without merit. See, inter alia, Productos de
Agregados de Gurabo, 37 FMSHRC 2441, at 2441-3 (Oct. 2015).3 Further, my decision in favor
of the Petitioner essentially turned upon the Secretary’s evidentiary failure to present sufficiently
reliable evidence to support a finding of violation (see, inter alia, 37 FMSHRC 2441, at 24502460.)
3

In her application for EAJA fees, the Petitioner’s counsel indicated that she was not
seeking fees and costs related to previous jurisdictional challenges. Resp’t Productos de
Agregados de Gurabo’s Petition for Attorneys’ Fees and Litigation Expenses, at 2.

38 FMSHRC Page 1080

I am inclined to agree with the Secretary that the Petitioner’s application for EAJA fees
should also be rejected on substantive grounds.4 However, given the within procedural posture, I
need not address the substantive merits of Petitioner’s claim in that its application is clearly timebarred.
5 U.S.C. §504(a)(2) plainly provides that a party seeking EAJA fees shall submit “within
thirty days of a final disposition in the adversary adjudication” its application. 5 U.S.C. §
504(a)(2).
29 C.F.R. § 2704.206 also clearly and unambiguously provides that “in no case may an
application be filed more than 30 days after the Commission’s final disposition of the underlying
proceeding, or 30 days after the issuance of a court judgment that is final and unappealable in
any Commission adjudication that has been appealed pursuant to section 106 of the Mine Act, 30
U.S.C. § 816.” 29 C.F.R. § 2704.206.
Petitioner’s February 22, 2016 EAJA fee application was inarguably far beyond the
mandated 30 day deadline.
Circuit Court case law holds that courts may not, by local rule, shorten or extend the time
for filing in EAJA petition. Al-Harbi v. I.N.S., 284 F.3d 1080, 1082 (9th Cir. 2002).
My decision issued on October 28, 2015 became final and unappealable on or around
November 30, 2015.5 The Petitioner failed to file its application until February 22, 2016 – almost
two months after the statutory deadline of December 30, 2015.

4

See the Solicitor’s response and objections to the Petitioner’s application for fees,
wherein, inter alia, the Solicitor avers that its offer to reclassify the citation from S&S to nonS&S with a penalty reduction from $873.00 to $131.00 had been rejected by the Petitioner prior
to hearing. See also the Solicitor’s arguments that Petitioner’s EAJA application should be
denied on the merits. Sec’y’s Response and Objections to Pet’r’s Application for Fees and
Expenses Pursuant to the Equal Access to Justice Act, at 4.
The Undersigned is reminded of the Supreme Court’s reasoning in Ardestani v. I.N.S.,
502 U.S. 129: “[t]he clearly stated objective of the EAJA is to eliminate financial disincentives
for those who would defend against unjustified governmental action and thereby to deter the
unreasonable exercise of Government authority.” Ardestani v. I.N.S., 502 U.S. 129, at 138
(1991), emphasis added.
5

29 C.F.R. § 2700.70 provides that a party adversely affected or aggrieved by a judge’s
decision may file with the Commission a petition for discretionary review within 30 days after
issuance of the decision.

38 FMSHRC Page 1081

The Commission has consistently held that untimely applications under EAJA must be
rejected.6 See Signature Mining Services v. Secretary of Labor, 18 FMSHRC 3261, n. 1 (Dec.
2014) (wherein ALJ McCarthy found that Signature was ineligible to be award EAJA fees due to
its failure to apply for such within 30 days of the Commission’s final disposition of the
underlying proceeding); See also James M. Ray v. Secretary of Labor, 18 FMSHRC 2037 (Nov.
1996) (wherein ALJ Fauver acknowledged that an application for EAJA fees could be rejected
for untimely filing, but rejected Secretary’s motion to dismiss because the 30 day period, after
excluding the day of decision’s issuance and a Sunday, had not, in fact, elapsed.)

6

The Petitioner has not presented any Commission precedent to the contrary. Likewise,
the Petitioner has cited no Commission case law supporting the application of equitable tolling to
the EAJA context (instead, citing an irrelevant 10th Circuit opinion regarding equitable tolling
and miners’ rights to file discrimination complaints under § 815(c)(2) of the Mine Act). Resp’t’s
Reply to the Secretary of Labor’s Response and Objections, at 13, citing Olson v. Fed. Mine
Safety & Health Review Comm'n, 381 F.3d 1007 (10th Cir. 2004).
Even if equitable tolling were a possibility in EAJA matters, the length of delay in filing
and the problematic nature of the Petitioner’s EAJA claim on-the-merits, would not qualify this
for such tolling. As the Supreme Court noted in Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
equitable tolling is extended only in exceptional cases:
“Federal courts have typically extended equitable relief only sparingly. We have allowed
equitable tolling in situations the claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period, or where the complainant has been induced or
tricked by his adversary's misconduct into allowing the filing deadline to pass. We have
generally been much less forgiving in receiving late filings where the claimant failed to exercise
due diligence in preserving his legal rights.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96,
(1990).
The Petitioner has alleged nothing resembling the circumstances described in Irwin to
merit the relief asked for.

38 FMSHRC Page 1082

Therefore I am constrained to find that the Petitioner’s application must be denied
because it was filed beyond the statutory deadline.
ORDER
It is the decision of the undersigned that Petitioner’s application for fees and expenses
under the Equal Access to Justice Act was untimely filed and Petitioner’s application is hereby
DENIED.

/s/ John K. Lewis
John K. Lewis
Administrative Law Judge
Distribution:
Damaris Delgado-Vega, Esq., Ortiz & Ortiz Law Office, P.S.C., 470 Avenida Cesar L.
Gonzalez, San Juan, PR 00918
Terrence Duncan, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick Street,
Room, 983, New York, NY 10014

38 FMSHRC Page 1083

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May 11, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2015-251
A.C. No. 33-01159-371484

Petitioner,
v.
THE OHIO VALLEY COAL COMPANY,
Respondent.

Docket No. LAKE 2015-309
A.C. No. 33-01159-373906

Mine: Powhatan No. 6 Mine
DECISION AND ORDER

Appearances:

Helga Spencer, Esq. and Christina Haviland, U.S. Department of Labor,
Office of the Solicitor, Philadelphia, PA, for the Secretary
Jason W. Hardin, Esq. and Jason Steiert, Fabian VanCott, Salt Lake City,
UT, for the Respondent

Before:
I.

Judge Lewis
Statement of the Case

These cases are before me upon two petitions for assessment of civil penalties under §
104(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Following an
inspection of Respondent’s mine, an MSHA inspector issued Order No. 8061123 for coal dust
accumulations along the South Mains belt line in violation of 30 C.F.R. § 75.400. Additionally,
the inspector issued Order No. 8061124 to the Respondent for failing to record the
accumulations in its examination books in violation of 30 C.F.R. § 75.363(b). A hearing was
held in Pittsburgh, PA on December 16, 2015. At hearing the Respondent contested the high
negligence and unwarrantable failure designations for both violations. Respondent also argued
Order No. 8061124 should be vacated because the cited accumulations did not exist at the time
of the on-shift examinations.
This Court now issues findings of fact and conclusions of law affirming Order No.
8061124 and affirming the high negligence and unwarrantable failure designations for both
Order No. 8061123 and Order No. 8061124. This Court also affirms the penalties totaling
$14,536.00 for those two orders.

38 FMSHRC Page 1084

II.

Procedural History

On September 9, 2014, two 104(d)(2) orders were issued at Ohio Valley Coal Company
(“Respondent” or “Ohio Valley Coal”), Powhatan No. 6 Mine. Respondent contested these
orders on February 18, 2015. On November 23, 2015, the Secretary filed a motion to preclude
expert testimony in response to Respondent’s Prehearing Report of November 13, 2015. On
December 1, 2015, the Respondent filed a motion in opposition, and the Secretary filed a reply
on December 2, 2015. This Court denied the Secretary’s request for exclusion of Respondent’s
proposed testimony and exhibits, and withheld determination as to the admissibility or weight to
be given to the Respondent’s proposed witness testimony and exhibits. On December 16, 2015, a
hearing was held in Pittsburgh, PA. After the hearing, the parties submitted Post Hearing Briefs
and Reply Briefs, which have been fully considered.
III.

Stipulations1

1.

Respondent was an “operator” as defined in §3(d) of the Federal Mine Safety and Health
Act, 30 U.S.C. § 802(d), at the Mine at which the Orders in this matter were issued.

2.

The operations of Respondent at the Mine at which the Orders in this matter were issued
are subject to the jurisdiction of the Act.

3.

The above-captioned proceeding is subject to the jurisdiction of the Federal Mine Safety
and Health Review Commission and its assigned Administrative Law Judges pursuant to
Sections 105 and 113 of the Act.

4.

The Orders in the matter were properly issued and served by a duly authorized agent of
the Secretary of Labor upon an agent of the Respondent at the date, time, and place stated
therein as required by the Act.

5.

Exhibit “A” to the complaint accurately sets forth the Respondent’s Mine size points,
Controller size points, VPID points, and RPID points used by the Secretary in setting the
penalty for Orders 8061123 and 8061124.

6.

An E01 inspection of the Powhatan No. 6 Mine was conducted by MSHA on or about
September 9, 2014.

7.

Representatives from MSHA and the Respondent were present at the underground site
visit on September 9, 2014.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1

The parties’ joint stipulations were read into the record at Transcript pages 10-14. (Tr.
10-14). A paper copy was said to be attached to the record as Joint Exhibit 1, however; the
exhibit attached was a Mine Citation/Order Continuation modifying Citation No. 8057495.
(Joint Ex. 1). The ALJ also incorporates the recitation of the stipulations set forth in the
Secretary’s Post Hearing Brief that was not objected to by Respondent (except for the clerical
error of using Order Nos. 802113 and 8062114 instead of the correct Order Nos. 8061123 and
8061124) as though fully recited herein. (Sec’y Post Hearing Br. at 3-4). Hereinafter, joint
stipulations will be cited to as J.S. followed by the stipulation number. Exhibits will hereinafter
be cited to as JX followed by a number for joint exhibits; GX followed by a number for the
Secretary’s exhibits; and RX followed by a number for the Respondent’s exhibits.

38 FMSHRC Page 1085

8.

On September 9, 2014, MSHA Inspector Terrence A. Saho (AR No. 25193) issued
Orders 8061123 and 8061124 during an inspection of the Mine.

9.

Respondent does not contest that the conditions cited in Orders 8061123 and 8061124
could be expected to cause injuries resulting in lost workdays affecting two miners.

10.

The imposition of the proposed penalties will not affect Respondent’s ability to remain in
business.

11.

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

12.

The R-17 Assessed Violation History Report is an authentic copy and may be admitted as
a business record of the Mine Safety and Health Administration.

13.

Pursuant to Section 103(i) of the Mine Act, Powhatan No. 6 Mine is subject to 5 day spot
inspections for methane as this liberates more than 1 million cubic feet of methane during
a 24 hour period.

IV.

Factual Background

On September 9, 2014, Inspector Terrance Saho arrived at Powhatan No. 6 mine at 7:30
a.m. (Tr. 28). He went to Powhatan No. 6 mine for an E0-1 inspection.3 (Tr. 27). Prior to
conducting his inspection, Inspector Saho reviewed the exam books for the mine. (Tr. 28). After
reviewing such, he began his inspection of the South Mains belt and South Mains return. (Tr.
29). Inspector Saho traveled with Bill Hagedorn, Inspector Saho’s supervisor, Jeremi Hossman, a
safety representative, and Nathan Carlton, the union representative. (Tr. 29).
2

During the inspection, Inspector Saho entered the belt line at one crosscut and proceeded
inby along the South Mains belt, between crosscuts 35 and 36. (Tr. 30-31). There was a wall
isolating two separate parts of the belt line. (Tr. 30-31). When Inspector Saho arrived at the wall,
he went through the man door, on the walking side of the belt, from a fairly well rock dusted
entry into an area with black coal dust covering the roof ribs, floor, and belt. (Tr. 32). He
continued walking down to the end of the belt line where he found the tail roller was turning in
compacted coal and coal fines. (Tr. 32-33). At approximately 10:00 a.m., Inspector Saho issued
Order No. 8061123 for accumulations between crosscuts 36 and 39 in violation of § 75.400.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
2

Inspector Terrance Saho is an inspector for MSHA. (Tr. 20-21). In June 2014 he was
authorized as a coal mine inspector. (Tr. 21). Prior to becoming a mine inspector, he received
21 weeks of training at Beckley, West Virginia at the Mine Academy. (Tr. 22). Before working
for MSHA, Inspector Saho worked in the mining industry for approximately two and a half
years. (Tr. 24-25). He worked two years with Consol Energy and approximately five months
with GMS. (Tr. 25). He was a union coal miner at Consol, working as a bolter on the
continuous miner, and various sections jobs, belt work, and general inside labor. (Tr. 25). At
GMS, Inspector Saho worked on belts. (Tr. 25).
3

!An E0-1 inspection is a general inspection. (Tr. 27). At this time, Powhatan No. 6 mine
was subject to a five day spot inspection where inspectors would take bottle samples to test for
methane liberated from the mine. (Tr. 27).

38 FMSHRC Page 1086

(GX-1). He measured the accumulations at the tail roller; the accumulations were six feet across
and two feet in depth. (Tr. 33). The accumulations were black, which showed that there was no
mixing of rock dust. (Tr. 36-37). Inspector Saho listed float coal and loose coal accumulations
for the violation. (Tr. 37). There was also no evidence that anyone had cleaned up the site of the
accumulations when the orders had been issued. (Tr. 38). The operator subsequently shut the belt
down to abate the condition. (Tr. 34).
Inspector Saho proceeded around the tight side of the belt to the return regulator. (Tr. 34).
There he saw float dust being sucked through the return regulator and sent down the return. (Tr.
34). This indicated to him that the float dust had been in this area for an extended period of time
and that no one had been in the area past the wall to maintain the coal dust accumulations. (Tr.
34). He also believed that no one had been in this area that day because there were considerable
coal dust accumulations and no sign of rock dusting. (Tr. 34).
The gravity of the violation was assessed as reasonably likely and Significant and
Substantial (“S&S”) because the float coal dust and accumulations with the tail roller turning in
the coal accumulations could have created a “fire triangle.”4 (Tr. 51-52). Inspector Saho testified
that coal was impacted by the roller, which created friction that could have caused a fire. (Tr.
52). The coal was damp near the belt, and there was no other ignitable source other than
accumulations around the tail roller. (Tr. 72, 76-77).
Inspector Saho determined that the injury or illness expected for the violation would be
lost workdays or restricted duty because a potential fire on the belt could have led to smoke
inhalation. (Tr. 52). He determined that two persons would be affected because there would have
been two examiners present at any given time on a shift and a belt cleaner could have been in the
area. (Tr. 52-53). Inspector Saho further found the violation was the result of an unwarrantable
failure to comply with a mandatory health and safety standard. (Tr. 53).
Inspector Saho testified that the 2 South Section and West Mains Section had dumped
coal directly on the South Mains belt at the 25 crosscut. (Tr. 50). The 1 South Section was not in
production on September 9, 2014. (Tr. 50). Thus, there was no coal dumping on the South Mains
belt that day near crosscuts 36-39. (Tr. 56). Therefore, Inspector Saho testified that the coal
accumulations had to be there for longer than the on-shift exams at least. (Tr. 56).
Inspector Saho also issued Order No 8061124 for the examiner failing to report the
accumulation conditions in the examination books, in violation of § 75.363(b). (Tr. 58).
Inspector Saho reviewed the examination books and did not find any note of the accumulations
from crosscuts 36-39. (Tr. 60). The exams were conducted between 2:00 and 2:28 a.m. and 6:00
and 6:26 a.m. (Tr. 60-61). The order was issued because the examiner failed to record all of the
nine mandatory standard violations he observed. (Tr. 62). This order was designated S&S and
indicated that two persons would be affected: the examiner and belt cleaner. (Tr. 61-62).
After the orders were issued, Jeremi Hossman, the safety representative, instructed
miners to clean and rock dust crosscuts 36-39. (Tr. 51). The condition was abated in
approximately two hours. (Tr. 51; RX 1).
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
4

Inspector Saho uses the term fire triangle, comprising of fuel, an ignition source, and
oxygen, to indicate the conditions in a coal mine that can create a fire hazard. (Tr. 70).

38 FMSHRC Page 1087

Matthew Skolnick, the section foreman for Ohio Valley Coal, conducted the on-shift
examination of the South Mains belt on September 9, 2014, before the midnight shift.5 (Tr. 15051). He testified that he had inspected the whole belt line all the way to the end and had only
noted a bad roller during the exam. (Tr. 152). He further testified that he did not see any
accumulations along the belt. (Tr. 154).
On the evening of September 9, 2014, Skolnick found out about the orders involving
accumulations. (Tr. 157). The following morning, at the end of the midnight shift, Skolnick was
told a tear was found in the South Mains belt. (Tr. 157).
Skolnick reviewed the Production and Labor reports for September 9, 2014, to determine
which sections had been loaded onto the South Mains belt that day. (Tr. 162). Skolnick testified
that during the midnight shift, the 2 South Section and West Mains Section were mined, and the
coal was dumped onto the belt at crosscut 25. (Tr. 162). 9,000 tons were mined from the 2 South
Section, and 34 feet were mined from the West Mains Section. (Tr. 163). The first car from the 2
South Section was dumped on the South Mains belt at 1:50 a.m., and the last car was dumped at
8:05 a.m. (Tr. 164-65). The West Mains Section was dumped on the belt between 3:00 a.m. and
8:30 a.m. (Tr. 168). Skolnick testified that during this period, before the orders were issued, the
coal could have fallen through the tear in the belt and rolled back to the tail, creating the cited
accumulations. (Tr. 167-68).
However, Inspector Saho did not believe coal would have traveled along the bottom belt
all the way to the tail roller. (Tr. 93-95). He testified that the coal would have fallen or been
flung off the belt before it reached that far. (Tr. 94-95). Both Skolnick, the section foreman, and
Hossman, the safety representative, also acknowledged that coal would have likely fallen off
before reaching the tail roller on the belt if the coal did fall through the tear on the belt. (Tr. 174,
222).
Jeremi Hossman, the safety representative, accompanied the inspectors along the South
Mains belt on September 9, 2014.6 (Tr. 202). He saw the accumulations that were cited along
crosscuts 36-39. After Inspector Saho issued Order No. 8061123 at 10:00 a.m. and Order No.
8061124 at 10:01 a.m., the miners spent approximately two hours cleaning up the accumulations,
finishing by 12:30 p.m. (Tr.243; RX 1). Hossman testified that during the inspection he had not
heard Inspector Saho talk about footprints in the accumulations, and Inspector Saho testified that
his notes and photographs did not indicate he found any footprints. (Tr. 89, 119-20, 240-41; RX
5,6).
In the afternoon, Hossman found out that there was a tear in the South Mains belt, which
he photographed. (Tr. 207; RX 14). He said he believed this tear was in the middle of the belt.
(Tr. 215). As a result of this tear in the belt, Hossman testified that the coal dumped on the belt
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
5

Matthew Skolnick has been the section foreman for Ohio Valley Coal for three years.
(Tr. 146). He has worked for Ohio Valley Coal for a total of 6 years. (Tr. 146). He has been
certified in both West Virginia and Ohio. (Tr. 146).
6

Hossman was the safety representative at Ohio Valley Coal for almost six years. (Tr.
203). He also worked as a surveyor and in the warehouse at the mine. (Tr. 203). He has worked
ten years in coal mining. (Tr. 203).

38 FMSHRC Page 1088

could have fallen through to the bottom and been carried back to the tailpiece and ground up,
thus causing the cited accumulations. (Tr. 215-17). Additionally, Hossman testified that the
accumulations were primarily on the edges, underneath the bottom of the belt, and behind the tail
roller. (Tr. 216-17).
V.

Contentions of the Parties

The Secretary contends that the coal dust accumulations by the tail roller of the Powhatan
No. 6 Mine, South Mains belt, violated 30 C.F.R. § 75.400, as stated in Order No. 8061123.
(Sec’y Post Hearing Br. at 11-12). The Secretary also contends this violation was S&S and
reasonably likely to result in lost workdays or restricted duty affecting two miners. (Id. at 11).
Further, the Secretary contends this violation was the result of an unwarrantable failure and high
negligence, and the penalty of $8,421.00 should be affirmed. (Id. at 22-23).
Respondent contends that the ALJ should give no deference to the inspector because he
had less than the five years of experience recommended by the Mine Act. (Resp. Post Hearing
Br. at 2-5). In response, the Secretary contends that the Mine Act does not require five years of
experience and that Inspector Saho had the requisite MSHA Inspector training and two and a half
years of mining experience. (Sec’y Reply Br. at 1-4). Respondent concedes that § 75.400 was
violated, as stated in Order No. 8061123, and that the violation was S&S, with it being
reasonably likely to result in lost workdays or restricted duty affecting two miners. (Tr. 248).
However, the Respondent contends that violative conduct should not be assessed with high
negligence or an unwarrantable failure designation, and the penalty should be lowered. (Resp.
Post Hearing Br. at 5-26).
Additionally, the Secretary contends that the Respondent failed to record the
accumulations by the tail roller on the South Mains belt line during the on-shift examinations in
violation of § 75.363(b), as stated in Order No. 8061124. (Sec’y Post Hearing Br. at 23-26). The
Secretary also contends the violation was S&S, and reasonably likely to result in lost workdays
or restricted duty affecting two miners. (Id. at 26). Moreover, the Secretary contends this
violation demonstrated high negligence, it was an unwarrantable failure, and that the penalty of
$6,115.00 should be affirmed. (Id. at 26-30).
The Respondent counters that Order No. 8061124 should be vacated because the
accumulations did not occur until after the on-shift examinations. (Resp. Post Hearing Br. at 2728). The Respondent contends that if a violation is found, the negligence level should be
lowered, the unwarrantable failure designation should be removed, and the penalty should be
lowered. (Id. at 28-29).
VI.

Analysis
A.

Burden of Proof and Standard of Proof

The Secretary bears the burden of proof of by a preponderance of the evidence for
violations. Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland
Resources, Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Jim Walter Res., Inc., 9 FMSHRC 903,
907 (May 1987). Each element in a violation must be proven by the Secretary. In re: Contests of

38 FMSHRC Page 1089

Respirable Dust Sample Alteration Citations: Keystone Mining Corp., 17 FMSHRC 872, 878
(Aug. 2008).
The Commission has held that “[t]he burden of showing something by a ‘preponderance
of the evidence’ the most common standard in the civil law, simply requires the trier of fact ‘to
believe that the existence of a fact is more probable than its nonexistence.’” RAG Cumberland
Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), quoting Concrete Pipe & Products of
California, Inc. v. Constr. Laborers Pension Trust for S. California, 508 U.S. 602, 622 (1993).
Further, the United States Supreme Court has found that “[b]efore any such burden can
be satisfied in the first instance, the factfinder must evaluate the raw evidence, finding it to be
sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition
with the requisite degree of certainty.” Concrete Pipe & Products of California, Inc. v. Constr.
Laborers Pension Trust for S. California, 508 U.S. 602, 622 (1993).
B.

Order No. 8061123

At hearing, Respondent conceded that the coal dust accumulations cited between
crosscuts 36 and 39 violated 30 C.F.R. § 75.400 as stated in Order No. 8061123. (Tr. 248). 30
C.F.R. § 75.400 requires that:
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.
Respondent also conceded that the violation was likely to result in lost workdays or
restricted duty injuries affecting two miners. (J.S. 9). During hearing, Respondent conceded that
Order No. 8061123 constituted a S&S violation. (Tr. 248). However, the Respondent contested
the high negligence and unwarrantable failure assessments.
1.

Negligence

Negligence is not defined in the Mine Act. MSHA regulations provide that violative
conduct is properly designated as “high negligence” when “the operator knew or should have
known of a violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R.
§100.3(d), Table X. The Commission has held that Commission Judges are not required to apply
the level-of-negligence definitions in Part 100 and may evaluate negligence from the perspective
of a traditional negligence analysis rather than the Part 100 definitions. Brody Mining, LLC, 37
FMSHRC 1687, 1703 (Aug. 2015); accord Mach Mining, LLC, 809 F.3d 1259, 1263-64 (D.C.
Cir. 2016). “Moreover, because Commission judges are not bound by the definitions in Part 100
when considering an operator’s negligence, they are not limited to a specific evaluation of
potential mitigating circumstances, and… may find ‘high negligence’ in spite of mitigating
circumstances, or moderate negligence, without identifying mitigating circumstances.” Brody, 37
FMSHRC at 1702-03; Mach Mining, 809 F.3d at 1263-64. In this regard, the gravamen of high
negligence is “‘…an aggravated lack of care that is more than ordinary negligence.’” Brody, 37
FMSHRC at 1703, citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998). “Thus, in
making a negligence determination, a Commission judge is not limited to an evaluation of
allegedly ‘mitigating’ circumstances…[and]may consider the totality of the circumstances

38 FMSHRC Page 1090

holistically.” Brody, 37 FMSHRC at 1702 (emphasis added). Under such an analysis, an operator
is negligent if it fails to meet the requisite high standard of care under the Mine Act. Id.
In the instant case, the cited accumulations were up to two feet deep in some areas. (Tr.
33). The operator should have detected such an obvious violation. (See Tr. 33). Accumulations
this extensive likely existed for several hours, if not days. The failure by the Respondent to abate
these conditions, which posed such a fire hazard, displayed an aggravated lack of care.
Respondent alleges that there was a tear in the belt that was unknown to the operator. (Tr.
207). This created accumulations at crosscuts 36-39, which Respondent argues should constitute
a mitigating circumstance. (Resp. Post Hearing Br. at 24-25). The tear in the belt was not found
until the afternoon after the orders were issued. (Tr. 207). No one from the mine checked the belt
and had found a tear at the time the order was issued. This would indicate that the tear may not
have existed until after the order was issued. (Tr. 219-20). The inspector also did not find a tear
in the belt at the time the accumulations were found. (Tr. 97-100). Further, Inspector Saho,
Skolnick, and Hossman testified that—even if there was a tear in the belt—the coal would have
fallen off the belt all along crosscuts 25 to 39. 7 (Tr. 94-95, 174, 222). No evidence has been
brought forward by the Respondent showing that coal had fallen off anywhere other than at
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7

The Respondent essentially argues that Inspector Saho’s testimony should be accorded
little weight because he lacks the five years of mining experience recommended by the Act. (See
Also 20 U.S.C. §954, which states in pertinent part that “to the maximum extent feasible, in the
selction of persons for appointment as mine inspectors, no person shall be so selected unless he
has the basic qualification of at least five years practical mining experience.”)
The Act accepts that the length of prior mining experience is a relevant factor in
determining the weight to be given an inspector’s opinion. However to the extent that
Respondent implies that Saho’s lack of five years past mining experience, standing alone, would
render his opinions uncredible, the ALJ expressly rejects such.
The ALJ notes that Saho did possess approximately two and a half years of prior mining
experience at the time he inspected the subject mine. Additionally, the Act explicitly uses the
disjunctive “or” in listing the qualifications for an authorized representative, stating that such
persons “shall be qualified by practical experience in mining or by experience as a practical
mining engineer or by education.” (Id.)(emphasis added). In addition to his mining experience,
Inspector Saho received 21 weeks of training at the Mine Academy in Beckley, West Virginia.
Moreover, when Inspector Saho issued Order Nos. 8061123 and 8061124 on September
9, 2014, he had been accompanied by his supervisor, Bill Hagedorn, who did not disagree with
any of Saho’s findings. (Tr. 29).
Finally, the ALJ notes that Saho’s testimony of his observations of the cited area and
inspections of Respondent’s examination books were essentially uncontradicted by Respondent.
Considering in toto the inspector’s past experience and training, the additional presence
of his supervisor and his uncontested observations, the ALJ found Saho to be both credible and
persuasive in his expressed opinions.

38 FMSHRC Page 1091

crosscuts 36-39. (Tr. 222). Finally, there was no evidence that further accumulations had
occurred after the order was issued near the tail roller. (224-28). It is unlikely that a tear, which
caused accumulations in the morning, would not continue to cause accumulations until repaired
later that afternoon. As a result, this Court finds that the Respondent’s arguments concerning the
tear are not persuasive. Therefore, this court finds that the violation was the result of high
negligence.
2.

Unwarrantable Failure

The Commission has determined that an “unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.” Manalapan Mining Co., 35 FMSHRC 289, 293
(Feb. 2013). Such a failure may be characterized by the following types of conduct: reckless
disregard, intentional misconduct, indifference, or a serious lack of reasonable care. Emery
Mining Corp., 9 FMSHRC 1997, 2003-04 (Dec. 1987).
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.
Manalapan Mining Co., 35 FMSHRC at 293. The Court must consider all relevant factors, the
facts and circumstances of the case, and whether mitigating circumstances exist. IO Coal Co.,
Inc., 31 FMSHRC 1346, 1351 (Dec. 2009).
As discussed infra, the Respondent has essentially offered the following “defenses” or
mitigating circumstances to vitiate findings of “high” negligence and unwarrantable failure: there
was an unseen tear in the upper belt; coal fell through the undetected tear onto the lower belt; the
fallen coal was then transported along the beltway and deposited into unsafe accumulations in
the cited areas; all of which occured after the on-shift examinations.
This Court will discuss the Manalapan factors below seriatim. However, this Court feels
constrained to observe there is no need for a sophisticated Pascalian risk analysis to discern the
extremely problematic nature of Respondent’s contentions. Why was the fallen coal not strewn
along the entire length of the belt-way area in question rather than only in the cited areas? What
are the odds that the accumulations would be so deposited and distributed in such a short period
of time? Why did the inspector never observe the unsafe tear?
Much more probable and likely explanations for the unsafe accumulations and failure to
report are the ones advanced by the Secretary throughout these proceedings: the operator’s high
negligence and unwarrantable failure in allowing the accumulations to build up and its highly
negligent and unwarrantable failure to record and report such.

38 FMSHRC Page 1092

The Secretary has easily carried its burden regarding the operator’s violative conduct and
the unwarrantable nature of such by the preponderance of the evidence.
a.

The length of time and extent of the condition

The accumulations that Inspector Saho found at crosscuts 36-39 were six feet wide and
two feet deep under the belt tail roller. (Tr. 33). The accumulations covered the floor, roof ribs,
and belt. (Tr. 17). The belt tail roller was turned in compacted accumulations. (Tr. 33). Inspector
Saho testified that he did not believe accumulations so extensive could have accumulated after
the on-shift examination. (Tr. 42). Conversely, the Respondent argues that a tear in the belt had
caused coal to accumulate after the on-shift examination; thus arguing the accumulations existed
for several hours instead of several days.8 Nonetheless, the extensiveness of the accumulations
and the fact that no coal was loaded onto the belt from 1 South contradict Respondent’s
contentions and support the Secretary’s contentions that these accumulations most likely had
existed for more than one shift.
b.

Whether the violation posed a high degree of danger

There was a high degree of danger created by the instant violation. Coal accumulations
were packed around the tail end roller, and the belt was also running in contact with coal
accumulations. (Tr. 33, 36, 45-47, 180; GX 7, 8). These conditions created a fire hazard that
could have resulted in miners suffering smoke inhalation or burns. (Tr. 52, 122). Although the
Respondent argued that the accumulations were damp, the Commission has held that “[t]he fact
that there was some dampness in the coal did not render it incombustible and…wet coal can dry
out in a mine fire and ignite.” Utah Power & Light Co, 12 FMSHRC 965,969 (May 1990), Aff’d,
951 F.2d 292 (10th Cir. 1991)(citing Black Diamond, 7 FMSHRC 1117,1120-221 (Aug. 1985)).
Moreover, the Commission has found that “even absent a fire, accumulations of damp or wet
coal, if not cleaned up, can eventually dry out and ignite.” Black Diamond, 7 FMSHRC at 1121.
Consequently, even though the accumulations were damp, they were a dangerous condition that
could result in a fire and smoke inhalation hazard.
c.

Whether the violation was obvious

The unsafe accumulations were readily apparent to Saho. He found widespread
combustible float coal dust, loose coal, and compact coal. (Tr. 33, 36-37, 71). The accumulations
were black and were not rendered inert by rock dust. (Tr. 37, 108). Considering the testimony
and photographic evidence presented at trial, this Court finds the violative condition had been
clearly obvious. (Tr. 33, 36-37, 71; GX 4-8).
d.

Whether the operator had knowledge of the condition

The Commission has held that an operator's knowledge of a violation may be established
where the operator “reasonably should have known of the violative condition.” IO Coal Co., 31
FMSHRC 1346, 1357 (Dec. 2009). As discussed within, there is some question as to how long
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
8

At hearing, the Secretary introduced a photograph showing an examiner’s initials with
the date of 8/24/14. (Tr.40-41; GX 5). However, as that examiner did not testify, this Court
does not find that the initials indicate the accumulations existed since that date.

38 FMSHRC Page 1093

the operator actually knew of the accumulations’ existence. However, with the two examinations
that occurred on September 9, 2014, and given the extent of the accumulations shown by the
photographic evidence, the operator and examiner reasonably should have known of the violative
condition. (Tr. 33, 36-37, 71; GX-4-8). Thus, this factor weighs in favor of an unwarrantable
failure finding testified to by the Secretary’s witness.
e.

The operator’s efforts in abating the condition

The Commission has explained that the abatement efforts relevant to the unwarrantable
failure analysis are those that were made prior to the issuance of the citation or order.
Consolidation Coal Co., 35 FMSHRC 2326, 2342 (Aug. 2013). Prior to the order being issued,
there did not appear to be any efforts by the Respondent to abate the condition. Therefore, this
factor also favors an unwarrantable failure finding.
f.

Whether the operator had been placed on notice that greater
efforts were necessary for compliance

Repeated similar violations may be relevant to an unwarrantable failure determination to
the extent that they serve to put an operator on notice that greater efforts are necessary for
compliance with a standard. San Juan Coal, 29 FMSHRC 125, 131 (2007) citing Amax Coal Co.,
19 FMSHRC 846, 851 (May 1997). Additionally, “[t]he Commission has recognized that past
discussions with MSHA about an accumulation problem serve to put an operator on heightened
scrutiny that it must increase its efforts to comply with the standard.” Consolidation Coal Co., 23
FMSHRC 588, 595 (2001)(finding unwarrantable failure where operator was cited 88 times in a
two year period for § 75.400 violations). Respondent had been issued 107 § 75.400 violations in
the two years prior for impermissible accumulations of combustible material at Powhatan No. 6
Mine. (GX 1; Sec’y Post Hearing Br. at 24). In light of these previous § 75.400 violations, it is
clear that the operator had been placed on notice that greater efforts were required for
compliance with accumulation violations.
3.

Conclusion

After considering the above Manalapan factors, individually and holistically, this Court
finds the record clearly supports a finding of unwarrantable failure.
C.

Order No. 8061124

During Inspector Saho’s inspection of the South Mains belt, he issued Order No.
8061124 for the Respondent’s failure to record in the on-shift examiner’s report the
accumulations cited in Order No. 8061123. 30 C.F.R. § 75.363(b) requires that:
A record shall be made of any hazardous condition and any violation of the nine
mandatory health or safety standards found by the mine examiner. This record shall be
kept in a book maintained for this purpose on the surface at the mine. The record shall be
made by the completion of the shift on which the hazardous condition or violation of the
nine mandatory health or safety standards is found and shall include the nature and
location of the hazardous condition or violation and the corrective action taken. This
record shall not be required for shifts when no hazardous conditions or violations of the
nine mandatory health or safety standards are found.

38 FMSHRC Page 1094

The on-shift examination report for the South Mains belt noted “N/O” or “none
observed” under the dangerous/hazardous conditions section. (GX 11). The Respondent agreed
that the accumulations existed during the MSHA inspection, but not that they were visible during
the examination.9 (Tr. 57-58, 185). At approximately 2:28 a.m., Foreman Skolnick was in the
area of the belt tail, and he was at the belt drive again at 6:26 a.m. (during this second exam,
Skolnick was not near crosscuts 36-39). (Tr. 61, 151, 160, 183, 186). Inspector Saho observed
the accumulations at approximately 10 a.m. (Tr. 84).
Inspector Saho’s testimony that the accumulations were up to two feet deep and that no
coal was coming onto the belt from the 1 South transfer indicate that the accumulations likely
existed since at least the last time coal came from the 1 South transfer. (Tr. 33, 50). As discussed,
it was much more likely that coal came along the belt from left to right (starting at the 1 South
transfer) than that the coal accumulations dropped through a tear exactly as the belt intersected
with the West Mains transfer, dropping to the bottom of the belt and travelling all the way back
to the tail of the belt, without leaving accumulations along the way. Consequently, the Secretary
has shown by a preponderance of the evidence that the accumulations between crosscuts 36 and
39 existed during the on-shift examinations and that they were not properly recorded. Therefore,
Order No. 8061124 is affirmed.
Order No. 8061124 was issued as S&S, and reasonably likely to result in lost workdays
or restricted duty affecting two people. Respondent does not argue the potential S&S or lost
workdays or restricted duty affecting two people. (Tr. 11-12, 248-49). However, the Respondent
does contest the high negligence and unwarrantable failure assessments.
1.

High Negligence

The Secretary has met the burden of proving high negligence. As discussed above, it is
more probable that the accumulations between crosscuts 36 and 39 had existed during the onshift examinations and that there was a failure to report such. The two feet deep accumulations
and 1 South transfer not being used on September 9, 2014, indicate the § 75.400 violation had
existed prior to the on-shift exams. (Tr. 33, 50).
The Respondent had a duty to record any of the nine mandatory health or safety standards
and to take corrective action. 30 C.F.R. § 75.363(b). Between 2:00 and 2:28 a.m. and 6:00 and
6:26 a.m., on-shift examinations were made by Foreman Skolnick. (Tr. 60-61). At approximately
2:00 a.m., Skolnick alleges he examined the South Mains belt to the tail roller, where
accumulations were later cited by Inspector Saho. (Tr. 61, 151, 160, 183, 186). However, he did
not report any accumulations and did not undertake to have the coal dust eliminated or the area
rock dusted. This failure to record the cited accumulations could have caused a fire and smoke
hazard. Thus, this negligent act by the Respondent put the health and safety of at least two
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
9

Respondent emphasizes that there were no reported footprints in the accumulations as
evidence that the accumulations did not exist until after the on-shift examination. (Tr. 89, 11920, 240-41). Specifically, the Respondent believes the absence of footprints defeats the
Secretary’s argument that Foreman Skolnick saw, but failed to report the accumulations during
his on-shift examination. (Sec’y Post Hearing Br. at 19-20). However, even though footprints
were not documented by Inspector Saho, this does not prove said footprints did not exist or that
the accumulations were not present prior to the onshift exam at approximately 2:00 a.m.

38 FMSHRC Page 1095

miners, an examiner and a belt cleaner, in serious danger. (Tr. 52-53). Such violative conduct
was more than just ordinary negligence and shows an aggravated lack of care without any clear
mitigating circumstances. As a result, this Court finds the Respondent’s conduct was properly
designated as “high negligence” in Order No. 8061124.
2.

Unwarrantable Failure

Given that Order No. 8061124 involves essentially the same facts and unwarrantable
failure factors/analysis as Order 8061123, this violation also constituted an unwarrantable failure
on the part of the Respondent. See supra Section B.2.
For this violation, there was the same obvious condition of accumulations covering
crosscuts 36-39 that were up to two feet deep. (Tr. 33). Given the depth of accumulations and the
lack of coal being loaded onto the South Mains belt from the 1 South transfer, this condition
likely existed longer than one shift. (Tr. 33, 50). The accumulations of two feet of compacted
coal dust by the tail roller created a fire hazard and posed a high risk of danger, which the
examiner failed to report. (Tr. 33). The probability of the accumulations lasting longer than one
shift also indicate that Foreman Skolnick was likely on notice of the condition and still did not
abate the condition or report it. Finally, the Respondent was on notice that greater efforts were
necessary for compliance with § 75.363(b) given the 107 § 75.400 accumulation violations the
Respondent received in the previous two years. (GX 1).
In considering all of the Manalapan factors, this Court finds the unwarrantable failure
assessment to be appropriate. Cf. Manalapan Mining Co., 35 FMSHRC at 293. The Respondent
had a duty to accurately report the accumulations in crosscuts 36-39 and it failed to do so,
creating the possibility of a fire and smoke hazard for miners. Accordingly, the Secretary has
shown by a preponderance of the evidence that the violative conduct cited in Order No. 8061124
constituted an unwarrantable failure and that the Respondent was highly negligent in failing to
report the § 75.400 violation.
D.

Penalty

In determining the appropriate civil penalty, the Commission applies the statutory criteria
in § 110(i) of the Mine Act. This section provides:
In assessing civil monetary penalties, the Commission shall consider the operator's
history of previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve rapid compliance
after notification of a violation. In proposing civil penalties under this chapter, the
Secretary may rely upon a summary review of the information available to him and shall
not be required to make findings of fact concerning the above factors.
30 U.S.C. § 802(i).
The Respondent is a large operator, with an annual coal tonnage of 5,550,146 produced at
Powhatan No. 6 Mine. (GX 1, 9). The parties have stipulated that payment of the civil penalty
proposed by the Secretary will not affect the Respondent’s ability to remain in business. J.S. 10.

38 FMSHRC Page 1096

Order No. 8061123 was assessed as S&S with lost workdays or restricted duty. (GX 1). This
court has affirmed the high negligence assessment and the unwarrantable failure designation.
The gravity of injury was high due to the fire and smoke inhalation dangers posed by the
accumulations. While there was compliance with the order in the two hours after the order was
issued, the other statutory criteria weigh heavily against the Respondent. (GX 1). Thus, the
originally proposed penalty for this violation was appropriate. Accordingly, Respondent is
assessed a civil penalty of $8,421.00.
Given that the violative conduct in Order No. 8061124 has been assessed as S&S with
lost workdays or restricted duty, and given the high negligence and unwarrantable failure
findings, and having considered all of the statutory criteria in § 110(i), this Court finds the
Secretary’s originally assessed penalty to be appropriate. (GX-9). Additionally, as the same
circumstances involving the mine size, ability to remain in business, gravity, and compliance
apply to this order, the proposed civil penalty of $6,115.00 is affirmed.
VII.

Conclusion

This court AFFIRMS Order No. 8061123 and Order No. 8061124. Consequently, it is
ORDERED that Respondent pay the Secretary of Labor the sum of $14,536.00 within 30 days
of the date of this Decision.10 Upon receipt of payment, this case is hereby DISMISSED.

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

Distribution:
Helga Spencer, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630E, The Curtis
Center, 170 S. Independence Mall West, Philadelphia, PA 19106
Jason W. Hardin, Esq., Fabian VanCott, 215 South State Street, Suite 1200, Salt Lake City, UT
84111

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
10

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

38 FMSHRC Page 1097

!"#"$%&'()*"'+%!",-'%*#'."%&,.'$"/)"0'12(()++)2*!
"##$%&!"#!'()$*$+,-',$.&!/'0!12(3&+!
4554!6&**+7/.'*$'!'.&89!*8089!+2$,&!:;<*!
0'+=$*3,"*9!(%!;<<<>?4@4<!
,&/&6="*&A!;<;?>5>?BB:<!C!#'DA!;<;?>5>?BB>B!

May 16, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2014-0620
A.C. No. 15-17497-354134

v.
BLUE DIAMOND COAL COMPANY,
Respondent

Mine: Mine No. 68

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge McCarthy

This case is before me upon a Petition for the Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
The Respondent has filed a Notice of Withdrawal of Contest, which I will construe as a
motion to approve settlement. The Respondent has agreed to pay the $139,100.00 penalty
proposed by the Secretary.
Blue Diamond Coal Company’s parent company, James River Coal Company, filed for
Chapter 11 Bankruptcy Protection on April 7, 2014 in the United State Bankruptcy Court for the
Eastern District of Virginia, In Re James River Coal Co. Et al., Case No. 31848-KRH (E.D.
Va.). Section 362(a) of the Bankruptcy Code provides for an automatic stay of the
commencement or continuation of any administrative or judicial proceedings against a Chapter
11 Bankruptcy petitioner. 11 U.S.C. § 362(a). An exception to this stay, however, is granted by
§362(b)(4), which exempts from the automatic stay any proceeding by a governmental unit to
enforce its police or regulatory power. 11 U.S.C. §362(b)(4). This exception has been applied
to cases seeking equitable relief and cases concerning monetary damages or penalties. See In re
Commerce Oil Co., 847 F.2d 291, 297 (6th Cir. 1988); United States v. Nicolet, Inc., 857 F.2d
202, 208-10 (3d Cir. 1988); U.S. v. Oil Transport Co., Inc., 172 B.R. 834 (Bankr. E.D. La.
1994); U.S. v. Energy Intern,, Inc., 19 B.R. 1020 (Bankr. S.D. Ohio 1981)(holding that action by
the United States to collect a civil penalty assessed by the Department of the Interior, Office of
Surface Mining, against debtor, for numerous violations of Surface Mining Control and
Reclamation Act of 1977, was one to enforce its regulatory power and thus not stayed by the
debtor's filing of a bankruptcy petition)). The Commission has held that the Secretary of Labor,

38 FMSHRC Page 1098

Department of Labor, and MSHA are “government units” within the meaning of 362(b)(4), as
the Secretary of Labor brings civil penalty proceedings in an effort to effectuate and enforce the
mandatory safety standards of the Mine Act. Big Laurel Mining Corp., 37 FMSHRC 1997,
1997-99 (Sept. 2015); Hidden Splendor Res., Inc., 35 FMSHRC 1548, 1549-50 (June 2013);
Hoist Excavating, Inc.¸17 FMSHRC 101, 102 (Feb. 1995); Jim Walter Res., Inc., 12 FMSHRC
1521, 1530 (Aug. 1990).
Although the entry of a money judgment by a governmental unit, if related to its police or
regulatory powers, is not affected by the automatic stay, actual enforcement of such judgment
must take place through the bankruptcy court. In re Weller, 189 B.R. 467, 471 (Bankr. E.D. Wis.
1995); NLRB v. Continental Hagen Corp., 932 F.2d 828, 834 (9th Cir.1991); NLRB v. P.I.E.
Nationwide, Inc., 923 F.2d 506 (7th Cir.1991); Eddleman v. U.S. Dept. of Labor, 923 F.2d 782
(10th Cir.1991); In re Tauscher, 7 B.R. 918 (Bankr. E.D. Wis. 1981).
Pursuant to 29 C.F.R. 2700.1(b) and Federal Rule of Civil Procedure 12(f), I strike
paragraph four from the Secretary’s Motion as immaterial and impertinent to the issues
legitimately before the Commission. This paragraph incorrectly cites and interprets the case law
and misrepresents the statute, regulations, and Congressional intent regarding settlements under
the Mine Act. Instead, I have evaluated the proposed settlement in accordance with sections
110(i) and 110(k) of the Act.

38 FMSHRC Page 1099

I have considered the representations and documentation submitted in this case, and I
conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i)
of the Act. The settlement amounts are as follows:
Citation No.

Assessment

Settlement

8386785

$3,700.00

$3,700.00

8386786

$47,200.00

$47,200.00

8386793

$52,500.00

$52,500.00

8386794

$35,700.00

$35,700.00

$139,100.00

$139,100.00

WHEREFORE, the motion for approval of settlement is GRANTED.
It is further ORDERED that the operator pay a total penalty of $139,100.00 within thirty
(30) days of this order.1

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge
Distribution:
Eric Johnson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North,
Suite 420, Nashville, TN 37219
John Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Circle,
Suite 375, Lexington, KY 40513
/med

1

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

38 FMSHRC Page 1100

!"#"$%&'()*"'+%!",-'%*#'."%&,.'$"/)"0'12(()++)2*!
!
"##$%&!"#!'()$*$+,-',$.&!/'0!12(3&+!
4554!6&**+7/.'*$'!'.&89!*8089!+2$,&!:;<*!
0'+=$*3,"*9!(%!;<<<>?4@4<!
,&/&6="*&A!;<;?>5>?BB:<!C!#'DA!;<;?>5>?BB>B!

May 16, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2014-0610
A.C. No. 12-02323-354949

v.
TRIAD UNDERGROUND MINING,
LLC,
Respondent

Mine: Freelandville West

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge McCarthy

This case is before me upon a Petition for Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
The Respondent has filed a Notice of Withdrawal of Contest, which I construe as a
motion to approve settlement. The Respondent has agreed to the $52,500.00 penalty proposed by
the Secretary.
Triad Underground Mining’s parent company, James River Coal Company, filed for
Chapter 11 Bankruptcy Protection on April 7, 2014 in the United State Bankruptcy Court for the
Eastern District of Virginia, In Re James River Coal Co. Et al., Case No. 31848-KRH (E.D.
Va.). Section 362(a) of the Bankruptcy Code provides for an automatic stay of the
commencement or continuation of any administrative or judicial proceedings against a Chapter
11 Bankruptcy petitioner. 11 U.S.C. § 362(a). An exception to this stay, however, is granted by
§362(b)(4), which exempts from the automatic stay any proceeding by a governmental unit to
enforce its police or regulatory power. 11 U.S.C. §362(b)(4). This exception has been applied to
cases seeking equitable relief and cases concerning monetary damages or penalties. See In re
Commerce Oil Co., 847 F.2d 291, 297 (6th Cir. 1988); United States v. Nicolet, Inc., 857 F.2d
202, 208-10 (3d Cir. 1988); U.S. v. Oil Transport Co., Inc., 172 B.R. 834 (Bankr. E.D. La.
1994); U.S. v. Energy Intern,, Inc., 19 B.R. 1020 (Bankr. S.D. Ohio 1981)(holding that action by
the United States to collect a civil penalty assessed by the Department of the Interior, Office of
Surface Mining, against debtor, for numerous violations of Surface Mining Control and
Reclamation Act of 1977, was one to enforce its regulatory power and thus not stayed by the
debtor's filing of a bankruptcy petition)). The Commission has held that the Secretary of Labor,
Department of Labor, and MSHA are “government units” within the meaning of 362(b)(4), as

38 FMSHRC Page 1101

the Secretary of Labor brings civil penalty proceedings in an effort to effectuate and enforce the
mandatory safety standards of the Mine Act. Big Laurel Mining Corp., 37 FMSHRC 1997,
1997-99 (Sept. 2015); Hidden Splendor Res., Inc., 35 FMSHRC 1548, 1549-50 (June 2013);
Hoist Excavating, Inc.¸17 FMSHRC 101, 102 (Feb. 1995); Jim Walter Res., Inc., 12 FMSHRC
1521, 1530 (Aug. 1990).
Although the entry of a money judgment by a governmental unit, if related to its police or
regulatory powers, is not affected by the automatic stay, actual enforcement of such judgment
must take place through the bankruptcy court. In re Weller, 189 B.R. 467, 471 (Bankr. E.D. Wis.
1995); NLRB v. Continental Hagen Corp., 932 F.2d 828, 834 (9th Cir.1991); NLRB v. P.I.E.
Nationwide, Inc., 923 F.2d 506 (7th Cir.1991); Eddleman v. U.S. Dept. of Labor, 923 F.2d 782
(10th Cir.1991); In re Tauscher, 7 B.R. 918 (Bankr. E.D. Wis. 1981).
Pursuant to 29 C.F.R. 2700.1(b) and Federal Rule of Civil Procedure 12(f), I strike
paragraph four from the Secretary’s Motion as immaterial and impertinent to the issues
legitimately before the Commission. This paragraph incorrectly cites and interprets the case law
and misrepresents the statute, regulations, and Congressional intent regarding settlements under
the Mine Act. Instead, I have evaluated the proposed settlement in accordance with sections
110(i) and 110(k) of the Act.
I have considered the representations and documentation submitted in this case, and I
conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i)
of the Act. The settlement amount is as follows:
Citation No.

Assessment

Settlement

8450217

$52,500.00

$52,500.00

$52,500.00

$52,500.00

WHEREFORE, the motion for approval of settlement is GRANTED.
It is further ORDERED that the operator pay a total penalty of $52,500.00 within thirty
(30) days of this order.2

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

2

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

38 FMSHRC Page 1102

Distribution:
Edward Hartman, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn St.,
8th Floor, Chicago, IL 60604
John Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Circle,
Suite 375, Lexington, KY 40513
/med

38 FMSHRC Page 1103

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'

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4554&6%**+7/.'*#'&'.%*2%8&*08&+2#,%&9:;*&
0'+<#*3,!*8&(=$=&:;;;>&
,?@?ABCD?&*C=E&F:;:G&>5>HII;;&J&"KL&*C=E&F:;:G&>5>HII>I&

May 16, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2013-1149
A.C. No. 46-06750-326262

v.
EAGLE CREEK MINING, LLC,
Respondent

Mine: Eagle Creek No. 5 Mine&
DECISION AND ORDER

Appearances:

Paige Bernick, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner
Mark A. Heath, Esq., Spilman Thomas & Battle, PLLC, Charleston, West
Virginia, for Respondent

Before:

Judge McCarthy
I.'

INTRODUCTION

“[I]n this world, with great power there must also come -- great responsibility.” Kimble v.
Marvel Entertainment, LLC, 135 S. Ct. 2401, 2415 (2015) (quoting S. Lee and S. Ditko,
Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962)). MSHA inspectors are entrusted with
great power to ensure a safe working environment for miners in an inherently dangerous
industry. An MSHA inspector’s testimony is given great weight by the Commission, but abuse of
position can undermine confidence in the inspection process.
The credible testimony in the instant case indicates that MSHA inspector Curtiss (Bud)
Vance III overtly displayed animus toward foreman Jay Curry for prior discipline that Vance
received pursuant to Curry’s recommendation when both worked at the Old Hickory Mine years
earlier. Further, inspector Vance prevaricated and cursorily checked the abatement measures for
some allegations in the citations at issue in this matter. This irresponsible conduct by an MSHA
inspector does a large disservice by undermining public faith in the agency’s critical inspection
process.

!

38 FMSHRC Page 1104

II.'

STATEMENT OF THE CASE

This case is before me upon a Petition for the Assessment of Civil Penalty filed by the
Secretary of Labor (Secretary) under section 105(d) of the Federal Mine Safety and Health Act
of 1977 (the Mine Act), 30 U.S.C. §814(d). The parties filed a Joint Motion to Approve
Settlement of eight of the thirteen citations in Docket No. WEVA 2013-1149. Specifically, the
parties agreed to settle Citation Nos. 7162341, 7162347, 7162348, 7162349, 7162350, 7162353,
7162354, and 7162356. I issued a Decision Approving Partial Settlement on September 29,
2014. Five citations, Citation Nos. 7162340, 7162343, 7162344, 7162346, and 7162351, were
litigated and remain at issue.
Four of the five remaining citations involve various alleged violations concerning two
Caterpillar 777D and two Caterpillar 777F rock haulage trucks cited during Vance’s inspection
of Eagle Creek Mine #5, a surface bituminous coal mine in Logan County, West Virginia, on
April 30, 2013. The fifth citation involves a water truck cited on May 2, 2013. The Respondent
argues that Citations Nos. 7162346 and 7162351 involving the Caterpillar 777F trucks should be
vacated. Further, Respondent disputes the significant and substantial (S&S) designations for all
five citations, and the fatality designation as the injury or illness that could reasonably be
expected to occur for four of the citations. Respondent also disputes the appropriateness of the
civil penalties proposed by the Secretary. R. Br. 1. Respondent argues that inspector Vance’s
alleged bias against foreman Curry greatly affected the paper that was written, its classification,
and the Secretary’s case. R. Br. 1.
A hearing was held in Charleston, West Virginia. The parties introduced testimony and
documentary evidence,1 and witnesses were sequestered.2 The parties filed post-hearing briefs.
On July 21, 2014, the Secretary filed a Motion to Reopen the Record to admit certified
data for April and May 2013 from the National Climatic Data Center for Logan, West Virginia.
ALJ Ex. 1. Thereafter, Respondent filed an Opposition, or in the alternative, a Motion to Permit
Rebuttal Evidence and to Take Judicial Recognition of Related Evidence. ALJ Ex. 2. The
undersigned grants both motions and receives all proffered evidence from each party.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1

There are two volumes of transcripts. Volume I contains pages 1 to 352, and volume II
contains pages 1 to 199. Citations to transcript volume I are indicated by “Tr.” followed by the
page cite. Citations to transcript volume II are indicated by “Tr. II,” followed by the page cite.
Jt. Exs. 1-6 were received into the record. Petitioner Exhibits (P. Exs.) 1-13 and Respondent’s
Exhibits (R. Exs.) 1-4 were received into evidence. The Secretary’s post-hearing motion to
reopen the record, and memorandum of law in support, with attached exhibit A, is received as
ALJ Ex. 1. Respondent’s opposition and alternative motion to permit rebuttal evidence and take
judicial notice of related evidence is received as ALJ Ex. 2.
2

In resolving conflicts in testimony, I have taken into consideration the demeanor of the
witnesses, their interests in this matter, the inherent probability of their testimony in light of
other events, corroboration or lack of corroboration for testimony given, experience and
credentials, and consistency, or lack thereof, within the testimony of witnesses and between the
testimony of witnesses.
!

38 FMSHRC Page 1105

On the entire record, and after considering the post-hearing briefs and motions, I make
and rely on the following findings of fact and conclusions of law:
III.'

CONTROLLING PRINCIPLES OF LAW

A. Establishing a Violation
To prevail on a penalty petition, the Secretary bears the burden of proving by a
preponderance of the credible evidence that a violation of the Mine Act occurred. RAG
Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir.
2001). A mine operator is held strictly liable for violations that occur at its mine. Spartan Mining
Co., 30 FMSHRC 699, 706 (Aug. 2008). The operator may avoid liability by showing that it was
not properly on notice of the violative nature of its conduct. LaFarge North America, 35
FMSHRC 3497, 3500-01 (Dec. 2013). Even in the absence of actual notice, the Secretary may
properly charge the operator with a violation when a reasonably prudent person familiar with the
protective purposes of the cited standard and the factual circumstances surrounding the allegedly
hazardous condition, including any facts peculiar to the mining industry, would have recognized
a hazard warranting corrective action within the purview of the applicable regulation. Id.; Ideal
Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (Dec. 1982).
B. Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984)); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of the
standard 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,
e.g., Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ).
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. The Commission has recognized that an
assessment of the likelihood of injury is to be made assuming continued normal mining
operations, without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985).
C. Significant and Substantial (S&S)
The Mine Act describes an S&S violation as one “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).3
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
3

See also Id. § 814(e), the Mine Act’s pattern-of-violations provision, which is the only
other provision that mentions S&S, and which defines the term the same way as § 814(d)(1).

!

