January and February 2018
TABLE OF CONTENTS

COMMISSION DECISIONS
01-18-18

MACH MINING, LLC

LAKE 2014-0746

Page 1

02-02-18

KENTUCKY FUEL CORPORATION

KENT 2015-383

Page 28

02-08-18

SEC. OF LABOR O/B/O KEVIN
SHAFFER v. THE MARION
COUNTY COAL COMPANY

WEVA 2018-117-D

Page 39

COMMISSION ORDERS
02-15-18

WHITE COUNTY COAL, LLC

LAKE 2017-0148

Page 51

02-15-18

WILLITS COMPANY, INC.

WEST 2015-525-M

Page 52

ADMINISTRATIVE LAW JUDGE DECISIONS
01-11-18

SEC. OF LABOR O/B/O ANTHONY
VEGA v. SYAR INDUSTRIES, INC.

WEST 2018-0135DM

Page 55

01-11-18

SEC. OF LABOR O/B/O CARL
EBERT v. MARSHALL COUNTY
COAL CO.

WEVA 2016-565-D

Page 67

01-26-18

PEABODY MIDWEST MINING,
LLC

LAKE 2016-0232

Page 87

02-01-18

STAKER & PARSON COMPANIES

WEST 2017-134-M

Page 156

i

02-05-18

HANSON AGGREGATES
SOUTHEAST, LLC

SE 2017-0062

Page 168

02-07-18

GCC RIO GRANDE, INC.

WEST 2017-327-M

Page 174

02-20-18

PEABODY MIDWEST MINING,
LLC

LAKE 2016-0120

Page 182

ADMINISTRATIVE LAW JUDGE ORDERS
01-09-18

BLANCHARD MACHINERY
COMPANY

SE 2017-236-M

Page 207

01-09-18

CARTER MACHINERY CO INC

VA 2017-0104

Page 211

01-10-18

MICHAEL WILSON v.
ARMSTRONG COAL COMPANY,
INC.

KENT 2016-0319-D

Page 221

01-16-18

SEC. OF LABOR O/B/O KEVIN R.
SHAFFER v. THE MARION
COUNTY COAL COMPANY

WEVA 2018-117-D

Page 238

01-24-18

PEABODY TWENTYMILE MINING,
LLC

WEST 2017-553

Page 242

01-31-18

MARSHALL JUSTICE v.
ROCKWELL MINING, LLC

WEVA 2018-48-D

Page 245

02-22-18

ORIGINAL SIXTEEN TO ONE MINE WEST 2017-0546
INC

Page 257

ii

Review was granted in the following case during the months of January and February
2018:
Michael K. McNary v. Alcoa World Alumina, Inc., Docket No. CENT 2015-279 DM (Judge
Moran, December 21, 2017)

Review was denied in the following cases during the months of January and February
2018:
Thomas Lee Kremier v. Coeur Alaska, Inc., Docket No. WEST 2017-80 DM (Judge Bulluck,
November 29, 2017)
Secretary of Labor v. KenAmerican Resources, Inc., Docket No. KENT 2017-183 (Judge
McCarthy, December 19, 2017) (Interlocutory Review)

iii

COMMISSION DECISIONS

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

January 18, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2014-0746

MACH MINING, LLC
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY: Jordan, Young, and Cohen, Commissioners
This proceeding, which arises under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), involves two citations issued to Mach
Mining, LLC, by the Secretary of Labor’s Mine Safety and Health Administration (“MSHA”).
The first citation alleges that the operator violated 30 C.F.R. § 75.400 because loose coal had
accumulated along the side of the slope coal belt. The second citation alleges that Mach failed to
record the nature and location of the hazardous conditions along the slope coal belt in the mine’s
examination book as required by 30 C.F.R. § 75.363(b).
After a hearing on the citations, the Judge issued a written decision affirming both
violations1 and finding that the violations were significant and substantial (“S&S”)2 and the
result of Mach’s high negligence. 38 FMSHRC 2229 (Aug. 2016) (ALJ).
Mach filed a petition to review the Judge’s decision, which we granted. On review, Mach
contends that the Judge erred in affirming the S&S and high negligence designations associated
with the violation of section 75.400. Mach also asserts that the Judge erred in finding a violation
of section 75.363(b) and that it lacked notice of the Secretary’s interpretation of that safety
standard. In addition, Mach maintains that the Judge erred in finding the violation of section
75.363(b) to be S&S and the result of high negligence. For the reasons that follow, we affirm the
decision of the Judge.

1

Mach did not contest before the Judge that it violated section 75.400.

2

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

40 FMSHRC Page 1

I.
Factual and Procedural Background
The citations were issued at the Mach Number One Mine, an underground coal mine
located in Illinois. The citations concern the approximately 3,500 foot beltline known as the
“slope coal belt,” which runs down into the mine between a 12-foot wide travelway and a fourfoot wide walkway. The conveyor belt itself is about seven feet wide.
On July 14, 2014, sometime after 8:00 a.m., MSHA Inspector Bernard Reynolds and a
Mach foreman, Guy Webster, started to drive down the travelway to conduct a regular quarterly
inspection. Almost immediately upon their entrance, a miner approached the truck and informed
Webster of hazardous conditions near the slope belt. Inspector Reynolds left the vehicle and
walked to the belt, where he saw extensive accumulations of coal. He decided to walk the length
of the belt to check for additional problems. Along the way, he documented his observations,
noting that coal was generally more prevalent on the far side of the belt (along the walkway).3 He
observed six discrete locations where coal had piled in extensive enough quantities to contact the
belt and its component parts. These six locations totaled about 105 feet of beltline and involved
14 rollers contacting coal. Tr. 99-100.
Based on the quantity of coal he observed, Inspector Reynolds believed that the
accumulations had existed for several shifts. He also noted where a misaligned portion of the belt
had cut about one-eighth of an inch into a steel beam supporting the roof. The damage suggested
that the belt had been misaligned for several shifts. Tr. 78-79. Although Reynolds witnessed
approximately six miners shoveling coal at the top of the belt, the areas where he had seen coal
in contact with the belt were not being addressed at the time of the inspection.
Inspector Reynolds issued Citation No. 8450924 alleging a violation of 30 C.F.R. §
75.400, which provides that “loose coal, and other combustible materials, shall be cleaned up and
not be permitted to accumulate . . . .” Reynolds designated the violation as S&S and resulting
from high negligence. After the issuance of the citation, a total of 27 miners were dispatched to
address the beltline. Tr. 107-08.

3

Specifically, at 100 feet inby Inspector Reynolds observed accumulations measuring
about 12 inches deep. Tr. 65. At 200 feet, he observed coal measuring approximately 14 inches
deep and at 250 feet, about 16 inches. Tr. 66. At 570 feet, coal up to 30 inches deep was
contacting three idle rollers. Tr. 69-70, 72. From 650 feet to 1050 feet, accumulations were eight
to 20 inches deep. Tr. 79. In addition, there were three hot bottom roller brackets. Tr. 74. At
1100 feet, about 50 feet of the belt and five rollers were running in coal. Tr. 80. Reynolds
testified that he saw dust in the air near this location, which led him to believe that the area was
fairly dry. Tr. 82-84. From 1600 feet to approximately 2000 feet, 15 feet of belt and two rollers
were turning in coal. Tr. 87-88. From 2000 to 2200 feet, accumulations up to 30 inches deep
were contacting two rollers and ten feet of belt. Tr. 88. At 2300 feet, a roller and ten feet of belt
were turning in accumulations. Tr. 89. At the bottom portion of the belt accumulations ranged up
to 24 inches deep. Tr. 90.

40 FMSHRC Page 2

When Inspector Reynolds returned to the surface, he reviewed the mine’s examination
book, including the examiner’s records for each belt. Inspector Reynolds considered the most
recent notation for the slope coal belt — “needs cleaned - work in progress” — to be insufficient
to address the nature and location of the hazardous conditions that he recently observed.
Accordingly, he issued Citation No. 8450926, alleging a violation of the examination recording
requirements of 30 C.F.R. § 75.363(b). Reynolds designated the citation as S&S and resulting
from high negligence.
Earlier that morning, at around 6:00 a.m., David Adams had performed an examination
for Mach while driving up the travelway in a vehicle. He testified that he observed some coal
accumulated along both sides of the belt, but did not observe any coal in contact with the belt or
its components. Adams noted that the panel being mined at the time was very wet. As a result,
water would often accumulate on the belt, causing a large quantity of coal to spill off both sides
in a short period of time — a phenomenon he referred to as “washback.” 4 Tr. 227. He wrote the
subject recording in the examination book, and testified that the entire belt needed to be cleaned.
The mine manager, Shane Rorer, testified that he too drove the travelway earlier that morning,
around 7:15 a.m., and did not observe coal in contact with the belt. Tr. 340-42.
II.
Disposition
A. Citation No. 8450924 (The Accumulations Violation)
1. The Significant and Substantial Designation
a. Commission Case Law
The Commission has recognized that a violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., the Commission further explained:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard—that is, a measure of
danger to safety—contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;

4

Guy Webster likened the occurrence of a “washback” to the occurrence of “a small
tsunami.” Tr. 290, 300.

40 FMSHRC Page 3

and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir.
1988) (approving Mathies criteria).
Under the Commission’s Mathies test, it is the contribution of the violation at issue to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., 6
FMSHRC 1834, 1836 (Aug. 1984). In evaluating that contribution, it is assumed that normal
mining operations will continue. See U.S. Steel Mining Co., 6 FMSHRC 1573, 1574-75 (July
1984); see also U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The second step of
Mathies 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. Newtown Energy, Inc., 38 FMSHRC 2033, 2037-38 (Aug.
2016).5
In cases that involve violations which may contribute to the hazard of an ignition or
explosion, the likelihood of an injury resulting depends on the existence of a “confluence of
factors” that could trigger the ignition or explosion. McCoy Elkhorn Coal Corp., 36 FMSHRC
1987, 1992 (Aug. 2014). Factors include any potential ignition sources, the presence or potential
for presence of methane, float coal dust accumulations, loose coal or other ignitable substance,
and the types of equipment operating in the area. See Utah Power & Light Co., Mining Div., 12
FMSHRC 965, 971 (May 1990); Texasgulf, 10 FMSHRC 498, 501-03 (Apr. 1988).
b. The Judge’s Decision
The Judge concluded that the Secretary had demonstrated that a confluence of factors
was present and thus the accumulations violation was S&S. Specifically, the Judge found that the
second step of Mathies was satisfied in that the violation contributed to the hazard of a belt fire.6
Coal was in contact with the belt and rollers in numerous locations, which was an ignition
source. 38 FMSHRC at 2242. Furthermore, three of the bottom roller brackets were hot to the
touch. Id. The Judge recognized that wet coal remains a danger because frictional heat sources,
like the rollers rolling in coal and the “frozen” rollers at issue, can cause the coal to dry out. 38
FMSHRC at 2242 (citing Consolidation Coal Co., 35 FMSHRC 2326, 2329-30 (Aug. 2013)
(citations omitted)); Tr. 60. In addition, the mine was on a five-day spot inspection because of
5

Commissioners Jordan and Cohen reiterate their belief that the proper standard of proof
under Mathies Step 2 is an “at least somewhat likely” standard. See Newtown, 38 FMSHRC at
2051-53 (Comm’rs Jordan and Cohen concurring in part and dissenting in part). In contrast,
Commissioner Young believes that Newtown was correctly decided.
6

The Judge repeatedly stated that the Secretary demonstrated that “the accumulations
were reasonably likely to ignite” and, accordingly, concluded that the violation contributed to the
hazard of a belt fire. 38 FMSHRC at 2242; see also id. at 2243 (“ignition would likely result”)
(“the reasonable likelihood of an ignition risk remained”). Accordingly, his Mathies Step 2
analysis was consistent with Newtown, 38 FMSHRC at 2033.

40 FMSHRC Page 4

the mine’s excessive liberation of methane and, therefore, accumulations in contact with the belt
represented a “dangerous combination that was reasonably likely to cause an ignition.” 38
FMSHRC at 2243.
The Judge further concluded that a belt fire was reasonably likely to result in serious
injuries such as smoke inhalation or burns. The Judge rejected the operator’s claim that its
redundant and required safety measures would prevent any serious injury. See Buck Creek Coal
v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (treating redundant mandatory safety protections
as a defense to S&S findings would lead to the anomalous result that every protection would
have to be nonfunctional before a S&S finding could be made).
c. Analysis
On review, Mach contends that the Judge’s decision lacks the support of substantial
evidence and that the Judge’s analysis regarding the confluence of factors is flawed. For the
reasons that follow, we conclude that the Judge’s decision is supported by substantial evidence7
and that Mach’s other arguments lack merit.
We find that the record is sufficient to demonstrate that the coal accumulations here
substantially contributed to the hazard of a belt fire and reasonably serious injuries.8 It is
undisputed that the coal that accumulated around the beltline was extensive at the time of the
inspection and was in contact with the belt and 14 rollers at six locations, totaling 105 feet of
beltline. Three of the rollers contacting coal were hot to the touch. The Judge credited Inspector
Reynolds’ testimony that an ignition would likely result if the accumulations were left unabated
and in contact with ignition sources. The likelihood of an ignition was compounded because the
mine had a history of methane liberation. Although the coal was wet at the time of inspection,
friction through contact with the beltline can cause wet coal to dry. Tr. 70, 100. In fact, the
inspector testified that he observed visible coal dust in the air in at least one location (around the
1000-foot mark), which indicated that the coal was fairly dry there. At least six miners were
working along the slope belt at the time of the inspection, and would be at risk of injuries
associated with a belt fire such as smoke inhalation or burns.
We also reject Mach’s contentions that the Judge’s analysis was otherwise flawed. For
instance, Mach argues that the Judge failed to consider that the loose coal was intermixed with a
large amount of rock and, therefore, it was unlikely that the coal would ignite. However, Mach
7

The Commission requires that “[a] judge must analyze and weigh the relevant testimony
of record, make appropriate findings, and explain the reasons for his decision.” Mid-Continent
Res., Inc., 16 FMSHRC 1218, 1222 (Jun. 1994). When reviewing a Judge’s factual
determinations, the Commission is bound by the terms of the Mine Act to apply the substantial
evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant
evidence as a reasonable mind might accept as adequate to support [the Judge's] conclusion.”’
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
8

Acting Chairman Althen joins the majority in concluding that the Judge’s decision on
S&S is supported by substantial evidence.

