March 2017
TABLE OF CONTENTS

COMMISSION DECISIONS
03-28-17

MICHAEL K. McNARY v. ALCOA
WORLD ALUMINA, LLC

CENT 2015-279-DM

Page 433

03-29-17

NORANDA ALUMINA, LLC

CENT 2015-71-M

Page 441

COMMISSION ORDERS
03-06-17

ZEOTECH CORPORATION

CENT 2016-149-M

Page 447

03-06-17

REDHAWK MINING LLC

KENT 2016-147

Page 450

03-06-17

RISING SUN DEVELOPMENT LLC

KENT 2016-202-M

Page 453

03-06-17

JESSE CREEK MINING, LLC

SE 2016-43

Page 456

03-06-17

A&G COAL CORPORATION

VA 2016-111

Page 461

03-06-17

THE SILVER QUEEN MINE LLC

WEST 2016-56-M

Page 464

03-06-17

MARIGOLD MINING COMPANY

WEST 2016-261-M

Page 467

03-06-17

ESSROC CEMENT CORP.

WEVA 2014-818-RM

Page 470

03-06-17

CARTER ROAG COAL COMPANY

WEVA 2016-86

Page 473

i

03-28-17

CARROLL COUNTY STONE, INC.

CENT 2015-475-M

Page 476

03-28-17

ARMSTRONG CEMENT & SUPPLY
CORPORATION

PENN 2016-270-M

Page 479

03-28-17

LEHIGH SOUTHWEST CEMENT
COMPANY

WEST 2015-690-M

Page 482

03-28-17

MUNSEN PAVING, LLC

WEST 2016-215-M

Page 485

03-28-17

LEHIGH SOUTHWEST CEMENT
COMPANY

WEST 2016-464-M

Page 488

03-31-17

THE QUIKRETE COMPANIES

CENT 2016-231-M

Page 491

03-31-17

THYSSEN KRUPP INDUSTRIAL
SOLUTIONS (USA), INC.

CENT 2016-325-M

Page 494

03-31-17

AMERICAN TALC COMPANY

CENT 2016-338-M

Page 497

03-31-17

METZGER REMOVAL, INC.

SE 2016-207-M

Page 500

03-31-17

USIBELLI COAL MINE, INC.

WEST 2016-300

Page 503

03-31-17

GOOD BENTONITE COMPANY,
LLC

WEST 2016-335

Page 506

ADMINISTRATIVE LAW JUDGE DECISIONS
03-03-17

WARRIOR COAL, LLC

KENT 2012-706

Page 509

03-06-17

JONES BROTHERS INC.

SE 2016-246

Page 570

ii

03-07-17

CONSOL PENNSYLVANIA COAL
CO., LLC

PENN 2016-132

Page 572

03-07-17

ORIGINAL SIXTEEN TO ONE
MINE, INC.

WEST 2015-850-M

Page 590

03-07-17

SIGNAL PEAK ENERGY LLC

WEST 2016-0624-R

Page 638

03-08-07

CONSOLIDATION COAL CO.

WEVA 2015-0036

Page 654

03-15-17

NALLY & HAMILTON
ENTERPRISES

KENT 2011-434

Page 666

03-20-17

STAR MINE OPERATIONS, LLC

WEST 2014-994-M

Page 675

03-24-17

PEABODY MIDWEST MINING,
LLC

LAKE 2016-0232

Page 685

03-30-17

NEWMONT SLATE COMPANY,
INC.

YORK 2016-20-M

Page 689

03-31-17

SEC. OF LABOR O/B/O JEFFREY
PAPPAS v. CALPORTLAND
COMPANY, and RIVERSIDE
CEMENT COMPANY

WEST 2016-264-DM

Page 718

ADMINISTRATIVE LAW JUDGE ORDERS
02-03-17

INTREPID POTASH – NEW
MEXICO, LLC

CENT 2016-219-M

Page 771

03-15-17

CYPRESS POINTE
INCORPORATED

CENT 2015-480-M

Page 776

03-20-17

DANIEL B. LOWE v. VERIS GOLD
USA, INC., and JERRITT CANYON
GOLD, LLC

WEST 2014-614-DM

Page 781

iii

03-21-17

WALBRIDGE COMPANY and
IMPERIAL CRANE SERVICES, INC.

LAKE 2017-0190

Page 790

03-23-17

PEABODY MIDWEST MINING LLC

LAKE 2016-0305

Page 794

03-27-17

MATTHEW A. VARADY v. VERIS
GOLD USA, INC., and JERRITT
CANYON GOLD, LLC

WEST 2014-307-DM

Page 798

03-27-17

VERIS GOLD USA, INC., and its
Successors

WEST 2015-909-M

Page 801

03-28-17

M-CLASS MINING, INC.

LAKE 2015-686

Page 804

03-30-17

SEC. OF LABOR O/B/O JEFFREY
PAPPAS v. CALPORTLAND
COMPANY, and RIVERSIDE
CEMENT COMPANY

WEST 2016-264-DM

Page 808

iv

Review was not granted or denied in any case during the month of March 2017.

Previously unpublished in FMSHRC Volume 39, No. 2:
Secretary of Labor, MSHA v. Intrepid Potash – New Mexico, LLC, Docket Nos. CENT 2016219-M, CENT 2016-220-M (Judge Rae, February 3, 2017)

v

COMMISSION DECISIONS

39 FMSHRC Page 432

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

March 28, 2017
MICHAEL K. McNARY
v.

Docket No. CENT 2015-279-DM

ALCOA WORLD ALUMINA, LLC
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This proceeding, arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), involves a complaint filed by Michael
McNary alleging that Alcoa World Alumina, LLC had interfered with his statutory rights in
violation of section 105(c)(1) of the Act, 30 U.S.C. § 815(c)(1).1 A Commission Administrative
Law Judge granted the motion for summary decision filed by Alcoa and dismissed the
proceeding on the grounds that McNary had failed to present evidence of any adverse action
supporting his interference claim. 37 FMSHRC 2205, 2212-14 (Sept. 2015) (ALJ).
McNary filed a petition for discretionary review challenging the Judge’s entry of
summary decision on the basis that the Judge applied an incorrect standard in evaluating the
interference claim and failed to view the record in a light most favorable to McNary, the nonmoving party. We granted the petition and heard oral argument. For the reasons discussed below,
we hold that the Judge erred in entering summary decision. Accordingly, we vacate the Judge’s
decision and remand for further proceedings.

1

Section 105(c)(1) of the Mine Act provides in relevant part:
No person shall discharge or in any manner discriminate
against . . . or otherwise interfere with the exercise of statutory
rights of any miner . . . because such miner . . . has filed or made a
complaint under or related to this Act . . . or because of the
exercise by such miner . . . of any statutory right afforded by this
Act.

30 U.S.C. § 815(c)(1).

39 FMSHRC Page 433

I.
Factual and Procedural Background
Alcoa operates the Bayer Alumina Plant in Point Comfort, Texas. Alumina is produced
by grinding bauxite and mixing it with sodium hydroxide to form a slurry. The slurry is
combined with steam under high heat and pressure to produce sodium aluminate. The sodium
aluminate then undergoes clarification, precipitation, and calcination to produce alumina.
In 2013, McNary was a miners’ representative2 and managed pumps in the Digestion
Department at the plant. Steve Emig, the Department supervisor, had been one of McNary’s
managers since March 2013.3
On January 8, 2014, McNary was walking through his work route when he observed a
valve on the 5L5 pump blowing out hot slurry, which can reach a temperature of 480 degrees
Fahrenheit. Emig arrived and helped some of the miners in the area to put on special suits to
protect them from the slurry so that they could close the pump. Emig approached McNary, who
was standing next to another miners’ representative, Delton Luhn, and asked McNary to get tape
from the tool room. The tape was to be used to prevent slurry from getting under the miners’
gloves. Id. at 2206.
McNary was not able to find tape in the tool room. As he was returning to the 5L5 pump,
he asked another miner to request that Kelly Grones, the health and safety manager, go to the
5L5 pump. Before he was able to return to the 5L5 pump, another supervisor, Miguel Gonzales,
asked McNary to check on another pump to see if it was blowing out. McNary checked the other
pump, which was not blowing out, and returned to the 5L5 pump. Id.
When he returned to the pump, McNary observed that two miners had attempted to close
the pump. McNary gestured for Emig to come to the side. McNary informed Emig that Kelly

2

A miners’ representative has various rights and responsibilities under the Mine Act.
These include the right to accompany an inspector from the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) during inspections of a mine, to be involved in pre- or
post- inspection conferences (30 U.S.C. § 813(f)), and to request an immediate inspection of a
mine (30 U.S.C. § 813(g)).
3

Because this proceeding was decided on summary decision, there was no evidentiary
hearing. McNary and Emig were deposed on July 8, 2015, and each provided different accounts
of the events which are the basis of this proceeding. The Judge relied upon McNary’s deposition
testimony in his decision. 37 FMSHRC at 2205-06. It was proper for the Judge to rely on
McNary’s version of the facts in that McNary was the party opposing the motion for summary
decision. KenAmerican Res., Inc., 38 FMSHRC 1943, 1946 (Aug. 2016) (“‘[w]e look at the
record on summary judgment in the light most favorable to . . . the party opposing the motion.’”)
(citations omitted).

39 FMSHRC Page 434

Grones was on her way. McNary described the following reaction by Emig and the subsequent
confrontation:
[W]hen I told him that Kelly was on her way over there and
he said, “You shouldn’t have . . . called anyone, because this is my
department and I direct the workforce,” and I asked Steve [Emig],
“Well, why did you direct . . . the operators into the hot slurry?”
And Steve says, “I didn’t direct them in there.” I say[], “Well, you
watched them go in there and you didn’t stop them.” And I asked
him, “How did they get in there?” And Steve said, “They
volunteered.”
....
When . . . Steve said they volunteered to go in there . . . I
basically told Steve, “You watched them go in there. You didn’t
stop them.”
And Steve . . . said, “You shouldn’t be involved in these
matters.” And I told him, “I’m an MSHA rep and I’m concerned
for the safety of these operators. I should be. I should be concerned
with these matters.”
And that’s when Steve told me, “I will remove you as
MSHA rep. I will remove you . . . from this department, and I will
remove you from the plant.”
Id. (quoting McNary Dep. at 62-63).
Carlos Delgado, the chief miners’ representative at the plant, and MSHA Inspector Brett
Barrett then walked up to the area. Id. at 2214; McNary Dep. at 63-64. According to McNary,
McNary informed them that Emig had just threatened him, and Delgado replied, “Yeah, I heard
it.” McNary Dep. at 64. McNary described the exchange that followed:
Steve [Emig] started . . . explaining something to . . . Carlos and
Brett that actually didn’t happen that way. And, yes, I butted in.
....
Well, actually, he was telling Carlos and Brett that he didn’t
threaten me, which I know he did threaten me. And I said, you
know, “it didn’t happen that way.” And Steve says, “I’m done with
you.”
....
And I asked Steve . . . , “Are you done with me? Are you done
with me for good?” Because the threat was still there. He had
threatened me prior. And when I asked him, “Are you done for

39 FMSHRC Page 435

good,” I’m asking him, are you carrying out your threat? And he
says, “No, I’m not done for good.”
37 FMSHRC at 2214, quoting McNary Dep. at 64.
McNary subsequently filed a complaint with MSHA, and was later informed that MSHA
would not be pursuing his case. McNary then filed a complaint with the Commission pursuant to
section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3).4 The operator subsequently filed a motion
for summary decision, to which McNary responded pro se.
The Judge granted Alcoa’s motion for summary decision, concluding that, making all
inferences in favor of the non-moving party, McNary had not presented evidence of any adverse
action that would dissuade a reasonable miner from engaging in protected activity. 37 FMSHRC
at 2215. McNary subsequently retained counsel and filed a petition for discretionary review
challenging the Judge’s determination, which we granted.
II.
Disposition
that:

Summary decisions are governed by Commission Procedural Rule 67, which 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 fact; and (2) That the moving
party is entitled to summary decision as a matter of law.

29 C.F.R. § 2700.67(b).
The Commission reviews a Judge’s summary decision de novo. See Lakeview Rock
Prods. Inc., 33 FMSHRC 2985, 2988 (Dec. 2011). Summary decision is appropriate only if there
are no material facts in dispute and the movant’s position is entitled to judgment as a matter of
law. West Ala. Sand & Gravel, Inc., 37 FMSHRC 1884, 1886-87 (Sep. 2015). The Commission
has recognized that the record and the inferences drawn from the underlying facts on summary
decision must be viewed in the light most favorable to the party opposing the motion.
KenAmerican, 38 FMSHRC at 1946 (citations omitted). When the Commission reviews a
summary decision and determines that the record before the Judge contains disputed material
4

Under section 105(c)(2) of the Act, a miner may file a complaint with the Secretary of
Labor alleging discrimination or interference in violation of section 105(c)(1), and the Secretary
is required to investigate the complaint. If, upon such investigation, the Secretary determines that
a violation has occurred, the Secretary is required to file a complaint on behalf of the miner with
the Commission. 30 U.S.C. § 815(c)(2). If, however, the Secretary determines that no violation
has occurred, “the complainant shall have the right . . . to file an action in his own behalf before
the Commission, charging discrimination or interference in violation of [section 105(c)(1)].” 30
U.S.C. § 815(c)(3).

39 FMSHRC Page 436

facts, the proper course is to vacate the grant of summary decision and remand the matter for an
evidentiary hearing. See Energy West Mining Co., 17 FMSHRC 1313, 1316-17 (Aug. 1995).
Alcoa moved for summary decision on the basis that McNary had failed to establish an
adverse action by Alcoa in response to McNary’s protected activity.5 37 FMSHRC at 2205. In
considering whether Alcoa’s position is entitled to judgment as a matter of law, we preliminarily
examine the standard applied by the Judge to determine whether Alcoa had impermissibly
interfered with McNary’s statutory rights in violation of section 105(c) of the Mine Act.
Section 105(c)(1) states in relevant part that “[n]o person shall discharge or in any
manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of
any miner. . . .” 30 U.S.C. § 815(c)(1) (emphasis added). Section 105(c)(3) permits an individual
to file a complaint charging “discrimination or interference” in violation of section 105(c)(1). 30
U.S.C. § 815(c)(3).
The Judge set forth a legal framework that has been applied by the Commission to
establish a discrimination violation under section 105(c), which has been commonly referred to
as the “Pasula-Robinette test.”6 37 FMSHRC at 2210 (citing Sec’y of Labor on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981)). Under that test, a
complainant establishes a prima facie violation of discrimination by showing that he engaged in
protected activity, and thereafter, suffered an adverse employment action that was motivated at
least in part by the protected activity.7
The Judge further recognized that the Commission applies the adverse action test
articulated in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). 37
FMSHRC at 2212-13 (“‘[A] plaintiff must show that a reasonable employee would have found
the challenged action materially adverse, which . . . means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.’”) (quoting Burlington,
548 U.S. at 68) (other citations omitted). Applying this test, the Judge reasoned that “Alcoa’s
actions will be found to be adverse actions if they would dissuade a reasonable miner from
engaging in protected activity.” 37 FMSHRC at 2213. Quoting Moses v. Whitley Development
Corp., 4 FMSHRC 1475, 1479 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985), the Judge stated
5

The other basis for Alcoa’s motion for summary decision was that McNary did not
timely file his complaint with the Commission. A. Mem. Supporting Summ. Dec. at 9. The Judge
excused the late filing of McNary’s complaint (37 FMSHRC at 2212), and Alcoa did not file a
cross-petition for discretionary review challenging that finding.
6

The Commission has not explicitly held whether the Pasula-Robinette framework is the
only framework applicable to claims brought under section 105(c). Given the Judge’s errors in
granting summary decision discussed supra, we need not reach that question at this preliminary
stage of this proceeding.
7

The operator conceded only for purposes of summary decision that McNary had
engaged in protected activity by calling Grones and expressing concerns about safety. A. Resp.
Br. at 11.

39 FMSHRC Page 437

that “harassment over the exercise of protected rights is prohibited by section 105(c)(1) of the
Mine Act.” 37 FMSHRC at 2213.
The Judge ultimately concluded, however, that “[m]aking all inferences in favor of the
nonmoving party, Complainant has not presented evidence of any adverse action properly before
the Court that would dissuade a reasonable miner from engaging in protected activity.” Id. at
2215.
We conclude that while the Judge correctly set forth the standard for summary decision,
he erred in its application. We therefore vacate the Judge’s grant of summary decision and
remand for an evidentiary hearing.
First, the Judge erred in entering summary decision in favor of Alcoa because he viewed
some of the underlying facts in a light favorable to Alcoa, rather than to the opposing party,
McNary. The Judge characterized Emig’s threats to McNary that he would remove McNary as
an MSHA representative, remove him from the department, and remove him from the plant as
“vague,” “not clearly directed at protected activity,” and having “occurred during an emergency
situation.” 37 FMSHRC at 2214.
The Judge clearly viewed Emig’s statement in a light most favorable to Alcoa by
focusing on the surrounding circumstances of the emergency rather than by focusing on the
language which could be viewed as a threat to terminate McNary’s employment. At least two of
the three threats were not vague. It may be said that “removal from the plant” is susceptible to
different meanings depending upon the length of time of the removal. However, the threats to
remove McNary as a miners’ representative and to remove him “from the department” were
quite specific.
Second, the Judge erred in drawing inferences from the underlying facts that favored
Alcoa rather than McNary. At least two different meanings may be inferred from Emig’s
statement that he “was not done for good”: (1) that Emig was done arguing with McNary and
was backing off, and that McNary was in no danger of removal; or (2) that Emig was done
talking with McNary now, but would deal with McNary later, and the removal threat was
continuing. The first inference is favorable to Alcoa, while the second inference is favorable to
McNary. The Judge drew an inference most favorable to Alcoa, the first meaning above, stating
that Emig’s statement was an assurance that Emig would not be carrying out his threat of
removal. Id.8 Confronted with these competing inferences, the Judge ruled in favor of the
moving party, Alcoa, even though he acknowledged in his opinion that McNary had interpreted
Emig’s statement as a continuing threat of removal. Id.
The Judge also rejected McNary’s interpretation because he found that there were no
subsequent events that constituted retaliation or adverse employment actions. Id. This was error.

8

Acting Chairman Althen takes the position that, when all material facts are uncontested
in a bench trial with a judge as the ultimate trier of fact, the trial judge may draw necessary
ultimate inferences of fact. See KenAmerican Res., 38 FMSHRC at 1954-71 (Young and Althen,
dissenting).

39 FMSHRC Page 438

Even if there was no adverse employment action in the tangible sense of a firing,
suspension, transfer or other action which directly impacts a miner’s job status, the threats
themselves may constitute interference within the meaning of section 105(c)(1) of the Mine Act.
In this case, the evidence indicates that the statements which Emig made to McNary threatening
to remove him as an MSHA representative, remove him from the department and remove him
from the plant were very public. See Emig. Dep. at 19. Other miners in the area heard Emig’s
statements. See, e.g., Delgado Aff. ¶ 3; Luhn Aff. ¶ 3. If miners understood those statements as
threats directed at their representative for MSHA matters after the miners’ representative raised a
very serious safety concern,9 the threats could broadly chill miners’ willingness to raise safety
concerns in the future.
Therefore, McNary does not have a burden of demonstrating that a threat of reprisal had
actually been carried out in a tangible way. In Moses, the Commission concluded that “coercive
interrogation and harassment over the exercise of protected rights” was prohibited under section
105(c). 4 FMSHRC at 1478. In so holding, the Commission noted Congress’ direct and express
concern about the chilling effect of such threats on miners in the legislative history for section
105(c) explaining that “it is clear that section 105(c)(1) was intended to encourage miner
participation in enforcement of the Mine Act by protecting them against ‘not only the common
forms of discrimination, such as discharge, suspension, demotion . . . , but also against the more
subtle forms of interference, such as promises of benefit or threats of reprisal.’” Id. (quoting S.
Rep. 95-181 at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 95th
Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624 (1978)
(emphasis added). Thus, under established Commission precedent, section 105(c) does not
protect only against tangible acts of reprisal. Rather, it also protects miners against “threats of
reprisal” that chill the exercise of protected rights.

9

McNary’s concern about workers being burned by the hot slurry arose in the context of
employees suffering serious burns at the Alcoa plant. Four months prior to this incident, on
September 9, 2013, an operator was “badly burned” in an accident at the plant. Emig Video Dep.
In December 2011, McNary himself suffered second and third-degree burns on his face, torso,
back, and buttocks. See McNary Add. Resp. to Def’s Proposed Findings of Fact and Mot. for
Summ. Dec.

39 FMSHRC Page 439

In short, the Judge erred in entering summary decision because he failed to view the
record and to draw inferences in a light most favorable to McNary, and because Alcoa was not
entitled to summary decision as a matter of law. Accordingly, we vacate the Judge’s decision and
remand for further proceedings, including an evidentiary hearing.
III.
Conclusion
For the foregoing reasons, we vacate the Judge’s decision granting summary decision,
and remand for further proceedings consistent with this opinion.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 440

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

March 29, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. CENT 2015-71-M

v.
NORANDA ALUMINA, LLC
BEFORE:

Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”) and comes to the Commission on remand
from the United States Court of Appeals for the Fifth Circuit. Noranda Alumina, LLC v. Perez,
841 F.3d 661 (5th Cir. 2016). The Court directed the Commission to review our denial of a
motion filed by Noranda Alumina, LLC (“Noranda”) to reopen a final order assessing a penalty.
The Court determined that the Commission must explain and apply the factors it considers when
denying a motion to reopen on the ground of inadequate internal procedures. Consistent with the
Court’s decision and our re-analysis of the facts, on remand we grant the motion to reopen.
I.
Factual Background
Noranda operates an alumina refinery near Gramercy, Louisiana. In March or April
2014, a contractor detected mercury in Noranda’s facility. The Department of Labor’s Mine
Safety and Health Administration (“MSHA”) inspected the facility and issued two citations to
the operator for failing to test for mercury. The operator participated in a safety and health
conference with MSHA on June 12, 2014, but failed to persuade MSHA to change the citations.
MSHA proposed a penalty assessment for the citations, which was delivered to the
operator on July 18, 2014. However, Louis DeRose, the Environmental Safety and Health
Manager who handled proposed assessments for Noranda, unexpectedly quit on that day.
Therefore, the proposed assessment was handled by Environmental Manager Bud Preston and
Plant Manager Dave Hamling. Preston, who was not familiar with MSHA procedures and
mistakenly believed the proposed assessment was a bill, asked Hamling whether it should be
paid. Hamling approved the payment, which was made by check dated July 25, 2014.

39 FMSHRC Page 441

Noranda filed a motion to reopen the penalty assessment at issue on October 31, 2014.
The operator claimed that it had always intended to contest the citations and that it had
inadvertently paid the proposed assessment. The Secretary opposed the request to reopen,
arguing that the operator failed to timely contest the assessment because of its inadequate
internal procedures.
On December 18, 2015, the Commission issued an order denying Noranda’s motion to
reopen this matter. Noranda Alumina LLC, 37 FMSHRC 2731 (Dec. 2015). The Commission
agreed with the Secretary’s characterization of Noranda’s procedures as inadequate. The
Commission stated that, “Here, the failure to timely contest the proposed assessment after the
departure of the individual who previously handled such matters represents an inadequate
internal processing system and fails to establish good cause for reopening a final order.”
On November 8, 2016, the Court of Appeals for the Fifth Circuit vacated and remanded
the Commission’s decision. The Fifth Circuit found that the Commission had selectively applied
its rule that inadequate procedures warrant denial of an operator’s motion to reopen. On remand,
the Fifth Circuit directed the Commission to explain the factors it considers when it denies a
motion to reopen on the basis of inadequate procedures and to apply those factors to this case.
841 F.3d at 669.
II.
Legal Principles Applicable to Motions to Reopen Final Penalty Assessments
Under section 105(a) of the Mine Act, the Secretary must notify a mine operator of the
proposed civil penalty for the issuance of any citation or order. 30 U.S.C. § 815(a). In turn, an
operator who wishes to contest a proposed penalty must notify the Secretary no later than 30
days after receiving the proposed penalty assessment. If the operator fails to notify the Secretary
of its contest within the 30-day period, the proposed penalty assessment becomes a final order of
the Commission by operation of the statute. Id.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission finds guidance in Rule 60(b) of the Federal
Rules of Civil Procedure under which a party may be relieved from a final order of the
Commission upon a showing of mistake, inadvertence, surprise, excusable neglect, or other
reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be
guided so far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at
787.

39 FMSHRC Page 442

Reopening a penalty that has become final is extraordinary relief. Thus, the operator has
the burden of showing that it is entitled to such relief, through a detailed explanation of its failure
to timely contest the penalty and any delays in filing for reopening:
At a minimum, the applicant for such relief must provide all
known details, including relevant dates and persons involved, and
a clear explanation that accounts, to the best of the operator's
knowledge, for the failure to submit a timely response and for any
delays in seeking relief once the operator became aware of the
delinquency or failure
Higgins Stone Co., 32 FMSHRC 33, 34 (Jan. 2010).
In reviewing an operator's explanation, we consider the entire range of factors relevant to
determining whether the operator’s error was the result of mistake, inadvertence, surprise,
excusable neglect, or another good faith reason. No precise formula exists for weighing the
factors, and the analysis is conducted on a case-by-case basis. However, key factors are
identifiable. The Commission has provided guidance to operators on its website explaining the
factors that will generally be considered in determining whether to grant relief:
The Commission has considered a number of factors in
determining whether good cause exists: (1) the error does not
reflect indifference, inattention, inadequate or unreliable office
procedures or general carelessness; (2) the error resulted from
mistakes that the operator typically does not make; (3) procedures
to prevent, identify and correct such mistakes have been adopted or
changed, as appropriate; (4) . . . A proper motion must also
provide all relevant documentation and identify the persons who
have knowledge of the circumstances. . . . Your motion should also
be supported by affidavit(s) of (a) person(s) with direct knowledge
of the underlying facts. Motions for relief must identify and
explain: (1) why a timely contest was not filed; (2) how and when
you first discovered the failure to timely contest the penalty and
how you responded once this was discovered. (3) If the motion to
reopen was filed more than 30 days after you first learned that the
penalty was not timely contested, you must provide a reasonable
explanation for the delay or your motion may be DENIED.
FMSHRC, Requests to Reopen,
https://www.fmshrc.gov/content/requests-reopen (last visited March 28, 2017).
In addition, it is important to consider the good faith of the operator’s actions and
whether MSHA opposed the motion to reopen. Pioneer Inv. Servs. Co. v. Brunswick
Associated Ltd. P’ship, 507 U.S. 380, 395 (1993); FC Hemisphere Assocs., LLC v. Democratic
Republic ofCongo, 447 F.3d 835, 838 (D.C. Cir. 2006); Oak Grove Res. LLC, 33 FMSHRC
1130, 1132 (June 2011). To justify reopening, an operator’s detailed recounting of the

39 FMSHRC Page 443

circumstances should demonstrate that the operator acted at all times in good faith and without
any purpose of evasion or delay, taking into account the nature of the violation, the amount of
the penalty, and the circumstances of receipt and processing of the proposed assessment. The
operator’s motion should also address whether errors were within the operator’s control, and the
reasons for any delay in filing the motion itself, especially after notice of the delinquency.
III.
Disposition
In accordance with the Fifth Circuit’s remand, the Commission again considers
Noranda’s motion to reopen. In this case, the operator had implemented an internal processing
system by designating an employee to determine which assessments to contest and which to pay.
On the day the proposed assessment was delivered, this employee left the company. In his
absence, other employees who were not as familiar with MSHA’s assessment process mistakenly
decided to pay the proposed assessment.
We have held that the inadvertent payment of a proposed assessment and the Secretary’s
opposition to a motion to reopen do not necessarily justify denial of an operator’s motion to
reopen. See Kaiser Cement Corp., 23 FMSHRC 374, 375-76 (Apr. 2001); Doe Run Co., 21
FMSHRC 1183, 1184-85 (Nov. 1999) (assessments reopened after the operator inadvertently
paid the assessments); Pinnacle, 38 FMSHRC 422, 423 (Mar. 2016) (assessment reopened
despite Secretary’s opposition). Thus, we must consider whether the totality of circumstances
surrounding Noranda’s failure to timely contest the assessment justifies denial of its motion to
reopen because they demonstrate that the failure resulted from inadequate internal processing
procedures. See, e.g., Oak GroveRes., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double Bonus
Coal Co., 32 FMSHRC 1155, 1156 Sept. 2010); Highland Mining Co., 31 FMSHRC 1313, 1315
(Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle Mining Co.,
30 FMSHRC 1061, 1062 (Dec. 2008).1
In determining whether inadequate procedures warrant denial of a motion to reopen, we
review an operator’s procedures for handling proposed MSHA assessments. We also consider
the reason(s) for the failure of the internal processing system and the operator’s efforts to correct
any such flaws.
As stated on the Commission’s website, we consider whether the failure to timely contest
an assessment resulted from a unique occurrence, i.e., a mistake that the operator usually does
1

On appeal, the Fifth Circuit constrained its analysis of Noranda’s request to the factors
the Commission relied upon in denying Noranda’s motion. 841 F.3d at 666. On remand, we
similarly limit our consideration to those factors. Thus, although Noranda did not seek to re-open
the final order at issue for more than two months - including more than 30 days after discovering
its default - and did not explain why it did not act sooner, the Secretary did not raise the delay in
his opposition to the motion, and the Commission did not identify it as a reason for denying
Noranda’s motion to reopen. Accordingly, we do not now consider this factor as part of our
analysis.

39 FMSHRC Page 444

not make. FMSHRC, Requests to Reopen. Here, the company had an existing internal
processing system prior to receiving this proposed assessment. It had assigned its safety director
to manage assessments. We find that this system failed because of a unique occurrence. The
operator received the assessment on a day when there was no employee designated to handle
assessments because the safety director unexpectedly left the company on the day the proposed
assessment was delivered. The subsequent payment of the assessment constituted an inadvertent
mistake.
Upon further review of the assertions before us, we determine that Noranda has
demonstrated sufficient circumstances to explain the failure of its internal processing system.
After the unanticipated departure of its safety director, Noranda paid the assessment
inadvertently rather than ignoring it. This fact supports the operator’s assertion of good faith.
We also note that Noranda’s efforts to seek a conference with MSHA support the operator’s
asserted intent to contest the citations. The motion was factually well-supported and documented
the operator’s mistake and the attendant circumstances. Finally, this operator does not have a
history demonstrating a general carelessness or lack of attention to MSHA assessments.
Upon reconsideration of all the evidence, we determine that the operator had been
diligent in seeking to implement an effective internal processing system for handling proposed
assessments and that the proposed assessment at issue should be reopened.

39 FMSHRC Page 445

IV.
Conclusion
Having reviewed Noranda’s motion to reopen, we reopen this matter and remand it to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the Secretary
shall file a petition for assessment of penalty within 45 days of the date of this order. See 29
C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 446

COMMISSION ORDERS

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

March 6, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket No. CENT 2016-149-M
A.C. No. 41-03374-391575

ZEOTECH CORPORATION
BEFORE:

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

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On December 29, 2015, the Commission received from
Zeotech Corporation (“Zeotech”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on September 15, 2015, and
became a final order of the Commission on October 15, 2015. Zeotech asserts that it did not
timely file a notice of contest in this case because it did not realize that the investigation of the
accident involved in this case generated two separate proposed assessments. Zeotech states that

39 FMSHRC Page 447

it submitted a timely notice of contest for one of the proposed assessments, but did not become
aware that the proposed assessment for this case dealt with separate citations until it received a
delinquency notice from MSHA. The Secretary does not oppose the request to reopen but urges
the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Zeotech’s request and the Secretary’s response, in the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 448

Distribution:
Nik A. Mimari, Esq.
Brandon E. Strey, Esq.
Plunkett & Griesenbeck, Inc.
1635 N. E. Loop 410, Suite 900
San Antonio, TX 78209
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 449

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

March 6, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. KENT 2016-147
A.C. No. 15-19242-390139

v.
REDHAWK MINING LLC,

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On December 24, 2015, the Commission received from
Redhawk Mining LLC (“Redhawk”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on September 5, 2015, and
became a final order of the Commission on October 5, 2015. Redhawk asserts, with a supporting
affidavit, that the mine’s authorized representative, who is in charge of contesting citations,
never received the proposed assessment and did not become aware that the assessment was

39 FMSHRC Page 450

delinquent until he received a delinquency notice from MSHA. The Secretary does not oppose
the request to reopen, but notes that his records reflect that an individual signed for this
assessment and also several other assessments sent to Redhawk, which shows that the assessment
was delivered to the operator. The Secretary further states that he decided not to oppose
reopening primarily because Redhawk filed its motion to reopen soon after it received the
delinquency notice.
Having reviewed Redhawk’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 451

Distribution:
Billy R. Shelton, Esq.
Jones, Walters, Turner & Shelton, PLLC
2452 Sir Barton Way, Suite 101
Lexington, KY 40509
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 452

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

March 6, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. KENT 2016-202-M
A.C. No. 15-19656-397603-B2598

v.
RISING SUN DEVELOPMENT LLC,
BEFORE:

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

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On February 1, 2016, the Commission received from Rising
Sun Development LLC (“RSD”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on December 3, 2015, and
became a final order of the Commission on January 4, 2016. RSD asserts that, because it is not a
mining company, it was unfamiliar with the contest procedures. RSD was a contractor for Pine
Branch Mining, LLC. RSD states that after receipt of the proposed civil penalty, it gave the

39 FMSHRC Page 453

assessment to Pine Branch Mining, which assured RSD that it would be contested and handled in
accordance with MSHA procedures. However, nothing was submitted to MSHA to contest the
assessment. After discovering that the proposed penalty had become final, RSD contacted
counsel, who immediately filed the motion to reopen.
The Secretary does not oppose the request to reopen but urges the operator to take steps
to ensure that future penalty contests are timely filed.
Having reviewed RSD’s request and the Secretary’s response, in the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 454

Distribution:
Billy R. Shelton, Esq.
Jones, Walters, Turner & Shelton, PLLC
2452 Sir Barton Way, Suite 101
Lexington, KY 40509
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 455

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

March 6, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2016-43
A.C. No. 01-03422-389387

v.
JESSE CREEK MINING, LLC

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY: Althen, Acting Chairman; Jordan, and Young, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On November 12, 2015, the Commission received from Jesse
Creek Mining, LLC (“Jesse Creek”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on or around August 18, 2015,
and became a final order of the Commission on or around September 18, 2015. Jesse Creek
asserts that, as a result of its Safety Director’s reassignment, the proposed assessment was
delivered to the wrong employee, a partial payment was made in error, and a notice of contest

39 FMSHRC Page 456

was not timely filed. Jesse Creek further states that its legal representative investigated the matter
in conjunction with the Office of Assessments and determined that the proposed assessment was
received but did not locate a record of receipt. Jesse Creek claims that this investigation delayed
the filing of the motion to reopen.
The Secretary does not oppose the request to reopen, but notes that MSHA received a
partial payment on August 28, 2015. The Secretary further states that the proposed penalty
should have received attention when it arrived at the mine. Records submitted by the Secretary
show that the delivery date of the proposed assessment could not be confirmed.
Having reviewed Jesse Creek’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

39 FMSHRC Page 457

Commissioner Cohen, dissenting:
I dissent from my colleagues’ decision because I believe that Jesse Creek Mining, LLC
(“Jesse Creek”), has not established good cause to reopen this civil penalty proceeding.
In attempting to excuse its failure to timely contest the Secretary’s proposed civil penalty
assessment, Jesse Creek asserts that its safety director was reassigned to a new position, resulting
in “an inadvertent error” in the receipt of the assessment. Mot. to Reopen, at 1. Jesse Creek
further avers that the assessment “was apparently delivered to the Mine, but obviously delivered
to the improper responsible employee.” Mot. to Reopen, at 2. Next, Jesse Creek states that it
further inadvertently erred in sending MSHA a check for $392.00 for payment of one of the
citations in the penalty assessment. Id.
Jesse Creek’s representations do not add up. The operator insists that the penalty
assessment never reached an employee with the authority to handle such assessments.
Nevertheless, the employee who received MSHA’s proposed assessment possessed sufficient
authority to decide not to contest one of the seven citations and to authorize a check paying that
citation’s penalty. This check was dated August 28, 2015, which was within 30 days of Jesse
Creek’s receipt of the proposed assessment. Thus, someone at the mine was taking responsibility
for the handling of MSHA’s proposed assessments, and did so, at least partially, in a timely
fashion
Unfortunately, we are left to guess who that employee was, as Jesse Creek’s motion lacks
any sworn affidavit to support its claims. Instead, we are left with the bare assertions of Jesse
Creek’s lawyer, in conflict with the Commission’s stated guidance for petitioners seeking to
reopen proposed penalties that have become final orders. The Commission’s Guidance for
Asking the Commission to Reopen Final Orders so that a Proposed Penalty may be Contested
states, “Your motion should also be supported by affidavit(s) of (a) person(s) with direct
knowledge of the underlying facts.” Fed. Mine Safety and Health Review Comm’n, Requests to
Reopen, http://www.fmshrc.gov/content/requests-reopen.
I note that this is not the only incident of Jesse Creek’s failure to properly respond to
proposed MSHA penalties. In September 2015, the operator defaulted in a Commission
proceeding by neglecting to file a response to the Secretary’s civil penalty petition and the
subsequent Order to Show Cause issued by Chief Administrative Law Judge Robert J. Lesnick.
See Jesse Creek Mining, LLC, 38 FMSHRC 2538 (Oct. 2016). The penalties proposed in both
proceedings are significant, with the present proposed penalties tallying over $113,000. Thus,
Jesse Creek for months operated with a system for handling MSHA citations that was
insufficient to flag even major proposed penalties.
I dissented in Jesse Creek’s previous petition to the Commission, see 38 FMSHRC at
2540, and must dissent again here. The Commission has made clear that where a failure to
contest a proposed assessment results from an inadequate or unreliable internal processing
system, the operator has not established grounds for reopening the assessment. Shelter Creek
Capital LLC, 34 FMSHRC 3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103,
104 (Feb. 2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland

39 FMSHRC Page 458

Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066,
1067 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). “Relief under
Rule 60(b) should generally not be accorded to an operator who creates and condones a system
which predictably will result in missed deadlines.” Pinnacle Mining Co., 30 FMSHRC at 1062;
Pinnacle Mining Co., 30 FMSHRC at 1067.
Jesse Creek’s submissions in this matter do not suffice to show that the operator’s failures
were a matter of mere “inadvertence.” Rather, the operator created an unreliable internal
processing system and failed to take responsibility for its proposed citations over a substantial
period of time. Accordingly, I would deny Jesse Creek’s motion to reopen.

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

39 FMSHRC Page 459

Distribution:
Rebecca J. Oblak, Esq.
Bowles Rice, LLP
700 Hampton Center
Morgantown, WV 26505
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 460

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

March 6, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. VA 2016-111
A.C. No. 44-07160-399126

v.
A&G COAL CORPORATION
BEFORE:

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

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On February 22, 2016, the Commission received from A&G
Coal Corporation (“A&G”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on December 21, 2015, and
became a final order of the Commission on January 20, 2016. A&G asserts that, due to the
holidays and layoffs of over 70 office personnel at the parent company during the time the
proposed assessment was delivered, the proposed assessment was not forwarded to the mine’s
safety representative, who reviews assessments to determine which ones should be contested.

39 FMSHRC Page 461

The Secretary does not oppose the request to reopen but urges the operator to take steps to ensure
that future penalty contests are timely filed.
Having reviewed A&G’s request and the Secretary’s response, in the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 462

Distribution:
Billy R. Shelton, Esq.
Jones, Walters, Turner & Shelton, PLLC
2452 Sir Barton Way, Suite 101
Lexington, KY 40509
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 463

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

March 6, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2016-56-M
A.C. No. 02-03312-357676

v.
THE SILVER QUEEN MINE LLC
BEFORE:

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

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On October 19, 2015, the Commission received from The
Silver Queen Mine LLC (“Silver Queen”) a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787.
Further, Rule 60(c) of the Federal Rules of Civil Procedure provides that a Rule 60(b)
motion shall be made within a reasonable time, and for reasons of mistake, inadvertence, or
excusable neglect, not more than one year after the judgment, order, or proceeding was entered
or taken. Fed. R. Civ. P. 60(c).
The Secretary opposes the request to reopen, and argues that the motion to reopen was
filed out of time, over a year after the assessment became a final order. Records of the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the

39 FMSHRC Page 464

proposed assessment was delivered on August 9, 2014, and became a final order of the
Commission on September 8, 2014.
In its motion to reopen, Silver Queen asserts that it has very little experience with
MSHA, and that it is financially prohibitive to hire a lawyer or safety consultant. Silver Queen
claims that the delay was due to its lack of understanding of the contest procedure, and also
because the operator did not understand that subsequent violations of the same standard would
result in substantially increased penalties. Essentially, Silver Queen claims that its failure to
contest the proposed assessment was excusable neglect. However, the operator’s motion to
reopen was filed more than one year after becoming a final order. Therefore, under Rule 60(c),
Silver Queen’s motion is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).
Accordingly, we deny Silver Queen’s motion.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 465

Distribution:
John Emmett
Owner
The Silver Queen Mine LLC
1477 Menlo Avenue
Clovis, CA 93611
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 466

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

March 6, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. WEST 2016-261-M
A.C. No. 26-02081-395678

v.
MARIGOLD MINING COMPANY,
BEFORE:

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

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On February 9, 2016, the Commission received from
Marigold Mining Company (“Marigold”) a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on November 9, 2015, and
became a final order of the Commission on December 9, 2015. Marigold asserts that its timely
notice of contest was lost in the mail. Specifically, it mailed payment for one of the four
citations to the MSHA payment office in St. Louis, together with the proposed assessment form

39 FMSHRC Page 467

showing that the other three citations were being contested, and also mailed a copy of the
assessment form to MSHA’s Arlington, Virginia office. Marigold was unable to track the notice
of contest because it did not send the contest via certified mail. Marigold further states that it has
changed its mailing procedures to prevent this issue from recurring.
The Secretary does not oppose the request to reopen but notes that he did not receive a
notice of contest for this proposed assessment. The Secretary’s payment office in St. Louis did
receive the partial payment check and the assessment form showing the contests. The Secretary
urges the operator to take steps to ensure that future penalty contests are timely filed and mailed
to the proper address.
Having reviewed Marigold’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 468

Distribution:
Steve Chambliss
People & Safety Manager
Marigold Mining Company
P.O. Box 160
Valmy, NV 89438
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 469

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

March 6, 2017
ESSROC CEMENT CORP.
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
BEFORE:

Docket No. WEVA 2014-818-RM
Order No. 8716832; 02/12/2014

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

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On April 17, 2014, the Commission received from Essroc
Cement Corp., (“Essroc”) a motion seeking to reopen or accept a late-filed contest for an
imminent danger withdrawal order that had been issued pursuant to section 107(a) of the Mine
Act, 30 U.S.C. § 817(a).
Under section 107(e)(1) of the Mine Act, an operator who wishes to contest an imminent
danger order under section 107(a) may request review by the Commission no later than 30 days
after being notified of such order. Commission Procedural Rule 9 allows the Commission to
extend the filing time for a document for good cause shown. 29 C.F.R. § 2700.9(a). The rule
allows the Commission to grant motions for extensions of time after the designated filing time
has expired if the party requesting the extension can show, in writing, the reasons for its failure
to make the request before the filing deadline. 29 C.F.R. § 2700.9(b).
The section 107(a) order that Jones seeks to contest was issued on February 12, 2014.
Hence, the deadline for contesting it under section 107(e)(1) was March 14, 2014. Essroc asserts
that it intended to contest the order, but mistakenly believed that it would be able to do so when
it received a proposed assessment from MSHA. Essroc states that its Safety Manager did not
understand that this order would not be assessed a penalty, and would have to be contested
within 30 days of issuance, until Essroc’s legal counsel advised him of this fact. The Secretary
has submitted a letter stating that it will not file an answer in this case until the Commission rules
on Essroc’s motion, but does not oppose the operator’s request.
Relying on Rule 60(b) of the Federal Rules of Civil Procedure, we have 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, appropriate proceedings on the merits may be permitted. See Coal
Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). We find that the same considerations
apply to the order here under Commission Procedural Rule 9.

39 FMSHRC Page 470

Having reviewed Essroc’s request and the Secretary’s response, in the interest of justice
and judicial economy, we find that Essroc has shown good cause for us to extend the time to
contest the order at issue. We further accept Essroc’s late-filed application for review of the
imminent danger withdrawal order and remand the case for further proceedings pursuant to the
Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 471

Distribution:
Maxwell K. Multer, Esq.
Dinsmore & Shohl LLP
255 East Fifth Street
Suite 1900
Cincinnati, OH 45202
Robert Huston Beatty, Jr., Esq.
Dinsmore & Shohl LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 472

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

March 6, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2016-86
A.C. No. 46-08194-391101

v.
CARTER ROAG COAL COMPANY

BEFORE:

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

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On November 2, 2015, the Commission received from Carter
Roag Coal Company (“Carter Roag”) a motion seeking to reopen a penalty assessment that had
appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act,
30 U.S.C. § 815(a). In response to this motion, the Secretary of Labor requests that the motion
to reopen be denied as moot.
In his response, the Secretary states that the penalty assessment that Carter Roag seeks to
reopen is already the subject of an active contest case, Docket No. WEVA 2016-107.1 The
Secretary maintains that he received a timely contest of this assessment, and has since filed a
penalty petition with the Commission and assigned the case to an attorney.
Having reviewed Carter Roag’s motion and the Secretary’s response, we conclude that
the proposed penalty assessment did not become a final order of the Commission because the
operator timely contested the proposed assessment. Section 105(a) states that if an operator
“fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty. . .
the citation and the proposed assessment of penalty shall be deemed a final order of the

1

Commission records confirm that Docket No. WEVA 2016-107 deals with the penalty
assessment at issue.

39 FMSHRC Page 473

Commission.” 30 U.S.C. § 815(a). Here, Carter Roag notified the Secretary of the contest. This
obviates any need to reopen the penalty assessment.
Accordingly, the operator’s motion to reopen is moot, and this case is remanded to the
Chief Administrative Law Judge for dismissal pursuant to the Mine Act and the Commission’s
Procedural Rules, 29 C.F.R. Part 2700.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 474

Distribution:
Jonathan R. Ellis, Esq.
Katrina N. Bowers, Esq.
Steptoe & Johnson PLLC
P.O. Box 1588
Charleston, WV 25301-1588
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 475

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

March 28, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket No. CENT 2015-475-M
A.C. No. 03-01232-379841

CARROLL COUNTY STONE, INC.

BEFORE:

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

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On October 30, 2015, the Commission received from Carroll
County Stone, Inc. (“Carroll County”) a motion seeking to reopen a penalty assessment
proceeding and relieve it from the Default Order entered against it.
On August 4, 2015, the Chief Administrative Law Judge issued an Order to Show Cause
in response to Carroll County’s perceived failure to answer the Secretary of Labor’s June 29,
2015 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was
deemed a Default Order on September 4, 2015, when it appeared that the operator had not filed
an answer within 30 days. MSHA mailed a delinquency notice to the operator on October 21,
2015.
Carroll County asserts that it timely filed its answer to the Order to Show Cause in the
same envelope as another case involving a sister company, Bailey Quarries, Inc., and that the
two cases were mixed up by the Commission. Commission records confirm that it received
responses for both cases, CENT 2015-363-M and CENT 2015-475-M on August 28, 2015. The
Secretary does not oppose the request to reopen.

39 FMSHRC Page 476

Having reviewed Carroll County’s request and the Secretary’s response, we conclude that
the operator was not in default under the terms of the Order to Show Cause because it timely
complied with the Order. See Vulcan Construction Materials, 33 FMSHRC 2164 (Sept. 2011).
This renders the Default Order a nullity. Accordingly, the operator’s motion to reopen is moot,
and this case is remanded to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 477

Distribution:
Michael J. Boardman
Carroll County Stone, Inc.
911 U.S. Highway 60
Republic, MO 65738
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 478

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

March 28, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2016-270-M
A.C. No. 36-00215-404373

v.
ARMSTRONG CEMENT & SUPPLY
CORPORATION

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does
not oppose the motion.
Having reviewed movant’s unopposed motion to reopen, we reopen this matter and
remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the

39 FMSHRC Page 479

Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.
The granting of this motion is not precedential for the consideration of any other motion
before the Commission.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 480

Distribution:
Daniel Wible, MS, CSP
Safety Director
Armstrong Cement & Supply Corp.
100 Clearfield Rd.
Cabot, PA 16023-9521
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 481

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

March 28, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket No. WEST 2015-690-M
A.C. No. 04-00034-380538

LEHIGH SOUTHWEST CEMENT
COMPANY
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On November 6, 2015, the Commission received from
Lehigh Southwest Cement Company (“Lehigh”) a motion seeking to reopen a penalty
assessment proceeding and relieve it from the Default Order entered against it.
On September 3, 2015, the Chief Administrative Law Judge issued an Order to Show
Cause in response to Lehigh’s failure to answer the Secretary of Labor’s July 21, 2015 Petition
for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default
Order on October 5, 2015, when the operator failed to file an answer within 30 days.
MSHA records show that after Lehigh filed a timely contest to a proposed assessment
containing the citation herein and other citations, the proposed assessment was split into several
dockets. The operator filed an answer to the Order to Show Cause in the other docket (WEST
2015-689-M) but did not file an answer in this docket. Lehigh states that it failed to timely
answer the Order to Show Cause here because in answering the Order to Show Cause in the
other docket, it overlooked the fact that the proposed assessment had been split up. The
Secretary does not oppose the request to reopen. However, he urges Lehigh to timely file an
answer to all penalty petitions and to take Orders to Show Cause seriously.
The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.
§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not
direct review within 40 days of a decision’s issuance, it becomes a final decision of the
Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final
decision of the Commission.

39 FMSHRC Page 482

Having reviewed Lehigh’s request and the Secretary’s response, in the interest of justice,
we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is
remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 483

Distribution:
Ramiro Jimenez
Area Safety and Health Manager
Cement Operations
24001 Stevens Creek Blvd.
Cupertino, CA 95014
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 484

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

March 28, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. WEST 2016-215-M
A.C. No. 35-003312-398548

v.
MUNSEN PAVING, LLC

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On September 7, 2016, the Commission received from Munsen
Paving, LLC (“Munsen”) a motion seeking to reopen a penalty assessment proceeding and
relieve it from the Default Order entered against it.
On March 8, 2016, the Chief Administrative Law Judge issued an Order to Show Cause
in response to Munsen’s failure to answer the Secretary of Labor’s January 14, 2016 Petition for
Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default Order
on April 8, 2016, when it appeared that the operator had not filed an answer within 30 days.
Munsen asserts that, on April 7, 2016, it timely filed an answer to the Order to Show
Cause via certified mail. It offers a return receipt to prove that the answer was post-marked on
April 7, 2016. Munsen further demonstrates that it received the return receipt with April 13, 2016
stamped on the front of the card. The Secretary does not oppose the request to reopen.

39 FMSHRC Page 485

Having reviewed Munsen’s request and the Secretary’s response, we conclude that the
operator was not in default under the terms of the Order to Show Cause as it timely complied
with the Order. See Vulcan Construction Materials, 33 FMSHRC 2164 (Sept. 2011). This
renders the Default Order a nullity. Accordingly, the operator’s motion to reopen is moot, and
this case is remanded to the Chief Administrative Law Judge for further proceedings pursuant to
the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 486

Distribution:
Gwendolyn K. Nightengale, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K Street, N.W., Suite 1000
Washington, DC 20006
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 487

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

March 28, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2016-464-M
A.C. No. 04-00034-402554

v.
LEHIGH SOUTHWEST CEMENT
COMPANY

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he
does not oppose the motion.

39 FMSHRC Page 488

Having reviewed movant’s unopposed motion to reopen, we reopen this matter and
remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this
order. See 29 C.F.R. § 2700.28.
The granting of this motion is not precedential for the consideration of any other motion
before the Commission.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 489

Distribution:
Richard Larch
Safety Manager
Lehigh Southwest Cement Company
15390 Wonderland Blvd.
Redding, CA 96003
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 490

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

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

Docket No. CENT 2016-232-M
A.C. No. 41-03760-399975
Docket No. CENT 2016-231-M
A.C. No. 41-03760-397835

THE QUIKRETE COMPANIES
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On March 3, 2016, the Commission received from The
Quikrete Companies (“Quikrete”) a motion seeking to reopen two penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
1

For the limited purpose of addressing these motions to reopen, we hereby consolidate
docket numbers CENT 2016-232-M and CENT 2016-231-M involving similar procedural issues.
29 C.F.R. § 2700.12.

39 FMSHRC Page 491

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment involved in Docket No. CENT 2016-231-M,
A.C. No. 41-03760-397835, was delivered on December 8, 2015 and became a final order of the
Commission on January 7, 2016. A delinquency notice for this assessment was mailed on
February 22, 2016. MSHA’s records further reflect that the proposed assessment involved in
Docket No. CENT 2016-232-M, A.C. No. 41-03760-399975, was delivered on January 4, 2016,
and became a final order of the Commission on February 3, 2016. MSHA received a partial
payment for these assessments on February 2, 2016.
Quikrete asserts that it mailed the contest documents, but addressed them to MSHA’s
collection office in St. Louis, Missouri, instead of MSHA’s Arlington office. The Secretary does
not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty
contests are timely filed.
Having reviewed Quikrete’s request and the Secretary’s response, we find that the failure
to file the contests at the proper MSHA office was an inadvertent mistake. In the interest of
justice, we hereby reopen these matters and remand them to the Chief Administrative Law Judge
for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29
C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file petitions for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 492

Distribution:
Don Sanders
Plant Manager
The Quikrete Companies
1083 Kleimann Lane
P.O. Box 487
Columbus, TX 78934
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 493

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

March 31, 2017

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

Docket No. CENT 2016-325-M
A.C. No. 41-00283-403752-ZAL

v.
THYSSEN KRUPP INDUSTRIAL
SOLUTIONS (USA), INC.

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does
not oppose the motion.

39 FMSHRC Page 494

Having reviewed movant’s unopposed motion to reopen, we reopen this matter and
remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine
Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.
The granting of this motion is not precedential for the consideration of any other motion
before the Commission.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 495

Distribution:
Margaret S. Lopez, Esq.
Lauren M. Marino, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K Street, N.W., Suite 1000
Washington, DC 20006
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 496

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

March 31, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2016-338-M
A.C. No. 41-00869-399973

v.
AMERICAN TALC COMPANY

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On April 29, 2016, the Commission received from American
Talc Co. (“American Talc”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

39 FMSHRC Page 497

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on January 30, 2016, and
became a final order of the Commission on February 29, 2016. On February 5, 2016, MSHA
received a timely payment of $162.00 for a different citation within the proposed assessment. A
delinquency notification was mailed on April 15, 2016.
American Talc asserts that due to an overload of paperwork and other duties, the plant
manager stepped in to assist in the filing of the contest. American Talc explains that the manager
was unfamiliar with the contest process, and mailed an answer to the assessment and the contest
form to Lisa Boyd, the Executive Director of the Commission, instead of sending the contest
form to MSHA. American Talc states that it has taken steps to make sure that future contests are
addressed to the correct location and recipient. The Secretary does not oppose the request to
reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed American Talc’s request and the Secretary’s response, we find that the
timely mailing of the contest to the Commission rather than to MSHA was an inadvertent
mistake. In the interest of justice, we hereby reopen this matter and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 498

Distribution:
Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 499

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

March 31, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 2016-207-M
A.C. No. 31-00057-395250
Docket No. SE 2016-208-M
A.C. No. 31-00057-395250

v.
METZGER REMOVAL, INC.

BEFORE:

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

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On April 28, 2016, the Commission received from Metzger
Removal, Inc. (“Metzger”) a motion seeking to reopen a penalty assessment1 that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
1

Two dockets were created for assessment number 000395250—Docket Nos. SE 2016207-M and SE 2016-208-M. Because they both deal with the same assessment, they should be
considered duplicate dockets and resolved in tandem. Accordingly, we hereby consolidate
docket numbers SE 2016-207-M and SE 2016-208-M. 29 C.F.R. § 2700.12.

39 FMSHRC Page 500

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on October 26, 2015, and
became a final order of the Commission on November 25, 2015. The Secretary’s records further
reflect that a delinquency notice was mailed on January 11, 2016.
Metzger asserts that it attempted to timely contest the assessment, but MSHA did not
register two of the citations as having been contested. Metzger further states that that as a result
of this situation, when a settlement motion was submitted, a Commission Administrative Law
Judge did not approve the settlement for the two uncontested citations. The Secretary explains
that the Metzger mistakenly believed that the citations involved in this assessment were included
in another assessment, which Metzger did timely contest. The Secretary does not oppose the
request to reopen, but urges the operator to take steps to ensure that future penalty contests are
timely filed.
Having reviewed Metzger’s request and the Secretary’s response, we find that the failure
to contest the two citations herein was an inadvertent mistake by an inexperienced pro se
operator. In the interest of justice, we hereby reopen these matters and remand them to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 501

Distribution:
Steven D. Weber
Parker Poe Adams & Bernstein LLP
Three Wells Fargo Center
401 South Tryon Street, Suite 3000
Charlotte, NC 28202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 502

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

March 31, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2016-300
A.C. No. 50-00030-396182

v.
USIBELLI COAL MINE, INC.

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On March 4, 2016, the Commission received from Usibelli
Coal Mine, Inc. (“Usibelli”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

39 FMSHRC Page 503

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on November 17, 2016, and
became a final order of the Commission on December 16, 2016. MSHA mailed a delinquency
notice on February 1, 2016. Usibelli states that due to a weeklong shutdown of the mine for
Thanksgiving, the proposed assessment was not reviewed in a timely manner. Usibelli asserts
that it submitted a late-filed contest of the proposed assessment, and MSHA states that it
received a contest form postmarked December 23, 2015. MSHA records also reflect that it
received a partial payment of $1,381.00 for this assessment on December 24, 2015. Usibelli
states that it has instituted changes in its contest procedures to prevent future delays. The
Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure
that future penalty contests are timely filed.
Having reviewed Usibelli’s request and the Secretary’s response, we find that the failure
to contest the proposed assessment was an excusable mistake in that Usibelli missed the filing
deadline by only a few days, has no history of previous defaults, and has revised its procedures
to avoid future defaults. In the interest of justice, we hereby reopen this matter and remand it to
the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 504

Distribution:
Donna Pryor
Erik Dullea
Jackson Lewis P.C.
950 17th Street, Suite 2600
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 505

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

March 31, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2016-336
A.C. No. 48-01780-397886
Docket No. WEST 2016-335
A.C. No. 48-01780-397886

v.
GOOD BENTONITE COMPANY, LLC

BEFORE:

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

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On March 22, 2016, the Commission received from Good
Bentonite Company, LLC (“Good Bentonite”) a motion seeking to reopen a penalty assessment1
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
1

Two dockets were created for assessment number 000397886—Docket Nos. WEST
2016-336 and WEST 2016-335. Because these cases both deal with the same assessment, they
should be considered duplicate dockets and resolved in tandem. Accordingly, we hereby
consolidate docket numbers WEST 2016-336 and WEST 2016-335. 29 C.F.R. § 2700.12.

39 FMSHRC Page 506

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on December 7, 2015. MSHA
received partial contest paperwork, which was missing the sheet that identifies which violations
the operator seeks to contest, on December 28, 2015. MSHA called Good Bentonite regarding
the incomplete contest form on the same day, but did not receive a call back. The proposed
assessment became a final order of the Commission on January 6, 2015, and a delinquency
notice was mailed to the operator on February 22, 216.
Good Bentonite asserts that it misread the Notice of Contest Rights that was included
with the proposed assessment, and therefore did not file all of the necessary paperwork to contest
the assessment. Good Bentonite states that the owner of the company was out of the office when
MSHA called and did not get a message about the phone call from MSHA stating that the contest
was not filled out correctly. The Secretary does not oppose the request to reopen, but urges the
operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Good Bentonite’s request and the Secretary’s response, we find that the
failure to file a complete contest was an inadvertent mistake. In the interest of justice, we hereby
reopen these matters and remand them to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

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

39 FMSHRC Page 507

Distribution:
Lacee Good
Office Manager
Good Bentonite Company, LLC
3796 Lane 32 1/2
Greybull, WY 82426
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450

39 FMSHRC Page 508

ADMINISTRATIVE LAW JUDGE DECISIONS

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

March 3, 2017
WARRIOR COAL, LLC,
Contestant,
v.
SECRETARY OF LABOR,
UNITED STATES DEPARTMENT
OF LABOR (MSHA)
Respondent,

CONTEST PROCEEDINGS
Docket No. KENT 2011-1084-R
Order No. 8498873; 05/10/2011
Docket No. KENT 2011-1085-R
Citation No. 8498874; 05/10/2011
Docket No. KENT 2011-1086-R
Order No. 8498875; 05/10/2011
Docket No. KENT 2011-1088-R
Citation No. 8498877; 05/10/2011

SECRETARY OF LABOR,
UNITED STATES DEPARTMENT
OF LABOR (MSHA)
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. KENT 2012-706
A.C. No. 15-17216-280358

v.
WARRIOR COAL, LLC,
Respondent.

Mine: Cardinal

DECISION
Appearances: Eric Johnson, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for Petitioner;
Gary D. McCollum, Esq., Assistant General Counsel, Alliance Coal, Lexington,
Kentucky, for Respondent.
Before:

Judge Andrews

This proceeding is before me on a petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary” or “Petitioner”), acting through the Mine Safety and Health
Administration (“MSHA”), against Warrior Coal, LLC, (“Warrior” or “Respondent”), at its

39 FMSHRC Page 509

Cardinal mine, pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815, 820 (“Mine Act” or “Act”). On May 9 and May 10, 2011, MSHA
Inspectors conducted inspections of the #2 Unit of Respondent’s mine and issued citations and
orders for alleged violations of the Mine Act. This docket involves five of the orders and
citations issued pursuant to Sections 104 and 107 of the Act with a total proposed penalty of
$215,200.
The case was originally assigned to Administrative Law Judge William S. Steele. On
November 29, 2012, the Secretary filed an unopposed motion to amend his petition to note
citations and orders Nos. 8498874, 8498875, and 8498877 were contested pursuant to
Commission Rule 20. On January 31, 2013, Judge Steele granted the Secretary’s request. On
February 6, 2013, Judge Steele further ordered the dismissal of one contest proceeding, regarding
Citation No. 8498876, which was paid in full by the Respondent. Subsequently, the above-listed
dockets were reassigned to the undersigned.
The parties presented testimony and documentary evidence at the hearing held in
Madisonville, Kentucky, on March 31 and April 1, 2015. After the hearing, each party submitted
a post-hearing brief and a reply brief.1 All of the evidence of record has been considered.2
Stipulations
The parties submitted joint stipulations, marked as Exhibit JX-1:3
1. During all times relevant to this matter, Warrior Coal, LLC, (hereinafter
referred to as Respondent) was the operator, as defined in Section 3(d) of the
Mine Act, 30 U.S.C. § 802(d), of the Cardinal mine, Mine ID No. 15-17216.

1

Throughout this decision the Secretary’s Post Hearing Brief will be cited as “SPHB”
and the reply brief as “SRB”. Respondent’s Post Hearing Brief will be cited as “RPHB” and the
reply brief as “RRB”.
2

The findings of fact in this decision are based on the record as a whole and the
Administrative Law Judge’s careful observation of the witnesses during their testimony. In
resolving any conflicts in the testimony, the ALJ has taken into consideration the interests of the
witnesses, or lack thereof, and consistencies, or inconsistencies, in each witness’s testimony and
between the testimonies of the witnesses. In evaluating the testimony of each witness, the ALJ
has also evaluated demeanor. Any failure to provide detail as to each witness’s testimony is not
to be deemed a failure on the ALJ’s part to have fully considered it. The fact that some evidence
is not discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000) (administrative law judge is not required to discuss all evidence and failure to
cite specific evidence does not mean it was not considered).
3

The Secretary’s exhibits will be marked “GX” followed by the number and
Respondent’s exhibits will be marked “RX” followed by the letter.

39 FMSHRC Page 510

2. The Cardinal mine is a “mine” as that term is defined in Section 3(h) of the
Mine Act, 30 U.S.C. § 802(h).
3. At all material times involved in this case, the products of the Cardinal mine
entered commerce or the operations or products thereof affected commerce
within the meaning and scope of Section 4 of the Mine Act, 30. U.S.C. § 803.
4. Respondent produced 5,841,599 tons of coal at its Cardinal mine in 2010.
5. The proceeding is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its designated Administrative Law Judges
pursuant to Sections 105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823.
6. MSHA Inspector Curtis Hardison, whose signature appears in Block 22 of
Citation Number 8503299, was acting in his official capacity and as
authorized representatives of the Secretary of Labor when he issued the
citation.
7. MSHA Inspector David Winebarger, whose signature appears in Block 22 of
Citation Numbers 8498874 and 8498877 and Order Numbers 8498873 and
8498875, was acting in his official capacity and as authorized representatives
of the Secretary of Labor when he issued the citations and orders.
8. The citations and orders at issue in this proceeding were properly served by
duly authorized representatives of the Secretary of Labor, Mine Safety and
Health Administration, upon an agent of Respondent.
Citation No. 8503299
Summary of the Evidence
On May 9, 2011 Inspector Curtis Hardison4 (“Inspector Hardison” or “Hardison”)
conducted an inspection of Warrior’s Cardinal Mine. Tr. at 9.5 He arrived at approximately 7:15
am and first inspected the pre-shift books and mine map. Tr. 28, 29. The Preshift Reports for the

4

Inspector Hardison graduated with a bachelor’s degree in Secondary Education, with a
minor concentration in World History and a major concentration in Political Science and U.S.
History, from the University of Southern Indiana, in 1998. Tr. 28. He began work for MSHA in
2006. Tr. 23. At time of inspection, Hardison was a full-time coal mine inspector with collateral
duties as a special investigator; he also possessed accident investigation credentials. Tr. 27. As of
hearing he was employed as the Field Office Supervisor in Morganfield, Kentucky. Tr. 23.
5

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

39 FMSHRC Page 511

#2 Unit6 show that for three consecutive shifts beginning with the examination during the first
shift on May 8, 2011 no hazards were observed other than loose pins7 in the #4 and #5 entries.
GX-8. Accompanied by Warrior Safety Tech Randy Ivey8 (“Ivey”) he traveled to the #2 Unit and
began an imminent danger run across the working faces. Tr. 29. He also recorded his
observations in his notes. GX-2. Hardison discovered that in the #7 entry at the last open crosscut
the intersection had been mined wider than allowed by the mine’s roof control plan. Tr. 31, 51;
GX-1, GX-2. It appeared the mining machine operator had taken a cut9 too far over to the right
side of the entry. Tr. 51, 52. Using a tape measure, he found that the entry was wider than 20
feet. Tr. 31. The entry measured from 25 feet wide to 20 feet wide for a distance of 27 feet. Tr.
31; GX-2, p. 3. The entry was widest at the intersection, and came back into compliance at 20
feet wide as you went toward the face. Tr. 32; GX-2, p. 8. The maximum allowable width for
entries under the roof control plan in effect was 20 feet. Tr. 30, 31, 35; GX-3, p. 5. In the entry
that had been cut too wide there was sloughage10 and rib rashing, a crumbling off the side of the
coal rib due to the pillar11 taking more weight from the overburden.12 Tr. 33, 53. He saw the
entry had bad top.13 The 20-foot width limitation came from a history of roof falls nationwide,
especially present in the Western Kentucky coal seam. Tr. 36. Additional support was required
and was promptly installed in the entry. Tr. 34, 35.
Inspector Hardison testified he was worried about a roof fall with rock striking miners.
This was made reasonably likely by the wide entry, bad top and no supplemental support. Tr. 36,
6

“Unit” as used throughout this decision will refer to the mining unit that was producing
coal in the 2nd west panel.
7

“Pins” is another term for bolts or roof bolts.

8

Randy Ivey started in the mines in 1987 as an outby utility worker. He then worked
loading for 4 years at Pyro, and started at Warrior in 1997. His experience includes power
mover, belt mechanic, unit mechanic, greaser, and electrician. At the time of the hearing, he had
been in the safety department for about 5 years. His certifications include surface and
underground foreman and instructor, MET, electrician and dust sampling. Tr. 228-231.
9

A “cut” is the part of a block of coal that is mined or cut out. “The swath of coal
extracted by a continuous mining machine is called a ‘lift’ or ‘cut.’” Excel Mining, LLC, 34
FMSHRC 99, 102 (ALJ) (2012).
10

“Sloughage” was described by Hardison as where the ribs start to rash, a crumbling off
of the coal rib from the weight of the overburden. Tr. 33.
11

A “pillar” is a column of coal normally left permanently to support the overlying roof
strata in a mine. Advance mining usually results in a “room and pillar” type of array. For
example, see the map at RX-C.
12

“Overburden” is the material, of any nature, that overlies the coal deposits.

13

“Top” is the mine roof; “Bad top” as used here refers to the condition of the mine roof.

39 FMSHRC Page 512

37, 39; GX-2, p. 7. He wrote the intersection had high traffic with a lot of people working and
they would have a lot of exposure to this area. GX-2, p. 4. This was in a high coal seam, and
large rocks falling on someone would have a major impact, which could lead to permanently
disabling or crippling injuries. Tr. 37; GX-2, p. 7. Hardison determined that injury was
reasonably likely due to the entry width and the amount of exposure to miners. Tr. 39. He relied
on his training and experience with roof falls to make this likelihood determination, as well as
recollection of a previous accident at the Cardinal Mine eight years prior that led to a fatality. Tr.
36, 38. He also testified that entry widths and pillar sizes play a huge role in roof conditions, and
as a result of these major safety factors, the widths are not allowed over 20-foot. Tr. 36, 37.
Hardison testified that any possible injury would be permanently disabling, but also
testified “I guess I could have gone fatal.” He reached this conclusion by recollecting that miners
in Western Kentucky had been killed by roof falls in the past, and that Warrior itself had seen a
face boss killed in an accident involving falling rock. Tr. 38. Moreover, Hardison had met a
miner recently who had been permanently crippled by falling rock in a mine in Elk Creek. Tr. 39.
Inspector Hardison made the likelihood and expected injury findings based on the
following considerations: First, the roof conditions in the area; second, the entry width; and third,
he noted that numerous miners traveled through the #7 entryway, both in shuttle cars and on foot.
Based on these considerations, he concluded that there was an “extreme amount of exposure.”
Tr. 39, 40. However, judging by the traffic in the area he had personally observed, he concluded
two miners were likely to be affected by the condition, because while many miners would be
temporarily exposed to the potential hazard, only two would be likely to occupy the entryway at
any given time. Tr. 41.
Turning to negligence, Inspector Hardison assessed the level as “high”. He testified that
high negligence was appropriate due to the obviousness of the condition, as there was no
question that it was wide. Tr. 41, 42. He observed rib rashing and there was draw rock14
everywhere, but the entry had not been closed off and was still being used. Tr. 42. Production
continued instead of getting the area fixed to eliminate the hazard to miners. In his notes he
wrote “There is bad broken up top, loose draw rock & ribs rashing badly”. GX-2, p. 4. Moreover,
he concluded that with all the activity occurring near the entryway, including face bosses, the
mine’s examiners, and foremen, management was aware of the condition or should have been
aware of it. Tr. 43, 44; GX-2, p. 6. The area had been mined on the day shift or the second shift
the previous day and went through the third shift. Tr. 42, 43. When Hardison made his imminent
danger run the next morning, they were running coal and allowing men to use the entry. Tr. 42,
43. He stated “negligence is not only when it happens but it’s how long you’ve allowed this to
happen.” Tr. 61, 62. He found there were no mitigating factors. Tr. 44. However, Hardison did
testify he was unaware of wide entries in District 10 that had resulted in permanently disabling
injuries. Tr. 60, 61.
14

“Draw rock” is generally understood to refer to pieces of material in the roof or ribs
that tend to fall easily when under pressure. See, Excel Mining, LLC, 33 FMSHRC 1421, 1423 n.
4 (2011)(ALJ). The term also refers to soft rock permeating coal seams, prone to falling after
coal extraction.

39 FMSHRC Page 513

Inspector Hardison testified that during his inspection the top looked bad in the #2 Unit,
they were putting in a lot of roof support. Tr. 45. There was a lot of draw rock, clay veins15 in the
roof, slips16 around the ribs, and some pretty tough roof on the whole Unit. Tr. 45, 46.
Rusty Vernon Smith17 (“Smith”) testified for Respondent. Smith was the third shift Crew
Leader, responsible for getting the unit ready for the next day including extending the belt line,
pre-shifting the unit, and rock dusting. Tr. 252. He was working in the #2 Unit on the
nonproducing third shift, the shift just prior to the day shift during which Hardison’s inspection
was conducted. Tr. 255-257. Smith testified the roof conditions on the left side were better than
average in his opinion. The ribs were loose with “regular typical sloughage”, and they were
scaled.18 Tr. 257, 258. At that time the height was worse on the left side of the Unit and the
conditions encountered did not allow for full cuts to be taken. Tr. 257, 276.
Randy Ivey, a Warrior safety tech, testified for Respondent. Tr. 228. He also recorded
notes regarding the inspection on May 9, 2011. RX-B. On the inspection with Inspector
Hardison, he testified the only concern in the #2 Unit was the excessive width of the #7 entry. Tr.
239. When they took the second lift, the right side became wide in the advancing entry. RX-B.
He further testified that 8-foot pins were installed as additional roof support to abate the citation.
The cable bolts were put in the intersection and along the right side inby rib. Tr. 241, RX-B. The
roof bolts looked good, the pin spacing was correct, he did not see any cracks or slips, the
limestone roof thickness was more than adequate at 32 inches, and the overall roof conditions
were very good. Tr. 240, 242, 243, RX-B. Ivey also opined that the width of the #7 entry did not
appear to present a hazard to miners. Tr. 243. He did not notice any sloughage there and the top
was good. Tr. 244. The area would have been mined on the second shift the day before; the third
shift was not a production shift. Tr. 247.

15

A “clay vein” is formed where the coal seam has been pulled apart and clay has been
forced into the crevice. Tr. 71; AMERICAN GEOLOGICAL INSTITUTE, DICTIONARY OF MINING,
MINERAL, AND RELATED TERMS 104 (2nd ed. 1996).
16

A “slip” is a “[l]andslip, or subsiding mass of rock or clay in a quarry or pit; a minor
landslide.” AMERICAN GEOLOGICAL INSTITUTE, DICTIONARY OF MINING, MINERAL, AND
RELATED TERMS 514 (2nd ed. 1996). See also, Footnote 29.
17

Smith first worked for Warrior in 2004 as a roof bolter and putting on belts for about
18 months. He then became a third shift Crew Leader, a position he held at the time of the
hearing. He was responsible for getting the Unit ready for the next day. Tr. 251, 252. In 2005 he
was certified as a Mine Foreman. He began in mining in 1985, performing all work except
running a continuous miner. Tr. 253, 254.
18

mining.

“Scaling” is the taking down of loose rock or coal that remains on the roof or ribs after

39 FMSHRC Page 514

Inspector Hardison finished his notes on May 9th with his observations of the left side of
the #2 Unit. He had seen extremely bad top, lots of slips, gob19 falling out when the miner cuts,
heads20 everywhere in the top, draw falling, ribs starting to rash at the top of the coal seam, coal
ribs rashing, and what looked like a clay vein in the top. GX-2, pp. 13-15.
Inspector Hardison testified that on his way back to his office he thought about what he
had seen that day. He recalled draw rock falling, heads everywhere in the roof, clay veins in the
roof, and slips around the ribs. This caused him to seek guidance from his supervisor. Tr. 45-47.
Inspector Hardison issued Citation No. 8503299 to Warrior. The citation alleges a
violation of 30 C.F.R. § 75.220(a)(1), “Roof control plan”. The condition was described as
follows:
There is an entry that has excessive width on #2 Unit. The #7 Entry is from 20 to
25 feet wide for a distance of 27 feet. The long diagonal distance from #7 right
outby rib corner to #7 left inby rib corner is 45 feet 5 inches. This is a violation of
the Company’s Approved Roof Control Plan.
The safety standard provides:
Each mine operator shall develop and follow a roof control plan, approved by the
District Manager, that is suitable to the prevailing geological conditions, and the
mining system to be used at the mine. Additional measures shall be taken to
protect persons if unusual hazards are encountered. 30 C.F.R. § 75.220(a)(1).
Inspector Hardison designated the violation as Significant and Substantial (“S&S”). He
determined that injury was reasonably likely and could be reasonably expected to be
permanently disabling to 2 persons. Hardison rated the negligence as high.
GX-1.
The Warrior Cardinal Mine Roof Control Plan in effect on May 9, 2011 was approved on
March 9, 2011. In paragraph two of the cover letter of approval the minimum requirements were
addressed. As pertinent here, the District Manager pointed out that:
Roof bolt spacing and widths of entries, rooms, and cross-cuts…are the
maximum, and if during an inspection or investigation by MSHA, conditions
warrant, the spacing and widths are subject to reduction.
19

“Gob” is “[c]oal refuse left on the mine floor” AMERICAN GEOLOGICAL INSTITUTE,
DICTIONARY OF MINING, MINERAL, AND RELATED TERMS 239 (2nd ed. 1996).
20

“Heads” have been described as smooth round rocks, Tr. 72, and “big pieces of rock
that hang from the roof”. Pyro Mining Co., 6 FMSHRC 1789, 1794 (1984) (ALJ). See also,
footnote 30.

39 FMSHRC Page 515

In the plan, supplementary roof support materials were specified. Also, under the heading
of “Entry, Rooms, and Crosscuts Widths & Centers”:
No mining width, other than turnouts described in other areas of this plan, will
exceed 20’.
Under the heading of “Safety Precautions for Roof Control Plan”:
1. This is the minimum Roof Control Plan and was formulated for normal roof
conditions and the mining system described. Additional measures will be
taken in accordance with 75.220 (a) (1) to protect persons if unusual hazards
are encountered.
13. Unless using eight (8) fully grouted bolts, when the corners of pillars are cut
off, (notches to the right or left), at least three bolts, a minimum of 12 inches
longer than the bolt being used in the bolting cycle, will be installed midway
of the notch area.
GX-3, pp. 5, 7, 8.
Inspector Hardison told Warrior representatives when issuing the citation that it involved
a “Rule To Live By”,21 and as a result, he would be recommending a specially assessed penalty.
Tr. 56. He made no other recommendations concerning the #2 Unit. Tr. 56. Hardison issued no
further citations on May 9th. Tr. 55-57.
After returning to the local MSHA district office, Hardison spoke with his supervisor,
Mike Whitfield. Tr. 57. Hardison told Whitfield that he had some concerns regarding roof and
rib conditions in the #2 Unit. Tr. 46. Whitfield in turn recommended that Hardison speak to
another MSHA inspector, David Winebarger, a roof control specialist. Tr. 47. Hardison informed
Winebarger about the roof and rib conditions that prompted him to speak to Whitfield. Tr. 47.
Winebarger would travel to the Cardinal Mine to conduct an inspection the following day, May
10, 2011. Tr. 57, 67.
Burden of Proof
In an enforcement action before the Commission, the Secretary bears the burden of
proving any alleged violation. Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987).
The burden imposed on the Secretary by the Mine Act is to prove alleged violations and related
allegations such as gravity and negligence by a preponderance of the evidence. Garden Creek
Pocahontas Company, 11 FMSHRC 2148, 2152 (Nov. 1989), citing Consolidation Coal Co., 11
FMSHRC 966, 973 (June 1989); Jim Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008)
(ALJ). Quoting the Supreme Court in Concrete Pipe, 508 U.S. 602, 622 (1993), the Commission
observed that “[t]he burden of showing something by a ‘preponderance of the evidence,’ the
21

The complete list of “Rules to Live By”, in three parts, is available to the public online
at MSHA’s website: http://www.msha.gov/focuson/RulestoLiveBy/RulestoLiveByI.asp.

39 FMSHRC Page 516

most common standard in the civil law, simply requires the trier of fact ‘to believe that the
existence of a fact is more probable than its nonexistence.’” RAG Cumberland Res. Corp., 22
FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir 2001); In re: Contests of
Respirable Dust Sample Alteration Citations: Keystone Mining Corp., 17 FMSHRC 1819, 1838
(Nov. 1995), aff’d sub nom. Secretary of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096
(D.C. Cir. 1998).
Significant and Substantial
A significant and substantial (“S&S”) violation is described in section 104(d) (1) of the
Mine Act as a violation “of such nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d) (1)
(emphasis added). The four-part test long applied to establish the S&S nature of a violation
examines: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin Power Co.,
Inc. v, Sec’y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
In addition to the Mathies criteria, the Commission has established that the S&S
determination must be based on the particular facts surrounding the violation, Texasgulf, Inc., 10
FMSHRC 498, 500 (Apr. 1988), and 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 Commission has emphasized that it
is the contribution of a violation to the cause and effect of a hazard that must be significant and
substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984). The Commission has also established
that the operator may not rely on redundant safety measures to mitigate the likelihood of injury
for S&S purposes. Buck Creek Coal, Inc., v. FMSHRC 52 F.3d 133 (7th Cir. 1995); Brody
Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 2015).
The Commission has clarified that “The Secretary need not prove a reasonable likelihood
that the violation itself will cause injury.” and “the absence of an injury-producing event when a
cited practice has occurred does not preclude a determination of S&S” Cumberland Coal
Resources, LP, 33 FMSHRC 2351 (October 5, 2011), (citing Musser Engineering, Inc. and PBS
Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); Elk Run Coal Co., 27 FMSHRC 899, 906
(Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).
In 2014 the Seventh Circuit held that “A violation is significant and substantial if it could
lead to some discrete hazard, the hazard was reasonably likely to result in injury, and the injury
was reasonably likely to be reasonably serious.” Peabody Midwest Mining, LLC v. FMSHRC 762
F.3d 611, 616 (7th Cir. 2014) (emphasis added). The Circuit Court’s use of the term “could” is the
same term embodied in section 104(d) (1) of the Act, set forth above. In Knox Creek Coal Corp.,
v. Secretary of Labor, 811 F.3d 148, 160 (4th Cir. 2016), the Circuit Court recognized that the
Mathies test had been consistently applied by the Commission and ALJs for decades and adopted

39 FMSHRC Page 517

by Federal Appellate Courts. However, in analyzing the second Mathies element which primarily
accounted for the concern with the likelihood that a given violation may cause harm, the Court
found “for a violation to contribute to a discrete safety hazard, it must be at least somewhat likely
to result in harm.” Id., at 162 (emphasis added). The Court reasoned that “the second prong of
Mathies requires proof that the violation in question contributes to a ‘discrete safety hazard,’
which implicitly requires a showing that the violation is at least somewhat likely to result in
harm.” Id., at 613.
Recently, a majority of three Commissioners revisited the “reasonable likelihood”
standard finding that “the second step requires a determination of whether, based upon the
particular facts surrounding the violation, there exists a reasonable likelihood of the occurrence
of the hazard against which the mandatory safety standard is directed”. Sec’y of Labor v.
Newtown Energy, Inc., 38 FMSHRC 2033, 2038 (Aug. 2016).22 To establish this element, a clear
description of the hazard at issue is required in order to determine whether the violation
sufficiently contributed to that hazard. Id.
The roof control plan in effect specified the type and use of supplemental roof support
materials, the maximum width of an entry, and as noted by the District Manager entry widths
could be subject to reduction where warranted by conditions. It was contemplated that if the
unusual hazard of a wide entry were encountered supplemental support would be required.
Respondent has conceded the fact of the violation; therefore, the first element is established.
Respondent does not deny that the hazard contributed to and caused by the violation of its
roof control plan was a potential roof fall or rib sloughage, but argues that this hazard was
ultimately benign in nature. RRB p. 11. The abnormal conditions on the left side of the #2 Unit
had been recognized and production was reduced to ten foot cut lengths with immediate roof
bolting to ensure safe mining. Relying on the testimony and notes of Warrior employee Ivey,
Respondent contends that the #7 entry roof conditions were very good, the roof bolts were tight
and firm against the roof, there were no cracks or slips, the limestone roof thickness was more
than adequate, and the overall roof in the entry was competent. RRB pp. 11, 12.
The Secretary contends the citation was properly designated S&S, since the excessive
entry width created an area with inadequate roof support, contributing to the discrete safety
hazard of a roof fall, and that roof falls pose one of the most serious hazards to miners. SPHB pp.
8, 11. The Secretary argues that Inspector Hardison’s credible testimony is entitled to substantial
weight. Id. at 7. The entry was a working section traveled by miners on foot and in shuttle cars,
and due to the weakened intersection there was a reasonable likelihood of injury. Further, with
roof falls a leading cause of death in underground mines, such injury would be reasonably serious
in nature. Id. at 10.
The discrete safety hazard contributed to by the violation of the roof control plan was a
fall of roof. The particular facts established on this record are that in the #2 Unit the #7 entry had
22

The Chairman and one Commissioner dissented from this interpretation on the basis
that the Fourth Circuit Court in Knox Creek required at the second Mathies step only that the
violation be shown to be “at least somewhat likely to result in harm”. Newtown, at 2052.

39 FMSHRC Page 518

been mined 25 feet wide at an intersection, and proceeding inby came into compliance at 20 feet
wide after a distance of about 27 feet. Under the mine’s roof control plan this condition required
the installation of additional roof support. At the time of the inspection, this additional roof
support had not been installed. The measurements made at the time of the inspection clearly
established that the entry was impermissibly wide and also defined the area affected by the
measured distance the condition extended into the entryway.
This violation of the roof control plan did contribute to a measure of danger to safety in
the active mining section. Inspector Hardison credibly testified that entry width and pillar size
play a huge role in roof conditions; a wide entry increases the weight on the pillars from the
overburden creating the potential for roof falls. In the notes he wrote that day, he memorialized
his observations in the wide entry area of sloughage and rib rashing with crumbling off the side of
the coal rib indicating the increased weight on the pillar, and broken up top with draw rock.
Because of these major safety factors, mining widths are not allowed over 20-foot, with one
exception not relevant here, under Warrior’s roof control plan. The #7 entry was widest at the
intersection, where numerous miners traveled on foot and in shuttle cars.
Commission Administrative Law Judges (“ALJs”) have considered entry widths mined in
excess of a mine’s roof control plan. In Mountain Edge Mining, Inc., 33FMSHRC 1290, 1295
(May 2011), Judge Moran found there was a discrete safety hazard, a measure of danger to safety,
because exceeding the maximum mining width increased the likelihood of a roof fall and to
conclude otherwise would mean that the roof control plan requirement was meaningless.
Similarly, Judge Steele found that an entryway impermissibly wide by eight feet contributed to
the potential of a roof fall. Elk Run Coal Co., 36 FMSHRC 900, 915-16 (Apr. 2014). Recently,
Judge Gill observed that roof control plans are tailored to the specific conditions that exist in each
mine. He found that excessive cut widths contributed to the hazard of a roof fall. Tri County Coal,
LLC, 37 FMSHRC 268, 288-89 (Feb. 2015). I agree with the reasoning of the judges in these
cases.
The discrete safety hazard here is that miners would be exposed to the potential of a roof
fall due to an inadequately supported, impermissibly wide roof during continued mining
operations. The area had probably been mined on one or both shifts the day before and the
condition had lasted through the third shift, which was a nonproducing maintenance shift.
Therefore, the condition had lasted from the time the wide cut had been taken, through the
remainder of that shift, throughout the following maintenance shift, and until the Inspector found
it during the day shift on May 9th. That the area had otherwise been bolted according to the
requirements for an entry of the correct width with bolts used in the bolting cycle does not change
this determination. At the time of the citation, the safety precautions for additional measures in
the form of added roof support had not been installed. Therefore, the failure to comply with the
mine’s roof control plan in an entry with excessive cut width did pose a discrete safety hazard to
miners, that of a fall of roof. This was more than a mere technical violation of a mandatory safety
standard.
The discrete safety hazard found here, a fall of roof, was reasonably likely to occur.
Inspector Hardison credibly testified that the wide entry created the potential for roof falls. A
wide entry roof fall had not occurred in that District, but Hardison relied on his experience with

39 FMSHRC Page 519

roof falls, his training, and the history of other roof falls at Warrior and in Western Kentucky in
making the likelihood determination.
In 1982 the Commission, referring to the Senate and House bills that ultimately became
the 1969 Coal Act, noted that:
A prime motive in the enactment of the 1969 Coal Act was to “[i]mprove health
and safety conditions and practices at underground coal mines” in order to prevent
death and serious physical harm….One of the problems that greatly concerned
Congress was the high fatality and injury rate due to roof falls. The legislative
history is replete with references to roof falls as the prime cause of fatalities in
underground mines. Eastover Mining Co., 4 FMSHRC 1207, 1211 & n. 8 (Jul.
1982) (citations omitted).
The Commission has also noted:
Mine roofs are inherently dangerous and even good roof can fall without warning.
Consolidation Coal Company, 6 FMSHRC 34, 37 (Jan. 1984).
And in a case where rib sloughage had increased the overall width of an entry weakening the roof
and requiring installation of additional roof support, the Commission affirmed an ALJ’s finding
that the violative roof conditions posed a high degree of danger to miners based on the present
danger the miners faced in the area.23 Eastern Associated Coal Corp., 32 FMSHRC 1189, 119192, 1201 (Oct. 2010).
In the ALJ decisions cited supra, the judges found that impermissibly wide entries could
lead to roof falls, leading in turn to permanently disabling or fatal injuries. Mountain Edge
Mining, at 1295; Elk Run Coal, at 915-16; and Tri County Coal, at 288. Considering the critical
role pillars play in supporting areas that have been mined, where an entry is too wide there would
be less pillar mass where needed - along the ribs. Inspector Hardison’s testimony regarding the
weight on the pillars along the ribs and the symptoms of rib sloughage and rashing is well taken.
If these conditions were not dangerous, there would be little reason to establish maximum mining
widths in roof control plans.
Therefore, considering the length of time the violative condition existed, and the credible
evidence of rib rashing, sloughage, bad roof conditions, increased weight on the remaining pillar
mass and the failure to install the required additional support until after the hazard was
discovered, a roof fall was reasonably likely to occur.
Contrasting the third and fourth Mathies elements, which are primarily concerned with
gravity, the seriousness of the expected harm, the Circuit Court in Knox Creek reasoned that at
this stage of the analysis the existence of the hazard should be assumed; however, “evidence is
still necessary to establish that the hazard is reasonably likely to result in serious injury.” Knox
23

There was also “potting”, or material falling away from around existing roof bolts.

39 FMSHRC Page 520

Creek, at 162, 164. At step three, the focus shifts to whether occurrence of the hazard would be
reasonably likely to result in injury. Newtown, at 2037.
The Commission has determined that “The Secretary need not prove a reasonable
likelihood that the violation itself will cause injury” and “the absence of an injury-producing
event when a cited practice has occurred does not preclude a determination of S&S”. Cumberland
Coal Resources, LP, 33 FMSHRC 2351 (October 5, 2011), (citing Musser Engineering, Inc. and
PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); Elk Run Coal Co., 27 FMSHRC 899,
906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).
The hazard established is that of a fall of roof and rock. As already set forth in this
decision, roof falls are inherently dangerous and a serious risk to the health and safety of miners.
Respondent argues that a roof fall was unlikely, relying on the testimony and notes of Safety Tech
Ivey. Ivey stated he did not see any slips, sloughage or cracks in or adjacent to the #7 entry, the
roof bolts looked good, the limestone roof thickness was more than adequate at 32 inches, the
overall roof conditions were very good, and the entry did not appear to present a hazard to miners.
However, this is not the correct standard to be applied to an impermissibly wide entry. Ivey’s
opinion regarding the appearance of the roof conditions evades the reasons for the provisions in
the mine’s roof control plan requiring additional support when an entry is mined too wide. The
additional support is important to maintain the integrity of the roof in the overly wide entry in the
absence of properly situated pillar mass that would provide the needed support.
Weighing the testimony of Ivey against that of Inspector Hardison, I am unable to assign
any significant probative value to Ivey’s opinion. Instead, I credit Hardison’s more detailed and
informed testimony. He credibly testified that entry widths and pillar sizes play a huge role in roof
conditions, and a wide entry increases the potential for roof falls. He observed and recorded that
there was bad, broken up top, loose draw rock everywhere, and ribs rashing badly. Impermissibly
wide entrys are a hazard to miners. Hardison recalled that miners in Western Kentucky had been
permanently disabled and killed by falling rock and roof.
Ivey focused on the roof bolts already installed, the limestone thickness, and that he did
not see cracks, slips or sloughage. To Ivey, the overall roof conditions were very good. But
Hardison’s more detailed observations included loose draw rock, ribs rashing, and broken up top.
To the conflicting evidence on sloughage, I credit Hardison’s observation of crumbling off of the
side of the coal rib, rib rashing. These observations are more consistent with the testimony of
Smith, that there was typical sloughage present on the shift just prior to the day shift. As to the
roof conditions in the wide entry, Hardison specifically noted the broken up top and loose draw
rock, whereas Ivey reported on the existing roof bolts and limestone thickness.
It is the greater risk of a fall of roof and rock presented by the failure to follow the mine’s
own roof control plan that is at issue here. I find that injury was reasonably likely and could
reasonably be expected to be at least permanently disabling. The Secretary has carried his burden
by proving the seriousness of the hazard and the serious degree of harm that can be reasonably
expected to occur. Therefore, the third and fourth elements are satisfied.

39 FMSHRC Page 521

The above analysis, it should be noted, is also consistent with Peabody, wherein the
Circuit Court found:
“…the question is not whether it is likely that the hazard…would have occurred;
instead, the ALJ had to determine only whether, if the hazard occurred (regardless
of likelihood), it was reasonably likely that a reasonably serious injury would
result.”
Peabody, at 620.
In summary, I conclude that under either current Commission precedent or the Circuit
Court decisions, the preponderance of the evidence found credible establishes it was likely that
the roof fall hazard contributed to by the impermissibly wide entry was reasonably likely to
result in injury causing events, and the injuries would be reasonably serious in nature. I find the
violation of mandatory safety standard 30 C.F.R. § 75.220(a)(1) was S&S.
Gravity
The term “gravity” is contained in Section 110(i) of the Mine Act in the context of factors
to be considered by the Commission in assessing civil monetary penalties. Among those factors
is “the gravity of the violation”. This is generally expressed as the degree of seriousness of the
violation and is measured in terms of the likelihood of injury, the severity of such injury should it
occur, the number of persons affected, and whether the violation is S&S. I have affirmed that the
violation was S&S. The remainder of the gravity factors must be determined for every violation.
The focus is on the effect of the safety hazard if it occurs.
Respondent argues that the gravity determinations should be reduced. The citation was a
technical violation and not reasonably likely to result in injury. There would be little to no travel
in the area as mining advanced in entry #7. RPHB pp. 23, 24; RRB pp. 10, 12.
The Secretary contends that the wide area was large enough to cover two miners and the
hazard was likely to cause injury that would be reasonably serious in nature. Inspector
Hardison’s designation of permanently disabling injury was not overstated. SPHB pp. 8, 10, 11.
Inspector Hardison determined that there was exposure of miners to the condition in the
working section to the hazard. He determined that numerous miners travelled through the #7
entry, but based on the traffic he personally observed, he concluded that only two miners were
likely to be affected by the hazard at any given time. That traffic in the future would be reduced
as mining advanced does not change the conclusion that at a particular time two miners could be
under the noncompliant roof.
The effect of a roof fall, should it occur, can be catastrophic. Hardison marked injury as
reasonably likely. In his testimony, Hardison suggested he could have marked “fatal”. Of course,
not all roof falls happen where miners are working; but miners under falling roof or large rock
could suffer fatal injuries, as history tragically teaches. It follows that I agree with the
seriousness of expected injury. Miners in that intersection at the wrong time would be exposed to

39 FMSHRC Page 522

the risk of fall of extremely heavy material. Accordingly, I affirm the gravity determinations of
the Inspector.
Negligence
Section 110(i) of the Mine Act includes “negligence” as one of the six criteria the
Commission is required to consider in assessing a penalty. The term is not defined in the Act, but
over 30 years ago the Commission 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 occurred.
A. H. Smith Stone Company, 5 FMSHRC 13, 15 (Jan. 1983).
The Commission has also determined that to evaluate an operator’s negligence,
consideration should be given to “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.” Jim Walter Resources, 36 FMSHRC 1972,
1975 (Aug. 2014).
Under the divided penalty assessment authority mandated by Congress in the Act, it is
MSHA that begins the process by proposing a monetary civil penalty based on the procedures
contained in Part 100 of the Secretary’s regulations. Therein, the criterion of negligence is
defined as:
Conduct, either by commission or omission, which falls below a standard of care
established under the Mine Act to protect miners against the risks of harm. Under
the Mine Act, an operator is held to a high standard of care. A mine operator is
required to be on the alert for conditions and practices in the mine that affect the
safety or health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices. The failure to exercise a high standard of care
constitutes negligence.
30 C.F.R. § 100.3 (d).
Negligence is further categorized into levels, including “no,” “low”, “moderate”, and
“high” negligence, with the highest level being, “reckless disregard”. These levels are based on
the degree of the operator’s knowledge of the violative condition or practice along with the
existence or multiples of mitigating circumstances found to be present. The Secretary’s
procedures are essentially formulaic and mechanical, reducing the level of negligence
determined to a number of “points,” Id., Table X, which are then added to other point evaluations
to arrive at the calculated proposed penalty amount. 30 C.F.R. § 100.3, Tables I-XIV.
It is well settled that the Commission is not bound by the Secretary’s proposed penalties.