38 FMSHRC Page 1106

In a seminal early decision interpreting this statutory provision, the Commission held that
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.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In so holding, the Commission rejected the Secretary’s argument that all violations are S&S
except technical violations or violations that pose only a remote or speculative risk of injury or
illness. Id. The Commission found that the Secretary’s interpretation would result in almost all
violations being categorized as S&S, which would be inconsistent with the statutory language
and the role the S&S provision is intended to play in the Mine Act’s graduated enforcement
scheme. Id. at 825, 828. The Commission also found that the Secretary’s interpretation would
leave little room for inspectors to exercise their independent judgment. Id. at 825-26.4 In
addition, the Commission found that the Secretary’s interpretation would render the Act’s S&S
language almost superfluous, and would render the Act’s pattern-of-violation provisions wholly
punitive by making it almost impossible for a mine to be relieved of withdrawal order liability
once placed on notice of a pattern of violations. Id. at 826-27. Although the Commission did not
develop a test to determine whether violations are S&S, it enunciated several guiding principles.
Specifically, it stated that the term “hazard” denotes “a measure of danger to safety or health”
and that a violation is S&S if it “could be a major cause” of such a danger. Id. at 827.
In its subsequent Mathies decision, the Commission set forth a four-prong test for
determining whether a violation is S&S under National Gypsum. Mathies Coal Co., 6 FMSHRC
1 (Jan. 1984). To establish an S&S violation, the Secretary must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of
danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature. Id. at 3-4. The Secretary, mine operators, and the federal
appellate courts have accepted the Mathies test as authoritative. See Knox Creek Coal Corp. v.
Sec’y of Labor, 811 F.3d 148, 160 (4th Cir. 2016) (noting federal appellate courts’ uniform
adoption of Mathies test and parties’ recognition of authority of test); Mach Mining, LLC v.
Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies criteria); Buck Creek
Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir. 1995) (recognizing
wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving use of Mathies criteria).
Ensuing case law has solidly established several general principles regarding the proper
application of the Mathies test. The Commission has held that the S&S determination should be
made assuming “continued normal mining operations.” McCoy Elkhorn Coal Corp., 36
FMSHRC 1987, 1990-91 (Aug. 2014) (citing U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
4

The Commission has consistently reiterated that the inspector’s judgment is an
important element of the S&S determination. However, the concept has generally been raised in
the context of deferring to the inspector’s opinion that a violation was S&S, rather than in the
context of examining whether the inspector exercised independent judgment in forming this
opinion as opposed to merely following the “mechanical approach” advanced by the Secretary
and rejected by the Commission in National Gypsum, 3 FMSHRC at 825. See, e.g., Wolf Run
Mining Co., 36 FMSHRC 1951, 1959 (Aug. 2014); Maple Creek Mining, Inc., 27 FMSHRC 555,
563 n.6 (Aug. 2005); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998).

38 FMSHRC Page 1107

(Aug. 1985)). The assumption of continued normal mining operations considers “the length of
time that the violative condition existed prior to the citation and the time it would have existed if
normal mining operations had continued,” without any assumptions as to abatement. Black
Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest
Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 11 FMSHRC
1432, 1435 (Aug. 1989); see also Knox Creek, 811 F.3d at 165-66 (upholding Commission’s
rejection of “snapshot” approach to evaluating S&S for accumulations violation); Mach Mining,
809 F.3d at 1267-68 (citing with approval McCoy Elkhorn’s discussion of operative timeframe
for S&S). The Commission has repeatedly stated that the S&S determination must be based on
the particular facts surrounding the violation. See, e.g., Wolf Run Mining Co., 36 FMSHRC 1951,
1957-59 (Aug. 2014) (remanding S&S finding for further consideration of relevant
circumstances); Black Beauty, 34 FMSHRC at 1740; Peabody Coal Co., 17 FMSHRC 508, 51112 (Apr. 1995); Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988).
A line of cases beginning with the Seventh Circuit’s decision in Buck Creek, supra, has
established that an operator cannot rely on redundant safety measures to mitigate the likelihood
of injury for S&S purposes. See, e.g., Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug.
2015).5 Finally, Commission precedent indicates that the likelihood of injury is the key
consideration in determining whether a violation is S&S. Consolidation Coal Co., 18 FMSHRC
1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood
of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”).
The evolving case law, however, has presented conflicting guidance as to how some of
these principles should be applied. In particular, there is some confusion about how to evaluate
the facts surrounding the violation and the likelihood of injury under the second and third prongs
of the Mathies analysis. The Fourth Circuit’s recent decision in Knox Creek, supra, and the
Seventh Circuit’s decision in Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir.
2014), have cast doubt on whether the traditional application of the literal language of the second
and third prongs of the Mathies test is still valid.
Traditional Application of Mathies Test
Under the traditional approach, Commission Administrative Law Judges (ALJs) have
conducted the fact-intensive component of the analysis and evaluated the reasonable likelihood
of injury at the third prong. In one of its earliest decisions applying the Mathies test, the
Commission explained that “the reference to ‘hazard’ in the second element [of the test] is
simply a recognition that the violation must be more than a mere technical violation – i.e., that

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
5

It is not completely clear whether redundant safety measures are precluded from
consideration such that it is error to take them into account, which could make it difficult for
judges at the trial level to discharge their duty of considering all the particular facts surrounding
the violation, or whether arguments that rely on redundant safety measures are simply disfavored
as a defense to S&S. Compare Brody Mining, 37 FMSHRC at 1691 (stating that evidence
regarding redundant safety measures has been “consistently rejected as irrelevant”) with Black
Beauty Coal Co., 36 FMSHRC 1121, 1125 n.5 (May 2014) (stating only that such measures “do
not prevent a finding of S&S”) and Buck Creek, 52 F.3d at 136 (“The fact that Buck Creek has
safety measures in place to deal with a fire does not mean that fires do not pose a serious safety
risk to miners.”).
!

38 FMSHRC Page 1108

the violation present a measure of danger.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug.
1984). “There is no requirement of ‘reasonable likelihood’” encompassed in this element.
Musser Engineering, Inc., 32 FMSHRC 1257, 1280 (Sept. 2010). Rather, longstanding
Commission precedent indicates that the likelihood of harm should be accounted for in the third
Mathies element, which “requires that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is an injury.” U.S. Steel, 6 FMSHRC
at 1836 (quoted by the Commission on numerous occasions over the next two decades, including
in Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Bellefonte Lime Co., 20 FMSHRC
1250, 1254-55 (Nov. 1998); Zeigler Coal Co., 15 FMSHRC 949, 953 (June 1993); and
Texasgulf, 10 FMSHRC at 500). As the Commission explained in another early decision, “The
third element embraces a showing of a reasonable likelihood that the hazard will occur, because,
of course, there can be no injury if it does not.” Consolidation Coal Co., 6 FMSHRC 189, 193
(Feb. 1984).
Following this guidance, ALJs have traditionally applied Mathies by identifying the
potential hazard at the second prong, and then at the third prong, assessing whether there is a
reasonable likelihood that the hazard will result in injury under the particular facts of the case at
hand, with the caveat that normal mining operations are assumed to continue without abatement
of the violation. The crux of this traditional Mathies analysis is the third and fourth prongs of the
test, which effectuate National Gypsum’s definition of S&S (reasonable likelihood of a
reasonably serious injury) and are often combined into a single showing (reasonable likelihood
that a particular serious injury will occur under the facts of the case). Consistent with this
approach, MSHA inspectors determine whether a violation meets the criteria for S&S by the
likelihood of injury and the expected severity of injury, which correspond to the third and fourth
Mathies elements.6
Over the years, it appears that the Commission, with court approval, has developed
special rules for applying the Mathies test in two situations. First, for violations that contribute to
the hazard of an ignition, fire, or explosion, the Commission has held that the third Mathies
element is satisfied only when a “confluence of factors” is present that could have triggered an
ignition, fire, or explosion, under continued normal mining operations. Zeigler Coal Co., 15
FMSHRC at 953; Texasgulf, 10 FMSHRC at 501; see, e.g., Paramont Coal Co. Va., LLC, 37
FMSHRC 981, 984 (May 2015). Second, for violations of emergency safety standards, the
Commission assumes the emergency when making the S&S evaluation. See, e.g., Cumberland
Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027-28 (D.C. Cir. 2013); Mill Branch Coal Corp.,
37 FMSHRC 1383, 1394 (July 2015).
Effect of Recent Fourth & Seventh Circuit Decisions
The Fourth Circuit’s recent Knox Creek decision issued in January 2016 appears to shift
the focus of the S&S analysis from the third to the second Mathies prong and to restrict
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
6

The Secretary’s citation/order form contains boxes for inspectors to check the likelihood
of injury and the expected severity of injury immediately above the line where they designate the
violation S&S or non-S&S. Inspectors are trained not to designate a violation as S&S, unless
item 10.A on the form is marked “reasonably likely,” “highly likely,” or “occurred,” and item
10.B is marked “lost workdays or restricted duty,” “permanently disabling,” or “fatal.” See
MSHA, PROGRAM POLICY MANUAL, Vol. I, § 104 (2003).
!

38 FMSHRC Page 1109

consideration of the facts bearing on the reasonable likelihood of injury under the third prong.
The Fourth Circuit interpreted the second Mathies prong to entail an inquiry into the likelihood
of harm, stating:
In our view, the second prong of the test … primarily accounts for
the Commission’s concern with the likelihood that a given
violation may cause harm. This follows because, for a violation to
contribute to a discrete safety hazard, it must be at least somewhat
likely to result in harm.
Knox Creek, 811 F.3d at 162. Significantly, the Fourth Circuit further held that the occurrence of
the hazard must be assumed under the third prong of the Mathies test. Id. at 161-65. Evidence of
the likelihood that the hazard will occur is not considered at this prong, according to the Fourth
Circuit. Rather, the inquiry is whether the hazard, assuming it occurred, would result in serious
injury. Id. at 162. The particular hazard confronted by the Fourth Circuit was the escape of
ignited gas into the mine atmosphere through impermissible enclosures. Id. at 164. The parties
had stipulated that the mine was a “gassy” mine that liberated more than 500,000 cubic feet of
methane or other explosive gases per day. Id. at 164. Consequently, the ALJ had found that
methane was reasonably likely to accumulate to explosive concentrations. Id. The ALJ had also
found that a resulting explosion was reasonably likely to cause serious injuries, but he had
ultimately declined to find that the violation was S&S because the Secretary had failed to prove
the likelihood of an ignition. Id. at 154, 164-65. Without discussing the likelihood of ignition, the
Fourth Circuit deemed the ALJ’s other findings sufficient to satisfy the third Mathies prong. Id.
Previously, in Peabody Midwest Mining, the Seventh Circuit had similarly suggested that
the S&S analysis assumes the occurrence of the hazard. The violation at issue in that case was
the mine operator’s failure to erect berms on an elevated roadway. The Seventh Circuit defined
the hazard as the risk that a vehicle would veer off the roadway and go over the edge. Peabody
Midwest, 762 F.3d at 616. The operator had argued that a vehicle was not reasonably likely to
veer off the road. Id. However, the Seventh Circuit stated that the question “is not whether it is
likely that the hazard (a vehicle plummeting over the edge) would have occurred” but “whether,
if the hazard occurred (regardless of likelihood), it was reasonably likely that a reasonably
serious injury would result.” Id.
Peabody Midwest does not discuss the proper role of deference in the S&S context, but
the Fourth Circuit reached its holding in Knox Creek by deferring to the Secretary’s
interpretation that the third Mathies element requires proof that the hazard, not the violation
itself, is likely to cause injury. 811 F.3d at 161. The Fourth Circuit further asserted that this
interpretation is consistent with a number of prior cases, including the Seventh Circuit’s
decisions in Peabody Midwest and in Buck Creek, supra, 52 F.3d at 135 (assuming occurrence of
fire at third Mathies prong when ALJ had engaged in “confluence of factors” analysis at second
prong); the Fifth Circuit’s decision in Austin Power, supra, 861 F.2d at 103-04 (declining to
require evidence that the hazard was likely to occur); and the Commission’s decision in Musser
Engineering, supra, 32 FMSHRC at 1280-81 (stating that third Mathies prong requires showing

!

38 FMSHRC Page 1110

that the hazard, not the violation itself, will cause injury). 811 F.3d at 161-62.7 The Fourth
Circuit rejected the operator’s argument that under Zeigler Coal Company, supra, the Secretary
must show that an ignition is reasonably likely under the third Mathies prong. 811 F.3d at 164.
The Court found this position to be “flatly contradicted” by Musser Engineering and by
decisions of other federal appellate courts. Id.
The Fourth Circuit emphasized, however, that the Mathies approach that it has adopted
“still allows plenty of room for a fact-intensive S & S analysis, both under prong two, where the
Secretary must establish that the violation contributes to a discrete safety hazard, and within
prongs three and four, where evidence is still necessary to establish that the hazard is reasonably
likely to result in a serious injury.” Id. Realistically, however, it will likely require very little
fact-specific analysis to conclude that any given non-technical violation contributes to a discrete
safety hazard, because the Secretary generally does not promulgate a mandatory health and
safety regulation (except technical regulations), unless the Secretary has already found that
violating the standard would contribute to a hazard. Under the third Mathies prong, judges must
consider all of the facts surrounding the violation, but must assume continued normal mining
operations without abatement of the violation, and may not rely on redundant safety measures to
mitigate the likelihood of injury. Now, under Knox Creek and Peabody Midwest Mining, judges
must also assume that the hazard will actually occur. At some point, so many circumstances are
either assumed or precluded from consideration that judges will find themselves evaluating the
likelihood of injury in the abstract. If this is the case, the Commission will have turned its back
on the principles set forth in National Gypsum because the Mathies test will have become a
longhand expression for “non-technical violations.” S&S will apply to almost all violations and
therefore will no longer serve as a statutory tool by which the Secretary can single out the
violations that he believes the Commission should consider significant and substantial when
assessing a penalty.
As noted above, the Fourth Circuit reached its result in Knox Creek by deferring to the
Secretary’s interpretation of the Mine Act, and the Seventh Circuit reached a similar result. It is
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7

It is debatable to what extent Austin Power and Buck Creek truly stand for the
proposition the Fourth Circuit seems to be embracing, which is that the actual likelihood of
injury is irrelevant except to the extent necessary to establish a “discrete” hazard at the second
Mathies prong. In Austin Power, the Fifth Circuit upheld an S&S finding for a fall protection
violation, reasoning that “[a] danger of falling is a necessary element of this violation, so by the
very nature of a violation there was a discrete safety hazard.” 861 F.2d at 103. However, the
hazard had actually occurred and had resulted in a fatality, which may have influenced the
Court’s failure to require additional evidence of likelihood at the third Mathies prong. 861 F.2d
at 100. In Buck Creek, the Seventh Circuit did not expressly discuss the proper application of the
Mathies test, but simply rejected the mine operator’s argument that the ALJ had not put enough
emphasis on the third and fourth Mathies factors when evaluating S&S for an accumulations
violation. 52 F.3d at 135. The ALJ had made a finding at the second Mathies prong (rather than
the third) that there existed a confluence of factors, including fuel sources and ignition sources,
that could trigger a fire. Id. By contrast, in Knox Creek, the Fourth Circuit did not require a
“confluence of factors” analysis or a showing that an ignition source existed at any prong of the
Mathies test.

!

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not surprising that the Circuit Courts have departed somewhat from the traditional Mathies
analysis because the Secretary’s attorneys, and not the Commission’s, are the ones who argue for
enforcement of the Commission’s decisions in the Circuit Courts of Appeals. That is strange. It
should be obvious that since the Secretary is one of the litigating parties before the Commission
at the trial level, the Commission’s and the Secretary’s views on interpretation of the Act may
differ. See e.g., The American Coal Co., 36 FMSHRC 1311 (May 2014)(ALJ), petition for
interlocutory review granted, Unpublished Order dated July 11, 2014. In my view, the
Commission’s interpretations of Mine Act provisions that turn on adjudication and not
enforcement should be accorded at least some form of “Skidmore” deference based on the power
to persuade, as evidenced by the fact that courts and litigants have uniformly followed the
Commission-derived Mathies test.8 It is within the Commission’s authority to specify how the
second and third factors of the Mathies test should be applied – particularly, whether the hazard
must now be assumed at the third factor, and if so, what steps of the test account for the facts
surrounding the violation – and whether the Mathies test is still intended to effectuate National
Gypsum’s interpretation of the S&S provisions of the Mine Act or whether the Commission now
interprets S&S differently.
Because I am bound by the Mathies test, I will evaluate S&S under this test after taking
into consideration the more recent approach set forth in Knox Creek and Peabody Midwest
Mining.
D. Negligence
Negligence is not defined in the Mine Act. The Commission has found “[e]ach
mandatory standard thus carries with it an accompanying duty of care to avoid violations of the
standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15
(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under
the cited standard, the Commission considers what actions would have been taken under the
same or similar circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 6
FMSHRC 1908, 1910 (Aug. 1984). See also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975,
1976-77 (Aug. 2014) (requiring Secretary to show that operator failed to take specific action
required by standard violated); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008)
(negligence inquiry circumscribed by scope of duties imposed by regulation violated).
The Mine Act imposes a high standard of care on foremen and supervisors. Midwest
Material Co., 19 FMSHRC 30, 35 (Jan. 1997) (holding that “a foreman … is held to a high
standard of care”); see also Capitol Cement Corp., 21 FMSHRC 883, 892-93 (Aug. 1999)
(“Managers and supervisors in high positions must set an example for all supervisory and
nonsupervisory miners working under their direction,” quoting Wilmot Mining Co., 9 FMSHRC
684, 688 (Apr. 1987)); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995) (heightened
standard of care required of section foreman and mine superintendent).
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
8

But see Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027 (D.C. Cir. 2013)
(expressly declining to address validity of Mathies test).
!

38 FMSHRC Page 1112

Although MSHA’s regulations regarding negligence are not binding on the Commission,
see Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines
negligence by regulation in the civil penalty context 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. The
negligence criterion assigns penalty points based on the degree to
which the operator failed to exercise a high standard of care.
When applying this criterion, MSHA considers mitigating
circumstances which may include, but are not limited to, actions
taken by the operator to prevent or correct hazardous conditions or
practices . . . .
30 C.F.R. § 100.3(d).
MSHA regulations further provide that mitigation is something the operator does
affirmatively, with knowledge of the potential hazard being mitigated, and that tends to reduce
the likelihood of an injury to a miner. This includes actions taken by the operator to prevent or
correct hazardous conditions. 30 C.F.R. § 100.3(d). According to MSHA, the level of
negligence is properly designated as high when “[t]he operator knew or should have known of
the violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R. §
100.3, Table X. The level of negligence is properly designated as moderate when “[t]he operator
knew or should have known of the violative condition or practice, but there are mitigating
circumstances.” Id. The level of negligence is properly designated as low when there are
considerable mitigating circumstances surrounding the violation. Id.
Recently, the Commission held that Commission judges are not required to apply the
level-of-negligence definitions in Part 100 and may evaluate negligence from the starting point
of a traditional negligence analysis rather than from the Part 100 definitions. Brody Mining, LLC,
37 FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d
1259, 1263-64 (D.C. Cir. 2016). Moreover, because Commission judges are not bound by the
definitions in Part 100 when considering an operator’s negligence, they are not limited to a
specific evaluation of potential mitigating circumstances, and may find “high negligence,” in
spite of mitigating circumstances, or moderate negligence, without identifying mitigating
circumstances. Brody, 37 FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. In this regard,
the gravamen of high negligence is “an aggravated lack of care that is more than ordinary
negligence.” Brody, 37 FMSHRC at 1701 (citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr.
1998)). Thus, in making a negligence determination, a Commission judge is not limited to an
evaluation of allegedly mitigating circumstances and may consider the totality of the
circumstances holistically. Under such an analysis, an operator is negligent if it fails to meet the
requisite high standard of care under the Mine Act. Id.

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E. Penalty Assessment
The Act requires that the Commission consider the following statutory criteria when
assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness
of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability
to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after
notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30
U.S.C. § 820(i). The Commission is not required to give equal weight to each of the criteria, but
must provide an explanation for any substantial divergence from the proposed penalty based on
such criteria. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008).
As I discussed in my final Big Ridge decision, in an effort to avoid the appearance of
arbitrariness, I look to the Secretary’s penalty regulations and assessment formula as a reference
point that provides useful guidance when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC
1677, 1681-82 (July 2014) (ALJ); see also Wade Sand & Gravel, supra, at 1880 n.1 (Chairman
Jordan and Commissioner Nakamura, concurring). See also Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945) (holding that an agency’s interpretation of its own regulation
should be given controlling weight unless it is plainly erroneous or inconsistent with the
regulation). This formula is not binding, but operates as a lodestar, since factors involved in a
violation, such as the level of negligence, may fall on a continuum rather than fit neatly into one
of five gradations.9 Unique aggravating or mitigating circumstances will be taken into account
and may call for higher or lower penalties that diverge from this paradigm. I will also account for
the fact that, although the violations at issue in this case were written under broad, general safety
standards, each citation contains a myriad of specific allegations with respect to which the
Respondent’s history of repeat violations is unavailable. This means that the Secretary’s
proposed penalty assessment for each citation is based on a violation history that may
disadvantage the Respondent by capturing prior dissimilar violations that were written under the
same broad standard, but did not involve the same allegations. See 30 C.F.R. § 100.3(c)
(indicating that the Secretary’s violation history formula considers, along with the total number
of prior violations, “the number of repeat violations of the same citable provision of a standard”).
My independent penalty assessment analysis applies to each of the citations at issue in this case.
IV.'

STIPULATED FACTS

At hearing, the parties agreed to the following stipulations:
1.& Eagle Creek Mining, LLC is subject to the Federal Mine Safety and Health Act of
1977 and to the jurisdiction of the Federal Mine Safety and Health Review
Commission.
2.& The presiding Administrative Law Judge has the authority to hear this case and
issue a decision.
3.& Eagle Creek Mining, LLC has an effect upon commerce within the meaning of
Section 4 of the Federal Mine Safety and Health Act of 1977.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
9

See, for example, my discussion of the negligence penalty criterion for Citation Number
7162340, infra.
!

38 FMSHRC Page 1114

4.& Eagle Creek Mining, LLC operates the Eagle Creek No. 5 Mine, Mine
Identification Number 4606750.
5.& The Eagle Creek No. 5 Mine produced 312,391 tons of coal in 2013, and had
54,626 hours worked in 2013.
6.& The proposed penalties will not affect Eagle Creek Mining LLC’s ability to
remain in business.
7.& Respondent, Eagle Creek Mining LLC, abated the citations involved herein in a
timely manner and in good faith.
8.& P. Exs.1-10 and P. Exs. 12-13 are authentic and admissible.
9.& R. Exs. 1-3 are admissible and R. Ex. 3 is admissible and authentic.
Jt. Ex. 1.
V.

FURTHER FINDINGS OF FACT, ANALYSIS AND CONCLUSIONS OF LAW
A.' Inspector Vance’s Animosity Toward or Bias Against Foreman Curry
1.

Background at the Old Hickory Mine

When Inspector Curtiss (Bud) Vance III10 initially took the stand, he confined his
testimony to the events of April 30 and May 2, 2013, the days on which he wrote the four
citations at issue in this case. However, the Respondent subsequently presented evidence
revealing that Vance and foreman Jay Curry11 have a tangled history. Curry credibly testified
that Vance and Curry worked together at the unionized Old Hickory Mine in Sharples, West
Virginia about 1996 or 1997. Tr. II, 55-57. There was some animosity between groups of miners
at Old Hickory after a merger resulted in changed job responsibilities under the seniority
provisions of the collective-bargaining contract. Tr. II, 57-59. Curry was a shift superintendent.
Tr. II, 57.
Vance was one of four miners suspected of willful damage to equipment by Old Hickory
foreman Art Hale, who reported to Curry. Tr. II, 60. Curry investigated the sabotage incident and
Curry and Hale recommended that Vance and the other miners be suspended with intent to
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
10

Curtiss Vance is a surface coal mine inspector at MSHA’s Logan, West Virginia field
office in District 12. Tr. 21-22. Vance worked for Old Hickory Coal from 1994 until he was laid
off in 1999. Tr. 23. Vance then worked at various Massey Energy mines from 1999-2006. Tr. 2324. Vance operated rock trucks during his mining career, but never performed mechanical repairs
on them. Tr. 160-61. After serving as a surface mine inspector for West Virginia for one year,
Vance joined MSHA in 2007 as an inspector/accident investigator. Tr. 25-26.
11

Jay Curry is the foreman at the Eagle Creek No. 5 Mine. Tr. II, 51. He has over 40
years of mining industry experience, with 30 years of experience as a foreman. Tr. II, 50-51.

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38 FMSHRC Page 1115

discharge. Tr. II, 60, 63-64. Curry credibly testified that Vance knew of Curry’s recommendation
because Curry told Vance that they would have to suspend him pursuant to company policy. Tr.
II, 61, 64. Vance was formally suspended without pay and lost work for about a month. Tr. II,
61.
Vance and the other miners filed a grievance under the National Bituminous Coal Wage
Agreement and the grievance proceeded to arbitration. Tr. II, 62. The arbitrator reinstated Vance
and two of the other miners with backpay, and expunged the discipline from their personnel files.
Tr. II, 60-62. One miner’s discharge was upheld. Tr. II, 60-61.
The Secretary attempted to impeach Curry on cross examination because the alleged
events occurred almost 20 years ago and Respondent proffered no notes or other documents to
confirm what actually happened. Tr. II, 113-14. However, Curry testified that company records
were expunged after the arbitration, and Curry specifically recalled, on questioning from the
undersigned, that he was present at the arbitration at which foreman Hale was called as a witness,
but Curry was not. Id.
During cross examination, Vance denied that he was ever recommended for discipline,
took any grievance to arbitration, or lost any work while working at Old Hickory. Tr. 161.
2.' Inspector Vance’s April 30, 2013 Statements to Curry and Curry’s
Follow Up with MSHA District 12
On April 30, 2013, inspector Vance arrived at Eagle Creek Mine No. 5 to conduct a
regular EO1 inspection. Tr. 30. Vance met with foreman Curry to tour work areas and to obtain
an equipment list. Tr. II, 54. Vance then informed Curry that he was going to start checking
equipment. Id. Curry credibly testified that he asked Vance, “do you need me to go with you?”
Vance replied, “No, I don’t really want you near me” during the inspection. Tr. II, 54, 65.
“We’ll just do it the normal way.” Tr. II, 54.
According to Curry, the normal way meant that Respondent’s chief mechanic, Tony
Lusk, would accompany Vance. Id. Curry radioed Lusk and told him to proceed to the area
where Vance was going to start inspecting equipment. Id. In these circumstances, I find no
violation of Respondent’s section 103(f) walkaround rights, particularly since Respondent does
not pursue the issue.
After his conversation with foreman Curry, Inspector Vance inspected four rock trucks
and shut all four of them down due to alleged safety-related defects. Vance initially denied and
then could not recall whether he told Curry that he did not want Curry anywhere near him during
the inspection. Compare Tr. 163 with 203.
Shortly after the April 30, 2013 inspection, Curry signed an undated letter that was sent
by Respondent’s corporate safety director to MSHA District 12 manager, Timothy Watkins. Tr.
II, 65-69; R. Ex. 1. In this letter, Curry mentioned Vance’s statement that Vance did not want
Curry near him during the inspection and complained that Vance had unfairly documented the
severity of citations during the April 30, 2013 inspection and other inspections because Vance
had been discharged from Old Hickory while under Curry’s supervision. R. Ex. 1. In his letter,
Curry concluded, “I have been a foreman on Eagle Creek #5 for Eagle Creek Mining, LLC for
five years with a very good citation and incident rate. I feel that my reputation and integrity as a
!

38 FMSHRC Page 1116

foreman has been targeted by this particular inspector unfairly. I have had no issues with prior
inspections or inspectors and wish for a fair inspection by a MSHA inspector other than Mr.
Vance.” R. Ex. 1.
The Secretary attempts to impeach Curry’s credibility by emphasizing that Curry’s letter
(R. Ex. 1) informed Watkins that Curry was Vance’s “direct supervisor” at Old Hickory, while
Curry testified that he was not his direct supervisor. Tr. II, 113. Curry credibly explained,
however, that he wrote “direct supervisor” in the letter to Watkins because Curry was charged
with investigating the sabotage charge against Vance. Tr. II, 113. I find the discrepancy
immaterial as to whether Vance told Curry on April 30, 2013 that Vance did not want to be near
Curry during the inspection. I credit Curry’s specific recollection over Vance’s denial,
particularly since other witnesses for Respondent credibly testified about Vance’s animus toward
Curry, as explained below.
3.' Other Miners’ Corroborating Testimony Regarding Vance’s Animus
Toward or Bias Against Curry
Several witnesses from Respondent’s camp provided testimony that lends credence to
Respondent’s argument that Vance held a personal vendetta against Curry for the Old Hickory
incident. According to these Eagle Creek miners, various statements were made by Vance, which
demonstrated his disdain for Curry.12 The Secretary had the opportunity to cross examine
Respondent’s witnesses regarding these statements, but elected not to do so. Nor did the
Secretary elicit any rebuttal concerning these statements after Vance was recalled to the stand.
Tr. II, 179-182.
Ballard Smith13 operated rock truck 4058, a 777F model, during Vance’s inspection on
April 30, 2013. Tr. II, 6-9. Smith had met Vance several years earlier when Vance dated Smith’s
niece. Tr. II, 33. Smith credibly testified that the first time Vance ever inspected his truck at the
Eagle Creek No. 5 Mine was about two years prior to the April 30, 2013 inspection. On that
occasion, Vance asked Smith what he thought about Curry. Tr. II, 33. Smith said, “He’s all
right.” Id. Vance then allegedly told Smith, “Well, I used to work for him, and I can’t stand
him.” Id. On questioning from the undersigned, Smith recalled that the conversation took place
at the Eagle Creek Mine while Vance was “stooped down on my walk rail on the side of my cab
in my truck.” Tr. II, 46-47. Smith did not recall any other conversation in which Vance indicated
any type of dislike for Curry. Id. When asked by the undersigned whether Vance indicated why
he did not like Curry, Smith candidly testified that, “[H]e didn’t go into detail. He just said that
he used to work for him and he could not stand him.” Tr. II, 47.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
12

I have carefully considered the alleged out-of-court statements made by Vance to
Respondent’s miners as they relate to Vance’s bias against Curry. Material and relevant hearsay
evidence is admissible in Commission proceedings. Ideal Cement Co., 13 FMSHRC 1346, 1350
n.1 (Sept. 1991) (citing Mid-Continent Res., Inc., 6 FMSHRC 1132, 1135 (May 1984)). In fact,
the Commission’s procedural rules expressly state that “[r]elevant evidence, including hearsay
evidence” is admissible. 29 C.F.R. § 2700.63(a).
13

Smith has 25 years of mining experience, and seven years at Eagle Creek. Tr. II, 7.
Smith has driven rock trucks for almost 20 years. Tr. II, 7.

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Steven Newsome14 operated rock truck 4013, a 777D model, during Vance’s inspection
on April 30, 2013. Tr. 314-15. The dozer that Newsome normally operated was not operating
that day. Tr. 348. As more fully explained below, Vance “downed” truck 4013 during his April
30 inspection after citing Respondent for excessive ball stud and steering linkage slack, leaking
steering hoses, an excessive audible air leak during brake application, a broken bracket that
mounted the driver-side mirror, and a broken handrail behind the driver-side door. P. Ex. 3.
Newsome testified that Vance took “just a couple of minutes” to check for slack in the ball studs.
Newsome did not know the exact time, but knew that Vance “wasn’t under there long.” Tr. 31819. Newsome testified that when Vance signaled for Newsome to move the steering wheel,
Vance “went under the truck a minute or two and then back out.” Id. Newsome testified that
Vance checked the ball studs one time. Tr. 321-22. Newsome further testified that he would have
seen a dial indicator if Vance had been carrying one. Tr. 322.
Newsome testified that after downing Newsome’s truck that day, Vance laughed and said
“I love it.” Tr. 320. Although Newsome candidly could not testify that the remark pertained to
Curry because Vance “didn’t specify,” in the absence of rebuttal from Vance, I infer that the
remark indicated the pleasure that Vance derived from shutting down another one of foreman
Curry’s trucks on April 30, 2013. Id.
Newsome also recalled a few prior occasions on the job and one occasion at a Subway
shop in Logan, West Virginia during which Vance indicated to Newsome that Vance did not like
Curry. Tr. 328, 348-50. For example, Newsome recalled a prior inspection when Vance was in
the cab of Newsome’s dozer and asked Newsome what he thought about Curry and then told
Newsome that Vance did not like him. Tr. 349-350. Newsome also recalled being with a buddy
and running into Vance at a Subway in Logan, West Virginia. Id. During the conversation,
Vance indicated that he would make it rough on Curry because Vance did not like him and that
Vance could make Curry fix whatever Vance wanted Curry to fix, such as air conditioners. Tr.
350. As noted below, Vance wrote an S&S citation in an effort to make Curry fix an air
conditioner on the first haulage truck inspected on April 30, 2013.
Finally, Respondent’s chief mechanic Tony Lusk testified that on April 30, 2013, when
Lusk was working on the trucks that Vance had downed, Vance asked Lusk, “You think I got
him smothered yet? If not, I’ll be back with a few more.” Tr. II, 164-165. Lusk conceded that
Vance did not mention Curry by name, but Lusk assumed that Vance was referring to Curry. Tr.
II, 165. As explained below, Vance did come back on May 2, 2013 to cite a water truck for
additional violations. Based on the totality of this record, I infer that Vance was talking about
smothering Curry with paper.
A few weeks after the April 30, 2013 inspection, Lusk signed an undated letter that was
sent by Respondent’s corporate safety director to MSHA District 12 manager, Timothy Watkins.
Tr. II, 167; R. Ex. 2. In this letter, Lusk wrote:
On 4/30/2013 at approximately 8-9:00am Bud approached me after
he had downed 4013, 4058, and 4045. At that time he told me what
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
14

Newsome has over 14 years of experience in mining and holds a West Virginia surface
and underground certification. Tr. 314. He has driven rock trucks and dozers for over eight years.
Tr. 314.
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needed to be fixed on those three trucks, he said that he would be
back with another list in a minute. We went to check the 992G and
he walked over to me laughing and said “Do you think I have him
smothered out yet? If not I can get a few more.” He told me that I
had twenty-four hours to fix the equipment and I explained to him
that I would not be able to get all the parts in that amount of time. I
made the repairs to 4058 and 4045 and explained to him how to
examine the emergency steering on the trucks because they were
working fine when I checked them. I ordered the rest of the parts
for the trucks and he told me that if I didn’t have 4013 fixed by the
end of the day that he would write a “D-order” on it. A few days
later, he came back to check the equipment and he came to me and
asked me if we had made the repairs, I said yes and he left without
checking. He has done this on previously [sic] inspections as well.
/s/ Tony Lusk
R. Ex. 2.
4.' Vance’s Incredible Denials on Cross Examination
On cross examination, in addition to denying the Old Hickory suspension, which was
eventually expunged, and denying that he told Curry that he did not want to be near him during
the inspection, Vance further denied that he ever told any miners at the Eagle Creek Mine that he
did not like Curry. Tr. 162. Vance also denied that he ever asked an Eagle Creek miner about his
impression of Curry. Id. Further, Vance said he did not recall talking to chief mechanic Lusk
during the April 30, 2013 inspection, unless it was documented in Vance’s inspection notes. Tr.
163-64. Vance did concede that Lusk was in the same work area as Vance, making repairs to
conditions that Vance cited. Tr. 164-65. Vance did not recall telling Lusk words to the effect,
“Do you think I’ve got him [Curry] smothered out yet? … If not, I can go get a few more.” Tr.
164. Vance also did not recall or document that Lusk allegedly told Vance that Vance was not
correctly testing the secondary steering on the 777F model haul trucks. Tr. 164-65.
5.' Conclusions
After considering all the evidence before me, I credit the evidence presented by the
Respondent regarding Vance’s history at the Old Hickory mine and his animosity toward or bias
against foreman Curry. I credit Curry’s specific recollection of the disciplinary incident at the
Old Hickory mine over Vance’s general denials that he was ever disciplined or lost any work at
Old Hickory. I find it difficult to believe that Curry would spin such an elaborate tale in an effort
to avoid liability for the instant citations. I further credit Curry’s testimony that Vance told him
“I don’t really want you near me” during the April 30, 2013 inspection. Tr. II, 54, 65. Overall,
Curry’s testimony struck me as forthright and unembellished. Tr. II, 114. He was persuasively
conveying facts as he recalled them. His recall was detailed and specific, in contrast to Vance’s
general, unconvincing denials. Tr. 163, 203.
I also credit the testimony of Smith, Newsome, and Lusk over Vance’s blanket, selfserving denial of and failure to recall anything that would cast doubt on his good faith, including

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his denial that he told any miners at the Eagle Creek Mine that he did not like Curry, his denial
that he asked any Eagle Creek miners about their impressions of Curry, and his denial that he
mentioned “smothering” Curry during the inspection. The testimony from Smith, Newsome, and
Lusk corroborates foreman Curry’s belief, first expressed in his letter to the MSHA District 12
manager, that he was being targeted by inspector Vance.
Based largely on the above findings, I conclude that Vance did not exercise good faith in
dealing with Curry. I find that Vance was biased against and out to get Curry because of his
discipline years earlier at the Old Hickory Mine. In my view, this is a fundamental infringement
of fair and impartial due process of law. It is against the foregoing backdrop of Vance’s animus
toward Curry that I assess the validity of the four citations that Vance wrote on April 30, 2013,
and the additional citation that Vance wrote on the water truck when he returned to the Eagle
Creek No. 5 Mine on May 2, 2013.
B.' The April 30, 2013 Inspection of Rock Trucks and Inspector Vance’s Typical
Inspection Procedures
Upon arriving for his April 30, 2013 EO1 inspection at the Eagle Creek No. 5 Mine,
Vance had a brief conference with Curry about the inspection, checked the on-shift examination
book to find no violations recorded, and arranged to inspect mobile equipment (haul trucks) at
the pump house pit area after performing an imminent danger run. Tr. 30, 32-33, 35. Four rock
trucks were then driven to the flat and level pit area for inspection. Tr. 35. Two of the large
haulage trucks were Caterpillar 777D models and two were Caterpillar 777F models. Tr. 173.
Vance proceeded to check the brakes, steering, secondary steering, gauges, and other various
parts of the trucks for safety hazards or defects. Tr. 39-41; P. Exs. 1, 3, 5, and 7.
Vance testified about his typical vehicle inspection process. Initially, Vance discusses the
inspection process with the driver in the operator’s cab and checks to see if pre-operational
inspections have been performed and recorded for each vehicle. Tr. 37, 40-41. Vance inspects
the seats, seat belts, gauges, warning alarms, and brakes, while in the operator’s cab. Tr. 41.
Vance utilizes a “pull-through” brake test in which the driver releases the parking brake so that
Vance can check whether the service brake and secondary brakes will hold and not pull through
at certain revolutions per minute (rpms). Tr. 41-42.
After exiting the cab, Vance checks the lights, signals, horns, and wipers via hand-signal
communication with the operator. Tr. 43. Vance walks around the vehicle to check tires, rims,
and fuel tanks and to check for any hydraulic oil or fuel leaks. Tr. 43. At the back of the vehicle,
Vance checks the backup lights, brake lights, turn signals and stabilizing bar. Tr. 44.
Vance also directs the driver through several steering movements to check the steering
linkage system under the truck and determine if any leak or excessive movement is present. Tr.
45, 47. As the operator turns the steering wheel left or right, Vance crouches under the truck to
check the steering components and look for any slack or horizontal movement in the ball stud of
the steering jack. Tr. 46-47. In response to questioning from the undersigned, Vance testified that
he never has to get down on a knee or lie on the ground to check for slack in the steering linkage
ball joints. Tr. 46.

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Vance testified that if any slack or movement is observed, Vance measures the slack
using a dial indicator, before citing the play in the ball joint. Tr. 46-47, 183. Vance testified that
he sets up his dial indicator on the steering linkage under the vehicle and then directs the driver
to steer back and forth while Vance measures the slack between the ball stud and steering jack.
Tr. 186.
At hearing, Respondent proffered into evidence portions of Caterpillar’s maintenance
manuals for the 777F and 777D models. See R. Exs. 3 and 4, respectively. The record was left
open for the Secretary to proffer additional pages from the 777D manual (R. Ex. 4), and the
Secretary did so after the hearing with pages that covered inspection of brakes and inspection of
steering linkage assemblies. P. Ex. 11; see Tr. 171.
The Operation and Maintenance Manual for the 777D models provides that the steering
linkage inspection should take place on a level surface, with the parking brake engaged. The
magnetic base of the dial indicator should be placed on the steering rod link to check for
horizontal wear on the ball studs. The dial indicator should then be placed on the side of the
steering arm and set to zero. The front wheels should be turned left and right. The amount of
horizontal play should be recorded by placing the dial indicator on the side of the center arm,
repeating the wheel movement, and then recording the measurement on the dial indicator. The
indicator is then reset to zero. See P. Ex. 11, p. 194.
When asked how long it takes to set up a dial indicator to measure ball stud slack on a
steering jack assembly, foreman Curry testified as follows:
By the time you got it out of the case and put it on the
mount and set it up, it would probably take you -- if you was real
good with it and the truck was real clean, it would probably take
you 15, 20 minutes to get everything together and get set and have
the proper work done.
If you have to clean mud and material off so the magnet
will stick, you know, it could take longer.
Q. And typically, when you’re under a rock truck on a
surface mine is everything clean to be able to –
A. No. Because -- the old saying on a surface mine, if it’s
not raining and muddy, we water the roads to make it muddy.
Q. All right. Have you ever seen Mr. Vance use a dial
indicator on your job?
A. No sir.

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Q. Has any of your –Mr. Lusk or anybody else ever
reported seeing him use a dial indicator?
A. No.
Tr. II, 82-83.
At hearing, Curry was shown his own dial indicator as a demonstrative exhibit, and he
briefly described the components and how calibrated measurements were taken. Tr. II, 82-90.
Curry explained that dial indicators are mounted by a magnet and must be attached to a clean
stationary area that is free of dirt and mud to record the measurement. Tr. II, 82, 86-87. Curry
further testified that the dial indicator must be calibrated regularly, and the measurement should
be taken two to three times to ensure that it is accurate. Tr. II, 85, 91.15
Inspector Vance testified that although there is no regulatory standard regarding play in
ball joints, MSHA generally adheres to the manufacturer’s recommendations. Tr. 192.
Caterpillar’s Operation and Maintenance Manual for the 777D model provides that “[t]he
maximum amount of horizontal wear is 1.02 mm (.040 inch [40,000ths]). If any of the
measurements exceed this limit, replace the worn ball studs and the outer bearing races.” R. Ex.
4, p. 194, para. or step 9.
As part of his standard vehicle inspection, Vance also checks the secondary steering. Tr.
47-48. Secondary steering is an emergency or backup steering mechanism designed to allow a
driver some limited steering to control and stop the vehicle if the engine loses power or the
vehicle runs out of fuel. Tr. 63-64, 197. Vance testified that during the secondary steering test,
the driver remains in the cab to operate the steering. Tr. 48, 53. Vance then checks the secondary
steering by hitting the “kill switch” on the front bumper to simulate a power loss, with the
steering set in the automatic position, and then he listens for the electric motor to come on
automatically. Tr. 49, 53. Vance further testified that the driver can check the secondary steering
himself by shutting the vehicle off and pushing the steering from automatic to manual and then
manually checking the steering. Tr. 53.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
15

Curry testified that a typical dial indicator has a 2! inch gauge. Tr. II, 84.
Measurements circle the gauge in 10,000ths-of-an-inch increments or smaller increments of
1,000ths. Id. The gauge measures up to 1 inch (in thousandths). Tr. II, 84-85. These indicators
are incredibly precise and must be calibrated regularly. Tr. II, 85. To use the indicator, a
measuring stem on the indicator is placed onto a piece of equipment. Tr. II, 86. When a ball stud
or tie rod is moved, a needle on the dial indicator will move to measure the slack. Id. The needle
moves because the indicator has a magnetic bracket or brace that is placed on metal equipment
for measurement. Tr. II, 88. The position of the indicator can be adjusted by vertical and
horizontal rods. Tr. II, 88-89. To measure the play in a ball stud, the indicator is mounted to a rod
and once the ball stud hits a component on the indicator, the needle on the gauge moves
accordingly. Tr. II, 89.

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The Caterpillar Operation and Maintenance Manual for the 777F model lists the
following steps for testing the secondary steering:
1. Stop the machine on a level surface. Place the transmission control in
the PARK position and stop the engine.
2. Push the top half of brake release and secondary steering switch and
hold the switch in order to manually activate the brake release and
secondary steering pump. The switch is located on the overhead switch
panel.
3. Turn the steering wheel completely to the right. Then turn the steering
wheel completely to the left.
4. Release the switch in order to return the switch to the AUTO position.
R. Ex. 3, at 2-3.
The Caterpillar Operation and Maintenance Manual for the 777D lists the following steps
for testing the secondary steering:
1. After you stop the engine, push the top half of the brake release and
secondary steering switch in order to select the MANUAL position.
2. Turn the steering wheel completely to the right. Then, turn the steering
wheel completely to the left.
3. Return the switch to the AUTO position.
R. Ex. 4, p. 193.
Thus, as Vance acknowledged on cross examination, testing the secondary steering for
777D model is different from testing the secondary steering for the 777F model. Tr. 173. To test
the steering for the 777D, the manual indicates that the operator must "stop the engine, push the
top half of the brake release and secondary steering switch in order to select the manual
position." R. Ex. 4; Tr. 179-180. By contrast, when testing secondary steering in the 777F model,
the switch has to be held in while the test is performed. Tr. 180; Tr. II, 11. Once the button is
depressed, a light comes on to indicate that the secondary steering is on. Tr. II, 13. Vance
acknowledged that the 777D secondary steering test would not work on a 777F model because
the operator must manually hold the switch in on the 777F model for the secondary steering to
engage. Tr. 180-81, 250-51.
1.

Citation No. 7162343 – Caterpillar 777D, Truck No. 4016

The first truck that Vance inspected on April 30, 2013 was a Caterpillar 777D (No. 4016)
used to haul overburden from the pit area to the dumpsite during the mining process. Tr. 38-40,
55. The truck weighed approximately 100 tons. Tr. 39. The cab was about ten to twelve feet off
the ground. Id. Chief mechanic Lusk was present when Vance began the inspection of the
777Ds. Tr. II, 136-38, 177-78.

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Upon checking inside the cab, Vance discovered that the air conditioning was not
working. Tr. 55. When engaged, the system would not blow cold air. Id. Lusk testified that he
told Vance even before he inspected the truck, that the air conditioning was down and the parts
were on order, but would not arrive until morning. Tr. II, 153.
After the cab inspection, Vance inspected outside of the vehicle. Tr. 42. Vance testified
that he observed excessive slack in the inside ball stud on the left-side steering jack when the
driver steered from left to right. Tr. 55-56. Vance testified that he used a dial indicator that
measured horizontal movement of 70,000ths of an inch between the ball stud and steering jack.
Tr. 57-59. Vance’s inspection notes indicate side-to-side movement or slack between the ball
stud and the steering jack, which measured 70,000ths of an inch with a dial indicator. P. Ex. 2, p.
3. Vance relied on the manufacturer’s aforementioned out-of-service criteria of 40,000ths of an
inch to determine that the truck should be taken out of service and repaired. Tr. 53, 59, 62; P. Ex.
2, p. 3.
Vance also testified that the nut, which holds the ball stud in place, was moving. Tr. 60.
Upon questioning from the undersigned, Vance testified that he did not determine whether the
nut was physically loose because it was too big to check. Tr. 60-61. Vance acknowledged that
the cotter pin was still in place. Tr. 61. Vance’s notes include a diagram of the steering jack and
nut. P. Ex. 2, p. 3. Vance concluded that a ball stud, with play of more than 40,000ths of an inch,
was reasonably likely to compromise steering, particularly since the slack exceeded Caterpillar’s
out-of-service criteria. Tr. 62; P. Ex. 2, p.3.
Lusk testified that he was present right beside Vance when Vance began his examination
for slack in the ball studs and that Vance did not use a dial indicator. Tr. II, 179. In fact, Lusk
testified that Vance did not use a dial indicator when inspecting any of the haul trucks that day.
Id.
On rebuttal, the Secretary recalled Vance, who brought his own dial indicator to the
witness stand. Tr. II, 181. In response to leading questions, Vance testified that this was the dial
indicator that he used on April 30 and May 2, 2013. Tr. II, 182. I note that aside from this
questioning, however, there is no indication that Vance ever used a dial indicator on May 2,
2013, as he did not, in fact, write any violations that would have required the use of a dial
indicator on that day, but only cited a water truck for non-functioning brakes and a broken water
bed bracket mount. See P. Ex. 9. Contrary to Curry’s testimony that it generally takes 15-20
minutes to set up the dial indicator, Vance testified that it would only take him about 5 minutes
or less to set up the dial indicator. Tr. II, 183.
On extensive cross-examination following rebuttal, Vance testified that he has never
calibrated his dial indicator. Tr. II, 184. Vance testified that “you calibrate it each time by going
back to zero.” Id. Vance testified that he leaves the dial indicator assembled in its padded pelican
case in his truck, and retrieves it each time he is going to write a violation for slack in a ball
joint. Id. Specifically, Vance testified that “[w]hen I’m going to write a violation, I use this for
my notes. To get my measurement. Only when I’m going to write a violation.” Id. Although
Vance took numerous pictures during his inspection, he did not take any pictures of the
measurement(s) that he claims to have observed with his dial indicator. Tr. II, 185.

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Vance then testified that when he sets up the dial indicator, he tells the operator that he is
going to set it up. “Stay still. Don’t move the steering wheel.” Tr. II, 186. Then, in response to
questioning from the undersigned as to whether Vance tells the operator whether he is going to
use a dial indicator, Vance testified, “No. I just signal for him not to move. I go get it out of the
pickup, and then go back under the truck.” Tr. II, 186.
On further cross examination, Vance acknowledged that the operator should see him
walking to his truck and carrying back the dial indicator, “if he’s watching.” Tr. II, 187. Vance
testified that after he retrieves the dial indicator, he tells the operator what side he is going to
check. Tr. II, 187. Vance testified that he usually takes just one measurement, unless he has a
problem with the dial indicator. Tr. II, 188.
When asked whether he needed a clean spot to set up the dial indicator, Vance testified
that it depends on whether the truck is kept clean or not. Tr. II, 191. Vance was then asked,
“Well in a mine that’s a surface mine, running over dirt and mud, don’t you generally have mud
you got to clean and get it ready before you can attach that magnet?” Tr. II, 191. Vance testified,
“Not normally, no. It’s according to how often the mine operator steam cleans his equipment.”
Id. When shown P. Ex. 4, p. 1, a picture of the left-side steering jack cited for excessive slack on
the 777D Caterpillar Truck No. 4013 written up in Citation No. 7162344 (P. Ex. 3), discussed
below, Vance was asked what he used to clean mud and dirt from the area to mount the dial
indicator. Tr. II, 193-95. Vance testified, “I usually just wipe it off with my hand. If I need to, my
shirt,” or a “rag in my pocket.” Id.
Vance testified that he next checked the secondary steering on Truck No. 4016. Tr. 62.
Vance testified that he shut off the kill switch and did not hear the electric motor for the
secondary steering turn on. Tr. 62-63. Vance testified, “I shut it off and the driver never could
get it to function.” When asked whether he gave the driver an opportunity to try to have it turn
on, Vance testified, “Yes. And he [the driver] seemed to have good working knowledge of it, so I
assumed that he was trained and knew how to operate it.” Tr. 63. Vance’s notes indicate that the
secondary steering was not functioning, so if the truck lost power, the driver would have no other
steering during daily, off-road, haulage of overburden. P. Ex. 2, p. 3.
Based on this inspection, Vance issued Citation No. 7162343 and served Curry. P. Ex. 1.
The Citation alleged a significant and substantial (S&S) violation of 30 C.F.R. § 77.404(a),
which requires that "[m]obile and stationary machinery and equipment shall be maintained in
safe operating condition and machinery or equipment in unsafe condition shall be removed from
service immediately.” The Condition or Practice narrative alleges:
1. Excessive slack existed on the inside ball stud located on the left side
steering jack. Excessive slack existed when the truck was steered in either
direction. Also, slack existed where the nut was located on the ball stud.
2. The secondary steering was not functioning when tested.
3. The AC was not functioning when tested.

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This Truck is being operated in the Pump House Pit area. It is reasonably
likely if these conditions continue to exist an accident will occur. . . .
P. Ex. 1.
The citation was designated as significant and substantial because the alleged violative
conditions contributed to a hazard that was reasonably likely to result in a fatal injury, with 1
person affected, as a result of Respondent’s moderate negligence. P. Ex. 1. The proposed penalty
was $12,248. Vance testified and documented that the following measures were taken to abate
the conditions cited: (1) a new ball stud was installed; (2) a new solenoid was installed; (3) and a
new compressor was installed and the AC charged up. Tr. 75-76; P. Ex. 1.
Lusk performed the repairs on the truck. When asked by the undersigned whether the
secondary steering was functioning on Truck No. 4016, Lusk testified, “I would say that it was.
Oh yes.” Tr. II, 153. When asked by Respondent, what was wrong here, Lusk testified, “we had a
wire broke.” Id. Lusk was then asked, “[W]ere you able to find out what the condition of the
secondary steering was at the start of the shift, when the pre-operational examinations would
have been done?” Id. Lusk testified, “Yeah. They’re not allowed to move it. If the secondary
steering doesn’t come on, they’re not allowed to pull out. But you get a lot of dirt and mud under
them and it pulls wires. And, you know, it’s hard to keep up with them.” Tr. II, 154.
Contrary to abatement measures listed in Vance’s citation, Lusk testified that no solenoid
was installed on the secondary steering. Rather, Lusk testified the he simply repaired the wiring.
Tr. II, 154. Lusk confirmed that a ball stud and a compressor were installed. Id.. Although Lusk
replaced the ball stud on Truck 4016 in order to abate the citation, Lusk did not confirm Vance’s
allegations of excessive slack on the inside ball stud located on the left side steering jack.
With regard to his S&S designation, Vance testified that if the ball stud is moving, the
steering jack can pop off causing the driver to lose control and the truck to wreck. Tr. 61-62.
Vance essentially supported his reasonably likely and fatal designations with regard to the
excessive slack by testifying that the truck regularly hauled 50 to 100 loads of overburden a day
on steep grades and elevated roadways and dumpsites. Tr. 72. Therefore, if the steering jack
popped off the ball stud, a driver could be killed if he lost control of the vehicle or the truck
collided with another truck that operated in close proximity in the pit area. Tr. 61-62, 67-68.16

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
16

Vance testified that while working at Massey Energy sometime between 1999 and
2006, he witnessed two incidents where a truck driver ran into a spoil bank. Tr. 66-67, 195.
Vance was operating a dozer during both incidents. Vance testified that when he went to check
on the driver, he noticed that the steering jack had popped off the ball stud. In both instances, the
driver was not injured. Tr. 66-67. On cross examination, Vance conceded that he played no role
in the investigation of the accidents and did not have any personal knowledge about what caused
the steering jacks to pop off the ball studs. Tr. 195-96. I find that Vance’s vague and general
anecdotal testimony is not particularly probative as to whether the alleged excessive slack on the
steering assembly of Truck No. 4016 contributed to a hazard that was reasonably likely to result
in a fatal injury.

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38 FMSHRC Page 1126

On cross examination, Vance conceded that the steering jack would have to pop off the
ball stud for the driver to lose control of the truck and be injured. Tr. 205. Vance further testified
that the 70,000ths of alleged slack satisfied the out-of-service criteria, but Vance could not
confirm that it would cause the steering jack to pop off the ball stud. Id.
With regard to the secondary steering, Vance testified that in an emergency, with loss of
power, a functioning secondary steering mechanism would permit limited control of the truck to
avoid an accident until it could be stopped safely. Tr. 68. Vance’s notes indicate that if the
steering fails and the truck wrecks, the driver would receive fatal injuries. P. Ex. 2, p. 3.
With regard to the broken air conditioner, Vance testified that the cab of the trucks
become extremely hot and it is hard to just roll down the window like in a pickup because the
driver does not wear a respirator and would be exposed to dust. Tr. 69. Vance recalled an
incident in which a driver purportedly blacked out because heat in the cab triggered the driver’s
high blood pressure. Tr. 69-70. I give little weight to this non-specific, general testimony.17
Vance designated Respondent’s negligence as moderate. He determined that the amount
of slack in the ball stud developed from excessive wear over a period of time greater than one
shift, that the slack was obvious, that no defects were noted on the pre-operational examination,
and that Respondent presented no evidence that it was performing two-man “buddy” checks. Tr.
74; P. Ex. 2, p.3.18
Newsome, the driver of truck 4013 (discussed below), testified that he could not check
steering joints by himself and “sometimes once a week, once every two weeks, we buddy up.
One gets in the truck and you check the ball studs and all that. Alone, you can’t check them.” Tr.
316. Newsome testified that on April 30, Vance did not ask Newsome how he conducted his preoperational examinations or whether Respondent ever used buddy checks. Id.
Smith, the driver of truck 4058, testified on cross examination that buddy checks were
performed more or less weekly. Smith testified that the greaser/fueler, who was a “decent
mechanic,” would pull the drivers over about once a week to check for movement in the ball
studs. Tr. II, 38.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
17

Curry recalled that the air temperature that morning was below freezing at 25°F. Tr. II,
73-74. He testified that the outside temperature that time of year is damp, with a little freeze
during the morning that will thaw out during the day. Id. The Secretary argues in his motion to
reopen the record that the certified weather data for Logan, West Virginia shows that on April
30, 2013, the maximum temperature was 71°F with a minimum temperature of 53°F, and a trace
of rain. ALJ Ex. 1 at 6, citing Ex. A, p. 4. Contrary to the Secretary, I do not find this source
“especially reliable and probative” since the elevation of the Eagle Creek Mine is over 1,000 feet
higher than Logan, West Virginia, where the data was collected. ALJ Ex. 2, Affidavit of Richard
R. Stacey Jr.; see also n. 19, below. I find that the Secretary’s certified weather data does not
materially contradict Curry’s recollection and testimony. Curry generally struck me as a truthful
and forthright witness.
18

It is undisputed that two men are needed to inspect the ball joints in the steering
linkage assembly. One miner must be in the cab to manipulate the steering, while another must
be under the vehicle checking for movement or play in the ball joints. Tr. 316; Tr. II, 38, 100.

38 FMSHRC Page 1127

Foreman Curry testified that Caterpillar recommends checking for slack in the ball studs
every 1000 hours, which equates to about every 100 mining days for Respondent’s rock trucks,
which operate about 10 hours per day. Tr. II, 100. Curry further testified that Respondent
checked the ball studs every week or week and one-half. Tr. II, 100-01. Curry testified that the
777D models that Vance cited for excessive slack had been parked for about three months and
there were intentions of removing them from the job, but higher management apparently decided
to put them back in service about a week prior to Vance’s April 30 inspection. Tr. 101-02.
a.

Legal Analysis Concerning Citation 7162343
i.'