40 FMSHRC Page 5

previously did not contest that the material that fell from the beltline was combustible and thus
prohibited from accumulating in active workings. M. Post-Hearing Br. at 15. Therefore, Mach
has conceded that although the coal was mixed with some rock, it was capable of igniting in
conditions which could propagate a fire or explosion.
Mach further argues that because the coal that was present was wet, the likelihood of a
fire was further reduced. Yet, the Commission has long held that “wet coal accumulations pose a
significant danger in underground coal mines.” Consolidation Coal Co., 35 FMSHRC at 232930; Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21 (Aug. 1985) (rejecting the
argument that wet coal does not pose a dangerous combustible risk because wet coal can dry out
and fuel or propagate a fire or explosion). Accordingly, wet coal accumulations in the presence
of ignition sources may be found to be a S&S violation. See Mid-Continent Res. Inc., 16
FMSHRC 1226, 1230-32 (June 1994) (affirming a S&S determination and holding that
“accumulations of damp or wet coal, if not cleaned up, can dry out and ignite”). Mach has
ignored this established Commission jurisprudence in its argument that the Judge erred. We find
that the Judge’s analysis was consistent with the Commission’s approach to wet coal
accumulations.9
Mach also contends that the Judge erred when he failed to assume that the conditions
would be soon addressed because miners were shoveling in the area. We disagree. An S&S
determination must be made at the time the citation is issued “without any assumptions as to
abatement”' and in the context of “continued normal mining operations.” Paramont Coal Co., 37
FMSRHC 981, 985 (May 2015); U.S. Steel Mining Co., 6 FMSHRC at 1574.
We recognize that a violation of section 75.400 may not contribute to the hazard of a belt
fire if active abatement of those accumulations is underway. See generally Knox Creek Coal Co.
v. Sec’y of Labor, 811 F.3d 148, 165-66 (4th Cir. 2016). However, the evidence in this case
clearly establishes that the miners shoveling the belt at the time of the inspection were but a
small fraction of the manpower required to effectively abate the violation. No more than ten
miners were shoveling the belt when the inspector arrived. It took 27 miners up to three days to
completely abate the violative conditions. 38 FMSHRC at 2249 (citing Sec’y Ex. 2). Therefore,
the miners shoveling the belt at the time of the inspection would not and could not have abated
the violation on their own. Given the paucity of the efforts underway at the time of the
inspection, as compared to the abatement efforts ultimately required, substantial evidence
supports the Judge’s finding.
Mach maintains that due to the location of the accumulations and the strength of the
ventilation system, smoke from a belt fire would be carried out of the mine and miners would not
be exposed to the associated hazards. This argument has no merit. The slope coal belt is
proximate to a designated escapeway. Therefore, in the event of a fire, miners working along the
slope coal belt or exiting via that escapeway would be exposed to smoke.

9

Further, some of the coal was indeed dry, as shown by the inspector’s testimony that he
saw coal dust in the air at the transfer point of the belt. Tr. 81-85.

40 FMSHRC Page 6

Finally, Mach asserts that the Judge’s finding that the mine’s history of methane
liberation compounded the risk of ignition is not supported by substantial evidence. We conclude
that the recurrent five day spot inspections conducted by MSHA pursuant to 30 U.S.C. § 813(i)10
support a finding that the mine is at heightened risk for dangerous methane liberation.
Accordingly, for the aforementioned reasons, we affirm the Judge’s decision that the
violation was S&S.
2. High Negligence
a. Commission Case Law
The Commission evaluates the degree of negligence associated with a violation using “a
traditional negligence analysis.” Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264
(D.C. Cir. 2016) (citation omitted). The operator has a duty of care to avoid violations of
mandatory standards, and the failure to do so can lead to a finding of negligence when a violation
occurs. A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). To determine whether an operator
has met its duty of care, the Commission considers what actions a reasonably prudent person
who is familiar with the mining industry and the protective purpose of the regulation would have
taken under the same circumstances. Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015).
High negligence “suggests an aggravated lack of care that is more than ordinary negligence” and
“an operator’s intentional violation constitutes high negligence for penalty purposes.” Topper
Coal Co., 20 FMSHRC 344, 350 (Apr. 1998) (internal quotation omitted).
b. The Judge’s Decision
The Judge concluded that Mach was highly negligent. Mach “failed to address serious
and largely self-imposed accumulations hazards that developed over the course of several shifts.”
38 FMSHRC at 2245. The Judge credited Inspector Reynolds’ testimony that the extent of the
accumulations should have led mine examiners and managers to recognize and ameliorate the
problem. Id. at 2244.
The Judge determined that Mach failed to take adequate measures to keep the area clear.
The crew of miners assigned to shovel the belt was clearly insufficient. Furthermore, Mach was
using the belt to dewater the mining face and, as a result, coal frequently washed off the steeply
inclined slope coal belt. Despite the foreseeability of these “washbacks,” Mach failed to take
actions that were consistent with those of a reasonably prudent mine operator to address the
situation. Mach finally installed an adequate dewatering system about two months after the
issuance of the subject citation. The Judge characterized this action as “belated,” as Mach was
aware of “washbacks” along the slope belt since at least 2011. See Mach Mining, LLC, 33
10

“Whenever the Secretary finds that a coal . . . mine liberates excessive quantities of
methane . . . or that a methane or other gas ignition or explosion has occurred in such mine which
resulted in death or serious injury at any time during the previous five years, or that there exists
in such mine some other especially hazardous condition, he shall provide a minimum of one spot
inspection by his authorized representative of all or part of such mine during every five working
days at irregular intervals.” 30 U.S.C. § 813(i).

40 FMSHRC Page 7

FMSHRC 763, 769 (Mar. 2011) (ALJ). Furthermore, in the 15 months preceding the issuance of
the present citation, Mach had a history of 58 violations of section 75.400. Sec’y Ex. 1. The
Judge noted that the mine received yet another section 75.400 citation for the slope belt only two
weeks later (July 28). 38 FMSHRC at 2244. Based on the totality of the circumstances the Judge
concluded that Mach did not take measures consistent with those of a reasonably prudent mine
operator.
c. Analysis
We conclude that the Judge’s high negligence determination is supported by substantial
evidence. The operator had actual notice of a longstanding condition that produced violative and
potentially hazardous accumulations, and failed to take appropriate actions.11
Although Mach maintains that the Judge erred in concluding that the accumulations had
been present for several shifts, we find that the Judge appropriately exercised his discretion in
crediting the testimony of the inspector. 38 FMSHRC at 2246.12 In part, the Judge relied on the
depth of the cut into the steel beam to corroborate the inspector’s likely timeline of the
conditions. The Judge credited the testimony of Inspector Reynolds, corroborated by Mach
foreman Webster, that it would take at least 24 hours for the rubber belt rubbing into the steel Ibeam to cause a cut into the steel of one-eighth of an inch. Id. at 2233-34 n.10, 2246. While
Mach argues that the overwhelming majority of the coal accumulations occurred after 7:15 a.m.
(the time when the mine manager last drove the travelway), we, like the Judge, find it unlikely
that such extensive amounts of coal would have accumulated over the next hour, just prior to the
arrival of an MSHA inspector.
Mach also argues that the Judge erred in relying on a prior decision, Mach Mining, LLC,
33 FMSHRC 763 (Mar. 2011) (ALJ), to establish that the operator was on notice that the slope
belt was prone to accumulated coal as a result of “washbacks.” We disagree. The prior case
involved almost the exact same factual circumstances: At the same mine the slope coal belt had
been running in accumulations which occurred as a result of “washbacks.” The operator was
aware of the “washback” issue at this mine.
Mach also asserts that the Judge failed to explain how any of the noted prior citations
placed Mach on notice that greater efforts were necessary for compliance. We conclude that 58
violations in a 15-month period is enough to put a reasonable mine operator on notice that
greater efforts to comply with the standard were required.
Mach argues that the Judge erred in concluding that only about six miners were shoveling
the belt at the time of the inspection. Mach asserts that in addition to the five to seven miners
who Reynolds saw shoveling near the top of the slope belt, Reynolds also encountered another
11

Acting Chairman Althen joins the majority in affirming the decision of the Judge with
respect to negligence.
12

The Commission has recognized that a Judge’s credibility determinations are entitled
to great weight and may not be overturned lightly. Farmer v. Island Creek Coal Co., 14
FMSHRC 1537, 1541 (Sep. 1992); Penn Allegh Coal Co., 3 FMSRHC 2767, 2770 (Dec. 1981).

40 FMSHRC Page 8

miner at the 570 foot mark. Additionally, Webster saw another two or three miners at 2700 to
2900 feet, and another two or three miners at the bottom. PDR at 3, 27; Tr. 289. But even if there
were more than six miners shoveling along the belt at the time of the inspection, none of these
miners (except possibly for one at 570 feet) were shoveling in the six separate locations — the
most hazardous locations — where Reynolds encountered 14 rollers turning in coal. Tr. 69-89,
100. In any event, the number of miners who Mach had shoveling at the time of the inspection
was grossly inadequate given that it took 27 miners up to three days to completely clean up the
accumulations. Tr. 107-08; Sec’y Ex. 2.
Mach additionally contends that the Judge erred in finding that a reasonably prudent mine
operator would have installed an alternative dewatering system earlier. We conclude that the
Judge’s determination is grounded in the facts and is reasonable. The slope coal belt had
experienced problems with coal accumulations caused by “washbacks” since at least 2011. The
panel currently being mined was particularly wet. Parker Phipps, the general manager, testified
that the existing dewatering system was insufficient to control the water, which was constantly
transferred to the belt. Tr. 385. Mach maintains that it would have been unsafe and impractical to
shut the longwall down to install a new dewatering system. Yet, Phipps himself testified that a
new dewatering system was installed over a long weekend (while the longwall was shut down),
and that the new system virtually eliminated the “washback” problem. Tr. 389.
Mach asserts that the Judge erred when he considered that the mine received an
additional citation alleging a violation of section 75.400 for the slope coal belt two weeks later
(July 28) as part of his negligence analysis. We agree with Mach on this point. The July 28
citation is irrelevant for purposes of the operator’s negligence on July 14. While a history of
violations of a safety standard can place an operator on notice that a greater effort at compliance
is necessary (see Big Ridge, Inc., 35 FMSHRC 1525, 1536 (Jun. 2013)), the Commission does
not consider the particular factual circumstances of a subsequently issued citation when
evaluating negligence for past conduct. On balance, however, we consider this error to be
harmless. The Judge’s erroneous consideration of the July 28 citation does not detract from the
weight of the other evidence.
Accordingly, we affirm the Judge’s high negligence decision as supported by substantial
evidence. The water problems that contributed to the coal accumulations were foreseeable, yet
Mach took inadequate measures to ensure that the requirements of section 75.400 were complied
with.

40 FMSHRC Page 9

B. Citation No. 8450926 (The On-Shift Recording Violation)
1. The Violation
The Judge ruled that Mach failed to comply with the recording requirements of section
75.363(b)13 which provides that the operator must identify “the nature and location of the
hazardous condition . . . .” 38 FMSHRC at 2249. The Judge concluded that Adams’ recording —
“slope [belt] - needs cleaned - work in progress” — failed to convey the nature of the hazardous
conditions that were present, such as accumulations contacting a potential ignition source like the
beltline, and their respective locations. Id. at 2247. The Judge also concluded that Adams’ vague
notation undermined the purpose of the safety standard, which includes the right of miners to
review examination books to discover the nature and location of underground hazards. Id. at
2250.
Mach contends that its recording complied with the standard. It maintains that there is no
additional requirement in the language of the standard requiring any degree of specificity.
We categorically reject this argument and agree with the Judge that Mach violated the
standard. Section 75.363(b) requires an examiner to record “the nature and location of the
hazardous condition[s].” At a minimum, the examination notation at issue — “slope [belt] needs cleaned - work in progress” — fails to comply with the standard’s mandate to state the
“nature” of the hazards and where these hazards are located along the beltline.
There is no reference in the examination book to the multiple locations where coal was
contacting ignition sources. Over the 3,500 feet of the slope belt, extensive accumulations of coal
were in contact with the belt in six separate locations for a total distance of 105 feet, which
included 14 rollers, three of which were hot to the touch. It is well established that coal in contact
with an ignition source is a particularly serious hazard. In addition, the belt was misaligned and
was contacting a steel I-beam. 38 FMSHRC 2233-34, 2242. There is no mention of this hazard in
the report.
The mine examiner’s attempt to account for these conditions, which included particular
and localized hazards, was to summarily write that the slope belt “needs cleaned” in the
examination book. This generic notation communicates nothing regarding the locations of the
ignition hazards, and provides no useful information about the hazard except that it involved
13

The standard states that:
A record shall be made of any hazardous condition and any
violation of the nine mandatory health or safety standards found by
the mine examiner . . . . The record shall be made by the
completion of the shift on which the hazardous condition or
violation of the nine mandatory health or safety standards is found
and shall include the nature and location of the hazardous
condition or violation and the corrective action taken . . . .