39 FMSHRC Page 523

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...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.
“[T]herefore a Commission Judge may find ‘high negligence’ in spite of
mitigating circumstances or may find ‘moderate’ negligence without identifying
mitigating circumstances.” Brody Mining, LLC, 37 FMSHRC 1687, 1701-02
(Aug. 2015). High negligence is considered an aggravated lack of care that is
more than ordinary negligence.
Id., at 1703, citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998).
Respondent contends the excessive width of entry #7 resulted from the mining machine
operator simply taking a cut too far over on the right side of the entry. Respondent argues that
the entry had properly installed roof bolts, and that the Secretary cannot show that mine
management had knowledge of the condition. Respondent’s position is that the citation should be
modified to low negligence based on significant evidence of mitigation of any risk due to the
condition. RPHB at 29, 30.
The Secretary contends the wide entry had been mined on or before the second shift the
day before, had existed through that shift, the third shift, and for hours during the shift on which
it was found. Face bosses and the mine’s examiners would have been through the affected area
and should have observed the condition, which was exceptionally obvious since it looked like a
slice of pie. The wide entry should have been easily seen, but no steps were taken to correct the
condition prior to the issuance of the citation. The Secretary also argues that no mitigating
circumstances existed. SPHB pp. 12, 13.
Inspector Hardison determined the Respondent’s negligence in this citation to be “High.”
Tr. 41, 42; GX-1. I agree.
The impermissibly wide entry was obvious. On his imminent danger run Inspector
Hardison discovered the wide area; he credibly testified that there was no question it was wide.
Warrior’s Safety Tech Ivey did not disagree. The measurements they took revealed a width of 25
feet at the intersection, and the entry continued to be too wide for 27 feet inby along the
entryway. The condition had existed since at least the second shift the day before, long enough
for numerous mine personnel to have travelled through the working area, including the mine’s
own examiners, face bosses and foremen, and in particular the third shift Crew Leader. Other
signs Hardison observed were broken up top, loose draw rock, and ribs rashing.
Respondent essentially argues that it did not have knowledge of the condition. The
argument mischaracterizes the Secretary’s burden. Due to the obvious nature of the condition,
the time it was in existence and the fact that mine personnel were in the area during the
preceding third, nonproducing shift performing preparation work, the operator should have

39 FMSHRC Page 524

known of the wide entry. Smith’s testimony reveals there was significant activity in the area to
extend belts, rock dust, and preshift the Unit. At the very least, the preshift examination should
have found the hazard, recorded it, and had it corrected before the day shift accessed the area.
Had the Inspector not discovered the violation, it is most likely the wide entry would have
continued to exist uncorrected under continued normal mining operations. This failure to observe
and correct a wide entry as prohibited in the mine’s roof control plan falls well below the
standard of care established to protect miners from harm. Under these facts and circumstances, a
reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the safety standard would have acted differently; closing off the area to
install the required additional roof support and make the intersection and entryway safe for
miners. I would also observe that the crew present at the time of the wide cut by the mining
machine operator should have reported the error to their supervisor.
The duty of care to miners not addressed in the instant case was the installation of the
required additional roof support called for in the mine’s own roof control plan. Respondent
argues for low negligence, but considerable mitigating circumstances were not present at the
time of the citation. Indeed, I am unable to find any mitigating circumstance. I understand
Respondent’s position that good faith efforts were made to control the roof conditions in the #7
entry. And, Inspector Hardison cited no other violative condition that day. But this is not enough.
Even if I found a mitigating circumstance, a reduction in the imputed negligence is not
warranted. This is because all requirements for roof support must be followed to insure, to the
extent possible, the safety of miners. The potential consequences are too dire to permit the
operator to behave otherwise.
Respondent is probably correct when it offers that the violation resulted from the
continuous mining machine operator simply taking a cut too far over to the right side of this
particular entry. Because a mistake is unintentional does not mean it is benign. Roof falls are a
highly dangerous risk to run in any context, and the “cut too far” in this case ran without
additional support for about 27 feet. I affirm the designation of high negligence.
Specially Assessed Penalty
The Secretary’s regulation, as currently constituted states:
Determination of penalty amount; special assessment.
(a) MSHA may elect to waive the regular assessment under § 100.3 if it
determines that conditions warrant a special assessment.
(b) When MSHA determines that a special assessment is appropriate, the
proposed penalty will be based on the six criteria set forth in §
100.3(a). All findings shall be in narrative form.
30 C.F.R. § 100.5.
In the Mine Act of 1977 the Secretary was authorized to issue regulations deemed
appropriate to carry out any provision of the Act. 30 U.S.C. § 957. The Act provided for the

39 FMSHRC Page 525

assessment of a civil penalty by the Secretary for violation of a mandatory health or safety
standard. 30 U.S.C. § 820. On review of the special assessment regulation that had been
established in 1978 and modified in 1982 the D. C. Circuit Court of Appeals found that the
special assessment regulatory criteria were designed for “particularly serious or egregious
violations.” Coal Employment Project, et. al., v. Dole, 889 F.2d 1127, 1129-30 (D.C. Cir. 1989).
Although the regulation was revised in 2007 to remove reference to particular circumstances to
be considered in special assessment reviews, the Circuit Court’s holding remains controlling
precedent. At the time of the revision of the regulation in 2007, it was made clear that MSHA
would have the discretion to determine which types of violations would be reviewed for special
assessment. See, 71 FR 53054, 53063; 72 FR 13542, 13620-22.
If MSHA elects to waive regular assessment, the regulation specifically requires that all
special assessment findings be in narrative form. 30 C.F.R. § 100.5(b). Therefore, the burden is
on the Secretary to justify a proposed enhanced penalty under the standard announced by the
D.C. Circuit Court that special assessments are reserved for “particularly serious or egregious
violations.” See, Oak Grove Resources, LLC, 35 FMSHRC 3039, 3074 (Sep. 2013)(ALJ);
American Coal Company, 35 FMSHRC 1774, 1824 (Jun. 2013)(ALJ); American Coal Company,
37 FMSHRC 1267, 1278-79 (Jun. 2015)(ALJ); Traylor Mining, LLC, 37 FMSHRC 1373, 1375
(Jun. 2015)(ALJ). This burden includes basing the proposed special assessment on the six
penalty criteria in 30 C.F.R. § 100.3(a).
The Petition for the Assessment of the Civil Penalty in this case included the “Narrative
Findings for a Special Assessment”. In the petition, this document was said to identify the
reasons for a special assessment. However, it only set forth that MSHA had carefully evaluated
the conditions cited and the Inspector’s information and evaluation, and that based on the six
criteria of 30 C.F.R. § 100.3(a) Warrior would be assessed the enhanced penalty. The point
calculations for either a regular or specially assessed penalty were not disclosed by the Secretary.
The reasons supporting the decision to propose the enhanced penalty considering the facts and
circumstances surrounding the violation, other than the boilerplate, were not provided in the
Petition.
The Commission and its Judges are not bound by the Secretary’s Part 100 proposed
penalty regulations. Sellersburg Stone Company, 5 FMSHRC 287, 291 (Mar. 1983), aff’d 736
F.2d 1147, 1151-52 (7th Cir. 1984); Jim Walter Resources, Inc., 36 FMSHRC 1972, 1975 n. 4
(Aug. 2014); 29 C.F.R. § 2700.30(b). Those regulations apply only to the proposal of penalties
by the Secretary and do not extend to the independent Commission. Mach Mining, LLC, v. SOL,
809 F.3d 1259 (D.C. Cir. 2016), citing Brody Mining, LLC, 37 FMSHRC 1687, 1701 (Aug.
2015). Commission Judges are accorded broad discretion in assessing civil penalties under the
Mine Act, but this discretion is not unbounded and must reflect proper consideration of the six
statutory penalty criteria set forth in section 110(i) and the deterrent purpose of the Act. Hubb
Corporation, 22 FMSHRC 606, 611 (May 2000), citing Westmoreland Coal Co., 8 FMSHRC
491, 492 (Apr. 1986) and 29 C.F.R. § 2700.30(a).
In determining penalty amounts the Commission must consider (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

39 FMSHRC Page 526

to continue in business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of a violation. 30
U.S.C. § 820(i).
When considering the six statutory penalty criteria the Commission Judge must make
findings and conclusions sufficient to give the operator and the regulated community appropriate
notice of the bases for the assessed penalty and to provide a factual basis adequate to set forth a
discernible path allowing for Commission or Court review. Where there is a substantial
divergence from the Secretary’s original penalty proposal, an explanation of the assessment is
essential. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600-01 (May 2000), citing
Sellersburg Stone Company at 292-93; Martin County Coal Corp., 28 FMSHRC 247, 261 (May
2000); See also, 29 C.F.R. § 2700.30(a).
Beyond the six statutory penalty criteria, the Commission Judge considers the potential
deterrent effect of the penalty amounts assessed. In the Mine Act’s legislative history, and
numerous Commission and federal cases, deterrence is identified as a central tenet underlying the
entire statutory scheme of imposing civil penalties. Black Beauty Coal Co., 34 FMSHRC 1856,
1864-69 (Aug. 2012). On review of the legislative history of the Mine Act, the D.C. Circuit
Court of Appeals determined:
From this history, we conclude that Congress was intent on assuring that the civil
penalties provide an effective deterrent against all offenders and particularly
against offenders with records of past violations.
Coal Employment Project, at 1133.
The penalty assessment findings and explanations of the Commission Judge need not be
exhaustive, but must be adequate to show compliance with the requirement to consider and make
findings on the statutory penalty criteria. Cantera Green, 22 FMSHRC 616, 621 (May 2000). All
six of the criteria must be considered, but there is no requirement that equal weight be assigned
to each one. Thunder Basin Coal Company, 19 FMSHRC 1495, 1503 (Sep. 1997). According to
the circumstances of the case, there is discretion to assign different weights to the factors, and
negligence and gravity may be weighed more heavily than the other four criteria. Lopke
Quarries, Inc., 23 FMSHRC 705, 713 (Jul. 2001); Spartan Mining Company, Inc., 30 FMSHRC
699, 724-25 (Aug. 2008); Musser Engineering, Inc., 32 FMSHRC 1257, 1289 (Oct. 2010).
Respondent argues the Secretary did not justify his deviation from the section 100.3 civil
penalty tables in proposing a specially assessed penalty.
The Secretary contends the special assessment of $30,200 is consistent with
Congressional intent that penalties be an effective deterrent against future violations. Respondent
has an extensive history of violations that includes violations of the same safety standard.
Respondent is a large producer of coal, and there is no evidence that the penalty would adversely
affect its ability to stay in business. In effect, the Secretary also contends that the gravity and
negligence determinations of the Inspector were proper. SPHB, pp. 13-16.

39 FMSHRC Page 527

The testimony of Inspector Hardison included his notice to mine management that he
would recommend a specially assessed penalty because the violation involved a “rule to live by”,
referring to the MSHA publication available to the industry and the public on the
Administration’s website. The publication is an initiative by MSHA focused on 24 safety
standards that were frequently cited in fatal accident investigations and were included as a result
of MSHA’s analysis of conditions and practices that had contributed to 589 deaths. Among those
fatalities were those that resulted from falling roof rock or rib in coal mines. The roof support
safety standard cited in the instant case is one of the 24, and one of the listed conditions leading
to fatalities is “Failure to install supplemental support…when adverse roof conditions are
encountered.” Through outreach and education coal mine operators would be encouraged to
identify and correct the hazardous conditions with the goal of reducing or preventing fatalities
and serious accidents. MSHA enforcement would be directed toward confirming that violations
related to these standards are not present in mines.
This non-regulatory issue, as important as it is for the information and guidance offered
to mine operators, does not contain any notice to the mining community that a violation of one of
the listed safety standards would result in a recommendation for or implementation of a specially
assessed proposed penalty. I note, in particular, that while the Inspector testified to his
recommendation for a special assessment, which may have been accepted by MSHA
management, there was no information provided as to what actually lead to the amount proposed.
The facts and circumstances relied upon and the reasons for proposing the enhanced amount are
completely opaque to review by the undersigned. Clearly, non-regulatory issues of the
Administration intended to improve safety, which by their nature primarily represent general
guidance, cannot provide a basis for a proposed special assessment in the context of specific
facts and circumstances in a particular case. While I agree that the Secretary did not justify his
deviation from the section 100.3 penalty tables, this does not matter when independently
considering the evidence to finally assess the penalty under the statutory criteria. Further, even if
the reasons for the proposed assessment were available for review, which would at least provide
some due process at the initial level of adjudication, I am not required to take such reasons into
consideration in making a decision on the amount of the penalty to be charged.
The operator’s history of previous violations.
In the fifteen months prior to the issuance of Citation No. 8503299, Respondent was
issued 629 citations at its Cardinal mine, 24 of which were violations of 30 C.F.R. §
75.220(a)(1). SPHB p. 14; GX-10. This is a significant history of violations. However, Warrior
may have 240 production days each calendar year, about 300 in a 15-month period. Tr. 167.
Therefore, when viewed against the very large size of this mine, the overall number and average
rate of citations for either roof control plan violations or all violations during the 15-month
period, an egregious violation history is not suggested. I conclude this is not an aggravating
factor.
The appropriateness of such penalty to the size of the business of the operator charged.
At the time of the issuance of the citation, Respondent’s Cardinal mine operated five (5)
production units and ranked second among all non-longwall underground coal mines in terms of

39 FMSHRC Page 528

total coal production in the United States. Tr. 138; RPHB p. 3. In the year prior to this citation,
2010, the mine produced 5,831,599 tons of coal. JX-1. The very large size of this business
weighs against any reduction in the penalty to be assessed. See, Thunder Basin Coal Company,
19 FMSHRC 1495, 1502 (Sep. 1997).
Whether the operator was negligent.
I have found the operator’s negligence was “high”. This is because there was shown an
aggravated lack of care beyond “ordinary” negligence. However, there was no more than high
negligence; the facts and circumstances do not establish, and the Inspector did not determine, a
reckless disregard for the safety of miners. While mine management should have known of the
wide cut, because it was obvious, actual knowledge is not shown on this record. The wide entry
without supplemental support existed for about the time of two shifts, not an extensive period of
time. In this case, there was not an extreme disregard of the duty of care owed to miners. While I
do find high negligence, the degree was not very high or particularly egregious.
The effect on the operator’s ability to continue in business.
As the Secretary notes in his brief, the Respondent provided no evidence at hearing that
the penalty proposed would adversely affect its ability to continue in business. SPHB p. 15. The
production of this mine, as noted above, would support a finding that the Secretary’s proposed
penalty would not impair the viability of the business. The lack of effect on Respondent’s ability
to continue in business also weighs against reduction in the penalty to be assessed.
The gravity of the violation.
I have found the violation to be S&S. The failure to install the required supplemental roof
support when the wide entry was cut was serious. This was no mere technical violation, the wide
roof area lacking properly positioned pillar support with evidence of rib rashing, sloughage,
broken up top, and loose draw rock presented a dangerous situation. This represents an
aggravating factor, weighing in favor of an enhanced penalty. However, while serious, the
evidence found credible does not support a finding that the gravity was particularly serious.
The demonstrated good faith of the person charged in attempting to achieve rapid compliance
after notification of a violation.
The Respondent’s good faith is not disputed by the Secretary. SPHB p. 16. I find the
Respondent moved quickly to support the roof along the rib where the wide cut was taken to
abate the violation. This criterion is found to weigh in favor of the Respondent.
Because this case involves roof control, of great importance to the safety of miners, I
weigh the factors of gravity and negligence more heavily than the other factors. Lopke Quarries,
Inc., at 713. Also, the combined factors of operator size and the ability to remain in business
would support an enhanced penalty. The remaining two factors are either not aggravating or
weigh in favor of Respondent. As to gravity and negligence, I find that neither meets the
requirement of “particularly serious or egregious”. Coal Employment Project, at 1129.

39 FMSHRC Page 529

The discretion of a Commission ALJ to assess the penalty de novo is bounded by the
statutory criteria and the deterrent purpose of the Mine Act. Sellersburg at 292. The weighted
analysis above supports an enhanced penalty, and I do consider the deterrent effect of the
penalty. Considering the size and production of this mine, it is important to provide an incentive
to the operator to place a higher priority on adherence to its roof control plan. I find that an
enhanced penalty of $20,750 is consistent with the facts and circumstances established on this
record, and would adequately serve as a deterrent.
May 10, 2011
On May 10, 2011 Inspector David William Winebarger24 (“Inspector Winebarger” or
“Winebarger”) traveled to the Cardinal Mine to conduct an inspection. During the inspection and
at the close-out meeting Winebarger was accompanied by MSHA Inspector Tony Sims (“Sims”).
GX-5, p. 2; Tr. 155, 156, 183, 184, 189-191, 293. He had been asked to go to the mine the
afternoon before, when he was briefed on the conditions in the #2 Unit by Inspector Hardison.
Tr. 47, 67. Hardison wanted Winebarger, on behalf of the roof control department, to take a look
at the conditions the mine was experiencing. Tr. 110. Winebarger wrote extensive notes that day,
beginning with his arrival at the mine at 0730, the time of the day shift. GX-5, pp. 1, 2. In his
testimony, he frequently referred to his notes; the hearing was held almost 4 years after the
inspection.25 He first examined the #2 Unit pre-shift and on-shift records and maps above
ground. He talked to Bruce Morris26 (“Morris”) and Tommy Kessinger27 (“Kessinger”) about
conditions on the #2 Unit. Tr. 67, 111. Morris and Kessinger reported they had been in this panel
for three production days, and that the left side was not as good as the right side. GX-5, pp. 1-3.
Morris and Kessinger said they would travel with Winebarger to the #2 Unit. Tr. 111.

24

David Winebarger began work for MSHA in February of 2007. Tr. 64. Prior to joining
MSHA Winebarger began work in the coal mine industry in 1971. Tr. 65. He became a mine
foreman in 1975, and worked as a fire boss and foreman until 1978. Tr. 65. He also worked as a
drill operator, mechanic, mine foreman and mining coordinator until 2003. Tr. 66. At the time of
his inspection of the Cardinal Mine on May 10, 2011, Inspector Winebarger was a roof control
specialist. Tr. 65.
25

Due to the passage of this much time, and to provide clarity regarding events of this
day, the testimony and notes of the witnesses, where available, will be considered together.
26

Bruce Morris has been Warrior Coal’s Safety Director for the Cardinal Mine since
2009. Tr. 165. Morris’s mining career began in 1981, and his experience has “run the gamut of
jobs within the mining industry.” Tr. 165-6. Morris is certified as a mine foreman, MET and
MET Instructor, and also certified to run respirable dust. Tr. 166-7.
27

Tommy Kessinger was Cardinal’s General Mine Superintendent. Tr. 142.

39 FMSHRC Page 530

The Imminent Danger Run
The #2 Unit consisted of entries #1 through #5 on the left and entries #6 through #9 on
the right.28 Tr. 68, 111, 114; GX-5, p. 3. To begin the imminent danger run Winebarger, Morris
and Kessinger came in on the supply road, and then walked straight ahead down the #4 entry to
the face. Tr. 68, 69, 111; GX-5, pp. 3, 4. When the group arrived, they were not mining coal. Tr.
89, 112.
In the #4 entry inby the spad 3+10 crosscut there were cavities with a roof height of 10 to
11 feet. GX-5, p. 4. There was a slip29 running across the entry causing the rib and rock above it
to be loose. Tr. 69; GX-5, pp. 4, 11. The loose rib had caused approximately 4 feet of chunky
rock to fall out from above the coal during mining. Tr. 69; GX-5, pp. 4, 11, 14. There were also 2
unsupported heads30 that were broken and cracked and appeared to be loose by the gaps around
them. Tr. 72, 73; GX-5, pp. 4, 11. Although the mining height was typically 7 feet, with the rock
falling out above the coal the entry and crosscut heights were 10 to 11 feet. Tr. 69, 70. Looking
at the map, Winebarger testified that a slip went almost all the way across the section. Tr. 70, 71;
GX-5, p. 42. In the #4 entry the slips in the roof were supported, but in the ribs they were not. Tr.
71. Winebarger observed clay veins in the entry; since the roof or coal was not consolidated, the
areas around the clay vein were loose and not sturdy. He stated if a clay vein goes into a pillar,
the pillar support would be weakened. Tr. 71, 72. At this location a citation31 was issued to
Morris. Kessinger scaled some of the corner of the loose rib down. GX-5, p. 5.
From the #4 entry the imminent danger run continued to the left side through the last
open crosscut between the #4 and #3 entries. Tr. 74. There Winebarger found a lot of loose stack
rock32 in the center of the crosscut that had been bolted up. There was a cavity in the crosscut
that had been created by mining. Tr. 75, 76; GX-5, pp. 6, 11. Stack rock had been supported in
the roof but not in the ribs. There were loose heads in the ribs, but they were not broken. Tr. 76.
The imminent danger run moved on to the left to the #3 entry. There Inspector
Winebarger saw 2 roof bolter operators placing a bolt at the left inby corner where there was an
overhanging rock rib right next to the operator on the return side. Tr. 76, GX-5, p. 6. Winebarger
28

Entries #1 through #9 of this section of the mine are shown by the marked up map in
Winebarger’s notes. GX-5, p. 42.
29

A “slip” was described by Winebarger as a polished rock to which the limestone
surrounding it does not adhere and falls off from around it. He testified unsupported slips could
fall at any time. Tr. 70.
30

Winebarger described “heads” as heavy, round, smooth, hard rocks of any size that are
hard to support and can fall at any time. Tr. 72.
31

This citation is not at issue in the instant case.

32

“Stack rock” was described by Winebarger as thinly laminated shale that is not solid
and flakes off, looking like slices of bread or the side of a deck of cards. Tr. 75, 76.

39 FMSHRC Page 531

immediately withdrew the operators outby and an imminent danger order was issued to Morris
and Kessinger. Tr. 77, GX-5, p. 6. Winebarger did not speak to the bolter operators about any
previous efforts they had made on the condition. Tr. 116. At page 13 of his notes, Winebarger’s
drawing shows where the bolter was and the site of the imminent danger order. Tr. 85, GX-5, p.
13.
Inspector Winebarger did not remain in the #3 entry because he heard the top working,
taking weight, over towards the #2 and #1 entries. He testified you could hear the fall of roof
with rocks dropping, dribbling out and there was flaking and popping. Tr. 77; GX-5, p.7. In the
#2 to #1 crosscut he found a pile of rocks that had fallen out where the top was working. One
rock measured 3’x4’x18” thick and had been rock dusted; there were small rocks also. Tr. 78;
GX-5, p. 7. There was also a slip running across the crosscut. GX-5, p. 12. While in this crosscut
Winebarger was concerned because the top was still dribbling out over towards the #3 entry
where he had issued the imminent danger order and the operators had been removed. Tr. 78, 79;
GX-5, p. 7. After again looking at the roof there he went back toward the #2 entry. Tr. 79.
In the #3 to #2 crosscut there were 3 loose ribs with the corners broken up and rashed off.
The roof was loose and working and there was a head in the middle of the crosscut. Tr. 79, GX5, p. 12. In the #2 entry there was a loose and cracked rib on the left, inby the last open crosscut
towards the face. Tr. 79. The rock above the coal was busted up, looking like slices of bread
laying down flat. The right rib corner was also loose; there was no support in the ribs. Tr. 80;
GX-5, pp. 7, 8, 12.
The imminent danger run continued to the #1 entry through the #2 to #1 crosscut
Winebarger had already inspected. He found a rib on the left that was loose and busted up
through to the outby crosscut. The rock above the coal was chunky looking and the top was
starting to work a little and fall out. Tr. 80; GX-5, pp. 8, 12. There was a slip present that was
partially unbolted; this appeared to be the same slip that crossed the Unit. Tr. 81, GX-5, pp. 8,
12, 42. The roof was supported, but the ribs were not. Tr. 81.
From the #1 entry Winebarger went back towards the #3 entry, and noted that the #2 to
#1 crosscut was still dribbling some at the slip. GX-5, pp. 8, 9. It was here that Kessinger told
Winebarger of the decision to move the left side of the Unit out. Kessinger had the entire left
side flagged and barricaded off from the #1 through the #5 entries. GX-5, p. 9. Winebarger
testified that the left side was shut down because it was getting progressively worse and could
not be fixed; they did not have equipment such as an angle bolter to support the ribs. Tr. 83-85.
Kessenger asked Winebarger if they could mine the right side until the 3rd shift. Id.
Winebarger returned to the #3 entry where an outby rib corner was loose and when pulled
measured 12 feet long. Tr. 82, GX-5, pp. 10, 13. The rock where he had issued the imminent
danger order was scaled down and measured 5’ long, 3’ thick and 2’ wide. Tr. 82; GX-5, p. 29.
The imminent danger run then started towards the right side of the Unit, and when
traveling through entry #5 Winebarger found the whole outby right-hand rib had flaked off. Tr.
82, 83. A worker was scaling the #5 to #6 crosscut, and at least 2 scoop buckets of rock and coal
had been scaled off in that one crosscut. Tr. 83. In the #7 entry a half cut was unbolted at spad

39 FMSHRC Page 532

4+10 indicating this unit had been running before he got there. GX-5, p. 15. In this entry a couple
of ribs were pulled off and there were loose corners. Tr. 83, GX-5, p. 42. In entry #8 loose
corners had been pulled, and one rock measured 3’x4’x8”. Tr. 83, GX-5, p. 16. In entries #7, #8,
and #9 he found the slip that was running across the Unit. Tr. 83, 84; GX-5, p. 42. Winebarger
testified that the right side was not as bad as the left side. Tr. 83, 84. Kessinger asked if he could
run the right side, and Winebarger determined it would be safe. GX-5, p. 17.
Inspector Winebarger testified that the conditions he found had existed from day one
when they moved into the panel. He testified that according to Kessinger, the crosscuts between
entries #1 and #2 and between #2 and #3 had been holed through 16 hours earlier. Tr. 84. He
further testified that while he was there, the conditions continued to get worse. Tr. 132.
Inspector Winebarger’s notes continued after the imminent danger run across the Unit
through entry #9. For each citation and order he wrote down the determinations he had made.
GX-5, pp. 18-36. He told Morris and Kessinger again what was issued. GX-5, p. 37. His notes
also continued after traveling to the surface to do the paperwork for the citations that were
issued. There a discussion took place with a number of mine employees including Morris,
Kessinger and Anderson. Anderson objected to Winebarger that they had already made the
decision to move the Unit before Winebarger went in, but Kessinger said that was the reason he
had traveled with the Inspector, to make that decision. GX-5, pp. 37, 38. The conference became
confrontational to the point that Winebarger could not do his work. Sims stated it was time to
leave. GX-5, p. 40. Winebarger had to go to his office to write out the citations and hand deliver
them later that day to Morris at the mine. GX-5, pp. 40, 41.
Order No. 8498873
Summary of the Evidence
After observing the conditions in the #4 entry and the #4 to #3 crosscut, the imminent
danger run went to the #3 entry where at spad 3+10 Inspector Winebarger saw 2 roof bolter
operators replacing a loose bolt. Tr. 76, 90. In the left inby corner there was an overhanging rock
rib right next to the operator on the return side. GX-5, p. 6. Winebarger testified the two roof
bolter operators were working alongside, adjacent to a loose overhanging rock rib around 11 foot
high that would fall and crush them. Tr. 91. In his notes he made a sketch of the #3 entry,
showing the location of the imminent danger rock. GX-5, p. 13.33 They were replacing a loose
bolt in the roof; they were not trying to support the loose rock and did not have the machinery to
accomplish support. Tr. 91, 92. The roof in the area was 10 to 11 foot high; the rock was 3 feet
above the coal seam. Tr. 92, 93. Winebarger thought it was loose because it had a crack in it. Tr.
93. Winebarger, Morris, and Kessinger removed the two bolters from the area and Winebarger
verbally issued the imminent danger order to Morris and Kessinger. Tr. 77, 78, 91-93; GX-5, pp.
29, 30; GX-6.

33

Respondent also submitted a sketch, see Exhibit RX-K.

39 FMSHRC Page 533

He did not remain in the #3 entry because he heard the top working34 over towards the #1
entry and the miners had been removed and were no longer in imminent danger. Tr. 77, 93. The
imminent danger run went on to the #2 and #1 entries, including the crosscuts. When he returned
to the #3 entry the rock he had observed was down. He measured it as 5’ long, 3’ thick and 2’
wide. Tr. 93. He did not know how the rock was removed. Tr. 93, 117.
Bruce Morris testified for the Respondent. May 9, 2011 was the second day of mining in
the 2nd west panel. The Unit had moved from the first west panel where there were similar roof
and rib conditions. Tr. 169, 170, 224. The left side of the working unit consisted of entries 1
through 5, and the right side 6 through 9. Tr. 171, 172. Morris testified the next day, May 10,
2011, that he arrived at the mine at around 5:30 am and joined Eric Anderson and Tommy
Kessinger in the Foreman’s office. They were talking about the #2 Unit. Tr. 181, 182. The third
shift Foreman had called out some concerns about the #2 Unit; there had been problems cutting
coal with the top coming out and some rib sloughage. Tr. 182, 183. At about 6:00 to 6:30
Anderson said to Kessinger he was going down to evaluate the need to move the unit and Morris
said he would go along. Tr. 182. When MSHA Inspectors Winebarger and Sims arrived they
talked with Morris, Kessinger, and Anderson about the #2 Unit and said they were going there.
Tr. 183, 184. Morris said he and Kessinger were going there, so all of them would go together.
Tr. 184. They travelled underground with the Inspectors at around 8:30 and got on the Unit at
about 9:20. Tr. 184. Morris also created notes regarding the inspection on May 10th .35 Tr. 180,
181; RX-A.
Morris testified no coal was being produced because Jesse Campbell, the day shift
Foreman had shut the Unit down at about 8:50 to assess and deal with the conditions. Tr. 184,
185. He traveled first to entry #4, and Winebarger was also there. Sims went to the left side. Tr.
185. After Morris and Kessinger scaled an outby right rib in the #3 entry, Kessinger left to
observe the right side of the Unit. RX-A, p. 1, # 6-8. In the last opening of entry #3 the roof
bolter was in the intersection partially inby toward the face. Tr. 187-189; RX-E. They were
spotting a pin in the roof next to the left inby rib. Tr. 186, RX-A, p. 1, # 9. When one of the
operators started to install a pin, Morris noticed a piece of rock roof move. The rock was in the
corner of the rib in the roof and had a visible crack in it that he thought needed to be addressed;
he was concerned because he thought it was loose. Tr. 187, 219, 220; RX-E. He told the operator
to move away from the area and scale the loose material down. Tr. 187; RX-A, p. 1, # 10. The
miners told him they had tried to pull on it but could not get it down. Tr. 187. He recalled that
neither Inspector was with him. Tr. 186, 187. They tried again, according to Morris, but were
unsuccessful. Tr. 189. Morris then went on towards entries #2 and #1, and met with the
Inspectors. Tr. 189. Up to this point no imminent danger order had been issued. The Inspectors
had already passed through the #3 entry to get to where they met and talked. Tr. 189, 190. Morris
also testified that Sims saw the rock and had the pinners stop and move, and Winebarger issued
the imminent danger order. Tr. 189-191.

34

“Top working” refers to the roof taking weight. Tr. 77.

35

The notes are typewritten, unsigned, and bear the date of May 10, 2011.

39 FMSHRC Page 534

Morris was asked to get Kessinger who was on the right side of the Unit. Tr. 190, 191. He
found Kessinger and they discussed whether to continue or to move out of the Unit. Tr. 191, 192.
They decided to move the left side of the Unit. Tr. 192, 193. When they got back to the
Inspectors, they were issuing an imminent danger order. Tr. 194. Morris and Kessinger told the
Inspectors they wanted to move the Unit, and started flagging out and dangering off that side of
the Unit to keep people from going there. Tr. 194. Morris testified that the overhanging rock had
been knocked down with a mining machine. Tr. 195. Since the machine had been needed to cut it
down, Morris stated he had probably been incorrect in his evaluation of the rock. Tr. 195, 196.
He also testified that the roof height in the left side was 10 to 11 feet in spots, and that abnormal
mine heights are not a hazard if the roof is good and the ribs are fine. Tr. 172.
Eric Keith Anderson36 (“Anderson”) testified for Respondent and also wrote notes37
regarding the #2 Unit on May 10, 2011. At 9:04 am Jesse Campbell called and informed him that
he was shutting the #2 Unit down due to rib pins38 being too far from the ribs in several places.
Tr. 150; RX-G. He recalled that abatement for the imminent danger order was to scale down the
particular rib. Tr. 156. He did not speak to the Inspectors prior to the close-out of the inspection.
Tr. 144.
Jesse Wilburn Campbell39 (“Campbell”) testified for Respondent. On May 10, 2011 he
was working as an assistant mine foreman and was on the #2 Unit. Tr. 281, 283-84. He was on
the Unit at about 7:50 am and had two cribs built at the #7 wide entry from the day before. He
traversed all of the entries, and evaluated the left side. Tr. 286-289. There were some loose ribs,
pinning that needed attention and some rib rash. He shut the Unit down at about 8:50. Tr. 288,
290, RX-F. Prior to MSHA’s arrival, they were correcting things that needed to be done. Tr. 300.
He had two miners pulling ribs down with pry bars, one miner use a scoop for rib sloughage, and
other miners spotting pins and watching the pinners. Tr. 291. The MSHA Inspectors arrived at
9:20. Tr. 290, 291. He had men spotting pins in the #3 entry. Tr. 291. He recalled he told the
Inspectors he had shut the Unit down. He was involved in abatement of the imminent danger
order. Tr. 293. Since they could not get the rock with a bar, he called the miner man to get it
down. Tr. 293, 294.
36

Anderson holds a B.S. Degree in Engineering and Mines. At the time of the hearing he
was General Manager of Operations at a sister operation of Warrior Coal. He had held the same
position at Warrior beginning in January 2005. Tr. 136. After graduating in 1996 he served in
various roles, mostly in management for 15 of his 20 years of mining experience. Tr. 139, 140.
37

The notes at RX-G are handwritten, dated and signed.

38

Rib pins are bolts located in the roof closest to the rib. Tr. 160.

39

Campbell has been a Warrior Coal employee since 1996. His experience there includes
work as a lead man, face boss/section foreman, assistant mine foreman, and outby mine foreman.
Tr. 278, 279. His career in mining began in 1972 as a laborer, and after he got foreman papers he
worked as a section foreman. Tr. 281. Of his 44 years in mining, at least 39 have been in
management. Tr. 281, 282.

39 FMSHRC Page 535

The Mine Act
Section 107(a) provides that:
If, upon any inspection or investigation of a coal or other mine which is subject to
this Act, an authorized representative of the Secretary finds that an imminent
danger exists, such representative shall determine the extent of the area of such
mine throughout which the danger exists, and issue an order requiring the
operator of such mine to cause all persons, except those referred to in section
104(c), to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such imminent
danger and the conditions or practices which caused such imminent danger no
longer exist. The issuance of an order under this subsection shall not preclude the
issuance of a citation under section 104 or the proposing of a penalty under
section 110.
30 U.S.C. § 817(a).
Section 104(c) provides that:
The following persons shall not be required to be withdrawn from, or prohibited
from entering, any area of the coal or other mine subject to an order issued under
this section:
(1) any person whose presence in such area is necessary, in the judgment
of the operator or an authorized representative of the Secretary, to
eliminate the condition described in the order;
(2) any public official whose official duties require him to enter such area;
(3) any representative of the miners in such mine who is, in the judgment
of the operator or an authorized representative of the Secretary,
qualified to make such mine examinations or who is accompanied by
such a person and whose presence in such area is necessary for the
investigation of the conditions described in the order; and
(4) any consultant to any of the foregoing.
30 U.S.C. § 814(c).
The 107(a) Order
The Condition or Practice described in Order Number 8498873, in pertinent part, was:
Two roof bolter operators were observed installing a roof bolt in the roof in the #
3 entry on MMU-002, 2nd west panel. A loose rib was observed on the inby left

39 FMSHRC Page 536

corner right adjacent to the roof bolter operator on the return side of the bolter.
The 2 miners were removed from the area and the loose rib scaled down. The
loose rock that was pulled down measures up to 5 ft. in length up to 3 ft. thick and
2 ft. in width. The cavity height in this entry measures 11ft. 4 inches where the
roof bolter operators were observed.
GX-6.
Contentions
Respondent contends that Bruce Morris directed the roof bolter operators to remove the
rock before the order was issued, and the presence of those miners in the area was necessary to
eliminate the hazard. Further, the rock did not constitute an imminent danger since it was not
loose but firmly affixed to the coal rib and pillar requiring a continuous mining machine to rip it
down. The Inspector did not speak to the bolter operators about the rock or any efforts to remove
it. In addition, MSHA lacked the authority to remove the bolter operators from the area, the
Inspector abused his discretion, and the 107(a) order should be vacated. RPHB, pp. 56-59.
The Secretary contends that when in the #3 entry on the imminent danger run Inspector
Winebarger observed an overhanging rock 11 feet above the floor next to roof bolter operators
who were replacing a rib bolt. Further, the bolter operators were not attempting to either support
or remove the rock. Winebarger reasonably believed the rock was loose and likely to fall because
it was visibly cracked and had no support beneath it. In addition, when Morris saw the rock he
also thought the rock was loose. The Secretary argues that it was Winebarger who withdrew the
miners to safety, and the 107(a) order was not an abuse of discretion. SPHB, pp. 17, 20, 21. Also,
the Inspector was not required to interview the bolter operators prior to issuing the order. SRB, p.
5
Findings and Conclusions
Inspector Winebarger along with Morris and Kessinger traveled to the #2 Unit and
arrived on the left side at the #4 entry, where the imminent danger run began. They were not
mining coal, because Assistant Mine Foreman Campbell had just stopped the mining due to rib
rash, loose ribs, and some pinning that needed to be done. From the #4 entry the imminent
danger run proceeded to the #3 entry.
It is at this point the testimony of Inspector Winebarger and that of Respondent’s Morris
is not in agreement. Winebarger testified that Morris and Kessinger were with him when he saw
the 2 roof bolter operators replacing a loose roof bolt next to the rib where there was an
overhanging rock about 11 feet off the floor that could fall and crush the operator working
adjacent to that rib. But Morris testified that when he went into the #3 entry, Winebarger was not
there, the Inspector having already moved through the entry and on to the entries #2 and #1 area.
Morris testified that it was he who saw the roof bolter operators spotting a pin next to the left
inby rib and also saw the rock in the corner of the rib that needed to be addressed. Further, it was
he who told the operators to move away from the area, and he also told them to scale the loose
material down.

39 FMSHRC Page 537

I find Inspector Winebarger’s version of the sequence of events to be credible. This is
because it is more consistent with the discovery of an apparently dangerous condition during an
imminent danger run. The order of the events was also recorded in his notes, supporting his
recollections in testimony. GX-5, pp. 3-17. Winebarger testified that he, Morris and Kessinger
together removed the miners from the area and he verbally issued the imminent danger order to
Morris and Kessinger.
The testimony of Morris would have one believe the Inspector had been through the #3
entry, but this is contradicted by his testimony that he saw the same thing Winebarger saw: roof
bolter operators installing a roof bolt next to a rib where there was an overhanging and
apparently loose large rock above them. Obviously, if Winebarger had been there and removed
the miners from the area, Morris could not have been the person who first discovered the
apparently dangerous situation. I find Inspector Winebarger’s testimony that both he and Morris
were in the #3 entry at the same time to be credible; they saw the same activity occurring at the
same place with the same apparently loose, unsupported rock overhanging the working bolter
operator. They both decided the miners must be removed from the area. This is when the
imminent danger order and withdrawal occurred and was in effect, rather than at some time later
and in a different area.
It is credible that Morris subsequently ordered the rock scaled down. Inspector
Winebarger continued the imminent danger run to the area of the #2 and #1 entries, and he
testified he did not know how the rock was scaled down. This provided the opportunity for
Respondent to present uncontroverted testimony that the rock turned out to be affixed to the rib
requiring the miner machine to scale it down. However, this after the fact circumstance is not
controlling.
The imminent danger order was properly issued, and the section 104(c) argument is not
supported by the evidence found credible. The testimony of both Inspector Winebarger and
Morris was that the bolter operators were not addressing the overhanging rock, but were
installing a roof bolt next to the left inby rib. Therefore, the miners were not engaged in abating
the apparent hazard. I find credible that only after the miners had been withdrawn from the areasubject to the order-would they then be ordered to go and scale the rock down. Not until they
were working to get the rock down was their presence in the area necessary to eliminate the
condition.
The argument that the rock turned out to not be dangerous and hence the order should be
vacated is misplaced. The Commission has established that an Inspector “must act quickly to
remove miners from a situation he believes is hazardous”. Blue Bayou Sand and Gravel, Inc., 18
FMSHRC 853, 859 (Jun. 1996), citing Island Creek Coal Co., 15 FMSHRC 339, 346-47 (Mar.
1993). Clearly, both Winebarger and Morris thought, on observation, that the unsupported
overhanging rock with a visible crack was hazardous. Under the circumstances presented to the
Inspector, it would have been unreasonable to engage in any kind of investigation of the rock
before withdrawing the miners from the area. Indeed, Inspector Winebarger reasonably
concluded based on the information available to him when he saw the rock that an imminent
danger existed. Island Creek at 346. This is because the rock had a visible crack and was
unsupported, indications that it could be loose and fall on the miners working below. This

39 FMSHRC Page 538

presented to both Winebarger and Morris the type of impending hazard that required the
immediate withdrawal of miners. Utah Power & Light Co., 13 FMSHRC 1617, 1621 (Oct.
1991); Island Creek, at 345. Considering the scene presented to the Inspector, allowing the bolter
operators to continue to place the roof bolt next to the rib under the rock could reasonably be
expected to cause death or serious physical harm unless the rock was first removed. Knife River
Construction, 38 FMSHRC 1289, 1291 (Jun. 2016), citing 30 U.S.C. § 802 (j).
Inspector Winebarger’s perception was reasonable that the fall of the overhanging rock
several feet above the coal seam and the working bolter operator was imminent. Quick action to
remove the miner from under the apparent hazard and threat to his safety was consistent with the
definition of an imminent danger, a condition “which could reasonably be expected to cause
death or serious physical harm before such condition or practice can be abated” 30 U.S.C. § 802
(j). I find the preponderance of the evidence found credible supports the Inspector’s decision to
issue the imminent danger order. The order was objectively reasonable at the time issued, and I
further conclude the Inspector did not abuse his discretion and authority in issuing the 107(a)
order. Connolly-Pacific Company, 36 FMSHRC 1549, 1555 (Jun. 2014).
Citation No. 8498874
Summary of the Evidence
Like his notes regarding the imminent danger run, Inspector Winebarger’s notes
regarding 104(a) citation # 8498874 are extensive, covering 9 handwritten pages. GX-5, pp. 1826. The Condition or Practice recorded on the citation itself is very detailed, both as to the
location and the description of the multiple adverse conditions he found across the #2 mining
Unit:
The ribs where persons work and travel were not being supported or otherwise
controlled on the #2 unit in the 2nd west panel. Loose ribs and corners were
observed from the # 1 entry to the # 5 entry in the last open xcut spad #3+10 and
entries inby to the face. The roof and ribs between #1-2 entries in the locc are still
working and a large rock measuring 3 ft x4 ft x18 inches was found on the mine
floor in this area. In addition, there were loose heads and stack rock present in the
locc between #3-4 entries. There are slicken sided slips, clay veins, stack rock,
heads and loose draw rock present in the entire area. The last open xcut in the # 8
entry at spad 4+00 on the outby side has 2 loose corners. When scaled the chunk
rock measures 1 ft. x 3ft x18 inches on the right side and 3ft x4 ft. x 8 inches on
the left side. Several small pieces of rock were pulled from these outby ribs as
well. There is a face boss and mine foreman present on the unit.
Standard 75.202(a) was cited 25 times in two years at mine 1517216 (25 to the
operator, 0 to a contractor).
Winebarger determined that injury was highly likely and could be expected to be fatal to 1
person; he evaluated the violation as S&S. He found the operator’s negligence to be high, and
although he did not record on the citation that the violation was considered an unwarrantable

39 FMSHRC Page 539

failure, the Secretary argued this at the hearing and in his post hearing brief. GX-4; SPHB, pp.
28-34.
The safety standard cited provides:
The roof, face and ribs of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to falls of the roof,
face or ribs and coal or rock bursts.
30 C.F.R. § 75.202(a).
Inspector Winebarger testified he issued this citation because the rib conditions were
about as severe as anywhere he had ever worked, and were so widespread they were difficult to
map. Tr. 85. There was no rib support anywhere on the section, the ribs were not controlled. It
was not possible to remove all of these hazards because they did not have the needed equipment.
Tr. 76, 86. Winebarger described a loose rib as busted up or flaking off and a hazard since the rib
can fall. Tr. 73, 74. The hazard was falling slabs of rock, mostly from above the coal seam, that
would result in a fatality. Tr. 86. He wrote that slabs of rock falling from up to 11 feet would
crush a miner. GX-5, p. 25. He testified that MSHA tech support had recommended installation
of rib support for areas with a height of 7 feet or more. Tr. 87. Winebarger also testified the area
was a working section, traveled every shift every day. Tr. 87, 88. In his notes he recorded his
finding that there was no rib protection across the entire section. GX-5, p. 24.
Inspector Winebarger further testified these hazards were widespread across the whole
left side of the Unit, and part of the right side. Tr. 88. He wrote that the injury was highly likely
because clay veins, slips, heads and stack rock were so widespread that if mining continued some
miner would be struck and killed. GX-5, pp. 25, 26. He stated that just being present on the Unit
even without regular mining, with the continuing working and falling out, injury would have
occurred sooner rather than later. Tr. 87. Although there were 15 miners working on the section
that day only 1 person would be exposed, referring in his notes to the roof bolter operator he saw
in imminent danger. GX-5, p. 24.
High Negligence was attributed to the operator by Inspector Winebarger because the
conditions were extensive and obvious, and had existed for up to 3 days. Tr. 88, 89. He testified
the conditions on the Unit were obvious, all you had to do is look, and you did not have to look
very hard. Tr. 88. Winebarger determined that no attempt had been made to correct the hazards,
to control the ribs. Tr. 88; GX-5, p. 26. Management, especially the face boss and mine foreman
present, the preshift examiners, and anyone who walked on the Unit should have known of the
conditions. Tr. 89. He wrote the slips, clay veins, heads, stack rock and roof rock up to 11 feet
high above the coal seam were obvious and apparently ignored. GX-5, p. 24.
No mitigating circumstances were found by Inspector Winebarger. Although they were
not mining coal during his imminent danger run this was not a factor since they had been mining
prior to his arrival. Tr. 90. The only abatement steps taken were that Morris and Kessinger would
scale what he pointed out but he observed no other scaling on the left side. Tr. 90, 131, 132. The
shorter cuts did not fix the conditions, since there were still bad ribs. Tr. 133. Winebarger also
testified that the slips in the ribs were not supported. Tr. 134.

39 FMSHRC Page 540

Inspector Winebarger testified he evaluated the violation as an unwarrantable failure
because the conditions were obvious, extensive and there were people working with supervisors
present. Tr. 90, 91. He wrote the conditions existed for at least 16 hours, but the overall
conditions most likely existed 24 to 48 hours. GX-5, p. 25. He stated that typically he did not
issue an unwarrantable failure only after he put the mine on notice, but rather where a problem is
ignored and there was no attempt whatsoever to mitigate. Tr. 133.
Third shift Crew Leader Smith testified about the conditions on the third, nonproducing
shift that ended just before the inspection was conducted during the day shift on May 10, 2011.
He testified there was no excessive weight or sloughing off on the left side of the Unit. Tr. 265.
He also testified hazardous rib conditions were not observable. Tr. 268. Further, multiple slicken
sided slips were not observed in entries #1 through #5, nor were stacked rock, clay veins,
unsupported heads, or loose draw rock. Tr. 268-270. Smith believed the mine was adequately
supporting the roof and ribs at the end of the shift. Tr. 275. However, he also testified they had
advanced very little at that time, taking shorter cuts and pinning well. Tr. 258, 259.
Assistant Mine Foreman Campbell testified he was at the mine early on May 10, 2011.
He wanted to go to the #2 Unit to follow up on the citation written the day before. Tr. 284-286.
He dropped down at about 7:15 am arriving at the Unit about 30-35 minutes later. He went
directly to the #7 entry where he had 2 cribs installed at the entry offset. He went on to the #9
entry, and then went from right to left across the Unit. Tr. 286, 287. Campbell further testified
that across the Unit he found some loose ribs and corner pins that needed to be spotted, but the
area from entry #4 through entry #1 needed more attention. He talked to Section Foreman
Nathan Boone suggesting shutting the Unit down to get the conditions fixed. Tr. 288. This
included the right side also because he was concerned about rib rash there. The Unit was shut
down at 8:45 am and he called to notify Anderson. Tr. 289. He then instructed to men to spot
pins, pull ribs down, and watch the roof bolters. Tr. 291, 295. In his opinion, the mine was not
failing to support the ribs; they were not required to bolt the ribs and did not have a truss bolter at
that time. Tr. 294, 295. Miners were not withdrawn from the left side; they were correcting the
things that needed to be done. Tr. 300.
General Mine Manager Anderson was part of the morning discussion with Kessinger and
Morris. Anderson testified he was informed of the deteriorating conditions on the #2 Unit
requiring shorter cuts and additional bolting to better control the roof. Tr. 141-145, 148. It was
decided Kessinger and Morris would evaluate the conditions that morning and a determination
would be made whether to move the Unit to a new location later that day. Tr. 144, 153. He
further testified that Campbell called out at 9:04 am to report mining activity was shut down on
the #2 Unit after 8:50 am due to rib pins being too far from the ribs and the need to spot corner
and rib pins. Tr. 149, 150; RX-G. He also testified this could mean there was sloughage off the
ribs, damaged pins, installation of the pins too far from the ribs, or entry cut too wide. Tr. 150,
151. It was Kessinger and Morris that went to evaluate a potential move out of the area; he was
not actually down there. Tr. 157, 163. Prior to their evaluation, miners were not removed from
the #2 Unit. Tr. 161.
Anderson testified and wrote down his opinion on the mitigating circumstances that
existed that day. They had only been in that area for 3 days, barely enough time to determine if

39 FMSHRC Page 541

the conditions would persist. They were taking short cuts on the left side to control the roof, they
shut down mining on the Unit due to the conditions they found, and the hazards were being
corrected when MSHA was there. Tr. 147, 148, 156; RX-G, RX-F. Further, they decided to
move the Unit, MSHA did not make them move. RX-G.
Morris testified for Respondent regarding this citation, and there are some notes at
Exhibit RX-A. He opined the roof conditions on May 10, 2011 were pretty good, and his
impression was they needed to continue scaling the ribs to clean off the sloughage. Tr. 198. The
coal seam was about 7 feet high on average; on that day the left side had some high places, up to
10 or 11 feet. Tr. 169, 172. Morris said abnormal roof height is not a hazard if the roof is good
and the ribs are fine. Tr. 172. At the morning meeting with Kessinger and Anderson he
understood there were problems on the #2 Unit with the top coming out and some rib sloughage,
but at that time it was his understanding the mine was providing adequate support to the roof and
ribs. Tr. 181-183. When the Inspectors arrived, they all traveled to the #2 Unit together. Tr. 184.
When they got to the Unit a couple of miners were scaling and there were other miners on the
right side. There were also 2 pin men and 2 car drivers watching the pin men put up a pin. Tr.
185. He and Kessinger did not think the rib conditions were great; they did have the Unit move
out. Tr. 198.
Morris testified there was a lot of scaling going on, there was rock on the floor, and a
scoop was also used to clean the ribs. Tr. 199, 226. Referring to Exhibit RX-F, Morris pointed
out there had been two 10-foot cuts taken on the left side with immediate bolting to keep rock
from falling on their miners. Tr. 200, 201. Exhibit RX-F shows that two 10-foot cuts were taken
in the #2 entry on the left. When he was told of the rib citation, the mitigating circumstances he
offered were that they were working on the conditions, they were scaling on the Unit, and he and
Kessinger were down there to investigate the Unit. Tr. 155, 156, 202-204. In the notes are the
arguments that Morris and Kessinger made to the Inspectors: The Unit was shut down at 8:45
am; Scaling and roof bolting was in progress before the group arrived on the Unit; Management
had already talked about moving the Unit that morning if necessary to get away from the bad
conditions; and Kessinger was going to the Unit to assess the conditions and make a decision to
move or not. RX-A, #18. In the comment section of these notes, it was reported several miners
stated they had been scaling ribs before the Inspectors arrived on the Unit. Id.
Contentions
Respondent contends that the Secretary failed to prove the fact of the violation, since
Warrior acted as a reasonably prudent mine operator would under the circumstances. RPHB, pp.
30-33. It was further argued that, even if the fact of the violation were proved, the Secretary’s
gravity and negligence determinations should be reduced because the violation was not highly
likely to cause an injury nor did the Respondent act with high negligence. RPHB, pp. 33-35. In
addition, the unwarrantable failure designation was not properly justified by the Secretary.
RPHB, pp. 35-39; RRB, pp. 13, 14. Also, the Secretary failed to justify the proposed massive
special assessment. RRB, pp. 6, 7.
The Secretary contends that a reasonably prudent person familiar with the industry would
have supported the ribs, and no testimony or evidence that the ribs were supported was provided

39 FMSHRC Page 542

by Respondent. SPHB, pp. 25, 26. The Secretary argues the violation was highly likely to
produce a fatality and was S&S. SPHB, pp. 26-28. The operator’s negligence was high and there
were no mitigating circumstances. SPHB, p. 30. It is further argued the violation is one of
unwarrantable failure. SPHB, pp. 28, 30-34. Even mine management realized that scaling was
not sufficient to eliminate the conditions; they gave up attempting to scale the area and flagged
off the left side of the #2 unit. SPHB, p. 26. A penalty of $70,000.00 was specially assessed.
SPHB, p. 34, 35.
Findings and Conclusions
There was a violation of safety standard 75.202(a). This safety standard requires, in
pertinent part, that the ribs where persons work or travel must be supported or controlled to
protect them from falls or bursts of coal or rock from the ribs. Respondent argues that the mine
acted in a reasonably prudent manner under the circumstances, mining shorter cuts to adequately
support the roof. However, the shorter cuts did not change the conditions found in the ribs. Just
before the Inspectors with Morris and Kessinger arrived on the Unit that morning Campbell had
halted mining, in part, to scale the ribs. But when the inspection party was on the left side of the
Unit, the only scaling was by Morris and Kessinger on ribs pointed out by Inspector Winebarger.
In the face of the adverse, hazardous rib conditions identified across the entire left side of the
Unit, this effort was inadequate. In addition to loose and crumbling ribs, there were slips and
clay veins weakening pillars that would need to be supported. There was stack rock in the ribs
not supported. Campbell testified the mine was not required to support the ribs. However, there
was no truss bolter available to accomplish rib support. Sloughage with scaling alone, especially
in the entries and crosscuts with abnormal mine height, could increase the width of the mined
area potentially calling for additional rib bolts or other measures for roof stability. I find
Winebarger’s testimony that there was no rib support anywhere on the section to be credible.
The existence of compromised but unsupported ribs gives rise to operator liability. Asarco, Inc.,
8 FMSHRC 1632, 1634-36 (Nov. 1986), aff'd, 868 F.2d 1195 (10th Cir. 1989). Respondent’s
belief there was no violation is not reasonable.
There are three elements required in the evaluation of this safety standard. First, it must
be determined if the cited area is one where persons work or travel; second, the area must be
supported or otherwise controlled; and third, such support must be adequate to protect persons
from falls or bursts of rib. Oxbow Mining, LLC, 35 FMSHRC 932, 944 (Apr. 2013) (ALJ).
The #2 Unit was a working section. Although mining had been halted at the time of the
imminent danger run, there had been mining at the beginning of the shift, and the left side was
not barricaded off until after entries #4 through #1 had been inspected. On the right side,
considered safe at the time, mining continued until the third maintenance shift.
On May 10, 2011 across the #2 Unit there were ribs with adverse, hazardous conditions
in many areas that were not supported or otherwise controlled. The rib conditions were such that
scaling alone could not meet the protections intended by the safety standard; miners were not
protected from rib falls or bursts. It was not until Morris and Kessinger traveled with the
Inspectors and observed the full extent of the adverse conditions that the decision was made to
move out of the left side and barricade off that part of the Unit.

39 FMSHRC Page 543

A reasonably prudent person familiar with mining and the protective purposes of the
safety standard would have provided support and control of the ribs on the left side of the #2
Unit during the two production shifts and the maintenance shift before mining was started on the
next day shift. Campbell was on the Unit at about 7:45 am, and it did not take him long to move
across the entire Unit and decide to halt mining. But there was no truss bolter available and
where needed, the ribs could not be supported. Such action as was taken to try to improve the
ribs by scaling did not meet the reasonably prudent person test. Persons were not protected from
falls or bursts of rib.
Significant and Substantial
I have found that there was a violation of the safety standard, thereby satisfying the first
element of the S&S analysis.
The hazard contributed to by violation of the safety standard was the fall of coal and rock
from the ribs. The record establishes the average mining height was about 7 feet, but in a number
of areas on this Unit the height was up to 10 or 11 feet due to roof fall and cavities created during
the mining cycle. Respondent’s Morris testified that abnormal roof height is not a hazard as long
as the roof is good and the ribs are fine. But the ribs were anything but “fine”. The number of
adverse geologic conditions found, recorded and credibly testified to by Inspector Winebarger as
set forth above during his imminent danger run and specific to this citation in both the roof and
ribs clearly establishes the danger to safety contributed to by the lack of support and control of
the ribs. Winebarger described the hazard of slabs of rock falling, mostly from above the coal
seam that could crush a miner. He found no rib protection across the entire Unit. Although
Winebarger determined roof support was generally adequate despite the cavities, he also found
slips, heads, stack rock, and clay veins, and that rib support was lacking. The attempt to control
the loose rib conditions by scaling alone was not possible; the adverse conditions required
additional support but equipment such as a truss bolter was not available. Scaling resulted in
large amounts of rib coal and rock, removed in a couple of areas by scoops. The large amount of
scaling of the ribs and corners would contribute to the width of the mined areas and call for
additional roof bolting to place rib pins, and this activity was observed by Winebarger. Scaling at
best removed already loose rib coal and rock but did not serve to support or otherwise control the
ribs. This is because hazards such as slips, clay veins, stack rock, and heads remained
unsupported in the ribs in a number of areas across the Unit.
The safety standard cited, as relevant here, requires the ribs to be supported or otherwise
controlled to protect miners from the hazards of falls or bursts of coal or rock from the ribs.
Conditions such as slips and clay veins in a rib weaken support of the roof normally provided by
the pillar and require stabilization of the rib in that area. That this Unit was in an unstable area,
particularly on the left side, is well illustrated by what was happening in the area of entries #1
through #3 where the top was working and some roof rock was audibly dropping out. In this
same area there were loose, busted up and cracked ribs; corners loose, broken up and rashed off;
the rock above the coal was busted up and chunky looking; and there was no support in the ribs.
Evidence was not presented to show that in rib areas where there were adverse and hazardous
geologic conditions miners were protected by scaling alone. Instead, the evidence shows that
there was a danger to miners from rolls and bursts due to unsupported, uncontrolled ribs.

39 FMSHRC Page 544

Winebarger testified the left side could not be fixed due to the lack of equipment. This testimony
is consistent with the decision of Kessinger and Morris to move the Unit out when they observed
the conditions during the imminent danger run. There was a discrete safety hazard contributed to
by the violation.
I find the violative condition existed for about 24 hours. Inspector Winebarger was told
by Kessinger the area from entry #1 through #3 had been holed through 16 hours prior to the
inspection. Winebarger testified the conditions had existed from the first day, May 8, 2011, when
the Unit had moved into the panel. Tr. 84. Based on the evidence of record, the most likely time
the conditions became evident was during the day shift on May 9, 2011, the day before this
inspection. This was when Inspector Hardison observed, but did not cite, conditions including
coal ribs rashing badly, slips around the ribs, and ribs starting to rash at the top of the coal seam.
Due to the widespread nature of the adverse conditions, particularly on the left side, the
Inspector’s estimate could be accurate. My finding is limited to about 24 hours based on the
direct observations of Inspector Hardison and the evidence shorter cuts were taken on May 9th, a
recognition of adverse conditions limiting advancement in the coal seam. RX-F. I do not find
credible the testimony of third shift Crew Leader Smith that at the end of the shift just prior to
the imminent danger run the ribs were adequately supported. Not only does the weight of the
evidence establish this was not correct, the testimony is also contradicted by that of Assistant
Mine Foreman Campbell who was on the Unit less than an hour after the end of that shift and
found there was a need to halt mining to fix conditions including the loose ribs.
Under continued normal mining operations the adverse conditions in the ribs would have
remained; the ribs could not be adequately supported because there was no equipment, such as a
truss bolter, available on the Unit. There is no evidence the various adverse geologic conditions
would improve if mining continued to advance in the panel even if the existing rib conditions
could be supported. To the contrary, conditions were deteriorating even during the imminent
danger run. It was Kessinger and Morris who decided to move the Unit, an acknowledgement
that the conditions could not be fixed. It follows the area could not be made safe for miners.
The hazard was reasonably likely to occur because without rib support anywhere on the
section, the ribs were not controlled. As discussed above scaling alone, even as extensive as
reported by Winebarger, Morris and Campbell in their testimony could not adequately control
the ribs to insure the safety of miners. Many coal ribs were loose, as were some rock ribs above
the coal seam. They are a hazard since coal and rock can fall off of the rib and strike miners.
Winebarger testified the rib conditions were about as severe as anywhere he had ever worked
and were so widespread they were difficult to map. He was concerned about slabs of rock falling
from a height of 10 to 11 feet, capable of crushing a miner. He testified that the conditions were
so widespread that with continued mining some miner would be struck and killed. Just being
present on the Unit with the roof working and the fall of coal and rock injury would have
occurred sooner rather than later. It is clear there were many areas, particularly on the left side,
where the ribs and corners were loose. An outby rib corner in the #3 entry was loose and when
pulled measured 12 feet long. A whole outby right-hand rib had flaked off in the #5 entry. The
Secretary has shown a fall or burst of rib was reasonably likely to occur, and the second element
is established.

39 FMSHRC Page 545

The hazard of a fall of coal and rock from the ribs in the mining Unit would be
reasonably likely to result in injury. Any such fall, burst or roll from a rib is a serious threat to
the safety of miners. There was evidence of rock and coal that had fallen and ribs that were loose
in the panel mined by the #2 Unit. On the imminent danger run Inspector Winebarger found a
slip that caused a rib to be loose and about 4 feet of chunky rock had fallen out from above the
coal. The slips in the ribs were not supported, and where a clay vein went into a pillar the pillar
support was weakened. Loose ribs had corners broken up and rashed off. One rock from a loose
corner measured 3 feet by 4 feet by 8 inches. Being struck by coal or rock from a rib can have
lethal consequences. Here, the Secretary has shown that the resulting injury or injuries would be
reasonably likely to be very serious, including fatal. Therefore, the 3rd and 4th elements are also
satisfied.
The hazard of a coal and/or rock fall from a loose, unsupported rib contributed to by the
violation of safety standard 75.202(a) was reasonably likely to result in an injury causing event,
and such injury would be reasonably serious in nature. I find the Secretary has established by a
preponderance of the credible evidence the violation was S&S.
Gravity
Inspector Winebarger determined and the Secretary argued that injury was highly likely
and could be expected to be fatal to 1 person. Respondent argued the violation was not highly
likely to cause an injury and the gravity determinations should be reduced. Since the rib
conditions could not be supported or otherwise controlled by scaling alone, and the rib
conditions were extensive across the Unit where mining had taken place and there were miners
working on “correcting” the conditions at the time of the imminent danger run, injury was highly
likely. The fall of very heavy slabs of rock and coal from the ribs striking a miner would cause a
fatality. Winebarger determined only 1 miner would be at the place of a fall, and this
determination was reasonable. I affirm the gravity findings of Inspector Winebarger.
Negligence
The operator failed to exercise a high standard of care to protect miners from the risks of
harm from falls or bursts of the ribs. From at least the day before the inspection, the operator and
its agents knew or should have known of the serious conditions in the ribs across the #2 Unit.
The conditions were obvious; Inspector Winebarger’s notes and the map document the easily
seen hazards. Despite these adverse rib conditions mining did take place during the two shifts on
May 9th, and mining started on the day shift on May 10th until halted just before the imminent
danger run. The Secretary argued there were no mitigating circumstances, and Winebarger
testified he found none. However, his testimony was variously to the effect that either no attempt
was made, or that the abatement steps taken of scaling and shorter cuts were not adequate to
control the ribs. What is established on this record is that the rib conditions could not be
supported or otherwise controlled with the equipment available. The miners were attempting to
correct the ribs but could not. Since some work was done on the ribs, albeit unsuccessful, the
negligence is somewhat mitigated. Therefore, I find moderate negligence on the part of the
operator and its agents.

39 FMSHRC Page 546

Unwarrantable Failure (UWF)
The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, which
establishes more severe sanctions for any violation that is caused by “an unwarrantable failure of
[an] operator to comply with…mandatory health or safety standards.” The term is not defined by
the Act, but the Commission has established that “unwarrantable Failure” is “aggravated conduct
constituting more than ordinary negligence, by a mine operator in relation to a violation of the
Act”. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). And further, that unwarrantable
failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,”
“indifference,” or the “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991); see also Buck Creek Coal, 52 F3d 133, 136 (7th
Cir 1995).
The Commission has also established that the aggravating factors to be examined are the
extent of the violative condition, the length of time that it has existed, whether the violation is
obvious or poses a high degree of danger, whether the operator has been placed on notice that
greater efforts are necessary for compliance, the operator’s efforts in abating the violative
condition, and the operator’s knowledge of the existence of the violation. Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000). Although all seven of the factors must be considered,
some factors may be irrelevant to a particular factual scenario. Id, at 353; Wolf Run Mining Co.,
35 FMSHRC 3512, 3520-21 (Dec. 2013). Further, some factors may be less important than other
factors under the factual circumstances. IO Coal Company, Inc., 31 FMSHRC 1346, 1351 (Dec.
2009). All of the relevant facts and circumstances of each case must be examined to determine if
an actor’s conduct is aggravated, or whether mitigating circumstances exist. Id, at 1351; Eastern
Associated Coal Corp., 32 FMSHRC 1189, 1193 (Oct. 2010). Therefore, it is not necessary to
find that all factors are relevant or deserving of equal weight.
Extent of the violative condition.
The purpose of considering the extensiveness of a violation is to factor in the scope or
magnitude of the violation. Eastern Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010)
(emphasis added). Traditionally, extensiveness has been determined by examining the extent of
the affected area as it existed at the time the citation was issued. Id.; Dawes Rigging & Crane
Rental, 36 FMSHRC 3075, 3079 (Dec. 2014). This can include the number of persons affected
by the violation. Dawes, at 3079-80.
At the time of this citation there were 15 day shift miners on the Unit and the scope of the
violation embraced the entire panel where the #2 Unit was active. Most of the entries and
crosscuts, particularly on the left side, had adverse geologic conditions not only in the roof but
also in the ribs. At least half if not more of the area had ribs that could not be supported or
controlled with the equipment and methods available to the miners. Although the right side,
entries #6 through #9, was considered safer, there were slips, loose ribs and corners, and scoop
bucket loads of rock and coal had been scaled off the ribs. Clearly, the violative conditions were
extensive.

39 FMSHRC Page 547

Length of time the violative condition existed.
The Commission has long considered analysis of the duration of a violation to be
required, Windsor Coal Company, 21 FMSHRC 997, 1001-1004 (Sep. 1999), and therefore a
necessary element of the unwarrantable failure analysis. IO Coal Company, Inc., 31 FMSHRC
1346, 1352 (Dec. 2009). The Commission has permitted duration to be established through the
use of circumstantial evidence. See, Enlow Fork Mining Co., 19 FMSHRC 5, 16 (Jan. 1997). The
duration element may be affected by a determination of whether an operator’s good faith belief
of the non-existence of the violation was reasonable. IO Coal, at 1352-53.
Respondent argues the roof and rib conditions existed for-at most-less than 24 hours.
RPHB, p. 37. This argument is not persuasive. The third shift Crew Leader Smith testified the
conditions looked good between 4 am and 5 am, the time of his preshift examination on May
10th. Smith’s testimony that slips, stack rock, clay veins, unsupported heads and loose draw rock
were not observable on the left side of the Unit during the nonproducing shift before the arrival
of the day shift on May 10th is not credible. It is more probable than not that essentially the same
adverse conditions existed from the time of the day shift on May 9th. Inspector Hardison had
already seen and documented the conditions in his notes. Before Smith’s shift Hardison had
already discussed the conditions with his supervisor and Inspector Winebarger. The production
report for the first shift on May 9th shows the left side of the Unit advanced only 8 to 15 feet.
During the next shift only 10 foot cuts were taken on the left. On the May 10th day shift, before
mining was halted, only two 10-foot cuts were taken. RX-F. Smith’s testimony is not credible;
the weight of the evidence reveals there were conditions limiting advancement beginning, at
least, on the morning of May 9th.
However, I also do not find Inspector Winebarger’s opinion that the conditions existed
from day one, May 8th, when the #2 mining Unit turned into the panel to be persuasive. I
understand the opinion of an Inspector, here one with experience and the expertise of a roof
control specialist, is entitled to considerable weight. And there is evidence that the mine had
encountered adverse conditions before and pulled out of other sections of the mine. See, RPHB,
p. 6; Tr. 191, 223, 224. But I focus here on the credible evidence of what Inspector Hardison saw
on the Unit the day before; extremely bad top, lots of slips, draw rock falling, heads everywhere
in the roof, clay veins and coal ribs rashing with ribs starting to rash at the top of the coal seam.
These discoveries show the rib conditions were becoming obvious by or during the time of that
day shift. Although Hardison did not issue a citation, he did see the conditions, and decided to
seek the guidance of his supervisor, after which he met with Roof Control Specialist Winebarger.
I conclude that the violative conditions existed from the time of the day shift on May 9th until the
Unit moved out of the area on May 10th.
Whether the violation was obvious.
Respondent acknowledges the conditions were obvious in nature. RPHB, at 38.

39 FMSHRC Page 548

Whether the violation posed a high degree of danger.
Although the level of danger is but one relevant factor to be considered in evaluating
whether a violation is unwarrantable, the factor of dangerousness may be so severe that, by itself,
it warrants a finding of unwarrantable failure. Manalapan Mining Company, Inc., 35 FMSHRC
289, 294 (Feb. 2013). The Commission has relied upon the high degree of danger posed by a
violation to support an unwarrantable failure finding. See, IO Coal Company, Inc., 31 FMSHRC
1346, 1355 (Dec. 2009); Midwest Material Company, 19 FMSHRC 30, 34 (Jan. 1997) (citations
omitted).
The circumstances presented to the miners on the #2 Unit did pose a high level of danger.
But the factor of dangerousness was not so severe as to warrant, by itself, a finding of UWF. The
conditions existed about 24 hours. The rib conditions during that time were not completely
ignored; there were attempts by scaling to remove loose material. This proved ineffective and
management decided to move the Unit out of the area. I find that during the 24-hour existence of
the hazardous rib conditions, the violation did pose a high degree of danger.
Whether the operator was placed on notice that greater efforts were necessary for compliance.
A mine operator may be put on notice that it has a recurring safety problem in need of
correction where there is a history of similar violations. Black Beauty Coal Company, 703 F.3d
553, 566 (D.C. Cir. 2012); Peabody Coal Company, 14 FMSHRC 1258, 1264 (Aug. 1992). An
operator with such a history should have a heightened awareness of a continuing serious safety
problem. Black Beauty, at 567; IO Coal Company, 31 FMSHRC 1346, 1353 (Dec. 2009); San
Juan Coal Company, 29 FMSHRC 125, 131 (Mar. 2007) (citing cases). The history of violations
as well as any past discussions with MSHA can serve to place the operator on notice that greater
efforts were necessary to assure compliance with the safety standard. Consolidation Coal
Company, 35 FMSHRC 2326, 2342 (Aug. 2013) (citing cases).
Consideration of prior violations is not limited to the same regulation or those occurring
in the same area within a continuing time frame. IO Coal, at 1354; San Juan Coal, at 131;
Peabody at 1263. It is not required that the past violations were also caused by unwarrantable
failure. Consolidation Coal Company, 23 FMSHRC 588, 595 (Jun. 2001); see also, Eagle
Energy, Inc., 23 FMSHRC 829, 838 (Aug.2001).
There was a history of 18 violations of the same safety standard in the 15 months prior to
the issuance of the instant citation. During the same period, there were a total of 629 citations.
The question, not answered on this record, is whether any of the prior violations involved failure
to support or otherwise control ribs. It is not shown that the operator had such a history of rib
control violations that there should have been a heightened awareness of this type of serious
safety problem. The safety standard speaks to both roof and ribs, but the citation here was issued
specifically for dangerous, unsupported ribs. The total number of citations was certainly
significant; but this was a very large mine subject to very frequent and sometimes even multiple
inspections in a single day. See, Tr. 178, 231, 232. Further, there is no evidence of past
discussions with MSHA regarding adverse rib conditions that would place the operator on notice

39 FMSHRC Page 549

that greater efforts were required to comply with the safety standard. The Secretary offered no
such evidence, instead relying on other factors such as obvious and extensive. SPHB, pp. 32-34.
The operator’s effort in abating the violative condition.
An operator’s efforts in abating the violative condition is also a factor established by the
Commission as determinative of whether a violation is unwarrantable. San Juan Coal Company,
29 FMSHRC 125, 134 (Mar. 2007); IO Coal Company, 31 FMSHRC 1346, 1356 (Dec. 2009);
Consolidation Coal Company, 35 FMSHRC 2326, 2342 (Aug. 2013). Abatement efforts prior to
or at the time of the inspection may support a finding that the violation was not unwarrantable.
New Warwick Mining Company, 18 FMSHRC 1568, 1574 (Sep. 1996), citing Utah Power &
Light Company, 11 FMSHRC 1926, 1933-34 (Oct. 1989). Conversely, efforts to abate postcitation, efforts found to be insufficient, or subordination of efforts to other work may be found
to be irrelevant or support a finding that the violation was unwarrantable. Enlow Fork Mining
Company, 19 FMSHRC 5, 17 (Jan. 1997); Peabody Coal Company, 14 FMSHRC 1258, 1263
(Aug. 1992); San Juan Coal at 134-35.
That scaling was done prior to the inspection can be accepted as credible because there
was coal and rock on the floor during the imminent danger run, and scoops were in use removing
large amounts of the material that had been scaled down. Some scaling during the inspection was
done by Kessinger and Morris, and Inspector Winebarger observed some scaling by miners on
the Unit. However, these efforts have been found to be insufficient to support or control the
hazardous rib conditions, and therefore the scaling that was done is not relevant to this
determination. See, U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (Jul. 1984); McCoy Elkhorn
Coal Corp., 36 FMSHRC 1987, 1991 (Aug. 2014). The left side was shut down and barricaded
off during the imminent danger run, but the violative conditions had already been documented in
entries #4 through #1, and thereafter some of the same conditions were found on the right side
where mining continued through the second shift. However, mine management did evaluate the
conditions on the Unit and did ultimately decide to move out of the area.
The operator’s knowledge of the existence of the violation.
Findings regarding the knowledge of an operator of the existence of violation are critical
to the evaluation of the operator’s efforts, or lack thereof, in abating the condition. San Juan
Coal Company, 29 FMSHRC 125, 134 (Mar. 2007). The operator’s knowledge may be
established where the operator had reason to know or should have known of the violative
condition. IO Coal Company, Inc., 31 FMSHRC 1346, 1356-57 (Dec. 2009); Emery Mining
Corp., 9 FMSHRC 1997, 2002-04 (Dec. 1987); Drummond Company, Inc., 13 FMSHRC 1362,
1367-68 (Sep. 1991), quoting Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (Feb.
1991).
At the time of the day shift on May 9, 2011 the adverse geologic conditions in the ribs
and roof of the Unit were visible. Inspector Hardison became concerned about the slips, clay
veins and rib rashing he had seen when he was on the Unit. That he did not issue a citation at that
time does not mean the conditions did not exist or that the ribs were adequately supported.
Rather, if an Inspector can spot problems in an active mining area, certainly the mine’s own
foremen, face bosses, and examiners should also see those problems. I find the operator should

39 FMSHRC Page 550

have known of the violative rib conditions at least by the day shift on May 9th. The meeting of
mine managers Kessinger, Morris and Anderson in the early morning hours of May 10th to
discuss what they had heard about the conditions on the #2 Unit does not suggest the conditions
were not known by mine personnel before that time. Instead, this suggests prior knowledge by
those on the Unit reported in some manner to management before the meeting.
Respondent acknowledged the conditions were obvious, and the Secretary relies on this
and the extent and danger of the unsupported ribs in arguing the UWF assessment should be
affirmed. Under the facts and circumstances presented in this case, I find the most important
factor is whether the operator had notice that greater efforts were needed to insure the support or
control of ribs that contained adverse and potentially dangerous geologic conditions. As set forth
above, acceptable evidence of such notice is lacking. In addition to a lack of discussions with
MSHA and a compelling history of violations, there are other reasons to place the greatest
weight on this factor. The roof control plan40 in effect at the time of the inspection did not
contain provisions for supporting or otherwise controlling the ribs, except that loose material
would be taken down under certain circumstances not relevant here. GX-3, p. 18. Respondent’s
Assistant Mine Foreman Campbell testified that the mine was not required to bolt the ribs and
did not have a truss bolter at the time. The mine was not prepared to address rib support. The
lack of requirements to be followed when encountering adverse rib conditions also suggests that
the operator was not on notice that such conditions must be addressed with adequate support
methods. Further, the behavior of mine management reveals a preference for abandoning areas
with these types of rib conditions rather than attempting support measures. I understand the rib
conditions on the #2 Unit were extensive and presented a high level of danger; however, as
Inspector Winebarger observed the mine was working to control the roof. I conclude the mine
was not on notice that more than taking down loose rib material was required. Examining the
totality of these factors, I find the UWF determination was not supported.
Specially Assessed Penalty
The Secretary proposed a specially assessed penalty of $70,000. However, it is the role of
the judge to independently determine the penalty to be assessed for this violation under the six
criteria set forth in § 110(i) of the Mine Act.
In the 15 months preceding the issuance of this citation there were only 18 violations of
the same safety standard. There were 629 total violations. SPHB p. 34; GX-10. As noted above
for citation # 8503299, there would be about 300 production days in a 15-month period.
Although the total of 629 is significant, since one or more inspections are essentially on a daily
basis at Warrior’s Cardinal mine the rate of violations is not great. Although not controlling, how
many of the 18 roof control violations also involved the ribs is not known. The Cardinal mine is
very large and very productive; the history of previous violations is not an aggravating factor.
The proposed penalty is not inappropriate to the very large size of the business of this
operator. The Cardinal mine produced 5,841,599 tons of coal in 2010. Controller tonnage totaled
32,831,873. The penalty as proposed would not affect this large operator’s ability to remain in
40

The roof control plan will be discussed in greater detail below.

39 FMSHRC Page 551

business. This violation was serious, the S&S determination was affirmed and there was the
potential for a fatal injury. While serious, the gravity factor was not “particularly serious or
egregious”. Coal Employment Project, at 1129.
I have reduced the negligence determination from high to moderate after fully
considering all of the evidence found credible surrounding the violation. I have also found the
UWF determination not supported. The Secretary accepted that Respondent did demonstrate
good faith in abating the violation after notification.
The greatest weight is placed on the factor of gravity because this violation involved the
safety standard governing roof, face and rib support and control. Such support is crucial to the
safety of miners. Here, the focus was on the lack of adequate rib support in the area of mining
that had many adverse and dangerous geologic conditions in both the ribs and roof. The potential
for a fatal fall, roll or burst of rib existed in many entries and crosscuts of the #2 Unit. The
serious nature of this violation supports an enhanced penalty.
Also supporting an enhanced penalty is the large size of the operator and its ability pay
the proposed penalty charged and remain in business. However, the history of violations is not an
aggravating factor; the negligence of the operator is reduced from high to moderate and the
violation was not the result of an unwarrantable failure of the operator. Mine management did
ultimately shut down the Unit and move out of that section of the mine.
The special assessment is not supported but the weighted analysis, particularly the
gravity, supports an enhanced penalty. The deterrent effect of the penalty to be charged is
considered. Where there are unsupported ribs that could result in a fatality, the operator must be
encouraged to place a higher priority on controlling those conditions to ensure the safety of its
miners. I find that an enhanced penalty of $30,500 is consistent with the facts and circumstances
established, and would adequately serve as a deterrent.
Order No. 8498875
Summary of the Evidence
The initial action for this order was citation # 8498874, discussed above, and issued the
same day for the ribs on the left side of the Unit not supported or otherwise controlled. That
citation included the entire Unit in the area affected, since there was a loose corner in entry #8 on
the right side. This order focused on the left side, entries #1 through #5. The Condition or
Practice was described as:
An inadequate pre shift was conducted on the #2 unit MMU-002 in that hazardous
ribs were observed in entries #1 thru # 5 entries. Multiple slicken sided slips,
stack rock, clay veins, heads and loose draw rock was widespread across these
entries. The existence of these abnormal mining conditions have caused excessive
mining heights up to 11 ft 4 inches. These hazards were not noted in the preshift
exam record book on the surface and were not corrected before the start of the
shift.

39 FMSHRC Page 552

Standard 75.360 (a)(1) was cited 2 times in two years at mine 1517216 (2 to the
operator, 0 to a contractor).
Inspector Winebarger determined injury was highly likely, could reasonably be expected
to be fatal to 1 person, and was significant and substantial. He found the negligence to be high,
and although not explained in the order, the Secretary argued the violation constituted an
unwarrantable failure.
GX-8, SPHB at 41-43.
Inspector Winebarger testified he issued this order because of an inadequate preshift
examination. The hazards he found underground were not identified or recorded with corrective
action, if any, in the record book before he went to the Unit. Tr. 94. In his notes he wrote the
hazards were not entered into the record book on the surface; only loose bolts were recorded as
hazards in entries #1, #2, #4, #7 and #8. GX-5, p. 31. The hazards he had found and discussed
previously, such as the unsupported loose ribs, were not identified in the preshift examination.
Tr. 95. Winebarger was of the opinion the loose ribs, broken heads, slips, stack rock and
excessive mining heights would have been present prior to his inspection because these
conditions did not happen all at once. He believed some hazards existed for up to 3 days, from
day one, and some were probably from the shift before his inspection for a period of at least 16
hours. GX-5, p. 32. The latter was based on Kessinger’s statement that the two crosscuts from
entry #1 to entry #3 had been holed through16 hours before. The slips were evident, you could
see them. Winebarger further testified that 4-foot of rock above a 7-foot coal seam is not mined
intentionally. Tr. 95-97.
During his testimony, Inspector Winebarger reviewed the preshift examiner’s reports.
The two records for May 8, 2011 contained only loose pins observed on the second shift. The
three reports for May 9, 2011 also had only loose pins observed on the first shift, and otherwise
no hazards were reported. For May 10, 2011, the morning he was there, a number of loose pins
and a damaged pin were reported and corrected. But none of the hazards he had found were
listed. Tr. 98, 99; GX-8.
Inspector Winebarger testified the safety standard cited required a certified person to
preshift the area before people work or travel. Tr. 94. All hazards the examiner comes across are
required to be put into the examination report. The preshift examinations are important because
the next shift needs to know what they are walking into. Tr. 99. If hazards are entered into the
book foremen, supervisors or whoever is in charge will have a better opportunity to get those
hazards corrected. Not knowing about hazards creates a false sense of security for miners going
to the section. Tr. 101.
The hazard identified by Inspector Winebarger was loose falling rock ribs that would
cause a fatality. He testified the excessive mine height of 11 feet and the weight of slabs of rock,
roughly 4 to 5 tons, would definitely kill you. Tr. 100. He wrote in his notes that rock and coal
had already fallen; there were multiple slickensided slips, clay veins, stack rock, heads, loose
draw rock and loose overhanging ribs. GX-5, pp. 32, 33. Winebarger considered a fatality to be

39 FMSHRC Page 553

highly likely because the conditions were already there. The conditions had caused mining
heights to be up to 11’ 4’’ and miners worked in the area the entire shift. Although they were not
then mining coal the ribs were still falling and you could get hurt or killed. Over 3 shifts 30 or 40
people would be exposed but Winebarger thought it reasonable only one person would be hurt or
killed. Tr. 100, 101; GX-5, pp. 32, 33.
Inspector Winebarger attributed high negligence to the operator because the hazards were
obvious and extensive and no support was being done. He testified it is the examiner’s job to
look for hazards, observe them, correct them and most definitely record them. Tr. 101, 102. In
his notes he wrote the examiner should have observed the widespread conditions during the
examination and reported or flagged and recorded the hazards in the record book. GX-5, pp. 31,
32. He found no mitigating circumstances, and stated none were offered. Tr. 102.
Inspector Winebarger also determined the violation was an unwarrantable failure. He
testified up to 15 people were exposed all day long going in and out of the entries to do their
jobs. The conditions were widespread across the section, obvious and extensive, and some big
rocks were falling. Tr. 102.
Rusty Smith, the third shift Crew Leader, testified there was just rib sloughage on May
10, 2011 that they scaled. Tr. 259. He conducted the preshift examination prior to the oncoming
day shift, starting at about 4 am. Tr. 261, RX-D. On the examination he found the hazards he
reported, a number of loose pins, and a damaged pin. Tr. 262. Smith also testified that conditions
not necessarily rising to the level of a hazard would not be recorded in the book. Tr. 264. He had
been scaling all night, but this did not rise to the level of a hazard and he was not required to
record it. Tr. 264, 265. During that third shift he did not hear or see evidence of ribs taking
excessive weight or sloughage off on either side of the Unit. Tr. 265. Smith further testified there
were no hazardous ribs or slickensided slips in entries #1 through #5. Tr. 268. He observed no
stacked rock or loose unconsolidated material between the roof and the coal seam at these
entries. Tr. 269. Further, there were no unsupported heads or loose draw rock in these entries. He
did not remember observing any clay veins, but stated clay veins are everywhere in a coal mine
and 90 percent of the time they are not a hazard. Tr. 269, 270. He did agree that an unsupported
slip is a hazard. Tr. 277. He also agreed the mine was encountering conditions that did not allow
it to take full cuts on the left side on May 9th and May 10th and assumed but did not know
whether the conditions were also present on May 8th. Tr. 276. After he called out his examination
there would not be anyone at the face of the Unit until the coal run got there at 7:00 or 7:15 am.
Tr. 272, 273. Smith believed the mine was adequately supporting the roof and ribs at the end of
his shift on May 10th. Tr. 275.
Jesse Campbell was an Assistant Mine Foreman on May 10, 2011, substituting for
another miner. Tr. 281. He was not assigned to a particular Unit. Tr. 283. He received the
preshift call out at 5:20 am. Tr. 285. He wanted to go to the #2 Unit to follow up on the citation
written the day before. Tr. 284, 286. At the #7 entry he had two cribs built at the offset. Tr. 287.
He then went to the #9 entry and also went from right to left across the Unit. Tr. 287. He found
some loose ribs and some corner pins that needed to be spotted, but when at entries #3, #2, and
#1, he considered that more was needed. He talked to Section Foreman Nathaniel Boone, and
decided to shut the run down to get “this stuff fixed”. Tr. 288. The entire Unit was shut down

39 FMSHRC Page 554

because in addition to the left side he was concerned about rib rash on the right side. He shut the
Unit down at 8:45 am and called General Mine Manager Anderson. Tr. 288, 299. Campbell
testified that a pin needed to be spotted in the #3 entry, two miners started pulling ribs down, and
a scoop was used where some ribs had sloughed. Tr. 291. He testified that under the roof control
plan they were not required to engage in rib bolting because they did not have a truss bolter at
the time. Miners were assigned to scale and work on the ribs. Tr. 295. When asked if he believed
Smith had performed an inadequate preshift examination, Campbell replied he did not, and
added he had followed Smith for years and he never did an inadequate preshift examination. Tr.
296.
Safety Director Morris also testified regarding this order. At the meeting with Kessinger
and Anderson he understood the conditions on the #2 Unit included rib sloughage and the top
coming out. Tr. 181, 183. When on the Unit there were miners scaling and pinning. Tr. 185. An
outby corner rib between #4 and #5 had a piece of coal 2’ by 2½’ by 8” that appeared to be
broken loose from the remainder of the rib. RX-A, p. 1, # 5. The right outby rib in #3 had loose
coal that he and Kessinger scaled. Id, # 7. Morris agreed that an examiner needed to record a
hazardous condition even if it is corrected. Tr. 221. Morris opined that in the year prior to that
day there had been 7 or 8 citations for violations of the preshift examination standard. Tr. 201,
202. He testified that Smith was the “lead man” on the third shift, an agent of the operator. Tr.
206.
General Mine Manager Anderson testified he was not actually down on the Unit that day.
Tr. 163. But he wrote in his notes the hazards were being corrected when MSHA was there. RXG. Since the conditions were being addressed as they arose, he stated the hazards might not make
it into the record book. Tr. 145. However, Anderson agreed an examiner must list all hazards
encountered during their examination. Tr. 160.
The safety standard cited provides, in pertinent part:
Except as provided in paragraph (a)(2) of this section, a certified person
designated by the operator must make a preshift examination within 3 hours
preceding the beginning of any 8-hour interval during which any person is
scheduled to work or travel underground. No person other than certified
examiners may enter or remain in any underground area unless a preshift
examination has been completed for the established 8-hour interval. The operator
must establish 8-hour intervals of time subject to the required preshift
examinations.
30 C.F.R. § 75.360(a)(1).
Contentions
Respondent contends the order should be vacated because in accordance with
75.360(a)(1) a preshift examination was performed by Smith between 4 and 5 am. Also, Smith
reported and flagged for correction a number of conditions. Further, the Secretary failed to
demonstrate the existence of a hazard at the time of the preshift examination. RPHB pp. 40-45;
RRB pp. 15, 16; RX-D.

39 FMSHRC Page 555

The Secretary contends the geological conditions of slips, clay veins, stacked rock and
heads are exposed from the moment an area is mined. The widespread hazardous conditions
were present and observable during the preshift examination. Also, a preshift examiner must
adequately find and record hazardous conditions in the preshift examination book. Further, the
safety standard requires that an adequate examination be performed. SPHB pp. 35-38; SRB pp.
3,4.
Findings and Conclusions
Well before Smith’s preshift examination in the early morning hours of May 10, 2011 the
adverse geological conditions on the #2 Unit had been observed. The morning of the day shift on
May 9, 2011 Inspector Hardison had seen ribs rashing badly, sloughage, draw rock falling, slips
around the ribs and clay veins and heads in the roof. Smith’s testimony was essentially that he
did not see any of these conditions, and in his opinion the roof and ribs were adequately
supported at the end of his shift. But his testimony was inconsistent, since he also acknowledged
that conditions were being encountered that did not allow for full cuts of coal to be taken.
Further, mine management had been informed by the third shift Foreman of his concerns about
the conditions, and that was the topic of the conversation early that morning between Kessinger,
Morris and Anderson. This was only about an hour after Smith’s examination. At about 7:45
a.m. Campbell was on the Unit and an hour later he halted mining because of the conditions.
Smith’s testimony was not credible; the widespread hazards were present and observable at the
time of his examination on May 10th.
The Commission long ago discussed the requirements under the preshift safety standard:
Under 75.360(a), a certified examiner must conduct a preshift examination within
3 hours before ‘the beginning of any shift and before anyone on the oncoming
shift . . . enters any underground area of the mine . . . .” Subsections (b) through
(g) of section 75.360 set forth the required elements of the examination.
Enlow Fork Mining Company, 19 FMSHRC 5, 12 (Jan. 1997) (emphasis added).
Subsection (a)(1) cannot, as argued by Respondent, be read in isolation. To do so could
produce the absurd result that virtually any examination of an underground area, however
cursory, would satisfy the safety standard. In the instant case, involving hazardous conditions in
an active mining area, Subsection (b) is applicable:
The person conducting the preshift examination shall examine for hazardous
conditions, test for methane and oxygen deficiency, and determine if the air is
moving in its proper direction…
30 C.F.R. § 75.360(b).41
41

As constituted prior to April 6, 2012.

39 FMSHRC Page 556

Smith did report loose pins and a damaged pin. In his testimony he denied there was
sloughage on either side of the Unit or hazardous ribs or slips in entries #1 through #5. He
testified in these entries he observed no stacked rock or loose unconsolidated material between
the roof and the coal seam, and no unsupported heads or loose draw rock. He did not remember
any clay veins. His justification for not reporting these types of conditions was essentially that
conditions not rising to the level of a hazard would not be recorded in the book. I have found
there were multiple hazards present in the #2 Unit at the time and that Smith’s testimony was not
credible. It was more likely than not that the hazards observed by Inspector Winebarger during
the imminent danger run existed 4 hours earlier during Smith’s preshift examination. The
Secretary has met his burden and there was a violation of the preshift examination safety
standard.
Significant and Substantial
Respondent contends that the Secretary failed to demonstrate the violation was likely to
cause an injury and the gravity determinations should be reduced. RPHB pp. 46, 47.
The Secretary contends there was a high likelihood of a reasonably serious injury and the
failure to perform an adequate examination exposed miners to unknown and unknowable
hazards. SPHB pp. 39-41.
The Federal Mine Safety and Health Act of 1977 retained verbatim the requirements for
the preshift, on-shift, and weekly examinations from the Federal Coal Mine Health and Safety
Act of 1969.42 These three types of mine examinations are required and together constitute
several layers of examinations to ensure miner safety. They are designed to create a multi-layer,
prophylactic approach to the identification and correction of hazardous or unsafe conditions in
the mine. The preshift examination focuses on ensuring that any hazardous or unsafe conditions
manifested since the last examination can be identified and altered before anyone enters the
mine.
The Commission has recognized that preshift examinations are “of fundamental
importance in assuring a safe working environment underground.” Buck Creek Coal, 17
FMSHRC 8, 15 (Jan. 1995); See also, Jim Walter Resources, Inc., 28 FMSHRC 579, 598 (Aug.
2006). The preshift requirement has been described as “the linchpin of Mine Act safety
protections.” Manalapan Mining Co., Inc., 18 FMSHRC 1375, 1391 (Aug. 1996). If certain
hazardous conditions are observed during a preshift examination, the conditions can be
communicated by the preshift examiner’s report to the incoming shift of miners so they may
prepare to work in the conditions reported. Working conditions in underground coal mines are
dynamic, and without an adequate preshift examination the incoming miners are vulnerable to
potentially unsafe conditions. The crew accessing the working area of the mine may not be aware
of the hazards around them until it is too late to correct those hazards and prevent an accident.
The first element of the S&S analysis has been satisfied; I have found there was a
violation of the preshift safety standard.
42

Sections 303(d)(1), (e), and (f) of the Act.

39 FMSHRC Page 557

The failure in this case to conduct a preshift examination during the non-producing third
shift that was adequate to communicate the types of hazardous rib conditions that were present
meant that the day shift crew would access the #2 Unit mining area unaware of the extensive
nature of the hazardous conditions, particularly on the left side. The extensive rib conditions,
which could not be properly supported or controlled, constituted a measure of danger to the
safety of those day shift miners. The hazardous conditions have been described in this decision
and included unsupported slips in the ribs with loose rock above the ribs, clay veins weakening
pillar support, unsupported stack rock in the ribs, loose and cracked ribs that were not supported,
and overhanging rib rock. Scaling alone was not able to correct the hazards. The violation of the
safety standard did contribute to the hazard of miners proceeding to work in dangerous
conditions without advance warning of what they would encounter.
The preshift safety standard is directed against hazardous conditions required to be
identified and communicated in such a manner that incoming shift miners will be aware of any
dangers and challenges they will face in their assigned work areas. The danger that was present
on the #2 Unit, especially the left side, was the fall, roll or burst of loose, unconsolidated and
unsupported rib material.
I have found the hazardous conditions had existed for at least 24 hours before the MSHA
inspection, and under continued normal mining operations the hazards would have continued to
exist because equipment was not available to properly support or control the ribs. Inspector
Winebarger testified to his opinion that some conditions he found had lasted up to three days;
however, I have found the best evidence to be the observations of Inspector Hardison at the time
of the first shift the day before Winebarger’s inspection. Inspector Winebarger testified the
hazards he found underground were not recorded in the record book. For the morning of May 10,
2011, only a number of loose pins and a damaged pin were reported as corrected. But
Winebarger found, among other hazards, unsupported loose ribs that had not been reported. The
danger as a result was a false sense of security created for miners going to the section, where
loose falling coal and rock ribs could kill them. The defensive and contradictory testimony of
preshift examiner Smith that the ribs were adequately supported at the end of his shift, about
7:15 am, was not credible. Further, it was Campbell who soon after the start of the next day shift
at about 7:45 am found loose ribs on the Unit and even more that needed to be fixed on the left
side. By 8:45 am Campbell and Boone decided to shut the entire #2 Unit down. The facts and
circumstances surrounding the violation show that the hazard of a fall, roll or burst of loose,
unsupported rib material was reasonably likely to occur.
Therefore, the second element is established.
Over the period of 3 shifts of the #2 Unit in the second west panel 30 to 40 people would
work their entire shift and be exposed to the hazards that were not reported on the preshift
examinations. Considering the extensive and serious nature of the hazards presented to the
miners, I agree with Inspector Winebarger’s testimony that a fatality was highly likely. He
observed coal and rock that had fallen and was still falling. Therefore, I find injury could be
reasonably expected to occur, and such injury could be reasonably likely to be very serious, even
fatal.

39 FMSHRC Page 558

Therefore the third and fourth elements are satisfied. It was reasonably likely that the
violation of the preshift standard contributed to the hazard of miners exposed to dangerous rib
conditions and that this was reasonably likely to result in injury causing events that would be
reasonably serious in nature. I find the violation was S&S.
Gravity
I also affirm the other gravity determinations. Although many people would be exposed,
it was reasonable to conclude that in the event the hazard occurred only 1 person would be hurt
or killed.
Negligence
Respondent argued the Secretary failed to demonstrate high negligence on the part of
Warrior because there had been extensive efforts to recognize report and correct hazards in the
#2 Unit.
The Secretary argued there were inadequate examinations for up to 3 days. The examiner
should have seen the obvious and extensive hazardous conditions that were present at the time of
the examination.
Inspector Winebarger testified it is the examiner’s job to look for hazards, observe and
correct them, and most definitely record them. And that is what a reasonably prudent person
familiar with the mining industry and the protective purpose of the examination regulation would
do to avoid a violation of the standard. But Winebarger saw on his inspection that no support of
the ribs was being done. Campbell testified they did not have a truss bolter for rib bolting at the
time, but that only served to show that the rib conditions were such that the hazards were beyond
the mine’s ability to install rib support. Winebarger wrote the preshift examiner should have
observed the widespread hazards and flagged and recorded them in the record book. He testified
no mitigating circumstances were offered, and he found none. It is true that the mine’s roof
control plan in effect at the time did not address rib bolting, but hazards are required to be
reported. If Warrior personnel were recognizing, reporting and correcting the hazards as
contended by Respondent, the claimed reports were not recorded in the record book. The preshift
examiner did not report and record obvious and extensive hazards that existed on the #2 Unit the
morning of May 10, 2011. I agree with the determination of high negligence on the part of the
operator.
Unwarrantable Failure
Respondent contended the alleged hazardous conditions were not present at the time of
the preshift examination, that it existed for only 4 to 5 hours, and the conditions posed little
danger since the Unit was shut down at approximately 8:45 am before the order was even issued.
The Secretary argued the important factors were the obvious and extensive nature of the
conditions, and that miners had worked underground without the benefit of an adequate preshift
examination.