The Alleged 77.404(a) Violation

Section 77.404(a) imposes two duties upon an operator: (1) to maintain machinery and
mobile equipment in safe operating condition, and (2) to remove unsafe equipment from service.
Derogation of either duty violates the standard. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct.
1979).
777D Caterpillar Truck No. 4016 cited by inspector Vance was mobile equipment. Such
mobile equipment was in service when cited. The primary issue is whether the truck was
maintained in safe operating condition. Equipment is in unsafe operating condition under section
77.404(a) when a reasonably prudent person familiar with the factual circumstances surrounding
the alleged hazardous condition, including any facts peculiar to the mining industry, would
recognize a hazard warranting corrective action within the purview of the applicable regulation.
Ambrosia Coal & Constr. Company, 18 FMSHRC 1552, 1557 (Sept. 1996) (citing Alabama ByProducts Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (applying identical standard in
underground coal mines)).
Applying this test, I find that the Secretary has failed to establish by a preponderance of
credible evidence that Respondent violated Section 77.404(a) by failing to maintain the steering
linkage assembly and secondary steering on the haul truck in safe operating condition. I find a
non-S&S violation with regard to Respondent’s failure to maintain the air conditioner in safe
operating condition.
The Allegation of Slack in the Ball Joint
I credit Lusk that Vance did not use a dial indicator to take any measurements of slack in
ball joint movement on April 30, 2013. Vance testified that the slack was obvious, which
undercuts the need for measurements. Vance never showed Lusk his measurements. Although
Vance took many pictures of cited conditions during his inspection, Vance never took a picture
of the measurements. In addition, I find it difficult to believe that Vance never had to get down
on a knee or on the ground to check for slack in the steering linkage ball joints, particularly when
setting up a dial indicator. Tr. 46. Further, the excessive slack allegations concerning the first
two rock trucks inspected in the instant citation and Citation 7162344 were verbatim and
Vance’s purported dial indicator measurements were exactly the same, 70,000ths of an inch. The
identical wording and measurements cast further doubt on Vance’s claim that he independently
measured and evaluated each ball joint.
Most importantly, I observed Vance as a witness and do not believe his testimony or his
notes indicating that he observed excessive slack that was obvious and used a dial indicator to
!

38 FMSHRC Page 1128

measure it. Vance struck me as an unreliable witness, who was out to get Curry and was not
beyond creating false documentation of dial indicator measurements in an effort to do so. For
example, Vance wrote that a new solenoid had been installed as an abatement measure to correct
the secondary steering problem cited on this truck. P. Ex. 1, p. 2. Lusk credibly testified that no
solenoid was installed. Rather, Lusk just repaired a broken wire. Tr. II, 153-54. I credit Lusk, as
explained below. Vance did not rebut Lusk’s testimony, even though Citation No. 7162343
indicates that a new solenoid was installed for abatement purposes. P. Ex. 1. Vance had poor
recollection of events and abatement measures without reading from or consulting his notes and
the citations. Tr. 32, 261. Moreover, Lusk’s testimony is supported by R. Ex. 2, in which Lusk
wrote MSHA District 12 Manager Watkins that when Vance returned to check on abatement
efforts, Vance asked Lusk if he had made the repairs and then left without checking.
Similarly, regarding Citation No. 7162346, discussed below, I have credited Lusk’s
testimony that contrary to abatement measures listed on the citation by Vance, no sensor was
installed for the brake oil temperature gauge, no sensor was installed for the brake action
warning light, and no sensor was installed for the fuel gauge. Rather, I have found below that
Vance prevaricated certain abatement measures listed on the citation and cursorily checked
abatement measures consistent with Lusk’s letter to District Manager Watkins. See R. Ex. 2. In
addition, regarding Citation 7162351, discussed below, I have credited Smith’s testimony, as
corroborated by Lusk and Curry, concerning Vance’s apparently fabricated abatement measures.
I also emphasize that Curry credibly testified that he has never seen Vance use a dial
indicator, and no one from Respondent, including Lusk, has ever reported seeing Vance use a
dial indicator. Tr. II, 82-83. Newsome essentially corroborated Curry and Lusk when testifying
that that he would have seen a dial indicator if Vance had used one. Further, Newsome
confirmed that Vance was only under his truck about a minute or two when he was checking the
ball studs. Based on Curry’s credited testimony, this was not enough time to set up the dial
indicator and take a proper measurement after cleaning off mud and debris from the trucks.
Accordingly, despite his notes, I find that Vance’s measurements were unreliable and the
Secretary failed to prove by credible, probative evidence that any ball joint movement met
Caterpillar’s out-of-service criteria. Further, although Vance’s citation indicated that slack
existed where the nut was located on the ball stud (P. Ex. 1), Vance did not check to see if the
nut was loose, and the ball stud still had the cotter pin in place. Tr. 60-61. In these circumstances,
I find that the Secretary failed to prove that excessive slack existed on the inside ball stud located
on the left side steering jack such that movement in the steering linkage ball joints was sufficient
to establish that the truck was not maintained in safe operating condition. Cf. Extra Energy, 36
FMSHRC 2733, 2744 (Oct. 2014) (ALJ) (crediting inspector’s testimony which established that
tape-measured inch of vertical play in the ball joint constitutes a hazard making continued
operation of the haul truck unsafe and requiring its removal from service!pursuant to Commercial
Vehicle Safety Alliance, North American Standard Out-of-Service Criteria, particularly given
credited testimony that the nut at the bottom of the ball joint was loose and ready to fall off, had
sheared the cotter pin keeper, and was removed with bare hands).
The Allegation that the Secondary Steering Was Defective
With regard to testing the secondary steering on the 777D Caterpillar Truck No. 4016, the
Secretary failed to establish that Vance applied the proper test. As noted, the Caterpillar
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38 FMSHRC Page 1129

Operation and Maintenance Manual for the 777D indicates that the operator must stop the engine
and push the top half of the brake release and secondary steering switch to select the manual
position. Then the steering wheel should be turned completely to the right and then left. Then the
switch should be returned to the automatic position. R. Ex. 4, p. 193; Tr. 179-180. Vance did not
have the operator do this. Rather, Vance shut off the kill switch from outside the vehicle and did
not hear the electric motor turn on for the secondary steering. Tr. 62-63. Vance testified, “I shut
it off and the driver never could get it to function.” Id. When asked whether he gave the driver an
opportunity to try to have it turn on, Vance testified, “Yes. And he [the driver] seemed to have
good working knowledge of it, so I assumed that he was trained and knew how to operate it.” Tr.
63. Vance did not cite the Respondent for a training violation regarding operation of the
secondary steering. Since Vance did not testify that he applied a proper secondary steering test, I
find that the Secretary has failed to establish that the secondary steering was not functioning.
Further, I have discredited Vance’s allegation that a solenoid was installed to abate the secondary
steering allegation. Although Lusk credibly testified that he repaired a broken wire, the Secretary
failed to establish that repair of such wire equated to Respondent’s failure to maintain the truck is
safe operating condition. I dismiss the secondary steering allegation.
The Allegation that the Air Conditioning Was Defective
Finally, with regard to the air conditioner, I find that the system would not blow cold air.
Tr. 55. In fact, Lusk told Vance even before Vance inspected the truck, that the air conditioner
was down and the parts were on order, but would not arrive until morning. Tr. II, 153. Vance did
not rebut this testimony. I find that the failure to maintain the air conditioning system rendered
the cab of the truck unsafe during extremely hot weather because the driver could overheat or
pass out. In fact, Vance recalled an incident in which a driver blacked out because heat in the
cab triggered the driver’s high blood pressure. Tr. 69-70. Although Vance testified that a driver
who rolled down the window would be exposed to dust because he would not be wearing a
respirator, Vance did not write the citation as a health violation. Tr. 69; P. Ex. 1.
ii.

S&S, Gravity, and Negligence

I find that the safety violation was non-S&S under the second prong of the Mathies test.
The second prong requires the showing of a “discrete safety hazard -- that is, a measure of
danger to safety – contributed to by the violation.” Mathies, 6 FMSHRC at 3. As the Fourth
Circuit recently recognized, this prong “primarily accounts for the Commission’s concern with
the likelihood that a given violation may cause harm. This follows because, for a violation to
contribute to a discrete safety hazard, it must be at least somewhat likely to result in harm.” See
Knox Creek, 811 F.3d at 160. In this regard, I find it unlikely that the non-functioning air
conditioner would result in harm, much less a fatal accident, under continued normal mining
operations because the Secretary’s evidence (ALJ Ex. 1) and Respondent’s rebuttal evidence
(ALJ Ex. 2, p. 4 and Aff. of Richard R. Stacey Jr.) suggest that mine temperatures in late April
2013 were generally mild at the mine’s higher elevation. Moreover, although an S&S
determination is made at the time the citation is issued without any assumptions as to abatement
(Knox Creek, 811 F.3d at 165), Lusk’s credited testimony establishes that the air-conditioning
parts (compressor) had already been ordered for the summer season prior to issuance of the
citation. Tr. II, 153. In these circumstances, the Secretary failed to demonstrate that the violation
was at least somewhat likely to result in harm.

!

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As discussed above, the Commission has traditionally framed the second Mathies
element slightly differently than the Fourth Circuit’s interpretation, in that the Commission has
not traditionally required a showing at this step that the violation was “at least somewhat likely
to result in harm.” See U.S. Steel Mining Co., 6 FMSHRC at 1836 (indicating that the requisite
showing is simply “that the violation must be more than a mere technical violation – i.e., that the
violation present a measure of danger”). However, even if I reframe the inquiry to correspond to
the U.S. Steel formulation rather than the wording of Knox Creek, the Secretary’s evidence still
fails to establish that the air conditioning violation satisfies the second Mathies prong. This was
essentially a technical violation under the unique circumstances of this case. Due to the mild
temperatures at the mine, the violation did not present any measure of danger to miners’ safety.
Nor has the Secretary established that the violation would have endangered anyone’s safety with
continued normal mining operations, because even before the citation was issued, the operator
had already taken the steps necessary to timely prevent any danger from developing (namely,
ordering the parts needed to repair the unit before the summer weather arrived). No hazard
existed. Accordingly, I need not reach Mathies’ often-combined third and fourth prongs, which
require evidence that the hazard contributed to by the violation is reasonably likely to result in a
serious, injury-producing event. See Knox Creek, 811 F.3d at 162-63.
I find that the gravity of this violation was not serious because there is no evidence that
the lack of a functioning air conditioner was at all dangerous under the circumstances.
The fact that Lusk’s credited and unrebutted testimony establishes that Respondent had
already ordered a new compressor and apprised inspector Vance about the order prior to issuance
of the citation, supports a reduction in negligence from moderate to low.
iii.

Penalty

Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent, Eagle Creek Mining, LLC, operates the Eagle Creek No. 5 Mine, which
produced 312,391 tons of coal in 2013, and had 54,626 hours worked in 2013. Jt. Ex. 1. The
parties stipulated that the originally proposed penalty will not affect Respondent’s ability to
remain in business. Id. MSHA recognized Respondent’s good-faith compliance in abating the
citation. I have modified MSHA’s gravity and S&S determinations from reasonably likely and
S&S to unlikely and non-S&S. I have modified MSHA’s negligence determination from
moderate to low. As discussed above in the legal principles subsection of this opinion, I have
also considered that the history of repeat violations relied upon by the Secretary may have been
overbroad. After consideration of the penalty assessment criteria set forth in section 110(i) of the
Act, I assess a $200 civil penalty against the Respondent.
2.' Citation No. 7162344 – Caterpillar 777D, Truck No. 4013
Vance next inspected Caterpillar 777D, Truck No. 4013. Tr. 77. Newsome drove this
truck on April 30, 2013. Tr. 314-15. Vance checked the pre-operational examination record for
the truck. Tr. 99. Vance then apparently began in the cab by checking the brakes, seats, seat
belts, gauges, steering and mirrors. Tr. 77-78.
When testifying about the citation’s allegations, Vance read from the citation (P. Ex. 3);
“5. Where the mirror mounts to the driver’s side door is broke,” “And No. 6, the handrail located

!

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behind the driver’s side door is broke.” Tr. 78; see P. Ex. 3. Vance testified that the mirror was
there, “but where it mounts to the door was broke, causing the mirror to vibrate real bad under
operation.” Tr. 79. In response to questioning from the undersigned, Vance testified that he did
not operate the truck, but after counsel answered affirmatively for him, Vance testified that he
learned through a conversation with a miner informant “[t]hat the mirror was shaking. Can I read
my notes? It’s in my notes.” Tr. 79-80.
When pressed by the undersigned to divulge the substance of what he learned from the
informant, Vance testified as follows:
Through my experience as a truck driver, if the mirror bracket is
broke, it shakes. Extremely. And it’s hard to visually see as you
back up. And like I said, you’re really high up in this cab, and the
depth – I mean, you depend solely on these mirrors when backing
up.
Tr. 80. Vance was then essentially led by counsel to testify that he learned from the informant
that the mirror was shaking during operation.
Q. Did you learn through these conversations that – that the
mirrors were shaking?
A. Yes.
Q. During operation?
A. Yes.
Judge McCarthy: Did you learn whether the shaking of the mirrors
had any effect on the driver’s ability to see?
The Witness: Yes.
Judge McCarthy: What did you learn?
The Witness: That he was having difficulty seeing backing up with
the shaking mirror.
Tr. 80-81. Vance’s notes state, “Driver said it was hard to see out mirror from vibrating because
it was broke at door & mount.” P. Ex. 2, p.34.
The abatement measure as set forth on the citation for the cited mirror states, “5. A new
door has been installed and the mirror bracket installed in place to the door securely.” P. Ex. 3, p.
5.
Contrary to Vance’s notes, Newsome, the driver, testified that he did not have any
problems seeing out of his mirror, and he would not have been driving if he could not use the
mirror. Tr. 327. I credit Newsome over the hearsay testimony from Vance, even as corroborated
by Vance’s notes. In fact, Vance essentially recanted his testimony and testified that the operator
just told him that there was a problem with the mirror. Tr. 267-68.

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Vance also testified that the handrail behind the driver’s side door was broken. Tr. 78, 81.
Vance testified that the handrail is used to maintain three-point contact when the driver is
walking on the two-foot wide “cat walk” area to enter and exit the cab, and clean mirrors and
windows. Tr. 81, 83.
On cross examination, Vance was shown P. Ex. 8 and he indicated where there was a
break in the bottom of the handrail. P. Ex. 8; Tr. 252-53. The upper and lower parts of the
handrail, however, were intact, and Vance conceded that the handrail would prevent one from
falling through “as long as it don’t break.” P. Ex. 8; Tr. 253. Vance also conceded that the steel
handrail would have to break at the top and bottom for one to fall through the handrail. Tr. 253.
Vance testified that the cited handrail itself would not establish an S&S violation. Tr. 253-54.
Upon checking the parking brake, Vance testified that he heard an “excessive audible air
leak” in a hose when the brakes were applied while Vance was still on the ground. Tr. 95-98.
Vance testified that he told the operator to release the parking brake because the wheels were
scotched, leave the truck off, and pull the brake, either the hand spike (retarder), or the foot brake
(service brake) so that Vance could listen for air leaks while on the ground. Id. Vance testified
that he told the operator to release the park brake and hold the retarder and Vance heard an
excessive audible air leak from the general area underneath the truck, towards the center “where
you get up under to check the tire rods and ball studs.” Tr. 95. Vance heard an air leak from a
hose when the brakes were applied. Tr. 96-97. Vance did not measure the decibels of the air leak
or use any other device to measure the alleged air leak. Tr. 96.
Vance testified that after hearing the air leak from a hose while on the ground, Vance
climbed back up into the cab, asked the driver to start the truck to build the air pressure back up,
and then asked the driver to apply the brakes again. Tr. 97. Vance testified that when this
happened, Vance observed the air pressure gauge start dropping, but Vance did not take any
measurement as to how far it dropped or what the difference was in pounds per square inch (psi).
Tr. 96-99. Vance was confident that that there was a brake leak because “it would only leak
once he applied the brakes.” Tr. 96.
On cross-examination, Vance acknowledged that when you apply the brakes, the air
gauge drops. Tr. 222. He testified that if the air pressure leaks off, the service brake and the park
brake set up, if functioning properly. Tr. 222-23. Vance did not cite any brake problems on the
truck. Tr. 224. When asked by Respondent’s counsel how the air leak was reasonably likely to
cause a serious injury, Vance testified that “… if the truck is traveling with a load and a line
blows and the brakes set up, you could lose control of the truck by the wheel locking up if the
roads were wet.” Tr. 224.
As noted, Vance could not determine precisely where the air leak was other than from
some alleged hose somewhere underneath the center of the truck where one checks the tire rods
and ball studs. Tr. 95-97, 222. Vance did not visually observe any leaking line or hose and could
present no evidence that the truck was reasonably likely to blow a line. Tr. 225.
As Vance continued to inspect outside and underneath the vehicle, Vance noticed that
there was oil leaking from both steering hoses onto the metal fittings where the hoses enter the
right and left steering jacks. Tr. 83-84, 86. At trial, the Secretary entered pictures of the oil leaks
into evidence and Vance identified the conditions that he observed. Tr. 84-90; P. Ex. 2, pp. 5-6;
!

38 FMSHRC Page 1133

P. Ex. 4, pp. 1-2. Vance testified that the steering hoses supply oil to the steering cylinders in the
steering jack so that the truck can be steered. Tr. 94. Vance further testified that the leaking hoses
could cause a catastrophic failure because when the steering hose blows, you can lose oil
pressure to the steering jacks, which would cause loss of steering control during operation of the
vehicle. Id.
Lusk admitted that the steering hoses were leaking, but he testified that the leak(s) did not
affect operation of the steering. Tr. II, 155. As explained below, I discount this testimony from
Lusk.
Vance further observed that the center pin, which goes through the center arm in the
steering linkage, had excessive slack where the pin mounts inside the center arm. Tr. 90-92.
Vance testified that the center arm is where all the steerage linkage comes together. Tr. 91. The
center pin pivots or moves as the center arm rotates. Tr. 93. The Secretary entered a picture of
the outside bottom end of the pin into evidence. P. Ex. 4, p. 3.
When asked by the Secretary whether he noticed any other slack on the steering jack,
Vance essentially read from the citation and testified that it was the same situation as the first
truck he cited that day meaning that “[e]xcessive slack existed on the inside ball stud located on
the left side steering jack” and “[a]lso slack existed where the nut was located on the ball stud.”
Tr. 93; compare P. Ex. 3 with P. Ex. 1. Vance testified that he again used a dial indicator to take
a measurement. Tr. 93. According to Vance’s testimony and his notes, this ball stud was also
70,000ths of an inch out of adjustment. Tr. 94; P. Ex. 2, p. 4. For the same reasons discussed in
connection with the previous citation, for which the pertinent facts were the same, I do not credit
this evidence and find it unreliable.
At 9:58 a.m., Vance issued Citation No. 7162344 to Curry for an alleged violation of 30
C.F.R. § 77.404(a) because Truck No. 4013 was not being maintained in safe operating
condition. Specifically, the Citation alleged that:
1. Excessive slack existed on the inside ball stud located on the left
side steering jack. Excessive slack existed when the truck was
steered in either direction. Also slack existed where the nut was
located on the ball stud.
2. The steering hoses were leaking to the right and left side
steering jacks.
3. Excessive slack existed in the center arm pin located on the
steering linkage.
4. Excessive audible air leak existed.
5. Where the mirror mounts to the drivers [sic] side door is broke.
6. The handrail located behind the drivers [sic] side door is broke.
P. Ex. 3.

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Citation No. 7162344 was designated as a significant and substantial violation that
contributed to a hazard that was reasonably likely to result in a fatal injury, with 1 person
affected, as a result of Respondent’s moderate negligence. Id. The Citation indicated that the
truck was operated in the Pump House Pit Area and “[i]t was reasonably likely that if these
conditions continued to exist an accident will occur.” The truck was removed from service
immediately. Id. The proposed penalty was $12,248.
Vance’s initial testimony regarding the significant and substantial designation was
general and vague.
Q. Okay. Why did you mark this reasonably likely?
A. Based on the conditions of the truck and the conditions
in which the truck operates under on a regular basis. Daily
basis.
Q. What injury of illness did you mark?
A. Fatal.
Q. Why?
A. It is the injury most likely to occur in an incident based
on the conditions in which his truck operates on a regular
basis. Daily.
Tr. 100-01.
Upon questioning from the undersigned about the nature of the hazard(s), Vance testified
that the excessive slack on the inside ball stud would cause the steering jack to pop off the ball
stud while the truck was in operation causing the driver to lose control of the truck. Tr. 102. He
testified that “[i]f the steering hose blows, it loses pressure to the steering, unable to steer,
causing the driver to lose control of the truck and wrecking.” Id. Vance further testified that
“[E]xcessive audible air leak on the pressure to the brake system,
brake failure, causing the . . . driver to lose control and wreck. The
handrail, this is where he enters and exits the cab. It’s a very
narrow area. The driver without the proper handrail and handling,
could fall off the truck causing fatal injuries from his elevated
height of approximately 10 to 12 foot.”
Tr. 102-03. Vance testified that he designated Respondent’s negligence as moderate because the
leak on the steering hoses, the audible air leak, and the condition of the handrail and mirror were
all obvious, the excessive slack in the ball stud occurred over time, and Respondent could not
provide any records showing that the ball studs were checked by two people. Tr. 104.
As noted, Newsome operated Truck No. 4013 during the April 30, 2013 inspection. Tr.
315. Newsome testified that he found no problems during a pre-operational inspection of Truck
No. 4013 on the morning of April 30. Id. Newsome testified that buddy checks are done on the

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ball studs about once a week or once every two weeks, and Vance never asked Newsome about
buddy checks or how he performed his pre-operational checks. Tr. 316.
Newsome testified that Vance began his inspection on the ground first and not in the cab.
Tr. 317. As noted previously, Newsome testified that Vance was only under the truck for a
couple of minutes when he checked the ball studs and that Newsome did not see Vance with a
dial indicator. Tr. 316--19. Although he could not see under the truck, Newsome testified that if
Vance had been carrying a dial indicator, Newsome would have seen it. Tr. 322.
Newsome testified that after Vance came out from under the truck, Vance hit the kill
switch on the bumper of the truck and then climbed up into the cab. Tr. 317. Newsome testified
that Vance asked Newsome to turn the key on and when he did so “there was a small leak.
Nothing to affect anything. It was like a hose or something leaking. And he heard that, and he
said, “You’re down.’” Tr. 320; see also Tr. 322 (“[H]e heard the small air leak and said, ‘You’re
down.’”). Newsome testified, “Then he [Vance] laughed and said he loved it.” Tr. 320.
Newsome testified that, “[t]hen he -- well, he checked, I think the mirror and something -- not
the mirror, but the casing or something was broke on the door.” Tr. 320, 322 (“[T]he door casing
was busted or something. I mean it wasn’t nothing pertaining to safety, but he -- he mentioned
something about it.”).
Newsome was shown P. Ex. 4, p. 4, a picture of the cited handrail on the outside of his
cab on Truck No. 4013. Tr. 323. Newsome testified that when the door to the cab was opened,
the handrail area was not accessible because of the way the door swung open. Tr. 323-24. When
asked whether there was any problem with the stability of the handrail, Newsome testified, “No.
It’s used for nothing really.” Tr. 324. Newsome further testified that there was no window or
anything that one needed to clean, which would require use of the handrail. Tr. 324-26. In
essence, Newsome testified that the cited handrail was not used because it was located behind a
door hinge, and was not needed to clean the window in the door. Id.
As noted, Newsome testified that he never saw Vance with a dial indicator during the
inspection. Tr. 317. Furthermore, Newsome testified that Vance was only under the truck for a
minute or two when Newsome was manipulating the steering wheel to the left and right to check
the steering linkage system, and that Vance only checked under the truck once after directing
Newsome to turn the steering wheel. Tr. 316, 322. I credit Newsome’s testimony, particularly
because he was forthcoming with regards to conditions that did exist and candidly admitted when
he was unfamiliar with a particular system or did not have the requisite knowledge to answer a
question. Tr. 333, 336, 343, 346.
a.

Legal Analysis Concerning Citation 7162344
i.

The Alleged 77.404(a) Violation

Under Section 77.404(a), 777D Caterpillar Truck No. 4013 cited by inspector Vance on
April 30, 2013 was mobile equipment that must be maintained in safe operating condition and
removed from service, if unsafe. Peabody Coal, supra, 1 FMSHRC at 1495. It is undisputed that
such mobile equipment was in service when cited. The primary issue is whether the truck was
maintained in safe operating condition. Applying the reasonably prudent operator test set forth
above, I find that the Secretary has established that Respondent violated Section 77.404(a) by

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38 FMSHRC Page 1136

failing to maintain the steering hoses in safe operating condition and that the violation was
significant and substantial. I find a non-S&S violation with regard to Respondent’s failure to
maintain the truck in safe operating condition free from a small air leak, since the Secretary
failed to establish through Vance’s testimony that the air leak contributed to a discrete brakefailure hazard which was likely to result in an injury during continued mining operations. I
dismiss the remaining allegations in the citation.
The Allegation of Slack in Steering Linkage Components
For the reasons previously set forth with regard to Citation 7162343, I discredit Vance’s
testimony that he used a dial indicator on Truck 4013 and found 70,000ths of excessive slack
(i.e., the same amount of slack attributed to Truck 4016 in Citation 7162343) on the inside ball
stud located on the left side steering jack, and slack where the nut was located on the ball stud.
Rather, I have credited Respondent’s witnesses, particularly Lusk and Newsome, that Vance did
not use a dial indicator to take any measurements of slack in ball joint movement on any truck
inspected on April 30, 2013. Further, Citation 7162344, like its predecessor Citation 7162343,
indicated that slack existed where the nut was located on the ball stud, but Vance did not testify
about any such slack on Truck No. 4013.
With regard to the allegation that excessive slack existed in the center arm pin located on
the steering linkage, Vance identified a picture of the bottom of the center pin (P. Ex. 4, p. 3) and
testified that he observed excessive slack in the center arm pin where the pin mounts inside the
center arm. Tr. 91. Vance confirmed that the pin is inside the center arm and the picture just
shows the outside of the pin. Tr. 91-92. Vance did not testify what amount of slack was
excessive slack in the center arm pin and he did not take any measurements.
I find Vance’s testimony and notes about excessive slack in steering linkage components
to be unreliable and motivated by his bias against Curry. I find that the Secretary failed to prove
by credible, probative evidence that any ball joint movement or excessive slack in the center arm
pin met Caterpillar’s out-of-service criteria such that truck 4013 was not maintained in safe
operating condition.
The Allegation of a Broken Mirror
With regard to the allegation that the mount for the mirror on the driver-side door was
broken, I find that the Secretary failed to establish that the cited mirror interfered with visibility
and safe operation of the vehicle. See, e.g., Walker Stone Co., 17 FMSHRC 1389, 1394 (Aug.
1995) (ALJ). I rely on the credible testimony of Newsome that he did not have any problems
seeing out of his mirror (Tr. 327), the fact that the Secretary failed to establish that Vance sat in
the driver’s seat of the truck to check for vision impairment, the fact that P. Ex. 8 shows the cited
mirror and an additional mirror above it to be intact, and the fact that Vance demonstrated clear
bias against Curry. Accordingly, this allegation in the citation fails of proof and will be
dismissed.
The Allegation of a Broken Handrail
With regard to the allegation that the handrail located behind the drive-side door was
broken, I find that the broken bottom portion of the handrail did not render the truck in unsafe
operating condition under the cited standard. On cross examination, Vance was shown P. Ex. 8
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38 FMSHRC Page 1137

and pointed out where there was a break in the bottom portion of the handrail. P. Ex. 8; Tr. 25253. The photograph and Vance’s testimony establish that the upper and middle portions of the
handrail were intact and Vance conceded that the handrail would have to break through steel at
the top and bottom for one to fall through. P. Ex. 8; Tr. 253. Vance further opined that the cited
handrail itself would not establish an S&S violation. Tr. 253-54. In addition, the Secretary failed
to establish that the existing handrail was insufficient to grasp onto as a miner walked up or
down the adjacent steps. In these circumstances, I find that the Secretary failed to establish that
the Respondent failed to maintain the truck in safe operating condition because of the missing
portion of the otherwise intact handrail. Accordingly, this allegation fails of proof and will be
dismissed.
The Allegation of an Air Leak
With regard to the allegedly “excessive audible air leak” that Vance heard emanating from
underneath the center of the cab when the operator released the parking brake and held the
retarder, I find that there was an audible air leak when the brakes were applied. Tr. 98. Newsome
confirmed that after Vance hit the kill switch, climbed up into the cab, and asked Newsome to
turn the key, one could hear “a hose or something leaking.” Tr. 320. Vance did not determine
where the leak was coming from or measure the amount of air or air pressure that was leaking. I
credit Newsome that the leak was small. Tr. 320. 19 I further credit Newsome that when Vance
heard the small air leak, he said “You’re down,” laughed, and said he “loved it.”
I find that a reasonably prudent operator should recognize that an air leak, although small,
amounts to a failure to maintain the leaking component of the truck in safe operating condition in
violation of section 77.404(a).
The Allegation that the Steering Hoses Were Leaking
With regard to the leaking steering hoses, I credit Vance’s testimony, as corroborated by
photographs (P. Ex. 2, pp. 5-6; P. Ex. 4, pp. 1-2), that there was oil leaking from both steering
hoses onto the metal fittings where the hoses enter the right and left steering jacks. Tr. 83-84, 86;
P. Ex. 2, pp. 5-6; P. Ex. 4, pp. 1-2. As noted, the steering hoses supply oil to the steering
cylinders in the steering jack so the truck can be steered. I credit Vance’s testimony that the
leaking hoses could cause a catastrophic failure because when the steering hose blows, you can
lose oil pressure to the steering jacks, which would cause loss of steering control during
operation of the vehicle. Tr. 94. Lusk admitted that the steering hoses were leaking, but he
testified that the leak(s) did not affect operation of the steering. Tr. II, 155.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
19

Vance provided no frame of reference for his allegation that the leak was “excessive.”
He did not measure the decibels or use any other device to measure the air leak. Tr. 96. Although
Vance observed the air pressure gauge start dropping after he climbed back up in the cab, he did
not take any measurement as to how far it dropped or what the difference was in pounds per
square inch (psi). Tr. 96-99. Further, Vance acknowledged on cross examination that applying
the brakes can cause the air gauge to drop. Tr. 222. Given Vance’s animus and bias toward
Curry, as set forth herein, I find that his use of the term “excessive” to describe the air leak was
overstated. Moreover, it was unnecessary, because an air leak constitutes a defect regardless of
its magnitude.
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38 FMSHRC Page 1138

Contrary to Lusk’s cryptic attempt to downplay this safety issue, I find that a reasonably
prudent operator should recognize that the failure to maintain the steering hoses free from oil
leaks amounted to a failure to maintain the truck in safe operating condition in violation of the
section 77.404(a).
ii.

S&S, Gravity, and Negligence

Although the air leak constituted a violation of a mandatory safety standard, satisfying
the first Mathies prong, I find that the Secretary has failed to meet his burden of proof under the
second prong with regard to this particular condition. As noted, the second prong of the Mathies
test requires showing a “discrete safety hazard – that is, a measure of danger to safety –
contributed to by the violation.” Mathies, 6 FMSHRC at 3. The Fourth Circuit recently held that
the second prong of the test contemplates a showing that the violation was at least somewhat
likely to result in harm. Knox Creek, 811 F.3d at 162. Vance alleged that the air leak violation
contributed to the hazard of the brakes failing due to loss of pressure in the brake system.
However, the Secretary has failed to substantiate this speculative allegation. Vance conceded that
if the air pressure leaks off, the service brake and park brake set up, if functioning properly. Tr.
222-23. Vance did not cite any brake problems on the truck. Tr. 224. Moreover, Vance could not
determine precisely where the air leak was other than somewhere underneath the center of the
truck where one checks the tire rods and ball studs. Tr. 95, 222. Thus, it is not clear whether the
leak was coming from the brake system, as he suggested, or whether it actually originated in
some other part of the vehicle. I further note that Vance did not visually observe any leaking line
or measure the pressure that was allegedly leaking off and could present no evidence that the
truck was at all likely to blow a brake line. Tr. 225. Rather, Vance’s testimony focused on a
speculative loss-of-control hazard at Mathies prong three assuming that a line blew and the
wheels locked up on a wet road. When asked by Respondent’s counsel how the air leak was
reasonably likely to cause a serious injury, Vance merely testified that “… if the truck is
traveling with a load and a line blows and the brakes set up, you could lose control of the truck
by the wheels locking up if the roads were wet.” Tr. 224. Vance’s testimony lacked any
explanation as to how the air leak contributed to this hazard. In these factual circumstances, I
find that the Secretary failed to establish that the air leak violation, as litigated, contributed to a
discrete brake-failure hazard that was likely to result in harm.
Turning the leaking steering hoses, I have already found that this condition violated a
mandatory safety standard, satisfying the first prong of the Mathies test. I further find that the
other three elements of the Mathies test were satisfied and that the violation of the mandatory
safety standard was significant and substantial.
With regard to the second Mathies element, the Secretary established that the leaking
steering hoses contributed to a discrete safety hazard or measure of danger to safety and were “at
least somewhat likely to result in harm,” satisfying both the traditional formulation and the Knox
Creek Court’s formulation of Mathies prong two. The steering hoses supply oil to the steering
cylinders in the steering jack so the truck can be steered. Tr. 94. Vance testified that the leaks in
the hoses could cause the hoses to fail catastrophically, resulting in loss of pressure to the
steering jacks and loss of steering control during operation of the vehicle. Tr. 94, 102. Lusk
denied that the leaks affected the steering, but did not consider what would happen if the leaks
were to continue unabated. Tr. 155. I find that the leaking fluid, if left unabated during the course
of continued normal mining operations with normal use of the truck, would be reasonably likely
!

38 FMSHRC Page 1139

to cause the steering hoses to blow and pressure to be lost to the steering jacks, resulting in loss
of steering control. The cited truck is a large haul truck driven over uneven, curved, and graded
mine roads. It is used regularly and carries heavy loads. Under the circumstances, loss of steering
control would be reasonably likely to result in injury to the driver due to the vehicle overturning
or wrecking, injury to another driver during collision with another vehicle, or injury to another
miner traveling on foot in the vicinity of haul truck operations. Accordingly, I find that the
violation was more than “somewhat likely to result in harm” due to its contribution to a discrete
safety hazard that was reasonably likely to occur and to cause injury during continued normal
mining operations.
Regarding the third Mathies element, the Secretary demonstrated a reasonable likelihood
that the hazard contributed to by the violation, i.e., loss of control of the large haul truck on mine
roads, was reasonably likely to result in an injury during continued mining operations, for the
reasons described above.
Concerning the fourth Mathies element, I find a reasonable likelihood that any such
injury would be of a reasonably serious nature given the nature of the hazard, the size of the
truck, and the impact from any collision. The loss-of-control hazard contributed to by the failure
to maintain the large haul truck in safe operating condition was reasonably likely to result in a
collision and concomitant serious or fatal injury to the truck driver, miners in a colliding vehicle,
or miners struck on foot. The Caterpillar 777D is a very large haul truck capable of carrying
loads weighing hundreds of thousands of pounds. A collision with another vehicle or miner
likely would be serious or fatal. Accordingly, the Secretary has shown a reasonable likelihood
that an injury resulting from the hazard contributed to by the violation was reasonably likely to
be serious or fatal.
The gravity of this violation was serious, although not as serious as indicated by the
inspector. I have dismissed four of the six defects that Inspector Vance allegedly observed (slack
in the steering ball joint, slack in the center arm pin, and the alleged defects in the mirror and
handrail), and I have found the Secretary’s evidence to be lacking with regard to the hazard
presented by the fifth defect (the air leak). However, the sixth defect (the leaks in the steering
hoses) was serious in light of its contribution to a discrete risk of serious injury.
I further find that Respondent’s level of negligence was properly designated as moderate.
Respondent knew or should have known of the leaking steering hoses, although it is unclear how
long the oil was leaking.
iii.

Penalty

As noted, Respondent is a large operator. The parties stipulated that the originally
proposed penalty of $12,248 will not affect Respondent’s ability to remain in business. MSHA
recognized Respondent’s good-faith compliance in abating the citation. I have dismissed four
specific allegations in the citation. I have modified the S&S determination concerning the air
leak in the braking system from reasonably likely to unlikely and non-S&S. I have affirmed the
allegation concerning the leaking steering hoses as S&S, as written. I have affirmed MSHA’s
moderate negligence determination. After consideration of the penalty assessment criteria
discussed earlier and set forth in section 110(i) of the Act, I assess a $3,050 civil penalty against
the Respondent.
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38 FMSHRC Page 1140

3.

Citation No. 7162346 – Caterpillar 777F, Truck No. 4045

Vance inspected a third truck on April 30 at 11 a.m. -- Caterpillar 777F, Truck No. 4045.
Tr. 106. Vance testified that the 777F is the “same type of truck” as the 777D, with some
upgrades, and that he followed the same inspection protocol. Id. Vance began in the cab and
observed that the brake action warning light was on, and that the brake oil temperature gauge
was not working properly. Id. Vance testified that the brake action light remained on, regardless
of whether the brakes were engaged. Tr. 107. Vance testified that a driver would not know about
a problem with the braking system if the warning light was continuously engaged. Tr. 114.
Vance explained that the brake oil temperature gauge is important because it allows the
driver to monitor the temperature of the brakes, especially on a downhill slope or steep grade,
and to determine when to switch gears or to change braking technique. Tr. 107. Vance testified
that the brake action warning light comes on when the brake oil temperature gauge reaches a
certain temperature and gives warning that the driver needs to change gears, lighten the load, or
try different braking options. Id. Vance speculated that the light was stuck on and stayed on
continuously, but Vance never tested his assumption during operation of the truck. Id.
Vance took a picture of the brake warning light. P. Ex. 6. Tr. 236-37. On cross
examination, Vance testified that the truck would move when the warning light was on based on
his experience. Tr. 237. On further cross, however, it became clear that Vance’s experience was
based on a warning light that was engaged during operation of a different truck, and the cited
truck was parked and not operating. Tr. 237-38. Vance continued to maintain that the cited truck
could be driven while the brake warning light was on. Tr. 238. Vance conceded that he had never
driven a 777F, only a 777D or a lesser model. Tr. 238.
When asked by the undersigned how he knew that the truck could move with the light on,
Vance replied, “[b]ecause the brake is not set up. Now with the park brake light on, the park
brake is set up … But this light will come when you start getting some indication that there’s a
problem with the braking system.” Tr. 238-39. Vance could not identify the illuminated light
with the gear and exclamation point next to the illuminated brake warning light and above the
illuminated parking brake. Tr. 239. Vance never checked the manual to see if the truck could be
driven with the brake warning light on. Tr. 239.
Contrary to Vance, Lusk testified that a truck can be started, but cannot move with the
brake action warning light on. Tr. II 158, 160. I credit Lusk over Vance since he has driven the
777F model and Vance has not.
Both Vance and Lusk testified that a warning buzzer will go off if there is a problem with
the brakes. Tr. 244; Tr. II 159. In fact, on cross examination, Vance acknowledged that the
buzzer was an audible three alarm that was working and would go off before there was problem
with the brake system or any brake failure. Tr. 244. Vance then attempted to retract his
admission, but Respondent’s counsel would not let him do so.
Q.
So the brake light and the oil temperature light would not
cause an injury, because if we’re getting into a problem with the
brake system, the buzzer is going to go off, correct?
A.
!

The buzzer will go off.

38 FMSHRC Page 1141

Q.
And that tells an operator he’s got a problem with his brake
system; right?
A.
It could be another thing, too. I mean, it doesn’t
necessarily -- it could go off for the steering, it could go off for oil
pressure loss. It works off all the alarms.
Q.

It would tell him he has a problem with the system; right?

A.

Yes.

Q.

Okay. And that tells him to stop; right?

A.

Yes.

Id.
When asked on cross examination how the allegedly defective brake oil temperature
gauge was reasonably likely to cause a serious injury, Vance testified, “[b]ecause the driver does
not have no warning that if he’s overheating the brakes or not. Because the light is on and the
temperature gauge is pegged out.” Tr. 240. When pressed further about how ignorance of the
brake oil temperature is reasonably likely to cause a serious injury, Vance testified, “[b]ecause
the hotter the brakes get, you’re pretty much, more or less, cook them. So the less brake friction
you’re going to have as far as stopping capability.” Id. Vance further testified that the brake oil
would have to heat up to a sufficient degree that the driver would lose the capability to stop the
truck, and you will probably see smoke coming from the brake drum. Tr. 241.
Although the citation indicated that the fuel gauge was not working properly (P. Ex. 5),
Vance did not testify how the fuel gauge was malfunctioning. Rather, Vance testified that it was
“good practice to know if you’ve got fuel” and testified that once while driving a large rock truck
out of a pit, the truck ran out of fuel and rolled back until the brakes set up. Tr. 108. On cross
examination, counsel asked Vance how it was reasonably likely to have a serious injury from a
fuel gauge not working. Vance replied, “[b]ecause the truck could run out of fuel while traveling
uphill or downhill, and the truck is going to roll a certain distance until the brakes actually stop
the truck.” Tr. 233-34. Vance testified that the truck could be dumping in a valley field down a
grade about a quarter mile to a mile from the pit. Tr. 235-36.
When counsel asked how far the truck had rolled during the incident that Vance
described, Vance replied, “[p]robably 50 feet or better.” Vance testified that he was driving on a
steep grade under the heavy load of a much larger 793 model rock truck, capable of carrying 2.5
times the tonnage of the 777D or 777F models cited. Tr. 233-34.
At the time of the inspection, Curry credibly testified that the rock trucks were refueled
at the end of every shift, and could run for two days, or 20 hours, on one tank of fuel. Tr. II, 10203. At the time of hearing, Curry testified that Respondent was refueling midday. Tr. II, 103.
Vance conceded on cross examination that for an injury to occur, Respondent would have to
deviate from its practice of refueling at shift’s end. Tr. 234.

!

38 FMSHRC Page 1142

With regard to the alleged slack in steering linkage components, Vance read from the
citation and testified as follows: “The first item, ‘Excessive slack existed on the inside ball stud
located on the right side steering jack. Excessive slack existed when the truck is steered in either
direction. Also, slack existed where the nut was located on the ball stud.’” Tr. 108. Vance
testified that he observed the slack and measured 80,000ths of slack with a dial indicator. Tr.
108-09.
Q.

Can you tell us about that?

A.

Measurement with a dial indicator, 80,000ths.

Q.

You use the same --

A.

Horizontal movement, yes. Steering jack and the ball stud.

Q.
Were they making the same movement as the stuff you
observed before?
A.

Yes.

Judge McCarthy: Did you measure both the right side of the
steering jack and where the nut was located?
The Witness: Just the top part where the -- where the -- top of the
ball stud and the steering jack itself. Not the nut.
Judge McCarthy: Is that true for all the measurements?
The Witness: Yes. It’s the same as -- just this one had a little bit
more slack.
By Ms. Bernick:
Q.

Did anybody else take any measurements of this?

A.

Not at the time when I was there.

Id. Vance’s notes for the citation indicate “Pic’s taken, no pics taken by company.” P. Ex. 2, p.
15. As noted, however, no pictures of dial indicator measurements were proffered by the
Secretary.
Vance testified that the slack in the ball joint, combined with the braking issues could
cause a driver to lose control of the truck and wreck. Tr. 110. Vance testified generally that he
had investigated numerous truck accidents that were caused by brake system defects. Tr. 111.
Vance testified that in each instance, brake defects caused the driver to lose control and wreck
the truck. Tr. 111. According to Vance, none of these incidents resulted in a fatality, but did
result in permanent disability. Tr. 111-12. Vance did not present any accident or investigation
reports, nor provide specific information about any of the accident investigations in which he
was involved. Tr. 112-13.

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38 FMSHRC Page 1143

Following his inspection, Vance issued Citation No. 7162346 for an alleged violation of
30 C.F.R. § 77.404(a). The citation alleged that:
1. Excessive slack existed on the inside ball stud located on the
right side steering jack. Excessive slack existed when the truck is
steered in either direction. Also slack existed where the nut was
located on the ball stud.
2. The brake oil temperature gauge was not working properly.
3. The brake action warning light was on.
4. The fuel gauge was not working properly.
P. Ex. 5. The citation was designated as S&S and reasonably likely to result in a fatal injury, with
one person affected, as a result of Respondent’s moderate negligence. The proposed penalty was
$12,248. The citation described abatement steps as follows:
1.& A new ball stud has been installed.
2.& A new sensor has been installed.
3.& A new sensor has been installed.
4.& A new sensor has been installed.
P. Ex. 5.
These abatement steps were largely disputed by Lusk, who repaired the truck. Tr. II, 161.
Although Lusk testified that an inside ball stud on the right side steering jack was replaced, no
sensor was installed for the brake oil temperature gauge. Rather, Lusk repaired some wiring. Tr.
II, 160-61. Lusk testified that nothing was wrong with the brake action warning light and no
sensor was installed. Tr. II, 162. Similarly, Lusk testified that no sensor was installed for the fuel
gauge. Id. Rather, Lusk testified that the sensor was plugged back up because dirt had pulled it
apart. Id. I credit Lusk regarding these abatement steps that he personally undertook. I find that
Vance prevaricated certain abatement steps and cursorily checked abatement measures consistent
with Lusk’s letter to District Manager Watkins. See R. Ex. 2.
a.

Legal Analysis Concerning Citation 7162346
i.

The Alleged 77.404(a) Violation

Under section 77.404(a), the primary issue is whether the 777F Caterpillar Truck No.
4045, cited by inspector Vance on April 30, 2013, was maintained in safe operating condition
and removed from service, if unsafe. Peabody Coal, 1 FMSHRC at 1495. It is undisputed that
such mobile equipment was in service when cited. The primary issue is whether the truck was
maintained in safe operating condition. Applying the reasonably prudent operator test set forth
above, I find that the Secretary established that Respondent violated 30 C.F.R. §77.404(a) by
failing to maintain the brake oil temperature gauge in safe operating condition, but failed to
establish that the violation was significant and substantial. I find that the Respondent further

!

38 FMSHRC Page 1144

violated the standard by failing to maintain the fuel gauge in safe operating condition and that
this violation was significant and substantial. I dismiss the remaining allegations in the citation.
The Allegation of Slack in the Ball Joint
For essentially the reasons previously set forth herein, except for Vance’s slight
modification of the amount of slack purportedly measured, I discredit Vance’s testimony that he
used a dial indicator on Truck 4045, and that he found 80,000ths of an inch of excessive slack on
the inside ball stud located on the right side steering jack, excessive slack when the truck was
steered in either direction, and slack where the nut was located on the ball stud. Rather, I have
credited Respondent’s witnesses, particularly Lusk and Newsome, that Vance did not use a dial
indicator to take any measurements of slack in ball joint movement on any truck inspected on
April 30, 2013. Further, Citation 7162346, like predecessor Citations 7162343 and 7162344, all
indicated that slack existed where the nut was located on the ball stud, but as with Citation
7162344, Vance did not testify about the alleged slack where the nut was located on Truck 4045.
As with the prior citations, I find Vance’s testimony and notes about excessive slack or slack in
steering linkage components to be totally unreliable and motivated by his bias against Curry. I
find that the Secretary failed to prove by credible, probative evidence that excessive slack existed
on the inside ball stud located on the right side steering jack or that slack existed where the nut
was located on the ball stud. Accordingly, the Secretary failed to establish that any such slack
met Caterpillar’s out-of-service criteria such that truck 4045 was not maintained in safe
operating condition.
The Allegation that the Brake Action Warning Light Was Defective
With regard to the allegation that the brake action warning light was on, I have credited
Lusk’s testimony that nothing was wrong with the brake action warning light and no sensor was
installed to abate the violation. Tr. II, 162. Lusk testified that the light comes on when the truck
starts, and it remains on, preventing the truck from moving, until pressure builds up for the
brakes. Tr. II, 158-60. Vance indicated that the warning light is linked to the brake oil
temperature gauge, which was not functioning properly. Considering this information, I reject
Vance’s allegation that the light was “stuck.” Tr. 107. It is likely that the light had turned on
because the truck had just been started, or else it had been automatically activated by the
problem with the brake oil temperature gauge in order to alert the driver to the need to check the
brake oil, which is exactly the way the light is supposed to work. Further, I have credited Lusk’s
testimony that the truck cannot be driven while the brake action warning light is on. I discredit
Vance’s testimony to the contrary and find that the Secretary failed to establish that the brake
action warning light was not functioning properly while the truck was operating. Accordingly,
this allegation in the citation fails of proof and will be dismissed.
The Allegation that the Brake Oil Temperature Gauge Was Defective
With regard to the allegation that the brake oil temperature gauge was not working
properly, Lusk conceded that he repaired the wiring leading to the gauge. Tr. II, 161. Further,
Vance testified that the brake oil temperature gauge allows the driver to monitor the temperature
of the brakes, especially on a downhill slope or steep grade, and determine when to switch gears
or change braking technique.

!

38 FMSHRC Page 1145

I find that the gauge was not working properly due to faulty wiring and thus Respondent
violated 30 C.F.R. § 77.404(a) by failing to maintain the truck in safe operating condition.
The Allegation that the Fuel Gauge Was Defective
With regard to the allegation that the fuel gauge was not working properly, Vance did not
explain how the fuel gauge was malfunctioning. I have credited Lusk’s testimony that the
operator did not need to install a new sensor to repair the fuel gauge, as the sole problem was that
a component of the sensor had come unplugged. Tr. II, 162.
As previously stated, § 77.404(a) requires operators to maintain vehicles in safe condition
and remove them from service if unsafe. Thus, the question before me is whether the unplugged
fuel gauge rendered the truck unsafe. The fuel gauge serves to alert the driver when fuel is
running low. A nonfunctional fuel gauge creates a risk that the driver will not realize the vehicle
needs to be refueled, and as a result, the vehicle may run out of gas unexpectedly. As Judge Gill
recently noted in a case involving a runaway truck, running out of gas causes a truck’s engine to
die, which can affect the operability of the steering and brakes, leading to a loss-of-control
hazard on steep, winding mine roads. Clintwood Elkhorn Coal Co., 37 FMSHRC _, Docket No.
KENT 2011-42R et al., slip op. at 7 (Mar. 22, 2016). Similarly, Vance recalled a prior incident
when he had been driving a truck that ran out of fuel and rolled along an incline until the brakes
kicked in. Tr. 108. I conclude that the unplugged fuel gauge rendered the truck unsafe, and
therefore the condition violated § 77.404(a).
ii.

S&S, Gravity, and Negligence

As discussed above, I have found that the brake oil temperature gauge and the fuel gauge
were defective, in violation of the mandatory safety standard at § 77.404(a). These findings
satisfy the first Mathies element.
Turning to the second Mathies element, with regard to the brake oil temperature gauge,
the Secretary established that the defective gauge created a hazard in that the driver could no
longer determine whether the brakes were overheating, which could contribute to an accident if
the brakes were to overheat. Tr. 240-41. However, I find that the second Mathies element is not
satisfied because the hazard did not constitute a genuine measure of danger to safety under the
particular circumstances surrounding this violation and because the evidence does not establish
that the violation was at least somewhat likely to result in harm. When asked on cross
examination how the brake oil temperature gauge that was not working properly was reasonably
likely to cause a serious injury, Vance testified, “[b]ecause the driver does not have no warning
that if he’s overheating the brakes or not. Because the light is on and the temperature gauge is
pegged out.” Tr. 240. However, I have credited the operator’s testimony that the vehicle could
not be moved because the brake action warning light was on. Because the truck could not be
moved, there was no measure of danger to safety. Even if it could be moved, there was no
evidence of any problems with the brakes. Moreover, both Vance and Lusk testified that a
warning buzzer will go off if a problem with the brakes were to arise. Tr. 244; Tr. II 159. In fact,
on cross examination, Vance acknowledged that the audible three alarm buzzer was working and
would go off before there was problem with the brake system or any brake failure. Tr. 244. In
these circumstances, I find that the Secretary failed to establish a likelihood that the brake oil
would heat up without warning to a sufficient degree that the driver would lose the capability to
!

38 FMSHRC Page 1146

stop the truck. Accordingly, I need not address the remaining Mathies elements, and I find that
the defective brake oil temperature gauge was not a significant and substantial violation.
However, I uphold the S&S designation with regard to the defective fuel gauge. Curry
credibly testified that at the time of the inspection, the rock trucks were refueled at the end of
every shift and could run for two days, or twenty hours, on one tank of fuel. Tr. II, 102-03.
Vance conceded on cross examination that for an injury to occur, Respondent would have to
deviate from its practice of refueling at shift’s end. Tr. 234. Nonetheless, I find that the Secretary
has overcome the very low burden imposed by the second prong of the Mathies test by
establishing that the defective fuel gauge presented a discrete hazard – that is, a measure of
danger to safety – that was at least somewhat likely to result in harm. As discussed above, the
defective fuel gauge created a loss-of-control hazard if the truck were to unexpectedly run out of
gas. Given the vagaries of human conduct and assuming continued normal mining operations, it
was at least somewhat likely that the truck would not be refueled despite the operator’s refueling
policy and would run out of gas, which would occur without warning due to the inoperable fuel
gauge. See Peabody Coal Co., 19 FMSHRC 1381, 1385 (Aug. 1997) (finding that operator’s
safety practices do not preclude S&S finding because such an approach would rely on miners’
skill and attentiveness to prevent injury, which impermissibly “ignores the inherent vagaries of
human behavior”) (citing U.S. Steel, supra, 6 FMSHRC at 1838 n.4). Because the truck was
regularly driven on steep, curving mine roads, any loss of control occasioned by the truck
unexpectedly running out of gas would be reasonably expected to cause a vehicular accident
such as a collision, a fall from a precipitous height, or a rollover accident. See, e.g., Clintwood
Elkhorn, supra (discussing accident wherein an out-of-control truck ran out of gas, accelerated
down a mountain road, crashed through a berm, struck a utility pole at the base of the hill, and
rolled over). Any such accident would be reasonably likely to result in harm to a driver, a
passenger, or anyone in the path of the out-of-control vehicle. Accordingly, I find that the
defective fuel gauge contributed to a discrete safety hazard that was at least somewhat likely to
cause harm, satisfying the second Mathies element.
The third and fourth Mathies elements are also satisfied. Assuming the loss-of-control
hazard were to occur, the hazard would be reasonably likely to cause an accident resulting in
serious or fatal injuries to the driver, a passenger, or anyone in the truck’s path, as this is a heavy
rock truck that is operated in mountainous terrain.
Because the four Mathies elements are met, the operator’s failure to maintain the fuel
gauge in safe condition was S&S.
Having rejected two of the four allegations at issue in this citation and determined that
one of the two remaining safety defects (the defective brake oil temperature gauge) did not
present a genuine measure of danger to the safety of miners, I find that the gravity of this
violation was not as serious as suggested by Inspector Vance.
I further find that Respondent’s level of negligence was properly designated as moderate.
Respondent knew or should have known that the brake oil temperature gauge needed rewiring
and that the fuel gauge needed to be repaired, although it is unclear how long the conditions
existed.

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38 FMSHRC Page 1147

iii.

Penalty

Respondent is a large operator. The parties stipulated that the originally proposed penalty
of $12,248 will not affect Respondent’s ability to remain in business. MSHA recognized
Respondent’s good-faith compliance in abating the citation. I have dismissed two specific
allegations in the citation. I have modified the S&S determination concerning the brake oil
temperature gauge from reasonably likely to unlikely and non-S&S, but have upheld the S&S
determination concerning the fuel gauge. I have affirmed MSHA’s moderate negligence
determination. After consideration of the penalty assessment criteria discussed earlier and set
forth in section 110(i) of the Act, I assess a $3,050 civil penalty against the Respondent.
4. Citation No. 7162351- Caterpillar 777F, Truck No. 4058
Vance inspected Caterpillar 777F Truck No. 4058 at about 1:20 p.m. on April 30, 2013.
Tr. 115. Vance testified that the handrail on the offside was broken and needed repair, and the
mirror bracket was bent and needed adjustment. Tr. 116.
Vance checked the secondary steering by standing at ground level, hitting the “kill
switch,” and listening for the electric motor to engage. Tr. 118. Vance testified that the driver of
the truck (Ballard Smith) manually held the switch in once Vance climbed up in the cab. Tr.
181.20 Vance did not indicate, however, whether the secondary steering worked at that point. As
set forth below, Smith, Lusk and Curry all testified for Respondent that the secondary steering
did work. I credit Respondent’s witnesses, as explained below.
When asked whether the electric motor came on, Vance testified:
A. No. And he did not -- wasn’t able to do it from the cab neither
by releasing the -- the brake in the -- the transmit -- or the steering
in the manual position.
Q. Well, can you tell us about what the safety conditions here are
on the secondary steering?
A. Power loss engine failure, the driver wouldn’t have no
secondary steering, no back up to get the truck stopped, under
control, safely while in operation without secondary steering in the
case of a power failure, as far as loss of engine, loss of fuel.
Tr. 119.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
20

13.
!

Ballard Smith was the driver of the truck on the day the citation was issued. Tr. II, 12-

38 FMSHRC Page 1148

Vance issued Citation No. 7162351 for an alleged violation of 30 C.F.R. § 77.1606(c).
The condition or practice narrative alleged:
1.& Secondary steering was not functioning when tested.
2.& The handrail located on the offside of the truck was broke.
3.& The offside mirror bracket needed repaired (sic).
P. Ex. 7. The citation was designated as a significant and substantial violation because
reasonably likely to result in a lost-workdays or restricted-duty injury, with 1 person affected, as
a result of low negligence. P. Ex. 7. The proposed penalty was $1,530. The citation described
abatement steps as follows:
1.& The wiring has been repaired to the secondary steering.
2.& The handrail has been welded back up in place.
3.& The mirror bracket has been adjusted up properly.
P. Ex. 7.
Vance testified that he cited 30 C.F.R. § 77.1606(c) rather than 30 C.F.R. § 77.404(a)
because he “didn’t feel this truck was not being maintained. Just that these conditions existed
that affected it. These safety defects. So that’s why I went with this instead of the 404(a).” Tr.
121. Vance did not describe how the handrail was broken, but testified that if a driver or greaser
used it they could lose contact with the vehicle and fall. Tr. 117. Vance testified that the bent
offside mirror bracket that was out of adjustment is used each time the driver backs up, and he
could “back into something. Back over a rock. Back into another piece of equipment.” Tr. 116.
Vance testified that he designated the citation as reasonably likely to result in a lost-time
injury because the truck was operated in reverse about 50 percent of the time and the bent offside
mirror bracket “makes it difficult for the driver to see” during operation of the truck around other
equipment and in close proximity to confined areas. Tr. 121. Basically, Vance opined that the
citation was significant and substantial because the bent mirror bracket prevented a driver from
seeing while backing up, which could cause a collision. Tr. 123. Vance further supported his
reasonably likely designation because the secondary steering would not function if there was a
power failure of the truck, which operated ten hours per day for five days per week. Tr. 122.
Vance testified that he only relied on the secondary steering and bent offside mirror bracket for
his S&S designation, and not on the defective handrail. Tr. 265-66.
Vance testified that “lost workdays or restricted duty” was the appropriate injury
designation because the operator could back up and hit another object or piece of equipment.
Further, Vance distinguished this injury designation from the fatal designation in prior citations
because only secondary steering was cited, and not primary steering linkages or brakes. Tr. 12223.