30 C.F.R. § 75.363(b) (emphasis added).

40 FMSHRC Page 10

coal, especially considering that the slope belt suffered known frequent problems with coal
spillage. This examination record failed to meet the “reasonably prudent miner” test.
The Commission has consistently applied this test to broadly worded standards. See U.S.
Steel Mining Co., 27 FMSHRC 435, 439 (May 2005). In fact, we recently used it to determine
the adequacy of a workplace examination. Sunbelt Rentals, Inc., 38 FMSHRC 1619 (Jul. 2016).
In Sunbelt Rentals, we held that an examination performed pursuant to 30 C.F.R. § 56.18002(a)
(the workplace examination standard for metal and nonmetal mines)14 must be adequate, and it
must identify conditions which may adversely affect safety and health that a reasonably prudent
competent examiner would recognize. Id. at 1627.15 In the case before us, the “nature” of the
14

30 C.F.R. § 56.18002(a) provides that “[a] competent person designated by the
operator shall examine each working place at least once each shift for conditions which may
adversely affect safety or health. The operator shall promptly initiate appropriate action to
correct such conditions.”
15

In Sunbelt, we emphatically rejected the notion that an “operator must only examine
the workplace to a standard of care slightly surpassing not conducting the examination at all.” 38
FMSHRC at 1625. Similarly, we reject the operator’s argument here that its examination
notation need only slightly surpass not writing down anything at all.
Our dissenting colleague’s effort to distinguish Sunbelt is unavailing. Both cases involve
broadly worded examination standards which can be applied more meaningfully by the use of the
“reasonably prudent miner” test. Chairman Althen’s attempt to distinguish Sunbelt stems from
the fundamentally different way in which he views the case before us. We apply the reasonably
prudent miner standard to provide clarification and guidance for the terms “nature and location
of the hazardous condition” — language we consider part of a broadly worded standard. He finds
section 75.363(b) “plain” and “clear,” and consequently is satisfied that along the entire beltline”
sufficiently defines the location of the hazardous condition. Slip op. at 20.
Acting Chairman Althen distinguishes Sunbelt in other ways, but we fail to find the
differences he identifies relevant to the question of whether the reasonably prudent miner test
should be applied. First, he asserts that the standard at issue in Sunbelt did not involve the record
of an examination. He states that it involved the competence of the examiner. We read the case
to involve the quality of the examination. See Sunbelt Rentals, 38 FMSHRC at 1627, 1627 n.18.
Despite our colleague’s concerns, for the purpose of deciding whether the reasonably prudent
miner test is applicable to an examination standard, it doesn’t matter whether the issue is the
quality of the examination, the competence of the examination, or the specificity of the
examination report. See id. (relying on FMC Wyoming Corp., 11 FMSHRC 1622 (Sept. 1989), as
a basis for the use of the reasonably prudent miner test, even though the issue in FMC Wyoming
was the competence of the examiner rather than the quality of the examination). Rather, all of
these concepts are found in examination standards that are, in our view, “drafted in general terms
in order to be broadly adaptable to the varying circumstances of a mine.” Id., (quoting FMC
Wyoming Corp., 11 FMSHRC at 1629). It is therefore appropriate to apply the reasonably
prudent miner test to all of them.
(continued…)

40 FMSHRC Page 11

hazardous condition and the “location” must be recorded in such a way that those who read the
examination record will know how and where to address the problem.16
As the Judge noted, the inspector testified that the “slope [belt] - needs cleaned – work in
progress” notation was deficient because the slope belt needed cleaning every shift. 38 FMSHRC
at 2247, citing Tr. 117. Indeed, when the inspector reviewed the examination books for the
month preceding his inspection, he found that the same notation of “slope [belts] needs cleaned,
cleaning in progress” (and nothing more) appeared for 81 of the 90 preceding examinations. Tr.
121, 124; R. Ex. 2. Moreover, the insufficiency of this recording is evidenced by the fact that
none of the miners who were actively working to address the accumulations at the time of the
inspection were addressing locations where the beltline was contacting coal.17 38 FMSHRC at
2247.
MSHA has recognized that “[a] record of all hazards found, as well as the required
corrective action, serves as a history of the types of conditions that can be expected in the mine.
15

(…continued)
The similarity between the standard at issue in Sunbelt and the standard in this case also
overrides the other distinction Acting Chairman Althen identifies (that the Sunbelt standard
governed metal and nonmetal mines while the standard here involves an underground mine,
which is the subject of more numerous regulations).
16

The dissent contends that construing the standard as we have “will cause confusion,
ambiguity, and errors, perhaps even dangerous ones, in the prioritization and recording of
hazards.’” Slip op. at 23. However, the standard requires that examiners note the “location” of
hazards. Furthermore, we believe the “dangerous errors” our colleague fears are less likely to be
made when an examiner notes the location of hazards than when — as here — the examiner
ignores mention of six hazardous areas over a 3,500 foot belt line, resulting in the clean-up crew
not prioritizing the areas of greatest hazards.
17

We understand that “needs cleaned” is a reference to the presence of coal
accumulations. However, like the inspector, we conclude that merely reporting the presence of
coal accumulations was insufficiently descriptive to comply with the safety standard’s reporting
requirements in this instance. See Tr. 140-41. This is especially true in light of the context here:
The belt being referenced was nearly two-thirds of a mile long. Slip op. at 2. The inspector noted
six discreet locations where the accumulations had grown so deep that they were in contact with
the belt and its components along 105 feet of beltline. Id. at 2, 5. Further, Mach had been aware
for years — since 2011 — that the belt was prone to “washbacks” that created a chronic
accumulations problem. Id. at 7.
We agree that in some contexts, “needs cleaned” might be an adequate description. But
the area in question here is so large, and the nature of the accumulations so dangerous in certain
discreet locations, that the rote invocation “needs cleaned” is practically meaningless. The
ineffectiveness of this communication is evinced by the fact that the operator did nothing to
indicate that it was prioritizing the clean-up of accumulations that posed the greatest threat, i.e.,
there was no plan in place to comprehensively address a problem that was only abated by more
than a score of miners working over three days.

40 FMSHRC Page 12

When the records are properly completed and reviewed, mine management can use them to
determine if the same hazardous conditions are recurring and if the corrective action being taken
is effective.” Safety Standards for Underground Coal Mine Ventilation, 61 Fed. Reg. 9764, 9803
(Mar. 11, 1996). Thus, the purpose of the standard is frustrated when, as here, the operator fails
to include any identifying details in a recording, because the record created cannot help identify
and correct reoccurring or chronic problems.18 Moreover, as the Judge pointed out, and other
Commission Judges have also recognized,19 one of the purposes of the standard is to enable
miners to know of dangerous conditions before they go underground.
We recognize that in other circumstances the specificity with which a reasonably prudent
miner would record the nature of a hazardous condition and its location pursuant to this standard
may vary based on context. Here, however, the recording is so vague that it omits information
needed to properly identify the nature and location of the hazardous conditions. Regarding
Mach’s “fair notice” argument, any reasonably prudent miner would understand that the notation
in question does not adequately identify the “nature and location of the hazardous conditions.”
See Ideal Cement Co., 12 FMSRHC 2409, 2416 (Nov. 1990) (In determining whether a safety
standard provides adequate notice, the Commission generally applies an objective standard,
asking “whether a reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific prohibition or requirement of the
standard.”). Accordingly, we affirm the Judge’s finding of a violation.
2. Significant and Substantial
The Judge concluded that the violation was appropriately designated as S&S.
Specifically, he found that the recording violation contributed to the hazard of a fire occurring
because miners would be unaware of the nature and location of the hazardous conditions, and if
an ignition resulted there would be a reasonable likelihood that miners would suffer serious
injuries such as smoke inhalation and burns. 38 FMSHRC at 2249-50. We conclude that this
finding is supported by substantial evidence.
18

We note the marked difference between the location written in this examination
notation (“slope [belt]”) and the locations described in the July 9 and July 10 examinations
(“rollers from 3 to 8” and “7A flowthrough”). R. Ex. 2.
19

See, e.g., Rosebud Mining Co., 34 FMSHRC 2734, 2755-56 (Oct. 2012) (ALJ
Andrews) (“The Secretary argues that the [recording] violation is S&S because . . . miners were
exposed to potential hazards that would have been discovered by examinations; that oncoming
shifts rely on examination books to prepare for hazards . . . . The designation of S&S was found
correct . . . . The miners were not alerted in advance, and were unnecessarily exposed to
danger.”); Big Ridge, Inc., 33 FMSHRC 689, 713 (Mar. 2011) (ALJ Miller) (“[M]iners rely on
the preshift examiner to look for hazardous conditions prior to their entry into the mine. Relying
upon an inadequate examination may engender a false sense of security and cause the miners to
pay less attention to their surroundings as they travel the roadway.”); Consolidation Coal Co., 21
FMSHRC 1404, 1408 (Dec. 1999) (ALJ Melick) (“By not reporting the hazardous accumulations
of coal in the preshift book, the miners on the day shift were not placed on notice of these
hazardous conditions . . . .).

40 FMSHRC Page 13

The first step of the Mathies test is met, as we affirm the Judge’s finding of a violation.
As to the second step, the Judge found that the failure to properly record the slope belt
accumulations contributed to the discrete safety hazard that management and miners would be
unaware of the nature and location of the ignition hazards, and they would not be able to
immediately address the accumulations most likely to result in ignition. Id. at 2249; Tr. 129-30.
It is undisputed that at the time of the inspection, miners were shoveling where ignition hazards
were not present, constituting substantial evidence supporting the Judge’s finding. The third and
fourth steps of the Mathies test are met for the same reasons described supra with regard to the
accumulations violation.
On review, Mach argues that the Judge’s underlying factual findings regarding the
conditions on the beltline lack the support of substantial evidence. We disagree. The Judge
credited the testimony of Inspector Reynolds to support his findings. 38 FMSHRC at 2246. After
hearing from all the witnesses and studying the record evidence, he found that the conditions that
the inspector observed were present at the time of Adams’ morning examination. As stated,
supra, the Commission recognizes that a Judge’s credibility determination is entitled to great
weight and may not be overturned lightly. We see no compelling reason to disturb the credibility
determinations of the Judge on this point.
Mach presents other allegations of error by the Judge, similar to those we rejected in our
analysis of the S&S nature of the accumulations violation, none of which is compelling. For
instance, Mach maintains that the Judge erred by failing to account for the dampness of the coal
accumulations, the relatively low recovery rate, and its active abatement efforts. For the reasons
previously articulated, we believe that these arguments lack merit.
3. High Negligence
The Judge concluded that Mach exhibited a high degree of negligence. He reiterated that
the extensive accumulations were present for multiple shifts and found that Adams’ decision to
perform an examination while driving likely precluded Adams from observing coal that had
accumulated on the walkway. The Judge further found that Adams’ practice of supplementing
his written record of examination in personal meetings with mine managers did not alter his duty
to comply with the plain requirements of the safety standard. 20 38 FMSHRC at 2250.
Mach asserts that the Judge erred in his negligence analysis. First, Mach maintains that it
was error for the Judge to consider Adams’ use of a vehicle during the examination as
20

As part of its negligence argument, Mach attempts to demonstrate that the Judge failed
to consider mitigating circumstances justifying a lower degree of negligence in accordance with
the Secretary’s Part 100 definitions. See, e.g., 30 C.F.R. § 100.3(d) (“High negligence — The
operator knew or should have known of the violative condition or practice, and there are no
mitigating circumstances.”). However, the Commission is not bound by the Secretary’s Part 100
definitions of degrees of negligence. Brody Mining, LLC, 37 FMSHRC 1687, 1701-03 (Aug.
2015); Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264 (D.C. Cir. 2016) (The
Commission evaluates the degree of negligence using “a traditional negligence analysis.”).
Accordingly, the Judge may assess negligence as “high” despite a demonstration of some
mitigating circumstances. Id.

40 FMSHRC Page 14

exacerbating its negligence. We disagree. The Judge simply inferred that performing an
examination from the travelway, while driving, made it more difficult to observe coal that
accumulated along the walkway. The inference is based in fact. Inspector Reynolds walked the
belt and noted that the majority of the accumulations he observed were on the far side of the belt.
In contrast, Adams testified that he did not observe any coal contacting the belt or rollers when
he drove up the travelway earlier that morning. It was reasonable for the Judge to infer that the
difference in their observations was, at least in part, the result of differences in examination
methods. Nothing in the Judge’s decision suggests that the use of a vehicle during a belt
examination is impermissible to the extent that an examiner is able to observe and record
hazardous conditions that are present. In this case, though, the operator should have at least
ensured that a closer examination was made in areas more prone to accumulations, especially in
light of what the operator acknowledged as an ongoing problem with “washback.” See Tr. 227,
290, 300, 304, 391.
In addition, Mach asserts that the Judge erred by comingling the requirement to perform
an on-shift examination (30 C.F.R. § 75.362(a)(1)) with the more precise recording requirements
of section 75.363(b). He did not. The more specific requirements of an examination are not
designed to be read in isolation from the more general requirements of an examination; instead
they should be read as “interconnected provisions.” See Jim Walter Res., Inc., 28 FMSHRC 579,
602 n.28 (Aug. 2006) (citation omitted). We recognize that in this case, the failure to properly
record a hazardous condition may have arisen from the inadequacy of the required on-shift
examination. Nevertheless, the issuing inspector acted within his discretion when he chose to
charge Mach with a violation of the more specific safety standard, section 75.363(b), as opposed
to a more general requirement.
Mach further contends that the Judge erred by comparing the more substantive notations
for the July 9 and July 10 examinations to the July 14 record because no evidence was elicited as
to the conditions that were actually present on those days.21 We agree that the relevance of the
previous examination records, taken alone, is somewhat limited. The mere record of a previous
examination does not provide the necessary context by which to judge whether the operator acted
with a reasonable degree of prudence in making that recording. Yet, the prior recordings do in
fact list locations of hazardous conditions, indicating that Mach understood that it was required
to provide some additional detail as to the location of accumulations when making a record.
Moreover, the more specific recordings of conditions on the slope belt just a few days earlier
should have prompted Adams to more closely inspect those areas for recurring or ongoing
problems during his examination.
In summation, we conclude that the complete failure to document extensive
accumulations that were in contact with the belt and its moving parts, combined with the failure
to document that the belt was misaligned, supports a high negligence determination.

21

As previously mentioned, a July 9 day shift entry reads: “Need to clean under rollers
from 3 to 8” and a July 10 examination record for a belt reads: “Need to clean 7A flowthrough.”

40 FMSHRC Page 15

III.
Conclusion
We hereby affirm the decision of the Judge in all respects. The violation of section
75.400 cited in Citation No. 8450924 is affirmed as S&S and the result of high negligence. The
violation of section 75.363(b) cited in Citation No. 8450926 is upheld and affirmed as S&S and
the result of high negligence.

/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

40 FMSHRC Page 16

Acting Chairman Althen, concurring in part and dissenting in part,
I concur with my colleagues in affirming the violation identified in Citation No. 8450924
as exhibiting high negligence and as being significant and substantial. With respect to Citation
No. 8450926, I would find that the pre-shift examination report complied with the requirements
of section 75.363(b). Therefore, I would vacate that citation.
Citation No. 8450924
The operator conceded that a violative accumulation of mined material existed along the
entire slope belt operating in the main entryway to the mine — that is, an entry 26 feet wide and
10 feet high with a paved roadway for vehicular traffic. Testimony established that due to the
problems created by the flow of water, cleaning mined material that washed along the beltline
was an ongoing, everyday activity with contract labor employed to perform that task.1
From an S&S perspective, the case rests upon the reasonably likely effect of the violation
under normal mining conditions.2 Normal mining conditions at that time were belt transportation
of mined material of 55% rock and 45% coal, a continuing flow of substantial water on the belt,
cleaning actions at the top and at one other point along the belt, and rubbing of the mined
material on at least 14 rollers and 105 feet of belt until the already initiated abatement reached
those areas.3
Operator witnesses testified that with a continual flow of water the accumulation was too
damp/wet to ignite — one witness testified colorfully that “[w]ith all due respect, sir, if you
could have seen how wet this material was, you couldn't light it with a blow torch, let alone let it
rub with the belt rub and have a hazard.” Tr. 317. The inspector testified that the material was a
1

I concur in the finding of high negligence. Although the operator was addressing the
problem of substantial accumulations along the slope belt, the accumulations were a known and
ongoing problem. The operator did not devote sufficient efforts to prevent significant
accumulations along the entire 3,500-foot belt on the morning of the citation.
2

Although the Commission’s standard of S&S determinations is not an issue in this case,
in footnote 5 Commissioners Jordan and Cohen express continuing dissent from the
Commission’s decision in Newtown Energy, Inc., 38 FMSHRC 2033 (Aug. 2016). In Newtown
Energy, the Commission announced an authoritative and binding rule for making S&S
determinations: (1) has there been a violation of a mandatory safety standard; (2) based upon the
particular facts surrounding the violation, is there a reasonable likelihood of the occurrence of
the hazard against which the mandatory safety standard is directed; (3) based upon the particular
facts surrounding the violation, is the occurrence of that hazard reasonably likely to result in an
injury; and (4) is any resultant injury reasonably likely to be reasonably serious. Id. at 2038-39.
This standard, which resolved confusion that had arisen regarding the relationship between steps
two and three of the venerable Mathies standard, now governs all S&S determinations.
3

Although MSHA cited the conditions as S&S, it did not require a shutdown of the belt
during abatement.