39 FMSHRC Page 559

Extent of the violative condition.
The unreported rib hazards existed across the mining unit. Most of the hazards were on
the left side, entries #1 through #5, as recorded in the order, but there were some loose, rashing
ribs on the right side also. This was not an isolated failure limited to one rib location. Inspector
Winebarger testified, and the map he marked up revealed, that the rib conditions were so
widespread they were difficult to map. Further, there were many types of adverse geologic
conditions present that should have been reported for the safety of the incoming day shift. The
number and type of hazardous conditions identified by the Inspector in many entries were such
that the reporting violation here was very extensive.
Length of time the violative condition existed.
Although adverse rib conditions had not been reported on any of the preshift
examinations beginning on May 8, 2011, the last examination conducted before this order was
issued was between approximately 4 and 5 am on May 10, 2011. Inspector Winebarger credibly
testified the hazardous conditions did not happen all at once. The dangerous conditions existed
on the left side for at least 24 hours and until Kessinger and Morris approached Inspector
Winebarger and told him that side was being flagged off. This was perhaps about 5 hours after
the preshift examination. At first thought, this would not appear to be a long period of time. But
it was long enough for the day shift crew to access the area and begin working, including some
mining. Since the time bridged two shifts and affected outgoing and incoming miners, in the
context of this violation, this period of time was significant.
Whether the violation was obvious.
Inspector Winebarger reviewed the preshift reports on the surface, but upon accessing the
Unit was confronted by unreported rib and roof conditions. As he proceeded from entry #4 to the
left to entry #1, the hazardous conditions became more numerous in the entries and crosscuts. He
described many ribs and corners with loose material, ribs rashing off, and slips in the ribs, and he
could hear the roof working, falling out and dribbling rock. Based on the record before me and
the evidence found credible, the failure to perform an adequate preshift examination was very
obvious.
Whether the violation posed a high degree of danger.
In the opinion of the undersigned, the danger presented to the incoming miners on that
morning cannot be overstated. The outgoing miners on the maintenance shift had been exposed
to rib conditions they were not equipped to control. Inspector Winebarger testified just being on
the Unit, even without mining, an injury would occur. The incoming day shift miners had no
warning of the multiple dangerous rib conditions in the entries and crosscuts on the left side of
the Unit. Although not much mining was accomplished, the short cuts that were taken were in
the #2 entry, in the area found to be particularly dangerous with the top working and dribbling
out rock. The day shift miners were still on the Unit until Morris and Kessinger flagged the left
side off. The fact that mine management, upon evaluating the left side of the Unit, quickly

39 FMSHRC Page 560

decided to abandon that area supports a determination that the failure to report the hazardous rib
conditions posed a very high degree of danger.
Whether the operator was placed on notice that greater efforts were necessary for compliance.
There is no evidence of actual notice to the operator regarding inadequate preshift
examinations and efforts towards compliance. Here, there did not need to be any such notice.
Part of the mine safety landscape since the Coal Act, the examinations are routine and well
understood, even if from time to time the requirements are ignored. In this case, the most
important factors are the obvious, extensive and dangerous unreported hazardous conditions.
And, the length of time the unreported hazards existed was sufficient to expose third shift and
day shift miners to the danger of falling material.
The operator’s effort in abating the violative condition.
Not until mine management in the persons of Morris and Kessinger actually travelled to
and evaluated the conditions in the left side of the Unit was there an abatement by flagging off
and moving out of the left side. The evidence shows that the scaling efforts, which were ongoing
in the Unit, could not control the loose rib hazards. The day shift had already performed some
mining. Simply put, the abatement efforts were too little, and too late.
The operator’s knowledge of the existence of the violation.
It was the third shift Foreman, not Crew Leader Smith, who alerted mine managers to the
conditions on the #2 Unit and prompted the meeting of Morris, Anderson and Kessinger, that
began about 5:30 am on May 10th. Adverse conditions had already been observed the day before
by Inspector Hardison, but not reported on mine examinations. Smith testified that during the
third shift there were none of the conditions found by Inspector Winebarger including sloughage
on either side of the Unit. But he also testified that conditions not necessarily rising to the level
of a hazard would not be recorded in the book. There was knowledge of hazardous conditions
not reported by Smith. The third shift Foreman had alerted mine management to the conditions,
motivating the early morning meeting of the three upper level managers. It was Campbell who
received the preshift call out at 5:20 am, but when he went to the Unit and observed entries #3 to
#1 he consulted with Boone and shut the entire Unit down. Campbell was an Assistant Mine
Foreman that day, and with knowledge of the preshift examination his testimony that Smith had
not performed an inadequate preshift examination is not credible. Warrior’s managers knew or
should have known the preshift examination was inadequate.
I find the inadequate preshift examination was an unwarrantable failure on the part of the
operator.
Penalty
There is a history of past preshift examination violations, the standard here was cited 2
times in 2 years at the Warrior mine. The overall number of past violations is more extensive.
For this large mine, however, the rate of either is not high. The specially assessed penalty is

39 FMSHRC Page 561

appropriate to the size of the operator’s business and would not affect the operator’s ability to
remain in business. I have found high negligence because the failure to observe and record very
obvious and very extensive rib hazards did not meet the required high standard of care under the
Mine Act to protect miners against the risks of harm. There was an aggravated lack of care that
was more than ordinary negligence. This was a particularly serious violation. The inadequate
preshift examination was S&S, and an unwarrantable failure. This very serious failure to report
hazards occurred in the #2 active mining Unit and exposed miners to the danger of injury, even
death. The area was abandoned soon after higher level management personnel personally
evaluated the conditions.
The most important factors in assessing the penalty, similar to the rib control violation,
are gravity and negligence, both in this order very serious in nature. Preshift examinations are
critical to the safety of miners. I find, for the reasons expressed, that this was an egregious
violation and the specially assessed penalty of $70,000 was fully justified.
Citation No. 8498877
Summary of the Evidence
This citation alleged a violation of 30 C.F.R. § 75.223(a)(1). The Condition or Practice
set forth:
Revisions to the roof control plan were not proposed by the operator when
conditions indicated that the plan is not suitable for controlling the ribs. The plan
is inadequate that excessive mining heights up to 11 ft. 4 inches) existed on the #2
In the 2nd west panel. These excessive mining heights were caused by abnormal
mining conditions such a stack rock, loose heads, clay veins, slips in the roof ribs
which caused the mine roof to fall out during the mining process. The operator
shall revise the current roof control plan to address rib support during the mining
process.
Revision to the roof control plan was submitted on May 10, 2011 but not approved. The citation
was terminated on May 12, 2011 after a revision to the roof control plan was approved.
Inspector Winebarger determined injury was highly likely and could reasonably be
expected to be fatal to 1 person. He also determined the gravity to be S&S, and the negligence on
the part of the operator to be high.
GX-9.
Inspector Winebarger testified there were rib conditions in the area of mining that were
not addressed in the roof control plan. Tr. 104. He wrote in his notes the plan did not address
how the ribs would be controlled in the excessive mining heights as found on the #2 Unit on May
10th. GX-5, p. 34. He also testified the operator is required to revise their plan when it is not
suitable for the conditions present, and the plan did not address rib support. Tr. 103, 104. In the
morning discussions with the mine managers he had learned the mine had faced similar

39 FMSHRC Page 562

conditions during the past week and had chosen to move out of that panel. Tr. 105. Winebarger
further testified the roof control plan is important because it provides a mine-wide minimum to
protect people. The plan in effect at the time had been approved in March 2011. Tr. 104, 128,
130.
The hazard, Winebarger testified, was the fall of ribs due to excessive mine heights, the
slips, the stack rock, the heads and all of the conditions that were present. The concern for rib
control was predominantly the rock above the coal seam; the slips in the ribs were not supported.
Tr. 104, 130, 134. Injuries would be fatal, the same as for the 75.202(a) citation and the
imminent danger order he had issued because the rock was heavy, the ribs were loose, and slips
and clay veins were present. These conditions were not addressed in the roof control plan. Tr.
105. He wrote roof support alone would not control the ribs and rock ribs, and the plan was
inadequate. The conditions had existed for 3 production days, since the Unit moved into the
section on May 5. GX-5, p. 35.
Inspector Winebarger testified injury was highly likely because the triggering effect was
already present. Tr. 106. He also wrote if mining continued in the conditions it was highly likely
a miner would be killed since the slabs and chunk rock were large and heavy. Of the 15 miners
there, one person would be exposed. GX-5, p. 36. Winebarger also testified he attributed high
negligence to the operator because the section foreman, the mine examiner and other
management persons knew or should have known of the conditions but choose to ignore them.
Tr. 106, 107. Other than the decision to move the Unit, no mitigating circumstances were taken
or offered. Tr. 107.
Assistant Mine Foreman Campbell testified that under the roof control plan, they were
permitted to scale on ribs, but not engage in rib bolting because they did not have a truss bolter at
the time. Tr. 295. In subnormal conditions they always narrowed entries and put in extra support.
In his opinion, the mine’s roof and rib control plan was adequately supporting the roof. Tr. 296,
297. He recalled they hit abnormal conditions in both the first west and second west areas, took
care of it, and moved out. Tr. 298-300. Campbell further testified the mine is not required to
submit a plan addendum upon encountering subnormal conditions. Tr. 297.
General Manager of Operations Anderson testified that at the time of the morning
meeting he knew of no violations of the approved roof control plan. Tr. 144, 162. He wrote in his
notes they had only been mining in the setup for 3 days, barely enough time to determine if the
conditions would persist. When MSHA got there the Unit was shut down to correct the hazards
they, not MSHA, had found. The decision was made to move the #2 Unit after Kessinger
evaluated the conditions. RX-G. He also testified to abate the citation they had to submit a plan
change. While he did not recall the measures put in at the time, he believed the addendum
provided for mining heights, controlling the ribs, and relocating the Unit. Tr. 157.
Safety Director Morris testified the roof control plan is reviewed every 6 months. He
thought the mine had maybe been cited once for this safety standard. Tr. 205.
The safety standard cited provides, in pertinent part:
(a) Revisions of the roof control plan shall be proposed by the operator –

39 FMSHRC Page 563

(1) When conditions indicate that the plan is not suitable for controlling the roof,
face, ribs, or coal or rock bursts…
30 C.F.R. § 75.223(a)(1).
The Warrior Cardinal Mine Roof Control Plan in effect on May 10, 2011 contained the
following provisions:
Under the heading of “Safety precautions for roof control plan”:
1. This is the minimum Roof Control Plan and was formulated for normal roof
conditions and the mining system described. Additional measures will be
taken in accordance with 75.220 (a) (1) to protect persons if unusual hazards
are encountered.43
Under the heading of “Safety Precautions for the Installation of Arches and Square sets”:
1. Prior to the installation, a company official shall examine the area to be
supported. Loose material from the roof and ribs that pose a hazard to the
miners shall be taken down. When material cannot be removed, other
protection, such as a canopy, shall be provided.
GX-3, pp. 7, 18.
Contentions
Respondent contends the citation should be vacated because a revision of the roof control
plan was not indicated on May 10, 2011 and was rendered unnecessary by the shutdown of the
#2 Unit at 8:45 am and the later decision to relocate the Unit. RPHB, p. 52. The testimony of
Anderson was that only one change was made to the RCP, that when encountering high
conditions Warrior could relocate to another location, something Warrior always had the ability
to do. In the alternative, Respondent requests that the citation be modified to a technical violation
of the standard. RRB, p. 18.
The Secretary contends that at the time of the inspection the roof control plan did not
contain any provision to control the numerous, widespread hazardous rib conditions observed on
the #2 Unit, and there were no known proposed revisions. The rib conditions were not supported
in any way, and the plan did not cover any form of support related to any type of rib condition.
The plan provisions were not just unsuitable, they were nonexistent. Respondent did not revise
the plan until after the issuance of the citation. SPHB, pp. 44, 45. The #2 Unit had not been
relocated upon the Inspector’s arrival, and Respondent’s ability to move the production unit was
irrelevant. For the conditions, no revisions had been submitted and no MSHA review had been
conducted. SRB, p. 4.
43

As set forth in citation #8503299, safety standard 75.220(a)(1) requires the roof control
plan to be suitable to the prevailing geological conditions.

39 FMSHRC Page 564

Validity
Despite the fact that this hearing was years after the citation was issued, a copy of the
roof control plan as revised and approved on May 12, 2011 is not of record. Respondent’s
Anderson was asked about the revisions:
Q Do you recall what – what types of provisions were required under the MSHA
approved roof control plan addendum?
A Not on top of my head. I believe it related to the mining height and—and
controlling the ribs. I don’t recall what the measures were put in at that time. I
know I’ve seen it. I just can’t recall right off the top of my head.
Q Do you recall if one of the potentially corrective actions for encountering high
roof conditions would be for the mine to choose to re-locate the unit?
A Yes.
Tr. 157.
While professing he could not recall the revisions Anderson nonetheless believed that
mine heights, controlling the ribs, and re-location of the unit were the revisions at the time.
The Secretary is correct that the roof control plan in effect did not contain any form of
support related to any type of rib condition such as the hazardous ribs on the #2 Unit. The
reference to 75.220(a)(1) is the general requirement that the plan be suitable to the prevailing
geologic conditions. The only specific reference to ribs in the mine’s plan was in the context of
the installation of arches and square sets. In those circumstances loose material from the roof and
ribs that pose a hazard to miners shall be taken down. GX-3, p. 18, #1. Rib support was not
addressed. The safety standard is clear that when conditions indicate the plan is not suitable for
controlling the ribs or coal or rock bursts revisions shall be proposed by the operator.
There is testimony indicating the operator had encountered similar adverse conditions in
another area of the mine. The #2 Unit had just moved out of the first west panel before turning
into the second west panel. However, evidence of the specific conditions prompting abandoning
first west was not developed, and this citation was issued regarding the circumstances
encountered in the second west panel.
As already discussed, Inspector Winebarger’s opinion that the multiple hazardous rib
conditions existed from the first day of mining on May 8, 2011 may be correct; however as also
discussed I have found the best evidence of the conditions to be the observations of Inspector
Hardison on the first, day shift on May 9, 2011. Hardison was troubled by what he saw, but
deferred to the experience and area of responsibility of the District’s Roof Control Specialist.
Since mine management was present in the active mining area for the two production
shifts on May 9th, this was when revisions to the roof control plan should have been proposed, if

39 FMSHRC Page 565

not sooner depending on the experience and knowledge gained in the first west panel. Failing
those opportunities, during the third, maintenance shift scaling was performed but failed to
control and could not support the hazardous rib conditions. The third shift foreman alerted upper
level mine management to the conditions and the meeting of the managers took place before the
MSHA inspectors arrived. This was the next opportunity to timely submit proposed revisions.
Then, when on the Unit at the time of the imminent danger run, Morris and Kessinger personally
observed the conditions and quickly decided to abandon the left side of the Unit. The hazardous
ribs at that time were not controlled by the ongoing scaling. A truss bolter was not available to
support the ribs. As set forth in the citation, the roof control plan needed to be revised to address
rib support. I find there was a violation of the cited safety standard and the citation was validly
issued.
Significant and Substantial
The fact of the violation has been established, and the first element has been satisfied.
Respondent contends this was a technical violation. I disagree. In failing to revise the
roof control plan in the face of hazardous rib conditions not covered in the plan, miners could
form the belief that addressing loose, unstable ribs with more than scaling was not required.
Campbell testified they were not required to support the ribs because they did not have a truss
bolter. Third shift crew leader and examiner Smith ignored the readily apparent conditions,
claiming no need to report conditions not rising to the “level of a hazard”. Yet on the same third
maintenance shift the foreman was so concerned he alerted upper mine management to the
conditions. The management members were concerned enough to meet in the early morning
hours, even before that shift ended. Under these circumstances, the hazard contributed to by the
violation comes into clear focus – hazardous rib conditions were not required to be properly
supported or controlled by the mine’s own roof control plan, and would exist under continued
normal mining operations with the consequence of rib falls, rolls or bursts.
As discussed supra in citation #8498874 such a hazard, a fall of rib rock or coal, was
highly likely to occur. Scaling alone did not address the hazard. The miners did not have the
equipment to support the ribs and correct the hazard. Inspector Winebarger described the slabs of
rock and chunk rock as large and heavy, and credibly determined injury was highly likely and it
was reasonably likely a miner would be killed. The remaining elements of the analysis are
satisfied; the failure of mine management to provide the minimum requirements for hazardous
rib support and control in the mine’s roof control plan was S&S.
Injury was highly likely and could reasonably be expected to be fatal to 1 person. The
gravity determinations are affirmed.
Negligence
The operator’s duty to miners, in the context of this citation, is to maintain a current,
approved roof control plan that provides the minimum standards suitable for controlling the roof,
face, ribs or coal or rock bursts. Under the safety standard, revisions must be proposed when the
plan in place is not suitable to control hazardous ribs. Cardinal’s plan was not suitable when the

39 FMSHRC Page 566

#2 Unit turned into the second west panel and soon encountered adverse geologic rib and roof
conditions. Efforts were made to control the roof, but the miners could not control the extensive
rib hazards, particularly on the left side of the panel. By the time of the day shift on May 9, 2011
the mine foremen and examiners knew, or should have known that revision to the roof control
plan was required. During the third, maintenance shift, even if the examiner failed to report the
hazards, the mine foreman alerted upper level management about the adverse conditions and
there was another opportunity to submit a revision for approval. Not until the inspection
uncovered the inadequate plan and the citation was issued was a revision proposed.
Inspector Winebarger’s testimony appears to suggest the mine’s ability to move a mining
Unit is a mitigating circumstance. But timing is important. The first encounter with hazardous
conditions not covered in the roof control plan is when revision must be proposed. A decision
may also be made to move the mining Unit away from the hazards; but this does not mitigate the
operator’s duty to revise the plan even if the mining Unit is moved.
Proposing revision to a roof control plan when newly encountered and hazardous mining
conditions are discovered is not an onerous task for experienced mine managers. The first
revision was submitted the day of the inspection, showing that the task is not very time
consuming. While there were opportunities over about a 24 hour time period to timely prepare
and submit a revision for approval, I do observe there is evidence mine personnel were heavily
engaged in dealing with a very challenging mining environment during that time. The relatively
short time frame and the distraction of working in adverse geologic conditions that defied safe
control may be viewed as a mitigating circumstance in the failure to timely submit a plan
revision. Under the facts and circumstances presented, an aggravated lack of care is not
demonstrated here.
Therefore, I find that the negligence to be attributed to the operator is more appropriately
designated as moderate.
Penalty
The Secretary proposed a specially assessed penalty in the amount of $45, 000. I have
affirmed that the violation was S&S, but reduced the negligence to moderate, and this was not an
unwarrantable failure on the part of the operator. I do not affirm the special assessment proposed,
but independently assess a penalty under the statutory criteria.
As with the citations already discussed, even the penalty charged would not affect the
operator’s ability to continue in business, and would not be inappropriate to the very large size
and high productivity of this mine. There was perhaps one past violation of this standard and
further the rate of previous violations does not suggest an egregious violation history. The
operator did, on the date the citation was issued, submit the first proposed revision.
Also as with other violations, the most important considerations in determining the
penalty are the gravity of the violation and the negligence of the operator. The failure of mine
management to propose a revision to their roof control plan in a timely manner when the
prevailing geologic conditions warranted attention to this requirement is a serious matter. Miners

39 FMSHRC Page 567

could have, and here apparently did, form a belief that support and control of ribs other than by
scaling was not required. The potential consequences of such a belief system in the context of the
hazards that existed in the second west panel are dire. While ideally mine management should
have been aware their roof control plan was not suitable to address the rib conditions that
existed, and acted with more urgency to submit revisions, I have reduced the negligence to
moderate in recognition of the distraction possibly caused when miners were struggling to
maintain a safe environment but were unable to do so.
Considering the facts and circumstances surrounding this violation, and the deterrent
purposes of the Act, I assess a penalty of $8,000.
ORDER
It is ORDERED that Citation No. 8503299 is AFFIRMED; the civil penalty assessment
is reduced to $20,750.
It is ORDERED that Order No. 8498873 is AFFIRMED as written.
It is ORDERED that Citation No. 8498874 be MODIFIED to reduce the negligence
from “high” to “moderate” and to delete the finding of unwarrantable failure; the civil penalty
assessment is reduced to $30, 500.
It is ORDERED that Order No. 8498875 is AFFIRMED as written; the civil penalty
assessment is $70,000.
It is ORDERED that Citation No. 8498877 be MODIFIED to reduce the negligence
from “high” to “moderate”; the civil penalty assessment is reduced to $8,000.
The Respondent is ORDERED to pay a total civil penalty assessment of $129,250 within
30 days of the date of this decision.44 Upon receipt of payment, this case is DISMISSED.

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

44

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

39 FMSHRC Page 568

Distribution: (Certified Mail)
Eric Johnson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North,
Suite 420, Nashville, TN 37219.
Gary D. McCollum, Esq., Assistant General Counsel, Warrior Coal, LLC, 1146 Monarch Street,
Lexington, KY 40513.

39 FMSHRC Page 569

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

March 6, 2017
JONES BROS., INC.,
Contestant,

CONTEST PROCEEDINGS
Docket No. SE 2016-218
Citation No. 8817595; 04/06/2016

v.

Docket No. SE 2016-219
Citation No. 8817596; 04/06/2016

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

Mine: S.R. 141 Project, DeKalb Co.
Mine ID: 40-03454

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

CIVIL PENALTY PROCEEDING
Docket No. SE 2016-246
A.C. No. 40-03454-410595

v.
JONES BROTHERS INC.,
Respondent.

Mine: Jones Brothers Mine
DECISION AND ORDER

Before:

Judge Miller

This case is before me upon notices of contest and 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). These dockets involve nine citations and orders issued pursuant to Sections 104(a) and
104(g)(1) of the Act with originally proposed penalties totaling $2,940.00. On January 23, 2017,
Jones Brothers Inc. filed a motion contesting the jurisdiction of the Mine Safety and Health
Administration over its operation. Jones asserts that its operation was a “borrow pit” and
therefore not subject to inspection by MSHA. I denied that motion in an order on February 2,
2017, and found that MSHA did have jurisdiction to issue the citations. That order is
incorporated here.
In a joint motion to the court on February 22, 2017, the parties indicated that Jones
Brothers Inc. wishes to appeal the order on the issue of jurisdiction to the Commission, but does
not wish to otherwise contest the citations and orders or the proposed penalties in these dockets.
The parties agree that apart from the jurisdiction issue, there are no remaining issues of fact.

39 FMSHRC Page 570

I accept the representations of the Secretary as set forth in the penalty petition. I have
considered the representations and documentation submitted in this case and conclude that the
proposed penalties are appropriate under the criteria set forth in Section 110(i) of the Act. The
parties’ Joint Motion for Final Decision and Order is GRANTED and the citations are affirmed
as issued. Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $2,940.00
within 30 days of the date of this decision. Upon receipt of payment, the contest cases are
DISMISSED.

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

Distribution: (U.S. First Class Certified Mail)
Willow Eden Fort, Office of the Solicitor, U.S. Department of Labor, 618 Church St, Suite 230,
Nashville, TN 37219
Noelle Holladay True, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre
Circle, Suite 375, Lexington, KY 40513

39 FMSHRC Page 571

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

March 7, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. PENN 2016-132
A.C. No. 36-10045-402245

v.
CONSOL PENNSYLVANIA COAL CO.,
LLC,
Respondent.

Mine: Harvey Mine

DECISION AND ORDER
Appearances:

Anthony Fassano, Esq., for the Petitioner, U.S. Department of Labor,
Office of the Solicitor, Philadelphia, Pennsylvania
Patrick Dennison, Esq., for the Respondent, Jackson Kelly, LLC,
Pittsburgh, Pennsylvania

Before:

Judge Steele

This case is before me upon a petition for assessment of a civil penalty, pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). A hearing
was held in Pittsburgh, Pennsylvania on September 20, 2016.1 The parties subsequently
submitted post-hearing briefs.
STATEMENT OF THE CASE
This case concerns an alleged violation of 30 C.F.R. § 75.403, “Maintenance of
incombustible content of rock dust.” On December 22, 2015, two MSHA inspectors traveled to
the Harvey Mine for a five-day inspection. During the course of this inspection, a rock dust
sample was taken in the No. 3 Entry of the mine. After the sample was sent off for laboratory
testing, it was found to be non-compliant under rock dusting regulations. As a result, Citation
No. 9073907 was issued to the Respondent. The inspector who issued the citation and the
supervising inspector who accompanied him differed at hearing on where the sample was taken.
The contemporaneous notes of the issuing inspector, as well as the language of the citation,
contradicted the testimony of the inspectors at hearing. The discrepancies between the evidence
1

The above-captioned proceeding contained two 104(a) citations. The parties settled
Citation No. 7033725 prior to hearing. The Court issued a Decision Approving Partial Settlement
and Order to Pay on November 22, 2016.

39 FMSHRC Page 572

presented by the Secretary and the testimony offered at hearing, as well as contentions made by
the Respondent, raised questions as to where the sample was actually taken.
STIPULATIONS
At hearing the parties entered the following joint stipulations into the record:
1. The operations of Respondent at the Mine at which the citations in this matter
were issued are subject to the jurisdiction of the Act.
2. 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.
3. Respondent was an “operator,” as defined in §3(d) of the Act, 30 U.S.C. §
802(d), at the Mine at which the Citations in this matter were used.
4. The Citations in this matter were issued and served by a duly authorized
representative of the Secretary of Labor upon an agent of Respondent at the
date, time and place stated therein as required by the Act.
5. True copies of the Citations in this matter were served on Respondent and/or
its agents as is required by the Act.
6. The Citations contained in “Exhibit A” attached to the Secretary’s petition in
the case bearing Docket No. PENN 2016-132 are authentic copies of the
subject Citations, with all the appropriate modifications or abatements, if any.
7. Payment of the total proposed penalty in this matter will not affect
Respondent’s ability to continue in business.
8. Respondent demonstrated good faith in the abatement of the alleged
violations.
9. Pursuant to 30 C.F.R. §§ 75.402-403, Respondent was not required to rock
dust the 3A entry from the face outby 40 feet.
10. With the exception of Respondent’s exhibit R-1, the parties stipulate to the
authenticity of the exhibits referenced in the parties Prehearing Statements
(with all amendments thereto) but not the relevancy or truth of the matters
asserted therein.
11. The R-17 Assessed Violation History Report (Government Exhibit 7) is an
authentic copy and may be admitted as a business record of the Mine Safety
and Health Administration.

39 FMSHRC Page 573

12. Consol escort Albert Stein traveled with the inspector on December 22, 2015
when the rock dust sample at issue was collected.
Sec’y’s Br., 3-4.2
SUMMARY OF THE TESTIMONY AND RECORD
On December 22, 2015, Inspector Jason Detrick3 and his supervisor, Inspector Tom
Bochna4, performed a five day spot-check at the Harvey Mine, operated by the Respondent,
Consol Pennsylvania Coal Company. Tr. 28.5 The Harvey Mine is a mine that liberates a large
amount of methane, necessitating these inspections under the Mine Act. Tr. 28; 30 U.S.C. §
813(i). Inspector Detrick began inspecting on his own in October 2015. Tr. 52-53.
As part of his inspection, Inspector Detrick took a rock dust sample in the No. 3 Entry of
the Harvey Mine. Tr. 37. Inspector Detrick also sampled the air for methane concentrations. Tr.
45. The methane detected within the tested area was .5 percent. Tr. 45. The rock dust sample
contained 66.2 percent incombustible content. Tr. 48.

2

References to the Secretary’s brief will be styled as “Sec’y’s Br.”, followed by the
referenced page number. References to the Respondent’s brief will be styled as “Resp’t’s Br.”,
followed by the referenced page number.
3

At time of hearing, Jason Detrick had been an MSHA inspector for approximately two
and a half years. Tr. 19. Before joining MSHA, Detrick was a coal miner for Alpha Natural
Resources at the Emerald Coal Mine for seven years. Tr. 19-20. Detrick worked there as a
loading machine operator, operated a continuous miner, and was a shield operator. Tr. 19-20.
Detrick was also chairman of the health and safety committee at the mine for the United Mine
Workers Local 2258, which involved the escorting of inspectors on their inspections. Tr. 20.
Prior to his work at Alpha Natural Resources, Detrick worked for approximately a year at the
Powhatan No. 6 Mine, in Bel Air, Ohio. Tr. 20. Detrick also worked for Maple Creek Mining,
Inc., for two and a half years, beginning as a general laborer. Tr. 21. Before joining Maple Creek
Mining, Inc., Detrick worked for Mathies Coal in the supply house of a mine for approximately
two and a half years. Tr. 21-22. Detrick testified that as an inspector trainee he took hundreds of
rock dust samples. Tr. 23. While working as a miner, Detrick assisted MSHA inspectors with the
collection of their rock dust samples. Tr. 25.
4

At time of hearing, Thomas Bochna had been a supervisory coal mine health and safety
inspector for approximately two and a half years. Tr. 93. Prior to becoming a supervisor, Bochna
was a regular mine inspector beginning in February of 2008. Tr. 94. Before joining MSHA,
Bochna worked for 30 years at the Emerald Mine in Waynesburg as an hourly employee. Tr. 95.
Bochna holds an associate’s degree in mining technology from Penn State. Tr. 95. Bochna
testified that he has collected hundreds of rock dust samples over the years. Tr. 97.
5

References herein to the September 20, 2016 hearing transcript are styled as “Tr.”,
followed by the referenced page number.

39 FMSHRC Page 574

The inspection party on December 22, 2015, consisted not just of Inspectors Detrick and
Bochna but also Albert Stein, safety escort for the Harvey Mine, and Steve Apperson, the
supervisor of safety at the Mine. Tr. 36. Detrick testified that no mining was ongoing at the time
and that ventilation controls were in place and adequate at the time of inspection. Tr. 77.
Parameter checks, which generally take place within the first hour of operation and are a
prerequisite before progressing into mining, were ongoing. Tr. 43, 84.
Citation No. 9073907 was issued on December 30, 2015, to Albert Stein6, the Harvey
Mine’s company representative, eight days after Inspector Detrick took his sample. GX-1.7 The
citation alleges a violation of 30 C.F.R. § 75.403, “Maintenance of incombustible content of rock
dust.” GX-1. The citation’s “condition or practice” section reads:
According to lab analysis results of rockdust bag sample 0155450AA collected on
12/22/2015 in the #3 Entry (40 ft outby the face) of the 3A Section Return
Spad#87+34.09 the sample is non compliant. The rockdust sample is 66.2%
incombustible content instead of the required 82.0% due to the presence of 0.5%
of methane. The results of the rockdust analysis are attached to the citation.
Standard 75.403 was cited 7 times in two years at mine 3610045 (7 to the
operator, 0 to a contractor). Supporting rock dust sample bag numbers:
0155450AA.
GX-1.
The citation was signed by supervising Inspector Bochna. Tr. 68.
According to Inspector Detrick, 30 C.F.R. § 75.403 requires that rock dusting be
performed by the Respondent 40 feet outby the working face and beyond. Tr. 58. At hearing,
Detrick testified that as part of the inspection he was required to take a rock dust sample in the
affected area. Tr. 37. Detrick reported that the sample location was black, dark, and dry,
suggesting that adequate rock dust had not been applied in the area. Tr. 37, 41.
Detrick testified that before sampling he stood at the last row of supported bolts from the
working face, and Inspector Bochna stood approximately twelve to fourteen feet from the
working face. Tr. 37- 38. Using a 25 foot tape measure held at one end by Inspector Bochna,
6

Albert Stein was employed by Consol Energy for five years at the time of hearing as a
safety inspector. Tr. 128, 129. Stein was a safety inspector for Consol at the time of citation as
well. Tr. 130. Stein worked at the Harvey Mine for approximately three years. Tr. 129. Prior to
working for Consol Energy, Stein was employed by Siemens as an electrical technician. Tr. 129.
Stein has his Pennsylvania and West Virginia black hats and is certified for surface and
underground mining. Tr. 129. Stein also has his “machine runners.” Tr. 129. Prior to his
employment at Consol as a safety inspector, Stein was also an industrial engineer and a safety
tech. Tr. 130. Stein holds an associate’s degree in specialized technologies from Triangle Tech.
Tr. 130.
7

The Secretary’s exhibits are styled “GX-“, followed by the exhibit number referenced.
The Respondent’s exhibits are styled “RX-”, followed by the exhibit number referenced.

39 FMSHRC Page 575

Detrick walked out 25 feet, made a mark on the rib, and waited for Bochna to come up to the
point marked on the rib. Tr. 75. Then he measured out another 15 feet. Tr. 75. Detrick testified
that Inspector Bochna then directed him to give the operator the benefit of the doubt and measure
out eight to ten feet further. Tr. 37. At hearing, Inspector Detrick testified that he was “anywhere
from 62 to 64 feet outby the working face,” when he took his sample. Tr. 38.
Inspector Detrick testified that he then took a rib sample, putting half in his rock dust bag,
and giving the other half to Stein. Tr. 38-39. Inspector Detrick testified that he asked Al Stein if
there were any problems with either where or how he took the sample, and that Stein said no. Tr.
39. Inspector Detrick also testified that Harvey Mine safety supervisor Steve Apperson was
concerned about the area and that Apperson pledged to work a rock dust hose around the corner
to rock dust the area. Tr. 41-42, 46.
Inspector Detrick testified that, while in the area, he used a multi-gas detector and
discovered a half percentage of methane, as well as methane in every working face throughout
his inspection. Tr. 45. After collecting the rock dust and gas samples, Detrick mailed them to the
national laboratory for testing and analysis. Tr. 45. Upon receiving the results of the testing, and
learning the samples taken contained 66.2 percent incombustible content (instead of the required
82 percent, given the half percent presence of methane in the gas sample), Inspector Detrick
issued Citation No. 9073907. Tr. 47-48.
Detrick testified that he was concerned about a methane ignition within the No. 3 Entry
of the Harvey Mine where the samples were taken.8 Tr. 48-50. Detrick testified that the
combination of float coal dust in the Entry, as well as the presence of methane in the area, would
make an ignition more violent than a simple coal dust or methane ignition on its own. Tr. 50.
Detrick also testified that the likely injuries from such an ignition would affect ten to twelve
people with injuries including smoke inhalation and burns. Tr. 51. These injuries, Detrick
testified, could cause lost work days, permanent disabilities, or fatalities. Tr. 51.
During cross-examination, Inspector Detrick acknowledged that MSHA’s Mine Academy
trains inspectors to describe with particularity the nature of each alleged violation. Tr. 53.
Inspector Detrick acknowledged that, according to MSHA Mine Academy training, each citation
or order must include the location of the violation, and that failing to provide the location may
impede an operator’s attempts to abate the violation. Tr. 54. Detrick also acknowledged that the
Mine Academy instructs inspectors to note the persons who traveled with the inspector, and that
the notes and citation must accurately capture all relevant facts of the violation. Tr. 54-55.
8

At hearing, the Secretary introduced into evidence an accident investigation report of a
methane and/or dust ignition that occurred at the Harvey Mine in January of 2015, as GX-5. Tr.
31-35. The Respondent objected to its introduction on the grounds that Inspector Detrick had no
personal knowledge of the events described in the report, that the events occurred nearly two
miles from those in the instant matter, and that there was a discrepancy regarding the dating of
the report. Tr. 31-32. The Respondent also objected to the introduction of the investigation report
on the grounds that the report had no relevance toward determining whether the citation was
Significant and Substantial or not. Tr. 32. This Court, as stated at hearing, assigns very little
weight to this exhibit, while still considering it admitted, given that the Inspector had no personal
knowledge regarding the report. Tr. 33.

39 FMSHRC Page 576

In the same exchange at hearing Detrick acknowledged that the citation appeared to state
the sample was taken at spad 87 + 34.09.9 Tr. 56-57. Inspector Detrick acknowledged that the
plain text of the citation appeared to contradict testimony he offered at hearing that the samples
were taken over 60 feet from the working face, but asserted that his testimony at hearing was
accurate. Tr. 57. Inspector Detrick testified that when he submitted the samples to the national
laboratory, he labeled them as taken 40 feet from the working face, and not over 60 feet. Tr. 59.
Inspector Detrick testified that his contemporaneous notes contained the measurement of 40 feet
outby the working face to mirror the language of the mandatory safety standard in question, 30
C.F.R. § 75.403. Tr. 40; see also Tr. 37. Inspector Detrick testified that the spad number was
meant to be a reference point for future inspectors to return to in order to ensure proper
termination of any potential citation. Tr. 57.
Inspector Detrick testified that he did not note the presence of Inspector Bochna or
company representative Steve Apperson in his notes for the December 22 inspection, despite
their accompanying him on his inspection that day. Tr. 62-63. Detrick stated at hearing that he
did not document in his notes on December 22 any conversation he had with Steve Apperson
regarding the condition of the Entry or its need for rock dusting. Tr. 66-67.
Inspector Detrick and the Respondent’s attorney, Patrick Dennison, had the following
exchange at hearing:
Q: Would you agree with me today, based on your testimony, you didn’t
accurately describe with particularity the violation?
A: That’s correct, and as you said, yes, I was a new inspector at the time, and I’m
not using that as a crutch by any means.
Tr. 60.
Inspector Detrick later stated that “[i]f I’m guilty of anything, it is not accurately
describing where I took the rock dust sample.” Tr. 66. Detrick affirmed that he took an accurate
and representative rock dust sample. Tr. 66-7. Inspector Detrick testified that he took his sample
from the rib of the affected area and did not take samples from the roof or floor of the mine. Tr.
70. Inspector Detrick testified that he did not cone and quarter the sample as taught at the Mine
Academy, and that on most inspections, cone and quartering is not done. Tr. 71.
Inspector Bochna, Detrick’s supervisor, also testified regarding the December 22
inspection. Tr. 101. Bochna testified that he stood at roughly the last strap, or the last bolt away
from the working face, holding the tape measure, while Detrick drew the length of the tape out.
Tr. 100-101. Bochna estimated he was approximately fourteen feet from the working face when
9

Spads are triangular pieces of metal embedded in the ceiling of a mine, fixed by
engineers, and used to guide a mining machine in the course of mining or locate miners in the
case of emergency. Tr. 121-22, 165. The numbers indicate the distance from the spad’s location
to the mine’s entrance, which is designated the zero point. Tr. 164, 172. Thus, spad 87 + 34.09
was 8,734 feet and 9 hundredths of a foot from the mine entrance at the time of inspection. Tr.
172.

39 FMSHRC Page 577

the measurements began. Tr. 101. Bochna asserted that Detrick was approximately 50 feet from
the working face when the sample was collected. Tr. 101. Bochna could not recall any
conversations with either Steve Apperson or Albert Stein during the collection of the sample or
after the collection of the sample. Tr. 102.
Looking over Citation No. 9073907, Inspector Bochna testified that it stated the sample
was taken 40 feet outby the working face “roughly in that area” of spad 87 + 34.09. Tr. 104; GX1. Bochna asserted that the operator has an independent incentive to properly mark and measure
spads, because failure to do so could lead to unforeseen consequences in the mining process. Tr.
106-107.
Inspector Bochna could not recall at hearing what length tape measure was used in
determining the distance for the citation. Tr. 109. Bochna could not recall if he was required to
move in order to measure, as would be necessary if Inspector Detrick used a 20 or 25-foot tape
measure. Tr. 110. Bochna testified that he would expect to see how the distance was measured in
the notes of Citation No. 9073907, but that information ws not included in the citation or
Inspector Detrick’s contemporaneous notes. Tr. 112. Bochna could not recall definitively at
hearing whether Inspector Detrick took a band sample, consisting of the roof, ribs, and floor, or
instead a rib sample alone. Tr. 118.
Inspector Bochna testified at hearing that he would not know, simply by reviewing the
citation, where exactly the rock dust sample was taken by Inspector Detrick. Tr. 121. He further
testified that he did not see Inspector Detrick take a sample. Tr. 126.
At hearing, the Respondent introduced testimony from three witnesses: Albert (“Al”)
Stein, Terry Reamer, and Doug Bell.
Albert Stein was a safety inspector at the Harvey Mine in December of 2015, and
accompanied the inspectors on their December 22, 2015 inspection. Tr. 129-130, 132. At
hearing, Stein testified that he handwrote notes on a notepad during the inspection.10 Tr. 133.
The admission of these notes, introduced in typewritten format as RX-1, was objected to by the
Secretary. Tr. 135. The Court overruled the objection and agreed to admit the notes with the
caveat that the exhibit's weight would be considered post-hearing. Tr. 137. The weight assigned
Stein’s typewritten notes in deciding this case is discussed infra.
Stein testified that he saw Inspector Detrick take his rock dust sample. Tr. 139. Stein
testified that the sample was taken at spad 87 + 34.09. Tr. 140. Stein testified that neither
Inspector Detrick nor Inspector Bochna measured where they sampled. Tr. 141. Stein testified
that Inspector Bochna pointed to the spad in the ceiling and directed Inspector Detrick to, "[t]ake
[the sample] from this area." Tr. 141.

10

Stein testified that his typed notes did not differ from his handwritten notes. Tr. 137.
Stein testified that once a notepad was filled, it was discarded. Tr. 138. Notes are typed up if a
citation is subsequently issued. Tr. 137-138. Once the notes are stored on the mine's computer
system, the handwritten notes are discarded. Tr. 137-138.

39 FMSHRC Page 578

Stein testified that Detrick did not take a band sample, but did collect more than just a rib
sample. Tr. 142, 162. Stein testified that Inspector Detrick reached as high as he could into the
corner of the roof and rib, and dusted down a sample into his rock dusting pan. Tr. 140. Then,
Stein testified, Detrick proceeded to take a sample from the floor on the other side of a canvas
ventilation shield. Tr. 141. Stein testified that without a tool to reach the roof, Inspector Detrick
could not have taken a sample from the roof. Tr. 143.
Stein's testimony differed from Inspector Detrick's regarding the state of the No. 3 Entry.
Tr. 144. Stein testified that the area was a grayish color. Tr. 144. Stein testified that the area was
thoroughly rock-dusted and effectively ventilated. Tr. 144. Using a mine map, labeled RX-2,
Stein testified that a current of positive air pressure ran along the wall until it came to the
working face of the No. 3 Entry. Tr. 144-145. Once the positive air pressure struck the working
face, it would rebound back out of the No. 3 Entry and travel to the exterior. Tr. 144-145. The
mine map was drafted by Harvey Mine engineers and draftsmen. Tr. 145; GX-2.
Stein, using the mine map, testified that the No. 3 Entry was lined on one side by a
canvas shield. Tr. 145; RX-2. This canvas shield helped guide positive air pressure from the No.
1 and No. 2 entries into the No. 3 Entry. Tr. 145. Once the positive air current struck the working
face, it would travel along the other side of the canvas shield, eventually to fans that blow the air
out of the mine. Tr. 147.
At hearing, Stein used an enlarged section of the mine map to visually demonstrate that
on December 22, 2015, spad 87 + 34.09 was marked on the mine map as fifteen feet from the
working face. Tr. 148; RX-3. Stein also testified that he took his own methane measurements
during the inspection. Tr. 149. Stein testified that, using an Altair pocket detector, he reached up
into the corner nearest the last strap from the working face, twelve inches from the roof and rib,
and took a gas sample. Tr. 149. According to Stein, the sample read .45 percent methane. Tr.
149. The Altair sample's reading was memorialized in Stein's transcribed notes. Tr. 148, RX-1.
Stein testified that the roof and ribs were in good condition in the No. 3 Entry. Tr. 150.
Stein testified that "Tensar" brand roof mesh was secured between straps of bolts placed every
four to five feet. Tr. 150-151. Stein also testified that there was no mining ongoing in the No. 3
Entry on December 22, 2015. Tr. 151-152. Eventually mining would begin again in the section.
Tr. 157.

39 FMSHRC Page 579

The Respondent introduced Terry Reamer11 at hearing, a draftsman and surveyor-transit
man at the Harvey Mine.12 Tr. 169.
As a surveyor and draftsman, Reamer was responsible for map-making at the Harvey
Mine, as well as advancing the sights of the Harvey Mine while underground. Tr. 170-171.
Advancing a sight involves taking a previous day's sight and beginning from that point. Tr. 170.
Afterward, Reamer uses a back sight to advance a line of sight to the furthest in-by point of the
Entry. Tr. 171. This is necessary to keep mining on course, as well as keeping detailed records of
the mine's layout for mapping purposes. Tr. 171. Reamer testified that spads are used as
guideposts to measure distances within the mine, sometimes as fixed points for advancing the
sights. Tr. 172.
Reamer testified that he installed spad 87 + 34.09 on December 16, 2015. Tr. 173. A
copy of Reamer's time book, labeled RX-5, was admitted, which appears to show that Reamer
recorded advancing the sights in the No. 3 Entry on December 16, 2015. Tr. 173-174; RX-5. A
copy of the mine's underground field notes from December 15-16, labeled RX-6, were used by
the witness to support his testimony. Tr. 174-175. Reamer testified that the underground field
notes from that day, as seen in RX-6, include an Entry listing spad 87 + 34.09. Tr. 176; RX-6.
178.

Reamer testified that he shared the location of the spad with his colleague, Doug Bell. Tr.

Doug Bell13 testified at hearing for the Respondent. Tr. 178. He testified that, on
December 15, 2015, he was employed as a transit-operator and drafter in the Harvey Mine. Tr.
11

Reamer worked with Consol for over twelve years at the time of hearing. Tr. 168.
Reamer worked previously as a draftsman at Mine 84. Tr. 168. Reamer has his Pennsylvania
experienced miner card, as well as assistant mine foreman papers. Tr. 169. Reamer also took an
associate's degree in drafting and design, as well as a bachelor's degree in industrial technology,
from California University of Pennsylvania. Tr. 169-170.
12

The Secretary objected to the testimony of Terry Reamer and Doug Bell, two of the
Respondent’s witnesses at the hearing. Tr. 166-167. The Secretary argued at hearing that the
testimony of Terry Reamer and Doug Bell should be restricted to what each had personal
knowledge of. Tr. 166-167. The Secretary contended this was due to Reamer and Bell's status as
lay witnesses without personal knowledge of the events of December 22, 2015. Tr. 166-167. The
Court allowed both to testify at hearing.
13

Doug Bell, a current employee of the Harvey Mine, began work there in May of 2012
as a transit operator. Tr. 179. He still held this position at time of hearing. Tr. 179. Prior to work
at the Harvey Mine, Bell worked for Consol Energy out of the Monongah office as a surface and
underground surveyor, responsible for the survey of three mines. Tr. 179-180. Prior to his work
at Monongah, Bell was an engineering technician at Mine 84. Tr. 180. Bell also has his
Pennsylvania miners papers, as well as his "machine runners." Tr. 181. Bell has two associate's
degrees, one in land surveying, the other in forestry technology, both from Glenville State
College. Tr. 181. Bell had been engaged in survey work for fifteen years at time of hearing. Tr.
181.

39 FMSHRC Page 580

181. Bell's duties included using a surveying instrument, called a "transit," to locate and map out
parts of the mine. Tr. 182. Using distances from the company field book, Bell drafted maps of
the mine in computer software. Tr. 183.
Bell testified that he measured the distance from spad 87 + 34.09 to the working face. Tr.
185; RX-6. This was performed on December 30, 2015, as part of a monthly review conducted
by the mine to determine how much mining had taken place in the last 30 days. Tr. 185. Bell
testified that on December 30, 2015, spad no. 87 + 34.09 was fifteen feet distant from the
working face. Tr. 185. Bell also testified that the distance of the spad from the working face
could not have changed between December 22, 2015 and December 30, 2015, as no mining had
taken place in the No. 3 Entry until January of 2016. Tr. 189.
LAW AND REGULATIONS
Burden of Proof and Standard of Proof
The Secretary must prove the basis of a violation by a preponderance of the evidence. Jim
Walter Resources, 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).
This includes every element of the citation. In re: Contests of Respirable Dust Sample Alteration
Citations: Keystone Mining Corp., 17 FMSHRC 872, 878 (Aug. 2008).
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).
The United States Supreme Court has held 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). The assessment of evidence is a
process of weighing, rather than mere counting: “[T]here is a distinction between civil and
criminal cases in respect to the degree or quantum of evidence necessary to justify the [trier of
fact] in finding their verdict. In civil cases their duty is to weigh the evidence carefully, and to
find for the party in whose favor it preponderates.” Lilienthal's Tobacco v. United States, 97 U.S.
237, 266 (1877).14

14

“What is the most acceptable meaning of the phrase, proof by a preponderance, or
greater weight, of the evidence? Certainly the phrase does not mean simple volume of evidence
or number of witnesses. One definition is that evidence preponderates when it is more
convincing to the trier than the opposing evidence. This is a simple commonsense explanation
which will be understood by jurors and could hardly be misleading in the ordinary case.” 2
McCormick On Evid. § 339 (7th ed.), emphasis added.

39 FMSHRC Page 581

Assessment of Credibility
As trier of fact, this Court is free to accept or reject, in whole or in part, the testimony of
any witness. In resolving any conflicts in testimony, this Court has taken into consideration the
demeanor of witnesses, their interests in the case’s outcome, or lack thereof, consistencies or
inconsistencies in each witness’s testimony, and any other corroborative or conflicting evidence
of record. Any failure to provide detail as to each witness’s testimony is not to be deemed a
failure on the Court’s part to have fully considered it. The fact that some evidence is not
discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000) (administrative law judge is not required to discuss all evidence and failure to cite
specific evidence does not mean it was not considered).
Regulations
30 C.F.R. Section 75.402, “Rock dusting,” provides that:
All underground areas of a coal mine, except those areas in which the dust is too
wet or too high in incombustible content to propagate an explosion, shall be rock
dusted to within 40 feet of all working faces, unless such areas are inaccessible or
unsafe to enter or unless the Secretary or his authorized representative permits an
exception upon his finding that such exception shall not pose a hazard to the
miners. All crosscuts that are less than 40 feet from a working face shall also be
rock dusted.
30 C.F.R. § 75.402.
30 C.F.R. Section 75.403, “Maintenance of incombustible content of rock dust,”
provides that:
Where rock dust is required to be applied, it shall be distributed upon the top
floor, and sides of all underground areas of a coal mine and maintained in such
quantities that the incombustible content of the combined coal dust, rock dust, and
other dust shall not be less than 80 percent. Where methane is present in any
ventilating current, the percent of incombustible content of such combined dust
shall be increased 0.4 percent for each 0.1 percent of methane.
30 C.F.R. § 75.403.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Contentions of the Parties
The Secretary contends that he has proven a violation of 30 C.F.R. § 75.403 beyond a
preponderance of the evidence. Sec’y’s Br., 9. The Secretary contends that the alleged violation
was Significant and Substantial (S&S) and reasonably likely to cause an injury resulting in Lost

39 FMSHRC Page 582

Workdays or Restricted Duty to at least one miner. Sec’y’s Br., 14-20. The Secretary further
argues that the violation was the product of the operator’s moderate negligence. Sec’y’s Br., 20.
The Respondent contends that there was no violation of 30 C.F.R. § 75.403 as Consol
was not required to rock dust where the sample was collected. Resp’t’s Br., 8-19. The
Respondent contends in the alternative that even if the sample was collected more than 40 feet
from the working face, the Secretary failed to demonstrate the sample was representative of the
No. 3 entry. Resp’t’s Br., 19-21. The Respondent further argues that the Significant and
Substantial (S&S) designation and the gravity determination made by the Secretary were
improper. Resp’t’s Br., 21- 28. The Respondent finally contends that the negligence
determination made by the Secretary was improper. Resp’t’s Br., 28-30.
The Secretary Failed to Carry His Burden of Proving a Violation by a Preponderance of the
Evidence
MSHA’s website for “Most Frequently Cited Standards of 2015; Underground – Coal”
ranks 30 C.F.R. § 75.403 as the fourth most cited mandatory safety standard that year; in 2015
alone the Secretary alleged over 1,683 violations of the 30 C.F.R. § 75.403 in underground coal
mines, comprising 4.34% of all alleged violations within the set.15
In order to show that 30 C.F.R. § 75.403 has been violated, the Secretary must present
persuasive evidence that the operator failed to apply a sufficient amount of incombustible
material in a mine. In other words, the Secretary must present persuasive evidence that the
operator failed to rock dust an area adequately. Thus, the relevant element to be determined in
this matter is whether sufficient evidence has been presented to prove that the sample was taken
more than 40 feet from the working face. The Court finds that the Secretary failed to present
sufficient evidence for the proposition, and therefore vacates the citation.
A. The Secretary Failed to Present Sufficient Evidence that the Sample Was Taken
More Than Forty Feet from the Working Face
In presenting his case, the Secretary asks the Court to disregard the plain language of the
citation, as well as contemporaneous documentation, by arguing that the sample was not taken at
spad 87 + 34.09, and, that the sample was not taken forty feet from the working face. Instead, the
Secretary’s witnesses alleged at hearing the sample was taken significantly more than forty feet
from the working face (the witnesses differed on how much further it was), and that spad 87 +
34.09 was written as a marker for abatement of a future, hypothetical citation. Tr. 13, 41, 58,
101.
The Commission has held that an inspector’s testimony, standing alone, if found credible
and reliable, may constitute sufficient evidence to prove the existence of a safety violation and
support an S&S finding. See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-1279 (Dec.
1998) (holding that the opinion of an investigator that a violation is S&S is entitled to substantial
15

This information is publicly available on MSHA’s website. MSHA, Most Frequently
Cited Standards of 2015; Underground – Coal,
http://arlweb.msha.gov/stats/top20viols/top20viols.asp (last visited Dec. 28, 2016).

39 FMSHRC Page 583

weight); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-136, (7th Cir. 1995) (ALJ did not
abuse discretion in crediting expert opinion of experienced inspector); and Cement Division.,
National Gypsum Co., 3 FMSHRC 822, 825-826 (Apr. 1981) (regarding the probative value of
inspector’s judgment).
Determining the credibility and reliability of any witness’s testimony is the province of
this Court. Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629 (Nov. 1986) (holding that a
judge’s credibility resolutions cannot be overturned lightly). The Commission is reluctant to
disturb credibility determinations, but will, if it finds they are self-contradictory or if there is no
evidence, or dubious evidence, to support them. Austin Powder Co. and Bruce Eaton, 21
FMSHRC 18, 22 (Jan. 1999).
The Secretary asks that the Court privilege the testimony of two inspectors over the
contemporaneous documentation accompanying the citation, as well as the citation itself, in
arguing for the fact of the violation. However, the testimony presented by the Secretary’s
witnesses lacked sufficient indicia of reliability to be deemed credible enough for the Court to
overlook the plain language of the citation, as well as contemporaneous documentation.
The Secretary’s witnesses in this matter differed from one another on basic facts
regarding the violation. Most critically, they disagreed on where the sample was taken. Compare
Tr. 41 with Tr. 101. But these disagreements in testimony extended to other areas as well. For
instance, Inspectors Detrick and Bochna appeared to disagree on where the working face began
for rock-dusting purposes. Compare Tr. 75-76 with Tr. 100-101, 107-109, 111. Inspector Detrick
testified at hearing that the face for rock-dusting purposes began at the last row of bolts, or the
last row of straps. Tr. 75-76. Inspector Bochna testified that the working face did not begin at the
last row of bolts. Tr. 100-101, 107-109, 111.
In another instance, the inspectors’ testimony was inconsistent and at times selfcontradictory when it came to the condition of the No. 3 Entry. Inspector Detrick appeared to be
of two minds regarding the condition of the No. 3 Entry. At one point Inspector Detrick testified
that the Entry was obviously in violation, black, dark, and dry, with float coal dust everywhere.
Tr. 52, 37, 41. Later, under questioning by the Respondent’s attorney, Inspector Detrick testified
that it appeared there was a violation, but he was not sure. Tr. 82. Detrick’s supervisor Inspector
Bochna testified that he was unsure if the Entry was improperly rockdusted, and seemed to
suggest that it wasn’t possible to determine visually if there was a rock-dusting violation. Tr.
114-115.
The inspectors did not corroborate one another’s account on the method of measurement.
Inspector Detrick agreed with the Respondent’s attorney at hearing that a 25 foot tape measure
was used to measure the distance from the working face. Tr. 73. But Inspector Bochna could not
recall what length tape measure was used. Tr. 109, Tr. 123. Inspector Bochna could not recall if
the inspectors had to move to measure forty feet (as would be necessary with a 25 foot tape
measure). Tr. 109-110. Inspector Bochna also failed to see the sample collected, as he was
possibly walking back to check the return of the No. 3 Entry, and therefore could not recall
precisely how and where the sample was taken. Tr. 113, Tr. 126.

39 FMSHRC Page 584

The Court considers the most important factual issue to be whether the sample was taken
more than forty feet from the working face, because the regulation itself describes this
requirement. 30 C.F.R. §§ 75.402-403. Given the Secretary’s evidence, the Court has multiple
measurements to choose from. First, there is the citation itself, which lists the sample’s location
as taken at either spad 87 + 34.09 or forty feet from the working face. GX-1. Then there is the
testimony of the issuing inspector, who testified that the rock dust sample was taken 62 to 64 feet
from the working face. Tr. 38. Later, at the same hearing, the issuing inspector testified that the
sample was taken 64 to 65 feet from the working face. Tr. 41. Finally, supervising Inspector
Bochna testified that the sample was taken 50 feet from the working face. Tr. 101.
Moreover, the location of where the sample was taken was challenged by a witness of the
Respondent’s.
Stein testified that the sample was taken roughly fifteen feet from the working face at
spad 87 + 34.09.16 Tr. 140-141. The Respondent also presented evidence in the form of
transcribed notes, describing the sample as “taken at spad 87 + 34.09 less than 40’ outby the face
of #3.” RX-1. Stein testified at hearing that these transcribed notes are a faithful representation of
contemporaneous notes he took while accompanying the inspectors on the inspection. Tr. 134135. Stein further testified at hearing that the original contemporaneous notes were part of a
notepad that has since been discarded as the notepad became full. Tr. 135. The Secretary stated
in his brief that these handwritten notes were never produced during discovery and were
discarded following the Respondent’s receipt of the citation, possibly constituting destruction of
evidence. Sec’y’s Br., 11. The Court assigns little weight to the exhibit itself, given the
difficulties regarding its provenance, and assesses the credibility of Stein’s testimony separately.
The Respondent has demonstrated through testimony and visual aids that spad 87 + 34.09
was close to, if not exactly, fifteen feet from the working face at the time the sample was taken.
Tr. 148, 173, 185; RX-3; RX-6. The spad was installed on December 15, 2015, and there is
persuasive evidence to suggest that the spad remained fifteen feet from the working face for

16

In his post-hearing brief, the Solicitor argues that one would expect Stein to voice an
objection to the sample’s location at the time of its taking “rather than remaining silent and
challenging the location after the Mine had incurred the costs of litigation.” Sec’y’s Br., 13.
Stein’s failure to challenge the inspector’s sampling location and/or technique could have arisen
out of a fear of retaliation or a hope that the inspector would not issue a citation at all. Stein did
say during questioning that if he thought an inspector was doing something improper, he would
point it out to him, but then quickly noted that the inspector had a right to take samples wherever
he liked, suggesting that is why he didn’t object. Tr. 162-163. Regardless, it is not the
Respondent’s duty to object to a sample’s validity at its taking in order to preserve such an
objection at the hearing stage.

39 FMSHRC Page 585

some time after the sample was taken.17 Tr. 187-188; RX-3; RX-5; RX-6. Thus, if the sample
was taken at spad 87 + 34.09, it is not evidence of a violation.
It is not clear to the Court upon review of the citation and the inspector’s
contemporaneous notes that spad 87 + 34.09 was identified as a marker for future termination of
a hypothetical citation, as alleged by the Inspector at hearing. Tr. 58. Instead the citation, the
notes drafted to accompany the citation on December 30, 2015, and the inspector’s
contemporaneous notes of December 22, 2015 all appear to identify spad 87 + 34.09 as the
location where the sample was taken, with no mention of the spad as a future locus for
abatement. GX-1; GX-2; GX-3. Inspector Detrick’s December 30, 2015, notes state the sample
was “collected on 12/22/15 in the #3 entry 40’ outby the face @ spad # 87 + 34.09.” GX-2,
(emphasis added).
The inspector’s assertion that he wrote in the body of the citation and accompanying
notes “40 feet outby the working face” to “mirror” the language of 30 C.F.R. § 75.403 does not
inspire confidence in the Court. Tr. 37, 40. This assertion creates, essentially, a second and
undefined measurement point, to be defined later by the Secretary’s witnesses at hearing, raising
questions of reliability. If the sample was taken more than twenty feet from where the
Respondent was required to begin rock-dusting, as the issuing Inspector alleged at hearing,
including that information in the citation would better support a finding of violation. Similarly, if
spad 87 + 34.09 was meant solely as a location for future inspectors to use to terminate a citation,
including the spad number without a reference to how far the sample was taken from the spad
could confuse a future inspector, especially if mining took place in the interim.
The Court is aware that, in the past, the Commission has held that it does not demand
inspectors write citations with the legal precision of attorneys sitting in comfortable offices.
Sunbelt Rentals, Inc.,; LVR, Inc.,; and Roanoke Cement Co. LLC, 38 FMSHRC 1619, n. 10 (July
2016). This citation’s imprecision, however, arises from a deliberate decision made by the
issuing inspector. Tr. 37, 40. This imprecision in drafting could be overcome if the Secretary’s
witnesses presented a credible account of the inspection’s events, but they failed to do so.
Not only do the Secretary’s witnesses differ from the stated language of the citation, they
differ with one another. These discrepancies in the Secretary’s evidence create a contradictory
narrative that the Court cannot credit. Accordingly, the Court cannot find there was sufficient
evidence presented to prove that the sample was taken more than forty feet from the working
face, as required by the regulation.

17

The Solicitor objected at hearing to the inclusion of Reamer and Bell’s testimony
because the two lacked personal knowledge of the conditions that led to the violation. Tr. 166167. After considering the testimony of both witnesses and the Respondent’s accompanying
exhibits, the Court notes that the salient facts raised by all concern the location of spad 87 +
34.09. The Court credits the testimony and evidence as having established that no mining
occurred between the taking of the sample and the issuance of the citation, and that the location
of spad 87 + 34.09 remained unchanged at 15 feet from the working face.

39 FMSHRC Page 586

B. The Citation Met the Requirements of Section 104(a)
In a separate argument for vacating Citation No. 9073907, the Respondent’s attorney
contends that the citation as issued failed to satisfy the requirements of Section 104(a) of the
Mine Act.
Section 104(a) states that:
If, upon inspection or investigation, the Secretary or his authorized representative
believes that an operator of a coal or other mine subject to this chapter has
violated this chapter, or any mandatory health or safety standard, rule, order, or
regulation promulgated pursuant to this chapter, he shall, with reasonable
promptness, issue a citation to the operator. Each citation shall be in writing and
shall describe with particularity the nature of the violation, including a reference
to the provision of the chapter, standard, rule, regulation, or order alleged to have
been violated. In addition, the citation shall fix a reasonable time for the
abatement of the violation. The requirement for the issuance of a citation with
reasonable promptness shall not be a jurisdictional prerequisite to the enforcement
of any provision of this chapter.
30 U.S.C. § 814(a).
Citation 9073907’s “condition or practice” reads:
According to lab analysis results of rockdust bag sample 0155450AA collected on
12/22/2015 in the #3 Entry (40 ft outby the face) of the 3A Section Return
Spad#87+34.09 the sample is non compliant. The rockdust sample is 66.2%
incombustible content instead of the required 82.0% due to the presence of 0.5%
of methane. The results of the rockdust analysis are attached to the citation.
Standard 75.403 was cited 7 times in two years at mine 3610045 (7 to the
operator, 0 to a contractor). Supporting rock dust sample bag numbers:
0155450AA.
GX-1.
The Respondent contends that the citation fails to satisfy Section 104(a)’s requirements
because “Mr. Detrick testified that he failed [to describe with particularity the condition in the
Citation and to accurately capture the facts in his notes to substantiate a violation].” Resp’t’s Br.,
14. The Respondent’s attorney appears to be referring, primarily, to this line of questioning at
hearing:
Q: Would you agree with me today, based on your testimony, you didn’t
accurately describe with particularity the violation?

39 FMSHRC Page 587

A: That’s correct, and as you said, yes, I was a new inspector at the time, and I’m
not using that as a crutch by any means.
Tr. 60.
The requirements of 104(a) are not so restrictive as the Respondent contends. Section
104(a) merely requires that a particular set of facts, and a particular safety standard, be identified
in the body of the citation. The purpose for this is two-fold: firstly, to enable a Respondent to
defend against the citation in a hearing, and secondly, to enable a Respondent to abate the
citation in order to terminate it. The citation as issued in the present litigation satisfies both
requirements, and therefore, is valid under Section 104(a). See, e.g., Pocahontas Coal Co., LLC,
38 FMSHRC 176, 182, (Feb. 2016); Summit, Inc. v. Secretary of Labor, 19 FMSHRC 429, 431
(Feb. 1997) (ALJ Manning); Asarco Mining Co., 15 FMSHRC 1303, 1306 (July 1993); Cyprus
Tonopah Mining Corp., 15 FMSHRC 367, 379 (Mar. 1993).
Recently, the Commission addressed a very similar argument in the matter of Mill
Branch Coal Corporation. Mill Branch Coal Corporation v. Secretary of Labor, 37 FMSHRC
1383 (Jul. 2015). In that case the Commission reasoned that:
We find unpersuasive Mill Branch's argument that the orders fail to sufficiently
identify hazardous conditions. Section 104(a) requires that each “citation shall be
in writing and shall describe with particularity the nature of the violation ….” 30
U.S.C. § 814(a). We have recognized that the requirement for specificity serves
the purpose of allowing the operator to discern what conditions require abatement,
and to adequately prepare for a hearing on the matter. Cyprus Tonopah Mining
Corp., 15 FMSHRC 367, 379 (Mar. 1993) (citations omitted). Mill Branch's
extensive examination and cross-examination of witnesses concerning the cited
conditions demonstrate that Mill Branch was able to adequately prepare for trial
and knew what conditions would have required abatement.
Mill Branch Coal Corporation, 37 FMSHRC 1383, n. 17.
This Court finds that, as in Mill Branch, the Respondent in this case clearly knew what
safety standard was at issue, and how to properly defend against the Secretary’s allegation of a
violation. Moreover, the Respondent’s attorney’s extensive examination of witnesses and crossexamination of the inspectors concerning the cited condition demonstrates that the Respondent
was able to prepare for trial, and knew what conditions would have required abatement.
Therefore, this Court rejects the Respondent’s 104(a) argument, and instead vacates the citation
on evidentiary grounds.

39 FMSHRC Page 588

Conclusion
The Secretary has not carried his burden by the preponderance of the evidence that a
violation of 30 C.F.R. § 75.403 occurred. Therefore, the Court finds that the citation at issue
should be vacated. For this reason the Court makes no finding regarding the significant and
substantial (S&S), negligence, and gravity determinations made by Inspector Detrick.
ORDER
Accordingly, it is hereby ORDERED that Citation No. 9073907 is VACATED.

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

Distribution:
Anthony Fassano, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S. Independence
Mall West, Suite 630 E, The Curtis Center, Philadelphia, PA 19106
Patrick W. Dennison, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Ave.,
Suite 1500, Pittsburgh, PA 15222

39 FMSHRC Page 589

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

March 7, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2015-850-M
A.C. No. 04-01299-383413
Docket No. WEST 2015-851-M
A.C. No. 04-03065-383417
(Plumbago Mine)
Docket No. WEST 2016-70
A.C. No. 04-01299-393844

v.

Docket No. WEST 2016-71
A.C. No. 04-03065-393850
(Plumbago Mine)
Docket No. WEST 2016-0149-M
A.C. No. 04-01299-396253
Docket No. WEST 2016-183
A.C. No. 04-01299-398656
ORIGINAL SIXTEEN TO ONE MINE,
INC.,
Respondent

Docket No. WEST 2016-243
A.C. No. 04-01299-400615
Mine: Sixteen To One Mine
DECISION

Appearances: Laura Ilardi Pearson, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner
Michael Miller, President, and Director, Original Sixteen To One Mine, Inc.,
Alleghany, California, for Respondent
Before:

Judge Moran

39 FMSHRC Page 590

Introduction
This case involves seven dockets encompassing a total of 22 citations. A hearing was
held in the above docketed matters in Truckee, California commencing on September 20, 2016.
Two of the citations were vacated by the Secretary. The Secretary’s discretion to vacate a
citation or order is not subject to review. RBK Contr. Inc., 15 FMSHRC 2099 (Oct. 1993).
Because the Court determines that the Secretary did not meet its burden of proof,
nine of the citations are dismissed. Based on the Court’s evidentiary conclusions, the Court
imposes penalties for a number of other citations that are lower than the amounts sought
by the Secretary.
Preliminary Matters Applicable to All Alleged Violations
Jurisdiction challenge for the Plumbago Mine
Regarding Mr. Miller’s claim that Plumbago is not a mine: Miller stated about the
activity at the site that “they were in there, they were -- they were – they were doing kind of an
exploration development. They were mucking out old ground fall that was in their primary
haulage. They were running a slusher. They were putting in steel sets and lagging. They were
doing a good job with that.” Tr. 101. Miller added, “Number one, there has never been any gold
production at the Plumbago Mine. I have never seen any production, there is no product that's
ever been produced.” Tr. 103-104. Also, Plumbago “never asked for an I.D. number for that
mine because it never felt it needed one.” Tr. 104.
The Court added that, based on the hearing testimony alone, “this inspector has testified
sufficiently to me that there was activity going on at this Plumbago Mine that would constitute
mining as construed by dozens and dozens of Federal Courts in reviewing the jurisdiction of the
Mine Act.” Tr. 110. While Miller asserted that no gold had been found there, the Court
explained, by way of a hypothetical, the following:
Even if you never realized a penny in terms of any ore, whether it be gold or
copper or lead or silver, you name it. If nothing came out of it and you went
through all these efforts, all of that past activity, though it bore no fruit, would
still be mining.
Tr. 111-12.
As discussed below, the Respondent also admitted that the Plumbago Mine is a mine
within the meaning of the Mine Act in its submissions to the Court.

39 FMSHRC Page 591

The Statutory Penalty Criteria
A number of the statutory penalty factors apply uniformly to each alleged violation.
Therefore they are dealt with here, leaving individual discussion for negligence and the gravity
of the violation, and the related factors, where applicable, of unwarrantability and significant and
substantial findings.
The operator’s ability to continue in business
At hearing, Mr. Miller raised an issue concerning the statutory penalty criterion of the
effect of civil monetary penalties on the operator's ability to continue in business. The Court then
identified problems with the assertion of that defense, beginning with its late assertion, coming
only at the start of the hearing. In that regard, it stated,
this information should have been provided well before today. In other words, it
was incumbent upon the Respondent prior to the hearing to provide
documentation to show that a penalty, and let's work from the pre-vacated
standard, the responsibility was upon Sixteen To One Mine to provide
information to show that a penalty of $3,900 would have an effect on the
operator's ability to continue in business.
Tr. 464-465.
Nevertheless, the Court extended extra fairness to Miller by providing him the
opportunity to submit within 30 days from the close of the hearing such information as he may
be able to muster in order to establish that the civil penalties sought would affect its ability to
continue in business. Tr. 465. The Court emphasized that Miller would need to show how a
penalty of $3,000 could affect the operator’s ability to continue in business, adding that “a
company that could not withstand a civil penalty of less than $3,000 is in a precarious position to
begin with.” Tr. 465-466.
Post-hearing the Respondent submitted information designed to show that the penalties
sought by MSHA impacted its ability to continue in business. The Secretary then responded to
that submission. Respondent sent the Secretary “10-Ks” the week prior to the hearing. Tr. 53.
In its post-hearing submission on this issue, dated October 20, 2016, Miller stated that the
“Original Sixteen to One Mine, Inc. (operator) is insolvent.” R’s post-hearing letter at 1. Miller
added that “MSHA is significantly responsible for creating this situation.” Id. Inadvertently, the
letter effectively conceded that it is a mine, stating that MSHA “has a significant impact on our
ability to carry out the necessary work in order to produce gold. Unlike a mid-size or large
mining operation, the very small ones are working against the odds to survive the rigorous
issuance of citations by MSHA.” Id. Miller elaborated that, when miners have to deal with
MSHA inspectors, that is time away from “the work necessary to produce gold.” Id. at 2. Miller
also states that significant expenses to correct alleged violations are incurred and as a result it has
had to reduce the size of its workforce. In the past year its workforce has dropped from 11 to four
miners. Id. at 3. Miller concludes by pointing to the three past annual financial reports, which it

39 FMSHRC Page 592

concedes are not audited reports. However, it contends that those reports are accurate and
sufficient for the Court to consider, asserting that it is “reasonable for [the Court] to reduce or
eliminate [the] penalties sought by MSHA … [and to] protect California underground gold
miners’ jobs.” Id. at 4.
The Secretary filed a response to Miller’s submission. In that Response, the Secretary
noted the Court’s statement that the information the Respondent intended to submit would need
to demonstrate “that information would have to show [the Court] that a penalty in the
neighborhood of $3,000 would [a]ffect the Sixteen To One’s ability to continue in business.”
Sec. Response at 2, quoting transcript at 464-65. As the Secretary also observes, the burden of
proof to establish inability to pay is upon the mine operator and that specific evidence must be
presented to show such an effect. The specific evidence requirement is not satisfied by
introducing items such as “unaudited tax returns, balance sheets [ ] tax liens and judgments.” Id.
at 3, citing Spurlock Mining Co, Inc., 16 FMSHRC 697, 700 (1994).
The Court agrees with the Secretary that the mine did not present the required evidence to
establish that a civil penalty in the neighborhood of $2,562 would impact the operator’s ability to
continue in business.1
The operator’s history of previous violations
Gov. Ex. GX -1 is the Certified Assessed Violation History for the Original Sixteen to
One Mine. Tr. 15. That exhibit reflects 21 paid violations over the period covered, 6 of which
were “S&S.” There was no violation history for the Plumbago Mine at the time of the hearing.
Tr. 16-17. The Court concludes that the mines’ violation history is negligible.
The appropriateness of any penalties to the size of the business
There was no formal statement regarding evidence on this factor. However,
uncontradicted testimony supports the finding that the Sixteen to One Mine and the Plumbago
Mine are small operations.
The demonstrated good faith in attempting to achieve rapid compliance after
notification of a violation
There was no formal statement regarding evidence offered on this factor. However,
1

Without upsetting the Court’s finding that the Respondent did not provide the type of
evidence to demonstrate that the penalties sought in this litigation could have an effect on its
ability to continue in business, the Court does agree with Miller’s point that when an operator is
faced with a citation and is unwilling to challenge the validity of it by absorbing the issuance of a
withdrawal order being issued, the process of abating the citation may involve expenses. If, later,
it turns out that the citation was improvidently issued, those unwarranted abatement expenses do
not evaporate. That said, even if such circumstances arise, the operator would still need to
establish that such unjustified associated abatement expenses when coupled with other civil
penalties affect the mine’s ability to continue in business.

39 FMSHRC Page 593

uncontradicted testimony supports the finding that the Sixteen to One Mine and the Plumbago
Mine demonstrated such good faith in attempting to achieve compliance after issuance of alleged
violations.
Docket No. WEST 2015-08502 Original Sixteen to One Mine, Inc.
Inspector Stephen Rogers is an MSHA safety specialist, with some 20 years’ employment
with that agency. Tr. 20. Inspector Rogers also had many years of employment as a miner. His
family owned mines and he began working as a miner in 1973. Then, at age 17, he began work
as an underground miner for Union Carbide. Tr. 22.
Citation No. 8793844
On May 6, 2015, Inspector Rogers issued Citation No. 8793844. Tr. 27, Ex. GX 2, citing
30 C.F.R. § 57.6102(b).3 That standard, titled, “Explosive material storage practices,” provides
“Explosives and detonators shall be stored in closed nonconductive containers except that
nonelectric detonating devices may be stored on nonconductive racks provided the case-insert
instructions and the date-plant-shift code are maintained with the product.” 30 C.F.R. §
57.6102(b).
Rogers related that during the course of his inspection, when traveling in the 800 haulage,
at the 848 split, he observed some explosives along a rib. Tr. 28. He determined that there were
two different types of explosives present, both were nitroglycerine-based dynamite sticks of
powder, which he identified by their color. Tr. 31-32. Under the inspector’s evaluation of the
gravity, he marked the injury as unlikely to occur, since the area was not used for travel and there
were no overhang issues that could cause a sympathetic (i.e. unplanned) detonation through
material falling on the explosives. Tr. 34. However, though unlikely to occur, he marked the
injury that could be reasonably expected as “fatal,” as the two sticks, if they were detonated,
could result in an injury of that degree. Id. At the time he issued the citation there were only two
miners working in the mine. Tr. 35. For negligence, Rogers marked that as “moderate,” because
Mr. Miller’s son, Reid Miller, didn’t appear to know of the powder’s presence. Id. However,
Rogers identified the powder “pretty quickly,” so it was not difficult to detect its presence. Tr.
36. The condition was abated by “washing” the powder in a bucket of water, rendering it
harmless. Id. MSHA’s proposed penalty was $150.00. Ex. A (referencing WEST 2015-0850).
Upon cross-examination, Mr. Miller acknowledged that Inspector Rogers was well
qualified. Tr. 38. For the purpose of showing that the old powder presented no real hazard, Miller
suggested that one could simply burn the dynamite. Rogers did not agree, stating that one doesn’t
2

The entire testimony was reviewed and considered by the Court. However, some
aspects of the testimony received were considered to be either irrelevant and/or immaterial and
accordingly discussion of such matters is omitted from this decision. See, as one example, Tr.
38-39.
3

Throughout the hearing, the Secretary’s exhibits were referred to as “GX 1” and so on.
Hereinafter, this decision cites the Secretary’s exhibits as “GX 1,” etc. to mirror the transcript
and exhibits.

39 FMSHRC Page 594

“just burn powder,” as there “is a very specific way of doing it.” Tr. 42. The Court noted that the
violation did not claim that there was an improper disposal of the powder. Tr. 43. Miller took
issue with the inspector marking the violation as “fatal.” Id. The inspector elaborated on his
reasoning for the “fatal” designation, stating,
[i]f [the powder] received energy from an outside unplanned source and that
energy can be impact, friction, variety of issues that could cause detonation of the
explosives, and if someone was in the close proximity walking through that area
when that detonated, [he] believe[d] that that would be a -- cause a fatal. [sic]
Tr. 44.
Rogers expressed that if a detonation occurred, anyone within 20 to 25 feet of it could be
killed. Tr. 44. The inspector was not claiming that one merely walking by the powder would
cause an explosion, but rather if there was a ground fall at the time a miner happened to be
walking by, within 25 feet of a detonation, “the concussion of the -- that type of powder, because
it's fairly high strength, you know, gelatin, one of them was a gelatin-based, but they are both
nitroglycerine-based, would probably cause enough concussion to collapse a lung.” Tr. 45.
Rogers agreed with the Court’s summary that two events would have to occur at the
same time: a sympathetic action and one walking within 20 to 25 feet of the material at the
moment of detonation. Id. Diminishing the likelihood of a sympathetic event, Rogers added that
there was no evidence of rock movement that could land on the explosives. Id. Had that been the
case, that material could easily fall down, he would have marked the gravity as “reasonably
likely.” Tr. 46. In support of the “moderate negligence” designation, Rogers explained,
“somebody put the powder there somehow. Some miner at some point somehow the powder
ended up there, which is always concerning, and it didn't take me long to observe it.” Id. Rogers
acknowledged that there was yellow ribbon at the cited area, and that he went beyond that ribbon
barrier and discovered the powder. Tr. 47.
Mr. Miller testified regarding this citation. Stating that he is 74 years old, Miller added
that he has significant knowledge about explosives. Tr. 49. He stated he did not know of the
explosive’s presence, estimating that the cited powder “must have been there for 20 years or
more.” Tr. 50. In his opinion, there was no sympathetic event capable of causing detonation. Tr.
51. Thus, Miller contended that,
there is no chance of a fatality to those two guys or probably to even 10 or 20
guys if they were there working, but they weren't. . . . I can accept the citation
easily as darn it, we missed something. Glad you found it. But it wouldn't have
been fatal, and it should have been low or no negligence. We were not negligent
in going to an area that was off limits with two guys walking a main travelway at
that particular point in time in the mine.
Tr. 51.
He added that the area has very little ambient light. Id.

39 FMSHRC Page 595

Conclusion
Upon consideration, the Court finds that the violation was established. It also finds, in
line with the inspector’s evaluation, that the gravity was properly marked as unlikely, that it was
not significant and substantial (“S&S”), that if the hazard occurred, it would be fatal, although,
as the testimony showed, it would require a very unlikely confluence of events.
However, the Court also finds the negligence to be low, as the material had been there for
a long period of time without being cited, and because it was in an out of the way location, which
required that the inspector go beyond a ribboned-off area. In consideration of these factors, and
the previously discussed factor of the effect of the penalties on the operator’s ability to continue
in business for all of the citations, together with the across-the-board determinations for the
Sixteen to One Mine of the operator’s history of previous violations, size of business, and good
faith in attempting to achieve rapid compliance,4 a penalty of $50.00 (fifty dollars) is imposed
as appropriate.
Citation No. 8793845
This citation invoked 30 C.F.R. § 57.9300(b). That standard, titled, “Berms or
guardrails”, provides, at subsection (b) “Berms or guardrails shall be at least mid-axle height of
the largest self-propelled mobile equipment which usually travels the roadway.” 30 C.F.R. §
57.9300(b).
Rogers issued this citation on May 6, 2015. It alleges “a 40-foot section of roadway
landings area that -- that had from zero percent berm to 0.8, which is about ten inches.” Tr. 55,
GX 5. Associated with that exhibit are Exhibit GX 6, the inspector’s notes, and Exhibit GX 7,
photographs he took of the condition. Tr. 55. The area was located in “the lower landing area
down by the 800 portal where . . . they drive down there they tag in and go to work and go
through the portal, and this is that lower landing area where they tend to park.” Tr. 56. The
largest piece of equipment using that road is a 966 loader, which has a mid-axle height of 2.3
feet. Tr. 58. Exhibit GX 7, photo 2 of 4, shows an area with zero to ten inches of berm. Tr. 59.
Exhibit GX 6 complements the photos with a drawing the inspector created of the roadway and
its berm deficiencies. Tr. 60.
Rogers marked the citation as “unlikely” to result in an injury because the road was a
large, open, area, meaning that vehicles did not have to drive close to the roadway’s edge. Tr. 61.
He marked the likely injury as lost work days or restricted duty based upon his conclusion that if
one of the smaller vehicles went over the road edge, it would roll down to the second bench. Tr.
62. Moderate negligence was marked on the basis that Reid Miller stated he had not observed the
condition. A snow bank in that area had made it less obvious. Still, he could not consider it low
negligence, as it was still “pretty obvious.” Tr. 63. While the deficient area was not large, the
4

The Court will not tire the reader by repeating each of the other statutory penalty factors
for every citation. Suffice it to say that, as they are uniform considerations for each citation, the
Court considered the operator’s ability to continue in business, the operator’s history of previous
violations, the size of its business, and its good faith in attempting to achieve rapid compliance.

39 FMSHRC Page 596

road was used every time miners go to the mine. Tr. 64. Exhibit GX 7 shows the berm that was
installed to abate the citation. Id.
Mr. Miller believed that the citation should be vacated. His reasoning was that there had
been a lot of rain, requiring annual replenishment of berms from those events. He asserted that
such water run off created the gap for the small area cited. Thus, he contended that the mine does
maintain its berms. Tr. 67-68. He believed that because the loader referenced by the inspector
was at the shop, it was not available for use. Tr. 68. That left only a pickup truck using the road.
Id. Miller reasoned, “We cannot fix things if they are not needed to be fixed. We need to fix the
things that are -- might be a problem or a safety issue right now.” Tr. 69. On that basis, he
considered it unreasonable to interpret the standard as requiring a berm under the circumstances
presented. Id.
The Court then inquired if the inspector still would have issued the citation if it were
assumed that the loader was not being used and that only privately owned vehicles or pickup
trucks were using the road. Rogers stated he still would have issued the citation because vehicles
still were using the cited road. Tr. 70. The largest berm in the cited area was .8 inches (i.e.
approximately 10 inches) and, in some of the cited area, it was zero. By comparison the mid-axle
height of the pickup truck was 1.3 inches. Id. Thus, even where some berm was present within
the cited area, at best it was still some 7 to 8 inches too short. Id. The mid-axle height for the
pickup was about 12 to 14 inches. Tr. 72. Nor, the inspector stated, if it were assumed only a
pickup used the road, would he have changed his gravity or negligence designations, as there still
was road use by such vehicles. Tr. 71.
Mr. Miller then posited whether, under the circumstances presented, one could have
essentially a technical violation, but with no hazard created. Tr. 73. Rogers did not see it that
way. Mr. Miller then added that, as the posted speed is five miles per hour on the road, the
likelihood of an occurrence was zero. Tr. 75. The Court inquired if Miller believed that no berm
was ever required for the cited area, and he explained that affirmed that no berm should have
been required under the specific circumstances cited. Tr. 76. He elaborated that the berm should
have been reestablished the next time the loader used the road. As for the pickup truck usage, he
believed that under the conditions then present, there was no danger at all. Tr. 78. The Secretary
did not cross-examine Miller. Tr. 80.
Conclusion
Upon consideration of the record evidence, the violation was established. MSHA’s
proposed penalty was $100.00. Again, the Court notes that the gravity was assessed as unlikely
and the likely injury as lost workdays. However as the deficient area was relatively small and the
roadway area itself was wide and taking into account that only the pickup truck was then using
the roadway, that a snow bank had made it less obvious and that recent rains had contributed to
the creation of the berm gap, the Court finds it to be more accurately to say that an injury was
very unlikely. The citation form does not recognize a category below unlikely and “no
likelihood,” but that does not restrict the Court from such a characterization.

39 FMSHRC Page 597

Further, under all the attendant the circumstances, as presented by Miller, whose
testimony was not challenged through any cross-examination, the negligence should be deemed
low, not moderate. Given these findings, a penalty of $25.00 (twenty-five dollars) is imposed.
WEST 2015-08515 Plumbago Mine
Citation No. 8793846
Inspector Rogers also issued this citation, alleging a violation of 30 C.F.R. §57 20032.
That standard, titled, “Two-way communication equipment for underground operations,”
provides, “Telephones or other two-way communication equipment with instructions for their
use shall be provided for communication from underground operations to the surface.” 30 C.F.R.
§57.20032 (emphasis added).
On May 7, 2015, Inspector Rogers was at the Plumbago Mine to conduct an inspection.
Tr. 82; GX 8; GX 9; GX 10. He stated that, like the Sixteen to One Mine, the Plumbago is also a
gold mine, run by Mr. Miller. Id. The Plumbago has an MSHA mine ID. Tr. 84. Further, in
preparation for his visit, Rogers reviewed past inspection files for the mine, as prior MSHA
inspections had occurred at the mine. Tr. 86. When he first arrived, no one was at the mine.
However, not long after his arrival, a vehicle arrived with three miners. Tr. 84. It appeared to
Rogers both that work had been conducted at the site and that the persons who arrived there were
present to work. Tr. 85.
As noted, Rogers cited 30 C.F.R. §57.20032, which requires an underground telephone or
some other type of two-way communication device along with instructions for its use. Tr. 91.
There was, as the citation states, such a phone present, which was described as a “new mine
phone.” Id. The essence of the violation was the phone lacked an instruction manual for the
phone’s use and operation and Miller stipulated that Rogers found that the phone lacked
instructions. Tr. 88. The Court then expressed that it seemed that this was a “rather miniscule
violation,” unless the Secretary could establish that a person of normal intelligence could not
figure out how to use the phone. Tr. 89. The Secretary contended that this phone was atypical
and did not operate like a normal household phone. Tr. 91. The Court opined that if the evidence
is that use of the phone was intuitive, that would bear upon the gravity involved. Tr. 92.
Rogers described use of the phone as follows:
Well, depends on what you want to achieve. . . . in the handset there is a -- a mic
system that you depress in the center of the phone. The phone handle looks like
your standard old, not that anybody has them anymore, but the old phones. And
so you don't just pick it up, you have to depress the inner section of one of the
mics and then you have to, if you are trying to call out, there is speakers [sic] on
those. And then you have to also, at the same time, depress a toggle and then you
can speak. . . . Once you have contacted the person that you want to talk to, you
no longer depress the toggle, but you depress the inner mic system that's
5

Docket No. WEST 2015-0851 was not listed in the Secretary’s opening statement, but
the docket and the alleged violations contained within it, were considered at the hearing. Tr. 9.

39 FMSHRC Page 598

connected to the handle and you can have a two-way conversation, but any other
phone can still pick that up. It's not a private line at that point, and so it requires a
number of steps in order to make it activated.
Tr. 94.
Accordingly, Rogers did not think that use of the phone was intuitive, noting that if one
had never used a mine phone of any sort, while in time one could figure out how to use it, in his
experience, miners had to train on how to use a mine phone. Id. Further, use of the phone was for
practical needs: “if there is accident, injury, things like that or you are needing advice,
information, a condition that you have run into. It was very common to get on the phone, call the
surface.” Tr. 94-95.
Rogers affirmed that there were no instructions on the phone itself, and “no manual that
was presented to [him] or instructions at that location.” Tr. 95. However, he then conceded that
“[t]he operation of this phone was extremely similar to standard Phemco phones.” Id. Further,
and of importance, Rogers had the miners show him how they would operate it, stating, “[t]hese
were experienced hands and they didn't have any problem operating the phone.” Tr. 96
(emphasis added). His issue was, aside from the lack of a manual, that he “had just never seen a
mine phone ever made that didn't have, by the manufacturer, instructions on it.” Id. Rogers’
notes reflect that there were three miners at the Plumbago, but that he didn’t know about their
experience level, either at that mine or at the Sixteen to One Mine for that matter. Tr. 97.
In marking lost work days or restricted duty as the type of injury, Rogers’ conclusion was
based on “Confusion . . . confusion, lack of information can slow down rescue efforts, injury, et
cetera.” Tr. 98. He marked the negligence as low, because most miners would be unaware of the
requirement for an instruction manual and because the phone itself was labeled as “MSHA
approved.” Tr. 99.
Upon cross-examination, Rogers agreed that miners are to be task-trained and that he
found no violation with regard to training on any piece of equipment at the mine. Tr. 101-02.
Rogers was not definitive in answering whether the phone was equipment for which task-training
was required. Tr. 102.
Miller then testified about this citation, asserting that each miner had been task trained on
every piece of equipment, including the cited phone. Tr. 104. He added, establishing the
importance of the phones, that they “are so critical out there that we have a very expensive radio
phone in the trucks and a station in our office.” Id. In the Court’s view, this reinforces, rather
than detracts from the importance of the cited standard. However, Miller also pointed out that the
miners showed the inspector how the phone works. Tr. 105.
It was Miller’s position that the standard should be vacated, as everyone was trained on
its use and the phone itself was MSHA approved. Tr. 106. He added that the inspector’s claim of
possible confusion, and therefore the need for the instructions, was hollow as everyone knew
how to use the phones. Tr. 107. Miller did admit however, that there were no instructions, as the
citation alleged. Tr. 107-08. The Court then commented that the points made by Miller go to

39 FMSHRC Page 599

gravity and negligence, but not fact of violation. Tr. 108. Miller countered that “instructions” can
be established, as here, if the miners can give oral instructions on the use of the phone, as
happened here when they told the inspector how the phone was used. The Court rejects that
interpretation of the standard. Tr. 109.
Conclusion
The proposed penalty amount was $100.00. Upon consideration, the Court imposes a
penalty of $25.00 (twenty-five dollars). This amount is derived upon consideration that the
phone was fully operational, that the miners knew how to use it (indeed they had to show the
inspector how it operated), and that the negligence was low. Therefore, while there were no
instructions for its use, the violation was under the circumstances, of a technical, and non-safety
threatening nature.
WEST 2016-00706 Sixteen to One Mine
Citation No. 8873829
Citation No. 8873829, dated August 18, 2015, was issued at the Sixteen to One Mine by
MSHA inspector Steven Hagedorn. GX-11; GX 13. The cited standard, Section 56.12002, titled
“Controls and switches,” provides “Electric equipment and circuits shall be provided with
switches or other controls. Such switches or controls shall be of approved design and
construction and shall be properly installed.” 30 C.F.R. § 56.12002.
Inspector Hagedorn offered the following basis for his issuance of this citation,
after plugging in a circuit tester [ ] it gave [him] the indications of improperly
installed circuit or possibly other conditions. But the circuit tester gave [him] the
indication that it had a[n] open ground.7 So with that said, open ground is not
something that you would want in a wet environment using an appliance that has
a metal -- a metal housing. You have the chance of electrocution.
Tr. 187.
The inspector discovered this in the course of checking electrical outlets at the mine. Tr.
188. The outlet location “was in the transformer room … on [the] 800 level.” Tr. 190. The

6

Testimony from this docket actually followed testimony for WEST 2016-71. Out of
sense of numerical order, it is presented here.
7

The inspector explained that an “open ground in the circuitry of today, you have a
dedicated path to ground back to the source. That dedicated path to ground is designed to take a
path faster than the body can react to its actually becoming electrocuted. So electricity typically
takes the least path of resistance back to the source. And this is saying that that path of resistance
back to the source is no longer there.” Tr. 189.

39 FMSHRC Page 600

testing device illuminated, indicating an open ground. Tr. 189-90. Asked if miners used the area
in which the issue was detected, Hagedorn stated,
it is an area that can be used, and it’s in the path coming into the mine. It's
probably 200 or so feet into the mine where there is a -- a -- stepdown transformer
that's continuously illuminated. And at times it's been used -- that area is used for
a laydown area for maybe hand tools, power tools or -- but miners can and do
access it possibly on day-to-day basis.
Tr. 190-91.
The inspector is knowledgeable about electrical matters. Id. For matters involving 110
volts, which was the voltage here, one may receive only a shock, but death is possible too. Tr.
192. Because death can be a result, he marked it as fatal. However, the inspector learned that the
miners preferred to use battery powered tools, thus reducing the exposure to 110 outlets. Tr. 193.
Consequently, the inspector then modified his citation to non-S&S and “unlikely.” Id. The
negligence was marked down from high to moderate, in consideration of what the inspector
deemed a mitigating factor: that another entity installed the circuit. Tr. 195. The inspector
accepted Miller’s representation that the work had been done by another entity, although no
documentation was provided to support the claim. Id. The condition at the outlet was abated by
installing a cover plate over it, making it somewhat less accessible. Tr. 196.
Miller challenged the assertion that there was an open ground. Tr. 191. Although Miller
agreed that the miners often use battery powered tools, the reason for that is that most of the
mine doesn’t have electrical outlets. Tr. 198. Miller, in his testimony, affirmed that the electrical
work was done by another entity, prior to his operation taking over the mine, in June 1991. Id.
Miller stated that multiple prior inspections found no issue with the cited outlet. He disputed that
the outlet was cross-wired, contending instead that “there was some corrosion which affected the
Greenlee meter reading, which is possible.” Id. Further, Miller asserted that the cited location has
a lock and key on part of it and that only the mine’s two electricians enter that room. Miller then
reasserted that there was no open ground; that the problem was the corrosion. Tr. 199. Thus,
while he agreed with the inspector that there was an indication of an open ground, in fact there
was none. In fact, Miller stated that, after the cover plate was installed to abate the citation, one
of his electricians returned to the outlet, removed the cover plate and discovered the corrosion.
With that solved, the plug was reactivated. Tr. 200. Thus, Miller stated that the troubleshooting,
required after the tester light indicated an issue, revealed that there was no cross wiring and no
open ground after all. Tr. 200-01. Miller offered two declarations in support of his claim
regarding this citation. Tr. 201; Ex. R 8. The Secretary did not cross-examine Miller.
Conclusion
MSHA proposed a penalty of $150.00.8 Accepting the testimony of Miller, and with the
Secretary offering no rebuttal testimony from the inspector on redirect, the Court concludes that
8

Although the testimony was initially unclear, Counsel for the Secretary subsequently
advised that the $150 proposed assessment was based on a non-S&S and unlikely findings. Tr.
313.

39 FMSHRC Page 601

the Secretary did not meet the burden of proof in this instance to establish that there was, in fact,
an open ground. That claim was the fundamental assertion in the citation. Accordingly, upon
consideration of the evidence of record, the citation is DISMISSED. This conclusion is not
dependent upon either of the two declarations offered by Miller in support of his claim regarding
this citation.
Citation No. 8873830
Citation No. 8873830, cited standard 30 C.F.R. § 57.11001. GX 14; GX 16. That
standard, titled, “Safe access,” provides: “Safe means of access shall be provided and maintained
to all working places.” 30 C.F.R. § 57.11001.
The issue for this citation was whether certain steps used to access the controls for the
hoist were being maintained to provide safe access. Inspector Hagedorn stated that upon arriving
at the Tightner Trail level,9 “there was a tugger or hoist set up, and in order to get to it to operate,
it -- it had a series of cut-in or semi cut-in steps which were irregular. And there was also some
timbering that was in the travelway.” Tr. 207-08. The inspector stated that the hazard was the
footing, as [one goes] from one tread [i.e. step] to the next tread to the next tread
to get up to where [one is] going. It is ingress and egress has two different hazard
exposures. It's easier to climb up it than it is to come down in the absence of an
irregularity of each step.
Tr. 210.
Simplified, the inspector was concerned about the steps, which were created of dirt.
Wood steps and a railing were constructed at the location to abate the citation. Tr. 210-11; 214.
Initially, the inspector put the risk of slips, trips and falls as “reasonably likely,” as he stated that
such mishaps are one of the top ten causes of lost time injuries, but he then marked it “unlikely,”
although his reasoning for the modification was that a “reasonably likely” designation would
“hamper mining in general.” Tr. 211. Exposure to the hazard, the inspector stated, would be any
time one had to operate the tugger to pull the ore cart. Tr. 212. He marked the negligence as
moderate, because there had been some effort to establish access to the tugger, with the dirt steps
they had cut, instead of leaving the access via what he described, figuratively, as a “goat trail.”
Tr. 213.
Upon cross-examination, the inspector was asked how long the cited condition had
existed. Hagedorn could not recall if he asked about that. Tr. 215. Pressed, he stated it had been
there for at least a year. The inspector added that the step-up was 15 to 20 inches. Tr. 216. He
considered that distance to be steep, therefore increasing the risk of a fall. Id. He acknowledged
that, at least for the past two years, the mine had no violation history of slips or trips. Tr. 217.
Testifying about the citation, Miller stated that the tugger and skip were infrequently
used, on the order of once a month, and at most three times a month. Tr. 218. He asserted the
9

The Tightner area is “a location of the mine [where] … the ore is harvested from the
1100 level pulled up to the Tightner, which, in turn, is carried on out of the mine.” Tr. 208.