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38 FMSHRC Page 1149

On cross examination, consistent with P. Ex. 8, a photograph of the cited mirror and
handrail, Vance testified that there were two mirrors on the driver side and he circled the cited
bottom mirror. Tr. 254-56; P. Ex. 8. Vance testified that the bottom mirror bracket was bent, but
the top mirror bracket was not bent and the top mirror was fully functioning. Tr. 254. Vance did
not know whether another operator, who drove the truck, had requested that the bottom mirror
bracket be bent. Tr. 244-45.
To abate the alleged violation, Vance testified that “[t]he mirror bracket has been
adjusted up properly.” Tr. 256. When asked how they adjusted it, Vance testified, “Probably
loosened it up and adjusted the mirror. It’s got – it’s mounted from the top to the bottom and you
can adjust either side to side or - -.” Id. The following exchange then occurred with Respondent’s
counsel:
Q. Okay. So what’s the problem here? Is it the bracket or is it the
way the mirror is lined up? What’s your issue?
A. Well, if the bracket is bent and you haven’t adjusted it to make
up the difference, you won’t be able to see completely what you
need to see when operating the truck.
Q. What about the mirror above it?
A. Well, as a truck driver, the bottom mirror is usually towards the
bottom of the truck and the top mirrors are used for the upper
section of the truck when you’re loading on the offside of the truck
to see your loader. When you stage up.
Q. So you went and sat in the operator seat?
A. No. This is from prior experience.
Q. Okay. So you don’t know on this truck how the operator had
these two mirrors lined up for his use?
A. No.
Q. And you didn’t take any pictures of it?
A. Just the picture that you see.
Q. Right. And that doesn’t really tell us what either one of these
mirrors are showing. We’re seeing the back of the mirrors, aren’t
we?
A. Yes.

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38 FMSHRC Page 1150

Q. It doesn’t show us what the view of the operator sitting in the
operator’s cab would see?
A. The depth of it would be hard with the picture.
Q. All right. And -- are you aware that they made no changes to
this mirror after your citation?
A. They told me the mirror bracket had been adjusted, and the
driver was okay with it.
Q. Who told you that?
A. Whoever I spoke to. Jay Curry.
Tr. 256-58.
In short, on cross examination, Vance admitted that the driver had another higher
mounted mirror that was fully functional, that Vance did not sit in the operator’s seat to check
visibility from the higher mounted mirror, that the bent mirror bracket could have been adjusted
for operator use, and that Vance did not know what the operator saw, rather Vance was “[j]ust
going by experience.” Tr. 254, 257, 267. Subsequently, the following colloquy occurred between
the undersigned and Vance:
Judge McCarthy: Well, did you – did the operator tell you what he
saw or didn’t see on the day you wrote the citation?
The Witness: It’s been took out of the notes.
Judge McCarthy: Well –
The Witness: What was exactly said, I don’t remember. I mean,
exactly what was said. Did he –
Judge McCarthy: Well, what do you remember the operator telling
you?
The Witness: The day the citation was issued?
Judge McCarthy: Right. About the mirror.
The Witness: Evidently, there was a problem with the mirror.
Without me sitting in the seat and him not telling me, I would not
know.

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38 FMSHRC Page 1151

Judge McCarthy: Okay. You have a problem, don’t you? I mean,
you have the steering. Okay? It’s like a crack in the windshield. I
have had cases where the inspector didn’t get up – well, you can
read them or you can find them. But – so we don’t know what the
operator told you. He just said there was a problem?
The Witness: Yes
Tr. 267-68.
Vance designated Respondent’s negligence as low. The Secretary’s counsel conceded
that she was not seeking to modify that designation. Tr. 128.
As noted, Ballard Smith operated Truck No. 4058 during the inspection. Tr. II, 7-8. Smith
testified that buddy checks were performed more or less on a weekly basis at Eagle Creek. Tr. II,
38. Smith acknowledged that there was a crack in the weld on the truck’s handrail. Tr. II, 15. In
addition, Lusk admitted that the handrail had broken from its weld at one point and Lusk
repaired it to abate the citation. Lusk noted, however, that the handrail had several other points of
contact with the truck. Tr. II, 144.
Smith did not remember any problem with the mirror bracket and did not have any
trouble using the mirrors while driving the truck. Tr. II, 28. When asked on direct whether the
mirrors angled to the appropriate areas to allow Smith to see behind him, Smith testified, “I
didn’t have any problem with it. I wouldn’t pull out if I had a problem seeing.” Tr. II, 29. Smith
confirmed that he did a pre-operational check on the truck that morning and did not have any
problems with the mirror that he could remember. Id. Smith did not recall having any
conversation with Vance about the mirrors. Id. Smith did recall that the offside mirror bracket
had been bent a little bit during shipping, but one could adjust the mirror. Tr. II, 29-30. When
asked whether the mirror had been adjusted to be in the proper location, Smith testified, “I didn’t
have any problem with it.” Tr. II, 30. Smith testified that he could adjust the bottom mirror from
the steering wheel to see behind him on the offside when backing up to judge the distance of
objects behind him. Smith could also adjust the mirror to look at the side of the truck or the
wheel area. Id. Smith testified that Vance probably noticed that the bracket was bent a little bit,
but Smith did not recall Vance questioning Smith about the mirror and it was not a problem. Tr.
II, 31. The Secretary redacted any alleged conversation that Vance may have had with Smith
about the mirror. Id.; P. Ex. 2, p. 30.
Smith further testified that Vance could not check the secondary steering on the 777F
model from the ground by hitting the kill switch. Tr. II, 12. As noted, on questioning from the
undersigned, Vance testified that Smith manually held the switch in once Vance climbed up in
the cab. Tr. 181. Tr. II, 12-13. Vance did not indicate whether the secondary steering worked at
that point. As explained below, I credit Smith, Lusk and Curry, who all testified that the
secondary steering did work.
Smith testified that he had never been inspected in a 777F model, and that after Vance
“downed” and left Smith’s vehicle, Tony Wallace, the driver in the truck next to Smith, radioed

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38 FMSHRC Page 1152

Smith to inform him how to check the secondary steering. Tr. II, 13, 22-24. Smith testified that
he turned the key without starting the engine, held the switch in, and the secondary steering light
came on with a little hum. Tr. II, 13, 23. Smith further testified that there was nothing wrong
with the emergency steering and that Smith showed Vance that the secondary steering worked
after Vance had downed the truck and came back about an hour later to check on abatement
efforts. Tr. II, 13, 24-25. Smith did not know whether Vance had already written up the citation
after Smith showed Vance that the secondary steering was working. Tr. II, 26. Smith assumed
that Vance also did not know that when you hit the kill switch on the 777F model, the secondary
or emergency steering would not engage. Tr. II, 27.
Smith further testified that two of the three abatement measures listed by Vance on the
citation were inaccurate. Specifically, Smith testified that there was no repair to the wiring on the
secondary steering because Smith was with the truck and nobody notified him that they were
going under the vehicle to repair the wiring. Tr. II, 41-42. Smith also noted that nothing was
done to the mirror bracket that day. Tr. II, 48.
I credit Smith’s testimony concerning abatement measures and his testimony that he had
no problem seeing out of the offside bottom mirror when driving the truck. I further credit Smith
that the secondary steering was working and that Vance’s test was executed incorrectly.
Smith’s testimony was essentially corroborated by Lusk. Lusk testified that when Vance
climbed up the ladder into Smith’s cab, Vance told Smith that the emergency steering was not
working. Tr. II, 140. Lusk then asked Smith in Vance’s presence whether Smith had held in the
button, and Smith said, “No, I thought you just had to push it.” Tr. II, 140-41. Lusk then hollered
over to foreman Curry that Vance was not testing the 777F model correctly, as Vance started to
walk away to another truck. Tr. II, 142. As Vance passed Lusk, Vance told him to weld the
handrail, which Lusk began doing. Id. Lusk conceded that the handrail had broken loose from the
weld and needed to be re-welded. Tr. II, 144. Lusk testified that when Vance returned to check
on the handrail, Lusk told him that there was nothing wrong with the emergency steering. Tr. II,
142, 144. Lusk testified that Vance said, “Okay. Fine. Let’s test it,” and the test was fine. Tr. II,
143. Lusk further corroborated Smith that nothing was done to adjust the mirrors that day. Tr. II,
142.
Finally, I note that Curry testified that Lusk informed Curry on April 30, 2013 that Vance
was not testing the emergency steering on the 777F models properly. Tr. II, 69. Accordingly,
Curry directed Lusk to walk Vance through the proper test for the secondary steering system on
the 777F model. Tr. II, 70. Curry further testified that he was present in the area when Lusk and
Vance rechecked the secondary steering and there was no problem with it. Tr. II, 72.
a.

Legal Analysis Concerning Citation 7162351
i.'

The Alleged § 77.1606(c) Violation; S&S; Gravity; Negligence

Section 77.1606 pertains to loading and haulage equipment. The cited portion of the
mandatory safety standard states: “Equipment defects affecting safety shall be corrected before
the equipment is used.” 30 C.F.R. § 77.1606(c).

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38 FMSHRC Page 1153

I have credited Smith’s testimony concerning Vance’s apparently fabricated abatement
measures and Smith’s testimony that he had no problem seeing out of the offside bottom mirror
when driving the truck. I further have credited testimony from Smith, Lusk, and Curry that the
secondary steering was working and that Vance’s emergency steering test was executed
incorrectly on the 777F model. Accordingly, I find that the Secretary failed to establish that the
bent offside mirror bracket and the secondary steering system were equipment defects that
affected safety and that needed to be corrected before the equipment was used under the cited
standard.
Respondent’s witnesses conceded that a weld on the handrail was missing and needed to
be re-welded. Inspector Vance testified that he only relied on the secondary steering and bent
offside mirror bracket allegations for his S&S designation, and not on the defective handrail. Tr.
265-266. Contrary to Respondent’s efforts to vacate the handrail allegation completely (Tr. II,
145), I find that the missing weld was an equipment defect that affected safety if one tripped or
fell since it was located in close proximity to the steps and could be latched onto as one was
falling down, but consistent with the Secretary’s litigating position, it was not S&S, and the
gravity of the violation was not serious.
I affirm the low negligence determination since the reminder of the handrail was intact.
ii.

Penalty

After consideration of the penalty assessment criteria discussed earlier and set forth in
section 110(i) of the Act, my findings on gravity and negligence set forth above, and the fact that
the violation was abated immediately in good faith, I assess a $310 civil penalty against the
Respondent for the defective handrail.
5. Citation No. 7162340 – Water Truck No. 8147
On May 2, 2013, Vance returned to the Mine to terminate the citations issued on April 30
and to continue his E01 inspection. Tr. 200. At about 12:35 p.m., Vance inspected the White
Sterling Water Truck, No. 8147. Tr. 135. The water truck is used to water down roads for dust
control. Tr. 152.
Vance testified that the walk-around inspection protocol for the water truck was similar
to a haul truck, but the out-of-service criteria was different because haul trucks are confined to
off road, and water trucks can be operated on and off road. Tr. 136, 138. Vance used the
Commercial Vehicle System Alliance’s North American Standard Out-of-Service Criteria for
inspecting the water truck. Tr. 136. This criteria is not written into any MSHA standard, it is only
used as a guideline. Tr. 283.
Vance testified that to check the brakes, he crawled under the water truck and checked
the amount of slack or overstroke to determine whether the brakes should be taken out of service.
Tr. 143. Vance testified that when the brakes are engaged on the water truck, a pushrod extends
from the brake canister near the slack adjustor and applies pressure to the S-Cam, and the brakes
expand against the drum. Tr. 146-147. Depending on the size of the canister, the length of rod

!

38 FMSHRC Page 1154

that extends from the canister is then measured in inches. Tr. 147. Vance testified that he
measured the overstroke with a wooden, folding tape measure. Tr. 145.
Vance testified that the type-30 canisters used for the back brakes on the water truck had
a 2-inch limitation under the North American Standard Out-of-Service Criteria. Tr. 146-47.
Vance testified that he measured 2 and ! inches of overstroke for the left-side rear axle, which
exceeded out-of-service criteria. Tr. 148. Curry testified, however, that a brake with a 2 and !
inch overstroke would still stop the water truck. Tr. II, 81. As explained below, I discount
Curry’s testimony.
Vance also testified that the brakes on the left and right side of the front-drive axle did
not function when tested. Tr. 146. He testified that there was no movement in the pushrod when
the brakes were engaged. Id. On cross examination, Vance could not determine why the brakes
did not move on the left and right side of the front-drive axle (Tr. 283), but he testified earlier on
direct examination that caps were missing from the brake canisters, which would allow dust to
fill the canisters and prevent the brakes from moving. Tr. 150-51.
Vance also observed that the brake pads did not contact the brake drum as they were
supposed to do when the brakes were fully applied on the right side of the rear-drive axle. Tr.
148. Vance testified that a filler gauge is used to check space between the pads and the drum, but
Vance never testified specifically that he used a filler gauge. Id.
In addition, Vance observed that the water bed bracket that mounts the water bed to the
frame on the right side of the truck was broken. Tr. 149.
At about 12:35 p.m., Vance served Curry with Citation No. 7162340 alleging that the
water truck was not being maintained in safe operating condition in violation of 30 C.F.R. §
77.404(a) because of the following conditions:
1. The brakes located on left and right side of front drive axle were
not functioning when tested.
2. The service brake chamber pushrod stroke for the left side
chamber on the rear drive axle measured to be 2 !” inches (over
stroked).
3. The brakes located on the right side of the rear drive axle [were]
not working properly when tested. With the brakes fully applied
the brake pads would not contact the brake drum.
4. The water bed bracket mount located on the right side of the
truck was [broken] off from the water bed.
These conditions expose the miner to hazards while operating the
truck. This truck is being operated throughout mine property to
water the roadways. It is reasonably likely if these conditions

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38 FMSHRC Page 1155

continue an accident will occur. Management removed the truck
from service immediately.
P. Ex. 9.
The S&S citation was designated as reasonably likely to result in a fatal injury, with one
person affected, as a result of Respondent’s moderate negligence. Id. The proposed penalty was
$10,437. The citation listed the following abatement steps to correct the conditions:
1.& The air lines have been plumbed up properly and the brakes are
now functioning properly when tested.
2.& The brake was readjusted back up properly.
3.& The air lines have been plumbed up properly and the brakes are
now functioning properly when tested.
4.& The bracket was welded back into place on the water bed.
Id.
Essentially, Vance supported his S&S designation by testifying that four of the six sets of
brakes on the water truck were either out of alignment or not working, and since the brakes were
not functioning properly, a driver could lose control of the water truck on the mine’s steeply
graded roadways and suffer a fatal injury after traveling through a berm or colliding with another
oncoming truck. Tr. 151-156. Further, with regard to the broken water bed bracket mount, Vance
testified that the water bed is mounted to the frame by brackets on each of the four corners of the
bed. Tr. 149, 274. When asked on direct, what happens if you don’t have brackets, Vance
testified that “. . . the water bed on the truck could come off under normal operation, causing the
truck to overturn, wreck, driver loses control of the truck.” Tr. 149. Vance testified on cross
examination that under continued normal mining operations, the water truck would be driven on
steep grades and curvy roads and under heavy loads, which conditions would put stress on the
remaining brackets, causing them to fail and the truck to become unbalanced and overturn. Tr.
274, 276. Vance opined that any injury from such accident was reasonably likely to be fatal
because the water truck is driven in and out of the pit area and on steeper grades than the haul
trucks. Tr. 155.
Vance determined the violation to be the result of moderate negligence because the
Respondent could not provide any evidence that a two-man or buddy check had been conducted
on the brakes, although the operator had performed a pre-operational examination on the vehicle.
Tr. 156-57.
On cross examination, Vance did not have any independent recollection of where he
inspected the water truck, although he testified, after consulting his notes, that he probably
inspected the water truck in the pump house area. Tr. 268-69; P. Ex. 10. Vance then testified that
he saw the water truck in operation in the pump house area on the main pump house haul road

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38 FMSHRC Page 1156

which extends from the pit to the dump. Tr. 270. Vance testified that the water truck was in
operation and not parked because Vance would have reflected the fact that it was parked in his
notes. Tr. 269, 271. Vance’s notes just indicate that the water truck was checked. P. Ex. 10, p. 3.
Curry testified that the water truck was idle on May 2, 2013 because it had just rained the
night before, and the air temperature that morning was below freezing, making it too cold to
water the roads and create ice. Tr. II, 73.21 Curry testified that a brake adjustment was scheduled
for the water truck that day because the operator had informed him on April 30 that the brakes
needed adjustment. Tr. II, 75. Curry testified that he told the operator to park the truck in the
maintenance area at the top hill on the No. 8 curve and that is where the truck was inspected
when out of service. Tr. II, 75, 77. Lusk confirmed that the truck was in the maintenance yard
and scheduled for brake adjustment when Vance inspected it on May 2, 2013. Tr. II, 163. Curry
acknowledged, however, that the water truck was not locked and tagged out. Tr. II, 77.
I credit the mutually corroborative and specific testimony of Curry and Lusk that the
water truck was idled in the maintenance yard and scheduled for brake adjustment when
inspected by Vance on May 2. Vance’s recollection of the location of the inspection was hazy
and poor and I have found that Vance was not a forthright and reliable witness.
a.

Legal Analysis Concerning Citation 7162340
i.'

The 77.404(a) Violation

Under section 77.404(a), the water truck cited by inspector Vance on May 2, 2103 was
mobile equipment that must be maintained in safe operating condition and removed from service,
if unsafe. Peabody Coal, 1 FMSHRC at 1495. Although I have found that the water truck was
idle on May 2, 2013 and awaiting maintenance in a makeshift lot, I find that the truck was still in
service because the vehicle was not locked and tagged out. The Commission has held that a
vehicle that is not locked and tagged out is still considered in service. Wake Stone Corporation,
36 FMSHRC 825, 828 (Apr. 2014) (citing Alan Lee Good, 23 FMSHRC 995, 997 (Sept. 2001)
(reinforcing the rule that equipment not tagged out of operation and parked for repairs must be
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
21

As noted, after the hearing, the Secretary moved to reopen the record to submit
certified weather data from April 30 and May 2, 2013 showing that the temperature ranges for
Logan, West Virginia those days were well above freezing and there was no rain in Logan, West
Virginia on May 1 or 2, 2013. ALJ Ex. 1, Ex. A. I have admitted the evidence, but accord it no
weight as it relates to Curry’s credibility or the water truck citation. Any discrepancies between
Curry’s testimony about the temperature and precipitation and the weather data submitted by the
Secretary may be attributed to the elevation of the Eagle Creek Mine, which is over 1,000 feet
higher than Logan, West Virginia where the data was collected. ALJ Ex. 2, p. 4 and Affidavit of
Richard R. Stacey Jr. I also note that the certified weather data submitted by the Secretary shows
that that was some rain in the Logan area on April 30, 2013, the day Curry testified that the truck
was parked for a brake adjustment. Tr. II, 75. Moreover, as explained below, the water truck was
not locked and tagged out, and was not being maintained in safe operating condition. Further, for
the reasons explained below, I have found that the violation was significant and substantial.

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38 FMSHRC Page 1157

maintained in functional condition “whether or not the equipment is to be used during the shift)).
The Respondent concedes that the brakes needed to be adjusted, which is why the truck was
idled, and Respondent did not challenge the allegation that a water bed bracket mount was
broken. I find that both the defects in the brakes and the broken bracket violated 77.404(a).
ii.

S&S, Gravity, and Negligence

I further find that the Secretary has proven an S&S violation of 77.404(a) because the
water truck’s brakes and a mount on the water bed bracket were not being maintained in safe
operating condition and these conditions contributed to loss-of-control safety hazards that were
reasonably likely to result in serious or fatal injury.
I credit Vance’s testimony that four of the six sets of brakes on the water truck were
either out of alignment or not working. He testified that the brakes were over stroked on the rear
drive axle, and that the brake pads on the left and right side of the rear drive axle were not
working properly. There was no conflicting testimony regarding these conditions. In fact, Lusk
and Curry confirmed that the truck was in the maintenance yard and scheduled for brake
adjustment when Vance inspected it on May 2, 2013. Although the water truck was idled, it was
not properly locked and tagged out of service. Given the vagaries of human behavior and
assuming normal mining operations were to continue, I find it reasonably likely that a driver
would use the water truck with the defective brakes and lose control of the truck on the mine’s
steeply graded roadways, and suffer a fatal injury after traveling through a berm or colliding with
another oncoming truck. Tr. 151-156.
The broken water bed bracket mount also contributed to a loss-of-control safety hazard
that was reasonably likely to result in serious or fatal injury. The Respondent’s witness
contended that the hazard was mitigated by the presence of other brackets to hold the water tank
in place. Tr. II, 79-81. But Vance persuasively testified on cross examination that under
continued normal mining operations, the water truck would be driven on steep grades and curvy
roads and under heavy loads, which conditions would put stress on the remaining brackets,
causing them to fail and the truck to become unbalanced and overturn. Tr. 274, 276. I agree.
Consistent with Vance’s testimony, I find that any injury from such accident was reasonably
likely to be fatal because the large water truck is driven in and out of the pit area and on steeper
grades than the haul trucks, and if the water bed was not properly secured, the driver would lose
control of the truck and collide into surrounding equipment, overturn, or run through a berm. Tr.
155. Accordingly, I find that the citation was properly designated S&S.
I further find that the gravity of this violation was serious because the two cited defects
contributed to a discrete loss-of-control hazard that was reasonably likely to result in serious
injury to miners.
With regard to negligence, I have credited the testimony of Curry and Lusk that the water
truck was idled in the maintenance yard and scheduled for brake adjustment when inspected by
Vance on May 2, 2013. The Respondent’s efforts to address the brake problems might support a
reduction to low negligence in other circumstances. However, the Respondent did not properly

!

38 FMSHRC Page 1158

lock and tag the truck out of service, meaning that miners were not prevented from using the
vehicle prior to adjustment of the brakes, and the Respondent further failed to address the broken
bracket mount at all. Under these circumstances, I find that although the Respondent’s conduct
falls somewhere along the continuum between low and moderate negligence, it is more properly
described as closer to moderate negligence.
iii.

Penalty

As noted, Respondent is a large operator. The parties stipulated that the originally
proposed penalty of $10,437 will not affect Respondent’s ability to remain in business. MSHA
recognized Respondent’s good-faith compliance in abating the citation. I find that Respondent is
entitled to additional credit for good faith compliance because the water truck was already idled
and slated for brake maintenance at the time the citation was written. I have affirmed the S&S
determination concerning the water truck’s defective brakes and the broken water bed bracket
mount. Although I have affirmed the Secretary’s moderate negligence designation, I have
further found that the level of negligence is actually somewhere along the continuum between
low and moderate, but closer to moderate. After consideration of the penalty assessment criteria
discussed earlier and set forth in section 110(i) of the Act, I assess a $6,550 civil penalty against
the Respondent for Citation No. 7162340.
VI.

ORDER

It is ORDERED that Citation Nos. 7162343 and 7162351 be MODIFIED to reduce the
likelihood of injury or illness from “reasonably likely” to “unlikely,” and to delete the
“significant and substantial” designation.
It is ORDERED that Citation No. 7162343 be MODIFIED to reduce the level of
negligence from “moderate” to “low.”
It is ORDERED that the operator pay a civil penalty of $13,160 for the five citations
litigated within 30 days of this decision.22

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

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
22

As noted herein, I assess a penalty of $200 for Citation No. 7162343, $3,050 for
Citation No. 7162344, $3,050 for Citation No. 7162346, $310 for Citation 7162351, and $6,550
for Citation No. 7162340.
!

38 FMSHRC Page 1159

Distribution:
Paige Bernick, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Ave. North, Suite
420, Nashville, TN 37219
Mark Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273,
Charleston, WV 25321

!

38 FMSHRC Page 1160

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May 18, 2016

MICHAEL WILSON,

DISCRIMINATION PROCEEDING

Complainant,

Docket No. KENT 2016-0095-D
MADI-CD 2015-16

v.
JIM BROWNING,

Parkway Mine
Mine ID: 15-19358

Respondent.

DECISION AND ORDER
Before: Judge Miller
This matter is before me on the parties’ cross motions for summary decision. After
careful consideration of the parties’ motions, the attached exhibits, the relevant case law, and the
entire record in the case, I deny Complainant’s motion for summary decision and grant
Respondent’s motion for summary decision.
I. BACKGROUND
Michael Wilson is a former employee of the Parkway Mine, an underground coal mine
operated by Armstrong Coal Company in Muhlenberg County, Kentucky. Comp. Ex. B
(Affidavit of Michael Wilson) at 1. He was employed at the mine as a continuous miner operator
and loader operator from August 2009 until he retired on May 6, 2015. Id. He also served as a
representative of miners beginning in February 2014, and continued in this capacity after his
retirement. Id. at 1-2. Jim Browning was at all relevant times a miner at the Parkway Mine. Resp.
Mot. at 2.
On Saturday, June 13, 2015, Wilson visited the mine in his capacity as a representative of
miners. Comp. Ex. B at 2. He sat at a table in the bathhouse to review the mine’s examination
books. Id. Jim Browning was also at the mine to work the day shift. Resp. Ex. A (Affidavit of
Jim Browning) at 1. Several other miners were in the bathhouse at the time. Comp. Ex. C
(Affidavit of Justin Greenwell) at 1; Comp. Ex. D (Respondent’s Answers to Complainant’s First
Set of Interrogatories) at 1. Wilson alleges that Browning walked up behind him, leaned over
him, and asked what he was doing. Comp. Ex. B at 2. Although the two disagree over who was
the first to become aggressive, they agree that they became involved in a verbal altercation over
Wilson’s activities at the mine. Id.; Resp. Ex. A at 1-2. Wilson alleges that Browning accused
him of looking at the books to find a violation so that inspectors could issue a citation to the
company. Comp. Ex. B at 2. According to Wilson, Browning angrily told him to put the book
down and leave because Wilson didn’t work at the mine anymore and there were other miners’

38 FMSHRC Page 1161

representatives at the mine. Id.; Comp. Ex. C at 1. Wilson also claims Browning told him Wilson
was taking money out of his pocket by serving as a miners’ representative. Comp. Ex. B at 2-3;
Comp. Ex. C. at 1. Wilson says he refused to leave because he had a right to look at the books.
Comp. Ex. B at 3. Browning claims he initially spoke with Wilson to see whether there was a
safety problem at the mine he needed to be concerned about. Resp. Ex. A at 1. Browning claims
he asked Wilson twice what he was doing, to which Wilson replied, “Nothing,” shut the book,
and turned and stood up in an agitated manner. Id. Browning claims he wanted to speak to
Wilson about reporting safety violations to mine officials prior to reporting them to inspectors,
but that he never got the chance because of Wilson’s aggressive response. Id. at 2.
The parties agree that the mine superintendent, Danny Thorpe, intervened in the
conversation after a few moments, telling Browning to leave and escorting him out of the
bathhouse. Comp. Ex. D at 1-2. Thorpe suspended Browning for the rest of the day without pay
and told him not to question Michael Wilson in the future. Id. at 2.
Wilson continued to work as a miners’ representative that day and on future occasions.
Comp. Ex. B at 3.
Wilson filed a discrimination complaint regarding the incident with the Mine Safety and
Health Administration (MSHA) on June 18, 2015. MSHA notified him on October 21, 2015, that
it did not believe there was enough evidence to establish a violation of the Mine Act. On
November 17, 2015, Wilson filed the instant complaint of discrimination with the Commission
pursuant to Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(c)(3) (“Mine Act”).
II. SUMMARY JUDGMENT STANDARD
Commission Rule 67 provides:
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows:
(1)!That there is no genuine issue as to any material facts; and
(2)!That the moving party is entitled to summary decision as a
matter of law.
29 C.F.R. § 2700.67(b).
The Commission has explained that summary decision is an extraordinary procedure.
Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994). In reviewing the record on
summary decision, the judge must consider the record “in the light most favorable to … the party
opposing the motion.” Hanson Aggregates N.Y., Inc., 29 FMSHRC 4, 9 (Jan. 2007) (citing Poller
v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962)). Inferences drawn from the facts in the
record must also be viewed in the light most favorable to the party opposing the motion. Id.
(citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

38 FMSHRC Page 1162

III. DISCUSSION
Wilson claims that Browning violated Section 105(c) of the Mine Act by interfering with
Wilson’s exercise of his rights as a miners’ representative. Section 105(c)(1) provides:
No person shall discharge or in any manner discriminate against …
or otherwise interfere with the exercise of the statutory rights of
any miner, representative of miners or applicant for employment in
any coal or other mine subject to this chapter because such miner,
representative of miners or applicant for employment has filed or
made a complaint under or related to this chapter, including a
complaint notifying the operator or the operator's agent, or the
representative of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other mine, … or
because of the exercise by such miner, representative of miners or
applicant for employment on behalf of himself or others of any
statutory right afforded by this chapter.
30 U.S.C.§ 815(c)(1) (emphasis added). Section 105(c)(3) permits a miner or his representative,
after making an unsuccessful complaint to the Secretary, to file an action before the Commission
on his own behalf “charging discrimination or interference in violation of paragraph (1).” 30
U.S.C. § 815(c)(3).
While the framework for evaluating interference claims has not been clearly established
by the Commission, a framework proposed by the Secretary of Labor has been adopted by two
Commissioners and a number of Commission Administrative Law Judges. See UMWA on behalf
of Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2108 (Aug. 2014) (Jordan & Nakamura,
Comm’rs), vacated, 620 Fed. Appx. 127 (3d Cir. 2015); id. at 2105-07; Sec’y of Labor on behalf
of Greathouse v. Monongalia Cty. Coal Co., 38 FMSHRC __, slip op. at 7, No. WEVA 2015904-D (May 2, 2016) (ALJ); Pendley v. Highland Mining Co., 37 FMSHRC 301, 311 (Feb.
2015) (ALJ). Under the Franks test, an interference violation occurs if:
(1) a person’s action can be reasonably viewed, from the
perspective of members of the protected class and under the
totality of the circumstances, as tending to interfere with the
exercise of protected rights, and
(2) the person fails to justify the action with a legitimate and
substantial reason whose importance outweighs the harm caused to
the exercise of protected rights.
Franks, 36 FMSHRC at 2108. A claim of interference is “separate from the more usual
intentional discrimination claims evaluated under the Pasula-Robinette framework,” which
requires that a complainant prove he engaged in protected activity and suffered an adverse
employment action motivated at least in part by the protected activity. Franks, 36 FMSHRC at
2103 n.22 (Aug. 2014) (Young & Cohen, Comm’rs); Turner v. Nat’l Cement Co. of Cal., 33
FMSHRC 1059, 1064 (May 2011); Sec’y of Labor on behalf of Pasula v. Consol. Coal Co., 2

38 FMSHRC Page 1163

FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. Consol. Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).
The Commission has recognized conduct as tending to interfere with the exercise of
protected rights on a number of occasions. In Moses v. Whitley Development Corp., the
Commission found that interference occurred when a miner’s supervisor questioned him about
an accident report made to MSHA and repeatedly accused him in front of his coworkers of
making the report. 4 FMSHRC 1475, 1477-79 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985).
The Commission noted that “The persistence with which the subject of his supposed reporting of
the bulldozer accident was raised and the accusatory manner in which it was done could logically
result in a fear of reprisal and a reluctance to exercise the right in the future.” Id. at 1479. Two
Commissioners reached a similar conclusion in Franks, which involved two miners who were
repeatedly interrogated by a panel of managers, MSHA, and union officials, and ultimately
suspended after a safety complaint was made at the mine. UMWA on behalf of Franks v. Emerald
Coal Res., LP, 36 FMSHRC 2088, 2104 (Aug. 2014) (Jordan & Nakamura, Comm’rs)
(emphasizing persistence of the mine’s questioning of the miners), vacated, 620 Fed. Appx. 127
(3d Cir. 2015). Finally, Gray v. N. Star Mining involved potentially threatening statements made
by an assistant mine superintendent to a miner after the miner was subpoenaed to testify in a
grand jury investigation. Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC
1, 2-3 (Jan. 2005). The Commission remanded the case for the judge to determine whether the
comments were coercive in light of the totality of the circumstances. Id. at 10-11. The
Commission directed the judge to consider factors including:
the nature of Brummett’s [the speaker’s] and Gray’s relationship
(the two were friends and Brummett helped him secure a job at
North Star, and Brummett was a supervisor at North Star); the fact
that the statements were made along with inquiries about Gray’s
and Young’s testimony in a confidential grand jury investigation
into alleged criminal actions at the mine; and the fact that, on each
occasion when Brummett spoke to Gray, he apparently sought to
isolate him and talk to him one-on-one.
Id. at 11.
A number of decisions by Commission Administrative Law Judges have also addressed
interference complaints based on threatening or harassing conduct towards miners. In Shemwell
v. Armstrong Coal Co., the judge found that a miner had pled a valid interference claim where a
supervisor encouraged other employees to build a disciplinary record against the miner when he
returned to work after a previous discrimination proceeding. 36 FMSHRC 2352, 2357 (Aug.
2014) (ALJ). The supervisor also made comments suggesting that future safety complaints by the
miner would not be taken seriously, and the mine’s safety director told the miner he should
“think about another career,” which the judge deemed threatening. Id. at 2358. In Pendley v.
Highland Mining Co., the judge found that interference occurred where managers took
examination books away from Pendley, a miners’ representative, when he tried to view them;
and a miner with whom Pendley had a long-standing feud approached and shouted at him in a
threatening manner on two occasions while he was accompanying inspectors. 37 FMSHRC 301,
303-05, 313-15 (Feb. 2015) (ALJ); see also Sec’y of Labor on behalf of Clapp v. Cordero

38 FMSHRC Page 1164

Mining, LLC, 33 FMSHRC 2977 (Dec. 2011) (ALJ) (noting that threatening comments made by
a supervisor to an employee after she made a safety complaint were interference, but resolving
case under discrimination provision because she was actually discharged), aff’d, 699 F.3d 1232
(10th Cir. 2012).
Finally, the Commission has expressed that it is appropriate for Commission judges to
refer to cases interpreting the National Labor Relations Act (NLRA) when construing analogous
provisions of the Mine Act. See Franks, 36 FMSHRC at 2107 n.2; Gray, 27 FMSHRC at 9 n.8.
The Seventh Circuit has enumerated factors relevant to whether interrogation of an employee
constitutes interference under Section 8(a)(1) of the NLRA. Multi-Ad Servs., Inc. v. NLRB, 255
F.3d 363, 372 (7th Cir. 2001). While the case at hand does not involve interrogation, the factors
are nevertheless instructive:
Factors that ought to be considered in deciding whether a particular
inquiry is coercive include the tone, duration, and purpose of the
questioning, whether it is repeated, how many workers are
involved, the setting, the authority of the person asking the
question, and whether the company otherwise had shown hostility
to the union. We also consider whether questions about protected
activity are accompanied by assurances against reprisal and
whether the interrogated worker feels constrained to lie or give
noncommittal answers rather than answering truthfully.
Id. (citation omitted).
!
!

Wilson argues that Browning’s conduct on June 13, 2015, interfered with his exercise of
his rights as a miners’ representative under the Act. Comp. of Discrim. at 3. Viewing the facts in
the light most favorable to Wilson, on the day in question, Wilson was seated in the bathhouse
reviewing the mine’s examination books in his capacity as a miners’ representative. At least one
other miner was present. Browning walked up behind Wilson, leaned over him, and asked what
he was doing. Browning accused Wilson of looking at the books to find a violation he could
report to MSHA. He angrily said that Wilson was trying to hurt the company and was costing
him money, and repeatedly told him to go home. After a few minutes, the mine superintendent
entered the bathhouse, observed the scene, and told Browning to leave, escorting him out. The
superintendent suspended Browning for the remainder of the day without pay and told him not to
question Wilson in the future. Wilson continued to work as a miners’ representative that day and
on future occasions.
The altercation between Wilson and Browning seems to have arisen out of Browning’s
concern that Wilson’s activities as a miners’ representative would cause financial harm to the
company and therefore threaten Browning’s job. He ultimately expressed that opinion in an
agitated manner that Wilson may have perceived as threatening. However, applying the factors
from Multi-Ad and Commission interference cases, I do not find that the record supports an
interference claim against Browning.

38 FMSHRC Page 1165

First, the Seventh Circuit and the Commission have stated that the position of the person
whose conduct is at issue is an important factor in analyzing interference claims. Multi-Ad
Servs., 255 F.3d at 372; Gray, 27 FMSHRC at 11. In all of the cases discussed above except for
Pendley, the actions found to constitute interference were done by a supervisor or other
management official. In Gray, the Commission noted that speech between an employee and his
employer has special significance because of “the economic dependence of the employees on
their employers, and the necessary tendency of the former, because of that relationship, to pick
up intended implications of the latter that might be more readily dismissed by a more
disinterested ear.” 27 FMSHRC at 10 (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 617
(1969)). In an employment relationship, in other words, there is heightened potential for
communications to have a coercive effect. In this case, however, the person accused of
interference was not a manager, but rather a miner. Wilson was not an employee at the mine, and
Browning had no authority over him. Accordingly, Browning’s actions should be understood as
having less coercive effect than in comparable cases like Gray where the actions were done by a
supervisor.
The Seventh Circuit and the Commission have also instructed judges to consider the tone
and setting of the encounter. Multi-Ad Servs., 255 F.3d at 372; Gray, 27 FMSHRC at 11. In
several of the Commission cases, the complainant faced intimidating situations such as
questioning by a panel of managers, Franks, 36 FMSHRC at 2112, or a one-on-one encounter
with a supervisor outside of work, Gray, 27 FMSHRC at 11. Here, Browning took an aggressive
tone with Wilson that could have been interpreted as intimidating. The effect was mitigated
slightly by the fact that the encounter took place in the bathhouse in front of several witnesses.
Finally, the Commission and Seventh Circuit have looked at the duration of the conduct
and whether the subject was brought up repeatedly. Multi-Ad Servs., 255 F.3d at 372; Moses, 4
FMSHRC at 1479. In Franks, the Commissioners noted that “The persistence of the managers’
questioning, in the face of the miners’ repeated refusal to provide the names of the firebosses,
also added to the coercive quality of the questioning.” 36 FMSHRC at 2114. The Commission in
Moses similarly emphasized “the persistence with which the subject” of the miner’s protected
activity was raised. 4 FMSHRC at 1479. In this case, however, the encounter between Wilson
and Browning was an isolated incident. Browning was suspended as a result of his conduct, and
so was unlikely to disturb Wilson again. Wilson has not alleged that any similar incidents
involving Browning have occurred subsequently. Thus, it is unlikely that Wilson views
Browning as an ongoing threat that would dissuade him from working as a miners’
representative.
In addition to these factors, it is worth noting that the incident does not appear to have
had an actual effect on Wilson’s exercise of his rights as a miners’ representative. Wilson
continued working as a representative that day and in the future, and has not alleged that he
altered his conduct as a result of the incident. Browning argues that Wilson’s failure to plead an
adverse action compels dismissal of the case. Resp. Mot. at 7. However, the Commission has not
established that a demonstrable adverse impact is a necessary element of an interference claim.
See Gray, 27 FMSHRC at 9 (“[I]nterference, restraint, and coercion under Section 8(a)(1) of the
[NLRA] does not turn on the employer’s motive or on whether the coercion succeeded or failed.”
(second alteration original) (quoting Am. Freightways Co., 124 N.L.R.B. 146, 147 (1959))); see

38 FMSHRC Page 1166

also Nat’l Steel & Shipbuilding Co. v. NLRB, 156 F.3d 1268, 1271 (D.C. Cir. 1998) (“An
employer violates § 8(a)(1) if its actions have merely a tendency to coerce, regardless of their
actual impact in a particular case.” (internal quotation omitted)). I therefore decline to dismiss
the case on that basis alone. Nevertheless, I find the fact that Wilson continued to serve as a
representative to be persuasive evidence that a reasonable miner would not have been dissuaded
from exercising his rights in this situation.
Considering all of these factors together, I conclude that Browning’s actions did not
constitute interference with Wilson’s exercise of his rights as a miners’ representative. A single
altercation between a miner and a representative with no discernible effect on protected activity
at the mine does not rise to the level of interference recognized as actionable in past Commission
cases. It is simply beyond the scope of Section 105(c). Because I base my decision on this
rationale, I do not find it necessary to discuss the First Amendment defense raised by Browning
in his motion for summary decision. Finally, I find no basis to award attorney’s fees in this case.
IV. ORDER
Based on my review of the record and the applicable law, I find that there is no dispute of
material fact and that Respondent is entitled to summary decision as a matter of law.
Accordingly, Respondent’s motion for summary decision is GRANTED and Complainant’s
cross motion for summary decision is DENIED. The complaint of discrimination filed by
Michael Wilson is hereby DISMISSED.

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

Distribution: (U.S. First Class Certified Mail)
!
Tony Oppegard, P.O. Box 22446, Lexington, KY 40522
Wes Addington, Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg, KY 41858
Thresa Hinton, Hinton & Hinton, 236 South Franklin Street, P.O. Box 895, Madisonville, KY
42431

38 FMSHRC Page 1167

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May 25, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2014-77
A.C. No. 11-03141-334561

v.

Docket No. LAKE 2014-132
A.C. No. 11-03141-337701

MACH MINING, INC.,
Respondent

Mine: Mach Mining No. 1 Underground
Mine
DECISION AND ORDER

Appearances:

Thomas J. Motzny, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Nashville, Tennessee for Petitioner
Christopher D. Pence, Esq., Hardy Pence, PLLC, Charleston, West
Virginia for Respondent

Before:

Judge McCarthy
I. Statement of the Case

These cases are before me are upon two Petitions for Assessment of Civil Penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (“the Mine
Act”), 30 U.S.C. § 815(d). The two dockets at issue contain 16 citations alleging violations of
mandatory health and safety standards. Prior to hearing, one citation was vacated and the parties
settled nine others. At hearing, Respondent moved for a directed verdict on Citation Nos.
8443200 and 8443901 in Docket No. LAKE 2014-132. The undersigned granted the motion

38 FMSHRC Page 1168

because the Secretary’s evidence did not support a violation of section 75.821(a). Tr. 242-62.1
Citations No. 8451651 in Docket No. LAKE 2014-132, and Citation Nos. 8439446, 8432319,
8439454, and 8452203 in Docket No. LAKE 2014-77, remain to be adjudicated after hearing.

1

Both citations alleged that Respondent violated Section 75.821(a) because chip alerts
were not working on longwall equipment. A mule train is comprised of several pieces of
equipment that distribute power to the longwall. Tr. 53. Power enters the unit through a
disconnect box, which can be switched on or off, and then travels to the power centers within the
mule train. Tr. 55. Chirp alerts indicate that the equipment is energized by making a chirping
noise and emitting a flashing light. Tr. 32-33. On the cited disconnect box in Citation No.
8443200, the chirp alert failed to make the chirping sound. Tr. 37. On the cited power center in
Citation 8443901, the chirp alert failed to make the chirping sound and the flashing light failed.
Id. MSHA inspector John Butcher testified that without notification from the chirp alerts that a
piece of equipment is energized, the miners are at risk of fatal injuries from electrocution. Tr. 6566, 74-75. Essentially, the Secretary argues that since the equipment was not being maintained,
there was a violation of Section 75.821(a). Section 75.821(a) requires that every seven days, a
person qualified to perform electrical work must test and examine longwall equipment to
determine that such equipment is being properly maintained. 30 U.S.C. §75.821(a).
The Secretary failed to establish that Respondent did not assign a qualified person to test
and examine the chirp alerts within the last seven days to ensure that the equipment was being
properly maintained. Inspector Butcher conceded on cross examination that as far as he knew,
the required testing was actually performed and that he was not alleging that the mine was not
conducting the appropriate testing and examination, but merely alleging that the chip alerts on
the inspected equipment were not working properly. Tr. 109.
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:

…As far as you know, the test that was required every seven days was
actually performed, correct?
As far as I know, yes.
Okay. And that’s not your allegation, is it, that the test—
No.
—wasn’t performed?
No.
Okay. So your—your allegation is — is not that the mine wasn’t
conducting examinations? Your allegation is — is, When I inspected this
equipment, the chirp alert wasn’t working, right?
Yes.
So there’s no dispute in your mind that the tests that are required by
[Section] 75.821(a) were actually performed at the times required, correct?
Correct.

Tr. 109. In these circumstances, I found that Respondent complied with the requirements of §
75.821(a), and granted Respondent’s motion for directed verdict. Tr. 242-62.

38 FMSHRC Page 1169

A hearing was held on in Carbondale, Illinois. During the hearing, the parties introduced
testimony and documentary evidence.2 Witnesses were sequestered. Thereafter, the parties
submitted post-hearing briefs.
For the reasons set forth below, I modify Citation No. 8451651 to reduce the level of
negligence from “high” to “moderate.” I modify Order No. 8452203 to raise the level of
negligence from “moderate” to “high.” I find that Citation Nos. 8439446, 8432319, 8439454
were properly issued, as written. I assess a total civil penalty of $32,636 for the five citations
adjudicated herein.
Based on a careful review of the entire record, including the parties’ post-hearing briefs
and my observation of the demeanor of the witnesses,3 I make the following findings of fact and
conclusions of law:
II.'

PRINCIPLES OF LAW

A.' Establishing a Violation
To prevail on a penalty petition, the Secretary bears the burden of proving by a
preponderance of the evidence that a violation of the Mine Act occurred. RAG Cumberland Res.
Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001). A mine
operator is held strictly liable for violations that occur at its mine. Spartan Mining Co., 30
FMSHRC 699, 706 (Aug. 2008). The operator may avoid liability only by showing that it was
not properly on notice of the violative nature of its conduct. Even in the absence of actual notice,
the Secretary may properly charge the operator with a violation when a reasonably prudent
person familiar with the protective purposes of the cited standard and the factual circumstances
surrounding the allegedly hazardous condition, including any facts peculiar to the mining
industry, would have recognized a hazard warranting corrective action within the purview of the
applicable regulation. LaFarge North America, 35 FMSHRC 3497, 3500-01 (Dec. 2013); Ideal
Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (Dec. 1982).
B. Gravity
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
2

ALJ Exhibits (ALJ Exs.) 1-8, Petitioner Exhibits (P. Exs.) 100-115, Respondent
Exhibits (R. Exs.)1-8 and 11, and Joint Exhibit (J. Ex.) 1 were received into evidence. Tr. 10, 1920, 304. R. Exs. 9 and 10 were not offered into evidence. Tr. 757.
3

In resolving conflicts in testimony, I have taken into consideration the demeanor of the
witnesses, their interests in this matter, the inherent probability of their testimony in light of
other events, corroboration or lack of corroboration for testimony given, experience and
credentials, and consistency, or lack thereof, within the testimony of witnesses and between the
testimony of witnesses.

38 FMSHRC Page 1170

1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of the
standard 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,
e.g., Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ).
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. The Commission has recognized that an
assessment of the likelihood of injury is to be made assuming continued normal mining
operations, without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985).
C. Significant and Substantial (S&S)
The Mine Act describes an S&S violation as one “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).4
In a seminal early decision interpreting this statutory provision, the Commission held that
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.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In so holding, the Commission rejected the Secretary’s argument that all violations are S&S
except technical violations or violations that pose only a remote or speculative risk of injury or
illness. The Commission found that the Secretary’s interpretation would result in almost all
violations being categorized as S&S, which would be inconsistent with the statutory language
and the role the S&S provision is intended to play in the Mine Act’s graduated enforcement
scheme. 3 FMSHRC at 825, 828. The Commission also found that the Secretary’s interpretation
would leave little room for inspectors to exercise their independent judgment. Id. at 825-26.5 In
addition, the Commission found that the Secretary’s interpretation would render the Act’s S&S
language almost superfluous, and would render the Act’s pattern-of-violation provisions wholly
punitive by making it almost impossible for a mine to be relieved of withdrawal order liability
once placed on notice of a pattern of violations. Id. at 826-27. Although the Commission did not
4

See also id. § 814(e), the Mine Act’s pattern-of-violations provision, which is the only
other provision that mentions S&S, and which defines the term the same way as § 814(d)(1).
5

The Commission has consistently reiterated that the inspector’s judgment is an
important element of the S&S determination. However, the concept has generally been raised in
the context of deferring to the inspector’s opinion that a violation was S&S, rather than in the
context of examining whether the inspector exercised independent judgment in forming this
opinion as opposed to merely following the “mechanical approach” advanced by the Secretary
and rejected by the Commission in National Gypsum, 3 FMSHRC at 825. See, e.g., Wolf Run
Mining Co., 36 FMSHRC 1951, 1959 (Aug. 2014); Maple Creek Mining, Inc., 27 FMSHRC 555,
563 n.6 (Aug. 2005); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998).

38 FMSHRC Page 1171

develop a test to determine whether violations are S&S, it enunciated several guiding principles.
Specifically, it stated that the term “hazard” denotes “a measure of danger to safety or health”
and that a violation is S&S if it “could be a major cause” of such a danger. Id. at 827.
In its subsequent Mathies decision, the Commission set forth a four-prong test for
determining whether a violation is S&S under National Gypsum. Mathies Coal Co., 6 FMSHRC
1 (Jan. 1984). To establish an S&S violation, the Secretary must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of
danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature. Id. at 3-4. The Secretary, mine operators, and the federal
appellate courts have accepted the Mathies test as authoritative. See Knox Creek Coal Corp. v.
Sec’y of Labor, 811 F.3d 148, 160 (4th Cir. 2016) (noting federal appellate courts’ uniform
adoption of Mathies test and parties’ recognition of authority of test); Mach Mining, LLC v.
Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies criteria); Buck Creek
Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir. 1995) (recognizing
wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving use of Mathies criteria).
Ensuing case law has solidly established several general principles regarding the proper
application of the Mathies test. The Commission has held that the S&S determination should be
made assuming “continued normal mining operations.” McCoy Elkhorn Coal Corp., 36
FMSHRC 1987, 1990-91 (Aug. 2014) (citing U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985)). The assumption of continued normal mining operations considers “the length of
time that the violative condition existed prior to the citation and the time it would have existed if
normal mining operations had continued,” without any assumptions as to abatement. Black
Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest
Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 11 FMSHRC
1432, 1435 (Aug. 1989); see also Knox Creek, 811 F.3d at 165-66 (upholding Commission’s
rejection of “snapshot” approach to evaluating S&S for accumulations violation); Mach Mining,
809 F.3d at 1267-68 (citing with approval McCoy Elkhorn’s discussion of operative timeframe
for S&S). The Commission has repeatedly stated that the S&S determination must be based on
the particular facts surrounding the violation. See, e.g., Wolf Run Mining Co., 36 FMSHRC 1951,
1957-59 (Aug. 2014) (remanding S&S finding for further consideration of relevant
circumstances); Black Beauty, 34 FMSHRC at 1740; Peabody Coal Co., 17 FMSHRC 508, 51112 (Apr. 1995); Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988).
A line of cases beginning with the Seventh Circuit’s decision in Buck Creek, supra, has
established that an operator cannot rely on redundant safety measures to mitigate the likelihood
of injury for S&S purposes. See, e.g., Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug.

38 FMSHRC Page 1172

2015).6 Finally, Commission precedent indicates that the likelihood of injury is the key
consideration in determining whether a violation is S&S. Consolidation Coal Co., 18 FMSHRC
1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood
of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”).
The evolving case law, however, has presented conflicting guidance as to how some of
these principles should be applied. In particular, there is some confusion about how to evaluate
the facts surrounding the violation and the likelihood of injury under the second and third prongs
of the Mathies analysis. The Fourth Circuit’s recent decision in Knox Creek, supra, and the
Seventh Circuit’s decision in Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir.
2014), have cast doubt on whether the traditional application of the literal language of the second
and third prongs of the Mathies test is still valid.
Traditional Application of Mathies Test
Under the traditional approach, Commission Administrative Law Judges (ALJs) have
conducted the fact-intensive component of the analysis and evaluated the reasonable likelihood
of injury at the third prong. In one of its earliest decisions applying the Mathies test, the
Commission explained that “the reference to ‘hazard’ in the second element [of the test] is
simply a recognition that the violation must be more than a mere technical violation – i.e., that
the violation present a measure of danger.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836.
“There is no requirement of ‘reasonable likelihood’” encompassed in this element. Musser
Engineering, Inc., 32 FMSHRC 1257, 1280 (Sept. 2010). Rather, longstanding Commission
precedent indicates that the likelihood of harm should be accounted for in the third Mathies
element, which “requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.” U.S. Steel, 6 FMSHRC at 1836
(quoted by the Commission on numerous occasions over the next two decades, including in Elk
Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Bellefonte Lime Co., 20 FMSHRC 1250,
1254-55 (Nov. 1998); Zeigler Coal Co., 15 FMSHRC 949, 953 (June 1993); and Texasgulf, 10
FMSHRC at 500). As the Commission explained in another early decision, “The third element
embraces a showing of a reasonable likelihood that the hazard will occur, because, of course,
there can be no injury if it does not.” Consolidation Coal Co., 6 FMSHRC 189, 193 (Feb. 1984).
Following this guidance, ALJs have traditionally applied Mathies by identifying the
potential hazard at the second prong, and then at the third prong, assessing whether there is a
6

It is not completely clear whether redundant safety measures are precluded from
consideration such that it is error to take them into account, which could make it difficult for
judges at the trial level to discharge their duty of considering all the particular facts surrounding
the violation, or whether arguments that rely on redundant safety measures are simply disfavored
as a defense to S&S. Compare Brody Mining, 37 FMSHRC at 1691 (stating that evidence
regarding redundant safety measures has been “consistently rejected as irrelevant”) with Black
Beauty, 36 FMSHRC 1121, 1125 n.5 (May 2014) (stating only that such measures “do not
prevent a finding of S&S”) and Buck Creek, 52 F.3d at 136 (“The fact that Buck Creek has safety
measures in place to deal with a fire does not mean that fires do not pose a serious safety risk to
miners.”).

38 FMSHRC Page 1173

reasonable likelihood that the hazard will result in injury under the particular facts of the case at
hand, with the caveat that normal mining operations are assumed to continue without abatement
of the violation. The crux of this traditional Mathies analysis is the third and fourth prongs of the
test, which effectuate National Gypsum’s definition of S&S (reasonable likelihood of a
reasonably serious injury) and are often combined into a single showing (reasonable likelihood
that a particular serious injury will occur under the facts of the case). Consistent with this
approach, MSHA inspectors determine whether a violation meets the criteria for S&S by the
likelihood of injury and the expected severity of injury, which correspond to the third and fourth
Mathies elements.7
Over the years, it appears that the Commission, with court approval, has developed
special rules for applying the Mathies test in two situations. First, for violations that contribute to
the hazard of an ignition, fire, or explosion, the Commission has held that the third Mathies
element is satisfied only when a “confluence of factors” is present that could have triggered an
ignition, fire, or explosion, under continued normal mining operations. Zeigler Coal Co., 15
FMSHRC at 953; Texasgulf, 10 FMSHRC at 501; see, e.g., Paramont Coal Co. Va., LLC, 37
FMSHRC 981, 984 (May 2015). Second, for violations of emergency safety standards, the
Commission assumes the emergency when making the S&S evaluation. See, e.g., Cumberland
Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027-28 (D.C. Cir. 2013); Mill Branch Coal Corp.,
37 FMSHRC 1383, 1394 (July 2015).
Effect of Recent Fourth & Seventh Circuit Decisions
The Fourth Circuit’s recent Knox Creek decision issued in January 2016 appears to shift
the focus of the S&S analysis from the third to the second Mathies prong and to restrict
consideration of the facts bearing on the reasonable likelihood of injury under the third prong.
The Fourth Circuit interpreted the second Mathies prong to entail an inquiry into the likelihood
of harm, stating:
In our view, the second prong of the test … primarily accounts for
the Commission’s concern with the likelihood that a given
violation may cause harm. This follows because, for a violation to
contribute to a discrete safety hazard, it must be at least somewhat
likely to result in harm.
Knox Creek, 811 F.3d at 162. Significantly, the Fourth Circuit further held that the occurrence of
the hazard must be assumed under the third prong of the Mathies test. Id. at 161-65. Evidence of
the likelihood that the hazard will occur is not considered at this prong, according to the Fourth

7

The Secretary’s citation/order form contains boxes for inspectors to check the likelihood
of injury and the expected severity of injury immediately above the line where they designate the
violation S&S or non-S&S. Inspectors are trained not to designate a violation as S&S, unless
item 10.A on the form is marked “reasonably likely,” “highly likely,” or “occurred,” and item
10.B is marked “lost workdays or restricted duty,” “permanently disabling,” or “fatal.” See
MSHA, PROGRAM POLICY MANUAL, Vol. I, § 104 (2003).