40 FMSHRC Page 17

soupy mess saying, “This case is water and rock and coal all souped together, you know, []
they’re traveling together.” Tr. 169. However, the inspector identified short but distinct areas
where the mined material was touching the belt and/or rollers. He also testified that frictional
heat of a belt or roller on the accumulation could cause the material to dry and ignite. Although
he did not test the temperature of the rollers, he said some rollers were warm or hot. He agreed
the materials were at least damp and 55% rock. Nonetheless, he believed that sufficient drying
could occur before abatement to create an ignition hazard.
The Judge accepted the inspector’s testimony. Thus, he found an ignition reasonably
likely because frictional rubbing could dry the accumulated material. The substantial evidence
test is not what the trial judge could have found or what an appellate judge would have found,
but whether there is sufficient relevant evidence that a reasonable mind would accept as adequate
to support the Judge’s conclusion. Here, the Judge credited the inspector’s evaluation of the
effect of continual rubbing of the material. This meets the substantial evidence standard. I,
therefore, must concur in affirming the Judge’s significant and substantial determination.4

4

The majority finds that “58 violations in a 15-month period is enough to put a
reasonable mine operator on notice that greater efforts to comply with the standard were
required.” Slip op. at 8. According to MSHA records introduced as Sec’y Ex. 2, 58 citations for
violation of section 75.400 at the subject mine became final in the months between December
12, 2012 and July 28, 2014. According to other MSHA records, in the calendar year in which
this accumulation violation occurred (2014), the Mach No. 1 mine produced 6,482,276 tons of
underground coal that was about 1.8% of the total underground coal production in 2014 of
354,709,128 tons. Compare data from MSHA, Mine Data Retrieval System,
https://arlweb.msha.gov/drs/drshome.htm (Jan. 17, 2018) with MSHA, Coal Production,
https://www.msha.gov/sites/default/files/Data_Reports/DEC_15_2016_Historical_MIWQ_Empl
oyment_and_Production.pdf (page three) (Jan. 17, 2018).
In 2014, MSHA issued 4,938 citations for violations of section 75.400. MSHA, Most
Frequently Cited Standards by Mine Type, https://arlweb.msha.gov/stats/top20viols/
top20home.asp (Jan. 9, 2018). Fifty-eight violations is 1.2% of 4,938. Although the periods do
not match exactly, it is clear that this mine was doing better than average. I note this fact to
express my doubts regarding the usefulness of raw numbers standing alone in MSHA
adjudications. Perhaps it is understandable for general circulation newspapers that may be
unfamiliar with the intensity of inspections and vast number of citations issued annually to
castigate operators based upon raw numbers of violations. It is another thing for knowledgeable
persons to use raw numbers to draw important and perhaps outcome-determinative conclusions. I
disagree with use of an unexamined raw number of violations without consideration of the
mine’s size, its history of violations relative to industrywide performance, and many other
circumstances surrounding the previous violations that may be gleaned from the regulatory
record.

40 FMSHRC Page 18

Citation No. 8450926
MSHA Inspector Reynolds cited the operator for a violation of 30 C.F.R. 75.363(b) for
an alleged failure to make a record of a hazardous condition. The standard is brief, plain, and
unambiguous. In relevant part, section 75.363(b) requires, “A record shall be made of any
hazardous condition and any violation of the nine mandatory health or safety standards found by
the mine examiner.” I agree with my colleagues that the standard requires that the record identify
the nature of a hazard found by the examiner and its location. Simply stated, when an examiner
sees a hazard, he must report what the hazard is and where it is located so that management and
miners are alerted and may address and abate it. That is exactly what the examiner did here.
Therefore, I respectfully dissent.
I need not extensively discuss the plain meaning rule. In recent years, circuit courts have
had several occasions to explain the plain meaning standard to the Commission. CalPortland Co.
v. FMSHRC, 839 F.3d 1153, 1162 (D.C. Cir. 2016) (“[A]n agency has no power to ‘tailor’
legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” (quoting Util.
Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2445 (2014)); Performance Coal Co., 642 F.3d
234, 239 (D.C. Cir. 2011) (“[T]he language Congress selected [is] plain, clear, and simple and
we refuse to muddy it by finding ambiguity where none exists.”); Vulcan Constr. Materials, L.P.
v. FMSHRC, 700 F.3d 297, 309 (7th Cir. 2012) (“[T]he unambiguous language of the statute
requires that temporary reinstatement end when the Secretary’s involvement ends.”).
The present controversy, therefore, is actually quite limited. Did the examiner violate
section 75.363(b) by reporting a hazardous accumulation of mined material located along the
entire beltline without finding and noting sub-locations of particular accumulations along that
beltline? Stated differently, did the examiner fail to report the nature and location of an
accumulations hazard that extended the length of the beltline by not including a subset report
specifying specific locations within that one hazard/violation that, after hearing, caused the one
violation to be S&S?5
Although idiomatically terse, Adams’ record clearly communicated a systemic problem
that everyone in the mine already knew — that mined material was washing from the belt and
accumulating along the beltline. This was a hazard that had to be abated along the length of the
belt. The report fulfilled the standard by telling miners and mine management the nature and
location of the hazard requiring abatement.
As the examiner and a mine supervisor testified, although the washback and spillage of
material along the beltline was a particular problem on the day of the violation due to the
resumption of longwall mining after a weekend shutdown, such accumulations had been a
constant and well-known problem. Tr. 228, 252, 284. Moreover, the report is for the “slope” —
that is, observations affecting the slope without any limitations, the entire slope. Thus, the report
of a need to clean material is an indication of accumulations along the entire slope. Further, the
“needs cleaned” together with “work in progress” (a reference to miners already shoveling the
5

The Judge did not base his decision on a purported failure to report a purported 1/8 inch
cut in a support beam.

40 FMSHRC Page 19

accumulations) demonstrates that the examiner’s record identified that accumulations of mined
material along the belt needed to be and were being cleaned. R. Ex. 1.
Indeed, my colleagues admit that the record did report the nature of an accumulation of
mined material (the hazard) and its location — along the slope belt. Slip op. at 12 n.17. In sum,
all Commissioners agree that the examiner communicated to management and miners at this
mine the presence of a hazard of accumulated mined material located along the entire beltline.
Thus, they virtually concede the record complied with the plain and literal language of the
standard.
The only case cited by the majority is Sunbelt Rentals, Inc., 38 FMSHRC 1619 (Jul.
2016). That case is wholly inapposite. In fact, that case strengthens the plain meaning of the
standard involved in this case. The Sunbelt standard did not involve the record of an examination
but rather the competence of the examiner. 30 C.F.R. § 56.18002 is in the standards governing
metal and nonmetal mines and is the only general provision on examinations of workplaces in
those regulations, which are far briefer and less inclusive than the regulations governing
underground coal mines. Part 56 is 56 pages long in the paperback printed copy of the Code of
Federal Regulations as compared to the 183 pages in Part 75 governing underground coal mines.
Section 56.18002(a) requires that “[a] competent person designated by the operator shall
examine each working place at least once each shift for conditions which may adversely affect
safety or health. The operator shall promptly initiate appropriate action to correct such
conditions.” In Sunbelt, the administrative law judge held that the requirement for a “competent”
examiner did not imply that the examination even had to be “adequate.” Thus, the ALJ
interpreted the examination standard in the regulations to permit inadequate examinations. The
Commission rejected that notion and held that an examination by a competent examiner had to
identify “conditions which may adversely affect safety and health.” Id. at 1627.
Absent the Commission reading, which itself is rather vague and only implies an
obligation to note a location, there would have been no general standard requiring any level of
adequacy. In Sunbelt, the Commission interpreted an otherwise ambiguous and effectively
meaningless standard in a manner that gave it form and content, albeit less form and content than
section 75.363. Here, my colleagues go in an opposite direction: they take a plain, clear, and
meaningful standard and misinterpret it creating ambiguity and uncertainty. The Sunbelt decision
is far different from imposing a policy directive to dissect a clear and compliant hazard report in
order to find that it fails to note or delineate one hazard or different hazards within a group of
hazards.6
6

In an attempt to bolster their one citation to Sunbelt, my colleagues assert that the
operator, and presumably by reference this dissent, argues that the examination record need only
surpass not writing down anything. Slip op. at 11 n.15. Obviously, that is incorrect. To comply
with section 75.363(b) an examiner must do exactly what the standard requires — namely, write
down any hazardous condition he finds. That is what the examiner did here. Starting with their
incorrect premise, the majority then posits a false symmetry between the standard at issue in
Sunbelt (30 C.F.R. § 56.18002(a)) and the standard at issue here, 30 C.F.R. § 75.363(b). In
Sunbelt, the administrative law judge found that an examination by a “competent” examiner did
(continued…)

40 FMSHRC Page 20

Here, a long-existing regulation fully and plainly expresses the requirement of the
standard. The record in this case fully informed management of the hazard and its location. It
was then management’s job to provide for abatement in a suitable manner. With a continuing
water flow, management needed to clean the entire belt and believed they could do so safely with
the belt operational. MSHA subsequently allowed the belt to run throughout the abatement
period.
Based upon the sui generis facts of this case, my colleagues find a violation in a failure to
report specific locations within one reported accumulation hazard. The outcome of this one case
is not so much a problem as the confusion and dissonance created for other cases by the
imposition of a new rule without a basis for judging its fulfillment. Thus, the majority would
create a new rule, albeit sharply limited by the exceptional facts of this case, in which reporting
the nature and location of a hazard is not compliant with section 75.363(b).7 In their view, the
clearly understandable record of an accumulation hazard and its location is not sufficient unless
the examiner reports any particular places (or presumably particular hazards) where an inspector
asserts the examiner should have observed greater or lesser danger, to some unknown and
unarticulated extent, within the reported hazard(s).
The problem for the majority’s analysis is that the examiner did precisely what the
standard requires. We may frame the dispute between my colleagues and myself by reviewing
the citation issued by the inspector for the violation of section 75.400. The citation stated as
follows:
Loose coal was allowed to accumulate in excessive amounts along the slope belt,
from approximately 100 feet below the slope collar to the bottom. These
accumulations were in continuous windows along both sides of the belt (the
majority of instances were along the back side of the belt), which ranged from 4”
to 30” deep & from 16” to 72” wide, and occasionally up to the full width of the
6

(…continued)
not require that the examination even be “adequate.” 38 FMSHRC at 1619. Effectively, that
meant the requirement for a “competent” examiner had no meaning. The Commission’s decision
gave meaning to an otherwise empty standard, but that decision does not inform this decision.
Section 75.363(b) is plain, requiring that “[a] record shall be made of any hazardous condition . .
. found by the mine examiner.” There is no similarity between the two standards regarding
ambiguity or correcting the nugatory interpretation of the competent examiner standard in
Sunbelt. The majority does not stop with that incorrect assertion but goes on to state that section
75.363(b) must be broadly adaptable to varying circumstances in the mine. Slip op. at 11 n.15.
They find no settled meaning to this decades-old standard and, to them, its meaning may vary
from circumstance to circumstance. This further illustrates the confusion and mischief that would
result from the attachment of any importance to the majority’s erroneous and sui generis
interpretation in this case.
7

Due to the unique facts of this case, the majority’s opinion appears to be one of those
occasional decisions that, at first glance appears possibly significant, but that is so wholly an
outlier as to fade quickly from memory. It is a letter written on the wet sand of an ocean
shoreline. Seen for a moment, then swept away by tide and time.