39 FMSHRC Page 602

mine has no history of trips, slips or falls in 15 or 20 years. Id. He also asserted that it presented
no hazard and that he has walked the cited area. Noting his age (74), he stated that he has walked
that area, simply to check things. Id. Thus, he maintained that the access was not unsafe,
because, “of the … conditions ... it didn't have any steep slopes, didn't have anything to fall down
on. … it was a very, very short distance. … It’s not more than eight feet up above it … might
even only be six feet above it.” Tr. 219.
When the Court inquired, “one has to ascend eight feet?” Miller explained that it was up
an incline and that one can walk it. Id. Further, Miller stated that the access that was present was
rock, not dirt. Tr. 220. Thus, he contended that the steps were created by the mine by cutting into
the rock, creating steps “of a fashion.” Id. He asserted that the steps had been that way for “at
least ten years.” Tr. 221. In fact, Miller contended that the wooden steps were more dangerous
than the cited condition. Id. He added, that if an inspector wants something fixed, the mine has
no choice but to do it in order to abate the citation, safe or not. Id. Further, expressing that it was
not a formidable ascent, he stated that the miners could “scamper” up the slope. Id. Thus, Miller
concluded, there was no hazard and consequently no negligence either. Id. The citation was
assessed at $100.00.
Conclusion
There was no cross-examination, nor additional testimony on direct, by the Secretary. Tr.
221. Given Miller’s unrebutted testimony, the Secretary did not meet its burden of proof. It was
not established that the means of access was unsafe. Therefore this citation is DISMISSED.
Citation No. 8873831
This citation alleged a violation of 30 C.F.R. §57.11008. GX 17. That standard, titled,
“Restricted clearance,” provides, “Where restricted clearance creates a hazard to persons, the
restricted clearance shall be conspicuously marked.” 30 C.F.R. § 57.11008.
Hagedorn stated that this citation was issued for “restricted clearance.” He explained that
in traveling throughout the mine he “made contact with the roof or back multiple times.” Tr. 222.
He added that the miners remarked having the same experience. Id. Thus, he contended that, as
one is focusing on the ground while walking in the mine, one will “run into the roof.” Tr. 223.
Put simply, he bumped his head on the roof several times. GX 19, a photograph the inspector
took, shows the mine’s use of paint, a caution strip, to indicate a restricted clearance. Tr. 224. He
indicated that illumination paint was applied after the citation was issued. Tr. 225-26. It was his
understanding that the citation was terminated on September 29th. Tr. 228.
In support of his reasonably likely finding, the inspector stated that he hit his own head,
and that he witnessed miners, and Miller, strike their head while he was inspecting. Tr. 226.
Some of the areas were traveled frequently. He often had to duck. In terms of marking lost work
days or restricted duty, Hagedorn asserted that he experienced that injury himself stating, he
“personally experienced restricted duty [ ] from the events.” Tr. 227. Marking the negligence as
moderate, the inspector stated that there was some signage alerting miners to some low
clearances, adding that one sign is not sufficient. Tr. 228.

39 FMSHRC Page 603

Miller then testified, first offering a declaration from Reid Miller. Ex. R 6; Tr. 230. He
stated that no one enters the mine unless approved by the operator and they are then
accompanied by an experienced miner. In addition, all of the miners carry a secondary light in
their pocket. Regarding the inspector’s statement that Miller himself hit his head on the roof,
Miller stated that his hard hat merely scraped the roof. Further, in all his years he has never had a
neck injury, and has he never fallen. Nor, he added, to his knowledge has any of his miners
sustained any neck or head problems or any problem associated with hitting their heads. Tr. 232.
Miller acknowledged that, following the issuance of the citation, the mine installed some
signs “where it appeared that there could possibly be the potential of a problem.” Tr. 233.
However he described these as a “potential speculative problem that may or may not exist.” Id.
He added that the mine has some 35 miles of tunnels, with roofs ranging from three to four feet
high and some stopes likely 20 feet high. Id. However, all his miners are lead miners with many
years of experience and all have been task trained. Id. In fact, Miller maintained that the only
danger was with the MSHA trainee inspector accompanying Hagedorn as she was not properly
dressed, nor adequately trained. Id. He also noted that, by wearing hard hats, a mere scrape
causes no injury. Further, given the scope of the mine, “it is physically impossible to go around
and spend the time and money to mark every place in the mine where you might have to duck.”
Tr. 235. As to the S&S marking, Miller noted that in “years and years” of inspections, this
condition has never been cited. Id.
The Court then inquired of the inspector about the breadth of travel involved with the
citation, asking, “Are we talking about a football field? Miles? I am not sure what the extent
of your citation covers?” Tr. 236. The inspector confirmed that his citation alleging restricted
clearance covered about a half-mile of the mine. Tr. 237. When the Court asked if the inspector
pointed out each location of restricted clearance, the response was that he spoke only generally,
with the onus then on the mine to go through the half mile and look for any areas of restricted
clearance. Tr. 237-38. The Secretary again conducted no cross-examination of Miller, nor did it
seek additional testimony from the inspector upon re-direct. Tr. 241. The proposed assessment
was $224.
Conclusion
The standard applies where restricted clearance creates a hazard to persons. This citation
must be DISMISSED for two reasons. First, the Secretary did not establish a genuine hazard
existed, given that the miners wear hardhats and in light of Miller’s testimony. Accordingly, the
Court concludes that, in the absence of any cross-examination, the Secretary failed to meet its
burden of proof. The Court also concludes that the citation presents a problem of vagueness. The
inspector merely advised the Respondent that there were unspecified low spots along the halfmile distance, but left it to the operator to find and mark them. This placed the operator in the
position of traveling the half-mile distance and attempting to determine if the standard applied to
each area. This would place the operator in the position of potentially guessing incorrectly, and
therefore being subject to the next inspector’s view of areas deemed to present restricted
clearance. As Miller expressed it, the mine is then “in a treadmill,” under such circumstances. Tr.
240. Without contradiction, Miller stated that, in years and years of inspections, this condition
had never been cited as a hazard.

39 FMSHRC Page 604

Citation 8873832.
This citation, No. 8873832, cited 30 C.F.R. § 57.11051(a). GX 20. Titled, “Escape
routes,” it provides that escape routes shall be “(a) Inspected at regular intervals and maintained
in safe, travelable condition.” 30 C.F.R. § 57.11051(a).
The inspector issued this citation for the secondary escapeway, 21 tunnel, where he found
“numerous areas that had water that was in excess of 12 to -- 12 inches in depth, and it was very
irregular footing.” Tr. 242. The 21 tunnel is used primarily as a secondary escapeway, but also it
is used as part of the de-watering process of the mine.10 Id. Hagedorn assumed that in using an
escapeway, one may be on stretcher, unable to walk on their own. Id. As to the water depth, the
inspector stated that it was some 16 to 17 inches. Tr. 243. The inspector stated that the cited
standard requires “that the secondary escapeway be travelable in respect to exiting the mine in
a[n] emergency situation.” Tr. 244. Upon the Court’s noting that the standard refers to escape
routes, not simply secondary escapeways, the inspector agreed that he misspoke. In any event, he
affirmed that the citation was issued because of his view that the escapeway was not in safe,
travelable, condition. Id. Exhibit GX 22 consists of photos of the conditions cited by the
inspector. Hagedorn added that it was not only the water, but also the presence of some four to
five inches of mud or muck at the bottom. He stated that the mud adversely affected one’s
footing. Tr. 246. This tunnel was approximately a quarter mile, and he added that the water and
mud issue was present along its entire length. Tr. 247. He marked it as “reasonably likely” to
cause an injury, such as strains, sprains, twists and falls. Hagedorn could not specify how often
miners used this escapeway. The negligence was marked as moderate because the mine had been
cited for this condition in the past and abated it. Tr. 249.
Miller testified that the tunnel, created in 1868, is the oldest one in the mine. It is not used
for anything, but it is the lowest discharge point for water to exit the mine. Tr. 252. Miller noted
that the issue of water removal at that location is not simple, as the state of California has water
purity requirements to reduce silt before discharge reaches the nearby creek. He acknowledged
that the mine has “probably been cited for this ten times or more. 20 times, since 1990 . . . from
probably around 2012 on, there seems to be a great excitement about trying to [c]ite this
particular escapeway.” Tr. 252-53. More significantly, Miller asserted that “[t]he escapeway is
adequate. It has been adequate for 30 years in case of an emergency. . . . there's never been an
issue. . . with unsafe travel for any reasons, including mud, silt, water or anything reported to the
operator about this particular area or on record.” Tr. 253. Miller therefore contended that the
escapeway was both safe and travelable. Id. Again, he contended that, when faced with a
citation, the mine really has no choice but to abate the condition, even if it disagrees with it,
believing there is no violation. Id. In contrast to Hagedorn’s testimony, Miller disputed the depth
of the water, noting that his boots are 12 inches high and that he has never had any “slop” go
over his boots, nor have any miners told him that the water was high or that water got in their
boots. Tr. 254. As to the S&S claim, Miller maintained the condition did not create any remote
possibility for hindering the removal of a miner in a dangerous situation. Id. He also challenged
10

De-watering refers to “pumps that are piped from a lower level of the mine that, in
turn, water is ditched out to exit the mine.” Tr. 243. Over the course of a year, hundreds of
gallons of water come into the mine, creating the need to pump that water out. Id.

39 FMSHRC Page 605

the inspector’s statement about the water’s depth. Tr. 255. MSHA’s proposed penalty was
$190.00.
Conclusion
The Secretary did not cross-examine Miller, nor offer additional testimony from the
inspector through re-direct. The violation was established. However, given the disputed
testimony about the water’s depth and the amount of mud under foot, the Court concludes that it
was not established that there was a reasonable likelihood that the hazard contributed to will
result in an injury. Therefore the S&S designation was incorrect.11 The Court finds that, given
these determinations, a civil penalty of $100.00 (one hundred dollars) is appropriate.
WEST 2016-0071

Plumbago Mine

Citation No. 8873835
Citation No. 8873835 alleged a violation of 30 C.F.R. §57.5037(a)(2). In relevant part
the cited section provides:
(a) In all mines at least one sample shall be taken in exhaust mine air by a
competent person to determine if concentrations of radon daughters are present.
… (2) Where uranium is not mined - when radon daughter concentrations
between 0.1 and 0.3 WL are found in an active working area, radon daughter
concentration measurements representative of worker's breathing zone shall be
determined at least every 3 months at random times until such time as the radon
daughter concentrations in that area are below 0.1 WL, and annually thereafter. If
concentrations of radon daughters are found in excess of 0.3 WL in an active
working area radon daughter concentrations thereafter shall be determined at least

11

A violation of the Act is significant and substantial (“S&S”) if it is of “such nature as
could significantly and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.” 30 U.S.C. § 814(d). It is proper to apply this designation when the facts
surrounding the violation demonstrate a reasonable likelihood that the hazard contributed to by
the violation “will result in an illness or injury of a reasonably serious nature.” Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822,815 (Apr. 1981). In Mathies Coal Co., the Commission has
explained that, “In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of
danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)
(footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995);
Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria).

39 FMSHRC Page 606

weekly in that working area until such time as the weekly determinations in that
area have been 0.3 WL or less for 5 consecutive weeks.
30 C.F.R. § 57.5037(a)(2).
Inspector Rogers first testified about Citation No. 8873835, which was issued on August
26, 2015. GX 23. However, that citation was not issued by Rogers, but rather by Inspector
Steven Hagedorn. Tr. 113. Rogers’ testimony was to lay a foundation for subsequent testimony
on that citation. Rogers stated that, while at the Plumbago mine in May 2015, he did radon gas
and other sampling, such as for dust and noise. Tr. 114. MSHA does radon sampling at every
underground mine once a year. Id. Though MSHA has a protocol to follow when performing
radon sampling, Rogers did not follow it at that time. Tr. 117. Anticipating that there would be
no radon hazard issue, he simply did a random sample. That evening, upon doing the necessary
calculations from the results, he found a radon level which was much higher than he anticipated.
Tr. 117-18. Consequently, he informed the miners at Plumbago of those results and he returned
less than a week later, this time taking six samples. His highest sample reading was 0.275. Tr.
119. Such a reading is too high a radon level and it triggers certain actions under the standard.
Tr. 121. Rogers stated that such a reading requires a mine to take quarterly samples until the
reading is below 0.1. Id. Next, because of the readings he found, Rogers issued a compliance
assistance visit notice, (“CAV”), dated May 7, 2015. Exhibit GX 25 is the CAV notice Rogers
issued. Tr. 122. At that point in time, no citations were issued. Id. However, the radon findings
did trigger certain obligations on the part of the mine. Id. Exhibit GX 25 also reflects the sample
results that concerned Rogers. Tr. 125.
Rogers made suggestions as to how the mine could come into compliance regarding the
radon levels. Tr. 128-29. It was his impression that, after speaking with Miller and his
administrative assistant, Ms. Bell, that they understood what had to be done to address the
elevated results. Tr. 129.
Upon cross-examination, Miller acknowledged that the inspector was trying to help the
mine deal with the issue. Tr. 131. Rogers’ additional testing occurred on May 12th. Tr. 136.
Those subsequent tests confirmed the first tests he had done, in that the radon levels were too
high. The Court discerned that Miller incorrectly thought that Rogers’ initial tests, on May 7th,
were the trigger date for his action. That is incorrect. Rogers, concerned about the reliability of
his first tests, asked for permission from his office to return to the mine and conduct the tests
anew. Tr. 139.
Miller challenged the accuracy of the readings. Tr. 151. He also maintained that he was
never notified of the May 12th results, and consequently not informed that the mine needed to
take further action. Tr. 140. The Court acknowledged this concern, stating, “All right. Well, the
government will have to show at some point that [MSHA] notified Plumbago Mine about these
results and that [those results] triggered subsequent action by Inspector Hagedorn.” Tr. 140. The
Secretary acknowledged it had to show that. Id.
Regrettably, MSHA backdated, to May 7th, instead of the operative date of May 12th, its
notice that the Plumbago mine had elevated levels of Radon 222 and that the mine would then be

39 FMSHRC Page 607

required to take quarterly radon sampling. Tr. 142. As Rogers conceded, MSHA’s determination
that radon levels were elevated was based only on his second testing for radon, which occurred
on May 12th. Id. Rogers confirmed that he first told Miller and Ms. Bell about the need for
quarterly testing after he conducted his second set of tests. Tr. 142-43. That conversation by
Rogers with Bell occurred on May 12th. At that time he explained that he had a sample level for
radon at 0.275 working level (“WL”). Tr. 148. Following that, Rogers spoke with the miners,
exploring with them methods to increase the ventilation, as that is the best way to reduce the
radon levels. Tr. 148. Rogers also affirmed that on May 12th, he did deliver to Bell the highest
radon level result he found. Tr. 149. In terms of informing the mine of all the radon results,
Rogers stated he “held a closeout at the mine on [May 28, 2015] with Mr. Miller, where [he]
explained [his] sampling, and sampling procedures.” Tr. 150. He stated that Miller believed the
inspector’s conclusion was based on only one sample, but Rogers advised that he returned to the
mine and took more samples on May 12th and he explained those results to Miller. Id. It was
after that explanation that Rogers then issued his CAV notice, which was misleadingly dated
May 7th, but actually stemmed from Rogers’ May 12th testing results. Id. However, Rogers
could not recall if he gave the mine his May 12th testing results when he held his May 28th
closeout conference. Tr. 151. Shortly after that remark, Rogers stated “we are not allowed to give
that information out anymore.” Id.
MSHA inspector Steven Hagedorn then testified for the Secretary. Tr. 152. Hagedorn has
been an MSHA inspector since December 1998. Tr. 154; GX 23. On August 26, 2015 Hagedorn,
though technically inspecting the Plumbago Mine, was physically at the Sixteen to One’s office.
Tr. 160. On that date he issued Citation No. 8873835, citing 30 C.F.R. § 57.5037(a)(2). Tr. 162.
He stated that the citation’s issuance occurred because “there had been some previous
enforcement activity that radon was determined to require additional sampling by the mine
operator. And when it came to this -- this particular date and time [August 26, 2015], they had
not done any.” Tr. 160. On that August 26th date Hagedorn inquired if the mine had done any
radon sampling and was informed by Ms. Bell that they had not. Tr. 161. Bell explained that the
mine was trying to do this while facing a financial hardship over the expense of such sampling.
Tr. 162. As noted, this exchange occurred at the Sixteen to One mine, not the Plumbago mine,
because the Sixteen to One serves as an “umbrella” for the two mines. Tr. 161.
Hagedorn stated that the standard he cited, 30 C.F.R. § 57.5037(a)(2), requires “[t]hat the
mine operator conduct his independent sampling per at least once a year, or until he can
determine the proper ventilation to exhaust out the --the radon daughters themselves.” Tr. 162.
Hagedorn then refined his answer, stating that the mine had to determine “whether they needed
to sample, at least come to a conclusion of what the -- the contaminant was. Or what the -- the
elevation of the contaminant. How serious it was.” Tr. 163. Further, it was his understanding that
this required quarterly testing. Id. As he expressed it, the citation was issued because it was his
“understanding they were supposed to do sampling to determine whether they needed to
establish a schedule, and they hadn't done it. And by not doing it, that’s what triggered the
issuance of the citation.” Tr. 163-64. He listed the gravity as unlikely because the miners had
been primarily working at the Sixteen to One mine, not at the Plumbago mine. Tr. 164. Another
consideration was that the mine has considerable natural ventilation. Id. However, he marked the
injury or illness as fatal, because of the inherent dangers of exposure to radon. Tr. 165.
Negligence was marked as low because to the inspector, “it sounded like there was a lot of

39 FMSHRC Page 608

confusion between MSHA and Mr. Miller and the people involved of coordinating, and they did
have -- they had considerable mitigating circumstances on the amount of effort that they put into
acquiring somebody to do the testing.” Tr. 166.
Hagedorn also stated that there was “some confusion, actually, between the agency, and
… Mr. Miller, that he -- the requirement -- was he required or was he not required?” Tr. 166-67.
The inspector supported the idea that MSHA could assist and do some testing, “because we do it
for other people for dust and noise.” Tr. 167. To make sure it understood the inspector’s view,
that MSHA could have helped the mine with the issue, the Court inquired, “But you are telling
me that based on your experience as an MSHA inspector, that you have seen MSHA cooperate
and go out and do this testing that . . . that Plumbago requested, but didn't get?” The inspector
affirmed that was his statement, qualifying it only by noting that previous assistance had been for
dust and noise. Tr. 167-68.
Miller was of the view that MSHA didn’t have to issue the citation when it did; that it had
other options. The Court noted that the citation’s abatement was extended twice. Tr. 172. The
Secretary stated that, to the best of its knowledge, the citation was abated and, following that, a
civil penalty of $100.00 (one hundred dollars) was proposed. Tr. 173. The Secretary stipulated
that the violation was properly terminated and that no 104(b) order was issued. Id. In terms of the
“fatal” designation, the inspector maintained his earlier testimony, analogizing the gravity to
radon in basement homes in New York. Tr. 174. The inspector has never actually been inside the
Plumbago Mine, at least underground. However, he did measure the air velocity emanating from
the mine, at a portal, with that velocity recorded at 21 miles per hour. Tr. 175.
When Mr. Miller testified about this citation in response to the Court’s inquiry as to how
it was abated, Miller stated,
On July 16th the notification came for this need to do it, on – something on CAV
approximately May 28th. It was presented to Rae Bell. Rae Bell is corporate
secretary and also does handle the paperwork. . . . [Miller] turned this whole issue
over to Rae Bell, who is competent to do -- to handle these types of situations.
She had numerous conversations with [MSHA] . . . asking for help.
Tr. 178-79.
Miller’s point was that there was communication confusion about the whole matter and
what the mine was obligated to do, stating, “we were in serious communications about how to
resolve a problem.” Tr. 179. However, Miller ultimately did not know how the violation was
abated. Tr. 180. According to Miller, they were unable to find a company that could do the
testing and it then “[s]ent a letter asking, begging, for some help from MSHA.” Tr. 180.
However, the mine subsequently did find a company to do the testing, at a cost of $1,720.00.
Miller’s version of the events continued, as he then asserted that Rogers informed him that the
mine was “within the threshold of not needing to continue this.” Tr. 181 (emphasis added). As
noted, ultimately Respondent paid to have the testing performed and from those results it was
determined that the mine was within the threshold, meaning by that description that the radon
levels were within the permissible limits. Id. Inspector Hagedorn confirmed Miller’s recounting.

39 FMSHRC Page 609

That is, upon receiving the test results, MSHA accepted them and terminated the citation. Tr.
182. Upon learning of these events, the Court inquired if the Secretary wished to vacate the
citation, but Counsel responded that she was without authority to do that. Tr. 183. With regard to
this suggestion, the Court also commented, “there are some issues here that make for
troublesome resolution of this case, including testimony from your own witness, that MSHA has
acted inconsistently. Cooperated, and helped other mines, but for some reason didn't want to help
this mine.” Tr. 183-84.
Testimony on this citation concluded with Miller’s statement that he did not feel “fatal”
was an accurate designation, as the dosage and duration were insufficient and the inspector’s
New York analogy was not apt. His view was that even lost work days was an incorrect
designation. Tr. 184-85. MSHA’s proposed penalty for this citation was $100.00.
Conclusion
It must be kept in mind that the mine was cited for an alleged violation of subsection
(a)(2) of standard 30 C.F.R. §57.5037. Accordingly, such a violation is based upon an alleged
failure to perform a procedure, not on the radon results themselves. One does not arrive at the
requirements of (a)(2) until, per subsection (a), there has been “at least one sample … taken in
exhaust mine air by a competent person to determine if concentrations of radon daughters are
present. After that, the standard differentiates between mines where uranium is being mined and
those mines, such as the Plumbago Mine, where uranium is not mined.12
However, there was testimony from the inspector that MSHA is to assist in conducting
such testing. That assistance didn’t happen here and no reason for that failure to assist was
presented. Upon consideration, the Court concludes that this Citation must be DISMISSED.
This determination is based on the questionable results of the radon testing, the inadequate
communication to the mine about the results MSHA was relying upon, and most importantly,
MSHA’s failure to assist the mine in conducting the testing required under subsection (a)(2). In
addition, while technically not part of the analysis in determining whether a violation occurred, it
cannot be ignored, as an equitable consideration, that the citation was abated, and that it was
achieved without the mine having to make changes to its ventilation. Instead, on this record, the
mine came into compliance by doing nothing, other than expending funds for an outside
contractor to perform testing, the results of which apparently showed that the radon levels fell
outside of the requirements of 30 C.F.R. §57.5037(a)(2).

12

Standard 30 C.F.R. §57.5037(a)(2) provides, in relevant part, that “[w]here uranium is
not mined - when radon daughter concentrations between 0.1 and 0.3 WL are found in an active
working area, radon daughter concentration measurements representative of worker's breathing
zone shall be determined at least every 3 months at random times until such time as the radon
daughter concentrations in that area are below 0.1 WL, and annually thereafter.”

39 FMSHRC Page 610

WEST 2016-0149
Citation No. 8873833 Sixteen to One Mine
Citation No. 8873833 cited 30 C.F.R. § 57.3360. That standard, titled, “Ground support
use,” provides:
Ground support shall be used where ground conditions, or mining experience in
similar ground conditions in the mine, indicate that it is necessary. When ground
support is necessary, the support system shall be designed, installed, and
maintained to control the ground in places where persons work or travel in
performing their assigned tasks. Damaged, loosened, or dislodged timber use[d]
for ground support which creates a hazard to persons shall be repaired or replaced
prior to any work or travel in the affected area.
30 C.F.R. § 57.3360.
The testimony for this citation began discordantly, with the inspector vaguely referring to
the alleged violation,13 as if the condition and violation had already been discussed, referring to a
photograph and a “cross-member that had been put in place to … substantiate ground [sic].” Tr.
256-58; GX 26. Agreeing with the remark of an MSHA trainee who was accompanying him, that
the member looked like it was breaking, Hagedorn added that they then went through the mine,
observing numerous timbers that were buckling. Tr. 258. The inspector’s worry was that during
blasting, the tremors produced could cause the timbers to fail. Id. In his view, any little event
could cause the timbers to fail and thereby not supporting the integrity of the roof. Tr. 259.
Finally, the inspector was directed to the essence of his claim – decayed timbers. Tr. 260.
In the area cited, throughout the 800 level, he stated observing about 40 decayed timbers. Id. The
cited standard addresses ground support and hazards created by a failure of such support. Id.
Hagendorn could not predict when the hazard, failure of the timbers, would occur, but stated that
at some point they would fail. Tr. 261. What will ensue from a failure cannot be stated with
certainty either, as it could involve only splintering of a timber but there could also be a slab
coming out. Id. For there to be an injury, such a failure would also have to accompany the
misfortune of a miner traveling the location when the event occurred.
In terms of negligence, which the inspector designated as moderate, Hagedorn admitted
that the mine had areas where additional timbering or stays had been installed. He also conceded
13

Asked why he issued the citation, Hagedorn stated, “Well, it was one of them [sic]
moments where my [MSHA] trainee, Julie Hooker, goes, ‘Are these really supposed to look like
this?’” Tr. 257. He responded that they were not, and then added that they “started seeing that
it's not just one, that it was multiples.” Id. Adding to his introductory statements about the reason
for issuing the citation, Hagedorn continued that Miller informed him “that he was trying to
preserve the historical portion of the mine and maintain the historical look.” Id. Hagedorn
responded that the standard doesn’t allow for such an exception, advising “[y]ou need to, when
they fail, you remove them and/or replace or re -- re-establish a competent support mechanism.”
Id.

39 FMSHRC Page 611

that leaving in the original timbers was consistent with the mine’s attempt to maintain the
historical appearance of the mine. Tr. 263. The Court then noted that the citation was issued on
August 18th, with four extensions issued thereafter, and an acknowledgement that “[t]here has
been a great deal of effort by the mine operator to correct the conditions.” Tr. 264.
Upon cross-examination, Miller inquired about the inspector’s knowledge of rock
mechanics and blasting and other questions, aimed at learning about the extent of his knowledge
on those issues. Tr. 265-70. In the Court’s view, the inspector demonstrated adequate general
background knowledge as well as sufficient particular knowledge about the support issues for the
photos he took.
Mr. Miller testified about this citation as well, asserting first that there was no danger to
miners. Tr. 271. He then acknowledged the intent to preserve, for historical purposes, as much of
the mine’s historical appearance as possible. Tr. 272-73. More importantly, Miller asserted that if
any of these older timbers needed additional support, such support has been and continues to be,
installed. Tr. 273. He challenged the inspector’s assertion that the timbers could collapse from
the weight on them, as inaccurate observations and conclusions. Id. To begin, he asserted there
was no weight of any ore, as any ore would have been removed. Tr. 273-74. As an example,
referring to a photograph in Exhibit GX 28, he agreed there was a bow depicted, but that the bow
was not due to ground support issues, but rather because it was holding up electrical wires. In
that instance, the timber was removed, but nothing was installed in its place. Tr. 274. Several
other timbers, he asserted, were for the purpose of holding up utilities. Id. Further, at the cited
level, the 800, there is no blasting, no ore, nor headings that they are working. Id. However,
seemingly contradicting himself, Miller added that the old timbers “are the evidence to the
miners and to our entire operation of if there is any more stress that’s coming on those areas, if
they are already bowed, every person that works in that mine is very, very well aware of when
they walk through and they see things.” Tr. 275.
Challenging the breadth of the inspector’s knowledge about timbering, Miller stated,
A timber man can look at the wedges and see whether they are under
compression. They can look to see if a wedge that goes in the top of one of these,
as long as that wedge is still in there like that, it's not under any type of
compression. Because if the compression is continuing, especially when they are
rotten, the other part of the wedge will fall out and the existing wedge will still be
there. If we saw something like that, we’d know that that particular timber is still
under compression.
Tr. 276.
In addition, regarding the inspector’s statement that some 40 places needed ground
support, Miller stated that another MSHA official, when advised why some timbers remained,
told him to “just take some of them out,” inferring that, while unnecessary, removing some
would placate the inspector. Tr. 277. As to the inspector’s claim that some tremor elsewhere in
the mine could cause such timbers to fall, Miller asserted that none of the timbers fell out, even
after earthquakes in the area. Id.

39 FMSHRC Page 612

With these counter-contentions in mind, Miller challenged the inspector’s S&S
designation, especially considering how long those timbers have been present and the many
preceding inspections when no support issue had been claimed by MSHA. Miller characterized
the inspector’s knowledge as an example of the gulf between book learning and real world
experience. Tr. 277. He noted that the mine has plenty of timber and installs it, when needed.
Essentially, Miller was contending that his experience and expertise, along with that of his
seasoned miner employees, ensures that, per the cited standard, in fact ground support is used
where ground conditions or mining experience in similar ground conditions in the mines
indicates it is necessary. Tr. 280. Given that, Miller maintained, “That there is no place on the
800 level where it would be necessary to put a timber in that there is not a timber, a steel set, or
rock bolts in there.” Tr. 280-81.
Accordingly, Miller summed up that,
[t]his is not a valid citation in the eyes of a person that would truly be qualified to
come in and do ground support evaluation. If that were true, we would have had
40 citations, or we would have been doing this five years ago, eight years, or 10
years ago, when finally MSHA brought somebody from Kentucky or someplace
that had had some ground support experience. … It does not create a hazard to
anybody in the mine, and there was no liability, there was no negligence. No one
could have been hurt.
Tr. 282.
The Secretary had no cross-examination of Miller, nor further questions of Hagedorn. Tr.
283. The Court then asked some questions of the inspector, inquiring if it was his opinion that
any of the timbers that are depicted in Exhibit GX 28, photo 2 of 16, were damaged, loosened, or
dislodged. Tr. 283. The inspector responded that he saw damaged timber. Tr. 284. However,
when asked if believed that the timber depicted in 2 of 16 was used for ground support, the
inspector answered, “[i]t was not.” Id. He said instead, that it was used to support a wall, until
what was on the back side of the wall was stabilized. Tr. 285. Asked if consider such a condition
as ground support, Hagedorn answered he “would consider it for support of the wall that's
supporting the ground behind it.” Id. Noting that the standard talks about timber used for ground
support, the inspector seemed to equivocate, stating,
They had did some ground support at the other -- at the other end of this, and this
was in place to support the ground that they had -- they did backfill, and if it
wasn't for this supporting the wall to support the backfill, it would just ooze out
into the travelway.
Tr. 285-86.
Regarding photo 3 of 16, the inspector stated that, for that one, there definitely was
timber used for ground support, stating that the “peeled log” was “specifically a roof back
support.” Tr. 286. He affirmed that it was damaged and used for roof support. Tr. 287. Next,
addressing photo 4 of 16, the inspector stated that timber was damaged, through decay and rot

39 FMSHRC Page 613

and that its integrity was gone. Id. He added that for solid timber one could drive a screwdriver
only an eighth (1/8th ) of an inch into it, whereas for this timber the screwdriver would penetrate
2 inches. Id. When asked how he knew that it was actually serving as a support, as opposed to
just being there, the inspector’s response was again, in the Court’s estimation, vague.14
When asked by the Court whether there was “other timber there that was, apart from this
timber taking weight, that was providing adequate ground support apart from the one [the
inspector] took a picture of . . . [that is to say] [w]as there other nearby timber that was
supporting the ground, irrespective of the condition of this,” the inspector responded, “Yes.” Tr.
289. The inspector did not know, if that timber were removed, whether the remaining timbers
would support the roof. Tr. 290.
As for photo 6 of 16, the inspector stated that he considered that timber to be damaged
and that it provided ground support in that area. Id. In support of that view, he stated that the
timber was wedged at the top. Tr. 291.
Addressing photo 7 of 16, the Court noted that the timber appeared to be kicking out,
presenting a V shape. The inspector asserted that the timber was damaged and that it was used
for ground support. Id. Nevertheless, the Court noted that it looked like,
on either side of that, that there is steel or some other support. . . .[prompting the
question whether] that timber kicking out [was] superfluous? In other words, was
there adequate ground support by what appears to be on either side of it . . . [as it]
appears to be some sort of ground support which is there besides this timber that's
kicking out.
Tr. 291-92.
Hagedorn responded that the Court was correct and on point. He then informed about the
use of arch sets to maintain ground stability and prevent a failure from occurring. Tr. 292.
Clearing up a miscommunication between the Court and the witness, the Court asked again
whether, given the presence of the arch supports, the timber kicking out did not matter. The
inspector agreed with the Court’s description, prompting it to ask how there could be a violation,
given the arch sets.
The explanation offered by the inspector was that,
the condition of the timber is what's creating a hazard to the person that would be
in the -- as it becomes a projectile. That's the arch supports are put in to support
because the timber has failed. The timber -- the timber has little to -- it's
14

The inspector stated, “The -- it was -- there was another stope where they had angled
the stope and there was a different strata there where you could see one – a contact. Where the -where the contact occurs, typically that's where the gold is defined or where it's deposited. So
once they peel that away, that back is -- now needs to be maintained. So you don't have it come
down. … And by it bowing, gives me the indication that it's either upheaval or it's being
compressed from either top or bottom. For some -- some reason, it's being compressed.” Tr. 288.

39 FMSHRC Page 614

completely lost its competency. So by the timber remaining there, a person
traveling through there, should that fail at the time that they are traveling by
having it come out into the travelway would expose a person to the impact of it
buckling.
Tr. 294.
In short, the inspector’s concern was not directly with ground support but with the claim
that the timber could splinter and become a projectile. Id. The response perplexed the Court, as
the inspector testified that the timber was no longer used for ground support and the concern
raised by the inspector was quite different, namely if this timber were to collapse, then someone
walking by might be injured if that happened. The Court commented that the concern the
inspector raised is not what the standard addresses, because damaged timber has to also be used
for ground support. Tr. 294-95. The inspector responded “that’s entirely accurate.” Tr. 295. The
Court then expressed its doubts whether, in that instance, there was an established violation. Id.
Next was photo 8 of 16. The inspector informed that the vertically-placed wood, that
appears to be spread out at the top, are wedges. Tr. 296. Hagedorn stated that he considered that
timber to be damaged, based on its “discoloration of its separating.” Tr. 296. He added that it had
lost its competency and was failing. Id. He determined that the timber was used for ground
support based on the two different strata. Where that exists, he asserted, one should support that
as “there is usually a strata on the other side of it.” Tr. 297.
The Court concluded its questions about the citation and the Secretary advised that it had
no further questions to ask. Mr. Miller then testified additionally about the matters. He began
with photo eight of 16, stating that the wedges were critical to understanding the situation of the
ground in this particular location, asserting that they had no effect on the ground control. As to
the strata, as mentioned by the inspector, Miller asserted that that came in more than 120 million
years ago and that the strata has done a lot of moving over the years. Tr. 298. Miller agreed that
the timber was damaged, but that it was not used for ground support. Tr. 299. At one time, Miller
stated, it was used for ground support, and many old mines simply leave the support there after
they are done working the area. Id. . Miller added that the support was likely installed there as a
safety measure when miners were actually working in that area. He maintained that one could
remove the old timber and nothing would happen. Tr. 300.
Photo 2 of 16 was next discussed. Miller stated that the photo showed damaged timber,
but that the damage was not sufficiently damaged to require its removal, because it was not
cracking but instead had a bend. Tr. 302. However, Miller added that the timber was not then
used for ground support . Id.
Photo 3 of 16, Miller asserted, was similarly not used for ground support. Tr. 303. As for
photo 4 of 16, Miller agreed that the timber in that photo was rotten and damaged. Id. However,
critically to the issue of the citation, he stated that it also was not used for ground support. Tr.
304. Miller added that sometimes timbers may be installed during the construction phase of a
mine, but never intended for ground support. As one example, a timber may appear to be near a
stope but that doesn’t mean it was used for ground support. Instead the timber may be used to

39 FMSHRC Page 615

hold up a chute. Tr. 304-05. He added that photo 6 of 16 is the same situation. While he
conceded that the timber was damaged, it is not taking any weight and accordingly not used for
ground support. Tr. 305. As for photo 7 of 16, Miller stated that the inspector’s observations
were incorrect because it had no effect on safety and that it was more akin to what one might
find in a Disneyland display. Id. Accordingly, Miller agreed that it was his position that none of
cited timbers were used for ground support at the time of the inspection. Id.
Conclusion
Upon consideration of the record testimony for this citation and taking into account that
the Secretary neither cross-examined Miller, nor sought additional testimony from the inspector,
following Miller’s testimony and the Court’s questions of the inspector, the Court concludes that
the Secretary failed to meet its burden of proof on the critical question of whether the cited
locations were in fact used for ground support. Accordingly, this citation, for which a $224.00
penalty was proposed, is DISMISSED.
WEST 2016 183
Citation No. 8873843
Citation No. 8873843, invokes 30 C.F.R. § 56.4402, titled, “Safety can use.” It provides,
“Small quantities of flammable liquids drawn from storage shall be kept in safety cans labeled to
indicate the contents.” 30 C.F.R. § 56.4402.
At the start of the second day of the hearing, Miller stated that he stipulated to the fact of
violation for this citation as well as to unlikely designation for gravity, the high negligence and
to the permanently disabling designations. Tr. 314; GX 29. Except for Miller’s across the board
assertion concerning the proposed penalties’ impact on the mine’s ability to stay in business, he
accepted the proposed assessment of $138.00 (one hundred and thirty-eight dollars). Tr. 314-15.
Citation No. 8873844
Citation No. 8873844 alleges a violation of 30 C.F.R. §56.12002. GX 32. That standard,
titled, “Controls and switches,” provides “Electric equipment and circuits shall be provided with
switches or other controls. Such switches or controls shall be of approved design and
construction and shall be properly installed.” 30 C.F.R. § 56.12002.
The Court noted for the record that this involved a 104(a) citation, which alleged a table
saw with a 7.5 horsepower electric motor that it is being energized with a blade type safety
switch and which is out of compliance with the national electrical code. Tr. 315. Before any
testimony on the citation, Miller stated that he accepted the inspector’s observations, but still
challenged his conclusions. Tr. 316. Miller contended that the inspector missed that the saw was
grounded, making the condition not a violation. Id.

39 FMSHRC Page 616

Inspector Hagedorn then testified, stating,
after interviewing the people that were in the area [he]came up to the conclusion
that they were starting and stopping the saw by using the disconnect, and anything
over 1 horsepower is to be gone through a motor starter because these specific
disconnects aren't designed to open under load or close under load.
Tr. 317
He added that “the arcing that takes place during the starting and stopping is one of the
reasons why [one] horsepower or less is allowed to be done in this manner [but] [a]nything over
[one] horsepower has to have what is called a magnetic motor starter.” Tr. 317. The inspector
agreed that the disconnecting method he observed was “basically” pulling the plug out. Tr. 318.
The inspector described the method an employee would use to disconnect the table saw,
by referring to a cover which, when closed, has an accessible lever. If one pulls the lever down
that action opens the disconnect and thereby de-energizes the circuit. If one pushes the lever up,
to the closed position, the circuit is energized. The inspector agreed that the problem with using
that method is that the motor is too powerful. Tr. 319-20. Instead, the inspector stated, the mine
should’ve used a motor starter that incorporated a magnetic push button process. As an example,
Hagedorn stated that a nearby air compressor had such an arrangement. Tr. 320. He marked the
gravity of the condition as unlikely to cause an injury, but employed odd reasoning to support
that conclusion, stating that he knew it “could be an expensive citation.” Tr. 322 That
inappropriate consideration caused him to be “generous” in his evaluation. Id. In fact, he then
agreed that he could have marked it as “reasonably likely.” Id. Hagedorn contended that the saw
was an entirely metallic structure which therefore could become an energized appliance as it
didn’t have a dedicated path to ground. Tr. 322-23. The result, he asserted, was that the whole
appliance can be energized. Body contact in that situation exposes one to possible electrocution.
Tr. 323. For negligence, he marked the citation as moderate because, though antiquated, such an
arrangement was once common. Tr. 324-25. The proposed penalty was $100.00. Tr. 326.
On cross-examination, the inspector stated that he had conversations with mine
employees as well as with Miller, on the issue of whether disconnects can be a means of starting
and stopping such a device. Id. While the inspector referred to what he believed was evidence of
an arc flash, he could not state when it occurred. Tr. 327. Although the standard itself does not
state that a 7.5 horsepower engine requires a magnetic or a push button starter, the inspector
maintained that the national electric code provides guidelines as to the proper installation of such
a circuit. Id. The saw was located above ground. Tr. 328.
Miller began his testimony for this citation by introducing Ex. R-7, which was another
declaration. Tr. 328. The Secretary objected to the exhibit, on the same grounds as its objections
to other exhibits (R 6 and R 8) offered at the hearing, on the basis of timeliness and a lack of
foundation. Tr. 329. While this and the other exhibits of the Respondent were admitted, the
Court reserved judgment on the issue of the weight it would afford them. Tr. 328-29. Miller
stated that the saw had been on the mine property for over 20 years, yet it had never been cited
before. Tr. 329. Miller added that a 7.5 horsepower motor is “not a big deal” and asserted that the

39 FMSHRC Page 617

saw was grounded. Tr. 330-31. Pointing to Exhibit GX 34, photo 4 of 4, he maintained that it
shows it was grounded. Tr. 330. Essentially, Miller asserted that the inspector’s claim about the
harm that could ensue amounted to “speculations” and “fabrications.” Id. He agreed that the
equipment is dangerous, because one must handle wedges properly, but it does not present a
hazard of electrocution. Id. Again, the Secretary elected not to cross-examine Mr. Miller. Tr.
333.
The Court then asked the inspector, if it were assumed that the saw was in fact grounded,
whether he would still have issued this citation, he responded, a different standard would need to
be cited. Tr. 333. Apparently, in that circumstance, he would have cited 30 C.F.R. 56.12028,
pertaining to the requirement for grounding continuity testing. Of course, that standard was not
cited and the key part of his answer was “no” he would not have issued the citation if the saw
was grounded. The Court inquired further, in an attempt for a clearer response, asking, “was it an
essential finding of yours that this table saw was not properly grounded?” Tr. 332. The inspector
then seemed to recant his previous answer, this time stating that he wasn’t “going by it wasn't
properly installed.” Tr. 334. He added that he did not conduct the specific test to determine
grounding, and therefore that his citation was based on the saw not being properly installed. Id.
Asked the basis for the “not properly installed” assertion, he responded, it was because “[t]hey
were using the disconnects as a means of starting and stopping the saw.” Id.
As noted, the cited standard requires that “electric equipment and circuits shall be
provided with switches or other controls.” 30 C.F.R. § 56.12002. The inspector’s comments to
the citation, as reflected in the photographs which were introduced in support of it, show that the
inspector’s concern was a “[p]ower source without any dedicated grounding conductor.” GX 34
(photo 2 of 4). Instead, as per Exhibit GX 34, Photo 3 of 4, a separate safety switch was being
used to energize the table saw. The final photo for this citation records that “[t]he table saws [sic]
safety switch has been tagged out.” GX 34-4.
Conclusion
The problem with the Secretary’s evidence for this citation is that it did not demonstrate
that the switch that was present ran afoul of the standard. The standard only requires that electric
equipment be provided with switches. Here, per Photo 4 of 4, the table saw had a switch, as the
inspector noted in the text accompanying the photo. That photo is informative because it shows
the cover the inspector referenced in his testimony and the switch which one uses when the cover
is closed. However, the inspector did not explain, other than a vague reference that the national
electric code provides guidelines as to the proper installation of such a circuit and the assertion
that the mine should’ve used a motor starter that incorporated a magnetic push button process, to
(one will pardon the expression) “connect” the standard to such a requirement. The Court
concluded that, per the wording employed in his citation, the inspector’s true concern was a lack
of grounding. Faced with Miller’s claim that the saw was grounded, the Secretary did not
challenge his testimony, nor recall the inspector to refute that claim. Further, the Secretary did
not establish that the switch which was associated with the table saw violated the standard.

39 FMSHRC Page 618

This is not to say that a violation could not have been established, but only that, in this
instance, due to insufficient proof or perhaps invoking the wrong standard, no violation was
demonstrated. Accordingly, the Court has no choice but to DISMISS this citation.
Citation No. 8873845
Citation No. 8873845 cited 30 C.F.R. § 56.20003(a). GX 35. That standard, titled,
“Housekeeping,” provides “[a]t all mining operations - (a) Workplaces, passageways,
storerooms, and service rooms shall be kept clean and orderly.” 30 C.F.R. § 56.20003(a).
Photos of the cited condition were taken. GX 37. The alleged violation was at the upper
shop behind a steel storage container. Tr. 337. The inspector stated that “the main structure
which had accumulated battery chargers, rheostat switch gear, and passageways was -- to
meander through there you would have to negotiate all the different trip and stumble conditions. .
. . it was just haphazardly stored. Wherever it hit the ground that’s where it stayed.” Tr. 337-38.
Exhibit GX 37, Photo 5 of 7 shows
inside a shipping container that typically you would see the oversea shipping
container sort of scenario that had a steel rack in it and there was a considerable
amount of material out in front of the steel rack itself and going on in there it
didn’t have a clear passageway if you were carrying anything in your hands and it
was obstructing your view to where your footing was, which also creates a poor
footing or trip, slip and fall hazard.
Tr. 338.
In contrast, Exhibit GX 37, photo 6 of 7 reflects a scene after some of the clean-up was
done. GX 37-6.
The inspector stated that each photo, from Photo 2 of 7 through 5 of 7 are all separate
areas up around the upper shop but that he grouped them, so that multiple citations were not
issued for the area. Tr. 339. Miners access these areas if they need supplies. Id. Among his
findings, the inspector listed the negligence as moderate because there had been some “slight
clean-up” from when he was last there. Tr. 342. He toyed with marking the negligence as high,
because the condition should be corrected immediately, not with a “when we get to it” approach.
Still, he recognized the mine “had a turnover of personnel, there was a limitation of miners
availability, and they do have to do their job to make their living and that is gold mining and not
housekeeping, but it is part of the mining process.” Tr. 342. Two examples of the cited
conditions are the before and after photos in Exhibit GX 37, photo 2 of 7 (before) and photo 4 of
7 (after) and with photo 3 of 7 (before) and photo 7 of 7 (after). Tr. 345.
Mr. Miller testified that the upper shop, referenced by the inspector, “had basically been
abandoned for years” but around August they moved to the upper shop. Tr. 348. However, Miller
contended that these areas were storing junk and none of the areas were places where miners
would go to get things. Id. He contended that, when enough junk is stored in these areas, it is
taken to the dump for its scrap value. Tr. 349. Thus, he asserted, “[i]t's not a place where a miner

39 FMSHRC Page 619

is going to go in and trip and fall and have a slipping hazard,” adding that the inspector did not
appreciate its purpose. Id. In sum, Miller contended that none of the cited areas are “that place[s]
where goods are being stored so the miners can go in there and get them. That is absolutely one
hundred percent not true.” Tr. 350. Miller advised that to abate the citation they simply,
moved the junk out to a different place. We had to get equipment to do it. We had
to put it into trucks and we moved it someplace obviously where our other junk
piles were that were sitting out there with metal that could get rained on. I guess
the positive thing is we made more space to store things, but we didn't need it.
Id.
Conclusion
In the Court’s estimation, the problem with this citation, as with numerous other citations
which were the subject of this hearing, was the Secretary’s failure to meet its burden of proof.
The standard invoked pertains to “[w]orkplaces, passageways, storerooms, and service rooms,”
but the Secretary did not establish, following Miller’s testimony, that the cited areas fell into any
of the standard’s categories. 30 C.F.R. § 56.20003(a). Perhaps the applicability could have been
demonstrated, but in light of the Secretary’s failure to recall the inspector and the decision not to
cross-examine Miller, the Court has no choice but to DISMISS this citation.
Citation No. 8873846
For Citation No. 8873846, GX 38, the inspector again cited standard 30 C.F.R.
§57.11001, “Safe access,” which, as noted above, provides that a safe means of access shall be
provided and maintained to all working places.
The condition was observed on the 1076 level, and involved a ladder where the inspector
observed persons walking down the ladder, which he noted was not a safe way to descend it. As
he viewed the practice, there was a risk in coming down it, as if it were as set of stairs, which
created the possibility of “slipping off and coming between the rungs.” Tr. 353. Thus, the
essence of the violation was employees were using the ladder as stairs. Tr. 356. The Court then
inquired how the inspector would want this abated in order to achieve a safe means of access;
changing the ladder itself or changing the method used to descend it. The inspector answered that
his concern was “the culture” of the way the ladder was used when descending. Tr. 357. The
inspector admitted there was nothing wrong with the ladder itself. Tr. 358. In fact, the inspector
admitted that if the miners were ascending and descending the ladder facing towards the rungs,
he would not have issued the citation. Id.
Attempting to resuscitate the citation, Counsel for the Secretary pointed to language in
the citation itself that stated the ladder was twisted, bent and distorted. Tr. 359. The inspector
tried to explain the contradiction with his earlier testimony, stating, “This was one section of the
access. At the footing that doesn't show in this photo, and then where it transitioned to another -transition point is where the twisting, bending and distorted description comes into play.” Id.

39 FMSHRC Page 620

The inspector then stated his
understanding of [the court’s] question was to the -- facing the ladder or not
facing it coming down. I didn't take into consideration further up the entryway,
how they were actually accessing the compromised area. Then when the miner
elaborated that well, now we have handrails was another issue in which the
handrails is plural and that's not part of the – what we were talking about as safe
means of access. It was interactions of different –
Tr. 360.
The Court interrupted the prolix answer, informing that it was dismissing the citation.
Id. In taking that step, the Court notes that, moments before, the inspector was asked, “So what
specifically about this did you believe was unsafe?” The response was “[t]he possibility of
coming down it as you would a set of stairs and stepping or slipping off and coming between the
rungs. So it was a practice and the culture of the workforce on how I observed them traveling
that area.” Tr. 353.
Conclusion
Because the inspector clearing stated the basis for the alleged violation in his direct
testimony, and then attempted to contradict his own testimony, returning to the text of his
citation, to revise his answer, the Court must dismiss the citation as internally conflicted. It is
true that the citation does mention other issues, but it also notes “that miners shall have both
hands free when climbing and descending,” and it expresses that the ladder “was not improved
upon after active mining was started.” GX 38. These remarks in the citation support the
inspector’s initial remarks expressing his concern and there is no explanation as to how the safe
access requirement changed when the ladder was initially being used for exploration and
development and then to an “active mining area.” Id.
The initial basis for the citation’s issuance – the manner in which miners were using the
ladder – not the safety of the ladder itself, was an inapplicable reason to establish a violation of
the standard’s requirements. The citation is therefore DISMISSED.
Citation No. 8873848
Citation No. 8873848 cited 30 C.F.R. § 57.11002. That standard, titled, “Handrails and
toeboards,” provides: “Crossovers, elevated walkways, elevated ramps, and stairways shall be of
substantial construction, provided with handrails, and maintained in good condition. Where
necessary, toeboards shall be provided.” 30 C.F.R. § 57.11002.
This matter involved a set of stairs with no handrail. Tr. 362; GX 41. The stairs are
depicted in photo 2 of 3. GX 43. As noted, the standard requires handrails be provided on stairs.
The Citation added that “the construction of the steps are not equal in the tread and rise” and that
the first step has a 15 inch drop down, as opposed to an industry standard of 7 ½ inches. GX 41.

39 FMSHRC Page 621

In this instance, the stairs, which were made of concrete, had been present for “years and
years” with no report of an accident. Tr. 362-63. Because of that, the inspector marked the
citation as “unlikely” and the negligence as moderate. Id. The stairs consisted of three steps; the
next step brings one to the entrance door level. As the stairs had been that way for many years,
the inspector conceded that many previous inspections had not found it to be a violative
condition. Tr. 365. The Court, reading from the standard cited, asked if the sole issue was the
lack of handrails. The inspector agreed. Tr. 366. Thus, the 15 inch drop down was withdrawn as
part of the violation.
This makes sense, as the closest the standard comes to that issue would be the
“substantial construction” language, which on its face does not apply to tread and rise issues.
Upon hearing the inspector’s testimony and reviewing the photo of the stairs, the Court then
informed the parties that, given the long history of no prior inspector finding an issue with the
stairs, it could not justify a penalty of more than $10 (ten dollars). As the Court noted, “there’s a
history here.” Tr. 367.
Consistent with the Court’s remarks, Mr. Miller then testified, stating that, following the
citation, another inspector arrived for the abatement issue, telling Miller, “just do something.” Tr.
368. Miller advised that they “welded a pole that goes down [so that] . . . the door acted as a
handrail. Id. Miller believed that adding handrails made it more dangerous, because,
on those narrow stairs you're eliminating the box theory, so to speak, or whatever
you have to take in and out of there. If we are allowed to operate our own mines it
was in management and the miner's best interest … that there wasn't a handrail …
you're talking about something where it's a dangerous situation where someone
could fall off.
Tr. 370.
Conclusion
Accordingly, for the foregoing reasons, the citation is upheld and a civil penalty of
$10.00 (ten dollars) is imposed.
Citation No. 8873851
Citing 30 C.F.R. 57.4131(a), that standard is titled, “Surface fan installations and mine
openings.” It provides at subsection (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.” 30 C.F.R. § 57.4131(a).
The inspector stated that “[a]t the upper shop there is [sic] openings that go into the mine
and the standard requires that anything that has combustibility or grease that be moved back at
least a hundred feet away and they were all still parked there when I went back the second time.”
Tr. 371; Ex. GX 44. He maintained that when he made his second visit he realized that remains
of fan housing were within 100 feet of the opening. Id. Exhibit GX 46, Photo 4 of 6, shows the

39 FMSHRC Page 622

opening in a “before” state, while Photo 5 of 6 shows the ‘after” condition. Tr. 372. The opening
was for ventilation purposes. Tr. 373. The inspector measured the distance of the materials to be
around 80 feet of the mine opening, not the required 100 feet. Tr. 376. The inspector asserted
that Miller refused to move the items to area beyond 100 feet without first receiving a citation.
Tr. 377. Reiterating that both Miller and his son, Reid Miller, refused to move the materials until
a citation was issued, that stance prompted the inspector to mark the negligence as moderate. Tr.
378.
In any event, the inspector stated that he observed,
lumber clearly, the dozer had fuel onboard and also just part of it. The dump truck
itself, the white dump truck had -- it had rubber-tired dozer tracks or possibly for
an excavator. They had a similar excavator on the site that had rubberized tracks,
and then there was – So each one of those vehicles, tires, oil, oil containers all
could fall under the definition of combustible.
Tr. 379.
It must be said that the inspector’s view of combustible materials is seriously at odds with
the definition for Part 57. 30 C.F.R. Section 57.2, “Definitions,” provides that “Combustible
material means a material that, in the form in which it is used and under the conditions
anticipated, will ignite, burn, support combustion or release flammable vapors when subjected to
fire or heat. Wood, paper, rubber, and plastics are examples of combustible materials.”
Therefore, given the definition, it is dubious that the standard encompasses several of the items
the inspector named: the dozer, the dump truck, and the excavator.
The inspector marked an injury or illness as unlikely because he found little air
movement at the fan opening and that such air was exhaust, not intake, air. In addition he
conceded that most of the items he named have a high flash point and therefore are not easily
started on fire. Tr. 379. However, later, he contradicted himself, asserting that the air was
entering the mine. Tr. 380.
The Court noted that the cited standard allows not more than a one day’s supply of
combustible materials within the 100 feet limit. The inspector acknowledged that the standard
“gives the mine the latitude if they -- for instance, the wood on the trailer. If they are bringing
supplies to the mine opening that gives the mine operator the ability to have it for easy
accessibility to take it underground.” Tr. 381. The Court inquired how the inspector determined
that the material was more than a day’s supply. The inspector answered, “[t]he accumulation of
junk wasn't -- hadn't moved for days, and the only one day of supply that you would put under
that category of being a supply would be the lumber on the trailer.” Tr. 382 (emphasis added).
The Court then inquired if the inspector was “there on November 4th, the day before you issued
the citation and observed this condition?” Id. The inspector responded that he would have to
review his field notes. The Court then remarked, “there is nothing in your citation which
supports a conclusion … that there was more than one day's supply of combustible materials
there. You haven't articulated how you have reached a conclusion that there was more than one
day's supply.” Tr. 382.

39 FMSHRC Page 623

During cross-examination, Miller asked for the basis behind the inspector’s conclusion
that the opening affected the mine’s ventilation. The inspector answered, “throughout [his]
travels throughout the mine [the mine wasn’t] using any kind of [stoppings] or [brattices] or any
curtains that would seal off the mine. So the air is going to go where it's going to go. I've never
seen a seal that was airtight.” Tr. 384.
The Court then noted that the,
standard doesn't restrict -- is not restricted to any mechanized ventilation. It
simply says that if you have a mine opening that you can't have more than one
day's supply of combustible materials within a hundred feet of a mine opening
and this is a mine opening. It doesn't matter whether there is a fan there or not. It's
a mine opening.
Tr. 384.
Noting that the standard allows no more than a day’s supply of combustible materials
may be stored, Miller then testified about the conditions,
There were no supplies being stored there. None of the stuff that he mentioned
were supplies. Those were two -- another area of storing junk, which he basically
said. They were -- they had -- there were no supplies. This was not a place to put
supplies next to an opening or whatever you want to say about what that hole was,
which was sealed in the inside. You couldn't get passage into it. . . . [therefore
Miller contended] this standard does not meet the conditions of that particular
situation. Those were two areas of immobile trucks that were tagged out where
junk was being put onto them for a later time to haul to the dump or haul away.
So it's such a reach to try to say, number one, this was a storage of supplies,
whether it's one day or not.
Tr. 385.
While Miller agreed with the Court’s remark that there was an opening, he asserted that it
was an area they later opened up, called the zero level. He added that MSHA, through another
inspector15 recognized that it was, “like [a] totally separate part of an area that had been
abandoned. … since 1966.” Tr. 386. Thus, Miller contended that what the inspector observed
was the work of some loggers who had installed an electrical box there and it remained there
when Miller took over the mine in 1983. Accordingly, it was his assertion that the cited area
“was never any part of a connection to the existing Sixteen To One.” Id. Miller continued that
the trucks were both inoperable, and been present for some eight to ten years. As he summed up
his testimony, Miller repeated that the area “was abandoned. It had no effect on ventilation. . .
15

In this instance, Miller only referred to the inspector as “Jerry,” in this instance, but
throughout the transcript, the name Jerry only arose in reference to Inspector Jerry Hulsey. See
Tr. 325; 330; 357; 368-69; 400; and 41. Therefore, it seems reasonable to conclude that Miller
was referring to Inspector Jerry Hulsey.

39 FMSHRC Page 624

That truck could have caught on fire and burnt like hell all the rubber and it wouldn't have
affected anybody in the mine at all. It was not connected. They weren't supplies.” Tr. 387.
The Court noted there are two key elements to the standard – combustibility and a one
day’s supply. Id. The term mine opening is not among the defined terms for this Part. The
inspector confirmed that he identified certain combustible materials, including wood, and that
these were within 100 feet of an opening. Id.
The Secretary, referencing Exhibit GX 67, the inspector’s field notes, inquired when
those notes indicate he first spoke with Miller. He answered November 3rd, which would be two
days before the citation was issued. Tr. 389. It was the inspector’s contention that the material he
cited was also present when he was at the mine in August or July. Tr. 390.
Miller then commented on his view of the “one day supply” phrase used in the cited
standard, expressing it
means you can have one day supply of anything, combustible or not combustible,
that you would use up in one day. It doesn't mean that you have to use it up the
next day. We have one day supplies of lumber stored within a hundred feet of the
portal, which we do during the winter, during the summer, during any time so
that's just the way the miners operate. The concern addressed by the standard is
not to have a “thousand board feet stored right next to the portal.
Tr. 391-92.
Miller added that his view was based upon what other mine inspectors have told him. Tr.
392. He added that Inspector Hagedorn’s interpretations, for several of the citations in this
litigation, are different from those of previous inspectors. Tr. 393. Again, the Secretary opted to
forego additional direct testimony from the inspector and did not elect to cross-examine Miller.
Tr. 392.
Conclusion
The problem with this matter is one that arose in many of these challenged citations – the
Secretary declining to cross-examine Miller’s testimony, coupled with the decision to not recall
the inspectors after Miller testified. Miller asserted that the “opening” the inspector observed was
the work of some loggers who had installed an electrical box there and it remained there when
Miller took over the mine in 1983. Given that claim, he maintained that the area was never
connected to the mine. Thus, the state of the evidence was in conflict as to whether the mine
opening was of any function and merely preceded Miller’s mining activity there. The inspector’s
photo, Exhibit GX 46, 3 of 4, acknowledges that there was no power to a fan which was there,
but there is no mention of a fan in the citation itself. The inspector’s notes reflect that the
operator claimed that the opening was sealed off.
Accordingly, this citation must be DISMISSED, for the failure of the Secretary to meet
its evidentiary burden of proof.

39 FMSHRC Page 625

Citation 8873847
For this citation, No. 8873847, Exhibit GX 47, 30 C.F.R. § 57.5005,16 was initially cited
as the standard violated. However, the inspector then modified the citation to cite 30 C.F.R
§57.8528. The latter standard, titled, “Unventilated areas,” provides simply: “Unventilated areas
shall be sealed, or barricaded and posted against entry.” 30 C.F.R. § 57.8528. The inspector
asserted that the modification was made because he “was elaborating on the respirable dust” and
the latter standard was more appropriate to the conditions as that standard addresses ventilation
itself. Tr. 396.
The inspector stated that he issued this citation in reference to providing adequate
ventilation. He was then at the 1076 level, and to reach that location one must travel nearly a
mile. Tr. 395. The citation alleges that there was not adequate ventilation at that location. GX 47.
The issue was the absence of mechanical ventilation. Only natural ventilation was present. Tr.
394-95. Explaining further, the inspector added “there was no discernible ventilation from
exhaling and the miner, we were both blowing out our breath with our camp lights looking as it
levitates in the air. It wasn't going in any noticeable direction.” Tr. 395. He described the mine’s
natural ventilation as coming “from all the different openings of the mine as it goes into a
convection from ambient temperature and different temperature ranges of the interior of the mine
to the exterior of the mine will cause a Venturi or Venturi principle or it creates a suction or a
draft.” Tr. 395-96. The inspector stated that miners had been working in the cited area,
performing blasting, and drilling, all part of the prep work to recover ore. Tr. 396.
The Court inquired about the standard cited, noting that it provides, “unventilated areas
shall be sealed or barricaded and posted against entry.” Tr. 397. Asked if the inspector
considered the violation to be “that this area should have been sealed or barricaded and posted
against entry,” the inspector responded that sealing or barricading was required “[u]ntil they
could get mechanical ventilation.” Tr. 397. However, he added “[t]hat’s what was determined as
management reviewed the allegations.” Id. The Court then advised the Secretary’s Counsel that,
per Section 57.8528, the cited standard, it seemed there was a problem with establishing a prima
facie case. Tr. 397. The Court stated that, to start, the Secretary would need to establish that the
cited area was unventilated. Id.

16

§ 57.5005, titled, “Control of exposure to airborne contaminants,” provides in part,
“Control of employee exposure to harmful airborne contaminants shall be, insofar as feasible, by
prevention of contamination, removal by exhaust ventilation, or by dilution with uncontaminated
air. However, where accepted engineering control measures have not been developed or when
necessary by the nature of work involved (for example, while establishing controls or occasional
entry into hazardous atmospheres to perform maintenance or investigation), employees may
work for reasonable periods of time in concentrations of airborne contaminants exceeding
permissible levels if they are protected by appropriate respiratory protective equipment.
Whenever respiratory protective equipment is used a program for selection, maintenance,
training, fitting, supervision, cleaning, and use shall meet the following minimum requirements
…”

39 FMSHRC Page 626

Asked the basis for concluding that the area was unventilated, the inspector stated that he
used a smoke tube, that smoke lingered in the area, and was not carried away. Tr. 397-98. Thus,
he asserted that the smoke tube provided more reliable information than simply observing one’s
breath. The inspector wrote that the mine was not providing “adequate” ventilation, but the
standard cited refers to “unventilated” areas. In support of the unventilated element, the inspector
stated that “location was a good litmus test, … [air] wasn’t exiting. It was a closed area.” Tr.
400. However, he admitted that his recollection was imperfect and that he was relying on his
notes. Id. He did not abate the citation, but then recollected that a fan was brought in to abate it.
Id. The inspector reaffirmed that the mine uses natural ventilation, brought about through various
mine openings and ambient temperature versus mine temperature. These act to cause a
differential in airflow for the natural ventilation to occur. Tr. 401. The inspector asserted that, at
least for the cited area, there was no natural ventilation. Id. Again, he stated that upon using the
smoke tube there was no indication of ventilation; all he observed was the smoke rising and
staying. Tr. 402.
Hagedorn marked the injury or illness as “reasonably likely” because he saw no
respiratory protection and such exposure can create COPD and emphysema. Tr. 403. However,
he marked the negligence as “moderate” because the mine relied upon natural ventilation. Id.
The inspector also contended that any air coming from the jack leg would create some
ventilation but that it was not an acceptable air ventilation source because such air lines have
contaminated air. Tr. 404.
Upon cross-examination, Miller first inquired if the inspector knew of the type of oil that
was coming through the jack leg air lines. The inspector noted that he saw oil cans at the
compressor but that, to be acceptable, such air would need to go through a scrubbing system. Id.
In terms of whether the mine was employing “common sense” regarding ventilation, the
inspector responded that a miner who was with him admitted that it didn’t look like they had
ventilation at that location. Tr. 405. The inspector also stated that he did his smoke test in the
1076, asserting that he went to various locations in that area. Id.; GX 49 (photos 2 of 3 and 3 of
3). He ran an oxygen test too. The result was about 20 and his sensor, set to alarm at 19.5, never
went off. Tr. 406.
Miller then testified, first challenging the claim that there was inadequate ventilation. He
asserted that claim was false. Id. He then asserted that there was mechanical ventilation, through
use what they call a “bazooka.” Id. As for the oil used in its jackleg drill, Miller asserted it uses a
vegetable oil and that it’s perfectly safe to breathe. Tr. 406-07. He acknowledged that there
might be times when there is no discernable air, but that miners moving in that environment
creates air movement. Tr. 407. Miller felt that isolating a small area of no air movement is
misleading, given that, through natural convection, there is “probably ten million cubic feet of air
that is breathable underground in that particular mine.” Id. Beyond that, Miller asserted that his
miners will advise him of “every tool to use when they feel the need to do it. … [and he has] had
no complaints about breathing bad air.” Tr. 408.
The Court would note that such a process is an odd way to determine that area is
adequately ventilated. Miller further explained about the use of a “bazooka” which he seemed to
equate with a fan which is run off of compressed air. Tr. 408. Thus, he asserted that the bazooka

39 FMSHRC Page 627

provides ventilation. Tr. 409. Miller maintained that another MSHA inspector terminated the
citation, but did not require that the area be sealed off. Tr. 411. The abatement was accomplished
by showing the inspector the mine’s bazooka and a fan that could be used if the miners wanted it.
Id.
Conclusion
This violation was established and Miller offered no evidence to challenge the
Secretary’s evidence. The inspector’s gravity and negligence findings were supported by his
testimony, as was his S&S finding. The proposed assessment was $162.00 (one hundred and
sixty-two dollars), an amount which the Court finds to be appropriate and imposes.
Citation No. 8873850
Citation No. 8873850 was assessed a penalty of $100, and cites Section 57.12002. GX
50; 52. The cited standard, titled “controls and switches,” provides, “Electric equipment and
circuits shall be provided with switches or other controls. Such switches or controls shall be of
approved design and construction and shall be properly installed.” 30 C.F.R. 57.12002.
The inspector, referring to Exhibit GX 52, 2 of 3, stated that the photo reflects
“disconnect that is laying on the ground or on -- being supported by the cabling coming in or out
of it.” Tr. 413. This was observed at the 800 level. Id. The inspector asserted that it was a main
disconnect which was not properly installed. “That [m]ain disconnect would be supplying power
to whatever is downstream from this power source.” Id. The voltage was three phase 480, and it
was not properly installed in that “the way it was supported had deteriorated, rotted away and
that's what allowed it to be … [as depicted] in the picture 2 of 3.” Tr. 414. The inspector asserted
that it created a shock or electrocution hazard. This could occur “if someone was needing to have
it turned off downstream you would have to be grabbing onto the cabling or the box to actually
open it.” Id.
The Court then inquired of Miller if he agreed that, per Exhibit GX 52 photo 2 of 3, the
safety switch, which was on the floor, was not properly installed. Id. Miller did not agree. Tr.
415. The inspector expressed that someone could be injured “if you're grabbing on to it trying to
de-energize it in a moment of chaos it exposes persons to take actions without taking safety
first.” Id. He added that one would grab it in “a turn off situation where it had to be turned off
because of possible fire or some moment that is happening to what it actually supplies.” Id. He
agreed that, as the Secretary’s counsel suggested, that because of it not being mounted, one
would need to grab it to turn it off. He added that, “because of the amount of resistance in the
lever turning it off, turning it on, it takes a considerable amount of strength to get it to turn off.”
Id. However, upon learning more about the circumstances, he marked the violation down from
reasonably likely to “unlikely.” Tr. 414.

39 FMSHRC Page 628

This was based on his,
noticing that the cables after it was de-energized and after they had remounted …
[that there was no] noticeable damage to the cabling and the insulation and there
wasn't anything that was obvious and all the connections were tight and sealed,
which in turn takes away the disconnecting of the internal wires.
Tr. 416.
Negligence was marked as moderate because “they had attempted to mount it. It was
mounted at one point. It's just over the course of time the wood rotted away and then … [the]
corrections needed to be done.” Tr. 417.
Miller elected not to cross-examine the inspector, but testified about the matter. He
contended that the box was properly installed and properly hanging on November 5th, prior to
the inspector arriving for his inspection. Tr. 418. When the miners went to work that morning,
they passed the box and it was properly hanging at that time. Some 5 to 6 hours after the mine
went to work, the inspector observed the condition. Id. In fact, Miller went further, alleging that
the inspector “went in and tried to do something and adjust that or take a measurement and
touched that box and somehow knocked it down unintentionally. That's what I'm saying.”
However, Miller advised that he was not with the inspector at the time of the alleged
incident. Tr. 419-20. Further, while no one was with the inspector at the time of the alleged
incident, Miller stated, “Not at this box, but … someone told [him] that they have seen him and
he even testified that he got in to help doing something on a box.” Tr. 420. He added that he had
“two reports that [the inspector] was working with electrical areas of the mine by himself on his
own ...” Id. The Court then noted that Miller had “no direct evidence apart from these other
stories, you have no evidence that you or from any employee who told you that they observed
[inspector] Hagedorn as the MSHA inspector do something which caused this control switch to
fall to the ground.” Tr. 420. Miller agreed with the Court’s statement. Tr. 421. The Court then
stated that this was speculation on Miller’s part and that it could not place any weight on the
claim. Id. It summed up the claim as follows “What we're talking about is speculation as to
whether this inspector took some affirmative action which caused this control switch to flop to
the ground. You [i.e. Miller] have no evidence to demonstrate that that happened regarding this
citation 8873850, you've just said that; correct?” Id. Miller agreed, stating he had “no
eyewitnesses that saw [the inspector] touch [the switch box] and caused it to fall to the ground,
because he was by himself.” Id. Miller then continued that the box was a very important piece of
equipment and if any of his miners had observed that it had fallen down, they would have fixed
it. Accordingly, he reiterated that “this was something that had to have happened extremely
recent to the inspector issuing the citation because no one observed it that morning.” Tr. 422.
Miller then added more information about the cited area. Looking at picture 3 of 3 of
Exhibit GX 52, he expressed that photo shows the “backs of the ceiling are confirmed.” Tr. 423.
From this photo he contended that “there is no rock fall that could take place in there [and that it
showed the] the existing pole that was used before.” Tr. 423. It was terminated immediately, he

39 FMSHRC Page 629

asserted, and concluded that it was “highly unlikely that anything of the nature of this particular
location caused that to fall down.” Id.
Given the nature of Miller’s testimony, Counsel for the Secretary recalled the inspector.
Asked directly if he knocked the box down, the inspector stated he did not and that it was
reestablished on a different pole, a conclusion he supported by “the location of the cabling
coming into the top of the box.” Tr. 424.
Conclusion
Wisely, the Secretary did recall the inspector who, credibly, in the Court’s assessment,
denied knocking the box off its support. As noted, Miller conceded that he was not present at the
time the citation was noted. Miller did not even offer hearsay to support his claim that the
inspector caused the main disconnect safety switch to fall. The Court concludes that the
inspector’s version is more credible and finds that the proposed penalty of $100.00 (one
hundred dollars) is appropriate.
WEST 2016-0243
Citation No. 8873849
Citation No. 887384930 invoked C.F.R. § 56.14207, which is titled, “Parking procedures
for unattended equipment,” and provides, “Mobile 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.” 30 C.F.R. § 56.14207.
The inspector described the condition that led him to issue this citation. It involved his
observing a vehicle parked on a hill, the steepness of which he estimated to be greater than 22
degrees. Ex. GX 53. No chocks were in place for the vehicle, nor was it turned into a bank or rib,
and if it were put in neutral and the parking brake released, it would roll away. Tr. 426; GX 55
(photo 3 of 3). He marked the violation as “unlikely” to cause an injury, because the vehicle did
have the parking brake on and, as it had an automatic transmission, it was in the park position.
Tr. 427. If it were to roll, he marked the injury as lost work days, if it rolled into a person or if
one were injured trying to escape the rolling vehicle. Id. He classified the negligence as moderate
because,
all the other vehicles on the mine site they are very good at trying to find a place,
a pothole or some kind of a rock or a bank to park the vehicles and everything
within the vicinity had rocks or chocks underneath the tires on the downhill side
to prevent it from rolling.
Id.
The violation was abated by relocating the vehicle. The violation was created by a
contractor performing a job at the mine site. The Respondent was cited because it bears the

39 FMSHRC Page 630

responsibility to give such contractors mine site specifics and thus the contractor should have
been advised of the parking procedure as part of the introduction to the mine. Tr. 428. The
inspector interviewed the four workers associated with the vehicle and they advised the mine had
not told them to park a certain way. Id.
Upon cross-examination Miller, who stated that he never observed the situation, asked if
the standard identifies the degree of a grade that requires turning into a bank or rib. The inspector
responded that if the parking brake is released and the vehicle is in neutral and the vehicle can
free roll, there is a violation. Tr. 429.
The Court inquired why the inspector did not mark the negligence as low, and he
responded that low negligence would not be unreasonable. Tr. 430. However, he marked it as
moderate because the mine did not advise the contractor through site specific hazard awareness.
Tr. 431.
Miller then testified that the contractor was PG & E and that it was at the mine site
addressing their power transmission line, which they maintain. They come to the property each
year. Miller stated when they arrive, “they are informed by our office before they come to the
property and they are informed about our gate issues, our hazard issues when they go on the
property and how to park.” Tr. 432. Although he couldn’t state whether anybody from the mine
spoke to the particular PG & E visitor on this occasion, he asserted that he has no control as to
whether PG&E advises its subcontractors about the mine site specifics. Id.
Seeking clarification, the Court inquired of Miller if it was the mine’s practice of
informing people who come to the property of items such a parking procedures. Tr. 433. Miller
stated that when contractors arrive they are advised of the mine’s procedures but that it may
speak to one of the several individuals who arrive. Id. As noted, in this instance, PG & E had
four individuals performing the subcontractor work. The practice employed, Miller clarified, is
that a contractor will approach the mine and advise the operator of their plan to arrive at the mine
at a certain date. It is at that time that the mine goes over all the rules. Tr. 434.
The Court, wanting to be sure it understood Miller’s testimony, inquired if the mine gets
some sort of notice that a contractor is coming out and at that point in time it informs the
contractor about the procedures and that this information includes the parking procedures. Miller
affirmed that was the mine’s policy and practice. Id. Miller added the point that PG & E is not a
contractor hired by the mine. In other words, the electric company has the right to come onto the
property to service its lines.

39 FMSHRC Page 631

Miller had more to say about the standard’s enforcement, asserting that other inspectors
have been satisfied if the parking brake is set. Id. In reaction, the Court noted that the standard
speaks to vehicles parked on a grade. It summed up the standard and the testimony as follows:
The testimony here is that this vehicle was parked on a grade. You have no
testimony to contradict that it was parked on a grade. If you're in a situation where
a vehicle is parked on a grade, then you have to do one of two things. You have to
chock it, the wheels, or turn into a bank or rib. It's very simple.
Tr. 435.
Miller replied by noting that the citation alleged that “the mining company failed to
review parking procedures with the tree cutting service when on the property, mine property,”
contending that assertion was false. Id. Miller repeated that he was not asserting that the mine
spoke to the particular individuals in the vehicle that day, and that such a practice would be
impractical. Instead, the mine employs the procedure he previously testified about. Miller then
noted that there was a conflict about how the citation was abated, with the citation stating that the
vehicle was turned into a bank, but with testimony stating that abatement was accomplished by
the vehicle leaving the location. The inspector then stated that he “misremember[ed]” and that
the vehicle was in fact moved to a level location. Tr. 437.
Conclusion
The violation was established but as the vehicle’s transmission was in park mode, and the
parking brake was also set, the only violation was the failure to also chock or turn the vehicle
into a bank. MSHA proposed a penalty of $100.00, but the Court, upon considering the
attendant and unrebutted circumstances reaches a different conclusion. It notes that the infraction
was created by a contractor, and that the contractor was there, not at the mine’s invitation, but
rather to carry out its utility maintenance duties. In addition, with the vehicle in “park” and the
parking brake set, there was no reasonable likelihood that the hazard would occur. Further, it was
not contested that Miller advised a representative of the parking policy, as no cross-examination
occurred. Given these findings, the negligence was very low, and the gravity was very unlikely to
occur. Consequently, the violation was not S&S. A penalty of $25.00 (twenty-five dollars) is
imposed.
Citation No. 8873855 17
Citation No. 8873855 invoked 30 C.F.R. § 57.11003, which is titled, “Construction and
maintenance of ladders.” The standard provides, “Ladders shall be of substantial construction
and maintained in good condition.” 30 C.F.R. § 57.11003.
The inspector, referring to Exhibits GX 59 and GX 61, photograph 2 of 3, stated that as
he was descending the ladder a portion broke off in his hand. Tr. 440. This occurred when they
were traveling through the secondary escapeway, from the 600 level down to the 800 level. Id.
17

The Secretary reminded the Court that Citation No. 8873853 was vacated, and
consequently, GX 56 through GX 58 were no longer exhibits in the record. Tr. 438.

39 FMSHRC Page 632

This access was a “defined location to travel.” Id. He asserted that the wooden ladder failed
under his weight due to rot. As to likelihood of injury, the inspector noted that he was almost
injured himself when the rung broke. Therefore he marked it as “reasonably likely” to cause an
injury. Tr. 441. He added that this secondary escapeway will be traveled by new miners as part
of their site specific training. Tr. 441-42. In terms of the injury expected, it would be sprains,
strains and bruising resulting in lost workdays or restricted duty. The violation was marked as
S&S. Moderate negligence was listed by the inspector on the basis that there was no report
during the workplace examinations of the need to replace the ladder. Tr. 442-43. The abatement
was done in what seemed like an unusual manner,
by excavating out the travel way to the point that the ladder wasn't needed and
then they left a rope there to further assist a person should -- because of the grade
of the ground. It was relatively steep, 40 degrees or so in the area. So a rope was
there to supply additional handhold and also for [rappelling] down to the 800
level.
Tr. 443.
Upon cross-examination, the inspector stated that he weighs about 210 pounds.
Describing the event, he stated that a miner went down ahead of him. Tr. 444. In Miller’s direct
testimony he stated that the designated secondary exit is not the only way to travel through this
area. Also, he asserted that it is infrequently used. There is a monthly inspection of the exit. Tr.
445. The mine was not aware of any issue with the ladder until the inspector broke it. Further, all
wood begins rotting when it is installed. That said, it is difficult to know when the wood has
weakened to the point that it might break. Tr. 446. Miller viewed these as mitigating
circumstances and that it certainly was not S&S. Id.
Conclusion
The violation was established with a proposed penalty assessed at $108.00. Miller did
not offer any evidence to rebut the findings made by the inspector, and each of them is upheld,
the record evidence supporting those findings. The Court finds a penalty assessment of $108.00
(one hundred and eight dollars) to be appropriate.
Citation 8873856
Citation 8873856 invokes 30 C.F.R. § 57.11006. That section, titled, “Fixed ladder
landings,” provides that fixed ladders shall project at least 3 feet above landings, or substantial
handholds shall be provided above the landings.” 30 C.F.R. § 57.11006.

39 FMSHRC Page 633

The inspector stated this citation also involved a ladder way,
that went down to another level and it's pretty specific in the standard that as you
come to a landing the ladder shall extend approximately three feet or three feet
above the landing so it will give you something to assist yourself off the ladder
and/or handholds or some other apparatus will be in the area for getting off the
ladder, and it also assists you getting onto the ladder because you're coming
down.
Tr. 448.
In this instance the ladder did not extend above the landing; rather it was flush with it and
there were no handholds provided. GX 62; Tr. 449. The inspector believed that it was reasonably
likely to cause an accident based on “[j]ust historical events that have happened from not having
the … assistance of the ladder extending past the three feet and/or having handholds and there
wasn't no rope there either…” Tr. 449-50. By not extending three feet out, the inspector asserted
that one could be injured: typically, it would be “a moment of falling ... from the exit point or the
time of getting on, slipping off the rungs.” Tr. 450. He marked the injury as lost workdays or
restricted duty, but added that it is difficult to predict exactly what would happen. One might
only need to brush oneself off, but an injury could be more significant too. The fall, if it
occurred, would be about 10 feet. Id. He also marked it as S&S. Negligence was marked as
moderate because there was a ladder present. Tr. 451.
The violation was abated in what seemed to be an unusual manner, as the,
miners had taken shovels and thin hose and they literally excavated out the knobs.
So essentially there was no landing left because they pulled it all down and just
basically made a run down this secondary escape way with the assistance of a
rope to give you stabilization. Basically you're [rappelling].
Tr. 452.
For a secondary escapeway, the inspector considered the abatement to be satisfactory. Id.
The Court then inquired of the Secretary’s counsel whether, following the abatement,
there was no longer any fixed ladder landing. Id. Both Counsel and the Secretary agreed with the
Court’s comment. Tr. 453. Mr. Miller did not cross-examine the Secretary’s witness but did
testify, asserting first that, in numerous previous inspections, no one had any issues with the
ladder. It is also a very restricted area. He added that at about eight feet, “it's really not a landing
going from a landing down to another level.” Tr. 453. Instead he characterized it as “walking
down a stope.” Id. Miller disagreed with the inspector’s description and asserted there was no
violation.
As for the issue of a handhold, Miller stated that it is something that you can help support
yourself, while moving up or down. Having used the ladder personally on many occasions,
Miller contended that there are many natural places that act as handholds for him to use his

39 FMSHRC Page 634

hands to help support use of the ladder. In fact, he asserted that extending the ladder would be
more hazardous. Consequently, their abatement consisted of removing the landing itself. He also
asserted that the cited place had been present since the early 2000s and never had been cited.
Tr. 455.
The Court inquired further about Miller’s assertion that there were natural handholds,
asking if there were any handholds other than natural ones. Miller stated there were – he has
grabbed water discharge lines. With Miller conceding that the ladder did not extend three feet
above the opening, the remaining question was whether there were substantial handholds. Tr.
456. Miller reiterated that he considered the water lines acted as handholds and that they met the
standard. Tr. 457. The Court does not agree with Miller’s view; there were no substantial
handholds provided.
Conclusion
The violation was established, and the method of abatement does not impact the penalty
assessment. Based on the uncontradicted evidence, the Court adopts the inspector’s view as to
gravity, negligence and the S&S finding. The S&S finding is supported by the inspector’s
testimony, as described above. The Court imposes the $108.00 (one hundred and eight
dollar) penalty proposed by the Secretary.
Closing Remarks
The Court notes that many of the citations litigated in this matter could have been
sustained were it not for the absence of cross-examination of Respondent Miller and/or the lack
of redirect testimony of MSHA’s witnesses. The Court suggests that Mr. Miller may be able to
avert some future litigation by additional taking proactive steps. As one example, by painting
low spots, this could prevent subsequent citations on that subject.
Summary of determinations and applicable civil penalties imposed by the Court
Docket No. WEST 2015-0850

Sixteen to One Mine

Citation No. 8793844: $50.00
Citation No. 8793845: $25.00
Docket No. WEST 2015-0851

Plumbago Mine

Citation No. 8793846: $25.00
Docket No. WEST 2016-0070

Sixteen to One Mine

Citation No. 8873829: DISMISSED
Citation No. 8873830: DISMISSED

39 FMSHRC Page 635

Citation No. 8873831: DISMISSED
Citation No. 8873832: $100.00
Docket No. WEST 2016-0071

Sixteen to One Mine

Citation No. 8873835: DISMISSED
Docket No. WEST 2016-0149

Sixteen to One Mine

Citation No. 8873833: DISMISSED
Docket No. WEST 2016-0183

Sixteen to One Mine

Citation No. 8873843: $138.00
Citation No. 8873844: DISMISSED
Citation No. 8873845:

DISMISSED

Citation No. 8873846:

DISMISSED

Citation No. 8873848:

$10.00

Citation No. 8873851:

DISMISSED

Citation No. 8873847:

$162.00

Citation No. 8873850:

$100.00

Docket No. WEST 2016 0243 Sixteen to One Mine
Citation No. 8873849:

$25.00

Citation No. 8873853: vacated by the Secretary
Citation No. 8873854: vacated by the Secretary
Citation No. 8873855:

$108.00

Citation No. 8873856: $108.00

39 FMSHRC Page 636

ORDER
It is hereby ORDERED that Respondent Original Sixteen to One Mine and Plumbago
Mine pay the Secretary of Labor a total civil penalty in the sum of $851.00 (eight hundred and
fifty-one dollars) within thirty (30) days of this decision.18

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

Distribution: (U.S. First Class Certified Mail)
Laura Ilardi Pearson, Esq., Office of the Solicitor, U.S. Department of Labor, Cesar E. Chavez
Memorial Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204
D. Scott Horn, CLR, U.S. Department of Labor, MSHA, 991 Nut Tree Rd, Vacaville, CA 95687
Michael Miller, President, Original Sixteen To One Mine, Inc., P.O. Box 909, Alleghany, CA
95910

18

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

39 FMSHRC Page 637

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

March 7, 2017
SIGNAL PEAK ENERGY LLC,
Contestant,
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent.

CONTEST PROCEEDING
Docket No. WEST 2016-0624-R
Citation No. 9021220; 7/21/2016

Bull Mountains Mine No. 1
Mine ID: 24-01950
DECISION AND ORDER

Appearances: Ryan L. Pardue, Michelle A. Horn, U.S. Department of Labor, Office of the
Solicitor, Denver, Colorado, for Petitioner;
R. Henry Moore, Christopher G. Peterson, Jackson Kelly, PLLC, Pittsburgh,
Pennsylvania, for Respondent.
Before:

Judge Miller

This case is before me upon a notice of contest filed by Signal Peak Energy, LLC,
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(d) (“the Act”). This docket involves one citation issued pursuant to Section 104(a) of the Act
for a violation of the mine’s ventilation plan. The citation is a technical citation issued for the
purpose of bringing the matter of the ventilation plan before the Court. The parties presented
testimony and evidence regarding the mine’s proposed changes to the ventilation plan beginning
on October 19, 2016, in Billings, Montana. Due to a lost transcript, the first portion of the
hearing was redone in December 2016, and briefs were submitted in February 2017. Based upon
the parties’ stipulations, my review of the entire record, my observation of the demeanors of the
witnesses, and consideration of the parties’ legal arguments, I uphold the citation as amended at
hearing.1

1

The original citation includes a reference to deficiencies in the mine’s current
ventilation plan discovered during the fan stoppage tests. The Secretary at hearing moved to
amend the citation to remove that portion, and the motion was granted. The parties agreed to
continue discussions on the fan stoppage issue with regard to the mine’s current dual-entry plan.

39 FMSHRC Page 638

I. STIPULATIONS
record:

The parties have submitted the following stipulations which have been accepted into the
1.

The Bull Mountains Mine No. 1 is a “mine” as that term is defined in Section 3(h)
of the Mine Act.

2.

Signal Peak primarily mines its coal by the longwall method. This includes
development of three entries on either side of a block of coal approximately
22,000 [feet] long and 1,250 [feet] wide. The length of the panel may vary from
panel to panel.

3.

The mine operates currently under approximately 200-800 feet of cover. No
methane has been detected by handheld detectors. The mine does not receive
more frequent inspections under Section 103(i) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §813(i), because of methane liberation.

4.

The coal that Signal Peak mines is prone to spontaneous combustion.

5.

Signal Peak operates a “bleederless” longwall mining system. Signal Peak chose
this system because it believes that the system reduces the potential for
spontaneous combustion by limiting the oxygen that is available in the longwall
gob. This system includes the progressive installation of ventilation controls that
become seals when the panel is complete. Signal Peak is currently mining in the
5R panel. A map of the mine is marked as Signal Peak’s Exhibit A and may be
admitted into evidence.

6.

Signal Peak had a significant thermal event in its mine as a result of spontaneous
combustion in December 2011. The heating occurred near the inby end of the
headgate on the 2 Right panel in a rider seam above the main seam that was being
mined. That event resulted in the loss of approximately 20 production days. As a
result of the event, Signal Peak, with the approval of MSHA, instituted additional
measures on subsequent longwall panels, including injection of nitrogen into the
longwall gob area to lower the oxygen concentration and use of a blowing
ventilation system rather than the previous exhausting system. Oxygen is
necessary for combustion and lowering the oxygen concentration in the gob
reduces the potential for spontaneous combustion.

7.

Since January 2013, Signal Peak has utilized “blowing” ventilation, in which air
is forced into the mine by a fan.

8.

One alternative to a blowing ventilation system is an exhausting system where a
fan or fans pull air through a mine.

39 FMSHRC Page 639

9.

For over one and a half years, Signal Peak and MSHA District 9 have been
negotiating a change in Signal Peak’s longwall ventilation plan. Signal Peak is
proposing to change its current ventilation plan from a dual-entry return to a
single-entry return in the tailgate. Signal Peak’s Exhibit EEE illustrates the
different configurations at the end of the longwall face in the tailgate and may be
admitted into evidence.

10.

On January 12, 2015, Signal Peak first submitted a revised ventilation plan that
proposed a change from dual-entry return to single-entry return in the longwall
tailgate. A copy of such plan is marked as Secretary’s Exhibit 3 and may be
admitted into evidence.

11.

On April 3, 2015, MSHA issued a letter disapproving the proposed change and
requesting additional information from Signal Peak. A copy of this letter is
marked as Secretary’s Exhibit 4 and may be admitted into evidence.

12.

On April 23, 2015, Signal Peak submitted a revised plan. A copy of such plan is
marked as Secretary’s Exhibit 5 and may be admitted into evidence.

13.

On May 5, 2015, Signal Peak personnel and MSHA personnel had a conference
call concerning the April 23, 2015 submittal.

14.

On May 6, 2015, Signal Peak submitted a revised plan to MSHA. A copy of such
plan is marked as Secretary’s Exhibit 6 and may be admitted into evidence.

15.

On May 29, 2015, MSHA provided Signal Peak with a deficiency letter. A copy
of such letter is marked as Secretary’s Exhibit 7 and may be admitted into
evidence.

16.

On July 9, 2015, MSHA and Signal Peak met at MSHA District 9 in Denver,
Colorado, to discuss Signal Peak’s proposed changes to its ventilation plan as
well as other mine plans.

17.

On July 23, 2015, Signal Peak submitted a revised plan. A copy of such plan is
marked as Secretary’s Exhibit 8 and may be admitted into evidence.

18.

On September 29, 2015, MSHA District 9 requested the assistance of Ventilation
Division, Pittsburgh Safety and Health Technology Center (“Tech Support”) to
review Signal Peak’s plan. District 9 supplied the following information to Tech
Support:
a.
b.

A letter from Signal Peak dated July 23, 2015 (see Signal Peak
Exhibit M);
A letter dated September 25, 2015, from Signal Peak to MSHA
District 9 attaching “Signal Peak 5R CO Records.” A copy of the

39 FMSHRC Page 640

September 25, 2015 letter without attachments is marked as Signal
Peak’s Exhibit N and may be admitted into evidence.
19.

At MSHA’s request, Signal Peak submitted the following information to Tech
Support personnel on and after October 8, 2015:
a.
b.
c.

d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
o.
p.
q.
r.

Map of Bull Mountains Mine
Mine Map with Overburden
Complete set of SPE submittals to District 9, including:
(i)
Two/Single Entry System color graphic,
(ii)
Signal Peak Laboratory Analytical Results of seals 10/8/142/20/15
(iii)
Mine Map/Life Line Signals.
Revised Ventilation Plan
Single v. Dual Entry Return Vnet PC Model Summary / Inches
Water Gage from Mine to Atmosphere
Laboratory Analytical Results 2/20/15-6/22/15.
VNET Drawings
Weekly Seal Examination Data
SP Weekly Seal Examination Records 10/31/14-6/26/15
Mine Map Water Gauge Reading Locations, Single Entry Return
Longwall
Mine Map Water Gauge Reading Locations, Dual Entry Return
Longwall
Graphs and maps for barometric pressure data
Barometric Pressure Data
SP Barometric Pressure Records graphic chart
Barometric Pressure Monitoring Station Location Map
Barometric Pressure Data 10/1/14-11/23/14.
Barometric Pressure Data
Barometric Pressure Data 11/23/14--2/1/15

20.

On January 13, 2016, Tech Support issued a report prepared by Dennis Beiter,
Senior Mining Engineer with the Ventilation Division, and provided the report to
MSHA District 9. A copy of such report, which is sometimes referred to as the
“Beiter report,” is marked as Secretary’s Exhibit 10(a) and may be admitted into
evidence.

21.

On January 22, 2016, MSHA sent Signal Peak a letter attaching the Beiter report
and identifying what it believed were deficiencies in Signal Peak’s plan. A copy
of such letter is marked as Secretary’s Exhibit 10 and may be admitted into
evidence.

22.

On February 2, 2016, Brad Hansen of Signal Peak sent District 9 Manager Russell
Riley a letter requesting a technical citation. Such letter is marked as Secretary’s
Exhibit 11 and may be admitted into evidence.

39 FMSHRC Page 641

23.

In March 2016, MSHA District 9 requested that Tech Support perform a fan
stoppage test with the dual-entry return and a simulated single-entry return in the
tailgate at Signal Peak. The parameters for such tests were proposed by Signal
Peak and amended after discussions between MSHA District 9 personnel, Signal
Peak personnel, and Tech Support personnel. The final fan stoppage parameters
were approved by MSHA. A copy of Mr. Hansen’s email requesting Tech
Support’s assistance and the initial plan are marked as Signal Peak’s Exhibits JJ
and II and may be admitted into evidence. A copy of the approved plan for the
test is marked as Secretary’s Exhibit 14 and may be admitted into evidence.

24.

Such fan stoppage tests were performed during the period of April 24-28, 2016,
by Thomas Morley, Mining Engineer with the Ventilation Section of MSHA Tech
Support, and others, including personnel from Signal Peak.

25.

On May 3, 2016, Tech Support provided a report drafted by Thomas Morley
concerning the results of the fan stoppage tests to MSHA District 9. A copy of
such report is marked as Secretary’s Exhibit 15(a) and may be admitted into
evidence.

26.

On May 11, 2016, MSHA District 9 provided Signal Peak a letter, attaching the
Morley report, setting forth the deficiencies in its plan related to the results of the
fan stoppage test. A copy of such letter is marked as Secretary’s Exhibit 15 and
may be admitted into evidence.

27.

On May 16, 2016, Signal Peak submitted a revised ventilation plan including a
single-entry return. A copy of such plan is marked as Secretary’s Exhibit 16 and
may be admitted into evidence.

28.

On May 18, 2016, Signal Peak submitted a revised ventilation plan. A copy of
such plan is marked as Secretary’s Exhibit 17 and may be admitted into evidence.

29.

On May 25, 2016, Signal Peak sent MSHA District 9 Manager Russell Riley a
letter signed by Joseph Farinelli requesting that a technical citation be issued. A
copy of such letter is marked as Secretary’s Exhibit 18 and may be admitted into
evidence.

30.

On June 15, 2016, MSHA District 9 sent a deficiency letter to Signal Peak
outlining deficiencies in Signal Peak’s proposed changes to its ventilation plan.
This letter is marked as Secretary’s Exhibit 19 and may be admitted into evidence.

31.

On June 21, 2016, Signal Peak submitted a letter to MSHA District 9 referencing
“Third Request for Technical Citation” and attaching both a proposed single-entry
return ventilation plan and a dual-entry return ventilation plan. This letter is
marked as Secretary’s Exhibit 20 and may be admitted into evidence.

39 FMSHRC Page 642

32.

Citation No. 9021220 was issued on July 21, 2016, by MSHA inspector James
Preece pursuant to Section 104(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §814(a), alleging a violation of 30 C.F.R. §75.370(a)(1). Citation
No. 9021220 is marked as Secretary’s Exhibit 1 and may be admitted into
evidence.

33.

Under the heading and caption “Condition or Practice,” the citation alleges as
follows:
The mine operator submitted a proposal for a single-entry longwall
return. The parties’ negotiations have reached impasse. The mine
operator has notified MSHA that the mine’s existing, approved
ventilation plan is no longer adopted by the operator. The operator
intends to adopt the changes proposed on June 21, 2016, which are
not approved.
Additionally, MSHA has identified deficiencies in the mine’s
current ventilation plan. The mine operator’s proposal to address
these deficiencies is rejected by MSHA, and the parties have
reached impasse on that dispute as well. The mine operator agreed
to and will implement temporary, interim safety provisions to
protect miners in the longwall panel in the event of a main fan
outage while the Citation is pending.
Those items, however, must be fully addressed in an approvable
Mine Ventilation Plan in order to terminate this Citation.
This “technical” Citation is being issued to enable the operator to
bring this dispute before the Federal Mine Safety and Health
Review Commission.

34.

The operations of Signal Peak at the aforementioned mine at the time Citation No.
9021220 was issued were, and remain, activities covered under the Mine Act and
subject to MSHA’s inspection authority.

35.

This proceeding is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its designated Administrative Law Judge,
pursuant to Sections 105 and 113 of the Mine Act.

36.

The subject citation was properly served on Signal Peak and/or its agents by a
duly authorized representative of the Secretary on the date and place stated in the
citation as is required by the Mine Act, and may be admitted into evidence for the
purposes of establishing its issuance, but not for the truthfulness or relevancy of
any statements asserted therein. It is marked as Secretary’s Exhibit 1.

39 FMSHRC Page 643

II.