38 FMSHRC Page 1174

Circuit. Rather, the inquiry is whether the hazard, assuming it occurred, would result in serious
injury. Id. at 162.
The particular hazard confronted by the Fourth Circuit in Knox Creek was the escape of
ignited gas into the mine atmosphere through impermissible enclosures. Id. at 164. The parties
had stipulated that the mine was a “gassy” mine that liberated more than 500,000 cubic feet of
methane or other explosive gases per day. Id. at 164. Consequently, the ALJ had found that
methane was reasonably likely to accumulate to explosive concentrations. Id. The ALJ had also
found that a resulting explosion was reasonably likely to cause serious injuries, but he had
ultimately declined to find that the violation was S&S because the Secretary had failed to prove
the likelihood of an ignition. Id. at 154, 164-65. Without discussing the likelihood of ignition, the
Fourth Circuit deemed the ALJ’s other findings sufficient to satisfy the third Mathies prong. Id.
Previously, in Peabody Midwest Mining, the Seventh Circuit had similarly suggested that
the S&S analysis assumes the occurrence of the hazard. The violation at issue in that case was
the mine operator’s failure to erect berms on an elevated roadway. The Seventh Circuit defined
the hazard as the risk that a vehicle would veer off the roadway and go over the edge. Peabody
Midwest, 762 F.3d at 616. The operator had argued that a vehicle was not reasonably likely to
veer off the road. Id. However, the Seventh Circuit stated that the question “is not whether it is
likely that the hazard (a vehicle plummeting over the edge) would have occurred” but “whether,
if the hazard occurred (regardless of likelihood), it was reasonably likely that a reasonably
serious injury would result.” Id.
Peabody Midwest does not discuss the proper role of deference in the S&S context, but
the Fourth Circuit reached its holding in Knox Creek by deferring to the Secretary’s
interpretation that the third Mathies element requires proof that the hazard, not the violation
itself, is likely to cause injury. 811 F.3d at 161 (declining to afford deference under Chevron,
USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), but finding the Secretary’s
interpretation persuasive and therefore entitled to deference under Skidmore v. Swift & Co., 323
U.S. 134 (1944)). The Fourth Circuit further asserted that this interpretation is consistent with a
number of prior cases, including the Seventh Circuit’s decisions in Peabody Midwest and in
Buck Creek, supra, 52 F.3d at 135 (assuming occurrence of fire at third Mathies prong when ALJ
had engaged in “confluence of factors” analysis at second prong); the Fifth Circuit’s decision in
Austin Power, supra, 861 F.2d at 103-04 (declining to require evidence that the hazard was likely
to occur); and the Commission’s decision in Musser Engineering, supra, 32 FMSHRC at 128081 (stating that the third Mathies prong requires a showing that the hazard, not the violation
itself, will cause injury). 811 F.3d at 161-62.8 The Fourth Circuit rejected the operator’s
8

It is debatable to what extent Austin Power and Buck Creek truly stand for the
proposition the Fourth Circuit seems to be embracing, which is that the actual likelihood of
injury is irrelevant, except to the extent necessary to establish a “discrete” hazard at the second
Mathies prong. In Austin Power, the Fifth Circuit upheld an S&S finding for a fall protection
violation, reasoning that “[a] danger of falling is a necessary element of this violation, so by the
very nature of a violation there was a discrete safety hazard.” 861 F.2d at 103. However, the
hazard had actually occurred and had resulted in a fatality, which may have influenced the
(continued…)

38 FMSHRC Page 1175

argument that under Zeigler Coal Company, supra, the Secretary must show that an ignition is
reasonably likely under the third Mathies prong. 811 F.3d at 164. The Court found this position
to be “flatly contradicted” by Musser Engineering and by decisions of other federal appellate
courts. Id.
The Fourth Circuit emphasized, however, that the Mathies approach that it has adopted
“still allows plenty of room for a fact-intensive S & S analysis, both under prong two, where the
Secretary must establish that the violation contributes to a discrete safety hazard, and within
prongs three and four, where evidence is still necessary to establish that the hazard is reasonably
likely to result in a serious injury.” Id. Realistically, however, it will likely require very little
fact-specific analysis to conclude that any given non-technical violation contributes to a discrete
safety hazard, because the Secretary generally does not promulgate a mandatory health and
safety regulation (except technical regulations), unless the Secretary has already found that
violating the standard would contribute to a hazard. Under the third Mathies prong, judges must
consider all of the facts surrounding the violation, but must assume continued normal mining
operations without abatement of the violation, and may not rely on redundant safety measures to
mitigate the likelihood of injury. Now, under Knox Creek and Peabody Midwest Mining, judges
must also assume that the hazard will actually occur. At some point, so many circumstances are
either assumed or precluded from consideration that judges will find themselves evaluating the
likelihood of injury in the abstract. If this is the case, the Commission will have turned its back
on the principles set forth in National Gypsum because the Mathies test will have become a
longhand expression for “non-technical violations.” S&S will apply to almost all violations and
therefore will no longer serve as a statutory tool by which the Secretary can single out the
violations that he believes the Commission should consider significant and substantial when
assessing a penalty.
As noted above, the Fourth Circuit reached its result in Knox Creek by deferring to the
Secretary’s interpretation of the Mine Act, and the Seventh Circuit reached a similar result. At
the outset of its analysis, the Fourth Circuit indicated that it would review the Commission’s
legal conclusions de novo but would afford deference to the Secretary’s, not the Commission’s,
legal interpretations. Id. at 157 (citing Sec’y of Labor ex rel. Wamsley v. Mut. Mining, Inc., 80
F.3d 110, 113-15 (4th Cir. 1996), in which the Fourth Circuit discussed the Mine Act’s splitenforcement scheme and concluded that an informal rule created and implemented by the
Secretary was entitled to deference over a contrary Commission decision).

8

(…continued)
Court’s failure to require additional evidence of likelihood at the third Mathies prong. 861 F.2d
at 100. In Buck Creek, the Seventh Circuit did not expressly discuss the proper application of the
Mathies test, but simply rejected the mine operator’s argument that the ALJ had not put enough
emphasis on the third and fourth Mathies factors when evaluating S&S for an accumulations
violation. 52 F.3d at 135. The ALJ had made a finding at the second Mathies prong (rather than
the third) that there existed a confluence of factors, including fuel sources and ignition sources,
that could trigger a fire. Id. By contrast, in Knox Creek, the Fourth Circuit did not require a
“confluence of factors” analysis or a showing that an ignition source existed at any prong of the
Mathies test.

38 FMSHRC Page 1176

It is not surprising that the Circuit Courts have departed somewhat from the traditional
Mathies analysis in favor of the Secretary’s legal interpretation, given the rule of deference
mentioned above, and given the fact that the Secretary’s attorneys, and not the Commission’s,
are the ones who argue for enforcement of the Commission’s decisions in the Circuit Courts of
Appeals. That latter protocol is strange. Notwithstanding the propriety of the rule of deference
applied by the Fourth Circuit, which raises concerns that I previously discussed in Knife River
Corporation Northwest, 34 FMSHRC 1109, 1125-27 (May 2012) (ALJ), it does not make sense
that although Congress conferred independent adjudicatory authority upon the Commission to
serve as an impartial forum for Mine Act litigation, and although the Commission itself laid out
the test that parties have followed for more than thirty years to litigate S&S in this forum, the
Secretary is permitted to challenge the Commission’s interpretation of this long-standing test in
the Circuit Courts of Appeals and litigate his own interpretation on behalf of the Commission. It
should be obvious that since the Secretary is one of the litigating parties before the Commission
at the trial level, the Commission’s and the Secretary’s views on interpretation of the Act may
differ. See e.g., The American Coal Co., 36 FMSHRC 1311 (May 2014) (ALJ), petition for
interlocutory review granted, Unpublished Order dated July 11, 2014. In my view, the
Commission’s interpretations of Mine Act provisions that turn on adjudication and not
enforcement should be accorded at least some form of deference based on the power to persuade,
as evidenced by the fact that courts and litigants have uniformly followed the Commissionderived Mathies test.9 Compare Chevron, supra (according full deference to agency’s reasonable
interpretation of ambiguous statutory provision) with United States v. Mead Corp., 533 U.S. 218
(2001) (according deference based on “power to persuade” under Skidmore, supra, and finding
that Chevron applies only where the agency was authorized by Congress to make rules carrying
the force of law and did in fact promulgate the proffered interpretation in the exercise of that
authority). It is within the Commission’s authority to specify how the second and third factors of
the Mathies test should be applied – particularly, whether the hazard must now be assumed at the
third factor, and if so, what steps of the test account for the facts surrounding the violation – and
whether the Mathies test is still intended to effectuate National Gypsum’s interpretation of the
S&S provisions of the Mine Act or whether the Commission now interprets S&S differently.
Because I am bound by the Mathies test, I will evaluate S&S under this test after taking
into consideration the more recent approach set forth in Knox Creek and Peabody Midwest
Mining.
D. Negligence
Negligence is not defined in the Mine Act. The Commission has found “[e]ach
mandatory standard thus carries with it an accompanying duty of care to avoid violations of the
standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15
(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under
the cited standard, the Commission considers what actions would have been taken under the
same or similar circumstances by a reasonably prudent person familiar with the mining industry,
9

But see Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027 (D.C. Cir. 2013)
(expressly declining to address validity of Mathies test).

38 FMSHRC Page 1177

the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 6
FMSHRC 1908, 1910 (Aug. 1984). See also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975,
1976-77 (Aug. 2014) (requiring Secretary to show that operator failed to take specific action
required by standard violated); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008)
(negligence inquiry circumscribed by scope of duties imposed by regulation violated).
The Mine Act imposes a high standard of care on foremen and supervisors. Midwest
Material Co., 19 FMSHRC 30, 35 (Jan. 1997) (holding that “a foreman … is held to a high
standard of care”); see also Capitol Cement Corp., 21 FMSHRC 883, 892-93 (Aug. 1999)
(“Managers and supervisors in high positions must set an example for all supervisory and
nonsupervisory miners working under their direction,” (quoting Wilmot Mining Co., 9 FMSHRC
684, 688 (Apr. 1987)); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995) (heightened
standard of care required of section foreman and mine superintendent).
Although MSHA’s regulations regarding negligence are not binding on the Commission,
see Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines
negligence by regulation in the civil penalty context 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. The
negligence criterion assigns penalty points based on the degree to
which the operator failed to exercise a high standard of care.
When applying this criterion, MSHA considers mitigating
circumstances which may include, but are not limited to, actions
taken by the operator to prevent or correct hazardous conditions or
practices . . . .
30 C.F.R. § 100.3(d).
MSHA regulations further provide that mitigation is something the operator does
affirmatively, with knowledge of the potential hazard being mitigated, and that tends to reduce
the likelihood of an injury to a miner. This includes actions taken by the operator to prevent or
correct hazardous conditions. 30 C.F.R. § 100.3(d). According to MSHA, the level of
negligence is properly designated as high when “[t]he operator knew or should have known of
the violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R. §
100.3, Table X. The level of negligence is properly designated as moderate when “[t]he operator
knew or should have known of the violative condition or practice, but there are mitigating
circumstances.” Id. The level of negligence is properly designated as low when there are
considerable mitigating circumstances surrounding the violation. Id.

38 FMSHRC Page 1178

Recently, the Commission held that Commission judges are not required to apply the
level-of-negligence definitions in Part 100 and may evaluate negligence from the starting point
of a traditional negligence analysis rather than from the Part 100 definitions. Brody Mining, LLC,
37 FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d
1259, 1263-64 (D.C. Cir. 2016). Moreover, because Commission judges are not bound by the
definitions in Part 100 when considering an operator’s negligence, they are not limited to a
specific evaluation of potential mitigating circumstances, and may find “high negligence,” in
spite of mitigating circumstances, or moderate negligence, without identifying mitigating
circumstances. Brody, 37 FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. In this regard,
the gravamen of high negligence is “an aggravated lack of care that is more than ordinary
negligence.” Brody, 37 FMSHRC at 1701 (citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr.
1998)0. Thus, in making a negligence determination, a Commission judge is not limited to an
evaluation of allegedly mitigating circumstances and may consider the totality of the
circumstances holistically. Under such an analysis, an operator is negligent if it fails to meet the
requisite high standard of care under the Mine Act. Id.
E. Penalty Assessment
The Act requires that the Commission consider the following statutory criteria when
assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness
of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability
to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after
notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30
U.S.C. § 820(i). The Commission is not required to give equal weight to each of the criteria, but
must provide an explanation for any substantial divergence from the proposed penalty based on
such criteria. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008).
As I discussed in my final Big Ridge decision, in an effort to avoid the appearance of
arbitrariness, I look to the Secretary’s penalty regulations and assessment formula as a reference
point that provides useful guidance when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC
1677, 1681-82 (July 2014) (ALJ); see also Wade Sand & Gravel, supra, at 1880 n.1 (Chairman
Jordan and Commissioner Nakamura, concurring). See also Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945) (holding that an agency’s interpretation of its own regulation
should be given controlling weight unless it is plainly erroneous or inconsistent with the
regulation). This formula is not binding, but operates as a lodestar, since factors involved in a
violation, such as the level of negligence, may fall on a continuum rather than fit neatly into one
of five gradations. Unique aggravating or mitigating circumstances will be taken into account
and may call for higher or lower penalties that diverge from this paradigm. My independent
penalty assessment analysis applies to each of the citations at issue in this case.

38 FMSHRC Page 1179

III. Stipulated Facts
A. Stipulations of Fact
At hearing, the parties agreed to the following stipulations:
1.! Respondent is subject to the Federal Mine Safety and Health Act of 1977 and to the
jurisdiction of the Federal Mine Safety and Health Review Commission.
2. The presiding Administrative Law Judge has the authority to hear this case and issue a
decision.
3. Respondent has an effect upon commerce within the meaning of Section 4 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 803.
4. At all relevant times, Respondent operated Mach No. 1 Mine, Mine ID 11-03141.
5. The violations in this docket are complete, authentic and admissible, but the
Respondent does not stipulate to the allegations asserted therein.
6. Respondent mined 7,528,061 tons of bituminous coal in 2012 at Mach No. 1 Mine.
7. The violations in this docket were properly served on Respondent by a duly authorized
representative of the Secretary on the dates stated therein.
8. The penalties proposed in this docket would not affect Respondent’s ability to remain
in business.
9. Respondent abated the citations involved herein in a timely manner and in good faith.
8. Tom Crum, Jr. is an agent of the operator Mach Mining. Tr. 272.
J. Ex. 1.
IV. Background Information
Mach Mining’s No. 1 Mine is an underground coal mine located in Marion, Illinois. The
height of the mine is generally nine to ten feet. Tr. 619. The mine is subject to five-day spot
inspections by the Department of Labor’s Mine Safety and Health Administration (MSHA),
pursuant to § 103(i) of the Mine Act because the mine liberates more than one million cubic feet
of methane or other explosive gases during a 24-hour period. 30 U.S.C. § 813(i); see Tr. 35, 21110. At the time of the October 14, 2014 inspection, the mine liberated approximately two million
cubic foot of methane in a 24-hour period. Tr. 158, 211-10.

38 FMSHRC Page 1180

V. Citation No. 8451651
A. Findings of Fact
1.' The Inspection
On October 15, 2014, MSHA inspector Chad Lampley10 issued Citation No. 8451651
during an E16 inspection of Mach Mine’s No. 1 mine.11 Tr. 140-42. Mark Schilke, the mine
safety manager, accompanied Lampley during the inspection.12 Tr. 143, 152, 159-160. The
inspection was conducted during a production shift. Tr. 155. At the time of Lampley’s
inspection, however, mining had halted due to a problem with a conveyer belt. Tr. 153-54, 21415.
2.' The Location of the Truck
During the inspection, Lampley noticed a Dodge Ram pickup truck parked facing inby in
the #3 tailgate entry at the no. 109 crosscut, two crosscuts from the longwall face. Tr. 144-45,
152; see P. Ex. 113.13 Lampley used a 25-foot tape measure and determined that the dieselpowered truck was approximately 144 feet from the face, rather than the required 150 feet. Tr.
146-47.14 Shilke observed Lampley measure the distance between the face and the truck. Tr. 302,
316. Neither Shilke nor Lampley reported any other measurements of the truck’s location. Tr.
147, 301-02. Respondent does not dispute that the truck was closer than 150 feet from the
longwall face. R. Post Hr’g Br. 4.
10

At hearing, Lampley had been a certified mine inspector with MSHA for seven years.
He received a degree in Applied Science from Southern Illinois University (SIU). Upon
graduation, Lampley worked in the automotive field and taught classes at SIU in automotive
base, and electrical theory and operation. Prior to his employment at MSHA, Lampley worked at
American Coal performing general mining tasks and maintenance. Tr. 140-41.
11

MSHA ceased its regular EO1 quarterly inspections and normal 103(i) spot inspections
during the 2014 government shutdown. Tr. 142. Nonetheless, Lampley still conducted E16 spot
inspections of the working areas of the mine. Id.
12

Schilke was a certified mine manager, examiner, instructor, and mine rescuer. 299-300.
He worked for Respondent since 2010 in a variety of roles. Tr. 299. He had a bachelor’s degree
in mining engineering from SIU. Tr. 299-300.
13

There is some confusion about the correct crosscut numbers. The crosscut referenced in
the text above as no. 109 is referred to in Lampley’s testimony as no. 108 and in Schilke’s
testimony as no. 109. Similarly the crosscut referred to herein as no. 110 is referred to in
Lampley’s testimony as no. 109 and in Schilke’s testimony as no. 110. In the interest of clarity, I
use Schilke’s numbers as he was more certain about this issue at hearing.
14

Electric face equipment must be permissible within 150 feet from pillar workings or
longwall faces or in return air outby the last open crosscut. 30 C.F.R. §§75.1002 and 75.507-1.

38 FMSHRC Page 1181

Lampley learned that Tom Allen Crum, Jr. (Crum), the longwall maintenance supervisor,
drove the truck. Tr. 152-53, 162, 213. Lampley did not speak to Crum. Tr. 215.
Crum testified that he drove his truck into the #3 tailgate entry to repair a conveyor belt.
Tr. 265-67, 287.15 Schilke testified that the truck was parked “slightly” inby the outby corner of
crosscut 109. Tr. 305-06. Crum, however, testified that the truck was even with the outby corner.
Tr. 268-69. I credit Schilke, particularly since his testimony is consistent with Respondent’s map
of the area where Crum parked. See R. Ex. 8.
There were no footage markers to indicate the distance from the face. Tr. 316. Crum
estimated that he parked over 150 feet from the face because the crosscut centers were 120 feet
and the face appeared 50 feet further than the last crosscut center. Tr. 268-71, 284. Because that
crosscut was open, Crum knew that he was not permitted to drive further into the return air. Tr.
282-83. There were no obstructions blocking Crum from driving the truck all the way to the face.
Tr. 216. Crum testified that had he intended to breach the 150-feet limit, he could have easily
parked by the face. Tr. 271-72, 280. Crum opined that his actions demonstrated his intent to
comply with the permissibility requirements, and that they negate any classification of high
negligence. Tr. 279-80.
Crum further testified that he would have moved his truck before production resumed. Tr.
286-87. He further admitted that he would have started the truck’s ignition to do so, because he
had assumed that it was not parked in return air. Tr. 287.
3.' The Presence of Methane
a.' The Temperature of the Air
Inspector Lampley was concerned that the non-permissible diesel truck was parked in
return air, which presented a methane ignition hazard. Tr. 148-49. Lampley testified that return
air is warm and moist due to heat emitted from the longwall mining unit. Tr. 144, 146, 150. Near
the truck, Lampley observed that the air approaching him from the face was warmer than the
intake air at his back, indicating the presence of return air. Tr. 144, 146, 199.
Respondent’s witnesses disagree. Schilke testified that the vehicle was in intake air
because he felt cool air at his back and warm return air was not present until the middle of the
intersection. Tr. 305-08. Crum testified that when he exited his truck, he felt cool intake air at his
back. Tr. 273-76. Crum testified that there was little to no air movement where he parked the
vehicle. Tr. 273. Crum further testified that he did not feel return air until midway through the
crosscut. Tr. 283.

15

Crum had 13-14 years of mining experience and had worked at several companies in a
variety of roles. Tr. 263-64. Crum was a certified mine electrician, with face and examiner
papers. Tr. 264. He was a member of mine management and a stipulated agent of Respondent.
Tr. 272.

38 FMSHRC Page 1182

Longwall coordinator Parker Phipps drove an Electric Mine Utility vehicle (EMU) to the
longwall tailgate that day. Tr. 324.16 Phipps was aware of the requirement to park in intake air at
least 150 feet from the face. Tr. 339. He parked approximately 150 feet from the face near open
crosscut no. 109. Tr. 324, 340; see P. Ex. 110 and R. Ex. 8. After learning about the citation,
Phipps observed Crum’s truck underground. Tr. 330. Phipps testified that Crum’s truck was
parked even with the outby rib, approximately two feet from the solid coal wall. Tr. 330-331,
333. Phipps testified that the front of Crum’s truck was within ten feet of the front of his own
vehicle. Tr. 343. Facing inby, Phipps walked into the area between Crum’s truck and the solid
right-hand rib. Tr. 333. Phipps testified that the air was cool and moved inby. Id. Because return
air from the longwall was warmer and more humid, Phipps opined that the truck was in intake
air. Tr. 325, 328.
By the feel of the air, Phipps opined that the return air began in the center of the crosscut.
Tr. 329, 358-359. Phipps referred to the crosscut center as a mixing zone for return and intake
air. Tr. 329. Mixing zones are classified as return air. Tr. 363. Phipps believed that the mixing
zone was inby Crum’s truck, which left the truck entirely within intake air. Tr. 329-331, 335,
363. Phipps later testified, however, that the truck was near a “dead spot” with little air
movement, where both the outby and inby air courses met. Tr. 353-54.
b.' Inspector Lampley’s Smoke Test
After noting the temperature differentials, Lampley performed a smoke test to determine
the direction of return air. Tr. 150-51. A smoke test reveals the path of air along the mine’s
ventilation pattern. Id. With respect to ventilation in this area, Respondent sent 90,000-100,000
cubic feet of air per minute (cfm) from the headgate, which was well over the required 60,000
cfm. Tr. 181-82. Phipps testified that a great velocity of air would dilute gases. Tr. 355. In fact,
Phipps opined that as little as 50 cfm of air would render flammable or noxious gases harmless,
although Phipps did not know if the air around the truck reached that velocity. Tr. 361-62.
Lampley released smoke at the mining face and observed it travel down the entry. Tr.
145-46, 150-51, 207-08. The heavy airflow displaced the smoke, so Lampley released smoke
into the atmosphere several times as he neared the truck. Tr. 208-10.
The smoke test revealed that the air traveled down the longwall face to the T-split, where
it either seeped into the gob or branched off towards the #2 and #3 tailgate entries. Tr. 145, 176,
182-84.17 Because the #2 entry had lower air pressure than the #3 entry, the majority of the air
moved from the #3 entry into the #2 entry through the open no. 110 crosscut. The remaining air
in the #3 entry reached the open no. 109 crosscut where the truck was located. Tr. 145, 184, 20507. Stoppings were legally removed at the nos. 109 and 110 crosscuts (the first two crosscuts
after the T-split) to allow this air movement. Tr. 187.
16

Phipps was a licensed, professional engineer and was a certified mine examiner,
manager, and fire boss. Tr. 323. His duties included running the longwall on a day-to-day basis,
planning production, and dealing with MSHA inspectors. Tr. 323-324.
17

A “gob” is an area of the mine where coal has been removed and the roof and strata
have been allowed to cave in. Tr. 177.

38 FMSHRC Page 1183

Because the return air that reached the no. 109 crosscut was also drawn into the #2 entry,
it moved faster at the corner near the crosscut than it did in the middle or other side of the entry
near Crum’s truck. Tr. 186, 194-95. Lampley noticed that while a large portion of the return air
hugged the inby corner near the crosscut, some smoke traveled directly over the hood,
windshield, and cab of the truck. Tr. 151, 185-87, 194, 200. Rather than continue over the back
of the truck, the air turned and exited into the #2 entry through the crosscut upon meeting the
intake air in a “mixing zone.” Tr. 147, 161, 198. Lampley testified that the front of the truck up
to the cab area was in return air, and that the cab to the tailgate bumper at the back of the truck
was in the intake air. Tr. 146, 198-99.
During the inspection, Schilke watched Lampley conduct the smoke test. Tr. 303, 308.
Schilke testified that Lampley had to stand “almost over the hood of the truck” before the smoke
sample traveled over the hood. Tr. 308. No smoke test was conducted at the tailgate of the truck.
Tr. 313-14.
Schilke testified that when Lampley tested further inby from the truck, the sample
traveled towards the no. 109 crosscut, rather than over the hood of the truck. Tr. 309-311.
Further, Schilke testified that when Lampley tested directly over the hood of the truck, the smoke
rose and spread out, indicating to Schilke that the truck was in a dead spot. Tr. 307-309, 315.
Schilke determined that this dead spot was caused by a “mixing zone” where return and intake
air met. Tr. 307. On cross examination, however, Schilke conceded that if the truck was in the
intake air, that air would push the smoke inby above the truck, which did not occur, rather than
allow the smoke to rise and spread, which did occur. Tr. 315-16.
Lampley testified that the exact location of the truck within the return air was not
important. Tr. 158-59. Rather, any place inby the intake air at crosscut no. 109 posed an equal
hazard because it had the same, undiluted gas concentration where no additional air was added.
Tr. 158-59, 194, 196-97, 221-22. Because of this, Lampley chose not to test the air volume. Tr.
166, 195-96, 198, 219. Lampley conceded, however, that the concentration of gas would
diminish in a mixing zone. Tr. 198. Most of the mixing occurred near the corner where the air
velocity was greatest, not above the truck. Tr. 200-201, 222. Lampley did not see any swirling
smoke over the truck to indicate the mixing of intake and return air. Tr. 222-23. Lampley
agreed, however, that there was no way to easily distinguish between return air and intake air. Tr.
201-02.
c.' Other Considerations
Schilke testified that the cited area usually had 20.9 % oxygen and up to 0.1 % methane
during production. Tr. 318. By contrast, Phipps testified that methane concentrations typically
reached 0.6 % to 0.8 % during production. Tr. 332. While Phipps was in the cited area, his
methane spotter reported 20.8 % oxygen, no methane, and no carbon monoxide. Tr. 331. He
testified that historically no methane was produced in the area when the longwall was down. Tr.
331-332.

38 FMSHRC Page 1184

Crum also carried a methane detector, which produces audio and visual warnings when
methane concentrations reach one percent. Tr. 276-77. Crum watched his detector closely and
observed no methane in the cited area. Tr. 277.
During the repair work near the longwall face, the miners were required to take air
readings every fifteen minutes with individual methane spotters. Tr. 289-90. The readings
detected no methane. Id. Crum reported that all the checks were properly conducted. Tr. 290.
Schilke testified that no methane or carbon monoxide was present because the longwall
had been down for several hours before Crum’s truck arrived. Tr. 312-13. Lampley did not know
how long the longwall had been down before Crum parked his truck, but Lampley noted that the
hood of Crum’s truck was still warm at the time of the inspection. Tr. 155, 213-14.
Schilke testified that the inspection began at approximately 6:00 a.m. Tr. 301. Phipps
testified that the longwall had been down for several hours when Phipps arrived between 5:00
and 6:00 a.m. Phipps further testified that Crum’s truck had not yet arrived. Tr. 332, 338, 341-42.
Crum, however, testified that after working the day shift, he returned to the mine between 2:00
and 3:00 a.m. because the longwall was down. Tr. 265.
4.' Issuance of Citation No. 8451651
After observing that Crum’s non-permissible, diesel-powered pick-up truck was being
used where permissible electrical equipment was required, Lampley issued Citation No. 8451651
for a violation of 30 C.F.R. § 75.1907(a), which requires that all diesel-powered equipment used
where permissible electrical equipment is required must be approved under part 36. Tr. 147-48.
Lampley determined that the violation was S&S and contributed to a methane ignition hazard
that was reasonably likely to result in fatal injuries affecting four miners, as a result of
Respondent’s high negligence. Tr. 156, 162-63. The Secretary proposed a penalty of $16,867.
Lampley determined that the cited diesel truck was not permissible because it lacked
properly enclosed electrical components necessary to prevent a methane ignition in the mine
atmosphere. Tr. 147-49. Engine enclosures prevent flame paths from reaching the atmosphere.
Tr. 149.
Lampley determined that the truck would likely ignite methane for several reasons. The
truck had numerous ignition sources including a starter motor and a combustion engine, which
produced thousands of combustions per minute. The electrical components of the truck were not
sufficiently enclosed to contain any sparks from the engine. The diesel-powered truck did not
have countermeasures, such as flame arresters, that were required in permissible equipment. Tr.
156-7. Most of the ignition sources were in the front of the truck and exposed to return air. Tr.
224. The cited truck was in the tailgate (rather than a headgate), which increased the likelihood
of a methane ignition because the air in that area had ventilated the face. Tr. 175-176. Further,
Lampley opined that since Crum was apparently unaware that he parked the truck in return air, it
was likely to remain there until the longwall resumed production. Tr. 156. Further, during
production, the face would move 2 and ! feet closer to the truck with each pass of the longwall
drum. Tr. 177.

38 FMSHRC Page 1185

Lampley was not aware of any reserves of methane at the mine, nor was he aware of the
average concentration of methane in the mine atmosphere. Tr. 211-12. Lampley testified,
however, that methane would be present in return air coming off an active longwall face in a
gassy mine, which has gob, and would most likely be found at the tailgate or at a bleeder system
at the wall. Tr. 158. Lampley found no methane present when he took readings at the T-split of
air, when production was down. Tr. 189-91, 197. Lampley testified that regardless of air quality,
or the fact that when the citation was written, the air from the T-split of the longwall outby
Crum’s truck was sufficient to dilute or render harmless any methane, MSHA regulations do not
allow shorter permissibility distances when the longwall is not in production. Tr. 173-74, 227-29.
Apart from the likelihood of ignition during production, Lampley explained that an
ignition hazard could be realized spontaneously from a rock fall. Tr. 155, 189-92. He noted that
rock falls were not unusual and major gob falls were fairly common in longwall mining and that
the methane concentration “at the gob line where the T-split occurs, that could change at any
given moment whenever a roof fall occurs back there, and it’s going to fall, it’s just when it’s
going to fall.” Tr. 190-92, 230. If a major rock or gob fall prevented the absorption of methane
by sealing the gob, the resulting change in air pressure would pull methane from the gob area and
allow methane to accumulate in the active working area. Tr. 227-30. Such a rock fall in the gob
is fairly common given mining conditions in that area, although pressure changes in this mine
were somewhat less likely because of the blowing and exhausting fans. Tr. 230-33.
Lampley testified that a methane ignition in a gassy mine could result in a “massive”
explosion. Tr. 162. A massive methane explosion would be fatal to some or all of the miners on
the face. Tr. 162-63. Lampley ascertained that at least two shearer operators, a shieldman, and a
stage loader operator would be affected by an explosion. Tr. 162-64. Lampley referenced the
Upper Big Branch explosion as one caused by the ignition of methane on a tailgate. Tr. 158.18
With respect to the negligence designation, Lampley found no mitigating circumstances
and determined that Respondent’s agent Crum should have been aware of the presence of return
air when parking his truck. Tr. 163-64, 167. Given the change in air temperature and humidity
and the lack of a visible stopping, Lampley opined that Crum knew or should have known that
the truck’s location created a permissibility violation. Tr. 163-64. Crum was a member of
management who should have been aware of the methane ignition hazard created once Crum
drove into the return air and broke the plane of the intersection. Tr. 171-73. According to
Lampley, once Crum broke the plane and entered return air, it was too late to correct the
condition. Tr. 173. Rather, Lampley testified that Crum should have stopped 300 feet from the
face to ensure compliance. Tr. 174-175. Further, Lampley opined that Respondent also could
have placed signs 150 feet from the face or blocked off the area to prevent the entrance of diesel
equipment. Tr. 178. Lampley emphasized that the hazard remained whether the truck was parked
six feet within the 150-foot limit or directly next to the face. Tr. 166-167. Rather, the dispositive
issue was that the truck was in return air. Tr. 166-67.
18

Lampley did not personally investigate the explosion and could not testify whether the
majority of the air samples taken at Upper Big Branch contained methane rather than natural gas,
or whether the gas originated from the face, or from another location, such as a crack in the floor.
Tr. 210-11.

38 FMSHRC Page 1186

To abate the alleged violation, the truck was pulled by chain by another piece of
equipment from intake air, and moved to an outby location outside the 150-foot limit where no
return air was coursing over the pickup. Thereafter, the truck was disconnected and driven an
additional 150 feet away from the face. Tr. 179; S. Ex. 114.
B. Analysis and Disposition
1.' The Violation of §75.1907(a)
30 C.F.R. §75.1907(a) provides that diesel-powered equipment must meet permissibility
standards where permissible electrical equipment is required. 30 C.F.R. §75.1907(a). Electric
face equipment must be permissible within 150 feet from pillar workings or longwall faces or in
return air outby the last open crosscut. 30 C.F.R. §§75.1002 and 75.507-1. The truck cited by
inspector Lampley was diesel-powered equipment that did not meet permissibility requirements.
Tr. 148. It is undisputed that the equipment was closer than 150 feet from the longwall face. R.
Post Hr’g Br. 4. Accordingly, I find that the Respondent violated the cited standard.
2.' The Violation was Significant and Substantial
a.' There was a Violation of a Mandatory Safety Standard
For the reasons explained above, I have found the underlying violation of mandatory
safety standard § 75.1907(a).
b.' The Violation Contributed to a Discrete Measure of Danger to Safety
With regard to the second Mathies factor, the Secretary must show that the violation
contributed to a discrete safety hazard. For the reasons set forth below, I find that the violation
of parking an impermissible diesel-powered truck in return air where permissible equipment was
required contributed to a discrete safety hazard or measure of danger to safety, that is, a methane
ignition or explosion.
Whether the violation in question contributes to a discrete safety hazard implicitly
assumes that a danger to safety is at least somewhat likely to result from the violation. Knox
Creek, 811 F.3d at 163 (finding that “the second prong of Mathies . . . implicitly requires a
showing that the violation is at least somewhat likely to result in harm,” citing Black Beauty, 34
FMSHRC at 1741, n.12 (“[I]f the roadway here had lacked berms for only a short distance
[thereby making the hazard of a vehicle falling off the edge less likely], or if the violation had
been otherwise insignificant, the trier-of-fact could have found that the violation did not
contribute to a discrete safety hazard, and hence that the Secretary had failed in her proof under
the second element of Mathies.”), aff’d sub nom. Peabody Midwest, 762 F.3d 611; Cumberland
Coal Res., LP, 33 FMSHRC 2357, 2368 (2011) (the violation, under the particular
circumstances, was likely to contribute to the relevant hazard under Mathies’ second prong),
aff’d sub nom. Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013); E.
Associated Coal Corp., 13 FMSHRC 178, 183 (1991) (same); Utah Power & Light Co., 12
FMSHRC 965, 970 (1990) (same).

38 FMSHRC Page 1187

Permissibility requirements like the one at issue here ensure that ignitions occurring
within enclosures on mining equipment with electrical circuits will not escape into the mine
atmosphere. Knox Creek, 811 F.3d at 153-54; Consolidation Coal Co., 35 FMSHRC 2326, 2336
(Aug. 2013) (permissibility requirement is designed to prevent hot gases from escaping from an
enclosure containing electrical connections, thus causing an ignition outside the enclosure.”).
Thus, the permissibility requirements are intended to prevent the ignition of explosive airmethane mixtures surrounding mine equipment. Consequently, I must determine whether it was
somewhat likely that the violation contributed to the hazard or danger of allowing an ignition
source to be available in this gassy mine. Cf., Consolidation Coal, 35 FMSHRC at 2335-36
(Commission affirmed judge’s description of relevant hazard contributed to by the violation and
her determination that second prong of Mathies was satisfied because the violation contributed to
the hazard of “the danger of allowing an ignition source to be available in this gassy mine.”).
When examining the likelihood of a permissibility violation to contribute to the hazard of
a methane ignition or explosion, the Commission has traditionally examined whether a
“confluence of factors” is present based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). The Commission has held that the
confluence-of-factors analysis requires consideration of the particular circumstances in the mine,
including the possible ignition sources, the presence of methane, and the type of equipment in
the area. Excel Mining, LLC, 37 FMSHRC 459, 465 (Mar. 2015); Utah Power & Light Co., 12
FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 501-03. For example, the mine in Texasgulf
contained only miniscule amounts of methane and had never had a methane ignition or
explosion. See 10 FMSHRC at 501. Given detailed testimony establishing the mine's history of
low methane emissions, the absence of previous ignitions or explosions, and testimony
establishing a reasonable expectation of low methane emissions in the future, the Commission
concluded that that substantial evidence supported the judge's findings that there was not a
reasonable likelihood that the hazard contributed to would result in a mine ignition or explosion.
On the other hand, numerous other Commission cases have upheld an S&S determination
where the particular facts surrounding a violation established that a methane ignition was
reasonably likely in a gassy mine. See e.g., U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1867–
69 (Aug. 1984) (upholding significant and substantial finding where coal mine liberated over one
million cubic feet of methane in 24-hour period, had a history of methane ignitions, and there
was an excessive accumulation of coal nearby); United States Steel Mining Co., Inc., 7 FMSHRC
1125, 1128–30 (Aug. 1985) (upholding significant and substantial finding where coal mine
liberated over one million cubic feet of methane in a 24-hour period, had a history of past
methane ignitions, could liberate dangerous levels of methane in a relatively short period, and
ventilation was substandard); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 677–678
(upholding significant and substantial finding where coal mine was subject to inspection
pursuant to section 103(i) and sudden outburst of methane had occurred recently); Consolidation
Coal Co., 35 FMSHRC at 2337 (upholding a significant and substantial finding for a roof bolter
that violated permissibility standards where methane was emitted during roof bolting, the bolter
was located near the gob and far from the bleeder fans, and the mine was gassy).
Applying the confluence-of-factors analysis to the instant facts, I find that supervisor
Crum’s truck was a non-permissible ignition source that was parked in return air and would

38 FMSHRC Page 1188

therefore likely be exposed to an explosive concentration of methane released from the longwall
face during continued normal mining operations. Parking impermissible, diesel-powered
equipment within 150 feet of the face in return air contributed to the discrete safety hazard that
restarting the truck could ignite any explosive concentration of methane present in return air
during continuous mining operations. Accordingly, I find that the violation contributed to the
hazard of a methane explosion caused by the location of impermissible equipment in return air.
Although the testimony of Crum, Schilke and Phipps suggested that the return air was
inby the location where Crum parked his non-permissible, diesel-powered Dodge truck (Tr. 275,
283-84, 308, 330-31), I find that the hood of the truck extended into the mixing zone intersection
and into return air and was not in intake air as Phipps, Crum and Schilke suggested. I credit
Lampley’s testimony and measurements that the truck was parked within 150 feet of the face,
and the hood of the vehicle, including the combustion engine, was actually parked within the
plane of the intersection or crosscut. Tr. 146-147, 158, 171, 198-99, 217. Crum’s testimony and
Respondent’s own map indicate this. Tr. 269; R. Ex. 8. Lampley and Phipps both described the
intersection at crosscut 109 as a mixing zone, where return air met intake air. Tr. 107, 329.
Lampley and Phipps both noticed that warmer and more humid air that was characteristic of
return air was present in the intersection or crosscut itself, where such air mixed with fresh intake
air. Tr. 150, 328. Phipps conceded that areas containing return air, including mixing zones, are
properly classified as return air. Tr. 363. Further, I have credited Schilke’s testimony that the
truck was parked slightly inby the outby corner of crosscut 109 (Tr. 305-06), over Crum’s
testimony that the truck was parked even with the outby corner. Tr. 268-69.
Although Schilke testified that Lampley had to stand directly at the Dodge truck and
almost over the hood of the truck to get the smoke to travel over the hood of the truck, Schilke
thereafter acknowledged that the smoke was in a dead spot and automatically spread out over the
hood of the Dodge truck. Tr. 309. I credit Lampley’s testimony that the results of his smoke test,
which recreated the movement of air from the longwall face to the truck, established that return
air wafted over the hood of the truck where the engine was located, and then out across crosscut
109. Tr. 151. Based on Lampley’s credited testimony, as supported by the results of the smoke
test, I find that return air, which would be carrying methane during continuous mining operations
in a gassy mine, reached the hood and windshield of the truck, which extended into the
intersection and mixing zone. Tr. 151, 194, 202.
I further credit the testimony of Lampley that the truck was an ignition source. Tr. 15657. Lampley identified several sources of ignition within the truck that Respondent did not
contest. Id. Most notably, the engine produced thousands of combustions per minute. Id. It is
undisputed that the truck was not permissible equipment. Tr. 156-57, 275, 319. Consequently,
the truck did not prevent sparks released by the combustions from encountering potentially
explosive methane concentrations in the air. Tr. 147-49. Due to the numerous ignition sources
within the truck, the number of ignitions per minute, and the lack of countermeasures to arrest a
methane ignition, I find that the truck was a likely source of methane ignition because it was
parked in return air in a gassy mine on five-day spot protocol where methane would be coming
off an active face and heading outby past gob and over the truck, during continuous mining
operations. Tr. 157-59.

38 FMSHRC Page 1189

It is important to emphasize that the Mach #1 Mine was subject to section 103(i) spot
inspections every five days because of its excessive liberation of methane. Although the
Secretary put on no evidence of any prior ignition at the Mach #1 Mine, and there is no mention
of a prior methane ignition on MSHA’s data retrieval, there is some evidence of the presence of
high dust concentration, including float coal dust, which might propagate a methane ignition. For
example, inspector Robert Bretzman specifically testified that the mine normally had high dust
concentration. In this regard, with respect to Citation 8432319, alleging that on September 12,
2013, almost a year before Citation No. 8451651 was written, the longwall shearer on the
headgate six unit did not have a visible warning device to adequately alert the shearer operator
when the methane concentration reached 1.0 percent, inspector Bretzman testified as follows:
I determined that if—in the event that we did have a high degree of
methane, excessive methane, and the operators were not aware of
the methane and we was in a high dust concentration, like we
normally are, we could have an ignition . . . .
Tr. 411 (italics added). As further explained below, these facts coupled with Lampley’s
testimony that methane would travel off the active face in return air and past gob to the truck (Tr.
157-59) are sufficient to make an accumulation of methane at explosive concentrations
reasonably likely during continued normal mining operations. Cf., Knox Creek, 811 F.3d at 164;
Consolidation Coal Co., 35 FMSHRC at 2336.
Respondent argues that the truck was not exposed to methane, much less any explosive
concentration of methane. This argument is unconvincing in the context of continued normal
mining operations. Although no methane was found in the readings taken at the time of the
citation, I credit Lampley’s testimony that the truck was exposed to numerous sources of
methane. The most likely source of methane was from the gas released from the face during coal
production, under continued normal mining operations. Tr. 158. Additionally, Lampley
convincingly testified that bursts of methane released from rock falls within the gob could
spontaneously increase methane concentrations to explosive levels quickly. Tr. 189-92. Finally,
as noted above, the Commission has consistently found permissibility violations to be S&S
where mines are characterized as gassy. See e.g., Consolidated Coal Co., 35 FMSHRC at 2336
(affirming judge’s finding that of reasonable likelihood of injury from an explosion despite no
methane detected at time of violation because methane was emitted as bolter drilled into the roof,
the bolter was close to the gob and far from the bleeder fans, and the mine was a gassy mine).
As emphasized, this mine was on a five-day spot and liberated approximately two million
cubic foot of methane in a 24-hour period. Tr. 158. The risks of dangerous concentrations of
methane quickly rising to an explosive level from the above sources are increased where the
mine liberates such high quantities of methane. Although Respondent offered its ventilation
scheme as a sufficient countermeasure against methane accumulation, the Commission has
consistently found that adequate ventilation within a mine is not sufficient to remove the danger
of explosive levels of methane. U.S. Steel, 6 FMSHRC at 1869; Excel Mining, LLC, 37
FMSHRC at 466. Based on the entire record, I find it reasonably likely that under continued
normal mining operations, Crum’s non-permissible truck would be exposed to an explosive
concentration of methane in the return air where it was parked.

38 FMSHRC Page 1190

Respondent argues that the truck would have been removed before production restarted,
thus eliminating the presence of the ignition source. Tr. 286. I reject this argument. As the
Fourth Circuit recently recognized, the Commission has long “held that an S&S determination
ought to be ‘made at the time the citation is issued (without any assumptions as to abatement).’
Sec’y of Labor v. U.S. Steel Mining Co., 6 FMSHRC 1573,1574 (1984) (emphasis added); see
also Sec’y of Labor v. McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991 (2014) (rejecting
the argument that an S&S finding was erroneous ‘because [the mine operator] was in the process
of cleaning the accumulations when the inspector arrived’); Sec’y of Labor v.Gatliff Coal Co., 14
FMSHRC 1982, 1986 (1992) (finding that the ALJ erred in ‘inferring that the violative condition
would cease’ in the course of normal mining operations).” Knox Creek, 811 F.3d at 165. In
addition, Crum’s testimony that the truck would have been removed before production restarted
is speculative and unsupported by any evidence. Apart from Crum’s interest as a longwall
maintenance supervisor in remaining by the longwall to ensure that the belt and longwall
operated properly before he returned to his truck and the surface, Crum likely would have been
delayed in any number of ways as longwall maintenance supervisor. Furthermore, because
Crum was ignorant of the violative condition (see e.g., Tr. 284), I find it likely that he would
have started the truck while it was in return air after production restarted, thus increasing the
likelihood of a methane ignition.
In sum, I find that the presence of an ignition source, the location of that ignition source
within return air reserved only for permissible equipment, the likelihood of a methane build up to
an explosive level during continued normal mining operations in this gassy mine, and the
testimony that the mine normally had high dust concentrations make it likely that the violation
contributed to a discrete methane ignition or explosion hazard. As such, I find that the second
prong of Mathies test was satisfied.
c.' The Violation Contributed to a Hazard That was Reasonably Likely to
Result in Injury
As the Fourth Circuit has recognized, the third and fourth prongs of Mathies, which are
often combined in a single showing, are primarily concerned with gravity or the seriousness of
the expected harm. To the extent that the third and fourth prongs are concerned with likelihood at
all, they are concerned with the likelihood that the relevant hazard will result in serious injury
because requiring a showing at prong three that the violation itself is likely to result in harm
would make prong two superfluous. Knox Creek, 811 F.3d at 162, citing Mathies, 3 FMSHRC at
3-4.
Regarding the third Mathies factor, the Secretary demonstrated a reasonable likelihood
that the hazard contributed to by the violation, i.e., a methane explosion contributed to by
parking an impermissible ignition source in return air, was reasonably likely to result in an injury
to the four miners working near the face. As noted, for this element to be satisfied “[t]he
Secretary need not prove a reasonable likelihood that the violation itself will cause injury.”
Cumberland, 33 FMSHRC 2357, 2365 (Oct. 2011) (quoting Musser Engineering, Inc. & PBS
Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). Nor is the Secretary required to prove that
the hazard contributed to will actually result in an injury-causing event. Youghioghemy & Ohio
Coal Co., 9 FMSHRC 673, 678 (April 1987).

38 FMSHRC Page 1191

Rather, the test under the third prong of Mathies is whether there is a reasonable
likelihood that the hazard contributed to by the violation . . . will cause injury. Knox Creek, 811
F.3d at 161, citing Musser Engineering, 32 FMSHRC at 1281, where the Commission assumed
the existence of the relevant hazard and considered only “evidence regarding the likelihood of
injury as a result of the hazard.” Although the Commission’s decision in Ziegler Coal Co., 15
FMSHRC 949, 953 (1993), supports the argument that evidence of the likelihood of the hazard is
relevant at prong three, as the Fourth Circuit noted, that position is flatly contradicted by more
recent Commission precedent in Musser, 32 FMSHRC at 1281, and by the unanimous voice of
the Fourth, Fifth and Seventh Circuits. See Knox Creek, 811 at 164; see also Peabody Midwest
762 F.3d at 616 (holding that the question is not whether it is likely that the hazard would have
occurred, but only if the hazard occurred, regardless of likelihood, it was reasonably likely that a
reasonably serious injury would result); Knox Creek, 811 F.3d at 161 (Skidmore deference
applied to Secretary’s litigating positions 1) that third prong of Mathies focuses on the likelihood
that the hazard to which the violation contributes will cause injury, not on the likelihood of the
hazard occurring, and 2) the existence of the relevant hazard should be assumed); Buck Creek, 52
F.3d at 135 (the third prong of Mathies is satisfied where the ALJ determined that in the event of
the hazard, a reasonably serious injury would result); Austin Power, 861 F.2d at 103-04 (finding
third prong of Mathies satisfied where the hazard “would almost certainly result in serious
injury,” without requiring evidence that the hazard itself was likely); cf. Cumberland Coal, 71
F.3d at 1027-28 (Secretary’s interpretation that decision maker should assume the existence of an
emergency when evaluating whether the violation of an emergency safety standard is S&S is not
inconsistent with Mathies or Commission precedent).
I credit inspector Lampley’s testimony that the violation, parking the impermissible
truck with unapproved electrical components in return air, contributed to a methane ignition or
explosion hazard that was reasonably likely to result in an injury to the four miners working at
the face. Tr. 156-63. The Commission has long recognized that a methane ignition or explosion
is likely to result in a fatal injury to exposed miners. See Consolidation Coal, 35 FMSHRC at
2337 (affirming judge’s determination that the lack of a permissible light on a roof bolter would
contribute to the hazard of a methane gas ignition or explosion, which is reasonably likely to
cause a permanently disabling or fatal injury); Black Diamond Coal Mining, 7 FMSHRC 117,
1120 (1985)(“We have previously noted Congress’ recognition that ignitions and explosions are
major causes of death and injury to miners”); Jim Walter Res., Inc., 37 FMSHRC 1968, 1976
(Sept. 2015)(“horrific mine explosion[s took] the lives of 12 miners at Sago Mine”); Sec’y of
Labor v. Performance Coal Co., 34 FMSHRC 587, 588 (2012) (ALJ) (explosion at longwall
section due to an ignition of methane propagated by coal dust resulted in deadliest U.S. mine
disaster in 40 years, killing 29 miners); cf. Knox Creek, 811 F.3d at 163 (permissibility violations
where a mine’s atmosphere contains explosive concentrations of methane contribute to a
methane ignition or explosion hazard that is reasonably likely to result in an injury-producing
event). Accordingly, I find that the third prong of Mathies was satisfied.
d.' There was a Reasonable Likelihood That the Injury in Question Will Be of a
Reasonably Serious Nature
With regard to the fourth Mathies factor, I find a reasonable likelihood that any injury
from a methane explosion would be of a reasonably serious nature. A methane-related explosion

38 FMSHRC Page 1192

contributed to by the violation was reasonably likely to result in fatal injuries to the four miners
working at the face. Consolidation Coal Co., 35 FMSHRC at 2337; Black Diamond Coal
Mining, 7 FMSHRC at 1120; Jim Walter Res., Inc., 37 FMSHRC at 1976; Sec’y of Labor v.
Performance Coal Co., 34 FMSHRC at 588. Fatal injuries are necessarily serious in nature.
Thus, I find the fourth Mathies factor satisfied.
In sum, considering all relevant factors, I find the violation was S&S.
3.' Respondent’s Negligence is Reduced from High to Moderate
I find that Respondent’s negligence should be reduced from “high” to “moderate.” It was
not unreasonable for Crum, an agent of the operator, who was visually estimating distances, to
mistake 144 feet for 150 feet and to park the hood of his truck slightly in return air. I find this
honest mistake to be a mitigating circumstance that supports a reduction in Respondent’s
negligence from high to moderate.
4.' Civil Penalty for Citation No. 8451651
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent, Mach Mining, Inc., operates the Mach Mining No. 1 Underground Mine, which
mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the originally
proposed penalty of $16,867 will not affect Respondent’s ability to remain in business. MSHA
recognized Respondent’s good-faith compliance in abating the citation. I have affirmed MSHA’s
gravity and S&S determinations. I have modified MSHA’s negligence determination from high
to moderate. After consideration of the penalty assessment criteria set forth in section 110(i) of
the Act, I assess a $5,081 civil penalty against the Respondent for Citation No. 8451651.
VI. Citation No. 8439446
A. Findings of Fact
1.' Inspector Stanley’s Testimony
After determining that Respondent’s methane monitor attached to a roof bolting machine
failed to register explosive concentrations of methane, Inspector Phillip Wayne Stanley19 issued
Citation No. 845394446 for a violation of 30 C.F.R. § 75.342(a)(4). Tr. 465-66. The cited
standard requires that methane monitors be maintained in proper operating condition. Tr. 465.
Properly operating monitors de-energize electrical equipment when methane concentrations
reach 2.0 percent or when the monitor is not operating properly. 30 C.F.R. § 75.342(c); Tr. 465.
Stanley determined that the violation was S&S and contributed to a methane ignition hazard that
19

At the time of the hearing, Stanley had been a coal mine inspector for MSHA for four
years and eight months. Tr. 461. Starting in December 1990, Stanley worked in potash mining
for sixteen to seventeen years. Id. Thereafter, he worked in coal mining for approximately eight
years. Id. Stanley graduated from high school in 1980, worked in the military for four years, and
completed his training at the National Mine Safety and Health Academy. Tr. 461-62.

38 FMSHRC Page 1193

was reasonably likely to result in flash burns affecting two miners, as a result of Respondent’s
moderate negligence. Tr. 156, 162-63. The Secretary proposed a penalty of $1,412.
On August 6, 2013, Stanley conducted a regular inspection at Mach Mining. Tr. 461-62.
As part of that inspection, Stanley tested the methane monitor attached to roof bolter #4 on the
eighth headgate panel. Tr. 462, 464. Stanley conducted the inspection with a calibrator that
displayed a digital readout, which listed the methane level. Tr. 464-65. When Stanley applied
2.5% methane to the monitor, it only read as high as 1.6 % methane. Id. The roof bolter is
programmed to automatically de-energize at 2.0 %. Tr. 465. With an inaccurate methane
monitor, the machine would likely fail to de-energize in explosive levels of methane. Tr. 468.
Under MSHA regulation, methane readings must be taken every twenty minutes during
the process of roof bolting. Tr. 466, 496; 30 C.F.R. §75.362(d)(2). If a roof bolter lacks a
methane monitor, readings must be taken with a probe at the deepest point of the cut
approximately a foot from the roof or face. Tr. 467, 493-94. If the roof bolter has a methane
monitor, readings can be taken within sixteen feet of the front of the machine. Tr. 466-67, 49495. Stanley opined, but was not positive, that the methane monitor on the bolter did not run all
day and was only used when a reading was taken. Tr. 495.
Stanley issued Citation No. 8451651 for a violation of 30 C.F.R. § 75.342(a)(4). Tr. 46566. The cited standard requires that methane monitors be maintained in proper operating
condition. Tr. 465. Properly operating monitors de-energize electrical equipment when methane
concentrations reach 2.0 percent or when the monitor is not operating properly. 30 C.F.R. §
75.342(c); Tr. 465.
Stanley marked the citation as “reasonably likely” to result in an injury because the
machine would not de-energize when encountering an explosive concentration of methane. Tr.
468. The mine liberated two million cfm of methane in a 24-hour period, and the eighth headgate
panel itself released 25,000 cfm of methane in a 24-hour period. Id. Although more methane is
released during extraction, some methane is released during roof bolting. Tr. 496. Because
methane is lighter than oxygen, it accumulates in the top third of the entry where bolting occurs.
Tr. 472-73. The methane monitor was placed on the automated temporary roof support system
(ATRS) to gather readings in this accumulation zone. Tr. 468-69, 492. Additionally, the area
near the roof of the mine was susceptible to sparking because the carbide tips of the bolter’s drill
bits encountered materials such as sandstone, limestone, and shale. Tr. 469. The roof bolter also
created sparks when its wrench and bolt rotated against a steel-bearing plate. Id. Stanley referred
to a 2012 ignition at Prosperity Mine to demonstrate the hazard resulting from a malfunctioning
methane monitor on a roof bolter. Tr. 470.
Given the malfunctioning methane monitor, the likelihood and location of methane
accumulation, and the potential for sparking, Stanley expected resulting injuries from an ignition
to manifest as flash burns. Id. Stanley determined that these injuries would result in lost
workdays or restricted duty and would affect the two machine operators. Tr. 470-71.
At the time of the citation, Respondent’s ventilation system met regulatory standards. Tr.
490-92. Looking inby, the system ventilated the roof bolter with air traveling from right to left,

38 FMSHRC Page 1194

and included a line curtain to assist with ventilation. Id. This air acted to render harmless or
remove noxious and hazardous gases and dust. Id., Tr. 505. However, ventilation systems may be
inadequate where methane bleeders are encountered. Tr. 505-06. Bleeders are pockets of
methane pressured under the strata. Id. They may continually replace explosive concentrations of
methane faster than the ventilation can sweep the air. Id.
In deference to Respondent’s implementation of seven-day checks on its methane
monitors rather than the thirty-one day intervals required by the regulations, Stanley determined
that Respondent’s negligence was moderate. Tr. 471.
2.' The Testimony from Respondent’s Witnesses
a.' Mark Schilke’s Testimony
Schilke accompanied Stanley during his inspection of the roof bolter. Tr. 552. At the time
of inspection, the bolter was pulled back approximately eighty feet from the face and outby the
feeder break or last open crosscut. Tr. 555-56. The roof bolter is typically pulled in to secure
unsupported roof after the continuous miner takes a fresh cut at the face. Tr. 557-58.
Schilke testified that prior to positioning the roof bolter, the roof bolt operators would
take a methane reading. Tr. 553. A separate handheld methane monitor was attached to the probe
and extended at least fifteen feet beyond the bolter. Tr. 553, 629-630, 635. The bolter operators
repeated these readings every twenty minutes with a probe. Tr. 553, 624, 644. Schilke testified
that having a methane monitor attached to the bolter did not affect the nature of the twentyminute gas checks in any way. Tr. 629-632. There was no evidence to suggest errors in the
equipment or data derived from these regular methane checks. Tr. 554.
Both Stanley and Schilke wore methane spotters and neither reported methane near the
face. Tr. 559. Schilke testified that although the cited methane monitor failed to deenergize the
machine, it did emit a warning during the methane test. Tr. 552, 628-29. Schilke also emphasized
that methane monitors were an optional safety precaution. Tr. 552-53.
During roof bolting, Respondent ran a curtain to the tail of the bolter, to facilitate the
flow of approximately 3000 cfm of intake air. Tr. 556-57. This ventilation system directed the air
towards the face and across the bolter to remove gas and dust from the bolter. Tr. 556-58.
Schilke admitted that the amount of ventilation would not diminish the necessity of twentyminute gas checks. Tr. 633.

38 FMSHRC Page 1195

b.' Johnny Robertson’s Testimony
General Manager Johnny Robertson20 testified that methane was only liberated when the
continuous miners or the longwall shearers cut coal. Tr. 710-11, 742. Robertson testified that
methane is less likely encountered during roof bolting than mining, and is usually only present
when roof bolting into a coal seam. Tr. 716. Robinson testified that during his four years of
tenure with Respondent, there were no reports of methane released from the roof or during
bolting. Tr. 718-19.
According to Robertson, the regularity of spot inspections is determined by the amounts
of methane and intake air in the mine. Tr. 743. Higher volumes of intake air reduce the methane
content within the mine. Tr. 743-44. Robertson explained that Respondent’s ventilation plan
required a minimum of 3000 cfm of intake air blowing against a line curtain and across the back
of the roof bolters. Tr. 711. Although Respondent met the ventilation requirements, its methane
levels nonetheless required five-day spot inspections. Tr. 709-10, 743-44. Robertson conducted
weekly methane readings where methane accumulated at the bleeder system behind the longwall.
Tr. 710. He testified that during his time as general manager, neither his readings, nor any
readings reported to him, were above 0.7 % methane. Tr. 711.
Robinson confirmed that Respondent used a continuous miner to carve out entryways. Tr.
717. After it cut forty feet of coal and withdrew, the roof bolter moved in to support the roof.
Id., Tr. 742-43. Robertson testified that the light on the monitor was generally visible to the
operator when the continuous miner cut and loaded coal. Tr. 723-24. He testified that the
operator stood in front of the methane monitor. Tr. 745. He acknowledged, however, that the
operator might turn away from the monitor while the cutter drum cut coal, whenever the shuttle
car approached and loaded coal. Tr. 723-25, 745. Under such circumstances, the methane
monitor was not visible for a few seconds. Tr. 723-25, 746. The continuous miner was not
programed to automatically de-energize in concentrations of one-percent methane. Tr. 746-47.
Instead, it was de-energized manually. Id.
Robertson also confirmed that when the roof bolter had a methane monitor attached to the
ATRS, the operators probe sixteen feet in front of the bolter. Tr. 719. These methane checks
were repeated every twenty minutes during roof bolting. Id. If the bolter did not have an attached
methane monitor on the ATRS, these checks would occur with a different handheld monitor at
the deepest point of penetration about twelve inches from the face and roof. Tr. 720.
20

Robertson had thirty-two years of experience in mining. For six years before
commencement of employment with Mach Mining, Robertson was employed at Foresight
Energy, which owns Mach Mining. Tr. 706. Before that, he worked for Massey Energy for
twenty-six years, and held positions in engineering, safety, and operations. Id. He supervised
multiple mine sites and was president of one of Massey Energy’s large resource groups. Tr. 70607. He was certified in Ohio, New Mexico, and Illinois as a foreman or mine manager. Tr. 707.
Robertson was a MSHA instructor with certifications in dust and noise. Tr. 707. He has a
Bachelor’s Degree from Marshall University in West Virginia. Id. Robertson served in the Army
Special Forces. Id.