40 FMSHRC Page 21

belt. Additionally, the accumulations were in contact with the moving belt and
bottom rollers at the following approximate locations: 570’ station; 1100’ station;
1900’ station; 2100’ station; 2200’ station; 2300’ station.
Sec’y Ex. 5.
In the context of this mine and the known ongoing flooding problem due to the longwall,
the examiner’s report notified the operator and miners of the conditions cited in the first two
sentences of the citation. As understood by everyone at the mine and the majority, he reported
the nature and location of the hazard cited by the inspector — an accumulation of mined material
along the entire beltline.
The majority’s complaint is the failure of the examiner to add language similar to the
language the inspector added in the fourth sentence of the citation — that is, the examiner did not
expressly identify discrete areas in which he should have seen mined material touching the belt
or rollers.
The plain words of the standard, our case law, or the sound adjudication of the standard
do not create a duty for an examiner to break out certain areas of one hazard by the degree of
danger or to prioritize among a number of reported hazards by the degree of danger. Examiners
regularly note multiple separate hazards on one examination report. Some may be S&S and
others of far lesser danger.
Nothing in the standard requires the examiner to identify a hazard that he might think is
S&S, to opine on a particular hazard within a group, or to opine on where abatement must start.
An examiner’s identification of a hazard is notice to miners but, importantly, it also is notice to
mine management of a hazard that management must address and abate. It is not the examiner’s
duty to prioritize abatement for management. In fact, it is easy to see that in some circumstances,
an effort by an examiner to set abatement priorities actually might redound to the detriment of an
overall abatement effort because the examiner may not know the actual danger or imminence of
harm created among different hazards. The majority takes a unique case and suggests an
unworkable and potentially dangerous standard.
This is a textbook example of the maxim “hard cases make bad law.” The majority looks
at an unusual, to say the least, circumstance of a 3,500-foot long accumulation. All agree that in
this specific case, had the examiner actually seen the beltline or rollers on the mined material, it
would have been beneficial for him to have reported such places in addition to the hazard of the
accumulations. Indeed, the examiner testified that if he had seen mined material touching a belt
he would have reported it. Tr. 230. That is not the question. The question for us is a legal one:
What does the standard require? Based on a desire to advance safety, my colleagues interpret the
standard in a novel and unwarranted manner to impose a new obligation created by them and not
found in the language of the standard or in past enforcement activities. One exceptional fact

40 FMSHRC Page 22

pattern should not lead to a skewed interpretation of a general standard and certainly must not do
so when the interpretation is inconsistent with the plain terms of the standard.8
My colleagues essentially admit that a requirement for identifying specific sub-locations
or specific hazards within a group of reported hazards would create ambiguities in the
application and in enforcement — that is, whether a particular location within a hazard or a
particular hazard within a group of hazards is sufficiently serious to require a subset record. Slip
op. at 13. This is one case. Perhaps the majority can gaze into a crystal ball and foresee the full
effect of its novel misinterpretation of this plain standard in this narrow and atypical case. I
cannot, other than to know that, if applied, it will cause confusion, ambiguity, and errors, perhaps
even dangerous ones, in the prioritization and recording of hazards.
If MSHA, as the agency charged with establishing safety policies, desires to mandate
subset reports despite the ambiguities such a rule would produce, MSHA may propose a
mandatory standard. Such a proposal would then be subject to public comment and refinement
regarding the workability and effect of such a standard. A blundering blunderbuss approach of
Commission rulemaking is not the proper or prudent means for rulemaking.
Here, the examiner did what the standard requires. Based upon the plain language of
section 75.363(b), the examination report identified the nature of a hazard and its location.
I find further difficulty with the majority’s rationale in this case. My colleagues find that
the mine examiner’s description of the accumulations as needing to be cleaned to be insufficient
under section 75.363(b), because it did not explicitly identify locations where coal was touching
the belt or rollers. Slip op. at 10. They then go on to cite the regulatory preamble related to
section 75.363(b) for MSHA’s recognition that “[a] record of all hazards found . . . serves as a
history of the types of conditions that can be expected in a mine,” and conclude that “the purpose
8

The majority’s desire to enhance safety is understandable but inconsistent with the duty
to apply the words of a standard as they are written rather than as we might wish they were
written for purposes of a particular case. Perhaps judicial restraint is even more difficult in safety
cases than in cases in which courts have been constrained to permit grossly repugnant activities
such as the protests at funerals for slain service members or KKK marches through American
cities. Nonetheless, we should remain mindful of and faithful to the words of the inestimable
Justice Cardozo:
The judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of
beauty or of goodness. He is to draw his inspiration from consecrated principles.
He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.
He is to exercise a discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to “the primordial necessity of order in
the social life.” Wide enough in all conscience is the field of discretion that
remains.
Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921).

40 FMSHRC Page 23

of the standard is frustrated when, as here, the operator fails to include any identifying details in
a recording.” Id. at 12 (emphasis added) (alteration in original).
The Judge’s decision plainly explains why the report did not mention the conditions the
majority finds so important: the mine examiner, Adams, did not observe the conditions. 38
FMSHRC at 2246. As the preamble clearly states — not to mention the text of the standard itself
— a prerequisite to reporting a mine hazard with any degree of specificity is to first observe the
condition. Not surprisingly, the majority entirely avoids explaining how Adams was to have
reported on conditions he did not observe. MSHA did not charge the operator with an inadequate
inspection under 30 C.F.R. § 75.362. Instead, MSHA cited the operator for a violation it could
not have committed because no one disputes that the mine examiner did not “find” the particular
locations that are the gravamen of the majority decision. The majority flees to the refuge of
“reasonably prudent miner,” but even the most prudent miner cannot report a hazard he did not
see. Here, MSHA charged a violation of a standard that, by its very terms, does not apply to the
examiner’s conduct. For that separate reason, the citation is invalid.9
Attempting to define the parameters of the reporting requirement in a case where the
examiner did not observe the specific points the majority laments makes no sense on its face, and
thus greatly undercuts any precedent the majority may believe it is setting. For that reason and
the plain language of the standard, I cannot join in the majority opinion and dissent from the
finding of a violation.
I find it necessary to go even further. The majority does not attempt to identify any
discernable standard or set forth meaningful guidance for when a mine examiner should report
more than the nature and location of a hazard. Instead, the majority waves its collective hand and
says only that any required specificity “may vary based on context.” Slip op. at 13. The
majority’s inability to articulate the meaning of their decision serves to emphasize the
importance of proposing a clear standard, accepting public comments, and finalizing an
understandable standard.
9

The Judge concluded that during his examination Adams should have seen at least the
contact between the misaligned belt and the steel I-beam. 38 FMSHRC at 2246. If the Secretary
established that, it may have constituted a violation of separate standards, sections 75.362(a) and
(b) (requiring that an examiner “check for hazardous conditions,” including “along each belt
conveyor haulageway where a belt conveyor is operated” and for “accumulations of combustible
materials”). The inspector, however, did not cite the operator for an inadequate examination and
the Secretary did not present any issue under sections 75.362(a) and (b). Finally, section
75.363(a) is not just a specific restatement of section 75.362(a) as my colleagues suggest. Slip
op. at 15. It is a different section with a distinct and different duty. Surely, failure to report a
found hazard is different from not finding the hazard in the first place. The inspector cited the
wrong standard because he faults the examiner for not reporting “found” conditions that the
examiner actually did not find. The Judge and majority assume that, despite the ongoing
dynamics of a continuously flooding running belt, the conditions must have existed in the same
locations and to the same extent as when the examiner passed through the area hours ahead of
the inspector. However, what the inspector saw sheds no light on what the examiner actually
found. Because the Judge did not discredit the examiner’s testimony that he did not find any
instances of a rubbing belt or rollers, there is no basis to find a violation of section 75.363(b).

40 FMSHRC Page 24

Their comment that the meaning of the decision is unclear demonstrates the lack of fair
notice to this operator of a purported obligation to report particular sub-locations within a hazard.
The issue of fair notice is determined under an objective standard of whether a reasonably
prudent person familiar with the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of the standard. Ideal Cement Co.,
12 FMSHRC 2409, 2416 (Nov. 1990); Hecla Ltd., 38 FMSHRC 2117, 2121-26 (Aug. 2016).
In Hecla, the Commission considered the imposition of a requirement for some sort of
geomechanical testing. The theory was novel: MSHA had never required such testing under the
cited standard. Although the Commission majority accepted the interpretation, it found the
operator lacked fair notice, stating:
Because the standard had consistently been applied in a more limited fashion, we
hold that a reasonably prudent person familiar with the mining industry would not
have known that the examination and testing requirement in section 57.3401
might demand a geomechanical or engineering analysis.
Hecla, 38 FMSHRC at 2125.10
The fair notice question here is whether a reasonably prudent person familiar with the
mining industry would have recognized a requirement that a report identifying an accumulation
hazard along the entire length of a beltline had a regulatory obligation to go further and specify
particular sub-locations within the hazard that an MSHA inspector later identifies as more
serious.
Nothing in the language of the standard, MSHA advisories, or our case law suggests a
requirement that a record that identifies the nature and location of a hazard must go further and
comment upon particular sub-locations within the hazard. The language of the standard would
not give any clue as to how much more serious a sub-location would have to be to require
specific reporting. There is no reason why a reasonable person who reported the nature and
location of a hazard could know he/she was required to do more. Consequently, I also disagree
with and dissent from my colleagues’ finding regarding the fair notice issue. I would find that the
operator, in this case, did not have fair notice of any requirement to note sub-locations within a
hazard.

10

Hecla is another case where sui generis facts resulted in a strained, policy-driven
interpretation. At least there, however, the majority recognized that the operator did not have fair
notice that the Commission could arrive at the strained interpretation it adopted.

40 FMSHRC Page 25

The majority itself does not discuss how much “more hazardous” a sub-location must be
to require separate reporting. Neither I nor anyone else knows whether the majority decision for
the reporting of sub-locations is dependent upon the sub-locations being S&S as compared to the
remainder of the identified hazard.11
Whether a condition is S&S is more complex than whether it is a hazard. The S&S
determination requires an evaluation of the four factors of Mathies/Newtown. The majority, for
example, does not consider the effect of a good faith objectively reasonable belief that a
particular sub-location was not S&S (or “more dangerous”) upon an alleged section 75.363(b)
violation for not identifying a sub-location within a properly recorded hazard. (Of course, as
noted above, obligations under section 75.363(b) come into play only if an examiner sees a
hazard.)
In the event of another set of highly atypical facts, I do not see how other operators will
have notice of the scope of any obligation to go beyond the long-accepted scope of section
75.363(b) and the examiner’s view of the hazard as he/she finds it. The majority decision does
not recognize or discuss that an operator’s mine examiner may well have an objectively
reasonable good faith belief that the particular location does not create a significantly greater
hazard than another location. Does such an objectively reasonable belief constitute a defense to a
violation alleging a failure to identify some subset hazard within the legally reported hazard?
In this case, for example, significant testimony supported the proposition that the
violation was not reasonably likely to cause a significant danger due to the composition of the
material, continuing flood of water, ongoing abatement, etc. Although the examiner rightly said
he would have reported any areas of rubbing as such rubbing is undesirable from a safety and a
maintenance standpoint, neither he nor other miners thought the rubbing created a reasonable
likelihood of ignition. There certainly was sufficient evidence to support a finding that the
operator had an objectively reasonable belief that the accumulation was not reasonably likely to
ignite before the ongoing abatement reached the area. The majority’s overzealous willingness to
interpret a plain and effective substantive rule in an overbroad manner, without a full discussion
of the dimensions or understanding of their decision, is deeply troubling.

11

I assume that if the Judge in this case had found the separate locations did not make the
section 75.400 violation S&S, he would not, or at least should not, have found a violation for not
separately reporting such places. However, I readily admit this is an assumption, and the
majority, having decided to create a new, ambiguous, factually limited policy out of whole cloth,
may disagree.

40 FMSHRC Page 26

Conclusion
In my view, the Commission makes a policy-based decision to find an obligation not
present in the plain words of the standard and of which the operator did not have fair notice.
Further, it fails to define in a comprehensible manner the contours of this purported obligation
enforced through governmental fines. I respectfully dissent.

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

40 FMSHRC Page 27

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

February 2, 2018

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

Docket No. KENT 2015-383

v.
KENTUCKY FUEL CORPORATION
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY: Althen, Acting Chairman; Jordan and Cohen, Commissioners
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act” or “Act”). The case involves an accident at Kentucky Fuel
Corporation’s Beech Creek Surface Mine, in which a truck rolled backward and injured a
mechanic who was working on the vehicle. The Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued Kentucky Fuel a citation alleging a failure to block machinery
against motion while conducting repairs, in violation of 30 C.F.R. § 77.404(c).1
MSHA designated the alleged violation as significant and substantial (“S&S”)2 and the
result of high negligence, and the Secretary of Labor (“Secretary”) proposed a specially assessed
penalty of $52,500. After a hearing on the merits, an Administrative Law Judge issued a decision
affirming the citation as issued and assessing the proposed penalty. 38 FMSHRC 2905 (Dec.
2016) (ALJ).

1

The standard states: “Repairs or maintenance shall not be performed on machinery until
the power is off and the machinery is blocked against motion, except where machinery motion is
necessary to make adjustments.” 30 C.F.R. § 77.404(c).
Docket No. KENT 2015-383 also contains a second citation related to these events,
issued pursuant to section 103(k) of the Mine Act. 30 U.S.C. § 813(k). This second citation was
affirmed by the Judge and is not contested on appeal.
2

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

40 FMSHRC Page 28

The only issue before the Commission is the negligence determination.3 We affirm in
result the Judge’s finding of high negligence. The Judge reasonably found that Kentucky Fuel
failed to provide materials necessary for the miner to comply with the mandatory safety standard.
I.
Factual and Procedural Background
A. Accident and Subsequent MSHA Investigation
On the evening of September 23, 2014, the driver of an autocar grease truck at Kentucky
Fuel’s Beech Creek Mine discovered that the vehicle would not start and called for a mechanic.
When the mechanic arrived, he lay down under the truck behind the driver’s side front wheel and
asked the driver (who was still in the cab) to try starting the truck. Although crib blocks
apparently were available, the miner did not place any between or on either side of the tires. The
starter would not turn over, so the mechanic hit the starter with a hammer to move it into a better
position. The truck immediately started, and rolled back approximately two feet; the front tire
rolled into the mechanic, causing several broken ribs and a punctured lung. The mechanic was
airlifted to a hospital. He eventually recovered fully and returned to work. Only the driver and
the mechanic were present at the time of the accident. Tr. 19-24, 30.
Kentucky Fuel conceded that the truck was not blocked against motion when the accident
occurred. Tr. 21. Shortly afterward, foreman Steve Ritz placed wooden crib blocks between the
truck’s rear tires. Kentucky Fuel’s Vice President of Health and Safety, Pat Graham, visited the
accident site later that evening to preserve the scene, leaving the crib blocks in place. MSHA
Inspectors arrived on site the next day and replaced the crib blocks with wheel chocks. Tr. 19-24,
30.
After an investigation, MSHA Inspector Brian Robinson issued Citation No. 8299655.
The citation alleges that the mechanic failed to block the truck against motion before conducting
repairs, and designates the violation as highly negligent. The citation notes that suitable wheel
chocks were not available at the mine and had to be provided by MSHA. Gov. Ex. 3. At the
hearing, Robinson testified that the high negligence designation was due to Kentucky Fuel’s
failure to provide proper blocking materials, i.e., wheel chocks. He conceded that crib blocks
may be sufficient for certain types of vehicles, but stated that wheel chocks were required to
properly block this type of truck against motion. The truck at issue had large tires and a gross
weight vehicle rating of 48,000 pounds. Robinson explained that curved wheel chocks better
distribute weight and energy, while crib blocks (which have 90 degree angles) are “apt to scoot”
when used to block a truck of this weight and tire diameter. Tr. 30-32, 45-46; see Gov. Exs. 6, 9
(photographs of crib blocks and wheel chocks).

3

Kentucky Fuel petitioned for review of the specially assessed penalty, as well as the
Judge’s negligence determination. The Commission accepted review of the negligence issue, but
denied review of the penalty issue.