FINDINGS OF FACT

As set forth in the stipulations above, Signal Peak Energy LLC (“Signal Peak”) submitted
a number of proposed ventilation plans to the Mine Safety and Health Administration (MSHA)
beginning on January 12, 2015. Since that time, Signal Peak and MSHA Coal District 9 have
engaged in plan negotiations and discussed various plan provisions. On June 21, 2016, after
more than a year of discussion, Signal Peak made its third request that a “technical citation” be
issued indicating an impasse in the negotiation. MSHA Inspector James Preece issued Citation
No. 9021220 on July 21, 2016, pursuant to Section 104(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §814(a), alleging a violation of 30 C.F.R. §75.370(a)(1). The citation
states that Signal Peak submitted a proposal for a single-entry longwall return which was rejected
by MSHA. See Jt. Stips. ¶ 33. The citation also references changes to the current plan to address
hazards in the event of a fan shut-down, but the parties have agreed to remove that portion from
the citation and continue working to resolve that matter. The issue remaining in dispute is the
mine’s request for a single-entry return air system in the longwall tailgate. I incorporate all facts
listed in the stipulations above in these findings.
Background
Signal Peak’s Bull Mountain Mine is a large underground coal mine that operates using a
20,000 foot longwall system. The mine has very low methane levels, but there is a risk of
spontaneous combustion, also referred to in the testimony as a heating event. Because of these
factors, the mine uses a bleederless system in which the mined-out area, or gob, is sealed as
mining progresses. In a bleeder system, in contrast, air sweeps the gob in order to move gases out
through a system of bleeders.
In December 2011, the mine experienced a spontaneous combustion incident in the seam
above the one that was being mined, resulting in an extended closure of the mine. The mine was
using an exhausting ventilation system at that time, in which a fan pulls air through the mine. In
response to the spontaneous combustion incident, the company switched to a blowing ventilation
system, in which the fan forces air into the mine. In the blowing system, air enters the mine at
headgate entries one and two and puts pressure on the longwall face. Some air may still enter the
mined-out area through leaks in the longwall and in the seals surrounding the mined-out area. To
minimize the effect of air that gets into the gob, the company injects nitrogen into the mined-out
area to keep oxygen levels low to prevent combustion. The company also takes weekly bag
samples along the headgate and tailgate to monitor gases in the mined-out area.
The mine’s current ventilation plan, shown in the Secretary’s Exhibit 2, is a dual-entry
return system at the tailgate. See also Sec’y Ex. 24. Air is blown into the mine on the headgate
side through entries one and two. At the longwall, a portion of the air is directed out headgate
entry three, which houses the belt, and some air also continues inby the longwall face in headgate
entries one and two. The remaining air is directed across the longwall face from headgate to
tailgate. When the air reaches the end of the longwall shields at the tailgate side, there is a “Tsplit.” A regulator directs part of the air out tailgate entry one. The remaining air is directed inby,
where it is sent right at the next crosscut, then directed out tailgate entry two. See Sec’y Ex. 24.
Several witnesses referred to this portion of the system as the “back-around return.” The mine’s

39 FMSHRC Page 644

current ventilation plan has been in place since January 2013 and has successfully limited
spontaneous combustion since that time. The plan has also successfully kept the air pressure as
required and has diluted the various toxins that result from mining.
The mine seeks to amend the ventilation plan to change the manner in which the air
travels after sweeping the face. The mine’s amended plan would omit the T-split and backaround return from the dual-entry system, and instead have the air leave the mine in just one
entry, tailgate entry one. The Secretary’s Exhibit 26 illustrates the proposed single-entry plan.
Like the current plan, the amended plan would be a bleederless blowing air system.
Signal Peak argues that a single-entry return in the tailgate has several advantages over
the current dual-entry system. It argues that the new system will reduce material-handling
hazards because miners will not have to install roof support in the second tailgate entry.
Exposure to roof hazards will also be reduced because miners will be able to build crosscut seals
on the headgate side in advance of the longwall face instead of inby where there are greater roof
hazards, as is required under the dual-entry plan. Additionally, the company believes that a
single-entry system will reduce the oxygen content in the mined-out area, thus lessening the risk
of spontaneous combustion.
The Secretary argues that the dual-entry plan is safer for miners because it better protects
miners from noxious air on the tailgate side of the longwall and allows for earlier detection of
spontaneous combustion. Thus, the Secretary argues that the district manager was not arbitrary
and capricious in rejecting Signal Peak’s proposed single-entry plan.
Plan Negotiations
Signal Peak submitted its proposal to change its ventilation system on January 12, 2015.
Sec’y Ex. 3. In addition to the specifications of the plan, the mine submitted a summary of the
potential advantages of a single-entry plan. The mine received a letter on April 3, 2015,
indicating that the plan was not approved and requesting further information. Sec’y Ex. 4. The
rejection cited concerns over relocation of several seals, monitoring of contaminants, and buildup
of contaminants at the longwall tail. Id. The company submitted a revised plan on April 23,
2015, addressing those concerns, as well as an issue regarding carbon monoxide alarms that had
been raised in discussions with MSHA. Sec’y Ex. 5. On May 5, 2015, representatives from
Signal Peak and MSHA held a conference call to discuss the revised submission. The principal
representatives were Sid Hansen, the ventilation supervisor for MSHA Coal District 9, and
Robert Ochsner, Chief Engineer at Signal Peak. Following the conference call, the mine
submitted a second revised plan on May 6, 2015. Sec’y Ex. 6. This submission provided
additional information on issues that had been raised in discussions with MSHA, including
carbon monoxide monitoring and alert and alarm levels. MSHA responded with a deficiency
letter on May 29, 2015, based on the same issues raised in previous discussions. Sec’y Ex. 7. On
July 9, 2015, representatives from Signal Peak, including Ochsner and Joseph Farinelli, Vice
President of Engineering, met in Denver to discuss the plan with representatives from MSHA,
including Hansen and the district manager, Russell Riley. The company submitted a third
revision of the plan on July 23, 2015. Sec’y Ex. 8. The representatives from Signal Peak
indicated that the new plan addressed all of the issues discussed at the Denver meeting, and they

39 FMSHRC Page 645

believed the plan would be approved. However, after reviewing the submission, the district
manager decided to seek assistance from MSHA’s technical support division before making a
final decision.
On September 29, 2015, District Manager Riley requested assistance from the Ventilation
Division, Pittsburgh Safety and Health Technology Center (“Tech Support”) to review the plan.
Riley sought an in-depth review of the plan from Tech Support to assist him in making a final
decision. MSHA submitted the most recent plan to Tech Support with supporting documents.
Signal Peak also submitted materials to Tech Support, including maps, testing results, and
examination records. Dennis Beiter was assigned as the lead person from Tech Support on the
review of the plan. Beiter and his team spoke with the mine and reviewed all of the documents
submitted. Beiter considered the information that had been submitted and issued a report on
January 13, 2016, recommending against the single-entry system. Sec’y Ex. 10(a). The report
was sent to District 9 and subsequently forwarded to Signal Peak.
Ochsner, the Signal Peak Chief Engineer, was disappointed with the result of Beiter’s
report and felt that Beiter had focused too much on the merits of the dual-entry system, while
neglecting the merits of the single-entry system. At this point, Brad Hanson, the superintendent
at Signal Peak, sent a letter to the district manager requesting a technical citation so that the
matter could be decided outside of MSHA. Sec’y Ex. 11. However, Riley did not feel that the
parties had reached an impasse, and continued to review the matter, speak to the mine, and
gather more information. In particular, Tech Support had indicated to the district office that the
mine’s current ventilation plan might need to address hazards in the event of a fan stoppage.
Accordingly, Riley requested that Tech Support work with the mine to test the effects of
a fan stoppage in both the dual-entry system and a simulation of the single-entry system. Tech
Support, District 9, and Signal Peak collaborated to design the test, and it was performed in April
2016. Sec’y Ex. 14. The results were addressed in a May 3, 2016 report to District 9 from
Thomas Morley, an engineer with MSHA Tech Support who worked on the tests. Sec’y Ex.
15(a). Morley concluded that changes should be made to the dual-entry plan to address fan
stoppage concerns, and that the changes could also be incorporated into a single-entry plan.
Signal Peak submitted a revised plan for a single-entry return on May 16, 2016, addressing
issues raised by the fan stoppage test. Sec’y Ex. 16. Shortly thereafter, mine representatives
discussed the fan stoppage issues with Hansen, the MSHA ventilation supervisor, and based on
that discussion submitted another revised single-entry plan on May 18, 2016. Sec’y Ex. 17.
MSHA responded with a deficiency letter on June 15, 2016, explaining that it believed that a
dual-entry return was safer than a single-entry and that it still had concerns about a fan stoppage.
Sec’y Ex. 19.
The company sent a second request for a technical citation to MSHA on May 25, 2016,
and a third request on June 21, 2016, after it received the June 15 deficiency letter. Sec’y Exs.
18, 20. In the June 21 letter, Signal Peak expressed that it was willing to make MSHA’s
proposed changes regarding fan stoppage, but that it objected to MSHA’s continued rejection of
a single-entry plan. Sec’y Ex. 20. MSHA eventually agreed that the parties were at an impasse
and issued a technical citation on July 21, 2016. Sec’y Ex. 1.

39 FMSHRC Page 646

The Commission has determined that plan formulation under the Mine Act requires
MSHA and the operator to negotiate in good faith for a reasonable period of time concerning
disputed plan provisions. Carbon Cty. Coal Co., 7 FMSHRC 1367, 1371 (Sept. 1985). Good
faith negotiation includes “giving notice of a party’s position and adequate discussion of
disputed provisions.” C.W. Mining Co., 18 FMSHRC 1740, 1747 (Oct. 1996). In this proceeding,
there is ample evidence that MSHA and Signal Peak negotiated in good faith.
Evaluation of the Plans
Russell Riley, the MSHA district manager, testified regarding his understanding of the
merits of Signal Peak’s proposed plan. Riley was responsible for making the ultimate decision to
reject the single-entry plan. He discussed a number of advantages of a dual-entry plan over a
single-entry. First, the dual-entry plan allows for the “back-around return” area, which Riley
believes helps prevent noxious air from entering the working areas. He explained that the mine’s
blowing ventilation system puts pressure on the gob, and the gob gasses tend to release into the
area at the tailgate end of the face because that area is open. Thus, there is a possibility for
noxious gasses to accumulate there. However, he believes the T-split in the dual-entry system
relieves some of the pressure because it provides a place for noxious air to go when it comes out
of the gob and prevents it from building up. Noxious air flows into the inby crosscut at the Tsplit, away from the shields and the face where miners are working. The T-split with backaround return is not possible in a single-entry mine. See Sec’y Ex. 26.
Dennis Beiter, the Tech Support engineer who reviewed the plan for MSHA, also
testified as to the merits of the two plans. He was qualified as an expert in underground mine
ventilation based on his education, training, and experience as a mining engineer. His original
report on the plans for MSHA was also introduced into evidence. Sec’y Ex. 10(a). Beiter based
his review of the Signal Peak plan on information provided by MSHA and the mine. He was not
told whether District 9 had a preference for one plan over the other, but rather was directed to
conduct an independent review of the single-entry and dual-entry plans. His report ultimately
endorsed the dual-entry plan. Sec’y Ex. 10(a). He also reviewed the submissions of the mine
made after his report was issued and saw nothing to change his opinion.
Beiter’s testimony supports Riley’s explanation of the advantages of the back-around
return. He explained that the mined-out area contains empty pockets where gases can
accumulate, including nitrogen that the mine injects to prevent combustion. Some of these gases
exit the mine through surface cracks, but they can also be released at the face. The air blowing
across the face helps to carry the gases away from the active area where miners are working and
keep them behind the shields. But at the end of the face, the air and contaminants enter the
tailgate. At this point in the dual-entry system, many of the gases are drawn into the back-around
return area because that area has low pressure compared to the area outby the face. See Sec’y Ex.
24. A regulator between tailgate entries one and two causes most of the contaminated air to go
out the number two entry, so that the air in tailgate entry one, where miners are more likely to be,
remains cleaner. While miners do not typically work in either tailgate entry and the entries are
not escapeways, entry one must be maintained for the purpose of egress off the face in an
emergency and may be accessed by ventilation workers and examiners. Beiter explained that in
the single-entry system with no back-around return, there would be more contaminants in tailgate

39 FMSHRC Page 647

entry one, since contaminants would not be directed into entry two. The concentration would be
especially high at the end of the shields at the tailgate area, where miners would exit the face. He
believes that the back-around return is the best system for keeping noxious gases out of the
working area.
Joseph Farinelli testified as an expert on behalf of Signal Peak. He has worked at the
mine for three years, and so was not present during the spontaneous combustion incident in
2011, but is familiar with it. One of Farinelli’s duties at the mine is to review and develop the
roof control and ventilation plans. He engaged in the discussions with MSHA regarding the
proposed changes to the mine’s ventilation plan and wrote most of the letters from the mine to
the district manager, including the request for a technical citation. Farinelli disagreed with
Beiter’s prediction that there would be contaminants at the end of the tailgate in a single-entry
plan. He explained that because the pressure in a blowing system is higher on the face than in the
gob, contaminants are unlikely to move from the mined-out area into the higher-pressure tailgate.
Beiter disagreed that the positive ventilation pressure would prevent gob gasses from entering
the working area. Robert Ochsner disputed Riley’s depiction of the pressurized gob, saying that
the nitrogen injections were small compared to the size of the gob and so did not add
substantially to the pressure in the gob.
As a second advantage of the dual-entry system, Riley explained that the system allows
for early detection of noxious gasses that could be harmful to miners. The dual-entry system
allows for placement of a monitoring device in the back-around return behind the face. Riley
believes that having the monitor further from the face allows for earlier detection of gasses
coming out of the gob before they reach the working face.
Beiter confirmed that the dual-entry system allows for better detection of spontaneous
combustion in the gob. In the dual-entry system, contaminants are concentrated in the backaround return as described above. This allows for placement of a monitoring device where the
contaminants are most concentrated, which gives clearer readings of changing conditions in the
mine. In the single-entry system, the contaminants are mixed into the airflow and never
concentrated in one spot, so changes in gases in the air are harder to detect. Thus, the dual
system allows for better monitoring of carbon monoxide and other gases coming out of the
mined-out area that could indicate spontaneous combustion. Further, Beiter noted that the dualentry plan allows for installation of a tube-bundle into the mined-out area for additional
monitoring.
Farinelli believes that the monitoring advantage of the back-around system described by
Beiter is minimal. He explained that the monitoring done in the tailgate is less important than the
weekly bag samples from the gob, which are more accurate. Further, of the monitoring devices in
the working area, the monitor at the tailgate is not especially important. Farinelli also
emphasized that the important number in monitoring for spontaneous combustion is not the
concentration of carbon monoxide, but rather the quantity, and that trends are more important
than snapshots from a single monitor. Thus he believes that effective monitoring would still be
possible in a single-entry system.

39 FMSHRC Page 648

Finally, Riley discussed the results of the fan stoppage test, which was meant to
determine how quickly gasses would come out of the gob onto the working face in the event of a
fan stoppage. The mine performed the test on its current dual-entry system first, and then
performed the same test on a simulated single-entry system. In designing the tests, MSHA and
Signal Peak had decided that the test of the single-entry system would take place on the second
and third day of testing. However, the stopping simulating the single-entry system was installed
late, leaving the system in place prior to testing for less time than planned. In the test of the dualentry system, the oxygen concentration on the tailgate side of the face decreased to 14.7 percent
within 15 minutes of the fan stoppage. Gov’t Ex. 15(a). In the single-entry test, the oxygen
concentration dropped to 16.7 percent within 15 minutes. Id. Riley interpreted the results as
indicating that both systems were unsatisfactory in terms of the effect of a fan stoppage. Thomas
Morley, the MSHA engineer who supervised the test, came to the same conclusion, saying that
the concentration of oxygen declined at a similarly fast rate in both systems. Riley explained that
the slightly higher oxygen levels in the single-entry test could be explained by the fact that some
of the gob air had already been flushed out during the dual-entry test, and the gob had not yet had
time to return to its normal levels. Morley agreed. Ochsner disagreed, stating that a bore hole in
the gob did not show any change in the gob air between the first and second tests. Farinelli also
disagreed, arguing that the gob area would have returned to pre-test conditions quickly, and that
the reservoir of noxious air in the gob was much too large to have been drained in the first test,
which lasted 90 minutes. He interpreted the tests as showing that the single-entry system
performed as well as the dual-entry system, if not slightly better.
In addition to contesting Riley’s criticisms of the single-entry plan, Farinelli also
explained the advantages the company sees in a single-entry system. In Farinelli’s opinion, there
would be a lower risk of spontaneous combustion in the proposed single-entry plan because the
plan would reduce the amount of oxygen in the gob area. Farinelli believes that the dual-entry
system allows more oxygen into the gob because air travels directly into the gob in the backaround return. The company’s Exhibit H is a model depicting his predictions for the reduction in
oxygen in the gob based on data from air quality measurements in the gob under the dual-entry
plan. Farinelli also believes the single-entry system would reduce the amount of air entering the
gob on the headgate side, because it would allow for installation of seals in the headgate
crosscuts before the longwall face reaches each crosscut. In the dual-entry plan, the crosscut
seals cannot be installed until after the longwall passes each crosscut, because they are built
between entries two and three, where they would obstruct access to the escapeway in entry two.
Before each seal is constructed, there is an opening into the gob through which air could enter. In
the single-entry plan, the seals would be between entries two and three and so could be built
before the longwall advances without obstructing access to the escapeway.
Riley did not agree with Signal Peak that the single-entry system would better control
spontaneous combustion. He acknowledged that in the dual-entry system, some air enters the gob
through the tailgate. However, he noted that the mine’s closest nitrogen injection point to the
face is 15 crosscuts inby the gob. He believes that combustion is not a risk near the face, because
if it were, the mine would inject nitrogen closer to the face. Thus he believes the additional air
entering the gob near the face does not create a spontaneous combustion risk. Ochsner, the Chief
Engineer from Signal Peak, explained that it would be useless to inject nitrogen closer to the
face, because it would end up getting blown out the tailgate. Beiter also believed the risk of

39 FMSHRC Page 649

spontaneous combustion was low. He noted that there had been no spontaneous combustion
events at the mine under the current plan, which he interpreted as an indication that the plan was
effective. He believed the company’s concerns about air entering the gob on the headgate side
could be addressed by installing a curtain.
Another advantage of the single-entry plan discussed by Farinelli was a reduction of
material-handling hazards. Specifically, the back-around return in the dual-entry plan requires
building a seal inby the longwall face. See Sec’y Ex. 24. Farinelli explained that building the
seals involves installing a large timber frame and filling the entire entry with grout. He believes
installing seals inby the face is dangerous because there is substantial abutment pressure and
cracking in that area, and building the seal requires taking down the roof mesh. He also believes
the bad roof conditions could compromise the quality of the seal and allow more air to leak into
the gob. In the single-entry system, the seal would be constructed outby the face where roof
conditions were better. The placement of the seal in the single-entry system would also allow
miners to inspect both sides of the seal while it was being constructed. In addition to the seal, the
dual-entry system requires installing roof support and a water pumping and drainage system in
tailgate entry two inby the longwall face. The water system must also be recovered later when
the longwall moves forward. These installations involve bringing equipment including ladders
and wheelbarrows into the area and would not be necessary in a single-entry system. A summary
of Farinelli’s view of the plans is shown in Signal Peak’s Exhibit CCC, which was not submitted
to MSHA during plan negotiations.
Riley does not believe that material handling poses a significant hazard at the mine. He
noted that most of the roof support installation is done in the development phase of mining
before the longwall mining begins. This process would not be affected by a single-entry plan. He
also does not believe there are increased roof hazards in a dual-entry plan, since most roof
hazards arise in the development phase. Beiter stated that it was possible that building seals
outby the longwall face could decrease exposure to roof hazards, but noted that the mine had not
provided any records showing that safe access issues in fact existed in the dual-entry system. The
company also had not shown a history of problems caused by a lack of access to the back of the
seals during construction. Bradley Hanson, the mine’s CEO, agreed that there have been no roof
fall or material-handling accidents at the mine, but he believes there is still a risk.
After observing and listening to the testimony of the two chief expert witnesses, Beiter
and Farinelli, I find Beiter to be the more thoughtful and reasoned witness with regard to the two
ventilation plans. Beiter conducted his review of the plans independently and reached the same
conclusion as the ventilation specialist and district manager in District 9. Farinelli, on the other
hand, appeared single-minded, and was unable to consider the opinion of MSHA. He also is
heavily invested in the outcome. While Signal Peak argues that its experts had more experience
with mines susceptible to spontaneous combustion, whereas MSHA’s experts were used to
working with eastern gassy mines, I find that Beiter had significant experience with spontaneous
combustion to support his credibility.

39 FMSHRC Page 650

III. DISCUSSION
Section 303(o) of the Mine Act requires that “A ventilation system and methane and dust
control plan and revisions thereof suitable to the conditions and the mining system of the coal
mine and approved by the Secretary shall be adopted by the operator and set out in printed form
….” 30 U.S.C. §863(o). A ventilation plan is typically drafted by the operator, and mine and
MSHA personnel then negotiate to agree on a plan, which must be approved by the MSHA
district manager. 30 C.F.R. § 75.370(a)(1). The citation issued to Signal Peak here is a so-called
“technical citation” for operating without an approved plan, which enables parties who have
reached an impasse in plan negotiations to bring the matter before the Commission. See Mach
Mining, LLC v. Sec’y of Labor, Mine Safety & Health Admin., 728 F.3d 643, 655-56 (7th Cir.
2013).
In reviewing a district manager’s decision to deny approval of a proposed plan, the
Commission has held that judges should evaluate whether the action was arbitrary, capricious, or
an abuse of discretion. Prairie State Generating Co., 35 FMSHRC 1985, 1989 (July 2013), aff’d,
792 F.3d 82 (D.C. Cir. 2015); Mach Mining, LLC, 34 FMSHRC 1784, 1790 (Aug. 2012), aff’d,
728 F.3d 643 (7th Cir. 2013). The operator is not entitled to a de novo hearing on the merits of
the plan. Mach Mining, LLC v. Sec’y of Labor, Mine Safety & Health Admin., 728 F.3d 643 (7th
Cir.).
Signal Peak argues that under this standard of review, the Secretary is required to prove
that the operator’s plan is unsuitable for the mine. Resp. Br. 11. However, the Commission has
explicitly rejected the approach put forth by the mine. Prairie State, 35 FMSHRC at 1989 n.6. It
is true that in deciding whether to approve a plan, the district manager must determine whether
proposed plan provisions are suitable for the mine. Id.; see also 30 U.S.C. § 863(o) (“a
ventilation system … suitable to the conditions and the mining system of the coal mine and
approved by the Secretary”); 30 C.F.R. § 75.370(a)(1) (“a ventilation plan approved by the
district manager”). However, the Secretary is not required to prove suitability by a
preponderance of the evidence before the Commission. Prairie State, 35 FMSHRC at 1989 n.6.
Rather, the judge reviews the district manager’s determination under the arbitrary and capricious
standard. Id. Under that standard, the Secretary must prove only that the district manager
“examined the relevant data and articulated a satisfactory or reasonable explanation for his
determination.” Prairie State, 35 FMSRHC at 1989.
The district manager’s action may be considered arbitrary and capricious if
the agency has relied on factors which Congress has not intended it
to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter
to the evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of agency
expertise.
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). The Commission has emphasized that, while the operator plays an active role in

39 FMSHRC Page 651

developing the plan, “MSHA always retain[s] final responsibility for deciding what ha[s] to be
included in the plan,” and “absent bad faith or arbitrary action, the Secretary retains discretion to
insist upon the inclusion of specific provisions as a condition of the plan’s approval.” Prairie
State, 35 FMSHRC at 1989 (quoting UMWA v. Dole, 870 F.2d 662, 669 n.10 (D.C. Cir. 1989));
C.W. Mining Co., 18 FMSHRC 1740, 1746 (Oct. 1996). The Secretary’s approval of a
ventilation plan is akin to the formulation of a standard and “entails the exercise of the
Secretary’s independent judgment as to the appropriateness of the plan to ensure the health and
safety of the miners.” Mach, 728 F.3d at 657; see also Prairie State, 792 F.3d at 90.
Applying this legal standard to the case here, I find that the district manager did not abuse
his discretion. The record indicates that Riley sought and received advice from experts within his
district office and MSHA’s technical support staff, and considered the opinions of Signal Peak’s
engineers. He reviewed the multiple plan proposals, discussed them with MSHA and mine
personnel, and reviewed the expert reports from the MSHA technical support office. He
articulated a reasonable explanation for his findings in letters to the mine denying their
proposals.
Riley ultimately concluded that a dual-entry system would protect miners to the greatest
degree because it was more effective at removing noxious gases from the tailgate end of the
longwall where miners work. He also determined that the dual-entry system enabled better
monitoring of conditions in the gob. These conclusions were based on the opinions of highly
qualified experts in the MSHA district office and the technical support office and on Riley’s own
understanding of mine ventilation. Riley also considered the opinions of Signal Peak’s engineers,
specifically their concerns about material-handling hazards and increased air in the gob in a dualentry system. However, he determined based on the information presented by the mine that
material-handling hazards were not a significant problem under the dual-entry system. He also
determined that the risk of spontaneous combustion was suitably low under the dual-entry
system and that it was not necessary to decrease the amount of air entering the gob beyond the
current amount. While Signal Peak argues that Riley ignored the results of the fan stoppage test
because they were unfavorable to the dual-entry plan, Riley did consider the results of the test
but did not consider them to strongly favor either plan. It was evident at hearing that Riley had
examined the relevant data in reaching his conclusions, and he articulated his reasoning clearly
in his letters to the mine.

39 FMSHRC Page 652

I find that the decision of the district manager was based on careful consideration of all of
the relevant factors, and that he did not abuse his discretion in requiring the mine to use a dualentry plan. I therefore find that the citation was validly issued.
V. ORDER
Accordingly, I conclude that the Secretary has met his burden of proving that the district
manager did not abuse his discretion with regard to the plan provisions. Citation No. 9021220 is
AFFIRMED, and Contest Proceeding Docket No. WEST 2016-0624 is hereby DISMISSED.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge
Distribution: (U.S. First Class Certified Mail)
Michele A. Horn, Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., Suite
216, Denver, CO 80204
Ryan L. Pardue, Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., Suite 515,
Denver, CO 80204
R. Henry Moore, Jackson Kelly PLLC, Gateway Center, 401 Liberty Avenue, Suite 1500,
Pittsburgh, PA 15222

39 FMSHRC Page 653

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

March 8, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING

CONSOLIDATION COAL CO.,
Respondent.

Mine: Robinson Run No. 95

Docket No. WEVA 2015-0036
A.C. No. 46-01318-361663

DECISION APPROVING SETTLEMENT
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. The Secretary has filed a
motion to approve settlement. The originally assessed amount was $68,550.00, and the proposed
settlement is for $48,000.00. The Secretary has stated that Citation No. 8058726 is vacated. The
Secretary’s discretion to vacate a citation or order is not subject to review. RBK Contr. Inc., 15
FMSHRC 2099 (Oct. 1993). The Secretary also requests that several citations be modified, as
indicated in the table below.
The Court has considered the representations submitted in this case and concludes that
the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act.

39 FMSHRC Page 654

The settlement amounts are as follows:
Citation No.
8056133
8056135
8056136
8058691
8058695
8060023
8060024
8056421
8058726
8058698
8058699
8058700
8058701
8058729
8058703
8056597
8058706
8058707
8058708
8058709
8058743
8058710
8058749
8058750
8058711
8058599
8058600
8058865
8058766
8058768

Assessment
$2,282.00
$1,304.00
$1,944.00
$5,080.00
$5,080.00
$2,282.00
$2,282.00
$1,530.00
$1,944.00
$2,106.00
$2,106.00
$2,106.00
$1,203.00
$1,412.00
$1,412.00
$2,678.00
$5,080.00
$1,795.00
$1,026.00
$2,106.00
$3,405.00
$2,106.00
$2,106.00
$1,026.00
$1,795.00
$1,026.00
$1,412.00
$3,405.00
$2,106.00
$3,405.00

Settlement Amount
$687.00
$1,031.00
$1,689.00
$3,105.00
$3,105.00
$2,282.00
$1,823.00
$687.00
vacated
$1,100.00
$1,100.00
$1,100.00
$1,203.00
$1,412.00
$1,412.00
$2,012.00
$4,105.00
$1,795.00
$1,026.00
$1,100.00
$1,563.00
$1,100.00
$2,106.00
$1,026.00
$1,795.00
$1,026.00
$1,412.00
$687.00
$2,106.00
$3,405.00

TOTAL:

$68,550.00

$48,000.00

39 FMSHRC Page 655

The Secretary presents the following bases for the proposed reductions and modifications
in this case:
Citation
No.

30 C.F.R. §

80561331 75.400
Accumulation
of combustible
materials.

Gravity &
Negligence

Penalty
Assessed

S&S,
Reasonably
Likely, Lost
Work Days/
Restricted
Duty, 4
Affected;
Moderate

$2,282.00

Settlement Rationale
$687.00 Modify to low negligence, 1
affected
Respondent would present
evidence that the cited
conditions developed after the
most recent pre-shift
examination and existed for
less than one shift.
Additionally, any smoke
generated from a fire would
ventilate to the return thereby
reducing the number of miners
affected. Based on this and the
risks inherent in proceeding to
hearing, the Secretary agreed
to the above modifications and
reduction in penalty.

1

The citation asserted that, “Coal accumulations in the form of loose coal, coal fines and
coal dust exist at the 21- A Longwall Section (084-0 MMU) Tailpiece. 1). Measured coal
accumulations on the ‘walk side’ of the Tailpiece range from 10 inches deep, with ‘wear marks’
from the belt making contact with the coal, up to 18 inches deep at the Tail Roller. 2) . [sic]
Measured coal accumulations on the ‘offside’ of the Tailpiece range from 6 inches deep to 14
inches deep, with ‘wear marks’ from the belt making contact with the coal. At the Tail roller the
measured coal is 36 inches deep, with the Tail Roller grinding up coal into a fine coal and coal
dust. This section operated on Day Shift and Afternoon Shift mined 85 Shields. Standard 75.400
was cited 148 times in two years…” In the Secretary’s motion, supporting a 70% proposed
penalty reduction, he states in part that the Respondent “would present evidence that the cited
conditions developed after the most recent pre-shift examination and existed for less than one
shift.”

39 FMSHRC Page 656

Citation
No.

30 C.F.R. §

80561352 72.630(b)
Drill dust
control at
underground
areas of
underground
mines.

80561363 75.400
Accumulation
of combustible
materials.

Gravity &
Negligence

Penalty
Assessed

Settlement Rationale

S&S,
Reasonably
Likely,
Permanently
Disabling, 1
Affected;
Moderate

$1,304.00

$1,031.00 Modify to low negligence

S&S,
Reasonably
Likely, Lost
Work Days/
Restricted
Duty, 3
Affected;
Moderate

$1,944.00

Respondent would present
evidence that the cited
condition was more difficult to
detect than initially considered.
Based on this and the risks
inherent in proceeding to
hearing, the Secretary agreed
to the above modifications and
reduction in penalty.
$1,689.00 Modify to 1 affected
Respondent would present
evidence that any smoke
generated from a fire caused by
the cited conditions would
ventilate to the return thereby
reducing the number of miners
affected. Based on this and the

2

The citation asserted that, “The Dust Collection System for the Fletcher Roof Bolter
(Approval # 2G-2674A-5, Serial # 8804/2011315) operating on 21-A Longwall Section (084-0
MMU), is not maintained in a permissible and operating condition. When this Roof Bolter was
checked by this Inspector, at #2 Entry to #1 Entry, #29 Block, the following conditions existed:
1). The front dust collection hose (connected to the front drill head) has a measured 1 1/8 inch by
3/4inch hole, covered up by electrical tape. 2). A measured 1 inch of white fine dust is found
behind the filter media (dust filter), which has the clean side of the dust collection system
contaminated. A sample of this white fine dust is being sent to the MSHA Laboratory in
Pittsburgh, Pa. for Quartz Analysis…” The Secretary’s motion stated in part, “Respondent would
present evidence that the cited condition was more difficult to detect than initially considered.”
3

This citation asserted, “Combustible Material in the form of loose coal and fine coal has
been allowed to accumulate at the 21-A Longwall (084-0 MMU) Tailpiece. 1). Coal grinded up
into small fine coal exists at the Tail roller measuring 78 inches long by 24 inches deep by 18
inches wide, making contact with the Tail roller. 2). At the outby end of the Tail Piece, where the
V-Plow is, the coal accumulations measured 7 feet long by 14 inches deep to 24 inches deep by
24 inches wide making contact with the belt. This is the third time, that this Inspector has cited
this condition at the 21-A Longwall Section Tailpiece during this inspection Quarter…”
(emphasis added). The Secretary’s motion stated in part, “Respondent would present evidence
that any smoke generated from a fire caused by the cited conditions would ventilate to the return
thereby reducing the number of miners affected.” The inspection amended his findings to
unlikely and non-S&S, and the initially assessed penalty of $1,944.00 was derived from those
amended findings.

39 FMSHRC Page 657

Citation
No.

30 C.F.R. §

Gravity &
Negligence

Penalty
Assessed

Settlement Rationale
risks inherent in proceeding to
hearing, the Secretary agreed
to the above modifications and
reduction in penalty.

80586914 75.517
Power wires
and cables;
insulation and
protection.

8058695

75.517
Power wires
and cables;
insulation and
protection.

S&S,
$5,080.00
Reasonably
Likely, Fatal,
1 Affected;
Moderate

$3,105.00 Modify to low negligence

S&S,
$5,080.00
Reasonably
Likely, Fatal,
1 Affected;
Moderate

$3,105.00 Modify to low negligence

Respondent would present
evidence that, due to the
location of the cited condition,
it was more difficult to observe
than initially considered. Based
on this and the risks inherent in
proceeding to hearing, the
Secretary agreed to the above
modifications and reduction in
penalty.

4

Respondent would present
evidence that, due to the size
and location of the cited
condition, it was more difficult
to observe than initially
considered. Based on this and
the risks inherent in proceeding
to hearing, the Secretary
agreed to the above
modifications and reduction in
penalty.

The citation asserted, “The trailing cable supplying power to the Co. #6170 Joy 14ED25
(S/N JM6170) continuous miner being operated on the 1E, 040-0 MMU, working section, is not
insulated adequately and fully protected. There is a gap between a taped splice and the outer
jacket measuring 3" by 3/4, exposing the inner energized leads” (emphasis added). In support of
the proposed 39% penalty reduction, the Secretary stated in part, “Respondent would present
evidence that, due to the location of the cited condition, it was more difficult to observe than
initially considered.”

39 FMSHRC Page 658

Citation
No.

30 C.F.R. §

Gravity &
Negligence

Penalty
Assessed

Settlement Rationale

8060024

75.517

S&S,
Reasonably
Likely,
Permanently
Disabling, 1
Affected;
Moderate

$2,282.00

$1,823.00 Modify to low negligence

Power wires
and cables;
insulation and
protection.

Respondent would present
evidence that the cited
condition developed after the
most recent electrical
examination and was not
readily observable. Based on
this and the risks inherent in
proceeding to hearing, the
Secretary agreed to the above
modifications and reduction in
penalty.5

5

In considering this rationale, the Court assumes that the Secretary considered the
inspector’s notes.

39 FMSHRC Page 659

Citation
No.

30 C.F.R. §

80564216 75.202(a)
Protection from
falls of roof,
face and ribs.

8058698

75.403
Maintenance of
incombustible
content of rock
dust.

Gravity &
Negligence

Penalty
Assessed

S&S,
Reasonably
Likely, Lost
Work Days/
Restricted
Duty, 1
Affected;
Moderate

$1,530.00

Non-S&S,
Unlikely,
Fatal, 8
Affected;
Moderate

$2,106.00

Settlement Rationale
$687.00 Modify to low negligence
Respondent would present
evidence that the cited
conditions developed after the
most recent weekly
examination of the area, and
that miners rarely travel in this
location. Based on this and the
risks inherent in proceeding to
hearing, the Secretary agreed
to the above modifications and
reduction in penalty.
$1,100.00 Modify to low negligence, lost
work/restricted duty, 2 affected
Respondent would present
evidence that the cited
conditions were not visible to
the unaided eye as the
incombustible content of the
two samples was no more than
0.3% less than the required

6

This citation alleged violations spanning several areas: “The ribs where miners work or
travel was not adequately supported or otherwise controlled in the following locations in the #3
entry of the 21-A section: 1) No. 42-44 crosscut, the rib was gapped 1-3 inches from the solid
rib. The ribs (36 inches long, 24 inches wide, and 3 inches thick; 32 inches long, 25 inches wide
and 3 inches thick and 18 feet long, 25 inches wide and 3-4 inches thick) were pryed down. 2)
No. 44-46 crosscut, a piece of rib (43 inches long by 50 inches wide and 2 inches thick) was
gapped 2-3 inches from the solid rib. 3) No. 46-48 crosscut, the rib was gapped 3-4 inches from
the solid rib. A piece 6 feet long by 31 inches wide and 5 inches thick was pryed down. 4) No. 50
crosscut, a piece of rib 29 inches long by 18 inches wide and 6 inches thick was gapped from the
solid rib 1-3 inches. 5) No. 56-58 crosscut, a piece of rib 47 inches long by 50 inches wide and 3
inches thick was gapped from the solid rib 2-3 inches. 6) No. 62-64 crosscut, a piece 72 inches
long by 54 inches wide and 3 inches thick was gapped from the solid rib 2-3 inches. 7) No. 74-76
crosscut, a piece of rib 40 inches long by 31 inches wide and up to 4 inches thick was gapped 2-3
inches from the solid rib. 8) No. 76-78 crosscut, a piece of rib 48 inches long by 31 inches wide
and 4 inches thick was gapped from the solid rib 1-3 inches. 9) No. 76-78 crosscut, a piece a rib
70 inches long by 28 inches wide and 6 inches thick was gapped 2- 3 inches from the solid rib.”
The Secretary’s motion stated in part, “Respondent would present evidence that the cited
conditions developed after the most recent weekly examination of the area, and that miners
rarely travel in this location.” The Court notes that neither document indicates how much time
passed between the most recent examination and the inspection.

39 FMSHRC Page 660

Citation
No.

8058699

30 C.F.R. §

75.403

Settlement Rationale
80%. Based on this and the
risks inherent in proceeding to
hearing, the Secretary agreed
to the above modifications and
reduction in penalty.
$1,100.00 Modify to low negligence, lost
work/restricted duty, 2 affected

$2,106.00

Non-S&S,
Unlikely,
Fatal, 8
Affected;
Moderate

$2,106.00

$1,100.00 Modify to low negligence, lost
work/restricted duty, 2 affected
Respondent would present
evidence that the cited
conditions were not visible to
the unaided eye as the
incombustible content of the
sample was no more than 1.2%
less than the required 80%.
Based on this and the risks
inherent in proceeding to
hearing, the Secretary agreed
to the above modifications and
reduction in penalty.

75.380(d)(7)(vi) Non-S&S,
Unlikely,
Escapeways;
Fatal, 10
bituminous and Affected;
lignite mines.
Moderate

$2,678.00

$2,012.00 Modify to lost work/restricted
duty

75.403
Maintenance of
incombustible
content of rock
dust.

8056597

Penalty
Assessed

Non-S&S,
Unlikely,
Fatal, 8
Affected;
Moderate

Maintenance of
incombustible
content of rock
dust.

8058700

Gravity &
Negligence

Respondent would present
evidence that the cited
conditions were not visible to
the unaided eye as the
incombustible content of the
sample was no more than 0.9%
less than the required 80%.
Based on this and the risks
inherent in proceeding to
hearing, the Secretary agreed
to the above modifications and
reduction in penalty.

Respondent would present
evidence that the injuries

39 FMSHRC Page 661

Citation
No.

30 C.F.R. §

Gravity &
Negligence

Penalty
Assessed

Settlement Rationale
expected would be of the lost
work/restricted duty variety
from short delays in escaping
in an emergency. Based on this
and the risks inherent in
proceeding to hearing, the
Secretary agreed to the above
modifications and reduction in
penalty.

80587067 75.517
Power wires
and cables;
insulation and
protection.

8058709

75.403
Maintenance of
incombustible
content of rock
dust.

S&S,
$5,080.00
Reasonably
Likely, Fatal,
1 Affected;
Moderate

Non-S&S,
Unlikely,
Fatal, 8
Affected;
Moderate

$2,106.00

$4,105.00 Modify to low negligence
Respondent would present
evidence that, due to the size
and location of the cited
condition, it was more difficult
to observe than initially
considered. Based on this and
the risks inherent in proceeding
to hearing, the Secretary
agreed to the above
modifications and reduction in
penalty.
$1,100.00 Modify to low negligence, lost
work/restricted duty, 2 affected
Respondent would present
evidence that the cited
conditions were difficult to
detect as the incombustible
content of the samples were
between 0.2% and 7.8% less
than the required 80%. Based

7

The citation alleged, “The trailing cable supplying power to the Co. #84 Joy shuttle car
being operated on the Tail Gate E, 088-0 MMU, working section, is not insulated adequately and
fully protected, in that [the] tape on the end of a 13” splice is rolled back exposing the energized
inner leads. The opening measures 1” by 1/8”. Outer jackets shall be replaced in such manner as
to prevent moisture from entering the cable. [Assuming] normal mining were to continue and the
condition [were] left unabated, it is reasonably likely a miner would receive fatal injuries due to
electrocution.” The Secretary’s motion stated in part, “Respondent would present evidence that,
due to the size and location of the cited condition, it was more difficult to observe than initially
considered.”

39 FMSHRC Page 662

Citation
No.

30 C.F.R. §

Gravity &
Negligence

Penalty
Assessed

Settlement Rationale
on this and the risks inherent in
proceeding to hearing, the
Secretary agreed to the above
modifications and reduction in
penalty.

8058743

75.1505(a)
Escapeway
maps.

8058710

75.403
Maintenance of
incombustible
content of rock
dust.

S&S,
$3,405.00
Reasonably
Likely, Fatal,
1 Affected;
Moderate

Non-S&S,
Unlikely,
Fatal, 8
Affected;
Moderate

$2,106.00

$1,563.00 Modify to lost work/restricted
duty
Respondent would present
evidence that the injuries
expected would be of the lost
work/restricted duty variety
from short delays in escaping
in an emergency. Based on this
and the risks inherent in
proceeding to hearing, the
Secretary agreed to the above
modifications and reduction in
penalty.8
$1,100.00 Modify to low negligence, lost
work/restricted duty, 2 affected
Respondent would present
evidence that the cited
conditions were difficult to
detect as the incombustible
content of the samples was
only 2.2% less than the
required 80%. Based on this
and the risks inherent in
proceeding to hearing, the
Secretary agreed to the above
modifications and reduction in
penalty.

8

The Court assumes that the Secretary considered the distance between the #6 block and
the #4 block when proposing the 54% reduction in penalty amount. No filings submitted contain
information on this point.

39 FMSHRC Page 663

Citation
No.

30 C.F.R. §

Gravity &
Negligence

Penalty
Assessed

80588659 75.360(a)(1)

S&S,
Reasonably
Likely, Lost
Work Days/
Restricted
Duty, 1
Affected;
High

$3,405.00

Preshift
examination at
fixed intervals.

Settlement Rationale
$687.00 Modify to unlikely, non-S&S
Respondent would present
evidence that the most of the
underlying conditions leading
to the examination violation
were unlikely to cause injury.
Based on this and the risks
inherent in proceeding to
hearing, the Secretary agreed
to the above modifications and
reduction in penalty.

WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citation No. 8056133 be MODIFIED to low negligence and to 1
person affected.
It is ORDERED that Citation Nos. 8056135, 8058691, 8058695, 8060024, 8056421, and
8058706 be MODIFIED to low negligence.
It is ORDERED that Citation No. 8056136 be MODIFIED to 1 person affected.
It is ORDERED that Citation Nos. 8058698, 8058599, 8058700, 8058709, and 8058710
be MODIFIED to 2 persons affected, low negligence, and to lost work/restricted duty.

9

The citation alleged, “An inadequate examination has been conducted for the oncoming
afternoon shift on the Tailgate E continuous miner section (088-0 mmu). The following
conditions existed at the start of the oncoming shift as cited in violation numbers 8058599,
8058600, 8058861. A scoop has been parked under the lifeline at the end of the track limiting the
width of the escapeway to 22”. Combustible material in the form of coal fines and lump coal has
accumulated under and along side the conveyor belt from 62 block to 66 block. Combustible
material is present in the #1 entry inby the feeder, in the #1 to #2 cross-cut at 67 block and in the
#1 to #2 cross-cut at 68 block. The accumulations are obvious and extensive. A hole is present in
the ventilation control between the belt entry and haulage intake escapeway at 62 block. None of
the cited conditions have been listed in the pre-shift record book. There has been no production
on the section since afternoon shift on 8/7/2014.” In support of the proposed 80% reduction in
the proposed penalty amount, the Secretary’s motion stated in part, “Respondent would present
evidence that the most of the underlying conditions leading to the examination violation were
unlikely to cause injury” (emphasis added). The citation was issued at 6:30 p.m. on August 8,
2014.

39 FMSHRC Page 664

It is ORDERED that Citation Nos. 8056597 and 8058743 be MODIFIED to lost
work/restricted duty.
It is ORDERED that Citation No. 8058865 be MODIFIED to unlikely and non-S&S.
It is further ORDERED that Respondent pay a penalty of $48,000.00 within 30 days of
this order.10 Upon receipt of payment, this case is DISMISSED.

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

Distribution:
Ryan M. Kooi, Esq., Office of the Regional Solicitor, The Curtis Center, 170 S. Independence
Mall West, Suite 630 E, Philadelphia, PA 19106
Eric T. Frye, Esq., FLAHERTY SENSABAUGH BONASSO PLLC, 200 Capitol Street,
Charleston, WV 25338-3843
/KP

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

39 FMSHRC Page 665

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

March 15, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
DOCKET NO. KENT 2011-434

v.
NALLY & HAMILTON ENTERPRISES,

A.C. NO. 15-19076-240278
Mine Name: Chestnut Flats

Respondent.
DECISION UPON REMAND
Appearances:

Schean G. Belton, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner
S. Thomas Hamilton, Jr., Esq., Saltsman & Willett, PSC, Bardstown,
Kentucky, for the Respondent

Before:

Judge Moran

Procedural Background
In a decision issued on July 19, 2016, the Federal Mine Safety and Health Review
Commission (“Commission”) reversed this Court’s decision, holding that a violation of 30
C.F.R. § 77.1710(i) had been established. Nally & Hamilton Enterprises, 38 FMSHRC 1644
(July 2016). As the Commission summarized the incident:
The citation at issue arose out of an accident on April 21, 2010, in which a rock
truck overturned at Nally & Hamilton’s Chestnut Flats Mine in Kentucky. …
James Patterson, the driver of the truck, was not wearing a seatbelt at the time of
the accident and sustained injuries that resulted in lost work days.
Id., citing the Court’s decision, Nally & Hamilton Enterprises, 35 FMSHRC 2198, 2199-200
(July 2013) (ALJ).
The standard in issue provides, in relevant part, that, “[e]ach employee … shall be
required to wear protective … devices [including, within a list of items] … (i) Seatbelts in a
vehicle where there is a danger of overturning and where roll protection is provided.” 30 C.F.R.
§ 77.1710(i).

39 FMSHRC Page 666

The Commission affirmed this Court’s determination that no negligence was involved. It
remanded the matter for the Court to make a more complete analysis of whether the violation
was significant and substantial and then to assess a civil penalty, stating,
Regarding the issue of whether the violation was significant and substantial, the
Judge did not engage in sufficient analysis to permit action by the Commission.
Because a finding on the issue of whether the violation was significant and
substantial could affect the gravity element of the penalty assessment, we remand
the case to the Administrative Law Judge for further consideration of whether the
violation was significant and substantial and assessment of a penalty.
38 FMSHRC at 1652.
Statement of Law
A violation of the Act is significant and substantial (“S&S”) if it is of “such nature as
could significantly and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.” 30 U.S.C. § 814(d). It is proper to apply this designation when the facts
surrounding the violation demonstrate a reasonable likelihood that the hazard contributed to by
the violation “will result in an illness or injury of a reasonably serious nature.” Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 815 (Apr. 1981). In Mathies Coal Co., the Commission
explained that,
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861
F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
The Commission recently clarified that the second step of the Mathies analysis requires
the Secretary both to identify the relevant hazard at which the standard is directed, and to show a
reasonable likelihood that this hazard will occur, in light of the facts surrounding the instant
violation. Newtown Energy, Inc., 38 FMSHRC 2033, 2038 (Aug. 2016). During the third step,
the Secretary must prove that the hazard is reasonably likely to cause injury, with the assumption
that the specific hazard identified in the second step exists. Id. at 2045 (internal citations
omitted). The step three analysis is to assume the continuation of normal mining operations. U.S.
Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (citing Knox Creek Coal Corp. v. Sec’y of
Labor, 811 F.3d 148, 161-62 (4th Cir. 2016); Peabody Midwest Mining, LLC, 762 F.3d 611, 616
(7th Cir. 2014); Buck Creek Coal, 52 F.3d 133, 135 (7th Cir., 1995)). The Commission has
emphasized that it is “the contribution of a violation to the cause and effect of a hazard that must
be [S&S.]” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984).

39 FMSHRC Page 667

Pertinent Facts Upon Remand
In this Court’s July 2013 decision in this matter, it found that the accident occurred near
the end of truck driver Patterson’s night shift. The driver, who was not wearing his seat belt,
incurred an injury to his lower back from the truck overturning incident and missed some work
days as a result of his injury.
At the hearing and in its post-hearing brief, “[t]he Secretary … urged the Court to uphold
Inspector Smith’s S&S designation, for the injury producing event occurred as a result of Mr.
Patterson not wearing his seat belt when his rock truck overturned.” 35 FMSHRC at 2206 n. 5.
The Respondent maintained that “the evidence does not support an S&S finding because the first
two elements of the Mathies test were unproven by the Secretary.” Id. at n. 6.
Post the Commission’s remand, the Court invited the parties to submit additional
arguments, if any, on the S&S and penalty issues.
The Secretary, via an email response,1 asserted,
this matter is S&S. Our position incorporates the information, facts, arguments,
and law argued in the briefs previously submitted to both the ALJ and to the
Commission. In essence, at trial the Secretary proved that there was a reasonable
likelihood that the hazard contributed to would result in an injury of a reasonably
serious nature because the hazard did in fact result in an injury of a reasonably
serious nature - the driver suffered an injury that caused him to miss multiple days
of work. See e.g., S&S Dredging Co,. 2103 WL 3759791 (Jul.2013)2 (‘Muscle
strains, sprained ligaments, and fractured bones are injuries of a reasonably
serious nature for the purposed of the fourth element of the Mathies test.’) [sic] …
see also decision Nally & Hamilton, 35 FMSHRC 2198, 2200 (2013) (noting
Inspector Smith’s testimony that he observed a ‘big round knot’ on Patterson’s
back; that Patterson was hospitalized for several hours after the accident; and that
Patterson missed ‘some work days’ due to his injury).
E-mail from Secretary to the Court’s law clerk, dated August 23, 2016.
On August 24, 2016, the Respondent submitted a post-remand letter to the Court. In that
letter, it asserted that “[a] violation of 30 CFR 77.1710 [i] cannot be reasonably calculated to

1

docket.

The Secretary’s email response is part of the record within the e-CMS file for this

2

The Secretary’s citation to S&S Dredging Co. is incorrect. The correct citation is 2013
WL 8562447 (FMSHRC July 11, 2013). The quote from that case actually reads, “muscle
strains, sprained ligaments, and fractured bones are injuries of a reasonably serious nature for the
purposes of the fourth element of the Mathies test.” Id. at *2. (emphasis added).

39 FMSHRC Page 668

result in an injury, nor can it be reasonably calculated the hazard contributed to in a violation of
30 CFR 77.1710[i] will be of a reasonably serious nature.”3 R’s letter at 1.
Analysis
Applying the Mathies criteria, and the first factor, the Court begins with the
Commission’s determination that the standard was violated. Moving to the second factor,
whether there was a discrete safety hazard – a measure of danger to safety – contributed to by the
violation, the record establishes that the discrete hazard is a vehicular accident. The violation
contributed to a measure of danger: by not wearing a safety belt, miners face a higher risk of
injury should an accident occur.
The third factor, the reasonable likelihood that the hazard contributed to will result in an
injury, is more awkward to apply in this instance, as an accident did occur, and the driver was
not wearing his safety belt. Therefore it is hard to apply the analysis in the abstract setting most
often encountered.4 The Commission has not directly addressed the application of Mathies when
no prognostication is needed because an injury has occurred.
The Court concludes, per the existing Mathies standard, and apart from the particular
facts in this case, that there is a reasonable likelihood that the hazard contributed to will result in
an injury, based on the assumption that there is an inherent risk of an accident’s occurrence in the
operation of any vehicle. Not wearing a seat belt can’t contribute to the hazard of a vehicular
accident, but it can contribute to elements 2 and 4 of the Mathies analysis. It cannot be gainsaid
that, with any vehicular accident, there is a reasonable likelihood that the injury in question will
be of a reasonably serious nature. Accordingly, the Court finds that the violation was S&S.
Penalty Determination
Under section 110(i) of the Mine Act,
The Commission shall have authority to assess all civil penalties provided in this
chapter. 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
3

The Respondent does not further explain the basis for those conclusions, but rather
refers to its post-hearing brief and reply brief.
4

The “Ironic process theory or the white bear problem refers to the psychological process
whereby deliberate attempts to suppress certain thoughts make them more likely to surface. An
example is how when someone is actively trying not to think of a white bear they may actually
be more likely to imagine one. ‘Try to pose for yourself this task: not to think of a polar bear, and
you will see that the cursed thing will come to mind every minute.’” Ironic Process Theory,
Wikipedia (Jan. 6, 2017), https://en.wikipedia.org/wiki/Ironic_process_theory (citing Fyodor
Dostoevsky, Winter Notes on Summer Impressions, Vremya, 1863); see also Joe Zimmerman,
Op-Ed, Don’t Think About the White Bear, N.Y. TIMES, Mar. 11, 2017, at SR2.

39 FMSHRC Page 669

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. §110(i).
The special assessment process is not applied by the Commission; it is a creation used by
the Secretary when he believes such an assessment is “appropriate.” 30 C.F.R. §100.5(b). As
Commission Judge David F. Barbour noted in a 2017 decision,
[t]he Commission has recently clarified that the Secretary's special assessment
‘does not negate the Judge's duty to exercise his or her independent authority to
assess a penalty de novo based on the record and consideration of the section
110(i) criteria.’ The Commission has further instructed that, ‘Judges must be
attentive to the rationale supporting the decision to seek the special assessment
and the facts and circumstances supporting that decision, so that the ultimate
determination of the penalty conforms to the Judge's findings and conclusions.’
The American Coal Company, 38 FMSHRC 1987, 1993-94 (Aug. 2016).
Hunter Sand & Gravel v. Sec. of Labor, 39 FMSHRC 239, 278 (Jan. 2017) (ALJ).
History of previous violations
Per Exhibit P3, Respondent Nally & Hamilton’s Mill Branch mine has 15 violations in its
history report. Exhibit A refers to Respondent’s Chestnut Flats mine, and that reflects, without
elaboration, 51 violations. The Chestnut Flats Mine has no history of prior violations of the cited
standard. The Secretary introduced Ex. P 3, but offered no explanation of the role, if any, as to
Exhibit A, which is part of the official file. Unexplained, the information is undecipherable. The
Court concludes that, at worst, the Respondent has a modest violation history.
Appropriateness of such penalty to the size of the business
Applying, for the moment, the Secretary’s Mine Size criteria, per Part 100, the
Respondent is in the range of a high moderate to large mine. However, per the parties’
stipulations, the Respondent is deemed to be a large mine operator.
Negligence
The Commission (as well as this Court, in its initial decision) has determined that there
was no negligence involved. The absence of negligence has significance in the Court’s penalty
analysis.
A few observations about negligence made by fellow Commission Administrative Law
Judges are mentioned here. Administrative Law Judge L. Zane Gill noted in Northern Illinois
Service Co. that,
Negligence is ‘conduct, either by commission or omission, which falls below a
standard of care established under the Mine Act to protect miners against the risks
of harm.’ 30 C.F.R. § 100.3(d). Mine operators are ‘required to be on the alert for

39 FMSHRC Page 670

conditions and practices in the mine that affect the safety or health of miners and
to take steps necessary to correct or prevent hazardous conditions or practices.’ Id.
No negligence exists when ‘[t]he operator exercised diligence and could not
have known of the violative condition or practice.’ Id.
Secretary v. Northern Illinois Service Co., 37 FMSHRC 1514, 1518 (July 2015) (ALJ) (emphasis
added).
Administrative Law Judge Thomas McCarthy remarked in Sims Crane,
Negligence is not defined in the Mine Act. … [however] 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) … 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. … an
operator is negligent if it fails to meet the requisite high standard of care under the
Mine Act. Brody Mining, 37 FMSHRC at 1701.
Secretary v. Sims Crane, 39 FMSHRC 116, 118 (Jan. 2017) (ALJ).
The point is, by finding that Nally & Hamilton was not negligent, the Commission,
correctly, in the Court’s view, determined that the Respondent met the high standard of care and
that there were no other actions that it should have taken. Indeed, at least in this case, short of
extreme and unreasonable measures, such as installing surveillance cameras in all of its trucks
and having someone continually monitor the seat belt usage, Respondent did all that it could.
Thus, there can’t be any deterrent effect achieved by imposing a significant penalty, as
the finding of no negligence means the operator could not have done more. This does not mean
that the Respondent need do nothing. Looking forward, it may be that, by imposing a sanction on
the employee for his failure to comply with the mine’s requirement that seat belts are to be worn,
such discipline5 may heighten the awareness of other employees that compliance is mandatory
and the consequences may be significant, if the rule is not followed.
Effect on the operator’s ability to continue in business
The parties have agreed that the proposed penalty will not affect Respondent’s ability to
continue in business. Sec PH Br. at 2.
Gravity of the violation
The Commission has spoken to the criterion of gravity, expressing that it has
“consistently considered gravity holistically, considering ‘factors such as the likelihood of injury,
the severity of an injury if it occurs, and the number of miners potentially affected.’” Am. Coal
Co., 9 FMSHRC 8, 20 (Jan. 2017) (internal citation omitted). It has also stated that “[t]he key
5

Of course, the suggestion is made under the assumption that the mine’s disciplinary
procedures are being properly followed.

39 FMSHRC Page 671

element of the gravity determination is judging the type and extent of injuries or illnesses
reasonably likely to occur based upon the record in the case.” Id.
In the Newtown Energy, Inc. decision, the Commission remarked that “[t]he 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.’ …The gravity analysis focuses on factors such as the
likelihood of injury, the severity of an injury if it occurs, and the number of miners potentially
affected.” 38 FMSHRC at 2049 (citing 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); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987)).)
The inspector marked the gravity as “Occurred” with lost work days, S&S, and one
person affected. The Court finds that the inspector’s evaluation of the gravity is consistent with
the record evidence and, as noted, the Court has found that the violation was S&S.
Demonstrated good faith of the person charged in attempting to achieve rapid
compliance after notification of a violation
The Secretary admits that the Respondent abated the violation in a timely manner and in good
faith. Sec. PH Br. at 1.
Conclusion
Upon consideration of each of the penalty factors, the Court imposes a civil penalty of
$200.00 (two hundred dollars), an amount which is double the amount it originally considered
assessing if the Commission were to reverse the Court’ initial determination that no violation had
occurred. To impose a larger penalty does not seem warranted or fair. In the Court’s view,
among the statutory penalty factors, negligence must be considered the first among equals. To
illustrate this, imagine each of the penalty factors to be as determined in this case and then
assume further that a fatality occurred. If one were to conclude that a significant penalty was in
order in such a case, it would mean that, though no negligence was attendant, such a penalty was
appropriate merely because a fatal event occurred at a large mine, with no history of a prior
violation of the standard. Under such circumstances, a hefty penalty would be solely for the
purpose of imposing such a penalty for its own sake.

39 FMSHRC Page 672

In the Court’s estimation, with no deterrent effect possible, the Respondent, negligencefree as it was, could not have reasonably done anything else to avoid the violation’s occurrence.
With that in mind, the Court concludes that the penalty imposed is appropriate.
ORDER
The Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $200.00
(two hundred dollars) within 30 days of the date of this decision.6

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

6

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

39 FMSHRC Page 673

Distribution:
S. Thomas Hamilton, Esq., Saltsman & Willett, PSC, 212 E. Stephen Foster Ave., Bardstown,
Kentucky 40004
Schean G. Belton, Esq., Office of the Solicitor, 618 Church Street, Suite 230, Nashville,
Tennessee 37219
Martin J. Cunningham, Esq., Bingham Greenebaum Doll, LLP, 300 West Vine St., Ste. 1100,
Lexington, Kentucky 40507
Sara L. Johnson, Esq., Office of the Solicitor, U.S. Department of Labor, 201 12th St. South,
Suite 401, Arlington, Virginia 22202
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 201 12th St.
South, Suite 401, Arlington, Virginia 22202
Melanie Garris, Office of Civil Penalty Compliance, MSHA, U.S. Department of Labor, 201
12th St. South, Suite 401, Arlington, Virginia 22202
Brian C. Mauk, Esq., Office of the Solicitor, 618 Church Street, Suite 230, Nashville, Tennessee
37219

39 FMSHRC Page 674

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
TH

721 19 STREET, SUITE 443
DENVER, CO 80202-2500
303-844-3577/FAX 303-844-5268

March 20, 2017
STAR MINE OPERATIONS, LLC,
Contestant
v.

CONTEST PROCEEDING
Docket No. WEST 2014-592-RM
Order No. 8754779; 04/01/2014

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

Revenue Mine
Mine ID 05-03528

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2014-994-M
A.C. No. 05-03528-359228-01
Docket No. WEST 2014-995-M
A.C. No. 05-03528-359228-02

v.

Docket No. WEST 2015-023-M
A.C. No. 05-03528-360911-01
Docket No. WEST 2015-024-M
A.C. No. 05-03528-360911-02

STAR MINE OPERATIONS, LLC,
Respondent

Docket No. WEST 2015-025-M
A.C. No. 05-03528-360911-03
Docket No. WEST 2015-030-M
A.C. No. 05-03528-361952-01
Docket No. WEST 2015-031-M
A.C. No. 05-03528-361952-02
Docket No. WEST 2015-037-M
A.C. No. 05-03528-363546-01
Docket No. WEST 2015-038-M
A.C. No. 05-03528-363546-02
Docket No. WEST 2015-098-M
A.C. No. 05-03528-365154

39 FMSHRC Page 675

Docket No. WEST 2015-127-M
A.C. No. 05-03528-365446-01
Docket No. WEST 2015-128-M
A.C. No. 05-03528-365446-02
Docket No. WEST 2015-304-M
A.C. No. 05-03528-369866-01
Docket No. WEST 2015-305-M
A.C. No. 05-03528-369866-02
Docket No. WEST 2015-306-M
A.C. No. 05-03528-369866-03
Docket No. WEST 2015-370-M
A.C. No. 05-03528-372806
Docket No. WEST 2015-440-M
A.C. No. 05-03528-375046
Docket No. WEST 2015-462-M
A.C. No. 05-03528-376084
Docket No. WEST 2015-547-M
A.C. No. 05-03528-378328
Docket No. WEST 2015-596-M
A.C. No. 05-03528-379026
Docket No. WEST 2015-670-M
A.C. No. 05-03528-381766
Revenue Mine
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 2017-093-M
A.C. No. 05-03528-423306 A
Revenue Mine

RORY WILLIAMS, agent of
STAR MINE OPERATIONS, LLC,
Respondent

39 FMSHRC Page 676

ORDER LIFTING STAY
DECISION APPROVING SETTLEMENT
Before: Judge Manning
These cases are before the Federal Mine Safety and Health Review Commission (the
“Commission”) on one contest case brought by Star Mine Operations, LLC (“Star Mine”), 21
petitions for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine
Safety and Health Administration (“MSHA”), against Star Mine pursuant to sections 105 and
110(c) of the Federal Mine Safety and Health Act of 1977, as amended (the “Mine Act”), and
one petition for assessment of civil penalty brought by the Secretary against Rory Williams
under section 110(c) of the Mine Act. 30 U.S.C. §§ 815 and 820. The parties have filed a Joint
Motion to Approve Settlement and Order Payment (“Joint Motion”).
Star Mine began operating the Revenue Mine (the “Mine”), an underground silver mine
in Ouray County, Colorado, in 2011. These cases involve 172 citations and orders that were
issued by MSHA following two separate accidents at the Mine that were subject to MSHA
investigations.
On November 17, 2013, two miners died of carbon monoxide poisoning in an
unventilated portion of the Mine. Other miners were taken to a hospital and subsequently
released. The deaths occurred when miners entered an area where there had been an
exceptionally large detonation of explosives the previous day. The Secretary referred this
accident to the United States Attorney for the District of Colorado for a criminal investigation.
On August 29, 2014, two miners sustained injuries following a planned underground blast. This
second accident was not the subject of a criminal investigation but this settlement includes
citations and orders issued following that accident.
The cases before me were stayed pending the completion of a criminal investigation,
which has now been completed. The parties have entered into a Plea Agreement resolving all
criminal matters arising out of the November 17, 2013 accident. The Plea Agreement was
approved by the Honorable Christine M. Arguello of the United States District Court for the
District of Colorado on March 16, 2017 in Case No. 16-CR-00350.
Star Mine and other entities with ownership interests in the Mine contracted with Fortune
Revenue Silver Mines, Inc. (“Fortune’) to sell to Fortune all the assets related to the operation of
the Mine and to transfer operational responsibility to Fortune effective October 1, 2014.
Following that effective date, Star Mine and its owners and managers ceased to hold any interest
in the Mine.
The parties have proposed a settlement that resolves all matters pending before me. Star
Mine has agreed to accept all the citations and orders as written. The parties state that since
October 1, 2014, the closing date of the sale to Fortune, Star Mine has not directly or indirectly
participated in the mining business in the United States and Star Mine agrees to be permanently
barred from the mining business in the United States. Star Mine’s co-owners and managers, Rory
Williams and James W. Williams, Jr., agree that they will not, directly or indirectly, actively

39 FMSHRC Page 677

participate in or manage, or hold any controlling interest in any mining business or operation in
the United States. These two individuals owned the entities that were majority participants in the
ownership of Star Mine.1
The Plea Agreement is attached as an exhibit to the Joint Motion and is incorporated
herein by reference. It contains a section entitled “Stipulation of Factual Basis and Facts
Relevant for Sentencing” at pages 5-12. This section summarizes the facts agreed upon by the
parties with respect to the November 2013 fatal accident. In the Plea Agreement, Star Mine
agrees to plead guilty to felony Count One of the criminal information that charged a violation of
section 110(f) of the Mine Act for making false statements, representations, or certifications. 30
U.S.C. § 820(f). These false statements, representations or certifications relate to information
Star Mine provided to MSHA with respect to the ventilation provided in certain areas of the
Mine. The parties to the Plea Agreement recommended a sentence of probation for a period of up
to five years, restitution in the amount of $1,333,000 to the surviving families of the deceased
miners, and a small fine. The Plea Agreement also asks the court to consider the settled penalty
amount to be paid in the cases before me to “satisfy the requirement of a fine in [the criminal]
case.” (Plea Agreement at 14). As stated above, District Court Judge Arguello approved the Plea.
The parties are proposing a substantial reduction in the total civil penalty to be assessed
against Star Mine. The proposed penalty was $2,010,614 and the proposed amended penalty is
$300,000, which is about an 85% reduction. The $10,000 penalty proposed against Rory
Williams is not being reduced. The breakdown of the amended penalties is set forth in a table
attached to this decision approving settlement. The parties state that given the terms of the
settlement, “the deterrent purpose of the Mine Act is no longer served by imposing penalties
greater than the agreed-upon amount on an insolvent operator that will no longer participate in
the mining business and where the above-referenced criminal sanctions have been imposed.”
(Draft Decision Approving Settlement prepared by counsel for the Secretary at paragraph 5).
The sentencing recommendations made by the parties to the District Court in the Plea
Agreement took into consideration the guidelines issued by the United States Sentencing
Commission. Pursuant to those guidelines, the parties state that “the payment of an additional
amount in fine may not be appropriate in [the criminal] case as that could interfere with the
Defendant’s ability to pay restitution” to the families of the deceased miners. (Plea Agreement at
14). It is clear that the parties in the criminal proceeding considered restitution to the families of
the deceased miners to be a principal element of the sentence. Whether there would be sufficient
funds for restitution once a civil penalty is paid is not one of the elements in section 110(i) of the
Mine Act, but I find that it is a factor that should be considered by me in assessing civil penalties
in these cases. Although a Commission judge is “bounded by consideration of the statutory
criteria” when assessing a penalty he is also permitted to factor in the “deterrent purpose
underlying the Act’s penalty scheme.” Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983),
aff'd, 736 F.2d 1147, 1152 (7th Cir. 1984). In this instance, the mine operator is no longer in
business and the operator and its principals are barred from reentering the mining business.
1

At all relevant times, Star Mine was owned by Silver Star Resources, LLC (“SSR”)
(100% owned by the Williams’), Revenue-Virginius Mines (“RVM”) (98% owned by the
Williams’ and the remainder 2% owned by three individuals), and Yankee Boy Resources, LLC
(“YBR”) (owned by another individual). SSR and RVM jointly owned 98% of Star Mine.

39 FMSHRC Page 678

Higher penalties would not serve a deterrent purpose and could well “increase the burden on the
victims of the offense.” (Plea Agreement at 14).
I have considered the representations and documentation submitted and I conclude that
the proposed settlement is appropriate under the criteria set forth in section 110(i) of the Act. In
accepting the penalty reduction, I have taken into consideration the following factors.
1. Ability to Continue in Business – Star Mine provided the Secretary with information
regarding its financial condition before and after the two accidents, including information
relating to the asset sale to Fortune. This information shows that Star Mine is insolvent because it
has no assets and all proceeds from the sale of the Mine were reserved to pay creditors. There is
no evidence to show that it discontinued business operations to avoid paying the proposed civil
penalties. Since the sale to Fortune, Star Mine and its managers Rory Williams and James W.
Williams, Jr., have not participated in the mining business and agree that they will be
permanently barred from participating in the mining business in the United States. “[T]he
purpose of a civil penalty is to induce those officials responsible for the operation of a mine to
comply with the Act and its standards.” S. Rep. No. 95-181 at 41, reprinted in Senate Subcomm.
on Labor, Comm, on Human Res., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 629 (1978). Given the above, I find that the amended penalty proposed by the parties
will not affect Star Mine’s ability to continue in business.
2. History of Previous Violations – The citations and orders in these cases were issued
between November 2013 and October 2014 for conditions that arose between November 17,
2013 and August 29, 2014. Star Mine was issued 17 section 104(a) citations during the 15
months prior to November 17, 2013, based on information at MSHA’s Mine Data Retrieval
System on its website. The history of previous violations for citations and orders issued after that
date would include the previously issued citations listed in the table.
3. Size of the Mine Operator – In calendar years 2013-14, Star Mine employed about 95
miners and worked just over 200,000 hours each year based on information at MSHA’s Mine
Data Retrieval System on its website. MSHA’s penalty point system assigned the Mine 7 points
out of 15 for the size of the mine and 3 points out of 9 for the size of the controlling entity. The
mine was mid-sized.
4. Negligence - The negligence attributable to Star Mine for each violation is set forth in
the citations and orders at issue.
5. Gravity – The gravity of each violation is set forth in the citations and orders at issue.
6. Good Faith – The parties agree that all the violations were timely abated in good faith.
Star Mine has agreed to withdraw its contest of Imminent Danger Order No. 8754779 in
Docket No. WEST 2014-592-RM. As a consequence, that docket is dismissed.

39 FMSHRC Page 679

ORDER
I have considered the representations and documentation submitted and I conclude that
the proposed settlement is appropriate under the criteria set forth in section 110(i) of the Mine
Act. The stay entered in the cases involving Star Mine is LIFTED, the Joint Motion to Approve
Settlement and Order Payment is GRANTED, Star Mine Operations, LLC, is ORDERED TO
PAY the Secretary of Labor the sum of $300,000 within 40 days of the date of this order, and
Rory Williams is ORDERED TO PAY the Secretary of Labor the sum of $10,000 within 40
days of the date of this order. Docket No. WEST 2014-592-RM is DISMISSED.

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

Distribution:
Tyler P. McLeod, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd.,
Suite 515, Denver, CO 80204 (Certified Mail)
Peter S. Gould, Esq., and Matthew S. Cooper, Esq., Squire Patton Boggs LLP, 1801 California
Street, Suite 4900, Denver, CO 80202-2613 (Certified Mail)
RWM

39 FMSHRC Page 680

TABLE SETTING FORTH SETTLED CITATIONS
STAR MINE OPERATIONS
DOCKET NOS. WEST 2014-994-M et. al.
Citation/Order

Modification to
Citation/Order

Proposed Penalty

Amended Penalty

WEST 2014-994-M
8769616

Penalty reduction

$51,900

$2,000

WEST 2014-995-M
8769617

$5,000

$5,000

WEST 2015-023-M
92 Citations

$25,664

$25,664

WEST 2015-024-M
6582222
8754780
8754781
8754788
8761624

Penalty reduction

$5,645
$4,000
$4,000
$4,000
$4,000

$4,000
$4,000
$4,000
$4,000
$4,000

WEST 2015-025-M
8769605

Penalty reduction

$112

$100

WEST 2015-030-M
8769586
8792289
8769600

Penalty reduction

$2,000
$6,624
$2,000

$2,000
$2,000
$2,000

WEST 2015-031-M
8769574
8769577

Penalty reduction
Penalty reduction

$207
$207

$100
$100

WEST 2015-037-M
8792285

$100

39 FMSHRC Page 681

$100

WEST 2015-038-M
8769568
8769569
8792278
8792275
8792277
8792281
8792282
8769588
8756393
8792292
8769602
8769603
8757031

Penalty reduction
Penalty reduction

Penalty reduction
Penalty reduction

$2,000
$2,000
$6,624
$2,000
$6,624
$2,000
$2,000
$2,000
$2,000
$6,624
$2,000
$2,000
$5,645

$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000

WEST 2015-098-M
8769606
8769607
8769608
8769609
8769610
8769611
8769613
8769614

Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction

$156,300
$156,300
$156,300
$70,000
$156,300
$70,000
$156,300
$156,300

$16,175
$16,175
$16,175
$7,243
$16,175
$7,243
$16,175
$16,175

WEST 2015-127-M
8769566
8769567
8769575
8769597
8769581
8769582
8769593
8756382
8769592
8756392
8792294
8757027
8757029
8757030
8757032

Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction

$6,600
$7,700
$7,700
$7,700
$7,700
$7,700
$8,400
$7,700
$12,500
$9,100
$32,800
$7,700
$27,900
$27,900
$27,900

39 FMSHRC Page 682

$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000

8757033

Penalty reduction

$27,900

$2,000

WEST 2015-128-M
8769565
8761663

Penalty reduction
Penalty reduction

$3,000
$20,000

$100
$5,000

WEST 2015-304-M
8757026
8769599

Penalty reduction
Penalty reduction

$1,842
$6,624

$100
$100

WEST 2015-305-M
8756373
8756375
8792276
8792279
8792280
8769587
8756383
8756385
8792290
8792293

Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction

$2,000
$2,000
$2,000
$6,624
$2,000
$5,645
$2,000
$2,000
$6,624
$6,624

$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000
$2,000

WEST 2015-306-M
8761658

$4,000

$4,000

WEST 2015-370-M
8756380
8769585

Penalty reduction
Penalty reduction

$25,800
$30,200

$2,000
$2,000

WEST 2015-440-M
8754775
8754776
8754778

$4,000
$4,000
$4,000

$4,000
$4,000
$4,000

WEST 2015-462-M
8769615

Penalty reduction

$70,000

39 FMSHRC Page 683

$2,000

WEST 2015-547-M
8761659
8761660
8761664
8761665

Penalty reduction
Penalty reduction
Penalty reduction
Penalty reduction

$15,971
$15,971
$15,971
$15,971

$4,000
$4,000
$100
$4,000

WEST 2015-596-M
8761661

Penalty reduction

$15,971

$4,000

WEST 2015-670-M
8761657
8761662

Penalty reduction
Penalty reduction

$125,400
$122,700

$4,000
$4,000

WEST 2017-093-M
8769608
Rory Williams

§ 110(c) violation

TOTAL SETTLEMENT AMOUNT

$10,000

$10,000

$310,000

39 FMSHRC Page 684

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

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2016-0232
A.C. No. 12-02295-404287

v.

Docket No. LAKE 2016-0269
A.C. No. 12-02295-404287
Docket No. LAKE 2016-268
A.C. No. 12-02295-406669

PEABODY MIDWEST MINING, LLC,
Respondent.

Mine: Francisco Underground Pit

DECISION DENYING MOTION IN LIMINE
Before: Judge Moran
These consolidated dockets are before the Court upon petitions for the assessment of civil
penalties under section 105(d) of the Federal Mine Safety and Health Act of 1977. 1 The
Respondent has filed a Motion in Limine to Preclude the Secretary’s Use of Photographs and
Reference to Measurements (“Motion”) and the Secretary filed a response in opposition thereto.
For the reasons which follow, Respondent’s Motion is DENIED.
Respondent’s Motion and the Secretary’s Response
Respondent succinctly expresses its request that the Secretary be precluded “from
introducing photographs and measurements with respect to Order Nos. 9036922 and 9036924[,]
[b]ecause the Secretary cannot establish the location where the photographs and measurements
were taken, [and therefore the] introduction of such evidence would be prejudicial to Peabody.”
Motion at 1.

1

A motion for approval of settlement has been presented for Docket No. LAKE 2016268. However, the motion has not yet been approved as the Court has some questions about the
motion. Therefore, it is still listed in the caption as one of the dockets to be heard for the hearing
scheduled to commence on May 31, 2017.

39 FMSHRC Page 685

The Respondent notes that the two orders involved reflect the inspector’s allegation that,
for Order No. 9036922,2
[l]oose coal ribs were observed in 10 entries for a distance of approximately 300
feet on the MMU-002 and MMU-012 active working sections measuring
approximately 8 inches to 24 inches in thickness by 5 ½ to 6 feet in height and 30
to 40 feet in length gapped away from the solid pillar approximately 3 to 6 inches
with rock dust present behind them[,] [and that for Order No. 9036924,3 an
associated inadequate preshift is alleged concerning] [a] hazardous condition
(inadequately supported ribs) [ ] located on the #2 Unit, MMU-002 and MMU022 active working sections from crosscut #1 to #5 in all entries and crosscuts.
R’s Motion at 2.
In support of its motion, Respondent states that some 20 photographs associated with the
Order are flawed in that neither the MSHA inspector who took the photos, nor the inspector’s
supervisor, was able to “identify with specificity the location at which each was taken.” Motion
at 3. (emphasis added). Instead, with respect to the location, each states “all 10 entries inby
crosscut #1 to the face on both MMU-002 and MMU-022 active working sections.” Id.
Depositions of the MSHA officials served to reinforce the Respondent’s position that “[i]t is
unclear how many different areas these photographs depict, or whether these photographs are of
different conditions or locations.” Id. at 5. The Respondent’s same objections as to vagueness
apply to the measurements listed in Order No. 9036922 — the inspector “could not identify the
location of the rib or ribs that gave rise to those measurements.” Id. at 6.
Because of the above-described evidentiary infirmities, Respondent contends that
admission of these items will be “unfairly prejudicial.” Id. at 7. It asserts that such materials
deprive it of the opportunity to defend against these allegations, as without “the specific
locations of the photographs or measurements, Peabody cannot meaningfully rebut that evidence
or the Secretary’s characterization of the condition,” and this thwarts its ability to challenge the
claim that it engaged in aggravated conduct. Id. at 7-8.
The Secretary filed a Response in Opposition to the motion (“Response”), noting, “[t]he
photographs included in the December 22, 2015 inspection notes from pages 34 to 52 contain
time and date stamps. … [that] [a]ll of the photographs included are taken on 12/22/15. … [and
that] [t]he measurements in the notes are consistent with the measurements expressed in the body
2

Order No. 9036922 was issued on December 22, 2015 at 10:00 a.m.

3

Order No. 9036924 was issued at 10 a.m. on December 23, 2015, the day after Order
No. 9036922 was issued. It is unclear whether Order No. 9036922’s reference to the loose coal
ribs in 10 entries for a “distance of approximately 300 feet on the MMU-002 and MMU-012
active working sections” and the inadequate preshift exam alleged in Order No. 9036924
“located on the #2 Unit, MMU-002 and MMU-022 active working sections from crosscut #1 to
#5 in all entries and crosscuts” relate to exactly the same areas. For example, it is unclear
whether the reference to MMU-012 and MMU-022 is a typographical error.

39 FMSHRC Page 686

of Order 9036922.” Response at 1-2. Perhaps more importantly, though not a direct response to
the issue in the motion, the Secretary contends that “[t]he exact location of each photo and
measurements would not change whether Respondent violated 30 C.F.R. §75.202(a).” Id. at 2.
Speaking to the particulars of the motion, the Secretary notes that the “Respondent will
have an opportunity to cross examine the [inspector] about his photographs and measurements
[and that] [t]he exact location of the photographs and measurements goes to weight and
credibility of the evidence.” Id. at 3. The Secretary also filed a Memorandum of Law in support
of its Response (“Memorandum”). That document notes that, per the inspector’s notes
pertaining to the location and photographs, they pertain to “[a]ll 10 entries inby crosscut #1 to
the face on the MMU-002 and MMU-022 active working section.” Memorandum at 2. The
Secretary also, in effect, maintains that, assuming the infirmities alleged by the Respondent,
“[t]he probative value of the photographs and measurements outweigh the prejudicial effect of
the evidence on Respondent.” Id. at 3. The Secretary further points out that the photos are each
date- and time-stamped, that the inspector was only at the Francisco Underground Pit that day,
that they were taken in the MMU-002 and MMU-022 active working section, and that the
inspectors were with mine personnel during the times the photos were taken. Id. at 2, 5. Finally,
assuming that the shortcomings asserted by the Respondent are established, such information
goes to the weight, as opposed to the admissibility, of such evidence. Id. at 7.
Discussion
Although the Respondent has raised the specter of prejudice, the Court does not agree
that it is presently “real and substantial” as the Respondent has suggested. Motion at 7. The
protection provided against such potential prejudice is through the weight afforded to such
evidence, a determination which cannot be made until all the evidence has been received
concerning the photographs and the measurements. Thus, it is premature to speak of “actual
prejudice.”4 The Court, while agreeing with the broad principle cited by the Respondent that
“[a] party is prejudiced when it is deprived the opportunity to defend against an allegation,”
notes that Peabody Midwest will have a full opportunity to defend against the Orders. Motion at
7. This includes the opportunity to present such evidence as may establish that little weight
should be afforded to the challenged photographs and measurements. If Respondent can
establish that the “the absence of the specific locations of where the photographs and
measurements were taken” deprives it of “the opportunity to meaningfully defend against the use
of the photographs and measurements,” the weight afforded such evidence will be slight.5
Motion at 8. See, e.g., Black Beauty Coal, 33 FMSHRC 1482, 1490 (June 2011).

4

The Respondent acknowledges this in its motion, citing Long Branch Energy. Long
Branch Energy 34 FMSHRC 1984, 1993 (Aug. 2012); Motion at 7.
5

Accordingly, while the principle cited by the Respondent in Cumberland Coal
Resources, 32 FMSHRC 442, 449 (May 2010), is correct, Peabody Midwest will have a fair and
full opportunity to defend against the alleged violations.

39 FMSHRC Page 687

The Court concludes that, on balance, the Secretary has the better of the argument in that,
assuming the foundations can be properly laid for the introduction of the measurements and
photographs, the objections raised by the Respondent more properly go to the weight of such
evidence, not to admissibility. In reviewing the motion and the response, the Court contemplated
a number of questions it would have about these evidentiary matters, but it will initially leave it
to the able counsel to raise such points during the hearing.
WHEREFORE, the Respondent’s Motion in Limine is DENIED.
SO ORDERED.

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

Distribution:
Paige I. Bernick, Esq., Office of the Solicitor, U.S. Department of Labor 211 7th Avenue North,
Suite 420, Nashville, Tennessee 37219-1823
Anthony Fassano, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S. Independence
Mall West, Suite 630E, The Curtis Center, Philadelphia, PA 19106
Arthur M. Wolfson, Esq., Jackson Kelly PLLC ,Three Gateway Center, 401 Liberty Ave, Suite
1500 Pittsburgh, PA 15222

39 FMSHRC Page 688

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

March 30, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING:
Docket No. YORK 2016-20-M
A.C. No. 43-00011-393999

v.
NEWMONT SLATE COMPANY, INC.,
Respondent.

Mine: Newmont Slate Co.

DECISION
Appearances:

Emily B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, Colorado for Petitioner
John Williams, President, Newmont Slate Company, Inc., West Pawlet,
Vermont for Respondent

Before:

Judge Barbour

In this civil penalty proceeding arising under sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. §§ 815, 820 (2012) (the “Mine Act”), the
Secretary of Labor on behalf of his Mine Safety and Health Administration (“MSHA”) petitions
for the assessment of civil penalties for 16 violations of mandatory safety, health, and training
standards found in Parts 56, 46 and 62 of Title 30 Code of Federal Regulations. The violations
are alleged to have occurred at a slate quarry and mill owned and operated by Newmont Slate
Company, Inc. (“Newmont”). At the facility slate is quarried and then cut and shaped into
shingles used primarily for roofing and cladding. Newmont is one of the few companies in the
United States that does such work.
The citations were issued by MSHA Inspector John Burton who made findings regarding
the existence of the alleged violations, the gravity of the violations and the negligence of the

39 FMSHRC Page 689

company.1 Burton also found that three of the alleged violations were significant and substantial
contributions to mine safety hazards (“S&S violations”). The Secretary proposed civil penalties
that in the aggregate total $6,002.00. Newmont contested the violations and the proposed
penalties asserting that some of the violations did not occur or if they did that Burton’s findings
and many of the proposed penalties were not justified by the facts.
After the chief judge assigned the case the court issued an order requiring the parties to
confer to determine if they could resolve their differences. When they could not the court asked a
special counsel to intervene in the hope that an independent and impartial official could facilitate
a settlement. When counsel’s efforts failed the court scheduled a hearing in Rutland, Vermont.
The Secretary was represented by counsel. The company was represented by its president, John
Williams.2
Prior to going on the record the court asked the parties to make a final attempt to reach an
agreement on the case or at least to resolve their differences with regard to some of the alleged
violations. The parties conferred, but again were unable to come to an understanding, and the
case then went forward. Tr. 9-10.
1

John Burton is a duly authorized mine inspector working out of the MSHA field office
in Albany, New York. Burton graduated from high school in 1988 and then went into the United
States Army where he served as a combat engineer and a heavy equipment operator. Following
his honorable discharge Burton worked for a construction company as a foreman and a heavy
equipment operator. After leaving the construction company Burton worked for a company
producing and selling concrete redi-mix and the aggregates from which redi-mix is produced.
While working in the redi-mix business Burton operated and maintained a wash plant, a
screening plant, and he operated various types of mobile equipment. Tr. 33. He also was
responsible for conducting workplace examinations and mobile equipment examinations. Tr. 3324. Burton next worked as a haul truck driver for a construction company where he once again
operated various types of heavy equipment.
2

Williams has been mining slate for 53 years. He knows the business inside and out.
However, he is not conversant with the mechanics of the Mine Act. Williams explained to the
court that while in the past he accepted citations as written and paid fines as assessed, he found
the process “downright annoying.” Tr. 19. Adding to his pique was his claim that the inspection
during which the subject citations were issued resulted in the most citations the company ever
received in a single inspection. Tr. 77. Williams stated he decided to use the present case to “see
how the system works.” Tr. 19. He credited the Secretary’s counsel with perseverance and
patience in explaining to him how violations are assessed and how they are contested. The court
also recognizes and commends counsel’s willingness to add a teaching function to her many
other duties. In going out of her way to assist Williams counsel acted in the best interests of her
client and the public. The court also commends Williams for his efforts to better understand the
Mine Act. The court recognizes the company was engaged in a learning experience that required
a more than ordinary investment of counsel for the Secretary’s and the court’s time, but the court
believes that the experience was worthwhile and that it will lead to a safer mine and a more
harmonious relationship between the company and the agency.

39 FMSHRC Page 690

AGREED UPON FACTS AND CONCEDED VIOLATIONS
Prior to hearing the witnesses, counsel for the Secretary reported that she and the
company agreed upon several relevant facts, namely:
1. When the subject citations were issued, the company was subject to
the jurisdiction of the Mine Act.
2. The company engaged in slate mining operations at the subject
mine.
3

The company’s mining operations affected interstate commerce.

4

At all times relevant the company [was] an “operator” as defined in
section 3(d) of the Mine Act.

5

Inspector Burton was acting in his official capacity as a duly
authorized representative of the Secretary when he issued
the subject citations.

6

The proposed penalties will not affect the company’s ability to
remain in business.

Tr. 17-18, 21.
After stating his agreement with the facts, Williams advised the court that through his
better understanding of the assessment and contest processes there were several citations he
could accept as written, or, as Williams put it, he could “skip right over.” Tr. 20. As further
explained below, ultimately Williams withdrew Newmont’s contests of seven citations. See “The
Uncontested Citations,” infra.
THE CONTESTED CITATIONS
CITATION NO.
8917961

DATE
30 C.F.R. § PROPOSED ASSESSMENT
8/25/15 56.4101
$263

The citation states:
There were no signs readily visible prohibiting open flame or
smoking or open flames at the 4 propane tanks [at] the west side
yard area of the mill. The propane tanks supply propane to the
mill building and miners transport and cleave slate in the west
side yard area of the mill. This condition exposes a miner to a

39 FMSHRC Page 691

fire/explosion hazard. In the event an accident were to occur it
would be likely that fatal injuries would be expected.
Gov’t Exh.9 at 1. The citation contains the inspector’s findings that the cited condition was
unlikely to lead to a fatal injury and was due to the company’s low negligence.
In August 2015 Burton was assigned to inspect Newmont’s quarry. Although he had
inspected other slate quarries, the August inspection was his first visit to Newtown’s
facility. 3 Tr. 40. Burton began the inspection on August 25. Burton had been conducting
inspections on his own for about 18 months. Tr. 70. When Burton arrived the mine was operating
and production was ongoing. Tr. 62. During the inspection Burton was accompanied by Albert
Gallupe, Newmont’s maintenance foreman. Id.
Among the first things Burton observed were four propane tanks on the west side of the
mill building. Burton looked but saw no signs prohibiting open flames or smoking in the vicinity
of the tanks. Tr. 50. Burton described mandatory safety standard section 56.4101 (30 C.F.R. §
56.4101) as requiring “a mine operator [to] post readily visible signs where a . . . fire [and/or]
explosion hazard exists.” Tr. 50-51.
Burton explained that the tanks supply propane to the mill where miners cleaved slate
into shingles.4 No signs were posted on the tanks or in the area of the tanks warning miners of a
fire or explosion hazard. Tr. 51. Burton found that the lack of signs constituted a violation of
section 56.4101. See Gov’t Exh. 9 at 3. However, he also found that it was unlikely the
company’s failure to post the signs would result in an accident. Still, if the gases in one of the
tanks “were to vent” (meaning were to escape the tank) and to do so in the vicinity of an open
flame, a fatal accident could occur.5 Tr. 54. Burton stated that even though, “There were no open
flames or sparking materials observed in or around the . . . tanks[,]” (Tr. 52) if an accident
occurred, “the fireball and flying projectiles that would come from the steel tank would be
expected to kill a miner.” Id.; see also Tr. 130. Burton testified that only one person was subject
to the hazards of a tank explosion, the person who regularly cleaved the slate. Tr. 55. He noted
however that the area was traveled, albeit not regularly, by other miners in mobile equipment. Tr.
56 (referencing Gov’t Exh. 9 at 4.), 58.
Burton found that Newmont’s negligence was low. He acknowledged that Newmont
management officials did not travel the area on a regular basis. He was of the view that the
3

At the time the mine consisted of the quarry where slate was extracted, the mill
buildings in and around which slate was processed and other structures related to the business.
Tr. 41. The mine employed approximately 45 to 48 people. Tr. 43. Burton described the facility
as “one of the larger slate mines in the region.” Tr. 42. Burton stated if he were to rate the mine
for cleanliness and organization he would consider it “about average.” Tr. 69.
4

According to Burton, the process of cleaving the slate requires the use of pneumatic
hammers to “size the slate for thickness.” Tr. 51.
5

Indeed, as Burton noted, such a fatal accident occurred in 2001 at a different
metal/nonmetal facility. Tr. 53-54; see Gov’t Exh. 9(b).

39 FMSHRC Page 692

officials might not have been aware of the absence of the required signs. This was especially true
since the area was not required to be pre-shift or on-shift examined on a regular basis. Tr. 58. To
abate the alleged violation the company placed a sign stating “No Smoking –Danger” at the edge
of the road adjacent to the tanks. Tr. 64; Gov’t Exh. 9 at 4.
For his part Williams maintained that miners would recognize the propane tanks for what
they were and would know not to have open flames or lighted cigarettes around them. Therefore,
in William’s opinion a fatal accident was very unlikely. See, e.g., Tr. 76.
THE VIOLATION, ITS GRAVITY AND NEWMONT’S NEGLIGENCE
Section 56.4101 states, “Readily visible signs prohibiting smoking and open flames shall
be posted where a fire or explosion hazard exists.” Burton’s unrefuted testimony established the
violation. A precondition for posting the required signs is a “fire or explosion hazard.” It is
common knowledge that propane is highly flammable and explosive and as Burton stated, if the
gases in any one of the tanks “were to vent” an open flame could spark an explosion. Tr. 54. The
record supports finding the propane was regularly used in the process of cleaving slate in the mill
and mill yard. Tr. 55. While it is true that Burton saw no open flame or flames in the vicinity of
the tanks (Id.), without a warning sign or signs there was the potential hazard of a miner using
flame producing equipment (e.g., welding) or of lighting a cigarette dangerously near the tanks.
If one or more of the tanks vented the gas could ignite and a catastrophic explosion could result.
The court credits Burton’s testimony that such an event would likely result in a fatality. Tr. 130.
Because of the grave consequences, the court concludes that violation was moderately serious,
even though a resulting fire or explosion was unlikely given the small chance of a tank venting
and of an ignition source being in the area. 6
Burton found that Newmont’s negligence was low and the record supports the finding.
Burton’s testimony that the area containing the propane tanks was not subject to regular pre-shift
or on-shift examination and management officials did not travel past the tanks frequently was not
contradicted. Tr. 58. Given this, it would have been easy for the company frequently to fail to
note and correct the lack of warning signs.
CITATION NO.
8917962

DATE
8/25/15

30 C.F.R. §
56.13011

PROPOSED ASSESSMENT
$585

The citation states:
There were two air receiver tanks . . . that did not have
automatic relief valves or pressure gauges installed. First
a blue Emglo 50 gallon air tank was connected to the air
compressor in the yard splitting area. Second a 30 gallon
air tank was mounted to air compressor c9804 in the
6

The court fully agrees with Williams that most miners would recognize the propane
tanks and would know not to produce an ignition source in their presence. Tr. 76.

39 FMSHRC Page 693

quarry. Both air tanks did not have automatic pressure
relief valves or an air pressure gauge installed on the air
tanks. This condition does not allow a miner to know how
much air is inside the portable air tanks nor does it allow the
tank to vent if the maximum allowable working pressure is exceeded
creating and exploding of a pressure vessel hazard [(sic.)]. In the
event an accident were to occur it would be likely that a fatal
injury would be expected.
Gov’t Exh.10 at 1. The citation contains the inspector’s findings that the cited condition was
unlikely to lead to a fatal injury and was due to the company’s moderate negligence.
Burton issued the citation because, “There were two receiver tanks at the mine that were
not equipped with safety valves or pressure gauges.” Tr. 84. Burton found the condition violated
section 56.13011, which states that such tanks “shall be equipped with one or more automatic
pressure relief valves” and that “[a]ir receiver tanks also shall be equipped with . . . pressure
gauges.” 30 C.F.R. § 56.13011; Tr. 84. Burton testified the words “shall” as used in the standard
mean that the presence of pressure relief valves and gauges on the tanks are mandatory. Id.
Burton maintained that one of the air tanks (the Emglo 50 gallon tank) was connected to an air
compressor in the slate splitting area of the mill yard (also known as the slate cleaving area). The
tank was not equipped with a pressure relief valve or a pressure gauge. Tr. 85. He further
testified that he saw another air tank that was mounted on an air compressor. That tank, like the
Emglo 50 gallon tank, did not have a pressure relief valve or a pressure gauge. Id. The two tanks
were approximately 700 to 1000 feet apart. Id.
Burton identified a photograph of the Emglo 50 gallon tank and circled two ports on the
tank where a pressure relief valve should have been located. Tr. 86; Gov’t Exh. 10 at 3. Burton
also identified a photograph of the air receiver tank that was mounted on an air compressor.
Gov’t Exh. 10 at 4. Neither a pressure relief valve nor a pressure gauge was present. Tr. 92. On
the photograph Burton circled the ports where the relief valve and the pressure gauge should
have been. Tr. 91-92; Gov’t Exh. 10 at 4. Burton explained that the valves protected against the
tanks exploding if they were “over pressured” (Tr. 86), and the gauges insured miners knew the
tanks contained the right amounts of air. (Tr. 87).
In Burton’s opinion both tanks presented with two conditions that violated section
56.13011. The tanks had no pressure relief valves and no pressure gauges. Tr. 88-89. Burton
explained that the relief valves and pressure gauges are sometimes combined as a single piece of
equipment and sometimes they are two separate pieces of equipment. Tr. 90-91. However,
neither tank had either configuration.
Burton found that an injury was unlikely to occur as a result of the missing valves and
gauges. Tr. 93. He noted the Emglo 50 gallon tank had a cracked air valve. Because of this it was
operated at a lower air pressure than otherwise would have been the case. Tr. 93. Nonetheless, if
either of the tanks became over pressurized and exploded, flying shrapnel could easily kill a
miner. Tr. 95; Gov’t Exh. 10 at 1. Burton believed the persons most likely to be affected were
miners who used the tanks to cut slate. Tr. 96. He concluded that the hazard was enhanced by the

39 FMSHRC Page 694

fact that both tanks were portable. They “could be moved anywhere on the mine site” and could
be used by a miner who was not familiar with the equipment.. Tr. 121, see also Tr. 125, 128.
Burton found that the company was moderately negligent. Gov’t Exh. 10 at 1. He based
his finding on the fact that a miner told him it was permissible to operate the tanks without the
valves and gauges because the tanks were usually connected to a “regulated compressor” and the
regulated compressor system contained the required valves and gauges. Tr. 96. Based on the
miner’s statement Burton concluded that mine management knew the condition existed. Id.
Williams was able to provide more information regarding the operation of the tanks. He
explained that they were used to power a “rivet buster,” a pneumatic hammer used to break slate.
He agreed pressure relief valves and pressure gauges were required but in his opinion their
presence on the tanks was not mandatory. Rather, he thought they could be located as part of the
regulated compressor system.7 Tr. 103-04. Williams testified that the system’s compressor was
located inside the mill. The compressor was connected to the cited tanks with a three quarter inch
airline. Tr. 105. Although at the time of the inspection the Englo 50 gallon air tank was
disconnected from the system and the air compressor was 400 feet away from the tank, Williams
agreed that the tank could be moved and was available for use. Tr. 115-16. The same thing was
true of the other cited tank. Tr. 116.
Williams maintained there was no chance the cited tasks would explode because the air
pressure in the tanks was below the level necessary to cause their failure. Tr. 116. While an
“oddball tank” could be dangerous, he noted the cited tanks had been checked and tested prior to
use to confirm their integrity. Tr. 106. Williams argued that although the standard refers to
“tanks,” technology had advanced to the point where the standard should be revised to apply to
“[a]ir receiver systems.” Id; See also Tr. 114. If the standard were reworded this way the
company would be in compliance. Id. Nonetheless, Williams agreed that both of the cited tanks
were air receiver tanks and that neither had a pressure relief valve and a pressure gauge on the
tank. Tr. 109-10.
THE VIOLATION, ITS GRAVITY AND NEWMONT’S NEGLIGENCE
The court finds the violation existed as charged. The standard is clear. It states that air
receiver tanks “shall be equipped” with one or more automatic pressure relief valves and with
pressure gauges. 30 U.S.C. § 56.13011. As Burton correctly noted, “shall be equipped” means
that the specified items must be present on the tanks. Tr. 84-85. Burton testified that the items
were not present on either tank (Tr. 85-86, 88-89, 91-92), and Williams agreed. Tr. 108-10.
While there was a violation, the testimony leads the court to conclude the violation was
technical and that it presented virtually no hazard to the company’s miners. Burton agreed with
7

Burton recognized that the system as a whole might have a pressure relief valve and that
if it did the likelihood of an injury would be much reduced, but in his opinion the presence of a
valve or gauge elsewhere in the system did not invalidate the violation. Tr. 119. Burton also
agreed that the PSI rating of the tanks was lower because they were part of a system and that this
too reduced the likelihood of an injury arising from the cited conditions. Tr. 120-21.