38 FMSHRC Page 1196

B. Analysis and Disposition
1.' The Violation of § 75.342(a)(4)
Section 75.342(a)(4) requires that operators maintain methane monitors in permissible
and proper operating condition and calibrate them with a known air-methane mixture at least
once every 31 days. A methane monitor in permissible and proper operating condition shall
automatically de-energize electric equipment or shut down diesel equipment on which it is
mounted when the methane concentration reaches 2.0 percent or when the monitor is not
operating properly. 30 C.F.R. § 75.342(c).
Respondent admitted the violation. Tr. 552. See R. Br. 12. The methane monitor failed to
de-energize the machine when methane concentrations reached 2% and failed to provide
readings higher than 1.6 %. Tr. 464-65. Respondent argues that the violation was not S&S, that
its negligence was less than moderate, and that the proposed penalty calculation is inappropriate.
2.' The Violation was Significant and Substantial
a.' There was a Violation of a Mandatory Safety Standard
For the reasons explained above, I have found and Respondent admits the underlying
violation of a mandatory safety standard, i.e., § 75.342(a)(4).
b.' The Violation Contributed to a Discrete Measure of Danger to Safety
As stated previously, the second Mathies factor requires a showing that the violation
created a discrete safety hazard, “which implicitly requires a showing that the violation is at least
somewhat likely to result in harm.” Knox Creek, 811 F.3d at 16, citing Black Beauty Coal Co., 34

FMSHRC at 1741, n. 12, aff’d sub nom. Peabody Midwest, 762 F.3d 611 (7th Cir. 2014);
Cumberland, 33 FMSHRC at 2368, aff’d sub nom. Cumberland, 717 F.3d 1020; E. Associated Coal
Corp., 13 FMSHRC at 183; Utah Power & Light Co., 12 FMSHRC at 970. Where a violation poses

a risk of fire or explosion, this likelihood is demonstrated by the presence of a “confluence of
factors,” such as possible ignition sources, the presence of methane, and the type of equipment in
the area. Excel Mining, LLC, 37 FMSHRC at 465, slip op. at 7, (Mar. 2015); Utah Power &
Light Co., 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 501-03. For example, in
Consolidation Coal, the Commission found that a methane ignition was reasonably likely
because methane was emitted during roof bolting, the bolter was located near the gob and far
from the bleeder fans, and the mine was gassy. Consolidation Coal Co., 35 FMSHRC at 2337.
A properly functioning methane monitor is expected to automatically de-energize
electrical equipment in two percent methane to avoid the potential ignition of explosive levels of
methane at the 5-15% range. The monitor at issue in the present citation did not detect two
percent methane when tested, and would not automatically de-energize the roof bolter in rising
concentrations of methane, thus contributing to the likelihood of a methane ignition should
methane accumulate to an explosive level during continued normal mining operations.
Consequentially, I find that the hazard contributed to by the violation was a methane-related
ignition caused by undetected explosive levels of methane where ignition sources were present.

38 FMSHRC Page 1197

The risk of excessive methane in Respondent’s mine nearly parallels the risk cited in
Consolidation Coal. Methane was liberated during roof bolting. Tr. 469. Due to its weight, the
methane accumulated near the top third of the entry where bolting occurred. Tr. 468-69. The
potential for bleeders increased the possibility of dangerous methane concentrations. Tr. 505-06.
Furthermore, the Commission has held that if a mine liberates high levels of methane
there may be an even greater potential for a methane ignition to occur and that this may be
considered in a confluence-of-factors analysis. Excel Mining, LLC, 37 FMSHRC 465, slip op. at
7, (Mar. 2015); Knox Creek Coal Corp., 36 FMSHRC at 1134. As stated previously, the Mach
Mining No. 1 Underground Mine is a gassy mine that is on a five-day spot inspection schedule.
Tr. 35. The mine liberates over two million cfm methane in a 24-hour period and approximately
35,000 cfm methane at the eighth head-gate panel. Tr. 468. I find that the confluence-of-factors
test is satisfied here and that the violation created a discrete safety hazard, which was at least
somewhat likely to result in harm.
Citing facts discussed in the Consolidation Coal ALJ decision, Respondent argues in its
response to the Secretary’s Post-Hearing brief that the risk of excessive methane in the present
case is substantially different from the risk of excess methane in Consolidation Coal. R. Resp.
Br. 6-7. According to Respondent, respondent Consolidation Coal had higher levels of methane
because the roof bolters and continuous miners shut down four to five times in a cycle, and a
curtain was removed by a foreman, thus raising methane levels to 7.7%. Id. However, the facts
that Respondent relies on were not determinative in Consolidation Coal. Instead, the
Commission cited only three factors when establishing a sufficiently dangerous risk for a
methane ignition. Consolidation Coal Co., 35 FMSHRC at 2337 (emphasis added). The
Commission cited the emission of methane while roof bolting, the location of the roof bolter near
the gob and further from the bleeder fans, and the fact that the mine was gassy. Id. (“[T]he
Robinsons Run mine liberates more than a million cfm of methane during a 24-hour period and
is subject to five-day methane spot inspections”). Given the cited conditions, the Commission
quoted the inspector’s testimony that “it would only take a roof-fall for the gob air to … create
an explosive amount of methane.” Id. at 2336. With the additional danger of encountering
pockets of methane bleeders, the present risk factors are nearly identical to those enumerated by
the Commission in Consolidation Coal. Accordingly, I do not find Respondent’s argument
persuasive.
Respondent also cites Judge Zielinski’s decision in Ohio County Coal for the proposition
that a malfunctioning methane monitor is not S&S where the mine has low levels of methane
concentrations. Ohio County Coal Co., 32 FMSHRC 220 (Feb. 2010)(ALJ). Ohio County Coal
is distinguishable from the present case in at least one major way. The mine in Ohio County Coal
did not liberate excessive quantities of methane, as noted by Judge Zielinski in his analysis. 32
FMSHRC at 224 (comparing Freedom mine to mines that liberate greater quantities of methane
and are subject to spot inspections). Instead, the mine in that case emitted a mere 12,000 to
13,000 cfm methane in a 24-hour period, in comparison to Respondent’s liberation of one
million cfm methane in a 24-hour period. Id.
In short, Respondent roof bolted with a malfunctioning methane monitor in an area of
methane emission and accumulation within a gassy mine. The inspector credibly testified that

38 FMSHRC Page 1198

sparks released from roof bolting in excess methane concentrations will cause an ignition. I find
that this combination of risk factors satisfies the confluence-of-factors test for a methane ignition
hazard and supports a finding that the hazard is at least somewhat likely to occur. Accordingly, I
find that the second Mathies factor is satisfied.
c.' The Violation Contributed to a Hazard That was Reasonably Likely to
Result in Injury
As stated previously, federal appellate law and Commission precedent have sufficiently
established that a methane explosion is reasonably likely to result in injures. See Buck Creek, 52
F.3d at 135; Consolidation Coal Co., 35 FMSHRC at 2337; Black Diamond Coal Mining, 7
FMSHRC at 1120; Jim Walter Res., Inc., 37 FMSHRC at 1976; cf. Knox Creek, 811 F.3d at 16465. Accordingly, I find that the third Mathies factor is met.
d.' There was a Reasonable Likelihood That the Injury in Question Will Be of a
Reasonably Serious Nature
With regard to the fourth Mathies factor, I find a reasonable likelihood that any injury
from a methane explosion would be of a reasonably serious nature. The record establishes that a
methane-related ignition contributed to by the violation was reasonably likely to result in a
serious injury or illness to at least two miners working with the bolter, who would suffer flash
burns from a methane ignition. I find that the designation of “lost workdays or restricted duty”
was appropriate for this violation.
In sum, considering all the relevant factors, I find that the violation was properly
designated as S&S.
3.' Respondent’s Negligence was Appropriately Designated as Moderate
Based on the testimony and briefs, I do not find considerable mitigating circumstances
that would justify reducing the negligence designation from moderate to low. Respondent knew
or should have known of the violation. Respondent’s ventilation and weekly methane monitor
calibrations are mitigating circumstances that support a moderate negligence designation.
However, Respondent highlighted no action that considerably mitigated the likelihood or
severity of a methane ignition during roof bolting without a properly functioning methane
monitor. In these circumstances, I conclude that the Secretary properly designated Respondent’s
negligence as moderate.
4.' Civil Penalty for Citation No. 8439446
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the
originally proposed penalty of $1,412 will not affect Respondent’s ability to remain in business.
MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed
MSHA’s gravity, negligence, and S&S determinations. After consideration of the penalty

38 FMSHRC Page 1199

assessment criteria set forth in section 110(i) of the Act, I assess a $1,412 civil penalty against
the Respondent for Citation No. 8439446.
V. Citation No. 8432319
A. Findings of Fact
1.' Inspector Bretzman’s Testimony
After observing the absence of an auxiliary methane alarm light on a longwall shearer,
MSHA inspector Robert L. Bretzman21 issued Citation No. 8432319 for a violation of 30 C.F.R.
§ 75.342(b)(2), which requires that “[t]he warning signal device of the methane monitor shall be
visible to a person who can de-energize electric equipment or shut down diesel-powered
equipment on which the monitor is mounted.” Tr. 409. Bretzman determined that the violation
was unlikely to contribute to a methane ignition hazard, but that any injuries that did result from
the hazard would result in lost work days or restricted duty affecting three miners, as a result of
Respondent’s low negligence. Tr. 409-411. The Secretary proposed a penalty of $117.
On September 11, 2013, Bretzman was among several inspectors who conducted a
quarterly inspection of Respondent’s longwall. Tr. 396-97. Bretzman testified that the longwall
was probably producing coal when he arrived, but he could not say for sure. Tr. 418. During the
inspection, Bretzman noticed that there was no auxiliary alarm light on the longwall shearer. Tr.
398. In Bretzman’s experience, longwall shearers always have auxiliary alarm lights. Tr. 407,
410. The shearer at issue has an electric panel with a four to six-inch LED screen, which
constantly displays the current concentration of methane. Tr. 439-440. This methane reading
flashes when methane levels reach a certain percentage. Tr. 440-441. When methane
concentrations reach one percent, an alarm light turns on to alert the shearer operator of
excessive methane. Tr. 441. This alarm light is located in the bottom right-hand corner of the
panel and is approximately the size of a quarter. Tr. 411-412, 441; S. Ex. 102.
Respondent usually has two longwall shearer operators, a headgate operator and a tailgate
operator, and each has a remote control box that can de-energize the shearer. Tr. 404-05, 433.
The shearer also has an emergency stop button that can be operated by anyone in the area,
including the stage loader operator. Tr. 434-36. Bretzman testified that the stage loader operator
works in a stationary position at the headgate of the longwall. Tr. 435-36. Bretzman testified
that the only way to see the alarm on the shearer is to stand directly in front of the monitor. Tr.
21

Inspector Bretzman was employed by MSHA as a special investigator for two and a
half years, and as an electrical specialist for five years. Tr. 394. Bretzman worked in mining
since 1977. Tr. 395. He held positions as a belt maintenance worker, a shieldman, a mechanic,
and a maintenance foreman. Id. Additionally, Bretzman worked for a short time in the electrical
department for Joy Technologies, a mine manufacturing company. Id. Bretzman holds an
Associate’s degree and received his Bachelor’s degree from Southern Illinois University in work
force education and training. Tr. 396. He was a certified mine examiner, who possessed a federal
electrical card. Tr. 398.

38 FMSHRC Page 1200

402, 413. Respondent failed to present any testimony that the stage loader operator could see the
auxiliary light on the longwall shearer.
Bretzman did not observe the longwall in operation and did not know for certain where
the operators stood that particular day. Tr. 437-438, 442. However, Bretzman testified that it was
highly unlikely that a miner would stand where he could see the monitor because from that
location he would be unable to see the cutting drums. Tr. 402-403. At any given time, an
operator may stand anywhere along the shearer, up to twenty-five feet from the monitor. Tr. 41215, 438-439, 447. Upon questioning headgate operator Mike Skelton, Bretzman learned that he
was positioned outby the headgate drum when it traveled towards the headgate. Tr. 446; see S.
Ex. 100, p. 3. This location confirmed Bretzman’s suspicion that the shearer operator would not
see the warning light. Tr. 446. Bretzman’s notes from the day of the inspection do not indicate
the tailgate operator’s usual location, although Bretzman opined that Skelton would have
volunteered that information if it was exculpatory. Tr. 456-57.
Bretzman returned to MSHA and verified that alarm lights were required on the shearer.
Tr. 405, 408, 443. Bretzman decided, and the MSHA field office supervisor agreed, that a
citation was appropriate. Tr. 444. Bretzman returned to the mine the next day and issued the
citation. Tr. 408. The cited standard requires that “[t]he warning signal device of the methane
monitor shall be visible to a person who can de-energize electric equipment or shut down dieselpowered equipment on which it is mounted.” 30 C.F.R. § 75.342(b)(2); see also Tr. 409.
Bretzman determined that the operator could not see the monitor during normal mining
operations unless he was in the direct line of sight of the readout. Tr. 409, 412, 441. As a result,
the operator would not have accurate methane readings during mining. Tr. 409. However,
Bretzman conceded that the standard does not specifically say that the monitor must be visible to
the headgate or tailgate operator. Tr. 436-37. Any person assigned to watch the monitor would be
sufficient. Tr. 437, 439. To Bretzman’s knowledge, no one stood at the center of the shearer. Tr.
447. Furthermore, Bretzman could not recall anyone from Respondent telling him that the
indicator light could be seen by a person who could de-energize the machine. Tr. 446.
Respondent argues that the lack of previous citations from past inspections suggests that
the condition was not a violation. Tr. 725-27. Since 2006, Respondent developed longwall panels
for three miles and was subject to many inspections, including E01 inspections, spot inspections,
and permissibility certifications for 2G longwall equipment. Tr. 422-442. Bretzman testified that
the 2G approvals were irrelevant because they only certified diagrams and plans of the mine, and
not the ways in which equipment was actually used. Tr. 451-452. For instance, Bretzman
recalled a similar citation at the same mine requiring an auxiliary alarm light on a stage loader.
Tr. 406. In that case, the stage loader satisfied 2G permissibility requirements if one assumed
that the operator was in view of the methane alarm. Tr. 451-52. In practice, however, MSHA
inspectors observed that the operators were not always in position to view the alarm and
therefore issued a citation. Id. Bretzman could not recall if he had spoken with Respondent
previously about the failure to place a light on the shearer, although he believed he had. Tr. 422,
431. Bretzman testified that every longwall shearer that Bretzman worked with at Consol, and
most of the ones at Joy Technologies had auxiliary alarm lights. Tr. 407.

38 FMSHRC Page 1201

Bretzman determined that the unlikely injury that would result from the alleged violation
was lost work days or restricted duty for three miners. Tr. 410-11. He testified that there was
normally a high concentration of coal dust at the site. Tr. 411. Excessive methane in an
environment with coal dust creates an ignition hazard. Id. As a result, Bretzman determined that
the shearer operators and shieldman were at risk for burns. Id. Bretzman wrote the citation as
unlikely because mining had stopped and he had no evidence to suggest that methane was
present. Tr. 410, 420. Furthermore, Respondent’s ventilation pushed over 100,000 cfm of intake
air over the headgate, and the shearers were designed to automatically de-energize at 2.5 %
methane. Tr. at 417-21. The monitors designed to shut off the shearers worked properly at the
time of the citation. Tr. 421.
To abate the alleged violation, Respondent ordered the equipment necessary to install an
auxiliary alarm light on the shearer. Tr. 412. Respondent installed a new, two-inch flashing light
that was visible to the shearer operators. Tr. 448. The citation was terminated by another
inspector. Tr. 457-58.
2.' The Testimony from Respondent’s Witnesses
a.' James Key’s Testimony
James Key was a shearer operator for the Respondent.22 Key explained that a longwall
shearer is a piece of equipment with two drums, one at the head and one at the tail end. Tr. 649650. As the shearer passes from the headgate to the tailgate, the tail drum cuts the top, and the
head drum cuts the bottom. Id. The headgate operator runs the head drum with a remote control
as cuts are made, while the tailgate operator does the same with the tail drum. Tr. 650-52. The
remotes have stop buttons that can turn off, but not de-energize, the machine. Tr. 651. Instead,
the shearer has an emergency stop that de-energizes the machine. Tr. 652.
When the shearer moves from the headgate to the tailgate, the tailgate operator typically
stands approximately six to seven feet to the right of the alarm light in the direction of the
tailgate. Tr. 653, 664. Key further testified that the alarm light was visible to the tailgate
operator, if he turned his head. Tr. 664. According to Key, the headgate operator was usually in a
variety of locations, including anywhere from right behind the tailgate operator to the back of the
head drum. Tr. 653-54, 664-65, 668. Key testified that the headgate operator could also see the
light, if he turned his head. Tr. 664.
Key testified that when the shearer moved in the opposite direction, the tailgate operator
typically stood on the head side of the drum. Tr. 655, 666-68. The headgate operator was usually
located closer to the alarm light, although neither operator remained in a certain location. Tr.
666-68. Although the light was usually visible, the operators might not have been in position to
22

Key had been employed by Mach Mining since January 2007. Tr. 647. At the time of
the citation, Key was certified as a mine examiner and mine manager. Tr. 648. Prior to that, Key
worked as a shearer operator on the longwall at American Coal’s Galatia Mine for 20 months.
Tr. 646-48. Key had twenty years of mining experience. Tr. 647.

38 FMSHRC Page 1202

see the light at any given moment. Tr. 666. Key admitted that there was not always someone
standing in front of the light during mining. Tr. 674.
Key was familiar with the methane monitor and the lights on the display. Tr. 661. Key
had worked for a different coal company with a similar longwall system, which had the monitor
in the same location. Tr. 669. According to Key, the light, which turned on when methane levels
reached one percent, was “pretty bright.” Tr. 662-63, 665. The light was approximately an inch
in circumference. Tr. 663. It was located within an enclosure that jutted out around the edges. Tr.
673. The raised edges limited the light’s visibility at certain angles from the monitor. Tr. 673-74.
b.' Johnny Robertson’s Testimony
General Manager Robertson was familiar with the methane monitor on the longwall
shearer. Tr. 720-21. Robertson testified that in one percent methane, a yellow light turned on. Tr.
722, 746. Further, given adequate ventilation, the operator merely had to stop mining to halt
methane liberation. Tr. 722. Once methane levels dropped below one percent, the operators
could resume mining. Id.
Robertson testified that Respondent had never received a citation for the location of the
auxiliary alarm light on the shearer during the prior six years when Respondent used the
longwall. Tr. 725-27. Additionally, Robertson testified that Massey Energy used the same
methane display and never received a citation during his four years as a general manager there.
Tr. 725-28. Until the instant inspection, Robertson had never heard of a citation for this issue. Tr.
729. Robertson testified that, apart from the issuance of the citation, Respondent suffered no
reported negative consequences from the location of the alarm light. Tr. 751-53. Respondent
abated the citation by ordering an alarm light and installing it on a Saturday, when the longwall
was down. Tr. 756.
Robertson testified that approximately five years before the date of the hearing, MSHA
inspector, Dean Cripps, issued a similar citation for lack of visibility on a monorail methane
monitor.23 Tr. 728-30, 749-50. Robertson testified that Cripps’ concern about the location of the
alarm light was limited to the monorail because Cripps did not issue a citation for the alarm light
on the longwall shearer. Tr. 730. According to Robertson, Cripps informed Robertson’s
supervisor, Anthony Webb, that any change in policy for the shearer methane monitors would be
accompanied by written verification from MSHA. Tr. 730, 738. Robertson testified that
Respondent never received verification in writing on this issue until the issuance of the citation.
Tr. 738-41.
Robertson further testified that two years ago, Webb and Robertson determined that
installing the light required partially dismantling the shearer, and therefore, any necessary
alterations to the alarm light would occur when the shearer was rebuilt for another mining panel.
23

Both Robertson and Bretzman referred to a prior similar citation. Tr. 728-30, 749-50.
Bretzman testified that the alarm light in the prior instance was on a stage loader, and Robertson
testified that the citation was for a monorail alarm light. Id. The particular equipment is not
determinative in the present case.

38 FMSHRC Page 1203

Tr. 730-32, 749-50. Robertson, however, admitted that Respondent did not have to rebuild the
shearer to install the light for abatement purposes. Tr. 752.
Robertson relayed his conversations with Cripps and Webb to Bretzman. Tr. 733, 739-40.
B. Analysis and Disposition
1.' Respondent had Adequate Notice of the Requirements for § 75.342(b)(2)
Respondent argues that it did not have fair notice of the standard before receiving the
citation. R. Br. 25-27. Respondent asserts that a previous MSHA inspector (Cripps) assured
Respondent that a change in policy on the methane monitors would be accompanied by written
notification. Tr. 730, 738. Respondent contends that Cripps’ assurance, coupled with a lack of
previous citations on the longwall shearer’s methane monitor, establish that Respondent did not
receive fair notice of the standard.
Due process considerations prevent the adoption of an agency’s interpretation of a
regulation that “fails to give fair warning of the conduct it prohibits or requires.” LaFarge North
America, 35 FMSHRC 3497, 3500-01 (Dec. 2013)(citing Gates & Fox Co. v. OSHRC, 790 F.2d
154, 156 (D.C. Cir. 1986)). The Commission has held that adequate notice is provided where a
regulation has clear meaning and is not inconsistent with MSHA’s Program Policy Manual
(PPM). Jim Walter Res., Inc., 28 FMSHRC 579, 594-95 (Aug. 2006). Where a regulation is not
expressly defined, the Commission has found adequate notice where clarification is found in
MSHA policy publications. See e.g., Dolese Brothers Co., 16 FMSRHC 689, 693-94 (Apr.
1994)(where MSHA’s PPM and a policy letter clarified the applicable standard).
Here, the language of the regulation is clear when it states that the “[t]he warning signal
device of the methane monitor shall be visible to a person who can deenergize electric equipment
or shut down diesel-powered equipment on which the monitor is mounted.” § 75.342(b)(2). This
standard is further explained in MSHA’s Program Policy Manual (PPM) for machines operated
by remote controls. Thus, even assuming some ambiguity in the regulatory language, the PPM
was sufficiently clear regarding the requirements of the standard. See Coal Employment Project
v. Dole, 889 F. 2d 1127, 1130 n. 5 (D.C. Cir. 1989)(PPM, although not binding, is an accurate
guide to current MSHA policies and practices); accord Mettiki Coal Corp., 13 FMSHRC 760,
766-67 & nn. 6 & & (May 1991). For such machines, the PPM requires that methane warning
devices be installed “in such a location that [it] can be readily seen or heard by…the machine
operator…at all locations from which the machine is operated.” V MSHA, U.S. Dep’t of Labor,
Program Policy Manual, Part 75.342 at 41(2015) (emphasis added). I find that the plain
language of the regulation, coupled with the accompanying explanation in the PPM, provided
clear and fair notice to Respondent regarding the interpretation of the cited standard. That is,
MSHA requires that methane warning devices for remote-controlled machinery be visible from
all locations from which the operator is located. 30 C.F.R. 75.342(b)(2).
Respondent’s argument that it detrimentally relied on inspector Cripps’ assurances that a
change in policy on the methane monitors would be accompanied by written notification is not
persuasive. Essentially, Respondent argues that MSHA should be estopped from issuing a

38 FMSHRC Page 1204

citation on the methane warning light on the longwall shearer because of Cripps’ assurances and
lack of previous enforcement. The Commission has declined to apply equitable estoppel against
the government, or in this case, its agents. King Knob Coal Co., 3 FMSHRC 1417, 1421 (June
1981). Generally, “those who deal with the Government are expected to know the law and may
not rely on the conduct of government agents contrary to law.” Heckler v. Community Health
Services, 467 U.S. 51, 63 (1981). The Commission has held that “an inconsistent enforcement
pattern by MSHA inspectors does not prevent MSHA from proceeding under an application of
the standard that it concludes is correct.” Mach Mining, 34 FMSHRC 1769, 1774 (Aug. 2012)
(citing Austin Powder Co., 29 FMSHRC 909, 920 (Nov. 2007)).
I have credited Bretzman’s testimony that MSHA requires visible alarm warnings on
methane monitors on longwall shearers. Bretzman recognized an alleged violation and verified
the applicability of the regulation with his supervisor at MSHA. Tr. 444. I have found that the
plain language of the regulation, coupled with the accompanying explanation in the PPM,
provided clear and fair notice to Respondent regarding the interpretation of the cited standard.
Accordingly, I conclude that Respondent had adequate notice of the requirements of 30 C.F.R. §
75.342(b)(2).
2.' The Violation of § 75.342(b)(2)
Section 75.342(b) provides that the warning signal device of the methane monitor must
be visible to a person who can de-energize the equipment on which the monitor is mounted. 30
C.F.R. § 75.342(b)(2). The regulations require the monitor to give this alarm signal when
methane concentrations reach one percent. 30 C.F.R. § 75.342(b)(1). At that point, the miner
must de-energize or shut down the equipment. 30 C.F.R. § 75.342(b)(2).
The Commission and the D.C. Circuit have previously examined the application of this
regulation to longwall methane monitors. Consolidation Coal Co., 136 F.3d 819 (D.C. Cir. 1998)
affirming Consolidation Coal Co., 18 FMSHRC 1903 (Nov. 1996). The D.C. Circuit determined
that a visible alarm is essential because it alerts miners of dangerous concentrations of methane
should other safety measures fail. Id. at 822. The warning functions as a fail-safe to ensure that
miners respond to potentially hazardous situations. Id. at 823. The D.C. Circuit Court concluded
that the Secretary’s interpretation of § 75.342(b) which requires that a warning signal be visible
at all times to a miner who can “react to increasing methane levels and, if necessary, de-energize
mining equipment,” was appropriate. Id. at 822.
Respondent attempts to distinguish the present case from Consolidation Coal on the basis
of notice. R. Resp. Br. 25-26. In that case, the Commission found actual notice where MSHA
reiterated the requirement in seven meetings over the course of one year. Consolidation Coal,
Co., 18 FMSHRC at 1907. Those facts do not prevent a finding of fair notice in the present case,
for the reasons explained above.
I credit Bretzman’s testimony that the longwall shearer operators would not be able to see
the alarm light from various positions. Tr. 446. Although Key described the warning light as
bright, both he and Bretzman testified that it was quite small, only up to an inch in
circumference. Tr. 412, 661. Furthermore, the control panel in which the alarm light was

38 FMSHRC Page 1205

contained had raised edges, which further limited its visibility at certain angels. Tr. 673-74.
Finally, Bretzman credibly testified that the operators worked up to twenty-five feet from the
warning light. Tr. 415.
Respondent argues that because Bretzman did not observe an operator working thirty feet
from the monitor, the citation was inappropriate. R. Resp. Br. 26. However, Key corroborated
Bretzman’s testimony that the operators were not stationary during mining. Tr. 664-668.
Further, Key acknowledged that the alarm was not in the line of sight of the operators at certain
locations or angles. Tr. 666. Bretzman determined that the operator could not see the monitor
during normal mining operations unless he was in the direct line of sight of the readout. Tr. 409,
412, 441. Therefore, I find that the Secretary proved by a preponderance of the evidence that the
small methane alarm light on the longwall shearer was not visible from all locations where the
machine was operated, to a person, especially a machine operator working up to twenty-five feet
from the control panel, who could de-energize the equipment. Indeed, a light the size of a quarter
and located within the enclosure described, would not be visible at much shorter distances.
Respondent failed to rebut the Secretary’s case by establishing that a person could see the alarm
light from all locations from which the machine was operated remotely. Further, Bretzman could
not recall anyone from Respondent telling him that the indicator light could be seen by a person
who could de-energize the machine. Tr. 446. Accordingly, I find a violation of § 75.342(b)(2).
Bretzman determined that because production had halted and because he had no evidence
of methane present at the time of the citation, the violation was unlikely to result in an injury. Tr.
410, 420. Under extant Commission precedent, I lack authority to modify the non-S&S
designation and make it S&S.24
3.' Respondent’s Negligence was Appropriately Designated as Low
The Secretary argues that Respondent’s negligence was low, citing the lack of previous
enforcement as a mitigating factor in the inspector’s analysis. P. Post Hr’g Br. 3-4 (quoting Mach
Mining, LLC, 34 FMSHRC 1769, 1744 (Aug. 2012), citing Austin Powder Co., 29 FMSHRC
909, 920 (Nov. 2007)). In determining the weight to be given the lack of enforcement, I note that
Commission judges are not bound to apply the levels of negligence definitions that are
designated by potential mitigating circumstances in the Secrtary’s regulations. Brody, 37
FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. While the Commission has held that
inconsistent enforcement is not a defense to liability, it is relevant to the determination of
negligence, and may be cited as a mitigating factor in reducing said negligence. Mach Mining, 34
FMSHRC at 1744 (citing King Knob Coal Co., 3 FMSRHC 1317, 1422 (June 1981), aff’d sub
nom Mach Mining, LLC v. FMSRHC, 809 F.3d 1259 1259 (D.C. Cir. 2016) (inconsistent
enforcement of a regulation may reduce the level of negligence and detrimental reliance on
MSHA’s incorrect interpretation of a regulation is properly considered in mitigation of penalty).
Both this citation and the previous citation involve violations of the same standard. While
the similarity between the citations might result in comparable negligence determinations, the
24

1996).

Mechanicsville Concrete, Inc. t/a Materials Delivery, 18 FMSHRC 877, 880 (June

38 FMSHRC Page 1206

precedent cited above permits consideration of inconsistent prior enforcement at this juncture to
determine the appropriate level of negligence. I credit Robinson’s testimony that MSHA
overlooked the violation of §75.342(b)(2) on the instant shearer for years before issuing a
citation on the date of the inspection. Tr. 725-27. Given the lack of previous enforcement, I find
that the Secretary properly designated Respondent’s level of negligence as low.
4.' Civil Penalty for Citation No. 8432319
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the
originally proposed penalty of $117 will not affect Respondent’s ability to remain in business.
MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed
MSHA’s gravity and negligence determinations. After consideration of the penalty assessment
criteria set forth in section 110(i) of the Act, I assess a $117 civil penalty against the Respondent
for Citation No. 8432319.
VII. Citation No. 8439454
A. Findings of Fact
1.' Inspector Stanley’s Testimony
On August 15, 2013, Stanley returned to the mine to conduct a regular inspection of the
surface of the property, including any underground equipment found on the surface. Tr. 472.
Stanley inspected a Kubota 10, a two-seater diesel Road Taxed Vehicle (RTV), used to transport
men or material underground. Tr. 473. Stanley did not know who operated the Kubota, but
thought that it was Schilke. Tr. 499. Stanley examined the steering components of the vehicle as
the operator turned the steering wheel. Tr. 474, 482. Stanley inspected the Kubota again in the
repair shop. Tr. 486. Stanley testified that both times, he observed impermissible play in the
lower left ball joint. Id.
Stanley observed and concluded that there was excessive wear and play in the lower left
ball joint for three reasons. Tr. 474-75, 482. First, the tires did not simultaneously turn with the
steering wheel. Tr. 474-75, 508. Stanley described this as hesitation or delay in the steering. Tr.
474-75. Second, there were areas of shine on the ball joint. Tr. 474, 508. Stanley observed that
the shiny area was more than an eighth of an inch. Tr. 483. He testified that this shine occurs
when the tie-rod end wears on the ball. Tr. 474. Finally, Stanley observed that there was in
excess of an eighth of an inch of play on the joint. Tr. 474, 480.
Stanley did not use a dial indicator or any other tool to assist his measurements during
either inspection. Tr. 483, 487, 507. Instead, he examined for separate movement in steering
components. Tr. 474-75, 487, 498. Stanley testified that an excess of an eighth of an inch of play
contravenes MSHA out-of-service criteria. Tr. 507-08. Stanley was unable to verify where the
standard for an eighth of an inch of play could be found in writing. Tr. 511-12. Stanley further
testified that the day before the hearing, he learned from Kubota’s service personnel that a
steering linkage component with any play must be replaced immediately. Tr. 475, 507, 510.

38 FMSHRC Page 1207

After observing excessive wear on the ball joint of a Kubota vehicle, inspector Stanley
issued Citation No. 8439454 for a violation of 30 C.F.R. § 75.1914(a), which requires that all
diesel equipment be maintained in proper operating condition. Tr. 465, 476. Stanley determined
that the violation was S&S and contributed to a loss of steering hazard that was reasonably likely
to result in a lost workdays or restricted duty injury for one miner as a result of Respondent’s
moderate negligence. P. Ex. 107; Tr. 476-77. The Secretary proposed a penalty of $1,026.
The Kubota was driven at speeds up to approximately 21 miles per hour (mph) in the
mine. Tr. 500, 503. When underground, the Kubota was driven on a rough, concrete travel road,
with potholes and a steep decline of approximately 3000 feet. Tr. 477, 501-02. Stanley described
the slope as having at least an eight-percent grade. Tr. 478. He testified that an excessively worn
and unrepaired ball joint will cause “the steer tire [to] most likely fold over and lay down…
[resulting in a] complete loss of steering on the vehicle.” Tr. 477. Stanley determined that such a
hazard was likely to cause injury to the Kubota operator or one of the pedestrian miners clearing
coal near the conveyor belt along the travelway. Tr. 477-79. The latter type of injury would
result from the Kubota either striking a miner or pinching a miner against other structures. Tr.
478. Stanley testified that the brakes on the Kubota were in good working condition, and that
operators generally drove at speeds consistent with road conditions. Tr. 499-500.
Stanley opined that the condition needed more than one day to develop. Tr. 479. He
further testified that the wear would not likely be discovered during weekly inspections. Id.
Stanley did not recall whether Respondent’s miners made any statements about mitigating
factors when he issued the citation. Tr. 488. Without evidence indicating how long the condition
actually existed, Stanley classified the Respondent’s negligence as moderate. Tr. 479.
The citation was abated later that day when the tie-rod end and the ball joint were replaced.
Tr. 480, 488. Stanley did not take measurements after abatement, although he did go under the
Kubota to examine the repair. Tr. 498.
2.' The Testimony from Respondent’s Witness
a.' Schilke’s Testimony
As noted, Schilke accompanied Stanley during the inspection. Tr. 560. Schilke testified
that he did not recall if Stanley initially examined the vehicle. Tr. 563. Schilke then testified that
Stanley observed the steering while Jeff Wilkins, the Kubota operator, was directed to turn the
steering wheel. Tr. 560, 563-64.
According to Schilke, after Stanley’s inquiry, Wilkins told Stanley that Wilkins had
checked the Kubota prior to use and found no issues with the steering. Tr. 560-61, 624, 627.
Stanley then directed Wilkins to drive the Kubota to the repair shop. Tr. 561-62. Schilke
observed no problems with the steering as Wilkins drove the vehicle to the shop. Id., Tr. 624. At
the shop, the vehicle was lifted and the ball joints were examined. Tr. 561, 567. There Schilke
observed movement in the ball joint, although neither he nor Stanley used an instrument to
quantify how much movement was present. Tr. 561-62, 567-68, 621, 625. Schilke opined that the
movement was less than an eighth of an inch, or less than the thickness of a quarter. Tr. 568, 622,
625. Schilke conceded that the movement would get worse over time if not repaired. Tr. 625.

38 FMSHRC Page 1208

Schilke testified that the Kubota that Wilkins drove was very similar to the Kubota that
Schilke drove. Tr. 565-66; see R. Ex. 5 (photograph of Schilke’s Kubota). Schilke described the
brakes on the Kubotas as “pretty good.” Tr. 566. The Kubotas have hydrostatic transmissions,
which slow down the vehicles when pressure is removed from the gas pedal. Id. Finally, Schilke
described the concrete slope in the mine as rougher than an interstate, with a rutted and grooved
surface. Tr. 636.
When asked on direct examination to offer any mitigating circumstances, Schilke
testified that the movement of the ball joint had little impact on the steering. Tr. 569. He also
mentioned that any impact on steering was further reduced by the soft tread of the tires on the
soft clay floor of the mine. Id. Finally, Schilke reiterated that Wilkins had driven the Kubota
down to the seals of the mine and back, and that Wilkins had found no difficulty with steering.
Id.
Schilke also testified that he spoke with a mechanic for Respondent after Stanley issued
the citation. The mechanic did not testify at hearing. Schilke testified that the mechanic told him
that he would not have allowed an unsafe Kubota to go underground. Tr. 627, 637. According to
Schilke’s testimony, the mechanic was of the opinion that the Kubota was safe because Wilkins
had told him that the steering worked fine. Id. Schilke further testified that the mechanic told him
that although the Kubota manufacturer wants no movement in the ball joint, in practice, vehicles
that are used in a mine experience similar movement. Tr. 561-62, 566. Schilke later conceded on
cross-examination that the steering in a private vehicle is very different from the steering in a
Kubota. Tr. 620.
b.' Jeff Wilkins’ Testimony
Jeff Wilkins was a mine examiner for Respondent.25 Tr. 683. Wilkins operated the
Kubota in question every day. Tr. 685-686, 697. On the date of the inspection, Wilkins
conducted a pre-operational check of the Kubota. Tr. 687. This check included an examination of
the steering, which he performed by turning the wheel back and forth to ascertain any slack.26 Tr.
687-88. Wilkins stated that a visual inspection of the ball joint while the wheel was turned was
not necessary to detect movement in the ball joint. Tr. 688-89. Instead, the movement would
manifest as play in the steering wheel. Id. Wilkins testified that without turning the wheel, he
would not notice wear in the ball joint, unless it was substantial. Tr. 699. Wilkins claimed that he
would notice gradual slack in the Kubota’s steering over time. Tr. 698. Wilkins further testified,
consistent with Schilke’s account, that Wilkins did not notice any problems with the steering
during his pre-operational check of the vehicle. Id.
25

Wilkins was employed with Respondent for seven and a half years. Tr. 683. Apart from
his position as an examiner, Wilkins worked as an outby laborer and foreman. Id. Prior to his
employment with Respondent, Wilkins worked at three separate mines: Willow Lake Mine,
Eagle Valley Mine, and Sahara Mine. Tr. 683-84. Wilkins was a certified examiner with an
electrical card. Tr. 685.
26

When the wheel turned, suspension rose and descended, pivoting the ball joint that was
threaded in the tie rod. Tr. 701-03. The ball joint had a nut and cotter pin that were intact. Id.

38 FMSHRC Page 1209

After concluding his pre-operational check, Wilkins drove his Kubota underground for
approximately one hour. Tr. 689-90. He described the underground path driven as a fairly steep
slope, with smooth and rough patches, with rough conditions encountered where rocks fell off
beltlines and along intake ways. Tr. 695-96. He testified that the Kubota was a slow-moving
vehicle and he experienced no problems with the steering or the brakes. Tr. 690-91, 701.
Wilkins contrasted his trip on the day of the citation with an earlier experience that he
had driving a Kubota with faulty steering. Tr. 692. In the later instance, Wilkins noticed the
steering arm loosen and jerk when he drove over a rough area. Id. He testified that without
repair, such a steering arm may disconnect from the steering jack, forcing the vehicle to halt
instantly. Id. Wilkins testified that the Kubota automatically stops when the wheel is turned and
the operator removes his foot from the gas. Tr. 693.
Contrary to Schilke’s testimony, Wilkins testified that he did not operate the Kubota
around Stanley. Tr. 696. Rather, Wilkins testified that he left the Kubota after returning to the
surface. Tr. 693-94. Wilkins was not present for Stanley’s initial inspection of the vehicle or for
the inspection that occurred in the repair shop. Id. When Wilkins returned to the vehicle, Stanley
and Schilke had already decided to relocate the vehicle to the repair shop. Id.
B. Analysis and Disposition
1.' The Violation of § 75.1914(a)
Section 75.1914 imposes 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 standard. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct.
1979). The Kubota cited by inspector Stanley was mobile equipment. It is undisputed that such
mobile equipment was in service when cited. The dispute is whether the Kubota was maintained
in safe operating condition. I find that the Kubota was not maintained in safe operating condition
and was not removed from service. Accordingly, I find the violation.
Equipment is in unsafe operating condition when a reasonably prudent person familiar
with the factual circumstances surrounding the alleged hazardous condition, including any facts
peculiar to the mining industry, would recognize a hazard warranting corrective action within the
purview of the applicable regulation. Ambrosia Coal & Construction, 18 FMSHRC 1552, 1557
(Sept. 1996) (citing Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (applying
identical standard in underground coal mines)).
The Commission has recognized that movement in steering linkage ball joints alone can
rise to the level of a hazardous defect. See LaFarge North America, 35 FMSHRC at 3500
(applying § 56.14100(c), which concerns defects that make continued operation hazardous, and
remanding to determine amount of movement in ball joints and whether such amount constitutes
a hazardous defect). Stanley credibly testified that MSHA finds violations where there is excess
play in the ball joint. Tr. 507. Both Stanley, and through Schilke’s hearsay admission,
Respondent’s mechanic, reported that the Kubota manufacturer requires no movement in the ball
joint. Tr. 475, 561. In addition, I take administrative notice of the North American Standard Out-

38 FMSHRC Page 1210

of-Service Criteria, issued by the Commercial Vehicle Safety Alliance.27 This manual provides
that a vehicle is to be taken out of service if any of its ball and socket joints exhibit “any motion,
other than rotational, between any linkage member and its attachment point of more than 1/8
inch (3.2 mm) measured with hand pressure only” or if any tie rod exhibits “any looseness in any
threaded joint.” Commercial Vehicle Safety Alliance, North American Standard Out-of-Service
Criteria, at 44 (revised April 2010).
I credit inspector Stanley’s testimony that there was impermissible movement in the
lower left ball joint. A simple visual inspection by Stanley as the operator turned the wheel
revealed a hesitation in steering, while the shine on the ball joint itself supplied physical
evidence of wear. Tr. 474. Schilke corroborated the play in the ball joint when recalling the
examination conducted in the repair shop. Tr. 561-62. The operator, Wilkins, used the Kubota
after conducting a pre-operational examination, which he admits did not include a visual
examination of the ball joint, and failed to reveal the play in the ball joint. Tr. 687-89.28 Neither
side disputes that, if left unchecked, the movement would grow worse over time. Tr. 477, 625.
Accordingly, I find that excess play in the ball joint as visually observed by inspector Stanley
constitutes a hazard making continued operation of the Kubota unsafe and requiring its removal
from service.
I discredit the recollection of Respondent’s witnesses concerning the ball joint
examination. Respondent’s witnesses contradict themselves and each other with regard to the
Kubota’s inspection. Schilke alleged that he could not recall Stanley’s examination of the
Kubota’s steering, and then immediately proceeded to describe the inspection. Tr. 563-64.
Although Wilkins did not remember participating in the inspection, both Stanley and Schilke
confirmed the participation of Wilkins during Stanley’s inspection. Tr. 482, 560-64, 693.
Based on my review of the testimony, I find that the Secretary proved by a preponderance
of the evidence that Respondent violated § 75.1914(a) by failing to maintain the Kubota in safe
operating condition, and by failing to remove it from service.

27

This manual is relied on and cited by the United States Department of Transportation.
49 C.F.R. Pt. 385.4(b)(1)(2013); 79 F.R. 27766, (May 15, 2014). Under Commission precedent,
judicial notice can be taken of the existence or truth of a fact or other extra-record information
that is not the subject of testimony, but is commonly known, or can safely be assumed, to be true.
Union Oil, 11 FMSHRC 289, 300 n.8 (Mar. 1989).
28

Although Respondent was not cited for an inadequate pre-operational inspection, I
have determined in previous cases that a proper pre-operational inspection of a ball joint requires
one person monitoring the steering linkage while another person moves the steering wheel. Extra
Energy, 36 FMSHRC 2733, 2743 (Oct. 2014)(ALJ). Wilkins failed to conduct a visual
inspection of the ball joint while another person turned the wheel, or vice versa.

38 FMSHRC Page 1211

2.' The Violation was Significant and Substantial
a.' There was a Violation of a Mandatory Safety Standard
For the reasons explained above, I find the underlying violation of mandatory safety
standard § 75.1914(a).
b.' The Violation Contributed to a Discrete Measure of Danger to Safety
My finding of a violation supports a finding of a discrete measure of danger to safety as
the standard violated requires a failure to maintain mobile equipment in safe operating condition.
Accordingly, if the Kubota is not maintained in safe operating condition, there is necessarily a
discrete measure of danger to safety. This conclusion is supported by the fact that MSHA, the
Kubota manufacturer, and the North American Standard Out-of-Service Criteria manual require
that vehicles with ball joints exhibiting excessive wear must be immediately repaired or removed
from service. Tr. 507, 475. Furthermore, Stanley credibly testified that such a ball joint, if left
unrepaired, would fail and result in compromised steering and control over the vehicle. Tr. 477.
Accordingly, I find that the second Mathies factor is satisfied.
c.' The Violation Contributed to a Hazard That was Reasonably Likely to
Result in Injury
Regarding the third Mathies factor, the Secretary demonstrated that the hazard
contributed to by the violation, i.e., loss of steering of a Kubota within the mine, was reasonably
likely to result in an injury. Schilke and Wilkins testified that Kubotas are slow to a stop when
pressure is removed from the gas pedal. Tr. 499, 692-93. However, a Kubota driven at speeds up
to approximately twenty-one miles an hour on rough mine roads at an eight degree slope with
undiscovered excess wear on the ball joint, is reasonably likely to contribute to compromised
steering and loss of control of the Kubota, which hazard is reasonably likely to result in injury to
the driver or injury to a miner working nearby. The driver is exposed to injury due to the
excessive wear in the ball joint, which contributes to a compromised or loss-of-steering-control
hazard that would likely result in collision with an object or rib and injury to the driver. Further,
Stanley’s testimony credibly establishes that miners working along the conveyer belt adjacent to
the travelway were exposed to injury from a collision due to the loss of control of the Kubota. In
these circumstances, the loss-of-control hazard contributed to by the violation, was reasonably
likely to result in injury during continued operation of the Kubota with excessive wear in the ball
joint.
d.' There was a Reasonable Likelihood That the Injury in Question Will Be of a
Reasonably Serious Nature
With regard to the fourth Mathies factor, I find a reasonable likelihood that any such
injury would be of a reasonably serious nature. The loss-of-control hazard contributed to by the
failure to maintain the Kubota in safe operation condition was reasonably likely to result in a
collision with associated serious or fatal injury to the Kubota operator or pedestrian miners
working nearby. The Kubota is large enough to seat two people and has a dump bed in the back.

38 FMSHRC Page 1212

See R. Ex. 5. A collision with a miner, the rib, or other equipment would likely be serious or
fatal. A miner struck by the Kubota and pinned against the vertical supports within the mine
would likely suffer serious injuries. Accordingly, the Secretary has shown a reasonable
likelihood that an injury resulting from the hazard contributed to by the violation was reasonably
likely to be serious or fatal.
3.' Respondent’s Negligence was Appropriately Designated as Moderate
As discussed above, a reasonably prudent operator engaging in appropriate buddy-checks
of steering linkage components should have been aware of the cited condition. Based on the
testimony and briefs, I do not find considerable mitigating circumstances that would justify
reducing the negligence designation from moderate to low. Respondent’s assertion that the soft
floor of the mine would reduce the impact of malfunctioning steering is not persuasive. There
was no evidence that the floor disturbed the speed or performance of a Kubota in safe operating
condition. Therefore, I discredit Schilke’s inference that the same floor would hinder a Kubota
with compromised steering. Tr. 569. Further, the assertion that the Kubota’s operator (Wilkins)
noticed no defect in the steering that day does not eliminate the likelihood of the danger. Rather,
the insufficient examination procedure supports at least a moderate negligence designation.
Respondent’s Kubota operator failed to perform any visual examination the vehicle, much less
while another person turned the wheel. Tr. 699. In these circumstances, I find that the Secretary
properly designated the Respondent’s level of negligence as moderate.
4.' Civil Penalty for Citation No. 8439454
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the
originally proposed penalty of $1,026 will not affect Respondent’s ability to remain in business.
MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed
MSHA’s gravity, negligence, and S&S determinations. After consideration of the penalty
assessment criteria set forth in section 110(i) of the Act, I assess a $1,026 civil penalty against
the Respondent for Citation No. 8439454.
VII. Citation No. 8452203
A. Findings of Fact
1.' Inspector Horseman’s Testimony
After observing a missing portion of an emergency lifeline, MSHA inspector Steven Paul
Horseman29 issued Citation No. 8452203 for a violation of 30 C.F.R. § 75.380(d)(7)(i), which
29

At the time of hearing, inspector Horseman had been employed with MSHA for one
year and eleven months. Tr. 515. Apart from a four-year stint with a phone company, Horseman
had worked in mining since 1991. Tr. 516. He has experience in longwall and continuous mining
and has held various positions, including equipment operator, examiner, IT specialist, electrician,
and mine supervisor. Id.

38 FMSHRC Page 1213

requires that lifelines be installed and maintained throughout the entire length of the escapeway.
Tr. 465, 476. Stanley determined that the violation was S&S and contributed to an inability-totimely-escape hazard that was reasonably likely to result in injuries affecting thirty miners as a
result of Respondent’s moderate negligence. Tr. 156, 162-63. The Secretary proposed a penalty
of $13,268.
On September 8, 2013, Horseman conducted an EO2 section 103(i) spot inspection,
while being accompanied by safety manager Schilke. 30 U.S.C. §813(i); Tr. 517; P. Ex. 109. On
the way toward headgate seven, Horseman lost sight of the lifeline along the East Mains travel
road. Tr. 517. He asked Schilke to pull over and the two of them located the lifeline one entry
over in the secondary escapeway. Tr. 517, 529. They returned to their vehicle and followed the
lifeline until they found a break in the line. Id. The lifeline dangled from the ceiling,
approximately five feet above the ground. Tr. 517-18. The other end of the line was located
approximately 160 feet away. Tr. 518. Horseman measured the gap between the ends of the
lifeline, while Schilke found replacement line. Id. With the extra line, Horseman and Schilke
connected the two ends of the lifeline. Id., 525-26.
Horseman issued Citation No. 84522036 for a § 75.380(d)(7)(i) violation. Tr. 519.
§75.380(d)(7)(i) requires lifelines to be installed and maintained throughout the entire length of
the escapeway. Id. A lifeline is typically a durable, nylon rope. In the event of an emergency, a
lifeline provides disoriented miners with a tactile method of escape if the entry fills with smoke.
Tr. 520. The lifeline has cones and reflective lights that direct the miner towards the exit near the
slope. Tr. 543-45; 30 C.F.R. § 75.380(d)(7)(iii-v).
Horseman opined that all lifeline citations are not automatically S&S. Tr. 526. He
designated the instant violation as S&S because he determined that the violation contributed to a
hazard that was reasonably likely to result in fatal injuries affecting 30 miners. Tr. 523-24. With
respect to likelihood, Horseman testified that the lifeline would only be used in the event of an
emergency. Tr. 523. If a fire or explosion occurred, Horseman testified that it would not be
unusual for ventilation control devices to fail. Id. With failed ventilation, Horseman testified that
miners would inhale toxic fumes from smoke, or find themselves in a buildup of carbon
monoxide. Id. Even assuming sufficient time to don self-contained self-rescuers (SCSRs),
Horseman noted the reduced efficacy of these devices should the miners panic or fumble during
the emergency. Tr. 523. He recalled an incident from his own experience as a miner when a
smoke-filled entry limited visibility to the point where “you could not see your hand in front of
your face.” Tr. 521. He testified that in such conditions, 160 feet of missing lifeline would
prevent a miner from locating the other end of the lifeline and escaping the mine. Id.
Additionally, he testified that the miners may not have been aware that the lifeline changed
entries, which left them susceptible to further disorientation. Tr. 522. Given these conditions,
Horseman believed that fatal injuries were reasonably likely. Tr. 523. With respect to the number
of persons affected, Schilke informed Horseman that three loading crews comprised of ten
miners apiece were working inby the missing lifeline. Tr. 524.
Horseman designated the Respondent’s negligence as moderate. Id. He made this
designation because he could not determine how long the condition existed. Tr. 524-25. He
conceded that of the 35,000 feet of secondary escapeway, he found only 160 feet of the lifeline

38 FMSHRC Page 1214

that was missing. Tr. 542-43. He confirmed that Respondent held escape drills for miners to
familiarize themselves with using the escapeways. Tr. 547. Additionally, Respondent’s vehicles
had tethers. Id. A tether allows miners to stay attached to one another in case a single miner
grows disoriented. Tr. 547-49.
2.' The Testimony from Respondent’s Witnesses
a.' Schilke’s Testimony
Schilke confirmed that a portion of the lifeline was missing in the East Mains #1
travelway. Tr. 570-72. Schilke did not know how the condition occurred, or for how long it had
existed prior to discovery by Horseman. Tr. 601-02. Schilke admitted that he traveled that route
daily and had not discovered the condition. Tr. 615. The mine records did not contain any
notations regarding the missing lifeline. Tr. 602. The cited condition was in an area where
tractors were driven all day long, including the third-shift tractors, which had passed through the
area before the inspection. Tr. 602-03. Schilke did not find the disconnected section of the
lifeline and speculated that it could have been dragged away by a passing vehicle. Tr. 612-15.
The remaining ends of the lifeline, normally at shoulder height, were on the ground. Tr. 613-14.
Schilke testified about the location of the missing lifeline. If one walked towards the exit of the mine, the
lifeline primarily followed the direction of the travel road. Tr. 600. The travel road headed north before turning west
into the #3 entry of the East Mains #1 route. Id. The lifeline did not turn with the travel road, but continued into the
#2 entry before turning west. Tr. 601. This detour ran parallel to the travel road and past three crosscuts. Id. The gap
in the lifeline occurred within this detour in the #2 entry. Tr. 578, 599-601. The detour turned south down the #29
crosscut to rejoin the travel road in the #3 entry. Tr. 597-601; see R. Ex. 11. A miner, who followed the

lifeline into the #2 entry, needed to walk through two crosscuts to find the other end of the line.
Tr. 574-75.

Schilke testified that the miners were aware of the detour because the lifeline had
followed that path since the area was developed. Tr. 610. He conceded, however, that miners
would not be expecting the section of the lifeline to be missing. Tr. 611. Schilke opined that
miners, who encountered a gap in the lifeline, would continue forward following the flow of air
rather than choose to retrace their path to rejoin the travel road. Tr. 608. However, he admitted
that in an emergency, the direction of air can change, thus preventing miners from using air
courses as directional indicators. Tr. 616. Nonetheless, he opined miners would know which
direction they were walking because the mine graded up as it headed outby. Tr. 616-17.
According to Schilke, if the miner could not find the other end of the line, he or she
would eventually hit stoppings placed west and north of the detour through the #2 entry.30 Tr.
596, 608. Thus, disoriented miners would eventually be forced to turn south or return east in the
30

There was a stopping in the #2 entry inby the # 29 crosscut, which prevented miners
from walking further westward. Tr. 595-96. There were additional stoppings that blocked access
to the crosscuts and entries to the north of the #2 entry. One of the stoppings in the crosscuts
north of the #2 entry had a man door. Tr. 596. A man door allow miners to cross through a
stopping. Id. During normal production, man doors are closed. Tr. 595-96.

38 FMSHRC Page 1215

direction from which they came. Tr. 596-98, 608. When choosing between these options, Schilke
opined that the miners would not return east in the direction from where smoke traveled. Tr. 608.
The remaining direction, south, would lead the miners to the travel road. Tr. 596-97, 608.
The self-contained self-rescuers (SCSRs) are equipped to last from forty-five minutes to
an hour. Tr. 617. Schilke recalled that the nearest self-rescuer caches were approximately 2,500
feet inby the missing lifeline, and 3,000 feet outby the missing lifeline. Tr. 640-42. As noted, the
height of the mine is generally nine to ten feet. Tr. 619. Schilke estimated that it would take
approximately an hour to travel about 5,700 feet, although some miners may move more slowly
than others. Tr. 619, 637, 644. Additionally, disoriented or lost miners may take longer to reach
a cache. Tr. 644-45. According to Schilke, the distance from the three working sections to the
missing lifeline was 15,000 feet. Tr. 618. The distance between the missing lifeline and the slope
exit of the mine was about another 15,000 feet. Tr. 617-18. On foot, it would take a miner nearly
three hours to reach the slope from the missing lifeline. Tr. 619, 637.
Schilke opined that directional signals on the lifeline and Respondent’s safety protocols
reduced the danger of the violation. On either end of the missing lifeline section, Respondent’s
lifeline had cones and reflectors that indicated the direction towards the exit. Tr. 572-73, 614.
The reflectors were visible in the cited area. Tr. 573-74. Reflectors were spaced every twentyfive feet and were attached to either a cone or the lifeline itself. Tr. 573. Schilke recalled that the
cones were spaced every 100 feet. Tr. 573. The cones were situated on the lifelines so that a
miner’s hand would slide smoothly over the tip of the cone towards the base as the miner
traveled towards the exit. Tr. 573. If a miner traveled in the wrong direction, the miner’s hand
would stop against the base of the cone. Tr. 573.
Additionally, Schilke testified that escaping miners would not rely solely on lifelines
during an emergency situation. Tr. 609. He testified that in the event of an emergency, the ideal
method for escape was by vehicle. Tr. 574, 604-05, 609. He further testified that an escaping
vehicle would continue along the main travelway, rather than detour into the adjacent entry to
follow the lifeline. Tr. 574. Depending on the level of smoke, however, Schilke was uncertain
whether the vehicle could drive down the secondary escapeway. Tr. 611-12. Schilke opined that
a pedestrian miner would exit the mine along the main travelway, rather than follow the lifeline.
Tr. 574-576. He conceded, however, that a miner might become disoriented, panic, and become
lost in an emergency. Tr. 611, 644-45.
Schilke confirmed that Respondent held escapeway drills every ninety days and
instructed miners to use tethers to keep together during a mine evacuation. Tr. 603-605, 609,
611. Additionally, he testified that signs labelling the crosscut numbers would indicate a miner’s
location. Tr. 573-74. Schilke maintained that these precautions, combined with the miner’s
knowledge of the mine’s topography and air flow, were sufficient for miners to find their way
out of the mine in an emergency situation. Tr. 608-10.