40 FMSHRC Page 29

Robinson testified that wheel chocks are extremely common on surface mines, yet were
not available at this mine. He did not see any wheel chocks on-site, and when interviewed, mine
personnel did not know where wheel chocks were located. He concluded that, since the
necessary tools to properly block the truck (wheel chocks) were not available, Kentucky Fuel
should have foreseen the mechanic’s failure to properly block the truck. Tr. 30-31, 41-42, 49, 59.
He stated that the citation was intended to “get [miners] the supplies they need to do the jobs
properly.” Tr. 44-45.
Mark Huffman, Kentucky Fuel’s Director of Health and Safety, did not confirm or deny
the absence of wheel chocks; instead, he stated that wooden crib blocks were available at the
mine and can effectively block trucks against motion when deployed properly. Tr. 149, 152, 161.
He also testified that the foreman had no reason to expect the mechanic to fail to block the truck
against motion, because the mechanic was properly trained. Tr. 147-48.
Meanwhile, MSHA Inspector Melvin Wolford examined the truck. He testified that the
brakes set and released properly, but had several deficiencies that would have prevented the
truck from stopping under accident conditions, as well as an inoperative backup alarm.4 Wolford
conducted a “function” test of the truck and found that when the conditions of the accident were
replicated, the brakes did not hold. Tr. 64-71. Conversely, Huffman testified that Kentucky
Fuel’s own inspection of the truck revealed only a broken spring on a brake canister, and that a
“pull-through” test established that the brakes were working properly. Tr. 139-40, 151.
B. Judge’s Decision and Arguments on Appeal
The Judge affirmed the citation in its entirety. He noted that Kentucky Fuel stipulated to
the violation, and found that the violation was S&S because the failure to block against motion
increased the likelihood of a fatal crushing injury. 38 FMSHRC at 2916, 2918. Kentucky Fuel
does not contest the violation or S&S designation.
The Judge also concluded that the violation was attributable to high negligence.
Crediting Inspector Robinson’s testimony, the Judge found that wooden crib blocks were
insufficient for this type of vehicle, and that proper blocking materials (wheel chocks) were not
readily available. He also found that Ritz and Graham’s reliance on crib blocks rather than wheel
chocks was persuasive evidence that mine personnel were not trained in proper blocking
techniques. Finding that the training and materials supplied by Kentucky Fuel were plainly
inadequate to meet the requirements of the safety standard, the Judge concluded that Kentucky
Fuel’s conduct fell far short of its duty of care. Id. at 2919-22. The Judge also credited the
inspectors’ testimony regarding the condition of the truck’s braking system and found that
Kentucky Fuel failed to meet its duty of care by failing to remedy these defects. Taking the
deficiencies of the truck together with the inadequate training and materials, the Judge concluded
that the mechanic’s conduct was reasonably foreseeable and that Kentucky Fuel had been highly
4

These deficiencies were documented in a citation (not contested here) which alleges a
failure to maintain the truck in safe operating condition. Tr. 25-26. The deficiencies included
malfunctioning brake canisters, grease contamination on two of the brake drums, and an air leak
in a brake chamber. Tr. 64-65.

40 FMSHRC Page 30

negligent. Id. at 2923-25. Based on aggravating factors including high negligence and high
gravity, the Judge assessed a penalty of $52,500, the amount proposed by the Secretary.
In its petition for discretionary review, Kentucky Fuel claims that the record shows no
evidence of improper training, supervision, or discipline, and therefore the Judge’s finding of
high negligence is not supported by substantial evidence. PDR at 3-6. Kentucky Fuel also
contests the Judge’s factual finding regarding the insufficiency of crib blocks and states that the
issue of blocking material is irrelevant to the negligence analysis. Id. at 6.
II.
Disposition
The issue in this matter is whether the Judge erred in concluding that the mechanic’s
failure to block the truck against motion while conducting repairs was attributable to high
negligence on the part of Kentucky Fuel. The Commission applies the substantial evidence test
when reviewing a Judge’s conclusion regarding an operator’s negligence. See, e.g., Jim Walter
Resources, Inc., 36 FMSHRC 1972, 1976 (Aug. 2014). “Substantial evidence” means “such
relevant evidence as a reasonable mind might accept as adequate to support [the Judge’s]
conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). As discussed further below, the
record supports a finding that Kentucky Fuel’s failure to provide effective blocking materials
constituted a significant breach of its duty of care in this instance.5 Accordingly, we affirm the
Judge’s high negligence determination.
The Commission employs a traditional negligence analysis, under which an operator is
negligent if it fails to meet the requisite standard of care accompanying the mandatory standard
at issue. The Commission considers “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 regulations.” Knight Hawk Coal, LLC, 38 FMSHRC
2361, 2367 (Sept. 2016), citing Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-65
(D.C. Cir. 2016). The “gravamen of high negligence is that it ‘suggests an aggravated lack of
care.’” Brody Mining, LLC, 37 FMSHRC 1687, 1703 (Aug. 2015) (citation omitted).
Although the conduct of a rank-and-file miner is not imputable to the operator for
negligence purposes, “[t]he fact that a violation was committed by a non-supervisory employee
does not necessarily shield an operator from being deemed negligent.” A.H. Smith Stone Co., 5
FMSHRC 13, 15-16 (Jan. 1983). To determine whether the operator has met its duty of care in
such circumstances, we look at whether the operator has taken reasonable steps to prevent the
rank-and-file miner’s violative conduct. Knight Hawk, 38 FMSHRC at 2369. For example, “we
5

An inherent element of the standard at issue is that the machinery be effectively blocked
against motion. To hold otherwise would run contrary to the plain meaning and purpose of the
standard, which is to prevent motion while repairs are conducted. Cf. Western Fuels-Utah, Inc.,
19 FMSHRC 994, 998-99 (June 1997) (holding that a statute that requires conveyor belts to be
“equipped” with slippage and sequence switches plainly requires that the switches be functional).

40 FMSHRC Page 31

look to such considerations as the foreseeability of the miner’s conduct, the risks involved, and
the operator’s supervising, training, and disciplining of its employees to prevent violations of the
standard [at] issue.” A.H. Smith Stone, 5 FMSHRC at 15-16.
Here, the Judge determined based on the record that the materials needed to properly
block the vehicle against motion were not available at the mine site, mine personnel had not been
adequately trained in blocking techniques, and the truck’s brake system was not adequately
maintained. Based on these findings, he concluded that the mechanic’s violative conduct was
foreseeable, and that Kentucky Fuel’s conduct fell far short of its duty of care. 38 FMSHRC at
2919-25. Without addressing the issues of truck maintenance or training, we find that the record
supports the Judge’s findings regarding the unavailability of effective blocking materials and the
foreseeability of the mechanic’s conduct.6 On these narrow grounds, we conclude that substantial
evidence supports a finding of high negligence.7
The record supports the Judge’s factual finding that materials necessary for compliance
were not available to the mechanic. Inspector Robinson testified that the truck was too large (in
both weight and tire diameter) to be effectively blocked against motion by a crib block. He
explained that, given the difference in shape and resulting difference in weight distribution, a
crib block would be “apt to scoot” while a wheel chock would hold the vehicle. Tr. 31-32. The
Judge found that a crib block could not effectively block a truck of this type. 38 FMSHRC at
2921. The Judge found Inspector Robinson’s testimony in this regard to be “persuasive.” Id.
Conversely, Safety Director Huffman stated more generally that properly configured crib blocks
can be very effective at blocking vehicles against motion. Tr. 149. A Judge’s credibility
determinations are entitled to great weight and may not be overturned lightly. Island Creek Coal
Co., 14 FMSHRC 1537, 1541 (Sept. 1992). There is no basis here to overturn the Judge’s
decision to credit Inspector Robinson regarding the efficacy of various blocking materials.

6

While there may be some question as to whether the Judge properly considered the
condition of the truck in his negligence analysis, we need not address that issue. On appeal,
Kentucky Fuel has not challenged (or indeed mentioned) the Judge’s finding regarding the
truck’s condition and its effect on the negligence determination. Regardless, the issue is not
determinative.
7

Commissioner Cohen agrees with Commissioner Young’s concurring opinion that in
analyzing the foreseeability of the accident, the Judge considered the condition of the truck’s
braking system. Commissioner Cohen further agrees with Commissioner Young’s conclusion
that the very poor condition of the brakes made it more likely that the truck would move because
the brakes were incapable of holding it. Hence, Commissioner Cohen agrees that the inadequate
maintenance of the truck’s brakes was relevant to the citation issued for failing to block the truck
against motion, and to the degree of Kentucky Fuel’s negligence in this matter. Nevertheless,
Commissioner Cohen joins the majority opinion because Kentucky Fuel’s failure to provide
adequate materials to block the truck against motion in the form of wheel chocks is sufficient, by
itself, to establish high negligence.

40 FMSHRC Page 32

Substantial evidence supports the Judge’s finding that wheel chocks (or something more than
crib blocks) were necessary to effectively block this type of vehicle against motion.8
The Judge also found that wheel chocks were not available to the mechanic, and
substantial evidence supports that finding. Inspector Robinson testified that wheel chocks were
not present at the mine; he did not see any on-site, and mine personnel interviewed by the
inspector did not know where wheel chocks were located. Tr. 30-31, 41-42, 49, 59. When Safety
Director Huffman was asked whether there were wheel chocks on the property, he did not
answer directly, stating only that crib blocks were available. Tr. 152-53. Considering the
testimony of Inspector Robinson and Safety Director Huffman, the record reasonably supports a
finding that wheel chocks were not available.
Taken together, these facts support a finding that Kentucky Fuel was highly negligent. As
Inspector Robinson noted, operators are responsible for supplying miners with safety equipment.
Tr. 49. We look to the actions of a reasonably prudent operator to determine duty of care. Knight
Hawk, 38 FMSHRC at 2367. A reasonably prudent operator would provide materials necessary
for compliance with safety standards; the record here shows that Kentucky Fuel failed to do so.
Moreover, this was a particularly significant breach of the operator’s duty of care. Failing to
provide materials necessary for compliance means that a miner cannot comply with the safety
standard. Kentucky Fuel’s failure to ensure that proper blocking materials were available
rendered the mechanic’s violative conduct reasonably foreseeable. This reasonably supports a
finding that Kentucky Fuel was highly negligent in failing to provide materials necessary for
compliance with the standard.
We reject Kentucky Fuel’s argument that the issue of blocking material is irrelevant to
the negligence analysis. PDR at 6. The standard requires vehicles to be effectively blocked
against motion while repairs are conducted. See supra note 5. The availability of proper materials
to comply with the standard, i.e., materials adequate to effectively block the vehicle against
motion, is clearly relevant to whether the operator met its duty of care. If an operator fails to
supply the materials that a reasonably prudent operator would have supplied to ensure the truck

8

The Judge explicitly did not find that crib blocks are always inadequate to block a truck
against motion. 38 FMSHRC at 2921. Neither do we. As Inspector Robinson and the Judge
acknowledged, properly configured crib blocks may be sufficient to satisfy the requirements of
the standard in some situations. Id.; Tr. 46. We affirm the Judge’s finding that wooden crib
blocks were insufficient in this instance, given the type of truck at issue and the inspector’s
persuasive testimony.

40 FMSHRC Page 33

is performing safely, it cannot avoid responsibility when a miner uses inadequate or no
materials.1
With respect to Kentucky Fuel’s argument that there is no specific evidence to support a
finding of inadequate training, supervision, or discipline, the outcome in this case flows naturally
from the absence of sufficient blocking materials and is not dependent upon adverse findings on
these issues.2 Considering the totality of circumstances, Kentucky Fuel’s failure to provide
effective blocking materials is fully sufficient under the substantial evidence test to sustain a
finding of high negligence. In light of the absence of materials the Judge reasonably found
essential for safe performance of the work, the best trained and supervised mechanic could not
have performed the job safely.3
As a final matter, we acknowledge the seriousness of the mechanic’s actions in failing to
use any material to block the truck against motion while conducting repairs. However, that does
not negate Kentucky Fuel’s failure to meet its duty of care. The issue in this matter is whether
Kentucky Fuel was highly negligent in failing to take reasonable steps to prevent the mechanic’s
violative conduct. The record supports a finding that due to Kentucky Fuel’s actions, the
mechanic could not have properly blocked the truck against motion, regardless of his intentions.
1

Acting Chairman Althen observes that in this case the Judge was persuaded by the
inspector’s testimony that “wheel chocks are on nearly every mine site he visits,” 38 FMSHRC
at 2922 (quoting Tr. 49), and Kentucky Fuel did not argue in its PDR that a reasonable operator
would not have known that wheel chocks were necessary to block the autocar grease truck
against motion. Therefore, we do not deal with an argument that supplying chocks for blocking
movement of this type of truck was not an action that 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. One may imagine a case in which an operator
would argue that it reasonably did not and reasonably should not have known that certain
material or equipment was necessary. Such circumstances would raise different negligence
and/or fair notice issues. Cf., e.g., Hecla Ltd., 38 FMSHRC 2117, 2126 (Aug. 2016) (holding that
an operator’s failure to perform a geomechanical analysis was not a violation where a reasonably
prudent operator would not have known that such an analysis was required).
2

Kentucky Fuel suggests that direct evidence such as training records was required.
However, the Commission has held that the substantial evidence standard “may be met by
reasonable inferences drawn from indirect evidence.” Mid-Continent Res., Inc., 6 FMSHRC
1132, 1138 (May 1984); see also Black Beauty Coal Co., 703 F.3d 553, 560-62 (D.C. Cir. 2012)
(finding inadequate training based solely on indirect evidence). Inferences are “permissible
provided they are inherently reasonable and there is a logical and rational connection between
the evidentiary facts and the ultimate fact inferred.” Mid-Continent Res., 6 FMSHRC at 1138.
3

The evidence regarding supervision was essentially limited to an observation that the
foreman was not present when the accident occurred, which the Judge found to be an inadequate
defense. Regarding discipline, although Kentucky Fuel’s Post-Hearing Brief claimed that the
mechanic was admonished, there was no actual evidence of this in the record. 38 FMSHRC at
2923.

40 FMSHRC Page 34

In sum, substantial evidence supports the Judge’s factual findings that wheel chocks were
necessary for compliance with the safety standard in this instance, yet Kentucky Fuel failed to
ensure that they were available. This failure rendered the mechanic’s violative conduct
reasonably foreseeable. Given the importance of providing materials necessary for compliance,
the record reasonably supports the Judge’s finding that Kentucky Fuel fell far short of its duty of
care, i.e., it displayed the “aggravated” lack of care required for high negligence. Based on the
evidence regarding Kentucky Fuel’s failure to provide proper blocking materials, we find that
substantial evidence supports the Judge’s conclusion regarding high negligence.
III.
Conclusion
For the foregoing reasons, we affirm the Judge’s determination that Citation No. 8299655
was attributable to high negligence.