39 FMSHRC Page 695

Williams that because the tanks were each part of a system they had a PSI rating below the level
that was necessary for the tanks to pose an explosion hazard. Tr. 120-21. Moreover, according to
Williams, there were valves and gauges in the system which served the same purpose as valves
and gauges on the tanks. Tr. 106, 114. Williams’s suggestion that the standard be revised to
apply to “air receiver systems” rather than to tanks, was reasonable, and it may well be that such
a revision would provide miners with the same level of protection as the present regulation.
Burton was concerned about the portability of the tanks. He feared they could be moved
and used when not part of an overall system and thus be totally without the protection afforded
by the valves and gauges. Tr. 121, 125, 128. However, the court notes that while Williams
agreed such use was possible (Tr. 115-16), there is nothing in the record to indicate it was likely.
Rather, Williams’s testimony establishes that the tanks were primarily used to provide pneumatic
pressure to the rivet buster and that when used this way the system of which the tanks were a part
was protected with the valves and gauges. Tr. 103-04. Further, while Williams agreed that an
“odd ball” tank could be dangerous, nothing in the record indicates either of the cited tanks was
structurally defective in a way that posed a danger. For many of these reasons Burton found that
it was unlikely a miner would be injured due to the violation. Gov’t Exh. 10 at 1. The court goes
further and for all of these reasons finds that it was extremely unlikely.
The court also departs somewhat from Burton’s negligence finding. Burton believed the
company knew its tanks lacked the required valves and gauges because a miner told him the
tanks could be operated without that equipment since the tanks were connected to a regulated
compressor. Tr. 96. The court credits what Burton was told, but unlike Burton the court
concludes it significantly mitigates the company’s negligence. The court finds that the miner was
conveying to Burton the same belief about which Williams testified, to wit that if the required
vales and gauges are a part of the system they are not required on the tanks. Tr. 103-04, 114. The
company’s belief, although mistaken, was reasonable, and the court concludes that Newmont’s
genuine, good faith belief it was in compliance reduced the company’s otherwise moderate
negligence to low.
CITATION NO.
8917959

DATE
30 C.F.R. § PROPOSED ASSESSMENT
8/25/15 56.12018
$585

The citation states:
There were two circuit breaker panels . . . that had circuit breakers
that were not labeled to show the units they controlled. First, the
main mill, east splitting room circuit breaker had one 480 volt
30 amp breaker that was not labeled. Second, the new mill 480 volt
circuit breaker panel had one 100 amp and one 15 amp circuit breaker
that were not labeled. The circuit breakers were in the [“]on[”]
position. This condition does not allow a miner to know which circuit
to de-energize in an emergency. In the event an accident were to
occur it would be likely that fatal injuries would be expected.
Gov’t Exh. 7 at 1. The citation contains the inspector’s findings that the cited conditions were
unlikely to lead to a fatal injury and were due to the company’s moderate negligence.

39 FMSHRC Page 696

During the course of his inspection Burton examined two circuit breaker panels that he
found to be defective. One panel was in the main mill. The other was in a different mill, the “new
mill.” Tr. 141; Gov’t Exh. 7 at 3. Each panel contained circuit breakers that were not properly
labeled. Tr. 139. Therefore, Burton issued a citation to the company for violating section
56.12018, a mandatory safety standard requiring “the identification of power switches.” Tr. 140,
Gov’t Exh. 7.
Burton described the first circuit breaker panel as the panel containing the breakers for
the main mill’s east slate splitting room. In the panel there was one 480 volt 30 amp circuit
breaker that was not labeled. Id. The unlabeled circuit breaker was in the “on” position, which
indicated to Burton that the panel was energized. Tr. 141. The second panel was for the new mill
building. It too was a 480 volt panel. The second panel contained two unlabeled circuit breakers,
one for a 100 amp circuit and one for a 15 amp circuit. Tr. 140. These breakers also were in the
“on” position. Tr. 141, 144. Burton testified that the lack of labels meant that a miner would not
know which circuits to de-energize in an emergency or which breakers to lock out when making
repairs. Tr. 141-42. Burton physically checked the unlabeled circuits with a “tick tracer” and
confirmed that power was flowing to each of the three unlabeled circuits.8 Tr. 142, 143-44; See
Gov’t Exh. 7 at 3, 4.
Section 56.12018 requires the identification of “principal power switches.” In Burton’s
view, both of the cited panels were principal power switches for the circuits controlled by the
circuit breakers. Tr. 163-64. He explained when electricity enters the panels and comes to the
circuit breakers, the breakers “[become] the principal power switch[es] for[the] circuit[s] from
the circuit breaker panel[s] to the equipment.” Tr. 163-64. He stated, “[T]he power is subbed out
from the panel and it is branched down to that circuit breaker which is the primary switch . . . for
that circuit.” Tr. 155.
Burton described the hazard posed by the lack of labeling. “An unlabeled circuit breaker
does not allow a miner to know which circuit to de-energize in an emergency, and it also does
not allow [a] miner to know which circuit to de-energize, lock and tag out for repairs.” Tr. 14142. However, Burton did not believe the conditions were likely to result in an injury. He noted
that both panels were subject to main circuit breakers and that to de-energize the circuits in either
panel “a miner could go to the main and switch that main breaker off in an emergency.” Tr. 149.
Also, if work needed to be done on equipment on any of the subject circuits a miner would likely
call on an electrician to do it. Referring the work to a knowledgeable electrician would reduce
the chance of injury. Tr. 149. Nonetheless, were an injury to occur, Burton believed it was likely
to result in a fatality. He noted that a “480 volt electric shock is often associated with fatal-type
injuries.” Tr. 150.
Burton found the company was moderately negligent. There were numerous circuit
breaker panels at the mine and the company knew the requirements of the standard since all but
the cited circuits were labeled properly. Tr. 154. He also testified that although the company
8

A “tick tracer” is a pocket tool designed to detect the presence of voltage in a wire or in
a piece of equipment without actually making direct contact with the conductor or energized
part.

39 FMSHRC Page 697

subcontracted its electrical work, a management official told him that the company did not
follow up with the subcontractor to ensure contracted electrical work was done correctly.9
Finally, there is a requirement that the panels be inspected and none of the three unlabeled
circuits was reported on a workplace examination report. Tr. 154-55.
Williams testified there are three safety features on the cited circuits. There is the main
circuit breaker that cuts off power to all of the circuits, the individual circuit breakers that cut off
power to the individual circuits and “fuse cut-offs” at the particular machines powered by the
cited circuits. Tr. 159-60. In Williams’s view each protection reduced the likelihood of an
electrical accident. Tr. 160.
THE VIOLATION, ITS GRAVITY AND NEWMONT’S NEGLIGENCE
The standard is simply worded, “Principal power switches shall be labeled to show which
units they control unless identification can be made readily by location.” It is certain that there
were three circuit breakers in two panels that were not labeled. Burton’s oral testimony and the
photographs introduced into evidence by the Secretary prove this. Tr. 139-42; Gov’t Exh. 7 at 3,
4. The unresolved issue is whether the circuit breakers were “principal power switches” within
the meaning of the standard. Based solely on the record presented in this case, the court
concludes they were.
As the court has previously noted:
[Q]uestions regarding the meaning of the phrase ‘principal
power switch’ and whether particular cited equipment come
within the meaning have repeatedly been brought to the
Commission’s judges. While the judges have decided whether
certain equipment is covered by the standard based on the
facts of the cases before them, a definitive meaning of the
phrase ‘principal power switch’ has yet to emerge. See, e.g.,
Beverly Materials, LLC, 35 FMSHRC 88, 95-97 (Judge Moran);
Cemex Construction Materials of Florida, LLC . 34 FMSHRC
170, 174 (Jan. 2012 (Judge Zielinski); Omya Arizona, A Division
of Omya, Inc., 33 FMSHRC 2738, 2739-40 (Judge Miller); Blue
Mountain Production Co., 32 FMSHRC 1464, 1473-74 (Oct. 2010)
(Judge Miller); Tide Creek Rock, Inc., 19 FMSHRC390, 399
(Judge Manning); Walker Stone Co., Inc., 12 FMSHRC 256, 264
(Feb. 1990 (Judge Fauver); FMC Corp., 6 FMSHRC 1294, 1299

9

Williams seemed to agree with Burton that although work on the panels was
subcontracted, the company should have known the circuits were not labeled. He stated that
although it was the electrical contractor who “screwed up,” “I should have caught it.” Tr. 160;
see also Tr. 162.

39 FMSHRC Page 698

(May 1984) (Judge Vail) (decided under identically worded
standard (30 C.F.R. § 57.12-18.)
US Silica Company, 36 FMSHRC 517, 519 (Feb. 2014) (fn omitted); see also Northern Illinois
Service Co., 37 FMSHRC 1225 (June 2015) (ALJ Barbour).
In this particular case the record establishes that, as Burton testified, the circuit breakers
were power switches in that they were components that could break an electric circuit. While, as
the court has noted, there is no accepted meaning of the phrase “principal power switch” there is
an accepted meaning of the word “principal” when it is used as an adjective. It means “chief” or
“leading.” See Houghton Mifflin Harcourt, The American Heritage Dictionary of the English
Language, Fourth Edition (2009) at 1395. Here, as Burton testified, the cited circuit breakers
were the first switch[es] in the line of the individual circuit[s]” (Tr. 156) so that each switch was
“the primary switch . . . for [its] circuit.” Tr. 155. The court construes a primary switch as the
chief or leading switch in a circuit, and the court concludes that each cited circuit breaker was a
“principal power switch” for its circuit. It may be, as Williams’s questions on cross examination
suggest, that there was a principal power switch for all of the circuits in each breaker box. See
Tr. 155-58. Indeed, Burton himself alluded to the presence of such a switch when testifying that
the cited conditions were unlikely to result in an accident because “a miner could go to the main
and switch the main breaker off in an emergency.” Tr. 149. However, Williams did not offer oral
or visual evidence regarding such a switch or switches, and the court must rule based on the
record before it, not on speculation as to what the record might have been if Williams had
pursued the issue. The court therefore finds that the Secretary proved the violation.
Burton found that the violation was unlikely to result in an accident, and the court fully
agrees. There evidently were other ways to shut power off to the affected circuits prior to
working on them and the employees of the company’s electrical subcontractor would have been
much more likely to recognize this than the company’s employees who did not specialize in
electrical work. However, had an accident occurred, the court agrees with Burton that a fatality
was likely. Burton stated the obvious when he testified that “a 480 volt electric shock is often
associated with fatal-type injuries.” Tr. 150.
Finally, the court concurs with Burton that the company was moderately negligent. While
Williams may have been right when he testified the company’s electrical subcontractor “screwed
up” and failed to ensure the three circuits were labeled, as Williams also recognized, the
company should have “caught” the mistakes. Tr. 160. Further, and as Burton testified, the
workplace examination forms for the panels did not record the missing labels. While the
company may have relied on the “expertise” of its subcontractor, it still was under a duty to
ensure compliance with the standards. The company failed in its duty.
CITATION NO.
8917956

DATE
8/25/15

30 C.F.R. §
56.14112(a)

PROPOSED ASSESSMENT
$585

The citation states:
The guard for “The Beast” [trimmer] saw was not secured
in place. The saw was equipped with a nine-inch (approximate)

39 FMSHRC Page 699

cutting blade. The saw[’]s sliding table top is (approximately) 22
inches wide. The trimmer saw[’]s cord was plugged in and the saw
was available for use. The saw is used at the mill to custom trim
dimension slate as needed. This condition exposes a miner to
contact with the trimmer[’]s rotating blade. In the event an
accident were to occur it would be reasonably likely that
permanently disabling injuries would be expected.
Gov’t Exh. 4 at 1. The citation contains the inspector’s findings that the cited condition was
S&S, was reasonably likely to cause a permanently disabling injury and was due to the
company’s moderate negligence. Gov’t Exh. 4 at 1.
Burton stated that he issued the citation because the trimmer saw’s guard had been
removed.10 Tr. 173. The trimmer saw has a nine-inch blade and a 22-inch-wide tabletop. Id. The
saw is used to trim slate to order. Tr. 183-84. When Burton inspected the saw he noticed that the
guard for the blade was off and was sitting on a shelf beside the saw. Tr. 173-74; Gov’t Exh. 4 at
6. Burton believed the saw had been used. Tr. 174. The saw was plugged into an energized wall
outlet, and near the saw Burton observed pieces of slate that were typical of slate trimmed with
the saw. Tr. 174-75, 177; Gov’t Exh 4 at 7. Burton also noted dust around and on the pieces of
the guard, which indicated to Burton that the “guard [had] been off . . . for a particular period of
time, long enough to accumulate dust on it.” Tr. 175. During that time Burton thought it likely
the saw had been used since it was usually used daily at the mine. Burton also recalled that the
mine foreman told him the guard was purposefully removed because it “may have been
sticking.” Tr. 185. This was another reason Burton thought it was likely that the saw had been
operated with the guard off. Tr. 204
Burton believed the lack of a guard violated section 56.14112(b), which requires that
guards be securely in place while machinery is operated. Gov’t Exh. 4. He was quick to point
out, however, that he could have cited the company for a violation of section 56.14107(a), a
standard requiring the guarding of moving machine parts that can cause injury to persons. Tr.
200. In view of Burton’s testimony counsel for the Secretary moved to amend the Secretary’s
petition to plead in the alternative a violation of section 56.14107(a). Williams did not object,
and the motion was granted. Tr. 205-08.
Burton testified that the danger presented by the condition was that a miner’s hands might
contact the rotating saw blade. Tr. 178. He explained that when a miner trims slate, the miner
secures the slate piece to the saw’s table top, places his hands on the hand holds of the table top
and pushes the table top and slate through and past the saw’s rotating blade. The procedure
brings the miner’s hands very close to the turning blade. Tr. 180-81. The lack of a guard means
there was “direct exposure of a miner to the rotating and moving machine parts” of the saw. Tr.
183-84. While only the miner who operated the saw was likely to be affected by the alleged
violation (Tr. 188), Burton thought an accident involving the miner was reasonably likely and
that as a result of the accident the miner was likely to lose all or part of his or her hand, and
possibly all or part of his or her limb. Tr. 186. Burton termed such an injury a “dismembermenttype injury.” Id. Burton emphasized that the saw was not tagged out and that electricity was
10

Burton described the guards as “”two pieces [of plastic] that join together.” Tr. 176.

39 FMSHRC Page 700

flowing to it. Tr. 184, 186. He also noted that the saw was typical of the type that is used daily at
mine. Tr. 185. Because the lack of a guard meant that a miner was directly exposed to the
moving saw blade and therefore was “reasonably likely . . . [to] make contact with [the saw’s
moving blade]” and suffer a permanently disabling injury, Burton found that the alleged
violation was S&S. Tr. 187-88.
Williams testified that the company owned the saw for approximately five years. Because
the saw did not come with a guard the company manufactured and installed one. Tr. 197.
Williams agreed the saw was “safer if it is guarded.” Id. Williams stated that one of his
employees removed the guard on purpose. Tr. 198.
THE VIOLATION, ITS S&S NATURE, ITS GRAVITY AND NEWMONT’S
NEGLIGENCE
Section 56.14112(b) requires guards to be “securely in place while machinery is being
operated.” Although the standard can be read narrowly as requiring an inspector to observe cited
machinery in operation without a required guard, the court believes a more expansive reading is
equally valid, to wit that a violation can properly be cited if it is reasonable to infer cited
machinery was operated without a required guard. A persuasive argument can be made that the
dust that accumulated on the parts of the guard (Tr. 175, 190), the slate ready to be cut and
trimmed that was near the guard’s parts (Tr. 174-75, 177; Gov’t Exh. 4 at 7), the fact that the saw
was plugged into an energized outlet (177-78) and the fact that Burton and Williams were told
the guard was purposefully removed (Tr. 204, 198), when coupled with the fact that the saw was
of the type in daily use at the mill (Tr. 185), support the inference that the saw was used without
the guard prior to Burton’s inspection. In the court’s opinion, this inference would establish the
alleged violation of section 56.14112(b), and the court would find a violation of the standard
were it not for the court’s belief that the Secretary’s alternative theory rests on an even more
solid legal footing.
Section 56.14107(a) states that moving machine parts shall be guarded to protect persons
from contacting “gears, sprockets, chain . . . pulleys, flywheels, couplings, shafts, fan blades and
similar moving parts that can cause injury.” While saw blades are not specifically mentioned in
the standard they are similar to the moving parts mentioned and contact with moving saw blades
can cause injury. Therefore, saw blades must be guarded. The blade of the cited stripping saw
was not guarded, and the court finds the failure to guard the blade violated section 56.14107(a).
An S&S violation is “of such nature as could significantly and substantially contribute to
the cause and effect of a . . . mine safety . . . hazard.” 30 U.S.C. §814(d). In order to establish the
S&S nature of a violation, the Secretary must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed
to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an
injury; and (4) a reasonable likelihood the injury will be of a reasonably serious nature.” Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 53 F.3d 133, 135
(7th Cir. 1995); Austin Power Co., Inc. 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies
criteria). An experienced MSHA inspector’s opinion that a violation is S&S is an important
element for the court to consider when making an S&S determination. Harlan Cumberland Coal
Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998).

39 FMSHRC Page 701

The Commission has explained that the focus of the Mathies analysis “centers on the
interplay between the second and third steps.” ICG Illinois, 38 FMSHRC 2474, 2475 (Oct. 2016)
(citing Newtown Energy Inc., 28 FMSHRC 2033 (Aug. 2016)). The second step requires the
judge to adequately define the “particular hazard to which the violation allegedly contributes[,]”
and then determine whether “there exists a reasonable likelihood of the occurrence of the hazard
against which the mandatory safety standard is directed.” Id. at 2475-76. This determination
must be made “based on the particular facts surrounding the violation[.]” Id. The third step
requires the judge to assume the existence of a hazard and assess whether the hazard “was
reasonably likely to result in a serious injury.” Newtown at 2038; ICG Illinois at 2476. Applying
that test, the court concludes the violation of section 56.14107(a) was S&S.
First, as the court has found, the company violated section 56.14107(a). The second step
requires the court to define the particular hazard to which the violation contributed and then to
determine whether there existed a reasonable likelihood of the occurrence of the hazard. The
hazard in this instance was of a miner being cut by a moving saw blade, and it is clear to the
court that the lack of a guard for the blade contributed to this hazard. Therefore the question is
whether there was a reasonable likelihood a miner would be cut by the moving, unguarded blade.
Burton’s testimony established that there was. He described how a miner must place his or her
hands on hand holds adjacent to the blade as the miner pushes the table top through and past the
rotating blade. Tr. 180-81. A misplaced hand, a slip while pushing the table top, and a lack of
attention to the task, singly or in combination, could result in the loss of a finger or hand or the
maiming of an arm. In other words, the nature of the task and the closeness of the saw operator’s
hands to the moving blade in the court’s view support Burton’s finding that it was reasonably
likely the saw operator would be injured. It is obvious to the court that the injury would be
serious. The saw operator would be lucky if he or she only lost a finger. The court affirms
Burton’s opinion that the violation was S&S.
In addition to being S&S the violation was serious. A violation that places a miner in
reasonably likely danger of being maimed or dismembered cannot be viewed otherwise.
There is also the question of Newmont’s negligence. The court accepts the inspector’s
finding that the company’s lack of care was moderate. Management should have detected and
corrected the violation. It was, as Burton testified, open and obvious. Tr. 189. Moreover, the dust
on the pieces of the guard leads to the reasonable inference that the violation existed for some
time. Management certainly understood that the guard should have been in place. After all, the
company provided the protection in the first place. Tr. 197. The company was under a duty to
ensure that the saw was guarded, and it failed to meet its duty.
CITATION NO.
8917963

DATE
8/25/15

30 C.F.R. §
56.14103(b)

PROPOSED ASSESSMENT
$392

CITATION NO.
8917968

DATE
8/26/15

30 C.F.R. §
56.14103(b)

PROPOSED ASSESSMENT
$362

The two citations concern cracked windows, one on a haul truck and one on an excavator.

39 FMSHRC Page 702

Citation No. 8917963 states
The front window of . . . [a] haul truck . . . was cracked creating
a hazard to the operator. The front window had two vertical
cracks and one horizontal crack spanning the width of the window. A
pen tip test of the widow[’]s cracks indicated the cracks had raised
edges. A miner was observed touching the glass with finger tips. This
condition creates a laceration hazard to a miner[’s] hands while touching
the glass. In the event an accident were to occur it would be likely that
injuries resulting in lost work days or restricted duty would be expected.
Gov’t Exh. 11 at 1. The citation contains the inspector’s findings that the cited condition was
S&S, was reasonably likely to lead to a lost workdays or restricted duty injury and was due to the
company’s low negligence.
Citation No. 8917968 states:
The lower window in the operator’s station of the Volvo EC290CL . . .
[excavator] was damaged creating a hazard to the operator. The
lower window measured (approximately) 321 4 inches by 14 5 8 inches.
The left side of the window and the upper right corner was taped
with duct tape restricting an operator[’]s vision and the lower right
corner of the window had star shaped cracks with raised edges and
divots in both sides of the glass. A miner was observed touching the
glass with a bare hand. This condition restricts an operator[’]s vision
through the window and [creates] a laceration hazard to a miner[’s]
hands from contact with the broken window. In the event an
accident were to occur it would be reasonably likely a miner would
receive injuries resulting in lost work days or restricted duty.
Gov’t Exh.16 at 1. The citation contains the inspector’s findings that the cited condition was
S&S, was reasonably likely to lead to a lost workdays or restricted duty injury and was due to the
company’s moderate negligence.
According to Burton, section 56.14103(b), the standard cited in both instances, requires
that windows of the cabs of self-propelled mobile equipment be “maintained for visibility and
also that [the windows] not create a hazard to the operator.” Tr. 214-15. Burton described the
subject front window of the haul truck as having “two vertical cracks and one horizontal crack.
The horizontal crack spanned the width of the window.” Tr. 215. See Gov’t Exh. 11 at 6. He
described the cracks as being toward the middle of the window. Tr. 221; See Gov’t Exh. 11 at 6.
He further observed that the cracks had “raised edges” that subjected the hand on anyone
touching the window to cuts. Id. Burton knew the cracks had raised edges because he moved the
tip of his ball point pen over the cracks and could hear the pen tip “click” when it traveled over a

39 FMSHRC Page 703

raised crack.11 He also testified that the company’s maintenance foreman agreed that the edges of
the cracks were raised. Tr. 218. According to Burton, the truck is used daily to move slate to the
waste pile or to the mill. Tr. 220.
In Burton’s view the raised cracks presented a cut hazard in that a miner would clean the
window of the truck to maintain visibility. In addition, during the preoperational examination of
the truck the truck driver would move his bare hand across the crack. Tr. 216. Burton testified
that during his inspection of the truck, he saw the truck driver touch the crack with his bare hand,
although this was in response to a pen tip test conducted by Burton. Tr. 217, 218-19. Burton also
stated he determined “through interviews” that miners used “paper towels or rags to clean the
glass,” which would put a miner’s hand directly on the cracks with only a piece of paper towel or
a piece of cloth between the cracks and the miner’s skin. Tr. 218. Burton believed that a miner
was putting his bare hand “in close proximity” to the cracked glass every time he or she cleaned
the windshield. Tr. 220. He further noted that the window needed to be cleaned frequently
because of dust accumulating on it.12 Tr. 221-22.
Burton believed an injury was reasonably likely because he “observed a miner reaching
out and directly . . . exposing himself to [the] hazard” and because a miner put a bare hand in
close proximity to the glass every time he or she cleaned it. Tr. 219-20. Burton found the
resulting injury was likely to result in lost workdays or restricted duties because if a miner cut his
or her finger the miner would first have to have someone look at the cut and then, perhaps, have
the cut stitched. Also, if a glass shard lodged under the miner’s skin the injury could lead to an
infection and the infection could cause a miner to miss work. Tr. 220-21.
Burton found that the company’s negligence was low. Burton testified he was told that
two weeks prior to his inspection the truck had stopped abruptly, the hood had popped up hitting
and cracking the front window, and the truck operator had not told mine management or noted
the condition on his pre-shift report. Tr. 227. Burton learned that the haul truck driver was the
only person who operated the truck and that the driver did not tell management because he did
not believe the cracks interfered with his vision. Tr. 224. But, the condition had existed for two
weeks and Burton thought that during the two weeks management officials should have seen the
cracks and replaced the window. Tr. 225.
11

Burton explained the “pen tip” test as follows:
I don’t put my hand against the glass. I take [a] pen tip and I go
across the glass, and if that pen tip clicks when it comes to a crack
I know that the two pieces of glass are not on the same plane and
it indicates that there is a raised crack in the glass and a cut hazard
to a miner’s hand.

Tr. 215-16.
12

However, when Burton was asked how likely it was a miner would clean the
windshield in August when the cab side windows would be rolled up to take full advantage of
the cab’s air conditioning system, Burton responded that it was “tough to say.” Tr. 223.

39 FMSHRC Page 704

With regard to the excavator, Burton stated that it was used multiple times a day to move
slate, stone or rubble to the mill or to the waste dump (Tr. 231-32) and that he issued the citation
because the lower window of the operator’s compartment on the excavator was damaged and
Burton believed that the damage created a hazard to the excavator operator and others. Tr. 229.
The left side (when viewed from inside the compartment) of the window was half covered with
duct tape. There was also a smaller amount of duct tape on the right side of the window. Tr. 230;
Gov’t Exh. 16 at 4. Under the duct tape on the lower right side were star shaped cracks with
raised edges. Both sides of the window had divots. Id. According to Burton, the duct tape, cracks
and divots obscured the excavator operator’s vision. Tr. 230. He feared that “with [the] reduced
visibility . . . a miner might not be able to effectively see to operate the equipment.” Tr. 321.
Burton testified that the lack of full visibility could cause a fatality in that when the excavator
was operated near the edge of a highwall or drop off, the miner operating the excavator might not
see the edge or might misjudge the distance resulting in the excavator over-traveling the edge
and causing serious injury or death to the excavator operator. Tr. 233. Moreover, other miners
worked in close proximity to the excavator and they could be hit and/or run over because the
operator’s vision was limited. Tr. 233-34. The possible injury would affect one person, either the
operator of the excavator or a miner working near the excavator. Id.
Burton also feared the cracks created a hazard by exposing the excavator operator to cuts
on his or her hands. Tr. 230. Burton thought it was reasonably likely a miner would suffer hand
cuts because he actually saw a miner touch the cracks with his bare hand after Burton conducted
a pen tip test on the window. Tr. 231. He further believed the condition of the window was likely
to lead to lost workdays or restricted duty because if a miner cut his hand while making contact
with the glass it could involve a trip to the doctor and the cut or imbedded glass shards might
lead to an infection. Tr. 232.
Burton concluded that Newtown was moderately negligent. The fact the window was
taped indicated someone knew of the condition but did not correct it. Tr. 235.
Williams did not challenge the existence of the defective windows but he was skeptical of
the inspector’s S&S findings. He questioned if, given the small elevation between the cracks in
the haul truck’s window, anyone touching the cracks was likely to get more than a minor cut or
an abrasion requiring a Band-Aid. Tr. 239. Williams also disputed Burton’s scenario that
A miner would receive a cut to the finger, he or she
would have to go to a doctor [to] have it evaluated.
There is the potential that bandaging would have to be
applied, that there is a potential for infection to the
cut and/or bandaging or stitches would have to be
[applied and] a doctor would have to be visited a
second time and those materials be removed and
the cut inspected.
Tr. 243-244. Williams responded, “Pretty doomy and gloomy for a little cut. I’ve been cut a
million times and never gone to a doctor for anything unless it was real deep.” Tr. 244.

39 FMSHRC Page 705

THE VIOLATIONS, THEIR S&S NATURE, THEIR GRAVITY AND
NEWMONT’S NEGLIGENCE
Section 56.14103(b) requires the replacement or removal of damaged windows on
operators’ stations of self-propelled mobile equipment if the damage obscures visibility necessary
for the safe operation of the equipment or if the damage creates a hazard to the equipment
operator. The court finds the Secretary proved both of the alleged violations, albeit for somewhat
different reasons. Because there was no evidence to the contrary the court concludes that the front
window on the haul truck was cracked as described by Burton. Tr. 215, 221, Gov’t Exh. 11 at 6.
The cracks caused the edge of the glass on one side of the cracks to be slightly raised above the
other side. The raised nature of the cracks was confirmed by Burton’s “pen tip” test. Tr. 215-16.
The court agrees that the raised cracks presented a cut hazard to the haul truck operator as he
cleaned dust from the windshield. Tr. 217-19. The hazard caused by the damage to the window
established the violation with regard to the haul truck.13
The damage to the window of the excavator as described by Burton also was not disputed
by Newmont. Therefore, the court finds that the lower window of the operator’s compartment
was extensively taped to the point where the left side of the window was totally covered and the
right side had a rectangular block of tape covering the upper right side of the lower window. Tr.
229-30; Gov’t Exh.’t. 16 at 4. In addition, there were cracks with raised edges on the lower right
side of the window. Id.
The court credits Burton’s testimony that the damaged window presented a hazard to the
excavator operator. The duct tape on the lower window obviously obscured his or her vision of
the immediate vicinity in which he or she was operating the excavator. The court agrees with
Burton that failing to see the ground near the equipment could lead to the equipment operator
misjudging the room in which he or she had to maneuver. As Burton maintained, if the excavator
was near a highwall or other drop off the operator might not see the edge or might mistakenly
think there was more room to operate than in fact was the case sending the excavator and its
operator over the edge. Tr. 233. Or, as Burton noted, the operator might not see a miner working
in the immediate vicinity of the excavator and might because of his or her limited vision hit or
run over the miner. Further, the court credits Burton’s testimony that the raised cracks exposed
the equipment operator to cuts as he or she tried to clear dust from the lower window. Tr. 230.
Therefore, the court finds the damaged window of the excavator both created a cut hazard to the
equipment operator and obscured the operator’s visibility—visibility necessary to safely operate
the excavator. Tr. 233.
While the court agrees with the inspector that the company violated section 56.14103(b)
in both instances, it finds that only the damage to the excavator’s lower window was an S&S
violation. There is no gainsaying the fact that a haul truck driver would from time to time clean
the inside of the haul truck’s windshield to remove dust. However, as Burton testified the driver
would have a rag or paper toweling between his fingers and hands and the glass. This minimized
the chance of a severe cut and/or of a glass shard lodging in the driver’s finger or hand. Even if
13

The court discounts the hazard allegedly posed by the driver touching the cracks with
his bare hand. Burton’s finding of this hazard was primarily premised on the driver responding to
Burton’s pen tip test, an action that was unlikely to recur.

39 FMSHRC Page 706

the operator was bare handed nothing more than a painfully annoying cut or splinter was
reasonable to expect, and such injuries do not rise to the level of being reasonably serious as
required by Newtown. The court concludes Williams was correct when he stated that the cracks
in the haul truck’s windshield were most likely to result in a cut or an abrasion requiring a BandAid. Tr. 238. Burton’s scenario of a cut or splinter requiring a doctor’s care, bandaging, possible
stitches and a resulting infection with follow up doctor’s visits is possible, but not reasonably so.
Tr. 243-44.
On the other hand, the damaged lower window on the excavator was indeed an S&S
violation. All of the Mathies criteria as explained in Newtown were met. There was a violation of
section 56.14103(b). The excavator was used multiple times a day, and the danger created by the
violation was that its operator being unable to see in full the ground to the front and to the side of
the excavator, would not see the distance he or she had in which to maneuver or would misjudge
the distance and would inadvertently send the excavator over a drop off. Tr. 231-32. Williams
did not challenge Burton’s testimony in this regard. Nor did he contradict Burton’s belief that the
excavator operator’s lack of full vision subjected a miner working in the immediate vicinity of
the excavator to the danger of being hit and/or run over. Tr. 233. The court concludes that the
frequent use of the excavator made the occurrence of these hazards reasonably likely as mining
continued and it is obvious that the occurrence of either scenario was reasonably likely to result
in a serious injury.
Given the findings with regard to the S&S nature of the haul truck violation the court
concludes the cracks in its windshield did not constitute a serious violation. While it is true one
person was subject to possible injury, the court has found that the injury was likely to be minor
in nature. This is not the case with regard to the damaged lower window of the excavator. The
restricted visibility that resulted from the violation was likely to cause the serious injury or death
of the excavator operator or of a miner working adjacent to the excavator. The court therefore
finds the violation was serious.
Finally, the court concludes that both violations were caused by Newmont’s moderate
negligence. The defective windshields were visually obvious. Both the haul truck and the
excavator were subject to pre-shift examinations. The violations should have been detected and
corrected, and they were not. See Tr. 225, 227, 235.
CITATION NO.
8917967

DATE
8/26/15

30 C.F.R. § PROPOSED ASSESSMENT
56.6900
$243

The citation states:
There were deteriorated explosives in magazine #2
of the mine. There was one box of explosive[s]
containing 48 sticks of 1 – ¼ by 8 inch 60% explosive[s]
(Lot number 08JA14J1). The explosive sticks[’]
wrapping paper was discolored and white crystals
had begun to form on one of the sticks. This
condition creates an uncontrolled detonation of

39 FMSHRC Page 707

explosive materials hazard. In the event an
accident were to occur it would be likely that fatal
injuries would be expected.
Gov’t Exh. 15 at 1. The citation contains the inspector’s findings that the cited condition was
unlikely to lead to a fatal accident and was due to the company’s moderate negligence. Gov’t
Exh. 15 at 1.
On August 26 Burton examined the mine’s Magazine Number 2, a magazine containing
dynamite.14 Tr. 255. Burton was accompanied by the company’s blaster. Tr. 256. Burton noticed
a box of explosives labeled “Lot No. 08JA14J1.” Tr. 256. The label indicated the box contained
48 sticks of dynamite. To verify the number of sticks inside the box the inspector and the blaster
opened the box. Each stick was an inch and a quarter in diameter by eight inches long. The sticks
contained sixty percent explosive material. Tr. 254. Burton described the wrapping paper of the
sticks as “discolored.” Tr. 254. In addition, according to Burton, “White crystals had begun to
form on the outside of one of the sticks.” Id. The white crystals indicated to Burton that the
explosive material in the stick had deteriorated to the point where, “The explosive agent on the
inside [of the stick] had started to bleed out through the paper.” Id. Because of the deterioration
Burton questioned if the explosives were safe to handle. The blaster too felt uncomfortable
because of the discoloration and crystal formation. Burton testified the blaster said that,” [T]he
explosives contained in that box [are] unsafe.” Tr. 257. Burton added that he was told by the
blaster that agents from the Bureau of Alcohol Tobacco and Firearms (“ATF”) visited the mine
one week before Burton’s inspection. The agents informed the company the explosives should be
disposed of.15 Id., Tr. 261. The blaster added that the company planned to detonate the
explosives in an on-site blast the next day, August 27. Tr. 262.
Despite the company’s plan to dispose of the dynamite, Burton issued a citation to
Newmont because of the deteriorated explosives. Gov’t Exh. 15. The inspector cited the
company for a violation of section 56.6900, which states that, “Damaged or deteriorated
explosive material shall be disposed of in a safe manner in accordance with the instructions of
the manufacturer.” Burton recognized that under the standard the company needed to know who
the manufacturer of the explosives was so as to conform to the manufacturer’s disposal
instructions. Tr. 259. Austin Powder was the manufacturer, and Burton called Austen Powder.
Austin Powder’s representative told Burton that the discolored and crystalized sticks had in fact
deteriorated and that such explosives typically are consumed in a nonproductive blast or are
burned. Tr. 259-60. In Burton’s opinion the company “had been warned “ by the ATF to
eliminate the dynamite but they “had already let [them] set for six days.” Tr. 266. He added,
“When they have deteriorated explosives they need to take corrective actions to remediate that
hazard. The fact that they were told days prior actually indicates . . . that the issue is not being
taken seriously.” Id.

mines.

14

There are a total of five magazines at the mine. Tr. 277.

15

Burton explained that ATF personnel from time to time inspect blasting operations at

39 FMSHRC Page 708

Burton recognized that the dynamite was being stored in an ATF approved magazine,
which he stated was “about the safest place on the mine that explosives could be.” Tr. 263.
However, should an unplanned explosion occur, a fatality could be expected. Tr. 263. The person
most likely to be killed would be a miner accessing the magazine. Tr. 264. He noted that an
unplanned explosion could result from just handling the explosives because once they start
deteriorating, “They become potentially unstable . . . and merely even handling the explosive[s]
could set [them] off.” Id.
Because the ATF put the company on notice and the company failed to act promptly
Burton found the company to be moderately negligent. Tr. 265. Burton stated, “[O]ne week
seems excessive.” Id.
Williams explained that explosives usually deteriorate during the summer when the heat
causes the components of the dynamite to separate Tr. 272-73. He further explained that
dynamite is not easy to detonate. To cause it to explode dynamite has to be “hit with quite a
shock.” Tr. 273. In William’s opinion it is best to leave deteriorated dynamite in a static location
and to dispose of it when the next regularly scheduled blast takes place. Id.
Williams explained that the company kept only one or two boxes of dynamite on hand
to use for small projects. He speculated that the relatively infrequent use of dynamite at the mine
was why the subject explosives deteriorated. Tr. 274. He was adamant the deteriorated dynamite
was not dangerous. He stated, “There was no unsafe factor there. So, it was just an overeager
inspector trying to get another citation.” Id. Williams added that a box of dynamite costs $300.00
and because the company “didn’t feel like buying $300 worth of dynamite for no reason at all” it
was waiting “until the next shot . . . [which] hadn’t come yet.” Tr. 275.
When Burton returned to the mine on September 14, he was advised that the deteriorated
explosives had been consumed in a blast before his return visit (Tr. 286), and he terminated the
citation. Gov’t Exh. 15 at 2.
THE VIOLATION
The court concludes the Secretary did not prove a violation. The court has no doubt the
inspector identified a safety hazard. The court credits Burton’s description of the deteriorated
dynamite and his explanation that the box and its contents posed a hazard. Tr. 254. The court
also credits the blaster’s opinion as expressed to Burton that the dynamite was not safe. Tr. 257.
When Burton wrote the citation he described the violative condition as the presence of the
defective explosives. (“There were deteriorated explosives in magazine #2 of the mine.” Gov’t
Exh. 15 at 1.) During his testimony he expanded his reason for issuing the citation by adding that
when deteriorated explosives are present the standard requires an operator to “take corrective
actions to remediate that hazard.” Tr. 266. In his view the company did not take the required
corrective action in a timely manner. Id. The problem for the Secretary is that when drafting the
regulation he said nothing overt about the time within which deteriorated explosives must be
eliminated. Rather, the regulation addresses the manner in which such explosives must be
destroyed or otherwise removed from the mine. The standard states that they must be eliminated,
“in a safe manner in accordance with the instructions of the manufacturer.” 30 C.F.R. § 56.6900.

39 FMSHRC Page 709

While it is conceivable a manufacturer would recommend a time within which a defective
product should be removed or eliminated, the record does not reveal whether Austin Powder set
or suggested such a time limit, or what that time limit otherwise was. See Tr. 260-66. Further,
even if a “reasonable” time limit is implied in the otherwise silent standard, the court, like
Burton, would credit the blaster’s statement that the deteriorated explosives would have been
destroyed in a manner recommended by Austin Powder on August 27 [16], and the court would
conclude that this was a reasonable time under all of the circumstances. Tr. 262, 266-67. The
court notes the lack of any evidence the explosives would be handled before they were destroyed
and the lack of evidence that their undisturbed presence in the magazine (“the safest place in the
mine that explosives could be”) until August 27 would pose a hazard. Tr. 263. The Secretary
needed to prove the passage of a week and a day was an unreasonable risk, and he did not do so.
CITATION NO.
8917954

DATE
8/25/15

30 C.F.R. §
56.4201(a)(1)[17]

PROPOSED ASSESSMENT
$585

The citation states:
There were 4 fire extinguishers in the mill building at the
mine that had not received monthly examinations. The
[company’s] designee to conduct examinations had retired
and [he had] not been replaced. Records located on the
extinguishers showed exams had been performed through
June of 2015. This condition does not allow a miner to
know if the extinguisher will function in an emergency. In
the event an accident were to occur it would be likely that
injuries resulting in lost workdays would be expected.
Gov’t Exh. 2 at 1. The citation contains the inspector’s findings that the cited condition was
unlikely to lead to an accident resulting in lost workdays or restricted duty and that the violation
was due to the company’s high negligence. Gov’t Exh. 15 at 1.
During the course of the August 25 inspection Burton found four fire extinguishers in the
mill that apparently had not been examined in more than a month. Tr. 295-96. According to
Burton, under section 56.4200(a)(1) the extinguishers “are required to receive an exam on a
monthly basis.” 18 Tr. 296. Burton stated that a tag on each of the four extinguishers recorded the
last examination as taking place in June 2015. Id. Burton acknowledged that none of the
extinguishers were functionally defective. Id. However, in Burton’s view a monthly examination
16

Burton stated that he “took [the blaster] at his word.” Tr. 266.

17

The inspector mistakenly cited the condition as violating section 56.4200(a)(1). At the
hearing counsel for the Secretary moved to amend the citation to allege a violation of section
56.4201(a)(1). The company did not object, and the motion was granted. Tr. 310-11.
18

Burton misspoke; he meant to say that monthly examinations are required under
section 56.4201(a)(1).

39 FMSHRC Page 710

is important because it “allows a miner to know that a . . . fire extinguisher will effectively
function in an emergency situation.” Tr. 297. If an extinguisher malfunctions a miner can suffer
prolonged exposure to smoke and fire and may lack the ability to control a fire in its early stages,
which may in turn lead to smoke inhalation or burns. Id.
Burton found that the company was highly negligent. Gov’t Exh. 2 at 1. He stated the
company knew the employee who conducted the examinations retired and Newmont should have
assigned another miner to undertake the examinations. Tr. 298. Burton also observed that
management officials traveled through the mill building daily. The fact the examinations had not
been recorded was visually obvious given the last dates on the tags. Id. Burton stated that the
only explanation he was given for the fact the inspections had not been conducted and recorded
was that “the company had overlooked replacing the retired miner.” Tr. 299.
Williams maintained a person in fact examined extinguishers at the mine, and he asked
Burton how many extinguishers Burton inspected. Burton stated he looked at “numerous” other
extinguishers.19 Tr. 299. Williams observed that “a new man missed [only] four of them.” Id. In
Williams view failing to inspect and record the inspections of four of its many fire extinguishers
was not egregious. Tr. 303-04.
Burton responded that Williams walked through the mill every day. In Burton’s opinion
Williams knew the monthly examinations of the fire extinguishers had not been performed. Tr.
305-06. As Burton put it, “It is the mine operator’s responsibility to conduct [the] examinations
or to designate somebody and follow up to make sure they have been done.” Tr. 308.
THE VIOLATIONS, ITS GRAVITY AND NEWMONT’S NEGLIGENCE
The Secretary easily established that Newmont violated section 56.4201(a)(1) which
requires that “fire extinguishers be inspected visually at least once a month to determine that they
are fully charged and operable.” Burton’s testimony that the inspection tags on four extinguishers
in the mill showed that the extinguishers were last inspected in June was not challenged by
Newmont. Tr. 295-96. The court infers that Newmont’s failure to record the monthly visual
inspections in July meant that the July inspections were not done with regard to the four
extinguishers, just as Burton alleged, and it concludes Newmont violated section 56.4201(a)(1).
While it is possible, as Burton testified, that the failure to monthly examine a fire extinguisher
could lead to a miner suffering excessive smoke inhalation and/or burns, in the matter at hand the
four extinguishers were in no way defective rendering the likelihood of injury somewhere
between minimal and non-existent. Tr. 297. The violation was technical and non-serious in
nature.
Further, the court concludes the company’s negligence was low. While Burton
maintained the company should have assigned another employee to replace the missing examiner
(Tr. 298, 299), the record supports finding that is exactly what the company did. Burton agreed
that he examined “numerous” fire extinguishers at the mine and that only four were in violation
of section 56.4201(a)(1). Tr. 299. The court concludes that someone conducted and recorded the
19

Burton put the number between a dozen and twenty-five. Tr. 309.

39 FMSHRC Page 711

monthly inspections for all of the fire extinguishers except four. In the court’s opinion this
mitigates Newmont’s negligence to the point where its failure to comply was of a low degree.
CITATION NO.
8917957

DATE
8/25/15

30 C.F.R. §
56.14100(b)

PROPOSED ASSESSMENT
$585

The citation states:
The manufacturer installed left hand seat belt on the #5
TMC forklift . . . was fastened to the manufactured mounting
point by a knot tied in the seatbelt. The forklift is used to move
slate products in the mill building of the mine. This condition
exposes a miner to a fall/run over by mobile equipment hazard.
In the event an accident were to occur it would be likely that
fatal injuries would be expected.
Gov’t Exh. 5 at 1. The citation contains the inspector’s findings that the cited condition was
unlikely to lead to an accident resulting in fatal injuries and was due to the company’s moderate
negligence. Gov’t Exh. 5 at 1.
On August 25 Burton testified he inspected four or five forklifts at the mine. Tr. 325. All
were manufactured by the same company, TCM. Tr. 325-26. Burton explained that when
inspecting the No. 5 forklift he found that its left hand seat belt was fastened to the mounting
point with a knot. The belt had “been cut off and . . . had been threaded back through the bracket
and literally tied in a knot to hold it onto the forklift.” Tr. 317. When seat belts are installed by
TMC they are attached to a bracket and the bracket is bolted to the frame of the forklift. Tr. 31718. Burton also explained that the No. 5 forklift was equipped with a falling object protection
structure (a “FOPS”) and that there is no standard requiring a forklift with a FOPS to have a
seatbelt. However, Burton understood if the equipment comes from the manufacturer with a
seatbelt, because the seatbelt affects safety, defects to the seatbelt must be timely corrected to
prevent a hazard to the equipment operator. Tr. 318. Because the knot in the cited seat belt was
hand tied, there was no way to ensure whether it would hold as intended by the manufacturer.
Burton therefore believed that the hand tied seatbelt was defective and violated section
56.14100(b). Tr. 319.
The No. 5 forklift was used daily to move slate in and around the mill buildings. Tr. 319,
322. The danger posed by the condition was that in the event of an accident the seatbelt might
not hold the forklift operator on the equipment. He or she could fall off and be hit or run-over by
the forklift or by another piece of equipment. Tr. 319, see also Tr. 324
Burton checked and found that the defective seatbelt was not reported on any of the preshift examinations of the forklift. In his view this reflected management’s misplaced belief that
the seatbelt was not required to be maintained on the forklift, and he found that the company was
moderately negligent. Tr. 325; Gov’t Exh. 5 at 1.
Williams stated that only the No. 5 forklift came from the manufacturer with a seatbelt.
Like Burton, Williams noted that seatbelts are not required on equipment with FOPS, and he

39 FMSHRC Page 712

questioned why the company was required to maintain a seatbelt that was not a requisite
component of the equipment. Tr. 327. Williams further stated that the mine’s forklifts travel on
level ground at about five miles per hour and that all have centers of gravity about one foot off of
the ground, making them extremely unlikely to overturn. Tr. 328.
THE VIOLATIONS, ITS GRAVITY AND NEWMONT’S NEGLIGENCE
Section 56.14100(b) states, “Defects on any equipment . . . that affect safety shall be
corrected in a timely manner to prevent the creation of a hazard to persons.” When determining
whether the standard has been violated the evidence must be evaluated in the light of what a
“reasonably prudent person, familiar with the mining industry and the protective purpose of the
standard, would have provided in order to meet the protection intended by the standard.” See
e.g., Cannon Coal Co., 9 FMSHRC 667. 668 (April 1987); Quinland Coal, Inc., 9 FMSHRC
1614-1618 (September 1987). Ideal Cement Co., 12 FMSHJRC 2409, 2415 (September 1990).
Applying this test, the court finds that the Secretary established the violation. TMC
manufactured the fork lift with a seat belt. In the court’s opinion a reasonably prudent person
would assume the seat belt served its intended purpose of keeping the fork lift operator in place
in case the fork lift was involved in an accident or overturned. To provide the maximum amount
of protection the seat belt had to be securely affixed to the frame of the fork lift. Tying the
seatbelt to its mounting point offered less protection in that the knotted belt would tend to give in
the event of a mishap. In the court’s view a reasonably prudent person would have replicated the
condition of the seat belt as it came from TMC by permanently reattaching the belt to the frame.
The Commission addressed the timeliness requirement in section 56.14100(b) in Lopke
Quarries, Inc., 23 FMSHRC 705 (July 2001). The Commission determined that, “[w]hether the
operator failed to correct the defect in a timely manner depends entirely on when the defect
occurred and when the operator knew or should have known of its existence.” Id. at 715. Little
evidence was offered by the Secretary regarding “timeliness.” However, a reasonable inference
can be drawn that Newmont did not timely comply. Burton testified to his understanding that the
forklift was used daily (Tr. 322). Williams did not dispute Burton or offer other evidence of the
frequency of use, and the court concludes that the forklift was in fact used every day the mine
operated. Burton also testified that he looked at the pre-shift examination reports for the forklift
for several days prior to the inspection and found that the defective seatbelt was not reported.
Linking the daily use with the non-reporting and with William’s stated belief the company was
under no obligation to return the seatbelt to its original condition, Burton inferred the defective
seatbelt was not repaired in a timely manner. The court finds Burton’s inference to be reasonable
under the circumstances, and it affirms the violation.
The inspector found the violation was unlikely to result in a fatal injury. The court agrees
and finds the gravity of the violation was nil. Williams’s statement that the forklift was all but
impossible to overturn because of its low center of gravity was not disputed, nor was his
testimony that when in use the forklift traveled at about five miles per hour, a speed making
collisions extremely unlikely. Tr. 328. Moreover, the fact that the parties agreed the forklift
could have come from TMC without a seatbelt and not run afoul of any safety standards speaks
volumes about the minimal hazard posed by the cited condition. Tr. 318, 327.

39 FMSHRC Page 713

Burton found that Newmont was moderately negligent. The court finds the company’s
negligence was low. The violation was based upon the company’s good faith belief compliance
was not required because the seatbelt was not required. See Tr. 327. The company’s conclusion
was reasonable even though it was wrong. In the court’s view Newmont’s reasonable, good faith
belief greatly mitigated its negligence.
OTHER CIVIL PENALTY CRITERIA
Counsel for the Secretary asserted that in the 15 months prior to August 25, 2015, there
were 43 cited, assessed and paid violations at Newmont’s mine, which counsel described as an”
average” number. Tr. 166-67, 25; Gov’t Exh. 1. The court finds the company’s history of
previous violations not to be such as to increase or decrease the court’s assessments. With regard
to the size of the mine, counsel maintained that the company was “not small.” Tr. 168. However,
the court notes that in proposing penalties the Secretary appears to have regarded the mine as
somewhere between a small and medium size facility. See Petition for Assessment of Civil
Penalty, Exh. A. The court finds the size to be such as not to warrant assessments above those
proposed. The court further notes that in proposing penalties the Secretary credited Newmont
with good faith in attempting to achieve timely compliance. Id. Finally, the parties agreed that
any penalties assessed will not affect Newmont’s ability to continue in business. Relevant Fact 6.
ASSESSMENT OF CIVIL PENALTIES
THE CONTESTED CITATIONS
CITATION NO. DATE
30 C.F.R. § PROPOSED ASSESSMENT ASSESSMENT
8917961
8/25/15 56.4101
$263
$263
The court finds that the violation was serious and that the company’s negligence was low.
Given these findings and the other civil penalty criteria the court assesses the penalty proposed
by the Secretary.
CITATION NO. DATE
8917962
8/25/15

30 C.F.R. § PROPOSED ASSESSMENT ASSESSMENT
56.13011
$585
$200

The court finds that the violation was not serious and that the company’s negligence was
low. Given these findings and the other civil penalty criteria the court assesses a penalty of $200
for the violation.
CITATION NO. DATE
30 C.F.R. §
8917959
8/25/15 56.12018

PROPOSED ASSESSMENT ASSESSMENT
$585
$585

The court finds that the violation was moderately serious and that the company’s
negligence was moderate. The court’s findings do not diverge significantly from Burton’s, and
the court assesses the penalty proposed by the Secretary.
CITATION NO. DATE 30 C.F.R. §
8917956
8/25/15 56.14112(a)

PROPOSED ASSESSMENT ASSESSMENT
$585
$585

39 FMSHRC Page 714

The court finds that the violation was moderately serious and that the company’s
negligence was moderate. The court’s findings do not diverge significantly from Burton’s, and
the court assesses the penalty proposed by the Secretary.
CITATION NO. DATE
8917963
8/25/15

30 C.F.R. § PROPOSED ASSESSMENT ASSESSMENT
56.14103(b)
$392
$250

The court finds that the violation was not serious and that the company’s negligence was
moderate. The court further finds that the violation was not S&S. Accordingly, the court will
modify the citation to reflect that an injury could reasonably be expected to result in no lost
workdays. In addition it will delete the inspector’s S&S finding and modify his negligence
finding from low to moderate. Given these findings and the other civil penalty criteria the court
assesses a penalty of $250 for the violation.
CITATION NO. DATE
8917968
8/26/15

30 C.F.R. §
56.14103(b)

PROPOSED ASSESSMENT ASSESSMENT
$362
$362

The court finds that the violation was S&S, was serious and was caused by the
company’s moderate negligence. The court’s findings do not diverge from Burton’s, and the
court assesses the penalty proposed by the Secretary.
CITATION NO. DATE 30 C.F.R. § PROPOSED ASSESSMENT ASSESSMENT
8917967
8/26/15 56.6900
$243
$0
The court finds that the Secretary did not prove the violation. A penalty cannot be
assessed.
CITATION NO. DATE
30 C.F.R. §
8917954
8/25/15 56.4201(a)(1)

PROPOSED ASSESSMENT ASSESSMENT
$585
$200

The court finds that the violation was not serious and that the company’s negligence was
low. Given these findings and the other civil penalty criteria the court assesses a penalty of $200
for the violation.
CITATION NO. DATE
30 C.F.R. § PROPOSED ASSESSMENT ASSESSMENT
8917957
8/25/15 56.14100(b)
$585
$200
The court finds that the violation was not serious and that the company’s negligence was
low. Given these findings and the other civil penalty criteria the court assesses a penalty of $200
for the violation.
THE UNCONTESTED CITATIONS
As noted above, during the course of the hearing and after a discussion with counsel,
Williams in effect withdrew the company’s contest of the citations set forth below. Tr. 135-36,

39 FMSHRC Page 715

165-66. Given Newtown’s withdrawal the court finds that the violations existed as charged. The
penalties are assessed as proposed.
CITATION NO. DATE
30 C.F.R. §
8917955
8/25/15 56. 12032

PROPOSED ASSESSMENT ASSESSMENT
$176
$176

CITATION NO. DATE
30 C.F.R. §
8917958
8/25/15 56.14115(b)

PROPOSED ASSESSMENT ASSESSMENT
$263
$263

CITATION NO. DATE 30 C.F.R. § PROPOSED ASSESSMENT ASSESSMENT
8917969
8/25/15 46.9(a)
$100
$100
CITATION NO. DATE 30 C.F.R. § PROPOSED ASSESSMENT ASSESSMENT
8917966
8/25/15
46.9(a)
$100
$100
CITATION NO. DATE 30 C.F.R. § PROPOSED ASSESSMENT ASSESSMENT
8917965
8/25/15 56.6132(a)(6)
$108
$108
CITATION NO. DATE 30 C.F.R. § PROPOSED ASSESSMENT ASSESSMENT
8917964
8/25/15 56.4201(a)(1)
$100
$100
CITATION NO. DATE 30 C.F.R. § PROPOSED ASSESSMENT ASSESSMENT
8917960
8/25/15 56.9301
$100
$100
Tr. 135-36, 165-66.
ORDER
The inspector’s negligence finding in Citation No. 8917962 IS MODIFIED from
“moderate” to “low,” his gravity finding in Citation No. 8917963 IS MODIFIED from
reasonably likely to result in “lost workdays or restricted duty” to reasonably likely to result in
“no lost workdays,” his S&S finding in Citation No. 89817963 IS DELETED, and the
inspector’s negligence finding in Citation No. 8917957 IS MODIFIED from “moderate” to
“low.” Further, Citation No. 8917967 IS VACATED.

39 FMSHRC Page 716

Within 30 days of the date of this decision, Newtown SHALL PAY civil penalties in the
amount of $3,592 ($2,645 for the violations found in the contested citations and $947 for the
violations found in the uncontested citations).20 Upon PAYMENT of the penalties, this
proceeding is dismissed.

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge 21

Distribution: (Certified Mail)
Emily B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, MHSA Backlog, 1244
Speer Blvd., Suite 216, Denver, Colorado 80204
John Williams, President, Newmont Slate Company, Inc., 720 Vt. Rte. 149, West Pawlet,
Vermont 05775
/db

20

Payment shall be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, BOX 790390, ST. LOUIS, MO 631790390.
21

This is the last decision the court will author. The court thanks all who have appeared
before it for the civility and respect they have shown the court and one another. The court
believes it is decorum grounded in the recognition that through playing our parts to resolve
disputes that inevitably arise over the interpretation and implementation of the Mine Act and the
regulations promulgated thereunder, we are furthering the law’s fundamental purpose – to
enhance “the health and safety of [the industry’s] most precious resource – the miner.” 30 U.S.C.
§ 802 (a). It has been a privilege for the court to be part of the process.

39 FMSHRC Page 717

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

March 31, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JEFFREY PAPPAS,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2016-264-DM
WE MD 16-02

v.
CALPORTLAND COMPANY, and
RIVERSIDE CEMENT COMPANY,
Respondents.

Mine ID 04-00011
Mine: Oro Grande Quarry
DECISION

Appearances: Abigail G. Daquiz, Esq., and Sonya P. Shao, Esq., U.S. Department of Labor,
Office of the Solicitor, Seattle, Washington, on behalf of Complainant;
Brian P. Lundgren, Esq., and Erik M. Laiho, Esq., Davis Grimm Payne & Marra,
Seattle, Washington, for CalPortland Company;
Karen L. Johnston, Esq., Jackson Kelly PLLC, Denver, Colorado, for Riverside
Cement Company.
Before:

Judge Paez

This complex case is before me upon a complaint of discrimination filed by the Secretary
of Labor (“Secretary”), on behalf of Jeffrey Pappas, against CalPortland Company
(“CalPortland”) and Riverside Cement Company (“Riverside”), pursuant to section 105(c)(2) of
the Federal Mine Safety and Health Review Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2).1
I. PROCEDURAL HISTORY
In October 2015, Jeffrey Pappas filed a complaint with MSHA alleging discrimination
under section 105(c) of the Mine Act against CalPortland. After an investigation, the Secretary
chose to pursue the case on behalf of Pappas and filed an application for temporary reinstatement
pursuant to section 105(c)(2) of the Mine Act against CalPortland. I held a hearing on the
temporary reinstatement on January 5, 2016, and granted the Secretary’s application. Upon
review, the Federal Mine Safety and Health Review Commission (“Commission”) upheld
Pappas’s temporary reinstatement. CalPortland subsequently filed a petition for review with the
1

In this decision, the hearing transcript, the joint exhibit, the Secretary’s exhibits,
Riverside’s exhibits, and CalPortland’s exhibits are abbreviated as “Tr.,” “Joint Ex. #,” “Ex. S–
#,” “Ex. RCC–#,” and “Ex. CPC–#,” respectively.

39 FMSHRC Page 718

U.S. Court of Appeals for the D.C. Circuit, which granted CalPortland’s petition and vacated the
Commission’s decision and order for temporary reinstatement on October 20, 2016.2 Pursuant to
the D.C. Circuit’s formal mandate, I dismissed the temporary reinstatement proceeding on
December 14, 2016.
On February 11, 2016, the Secretary filed a discrimination complaint on behalf of Pappas
with the Commission. Chief Administrative Law Judge Robert J. Lesnick assigned the matter to
me on March 11, 2016. On March 11, 2016, the Secretary filed an amended complaint adding
Riverside as a respondent to the proceeding and proposing penalties of $20,000 and $15,000
against Riverside and CalPortland, respectively.3 CalPortland and Riverside each filed an answer
to the amended complaint on April 8, 2016. After consultation with the parties, I issued a Notice
of Hearing on April 14, 2016, and set this matter for hearing on December 6–9, 2016, in San
Bernardino, California.
Prior to the hearing, the parties filed several motions. On November 10, 2016,
Respondents Riverside and CalPortland each filed a motion for summary decision, which I
denied in a separate order on December 2, 2016. On November 18, 2016, Respondents Riverside
and CalPortland filed a Joint Motion to Compel Discovery Responses, which I also denied in a
separate order on December 2, 2016. On December 2, 2016, the Secretary filed a Motion in
Limine to Exclude Riverside Cement Company Witnesses and a Motion for Sanctions for
Spoliation of Evidence, both of which I denied in a separate order on March 30, 2017.4

2

The D.C. Circuit held Pappas was an “applicant for employment” under section
105(c)(2) who was not eligible for temporary reinstatement. CalPortland Co. v. FMSHRC, 839
F.3d 1153, 1156 (D.C. Cir. 2016). The court maintained, however, that CalPortland may still be
held liable for discrimination under section 105(c)(2). Id. at 1164 (“In a final decision,
CalPortland, as the successor operator of the Oro Grande plant, could perhaps be ordered to
instate Pappas if it was found to have violated the Mine Act when it failed to hire him. . . .”)
(internal citation omitted).
3

At the hearing, the Secretary moved to amend the complaint to allege that CalPortland
is a successor-in-interest to Riverside. (Tr. 312:2–16.) Counsel for CalPortland stated its
objection to the motion on the record, arguing that CalPortland was not placed on notice and
would be prejudiced by the amendment. (Tr. 313:3–21, 314:21–316:24.) However, I noted on the
record that the Secretary pled the claim that CalPortland is a successor to Martin Marietta,
Riverside’s owner, in its initial application for temporary reinstatement filed on December 8,
2015. (Tr. 317:1–9; App. Temp. Restatement at 2.) I also noted that in its decision on appeal of
the temporary reinstatement proceeding, the D.C. Circuit stated the Secretary could pursue a
successorship theory during the discrimination case on the merits. (Tr. 317:11–15); supra note 2.
I therefore concluded that the parties have been on notice that a successorship issue exists in this
case. (Tr. 317:15–19.) For the reasons stated, I granted the Secretary’s motion to amend the
complaint with regard to the successorship issue. (Tr. 316:25–317:24.)
4

The Secretary moved to exclude Riverside’s presentation of Jamie Ambrose’s and
David Salzborn’s testimony, asserting that Riverside falsely claimed it did not have access to
(continued…)

39 FMSHRC Page 719

I held a hearing on December 6–9, 2016, in San Bernardino, California. At the hearing,
the parties stipulated to the following:
1. Respondent Riverside is an operator within the meaning of the Mine Act.
2. Respondent CalPortland is an operator within the meaning of the Mine Act.
3. Oro Grande Quarry, Mine I.D. No. 04-00011, is subject to the jurisdiction of the
Mine Act.
4. The Administrative Law Judge has jurisdiction in this matter.
5. Jeffrey Pappas was a laborer at the time of his termination in September 2015 from
his employment at Riverside.
6. On or about October 12, 2015, Jeffrey Pappas filed a discrimination complaint with
MSHA under section 105(c) of the Mine Act.
7. Jeffrey Pappas’s employment with Riverside was terminated on September 30, 2015.
8. The exhibits to be offered by the parties are stipulated to be authentic, but no
stipulation is made as to their relevance or truth of the matters asserted therein.
(Tr. 23:9–24:12, 26:18–22; Joint Ex. 1.) The Secretary presented testimony from three witnesses:
Jeffrey Pappas, the complainant; William Arps, Jr.,5 a miner at Oro Grande and local union
4 (…continued)

these witnesses and failed to adequately respond to discovery requests related to their knowledge
of Pappas’s work history. (Mot. to Exclude at 1–7.) Because the Secretary’s motion did not show
any attempt to depose or obtain contact information directly for either witness, despite having
advanced notice of their identity and role in these proceedings, I denied the motion.
5 At the hearing, Riverside and CalPortland objected to the Secretary’s presentation of

Arps’s testimony and requested it be excluded because he was not timely disclosed as a miner
witness. (Tr. 322:20–324:25.) I issued a Notice of Hearing on April 14, 2016, which stated that if
the Secretary intended to call miner witnesses, pursuant to 20 C.F.R. § 2700.62, the number of
such witnesses shall be noted in a prehearing statement and a list of names of such witnesses with
a description of their expected testimony shall be filed and served on all parties by 9:00
a.m., Pacific Time, on the second business day prior to the hearing.
Counsel for Riverside pointed out that the Secretary neither noted the number of miner
witnesses in his prehearing statement nor timely filed the name of the miner witness with a
description of his expected testimony. (Tr. 323:10–25.) Respondents asserted that the late filing
hampered counsels’ ability to prepare for the witness. (Tr. 324:5–25.) Counsel for the Secretary
admitted to the deficiencies in her filings, but suggested the miner be able to testify later in the
(continued…)

39 FMSHRC Page 720

president; and Kyle Jackson, an MSHA special investigator.6 Riverside presented testimony from
three witnesses: Timothy Sheridan, Martin Marietta’s director of employee relations; David
Salzborn, former plant manager at Oro Grande; and Jamie Ambrose, a former human resources
generalist for Riverside. CalPortland presented testimony from four witnesses: Jamie Ambrose,
currently a human resources manager at CalPortland; Robert Binam, CalPortland’s vice
president, general counsel, and corporate secretary; Steven Antonoff, CalPortland’s vice
president of human resources; and Betsy Lamb, CalPortland’s former vice president of
organizational planning and development.
The parties completed briefing on February 10, 2017, and each filed post-hearing briefs
and reply briefs.
II. ISSUES
The following issues are before me: (1) whether the Secretary has established by a
preponderance of evidence that Riverside discriminated against Pappas in violation of section
105(c) of the Mine Act, and if so, what are the appropriate remedies; and (2) whether the
Secretary has established by a preponderance of evidence that CalPortland discriminated against
Pappas in violation of section 105(c) of the Mine Act, and if so, what are the appropriate
remedies.
III. FINDINGS OF FACT
A.

Background of the Oro Grande Facility

The Oro Grande mine is a cement manufacturing facility located in Oro Grande,
California. (Ex. S–31 at 104–115.) From 1998 to 2014, Texas Industries (“TXI”) owned the Oro
5

(…continued)
hearing to give Respondents additional time to prepare. (Tr. 325:2–15.) Counsel for the Secretary
also stated on the record the purpose of Arps’s testimony. (Tr. 326:15–20.)
The Secretary failed to abide by my Notice of Hearing. (Tr. 326:1–6.) I reasoned,
however, that because only one witness was at issue the prejudice could be cured. (Tr. 326:21–327:12.) Respondents suggested and agreed to have a 10-minute break, allow Arps to
subsequently testify on direct examination, and then have an extended lunch break after his
direct examination to prepare their cross-examinations. (Tr. 327:24–328:14.) I granted
Respondents’ request and allowed Arps’s testimony. (Tr. 328:15–17, 377:10–15.)
6

At the close of the Secretary’s case, Riverside and CalPortland each moved for a
directed verdict. (Tr. 596:21–610:1.) Riverside moved for a directed verdict on the grounds that
the Secretary failed to establish a nexus between Pappas’s protected activity and the adverse
action. (Tr. 596:21–599:15.) CalPortland moved for a directed verdict on the grounds that the
Secretary did not establish that CalPortland had knowledge of Pappas’s protected activity and
that the Secretary’s successorship theory of liability fails. (Tr. 599:17–610:1.) Given the volume
of the record that needed to be reviewed in this matter to render a complete and full decision, I
denied both motions for a directed verdict. (Tr. 613:8–614:4.)

39 FMSHRC Page 721

Grande facility through a subsidiary named Riverside Cement Company (“Riverside”). (Tr.
61:24–62:2, 655:13–18; Ex. S–31 at 105.) In July 2014, Martin Marietta purchased TXI in a
stock purchase and assumed operation of Riverside and its Oro Grande facility. (Tr. 409:16–
410:9, 655:25–656:2, 777:2–4; Ex. S–31 at 105.)
Under Martin Marietta, Riverside operated the Oro Grande facility around the clock
because of the difficulty of shutting down and restarting the cement plant’s kiln. (Tr. 64:19–21,
813:13–23.) The facility had several revolving shifts running 24 hours a day, seven days a week,
and employed approximately 150 employees, approximately 110 of whom were hourly
employees. (Tr. 44:14–16, 856:8–15; Exs. CPC–27, CPC–28 at 3–5, S–37 [112: 10–23, 127:3–
7].) The mine’s hourly employees were represented by the United Steel Workers union. (Tr.
333:2–5, 412:22–413:6, 723:22–724:6; Ex. RCC–26.) Generally, a newly-hired hourly employee
at the mine would begin as a laborer, which was physically demanding work involving shoveling
debris and other tasks. (Tr. 37:18–23, 42:10–12, 331:10–12, 332:15–333:1.)
Hourly employees could transfer to different positions through a bidding process
according to the collective bargaining agreement (“CBA”) the union had with Riverside Cement
Company under TXI, which was extended by Martin Marietta. (Tr. 43:16–25, 414:6–415:8; RCC
Ex. 26 at 50–57.) Under this process, consideration for a position was first based on seniority,
provided the senior bidder was physically capable of performing the position’s duties. (Ex.
RCC–26 at 53.) Additionally, an employee could “bump” into different positions at the mine in
the event the miner’s current position was eliminated or re-organized. (Ex. RCC–26 at 50–51.)
The CBA also established grievance procedures by which the union represented
employees who had disputes with the company. (Tr. 345:8–351:19; Ex. RCC–26 at 29–32.) The
grievance process consisted of four steps. (Id.) The first step involved the aggrieved employee
consulting his immediate supervisor. (Ex. RCC–26 at 29.) If the grievance remained unresolved,
the second step involved a meeting between the company’s representative and the union
committee to discuss the grievance. (Id. at 29–30.) If no agreement was made at the second step,
the third step consisted of a meeting with the company’s director of human resources and union
representatives. (Id. at 30.) Finally, the fourth step involved the grievance’s referral to
arbitration, which included the involvement of the United Steel Workers’ international
representative. (Id. at 30–31; Tr. 334:11–24.)
On June 30, 2015, just about a year after Martin Marietta acquired the mine, CalPortland
signed an agreement with Martin Marietta to purchase Oro Grande in a limited asset sale. (Exs.
CPC–2, CPC–3.) Under the asset purchase agreement, CalPortland would not assume certain
liabilities associated with Riverside, including Riverside’s labor force and current CBA. (Ex.
CPC–2 at 21–27.) The sale closed on October 1, 2015. (Tr. 680:4–9, 691:1–2, 731:6–9.)
B.

Pappas’s Work History at the Oro Grande Mine

Jeffrey Pappas worked at the Oro Grande facility for 16 years beginning in 1999 as a
laborer during TXI’s ownership. (Tr. 37:10–23, 61:24–62:2; Ex. S–13 at 10–13.) Over time,
Pappas held numerous hourly-wage positions, including recuperator, feed tender, preheater

39 FMSHRC Page 722

helper, mill lube man, cement scheduler, quarry worker, and dust collector. (Tr. 42:9–45:6,
50:23–51:17, 59:1–60:11; Ex. S–13 at 10–13.)
In regard to his work history at the mine, Pappas has never been disciplined for safety or
doing his job incorrectly and has been described as a hard worker and model employee. (Tr.
61:14–23, 372:15–373:1, 353:14–20.) However, during his first ten years at the mine, Pappas
was disciplined for attendance issues.7 (Tr. 161:17–162:9.) Additionally, while working as a
cement scheduler at the mine’s pack house in 2010, a co-worker filed a complaint against
Pappas, alleging he created a hostile environment by arguing with and complaining to fellow
employees. (Tr. 60:18–61:4, 158:5–25; Ex. RCC–6 at 1.) As a result, the company found that
Pappas violated the plant’s Work Rule 13(g).8 (Ex. RCC–6 at 1.) As discipline, Riverside, under
TXI’s ownership, suspended Pappas for three days, disqualified him from the cement scheduler
position, and required him to attend anger management classes. (Tr. 61:5–10, 159:1–10; Ex.
RCC–6 at 1.) Upon his return, Pappas was re-assigned as a laborer at the mine. (Tr. 160:19–24;
Ex. RCC–6 at 1.) He eventually became a dust collector in 2012. (Ex. S–13 at 11.)
1.

Prior Termination and Discrimination Case at Riverside/TXI in 2014

In December 2013, when Pappas worked as a dust collector, he and two co-workers were
assigned to replace filters on the chutes that loaded rail cars in the mine’s pack house. (Tr.
69:11–20.) As they were working on manlifts elevated above two of three tracks, a string of train
cars moved backwards on the track towards them. (Tr. 72:2–17.) The train had no miner
stationed at the end of the cars for safety to instruct the locomotive operator whether to stop. (Tr.
72:22–73:5.) The track split three ways, and the train eventually came down the third track
where Pappas and his co-workers were not working. (Tr. 73:6–9.) Pappas felt his life had been
endangered by the moving train, and the work crew subsequently placed a lock on the train. (Tr.
72:18–22, 75:17–20, 73:16–20, 74:15–17.)
Upon coming down from the manlift, Pappas’s supervisor singled Pappas out and
reprimanded him, demanding he pull the lock off the train so the train could be moved. (Tr.
73:9–20.) Pappas informed his supervisor that the train should not have been operating while he
and his co-workers were working on the track and demanded a safety review. (Tr. 73:21–25.)
Company policy allowed workers to stop an assigned task and request a safety review whenever
7

Pappas testified to having problems with alcoholism, which contributed to his
attendance problems. (Tr. 161:17–162:9.) After the company warned him, Pappas corrected his
behavior in order to prevent losing his job. (Tr. 162:4–9.) At the time, Riverside’s policy under
TXI’s ownership allowed an employee’s personnel file to be expunged of his absentee issues
after 12 months. (Tr. 289:24–19.)
8

Riverside’s Work Rule 13(g), under TXI, prohibited “[t]hreatening, intimidating,
coercing, or interfering with fellow employees on company premises.” (Ex. RCC–22 at 2.) The
company marked Work Rule 13(g) as a major violation, which may subject a violator to
immediate discharge. (Id. at 2.) According to the company, violating Work Rule 13(g)
constitutes creating a “hostile work environment.” (Tr. 436:4–22; Ex. RCC–6 at 1.)

39 FMSHRC Page 723

they felt unsafe. (Tr. 74:1–11.) Despite Pappas’s request, his supervisor threatened to charge
Pappas with insubordination if Pappas did not remove the lock off the train. (Tr. 74:12–17.)
Pappas removed the lock, but insisted on the safety review. (Tr. 74:18–75:1.) Three hours later,
the mine’s safety director, Diane Fionda, arrived at their location to conduct the requested safety
review. (Tr. 75:2–12.) Fionda told Pappas that the safety policy permitted miners to work on the
tracks next to the locomotive. (Tr. 77:1–4.) Later, Pappas brought up the issue at a monthly
safety meeting with then-plant manager, David Salzborn, who Pappas testified only got mad at
him for accusing Pappas’s direct supervisor of lying about safety.9 (Tr. 76:11–17.)
A few weeks later, Pappas approached an MSHA Inspector, who was conducting an onsite inspection with Fionda, and asked him whether the train incident created a safety issue. (Tr.
77:13–78:3.) Upon learning what happened to Pappas and his coworkers on the train tracks, the
MSHA Inspector wrote TXI citations for safety violations and instructed the mine to place an
additional lock on the rail tracks. (Tr. 78:12–22.)
Soon after, Pappas was told he had been abusing his truck privileges and was ordered by
mine management not to use his truck on mine property during work. (Tr. 165:4–24.) However,
Pappas testified his immediate supervisor later allowed him to use the truck periodically and did
not reprimand Pappas when he saw Pappas using the truck. (Tr. 165:25–166:5, 167:18–24.)
Nevertheless, on April 4, 2014, Pappas was terminated for gross insubordination after he was
observed using his work truck. (Tr. 79:8–12, 165:4–167:24; Ex. S–1 at 1.) Later that same
month, Pappas filed a section 105(c) discrimination complaint with MSHA against Riverside,
alleging his termination was motivated by his reporting the train incident to MSHA. (Tr. 79:8–
16, 255:19–24; Ex. S–1 at 1.) Following depositions in December 2014, Riverside and Pappas
reached a Commission-approved settlement, which reinstated Pappas at the Oro Grande mine,
expunged all records of the truck incident and termination from Pappas’s personnel file, and
resulted in Riverside paying civil penalties.10 (Tr. 763:11–764:2; Ex. S–1 at 1.) As part of the
settlement, Pappas returned to work as a dust collector at the cement facility on January 5, 2015.
(Tr. 79:21–80:1, 167:25–168:4.)

9

Salzborn did not specifically testify about how he personally addressed Pappas at the
safety meeting. However, Salzborn testified that after conducting a safety review and
investigation of the incident, the company changed its policy regarding the amount of clearance
required between the rail track and a manlift. (Tr. 646:14–18.) The record is unclear whether this
change of policy occurred before or after MSHA issued citations related to the incident.
10

During Pappas’s 2014 discrimination proceeding, Riverside was represented by TXI’s
retained counsel, William K. Doran, from the law firm of Ogletree, Deakins, Nash, Smoak &
Stewart, P.C. (Tr. 439:7–15.) In July 2014, Martin Marietta purchased TXI. (Tr. 409:16–410:9.)
Doran continued his representation of Riverside because the 105(c) complaint was still pending
when Martin Marietta acquired TXI. (Tr. 439:12–15.) Riverside, under Martin Marietta’s new
ownership, carried out the terms of the settlement with Pappas because Martin Marietta’s
purchase of TXI included Riverside’s liabilities. (Tr. 409:16–410:9.)

39 FMSHRC Page 724

2.

Incidents at Riverside/Martin Marietta after Pappas’s Reinstatement

When Pappas returned to work in January 2015 as a result of the section 105(c)
settlement, he felt harassed by his former coworkers because of his discrimination case and prior
safety complaint. (Tr. 81:14–82:16.) Specifically, a miner named Stacy Portis,11 who also
worked as a dust collector and whom Pappas described as a friend, repeatedly made derogatory
comments about Pappas being brought back to work and attempted to bait Pappas into
conversations about race and gender. (Tr. 81:14–82:16, 247:18–248:10.) In early February 2015,
Pappas met with human resources manager Jamie Ambrose (née Rowe) and asked her to
intervene to stop the harassing behavior. (Tr. 82:17–83:3, 85:25–86:1, 659:21–660:6.) Ambrose
informed Pappas that she would talk to his supervisor, and she asked Terry Jacobs, the mine’s
maintenance manager, to instruct Pappas’s direct supervisor to monitor the situation and report to
Ambrose if any further issues occurred. (Tr. 83:3, 660:22–661:5.) Around the same time, Pappas
removed himself from the group by avoiding the breakroom and eating lunch by himself because
he felt the harassment continued even after he asked Portis and his companions to stop. (Tr.
83:4–84:5, 172:21–173:4.) On April 17, 2015, Ambrose took maternity leave and did not return
to work until July 6, 2015.12 (Tr. 662:11–14.)
In late April 2015, a series of events led to a heated exchange between Pappas and Portis.
Pappas along with three co-workers on the dust collector team had been responsible for gathering
dust collector readings by the end of every week. (Tr. 81:9–13, 89:18–21.) Pappas was assigned
to the plant’s northern area, and Portis was assigned to the area between the pack house and the
tower. (Tr. 89:21–24.) James “Slim” Wright, the team’s lead man and local union vice president,
decided to switch Pappas’s and Portis’s assignment areas. (Tr. 90:6–9.) On a Monday, while
inspecting the area originally assigned to Portis, Pappas uncovered three broken interior dust
collector doors. (Tr. 90:9–11.) Pappas wrote up a work order to have these doors fixed. (Tr.
91:11–13.)
On Tuesday, April 28, the following day, Pappas, Portis, Wright, and the fourth team
member, Harold Cole, had to repair roofs at the mine’s hammermills, which took the entire day.
(Tr. 81:9–13, 92:20–93:6.) On Wednesday morning, April 29, Portis turned in his dust collector
readings to Wright. (Tr. 93:7–17.) Pappas informed Wright that he did not believe Portis could

11

Pappas has known Portis for 30 years and first started working with him at a trucking
company prior to working at Oro Grande. (Tr. 40:18–41:7.) Despite Pappas’s arguments with
Portis, including one instance during their truck driving days when Pappas left Portis in Chicago
but returned to get him, Pappas nevertheless still considers Portis a friend. (Tr. 41:3–7, 102:18–
23, 153:9–11.)
12

Pappas testified to meeting once more with Ambrose before she took maternity leave to
address his harassment concerns. (Tr. 86:2–23.) However, Ambrose does not recall meeting with
Pappas again before she took leave on April 17, 2015. (Tr. 662:11–19.) Nor does Pappas’s own
calendar note a second meeting. (Ex. S–2.)

39 FMSHRC Page 725

have completed the assignment in such a short period of time and alleged Portis falsified his
report.13 (Tr. 93:13–95:5, 217:12–14, 467:7–469:1; Ex. RCC–12.)
The next day, Thursday, April 30, Pappas and Portis were assigned to fix the broken dust
doors, a job which required two workers under the company’s policy and MSHA regulations.
(Tr. 95:23–96:17.) Pappas arrived at the work location at 9:00 a.m. and waited for Portis for two
hours before taking his lunch break. (Tr. 96:21–97:3.) At lunch, Pappas saw Portis socializing
with Wright and another co-worker. (Tr. 97:4–10.) After lunch, Pappas spoke with Dan Kegel, a
maintenance manager, and informed Kegel that he had not finished his assignment because he
had been waiting for Portis to come help him. (Tr. 97:11–20.) Kegel assured Pappas he would
tell Portis to meet him and instructed Pappas to go back to the work location. (Tr. 97:21–24.)
Pappas waited another several hours and attended to other work duties in the area, but Portis
never arrived to help fix the broken dust collector doors. (Tr. 97:25–98:9.)
Towards the end of the shift, Pappas put away his work tools and went back to the break
room to pack up. (Tr. 98:6–13.) In the break room, Pappas saw Portis socializing again with coworkers, Wright, Cole and David Wray. (Tr. 98:13–18.) Pappas confronted Portis for not helping
him earlier in the day by yelling, using profanity, and calling Portis a “lazy mother fucker” and a
“piece of shit.”14 (Tr. 98:19–99:5, 107:15–16, 183:14–17, 248:11–20; Ex. RCC–1.) Portis and
Pappas engaged in a heated exchange that lasted for several minutes. (Ex. RCC–1.) Afterward,
Pappas gathered his stuff, slammed his locker, and left for the day. (Tr. 99:11–13.)
The following day, Friday, May 1, 2015, Stacy Portis filed a written complaint with
management against Pappas, stating that Pappas verbally assaulted him and that he feared Pappas
may physically attack him, mentioning that Pappas had made it widely known that he owned
guns. (Ex. RCC–1.) When Pappas arrived at the mine that morning, Cole advised Pappas that
mine management was gathering statements from Portis, Wray, and Wright regarding the
incident. (Tr. 103:1–19.) Pappas attempted to talk to mine management that day, but could not
reach the plant manager, Kevin Grogan, or assistant manager, Kevin Deatley. (Tr. 104:2–5.)
Pappas also attempted to speak to human resources, but Pappas could not locate anyone in that
office either, and Ambrose was on maternity leave at the time. (Tr. 104:3–4, 662:11–14.) Later
13

Pappas subsequently reported that Portis falsified the report to the Mojave Desert Air
Quality Management District “MDAQMD,” which initiated an investigation. (Tr. 467:7–469:1;
Exs. S–6, RCC–12.) The claim remained unsubstantiated because the investigator found no
evidence the report had been manipulated. (Tr. 469:2–8; Exs. S–6, RCC–12.) Simultaneous to
Pappas’s report, an anonymous call to the MDAQMD also alleged the mine had violative
emissions, which resulted in a pop-up inspection. (Tr. 469:24–470:8; Exs. S–6, RCC–12 at 5–6.)
During the inspection, the MDAQMD again did not find any evidence that the mine had
manipulated its reports nor found any violative emissions. (Tr. 470:9–12; Exs. S–6, RCC–12.)
14

Pappas told Portis that he was “lazier than James Hawthorne,” another miner at the
plant who had a reputation for being lazy. (Tr. 99:1–10.) Riverside management noted in its
investigation of the incident that both Portis and Hawthorne were African-American, though
Portis himself did not mention in his complaint that he took Pappas’s comment to be racial. (Exs.
S–7 at 1; RCC–1 at 3–7.)

39 FMSHRC Page 726

that day, Pappas learned that Portis, Wray, and Wright were called into plant chemist Bob
Sylvia’s office to further discuss the incident. (Tr. 105:1–16.) Pappas finished his shift and
returned home for the weekend without discussing his involvement with the incident in detail
with a member of management. (Tr. 105:18–25.)
The next Monday, May 4, 2015, maintenance manager Terry Jacobs called Pappas into
his office, and Pappas exercised his union rights to have the union’s president, William Arps, Jr.,
present; Jacobs asked Pappas about the verbal incident. (Tr. 106:6–108:3; Ex. RCC–2.) When
Pappas started to give background information, Jacobs refused to consider Pappas’s explanation
of the events leading up to the incident between Pappas and Portis and focused solely on the
quarrel itself. (Tr. 107:6–11, 339:6–340:9.) The company conducted an investigation, gathering
the statements of several witnesses including Pappas, Portis, Wright, Wray, and Cole. (Exs.
RCC–1, RCC–2, RCC–3, RCC–4.) Grogan contacted Martin Marietta’s director of employee
relations, Timothy Sheridan, for his advice on the situation. (Tr. 420:20–421:25.) Grogan
informed Sheridan of Pappas’s 2010 suspension for violating Work Rule 13(g). (Tr. 424:16–23.)
Sheridan reviewed the witness statements and spoke over the telephone with Grogan, Deatley,
and Bob Kidnew, the president of the company’s cement division, regarding the incident. (Tr.
422:15–21, 423:20–424:1.) After his telephone conversations and review, Sheridan concluded
that Pappas was the instigator of the incident and engaged in threatening and intimidating
behavior. (Tr. 424:5–10.) Sheridan was concerned that such behavior could lead to violence in
the workplace. (Tr. 424:9–15.)
Grogan suggested to Sheridan that the company terminate Pappas. (Tr. 438:22–25; Ex.
RCC–3 at 1–2.) During the course of his investigation, Sheridan discovered that Pappas had
recently been reinstated to the mine following his 2014 discrimination case. (Tr. 439:1–6.)
Sheridan expressed to Grogan his concern that terminating Pappas may pose a significant risk to
the company. (Ex. RCC–3 at 2.) Sheridan, an attorney himself, then consulted with Doran, the
attorney who represented Riverside under TXI’s ownership, to ensure the company would not
make any missteps in disciplining an employee who had recently been reinstated. (Tr. 439:16–
24.)
Riverside determined that Pappas violated the plant’s Work Rule 13(g) prohibiting
conduct that threatened, intimidated, coerced, or interfered with other employees. (Tr. 108:18–
109:3; Ex. RCC–4.) Upon Sheridan’s recommendation, Riverside suspended Pappas for five
days, required him to undergo a psychological evaluation before returning to work, and
disqualified him from working in the dust collector shop. (Tr. 440:7–19, 109:8–22; Exs. S–8,
RCC–4.) Pappas signed a statement outlining the discipline on May 12, 2015. (Ex. RCC–4.)
Because of a delay in scheduling the evaluation, Pappas did not return to work for more than a
month. (Tr. 110:19–111:23, 342:5–12.) While Pappas was not working, the union negotiated
with Sheridan for Pappas to receive back pay for the period between the end of his suspension
and the time he waited for his psychological review to be completed. (Tr. 200:19–201:13, 342:5–
24, 446:6–447:8.) After receiving a psychological review, a doctor declared Pappas fit for duty
to return to work and did not recommend Pappas attend anger management. (Tr. 114:5–12,
442:22–24, 484:2–7; Ex. S–38.)

39 FMSHRC Page 727

3.

Pappas’s Grievances with Riverside/Martin Marietta

On June 22, 2015, Pappas returned to work and met with assistant manager Kevin
Deatley to sign another form that outlined the discipline received and served as a documented
warning. (Tr. 115:15–116:17; Ex. S–9.) The union filed grievances on behalf of Pappas to reduce
the discipline he received for the incident.15 (Exs. S–3, S–4.) After his return, Pappas attempted
to speak with management to further dispute the discipline he received. (Tr. 117:13–126:17.)
First, Pappas approached plant manager, Kevin Grogan, and after two meetings, Grogan
informed Pappas that his dispute would be handled by the union’s grievance procedures. (Tr.
118:10–121:12.) Pappas also wrote a letter to Donald McCunniff, Martin Marietta’s senior vice
president of human resources, explaining the incident. (Tr. 462:25–463:13; Ex. S–10.) Pappas
received a call informing him the matter would be looked into, but received no substantive
follow-up. (Tr. 123:13–25, 463:14–464:12.) McCunniff forwarded Pappas’s letter to Sheridan,
who read the letter and did not take further action because he believed the matter would be
addressed in the union’s grievance process and did not interpret the letter to be a complaint about
an ethical violation. (Tr. 463:1–464:12.) In July, Pappas also approached Ambrose after she
returned from maternity leave to discuss the matter, but Ambrose also informed Pappas the issue
would be dealt with in the grievance procedure. (Tr. 124:3–126:19, 664:4–665:21.)
Pappas’s grievance was moved to the third step of the union’s grievance procedure. (Exs.
S–3, S–4.) A third step meeting was held on August 27, 2015, at the plant. (Tr. 455:13–20,
627:17–20, 670:3–9.) Present for the company were Ambrose, Grogan, Deatley, and Sheridan.
(Tr. 670:17–671:7.) Present for the union were union president Arps, union vice president
Wright, and union international representative Ron Espinosa. (Id.) Also present was David
Salzborn, the plant’s retired former plant manager whom Martin Marietta hired back as a
consultant in May 2015 and then as a plant manager in July 2015 to help the company transition
during its sale to CalPortland. (Tr. 616:15–618:3, 627:17–20, 457:22–458:1.)
After the union settled Pappas’s grievance on August 27, 2015, Ron Espinosa, the
union’s international representative, requested Pappas be brought up to their third step meeting.
(Tr. 354:21–355:7, 630:12–15.) Several witnesses, including Pappas, testified that Espinosa’s
request was unusual and that employee grievants did not normally attend third step meetings.
(Tr. 127:2–128:1, 204:4–8, 354:21–355:7, 460:16–23, 646:19–647:5.) Pappas joined the meeting
where Espinosa instructed Pappas to put the behavior that contributed to the incident behind him.
(Tr. 130:18–19, 355:8–22, 461:1–18, 630:15–631:1.) Arps described that Espinosa addressed
Pappas like a “big brother” would, while Sheridan described that Espinosa “went off” on Pappas
and dressed him down for close to five minutes. (Tr. 355:8–22, 461:1–18.) Afterwards, Sheridan
told Pappas that he was responsible for Pappas’s discipline and mentioned Pappas’s 2014
15

The union filed two grievances on behalf of Pappas related to his May 2015
suspension. (Tr. 387:2–7, 668:6–8; Exs. S–3, S–4.) One grievance requested that the discipline
be reduced to a documented verbal, which would note in Pappas’s personnel file that he was
counseled about his behavior, but would not necessarily put Pappas at risk of termination for a
subsequent offense. (Tr. 393:16–22, 394:7–395:10; Ex. S–3 at 1.) The other grievance requested
that Pappas’s disqualification from the dust shop be removed and his suspension be eliminated.
(Tr. 197:10–25, 453:19–454:18; Exs. S–4, S–5.)

39 FMSHRC Page 728

discrimination complaint. (Tr. 129:2–22, 356:2–16, 461:19–462:19.) Pappas felt that Sheridan
belittled him. (Tr. 129:8–130:23.)
As a result of the grievance meeting, Pappas’s suspension was reduced to three days. (Tr.
395:23–396:1, 460:1–4, 673:17–21.) Pappas received back pay for two days of his original fiveday suspension. (Tr. 350:14–17, 395:16–24, 460:1–3.) Thereafter, on September 28, 2015,
Pappas was among approximately 15 Oro Grande employees at Riverside who were not hired by
CalPortland when it assumed control of the cement plant on October 1, 2015. (Tr. 142:18–144:6,
489:14–490:6.)
C.

CalPortland Company’s Acquisition of the Oro Grande Plant

On June 30, 2015, CalPortland entered into an asset purchase agreement with Martin
Marietta to purchase certain assets, including the Oro Grande facility, two shipping terminals in
National City and Stockton, California, and some inventory stockpiled in Martin Marietta’s
storage facility in Crestmore, California. (Exs. CPC–2 at 12–15, S–37 [83:15–84:6].) In July and
August 2015, CalPortland representatives began touring Oro Grande to understand how the plant
operated in anticipation of the purchase’s closing date. (Tr. 620:16–621:4.) The asset sale closed
on October 1, 2015, when CalPortland took ownership. (Tr. 680:4–5, 680:9, 691:1–2, 731:6–7.)
The negotiated agreement did not include any employment liabilities, such as the CBA
or the facilities’ workforce. (Exs. CPC–2 at 24–27, S–37 [87:15–88:1].) CalPortland specifically
structured the limited asset sale according to the model that the Supreme Court first recognized
in NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), to ensure
CalPortland would be free to negotiate new employment terms. (Ex. S–37 [108:21–111:18]; see
Ex. CPC–1.) Hence, Martin Marietta terminated all its employees at the purchased facilities on
September 30, 2015, right before 12:00 midnight of the day the agreement closed. (Tr. 361:13–
19, 417:12–17; Ex. S–25 at 1.) Immediately thereafter, at 12:01 a.m. on October 1, the prior
Riverside employees that were hired at Oro Grande began working for CalPortland. (Tr. 682:1–
2, 686:20–23; Ex. S–37 [108:10–17, 111:9–25, 113:4–21, 135:2–136:9, 146:9–12].)
Before hiring hourly workers, CalPortland sought to get its management team in place.
(Tr. 882:23–883:18.) In mid-August, Ambrose interviewed for a position at CalPortland to be a
human resources manager at Oro Grande following CalPortland’s takeover. (Tr. 817:11–21.)
CalPortland’s vice president for human resources, Steve Antonoff, offered Ambrose the position
at the Oro Grande, and Ambrose signed her offer letter acceptance on September 1, 2015. (Tr.
681:22–25, 804:5–9; Ex. CPC–23.) Because CalPortland wanted to take control of the Oro
Grande cement operation without undergoing the expensive process of shutting down the plant’s
kiln, the company began the process of staffing the plant early. (Tr. 812:25–813:23, 869:17–24.)
Martin Marietta provided a list of current employees to CalPortland’s Antonoff. (Tr. 808:11–18.)
Antonoff then contacted Ambrose, who was still an employee of Riverside, so they could discuss
her hiring recommendations at the facilities. (Tr. 685:3–10, 812:18–815:13.)
On September 3, Ambrose and Antonoff met and went through the list of the employees
who were currently employed at Riverside’s multiple facilities. (Tr. 685:3–686:5, 711:20–23,
819:18–820:10, 854:16–22.) For each employee, Ambrose gave her recommendation by saying

39 FMSHRC Page 729

“yes,” “no,” “pass” (meaning skip), or “unsure.” (Tr. 689:7–14, 815:15–22, 818:4–819:14.)
Antonoff took notes on a spreadsheet he initially created to provide staffing information to
payroll and highlighted the employees’ names Ambrose did not give a “yes” answer for in
lavender (gray). (Tr. 688:24–689:6, 820:2–821:20, 843:3–18; Ex. CPC–27.) For some
employees, Ambrose commented on whether the employee was close to retirement, on leave, or
was on a performance improvement plan. (Tr. 693:7–23, 705:13–21, 707:11–708:1; Ex. CPC–
27.) For Pappas, Ambrose told Antonoff that she was “not sure”; Antonoff highlighted Pappas’s
name in lavender (gray), but made no further notation by his name. (Tr. 689:18–690:6; Ex. CPC–
27 at 5.)
A week or so later, in a mid-September 2015 meeting open to all employees, CalPortland
informed all of the miners at the Martin Marietta facilities that they would be fired and would
need to reapply for positions at CalPortland. (Tr. 835:5–21, 872:6–873:12; Exs. CPC–6, CPC–7.)
Because of the asset purchase, Riverside’s Crestmore facility would be shut down, so its miners
would be unable to keep their jobs at Crestmore. (Tr. 918:5–8; Ex. S–37 [83:24–84:6, 86:3–6.])
Based on the calls union president Arps received, this meeting created considerable anxiety
among the Oro Grande workforce because their future employment was not guaranteed, in
contrast to when Martin Marietta had bought Riverside Cement from TXI. (Tr. 359:21–363:23,
369:2–370:1.) Pappas did not attend that meeting. (Tr. 137:4–18.)
Thereafter, CalPortland sent out applications and arranged interviews for all of the miners
applying to work for them, and the interviews at Oro Grande lasted for three days from
September 21 to September 23, 2015. (Tr. 894:25–895:2; Exs. CPC–7, CPC–8, CPC–9, CPC–28
at 3–5, S–21, S–37 [112:24–113:3].) Nearly all of the miners from the four plants interviewed to
work under CalPortland, including approximately 108 of the 110 hourly miners working at Oro
Grande. (See Tr. 808:14–809:14, 810:1–13, 844:9–12; Exs. CPC–27, CPC–28 at 3–5, S–37 [112:
10–23, 127:3–7].) Approximately 21 miners who were losing their positions at Crestmore
applied to be reemployed at Oro Grande under CalPortland’s ownership. (Tr. 896:10–24; Ex.
CPC–28 at 2.) Miners met at Oro Grande in a large break room with several tables set up and
manned by interviewers from CalPortland. (Tr. 141:1–6, 364:2–10.) Each miner’s interview was
brief, with some lasting anywhere from three to seven minutes. (Tr. 141:1–12, 364:2–16, 889:5–
8.) CalPortland’s interviewers had a list of six questions for each miner regarding the miner’s
honesty and workplace relationships. (Tr. 890:2–12; see, e.g., Exs. S–14, S–33.)
The hiring decisions were made by Rich Walters, who was hired to be the plant’s new
manager under CalPortland, and Betsy Lamb, CalPortland’s vice president of organizational
planning and development at the time. (Tr. 632:1–5, 806:6–21, 876:21–877:1, 879:18–25.)
Although Lamb reported to Antonoff, Antonoff himself was a new hire, so Lamb took over the
task of hiring because of her experience even though she was considering retiring. (Tr. 870:7–
871:11, 879:18–881:1.) In preparation, Walters also had a brief conversation with Salzborn
regarding some employees who might be problematic. (Tr. 530:15–19, 581:13–23, 632:1–
633:4.) During that discussion, Salzborn named two employees, one of whom was Pappas,
whom he considered to be an issue. (Id.)
The interviewers’ notes were compiled and given to Lamb. (Tr. 806:4–14, 876:21–877:1,
879:18–25.) Lamb also received the information contained in Antonoff’s spreadsheet noting

39 FMSHRC Page 730

Ambrose’s hiring recommendations. (Tr. 824:9–14, 904:17–905:2; Ex. S–23.) Lamb reviewed
the applications and interviews. (Tr. 900:4–902:16, 914:10–14.) She made her own notes on a
separate spreadsheet, circling in blue ink applicants she would not extend an offer to and adding
comments with her reasons for most of those applicants. (Tr. 915:3–13, 916:4–7; Ex. CPC–29.)
The names Antonoff highlighted on his spreadsheet of people, who did not receive a positive
recommendation from Ambrose, were also circled in blue ink on Lamb’s spreadsheet. (Tr.
916:5–13; Ex. CPC–29.) Lamb circled Pappas’s name in blue ink and also wrote “no” and “job
hopping; safety” next to his name on her spreadsheet. (Ex. CPC–29 at 3.)
On Friday, September 25, 2016, Lamb met with Walters to make the final hiring
selections. (Tr. 902:17–903:7.) In each job category, Walters informed Lamb how many people
the plant needed for each position, and Lamb would provide him with a list of people she
recommended to fill the positions. (Tr. 904:1–11.) Walters had final authority to make the hiring
decisions, but ultimately adopted Lamb’s recommendations from her list.16 (Tr. 904:12–16.)
On September 25, 2015, CalPortland began extending employment offers for the Oro
Grande cement plant and ultimately hired roughly 125 employees at the facility, approximately
100 of whom were hourly miners.17 (Tr. 716:17–720:20, 836:25–837:2; Exs. CPC–14, CPC–15,
CPC–18, CPC–19, CPC–31, CPC–32.) Two days later, on September 28, 2015, Martin Marietta
informed the remaining miners that they would not be brought back to the mine. (Tr. 142:18–22,
489:14–490:6; Ex. S–25 at 2.) Martin Marietta told those miners to take the rest of the day off
and not return for their shifts at Oro Grande the following two days. (Tr. 142:24–144:6; Ex. S–25
at 2.) The miners were paid through September 30, despite not coming to work. (Tr. 143:11–13.)
For Oro Grande miners whom CalPortland did not hire, Martin Marietta paid severance packages
in the amount of $750 for any miner who had served at least three years. (Tr. 419:10–24; Ex.
CPC–5.) Miners who had served longer received additional weeks of severance pay in three-year
service increments, up to a maximum of six weeks of severance pay or $4,500. (Id.) In addition
to monetary compensation, Martin Marietta also provided a voluntary outplacement service that
would help the unemployed miners with interview skills, résumé writing, and referrals to other
jobs. (Tr. 420:6–12.)
Pappas was among 15 hourly workers who were told on September 28, 2015, that they
did not receive an offer of employment from CalPortland. (Tr. 143:23–144:6; Ex. CPC–30.) He
had not received a positive recommendation from Ambrose, who testified the discipline Pappas
received for the incident with Portis had been fresh in her mind based on the August 27
grievance meeting. (Tr. 690:16–23.) Ambrose stated she therefore said “unsure” for Pappas
during her meeting with Antonoff. (Id.) CalPortland’s Lamb testified that she did not recommend
Pappas be offered a position because his job application indicated job hopping and no
16

Walters informed Inspector Jackson in an interview that the final decision to hire the
hourly employees was not up to Walters, but that the final decision depended on a hire and nohire list developed by human resources personnel from the interviews. (Ex. S–22 at 2.)
17

CalPortland extended offers to approximately 115 hourly miners to work at Oro
Grande. (Ex. S–37 [113:13–114:5].)