38 FMSHRC Page 1216

B. Analysis and Disposition
1.' The Violation of § 75.380(d)(7)(i)
Section 75.380(d)(7)(i) provides that a continuous directional lifeline must be installed
and maintained throughout the entire length of each escapeway. 30 C.R.F. § 75.380(d)(7)(i).
Neither side contests that a portion of the lifeline was missing. Tr. 572; see R. Ex. 14 (missing
lifeline denoted in red). The missing portion of the line was approximately 160 feet. Tr. 518. A A
missing portion or gap in the lifeline makes it non-continuous under the plain meaning of the
standard and creates a violation of § 75.380(d)(7)(i).
Respondent argues that the violation was not S&S because the missing portion of the
lifeline was relatively small compared to the full length of the line, and because additional safety
measures were adequate to ensure the safe evacuation of the miners.
2.' The Violation was Significant and Substantial
a.' There was a Violation of a Mandatory Safety Standard
For the reason explained above, I find the underlying violation of mandatory safety
standard § 75.380(d)(7)(i).
b.' The Violation Contributed to a Discrete Measure of Danger to Safety
With regard to the second Mathies factor, the violation created a discrete safety hazard or
measure of danger to safety. The Commission has found that an accurate description of the
hazard contributed to by an inaccessible lifeline is “the danger of not being able to access or use
the lifeline in the event of an emergency where visibility is reduced and miners must rely upon
the tangible nature of the lifeline to quickly and safely escape the mine.” Black Beauty Coal Co.,
36 FMSHRC 1121, 1124 (May 2014). This description supports the Commission’s earlier
understanding of the hazard as “miners not escaping quickly in an emergency with attendant
increased risk of injuries due to a delay in escape.” Cumberland, 33 FMSHRC at 2346, aff’d sub
nom., Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013). I find that a 160foot gap in the lifeline is a significant and substantial hindrance that contributes to the hazard of
not being able to use the lifeline to escape the mine in an emergency situation.
Respondent argues that an S&S designation is inappropriate because 160 feet of missing
lifeline is a small percentage of the length of the entire lifeline. R. Br. 20-21. The percentage of
uninterrupted line is essentially immaterial to the impact that a 160-foot break in the line would
have on escaping miners. In Black Beauty, the Commission found that 110 feet of inaccessible
lifeline was reasonably likely to contribute to an inability-to-timely-escape hazard that would
result in injury. Black Beauty, 36 FMSHRC at 1124-25. Given the greater length of missing
lifeline in the present case, I find that 160 feet of missing lifeline supports my S&S finding for
this violation.

38 FMSHRC Page 1217

Respondent also argues that its miners would use quicker alternatives to escape, and that
their knowledge of the primary escapeway would keep them on the quickest path towards the
exit, allowing them to disregard the lifeline entirely. I reject this argument. Although the
Commission has not yet defined the weight that must be given to the presence of additional
safety precautions, the Commission discounts the argument that additional safety measures
prevent an S&S finding. See Brody Mining, 37 FMSHRC at 1691 (stating that evidence of
redundant safety measures has been consistently rejected as irrelevant); Black Beauty, 36
FMSHRC at 1125 n.5 (stating that additional safety measures do not prevent a finding of S&S);
Cumberland, 33 FMSHRC at 2369 (stating that allowing redundant safety measures to provide a
defense to a finding of S&S would defeat the purpose of any safety protection, and citing Buck
Creek, 52 F.32 at 136). Thus, alternative safety protocols do not undercut the significant and
substantial contribution that violations of mandatory standards have toward discrete safety
hazards.
In the present case, I examine the impact of a missing lifeline on a miner that must rely
upon said lifeline to quickly and safely exit the mine in an emergency situation. In short, I find
that the hazard contributed to by the violation was the prevention of a quick escape from the
mine by miners who were entitled to rely on a continuous lifeline when escaping the mine during
an emergency. Accordingly, the second Mathies factor is satisfied.
c.' The Violation Contributed to a Hazard That was Reasonably Likely to
Result in Injury
I find that the violation contributed to the hazard that miners would become lost,
disoriented, or otherwise unable to quickly escape from the mine because of a compromised
lifeline, and that such hazard was reasonably likely to result in injury. The Commission requires
its judges to examine the S&S factors for lifeline violations within the context of emergency
conditions. Cumberland, 33 FMSHRC at 2357, aff’d Cumberland Coal Res., LP v. FMSHRC,
717 F.3d 1020 (D.C. Cir. 2013). The Commission has discussed different hazards that are
reasonably likely to result in an injury because of a lifeline violation in an emergency situation.
Black Beauty, 36 FMSHRC at 1125 (inaccessible lifelines contribute to injuries that are
reasonably likely to result from hazards such as tripping or stumbling, an interruption of
ventilation, miner panic and disorientation during an emergency, and excessive smoke filling a
corridor as a result of an a fire inby). In the present case, should miners follow the lifeline into
the secondary escapeway, and should the secondary escapeway fill with smoke, visibility may be
completely compromised. Because the gap in the lifeline occurs within the secondary escapeway,
miners will be unable to use the lifeline to navigate out of the secondary escapeway in conditions
of reduced visibility, re-enter the primary escapeway and continue exiting the mine via the
primary escapeway. Tr. 522; R. Ex. 11. Inspector Horseman testified that he personally
experienced a situation where smoke within the mine was so thick that he could not see his hand
in front of his face. Tr. 521. With such reduced visibility, locating a lifeline 160 feet away is a
staggering and time-intensive obstacle to overcome. A miner with little to no visibility and no
lifeline is likely to be disoriented or lost.
The Commission has discussed different ways a lifeline violation in an emergency
situation was reasonably likely to result in injury. Black Beauty, 36 FMSHRC at 1125

38 FMSHRC Page 1218

(inaccessible lifelines contribute to injuries that may result from hazards such as tripping or
stumbling, an interruption of ventilation, miner panic and disorientation during an emergency,
and excessive smoke filling a corridor as a result of an a fire inby). Should ventilation fail in an
emergency, miners may breathe toxic air or a buildup of carbon monoxide. Tr. 523. The miners
carry portable ventilation self-rescuers that only last for forty-five minutes to an hour. Tr. 617.
This time is reduced if the miners fumble or panic in an emergency. Tr. 523. In an emergency,
time spent lost or disoriented due to a missing lifeline reduces precious air supply, may prevent
miners from reaching the next self-rescuer supply cache, or may thwart them from escaping the
mine entirely.
Respondent put on evidence that it has adequate safety protocols and training to ensure
that miners will not panic in an emergency. Tr. 608-10. However, the Commission has reasoned
that even experienced miners “panic and become disoriented in an emergency.” Black Beauty, 36
FMSHRC at 1124. I find it likely that panic will exacerbate the consequences of reduced
visibility or limited ventilation.
I conclude that a miner who becomes lost, disoriented, or delayed in locating a missing
portion of the lifeline in order to escape during a mine emergency is reasonably likely to suffer
injury from smoke inhalation, carbon monoxide inhalation, or entrapment during the emergency.
Accordingly, the third Mathies factor is satisfied.
d.' There was a Reasonable Likelihood That the Injury in Question Will Be of a
Reasonably Serious Nature
With regard to the fourth Mathies factor, any such injury from a delayed escape from the
mine is reasonably likely to be of a serious nature. Black Beauty, 36 FMSHRC at 1125 (“The
hazard of delayed or no escape at all due to an inaccessible lifeline in an emergency is
reasonably likely to result in serious or fatal injuries”); Cumberland, 717 F.3d at 1029 (“[T]he
lifeline violations at issue here would delay miners from escaping from an emergency and that
such a delay would be reasonably likely to cause serious injuries or death”). The hazard of a
delayed escape is supported by inspector Horseman’s testimony. He reasonably determined that
limited air supply from the self-rescuers in a corridor filled with smoke and carbon monoxide,
miner panic and disorientation during an emergency, and reduced visibility are reasonably likely
to inhibit a timely escape from the mine. Tr. 523-24. I credit his testimony that the prolonged
inhalation of smoke and carbon monoxide during such an escape from the mine is reasonably
likely to be of a reasonably serious nature or fatal. Id. Accordingly, the Secretary has
demonstrated a reasonable likelihood that any injury resulting from the hazard contributed by the
violation would be serious or fatal.
3.' Respondent’s Negligence is Raised from Moderate to High
I find that Respondent’s negligence should be raised from moderate to high. Respondent
knew or should have known of the missing lifeline and there are no mitigating circumstances.
Initially, I note that escapeways must follow “the most direct, safe and practical route to the
nearest mine opening suitable for the safe evacuation of miners.” 30 C.F.R. § 75.380(d)(5). The
lifeline followed a circuitous route used by drivers to avoid a belt drive that was once installed in

38 FMSHRC Page 1219

the main travelway. Tr. 610. However, at the time of the citation, the belt was no longer within
the travelway. Tr. 610. Respondent’s failure to move the line to the primary travelway indicates
that Respondent paid little to no attention to the path of the line after the belt drive was removed.
Furthermore, Respondent failed to discover the condition of the lifeline for an undetermined
length of time.
The violation before me presents more than a lifeline that was merely in poor condition.
A portion of the primary escapeway did not have a lifeline because the lifeline took a detour into
the secondary escapeway that was costly in both time and distance for a miner escaping on foot.
Within that detour, 160 feet of lifeline was entirely absent. Schilke testified that he traveled the
route daily and did not notice the condition. Tr. 615. Respondent’s inability to definitively
explain why the line was missing or for how long the violation existed is not a mitigating
circumstance, but instead, is further evidence of a cavalier lack of care towards a condition that is
essential to the survival of miners in an emergency situation. Further, Respondent’s ignorance
raises the concern that a similar section of the lifeline could go missing again without discovery.
Finally, Respondent has not justified its failure to maintain an intact lifeline -- a failure that
jeopardized the lives of thirty miners. I find that the Respondent should have known of the
violative condition and corrected it immediately as a top priority. Accordingly, Respondent’s
negligence is raised from moderate to high.
4.' Civil Penalty
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find
that Respondent mined 7,528,061 tons of bituminous coal in 2012. The Secretary originally
proposed a penalty of $13,268 and the parties have stipulated that the total proposed penalty
from all seven citations equaling $39,500 will not affect Respondent’s ability to remain in
business. MSHA recognized Respondent’s good-faith compliance in abating the citation. I have
affirmed MSHA’s S&S determination. I have modified MSHA’s negligence determination from
moderate to high for the reasons stated above. After consideration of the penalty assessment
criteria set forth in section 110(i) of the Act, I assess a $25,000 civil penalty against the
Respondent for Citation No. 8452203. Respondent’s new total penalty from the combined
citations is now $32,636. Given that this is lower than the total amount which Respondent
stipulated will not affect its ability to remain in business, I find that this increase in penalty is
appropriate and justified for the gravity and severity of the violation and would not affect
Respondent’s ability to remain in business.
VIII. ORDER
It is ORDERED that Citation No. 8451651 be MODIFIED to reduce the level of
negligence from high to moderate.
It is ORDERED that Citation No. 8439446 be AFFIRMED, as written.
It is ORDERED that Citation No. 8432319 be AFFIRMED, as written.
It is ORDERED that Citation No. 8439454 is AFFIRMED, as written.

38 FMSHRC Page 1220

It is ORDERED that Citation No. 8452203 be MODIFIED to raise the level of
negligence from moderate to high.
It is ORDERED that the operator pay a total penalty of $32,63631 within thirty days of
this decision.32

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge
Distribution:
Marty J. Gayer, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
2300 Willow St, Suite 200, Vincennes, IN 47591
Christopher D. Pence, Esq., Eric L. Silkwood, Esq., Hardy Pence PLLC, 500 Lee St. East, Ste.
701, Charleston, WV 25301
Jason Grover, Esq., Office of the Solicitor, U.S. Dept. Of Labor, 11—Wilson Blvd., 22nd Floor
West, Arlington, VA 22209
Daniel McIntyre, Esq., U.S. Dept. of Labor, Office of the Solicitor, 1999 Broadway, Ste. 800,
Denver, CO 80202
Thomas J. Motzny, Esq., U.S. Depot. Of Labor, Office of the Solicitor, 211 7th Ave. North, Ste.
420, Nashville, TN 37219

31

As noted herein, I assess a penalty of $5,081 for Citation No. 5481651, $1,412 for
Citation No. 8439446, $117 for Citation No. 8432319, $1,026 for Citation 8439454, and $25,000
for Citation No. 8452203.
32

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

38 FMSHRC Page 1221

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May 31, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. KENT 2015-575
A.C. No. 15-19475-384304

v.
KENTUCKY FUEL CORPORATION,
Respondent.

Mine: Beech Creek Surface Mine

DECISION AND ORDER
Appearances:

Latasha Thomas, Esq., U.S. Department of Labor, Nashville, Tennessee,
for Petitioner
James F. Bowman, Midway, West Virginia, for Respondent

Before:

Judge Moran

This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Involved
are two alleged violations concerning a Cat 329 excavator: a section 104(d)(1) order, Order No.
8302707, citing 30 C.F.R. §77.404(a),1 for failing to maintain equipment in safe operating
condition, and a second (d)(1) order on the same piece of equipment, Order No. 8302708, citing
30 C.F.R. § 77.1606(a),2 for an inadequate pre-shift exam of that excavator. For the reasons that
follow, the Court affirms both violations, but, having determined that neither involved
unwarrantable failures, reduces the civil penalties to appropriate amounts.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
!
Section 77.404, titled, Machinery and equipment; operation and maintenance, provides:

(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.
2

Section 77.1606, titled, Loading and haulage equipment; inspection and maintenance,
provides:
(a) Mobile loading and haulage equipment shall be inspected by a competent
person before such equipment is placed in operation. Equipment defects affecting
safety shall be recorded and reported to the mine operator

38 FMSHRC Page 1222

Findings of Fact
MSHA Inspector Melvin Keith Wolford testified for the Secretary. Inspector Wolford is a
coal mine inspector service specialist. His employment with MSHA began in October 2006. Tr.
26. His prior experience in the mining industry includes working for a trucking company, taking
care of coal trucks, and performing general maintenance. He has also operated bulldozers and
end loaders. As an equipment operator, he was responsible for doing pre-operational checks on
such equipment. Id.
The inspector was at Kentucky Fuels’ Beech Creek Surface Mine on February 7, 2015 to
complete an MSHA regular E01 surface mine inspection. Tr. 30. After arriving at the mine he
traveled down to the open pit area, where he met the foreman, Bernie Harper, who was then
operating the Cat excavator in issue. Tr. 31. On that day, Wolford inspected three pieces of
equipment: an articulating truck, and two excavators. As noted, this matter involves the two
orders issued on the Cat 329 excavator, No. 6024.
The first 104(d) order, Order No. 8302707, Sec’y Ex. 1, lists nine alleged safety defects.3
Each of these defects will be discussed in turn.
The loose handrail
The Order first listed that the handrail used to access the excavator’s engine had
mounting bolts missing and moved when pulled on to mount the machine. The inspector stated
that when he went to mount the machine,
initially, with the first step and the first handrail, when I grabbed this thing and
went to pull my weight up, where the mounting bolt was missing out of the upper
part of the bracket, it just allowed the handrail to pull back with me, and I kind of
went back down to the ground and had to refigure how I was going to mount the
machine.
Tr. 32-33.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
3

The nine alleged defects include the following: 1) the handrail used to access the
excavator’s engine had mounting bolts missing and moved when pulled on to mount the
machine; 2) the lower step, used to mount the engine deck, was damaged; 3) the deck lids that
are walked on to access the engine compartment were damaged and had shifted out of place
because it was being held by a bungee cord; 4) the fuel tank mounting bolts were loose causing
the fuel tank to wobble when stepped on; 5) the safety latch for the engine cover was out of the
bracket; 6) the bottom windshield wiper blade was missing on the lower glass; 7) the handrail on
the left side used to access the cab was loose and the bottom mount was damaged; 8) engine oil
leaks were found on the engine compartment, turbo, valve cover gaskets, and running down the
sides of the engine block onto the exhaust manifolds; and 9) the hydraulic pump compartment
was covered with hydraulic oil due to a large crack located on the side of the aluminum filter
housing (Tr. 32 Sec. Ex. 1).

38 FMSHRC Page 1223

Sec’y Ex. 3F is a photo of the subject handrail on the equipment. Tr. 52. It shows a black
bar on the left third of the photo. The bar in issue turns out at an approximate 60 degree angle
and it is away from a mounting point on the handrail. Tr. 52. One can visualize that if the bar
was pulled up, it would be capable of being bolted into a threaded hole. See Sec’y Ex. 3F. The
bar provides a hand hold for one ascending to the machine’s deck. Tr. 55. The inspector’s issue
with this condition was:
[W]hen you first get up to mount the machine, that’s the handrail that you would
use to pull all your weight up initially to get up to the track, and this mounting
bolt was loose, which would — when I grabbed the bar to mount it, it caused the
handrail to kind of come back toward me, and I had to step back to the ground,
and then mount the machine a second time.
Tr. 53. In short, the handrail moved when grabbed to ascend the excavator. Reduced to its
essence, a single bolt to secure the handrail was missing. Tr. 59. The inspector stated that the
type of injuries that could arise from the missing handrail bolt were:
Fall-related injuries, you know, whether you would’ve been on the ground level
coming up, or stepping up from the track up to these other two steps to get up on
top of the deck, you know, this is the rail you hold onto until you get up on the top
of the machine.
Tr. 53.
The Court, noting that the condition would make the handrail, which was also described
as a “grab bar” or “grab iron,” a little shaky, remarked that there would still be two bolts above
that point, securing the handrail. The inspector agreed. Tr. 56. The Court commented that it did
not appreciate the alleged safety hazard, as the rail was still secured by the two other bolts. Tr.
57. The inspector responded that, with the bolt missing, the iron would rotate, instead of being
firm. He expressed that, alluding to a different alleged defect on the equipment, a bent step, if
one were to “curl an ankle” on the damaged step and then grab the handrail, it would then rotate.
Tr. 57-58.
On cross-examination, the inspector agreed that the preferred method for safely mounting
and dismounting a machine is to use three points of contact. Tr. 113. The inspector, also agreeing
that he had seen the operator’s videos associated with the cited equipment, was then asked if the
foreman safely mounted it.4 Again, the inspector was reluctant to concede the point, initially
responding only that the foreman “didn’t fall.” Tr. 113. Pressed, he then acknowledged that the
foreman mounted the equipment safely. Tr. 114. He then admitted that handrails will move a
little, even when fastened securely. Nor could the inspector speak to the condition of the
handrails on that morning when the pre-op exam was made. Id.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
4

In addition to the testimony from witnesses, the evidence of record includes the
Secretary’s photographs and the operator’s videos of the cited excavator.

38 FMSHRC Page 1224

The Court concluded that the inspector was reluctant to concede what was plain about the
video involving the use of the handrails. When asked if there was support on both ends of the
handrail leading to the engine compartment, he then conceded that,
[t]here was a mounting location down near the track, and then the one that we
talked about in the photos where the rubber mount on the top part of where the
bottom portion was at, yes. So you had one on top, and one on the bottom.
Tr. 114. He also admitted that one could stand with both feet on the ground and reach the
handrail to the engine compartment, and that one could do the same thing to mount the cab
compartment. Asked when a person stands on the ground with two feet and reaches up and grabs
that handrail, when he pulls on it, whether he would know then if it was secure enough to pull his
weight up on, he responded, “Yeah. I would say so.” Tr. 114-115. Similarly, he agreed that once
one had mounted the machine, using the handrail that runs back to the engine compartment, it
was stable enough for a person to hold onto and keep his balance: “Yeah. You could hold onto it
as you climbed up the other steps, yeah.” Id. The inspector also acknowledged that there was a
hasp near the top of the handrail with two bolts. Further, he found no problems with the how the
bottom part of the handrail was attached. Tr. 116. He confirmed that the handrail would not fall
off. Thus, his essential issue was that the rail would “give around” (i.e. move) when one tried to
pull up on it, but couldn’t speak to whether it would support one’s weight when pulling up on it.
He also conceded that, after letting go upon his initial effort to mount the rail, he started back and
was able to mount the equipment. Tr. 117.
The foreman, Bernie Harper, who was operating the cited excavator, and was also the
person who did the pre-op check, testified about both orders. Regarding the handrail, he stated
that it supported his weight. Tr. 165. As to whether handrails are rigid, with no movement, he
informed that some are rigid but that the cited handrail was
on the off side is mounted – the way it’s mounted, it goes to a rubber grommet,
and then it – and it’s got a bushing, and then it’s bolted to the bottom. The support
of it [is] a rubber bushing. It’s meant to give a little bit because this type of – this
particular machine, when you move it in and out in tight areas with brush and so
forth, it’s designed to just give a little bit or it’d break it completely off.
Id.
He described the mounting procedure: With both feet on the ground, there is
a step that’s on the undercarriage as your first step. You reach up, you mount it,
you grab the handle with both hands, put your foot on the -- on the step that’s on
the undercarriage, step up on the track, then the handrail proceeds on up the side

38 FMSHRC Page 1225

of the machine, you hold onto that, and you go to step, and then it goes up, I
think, onto the fuel tank, and then up onto the top.
Tr. 166. The foreman stated that there was nothing that would affect his safety that morning
when mounting to ascend to the engine compartment. Id. Further, upon learning that the
inspector would be issuing a violation, he told him:
Melvin, I said, This is not – these violations is not there. I can get on and off of
this machine with no problem. The hazard is not there.
Tr. 168.
The Respondent, through the testimony of foreman Harper, described each of the nine
videos, which were taken shortly after the alleged violations were issued. The first video, no.
0627, reflects accessing the equipment using the cited handrail. Harper stated that he ascended
the equipment using the three points of contact. He added that the handrail was fastened at the
bottom with a sleeve, and with a rubber bushing and two bolts and a bracket. At the top of the
handrail, he was not sure how it was fastened, but believed it had the same arrangement as the
bottom, bolted at the top. Tr. 176. In the Court’s estimation, the video does show that the
handrail functions and that the foreman was able to use it to step up on the vehicle. It is true that
the handrail had some motion, but the Court cannot say that the amount of motion shown
demonstrated that it constituted a hazard. Foreman Harper stated that when he mounted the
machine, he did use the handrail to pull his body weight and used both hands in doing so. Tr.
178. When the video shows him shaking the rail, he was using one hand for the purpose of
showing the amount of looseness in the rail. Tr. 178. Cross-examination noted that it was the top
portion of the handrail which was cited.
Based upon the totality of the evidence, the Court concludes that the handrail, while not
in perfect condition, was in safe operating condition.
The deformed lower step
The second item listed on the order asserted that “the lower step, used to mount the
engine deck is damaged. The step has been pushed back greatly reducing the footing area.” Sec’y
Ex. 1. The inspector described the condition as “probably” the third step one would take, and
also described it as the lower step, used to mount the engine deck. He stated that it was damaged
in that the metal for that step was bent up and pushed back. Sec’y Ex. 3C fairly shows the
deformed step from a view looking down from above. While there is a reduced surface area, the
photo does not support that the surface area reduction was 50%, although the inspector asserted
that it reduced the area for that step from what would have been about six inches to about half
that distance. The reduced area was unevenly reduced. The step is used to ascend to a deck to get
on top of the engine to perform pre-op checks. Tr. 46. He expressed that the safety hazard
associated with the condition was the risk of missing a step when mounting the machine, creating
the chance of rolling an ankle or perhaps falling due to the unsure footing. As the step area was
reduced by about 50%, he noted that there is less footing available. If step area was wet or iced,
this would increase the risk. Tr. 46. The next step up was fine. Tr. 49. To abate the condition, the

38 FMSHRC Page 1226

lower engine access step was pulled out and straightened up to restore the full surface area. Tr.
87.
Upon cross-examination, the inspector continued with inadequate responses regarding
basic questions. When asked at what point he considered the step to be unsafe, he responded,
“Can you rephrase your question, sir? Tr. 118. He was then asked, “[i]n reference to the step that
was cited that was bent in in the front, at what point d[id] you consider the step to be unsafe?”
He responded:
Where I was at on this violation was you’ve got a step there that’s – and I’m just
guessing – 12, 14 inches wide, and I think it was two, four, about six inches out,
and it had been compressed back 50 percent or more. You get to where, going up,
you don’t have a real good place to put your foot, and then coming back down,
you’re trying to step with your heel, and you just have a real small area there to
step on.
Id.
Asked if one “had a step that is bent in the front, and you can take both feet and stand on
the step, is that safe,” the inspector responded, “Well, that would depend on, you know, how big
of an area that you had to stand on, you know, if you’ve got two or three inches, or have you got
six or eight inches, or what kind of area are we talking about?” Id. When asked if he knew the
area of the step that was left, the inspector stated, “[j]ust looking at the photos, I was – I think I
said that two, four, five-ish – four-ish inches, I think – I’d have to look again – was, you know,
compressed back, leaving two, maybe three inches or so to put your foot on in that one area.” Tr.
119. Contradicting his earlier assertion that the step was also bent up, when asked if the
compressed step was still flat, he stated: “[r]elatively flat, that I can remember, yes.” Id.
The same video, no. 627, demonstrating the handrail issue also shows the use of the
deformed step. Foreman Harper’s video shows that he was able to place both of his feet on the
step. As with the handrail, the step was not in pristine, showroom-like condition, but as the video
shows, it was still serviceable, albeit with a diminished surface step area. It seems unreasonable
to deem the step to be in an “unsafe condition” and the Court therefore declines to uphold the
Secretary’s claim.
The deck lid
The Order asserts that “the deck lids that are walked on to access the engine compartment
are damaged. One is bent up several inches and one has the mounting brackets broke out and the
lid is moved out of the intended location.” Sec’y Ex. 1. This condition is displayed in Sec’y Ex.
3A and 3B. The inspector stated that photo 3A shows, in the left bottom quadrant, a bungee cord
securing the deck lid. The inspector stated that the deck lid should’ve been spun around to be
positioned properly and bolted down. Persons walk on this deck lid. However, the inspector
conceded that the bungee cord was keeping the lid secure, but “not secure where it’s supposed to
be.” Tr. 36. The inspector stated that the lid was on top of another damaged lid “and it had
probably a couple inch raised lip” that made it unstable or one could catch a toe, and it was

38 FMSHRC Page 1227

unstable and the arrangement created a hole that one could accidentally step in. Tr. 36. Sec’y Ex.
3B, also shows the deck lid and the raised lip that concerned the inspector. The lid would wobble
when one stepped on it.
As he summarized his concerns about the lid, the inspector stated:
So you could either step in the hole over here to the left where the deck lid should
be, or trip on the lid itself, or step on the lid that’s unstable because it’s not over
there in position and mounted down.
Tr. 39.
A better depiction of the inspector’s concern about the lid appears in Sec’y Ex. 3D. It
more clearly shows the lid in its out of position state, held by the bungee cord (the bungee cord
was circled on the photo with the words “bungee cord” added on the photo), the hole that
concerned the inspector, as well as the tripping hazard where the lid is shown to be resting atop
two other plates. One standing on the plates would be about seven to eight feet above the ground.
Tr. 41. The inspector stated that the bungee cord was not a good secure way to hold the lid in
place. He expressed that the condition created “fall-related type” injuries, such as strains, sprains,
and “maybe” broken bones. Tr. 42. The area beneath the hole has hydraulic components and
these would be too hot to touch when the machine is running and under a load. Tr. 43. The
inspector agreed, however, that the machine operator would not be on the deck lid when the
excavator was running. Instead, that area would be examined before the machine was operated in
order to check oil levels and perhaps clean the windows. Tr. 44.
Upon cross-examination regarding the deck lids, the inspector was asked whether the
deck lids were safe to travel over when they were in place. The inspector replied that “[w]ith
everything in place and everything bolted down, they would've been safe to travel.” Tr. 120. The
inspector also acknowledged that he traveled over the deck lids and that he did not need to put
them back in place in order to travel over them. Instead, he simply stepped around the one lid
over to the other lid and didn’t need to step on the one that was out of position. Asked further
whether he agreed that he traveled over the deck lid safely, the inspector responded: “I didn't fall.
Yes, sir.” Tr. 121.
It is clear that at the time of the inspection the deck lid was out of place and that the
means to hold it was a bungee cord. In discussing the hazard presented by the condition, the
inspector that with the deck lids “missing” one could step on it and turn, and possibly fall seven,
eight feet down to the ground. Tr. 103. To abate the condition, the deck lid or plate was
straightened and bolted down, no longer relying on the bungee cord to secure it. Tr. 87-88.
From his perspective, foreman Harper did not consider the condition to be a safety hazard
because he still had safe access across it. Tr. 181. He also stated that the plate was not askew, but
rather was in the correct position the morning that he got on the machine to perform his preoperation inspection. Tr. 181. However, he agreed that the plate was out of position at the time
the inspector viewed it. He maintained that there was the strap, the bungee cord, holding the
plate in place. Later the mechanic “put it back in there.” Tr. 182. Harper did not know why the

38 FMSHRC Page 1228

plate was out of place, but guessed that he left the strap loose and when tramming the machine
later, it turned. Tr. 182. Harper’s contention was that the video reflects the position of the plate at
the time he did his pre-shift that morning. Tr. 183. There is a small corner with the metal bent up.
As to the other plate, in this video, Harper testified and stated in the video that it was in place at
the time he did his pre-op that morning. Video no. 628 shows the fuel tank and the handrail. This
video pertained to item no. 3, the deck lids. Tr. 180.
The government’s attorney then asked some additional questions about the deck lid,
referring to Exhibits 3B and 3D. Harper agreed that the lid was lying loose. Tr. 194. The area had
a six to eight inch opening. Tr. 195. He also agreed that his video shows the deck lid as it looked
when he mounted the machine earlier that morning and did his pre-shift. Tr. 196. Harper
acknowledged that when the mechanic addressed the issue, it was apparently corrected without
use of a bungee cord. Tr. 197.
The Court accepts the testimony of foreman Harper that the plate was in place at the time
he performed his pre-operational check that morning and it so finds that as the fact. Given that
finding, while the bungee cord arrangement was hardly ideal, it is difficult to conclude that the
method employed to hold the plate in place rendered the equipment in an unsafe operating
condition, especially when one takes into account that no person would be on the plate while the
equipment was being operated. Despite these observations, with the plate out of position, albeit
post the pre-op inspection, the condition must be deemed to have constituted a violation when
inspected. Finally, regarding the small portion of the decking material which was bent up,5 and
therefore not in perfect condition, the Court, having viewed the photographs and videos, along
with the testimony, considered that defect as having only a de minimus effect on safety.
Accordingly, the violation was established.6
Loose fuel tank mounting bolts, causing the tank to wobble
The inspector stated that the “tank was actually fairly unstable, wobbly.” Tr. 119. He
added that the Respondent’s video shows this condition. Id. However, he conceded that he did
not examine the mounting bolts, as they were located under the tank. He also admitted that the
tank was not at risk to fall through to the ground and that one traveling over the fuel tank would
not fall. Tr. 120. The bolts were tightened to correct the condition. Tr. 87. Video no. 628 speaks
to the fuel tank and the handrail issues. In that video foreman Harper, standing on top of the tank,
clearly shows that the wobbling was minimal. Accordingly, the Court does not agree with the
inspector’s characterization that the tank was “fairly unstable.” This minimal wobbling simply
cannot be considered as evidencing an unsafe operating condition.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
5

Tr. 36.

The inspector described the extent of it as: “it had a probably a couple inch raised lip.”

6

Though as discussed later, it is important to distinguish that although the Court has
found that the lid was not maintained in safe operating condition, in violation of 30 C.F.R. §
77.404(a), it has found that the condition was not present at the time of the foreman’s pre-op
exam. Accordingly, the parallel charge that the pre-op for deck lid was deficient, is not sustained.
The lid was in place that morning when foreman Harper did his pre-op inspection.

38 FMSHRC Page 1229

Safety latch to secure engine hood out of bracket
Inspector Wolford described this item as follows:
[T]he safety latch that, when you raise the hood to check oil, it locks it in place,
and keeps that hood – just say you’re reaching down there grabbing the dipstick,
maybe a gust of wind come through and catch the hood, and it could blow, you
know, fairly – probably five foot by three or four foot wide hood back down on
you while you were laying down in there pulling your dipstick to check your
engine oil.
Tr. 32.
Elaborating, the inspector referred to Sec’y Ex. 3A, which depicts the hood safety latch.
The engine hood is open in the photo. Wolford stated that the latch should have been in an
upright position and locked to keep the hood from blowing back down, if there were a gust of
wind, if one were checking engine oil. The latch apparently is to catch and go into a bracket hole
on the hood, thereby preventing the hood from coming back down inadvertently. The Court
sought clarification about the issue with the safety latch, noting that the latch was present. The
inspector stated that his issue was that the latch was not attached to the hood bracket. Thus, it did
not latch automatically. As it was, one would need to grab the latch and put it up in place. Tr. 37.
When the Court inquired if it was possible for one to manually attach the safety latch to the
hood, the inspector stated that he did not know the answer. Tr. 37. Later testimony established
that the latch could be manually attached, thus securing the hood from accidentally coming back
down.
Although the inspector did not know if the latch could be disconnected, the Court
inquired if the inspector’s concern was that the latch would not be secured automatically upon
opening the hood. He confirmed that the automatic feature was his concern and therefore he was
not contending that the latch would not secure the hood, if done manually. Tr. 123. He did not
know if the mount itself was broken, as his focus was upon the latch not setting automatically.
The inspector believed that another miner using the machine might open the hood, unaware that
it did not latch automatically. He did not know the method for disconnecting the latch from its
automatic set position. He conceded that if one knows about the latch, and one was to set it
manually, there would not be a hazard. Tr. 124. He did not dispute that one could’ve manually
set the latch, and thereby secure the hood and that, under those circumstance, there would not be
hazard. Tr. 125. The inspector also agreed that many cars employ a manual method to secure a
hood so that it will not come down. Tr. 124. However, it is true that this excavator had an
automatic hood latch feature. Id. Thus, while “[t]he safety latch on the engine cover was out of
its bracket and could not support the engine cover while leaning in to check the engine oil,” the
hood could be secured manually. Although the Respondent presented a video of the hood latch
issue, it only shows the latch in its secured position. Inspector Harper admitted that the latch was
not in place when the excavator was inspected by inspector Wolford. Tr. 185; Resp. Ex. 3.

38 FMSHRC Page 1230

The Court cannot conclude that the hood latch issue constituted an unsafe condition. The
entire assembly, both the support arm and the bracket, were present. There is no contest about
that. The only question is whether if, as here, one can manually and fully set the support arm, but
that it did not set automatically, such a situation constitutes an unsafe condition. The Court finds
that there is no requirement that a hood latch must be automatically set. While a design feature,
the inspector conceded that some equipment sets the hood latch automatically, while others are
set manually. If there were no way to manually secure the hood latch, and thus no protection
against the hood falling inadvertently, that would be a different matter.
Bottom wiper blade missing on lower glass
The order for this condition states that the “bottom wiper blade is missing on the
[excavator’s] lower glass.” Sec’y Ex. 1. There is no real challenge to this matter, but there are
some mitigating considerations. The inspector identified Sec’y Ex. 3E, another photograph, and
it shows, in the center of the photo, where a wiper arm should’ve been present, but was not. That
wiper, also described as the “foot glass” wiper, had it been present, serves to wipe the lower
portion of the glass on the front of the machine. Tr. 49-50. A separate wiper on the machine
covers a larger area of glass on the machine’s front but there was no issue with that larger wiper,
which wipes the main front glass for the machine operator’s eye level viewing. Simply
explained, the machine’s front windshields have a lower and upper wiper, each covering a
different area of glass. It was the lower glass that was missing a wiper blade. Tr. 50.
The Court inquired why viewing through the lower glass is important. The inspector
stated that this becomes important when digging back or down low, that is to say, when digging
close to the machine itself. Tr. 52. The inspector considered both wipers to be important. The
Court agrees. The inspector described the safety issue with the missing lower blade: “This wiper
blade, again, you’re running during foggy conditions, rain, snow, whatever.” With “stuff
accumulating on your glass, you can hit your wiper blade and turn it on, and you continue to
see.” Tr. 127.
However, he conceded that “individually, with that one little glass, you know, that’s a –
that’s a totally separate scenario, but individually, that’s not what I would call a real serious
condition.” Tr. 128. Further, at least on that morning, the inspector stated that the operator could
see through the foot glass. Id.
It is apparent that the inspector viewed the various problems he perceived collectively.
That means that to the extent that some number of the nine conditions have been determined by
the Court either not to be an unsafe operating condition or de minimus conditions, the significant
and substantial and unwarrantability determinations are undercut. In support of the conclusion
that the inspector’s conclusions in this regard was a cumulative finding, resting on all nine
conditions, he conceded that, with regard to the foot glass, on the same day as this inspection, he
issued a wiper violation on another piece of equipment at this mine, also an excavator, Citation
No. 83202706 for an inoperative wiper blade but found that it was unlikely to cause an injury.
Tr. 128. Seeing a justifiable difference for his contrary conclusions, the inspector fell back on his

38 FMSHRC Page 1231

approach that all nine conditions were taken together in reaching his conclusions about
negligence and gravity, stating:
[w]ith the violation in question, you know, you’ve got, I can’t take a violation
that’s got nine items and pick out the – say, the least likely item hazard in this
violation, and evaluate my whole complete citation based on one little fact, versus
if I only issued a violation, say, for – if that was the only thing wrong with it, it
would be, say, an unlikely non-S&S violation versus I’ve got nine items, I can’t
just, like I say, pick out one and base my whole citation on it.
Tr. 129.
Thus, the inspector conceded that, taken alone, the wiper blade issue was unlikely in
terms of the gravity. Id. Foreman Harper conceded that the foot glass wiper was not present.
Obviously, this missing lower wiper blade was a violation. However, taken by itself, as
the inspector acknowledged, it was not S&S nor unwarrantable.
Loose handrail, left side of the cab access
This involved a cab access handrail which had a loose top bolt and the inspector believed
that, to abate the condition, the Respondent welded the lower portion of it back around to where
it was supposed to be. The Order states “the handrail on the left side of the cab access is loose.”
Sec’y Ex. 1. The cited condition is depicted in Sec’y Ex. 3H. This is the handrail used to mount
the cab portion of the machine to facilitate the operator’s access to the cab seat. The issue
involved the lower mount, which the inspector described as “pretty much tore [] all loose except
for [a] little piece [] that’s attached to the rail still yet.” Tr. 64.
The inspector stated that the condition could cause fall-type injuries. He noted that he
weighs some 230 pounds and stated that, in climbing to the three foot level of the cab, it was
“real shaky and loose to mount the cab of the machine. The Secretary’s brief repeats the
inspector’s claim, stating that “[t]he handrail on the left side used to access the cab was loose and
the bottom mount was damaged.” Sec’y Br. at 4.
The Court agrees it does appear that a portion of the rail is not completely secured to the
machine. However, the Court notes that the Respondent’s video refutes the inspector’s
conclusion that the rail presently constituted an unsafe condition. The testimony from the
Secretary regarding this condition was quite brief and when considered along with the
Respondent’s videos of the condition, the condition was not established as being unsafe.
Importantly, when assessing the legitimacy of the order, the same testimony reinforces
what the Court has already noted – the inspector’s findings in support of his order were arrived at
cumulatively. Though the following pertains to the same issue, but as it relates to the order for an
inadequate pre-op, the inspector revealed his thought process again in this exchange: Asked if he
“[w]ould [] issue an inadequate examination for a pre-op examiner who missed a loose bolt,” he
responded, “I wouldn’t think so.” Tr. 142. Pursuing that line of questioning, the inspector was

38 FMSHRC Page 1232

then asked, “How many loose bolts would you have to have before you;d issue an inadequate
pre-op exam?” He replied, he didn’t know how to answer such a broad question, but he then
added that he “questioned [Foreman Harper] if he done a pre-op for the morning because of all
the conditions that was on the machine.” Tr. 145. The foreman replied that he had done a pre-op
and that no conditions were listed because he believed that “[i]t didn’t look that bad to [him].”
Id.
In the Court’s estimation, Respondent’s videos, numbers 633 and 635, demonstrate that
the handrail, again while not in pristine condition, were still in safe operating condition. Foreman
Harper established this to be the case in the videos, which show him safely ascending the cab,
while using the handrail. Foreman Harper is not a slight man. The handrail was able to
accommodate his ascending to the cab. This condition did not reflect an unsafe operating
condition. However, while the evidence did not establish a present violation, the Court
acknowledges that, at some point in the future, the lower rail could become further detached and
at that point it would become an unsafe condition.
Engine compartment oil leaks on the turbo and valve cover gaskets
As listed in the Order, this item stated that “there are engine oil leaks in the engine
compartment on the turbo and valve cover gaskets. Oil is running down the sides of the block
and onto the exhaust manifolds.”
Sec’y Ex. 3I was introduced for the purpose of showing oil leaking next to the turbo and
running down the bottom portion of it. Both the turbo and the oil leak were circled in the photo.
The Court did not view the photo as particularly helpful to establishing the cited condition. The
inspector considered it
. . . a fire-related hazard with the engine oil leaking around this turbo, and the –
which, you know, leaks things get, you know, pretty hot temperatures if they’re
worked under a load for an extended period of time, [adding that] . . . in some
literature that I’ve looked at and read, you know, operating temperatures, 1,000,
1,200 degrees, and I’ve seen noted where some turbos can get up to 1,800
degrees.
Tr. 65.
The inspector could only speculate as to the source of the oil leak. Tr. 66. Sec’y Ex. 3L
depicts the top portion of the engine’s valve cover area, and, according to the inspector, also
shows a “coating of oil,” though he admitted it was “really not a good view.” Tr. 71. Still, he
maintained that oils were “running all the way down the side of the head, down to these exhaust
manifolds, and it's starting to accumulate on the flanges of this exhaust manifold.” Tr. 71. The
photo was taken atop the equipment where the previously discussed deck lids were located. The
Court noted however, that per the photo, the area looked “pretty clean.” Tr. 73. It is also noted
that the oil coating was not to a degree that one was unable to read the truck brand name “CAT”
on that valve cover. Tr. 82-83. The inspector clarified that the area of concern had engine oil on

38 FMSHRC Page 1233

it, and he circled the area on Sec’y Ex. 3L. Tr. 75-76. The essence of his issue was “a film of oil
on [the] whole valve cover.” Tr. 76. His concern was:
[j]ust left uncorrected with the leaks continuing to leak and continuing to run
down, and it would continue to build and accumulate, and go on down to even
below the engine and accumulate, you get into your fire-related hazards, you
know, in the engine compartment.
Tr. 78.
Sec’y Ex. 3M is another photo of the same area. The inspector believed that the photo
more completely depicted the oil on the valve cover and showed that it was leaking down
towards the manifold too. Tr. 78. The areas of his concern were similarly circled on Sec’y Ex.
3M. Because this condition and the next cited condition both deal with oil-type accumulations,
the Court will discuss them together infra.
Hydraulic pump covered with oil due to broken filter housing
Sec’y Ex. 3J, another photograph, depicts, according to the inspector
. . . the area of where that – that hydraulic fuel was kind of on over to the right . . . – you
open up a lid into this what I’m going to call little hydraulic area, here, and this just
shows, you know, where some of these components like this hose, and this big hose down
here, this – where this has got the oil that’s been spraying and leaking down from the
crack in that filter housing.
Tr. 67.
The inspector stated that the area was “wet” from the hydraulic oil from the leaky filter
housing. Tr. 67. The hazard identified by the inspector was
[t]he machine function, you know, with the loss of oil related type hazards, and
also, you know, with this oil continuing to run out and spray out, and as it
accumulates more, you get into your fire hazard-type conditions.
Tr. 67.
Sec’y Ex. 3K, the inspector stated, shows a close-up view of the oil inside the
compartment, though he conceded it was “kind of hard to tell from being back out of that panel
that that stuff is, you know, getting sprayed with that oil.” Tr. 69. He stated that it shows “where
the hoses and components are wet inside of there.” Tr. 69. The inspector circled the area,
essentially the whole photo, which he identified as being wet. Although the inspector contended
that everything in the photo had hydraulic oil on it, at least in terms of the photos, the Court did
not find the inspector’s assertions to be supportive. Tr. 70. He was unable to state how long the
hydraulic oil had been leaking, though he expressed his opinion that, at least while the equipment
was running, the condition had existed probably for more than a shift. Tr. 70-71.

38 FMSHRC Page 1234

Further discussion of the oil leaks, alleged defects 8 and 9, as listed in Order No. 8302707
The Court did inquire of the inspector, regarding the oil leaks and oil accumulations,
whether those subjects had been part of his training at the Mine Safety Academy as safety issues
and whether he was trained to be wary of such issues. The inspector affirmed that those subjects
were part of his training and that such leaks and accumulations are deemed to be violations. Tr.
149. Further, addressing a subject raised during cross-examination, the inspector stated that he
was never instructed that combustion points must first be determined before issuing such
violations. Reinforcing that point, the inspector affirmed that accumulations of hydraulic oil, or
engine oil, are a concern in and of itself, without any concern about determining the temperature
at which a given fluid might combust. Tr. 150.
Though the photographs did not particularly aid the Secretary’s case, at least in terms of
presenting an obvious or extensive oil leak problem, the Court accepts that there were some
accumulations of oil from engine and hydraulic sources. The Court also accepts that in
establishing the presence of oil accumulations, it is not part of the Secretary’s case to show that
such accumulations present a hazard and therefore the Secretary is not obligated to produce
testimony about the point at which such oils become combustible, or auto-ignite.
Accordingly, the Court rejects the contention that hydraulic oil or engine oil are not
combustible materials. However, that determination does not end the inquiry in terms of whether
the orders were justified. For example, the inspector agreed that most such accumulations are
issued as non-S&S violations: “Yeah. Most of them are unlikely, if it’s dealing with oils. Yes,
sir.” Tr. 129. Nor did he detect any evidence of misting of such oils. Id.
The inspector maintained that the accumulation of the engine oil is a hazard in itself.
However, he distinguished that hazard, expressing that such accumulations did not create an
unsafe operating condition. Tr. 133. Instead, the inspector expressed that hydraulic leaks pose a
machine function hazard, in that, with oil loss, one starts losing machine function and if such oil
sprays onto a hot engine component, it could vaporize and become a flame. Tr. 67-68, 135.
However, it was fire, not machine function issues, cited by the inspector. The inspector affirmed
his belief that the turbo and the exhaust manifolds temperatures are definitely high enough to
ignite an oil mixture getting sprayed onto them, asserting that he has seen that happen “several
times.” Tr. 136. Thus, the Respondent’s points about automatic machine shut-down when oil
levels drop, are beside the point. Of greater significance, is the appropriate characterization of
the gravity presented by these oils, especially given the generally unsupportive photographs,
which again, do not evidence extensive accumulation conditions.
The inspector admitted that on the same day at the Beech Creek Surface Mine, he issued
other citations for oil accumulations on equipment involving a truck and another excavator. For

38 FMSHRC Page 1235

both, he listed the gravity as unlikely. Tr. 139. Yet the inspector did not find this to be
inconsistent, stating:
Again, with the accumulations being part of the not maintained, safe to operate
violation, you know, I can’t just, say, single out the one item and say, well, it’s
going to be unlikely because of this one, and look over the other things that were
more reasonably likely to happen, so that’s where you get your difference at
between the three.
Tr. 139.
Thus, this is a further example to show that the inspector’s evaluation of the gravity and
negligence was a determination made collectively upon all nine cited conditions.
Conclusions about Order No. 8302707
As per the discussion above, the Court has found that at least some of nine items (four of
nine) listed in Order No. 8302707 constituted unsafe operating conditions. Therefore, the 30
C.F.R. §77.404 violation is affirmed. More significant to this case is whether a section 104(d)(1)
order was justified, a finding which requires establishing that the violation was the result of an
unwarrantable failure. The Court finds that there was no unwarrantable failure.
The Commission has spoken definitively on the subject of unwarrantable failure. In ICG
Hazard, LLC, 36 FMSHRC 2635 (Oct. 2014), it modified a judge’s finding of unwarrantable
failure to a section 104(a) citation, holding that such a finding must be based on an examination
of specific criteria. Noting that it has “defined ‘unwarrantable failure’ as ‘aggravated conduct
constituting more than ordinary negligence,’” Manalapan Mining Co., 35 FMSHRC 289, 293
(Feb. 2013) (citing Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987)),” it reviewed that
the criteria for determining whether conduct is “aggravated,” includes
(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).
Id. at * 2637. Though the Commission acknowledged that “not all factors may be relevant to
every case, all relevant factors must be examined.” Id.

38 FMSHRC Page 1236

Similarly, in Mach Mining, LLC, 34 FMSHRC 1769 (Aug. 2012), the Commission earlier
noted that
. . . 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, and we characterized it in
such terms as “reckless disregard,” “intentional misconduct,” “indifference,” or
the “serious lack of reasonable care.” Id. at 2003-04. 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) (“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). **6 The Commission
has repeatedly made clear that it is necessary for a judge to consider all relevant
factors in determining whether an unwarrantable failure to comply with a standard
has occurred. Coal River Mining, LLC, 32 FMSHRC 82, 89 (Feb. 2010); Windsor
Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29 FMSHRC
125, 129-31 (Mar. 2007) (remanding unwarrantable determination for further
analysis and findings when judge failed to analyze all factors). 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 and at least noted by the judge. IO Coal Co., 31 FMSHRC 1346,
1351 (Dec. 2009).
Id. at 1775.
The Commission found the judge’s assessment of unwarrantability to be insufficient. It
noted that while the judge considered three of the factors—obviousness, the operator’s
knowledge of the existence of the violation, and the length of time the violation existed—in
considering the operator’s knowledge of the violation, and by adopting the Secretary’s argument
that the violative act itself outweighed the short period of time between action and discovery, the
judge failed to adequately consider and address mitigating evidence relevant to that factor. Id. at
1775-76.

38 FMSHRC Page 1237

Determination of unwarrantability issue for Order No. 8302707
Applying the Commission’s test for determining unwarrantability, a recap of the nine
alleged defects is useful. They were: the loose handrail, the deformed lower step, the deck lid,
the loose fuel tank mounting bolts, the safety latch to secure engine hood, the missing bottom
wiper blade, the loose handrail on the left side of the cab access, the engine compartment oil
leaks on the turbo and valve cover gaskets, and the hydraulic pump covered with oil due to a
broken filter housing.
As referenced several times in the discussion above, the issuing inspector’s determination
that this matter was an unwarrantable failure was predicated on all of the violations together. In
the Court’s estimation, by virtue of the fact that it has found that several of the nine conditions
were not established as violations, the unwarrantability determination collapses. Despite that
finding, the Court will proceed to examine each of the conditions to determine if any were
individually unwarrantable failures.
Again, those considerations are: (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. In
addition, while there is some overlap, whether reckless disregard, intentional misconduct,
indifference, or the serious lack of reasonable care, were involved are to be discussed in the
analysis.
To avoid utterly wearing out the reader, the discussion of unwarrantability for each of the
cited conditions will be brief.
The loose handrail
As noted, the Court found that this did not constitute an unsafe condition. However, even
if the Commission were to disagree, it was not unwarrantable, because the extent was limited,
had not existed for more than a shift, definitely did not pose a high degree of danger, (as the
video demonstrates) was not obvious in the sense that the foreman used the handrail to ascend
without a problem, was not known to the foreman prior to the day the condition was cited, as the
foreman was filling in for the usual equipment operator, was abated to more securely attach the
handrail, though it was previously secure enough to perform its function, and there was no notice
to the operator that greater efforts were necessary for compliance. Thus, terms such as reckless
disregard, intentional misconduct, indifference, or the serious lack of reasonable care, were
totally inapplicable. Further, as a significant mitigating factor, the foreman performed the precheck in pre-dawn hours.
The deformed lower step
The Court determined that this also did not constitute an unsafe condition. As discussed
earlier, the Respondent’s video shows this to be the case. Even if the Commission were to

38 FMSHRC Page 1238

disagree with the Court’s finding, in the Court’s estimation it was not unwarrantable. After all,
the step, while compressed, fully accommodated the foreman’s use of it, so the extent of the
step’s insufficiency must be considered minimal. It still functioned, fully, as a step, albeit with a
reduced surface step area. There was no evidence of record that the deformed step had so existed
for a prolonged period of time. It did not pose any high degree of danger by any stretch. If
accepted to be a violative condition, it was obvious, but again still fully functional. The foreman
did, after all, use the step without incident in the pre-dawn hour that day. There was no evidence
that the foreman knew of the condition prior to spelling the usual equipment operator that
morning. The step was returned to its uncompressed state promptly. No evidence of greater
efforts for compliance was presented. It cannot be fairly claimed that reckless disregard,
intentional misconduct, indifference, or the serious lack of reasonable care, were involved. The
same mitigation factor, as described next above and which applies to each of the cited
conditions, was present. On these grounds the Court finds that there was no unwarrantable failure
associated with the step deformity.
The deck lid
As noted above, the Court accepted as credible the foreman’s testimony that the deck lid
was in place at the time he conducted his pre-shift exam. This conclusion is bolstered by the fact
that a bungee cord had been employed to secure the lid. While true that the bungee was a suboptimal method to hold the deck lid, it is not unreasonable to conclude that use of the excavator
prior to the inspection could’ve dislodged the lid. Along the continuum of unsafe conditions
however, it was deemed to be have only a de minimus effect on safety. The equipment operator
would not be on the deck while operating the machine, the plate was present, not absent, and it
could be secured, insufficiently, by the bungee cord. The foregoing describes the extent of the
condition. The length of time the lid was out of place was not established to be longer than the
period of time following the foreman’s pre-op inspection until the inspector performed his
review of the machine. Given that the plate was in place at the time of the pre-op and that no one
would be on top of the deck during machine operation, it did constitute a high degree of danger.
It was not obvious either, if one accepts, as the Court did, that the foreman was credible in his
assertion that the lid was in place when he performed his pre-op. The foreman’s knowledge is the
same as for the previous conditions – he did not operate the machine as part of his duties – he
was filling in for the customary machine operator that morning. The condition was promptly
corrected and the inadequate bungee cord arrangement abandoned in favor of a more secure
method to keep the lid in place. No notice of greater efforts for compliance to maintain safe
operating conditions for equipment is part of this record. The fact that a bungee cord was
employed is viewed as a mitigating factor, when compared with a hypothetical arrangement
where no method of securing was present at all. There was no unwarrantable failure associated
with the deck lid.
The loose fuel tank mounting bolts, causing the tank to wobble
This cited condition was found by the Court as in safe operating condition. As the video
demonstrates it was clearly safe. Taken as a whole, the Court viewed some of the conditions
cited, this being one, as larding up the alleged unsafe conditions on the equipment, the next cited
condition is another such example.

38 FMSHRC Page 1239

The safety latch to secure engine hood out of its bracket
The problem with this cited condition was that the latch and bracket were present and
functional. The shortcoming was that it did not automatically engage. That being said, it is hard
for the Court to conclude that the manual activation method, a method which completely served
the function of keeping the engine hood secured in an upright position, was a violation. The
corrective action was to reinsert one end of the latch into the bracket, an effort which can barely
be described as “abatement.” However, if the Commission were to disagree and find that the
inoperative automatic engagement feature of the safety latch constitutes an unsafe operating
condition, the Court still finds that it was not an unwarrantable failure. The extent of the
condition was the automatic engagement of the latch, as the latch could be secured manually.
Given that, it did not present a high degree of danger. There was no evidence as to the length of
time the automatic feature was not engaged. If the automatic feature itself constitutes an unsafe
condition, then it was obvious to anyone who tried to secure the hood upon raising it. If, as the
evidence suggests, raising the hood of the equipment is essentially no different than raising the
hood of the typical car, one realizes immediately that the hood will not stay up until the support
arm is locked into the bracket. Given the real world application that the task of raising an engine
hood requires a support to keep it up, it is additionally hard to conclude that a high degree of
danger was present. There was no evidence about the length of time the latch had been out of the
bracket and, as is obvious, abating the problem took seconds to reinsert the latch into the bracket.
No notice of greater needed abatement efforts was presented for this, or for that matter, for any
of the nine conditions listed. Words like reckless disregard, intentional misconduct, indifference,
or the serious lack of reasonable care cannot be employed with respect to this condition.
Mitigation, if it need be mentioned at all, again is that the foreman was using this equipment on
the day the order was issued to spell the usual driver. Using the equipment was not part of his
customary duties.
The bottom wiper blade missing on lower glass
This was an unsafe operating condition violation, as the Court so found. However, the
inspector admitted that taken by itself, as the inspector acknowledged, it was neither S&S nor
unwarrantable. Thus, standing alone, the Secretary relinquished the claim that this was an
unwarrantable violation. The Court finds that the evidence is in line with the inspector’s
admission. The testimony of record was that the foreman only needed to use the forward, eyelevel view that morning for the equipment and that the bottom glass was sufficiently clear in its
own right on that day. Under those circumstances, no “high degree of danger” was present. There
was no evidence about the length of time of the violative condition. However, it was an obvious
deficiency. The foreman’s knowledge about the condition, at most, began in the pre-dawn hour
when he did his pre-op and apparently overlooked seeing the missing lower wiper blade. No
notice that greater efforts were necessary for compliance was part of this record.
Again, the terms reckless disregard, intentional misconduct, indifference, or the serious lack of
reasonable care are foreign to the facts here. The mitigation, as discussed above, remains.
Accordingly, the Court finds that there was no unwarrantable failure associated with this
condition.