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

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

40 FMSHRC Page 35

Commissioner Young, concurring in the result:
I agree that the Judge’s decision should be affirmed, but I disagree with the reasoning.
We have noted that negligence is determined holistically. Having approved of that formulation,
we cannot unbundle the Judge’s decision from his reasoning, as the majority has done, because
the Judge has given no specific weight to any of the conditions he found noteworthy in finding
high negligence here.
The Judge properly noted that the Commission is not bound by MSHA’s Part 100
negligence formula. 38 FMSHRC at 2919-20. However, the Judge’s high negligence
determination did not rest on the sole basis asserted by the majority, the failure to provide proper
materials for blocking truck wheels during maintenance. Instead, the Judge relied upon a variety
of factors to support his conclusion.
If the mere failure to provide wheel chocks was sufficient to persuade the Judge, one
assumes he would have said so, rather than expounding for several pages on other conditions that
he deemed relevant. In particular, the Judge dedicates nearly half of his negligence discussion to
the condition of the truck and its impact on the “foreseeability” of the rank-and-file miner’s
violation of the standard requiring the equipment to be braked against movement.
The Judge’s focus is on the foreseeability of the accident. But the negligence adheres to
the violation itself—i.e., the failure to block the truck against movement. This does not mean that
the condition of the truck is irrelevant to the violation. But the Judge—in a departure from an
otherwise exemplary opinion—appears to have misunderstood the Secretary’s rationale for
including the truck’s condition in its argument on this violation.
In fact, the Judge himself questioned the relevance of the Secretary’s evidence about the
condition of the truck, which was the subject of a distinct and uncontested citation for failure to
properly maintain the truck. Tr. 26-27. In response, counsel for the Secretary explained that the
condition of the truck made it more likely that the truck would move because the brakes were
incapable of holding it. Tr. 27. Counsel for the Secretary said that “because the truck was in bad
condition to begin with, that it wasn’t just the—the failure to block it was maybe the last step in
the chain which caused the injury.” Tr. 27.
Thus, the Secretary made clear that the condition of the brakes was a factor in the
accident. However, the failure of the brakes in the accident also materially contributed to the
violation. We know that the standard was violated here—not merely because the operator
conceded the violation, but because the truck was demonstrably not blocked from unsafe
movement when it rolled onto the mechanic working beneath it.
Thus, the brakes and their condition were integral to the standard, and their poor
maintenance and condition contributed to the violation. This is the point the Secretary was trying
to make. The evidence of record supported the theory. The inspector testified that if the brakes
had been properly maintained, they would have held the truck, and that testing of the same model
under similar conditions confirmed this. The inspector also tested the brakes of the truck at issue
and found that they would not hold the truck.

40 FMSHRC Page 36

The very purpose of the truck’s braking system is to prevent the truck from moving—to
“block it against movement.” See U.S. Dep’t of the Interior, Dictionary of Mining, Mineral and
Related Terms 133 (1968) (“Brake” defined as a “device (as a block or band applied to the rim of
a wheel) to arrest the motion of a vehicle, a machine, or other mechanism and usually employing
some form of friction. A device for slowing, stopping, and holding an object.”) (internal citations
omitted). The failure of the brakes to do so here is evidence of a violation of the standard.
This is crucial because the failure to properly maintain or inspect the brakes reflected a
broader and more troubling lack of regard for safety. The majority focuses exclusively on the
behavior of the rank-and-file mechanic, but the condition of the brakes and the absence of proper
training and supervision are failures attributable to mine management.
Just as important, the condition of the brakes greatly amplified the danger to anyone
working beneath the truck, in combination with the failure to use wheel chocks, a secondary
device that would become relevant only if the brakes failed to hold the vehicle. It is the
convergence of these failures that created a foreseeable deadly hazard here, and while the Judge
does not say that, the Secretary argued it distinctly. This convergence is essential to the finding
of high negligence, because without all of the elements it might not be possible to discern the
boundary between moderate and high negligence here. We are essentially finding de novo that
the failure to provide necessary safety equipment is itself enough to constitute high negligence
without any consideration of the other circumstances cited by the Judge.
I therefore also disagree with the majority’s exclusion of training and supervision as
relevant factors in the negligence assessment. Again, the Judge found them relevant, and the
record supports his decision to consider an apparent lack of supervision and training. The record
fails to provide any evidence concerning the operator’s training, supervision, or familiarity with
wheel chocks—despite the fact that the inspector testified that chocks are used at nearly every
mine he inspects.
While the operator argues that the Secretary introduced no evidence concerning its
training or supervision in the use of wheel chocks, it is noteworthy that a member of mine
management used a crib block and a large rock to block the truck’s wheels after the accident, and
the operator’s own representatives doggedly insisted at hearing that crib blocks would have been
sufficient. The operator cannot logically insist that the Secretary further prove something it has
essentially admitted, by deed and by word, in the aftermath of the accident and on the record at
the hearing.4

4

In this regard, I generally agree with Acting Chairman Althen’s observations in footnote
9, supra, concerning the availability of wheel chocks and the operator’s neglect in failing to
provide them. I further note that Inspector Robinson testified that crib blocks might be adequate
in some circumstances (Tr. 45-46), but would have been insufficient here due to the size and
weight of the truck (Tr. 31-32). The suitability of available materials that may be used to block
trucks against motion during maintenance should be evaluated on a case-by-case basis, and that
was properly done here by the inspector and the Judge.

40 FMSHRC Page 37

Taking all of the circumstances into account, then, the conclusion of high negligence is
supported by both the relative indifference to the condition of the truck’s brakes and the general
carelessness regarding the proper use of materials to ensure the truck would be blocked against
movement. The operator’s imputable actions include not only the failure to provide rank-and-file
miners with the tools needed to work safely, but a lack of focus on conditions such as the
inspection and maintenance of the truck’s brakes and the provision of training and supervision in
proper maintenance techniques, which were generally within management’s scope of control.
The distinction between moderate and high negligence is often legally significant. The
fact that the operator not only failed to properly maintain the primary system designed to prevent
the truck here from moving while miners worked beneath it, but also failed to provide or ensure
the use of proper secondary devices, created a high degree of danger and evinces high
negligence. While the Judge did not perfectly express the relationship between the distinct
breaches in the operator’s duty, he did account for all of them in holding the operator to be
highly negligent. We should affirm him on that basis.

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

40 FMSHRC Page 38

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

February 8, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of KEVIN SHAFFER
v.

Docket No. WEVA 2018-117-D

THE MARION COUNTY COAL
COMPANY
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This temporary reinstatement proceeding arises under section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (2012) (“Mine Act”).1 On
January 22, 2018, the Commission received from the Marion County Coal Company (“Marion
County Coal”) a petition for review of an Administrative Law Judge’s January 16, 2018 order
temporarily reinstating Kevin Shaffer. The operator has also requested a stay of the temporary
reinstatement order. On January 29, 2018, the Commission received the Secretary of Labor’s

1

30 U.S.C. § 815(c)(2) provides in pertinent part:
Any miner . . . who believes that he has been discharged, interfered
with, or otherwise discriminated against by any person in violation
of this subsection may, within 60 days after such violation occurs,
file a complaint with the Secretary alleging such discrimination.
Upon receipt of such complaint, the Secretary shall forward a copy
of the complaint to the respondent and shall cause such
investigation to be made as [s]he deems appropriate. Such
investigation shall commence within 15 days of the Secretary’s
receipt of the complaint, and if the Secretary finds that such
complaint was not frivolously brought, the Commission, on an
expedited basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending final order on the
complaint.

40 FMSHRC Page 39

opposition to the petition and motion to stay.2 For the reasons that follow, we grant the petition
for review, deny the operator’s motion for a stay, and affirm the Judge’s order requiring the
temporary reinstatement of Mr. Shaffer.
While all Commissioners reach this result, Commissioners have stated differing
rationales for the result in two separate opinions. The separate opinions of the Commissioners
follow.
Factual and Procedural Background
Mr. Shaffer’s employment with Marion County Coal began in June 2010. His assigned
duties included working as a mobile equipment operator at the Marion County Mine to haul
refuse from a refuse bin to the refuse disposal area.
On October 18, 2017, Shaffer made safety complaints regarding the condition of mobile
equipment he was operating, referred to as the No. 4 truck, and requested alternative work.
Shaffer alleges that he complained to his supervisor, Adam Bond, that the transmission of the
truck was not working, and that the truck had twice jumped out of neutral into reverse.
Supervisor Bond instructed Shaffer to use a different truck. A mechanic, Paul Dixon, was called
to the mine to repair the No. 4 truck. 40 FMSHRC ___, slip op. at 3, No. WEVA 2018-117-D
(Jan. 16, 2018) (ALJ) (“slip op.”).
Later that shift, Bond informed Shaffer that the mechanic, Dixon, had seen Shaffer
driving without his headlights turned on. According to Shaffer, he responded by denying Dixon’s
claim, and Supervisor Bond, in turn, responded, “I’m tired of this f___ing sh__ on this
equipment.” Id. According to Bond, when Bond confronted Shaffer about the mechanic’s claim,
Shaffer responded by stating repeatedly, “f__ you,” and told Bond, “I’m going to whip your ass;
I’m going to take you to the gate.” Id.
The next day, Supervisor Bond recounted the confrontation to the human resources office
at Marion County Coal. Id. Later that day, Marion County Coal suspended Shaffer pending an
investigation and, on October 23, suspended him with intent to discharge. Id. The United Mine
Workers of America instituted a grievance process on behalf of Shaffer.
Shaffer filed a complaint with the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) alleging that he had been discharged in violation of section 105(c) of
the Mine Act. MSHA Special Investigator Clarence Moore concluded that Shaffer’s complaint,
alleging that he had been discharged for engaging in protected activity, was not frivolously
brought. The Secretary of Labor filed an Application for Temporary Reinstatement.

2

On January 29, 2018, the Secretary electronically filed a motion for leave to file a
corrected response to the operator’s petition and the corrected response. The corrected response
was timely and not substantially different from the initial response filed earlier that date. See 29
C.F.R. § 2700.8(d) (“For filing by electronic means . . . the due date ends at midnight
Washington, D.C. local time.”). We hereby grant the motion and accept the corrected response
for filing.

40 FMSHRC Page 40

The operator elected to brief the issue in lieu of a hearing on the application, and attached
to its brief various exhibits including an arbitration transcript and associated arbitration decision
resulting from the grievance process. Marion County Coal contended before the Judge that it
terminated Shaffer because he threatened Bond in violation of its insubordination policy, and
because he had similar discipline in his personnel record.
The Judge ordered Marion County Coal to temporarily reinstate Shaffer. She concluded
that it was undisputed that Shaffer had engaged in protected activity by complaining about the
No. 4 truck on October 18. Slip op. at 4. The Judge further stated that the Secretary had alleged
adverse action close in proximity to the protected activity, and that it was undisputed that Bond
had knowledge of Shaffer’s protected activity. She noted that, at best, the operator has shown its
intent to defend its actions on the basis of legitimate, business-related, non-discriminatory
reasons. The Judge concluded that because the allegations of discrimination set forth in the
Secretary’s Application had not been shown to be clearly lacking in merit, the Secretary had
sufficiently established that Shaffer’s discrimination complaint was non-frivolous. Id. at 4-5.
Marion County Coal filed a petition for review of the Judge’s temporary reinstatement
order pursuant to Commission Procedural Rule 45(f), 29 C.F.R. § 2700.45(f). It argues that the
Secretary failed to establish any non-frivolous nexus between Shaffer’s termination and his
safety complaint through evidence that Shaffer had suffered disparate treatment or that the
operator demonstrated hostility toward Shaffer’s protected activity. It asserts that the evidence
demonstrates that the only reason for Shaffer’s termination was his improper and physically
threatening behavior, which violated company policies. Finally, it requests that the Commission
stay Shaffer’s reinstatement until a ruling has been issued on the merits because it contends that
Shaffer’s “reentry into the workforce would create a potentially unsafe work environment for
other miners and members of management.” Mot. to Stay at 3.
The Secretary opposed the petition and motion to stay.
Separate Opinion of Commissioner Jordan and Commissioner Cohen:
A.

Petition for Review of Temporary Reinstatement

Under section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination]
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending final order on the
complaint.” 30 U.S.C. § 815(c)(2). The Commission has recognized that the “scope of a
temporary reinstatement hearing is narrow, being limited to a determination by the [J]udge as to
whether a miner’s discrimination complaint is frivolously brought.” See Sec’y of Labor on behalf
of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th
Cir. 1990). The “not frivolously brought” standard reflects a Congressional intent that
“employers should bear a proportionately greater burden of the risk of an erroneous decision in a
temporary reinstatement proceeding.” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 748
(11th Cir. 1990).
Courts and the Commission have likened the “not frivolously brought” standard set forth
in section 105(c)(2) with the “reasonable cause to believe” standard applied in other statutes. Jim
Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (“there is virtually no rational

40 FMSHRC Page 41

basis for distinguishing between the stringency of this standard and the ‘reasonable cause to
believe’ standard”); Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 34 FMSHRC
1875, 1877 (Aug. 2012) (other citations omitted). The Commission has noted that in the context
of a petition for interim injunctive relief under the National Labor Relations Act (“NLRA”), 29
U.S.C. § 160(j), courts have recognized that establishing “reasonable cause to believe” that a
violation of the statute has occurred is a “relatively insubstantial” burden. Argus Energy, 34
FMSHRC at 1878 (citing Schaub v. W. MI Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th
Cir. 2001). The Commission stated that in Schaub, “the Court explained that the proponent ‘need
not prove a violation of the NLRA nor even convince the district court of the validity of the
Board’s theory of liability; instead he need only show that the Board’s legal theory is substantial
and not frivolous.’” Id. (citations omitted). It noted that the Court cautioned:
An important point to remember in reviewing a district court’s
determination of reasonable cause is that the district judge need not
resolve conflicting evidence between the parties. See Fleischut [v.
Nixon Detroit Diesel, Inc., 859 F.2d 26, 29 (6th Cir. 1988)] (stating
that the appellant’s appeal did not seriously challenge whether
reasonable cause exists; instead it simply showed that a conflict in
the evidence exists); Gottfried [v. Frankel, 818 F.2d 485, 494 (6th
Cir. 1987)] (same). Rather, so long as facts exist which could
support the Board’s theory of liability, the district court’s findings
cannot be clearly erroneous. Fleischut, 859 F.2d at 29; Gottfried,
818 F.2d at 494.
Id. (citations omitted).
Similarly, at a temporary reinstatement hearing, the Judge must determine “whether the
evidence mustered by the miner[] to date established that [his or her] complaint[] [is]
nonfrivolous, not whether there is sufficient evidence of discrimination to justify permanent
reinstatement.” JWR, 920 F.2d 744. As the Commission has recognized, “[i]t [is] not the
[J]udge’s duty, nor is it the Commission’s, to resolve the conflict in testimony at this preliminary
stage of proceedings.” Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717,
719 (July 1999). The Commission applies the substantial evidence standard in reviewing the
Judge’s determination.3 Sec’y of Labor on behalf of Bussanich v. Centralia Mining Co., 22
FMSHRC 153, 157 (Feb. 2000).
While an applicant for temporary reinstatement need not prove a prima facie case of
discrimination, it is useful to review the elements of a discrimination claim in order to assess
whether the evidence at this stage of the proceedings meets the non-frivolous test. CAM Mining,
LLC, 31 FMSHRC 1085, 1088 (Oct. 2009). In order to establish a prima facie case of
discrimination under section 105(c) of the Mine Act, a complaining miner bears the burden of
3