39 FMSHRC Page 731

progression in employment and salary. (Tr. 906:16–908:15, 911:12–913:2.) Lamb said the
answers Pappas gave during his interview did not reflect the type of answers CalPortland
sought.18 (Tr. 906:23–907:4, 913:3–914:9.) Specifically, Pappas’s interviewer wrote that Pappas
would attempt to correct a miner he saw engaging in a safety violation and that he never had
conflict with a co-worker19 or boss. (Id.; Ex. S–14.) Lamb testified she looked for applicants who
would report safety violations to supervisors, and she had trouble believing that a miner with
such a long work history would have never had workplace conflicts. (Tr. 906:23–907:4, 913:3–
914:9.) Lamb concluded that Pappas’s work history and interview answers demonstrated that
Pappas likely had performance issues which he did not identify and that Pappas was not someone
CalPortland should hire. (Tr. 912:1–913:2, 913:15–20, 914:5–9.)
On September 30, 2015, Pappas wrote Antonoff a letter seeking reconsideration of his
job application. (Tr. 146:18–147:2, 845:11–846:20; Ex. S–15.) Antonoff read the letter, spoke
with Lamb to ask why Pappas had not been hired, and reviewed Pappas’s application and
interview questionnaire. (Tr. 846:12–20.) Antonoff testified that not only did Oro Grande not
have open positions at the time of Pappas’s letter, but that he found items in Pappas’s application
to be troubling, including some of Pappas’s answers to interview questions and indications of job
hopping. (Tr. 847:4–848:3; Ex. S–24.) Antonoff concluded he would not consider Pappas for
hire, which was consistent with what Lamb had told him. (Tr. 847:23–25.) On October 15, 2015,
Antonoff wrote Pappas stating that CalPortland could not offer Pappas a job, but told Pappas out
of professional courtesy that he would keep Pappas’s application on file. (Tr. 846:21–848:17; Ex.
S–16.)
CalPortland advertised its open positions at Oro Grande to begin on October 1, 2015,
only to Riverside’s current employees, though CalPortland openly advertised and hired for a few
open positions at the mine two weeks later. (Tr. 732:18–738:10; Exs. S–37 [146:9–12], S–34, S–
35, S–36, CPC–38.) Additionally, CalPortland did not receive Martin Marietta’s personnel files
from the four facilities. (Tr. 676:7–677:1, 683:11–684:12; Exs. CPC–21, CPC–22.) CalPortland
renamed a few positions at the mine and altered or combined job responsibilities for some hourly
18

Although the interviewer’s form had six questions, Pappas testified that the interviewer
only asked him three questions relating to (1) conflicts with co-workers, (2) what he would
change about his last employer, and (3) how he would respond to a payroll mistake. (Tr. 144:
20–146:15, 229:8–230:17, 231:14–20, 240:3–7; Ex. S–14.) He does not recall being asked the
other three questions listed on the interviewer’s form involving how he liked to be managed,
whether he had a disagreement with a boss, and what he would do if he saw a co-worker
committing a safety violation. (Tr. 229:8–240:14; Ex. S–14.)
19

Pappas explained that he believed the interviewer meant a physical altercation when
she asked whether he ever had a conflict with a co-worker even though the question did not
indicate the type of conflict. (Tr. 146:6–15, 262:22–265:11.) Pappas therefore answered that he
never had a physical altercation with a co-worker, and testified the interviewer moved on without
following up further on the question. (Tr. 262:22–265:11.) This makes sense since interviewers
were specifically instructed to stick to the six interview questions, write down what they were
told, and not do a lot of probing for answers, in part because the company had very limited time
to complete the hiring process. (Tr. 890:2–18.)

39 FMSHRC Page 732

positions. (Ex. S–37 [141:22–142:10].) Most of the job duties remained unaltered. (Ex. S–37
[143:7–145:18].) CalPortland also made modifications to the miners’ shifts and attendance
policy. (Tr. 728:9–13, 724:24–725:6, 750:5–8; Exs. CPC–16, CPC–17.) Because no collective
bargaining agreement currently exists with the union at Oro Grande, the job bid process and
grievance procedure no longer exist, the vacation policy and employee benefits have changed,
and shift premiums have been modified. (Tr. 725:8–729:12; Exs. S–37 [140:4–141:4], CPC–16,
CPC–17, CPC–20, CPC–35.) The mine now mostly produces the same cement product using the
same equipment and the same processes as Martin Marietta. (Ex. S–37 [144:24–145:5, 171:18–
172:18].) CalPortland continues to sell its cement to many of Martin Marietta’s former customers
with some changes in the customer base. (Ex. S–37 [168:2–12].)
IV. PRINCIPLES OF LAW
A.

Section 105(c) Discrimination
Section 105(c)(1) of the Mine Act 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
statutory rights of 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 . . . has instituted or
caused to be instituted any proceeding under or related to this chapter or has
testified or is about to testify in any such proceeding, 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).
Under Commission law, a complainant establishes a prima facie case of a violation of
section 105(c) if the preponderance of the evidence proves (1) that the complainant engaged in a
protected activity, (2) that there was adverse action, and (3) that the adverse action was
motivated in any part by the protected activity. Driessen v. Nevada Goldfields, Inc., 20
FMSHRC 324, 328 (Apr. 1998); Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981).
In evaluating whether a complainant has proven a causal connection between protected
activities and adverse action, the following factors are to be considered: (1) knowledge of the
protected activity; (2) hostility or animus toward protected activity; (3) coincidence in time
between the protected activity and the adverse action; and (4) disparate treatment. Sec’y of Labor
on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other
grounds, 709 F.2d 86 (D.C. Cir. 1983).

39 FMSHRC Page 733

The mine operator may rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part motivated by the protected activity.
Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 818 n.20
(Apr. 1981). If the mine operator cannot rebut the prima facie case, it nevertheless may defend
affirmatively by proving that it also was motivated by the miner’s unprotected activities and
would have taken the adverse action in any event based on unprotected activities alone. Driessen,
20 FMSHRC at 328–29; Pasula, 2 FMSHRC at 2800.
The Commission has noted that its Pasula-Robinette test is “substantially the same” as
and “virtually identical” to the National Labor Relations Board’s Wright Line test for
discrimination. Robinette, 3 FMSHRC at 818 n.20 (citing Wright Line, 251 NLRB No. 150,
105 LRRM 1169, 1173–75 (1980)); Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 15 (Jan. 1984).
Both tests are based on a similar burden shifting scheme articulated in Mount Healthy City Board
of Education v. Doyle, 429 U.S. 274 (1977), a Supreme Court case dealing with First
Amendment claims.
B.

Burdens of Production and Persuasion in Discrimination Cases

In light of recent developments in Commission case law, I find it helpful to clarify the
parties’ burdens of production and persuasion at the various intermediary stages of the
Commission’s burden shifting framework.
To begin, it is important to have conceptual clarity on the differences between several
legal burdens that tend to cause confusion. The Third Circuit has provided the following useful
clarification on the distinctions between the terms “burden of proof,” “burden of persuasion,”
and “burden of production”:
Many of the cases we cite use the terms “burden of proof” and “burden of
persuasion” interchangeably. Yet the two concepts are not identical. The burden
of proof comprises the burdens of production and persuasion. McCann v. Newman
Irrevocable Trust, 458 F.3d 281, 287 (3d Cir. 2006). The former is the obligation
to come forward with evidence of a litigant’s necessary propositions of fact. It
often matters most before trial because plaintiffs who have not come forward with
hard evidence to support their necessary allegations cannot survive a summary
judgment motion by the defense. The burden of persuasion, on the other hand, is
the obligation to convince the factfinder at trial that a litigant’s necessary
propositions of fact are indeed true. 21B Charles Alan Wright & Kenneth W.
Graham, Jr., Fed. Prac. & Proc. § 5122 (3d ed. 2005); Black’s Law Dictionary
190 (7th ed. 1999).
El v. SEPTA, 479 F.3d 232, 237 n.6 (3d Cir. 2007).
Deciding which of these burdens apply to the prima facie case requires careful analysis of
what a prima facie case actually is, since there are multiple possible definitions for the term. In
Holo-Krome Co. v. N.L.R.B., 954 F.2d 108, 111 (2d Cir. 1992), a decision analyzing the NLRB’s
Wright Line test for discrimination, the Second Circuit noted that the phrase “prima facie
showing . . . sometimes means facts sufficient to send a disputed issue to a fact-finder, and

39 FMSHRC Page 734

sometimes means facts that persuade a trier of the elements of liability, thereby placing on the
defendant the obligation to prove an affirmative defense, if he has one, or else suffer an adverse
decision.” After articulating these two options and acknowledging ambiguity in the wording of
the Wright Line test that could suggest either meaning, the Second Circuit concluded “that the
Board uses the phrase ‘prima facie case’ to mean the General Counsel’s burden to prove by a
preponderance of the evidence that protected activity was at least part of the motivation for the
employer's adverse action.” Id. In other words, the “prima facie showing” in the NLRB context
is more akin to a burden of persuasion than a burden of production. Since Holo-Krome was
decided, several other circuits have come to the same conclusion, all of which have even advised
the NLRB to stop using the term “prima facie” because of its potential to create confusion.20 See
id. at 112; Valmont Indus. Inc. v. N.L.R.B., 244 F.3d 454, 464 n.2 (5th Cir. 2001) (rejecting the
Title VII definition of “prima facie”); N.L.R.B. v. Joy Recovery Tech. Corp., 134 F.3d 1307,
1314 (7th Cir. 1998); N.L.R.B. v. CWI of Md., Inc., 127 F.3d 319, 330–31, 331 n.7 (4th Cir.
1997); Sw. Merch. Corp. v. N.L.R.B., 53 F.3d 1334, 1340 n.8 (D.C. Cir. 1995).
As noted, the Commission has previously stated that its discrimination test is
“substantially the same” as the NLRB’s Wright Line test, wherein a complainant’s burden of
making out a prima facie case is treated as a burden of persuasion and established by a
“preponderance of the evidence.”21 Pasula, 2 FMSHRC at 2799. However, the Commission in
Turner v. National Cement Co. of California subsequently defined the “prima facie” burden as
the “production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the

20

As cases in point, at least one circuit and even the NLRB itself have occasionally
slipped up and used the term “prima facie” in a contrary manner for NLRA discrimination
claims, albeit with much more cursory treatment than the cases cited above provide. See, e.g.,
FiveCAP, Inc. v. N.L.R.B., 294 F.3d 768, 777 (6th Cir. 2002) (defining a prima facie burden as
“setting forth evidence that supports an inference” of discrimination, without further discussion).
The NLRB and its judges have been rebuked by higher courts when this error has occurred. See
N.L.R.B. v. CWI of Md., Inc., 127 F.3d 319, 330–31 (4th Cir. 1997).
21

Even when the Commission, like the NLRB, has used less-than-clear language to
describe the “prima facie” burden, its actual application of the test demonstrated that it operated
as a Wright Line-type burden of persuasion rather than a burden of production. See, e.g.,
Driessen, 20 FMSHRC at 328 (defining a prima facie case in an oft-quoted phrase as “presenting
evidence sufficient to support a conclusion of” discrimination, but affirming a finding that the
complainant failed to prove a prima facie case despite significant evidence from which a factfinder could infer discriminatory intent).

39 FMSHRC Page 735

party’s favor.” 22 Turner, 33 FMSHRC 1059, 1065–66 (May 2011) (citation omitted) (emphasis
added).
22

In its analysis, Turner drew from the more common Black’s Law Dictionary definition
of “prima facie” that most circuits have rejected in the NLRB context and from the language in
Driessen that resembles a burden of production but operates like a burden of persuasion.
Otherwise, Turner drew nearly exclusively from U.S. court of appeals cases involving Title VII
claims under the Civil Rights Act of 1964, which stand for the proposition that a Title VII prima
facie burden is less “onerous” than the plaintiff’s ultimate burden of proving discrimination, and
then cited to a small subset of those cases describing the burden of production necessary to
survive summary judgment on the prima facie issue in a Title VII case. Putting all of these pieces
together, Turner concluded that the “lower” or “less onerous” prima facie burden spoken about
in many Title VII cases must be synonymous with the extra-minimal burden of production at the
prima facie summary judgment stage and as defined in Black’s Law Dictionary. Turner, 33
FMSHRC at 1065–66 (citing Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th
Cir. 1998), and Black’s Law Dictionary 1310 (9th ed. 2009)).
The Supreme Court has made clear that the Title VII prima facie burden is not merely a
burden of production. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 n.7
(1981). But, a plaintiff’s prima facie burden in a Title VII case is still less onerous than his or her
ultimate burden of persuasion, while the Secretary’s or complainant’s section 105(c) prima facie
burden is not. To understand why, it is first important to understand how Title VII discrimination
analysis differs from the Commission’s Pasula test. First, in Pasula, the burden of persuasion
shifts to the operator at the affirmative defense stage. In Title VII cases, this burden never shifts.
Second, in Pasula, the prima facie, rebuttal, and ultimate burdens are all geared toward the same
issue: whether an operator’s adverse action was motivated in part by protected activity.
Robinette, 3 FMSHRC at 818 n.20. The Title VII prima facie inquiry, by contrast, is geared
toward a more limited and distinct issue than the issue that the plaintiff will ultimately have to
prove. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (limiting the
prima facie case to whether the plaintiff belongs to a protected class and was rejected for
employment to an available position for which he or she was qualified, limiting rebuttal to
merely “articulat[ing] some legitimate, nondiscriminatory reason for the employee’s rejection,”
and only then reaching the ultimate issue of whether there was in fact discrimination).
These principles lead to two major distinctions between the Pasula and Title VII prima
facie showings. First, depending on the type of Title VII case, the prima facie inquiry may be so
limited that it resembles a burden of production. See, e.g., CWI of Md., 127 F.3d at 331 n.7
(distinguishing the Wright Line prima facie burden from the McDonnell Douglas prima facie
burden on this basis). This is not the case with Pasula. Second, even where the Title VII prima
facie showing does not resemble a burden of production, it will only be the first step in a series
of increasingly onerous burdens placed on the plaintiff. Thus, in the context of Title VII
retaliation claims, the plaintiff’s initial prima facie burden of proving that protected activity was
a motivating factor is still naturally “lower” or “less onerous” than the plaintiff’s later burden of
proving that protected activity was the “but for” cause of an adverse action. See Long v. Eastfield
College, 88 F.3d 300, 304–05 n.4 (5th Cir. 1996). Pasula, by contrast, does not place the burden
(continued…)

39 FMSHRC Page 736

Turner did not address Pasula’s holding, as to the burden of persuasion, that
“the complainant … establishe[s] a prima facie case of a violation of section 105(c)(1) if a
preponderance of the evidence proves (1) that he engaged in a protected activity, and (2) that the
adverse action was motivated in any part by the protected activity.” Pasula, 2 FMSHRC at 2799
(emphasis added). In remaining silent on this point, Turner does not overturn the well-settled
principles set forth in Pasula, Robinette, and their progeny. See Michigan v. Thomas, 805 F.2d
176, 184 (6th Cir. 1986) (“An administrative agency may reexamine its prior decisions and may
depart from its precedents provided the departure is explicitly and rationally justified.”) (citations
omitted). Instead, the Commission has in effect embraced multiple definitions of the term “prima
facie,” thus requiring a weaker “prima facie” burden of production, contained within a stronger
“prima facie” burden of persuasion.
In a recent decision, the Commission stated that once the Secretary establishes a prima
facie case the burden then shifts to the respondent to rebut it, but did not clarify whether it is a
burden of persuasion or merely a burden of production that shifts to the operator. See Sec’y on
behalf of Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914, 1931 n.25 (Aug. 2016) (noting
that “[o]n rebuttal [of the prima facie case], the operator bears the burden of proof”). Shifting the
burden of persuasion at the rebuttal stage would potentially violate the Administrative Procedure
Act. See 5 U.S.C. § 556(d) (“Except as otherwise provided by statute, the proponent of a rule or
order has the burden of proof.”); cf. Director, Office of Workers’ Comp. Programs v. Greenwich
Collieries, 512 U.S. 267, 278 (1994) (distinguishing the Department of Labor’s “true doubt rule”
from the NLRB’s Wright Line test by clarifying that the Wright Line test is permissible under the
APA because it shifts the burden of persuasion only at the affirmative defense stage and not
earlier). It would also conflict with prior Commission precedent. See Saab v. Dumbarton Quarry
Assoc., 22 FMSHRC 491, 495 (Apr. 2000) (“At the rebuttal phase of the Commission’s
discrimination analysis, the burden remains on the complainant.”) Moreover, at the rebuttal stage
a judge could not find by a preponderance of the evidence that an adverse action was in no part
motivated by protected activity, after already finding at the prima facie stage by a preponderance
of the evidence that the act was in part motivated by protected activity. Those would be two
mutually exclusive findings.
However, the above context clarifies that when a complainant produces sufficient
evidence to allow the fact-trier to infer the fact of discriminatory motivation and rule in the
party’s favor (i.e., when he meets his prima facie burden of production), the burden of
production shifts to the respondent to demonstrate the absence of protected activity or articulate
a non-discriminatory reason for its actions, cf. Burdine, 450 U.S. at 254–56 (imposing a similar
burden of production at the Title VII rebuttal stage), while the burden of persuasion remains with
the Secretary or complainant. This does not mean that the operator’s justifications will be
22

(…continued)
of proving “but for” causation on the Secretary or complainant at any point. The operator may
raise the issue as an affirmative defense, but it bears the burden of persuasion on this point. See
Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914, 1921 (Aug.
2016) (noting that the term “because” in section 105(c) of the Mine Act was not intended to
condition liability on “but for” causation as it was in Title VII). In that sense, a Title VII
plaintiff’s prima facie burden may be “lower” than his or her ultimate burden of persuasion, but a
section 105(c) complainant’s prima facie burden is not.

39 FMSHRC Page 737

examined superficially. Nor does it mean that the judge may not rely on reasonable inferences
from circumstantial evidence to find discriminatory motivation. It simply means that the direct or
circumstantial evidence that an adverse action was motivated in part by protected activity must
be more persuasive than evidence that the articulated alternate rationale was the sole motivating
factor.23 Only when the Secretary or complainant proves his case by a preponderance of the
evidence do the “twin burdens of producing evidence and of persuasion then shift to [the
operator] with regard to th[e] elements of affirmative defense.” Robinette, 3 FMSHRC at 818
n.20.
C.

Successor Liability

A successor operator may be found derivatively liable for, and responsible for remedying,
its predecessor’s discriminatory conduct. Meek v. Essroc Corp., 15 FMSHRC 606, 610 (Apr.
1993). The factors for determining successorship are:
(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 operations, (4) whether the new employer uses the same plant, (5)
whether he uses the same or substantially the same work force, (6) whether he
uses the same or substantially the same supervisory personnel, (7) whether the
same jobs exist under substantially the same working conditions, (8) whether he
uses the same machinery, equipment and methods of production; and (9) whether
he produces the same products.
Sec’y of Labor on behalf of 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)). The last seven
factors provide the framework for analyzing whether there is a continuity of business operations
and workforce between the successor and its predecessor, which is the key question in the
successorship analysis. See Keene, 10 FMSHRC at 1153 (including all of the last seven factors to
determine whether a substantial continuity of business operations existed). This question is fact
intensive and must be resolved on a case-by-case basis. Id.
In other labor cases, courts have held that a successor must have notice before liability
can be imposed. Golden State Bottling Co. v. N.L.R.B., 414 U.S. 168, 185 (1973); Resilient Floor
Covering Pension Trust Fund Bd. of Trustees v. Michael’s Floor Covering, Inc., 801 F.3d 1079,
1092–93 (9th Cir. 2015) (citing Golden State Bottling Co., 414 U.S. at 185). The Commission
23

Analogously, even the Sixth Circuit, which uses burden of production-type language to
describe the Title VII prima facie case, see EEOC v. Avery Dennison Corp., 104 F.3d 858, 861
(6th Cir. 1997) (defining the prima facie case as “sufficient evidence . . . to get a plaintiff past . . .
a motion to dismiss in a nonjury case”), has clarified that the fact-trier can question the proof
constituting the plaintiff’s prima facie case even after that initial burden has been satisfied,
because any evidence that bears on the prima facie case is still relevant to the ultimate issue of
discrimination. See Kovacevich v. Kent State Univ., 224 F.3d 806, 825 (6th Cir. 2000).

39 FMSHRC Page 738

has recognized that the notice factor examines whether the company could protect itself by
taking into account the liability when negotiating a purchase. See Munsey, 2 FMSHRC at 3466
(finding that the asserted successor had “sufficient notice to enable it to protect itself by either an
indemnification clause or a lower purchase price in the takeover agreement”).
V. ADDITIONAL FINDINGS OF FACT, ANALYSIS, AND
CONCLUSIONS OF LAW
A.

Whether Riverside Engaged in Discrimination

The Secretary alleges, and Riverside does not dispute, that Pappas engaged in protected
activity when he filed a section 105(c) discrimination complaint in 2014.24 (Sec’y Br. at 32;
Riverside Br. at 16.) The Secretary further alleges that Pappas engaged in protected activity
when he complained about harassment from his co-workers regarding the resolution of his
section 105(c) discrimination complaint. (Compl. at 2–3; Am. Compl. at 2–3.) Complaining to
management officials about hostility toward a reinstatement agreement reached pursuant to the
Mine Act’s 105(c) provisions also qualifies as protected activity, and Riverside does not dispute
this.25 Therefore, the issues to be decided are: (1) whether Jamie Ambrose’s decision not to
recommend Pappas for a position at the Oro Grande plant and David Salzborn’s statements to
Rich Walters concerning Pappas constituted adverse actions; (2) if so, whether the negative
recommendations were motivated, at least in part, by Pappas’s protected activity; and (3) if so,
whether Riverside would have taken the adverse actions due to Pappas’s unprotected activity
alone.
1.

Adverse Action

An adverse action is “an act of commission or omission by the operator subjecting the
affected miner to discipline or a detriment in his employment relationship.” Sec’y of Labor on
behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847–48 (Aug. 1984). The
Commission has looked to Title VII case law in defining the scope of adverse actions, see Sec’y
of Labor on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1930–31 (Aug. 2012)
(adopting the Title VII adverse action test from Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006)), and numerous circuits have held that a negative reference may qualify as an
adverse action in a Title VII discrimination or retaliation claim even if the reference did not
ultimately influence a prospective employer’s hiring decision. See Hillig v. Rumsfeld, 381 F.3d
24

In his complaint, the Secretary also alleges that Pappas engaged in protected activity
when he made hazard complaints to MSHA and reported safety issues to MSHA inspectors
during their inspections, but this argument is absent from the Secretary’s post-hearing brief.
(Compl. at 2–3; Am. Compl. at 2–3; Sec’y Br. at 32.) Since these instances of protected activity
predate and form the basis of Pappas’s 2014 discrimination complaint, my analysis of that 105(c)
complaint and whether it motivated any adverse action from Riverside also encompasses by
reference the prior alleged protected activity.
25

Instead, Riverside denies at length that this harassment and management’s response
qualify as adverse actions. (RCC Br. at 25–27.) The Secretary has not alleged that this
harassment constitutes an adverse action, so it is unnecessary to address this argument.

39 FMSHRC Page 739

1028, 1031–35 (10th Cir. 2004); E.E.O.C. v. L.B. Foster Co., 123 F.3d 746, 754 n.4 (3d Cir.
1997); Hashimoto v. Dalton, 118 F.3d 671, 673 (9th Cir. 1997); Smith v. Sec’y of Navy, 659 F.2d
1113, 1121–23 (D.C. Cir. 1981).
The Secretary alleges that Riverside effectively “blacklisted” Pappas for future
employment at the Oro Grande plant through the recommendations of Ambrose and Salzborn to
CalPortland officials and that these acts constitute adverse actions. (Sec’y Br. at 32–33.)
Riverside denies that these statements qualify as adverse actions or even actual recommendations
and instead characterizes Ambrose’s statements as “personal opinions” and Salzborn’s statement
as a “stray remark” in a “general conversation.” (RCC Br. at 16–19.) Riverside also stresses that
“Ambrose did not identify Pappas as an individual whom CalPortland should not hire,” but
simply “did not offer an opinion one way or the other.” (RCC Br. at 17–18.)
In early September, CalPortand’s vice president for human resources, Antonoff, went
through a list of Riverside employees with then Riverside human resources manager Ambrose
and asked her whether or not she would hire each one. (Tr. 685:3–686:9.) Ambrose gave positive
“opinions” for the overwhelming majority of Riverside employees (approximately 185 out of
205), but did not offer one for Pappas, instead stating she was “not sure” about him. (Tr. 689:22–
690:4; Ex. CPC–27.) Ambrose was at the time still employed by Riverside and was providing
this information to Antonoff pursuant to explicit authority from Riverside. (Tr. 687:4–7.)
Antonoff explained to her that the answers would be used as a “reference check,” and the
references ultimately played a part in CalPortland’s decision on whether or not to hire individual
Riverside employees. (Tr. 814:2–6, 905:3–6.) In explaining her familiarity with the concept of a
“reference check,” Ambrose described how she herself would often ask other employers whether
they would rehire applicants under consideration. (Tr. 688:1–14.)
Around this same time, Salzborn offered a warning about Pappas to CalPortland’s plant
manager Walters, who would have the final authority on whether or not to hire Pappas. (Tr.
632:6–20, 904:12–16.) Salzborn was a former plant manager at Oro Grande who had been
specifically rehired by Riverside to help with the ownership transition taking place at the plant
on October 1, 2015. (Tr. 620:2–10.) In his discussion with Walters, Salzborn identified Pappas as
a problematic employee and discussed several disciplinary incidents involving Pappas, including
the company’s revocation of Pappas’s use of a company truck and Pappas’s alleged
insubordination for continuing to use the vehicle. (Tr. 632:12–20, 635:13–636:9, 641:4–17.)
I find that Ambrose’s and Salzborn’s statements amount to negative references, which
satisfy the test for adverse action articulated in both Hecla-Day and Title VII case law. In
making this determination I find it relevant that Ambrose declined to say “yes” to a relatively
small number of employees, and that Antonoff told her that her “opinions” would be used as a
“reference check,” which based on her understanding of the term would have alerted her to the
possibility that her “opinions” would influence hiring decisions. Likewise, the relevant
circumstances of Salzborn’s warning to Walters include Salzborn’s prominent role in facilitating
the transition at the Oro Grande plant, the fact that only two employees were singled out as
especially “problematic,” and Walters’s final authority to make hiring decisions. Moreover,
Walters himself admitted in his MSHA interview with Inspector Jackson that Salzborn’s
recommendations to him would have caused him not to hire Pappas had Betsy Lamb not already
excluded Pappas from hiring consideration. (Tr. 530:12–19; Ex. S–22.) When a person in

39 FMSHRC Page 740

Salzborn’s position singles out a potential hire as “problematic” to the individual responsible for
hiring, and the warning is so strong that the prospective employer admits that it would have
prevented that employee’s hiring had he been under consideration, the comment goes beyond a
“stray remark.” Given these factors, I find that Salzborn’s warning and Ambrose’s
recommendations subjected Pappas to a detriment in his employment relationship and therefore
qualify as adverse actions.
The key question then becomes whether there is a motivational nexus between these
efforts and Pappas’s protected activity.
2.

Discriminatory Motive

The Secretary alleges that Ambrose’s and Salzborn’s “blacklisting” of Pappas were
motivated by Pappas’s protected activity and relies largely on evidence of animus from Riverside
to infer such motive. (Sec’y Br. at 33–37.) According to the Secretary’s narrative, Riverside
displayed indifference and hostility toward Pappas’s concerns about harassment regarding his
reinstatement, inadequately investigated the incident leading to his suspension, continued to
inappropriately use his 2014 termination and reinstatement to label him a problem employee to
others despite a settlement and Commission order barring the company from doing so, meted out
disproportionate discipline to him for his comments to Portis, and made disingenuous statements
to him in resolving his disciplinary grievance. (Id.)
Riverside argues that the alleged adverse actions were “solely and directly the result of
[Pappas’s] entire work history,” including his argumentative, hostile, and insubordinate behavior.
(RCC Br. at 19.) Riverside denies all of the Secretary’s evidence of animus, and further argues
that there is no indication of disparate treatment or a coincidence in time between Pappas’s
protected activity and the alleged blacklisting from which to infer discriminatory motivation.
(RCC Br. at 20–22.)
In evaluating whether there exists a causal connection between Pappas’s protected
activity and Riverside’s adverse actions, I consider the four Chacon factors: (1) knowledge of the
protected activity; (2) hostility or animus toward the protected activity; (3) coincidence in time
between the protected activity and the adverse action; and (4) disparate treatment of the
complainant. Chacon, 3 FMSHRC at 2510.
a.

Knowledge of Protected Activity

David Salzborn and Jamie Ambrose both conceded that they had knowledge of Pappas’s
2014 discrimination complaint when they made their recommendations to CalPortland. Not only
was Salzborn the plant manager during Pappas’s prior section 105(c) complaint in 2014, but he
was ultimately responsible for the decision to terminate Pappas that formed the basis of that
complaint, and he was thus named by Pappas in the initial 2014 complaint. (Tr. 647:20–648:21.)
Ambrose admitted to MSHA that she was also involved in Pappas’s prior termination, which led
to the section 105(c) complaint. (Ex. S–17 at 3.) Ambrose was subsequently reminded of
Pappas’s protected activity when Pappas complained to her that he was being harassed because
of his reinstatement. (Tr. 82:17–83:3, 760:20–22.)

39 FMSHRC Page 741

The Secretary also paraphrases testimony from Arps to describe the plant as “a
surprisingly active ‘rumor mill’ where word about employees who [are] fired and reinstated . . .
travels fast.” (Sec’y Br. at 5; Tr. 336:9–20.) However, I do not infer from this testimony alone
that each and every management official at the mine was aware of Pappas’s protected activity.
This will have important implications in the following section for my analysis of Riverside’s
alleged hostility toward Pappas’s protected activity, because questions remain about whether the
employees and officials alleged to be hostile even knew about Pappas’s protected activity.
Consequently, where the Secretary alleges that management officials displayed animus toward
Pappas’s protected activity, more specific direct or circumstantial evidence would be required to
establish that the named official actually knew about Pappas’s protected activity.
b.

Hostility or Animus toward Protected Activity

The Secretary rests most of his case on evidence of hostility or animus toward protected
activity. (See Sec’y Br. at 32–37.) At the outset, I note that this is not a temporary reinstatement
hearing. The Secretary’s burden at the temporary reinstatement stage is to persuade the judge
that a miner’s discrimination complaint was not frivolously brought. 30 U.S.C. § 815(c)(2). But
at the merits stage, the Secretary’s burden of persuasion is to establish unlawful discrimination
by a preponderance of the evidence.26 Although I previously determined at the temporary
reinstatement proceeding that the Secretary met his burden to establish that Pappas’s complaint
against CalPortland was not frivolously brought, I must note that the Secretary has brought forth
very little additional evidence to meet his higher burden at this stage of the proceedings, even
after adding Riverside as a party to the complaint.
i.

Harassment

The heart of Pappas’s allegations of hostility toward protected activity involves the words
and actions of a Riverside employee, Stacy Portis. Pappas claims that Portis began verbally
attacking him within two weeks of Pappas being reinstated. (Tr. 81:14–82:16.) According to
Pappas, Portis allegedly told Pappas that he should never have been brought back. (Id.) If
Riverside management was aware of this behavior but failed to respond adequately, that could
constitute evidence of hostility or animus toward protected activity on the part of the company.
Cf. Turner, 33 FMSHRC at 1069 (finding that a complainant may establish animus with
evidence that management was non-responsive or dismissive toward safety complaints); see also
Pendley v. Highland Mining Co., 37 FMSHRC 301, 315 (Feb. 2015) (ALJ) (holding an operator
responsible for a rank and file miner’s acts of interference when management responded
inadequately to harassment).
However, the Secretary has not established that Riverside failed to respond adequately to
Pappas’s complaints of harassment. The record supports a finding that Portis verbally harassed
Pappas over the exercise of protected activity upon his reinstatement and that Pappas complained

26

As discussed earlier, this burden is also higher than the Secretary’s burden of
production at the prima facie stage.

39 FMSHRC Page 742

to Ambrose in early February and requested her assistance with the matter. 27 (Tr. 81:22–83:3.)
But, Ambrose’s initial response to this complaint was appropriate. In explaining the steps she
took to address Pappas’s complaints, Ambrose credibly described the following conversation she
had with Terry Jacobs about Pappas:
Pappas’[s] complaint was that . . . other employees that he interacted with were
speaking about his previous case that had already been resolved. So my
instruction to Mr. Jacobs was to make sure that he communicated that to Mr.
Pappas’[s] direct supervisor and just monitor the situation, for lack of a better
term . . . So my instruction was for him to just monitor any employees that
interacted with Mr. Pappas. And if they saw anything like that going on, then I
needed to be notified of who they were so that we could correct it with that person
specifically.
(Tr. 760:16–761:6.)
Had Pappas’s supervisor then observed instances of harassment, or had any other
instances of harassment over the exercise of protected activity come to Ambrose’s attention,
Riverside’s failure to respond more forcefully could indicate animus or hostility toward protected
activity. But, Ambrose never heard back from Pappas’s supervisors, managers, or fellow
employees regarding this harassment,28 and Pappas himself said that the harassment receded
somewhat at that point around March and April.29 (Tr. 662:20–663:14, 170:24–171:15.) Pappas
also clarified that this occurred because he removed himself from potential interactions with
Portis and other employees who also targeted him and that the harassment never fully stopped;
but it is highly likely that Pappas’s withdrawal from these situations limited the opportunities
that his supervisors had to observe instances of harassment. (Tr. 172:2–173:12, 250:18–252:6.)
Moreover, Pappas described Ambrose’s demeanor as “polite” and “very professional,” when he
raised a complaint with her, and stated, “I don’t have anything bad to say about her.” (Tr.
250:11–17.) I am unable to infer discriminatory animus from Ambrose’s conduct during this
interaction.

27

Pappas claims that he complained to Ambrose again in March, shortly before she left
for maternity leave. (Tr. 86:2–9.) However, Ambrose did not recall Pappas coming to her again
with similar concerns, and although Pappas documented visiting Ambrose the first time on his
calendar, he did not have similar documentation for the second meeting he believed he had with
her. (Tr. 86:4–5, 662:15–19; Ex. S–2.) Therefore, I credit Ambrose’s testimony that Pappas only
met once with her about this issue prior to her maternity leave.
28

It is quite possible that this did not happen because Ambrose left for maternity leave in
April and returned in July. (Tr. 662:12–14.)
29

Pappas’s own calendar notes appear to confirm that the harassment receded during this
period. While Pappas documented an incident of harassment on January 19, shortly after his
return, there are no documented incidents of harassment on the calendar after that. (Ex. S–2.)

39 FMSHRC Page 743

Furthermore, the record remains unclear whether the harassment that Pappas says he
continued to experience in March and April was related to his protected activity. Pappas testified
about harassment related to his dismissal and reinstatement immediately upon his return and
mentioned another incident of verbal harassment at an unspecified date from an employee
involved in the facts of his original section 105(c) complaint (Russell Ontiveros); yet, his
testimony about subsequent instances of harassment contains references to more general forms of
harassment regarding a much broader range of topics, including racial and sexual subject matter.
(Tr. 83:4–25, 247:13–248:10, 248:23–249:25.) Pappas also repeatedly testified that he and Portis
had been good friends for over 30 years. (Tr. 41:4–7, 81:6–8, 102:18–32, 169:12–18.) This
context raises further questions about whether or not Portis’s regular conduct toward Pappas
would be reasonably perceived by others as harassment or simply banter among friends.
These allegations of harassment are inadequate to establish hostility or animus that would
support a motivational nexus between the negative references and Pappas’s protected activity.
ii.

Suspension

As previously mentioned, Pappas was suspended in 2015 following an altercation where
Pappas confronted Portis for failing to show up to help repair broken dusty doors. The Secretary
alleges that “Riverside’s investigation of the incident failed to take into account the history of
their dealings,” and that the process that led to the suspension supports a finding of animus
toward protected activity. (Sec’y Br. at 34.) This argument is bolstered by Pappas’s and Arps’s
testimony that Pappas was not allowed to fully explain his side of the story when he was
interviewed about the incident. He was only asked to repeat what he said to Portis in the specific
incident and then was cut off when he tried to provide additional context. (Tr. 107:6–108:3,
254:5–255:2, 339:6–340:9.) Even before the investigation, Pappas claims that a fellow
employee, Harold Cole, told Pappas that Portis and other employees in the break room (including
James “Slim” Wright to whom Pappas initially voiced his concerns about Portis falsifying
records) were “getting their stories together,” and then stated, “What they’re doing is wrong and
it should never, ever, ever . . . be allowed to happen in a place like this.” (Tr. 103:5–19.) At the
conclusion of this investigation, which was conducted by management officials Terry Jacobs and
Bob Sylvia, acting plant manager Kevin Grogan initially recommended termination, but
Sheridan opted for a five-day suspension instead, presumably after considering the Mine Act
implications of termination. (Tr. 422:25–423:6, 420:17–421:5, 438:22–439:25; Ex. S–7.)
This evidence raises questions about the investigation into the breakroom incident and
whether the suspension was imposed for legitimate reasons. Portis’s conduct leading up to the
incident, Cole’s warning to Pappas, Jacobs’s and Sylvia’s reluctance to delve into Pappas’s and
Portis’s prior history, and Grogan’s seemingly harsh recommendation for termination may justify
Pappas’s feeling that he was being treated unfairly. However, this evidence does not establish a
collective or widespread hostility toward Pappas’s protected activity.

39 FMSHRC Page 744

In a letter to Martin Marietta, during the pendency of his grievance after the April 2015
incident with Portis, Pappas alluded to a conspiracy to terminate him involving Pappas’s own
union and the rank-and-file miners alongside him:
While I was off harold cole told me everyone in the shop (slim, david wray, stacy
portis) would talk about me bad. they would talk about how they could get me out
of the shop. how they all hatted me. I have documented proof in the msha
investagation that shows the union (slim,bill arps.jr) had a large part of what
happend to me. msha told me they have never had a union go against one of its
members like they did me [sic]
(Ex. S–10 at 3.) The Secretary never developed this argument further or even referred to those
specific allegations from Pappas, possibly because Arps testified on Pappas’s behalf at the
hearing and the union fought for Pappas and obtained some relief for him during his grievance
process.30 (Tr. 329–403, 342:5–343:1, 350:12–17.) However, the Secretary’s argument that
Pappas’s suspension indicates hostility toward protected activity implicitly relies on a similar
conspiracy theory involving management, union officials, and rank-and-file miners.
Perhaps Portis’s and Wright’s behavior immediately prior to Pappas’s outburst and the
failure of their immediate supervisor, Dan Kegel, to intervene adequately were motivated by
animus toward protected activity and were (as per Cole’s warning) part of a concerted effort to
set in motion a series of events that might lead to Pappas’s termination. Perhaps Jacobs and
Sylvia conducted an arbitrary, one-sided investigation fueled by hostility and animus toward
protected activity with the ultimate intention of getting Pappas fired. And perhaps Grogan’s
harsh recommendation of termination (before Sheridan talked him down to a suspension due to
Mine Act concerns) was the culmination of Riverside’s concerted effort to punish Pappas over
his exercise of protected activity. It makes for a good narrative.
Yet, I can only speculate on the motives of Portis, Cole, Wright, Kegel, Jacobs, Sylvia,
and Grogan because none of them were called to testify, and there is little evidence in the record
that any of them (other than Portis) were even aware of Pappas’s protected activity at the time of
this implied conspiracy or involved in his original section 105(c) dispute. While there is evidence
in the record that Grogan had been a general manager for a number of years, and that Sheridan
discussed Pappas’s reinstatement with Grogan after the initial termination recommendation, I
find this insufficient to infer Grogan’s awareness of the circumstances surrounding Pappas’s
30

There is a tension and irony in the fact that Pappas views many of his co-workers and
those fighting on his behalf as part of a wide-ranging conspiracy against him, while
simultaneously and regularly describing individuals with whom he has clashed as “good
friends.” These “good friends” include Rod Roderick, who previously reported Pappas in 2010
for creating a hostile work environment; James Hawthorne, whom Pappas compared Portis to
unfavorably due to his reputation for laziness; and Portis, someone Pappas once left stranded in
Chicago because he upset him and now alleges harassment against. (Tr. 41:4–7, 81:6–8, 102:18–
23, 158:7–23, 169:12–18, 183:14–184: 6.) The incoherence of these descriptions makes me
unable to fully credit Pappas’s assessments of other individuals’ behavior.

39 FMSHRC Page 745

dismissal and reinstatement when he initially made his recommendation. (Tr. 117:17–118:2; Ex.
S–7.) Similarly, there is evidence that Ambrose told Jacobs that co-workers were discussing a
previous case of his, but the Secretary did not ask Ambrose on cross-examination whether she
discussed anything more specific about Pappas’s case with Jacobs. (Tr. 760:16–761:6.) Without
such evidence, I conclude that Grogan and Jacobs had little incentive to blacklist Pappas for
future employment at Oro Grande or to retaliate against him over the exercise of protected
activity.
iii.

Psychological Evaluation

Pappas took offense to statements made to him by Dr. James O’Brien, the reviewing
physician who examined him for a psychological evaluation. On the basis of Pappas’s recounting
of the conversation that took place during that evaluation, the Secretary alleges that Riverside
“told the reviewing physician about Mr. Pappas being a disgruntled employee who had been
terminated and reinstated after filing a complaint” in violation of the settlement terms of his prior
section 105(c) complaint, and that this is further evidence of animus. (Sec’y Br. at 34–35.)
According to Pappas, O’Brien allegedly said he understood that Pappas had been nothing but a
problem employee and that his employer had fired him for this reason. (Tr. 112:12–20.) Pappas
says this was communicated by Riverside to O’Brien by fax prior to the evaluation. (Tr. 112:21–
25.) The fact that Riverside communicated this information at all to O’Brien (when the details
were meant to remain confidential) is troubling. However, a closer inspection of the faxed
document that O’Brien relied on for this assessment reveals that Riverside did not describe
Pappas or his protected activity with anywhere near the level of hostility that O’Brien’s alleged
statements (or Pappas’s recollection of them) might suggest. Instead, the document appears to
alert O’Brien to Pappas’s prior termination and reinstatement in the event that Pappas wished to
discuss this incident himself. (Ex. S–38 at 2.)
The full text of the fax’s reference to Pappas’s prior complaint is as follows:
As additional background, previously Mr. Pappas had been terminated from
employment at the plant, but subsequently reinstated in December 2014,
following his claim that the termination was for retaliation for his reporting of
adverse plant information to the Mine Safety and Health Administration (MSHA)
during a plant inspection by MSHA. Mr. Pappas may provide his details of this as
well as other events during the evaluation.
(Ex. S–38 at 2.) The language in this paragraph is fairly neutral toward Pappas’s protected
activity and appears to be an attempt to ensure that O’Brien was not taken by surprise when the
subject inevitably came up. I do not find this to be strong evidence of animus by Riverside.
Rather, it is evidence of Riverside providing a physician with appropriate background.
iv.

Further Complaints to Riverside

After Pappas was suspended, he attempted to raise complaints about retaliation and
harassment against him to numerous management officials at Riverside and Martin Marietta. (Tr.
118:10–121:12, 122:22–123:25.) The Secretary notes that Pappas was “rebuffed on numerous

39 FMSHRC Page 746

occasions.” (Sec’y Br. at 35.) It is once again unclear whether these complaints were related to
newer incidents of harassment over the exercise of protected activity, or if they were still in
reference to the early issues he faced with Portis upon his reinstatement or to issues of a racial or
sexual nature. Nonetheless, management officials refused to deal with these complaints, because
they believed the issues were closely tied to his suspension and that the union grievance process
for that suspension was the only appropriate venue for addressing those concerns. (Tr. 243:15–
244:25, 463:19–465:10, 664:4–665:21.) Tim Sheridan, who previously worked as a trial attorney
at the NLRB, believed that under the NLRA, management could not even communicate directly
with Pappas about these matters without first going through his certified union representative in
the grievance process, and he surmised that this is why certain Riverside officials were reluctant
to engage Pappas after his suspension when Pappas came to them with concerns about
harassment and retaliation. (Tr. 407:2–6, 464:17–465:10.) All exhibits documenting these
interactions support Sheridan’s understanding. (See Exs. S–10, S–11.)
For example, in his June 29, 2015 letter to Martin Marietta corporate management,
Pappas related the following conversation he had with Kevin Grogan:
Kevin says to me what do you want to talk about? I said the investagation terry
conducted. Terry refused to include my witness harold cole in the investagation. .
..
Grogan said to me “this is on the grievance we can not talk about this now, we
will talk about at grievance meeting, we can bring up then .” I said Mr. Grogan
this is a complaint about procedure not a violation of the c.b.a.. If a fair
investagation was conducted with my witnesses statements included the outcome
would be differant . grogan stated “no we can talk about at grievance meeting ”
[sic]
(Ex. S–10.) This confirms that Pappas’s complaints were ostensibly about his suspension, and
that management did in fact reasonably respond to those complaints by noting that the issues
raised should be resolved in the grievance proceeding for his suspension. Furthermore, the first
two pages of this letter to Martin Marietta are entirely devoted to the alleged unfairness of
Pappas’s suspension and do not mention protected activity. (Id.) While the last half-page
contains references to his prior “MSHA case” the context of the preceding two pages would have
reasonably led Martin Marietta to believe that the issues were closely bound up with his
suspension. (Id.)
Similarly, Pappas’s July 23, 2015, three-page letter to Jamie Ambrose is predominantly
about the alleged unfairness of his suspension. (Ex. S–11.) On the second page, Pappas
references MSHA’s interviews with “Slim” Wright during the investigation into Pappas’s prior
section 105(c) complaint, but only to support Pappas’s contention that Wright was predisposed
against Pappas and lied to Terry Jacobs in the investigation that led to Pappas’s suspension. (Id.
at 2.) Further in the letter, Pappas also contends that the arbitrariness of his suspension and the
faxed document to Dr. O’Brien mentioning his prior section 105(c) complaint are evidence of
retaliation over the exercise of protected activity. (Id.) While I have already determined that
these incidents are not evidence of retaliation over the exercise of protected activity, Ambrose

39 FMSHRC Page 747

would have been further justified in refusing to discuss these issues based on the way they were
presented: sandwiched between extended discussions regarding issues with his suspension likely
to arise during his grievance proceeding. (Id.)
Although Pappas’s retaliation complaints may have in fact been distinct from his
grievance, I find Riverside’s belief that they were closely connected and that therefore legal risks
existed in discussing such matters with Pappas to be, at the very least, understandable from
management’s perspective. This belief, rather than animus or hostility, explains why Pappas’s
complaints about harassment in conjunction with his grievance issues went partially ignored after
his suspension.
v.

Statements from Tim Sheridan

The Secretary also alleges that at the third step grievance meeting resolving Pappas’s
suspension, Sheridan made several comments indicative of hostility toward protected activity.
Pappas took offense to what he viewed as Sheridan “talk[ing] down” to him during this meeting
and bringing up his prior section 105(c) case for inexplicable reasons. (Tr. 130:3–23.) Sheridan
also told him at this meeting that the fact Sheridan even knew his name means Pappas is a
problem, and then promised him that if he cooperated he would have a future with Riverside,
which the Secretary labels as disingenuous since Sheridan knew that Riverside would be laying
off all its employees in September. (Tr. 129:19–23; Sec’y Br. at 36.) Sheridan was undoubtedly
aware of Pappas’s prior section 105(c) complaint, so the question becomes whether the
statements above indicate hostility toward that protected activity. (Tr. 439:1–6.)
As an initial matter, although Pappas testified that Sheridan told him “we'll keep you
here, [and we] want some kind of long-term thing,” Pappas also admitted that he could not
remember what Sheridan said at that point because Pappas was so disturbed by Sheirdan
bringing up his prior section 105(c) complaint. (Tr. 129:25–130:4.) The Secretary views
Sheridan’s promise as disingenuous and evidence of animus, even though Pappas himself does
not describe it this way. Regardless, given Pappas’s hazy recollection of the statement and
surrounding context, it is hard for me to derive any strong meaning from those words other than
a routine desire by Sheridan for Pappas to maintain an amicable long-term relationship at the
mine with his coworkers and management. Sheridan may have expected most of the management
officials and employees at Riverside to be hired by CalPortland, as they ultimately were, so his
statement was not necessarily disingenuous.
Regarding the other statements made, Sheridan testified that he might have told Pappas
that if he knew his name, it was not a good thing, because “95 percent of the employees” that
Sheridan deals with come to his attention because of a disciplinary matter. (Tr. 461:22–462:1.) I
find this explanation credible and not indicative of animus. In fact, I found Sheridan to be a
wholly credible witness in general.
Sheridan also explained that his role is specifically set up to make him out to be “the bad
guy” – the one “wearing a black hat” – in disciplinary matters, so as to reduce tensions between
employees and local management officials who have to work together on a day to day basis. (Tr.
462:2–19.) Unlike Riverside management officials, Sheridan (who worked for Martin Marietta)

39 FMSHRC Page 748

could return to his office on the other side of the country, in Raleigh, North Carolina, at the end
of this meeting. (Id.) For this reason, Sheridan wanted to make it clear to Pappas that he alone
was responsible for everything happening to him. (Id.) Thus, I find that Sheridan told Pappas he
contacted the attorney who handled Pappas’s prior section 105(c) complaint not as an expression
of animus toward protected activity but rather as proof of how involved Sheridan was in the
process that led to Pappas’s suspension. The way that Sheridan perceived his role in these
matters may also explain why Pappas believed that he was being “talked down to,” since
Sheridan felt it necessary to redirect the animosity of aggrieved employees toward him rather
than management officials. Furthermore, Sheridan’s allegedly condescending statements do not
appear out of place or entirely uncalled for when juxtaposed with the similarly harsh message
that Pappas’s international union representative Ron Espinosa delivered in that very same
meeting. (Tr. 461:3–11.)
Thus, I do not find animus toward Pappas’s protected activity from Sheridan.
Up to this point, the Secretary has attempted to marshal all of the evidence surrounding
Pappas’s suspension, starting from the company’s initial investigation into Portis’s complaint to
the grievance resolution, to suggest a collective hostility toward Pappas’s protected activity. The
evidence fails to support that conclusion. Accordingly, the Secretary cannot establish a
motivational nexus between Pappas’s protected activity and Ambrose’s and Salzborn’s
references by imputing to them the alleged hostility of other management officials.
vi.

Statements from David Salzborn

While there is insufficient evidence in the record to support a finding that Riverside or
Martin Marietta management was collectively hostile toward protected activity, there is stronger
evidence that Salzborn individually was. Pappas alleges that Salzborn was directly hostile toward
the protected activity that formed the basis of his prior section 105(c) complaint. (Tr. 76:11–17.)
In 2014, Pappas brought up the issue of the train car hazardous incident at a safety meeting and
also noted at that meeting that his supervisor brushed off his concerns and then lied about
whether Pappas brought this issue to his attention. (Tr. 74:1–76:17.) According to Pappas,
Salzborn got mad at him for calling the supervisor a liar, even though that supervisor conceded
that he had lied about the incident. (Tr. 76:11–23.) This testimony went unrebutted by Salzborn
and Riverside. Accordingly, I find this to be evidence of animus toward protected activity from
Salzborn.
In addition, Salzborn’s decision to brief Walters on some of the specifics of the incident
leading to Pappas’s termination, when asked by Walters to name problem employees, could be
viewed as evidence of animus or hostility, given that Riverside paid a penalty to MSHA for that
incident and was required to expunge from Pappas’s record any mention of his termination as a
part of that settlement. (Tr. 648:24–649:2; Ex. S–1.) As previously discussed, Pappas was
initially terminated by Salzborn in 2014 for allegedly insubordinate behavior in driving a
company vehicle when he was ordered not to do so. Pappas filed a discrimination complaint that
year alleging that the company’s justification for terminating him was a pretext, and that he was
actually terminated for safety complaints he had made to MSHA earlier. He was subsequently
reinstated pursuant to the settlement agreement mentioned above. Riverside argues that

39 FMSHRC Page 749

“Salzborn never described any of the factors underlying his opinion of Pappas as an employee”
to Walters and “did not mention the underlying adverse action . . . at issue in the first”
discrimination case. (RCC Reply Br. at 12.) While there is no evidence that Salzborn discussed
Pappas’s protected activity with Walters, including his safety complaints to MSHA or his 2014
discrimination complaint (Walters did not testify and neither party elicited testimony from
Salzborn on the topic), Salzborn’s testimony at hearing indicates that he went into much more
detail about Pappas than Riverside now claims. When asked why he identified Pappas as a poor
performer, Salzborn mentioned that Pappas had a long history of discipline and specifically
noted the incidents that led to his suspension and termination, including the company’s
revocation of Pappas’s use of a company vehicle. (Tr. 635:13–637:19.) Salzborn also testified
that Pappas was disciplined for this behavior and subsequently reinstated. (Id.) Next, when asked
directly whether he gave Walters the same details he described at hearing in explaining why he
believed Pappas to be a poor employee and in relating the discipline Pappas received, Salzborn
responded “I probably would have explained it in the same way I’ve explained it here.” (Tr.
641:4–14.) I conclude from this testimony that Salzborn did in fact describe to Walters the
factors underlying his opinion of Pappas and did in fact mention the suspension and termination
relating to his use of a company vehicle.
The Commission order approving the settlement for Pappas’s initial section 105(c) claim
states, in no uncertain terms, “Respondent agrees to, within ten days of this order, remove from
Complainant’s personnel file all records relating to the revocation of Complainant’s use of the
company vehicle, Complainant’s March 21, 2014 suspension, and Complainant’s April 4, 2014
termination.” (Ex. S–1.) Given that Salzborn would have been prohibited from disseminating this
information to CalPortland through a personnel file, Riverside similarly violated the spirit of this
order by providing this information to CalPortland orally from one plant manager to another.
It is unclear from the record whether Salzborn was at the time aware of the settlement
terms for Pappas’s initial section 105(c) complaint, as Salzborn had retired during the same
month in which Pappas settled the matter and was therefore not working at the plant when
Pappas returned to work. (Tr. 637:20–23, 648:16–649:25.) The Secretary’s cross-examination
revealed Salzborn’s awareness of the settlement terms at the time of the December 2016 hearing,
but left uncertain whether Salzborn knew these facts in 2015. (Id.) However, given Salzborn’s
central role in the initial discrimination claim, I infer that he would have been made aware of the
terms of Pappas’s reinstatement at some point prior to his discussion with Walters.
Salzborn’s deliberate disregard of a Commission order and settlement resolving Pappas’s
section 105(c) claim is an expression of animus toward Pappas’s section 105(c) rights that should
not be tolerated. This behavior is indicative of a discriminatory motive for providing a negative
reference.
c.

Coincidence in Time

The Commission does not have any hard and fast criteria for determining a sufficiently
close temporal proximity between protected activity and adverse action, as it has stressed that
“[s]urrounding factors and circumstances may influence the effect to be given to such
coincidence in time.” Hyles v. All Am. Asphalt, 21 FMSHRC 34, 45 (Feb. 1999) (citation

39 FMSHRC Page 750

omitted). In particular, “evidence of intervening acts of hostility, animus, and disparate
treatment” may be relevant in making that determination. Sec’y on behalf of Lige Williamson v.
Cam Mining, LLC, 31 FMSHRC 1085, 1090 (Oct. 2009).
Pappas filed his initial section 105(c) discrimination complaint on July 21, 2014. As a
part of the terms of the settlement for that complaint, Pappas was reinstated at the Oro Grande
Plant in January 2015. (Tr. 79:19–22.) Ambrose and Salzborn both provided their
recommendations to CalPortland regarding Pappas in early September. (Tr. 632:7–11, 685:3–
686:5.)
In this case, there was a 17-month window between Pappas’s discrimination complaint
and the adverse actions alleged, a gap that does not support a finding of coincidence in time.
While it may be more appropriate to begin counting from when Pappas was reinstated in
January, I find that even an eight-month proximity between Pappas’s reinstatement and
Salzborn’s and Ambrose’s September recommendations does not weigh strongly in favor of a
coincidence in time finding. The Secretary wants me to treat Riverside’s actions as one
continuous, escalating series of wrongdoings in order to shorten the gap between protected
activity and adverse activity. The problem with this theory is that I do not find evidence of
intervening acts of hostility, animus, or disparate treatment between Pappas’s reinstatement and
the adverse actions alleged that would influence the effect to be given to this lengthy gap in time.
However, the Secretary has also alleged that Pappas exercised protected activity by
complaining about harassment after his reinstatement to Riverside. He initially complained about
this to Ambrose in early February 2015. (Tr. 81:14–82:16.) He next complained about related
issues on June 29, 2015, to Kevin Grogan and Martin Marietta headquarters. (Tr. 117:13–123:25;
Ex. S–10.) Finally, he requested help from Jamie Ambrose in July, approximately two months
prior to when she gave CalPortland her reference checks. (Tr. 124:1–126:13.) In these
discussions, Pappas raised concerns about Riverside’s indifference or hostility toward his
protected activity, albeit as an aside in conversations more focused on other issues with his
suspension. (See Ex. S–10 at 3.) Although the evidence is not overly compelling, this two-month
window just barely establishes a sufficient coincidence in time between Pappas’s protected
activity and Riverside’s adverse actions. See Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC
1361, 1365 (Dec. 2000) (finding that an adverse action taken three to four months after a miner’s
exercise of protected activity constituted sufficiently close temporal proximity).
d.

Disparate Treatment
i.

Suspension

The Commission has determined that “[t]ypical forms of disparate treatment are
encountered where employees guilty of the same, or more serious, offenses than the alleged
discriminatee escape the disciplinary fate which befalls the latter.” Chacon, 3 FMSHRC at 2512.
The Secretary does not cite extensively to evidence of disparate treatment in Ambrose’s and
Salzborn’s references to CalPortland. However, the Secretary claims that Riverside meted out
“disproportionate discipline,” referring to Pappas’s suspension which was in part the alleged
basis for Ambrose’s and Salzborn’s negative references. (Sec’y Br. at 35.)

39 FMSHRC Page 751

Pappas claimed, and Arps concurred, that profanity and heated exchanges were
commonplace at the mine, because miners deal with dangerous and physically draining work,
and tensions often run high in such conditions. (Tr. 100:2–102:17, 375:19–377:2.) However,
neither witness established whether Riverside employees engaged in such behavior without
disciplinary consequences, and thus whether Pappas was disparately treated. A Riverside
employee, Russell Ontiveros, who threatened an employee in a manner similar to the conduct for
which Pappas was suspended was, according to Pappas, also ultimately suspended for that
conduct. (Tr. 290:23–293:7.) The Secretary attempts to distinguish Pappas’s and Ontiveros’s
cases by noting, through Pappas’s hearsay testimony, that Ontiveros was “only disciplined after
several complaints and an appeal to corporate headquarters” and that he only received a “brief
suspension” without any “position change or staff changes to separate him from the complaining
employee” or any “requirement for a psychological evaluation or anger management.” (Sec’y Br.
at 36.) I do not find these facts to be meaningfully distinguishable. Pappas’s three-day
suspension was also brief, also came after an earlier complaint against him, and also involved a
delayed response after input from corporate headquarters. Importantly, Pappas did not know if
Ontiveros had a “prior incident of a hostile work environment finding,” which caused Riverside
to recommend additional measures for Pappas. (Tr. 309:24–310:14.)
The other incident that Pappas cited to as evidence of disparate treatment is similarly
unpersuasive. After Pappas returned from his suspension, Portis and another employee allegedly
teased him by repeating the same profane language that earned Pappas his suspension. Pappas
allegedly reported this incident to Ambrose, but his concerns were brushed aside. (Tr. 296:17–
298:25.) However, Pappas does not appear to have alleged to Ambrose that Portis’s language
was similarly threatening in the way that Pappas’s language was perceived to be. (Id.) And once
again, Pappas did not know if the individual who was with Portis had a prior incident of a hostile
work environment finding. (Tr. 310:15–18.) Nothing in the record shows that Portis had a prior
incident of a hostile work environment finding either. I can only conclude that in failing to
develop this evidence further, the Secretary is conceding the weakness of this argument.
The Secretary’s claim that Pappas’s suspension was disproportionately harsh also does
not stand up to scrutiny. While Arps testified that verbal counseling would be a more appropriate
response to Pappas’s behavior and that the decision to disqualify Pappas from his position at the
time was objectionable, he was unaware that Pappas had already been suspended once in 2010
for threatening language prior to the incident with Portis. (Tr. 403:8–12.) I agree with Riverside
that this context is crucial for determining whether this discipline was an appropriate response
the second time in 2015.
In this case, the strongest evidence weighing against a finding of disparate treatment for
Pappas’s suspension is that Pappas had already received nearly identical discipline (a three-day
suspension without pay, along with anger management counseling and disqualification from his
position at the time) for a similar (and by Pappas’s telling a less serious) incident in 2010,
involving a violation of the same work rule, and there is no allegation that the 2010 suspension
was motivated by protected activity. (Tr. 158:7–161:3, 311:2–9; Ex. RCC–6.) This indicates that
Sheridan’s punishment was not out of line with the operator’s normal business practices. Further,
the company’s disciplinary rules allowed Riverside to terminate Pappas for a violation of this
rule. (Tr. 434:25–435:5; Ex. RCC–22 at 2.)

39 FMSHRC Page 752

Nor do I find that Riverside’s justification was weak or implausible. Pappas’s behavior
was serious enough to merit discipline. His outburst lasted somewhere between two to seven
minutes and occurred within 10-12 feet of Portis.31 (Ex. RCC–1; Tr. 184:14–23, 433:13–21.)
Ron Espinosa, a USW official, found Pappas’s behavior troubling enough to merit calling him
into his grievance proceeding and giving him a stern lecture, which numerous witnesses,
including Pappas himself, credibly described as an unusual occurrence. (Tr. 127:23–128:1,
354:25–355:22, 460:11–461:18, 630:8–631:1.)
The Secretary’s evidence is insufficient to establish disparate treatment in Pappas’s
suspension.
ii.

Salzborn’s Statements

When Salzborn was asked by Walters to identify “some of the employees that might be
problematic,” Salzborn listed only two employees that he felt posed an issue, one of whom was
Pappas. (Tr. 632:12–20, 641:25–642:5.) Pappas was allegedly singled out because of disciplinary
issues. At the hearing, Salzborn could not remember the name of the other employee he
discussed with Walters, although he knew that the employee was a recent hire and was a
mechanical supervisor. (Tr. 651:1–12.) Salzborn claimed that he was not aware of that employee
having engaged in protected activity and that he mentioned that employee to Walters because of
absenteeism issues. (Tr. 642:6–25.) Given the lack of information provided about this employee,
it is difficult for me to evaluate whether both employees singled out had actually engaged in
protected activity, which could provide evidence of disparate treatment. However, Salzborn
neglected to mention a number of other employees with disciplinary issues. In her testimony,
Ambrose named at least three different employees with multiple or recent disciplinary issues,
and numerous more with related problems, none of whom Salzborn identified at hearing.32 (Tr.
694:7–15, 695:5–11, 702:17–23.) I find this evidence to be marginally probative of disparate
treatment.
iii.

Ambrose’s Recommendations

As a preliminary matter, I note that I found Ambrose to be a credible witness on the stand
in regard to her motivation for not providing Pappas with a positive reference. Admittedly, she
did have troubling inconsistencies in the statements she gave to MSHA Inspector Jackson
31

Although “Commission precedent establishes that it is not the duration of various
single incidents that is most relevant to disparate treatment analysis, but rather whether there was
a prior problem with misconduct involving the complainant,” in this case there was both a prior
problem with misconduct and a verbal outburst of lengthy duration. Sec’y of Labor on behalf of
Bernardyn v. Reading Anthracite Co., 23 FMSHRC 924, 933 (Sept. 2001). Consistent with
Commission case law, the prior misconduct is the more relevant factor in my analysis, but I find
the length of his outburst to be somewhat relevant as well.
32

Salzborn had recently attended a third step grievance in which several different miners’
grievances were settled, but Salzborn testified that he did not recall any of those grievances or
miners, or any of the disciplinary issues that may have been grieved. (Tr. 646:19–647:14)

39 FMSHRC Page 753

regarding whom she spoke to from CalPortland and what the subject matter was, but her
rationale for Pappas’s non-recommendation did not change, and her testimony in-person on this
point was reasonable, detailed, and consistent. Furthermore, Ambrose explained that some of the
inconsistencies during the MSHA interview process were due to her not fully understanding
Inspector Jackson’s initial questioning. (Tr. 715:1–15.) I observed Ambrose and Inspector
Jackson closely on the stand, and based on my observations I also found this explanation
believable. Beyond those inconsistencies, the Secretary’s direct examination of Jackson and
cross-examination of Ambrose did very little to impeach Ambrose’s credibility – for example by
pointing out instances of disparate treatment in her recommendations.
Ambrose claimed that her decision not to recommend Pappas for hiring was based on
Pappas’s hostile work environment disciplinary issue, which was fresh on her mind due to the
recent resolution of his grievance seven days prior. (Tr. 690:16–23.) Ambrose did not
recommend hiring two other employees with disciplinary issues, both of whom also had their
grievances settled alongside Pappas’s in that same meeting Ambrose attended. (Tr. 694:7–
695:11, 645:19–647:14.) The Secretary notes that Ambrose gave a positive reference to Russell
Ontiveros, who Pappas claimed was also accused of creating a “hostile work environment.”
(Sec’y Reply Br. to RCC at 9; Tr. 290:20, 293:15). Pappas believed that Ontiveros’s incident
occurred at the beginning of 2015, around February, just after Pappas was reinstated. (Tr. 309:2–
17.) But he did not mention when Ontiveros was suspended, or whether he grieved the
suspension, such that the issue would have been fresh on Ambrose’s mind in September. Pappas
also admitted that he did not know if Ontiveros had a “prior incident of a hostile work
environment finding.” (Tr. 309:24–310:14.) The Secretary did not question Ambrose or any
management official about their familiarity with Ontiveros’s issues or introduce easily obtainable
corroborating evidence about his discipline. Pappas recognized the potential for distortion,
inaccuracy, and unfair reputational harm in rumors based off hearsay. (Tr. 82:3–6.) However, the
Secretary appears to rely entirely on rumor and hearsay to make out a case of disparate treatment
from Ambrose.
Without further information on the circumstances of Ontiveros’s suspension and his prior
disciplinary history, this one incident, only vaguely alluded to in Pappas’s testimony, is very
weak evidence of pretext. The Secretary failed to develop this evidence: he could have easily
requested Riverside’s personnel files, examined whether the employees Ambrose positively
recommended for hiring had recent or recurrent disciplinary problems comparable to Pappas’s,
or questioned Ambrose about Ontiveros. The Secretary did not introduce any such evidence into
the record, the absence of which prevents me from finding disparate treatment on Ambrose’s
part.
Consequently, the Secretary’s evidence does not establish a motivational nexus between
Pappas’s protected activity and Ambrose’s references.
e.

Conclusion

The Secretary has produced evidence on all of the prima facie elements of a
discrimination claim. Riverside has presented rebuttal evidence that Salzborn’s and Ambrose’s
references were in no part motivated by protected activity and were instead motivated by

39 FMSHRC Page 754

Pappas’s disciplinary issues and recent suspension. After weighing this evidence, I find that the
Secretary has proven by a preponderance of the evidence that Salzborn’s statements to Walters
were motivated in part by his protected activity. Salzborn had knowledge of Pappas’s protected
activity, displayed animus toward that protected activity in discussing his termination and
reinstatement, and engaged in disparate treatment by failing to mention other miners with
disciplinary problems at the mine.
However, the Secretary has not proven by a preponderance of the evidence that
Ambrose’s actions were motivated in any part by protected activity. I should first note that
although I have already credited Ambrose’s explanation for many of the inconsistencies in her
MSHA interview, I am troubled by one piece of evidence from that interview. Ambrose stated
she did not give Antonoff any reason for why she would not hire any of the employees she
declined to recommend, but Antonoff told MSHA that Ambrose singled out employees with poor
attendance, conflicts with supervisors, or imminent retirement, and that Ambrose “said she
wouldn’t hire the president and vice president of the union because of the union.” (Tr. 519:22–
520:18, 832:1–833:25; Exs. S–19, S–20.) This evidence slightly undermines Ambrose’s
credibility in her description of the meeting with Antonoff, but more importantly it indicates that
Ambrose knew how to spot problem employees, harbored hostility toward protected activity in
other statutory contexts like the NLRA, and passed along those concerns to CalPortland. In short,
something does not smell quite right with this case. Inspector Jackson’s preliminary investigation
did indeed uncover problems – problems that would help the Secretary meet his burden in a
temporary reinstatement proceeding. But these problems, on their own, do not satisfy the
Secretary’s higher burden in this proceeding on the merits. The Secretary had a year to develop
this case and link these troubling answers to more reliable indicia of discriminatory intent. It is
here where the Secretary’s case against Ambrose falls short.
While Ambrose did have knowledge of Pappas’s protected activity and there was a weak
coincidence in time between that protected activity and her recommendations, there was no
evidence that she was hostile toward Pappas or his complaints. Nor was there sufficient evidence
of disparate treatment regarding whom she did or did not recommend, because the Secretary did
not introduce personnel records for any miner she recommended or cross-examine her about the
one case of disparate treatment alleged through hearsay testimony.
The Secretary attempts to tie Pappas’s suspension, Ambrose’s negative reference, and
Salzbon’s statements to Walters together as part of a larger effort from Riverside to blacklist
Pappas for employment at the Oro Grande plant. This allows the Secretary to draw on evidence
of animus and disparate treatment from other Riverside officials in inferring discriminatory
motivation on Ambrose’s part. The problem with this theory is that it would require far more
evidence of coordination and widespread animus than the Secretary has provided, a problem that
I have already detailed in the context of Pappas’s suspension. Although Ambrose’s negative
reference was close enough in time to Salzborn’s to raise concerns that the acts were
coordinated, there is no evidence that the two communicated about Pappas with each other or
through any other common Riverside management official outside of the third step grievance
meeting, from which there is also no evidence of improper discussions. The Secretary has not
presented sufficient evidence to tie Ambrose’s recommendations to Salzborn’s improperly
motivated ones. Without this link, the Secretary has not persuaded me by a preponderance of the

39 FMSHRC Page 755

evidence that Ambrose’s recommendations were in any part motivated by Pappas’s protected
activity.
Therefore, I determine that Salzborn’s warning to CalPortland was in part motivated by
discriminatory intent but Ambrose’s recommendation was not, and that these efforts were not a
part of a larger conspiracy to prevent Pappas’s retention at the plant. However, as Salzborn was a
management official, Riverside would still be liable for Salzborn’s unlawful acts if the operator
cannot establish an affirmative defense.
3.

Affirmative Defense

Riverside argues that “even if the Court finds that the Secretary established a prima facie
case, the complaint must still be dismissed because Riverside established a proper business
justification for its” adverse actions. (RCC Br. at 23; see also RCC Reply Br. at 11.) I interpret
this as an affirmative defense.33 While I have determined that Ambrose’s negative reference was
in no part motivated by protected activity while Salzborn’s negative reference was, I will
evaluate whether Riverside can establish a successful affirmative defense for both adverse
actions.34 The company articulates a nearly identical business justification for both Ambrose and
Salzborn which allegedly would have motivated them to say what they did with or without
protected activity. (RCC Br. at 23.) According to Riverside, Pappas’s 2015 hostile work
environment claim and the incident with Portis that led to it were “fresh in [the] mind[s]” of
Ambrose and Salzborn, who had both attended Pappas’s third step grievance meeting shortly
before they gave their recommendations, and this is in fact what “caused them to formulate their
respective opinions.” (RCC Br. at 21.) The Secretary responds that this explanation is mere
pretext.

33

Riverside supports its business justification by citing to a case in which the operator
prevailed by proving as an affirmative defense that “it would have taken the adverse action . . .
for . . . unprotected activity alone.” (RCC Br. at 23.) (emphasis added) In context, then, it is clear
that Riverside’s business justification is an affirmative defense pled in the alternative after
assuming, arguendo, that the Secretary has met his prima facie burden of persuasion.
34

Recently, in rejecting an operator’s affirmative defense which had been pled in the
alternative, the Commission stated, “Since [the operator] contends that its termination of Riordan
was completely unrelated to his protected activity, this is not a ‘mixed-motive’ case where,
under Pasula-Robinette, the operator could prove an affirmative defense by showing that it
would have terminated Riordan for unprotected activity alone.” Riordan, 38 FMSHRC at 1923
n.11. I do not interpret this to mean that an operator cannot prevail on an affirmative defense if it
is pled in the alternative. In Riordan, the ALJ wholly discredited the operator’s business
justification on rebuttal and effectively determined that the adverse action was in no
part motivated by unprotected activity. I interpret Riordan’s holding to mean that in such cases
the operator cannot prevail on a “mixed-motive” affirmative defense, because the defense must
rely in part on a credible business justification. See Riordan at 1930. In contrast, I have not
wholly discredited the operator’s business justification on rebuttal.

39 FMSHRC Page 756

When evaluating an operator’s business justification for an adverse action,
[T]he inquiry is limited to whether the reasons are plausible, whether they
actually motivated the operator’s actions, and whether they would have led the
operator to act even if the miner had not engaged in protected activity. The
Commission may not impose its own business judgment as to an operator’s
actions.
Pendley v. FMSHRC, 601 F.3d 417, 425 (6th Cir. 2010) (citations omitted). However, the
Commission has held that “pretext may be found . . . where the asserted justification is weak,
implausible, or out of line with the operator’s normal business practices.” Sec’y on behalf of
Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug 1990) (citations omitted). The
Commission has added,
In the context of other federal discrimination statutes, courts have analyzed the
issue of pretext as follows: “A plaintiff may establish that an employer's
explanation is not credible by demonstrating ‘either (1) that the proffered reasons
had no basis in fact, (2) that the proffered reasons did not actually motivate [the
adverse action], or (3) that they were insufficient to motivate [the adverse action].’
Turner, 33 FMSHRC at 1073 (citations omitted).
In this case, there can be no dispute that the proffered reason was plausible and had a
basis in fact. Pappas was in fact suspended for his outburst toward Portis, and both Ambrose and
Salzborn did in fact attend his grievance meeting for that incident shortly before giving their
references. (Tr. 129:2–7.) I also do not find that this recent suspension was a weak justification
or would have been insufficient to motivate a negative recommendation absent protected
activity. A serious and recent disciplinary problem would certainly make someone in Ambrose’s
position “unsure” about whether or not to recommend Pappas for hiring to a new employer, and
could easily lead someone in Salzborn’s position to single out Pappas when asked to name
problematic employees. The question then becomes whether the proffered reasons actually
motivated Ambrose’s and Salzborn’s recommendations.
As discussed, there was very little evidence of disparate treatment at hearing, and the
Secretary’s case lacked detailed comparisons between employees who were and were not
recommended, which an examination into Riverside’s personnel records could have shed light
on. Instead, Riverside has presented sufficient evidence that Ambrose gave negative or “unsure”
references about multiple other employees with disciplinary issues comparable to Pappas’s. (Tr.
694:7–695:11, 645:19–647:14.) While there is some evidence that Salzborn did not mention a
couple other employees with similar disciplinary issues, Salzborn credibly testified that Pappas’s
issues were recent, recurrent, and unprecedented in provoking such a harsh response from the
international union representative Ron Espinosa, an incident that caused Pappas’s suspension to
stick in Salzborn’s mind. (Tr. 646:19–647:5.) Multiple witnesses, including Pappas himself,
confirmed that this was an unusual response from Espinosa. (Tr. 127:2–128:1, 354:25–355:22,
460:11–461:18, 630:8–631:1.) Therefore, I find that both Ambrose and Salzborn would have
given negative references for Pappas based on his unprotected activity alone.

39 FMSHRC Page 757

The Secretary cites first to inconsistencies in the statements Ambrose and Antonoff gave
to MSHA and then to language from Commission ALJ decisions that “where an employer
provides an inconsistent or shifting rationale for its actions, a reasonable inference can be drawn
that the reason proffered is a pretext designed to mask an unlawful motive.” (Sec’y Br. at 37.)
However, it is not Ambrose’s rationale that has shifted or lacked consistency; it is her account of
who she spoke to and what they discussed that has changed. Of the six or seven pieces of
evidence that the Secretary cites to for the proposition that Riverside’s rationale was shifting or
inconsistent, the only one that even mentions a rationale for not recommending Pappas is
Ambrose’s Declaration filed in conjunction with CalPortland’s Motion for Summary Decision,
and this rationale is consistent with Ambrose’s testimony at hearing that she was motivated by
Pappas’s recent suspension and her recent participation in his grievance process. (See Sec’y Br.
at 22–23; Tr. 690:16–23.) Her rationale for not offering a positive opinion on Pappas has
remained consistent and credible throughout these proceedings.
Based on the above findings, I conclude that Salzborn and Ambrose would have provided
negative references to CalPortland on the basis of Pappas’s unprotected activity alone.
4.

Conclusion

The Secretary has failed to establish that Riverside unlawfully discriminated against
Pappas in violation of Section 105(c) of the Mine Act. While Riverside may have been motivated
in part by discriminatory animus, I find that the operator would have given the same negative
references as a result of Pappas’s unprotected activity alone.
B.

Whether CalPortland Engaged in Discriminatory Hiring

The Secretary argues that CalPortland unlawfully discriminated against Pappas when
CalPortland did not hire Pappas because of Salzborn’s and Ambrose’s recommendations. (Sec’y
Br. at 39.) CalPortland does not dispute that Pappas engaged in protected activity when he filed
his April 2014 discrimination complaint. (CPC Br. at 42.) CalPortland also does not dispute that
its decision to not hire Pappas constituted adverse action. (Id. at 42–43.) Thus, the sole issue
before me at this stage is whether CalPortland’s hiring decision was motivated in any part by
Pappas’s first 2014 discrimination complaint.
1.

Discriminatory Motive

The Secretary argues that CalPortland’s decision to not hire Pappas was motivated by
Pappas’s protected activity. (Sec’y Br. at 39–45.) Specifically, the Secretary claims that
CalPortland had knowledge of Pappas’s protected activities through Salzborn and Ambrose and
that Ambrose exhibited animus toward Pappas’s protected activity through her inadequate
response to Pappas’s harassment and her participation in disciplining Pappas for the incident
involving Portis. (Id. at 33–36, 39–42.) The Secretary argues that Ambrose’s recommendation
influenced CalPortland’s hiring decision and therefore her knowledge and animus may be
imputed to CalPortland. (Id. at 40–44.) Lastly, the Secretary asserts that CalPortland’s reasons
for not hiring Pappas are pretextual and that other miners with applications and interviews
identical to Pappas’s were hired by CalPortland. (Id. at 43–45.)

39 FMSHRC Page 758

In contrast, CalPortland argues that it had no knowledge of Pappas’s protected activity
and that such knowledge cannot be imputed from Ambrose because she did not work for
CalPortland during the hiring process. (CPC Br. at 32–37.) Additionally, CalPortland argues that
neither CalPortland nor Ambrose exhibited animus toward Pappas’s protected activity, that no
coincidence in time existed between Pappas’s protected activity and CalPortland’s hiring
decision because Pappas’s first discrimination case was resolved in December 2014, and that
there is no evidence of disparate treatment. (Id. at 43–44.) Lastly, CalPortland maintains that the
reasons behind its hiring decision were not pretextual and that Lamb had legitimate business
reasons for not recommending Pappas for hire. (Id. at 44–47.)
In evaluating whether a causal connection existed between Pappas’s protected activity
and CalPortland’s hiring decision, I again consider the four Chacon factors: (1) knowledge of the
protected activity; (2) hostility or animus toward the protected activity; (3) coincidence in time
between the protected activity and the adverse action; and (4) disparate treatment of the
complainant. Chacon, 3 FMSHRC at 2510.
a.

Knowledge of Protected Activity

The Secretary alleges that CalPortland had actual knowledge of Pappa’s protected
activity through Salzborn’s conversation with Walters and Ambrose’s interactions with
Antonoff, who communicated Ambrose’s recommendations to Lamb. (Sec’y Br. at 39–40.)
Both Salzborn and Ambrose had knowledge of Pappas’s protected activity and were questioned
in Pappas’s 2014 discrimination proceeding. (Tr. 635:13–637:19, 647:15–649:2, 763:11–
764:10.) However, neither of them had the final authority to hire Pappas at CalPortland. (Tr.
632:1–5, 806:6–21, 876:21–877:1, 879:18–25, 904:12–16.) Instead, Walters and Lamb made the
final hiring decisions for CalPortland. (Id.)
The Secretary points to Salzborn’s conversation with Walters as evidence that Salzborn
informed Walters about Pappas’s protected activity. (Sec’y Br. at 39–40.) Salzborn identified
Pappas as a problem employee and told Walters about Pappas’s termination for insubordination.
(Tr. 632:18–20, 633:7–639:12, 641:7–24.) Although this termination was the subject of Pappas’s
2014 discrimination complaint, Salzborn never explicitly testified to mentioning Pappas’s
discrimination case to Walters, but only stated that he talked about the alleged insubordination
regarding Pappas’s use of his truck at the mine. (Id.) Walters stated in an interview with
Inspector Jackson that he did not know Pappas filed a discrimination complaint in 2014. (Ex. S–
22 at 2.) I cannot infer based solely on Salzborn’s ambiguous description of his conversation
with Walters and Walters’s unsigned statement to Jackson that Walters had actual knowledge of
Pappas’s protected activity. Had the Secretary presented further testimony from Walters to
clarify his conversation with Salzborn or discredit his statement to Jackson, then perhaps I would
be able to reach that conclusion. However, no such testimony exists. I therefore determine that
the Secretary has failed to establish that Walters had actual knowledge of Pappas’s protected
activity through Salzborn.
The Secretary also asserts that CalPortland had actual knowledge of Pappas’s protected
activity through Ambrose’s contact with CalPortland. (Sec’y Br. at 39–40.) The record
establishes that Ambrose met with Antonoff to conduct a reference check of Riverside’s

39 FMSHRC Page 759

employees. (Tr. 685:3–686:5, 711:20–23, 819:18–820:1, 854:16–22; Exs. S–18 at 2, S–19 at 3,
S–20 at 3.) Although Ambrose initially told Inspector Jackson she did not talk about Riverside’s
employees to CalPortland, Antonoff revealed to Jackson that Ambrose identified certain
employees with attendance issues, supervisor conflicts, and upcoming retirements. (Exs. S–17 at
3, S–19 at 3, S–20 at 3.) While Ambrose’s inconsistent statements about the meeting cloud the
record in regard to what exactly she shared about Pappas during the meeting, Antonoff’s
spreadsheet does not contain any additional meeting notes for Pappas besides a highlight
indicating that Ambrose did not give Pappas a positive recommendation. (Ex. CPC–27 at 5.)
This evidence is not sufficient to establish that Antonoff had actual knowledge of Pappas’s
protected activity through his conversation with Ambrose. Furthermore, the record provides no
additional proof that Antonoff communicated any additional details to Lamb, who made the
actual hiring decision. Although Antonoff’s spreadsheet was provided to Lamb, Lamb would not
have learned about Pappas’s protected activity based on a review of the spreadsheet alone. (Tr.
824:9–14, 904:17–905:2; Ex. CPC–27 at 5.) The absence of further evidence from the Secretary
therefore prevents me from determining that CalPortland had actual knowledge of Pappas’s
protected activity through Ambrose.
Nevertheless, the Secretary also asserts that even if CalPortland did not have actual
knowledge of Pappas’s protected activity, the knowledge of its agents may be imputed to
CalPortland. (Sec’y Br. at 40.) A supervisor’s knowledge and animus may be imputed to an
employer if the supervisor is consulted regarding the miner’s employment and influences the
employment decision. See Turner, 33 FMSHRC at 1067–68 (imputing knowledge and animus of
miner’s direct supervisors to official making disciplinary decision); Metric Constructors, Inc., 6
FMSHRC 226, 230 n.4 (Feb. 1984) (“An operator may not escape responsibility by pleading
ignorance due to the division of company personnel functions”); Sec’y of Labor on behalf of
Garcia v. Colorado Lava, Inc., 24 FMSRHC 350, 358 (Apr. 2002) (“If a supervisor has
knowledge of an employee’s protected activities, harbors animus towards that protected activity,
and influences or participates in a decision that adversely affects the employee, the courts have
imputed knowledge and animus to the employer notwithstanding the actual decision-maker’s
ignorance of the protected activities”) (Comm’r Jordan, concurring). A supervisor hired for
future employment by a company purchasing a mine may be considered an agent of the
purchasing company though he or she remains employed by the selling company. Meek v. Essroc
Corp., 13 FMSHRC 1970, 1978 (Dec. 1991) (ALJ) (finding a plant manager and a human
resources manager still employed by the selling company to be de facto management agents of a
buying company whose discriminatory motive in recommending employees for hire may be
imputed to the buyer), aff’d in relevant part, 15 FMSHRC 606 (Apr. 1993).
The Secretary argues that Ambrose’s knowledge may be imputed to CalPortland because
Lamb relied on Ambrose’s recommendations.35 (Sec’y Br. at 40–42.) After Ambrose accepted
35

The Secretary does not contend that Salzborn is an agent of CalPortland whose
knowledge and animus may be imputed. Indeed, unlike Ambrose who accepted a job offer to
work for CalPortland, Salzborn was never employed by CalPortland. (Tr. 616:9–618:15.)
Although his role was to act as a liaison between Riverside and CalPortland during the mine’s
transition, Salzborn remained an employee of Riverside (Martin Marietta) and retired from
Riverside on September 30, 2015, before CalPortland took over the mine. (Id.)

39 FMSHRC Page 760

CalPortland’s job offer, Antonoff consulted Ambrose for her hiring recommendations and made
notes on a spreadsheet, which he shared with Lamb, as noted above. (Tr. 685:19–686:5, 688:24–
3, 819:18–821:20, 824:9–14, 843:3–18, 904:17–905:2; Ex. CPC–27.) Lamb incorporated
Ambrose’s recommendations in her own spreadsheet list. (Tr. 915:3–13, 916:4–13; Ex. CPC–
29.) On the spreadsheet list, Lamb circled in blue ink the names of employees who she would not
hire based on her independent review of the application and interview materials. (Id.) She also
circled in blue ink the names of employees Ambrose did not recommend. (Id.) Lamb relied on
her spreadsheet list to make the final hiring decisions for CalPortland. (Tr. 904:3–11, 915:3–13,
916:4–13; Ex. CPC–29.) Because Ambrose already accepted CalPortland’s job offer before she
met with Antonoff, I determine that Ambrose was a de facto agent of CalPortland at the time she
gave her hiring recommendations. Given that Ambrose’s recommendations were
indistinguishable from Lamb’s own recommendations on the spreadsheet list Lamb relied on to
make the hiring decisions, I also determine that Ambrose had influence over Lamb’s hiring
decisions. Accordingly, I conclude that Ambrose’s knowledge of Pappas’s protected activity
may be imputed to Lamb.
Based on the reasons above, I determine that CalPortland had knowledge of Pappas’s
protected activity.
b.

Hostility or Animus toward Protected Activity

The Secretary argues that Ambrose displayed animus that may be imputed to CalPortland
when she failed to address Pappas’s harassment, which led to Pappas’s outburst and subsequent
discipline. (Sec’y Br. at 40–42, 33–36.) Like knowledge, a supervisor’s animus may be imputed
to an employer if the supervisor influenced the adverse employment decision. See Turner, 33
FMSHRC at 1067–68; Garcia, 24 FMSRHC at 358 (Comm’r Jordan, concurring). As
determined above, Ambrose acted as a de facto agent of CalPortland at the time she gave her
recommendations, which influenced CalPortland’s hiring decisions. See discussion supra Part
V.B.1.a. Any discriminatory animus that motivated her recommendations could therefore be
imputed to CalPortland. See Turner, 33 FMSHRC at 1067–68; Meek, 13 FMSHRC at 1978, aff’d
in relevant part, 15 FMSHRC 606 (Apr. 1993).
However, as previously discussed, the evidence does not establish that Ambrose
exhibited animus toward Pappas’s protected activity. See discussion supra Part V.A.2.b.i. Pappas
himself testified that Ambrose had always been nice and polite to him. (Tr. 170:14–17.)
Ambrose addressed Pappas’s harassment concerns by speaking with Pappas’s supervisors, who
never reported any further issues to her. (Tr. 660:22–661:5, 662:15–22, 170:24–173:12.)
Ambrose’s subsequent maternity leave also offers a non-discriminatory reason for why she could
not fully remedy Pappas’s issues with co-workers and also limited her role in Riverside’s
investigation into the hostile work environment claim against Pappas. (Tr. 662:11–14.) Further, I
have already determined that Ambrose’s recommendation was not in any part motivated by
Pappas’s protected activity. See discussion supra Part V.A.2.e. Thus, consistent with my prior
determinations, I cannot conclude that Ambrose displayed discriminatory animus that may be
imputed to CalPortland.

39 FMSHRC Page 761

The Secretary has failed to put forward any additional evidence showing that other agents
of CalPortland with knowledge of Pappas’s protected activity exhibited animus or hostility
toward the protected activity. Notably, the Secretary has claimed that CalPortland’s liability for
Pappas’s discrimination could stem from Walters’s alleged knowledge of Pappas’s protected
activity, which Salzborn communicated to him. Yet, the Secretary inexplicably did not develop
this theory and neglected to present evidence through Walters’s deposition or Walters’s
testimony at hearing that Walters displayed animus or hostility toward the protected activity.
Walters’s comments to Inspector Jackson referring to Pappas as a “poor performer” and “not a
good employee,” and indicating Pappas was a “no” for hire appear unrelated to Pappas’s
protected activity, given that Walters denied knowledge of Pappas’s 2014 discrimination
complaint. (Ex. S–22.) Moreover, although Salzborn exhibited animus toward Pappas’s protected
activity, he was not an agent of CalPortland whose knowledge and animus may be imputed. See
discussion supra Part V.B.1.a, note 35.
Based on the reasons above, I therefore conclude that the Secretary has failed to establish
that Ambrose or any other agent of CalPortland exhibited animus or hostility towards Pappas’s
protected activity.
c.

Coincidence in Time

The eight-month gap between Pappas’s reinstatement at Oro Grande in January 2015 and
CalPortland’s failure to hire on September 28, 2015, does not support a coincidence in time
finding. However, I have determined that a coincidence in time existed between Pappas’s
complaints about harassment to Ambrose, whose knowledge may be imputed to CalPortland. See
discussion supra Part V.A.2.c. Because Ambrose knew about Pappas’s harassment complaints,
the last of which occurred in July 2015, and declined to recommend Pappas two-months later,
which influenced CalPortland’s adverse hiring decision, I determine that the two-month window
establishes a coincidence in time between Pappas’s protected activity and CalPortland’s adverse
action.
d.

Disparate Treatment

The Commission has determined that “[t]ypical forms of disparate treatment are
encountered where employees guilty of the same, or more serious, offenses than the alleged
discriminatee escape the disciplinary fate which befalls the latter.” Chacon, 3 FMSHRC at 2512.
“Precise equivalence in culpability between employees” is not required, rather employees must
have engaged in conduct of “comparable seriousness.” Pero, 22 FMSHRC at 1368.
Although the Secretary has not made a specific claim for disparate treatment against
CalPortland, the Secretary suggests that Lamb did not give the same time and attention to
Pappas’s job application as the other applications, but rather relied solely on Ambrose’s
recommendation to not hire Pappas. (Sec’y Br. at 43–44.) The Secretary claims that had Lamb
evaluated the applications according to her description of her review process, she would have
uncovered other applications with the same problems she identified in Pappas’s application. (Id.)
Yet, the Secretary argues, Lamb did not make similar negative remarks about these applicants on
the spreadsheet she created to make the final hiring decisions. (Id.)

39 FMSHRC Page 762

During CalPortland’s interview process, Inspector Jackson found that 48 out of 99
applicants answered similarly to Pappas in response to the question about conflicts with coworkers. (Tr. 574:12–23; Ex. S–29.) Jackson also found that 56 applicants answered similarly to
Pappas in response to the question about disagreements with a boss and that 29 applicants
answered similarly to Pappas in response to the question about reporting safety violations. (Tr.
574:24–575:7; Ex. S–29.) Jackson additionally noted that several applicants’ working history
demonstrated “job hopping” or a history of three of more job positions at Oro Grande. (Tr.
570:12–19; Ex. S–29.) Based on these numbers, the Secretary suggests that these other miner
applicants should have also not been recommended for hire by Lamb.
But, of these applicants that Jackson identified, only three miners’ applications and
interview questions reflected both job hopping and answers similar to Pappas’s for the questions
about reporting safety violations and workplace conflicts which Lamb identified factored in her
decision not to hire Pappas.36 (Exs. S–29, S–30.) Although these three applicants were extended
job offers by CalPortland, their application materials also reveal significant differences from
Pappas’s application. (Exs. S–30, CPC–30 at 2–4.) For example, all three applicants were being
considered for positions other than laborer – one an electrician, one a shift utility worker, and
one a mill lubeman. (Exs. S–30, CPC–30 at 2–4.) Pappas’s application does not indicate he
would be qualified to be hired as an electrician, which was considered a coveted position. (Ex.
S–13; Tr. 932:23–25.) Moreover, although Pappas noted he would be open to any position at the
mine and had previously held utility and lubeman positions, Pappas’s application showed that he
had been demoted back to a laborer twice since 2010. (Ex. S–13; Tr. 274:3–276:5.) The other
two miners, on the other hand, either held more specialized jobs consistently throughout their job
history or showed a progression in job title. (Ex. S–30.)
At first blush, the sheer number of employees who were hired by CalPortland seems to
suggest disparate treatment inasmuch as Pappas was one of only 15 miners who were not
extended job offers. (Tr. 142:18–144:6; Ex. CPC–30.) However, further analysis shows that
Pappas was not hired over other miners because of his application and job history. (Ex. S–13.)
Based on the evidence before me, I therefore determine that the record as a whole does
not weigh in favor of finding disparate treatment.
e.

Conclusion

The Secretary has met his burden of production by presenting evidence for each element
required to establish a prima facie case of discrimination. However, weighing the record in its
entirety, I determine that the Secretary has not met his burden of persuasion to establish that any

36

These applicants were Lawrence Herrera, Timothy Turnage, and David Wray. (Ex. S–
30.) The Secretary also identified the applicant Tommy Ontiveros as having provided similar
interview answers as Pappas and a job hopping history. (Ex. S–29.) However, in reviewing his
application, Tommy Ontiveros listed only one position and demonstrated a progression in salary.
(Ex. S–30.) Another applicant, Danny Ontiveros, had listed a number of jobs at Oro Grande, but
did not provide the same answers during his interview as Pappas did. (Id.)