38 FMSHRC Page 1240

The loose handrail, on the left side of the cab access
The Court found that, at the time the loose cab access handrail was cited, it remained
functional and not in an unsafe operating condition. The Respondent’s video establishes this,
supporting the foreman’s view about its safety. However, should the Commission take a different
view of the findings about the functionality and then-present safety of the handrail, the Court
would still find that the condition did not constitute an unwarrantable failure on the mine’s part.
The extent of the condition has been described above, and even the inspector conceded that the
lower mount still was attached, though he described it as “that little piece . . . that’s still attached
to the rail yet.” Tr. 64. There was no evidence about the length of time the loose lower mount
had been in that condition. Given the foreman’s demonstration using the handrail, the condition
did not pose a high degree of danger. The looseness of the rail was obvious; that it created a
present hazard was not. Evidence of operator knowledge was limited to the morning that the
foreman used the rail to ascend to the cab access, a task he performed successfully at least twice
that morning—when he did his pre-op check and later when he demonstrated its safe function in
the video. The condition was abated promptly. No notice was given to the operator that greater
efforts at compliance were necessary. The terms reckless disregard, intentional misconduct,
indifference, or the serious lack of reasonable care, do not fit with the facts. The mitigating
circumstances, as described above, apply equally to this alleged unsafe condition.
The engine compartment oil leaks on the turbo and valve cover gaskets and the hydraulic
pump covered with oil due to broken filter housing
As these two conditions involved similar concerns—accumulations of combustible
materials—and because the Court discussed them together in the findings of fact section,
concluding that both constituted unsafe conditions, the unwarrantability issue is similarly
discussed jointly here. The essential problem with the inspector’s testimony and the
photographic evidence in support of that testimony is that the former did not particularly support
the later. The Respondent’s testimony and its own video were more consistent with the
Secretary’s photographic evidence.
The extent, but only in terms of the extent of time of the two violative conditions, has
been described above. In contrast the degree of the violative condition was far less than the
inspector contended. The inspector’s testimony that the “extent” was present for more than a
shift is accepted. Given the degree found by the Court based on the record evidence, it cannot be
concluded that the accumulations posed a high degree of danger. Based on the photos and video,
the Court cannot conclude that the conditions, in terms of a reasonable conclusion that the
accumulations presented a high degree of danger, were present. The most serious shortcoming
was the cracked filter housing which had to be repaired. The breather for the blow-by gases
needed to be replaced, but beyond that apparently only a good steam cleaning of the engine
compartment was needed, hardly an indication of a serious leakage issue. In terms of
obviousness, it must be recalled that the pre-op, performed in the pre-dawn hours, is not akin to
the “160 point safety checks” advertised for pre-owned, (formerly known as “used”) car sales.
The foreman, based on his credible testimony, did perform an adequate, although imperfect,
check of the excavator prior to beginning its use during the shift. The factors of knowledge of the
existence of the violation, the operator’s efforts in abating the violative condition, and whether

38 FMSHRC Page 1241

the operator had been placed on notice that greater efforts were necessary for compliance, remain
as described above for the other cited conditions. The terms reckless disregard, intentional
misconduct, indifference, or the serious lack of reasonable care have no descriptive applicability
to the cited conditions. The place overarching mitigation element, also as discussed above,
remain applicable here.
Assessment of a civil penalty for Order 8302707, now determined as, and modified to be, a
section 104(a) citation
In Brody Mining, Inc., 37 FMSHRC 1687 (Aug. 2015), the Commission, while
remanding the matter to the presiding judge to reexamine the degree of negligence involved,
took pains to note that
. . . the Part 100 regulations apply only to the proposal of penalties by MSHA and
the Secretary of Labor; under both Commission and court precedent, the
regulations do not extend to the independent Commission, and thus the MSHA
regulations are not binding in any way in Commission proceedings [and that] [i]n
light of the Commission holding that Commission judges are not required to apply
the definitions of Part 100, judges may evaluate negligence from the starting point
of a traditional negligence analysis rather than based upon the Part 100
definitions. Under such an analysis, an operator is negligent if it fails to meet the
requisite standard of care – a standard of care that is high under the Mine Act.
Id. at 1701.
Elaborating, the Commission added:
[i]n determining whether an operator met its duty of care, we consider what
actions would have been taken under the same circumstances by a reasonably
prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation.” It also stated that “in making a negligence
determination, a Judge is not limited to an evaluation of allegedly “mitigating”
circumstances. Instead, the Judge may consider the totality of the circumstances
holistically.
Id. at 1703.
Similarly, in Wade Sand & Gravel Co., 37 FMSHRC 1874 (Sept. 2015), citing
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984), the Commission
noted that:
‘neither the ALJ nor the Commission is bound by the Secretary’s proposed
penalties;’ also, ‘neither the Act nor the Commission’s regulations require the

38 FMSHRC Page 1242

Commission to apply the formula for determining penalty proposals that is set
forth in section 100.3’
Id. at 1877.
Of course, the authority is not unfettered. As fellow Administrative Law Judge Zane Gill
took note:
substantial deviations from the Secretary’s proposed assessments must be
adequately explained using the Section 110(i) criteria. E.g., Sellersburg Stone Co.,
5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera
Green, 22 FMSHRC 616, 620-21 (May 2000) [and that although] [a] judge need
not make exhaustive findings [the court] must provide an adequate explanation of
how the findings contributed to his or her penalty assessments. Cantera Green, 22
FMSHRC at 621.
Oil Dri Production, 2016 WL 2619895, at *4 (May 3, 2016) (ALJ).
Had it not been for the special assessment calculation, the violation identified in Order
No. 8302707, would have been assessed at $9,122.00. Tr. 19. This, not the $41,500.00 special
assessment figure, represents an appropriate starting point. In using that phrase, “starting point,”
the Court does not imply that $9,122.00 represents a penalty floor.
Under section 110(i) of the Mine Act, the Commission is to consider the following when
assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness
of such penalty to the size of the business of the operator charged; (3) whether the operator was
negligent; (4) the effect on the operator’s ability to continue in business; (5) the gravity of the
violation; and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C
§ 820(i).
As to the demonstrated good faith in abatement of the violative condition, the Secretary
concedes such good faith was present. Sec’y Br. at 16. Speaking to the history of previous
violations, the Beech Creek Surface violation history is reflected in Ex. 4, known as the “R 17.”
Tr. 13. The Secretary states, without elaboration, that the Respondent “had received violations
for the standards violated in this case.” Sec’y Br. at 16; Sec’y Ex. 4. The Part 100 table offers no
basis or information as to how to translate the number of repeat violations for the 15 months
covered (November 1, 2013 through February 1, 2015) by Ex. 4. The Court can only note that
nine violations are in that history for 30 C.F.R. §77.404(a) and no violations for the same period
of history for 30 C.F.R. §77.1606(a).
Regarding the size of the Beech Creek Surface Mine, the mine produced 148,741 tons of
coal in 2014. Parties’ Stip. No. 5. That tonnage places the mine in the upper mid-range, with nine
(9) points assessed under Part 100 out of a possible 15 points for that category. According to the
Special Assessment Narrative Form, the controller size points, mine size points, violation history
points and repeat violation history points are the same under the regular and special assessment
points. While admittedly only a partial analysis, the combined point total for those categories is

38 FMSHRC Page 1243

44 points for the section 77.404(a) violation and 29 points for the 77.1606(a) violation. A point
total of 60 points or less yields a penalty of $112.00. Of course, here such a total must then
evaluate the gravity and negligence criteria. The point of this discussion is not to inferentially
heel to the Secretary’s Part 100 penalty calculation but to highlight that the other factors, that is
factors other than the negligence and gravity, even under the Secretary’s system, have only a
minor influence on the appropriate penalty. Restated, at least with regard to the Beech Creek
Mine, the attendant negligence and gravity are the dominant, but not exclusive, penalty elements.
These factors have largely been discussed above but a few additional remarks are here made.
For item 1, the loose handrail, even if the Commission were to find that it constituted a
safety defect, the gravity would be unlikely with, at most, lost workdays or restricted duty, and
the negligence low.
For item 2, the deformed lower step, as with item 1, even if the Commission were to find
that it constituted a safety defect, the gravity would be unlikely with, at most, lost workdays or
restricted duty, and the negligence low.
For item 3, the deck lid, the same analysis for gravity and negligence applies as for items
1 and 2: the gravity would be unlikely with, at most, lost workdays or restricted duty, and the
negligence low.
For item 4, the fuel tank mounting bolts, yet again the previous analyses apply.
For item 5, the safety latch to secure engine hood out of bracket, yet again, even if the
Commission were to find that it constituted a safety defect, the gravity would be unlikely with, at
most, lost workdays or restricted duty, and the negligence low.
For item 6, the bottom wiper blade missing on lower glass the Court did find this to be a
violation of the standard as it constituted an unsafe operating condition. Still, per the evidence, as
described above, there were mitigating circumstances. Assessing the evidence for this violative
condition, the gravity was unlikely, no lost workdays would be likely, and the negligence was
low.
For item 7, the loose handrail, left side of the cab access, the Court found that it did not
then constitute an unsafe condition. Nevertheless, even if the Commission were to find that it
constituted a safety defect, the gravity would be unlikely with, at most, lost workdays or
restricted duty, and the negligence low.
For item 8, the engine compartment oil leaks on the turbo and valve cover gaskets, the
condition was found to be an unsafe operating condition, but even the issuing inspector conceded
that, viewed as singular condition (that is not premised on the inspector’s theory that one may
total up a number of alleged safety issues and have that total number, as opposed to the
underlying facts for each condition, determine the gravity and negligence), he would have
viewed the gravity as unlikely. The Court agrees that the gravity was unlikely and, as discussed
above, the negligence on the foreman’s part was, at most, low.

38 FMSHRC Page 1244

For item 9, the hydraulic pump covered with oil due to broken filter housing, the same
analysis applies as for item 8. The Court’s earlier described findings about this and the other
accumulation condition, next above, stand.
In summary, the Court upheld only four of the nine cited conditions: the deck lid, the
lower wiper and the two oil accumulations conditions. Given those determinations, upon
consideration of the statutory penalty criteria, the Court finds that a civil penalty of $2,000.00
is appropriate.7
Conclusions about Order No. 8302708
The analysis for this Order, a claim of an inadequate pre-operational inspection, being so
completely related to and predicated upon the inspector’s conclusions about nine claims made in
the unsafe operating conditions Order, may be briefly discussed. The inadequate pre-op claim
arose following the inspector’s determination of those purportedly unsafe operating conditions.
With five of those determinations found by this Court to be unsupported, obviously the
inadequate pre-op claim collapses, because the claim was built upon the premise that,
collectively, those nine conditions demonstrated an inadequate exam. However, since four of the
conditions were upheld, (though the two fuel accumulations were affirmed on a technical basis),
the violation of 30 C.F.R. §77.1606(a) was established. As mentioned, when the subject involves
the pre-op exam, the Court finds that three, not four, of the conditions should have been detected,
as it has been found that the lid was in place at the time of the pre-op and either came loose or
was not fully re-secured by the bungee cord, following the pre-op. It is important to note
however that even if the Commission were to conclude that some of the others, or even all, of the
remaining six conditions should have been noted in the pre-op, unwarrantability, per the
Commission’s test for such a finding, would not be established.
The second order, inadequate pre-shift, would have been assessed at $2,748.00 under a
Part 100 regular assessment. Tr. 19. As with the equipment defects violation, that figure also
represents an appropriate starting point, not the $12,500.00 under the special assessment. Given
the marginal amount of oil established by the record as being present and because those
conditions were difficult to discern during the pre-op, leaving only the missing lower wiper blade
as the only readily apparent defect, a penalty of $1,000.00 is imposed for this nonunwarrantable violation.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7

If the Commission were to find that all nine conditions constituted unsafe operating
conditions, based on the evidence of record, the Court would impose a $4,000.00 civil penalty.

38 FMSHRC Page 1245

ORDER
Wherefore, it is ORDERED that Kentucky Fuel Corporation pay a total civil penalty of
$3,000.00 (three thousand dollars) within 30 (thirty) days of the filing of this Decision.
It is further ORDERED that Order No. 8302707 and Order No. 8302708 each be modified from
section 104(d)(1) orders to section 104(a) citations.

/s/ William B. Moran
William B. Moran
Administrative Law Judge
Distribution:
Latasha Thomas, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219
James F. Bowman, P.O. Box 99, Midway, WV 25878

38 FMSHRC Page 1246

ADMINISTRATIVE LAW JUDGE ORDERS

!

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May 2, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JEREMY COOTS,
Complainant,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2016-320-D
MSHA Case No.: BARB-CD-2016-06

v.
YELLOW ROSE COAL CO., LLC,
Respondent

Mine: No. 3
Mine ID: 15-18277

ORDER GRANTING TEMPORARY REINSTATEMENT
OF JEREMY COOTS
Before: Judge Steele
Pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act”),
30 U.S.C. §801, et. seq., and 29 C.F.R. §2700.45, the Secretary of Labor (“Secretary”) on April
13, 2016, filed an Application for Temporary Reinstatement of miner Jeremy Coots
(“Complainant”) to his former position with Yellow Rose Coal Co. (“Respondent”) at Mine No.
3 pending final hearing and disposition of the case.
According to Commission Rule 45, a request for hearing must be filed within 10 days
following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R.
§2700.45(b). By email, the Respondent’s counsel notified the court that they would not be
requesting a hearing. The Respondent has not filed a timely Request for Hearing. For the
following reasons, the temporary reinstatement of Jeremy Coots is hereby GRANTED.
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners “to play
an active part in the enforcement of the [Mine Act]” recognizing that, “if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation.” S. Rep. No.
181, 95th Cong., 1 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 623 (1978).
The Commission’s regulations control the temporary reinstatement procedures. Once an
application for temporary reinstatement is served on the person against whom relief is sought,

38 FMSHRC Page 1247

that person shall notify the Chief Administrative Law Judge or his designee within 10 calendar
days whether a hearing on the application is requested. 29 C.F.R. §2700.45(b). If no hearing is
requested, the Judge assigned to the matter shall review immediately the Secretary’s application
and, if based on the contents thereof, the Judge determines that the miner’s complaint was not
frivolously brought, he shall issue immediately a written order of temporary reinstatement. Id. In
the instant case, the Respondent has not timely filed a request for hearing.
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). 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 by substantial evidence and is consistent with
applicable law.”1 Sec=y of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC
2425, 2426 (Dec. 1993).
The Declaration of Special Investigator Kenneth McClung was filed with the
Complainant’s Application for Temporary Reinstatement asserting the following:
1.! Prior to his discharge on February 23, 2016, Jeromy Coots (Coots) was employed by
Yellow Rose Coal Co., LLC (Yellow Rose). Yellow Rose operates the No. 3 mine. The
No. 3 mine is a "coal or other mine" as defined by Section 3(h) of the Mine Act, 30
U.S.C. § 802(h). The No. 3 mine is located in Lejunior, Harlan County, Kentucky.
2.! Coots began working for Yellow Rose on February 22, 2016. Coots worked as roof bolter
operator at the No. 3 mine.
3.! On February 22, 2016, Coots spoke with Yellow Rose mine owner Randall Fleming
(Fleming) about a job at Yellow Rose. Fleming told Coots he had an opening for a roof
bolter and that he would observe Coots operate the roof bolting machine before he would
be hired. Fleming observed Coots operate the roof bolter and stated that Coots was the
best bolt machine operator he had seen. Coots was left underground to work the 10 hour
shift. On February 23, 2016, Fleming received two phone calls regarding Coots. Both
callers informed Fleming that Coots was represented by attorney Tony Oppegard and that
Coots had filed a lawsuit against his previous employer, Lone Mountain. Fleming was
warned to be careful around Coots.
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)).

38 FMSHRC Page 1248

4.! Coots was terminated on February 23, 2016 by Fleming. Fleming stated that he could not
continue to employee Coots for fear that Coots would file a complaint against Yellow
Rose.
5.! On October 7, 2014, the Secretary filed a Discrimination Complaint against Lone
Mountain Processing on behalf of Jeromy Coots. An order was issued settling the case on
August 17, 2015.
6.! Based upon my investigation of these matters, I have concluded that Coots' complaint of
discrimination was not frivolously brought. Pursuant to 28 U.S.C. § 1746, I declare under
penalty of perjury under the laws of the United States of America that the foregoing is
true and correct.
Based upon the affidavit of the Special Investigator and the asserted facts therein, I find
that the Secretary’s complaint was not frivolously brought. WHEREFORE, it is hereby
ORDERED that Jeremy Coots be immediately TEMPORARILY REINSTATED to his former
job at his former rate of pay, overtime, and benefits pending final decision on the complaint.

/s/ William Steele
William Steele
Administrative Law Judge
Distribution (Certified Mail):
LaTasha T. Thomas, Office of the Solicitor, US Dept. of Labor, 618 Church Street, Suite 230,
Nashville, TN 37219
Randall Fleming, 2328 Thistle Park, Lexington, KY 40509
Yellow Rose Coal Co., LLC, Mr. Randall Fleming, Owner, 1160 Jackson Drive,
Paris, TN 38242
Tony Oppegard, P. O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., 317 Main Street, Whitesburg, KY 41858
/mzm

38 FMSHRC Page 1249

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May 9, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. SE 2009-870-M
A.C. No. 01-02738-194100

v.
WEST ALABAMA SAND & GRAVEL,
INC.,
Respondent.

Mine: West Alabama Sand & Gravel

ORDER TO SHOW CAUSE
Before:

Judge Feldman

The single citation at issue is 104(d)(1) Citation No. 6511548, issued to West Alabama
Sand & Gravel, Inc., (“West Alabama”), alleging a violation of 30 C.F.R. § 56.15005, which
provides that “[s]afety belts and lines shall be worn when persons work where there is danger of
falling. . . .” The violation concerns the failure of a contract haul truck driver to wear a
restraining device while securing his truck’s load. The Secretary proposes a civil penalty of
$15,971.00 for the cited violation in 104(d)(1) Citation No. 6511548. The Commission, in its
remand in this matter, has vacated the initial decision’s deletion of the unwarrantable failure
designation and directed that I reconsider the issues of negligence and unwarrantable failure
consistent with their decision. 37 FMSHRC 1884, 1891 (Sept. 2015).
Following a series of conference calls, on December 15, 2015, West Alabama stipulated
that the subject section 56.15005 violation was attributable to an unwarrantable failure.
Specifically:
1.& West Alabama stipulates to such facts as are necessary and sufficient to permit
the Court to make a designation of unwarrantable failure under 30 U.S.C. §
814(d)(1).
2.& West Alabama stipulates to such facts as are necessary and sufficient to permit
the Court to make a designation of “high” negligence level.
West Alabama’s Stipulation of Material Facts, at 1 (Dec. 15, 2015).

38 FMSHRC Page 1250

Thus, the only remaining issue is the appropriate civil penalty to be assessed for
104(d)(1) Citation No. 6511548. Consequently, on February 17, 2016, the parties were requested
to specifically identify any aggravating or mitigating factors with respect to the civil penalty
criteria in 30 U.S.C. § 820(i). The parties’ responses to the February 17 Order are under
consideration.
The Secretary’s response to the Order asserted, in part:
It is also notable that Respondent continues to consistently violate safety
standards and essentially stopped paying assessed penalties in approximately
January 2010, according to the Mine Data Retrieval System [“MDRS”].
Sec’y Resp., at 12 (Mar. 9, 2016).
Consistent with the above assertion, the MDRS reflects that of the $27,890.00 civil
penalties assessed for the 59 citations and orders issued to West Alabama during the period June
2010 to November 2015, West Alabama has paid $200.00 in satisfaction of two citations. The
MDRS further reflects that West Alabama is delinquent in its payment of the $27,690.00 total
civil penalty for the remaining 57 citations and orders. Thus, with the exception of two citations,
West Alabama has been delinquent in its payment of assessed civil penalties for approximately
six years.
With respect to delinquency as it relates to the imposition of civil penalties,
in the
past, the Commission has narrowly construed the civil penalty criteria in section 110(i). In Sec’y
o/b/o Johnson v. Jim Walter Res., Inc., 18 FMSHRC 841 (June 1996), the Commission stated:
“An operator’s delinquency in payment of penalties is not one of the criteria set forth in section
110(i) of the Mine Act for consideration in the assessment of penalties.” Id. at 850.
However, in Black Beauty Coal Co., 34 FMSHRC 1856 (Aug. 2012), the Commission
departed from its narrow interpretation of section 110(i) by emphasizing the role of deterrence as
a proper consideration in assessing civil penalties.1 In this regard, the Commission noted:
Clearly Congress viewed civil penalties as a mechanism to promote operator
compliance with health and safety mandates, and it explicitly called for
consideration of the protection of the “public interest” - which includes such
compliance - before a [penalty is assessed]. Consequently, it is eminently
appropriate for a Judge to acknowledge the need for deterrence in [considering the
appropriate civil penalty], with the understanding that the [ultimate civil penalty],
consistent with fundamental principles underlying the penalty provisions of the

1

Although Black Beauty concerned the propriety of considering deterrence in the context
of approving settlements of civil penalties, it is clear that deterrence is also an appropriate
consideration in determining civil penalties in contested cases. See Black Beauty, 34 FMSHRC at
1865-66.

38 FMSHRC Page 1251

Mine Act, discourage operators from violating health and safety regulations and
laws in the future.
Id. at 1866. In sum, the Commission stated:
Simply put, we refuse to require our Judges to apply blinders . . . and to ignore the
central and most obvious purpose of civil penalties - to ensure operator
compliance with safety measures - when deciding whether such penalties are
appropriate. Deterrence is a principle basic to and underlying the entire statutory
scheme of imposing civil penalties.
Id. at 1869.
In the final analysis, the imposition and payment of civil penalties is the statute’s
principal means of achieving the deterrence necessary to further the Mine Act’s goal of
promoting health and safety.
ORDER
In view of the above, West Alabama IS ORDERED TO SHOW CAUSE on or before
May 31, 2016, why its delinquent payment history should not be considered an aggravating
factor in determining the appropriate civil penalty to be assessed in this matter. If the Secretary
elects to file a written response to West Alabama’s submission, such response should be filed on
or before June 14, 2016.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge
Distribution: (Regular and Certified Mail)
Sophia E. Haynes, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street
SW, Room 7T10, Atlanta, GA 30303
Clatus Junkin, Esq., P.O. Box 688, 202 3rd Street NE, Fayette, AL 35555
Charles E. Harrison, Esq., Pearson Harrison & Pate, LLC, P.O. Box 3119, Tuscaloosa, AL 35403
/acp
!

38 FMSHRC Page 1252

!

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May 10, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of GEORGE M. SCOLES,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEVA 2016-274-D
MSHA Case No.: MORG-CD-2016-13

v.
HARRISON COUNTY COAL CO.,
Respondents

Mine: Harrison County
Mine ID: 46-01318

ORDER DENYING RESPONDENT’S MOTION TO DISMISS
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 March 14, 2016, filed a Complaint on behalf of miner George M. Scoles (“Complainant”),
alleging that Scoles was discriminated against in violation of his rights under the Mine Act.
On April 13, 2016, Respondent filed a Motion to Dismiss Complaint based on the
miner’s untimely filing of his discrimination complaint. Respondent argues that the Mine Act
contains a 60-day statute of limitations, after which a miner may not file a discrimination
complaint, unless there are justifiable circumstances. In the instant case, the miner filed his
discrimination complaint 80 days after the alleged discrimination occurred, and the Respondent
argues that the miner knew of his rights under the Mine Act, but chose to pursue relief through a
grievance procedure instead.
The Secretary responded by arguing that Scoles was unaware of his rights under the Mine
Act, as well as the time constraints contained in the Act. Furthermore, the delay was relatively
short, and Respondent has alleged no prejudice. Therefore, the Secretary argues that the matter
should not be dismissed.
The relevant facts in this matter are that Scoles was suspended with intent to discharge on
September 15, 2015. Scoles grieved the matter, and on November 8, 2015, following an
arbitration hearing, the suspension with intent to discharge was modified to a 40-day suspension.
Scoles filed the instant discrimination complaint with MSHA on December 4, 2015—80 days
after his initial suspension and 26 days after the arbitration decision.

38 FMSHRC Page 1253

The Mine Act allows any miner who believes that he or she has been discharged,
interfered with, or otherwise discriminated against due to his or her protected activity to file a
discrimination complaint with the Secretary within 60 days of the alleged violation. 30 U.S.C.
§815(c)(2). The Commission has consistently held that “the time limits in sections 105(c)(2) and
(3) ‘are not jurisdictional’ and that the failure to meet them should not result in dismissal, absent
a showing of ‘material legal prejudice.’” Sec’y of Labor ex rel. Nantz v. Nally & Hamilton
Enterprises, 16 FMSHRC 2208, 2215 (Nov. 1994) (citing Sec’y of Labor obo Hale v. 4-A Coal
Co., 8 FMSHRC 905, 908 (June 1986)). Indeed, the legislative history stated this point
explicitly.1 The Commission has excused a miner’s late filing on the basis of “justifiable
circumstances.” Gary D. Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1386 (Dec. 1999). In
determining if such circumstances exist, a judge is required to review the facts “‘on a case-bycase basis, taking into account the unique circumstances of each situation.’” Id. (citations
omitted). Justifiable circumstances include, “a case where the miner within the 60–day period
brings the complaint to the attention of another agency or to his employer, or the miner fails to
meet the time limit because he is misled as to or misunderstands his rights under the Act.” David
Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), citing legislative history,
S.Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Sub-committee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 624 (1978).
The example cited in the Senate Report accompanying the Mine Act appears to describe
Scoles’ situation. Scoles has stated in his Declaration that he does not fully understand his rights
under the Mine Act. Scoles Declaration ¶¶ 18-24. Specifically, he did not understand what type
of violation “‘triggers’ the time-filing requirement under the Act,” and believed that the
arbitrator’s decision on November 8 was part of the discriminatory conduct. Id. at ¶¶ 18, 22.
Furthermore, Scoles believed that prior to filing a §105(c) complaint he had to first exhaust other
remedies, including arbitration. Id. at ¶ 20. Scoles brought the matter to his employer’s attention
and proceeded through a grievance proceeding.
Respondent argues that Scoles was aware of his rights under the Mine Act and failed to
proceed in a timely fashion. It grounds this argument in the fact that Scoles was “vocal” about
safety issues at the mine, was a miner’s representative, and had made previous §105(c)
complaints. Respondent relies almost exclusively on the 1984 Commission case of Hollis v.
Consolidation Coal, 6 FMSHRC 21, where the Commission affirmed the ALJ’s findings that the
miner’s discrimination complaint was time-barred.
1

Referring to discrimination cases, the Senate Committee stated:
It should be emphasized, however, that these time frames are not intended to be
jurisdictional. The failure to meet any of them should not result in the dismissal of
the discrimination proceedings; the complainant should not be prejudiced because
of the failure of the Government to meet its time obligations.

S. Rep. No. 181, 95th Cong., 1st Sess. 24 (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, 3401, 2436 (1978).

38 FMSHRC Page 1254

Despite Respondent’s almost complete reliance on Hollis, it fails to note the important
procedural distinction between Hollis and the instant case. In Hollis, an evidentiary hearing had
been held, and based on the evidence and testimony admitted at hearing, the ALJ determined that
the miner’s testimony concerning ignorance of his rights under the Mine Act was not credible.
David Hollis v. Consolidation Coal Co., 4 FMSHRC 1974 (Nov. 12, 1982) (ALJ Melick)
(“Hollis I”). Noting its limited role in reviewing a judge’s credibility determinations, the
Commission found that the judge’s conclusions were appropriate because the miner filed his
complaint 133 days late, despite his assertions that he was knowledgeable about the Mine Act,
that he was a militant chairman of the Safety Committee, and that he had written notice in his
arbitration decision of remedies available under the Mine Act. Hollis, 6 FMSHRC at 24-25.
In the instant case, there is no credible evidence that the miner knew of the time
limitations or his specific rights under §105(c) of the Act. Scoles’s delay in filing was quite
short—only 20 days. Had Respondent reviewed more recent caselaw beyond Hollis, it would
have found that discrimination complaints by miners who alleged ignorance of their rights under
the Act, filed shortly after the 60-day time-limit had run, where the Respondent has shown no
actual prejudice, are rarely held to be time-barred. See e.g. Daniel C. Howell v. Capitol Cement
Corp., 23 FMSHRC 901 (Aug. 6, 2001) (ALJ Bulluck) (4 month delay in filing permitted where
miner claimed he lacked knowledge of discrimination procedure); Sec’y of Labor obo Smith v.
Jim Walters Resources, Inc., 21 FMSHRC 359 (March 23, 1999) (ALJ Melick) (10 month delay
excused by filing within 61 days of first learning of section 105(c) and no claim of prejudice by
Respondent); Sec’y of Labor obo Rocoe Ray Young v. Lone Mountain Processing, Inc., 20
FMSHRC 1233 (Oct. 27, 1998) (ALJ Melick) (permitting complaint filed 21 days late); Sec’y of
Labor on behalf of Franco v. W.A. Morris Sand and Gravel, Inc., 18 FMSHRC 278 (Feb. 15,
1996) (ALJ Manning) (delay of 107 days justified by prompt filing after Complainant first
became aware of his rights under the Act).
The miner’s justifications for filing his complaint 20 days late appear reasonable.
Respondent has not alleged that it has been prejudiced by the delay in filing. Accordingly, the
Motion to Dismiss is DENIED.

Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
Distribution (Via E-mail and First Class Mail):
M. del Pilar Castillo, Esq., U.S. Dept. of Labor, Suite 630E, The Curtis Center, 170 S.
Independence Mall West, Philadelphia, PA 19106-3306; Castillo.m.pilar@dol.gov
Philip K. Kontul, Esq., Ogletree Deakins, One PPG Place, Suite 1900, Pittsburgh, PA 15222
Philip.kontul@ogletreedeakins.com
/mzm

38 FMSHRC Page 1255

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May 11, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. VA 2015-285

v.
DOMINION COAL CORPORATION,
Respondent.

Mine: Dominion No. 7
Mine ID: 44-06499

ORDER APPROVING SETTLEMENT
AND
ORDER TO PAY
Before: Judge Feldman
This proceeding is before me based upon a petition for assessment of civil penalty filed
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (the Act).
30 U.S.C. § 815(d). The Secretary proposed a civil penalty of $12,500.00 on July 24, 2015,
following a determination in Docket No. VA 2014-233 that Dominion Coal Corp. (“Dominion”)
violated the anti-discrimination provisions of section 105(c) of the Act. This finding of liability
was predicated on Dominion’s reduction in the pay of Scott G. McGlothlin after he had initiated
the application process for Part 90 protection available to miners suffering from pneumoconiosis.
McGlothlin v. Dominion Coal Corp., 37 FMSHRC 1256 (June 2015) (ALJ). The Commission,
in essence, affirmed the finding of Dominion’s liability for violation of section 105(c) of the Act.
38 FMSHRC __, slip op. (Mar. 30, 2016). Dominion now represents that it has agreed to
withdraw its contest of the proposed penalty and pay the $12,500.00 civil penalty proposed by
the Secretary.
I have considered the representations and documentation submitted in this matter and I
conclude that the proffered settlement terms are appropriate under the criteria set forth in Section
110(i) of the Act. Accordingly, Dominion Coal Corp. IS ORDERED to pay the proposed
$12,500.00 civil penalty within 30 days of the date of this Order.1 Upon receipt of timely
payment, the captioned civil penalty matter IS DISMISSED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge
1

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. Please include the
Docket No. and A.C. No. noted in the above caption on the check.
38 FMSHRC Page 1256

Distribution:
Pollyanna E.F. Hampton, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street
South, Suite 401, Arlington, VA 22202
David J. Hardy, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548,
Charleston, WV 25329
/acp

38 FMSHRC Page 1257

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May 16, 2016
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on
behalf of MICHAEL MURRAY,
Complainants,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. LAKE 2016-186-D
MSHA Case No. VINC-CD-2016-02

v.
MACH MINING, LLC,
Respondent.

Mine ID: 11-03141
Mine: Mach #1 Mine

ORDER DENYING MOTION TO DISSOLVE
This case is before me upon an application for temporary reinstatement filed by the
Secretary of Labor on behalf of Michael Murray (“the Complainant”) against Mach Mining, LLC
(“the Respondent”) pursuant to section 105(c) of the Federal Mine Safety and Health Act of
1977 (“the Mine Act”), 30 U.S.C. § 815(c).
The Complainant filed a discrimination complaint with the Secretary of Labor on January
12, 2016, and the Secretary subsequently initiated this temporary reinstatement proceeding.
Before the matter could proceed to hearing, the parties reached a settlement whereby the
Respondent agreed to economically reinstate the Complainant. The parties agreed that the period
of reinstatement would begin retroactively on March 7, 2016 and reinstatement would remain in
effect until the entry of a final order of the Commission regarding the Complainant’s underlying
discrimination complaint or until the dissolution of my order approving the settlement,
whichever should occur first. I approved the settlement on April 26, 2016. On May 6, 2016, the
Respondent filed a motion requesting that I dissolve my order approving the settlement and
release the Respondent from its reinstatement obligation.
Parties’ Positions
The Respondent argues that its temporary reinstatement obligation should be terminated
because the Secretary has failed to comply with the requirements of section 105(c)(3) of the
Mine Act. Section 105(c)(3) sets a deadline of 90 days after receipt of a discrimination complaint
for the Secretary to make a determination as to whether to initiate a discrimination proceeding on
the merits. See 30 U.S.C. § 815(c). In this case, the deadline passed on or about April 11, 2016,
but the Secretary has yet to decide whether to pursue the case on the merits. The Respondent
contends that requiring the company to provide reinstatement beyond the 90-day timeframe is
unfair and results in unjust enrichment to the Complainant.
The Secretary responds that the motion should be denied because the Commission has
made clear that the deadline set forth in section 105(c)(3) is non-jurisdictional. The Secretary
further asserts that despite Department of Labor’s failure to meet the deadline, the delay has not

38 FMSHRC Page 1258

legally prejudiced the Respondent and should not be found to trigger an outcome that will
prejudice the Complainant.
Counsel for the Complainant joins in the Secretary’s opposition to the motion to dissolve.
Discussion
Section 105(c)(2) of the Mine Act provides that after the Secretary receives a
discrimination complaint and initiates an investigation, “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).
Aside from the entry of a final order on the complaint, the Mine Act does not explicitly
identify any conditions that interrupt the mine operator’s reinstatement obligation. However,
precedent has established that the obligation may be tolled or dissolved in several situations. The
Commission has recognized that a subsequent change in the operator’s economic status, such as
closure of the mine or a mass layoff, may toll the reinstatement obligation. See Sec’y of Labor on
behalf of Gatlin v. KenAmerican Res., Inc., 31 FMSHRC 1050, 1054 (Oct. 2009). In addition, the
federal appellate courts have held that an order of temporary reinstatement must be dissolved if
and when the Secretary concludes, after investigating the underlying complaint, that no
discrimination has occurred. Vulcan Constr. Materials v. FMSHRC, 700 F.3d 297 (7th Cir.
2012); N. Fork Coal Corp. v. FMSHRC, 691 F.3d 735 (6th Cir. 2012).

38 FMSHRC Page 1259

This case does not present either of the situations described above, and the Respondent
has cited no other legal authority that would support releasing it from its obligation to comply
with the settlement agreement. The Secretary’s failure to meet the 90-day deadline under
105(c)(3) does not provide a basis upon which to dissolve a temporary reinstatement order. The
Commission has long recognized, as is noted in one of the cases cited in the Respondent’s
motion, that the deadlines imposed on the Secretary under 105(c) “are not intended to be
jurisdictional” and that “the complainant should not be prejudiced because of the failure of the
Government to meet its time obligations.” Gilbert v. Sandy Fork Mining Co., 9 FMSHRC 1327,
1337 (Aug. 1987) (quoting pertinent legislative history). Rather, the Commission has
emphasized that the intent of 105(c) is to make the miner whole until his case can be decided on
the merits. See Sec’y of Labor o/b/o Rieke v. Akzo Nobel Salt, Inc., 19 FMSHRC 1254, 1258
(July 1997). It would be contrary to the spirit of 105(c) to cut off the Complainant’s relief due to
the Secretary’s delay, and it would be premature for me to accept the Respondent’s contention
that the Complainant is being “unjustly” enriched when no determination has been made yet on
the merits of his complaint.
Accordingly, it is ORDERED that the Respondent’s motion to dissolve is DENIED.

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

Distribution:
R. Jason Patterson, Esq., U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn
Street, Room 844, Chicago, IL 60604
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Christopher D. Pence, Esq. & Eric L. Silkwood, Esq., Hardy Pence PLLC, 500 Lee Street East,
Suite 701, Charleston, WV 25301

38 FMSHRC Page 1260

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May 24, 2016
SANDRA G. MCDONALD,
Complainant,
v.
GEORGE KING, MARK TOLER,
GUARDCO SECURITY, LLC, and
NEW TRINITY COAL, INC.,
as successor-in-interest to
FRASURE CREEK MINING, LLC,

DISCRIMINATION PROCEEDING
Docket No. WEVA 2014-387-D
HOPE-CD 2013-10
Mine ID 46-07014 5G1

Respondents.
ORDER GRANTING MOTION TO AMEND COMPLAINT
Before: Judge Feldman
This case is before me based on a discrimination complaint filed on January 7, 2014,
pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, as amended,
30 U.S.C. § 815(c)(3) (2006) (Mine Act). Sandra G. McDonald seeks to recover relief under
Section 105(c) of the Mine Act,1 based on her alleged September 2013 termination of
employment by George King and Mark Toler,2 who were providing contract security guard

1

Section 105(c)(1) provides, in pertinent part:

No person shall discharge or in any manner discriminate against … any miner …
because such miner … has filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the operator’s agent … of an
alleged danger or safety or health violation in a coal or other mine … or because
such miner … instituted any proceeding under or related to this Act ….
30 U.S.C. § 815(c)(1).
2

McDonald’s initial complaint identified her employer as TMK Enterprise Security
Services, Inc. (“TMK”). However, the evidence of record reflects that TMK’s corporate status
was terminated by the state of West Virginia on June 12, 2009. As McDonald began working for
TMK in May 2011, McDonald was never employed by TMK, but rather was employed by King
and Toler, the former principals of TMK, who were apparently operating their security services
business as a non-corporate entity.

38 FMSHRC Page 1261

services at a mine site operated by Frasure Creek Mining, LLC (“Frasure Creek”). McDonald’s
discrimination complaint alleges, in essence, that her employment was terminated following
safety complaints concerning the wearing of hardhats by employees on Frasure Creek property,
as well as King and Toler’s failure to provide timely security guard refresher training.
On December 31, 2015, McDonald filed an amended complaint, which I construe
as a
motion to amend, seeking to add, for the first time in this proceeding, Guardco Security, LLC
(“Guardco”) and Frasure Creek as parties.3 Consequently, on February 26, 2016, the parties were
ordered to address the propriety of adding Guardco and Frasure Creek in this proceeding. 38
FMSHRC 389 (Feb. 2016) (ALJ). Briefs submitted in this matter reflect that Guardco has
provided contract security services at the Frasure Creek mine site since November 2014, which
were previously provided by King and Toler. Guardco Resp., at 2 (Apr. 12. 2016). The briefs
further reflect that Frasure Creek was the subject of a Chapter 11 bankruptcy proceeding, which
terminated on January 31, 2014, that identified New Trinity Coal, Inc. (“New Trinity”), inter
alia, as “reorganized debtors.” The bankruptcy proceeding provided that, as a reorganized
debtor, New Trinity acquired the property of Frasure Creek “free and clear of all Liens, Claims,
charges, Causes of Action, or other encumbrances.” New Trinity’s Mot. to Dismiss Frasure
Creek, at 3-4 (Apr. 7, 2016). Both New Trinity, identifying itself as a successor-in-interest to
Frasure Creek, and Guardco oppose McDonald’s motion to include them as Respondents. New
Trinity’s Opp’n to Adding Frasure Creek, at 4 (Apr. 20, 2016).
I.'

Guardco as a proper party

McDonald asserts that Guardco is a proper party as a successor-in-interest to King and
Toler’s business operation. The Commission has determined that a successor-in-interest may be
15
found liable for its predecessor’s discriminatory conduct. See Meek v. Essroc Corp.,
FMSHRC 606, 609-10 (Apr. 1993). To determine whether an entity is a proper successor-ininterest in a discrimination proceeding, the Commission traditionally considers nine factors:
(1) whether the successor company had notice of the charge, (2) the ability of the
predecessor to provide relief, (3) whether there has been a substantial continuity
of business operation, (4) whether the new employer uses the same plant, (5)
whether he uses the same or substantially the same work force, (6) whether he
uses the same or substantially the same supervisory personnel, (7) whether the
same jobs exist under substantially the same working conditions, (8) whether he
uses the same machinery, equipment and methods of production and (9) whether
he produces the same products.
Sec’y of Labor o/b/o Keene v. S&M Coal Co., 10 FMSHRC 1145, 1153 (Sep. 1988) (citing
Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463 (Dec. 1980), aff’d sub nom. Munsey
v. FMSHRC, 701 F.2d 976 (D.C. Cir 1983), cert. denied, 464 U.S. 851 (1983)).

3

McDonald’s December 31, 2015, amended complaint, also for the first time, identified
King and Toler in their individual capacities as Respondents.
38 FMSHRC Page 1262

Arguing that Guardco is a proper party as a successor-in-interest to King and Toler,
McDonald asserts:
Upon information and belief, Guardco conducts the same security activities at the
same mine sites, employing the same Site Supervisor Karen Payne who was
previously employed by Respondents King and Toler.
McDonald’s Memo. in Support of Adding Guardo and Frasure Creek, at 5 (Mar. 30, 2016).
In response, Guardco asserts:
In this matter the Defendent Guardco had absolutely no knowledge of and did not
know Ms. McDonald existed on this earth, nor did it have any knowledge that she
had a claim against her employer and Frasure Creek at the time they signed a
contract to provide security services for Frasure Creek. No representations were
made by Frasure Creek concerning this case whatsoever and Guardco had no
reason to suspect any claims were pending.
Guardco Resp., at 3 (Apr. 12. 2016).
In addressing whether Guardco should be included as a party as a successor-in-interest to
King and Toler, it is not necessary that all of the successorship criteria identified above be
satisfied. Resolution of whether a party is a proper successor-in-interest requires an equitable
determination in the context of the successorship criteria with respect to whether there is a
substantial continuity of business operations. The undisputed fact that Guardco has employed
Karen Payne as site supervisor for their operations, who was previously employed in the same
capacity by King and Toler, for the purpose of performing, essentially, the identical security
services performed by King and Toler, provides a colorable claim of successorship to include
Guardco as a party at this stage of the proceeding.
However, unresolved issues of fact may remain with respect to the continuity of business
of operations between King and Toler and Guardco, and other successorship criteria.
Consequently, Guardco will have the opportunity to demonstrate that it is not, in fact, a
successor-in-interest and a proper party at the forthcoming evidentiary hearing. As such,
McDonald’s motion to include Guardco as a Respondent in this matter at this stage of the
proceeding shall be granted.

38 FMSHRC Page 1263

II.'

New Trinity, as a successor-in-interest to Frasure Creek, as a proper party

McDonald’s initial section 105(c)(3) complaint was not docketed to include Frasure
Creek as a Respondent. On this basis, McDonald’s initial motion to amend her complaint by
adding Frasure Creek as a party, filed on February 18, 2015, was denied on March 12, 2015,
based on the Commission’s holding in Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 Apr.
1991). See Order Denying Mot. to Amend, 37 FMSHRC 683 (Mar. 2015) (ALJ). In Hatfield, the
Commission held:
If the Secretary’s . . . investigation . . . did not include consideration of the matters
contained in the amended complaint, the statutory prerequisites for a complaint
pursuant to § 105(c)(3) have not been met.
13 FMSHRC at 546; see also Pontiki Coal Corp., 19 FMSHRC 1009, 1018 (Jun. 1997).
Following the March 12, 2015, denial of McDonald’s request to include Frasure Creek as a party
based on the Commission’s holding in Hatfield, on October 23, 2015, the Commission, upon
review, granted broad leave for McDonald to “amend the complaint to add [all] other relevant
parties….” 37 FMSHRC 2239, 2243 (Oct. 2015).
Currently before me is McDonald’s second motion to amend her complaint, filed on
December 31, 2015, to add Frasure Creek as a party. New Trinity, as a successor-in-interest to
Frasure Creek, opposes McDonald’s motion for three reasons. Namely: 1) that McDonald’s
initial 105(c)(3) complaint failed to assert any allegations against Frasure Creek; 2) that Frasure
Creek was never properly served with McDonald’s initial 105(c)(3) complaint; and 3) that
McDonald’s claims against Frasure Creek were discharged in bankruptcy.
With respect to New Trinity’s first two objections, it is true that my March 12, 2015,
dismissal order initially denied McDonald’s motion to add Frasure Creek based on the
Commission’s holding in Hatfield. 37 FMSHRC 683 (Mar. 2015) (ALJ). However, upon
revisiting this issue subsequent to the Commission’s remand, I find it significant that the caption
of the Mine Safety and Health Administration’s (“MSHA”) December 5, 2013, letter declining to
pursue McDonald’s discrimination complaint noted both TMK (King and Toler) and Frasure
Creek. Shortly thereafter, McDonald’s January 7, 2014, 105(c)(3) complaint, filed with the
Commission, identified both TMK (King and Toler) and Frasure Creek in its caption.
Significantly, McDonald’s 105(c)(3) complaint reflects that copies were sent to: “USDOL,
MSHA Mt. Hope; TMK Enterprise Security; Frasure Creek.”
Additionally, the evidence further reflects that Frasure Creek communicated its
dissatisfaction with McDonald’s performance as a security guard to King and Toler at or about
the time McDonald was allegedly terminated. Letter from Vedat Ozsever, Director of Coal
Processing, to Karen Payne (Sept. 9, 2013). Thus, when viewed in its entirely, the evidence of
record demonstrates that McDonald, acting pro se at the time, adequately named Frasure Creek
as a relevant party in her discrimination complaint.

38 FMSHRC Page 1264

I am cognizant that McDonald has not formally sought to include New Trinity as a party
to this matter. However, by their own admission New Trinity has identified itself as a successorin-interest to Frasure Creek. Thus, I construe McDonald’s motion to add Frasure Creek as a
motion to add New Trinity as Frasure Creek’s successor.
Regarding New Trinity’s argument that McDonald’s claims against Frasure Creek were
discharged in bankruptcy, it is well-settled that the fundamental purpose of section 105(c) is to
ensure, where discrimination has occurred, that “discriminatees are made whole.” See, e.g.,
McGlothlin v. Dominion Coal Corp., 38 FMSHRC __, slip op. at 2 (Mar. 30, 2016). The Mine
Act’s goal would be thwarted if miners who are the victims of discrimination were left without a
remedy when a successor steps into the shoes of a predecessor as a result of a bankruptcy
proceeding. The issue of whether discrimination claims are not dischargeable in bankruptcy has
been thoroughly addressed by Judge Moran in ongoing litigation before him. See Lowe v. Veris
Gold USA, Inc., and Jerritt Canyon Gold, LLC, 38 FMSHRC __, slip op. at 6-11 (Mar. 14, 2016)
(ALJ); Varady v. Veris Gold USA, Inc., and Jerritt Canyon Gold, LLC, 38 FMSHRC __, slip op.
at 6-11 (Mar. 4, 2016) (ALJ). While I find it doubtful that discrimination claims can be
discharged in bankruptcy, I need not definitively address this matter until such time as it is
determined that McDonald has a meritorious claim against Frasure Creek. Thus, New Trinity’s
motion to dismiss based on its assertion that Frasure Creek’s bankruptcy precludes any liability
in this matter shall be denied as premature.
Consequently, New Trinity, as a successor-in-interest to Frasure Creek, shall be
included as a party at this stage of the proceeding. Inclusion of New Trinity at this point does
not prejudice New Trinity’s opportunity to demonstrate that it is not, in fact, a proper party at the
forthcoming evidentiary hearing.
Given that testimony in an evidentiary hearing is necessary to ultimately resolve the issue
of the proper parties to be included in this matter, in the interest of judicial economy, the hearing
on this issue shall be consolidated with the hearing on the merits of McDonald’s discrimination
complaint.
ORDER
In view of the above, IT IS ORDERED that McDonald’s December 31, 2015, motion to
amend her complaint to include George King, Mark Toler, Guardco Security, LLC, and New
Trinity Coal, Inc., as a successor-in-interest to Frasure Creek Mining, LLC, IS GRANTED.
IT IS FURTHER ORDERED that New Trinity’s motion to dismiss its participation in
this matter as a successor-in-interest to Frasure Creek IS DENIED as premature.

38 FMSHRC Page 1265

IT IS FURTHER ORDERED that the parties contact my law clerk, Avery Peechatka, at
apeechatka@fmshrc.gov within 10 days of the date of this Order to provide their availability
to schedule this matter for a hearing to commence no later than September 27, 2016.
Finally, nothing herein should be construed as either, an ultimate finding with respect to
the proper parties to be included in this matter, or a finding with regard to the merits of
McDonald’s discrimination complaint.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

Distribution: (by regular and certified mail)
Samuel B. Petsonk, Esq., Mountain State Justice, Inc., 1031 Quarrier Street, Suite 200,
Charleston, WV 25301(counsel for Sandra G. McDonald)
David C. Stratton, Esq., Stratton Law Firm, PSC, P.O. Box 1530, Pikeville, KY 41502 (counsel
for Guardco Security, LLC)
Mark W. Kelley, Esq., Ray, Winton & Kelley, PLLC, 109 Capitol Street, Suite 700, Charleston,
WV 25301 (counsel for New Trinity Coal, Inc.)
Mark Toler, P.O. Box 88, Delbarton, WV 25670
George King, 1704 Jackson Avenue, St. Albans, WV 25177

38 FMSHRC Page 1266

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May 25, 2016

SECRETARY OF LABOR, MSHA,
on behalf of JENNIFER MORREALE,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2014-793-DM
MSHA Case No.: WE MD 14-13

v.
VERIS GOLD USA, INC.,
JERRITT CANYON GOLD, LLC,
WHITEBOX MANAGEMENT, &
ERIC SPROTT,
Respondents.

!

Mine: Jerritt Canyon Mill
Mine ID: 26-01621

ORDER OF DISMISSAL
Before: Judge Simonton
This case is before me upon a discrimination complaint filed pursuant to section
105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) by Ms.
Jennifer Morreale (Complainant) against Veris Gold USA, Inc. (Respondent).
On May 20, 2016, this court issued an Order Conditionally Approving Joint Withdrawal
Motion stating that this matter would be dismissed with prejudice after confirmation of full
satisfaction of the parties’ private settlement agreement. May 20, 2016 Order. On May 23,
2016, Complainant and counsel for the Respondent both represented that the terms of the
settlement agreement had been completed and satisfied.
Accordingly, this matter is DISMISSED with prejudice.

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

38 FMSHRC Page 1267

Distribution: (U.S. First Class Mail)
Brad Mantel, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and
Health, 201 12th Street South, Suite 401, Arlington, VA 22202
Niamh E. Doherty, Office of the Solicitor, U.S Department of Labor, 350 S. Figueroa Street,
Suite 370, Los Angeles, CA 90071
Jennifer Morreale, 686 Westcott Drive, Spring Creek, NV 89815
Annette Jarvis, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 136 South Main
Street, Suite 1000, Salt Lake City, UT 84101
Mark R. Kaster, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 50 South Sixth Street,
Suite 1500, Minneapolis, MN 55402
Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1,
Canada
Cathy L. Reece, Counsel for Whitebox Management, LLC, 2394 East Camelback Rd., Ste. 600,
Phoenix, AZ 85016
Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th
Floor, Vancouver, BC V6C 3R8, Canada
!

38 FMSHRC Page 1268

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May 26, 2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of KELLY RAWLEY,
Complainant,
v.
J.L. SHERMAN EXCAVATION,
Respondent.

TEMPORARY REINSTATEMENT
PROCEEDING:
Docket No. WEST 2016-467-DM
MSHA Case No. WE MD 16-07
Mine ID: 45-03100
Mine: J.L. Sherman Excavation

APPROVAL OF SETTLEMENT AND ORDERS TO COMPLY
Before:
!

!

Judge Barbour

!

Pursuant to Section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 815(c)(2), the Secretary of Labor (“the Secretary”) has filed an application for the
temporary reinstatement of Kelly Rawley to the position of crusher supervisor at a portable
crushing plant owned and operated by J.L. Sherman Excavation (“the company”). The Secretary
seeks Mr. Rawley’s reinstatement pending a final disposition of Mr. Rawley’s complaint of
discrimination in which Mr. Rawley asserts he was illegally laid off by the company in October
2015 and then illegally denied re-employment in April 2016 when other company employees
were called back to work. Upon the company’s failure to offer re-employment, Mr. Rawley filed
the previously mentioned discrimination complaint with the Secretary’s Mine Safety and Health
Administration (“MSHA”). A copy of the complaint is attached to the Secretary’s application. In
the complaint, Mr. Rawley states:
I was the crusher supervisor . . . until October 6, 2015[.]
I had an ongoing argument about the brakes on the [No. 51]
980 front end loader . . . . An MSHA Inspector showed up
that day and I was told by the owner[,] Jeff Sherman[,]
do not talk to that inspector because I talk to[o] much[.]
We argued and I was fired[.]
On [November 24, 2015, I withdrew my [previous]
discrimination complaint based on my return as

38 FMSHRC Page 1269

crusher supervisor in the spring which will
apparently not happen.[1].
Application, Exh. A.
In April 2016, Mr. Rawley filed a second discrimination complaint which MSHA. The
agency assigned Owens to investigate the complaint. Owens concluded evidence exists that Mr.
Rawley was prevented from speaking with an MSHA inspector and was permanently let go in
part because he complained about safe working conditions with regard to the No. 51 980 front
end loader. Therefore, Owens found that Mr. Rawley’s complaint was not frivolously brought.
Upon learning of this determination, the Secretary, through counsel, filed the subject application
to temporarily reinstate Mr. Rawley pending a final resolution of Mr. Rawley’s April 2016
complaint.
The Commission’s Chief Judge assigned the case to the court, and the court, through its
law clerk, contacted counsels to schedule a conference call. The court intended to propose an
expedited date for hearing the application. However, before the call was made, counsels advised
the court’s law clerk that they agreed to settle the application by economically reinstating Mr.
Rawley until a determination can be made by MSHA if Mr. Rawley’s complaint has merit and, if
so, until a hearing on Mr. Rawley’s discrimination complaint can be held and the matter can be
finally decided. On May 23, 2016, the court received the parties Settlement Agreement and Joint
Motion for Temporary Economic Reinstatement. The pertinent terms of the agreement are as
follows:
4.) [The company] agrees to economically reinstate Mr. Rawley to his position as a
crusher supervisor, effective upon the approval of this Settlement and Order . . . .
[The company] agrees to pay Mr. Rawley at his regular rate of pay for $19 per
hour for the first 40 hours per week and $28 per hour over 40 [hours] per work
week subject to normal deductions. [The company] agrees to pay Mr. Rawley for
44 hours per week.
5.) [The company] shall provide benefits (if any, including but not limited to health
insurance, retirement plan, and seniority accrual) associated with Mr. Rawley’s
employment and consistent with those provided pre-termination. [The company]
may deduct all applicable tax withholdings and other withholdings on the same
basis as generally required for payment of other benefits pursuant to its policies
and practices applicable to other employees.

1

According to MSHA’s investigator, Corey Owens, Mr. Rawley’s original
discrimination complaint was filed on November 12, 2015. Application, Exh. B 3. Owens states
that after Mr. Rawley filed the complaint he was told by a company representative that he had
not been fired. Instead, the representative described his work hiatus as a “layoff” and told Mr.
Rawley that he would be brought back to work in 2016 when the mine’s seasonal closure ended.
Id. However, on April 12, 2016, Mr. Rawley learned that he would not be brought back to work.
Id.

38 FMSHRC Page 1270

6.) The first payment shall be due to Mr. Rawley on [the company’s] first regular
weekly pay day after the date of approval of this Settlement Agreement an
administrative law judge. All subsequent payments shall be due on [the
company’s] regular weekly pay days. All payments shall be made by regular
payroll or certified check to “Kelly Rawley” and sent to the following address:
Kelly Rawley
P.O. Box 0045
Laclede, ID 83841
Proof of each payment shall be forwarded by email within five days to
brown.bruce.1@dol.gov.
7.) [The company] agrees to provide a neutral job reference for Mr. Rawley if
contacted by potential employers.
8.) If [the company] fails to provide payment and benefits as required by this
Settlement Agreement and Motion . . . the Commission may sanction [the
company].
9.) Mr. Rawley’s economic temporary reinstatement shall terminate upon a finding by
the Secretary that Section 105(c)(1) has not been violated. Alternatively, if the
Secretary finds that the discrimination complaint has merit and the Secretary files
a Complaint of Discrimination pursuant to Section 105(c)(2) with the
Commission, Mr. Rawley’s economic temporary reinstatement shall expire only
after entry of a final order on the Complaint.
APPROVAL OF THE SETTLEMENT
The settlement protects the economic interest of Mr. Rawley while the merits of his
discrimination complaint are determined. At the same time, it recognizes the limits of Mr.
Rawley’s proposed economic reinstatement. For these reasons, the court concludes the
settlement faithfully reflects the purpose of section 105(c)(2), and the agreement IS
APPROVED.
ORDER
THE COMPANY’S REQUIREMENTS UNDER THE ORDER
Given the court’s approval of the settlement the company SHALL comply in full with
the terms of the settlement agreement. In particular it SHALL:
(1)!

Economically reinstate Mr. Rawley to his position as a crusher supervisor, effective the
date of this Order and it SHALL pay Mr. Rawley at his regular rate of pay of $19 per
hour for the first 40 hours per week and $28 per hour over hours over 40 hours per week,
subject to normal deductions, and it SHALL PAY Mr. Rawley for 44 hours per week
each week that he is economically reinstated;

38 FMSHRC Page 1271

(2)!

Provide benefits (if any, including but not limited to health insurance, retirement plan,
and seniority accrual) associated with Mr. Rawley’s employment and consistent with
those provided pre-termination. [The company] may deduct all applicable tax
withholdings and other withholdings on the same basis as generally required for payment
of other benefits pursuant to its policies and practices applicable to other employees;

(3)!

Pay Mr. Rawley his first payment on [the company’s] first regular weekly pay day after
the date of this Approval and Order. All subsequent payments SHALL be due on [the
company’s] regular weekly pay days. All payments SHALL be made by regular payroll
or certified check to “Kelly Rawley” and SHALL be sent to the address specified in the
agreement. The company SHALL forward proof of each payment by email to
brown.bruce.1@dol.gov within five days of each payment;

(4)!

Provide a neutral job reference for Mr. Rawley to any potential employer.
THE SECETARY’S REQUIREMENTS UNDER THE ORDER

To expedite the Secretary’s consideration of Mr. Rawley’s complaint, the Secretary
SHALL no later than 60 days from the date of this Order, advise Mr. Rawley, the company, and
the court as to its determination whether section 105(c)(1) has been violated. If the conclusion
of the Secretary is that the company did not violate section 105(c)(1), Mr. Rawley’s temporary
economic reinstatement SHALL end and from that time forward the company will be under no
obligation to pay Mr. Rawley or to comply with any other provisions of the agreement. If the
Secretary concludes Mr. Rawley’s discrimination complaint has merit and that the company
violated section 105(c)(1), the Secretary SHALL forthwith file a discrimination complaint with
the Federal Mine Safety and Health Review Commission on Mr. Rawley’s behalf.

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge
Distribution: (Certified Mail)
Bruce L. Brown, Associate Regional Solicitor, U.S. Department of Labor, Office of the Solicitor,
300 Fifth Avenue, Suite 1120 Seattle, WA 98104
Robin R. McCroskey, Esq., 405 W. Walnut, Suite 4, Newport, WA 99156
Kelly Rawley, P.O. Box 0045, Laclede, ID 83841
/db

38 FMSHRC Page 1272