39 FMSHRC Page 763

adverse action taken by CalPortland against Pappas was motivated in any part by Pappas’s
protected activity.
Specifically, although the Secretary presented two theories by which CalPortland could
be held liable for discrimination, he failed to develop and put forward enough evidence to
support a discrimination claim for either one. First, the Secretary presented evidence that
CalPortland may have had knowledge of Pappas’s protected activity through Salzborn and
Walters. However, the record not only fails to establish Walters’s actual knowledge of the
protected activity, but also does not contain any reliable evidence to indicate whether such
knowledge would have motivated him to discriminate against Pappas. Second, the Secretary
relies heavily on Ambrose’s link to CalPortland, asserting that her knowledge and animus
motivated her negative recommendation of Pappas and may be imputed to CalPortland.
However, although her knowledge and animus may be imputed to CalPortland as CalPortland’s
agent, there is insufficient evidence proving she was hostile towards Pappas’s protected activity.
The Secretary’s failure to depose Ambrose, or even Walters, prior to the hearing was an odd
omission, given the emphasis placed on these witnesses in the Secretary’s theory of the case.
Furthermore, the record does not support a finding that Lamb treated Pappas disparately
during her job application review and hiring process. Even if the Secretary’s allegations
regarding Lamb’s hiring process were true and Lamb did rely solely on Ambrose’s
recommendation, the Secretary’s theory still falls short of establishing that such reliance would
have been improper given that Ambrose had non-discriminatory reasons for not recommending
Pappas.
Therefore, I conclude that the Secretary has not established by a preponderance of
evidence a case of discrimination against CalPortland. Nevertheless, had the Secretary met his
burden of persuasion, I examine in the alternative whether CalPortland has established an
affirmative defense below.
2.

Affirmative Defense

CalPortland asserts as an affirmative defense that it would have not hired Pappas based
on unprotected activity alone. (CPC Br. at 44–47.) According to CalPortland, Pappas did not
perform as well as other applicants during CalPortland’s hiring process. (Id.) In contrast, the
Secretary asserts CalPortland provided inconsistent and shifting reasons for not hiring Pappas.
(Sec’y Br. at 44–45; Sec’y Reply Br. to CPC at 7–11.) The Secretary claims that Pappas’s
application was indistinguishable from the applications of the over 100 other miners and that
CalPortland’s proffered reasons are pretextual. (Id.)
When an operator asserts its affirmative defense, a judge must examine “whether the
reasons are plausible, whether they actually motivated the operator’s actions, and whether they
would have led the operator to act even if the miner had not engaged in protected activity.”
Pendley, 601 F.3d at 425. The Commission may not impose its own business judgment as to an
operator’s actions. Id. If the operator’s affirmative defense is “weak, implausible, or out of line
with the operator’s normal business practices,” then the justification may be found to be
pretextual. Price, 12 FMSHRC at 1534. The complainant “may establish that an employer’s

39 FMSHRC Page 764

explanation is not credible by demonstrating ‘either (1) that the proffered reasons had no basis in
fact, (2) that the proffered reasons did not actually motivate [the adverse action], or (3) that they
were insufficient to motivate [the adverse action].’” Turner, 33 FMSHRC at 1073.
When CalPortland and Martin Marietta announced the asset purchase, their message
indicated that a number of Riverside employees would lose their jobs. (Tr. 361:14–362:25.) Arps
testified that many miners were genuinely afraid and uncertain about their future employment.
(Tr. 361:14–362:25, 363:3–23, 369:2–370:1.) Pappas missed that meeting, yet was told by his
supervisor, Joe Padilla that the application to CalPortland would just be a “formality” and was
under the impression that because Oro Grande had just enough people to run the plant as it is, the
Oro Grande miners’ jobs were safe. (Tr. 138:13–21, 272:24–273:4, 278:7–12.) Padilla had
already been hired by CalPortland as a supervisor, perhaps explaining why he viewed the
application process as a formality. (Tr. 138:6–11.)
However, because of the asset purchase, Riverside’s Crestmore facility would be shut
down and its miners would have to find jobs elsewhere.37 (Tr. 918:5–8; Ex. S–37 [83:24–84:6,
86:3–6.]) Many of these Crestmore employees, approximately 21 of them, applied to be
reemployed at Oro Grande under CalPortland’s ownership. (Tr. 896:10–24, Ex. CPC–28 at 2.)
As Padilla noted to Pappas, Oro Grande was already fully staffed under Riverside with 110
hourly miners. (See Tr. 808:14–809:14, 810:1–13, 844:8–12; Ex. CPC–27.) Given the widened
applicant pool that included miner applicants from both Crestmore and Oro Grande, a number of
Riverside miners would have still lost their jobs even if CalPortland maintained the same staffing
levels at Oro Grande as Riverside did. CalPortland ultimately only hired approximately 99
hourly miners to start working at Oro Grande on October 1, 2015. (Tr. 716:17–720:20; Exs.
CPC–32, CPC–33.)
Prior to receiving CalPortland’s application, Pappas testified he did nothing to prepare to
apply for a job at CalPortland. (Tr. 139:15–18.) Pappas testified that he received the application
late and filled it out just ten minutes prior to his interview. (Tr. 272:19–273:11.) Pappas sought
his supervisor Padilla’s help because he did not know how to fill out the application; Padilla told
Pappas to not “even worry about it.” (Tr. 272:19–273:11.) Other miners, as Arps testified, were
more nervous and tried to put their best foot forward by creating résumés beforehand that listed
all their former job duties and titles to attach to the application. (Tr. 363:3–23.) Pappas did not
attach a résumé to his application, but instead included job bid announcements that included
general job descriptions of the positions Pappas’s held, which Padilla printed out on his
computer right before Pappas’s interview. (Tr. 139:19–140:9, 272:19–273:11; Ex. S–13.) Based
on Padilla’s representations, Pappas may have not considered the application process to be as
important as other miners did.
In response to Inspector Jackson’s investigation, CalPortland stated that Pappas was not
hired because they received more applications than available positions and those hired were
37

After the sale’s close, a few employees were retained by Riverside at the Crestmore
facility under a service agreement to finish packaging and moving inventory out of Crestmore to
CalPortland. (Ex. S–37 [87:8–14].) Riverside now only employs one worker at Crestmore to act
as a caretaker. (Ex. S–37 [83:24–84:6].)

39 FMSHRC Page 765

better applicants than Pappas. (Exs. S–26, S–27, S–28 at 1.) Lamb explained that the answers
Pappas gave during his interview did not reflect the type of answers CalPortland sought. (Tr.
906:23–907:4, 913:3–914:9.) Pappas’s interviewer wrote that Pappas would correct a miner he
saw committing a safety violation and that he never had conflict with a co-worker or boss. (Id.;
Ex. S–14.) Lamb testified she looked for applicants who would report safety violations to
supervisors, and she had trouble believing that a miner with a long work-history would have
never had such workplace conflicts. (Tr. 906:23–907:4, 913:3–914:9.) Lamb also noted that
Pappas’s application demonstrated “job hopping” and his salary history at the mine did not show
a progression. (Tr. 911:19–912:4; Ex. S–13.) Lamb concluded that Pappas’s work history and
interview answers raised “red flags” demonstrating that Pappas likely had performance issues
which he did not identify and that Pappas was not someone CalPortland should hire. (Tr. 912:1–
913:2, 913:15–20, 914:5–9.)
The Secretary asserts that given the time constraints of CalPortland’s hiring, it is
implausible that Lamb gave such detailed consideration of Pappas’s application and that
Pappas’s application was actually “indistinguishable” from all the other miners’ application.
(Sec’y Br. at 44–45; Sec’y Reply Br. to CPC at 7–11.) However, Lamb is an experienced human
resources professional,38 and her testimony is supported by the hiring documents, including
Pappas’s application and notes from Pappas’s interview. (Tr. 879:8–17, 876:21–877:1; Exs. S–
13, S–14.) Although Pappas has suggested that he was not thoroughly given consideration
because he was only asked three of the six interview questions listed on the interviewer’s
questionnaire, he also testified that the answers the interviewer wrote down for the other
questions reflect answers he would have given had he been asked those questions. (Tr. 144:20–
146:15, 229:8–230:17, 231:14–233:24, 236:21–237:10, 240:3–7, 242:15–23; Ex. S–14.)
Furthermore, as discussed above, the record does not support a finding that Pappas was treated
any differently from the other miners who applied to CalPortland nor does it support the
Secretary’s assertion that Pappas’s application was comparable to other miners who were hired
by CalPortland. See discussion supra Part V.B.1.d.
Indeed, CalPortland presented evidence that the applicants for laborer positions who were
extended offers were better candidates than Pappas in Lamb’s estimation. (CPC Br. at 30–31,
46.) CalPortland hired six laborers to begin employment at Oro Grande under CalPortland on
October 1, 2015. (Tr. 729:17–731:17; Ex. CPC–32.) This group of laborers included Arps, who
personally introduced himself to Lamb as President of the Union and whose salary history
reflected increases. (Tr. 923:6–925:18; Exs. S–30, S–32.) Lamb testified she was impressed with
Arp’s interview responses. (Tr. 925:4–18.) Indeed, at hearing Arps was an articulate and wellspoken witness. The hired laborers also included three Crestmore employees. Lamb testified that
CalPortland wanted to offer some positions at Oro Grande to the Crestmore group, whose jobs
were being eliminated at the Crestmore facility. (Tr. 918:2–18.) Lamb stated that the Crestmore
miners had many crossover skills and that the company wanted to introduce new people into the
Oro Grande culture. (Tr. 918:2–18.) The other two hired laborers included one miner who had
38

Lamb has 30 years of experience working in human resources and has held positions in
every functional area, including recruiting, compensation, benefits, employee development, and
employee relations. (Tr. 879:8–14.) She served as CalPortland’s vice president of organizational
planning and development from February 2013 to December 2015. (Tr. 876:21–877:1.)

39 FMSHRC Page 766

been with the company since 1979 and had received increases in pay as well as another miner
who had formerly been involved in an apprenticeship program to become an electrician. (Tr.
929:11–23, 932:9–934:16; Exs. S–30, S–32.) Lamb stated CalPortland could not hire the latter
miner as an electrician, but she was impressed with the miner who showed potential and was
willing to learn new skills, so she considered him for a laborer position. (Tr. 932:9–934:16.)
Lamb provided reasonable justifications for not hiring Pappas, and I find her testimony to
be credible in light of the competition for jobs at the Oro Grande facility, her experience, and the
documents that support her testimony. Lamb had sufficient reason not to hire Pappas, which not
only include the “red flags” she considered to be present on Pappas’s application, but also the
number of other qualified miners from both the Crestmore and Oro Grande mines competing for
a limited number of positions. I do not find Lamb’s proffered reasons to be weak or implausible.
Her business judgment and CalPortland’s decisions to hire less hourly staff and introduce new
employees from Crestmore to the Oro Grande facility must therefore be accorded deference.
Pendley, 601 F.3d at 425.
I therefore determine that even if the Secretary had met his burden of persuasion in
establishing a case of discrimination, CalPortland has established its affirmative defense proving
it would have not hired Pappas for unprotected activity alone.
3.

Conclusion

Based on foregoing reasons, I therefore conclude that the Secretary failed to prove
Pappas’s claim of discrimination under section 105(c) of the Mine Act against CalPortland for

39 FMSHRC Page 767

the company’s failure to hire Pappas. In the alternative, I find that CalPortland would have not
hired Pappas for Pappas’s unprotected activity alone. 39
VI. ORDER
In light of the foregoing, it is hereby ORDERED that the Secretary’s complaint of
discrimination on behalf of Jeffrey Pappas under section 105(c) of the Mine Act be
DISMISSED.

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

39

Because I have determined that the Secretary failed to establish that Riverside
unlawfully discriminated against Pappas under section 105(c), I need not determine whether
CalPortland may be liable as a successor-in-interest for Riverside’s discrimination.
In the alternative, I briefly consider the Commission’s nine-factor test and note that the
record weighs in favor of finding a substantial continuity of business operations from Riverside
to CalPortland. Keene, 10 FMSHRC at 1153 (citing Munsey, 2 FMSHRC 3463); see discussion
supra Part III.C. If the remedy for Riverside’s discrimination in this present case was
reinstatement, then it could perhaps be seen as a continuation of Riverside’s obligations set forth
by the Decision Approving Settlement issued on December 3, 2014, in Pappas’s prior
discrimination case. (See Ex. S–1.) In such case, CalPortland may have had notice of the charge
and liability, and Riverside could not provide relief to Pappas because it no longer owns Oro
Grande. See Munsey, 2 FMSHRC at 3466 (noting that an ALJ decision finding liability for
reinstatement may give notice to a successor operator and that a miner will not be made whole
unless he is offered reinstatement).
However, I have determined that CalPortland would not have hired Pappas regardless of
Riverside’s negative references. Therefore, reinstatement would not be the proper remedy for
Riverside’s negative job reference, which would create a new liability separate from Pappas’s
2014 discrimination complaint. CalPortland would not have had notice of this new liability,
given that CalPortland’s asset purchase closed on October 1, 2015, and Pappas did not file this
instant discrimination complaint until October 12, 2015. (Tr. 680:4–5, 680:9, 691:1–2, 731:6–9;
Joint Ex. 1.) Further, any remedies other than reinstatement, such as civil penalties or economic
relief, could be provided by Riverside who still owns the Crestmore facility and exists as a direct
subsidiary of Martin Marietta, which owns over 400 other facilities. (Ex. S–37 [82:14–17, 83:2–
84:84, 83:24–84:1.]) Therefore, despite a substantial continuity of business, the other factors
would not weigh in favor of finding CalPortland a successor-in-interest to Riverside’s liability
for discriminatorily giving Pappas a negative job reference.

39 FMSHRC Page 768

Distribution: (Via Electronic Mail & U.S. Mail)
Abigail Daquiz, Esq., U.S. Department of Labor, Office of the Solicitor, 300 Fifth Avenue,
Suite 1120, Seattle, WA 98104-2397
(daquiz.abigail@dol.gov)
Sonya P. Shao, Esq., U.S. Department of Labor, Office of the Solicitor, 350 South Figueroa
Street, Suite 370, Los Angeles, CA 90071-1202
(shao.sonya.p@dol.gov)
Brian P. Lundgren, Esq., and Erik M. Laiho, Esq., Davis Grimm Payne & Marra, 701 Fifth
Avenue, Suite 4040, Seattle, WA 98104
(blundgren@davisgrimmpayne.com)
(elaiho@davisgrimmpayne.com)
Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202
(kjohnston@jacksonkelly.com)
Jeffrey Pappas, 12279 Merrod Way, Victorville, CA 92395-9774
(U.S. Mail Only)
/ivn & rd

39 FMSHRC Page 769

ADMINISTRATIVE LAW JUDGE ORDERS

39 FMSHRC Page 770

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9956 / FAX: 202-434-9949

February 3, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2016-219-M
A.C. No. 29-00170-402396
Mine: Intrepid Potash East

v.
INTREPID POTASH – NEW MEXICO,
LLC,
Respondent.

Docket No. CENT 2016-220-M
A.C. No. 29-02028-402395
Mine: Intrepid Potash North

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION AND
GRANTING IN PART THE SECRETARY’S MOTION FOR SUMMARY DECISION
The above-captioned proceedings arise from the Secretary’s petitions for assessment of
civil penalties filed under section 105(d) of the Federal Mine Safety and Health Act of 1977, as
amended, 30 U.S.C. § 815(d). At issue are two citations issued by the Secretary of Labor (“the
Secretary”) to mine operator Intrepid Potash–New Mexico, LLC (“Intrepid”) under section
104(a) of the Mine Act: Citation No. 8863931 in Docket No. CENT 2016-219-M and Citation
No. 8863929 in Docket No. CENT 2016-220-M. A hearing is scheduled for February 16, 2017.
The matter is currently before me upon the parties’ cross motions for summary judgment.1
Legal Framework for Summary Decision
Commission Procedural Rule 67, which is analogous to Rule 56 of the Federal Rules of
Civil Procedure, permits an administrative law judge to grant summary decision when the entire
record shows that “there is no genuine issue as to any material fact” and that “the moving party is
entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b); see Missouri Gravel
Co., 3 FMSHRC 2470, 2471 (Nov. 1981). The record must be viewed in the light most
1

Intrepid filed its summary decision motion on January 10, 2017, and the Secretary filed
his response and cross-motion on February 1, 2017. Today, Intrepid filed a Motion to Strike the
Secretary’s response and cross motion. Intrepid argues that the Secretary “wholly failed to
respond to Respondent’s motion” and failed to provide a separate statement of material facts in
issue, and should have submitted his cross motion no later than 25 days before the hearing
pursuant to 29 C.F.R. § 2700.67. However, as Intrepid acknowledges, the Secretary requested
and was granted permission to file his response and cross motion on February 1. The cross
motion serves as his response to Intrepid’s Motion for Summary Decision. It contains a
statement that the Secretary agrees with Intrepid that the facts are not in dispute, and also states
in detail why as a matter of law Intrepid is not entitled to prevail on its motion. Accordingly, I
overrule Intrepid’s Motion to Strike.

39 FMSHRC Page 771

favorable to the nonmoving party and the judge may not weigh the factual evidence or engage in
fact-finding beyond those facts that are established in the record. W. Alabama Sand & Gravel,
Inc., 37 FMSHRC 1884, 1887 (Sept. 2015); Hanson Aggregates NY, Inc., 29 FMSHRC 4 (Jan.
2007). Summary judgment should not be granted “unless the entire record shows a right to
judgment with such clarity as to leave no room for controversy and establishes affirmatively that
the adverse party cannot prevail under any circumstances.” KenAmerican Res., Inc., 38
FMSHRC 1943, 1947 (Aug. 2016) (quoting Campbell v. Hewitt, Coleman & Assocs., Inc., 21
F.3d 52, 55 (4th Cir. 1994)).
Factual Background
The following facts are not in dispute.
Intrepid operates the Intrepid Potash East and Intrepid Potash North mines in New
Mexico. (Resp. Mot. 3; Sec’y Mot. 2.) In September and December 2014, Intrepid purchased
two transloaders for use at these mines, primarily to load granulated material from railcars to
dump trucks. (Resp. Mot. 3; Sec’y Mot. 2.) Each transloader was equipped with an emergency
stop device referred to as an “e-stop” that was located on the front or throat of the conveyor belt
above the wheel. (Resp. Mot. 3; Sec’y Mot. 5) The transloaders were not equipped with railings
or any other type of guarding along the sides of the belt. (Sec’y Mot. 6, 8.)
On July 21, 2015, an accident occurred involving the transloader at the North mine.
Employees Tylan Tovar and Trusten Weyerman were using the transloader to transfer material
from a railcar into a truck when chunks of material began clogging the opening in the railcar, so
the two workers began banging on the railcar with hammers to disrupt the blockage. (Resp. Mot.
5; Sec’y Mot. 3.) While they were engaged in this task, Tovar stepped onto the moving
conveyor belt. (Resp. Mot. 5; Sec’y Mot. 3.) His foot caught on the belt and one of his legs was
dragged into the chute. (Resp. Mot. 5; Sec’y Mot. 3-5.) As he was being dragged, the miners
were able to deactivate the conveyor drive motor by hitting the e-stop. (Resp. Mot. 5; Sec’y
Mot. 3.) Other employees brought a large portable torch to the scene of the accident and used it
to remove Tovar from the transloader by cutting off the top brace of the belt structure. (Sec’y
Mot. 4.) Afterward, Tovar was taken to the hospital and was found to have sustained only
bruising injuries. (Resp. Mot. 5-6.)
MSHA Inspector Darwin L. Bratcher subsequently investigated the accident. (Resp.
Mot. 6; Sec’y Mot. 6.) On August 5, 2015, Bratcher issued Citation No. 8863929 alleging that
the e-stop on the transloader at the North mine “was not located so that a person falling on or
against the conveyor could readily deactivate the conveyor drive motor,” in violation of 30
C.F.R. § 56.14109. (Ex. S-1; Ex. R-12.) The citation was terminated about a month later with
notation that guarding and e-stops had been installed on the transloader. (Ex. S-1; Ex. R-12.)
Inspector Bratcher also inspected the East mine on August 5, 2015. After the accident
but before Bratcher arrived, Intrepid had tagged out, removed from service, and barricaded the
transloader at the East mine. (Resp. Mot. 8; Sec’y Mot. 6-7.) Nonetheless, Bratcher cited the
East mine transloader for a violation of 30 C.F.R. § 57.14109 under Citation No. 8863931, which
alleges, “Railings are not provided to prevent persons from falling on or against this conveyor.

39 FMSHRC Page 772

The emergency stop device was not located so that a person falling on or against the conveyor
could readily deactivate the conveyor drive motor.” (Ex. S-2; Ex. R-12.) The citation was
terminated in February 2016 with notation that “railings/guards” had been installed. (Ex. S-2;
Ex. R-12.)
Discussion and Conclusions of Law
The parties agree that there no genuine issues of material fact, but dispute whether the
facts establish that the cited mandatory safety standards were violated. These standards, 30
C.F.R. §§ 56.14109 and 57.14109, contain identical language. Each states:
Unguarded conveyors next to the travelways shall be equipped with –
(a) Emergency stop devices which are located so that a person falling on
or against the conveyor can readily deactivate the conveyor drive motor;
or
(b) Railings which –
(1) Are positioned to prevent persons from falling on or against the
conveyor;
(2) Will be able to withstand the vibration, shock, and wear to which
they will be subjected during normal operation; and
(3) Are constructed and maintained so that they will not create a
hazard.
30 C.F.R. § 56/57.14109.
Intrepid does not argue that the cited regulations are inapplicable to the transloaders or
that either of the transloaders was equipped with railings. Rather, Intrepid contends that the estops on the transloaders were properly located such that they could readily deactivate the
conveyor drive motors, satisfying § 56/57.14109(a). Citing Asarco, Inc., 14 FMSHRC 829 (May
1992) (ALJ), Intrepid argues that the phrase “readily deactivate” in § 56/57.14109(a) does not
require an emergency stop device on a conveyor belt to automatically deactivate the motor as
soon as a person falls onto the belt, but requires only that the stop device be readily accessible to
the falling person. (Resp. Mot. 9-11.)
The Secretary asserts that Asarco is no longer good law, as it has been superseded by the
Commission’s decision in Buffalo Crushed Stone, Inc., 19 FMSHRC 231 (Feb. 1997). The
Secretary contends that the e-stops on Intrepid’s transloaders did not satisfy the language or
intent of § 56/57.14109(a) under Buffalo because they could not be readily activated by a falling
miner. Each e-stop was located at the throat of the conveyor rather than along the sides, meaning
it would not be automatically triggered by a falling miner and the miner would not be able to
consciously activate it until after he had already fallen onto the moving belt, which thwarts the
protective purpose of the standard as set forth in the Buffalo decision, according to the Secretary.
(Sec’y Mot. 9-17.)
I agree with the Secretary. In Buffalo, the Commission addressed the meaning of “readily
deactivate” in the context of § 56/57.14109(a) and held that this regulatory language reasonably

39 FMSHRC Page 773

requires a falling miner to be able to access an emergency stop cord, button, bar, or lever on a
conveyor belt in order to stop the motor before landing on the moving belt. 19 FMSHRC at 23436. The Commission reasoned that § 56/57.14109(a) is directed toward preventing miners from
coming into contact with a moving belt, as shown by the fact that its language is directed at
“falling” miners and that railings “positioned to prevent persons from falling” are listed as one
means of providing the necessary protection. Buffalo, 19 FMSHRC at 235. This interpretation
makes sense. A miner should not have to consciously think about finding and activating a
conveyor belt’s emergency stop device after he has already lost his balance and is in the stressful
situation of falling onto the moving belt or has already fallen onto it and is being dragged. The
e-stops on Intrepid’s transloaders were not positioned to effectively prevent miners from coming
into contact with a moving belt in such situations because they were located only at the end of
each conveyor. Indeed, when Tovar fell onto the belt at the North mine transloader in July 2015,
the e-stop did not deactivate the belt readily enough to prevent him from being pulled into the
conveyor belt machinery, and he had to be cut out. He was fortunate not to incur more serious
injuries. I find that Intrepid violated § 57.14109 and § 56.14109 as alleged in Citation Nos.
8863929 and 8863931 because the e-stops were not positioned so that a falling person could
readily deactivate the conveyor drive motor.
Intrepid argues that Citation No. 8863931, which pertains to the transloader at the East
mine, should be vacated because the cited transloader was not available for use at the time the
citation was written. (Resp. Mot. 14-15.) However, the transloader had previously been used at
the mine without an appropriate emergency stop device or railing in violation of § 56.14109 and
was tagged out only after Tovar’s accident. The fact that it was taken out of service and
barricaded after the accident may mitigate Intrepid’s negligence somewhat, but does not cancel
out the violation that had already occurred.
Intrepid further argues that both citations should be vacated because it did not have fair
notice that the Secretary would interpret § 56/57.14109 to require the emergency stop devices on
the transloaders to be positioned differently, as the Secretary had never previously cited the
transloaders or warned the company about the potentially violative condition. (Resp. Mot. 1213.) This argument is unavailing. The interpretation of § 56/57.14109 advanced by the
Secretary in this case is not new. The Buffalo decision is twenty years old and has been followed
by several ALJs. See Concrete Materials, 35 FMSHRC 690 (Mar. 2013) (ALJ); CEMEX Constr.
Materials of Fla., LLC, 34 FMSHRC 2519 (Sept. 2012) (ALJ). The Secretary has also published
guidance on § 56/57.14109 stating that an unguarded conveyor should be equipped with
emergency stop devices or railings on both sides and that MSHA expects the stop devices to be
“located along the portion of the unguarded conveyor that is adjacent to a travelway.” MSHA,
Program Policy Manual, Vol. IV, Parts 56/57, at 51-52 (2009). A reasonably prudent mine
operator familiar with the protective purposes of § 56/57.14109 would have recognized that the
e-stops on the transloaders were not properly positioned along the unguarded portions of the
conveyor belts to protect falling miners and that this condition presented a hazard warranting
corrective action within the purview of the cited regulations, especially in light of the past
litigation and the guidance the Secretary has provided the mining industry on this issue.
Accordingly, it was appropriate for the Secretary to charge Intrepid with these two violations.
See LaFarge North America, 35 FMSHRC 3497, 3500-01 (Dec. 2013); Ideal Cement Co., 12
FMSHRC 2409, 2415-16 (Nov. 1990).

39 FMSHRC Page 774

Turning to the issues of gravity and negligence, the Secretary asks me to accept the
MSHA inspector’s assessment of these issues as set forth in the citations. (Sec’y Mot. 17-18.)
Intrepid counters that its negligence was low and that it is entitled to summary judgment on this
point. (Resp. Mot. 15-16.) I find summary judgment on the issues of gravity and negligence to
be inappropriate at this time. Intrepid has not made any arguments respecting gravity. Further,
material facts appear to remain in dispute or have not been fully developed, such as how quickly
the miners were able to stop the conveyor drive motor at the North mine after Tovar fell, how
recently the transloader at the East mine had been used before the inspection, and whether the
positioning of the e-stops was “not typical,” as the Secretary alleges. The Commission has
emphasized that summary decision should not be granted “unless the entire record shows a right
to judgment with such clarity as to leave no room for controversy.” KenAmerican Res., Inc., 38
FMSHRC 1943, 1947 (Aug. 2016). Here, I find it appropriate to give the parties an opportunity
to further develop the record on the issues of gravity, negligence, and any other factors bearing
on the penalties in light of my finding that the violations occurred.
For the foregoing reasons, Intrepid’s motion for summary decision is DENIED and the
Secretary’s cross motion for summary decision is GRANTED IN PART on the issue of whether
the e-stops on Intrepid’s transloaders violated § 57.14109 and § 56.14109.

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

Distribution:
Emily L.B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Boulevard, Suite 216, Denver, CO 80204
Dana M. Svendsen, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO
80202

39 FMSHRC Page 775

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9956 / FAX: 202-434-9949

March 15, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2015-480-M
A.C. No. 41-04793-379976

v.
CYPRESS POINTE INCORPORATED,
Respondent.

Mine: Milam Rock Pit

ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY DECISION AND
DENYING SECRETARY’S CROSS-MOTION FOR SUMMARY DECISION
Before:

Judge Rae

The above-captioned proceeding is before me upon the Secretary of Labor’s petition for
assessment of civil penalties under section 105(d) of the Federal Mine Safety and Health Act of
1977, as amended, 30 U.S.C. § 815(d). At issue is one citation issued by the Secretary to mine
operator Cypress Pointe Incorporated (“CPI”) under section 104(d)1 of the Mine Act: Citation
Number 8858079. The parties have filed cross motions for summary judgment.
Factual and Procedural Background
The disputed citation was issued by MSHA Inspector Ray G. Hurtado on March 23, 2015
for an alleged berming violation at the Milam Rock Pit, an aboveground mine near Milam, Texas
that was operated by CPI at that time and has since shut down permanently. (Resp. Mot. 2;
Sec’y Cross Mot. 5.) By CPI’s account, there were approximately 1500 feet of berms at the
mine at the time the citation was issued. (Resp. Mot. 2.) On the entrance road to the pit, there
was a berm along one side of an earthen bridge crossing a wet weather stream that filled with
runoff during rainy periods. (Id.) In addition, berms surrounded a number of settling ponds at
the site that had been installed by CPI to capture rock pit runoff in order to comply with EPA
regulations. (Id.)
The Milam area received heavy rain in March 2015 and the mine was shut down for
several weeks due to flooding. (Resp. Mot. 2; Sec’y Cross Mot. 12.) When Inspector Hurtado
visited the mine on March 23, the only person present was mine superintendent Dale Warr, Jr.,
who was operating a front-end loader in the pit area. (Resp. Mot. 3; Sec’y Cross Mot. 3.)
Hurtado observed that approximately 100 feet of roadway did not have a berm in place. (Resp.
1

The issuance of a citation under section 104(d)(1) denotes that the alleged violation was
significant and substantial (S&S) and was caused by the mine operator’s “unwarrantable failure”
to comply with a mandatory health or safety standard. 30 U.S.C. § 814(d)(1).

39 FMSHRC Page 776

Mot. 1; Sec’y Cross Mot. 3.) According to CPI, the berm along the entrance road had washed
away in the flooding and the mine was closed to all customers and employees except Warr, who
was using the loader to drain trapped water from the pit, fill washed out areas, and rebuild the
berm. (Resp. Mot. 1-3.) According to the Secretary, Warr was using the loader to travel near the
edge of a 5-foot drop-off as he removed the berm. (Sec’y Cross Mot. 3-4.)
Because 100 feet of berm were not in place, Inspector Hurtado issued Citation Number
8858079 alleging that CPI was in violation of 30 C.F.R. § 56.9300, which requires berms along
roadways wherever a drop-off exists that could cause a vehicle to overturn. He marked the
violation as significant and substantial (S&S), reasonably likely to cause a lost workdays or
restricted duty type injury to one person, and involving high negligence. He terminated the
citation less than an hour after issuing it, noting that a berm had been installed. (Sec’y Pet.)
The Secretary proposed a penalty of $2,000.00 for the citation, which CPI paid. (Resp.
Mot. 3; Sec’y Cross Mot. 2.) However, CPI subsequently sent a letter to MSHA contesting the
citation and filed a motion to reopen the penalty assessment. The Commission reopened the
penalty case in October 2016. The Secretary filed a penalty petition in November 2016 and the
case was assigned to me. CPI has now filed a motion for summary judgment asking me to
vacate the citation and order the Secretary to repay the penalty. The Secretary has filed a cross
motion agreeing that summary judgment is appropriate but asking me to uphold the citation as
written and approve the penalty.
Legal Framework for Summary Decision
Commission Procedural Rule 67, which is analogous to Rule 56 of the Federal Rules of
Civil Procedure, permits an administrative law judge to grant summary decision when the entire
record shows that “there is no genuine issue as to any material fact” and that “the moving party is
entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b); see Missouri Gravel
Co., 3 FMSHRC 2470, 2471 (Nov. 1981). The record must be viewed in the light most
favorable to the nonmoving party and the judge may not weigh the factual evidence or engage in
fact-finding beyond those facts that are established in the record. W. Alabama Sand & Gravel,
Inc., 37 FMSHRC 1884, 1887 (Sept. 2015); Hanson Aggregates NY, Inc., 29 FMSHRC 4 (Jan.
2007). Summary judgment should not be granted “unless the entire record shows a right to
judgment with such clarity as to leave no room for controversy and establishes affirmatively that
the adverse party cannot prevail under any circumstances.” KenAmerican Res., Inc., 38
FMSHRC 1943, 1947 (Aug. 2016) (quoting Campbell v. Hewitt, Coleman & Assocs., Inc., 21
F.3d 52, 55 (4th Cir. 1994)).
Discussion and Conclusions of Law
The parties agree that there no genuine issues of material fact, but dispute whether the
facts establish that the cited mandatory safety standard, 30 C.F.R. § 56.9300, was violated. The
standard states in pertinent part: “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.” 30 C.F.R. § 56.9300(a).

39 FMSHRC Page 777

The citation states:
Approximately 100 feet of roadway near the portable screen did not have a
berm where a drop-off existed of sufficient grade to cause a vehicle to
overturn. A drop-off of about 5 feet to the bottom existed. The berm was
removed with a front-end loader, operated by the superintendent, for water
drainage. The superintendent exposed himself to overturn injuries by
traveling along the drop-off. The superintendent engaged in aggravated
conduct constituting more than ordinary negligence in that he was aware
of the berm requirements. This violation is an unwarrantable failure to
comply with a mandatory standard.
The Secretary argues that a violation is established because a 100-foot section of berm was
missing, superintendent Warr was using the loader close to the edge, and the 5-foot drop-off was
sufficient to result in the loader overturning. (Sec’y Cross Mot. 7.) The Secretary has submitted
an affidavit from Inspector Hurtado attesting to these facts, along with three photographs
Inspector Hurtado took confirming there was an unbermed roadway in the pit area. (Id.,
Attachments.)
CPI admits that the 100-foot section of berm was missing but argues that the berm had
sustained flood damage necessitating repairs and that Warr was in the process of draining
standing water and rebuilding the eroded earthen berm to return it to compliance with § 56.9300.
(Resp. Mot. 3.) CPI points out that § 56.9300(a) requires berms to be “maintained” and a
separate regulation, § 56.20003, requires the workplace to be kept in dry condition so far as
possible. (Id. at 4.) CPI argues that if Warr’s actions in trying to achieve compliance with these
regulations constituted a violation, operators would be placed in an untenable “Catch 22”
situation, because whenever a berm washes away during flooding the operator would be out of
compliance and unable to get back into compliance by rebuilding the berm. (Id. at 3-4.)
CPI’s argument is, in essence, that it was impossible to comply with § 56.9300 under the
circumstances. CPI has raised this argument at every level of this proceeding, including in its
initial letter to MSHA contesting the citation in June 2015, which stated “Surely [the regulation]
wasn’t mean[t] to apply literally as berms are being built or maintained,” and in its answer to the
penalty petition, in which CPI pointed out that the action prescribed by the inspector to abate the
violation was for superintendent Warr to continue rebuilding the berm – the very activity for
which CPI was cited. (See Resp. Mot. to Reopen; Resp. Answer.) Yet the Secretary wholly
ignores this argument, instead asserting that a violation is established simply by the fact that the
berm was missing and Warr was working near the edge of the 5-foot drop-off.
The Secretary cites three ALJ decisions in support of his position. (Sec’y Cross Mot. 6.)
But even if these decisions held binding precedential value, which they do not, two of them are
irrelevant because they deal with issues that are not disputed in this case, such as whether the
cited area was a roadway and whether the drop-off was of sufficient grade or depth to create a
vehicle overturn hazard. Stone Plus, Inc., 38 FMSHRC 661 (Apr. 2016) (ALJ); Pappy’s Sand &
Gravel, 20 FMSHRC 647 (June 1998) (ALJ). The remaining decision, Andersen Sand & Gravel
Co., concerns a situation where an operator received a citation after intentionally removing a

39 FMSHRC Page 778

berm. 13 FMSHRC 1269 (Aug. 1991). This is factually similar to the instant case, as Warr
intentionally removed part of CPI’s berm for drainage purposes. However, in this case, CPI’s
berm was already unavoidably damaged by flooding.2 Also, unlike in the instant case, the
operator in Andersen was found to have resumed normal mining operations for several months
without rebuilding its berm. By contrast, this mine site was closed to all customers and
employees except Warr after the flooding occurred. As acknowledged by the Secretary, Warr
was the only person at the worksite, and there is no allegation he was doing anything other than
trying to drain residual floodwater and repair the damaged berm in order to satisfy the operator’s
obligation to provide and maintain berms under § 56.9300.
The Secretary never addresses the troublesome fact that CPI was cited for not having a
berm while Warr was in the process of rebuilding the berm. The Secretary asserts that Warr
“should have recognized the violative condition instead of risking injury or, worse, his life.”
(Sec’y Cross Mot. 6.) But the Secretary does not say what he believes Warr should have done
instead to bring the berm back into compliance with the regulations. The Secretary fails to
explain how this berm, or any other berm damaged by forces of nature, could ever be rebuilt if its
damaged state prohibited the operator from getting close enough to make the necessary repairs.
For that matter, if § 56.9300 flatly prohibits anyone from approaching a drop-off where a berm is
needed but has yet to be constructed, it is unclear how berms could ever be built in the first place
without running afoul of the regulation. This would be absurd, and I decline to interpret
§ 56.9300 in this manner. The regulation must give operators leeway to perform berm
construction and maintenance work when a berm is not yet in place. Otherwise, compliance
would be impossible.

2

If the Secretary contended that the entire 100-foot section of berm had been removed
intentionally, this might raise a material factual dispute. The impossible situation described by
CPI would be avoidable if the missing berms resulted entirely from a decision of its own making.
But the Secretary does not dispute that flooding washed out some portion of the missing berm.
In fact, he agrees that berms often washed away at this mine during severe rain and also argues
that the berms must have been missing throughout March 2015 because the mine had been
closed for several weeks due to flooding, which means he is assuming that the floods caused the
damage. (Sec’y Cross Mot. 5-6, 12.) The long and short of it is, this proceeding was a waste of
time and resources and should never have proceeded to this point in litigation.

39 FMSHRC Page 779

I find that CPI did not violate § 56.9300(a) by working near a drop-off without a berm
when the only work taking place was necessary construction work on said berm.
Accordingly, CPI’s motion for summary judgment is GRANTED and the Secretary’s
cross motion for summary judgment is DENIED. Citation Number 8858079 is hereby
VACATED and this proceeding is DISMISSED.

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

Distribution:
Felix Marquez, Esq., U.S. Department of Labor, Office of the Solicitor, 525 South Griffin
Street, Suite 501, Dallas, TX 75202
James S. Carter, President, Cypress Pointe Inc., 1490 Burl Ivy Way, Hemphill, TX 75948

39 FMSHRC Page 780

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

March 20, 2017
DANIEL B. LOWE,
Complainant,

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

v.
VERIS GOLD USA, INC., and JERRITT
CANYON GOLD, LLC,
Respondents.

Docket No. WEST 2014-307-DM
WE-MD 14-03

MATTHEW A. VARADY,
Complainant,
v.
VERIS GOLD USA, INC., and JERRITT
CANYON GOLD, LLC,
Respondents.

Mine: Jerritt Canyon Mill
Mine ID: 26-01621
ORDER

Before: Judge Simonton
These cases are before me upon complaints of discrimination under section 105(c) of the
Federal Mine Safety and Health Act of 1977. Daniel Lowe and Matthew Varady
(“Complainants”) each filed discrimination complaints with the Secretary against Veris Gold
(“Veris”) in November 2013. The Secretary declined to pursue their cases, and Lowe and Varady
appealed pursuant to § 105(c)(3). Veris Gold filed a petition for bankruptcy in June 2014, and
one year later the United States Bankruptcy Court of the District of Nevada approved the sale of
certain assets, including the Jerritt Canyon Mill, to Jerritt Canyon Gold LLC (“JCG”) “free and
clear” of “claims based on any successor or transferee liability and any enforcement action or
enforcement history,” including “all…employment and pension claims…” Doc. No. 318 in Dkt.
No. 14-51015 (Bankr. D. Nev.) (“Sale Order”). Shortly after the Bankruptcy Court approved the
Sale Order, the presiding Commission Administrative Law Judge found that the Complainants
established their discrimination claims against Veris and granted their motion to amend their
complaints to include JCG as a successor in interest. At issue in these consolidated cases is
whether the express terms of the bankruptcy court’s Sale and Enforcement Orders can extinguish
the Complainants’ successorship claims against JCG and other affiliated entities under the Mine
Act.

39 FMSHRC Page 781

JCG moves to dismiss the cases because the Sale Order permitted it to purchase the Jerritt
Canyon Mill free and clear of liens, claims, and interests, specifically including employment law
claims, and stated that JCG would not be liable as a successor to Veris. The Complainants argue
that the Mine Act authorizes them to pursue their discrimination claims against JCG as a
successor in interest to Veris and to add various other parties as successors as well.1 At the
request of the Court, the Complainants, JCG, alleged affiliate WBox 2014-1Ltd. (“WBox”), and
the Solicitor filed briefs addressing the court’s jurisdiction and authority to enforce the
Complainants’ established discrimination claims against JCG in contravention of the Bankruptcy
Court’s Sale and Enforcement order.2 On the basis of the briefs and the prior submissions of the
parties,3 I make the following findings and order.
I. BACKGROUND
Lowe and Varady first filed their discrimination complaints against Veris Gold (“Veris”)
in November of 2013, shortly after they were discharged. The Secretary declined to pursue the
claims, and the Complainants timely appealed the decisions to the Commission in April and May
of 2014.
On June 9, 2014, Veris filed a petition for bankruptcy in the Supreme Court of British
Columbia, Canada, Vancouver Registry, and filed a petition for recognition of the filing with the
Bankruptcy Court for the District of Nevada. Veris listed the Complainants as creditors and sent
notices of the bankruptcy to their personal addresses.
On June 4, 2015, the Bankruptcy Court issued an order approving a previously proposed
sale of certain Veris assets to Jerritt Canyon Gold (“JCG”), pursuant to § 363 of the Bankruptcy
1

The Complainants allege that the following entities were “established or cited inside
and outside of the actual bankruptcy sale of Veris Gold USA, Inc.: Jerritt Canyon Gold LLC;
Whitebox Asset Management; Whitebox Advisors LLC; WBVG; WBVG LLC; WBVG 2014
Ltd.; Eric Sprott; Sprott Mining Inc.; Jerritt Canyon Gold LLC dba a subsidiary of Sprott Mining
Inc.” See Complainants’ Brief, at 6-7.
2

At this time, the Solicitor, WBox, and the other entities mentioned above are not parties
to this case. The court ordered the Solicitor and WBox to submit briefs in a limited appearance to
present their legal positions and aid the Court in rendering a decision.
3

Since the submission of the parties’ briefs, the Complainants have emailed the Court
alleging that (1) the Solicitor’s office and its representatives have not read or responded to their
emails, and (2) that Counsel for JCG has sent a letter informing the Complainants that it will
pursue sanctions in accordance with the Bankruptcy Court’s enforcement order if Complainants
continue to pursue their claims before the Commission. Regarding the first email, the Solicitor is
not a party to this case and has no role or responsibility in the proceedings beyond the limited
appearance to file the briefs requested by the Court. As for the email from Counsel for JCG, the
Complainants have since filed a second complaint with the Commission alleging interference
based on the contents of the letter. The letter is not pertinent to the instant cases, and will be
sufficiently addressed in that interference proceeding.

39 FMSHRC Page 782

Code. Sale Order at 6. The Order expressly approved the sale “free and clear” of all liens, claims
or interests related to “any act or omission of the Debtors” prior to the sale closing, including any
claims “based on any successor or transferee liability,” and including any “labor, employment,
and pension claims.” Sale Order at 6. The Sale Order also stated that JCG “is not a ‘successor’ to
the Debtors or their estates by reason of any theory of law or equity, and the Purchaser shall not
assume, nor be deemed to assume…any liability” of the Debtors. Id. at 21. Finally, the order
expressly barred all individuals, including “former employees” and “governmental…and
regulatory authorities” from pursuing any claims against JCG or its affiliates, successors, or
assignees. Id. at 22.
The Complainants filed a motion in the Bankruptcy Court to stay the Sale Order two
weeks after its approval. The Bankruptcy Court denied the motion because the Complainants did
not follow proper procedure and did not establish a legal or factual basis for a hearing on the
Stay. Doc. No. 325 in Dkt. No. 14-51015 (Bankr. D. Nev.). The asset sale closed on June 24,
2015, and the Complainants did not appeal the Sale Order. The sale generated minimal proceeds;
administrative expenses were paid but none of the secured or general unsecured creditors
received compensation. See Doc. No. 394 at 24 in Dkt. No. 14-51015 (Bankr. D. Nev.). The
Bankruptcy Court entered an order granting a motion to close the Bankruptcy case on September
2, 2015. See Doc. No. 356 in Dkt. No. 14-51015 (Bankr. D. Nev.). The Order reiterated that all
previous orders entered by the Court remained in full force and binding, and preserved the
jurisdiction of the United States Bankruptcy Court for the District of Nevada in conflicts
stemming from this matter. Id. at 2-3.
Meanwhile, the Complainants’ discrimination complaints against Veris continued to
proceed before the Commission. The presiding Administrative Law Judge held Complainant
Varady’s hearing on June 8-10, 2015, and issued a decision affirming his discrimination
complaint on September 2, 2015. See Matthew Varady v. Veris Gold USA, Inc., 37 FMSHRC
2037 (Sept. 2015) (ALJ). While acknowledging the ongoing bankruptcy sale, the ALJ
nonetheless ordered the Secretary of Labor to file a petition for penalty assessment against Veris.
Id. at 2061. The ALJ did the same after finding in favor of Complainant Lowe. Daniel B. Lowe v.
Veris Gold USA, Inc., 37 FMSHRC 2337, 2347-49 (Oct. 2015) (ALJ). The Secretary moved to
dismiss the docket, arguing that the ALJ lacked jurisdiction under the Bankruptcy Code because
the Complainants brought their suits as private individuals under § 105(c)(3), and thus neither
suit was subject to the automatic stay exception under § 362(b)(4). The ALJ did not rule on this
motion. At this time, neither party disputes that the Complainants have established a claim
against Veris. See Respondent’s Brief at 19.
In January of 2016, both Complainants filed motions to amend their complaints before
the Commission to add JCG as a successor to Veris, despite the explicit terms of the Sale Order.
JCG entered a limited appearance to protest the Complainant’s motions, arguing that the ALJ did
not have jurisdiction to contravene or modify the Bankruptcy Court’s Sale Order, which allowed
a “free and clear” purchase and barred all successorship and employment law claims. In March
of 2016 the ALJ granted the Complainants’ motions and denied JCG’s subsequent motion for
certification of interlocutory review. The Commission denied JCG’s direct petition for
interlocutory review in the following months. See Daniel B. Lowe v. Veris Gold USA, Inc. and

39 FMSHRC Page 783

Jerritt Canyon Gold, LLC, 38 FMSHRC 565 (Mar. 2016) (ALJ); Matthew A. Varady v. Veris
Gold USA, Inc., and Jerritt Canyon Gold, LLC, 38 FMSHRC 513 (Mar. 2016) (ALJ).
On August 4, 2016, JCG filed a Motion to Reopen the Bankruptcy case before the U.S.
Bankruptcy Court to enforce the Sale Order and related injunction. On August 11, 2016, the
Court held a hearing on the motion. Both Complainants attended and participated in the
proceedings. On September 2, 2016, the Court granted JCG’s motion. The Bankruptcy Judge
specifically advised the Complainants of their right to appeal his decision and outlined the proper
procedure.4 While the Judge did not grant JCG’s motion for sanctions at this time, he expressed
his concern that the Complainants were pursuing a remedy in another administrative forum in
violation of § 362(a) of the Bankruptcy Code. He ordered the Complainants to stop pursuing
their cases before the Commission or face sanctions because the Bankruptcy Court was the
proper venue to contest the terms of the Order and injunction. Though it was their right to do so,
the Complainants did not appeal the Bankruptcy Court’s decision.
Following the Order of the Bankruptcy Court, the Commission ALJ dismissed the
Complainants’ cases sua sponte for fear of putting them at risk of sanctions. The Complainants
nonetheless filed for discretionary review before the Commission on November 23, 2016. The
Commission granted the petition and vacated the ALJ’s dismissal as premature. Daniel B. Lowe
v. Veris Gold USA, Inc. and Jerritt Canyon Gold, LLC, Matthew Varady v. Veris Gold USA, Inc.
and Jerritt Canyon Gold, LLC, 38 FMSHRC 2899, 2900 (Dec. 2016). The Commission held that
the Complainants should freely determine their response to the Bankruptcy Court’s Order,
vacated the dismissal, and remanded the consolidated cases to the Chief Administrative Law
Judge who then assigned the cases to this court. Id. While the Commission declined to make
factual findings, it suggested that additional briefing was likely necessary on remand to discuss
the impact of the Sale Order and the Complainants’ successorship claims. Id.
II. DISCUSSION
The Complainants contend that the Mine Act grants the Commission exclusive authority
to adjudicate cases brought before it, and thus the Bankruptcy Court lacks authority to extinguish
their claims. They argue that miners who have established a 105(c) discrimination complaint
under the Mine Act have a Congressionally-recognized status and thus have the right to pursue
their successorship claims against JCG and other entities associated with the Veris Gold Sale.
See Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463 (Dec. 1980).
The Commission has held that a corporate successor may be held liable for its
predecessor’s violation of the Mine Act. Sec’y of Labor o/b/o Corbin v. Sugartree Corp., 9
FMSHRC 394, 397 (Mar. 1987), aff’d sub nom. Terco, Inc. v. Fed. Coal Mine Safety & Health
Review Comm’n, 839 F.2d 236 (6th Cir. 1987); see also Munsey v. Smitty Baker Coal Co., 2
4

Specifically, the Bankruptcy Court Judge said “If you think the orders that are entered
as a result of today’s hearing are incorrect, you have a remedy. You can ask a court to review
them. I am not the final word…you need to exercise the remedies that are provided by the
Bankruptcy Code and the appellate rules and statutes.” Doc. No. 383 in Dkt. No. 14-51015
(Bankr. D. Nev.).

39 FMSHRC Page 784

FMSHRC 3463, 3465 (Dec. 1980) (applying successorship doctrine in a Coal Act Case).
However, JCG argues that successor liability is not available in this case because it acquired
Veris’ assets “free and clear” as part of a bankruptcy proceeding, and because the Sale and
Enforcement Orders bar any successorship claims from government entities or employment
disputes.
JCG purchased the Jerritt Canyon Mill mine in a sale authorized by the bankruptcy court
on June 4, 2015. Section 363(f) of the Bankruptcy Code permits a trustee in bankruptcy to “sell
property under subsection (b) or (c) free and clear of any interest in such property of an entity
other than the estate.” 11 U.S.C. § 363(f). Courts have generally held that this language
empowers the trustee to sell assets free and clear of successor liability claims. See, e.g., In re
Motors Liquidation Co., 829 F.3d 135 (2d Cir. 2016), petition for cert. filed sub nom. General
Motors, LLC, v. Celestine Elliott, et. al., No 16-764 (Dec. 15, 2016); In re Chrysler LLC, 576
F.3d 108, 126 (2d Cir. 2009), vacated as moot sub nom.; Ind. State Police Pension Tr. v.
Chrysler LLC, 558 U.S. 1087 (2009); In re Trans World Airlines, 322 F.3d 283, 288-90 (3d Cir.
2003) (“TWA”); In re Leckie Smokeless Coal Co., 99 F.3d 573, 582 (4th Cir. 1996); but see
Zerand-Bernal Grp., Inc. v. Cox, 23 F.3d 159, 163 (7th Cir. 1994). These courts have interpreted
the “interests in property” language to refer to not only in rem interests, but also to interests that
“arise from the property being sold.” Chrysler, 576 F.3d at 126; TWA, 322 F.3d at 290; see also
Motors Liquidation Co., 829 F.3d at 154-56. In Leckie, the 4th Circuit held that a pension fund’s
right to collect premium payments from a successor under the Coal Act is an interest in property
that may be extinguished in a § 363 sale because:
[t]hose rights are grounded, at least in part, in the fact that those very assets have been
employed for coal-mining purposes: if [the debtors] had never elected to put their assets
to use in the coal-mining industries, and had taken up business in an altogether different
area, the Plan and Fund would have no right to seek payments from them.
Leckie, 99 F.3d at 582.
These courts have also observed that allowing a claimant to assert a successor claim
against a § 363 asset purchaser would “subvert the Bankruptcy Code’s priority scheme, by
allowing a low-priority, unsecured claim to leapfrog over other creditors in the bankruptcy.” In
re Grumman Olson Indus., Inc., 467 B.R. 694, 703 (S.D.N.Y. 2012); see also Chrysler, 576 F.3d
at 126; TWA, 322 F.3d at 292; New Eng. Fish Co., 19 B.R. 323, 329 (Bankr. W.D. Wash. 1982)
(Holding that purchasers would not take businesses burdened with civil rights litigation, thus
chilling or rendering impossible any other sale). Moreover, courts have noted that allowing the
bankruptcy trustee to sell assets free and clear of successor liability claims enables the trustee to
maximize the sale price of the assets. See Douglas v. Stamco, 363 F. App’x 100, 103 (2d Cir.
2010); TWA, 322 F.3d at 292-93; Leckie, 99 F.3d at 586-87. While this may be at the expense of
successor liability claimants, it is consistent with the Bankruptcy Code’s goal of preserving jobs.
See TWA, 322 F.3d at 293.
The Complainants argue that the Mine Act’s purpose and authority grant miners a
Congressionally-recognized status beyond that of ordinary creditors. Complainants Brief at 8.
The Complainants believe that this status elevates Mine Act claims above the bankruptcy court’s

39 FMSHRC Page 785

authority to extinguish claims for successor liability. See International Technical Products
Corp., 249 N.L.R.B. 1301 (1980) (“ITP”). In ITP, the NLRB held that a bankruptcy court’s free
and clear sale did not extinguish a successor’s liability for back pay under an NLRB order
against the debtor. Id. at 1303. The Board stated that:
“[W]hile a bankruptcy court may have the authority to assign priority to the Board’s
claim for back pay, the authority to modify or set aside the order upon which the claim is
based rests exclusively with the Board and the appropriate reviewing Federal courts, and
not the bankruptcy courts.
ITP, 249 N.L.R.B. at 1303.
I decline to apply the ITP decision to the facts at hand. First, ITP was decided under the
previous Bankruptcy Act, and it is unclear whether it is applicable under the current code. The
decision was not appealed, and other Board decisions have challenged the validity of its holding.
See Kanowski Furniture, Inc., 314 NLRB 107, 112 (1994) (“Whatever the final balance between
the [NLRA and Bankruptcy Code] may be, totally ignoring regular bankruptcy proceedings is
not it.”); In the Matter of Ecusta Development Center, 32 NLRB AMR 71, 2005 WL 6715471
(2005) (Judge/Administrative Officer) (“ITP…fails to take into account and reconcile the
important competing objectives underlying [the Bankruptcy Code’s] different Federal statutory
scheme.”). This court has also expressed doubt about the viability of ITP’s holding in the context
of §105(c)(3) complaints. See Justice v. Gateway Eagle Coal Co., LLC, 38 FMSHRC 2341,
2344 (Aug. 2016) (ALJ).
Second, the ITP holding has been criticized by various Courts of Appeals, including the
Ninth circuit, for conflicting with the Supreme Court’s decision, Nathanson v. National Labor
Relations Board, 344 U.S. 25 (1952). The Court in Nathanson held that the NLRB may enforce a
back pay award against a bankrupt entity, but that the claim is not entitled to priority or special
status.5 Most Courts of Appeals have found that the Bankruptcy Court has the authority to
approve an assets sale free and clear of successor liability. Id. at 27-29; see TWA, 322 F.3d at
291-92 (barring successorship for EEOC discrimination claims); In re Leckie Smokeless Coal
Co., 99 F.3d at 582 (barring successorship claims of pension funds stemming from the Coal Act);
NLRB v. Walsh (In re Palau Corp.), 18 F.3d 746, 750 (9th Cir. 1993) (Holding that the
Bankruptcy Code determines whether NLRB back pay claims receive priority); In re New Eng.
5

The Complainants rely on Nathanson to argue that Mine Act discrimination claims are
similar to NLRB unfair labor practice claims, and thus cannot be extinguished. Their reliance is
misplaced, however, since the Court in Nathanson held that “the policy of the NLRA is fully
served by recognizing the claim for back pay as one to be paid from the estate. The question
whether it should be paid in preference to other creditors is a question to be answered from the
Bankruptcy Act.” Id. at 28-29. Assuming that the Mine Act and NLRA are sufficiently similar to
warrant comparison, the holding in Nathanson would support the argument that discrimination
claims under the Mine Act should not be prioritized over Veris’ secured creditors, who did not
receive payment from the sale to JCG. Thus, the holding in Nathanson supports the Bankruptcy
Court’s Sale Order in this case because Mine Act discrimination claims are not given special
status or preference to other creditors under the terms of the Bankruptcy Code.

39 FMSHRC Page 786

Fish Co., 19 B.R. at 327 (finding that the ITP majority’s attempt to distinguish Nathanson is
based on “specious reasoning”).
The Ninth Circuit, where the Jerritt Canyon Mill is located, has declined to accept the
Board’s ruling in ITP regarding statutory claims analogous to the Mine Act, and has clarified the
interplay between federal employment statutes and the Bankruptcy Code. See In re Palau Corp.,
18 F.3d at 750; New Eng. Fish Co., 19 B.R. at 327. In New England Fish Co., the Bankruptcy
Court found that Title VII civil rights claimants were unsecured creditors and therefore could not
pursue successorship liability claims in a free and clear sale. New Eng. Fish Co., 19 B.R. at 328.
The Court found that adhering to ITP and allowing pursuit of successorship would create a
“value judgment…that it was the intention of Congress for certain creditor or claimant
constituencies to be accorded a higher priority than any set forth in the Code,” contrary to the
Supreme Court’s holding in Nathanson. Id. In Palau, the Court found that while NLRB laws
prohibiting unfair labor practices govern the question of whether or not a claim for compensation
exists and what the value of that claim is, it is the Bankruptcy Code which determines the
priority and the allowability of any and all claims filed in a bankruptcy proceeding. In re Palau
Corp., 18 F.3d at 750 (citations omitted).
Here, allowing the Complainants to pursue successorship liability against JCG in
violation of a free and clear sale would subvert the policies outlined in the Bankruptcy Code and
affirmed in Nathanson. Like the Title VII claimants in New England Fish Co., the Complainants
in these cases are unsecured creditors. They pursued their claims and received a decision and
monetary judgment well after Veris initially petitioned for bankruptcy and the Judge finalized
the Sale Order. New Eng. Fish Co., 19 B.R. at 328. The Complainants’ motions to amend their
complaints and include JCG as a successor were filed even later. It is undisputed that the asset
sale only covered administrative costs, and did not satisfy the claims of Veris’ secured creditors,
let alone its unsecured creditors. See Doc. No. 394 at 24 in Dkt. No. 14-51015 (Bankr. D. Nev.).
Therefore, to allow the Complainants to pursue successorship claims in violation of a free and
clear Sale Order would prioritize an unsecured creditor over the unpaid secured and unsecured
claims expressly protected within the Bankruptcy Code.
Furthermore, I find no support for the claim that the Commission can override or ignore
the Bankruptcy Court’s interpretation and enforcement of the Sale Order to allow successorship
liability. The Mine Act’s discrimination provisions are similar to the NLRA’s unfair labor
practices in Palau, in that the statutes govern the existence and value of employment claims, but
do not authorize the agency to determine priority and allowability of those claims in a
bankruptcy proceeding. See Palau, 18 F.3d at 750. In this case, the issue is not whether
discrimination occurred but whether the Complainants can pursue their successorship claims
beyond the terms of the Sale Order before the Commission. The interpretation and efficacy of the
Sale Order is governed by the Bankruptcy Code and not the Mine Act. Id.
The bankruptcy court determined the priority and allowability of the Complainants’
claims when it ordered the sale “free and clear of all Liens, Claims, and Interests,” and stated that
JCG would not be liable as a successor to Veris. The Bankruptcy Court also expressly retained
jurisdiction over disputes regarding the terms of the Sale Order. This was clearly within the

39 FMSHRC Page 787

bankruptcy court’s power under § 363. Thus, to deny the Respondent’s Motion to Dismiss and
adjudicate the issue of successor liability would be futile.
ORDER
Upon review of the complaint and the entire record in these cases, the Respondent’s
Motion to Dismiss is GRANTED. Complainants’ motion to add additional parties as successors
in interest to Veris Gold is DENIED.
Should the Complainants wish to obtain an order of payment against Veris Gold, they are
directed to resubmit claims for personal relief no later than April 3, 2017. The Complainants
should state with particularity whether they are seeking reinstatement, back pay, or both, and
should provide calculations of back pay and evidence of mitigation of circumstances. See Metric
Constructors, 6 FMSHRC 226, 232 (Feb. 1984) (Employee must reasonably search for a suitable
alternative job.), aff’d, 766 F.2d 469 (11th Cir. 1985); Sec’y o/b/o Michael J. Dunmire v.
Northern Coal Co., 4 FMSHRC 126, 144 (Feb. 1982) (back pay may be reduced where a miner
fails to mitigate damages by failing to remain in the labor market or to search diligently for
alternative work) (citations omitted). Upon receipt of Complainant’s petitions for relief against
Veris Gold, I will review them and issue a subsequent order for relief against Veris Gold and
consistent with my above order dismiss any and all claims against JCG. .
If the Complainants elect not to submit claims for personal relief against Veris Gold they
may immediately notify the court and a dismissal order will be issued. The parties will then have
30 days after the dismissal order is issued within which to appeal to the Commission for
discretionary review.

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

39 FMSHRC Page 788

Distribution: (U.S. First Class Mail)
Cathy L. Reece, Fennemore Craig, P.C., 239 East Camelback Rd., Suite 600, Phoenix, AZ 85016
Mark Kaster, Dorsey & Whitney, 1500 South 6th Street, Minneapolis, MN 55402
Annette Jarvis, Dorsey & Whitney, 136 South Main Street, Suite 1000, Salt Lake City, UT
54101
Eric Sprott, 200 Bay Street, Suite 2700, P.O. Box 27, Toronto, Ontario, Canada M5J 2J1
Matthew A.Varady, 701 South 5th Street, #6, Elko, NV 89801
Daniel Lowe, P.O. Box 2608, Elko, NV 89803
Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC, V6B 1P1,
Canada
Tevia Jeffries, Dentons Canada LLP, 250 Howe Street, 20th Fl., Vancouver, BC V6C 3R8,
Canada
Brad J. Mantel, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite
401, Arlington, VA 22202
Benjamin R. Botts, Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3-700,
San Francisco, CA 94103
W. Christian Schumann, Office of the Solicitor, U.S. Department of Labor, 201 12th Street
South, Suite 401, Arlington, VA 22202

39 FMSHRC Page 789

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

March 21, 2017
SECRETARY OF LABOR,
U.S. DEPARTMENT OF LABOR,
on behalf of DAVID FRANKLIN
WINSLOW, JR.
Complainant,

TEMPORARY REINSTATEMENT
Docket No. LAKE 2017-0190
MSHA Case No. NC-MD-17-02

v.
WALBRIDGE COMPANY and
IMPERIAL CRANE SERVICES, INC.,
Respondents.

Mine: St. Mary’s Cement
Mine ID: 20-00038

ORDER DISMISSING APPLICATION FOR TEMPORARY REINSTATEMENT
Before: Judge Moran
This case is before the Court upon an application for temporary reinstatement under
section 105(c) of the Federal Mine Safety and Health Act of 1977, filed by the Secretary on
March 8, 2017. On Wednesday, March 15, the Court held an initial conference call with the
parties and discussed potential dates for a hearing, should the Respondents request a hearing.
During this conversation, counsel for the Secretary stated that it would check with Mr. Winslow
to see if he was “available” for a hearing within the coming week, because he is now working at
a new job in the Detroit area. The Court then reminded the Secretary that it would not delay a
hearing absent a compelling reason, and that the Complainant would need to be conscious of this
if requesting an extension of time. 29 C.F.R. § 2700.45(c) (A hearing shall be held within 10
calendar days of a request, “unless compelling reasons are shown in an accompanying request
for an extension of time.”).
On Friday, March 17, both Respondents timely notified the Court and the Secretary via email of their request for a hearing. On Monday, March 20, the Court issued a Notice of Hearing,
with the hearing to be held on Thursday, March 23, 2017.
stating,

That same day, Attorney Jing Zhang e-mailed the Court on behalf of the Secretary,
Mr. Winslow has informed me that he is no longer seeking temporary
reinstatement at this time. His job circumstances have changed, and at this time he

39 FMSHRC Page 790

does not want to be temporarily reinstated. The Secretary requests that this week’s
hearing on temporary reinstatement be canceled.
E-mail from Attorney Zhang to the Court and all parties, March 20, 2017.
The Court responded,
I am in receipt of your message, Attorney Zhang. I will cancel the Temporary
Reinstatement hearing scheduled for this Thursday, March 23, 2017, but before I
formally announce that the hearing is cancelled, I want it to be understood that, by
foregoing this, Mr. Winslow, is unalterably ceding his right to being temporarily
reinstated in this matter.
I express this point because of the language you employed in stating that Mr.
Winslow is “no longer seeking temporary reinstatement at this time.” (emphasis
added) You mention the “at this time” qualifier twice in your email, below. The
Respondents have businesses to run and they cannot be left in a state of
uncertainty as to whether the Complainant might, at some indefinite future time
within the ensuing 90 days following the filing of his complaint, want to be
temporarily reinstated. Therefore, cancellation of the temporary reinstatement
hearing, coming about solely from the Complainant’s initiation, will have the
effect of permanently barring such temporary reemployment with the
Respondents in connection with this complaint.
E-mail from Judge Moran to Attorney Zhang and all parties, March 20, 2017.
In short, the Court has been informed through the Secretary’s e-mail that Mr. Winslow
has found new employment that he wishes to continue. Because the Complainant no longer
wishes to seek temporary reinstatement with the Respondents, the scheduled hearing is canceled
and the application for temporary reinstatement is denied.
Congress created the temporary reinstatement process as “an essential protection for
complaining miners who may not be in the financial position to suffer even a short period of
unemployment or reduced income pending the resolution of the discrimination complaint.” 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 protecting miners with non-frivolous
complaints, the temporary reinstatement process forces mine operators to “bear a proportionately
greater burden of the risk of an erroneous decision in a temporary reinstatement proceeding” Jim
Walter Resources, Corp., 920 F.2d 738, 748 n. 11 (11th Cir. 1990).1

1

Should an operator economically reinstate a miner, by paying them without the benefit
of their labor, the operator has no right “to seek reimbursement from the miner should the miner
not eventually prevail on his or her discrimination claim.” North Fork Coal Corp., 33 FMRHSC
589, 592 (Mar. 2011).

39 FMSHRC Page 791

Accordingly, Mr. Winslow, through the Secretary of Labor, had two options at the outset
of his case: (a) seek temporary reinstatement pending the Secretary’s determination whether to
proceed with a discrimination complaint or (b) continue his complaint without seeking
reinstatement. Having chosen the former option, a hearing was duly requested by the
Respondents and notice served upon all parties. Now, with the Secretary having informed the
Court that Mr. Winslow does not want to be temporarily reinstated, his Application for
Temporary Reinstatement has been withdrawn. The Secretary vaguely alludes that Mr.
Winslow’s “job circumstances have changed.” This may be accurately translated: the
Complainant has found another job. Accordingly, Complainant has waived his right to seek
temporary reinstatement.
The position adopted by the Secretary, which is effectively, “the complainant no longer
seeks temporary reinstatement, but perhaps at some future time may wish to re-invoke that
right,” is inconsistent with the fundamental purposes behind temporary reinstatements. Under the
Secretary’s view, the temporary reinstatement process would provide wide latitude for
complainants who wish to vacillate between their employment options. In other words, if the
Complainant were to decide next week that he no longer enjoys his current job, then the
Respondents and the Court may once again be in the position of expending resources to prepare
for an expedited hearing. This is not a tenable outcome.
Given the facts above, it would be manifestly unfair to leave the Respondents waiting for
weeks on end to see if the Complainant will change his mind once more. As mentioned above,
litigants may obtain leave of the Court to delay the temporary reinstatement process for
legitimate, compelling reasons. However, abandoning that process, while still leaving the door
open to possibly reviving it later on, is antithetical to the provision’s purpose and as such is not a
legitimate use of that relief.
Accordingly, the application for temporary reinstatement is DENIED, and these
temporary reinstatement proceedings are DISMISSED with prejudice.
So ORDERED.

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

39 FMSHRC Page 792

Distribution:
Jing Zhang, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., Rm.
844, Chicago, IL 60604
Suzanne Dunne, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St.,
Rm. 844, Chicago, IL 60604
Connie Cessante, Esq., Clark Hill PLC, 500 Woodward Ave., Suite 3500, Detroit, MI 48226
Kurt A. Miller, Esq., One Oxford Centre, 301 Grant St., 14th Floor, Pittsburgh, PA 15219
Ryan Hiss, Esq., Laurie & Brennan, LLP, Two North Riverside Plaza, Ste. 1750, Chicago, IL
60606
David Franklin Winslow, Jr., 1479 Blue Heron Drive, Highland, MI 48357

39 FMSHRC Page 793

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

March 23, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING

PEABODY MIDWEST MINING LLC,
Respondent.

Mine: Francisco Underground Pit

Docket No. LAKE 2016-0305
A.C. No. 12-02295-409606

ORDER OF STAY
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. The Respondent, Peabody
Midwest Mining LLC (“Respondent” or “Peabody”), has filed a motion in limine (“Motion”) to
preclude the Secretary’s use of several non-final orders in support of the flagrant designation for
Order No. 9036925. The Secretary opposed the Motion, requesting instead that this matter be
consolidated in order to promote judicial efficiency. For the reasons that follow, the Court
GRANTS Peabody’s alternative request that the Court stay this matter until Order Nos.
9036623, 9036625 and 9036922 are adjudicated.1
The Respondent’s Motion is captioned, “Motion in Limine to Preclude Use of Order Nos.
9036623, 9036625 AND 9036922 as Non-Final Orders in Support of the Secretary’s Flagrant
Designation for Order No. 9036925.” Understanding the basis for the Motion must begin with
the single matter involved in Docket No. LAKE 2016-0305, a section 104(d)(2) Order alleging a
violation of 30 C.F.R. § 75.202(a). That section, titled, “Protection from falls of roof, face and
ribs,” provides in subsection (a) “The roof, face and ribs of areas where persons work or travel
shall be supported or otherwise controlled to protect persons from hazards related to falls of the
roof, face or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a).
The Secretary, having “specially assessed” the alleged violation, is seeking a civil penalty
of $60,613.00. It is true, per the Secretary’s “Narrative Findings for a Special Assessment” that

1

The Respondent’s alternative request seeks a stay until those Orders “are adjudicated
and may become final.” Motion at 6. The Court is uncertain about the duration sought in the
Respondent’s Motion with its use of the phrase “may become final.” The Court’s intention is to
continue the stay until it has issued a final decision in LAKE 2016-140 and LAKE 2016-269.

39 FMSHRC Page 794

the Secretary contends that the alleged violation was “flagrant.”2 Narrative. The same document
elaborates that by “flagrant,” the Secretary means,
a reckless failure to make reasonable efforts to eliminate a known violation of a
mandatory health or safety standard that reasonably could have been expected to
cause death or serious bodily injury. The operator failed to correct the cited
hazardous conditions over an extended period of time, displaying a complete
disregard for the safety of the miners required to work or travel in the area. In
addition, management permitted production to resume with knowledge that
exposure to the hazardous ribs would increase.
Narrative at 2.
The Narrative essentially echoes the Mine Act’s statutory provision regarding flagrant
violations. 30 U.S.C. 820(b)(2). While reckless and repeated violations are within the ambit of
that section, in this instance the Secretary is asserting that the alleged violation is of the
“repeated” variety, and for that proposition the Secretary intends to draw upon Order Numbers
9036623, 9036625 and 9036922. Each of these Orders is in contest, contained within other
dockets, and none are final orders. Order Nos. 9036623 and 9036625 are at issue in Docket
LAKE 2016-140.3 Order No. 9036922 is at issue in Docket LAKE 2016-269. That latter docket
is set for a hearing commencing on May 31, 2017.4
Given the foregoing, Peabody requested that the Court preclude the Secretary from
relying on Order Nos. 9036623, 9036625, and 9036922 to support the flagrant designation of the
Order at issue here, as those Orders are not final. Motion at 6. However, in the alternative,
Peabody requested that the Court stay these proceedings “until Order Nos. 9036623, 9036625
and 9036922 are adjudicated and may become final.” Id.
In its Response in Opposition, the Secretary admits that he “intends to introduce evidence
of Respondent’s past violation history to support the flagrant and unwarrantable failure
designations, as well as the ‘high’ negligence determination, for this Order, [Order No.
9036925,]” and toward that end looks to Order Nos. 9036922, 9036623 and 9036625 as support
for its claims. Response at 2 (emphasis added).

2

The Special Assessment also asserts that the violation “resulted from the operator’s
unwarrantable failure to comply with mandatory standards and resulted from the operator’s high
negligence and [ ] [that] the cited standard is a ‘Rules to Live by’ standard.” Narrative Findings
at 1.
3

Docket LAKE 2016-140 has been stayed at the Secretary’s request, pending a Section
110(c) investigation related to Order No. 9036623.
4

Both Dockets LAKE 2016-140 and LAKE 2016-269 are assigned to this Court.

39 FMSHRC Page 795

The Secretary contends that Respondent’s “repeated” failure to eliminate the known “rib
hazard” meets the statutory criteria under both the “narrow” and “broad” applications for claims
of flagrant violations. Id. at 3. The “narrow,” application is a stand-alone approach under which a
flagrant violation can be established within the four corners of the cited violation itself, whereas
the latter approach looks to “the operator’s violation history to be taken into account in
determining whether its failure was ‘repeated’ in nature.” Id. Although the Secretary asserts that
it can establish the alleged violation in Order No. 9036925 under both applications, it contends
that it may prove a flagrant violation under the broad approach by “introduc[ing] evidence of the
conditions alleged in non-final Order Nos. 9036623, 9036625, and 9036922.” Id. (emphasis
added). The Secretary asserts it is “entitled” to offer evidence “using the operator’s violation
history” to prove a repeated flagrant violation. Id. at 5. And, while the Secretary admits that Part
100’s history of previous violations “stands for the proposition that only final orders will be
included in determining an operator’s history,” he then discordantly asserts it is “merely and
appropriately [ ] recognizing a history of repeated failures to make reasonable efforts to eliminate
a known violation to support a ‘repeated’ flagrant violation determination.” Id.
In the Court’s view, this line of thinking from the Secretary follows the “conviction and
sentencing, followed by a trial,” school of thought. In advocating such an approach, the Secretary
conflates the issuance of citation or order, with the establishment of the underlying violation.
The judicial process doesn’t work in that manner. A flagrant violation claim is among the more
serious allegations for a mine operator to face, and this observation guides the Court in
evaluating the present motion. Peabody contends, and the Court agrees, that “[i]t is inappropriate
and contrary to principles of due process to predicate a flagrant violation upon alleged violations
that are not final,” as they are presently only unproven assertions.5 Motion at 3. Further, while
the Secretary complains that “the Respondent should not be given a windfall ([as] the Secretary’s
ability to prove his allegation [would] be hampered significantly) because the cases are pending,”
it is the Secretary who acted to forestall the resolution of the Order Nos. 9036623, 9036625 from
Docket No. LAKE 2016-140, until it completes the Section 110(c) investigation related to those
matters.6 Response at 6 (emphasis added). Those Orders, it should be noted, were issued nearly
17 months ago, in October 2015.

5

Respondent also points out that the Part 100 Criteria and Procedures for Proposed
Assessment of Civil Penalties “provides that when considering history of previous violations for
a penalty determination, ‘[o]nly assessed violations that have been paid or finally adjudicated or
have become final Orders of the Commission will be included in determining an operator’s
history.’” Motion at 4, citing 30 C.F.R. §100.3(c). Therefore, considering these non-final orders
also runs afoul of the penalty computation.
6

The last of the three orders the Secretary would like to employ, Order No. 9036922,
which is within Docket No. LAKE 2016-0269, is also non-final and is among dockets scheduled
for hearing before this Court commencing in late May 2017.

39 FMSHRC Page 796

Accordingly, for the foregoing reasons, the Court GRANTS Peabody’s alternative
request, that this matter be stayed until Order Nos. 9036623, 9036625 and 9036922 are
adjudicated. While stayed, there is no reason that discovery should be held up for Order Nos.
9036623, 9036625 and 9036922. In that way, once the Section 110(c) investigation is concluded,
the hearing for those Orders may proceed expeditiously.
SO ORDERED.

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

Distribution:
Rachel L. Graeber, Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., Room
844, Chicago, IL 60604 graeber.rachel@dol.gov
Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222 awolfson@jacksonkelly.com

39 FMSHRC Page 797

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

March 27, 2017
DANIEL B. LOWE,
Complainant,

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

v.
VERIS GOLD USA, INC., and JERRITT
CANYON GOLD, LLC,
Respondents.

Docket No. WEST 2014-307-DM
WE-MD 14-03

MATTHEW A. VARADY,
Complainant,
v.
VERIS GOLD USA, INC., and JERRITT
CANYON GOLD, LLC,
Respondents.

Mine: Jerritt Canyon Mill
Mine ID: 26-01621

ORDER OF DISMISSAL
These cases are before me upon complaints of discrimination under section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) by Daniel Lowe and Matthew
Varady (“Complainants”) against Veris Gold USA, Inc. (“Veris”) and Jerritt Canyon Gold LLC
(“JCG”).
On March 20, 2017, this court issued an Order granting JCG’s Motion to Dismiss and
Denying the Complainants’ motion to add additional parties as successors in interest to Veris
Gold. The court found that while the Complainants established their discrimination claims
against Veris Gold, the Bankruptcy Court’s Sale Order and Enforcement Order barred their
claims against JCG and other entities as successors in interest to the sale of Veris’s assets. The
Order instructed the Complainants that should they choose to do so, they may obtain an order of
payment against Veris Gold by resubmitting claims for personal relief. If the Complainants
elected not to so, they were to inform the court, and the Court would immediately issue an Order
of Dismissal.

39 FMSHRC Page 798

On March 21, 2017, the Complainants notified the Court via email that they “d[id] not seek to
make claims against Veris Gold USA, Inc., at this time because to do so would be futile as there
are no assets left to make claims against due to the sale of Veris Gold USA, Inc. in accordance
with the Bankruptcy Order.”
Accordingly, IT IS ORDERED that these cases be DISMISSED. The Complainants
have 30 days from the date of this Order to appeal the March 20, 2017 decision to the
Commission for discretionary review.

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

39 FMSHRC Page 799

Distribution: (U.S. First Class Mail)
Cathy L. Reece, Fennemore Craig, P.C., 239 East Camelback Rd., Suite 600, Phoenix, AZ 85016
Mark Kaster, Dorsey & Whitney, 1500 South 6th Street, Minneapolis, MN 55402
Annette Jarvis, Dorsey & Whitney, 136 South Main Street, Suite 1000, Salt Lake City, UT
54101
Eric Sprott, 200 Bay Street Suite 2700, P.O. Box 27, Toronto, Ontario, Canada M5J 2J1
Matthew A. Varady, 701 South 5th Street, #6, Elko, NV 89801
Daniel Lowe, P.O. Box 2608, Elko, NV 89803
Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1,
Canada
Tevia Jeffries, Dentons Canada LLP, 250 Howe Street, 20th Fl., Vancouver, BC V6C 3R8,
Canada
Brad J. Mantel, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite
401, Arlington, VA 22202
Benjamin R. Botts, Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3-700,
San Francisco, CA 94103
W. Christian Schumann, Office of the Solicitor, U.S. Department of Labor, 201 12th Street
South, Suite 401, Arlington, VA 22202

39 FMSHRC Page 800

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

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2015-909-M

v.
VERIS GOLD USA, INC., and its
Successors,
Respondent.

Mine: Jerritt Canyon Mill
Mine ID: 26-01621
ORDER OF DISMISSAL

This case is before me upon a petition for assessment of Civil Penalty pursuant to the
Federal Mine Safety and Health Act, 30 U.S.C. §§ 801 et seq. and 29 C.F.R. § 2700.28. Daniel
Lowe and Matthew Varady (“Complainants”) filed discrimination complaints against Veris Gold
(“Veris”) pursuant to section 105(c) (3). In an order dated September 2, 2015, the presiding ALJ
found Veris Gold liable for discrimination against Varady. The ALJ noted that Veris had
previously filed a petition for Bankruptcy, but nonetheless instructed the Secretary to assess a
civil penalty against Veris. The Secretary filed its position on September 11, 2015. The presiding
ALJ then issued a decision on October 15, 2015, finding Veris Gold liable for discrimination
against Lowe and instructed the Secretary to assess a civil penalty in that docket as well. On
December 23, 2015, however, the Secretary withdrew the petition for civil penalty in Varady’s
case and filed a Motion to Dismiss the Dockets.1
On March 20, 2017, this court entered an Order granting JCG’s motion to dismiss the
Complainants’ successorship claims and denied the Complainants’ motion to add other affiliates
of Veris as successors. The court explained that although the Complainants established their
claims against Veris Gold, the Sale and Enforcement Orders issued by the Bankruptcy Court
foreclosed their pursuit of successorship liability against Jerritt Canyon Gold, LLC, (“JCG”) the
purchaser of certain Veris Gold assets, and its other affiliates. The Order also instructed the
Complainants that, should they wish to enter a claim against Veris Gold, they were to resubmit
their claims for personal relief. On March 21, 2017, the Complainants informed the court via
email that they did not wish to obtain orders against Veris because the company had been

1

Both Varady and Lowe are in the same position regarding the bankruptcy issue in that
findings of discrimination were made after the bankruptcy sale order had been issued. Therefore,
my order dismissing any penalty docket or a potential for one shall apply to Lowe’s case.
Specifically, I find the Secretary’s motion to dismiss the Varady case applicable to the Lowe
docket as well.

39 FMSHRC Page 801

liquidated and no longer had assets to pay their claims. Pursuant to the terms of that Order, this
court dismissed the cases in a separate order dated today.
In light of the March 20, 2017 Order, the Secretary’s pursuit of a civil penalty against
Veris is also futile. Veris Gold has been liquidated and no longer possesses assets to pay off its
creditors, and the Bankruptcy Court’s Sale Order expressly prohibits pursuit of successorship
liability claims.
Accordingly, the Secretary’s Motion for dismissal in the Varady case is hereby
GRANTED and applied to the Lowe case as well. IT IS ORDERED that this penalty docket be
DISMISSED.

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

39 FMSHRC Page 802

Distribution: (U.S. First Class Mail)
Cathy L. Reece, Fennemore Craig, P.C., 239 East Camelback Rd., Suite 600, Phoenix, AZ 85016
Mark Kaster, Dorsey & Whitney, 1500 South 6th Street, Minneapolis, MN 55402
Annette Jarvis, Dorsey & Whitney, 136 South Main Street, Suite 1000, Salt Lake City, UT
54101
Eric Sprott, 200 Bay Street Suite 2700, P.O. Box 27, Toronto, Ontario, Canada M5J 2J1
Matthew A. Varady, 701 South 5th Street, #6, Elko, NV 89801
Daniel Lowe, P.O. Box 2608, Elko, NV 89803
Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1,
Canada
Tevia Jeffries, Dentons Canada LLP, 250 Howe Street, 20th Fl., Vancouver, BC V6C 3R8,
Canada
Brad J. Mantel, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite
401, Arlington, VA 22202
Benjamin R. Botts, Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3-700,
San Francisco, CA 94103
W. Christian Schumann, Office of the Solicitor, U.S. Department of Labor, 201 12th Street
South, Suite 401, Arlington, VA 22202
Bruce L. Brown, Office of the Solicitor, U.S. Department of Labor, MSHA, 300 Fifth Ave, Suite
1120, Seattle, WA 98104

39 FMSHRC Page 803

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

March 28, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2015-686
A.C. No. 11-03189-390047
Docket No. LAKE 2016-55
A.C. No. 11-03189-394304

M-CLASS MINING, INC.,
Respondent

Mine: MC #1

M-CLASS MINING, INC.,
Contestant

CONTEST PROCEEDINGS

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

Docket No. LAKE 2015-186-R
Order No. 9033167; 12/05/2014
Docket No. LAKE 2015-185-R
Order No. 9033166; 12/05/2014
Mine: MC #1
ORDER

Before:

Judge Feldman

The captioned consolidated civil penalty and contest proceedings are before me upon
petitions for assessment of civil penalty filed pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977 (“Mine Act”). 30 U.S.C. § 815(d). The Secretary of Labor seeks
to impose a total civil penalty of $133,000.00 for 104(d)(2) Order Nos. 9033166 and 9033167,
which allege M-Class Mining, Inc.’s (“M-Class”) failure to timely withdraw miners from a
working section after the malfunction of a ventilation fan, in violation of 30 C.F.R. §
75.313(a)(3) and 30 C.F.R. § 75.313(c)(1), respectively. These orders were issued by the Mine
Safety and Health Administration (“MSHA”) on December 5, 2014.
On April 27, 2016, Docket Nos. LAKE 2015-686 and LAKE 2015-185-R were stayed
based on the parties’ representation that the Secretary had initiated an investigation to determine
whether to initiate a personal liability case pursuant to the provisions of section 110(c) of the
Mine Act. The stay was to be lifted upon completion of the Secretary’s investigation.

39 FMSHRC Page 804

Given the Secretary’s failure to complete his section 110(c) investigation during the six
months following the issuance of the stay, on September 14, 2016, an order was issued requiring
the Secretary to advise, on or before November 10, 2016, whether he had initiated a 110(c)
proceeding for consolidation, or alternatively, whether he had declined to bring any relevant
110(c) actions. Thereafter, the Secretary moved to consolidate the captioned civil penalty matters
in Docket Nos. LAKE 2015-686 and LAKE 2016-55 with the relevant contest matters in Docket
Nos. LAKE 2015-185-R and LAKE 2015-186-R. The captioned matters were consolidated
pursuant to the Secretary’s request on December 12, 2016, at which time the Secretary was
granted an extension, until January 25, 2017, to comply with the September 14 order.
As the Secretary failed to comply with the January 25, 2017, deadline, on February 8,
2017, the Secretary was Ordered to Show Cause why the captioned matters should not be
dismissed for a failure to prosecute. On February 9, 2017, the Secretary responded, asserting that
he had failed to comply with the January 25 deadline “because the Secretary had neither
‘initiated a relevant 110(c) proceeding’ nor had the Secretary ‘declined to bring any relevant
110(c) actions.’” The Secretary further requested that the stay remain in effect pending the
ongoing 110(c) investigations.
The reasonable time period for filing a section 110(c) action has been previously
addressed in a Commission proceeding:
Section 105(a) of the Act provides that “[i]f, after an inspection or investigation,
the Secretary issues a citation or order under section 104, he shall, within a
reasonable time after the termination of such inspection or investigation, notify
the operator … of the civil penalty proposed to be assessed … for the violation
cited ….” Section 110(c) is silent regarding when an individual respondent must
be notified of a proposed penalty assessment. However, since penalty assessments
against individuals brought under § 110(c) arise from the same inspections as
penalty assessments against operators, it would logically follow that the
reasonable time requirement [referred to in] § 105(a) should apply to penalty
assessments brought under § 110(c).
Brinson, et al., employed by Kentucky-Tennessee Clay Co., 35 FMSHRC 1463, 1465 (May 2013)
(ALJ Tureck) (citations omitted). Thus, it has been held that the provisions of section 105(a), and
its apparent applicability to section 110(c) cases, require the Secretary to file a petition for
assessment of civil penalty within a “reasonable time” after termination of an investigation.
However, the Secretary has identified 18 months as the operative reasonable time period for
filing civil penalty petitions in 110(c) cases, computed from the date of the subject citation or
order, which in this case is December 5, 2014, rather than the date of the completion of the
110(c) investigation. See I MSHA, U.S. Dep’t of Labor, Program Policy Manual, § 110(c)
(2012).

39 FMSHRC Page 805

Specifically, MSHA’s Program Policy Manual provides:
Investigative timeframes have been established to help ensure the timely
assessment of civil penalties against corporate directors, officers, and agents.
Normally, such assessments will be issued within 18 months from the date of
issuance of the subject citation or order. However, if the 18 month timeframe is
exceeded, [the Compliance and Investigation office (“TCIO”)] will review the
case and decide whether to refer it to the Office of Special Assessments for
penalty proposal. In such cases, the referral memorandum to the Office of Special
Assessments will be signed by the Administrator.
Id. (emphasis added).
I recognize that the Secretary’s obligation to initiate a 110(c) proceeding within a
reasonable period of time is not jurisdictional. Sec’y of Labor v. Twentymile Coal Co., 411 F.3d
256, 261 (D.C. Cir. 2005) (holding that the “reasonable time” provision for filing petitions for
civil penalty in the Mine Act is intended to “spur the Secretary to action,” rather than to confer
rights on litigants that will limit the scope of the Secretary’s authority). However, the Secretary’s
discretion to initiate 110(c) proceedings in a timely manner is not unfettered. Here,
approximately 27 months have passed since the issuance of the subject violations during which
time witnesses may have become unavailable and memories may have faded. However, I will
reluctantly provide the Secretary with an additional reasonable period of time to complete his
investigation.
ORDER
In view of the above, IT IS ORDERED that the Secretary must initiate, on or before
August 31, 2017 (32 months after the issuance of the underlying citation), a relevant 110(c)
proceeding, or advise the undersigned that he has declined to do so. In furtherance of the
efficient utilization of the Commission’s resources,1 should the Secretary fail to meet this
deadline, I will entertain a motion to dismiss the captioned proceedings against M-Class Mining,
Inc., for failure to prosecute.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

1

The consolidation of any relevant 110(c) proceeding with the captioned civil penalty
proceedings is an essential means of avoiding wasteful and duplicative adjudication. For the
principle of collateral estoppel would not preclude a 110(c) litigant’s right to a de novo 110(c)
hearing despite a prior adjudication of the civil penalty proceeding brought against the mine
operator.

39 FMSHRC Page 806

Distribution: (Regular and Certified Mail)
Rachel L. Graeber, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn
Street, Room 844, Chicago, IL 60604
Eric Silkwood, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701, Charleston, WV 25301
/acp

39 FMSHRC Page 807

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

March 30, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JEFFREY PAPPAS,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2016-264-DM
WE MD 16-02

v.
CALPORTLAND COMPANY, and
RIVERSIDE CEMENT COMPANY,
Respondents.

Mine ID 04-00011
Mine: Oro Grande Quarry

ORDER DENYING MOTION TO EXCLUDE WITNESSES
AND
ORDER DENYING MOTION FOR SANCTIONS
This case is before me upon a complaint of discrimination filed by the Secretary of Labor
(“Secretary”), on behalf of Jeffrey Pappas against CalPortland Company (“CalPortland”) and
Riverside Cement Company (“Riverside” or “RCC”), pursuant to section 105(c)(2) of the
Federal Mine Safety and Health Review Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2). Chief
Administrative Law Judge Robert J. Lesnick assigned the matter to me on March 11, 2016. On
April 14, 2016, I issued a Notice of Hearing, which set this matter for hearing and provided
guidelines for discovery. I held a hearing on December 6–9, 2016, in San Bernardino, CA.
Four days before the hearing on December 2, 2016, the Secretary filed a Motion in
Limine to Exclude Riverside Cement Company Witnesses. Riverside filed a timely response on
December 16, 2016, after I extended the filing deadline at the hearing. Additionally, the
Secretary filed a Motion for Sanctions for Spoliation of Evidence against CalPortland on
December 2, 2016. CalPortland timely filed a response on December 5, 2016. At the beginning
of the hearing, the parties presented brief arguments on the two motions. (Tr. 12:4–16:24, 19:8–
21:2.) I informed the parties that I would issue my rulings on the two motions with the decision.
(Tr. 16:25–17:2, 21:17–21.) Given the number of issues and volume of the record present in this
matter, I now issue this separate order.
For the reasons stated below, the Secretary’s Motion in Limine to Exclude Riverside
Cement Company Witnesses is hereby DENIED, and the Secretary’s Motion for Sanctions for
Spoliation of Evidence against CalPortland is hereby DENIED.
I. ORDER DENYING MOTION TO EXCLUDE WITNESSES
The Secretary’s motion in limine seeks to exclude testimony by Jamie Ambrose and
David Salzborn because the Secretary was not made aware that Riverside intended to present

39 FMSHRC Page 808

their testimony until they were listed in Riverside’s prehearing statement on November 22, 2016.
(Mot. to Exclude at 1–2; Tr. 12:4–13:2.) The Secretary asserts that during discovery Riverside
represented it did not have access to Ambrose and Salzborn when answering interrogatories and
then designated a company representative who was unable to answer questions regarding
Pappas’s work history during a Fed. R. Civ. P. 30(b)(6) deposition. (Mot. to Exclude at 2–7; Tr.
12:4–13:2.) The Secretary states that had he known Riverside intended to present the testimony
of Ambrose and Salzborn, the Secretary could have moved to compel answers regarding their
testimony during discovery, but did not have the opportunity to do so. (Mot. to Exclude at 5.)
The Secretary asserts that the testimony should be excluded because of Riverside’s late
disclosure. (Id. at 5–6.)
In response, Riverside explains that Ambrose and Salzborn are necessary rebuttal
witnesses. (RCC Resp. at 1, 8.) Riverside argues that it never claimed it did not have access to
these individuals, but merely answered that they were beyond Riverside’s control because
Ambrose and Salzborn are no longer Riverside employees. (RCC Resp. at 2; Tr. 13:17–2.)
Riverside notes that the Secretary was well-aware of the two witnesses’ identities, but never
requested to depose either witness. (RCC Resp. at 2–3.) Furthermore, Riverside argues that the
Secretary failed to timely express his dissatisfaction regarding Riverside’s discovery answers.
(Id. at 3–6; Tr. 13:12–16.)
Commission Judges have broad authority to regulate the conduct of parties in
proceedings before them. 29 C.F.R. § 2700.55; Mark Gray v. North Fork Coal Corp., 35
FMSHRC 2349, 2359 (Aug. 2013). Excluding evidence is an extreme sanction not to be imposed
absent a showing of willful deception or flagrant disregard. 35 FMSHRC at 2360 (citations
omitted). Here, neither witness had been employed by Riverside since September 30, 2016, so
Riverside’s representations were accurate. Further, the Secretary had ample opportunity spanning
over a year to depose Ambrose and Salzborn if he so chose. Indeed, the Secretary has long
known about Ambrose and Salzborn’s identities, which came up in MSHA Special Investigator
Kyle Jackson’s interviews in November 2015. (Tr. 514:9–23, 530:3–19; Exs. S–17, S–18, S–22.)
Indeed, counsel for the Secretary clearly knew of these witnesses and their potential importance
to this case from the testimony given at the Temporary Reinstatement hearing I held in January
2016; and, I set the December 2016 merits hearing in April 2016 providing ample time for
discovery. Moreover, Ambrose is in fact employed by CalPortland, another party to this case
from which the Secretary could have requested the sought-after information. Because the
Secretary’s motion fails to show he made any attempt to depose or obtain contact information for
either witness, I cannot conclude that Riverside demonstrated willful deception or flagrant
disregard to the Secretary’s discovery requests.
Accordingly, the Secretary’s motion to exclude these witnesses is DENIED.
II. ORDER DENYING MOTION FOR SANCTIONS
The Secretary’s motion for sanctions seeks an adverse inference against CalPortland as a
remedy for CalPortland’s alleged spoliation. (Mot. for Sanctions at 1–6.) On October 31, 2016,
just five weeks before hearing, the Secretary requested from CalPortland all the application
materials for miners it did not hire on October 1, 2015, which CalPortland could not provide. (Id.

39 FMSHRC Page 809

at 4; Daquiz Decl. at 2.) The Secretary now asks me to draw an adverse inference that the
missing applications demonstrate that CalPortland selectively denied employment to miners who
had engaged in protected activity under the Mine Act, rebutting CalPortland’s assertion that the
unhired miners performed worse during the application process. (Id. at 3.)
In response, CalPortland argues that (1) the applications are not relevant, (2) the
Secretary received information regarding applicants CalPortland did not hire in its initial 2015
investigation, and (3) CalPortland diligently searched for the materials in November 2016 when
the Secretary requested additional information regarding the applicants not hired, but the
applications could not be found. (CalPortland Mem. in Resp. at 1–22.) CalPortland admits that
the applications were destroyed, though inadvertently and unintentionally. (Id. at 13–14.)
A party is under a duty to preserve evidence in its possession when the party knows that
the evidence is potentially relevant to litigation before the evidence was destroyed. Leon v. IDX
Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006). If a duty exists, the prejudice suffered by the
party seeking sanctions must be considered before determining the appropriate sanction. See id.
at 958–960 (noting the risk of prejudice must be considered before determining whether
dismissal is an available sanction). When a party does not preserve evidence in its control, a
judge can draw an adverse inference that the evidence destroyed would have been unfavorable to
the destroying party. See IO Coal Co., 31 FMSHRC 1346, 1359 & n.11 (Dec. 2009).
Here, CalPortland provided the Secretary a sample of applications of miner applicants
who were not hired during MSHA’s initial November 2015 investigation. (Mot. for Sanctions at
4.) Thereafter, in July 2016, the Secretary requested “all documents related to the hiring of all
personnel and employees at the Mine” during discovery; but due to the poor drafting of the
Secretary’s request (which referred to “all personnel and employees”), CalPortland believed it
only needed to produce the applications of hired miners, not unhired miner applicants. (Id.;
Daquiz Decl. at Ex. A, B; Lundgren Decl. at Ex. 1–4.) Not until October 31, 2016, did the
Secretary clarify that the request was to include the applications of unhired miner applicants.
(Daquiz Decl. at 2; Lundgren Decl. at Ex. 1–2.) In November, CalPortland attempted to locate
those applications but discovered the materials must have been destroyed. (CalPortland Mem. in
Resp. at 13–14.)
Because the applications of miners who were not hired by CalPortland were subject to
MSHA’s initial investigation in November 2015, I find that CalPortland knew it had a duty to
preserve those applications in anticipation of litigation. However, I do not find that CalPortland
intentionally destroyed those applications in light of CalPortland’s cooperation in producing the
applications during MSHA’s initial request and its effort to locate the documents after the
Secretary’s later request. Moreover, because the Secretary had already received a sample of
those applications, I determine that the prejudice suffered by the Secretary does not warrant the
severe sanctions requested.

39 FMSHRC Page 810

Accordingly, the Secretary’s motion for sanctions against CalPortland is DENIED.
III. ORDER
Based on the reasons above, the Secretary’s Motion to Exclude Witnesses and the
Secretary’s Motion for Sanctions are hereby DENIED.

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

Distribution: (Via Electronic Mail & U.S. Mail)
Abigail Daquiz, Esq., U.S. Department of Labor, Office of the Solicitor, 300 Fifth Avenue,
Suite 1120, Seattle, WA 98104-2397
(daquiz.abigail@dol.gov)
Sonya P. Shao, Esq., U.S. Department of Labor, Office of the Solicitor, 350 South Figueroa
Street, Suite 370, Los Angeles, CA 90071-1202
(shao.sonya.p@dol.gov)
Brian P. Lundgren, Esq., and Erik M. Laiho, Esq., Davis Grimm Payne & Marra, 701 Fifth
Avenue, Suite 4040, Seattle, WA 98104
(blundgren@davisgrimmpayne.com)
(elaiho@davisgrimmpayne.com)
Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202
(kjohnston@jacksonkelly.com)
Jeffrey Pappas, 12279 Merrod Way, Victorville, CA 92395-9774
(U.S. Mail Only)
/ivn

39 FMSHRC Page 811