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

40 FMSHRC Page 42

establishing (1) that he engaged in protected activity and (2) that the adverse action complained
of was motivated in any part by that activity. Sec’y of Labor on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2799 (Oct. 19080), rev’d on other grounds, 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). The Commission has identified the following indicia of discriminatory intent to establish
a nexus between the protected activity and the alleged discrimination: (1) knowledge of
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. CAM Mining, 31 FMSHRC at 1089 (other citations omitted).
We conclude that substantial evidence supports the Judge’s determination that Shaffer’s
application for temporary reinstatement was not frivolously brought. As stated by the Judge, it is
undisputed that Shaffer engaged in protected activity when he made safety complaints to his
supervisor about the No. 4 truck on October 18, 2017. Slip op. at 3; Opp’n to PTR at 6. In
addition, there is no dispute that Shaffer’s termination from employment was an adverse action.
Id. Rather, the issue on review is whether there is substantial evidence to support the Judge’s
determination that there is a sufficient nexus between the protected activity and adverse action to
support temporary reinstatement.
As the Judge found, Marion County Coal has explicitly acknowledged that Shaffer
engaged in protected activity and that Bond had knowledge of it. Slip op. at 4. Moreover, there is
proximity in time between Shaffer’s protected activity and adverse action in that Shaffer made
safety complaints to Bond about the No. 4 truck on October 18, Shaffer was suspended pending
an investigation the next day, and Shaffer’s employment was terminated on October 23. Slip op.
at 3.
There is disputed evidence in the record regarding the operator’s hostility or animus
toward the protected activity. Shaffer alleges that Bond told Shaffer, “I’m tired of this f___ing
sh__ on this equipment.” Slip op. at 3. The operator alleges that the record does not contain
substantial evidence of hostility, and that when Shaffer made the complaints to Bond, Bond told
Shaffer to stop using the equipment and called a mechanic to repair the truck. PTR at 3, 6. It
maintains that the only reason Shaffer was terminated was because of his improper and
threatening behavior, which violated company policies.

40 FMSHRC Page 43

Evidence that Shaffer was discharged for unprotected activity relates to the operator’s
rebuttal or affirmative defense. The Judge will need to resolve the conflicting evidence in the
context of the full discrimination proceeding. See Sec’y of Labor on behalf of Billings v.
Proppant Specialists, LLC, 33 FMSHRC 2383, 2385 (Oct. 2011). At the temporary reinstatement
stage, however, the Judge does not resolve conflicts in the evidence. 4 “‘[R]esolving conflicts in
the testimony, and ma[king] credibility determinations in evaluating the Secretary’s prima facie
case’ are simply not appropriate” in a temporary reinstatement proceeding. Id. (citations
omitted). The Commission has recognized that “[r]equiring the Judge to resolve conflicts in
testimony between [the alleged discriminatee] and the operator’s witnesses, when the parties
have not yet completed discovery, would improperly transform the temporary reinstatement
hearing into a hearing on the merits.”5 Argus Energy, 34 FMSHRC at 1879.
The Judge did not consider whether Shaffer suffered disparate treatment. However, given
the evidence discussed above, we conclude that substantial evidence exists in the record to
support the Judge’s conclusion that Shaffer’s application for temporary reinstatement was not
4

In support of its position Marion County Coal asserts that “violating an established
company policy has consistently been found to undermine a viable claim under Section 105(c) of
the Act, even in the context of a temporary reinstatement proceeding.” PTR at 7. In support of
this argument, the operator cites a number of decisions that are not relevant to temporary
reinstatement proceedings, do not involve disputed facts, are non-precedential ALJ decisions, or
a combination of the above. Three cases the operator relies upon – (1) Sec’y of Labor on behalf
of McKinsey v. Pretty Good Sand Co., 36 FMSHRC 2843, 2869-70 (Nov. 2014) (ALJ), (2) Sec’y
of Labor on behalf of Pack v. Maynard Branch Dredging Co., 11 FMSHRC 168, 172 (Feb.
1989), aff’d, 896 F.2d 599 (D.C. Cir. 1990), and (3) Pollock v. Kennecott Barney’s Canyon
Mining Co., 22 FMSHRC 419 (Mar. 2000) (ALJ) – involve decisions on the merits of
discrimination proceedings, not temporary reinstatements. In the fourth case – Sec’y on behalf of
Fletcher v. Frontier-Kemper Constructors, Inc., 34 FMSHRC 2189 (Aug. 2012) (ALJ) – the
Judge determined that, unlike this case, the relevant facts establishing the non-existence of
hostility toward protected activity were not in dispute.
5

Our colleagues have recognized that Shaffer and Bond gave conflicting testimony as to
who said what to whom and when during the critical conversation. This conflicting evidence
goes to the heart of whether Shaffer’s discharge was in violation of section 105(c) of the Mine
Act. Our colleagues further recognize that substantial evidence supports the Judge’s finding that
the complaint was non-frivolous. We decline to discuss, as our colleagues do, the nature and
quantum of evidence which may be sufficient to weigh against a claimant’s evidence.
Commission precedent rejects the weighing of evidence in temporary reinstatement proceedings.
We are mindful that a temporary reinstatement hearing occurs in the preliminary stages
of a proceeding, often before discovery has been completed, in recognition that “temporary
reinstatement is 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 resolution of
the discrimination complaint.” S. Rep. No. 95-181, at 37, reprinted in Subcomm. on Labor,
Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 625 (1978). At this preliminary stage of the proceedings, we do not have before us the full
record that will be developed in any proceeding on the merits.

40 FMSHRC Page 44

frivolous. Cf. Sec’y of Labor on behalf of Stahl v. A&K Earth Movers, Inc., 22 FMSHRC 323,
325-26 (Mar. 2000) (affirming temporary reinstatement based upon a nexus shown by
knowledge and proximity in time between the protected activity and adverse action).
B.

Motion to Stay

Commission Procedural Rule 45(f) provides that, with respect to an order granting
temporary reinstatement, “[t]he filing of a petition shall not stay the effect of the Judge’s order
unless the Commission so directs; a motion for such a stay will be granted only under
extraordinary circumstances.” 29 C.F.R. § 2700.45(f). When a party requests that the
Commission stay a temporary reinstatement order, the Commission applies the test set forth in
Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C.
Cir. 1958). See Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1312
(Aug. 1987); Sec’y of Labor on behalf of Rodriguez v. C.R. Meyer and Sons Co., 35 FMSHRC
811, 812 (Apr. 2013). The burden is on the movant to provide sufficient substantiation of the
requirements for the stay. North Fork Coal Corp., 33 FMSHRC 589, 596 (Mar. 2011); JWR, 9
FMSHRC at 1312.
The operator argues that a stay is appropriate because having Shaffer re-enter the work
force would create a potentially unsafe work environment for other miners and management
given his past conduct. Mot. at 3. The operator does not cite or apply the factors in Virginia
Petroleum Jobbers. Nor does the operator state why its concerns regarding Shaffer could not be
addressed through economic reinstatement. Accordingly, the operator has failed to meet its
burden of showing the “extraordinary circumstances” warranting a stay.
Conclusion
For the reasons discussed above, we join our colleagues in granting the petition for
review, denying the operator’s motion for a stay, and affirming the Judge’s order requiring the
temporary reinstatement of Shaffer. We intimate no view as to the ultimate merits of this case.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

40 FMSHRC Page 45

Separate Opinion of Acting Chairman Althen and Commissioner Young:
We join in granting the petition for review of the Judge’s order temporarily reinstating
Kevin Shaffer, affirming the Judge’s order, and denying the operator’s motion for a stay.
There is no presumptive right to temporary reinstatement. Rather, the complainant’s
entitlement must be established by substantial evidence, as in any other proceeding. Only the
standard that the evidence must meet is diminished. Thus, in a discrimination case, the
complainant bears the burden of proving discrimination by a preponderance of the evidence.
Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(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, 817-18 (Apr. 1981). In contrast, at this early stage of the proceedings, the
Secretary has the burden of proving by a preponderance of the evidence only that the claim is not
frivolous.1 Sec’y of Labor on behalf of Pappas, 38 FMSHRC 137, 154 (Feb. 2016), rev’d on
other grounds, CalPortland Co. v. FMSHRC, 839 F.3d 1153 (D.C. Cir. 2016).
Preponderance of the evidence means the greater weight of the evidence, such that the
Secretary has demonstrated that it is more probable than not that the claim is not frivolous. The
burden of proof in a temporary reinstatement case, therefore, contains two legal standards:
“preponderance of the evidence” and “non-frivolous.”

1

The legislative history of the Mine Act states that, under the not frivolously brought
standard, the complaint must “appear to have merit.” S. Rep. 95-181, at 36 (1977), reprinted in
1977 U.S.C.C.A.N. 3401, 3436. The Eleventh Circuit equated the Mine Act’s “not frivolously
brought” standard to the “reasonable cause to believe standard” applied in another statute’s
temporary reinstatement proceedings. Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 747
(11th Cir. 1990).
The Commission has repeatedly approved this standard. Hopkins Cty. Coal, LLC, 38
FMSHRC 1317, 1326 (June 2016); Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC,
34 FMSHRC 1875, 1877 (Aug. 2012); Sec’y of Labor on behalf of Bussanich v. Centralia
Mining Co., 22 FMSHRC 153, 158 (Feb. 2000); Sec’y of Labor on behalf of Markovich v. Minn.
Ore Operations, USX Corp., 18 FMSHRC 1349, 1350 (Aug. 1996) (“The judge cited the correct
legal test in reviewing the Secretary’s application. He cited the decision of the Eleventh Circuit
Court of Appeals, in which that court concluded the standard for review of an application
for reinstatement was a ‘reasonable cause to believe standard.’” (citations omitted)); Sec’y of
Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987).

40 FMSHRC Page 46

As with all disputed claims, the outcome depends upon the evidence presented. If the
operator requests a hearing, the hearing is a full judicial proceeding.2 In Secretary of Labor on
behalf of Gray v. North Fork Coal Corp., 33 FMSHRC 27 (Jan. 2011), the Commission quoted
with approval the decision of the Eleventh Circuit regarding the nature of a temporary
reinstatement hearing:
At [the temporary reinstatement hearing], the employer has the opportunity to test
the credibility of any witnesses supporting the miner's complaint through crossexamination and may present his own testimony and documentary evidence
contesting the temporary reinstatement. . . . [T]he statute grants [the employer] the
right to seek an adjudication from a neutral tribunal, prior to a deprivation of its
property interest, with all the regalia of a full evidentiary hearing at its disposal.
Id. at 42 (quoting Jim Walter Res., 920 F.2d at 747-748).
We glean two points. First, a temporary reinstatement hearing or proceeding is a full
evidentiary process, albeit a greatly expedited one. The opportunity for such a hearing satisfies
the operator’s due process rights.
Second, the opportunity to test credibility identified by the Commission in Gray would be
meaningless without a genuine exposition of the evidence presented. If versions of events
diverge without dispositive proof of either, the outcome at the reinstatement stage may not rest
upon a choice between the versions, and the miner must be reinstated. However, a Judge need
not accept testimony if it is demonstrably false, patently incredible, or obviously erroneous,
because such evidence fails to qualify as “substantial evidence” upon which a reasonable person
might rely.3
Thus, all evidence relating to the adverse employment action is relevant in a temporary
reinstatement proceeding — even that which seems directed to an affirmative defense or rebuttal
of the miner’s claim. While we agree that the Judge should not make credibility and value
determinations of the operator’s rebuttal or affirmative defense, if the totality of the evidence or
testimony admits of only one conclusion, there is no conflict to resolve. It is the Judge’s duty to
determine whether the claim is frivolous, in light of undisputed or conclusively-established facts
and inescapable inferences.

2

Respondent, Marion County Coal, agreed to forgo a hearing. The parties relied instead
upon attachments to their briefs in support of their respective positions. The Secretary attached
the declaration of Special Investigator Clarence Moore to his brief. Marion County Coal attached
a transcript of an arbitration proceeding resulting from a grievance filed by the United Mine
Worker of America on Shaffer’s behalf and other affidavits. The Judge necessarily drew the
background information from those sources; she gave no weight to the arbitration decision.
3

We do not read our colleagues’ opinion as suggesting a Judge must credit testimony if
the other party demonstrates that such testimony is false or erroneous, or that a Judge must grant
reinstatement if the claim does not have a legitimate chance of succeeding because its basis is
shown to be false or erroneous.

40 FMSHRC Page 47

In this case, the two principal witnesses, Shaffer and Bond, gave conflicting testimony as
to who said what to whom and when during the critical conversation. Finding that she could not
determine that the allegations in the application for reinstatement clearly lacked merit, the Judge
reinstated Shaffer.
We may define a “non-frivolous” case as one that is “viable.” At the conclusion of a
temporary reinstatement proceeding, the Secretary must have shown by a preponderance of the
evidence the existence a claim of discrimination or interference that is capable of succeeding —
that is, a case which is not foreclosed by the evidence available and one for which there is a
reasonable cause to believe the complainant may prevail.
In this case, a witness, without rebuttal, testified at the arbitration hearing about Shaffer’s
abusive conduct during a company trip. He said that when water was not working at a mine
rescue team’s motel during a company trip in which Shaffer participated, Shaffer “called the
hotel manager – he was of Hispanic origin. He called him Jose and also called him the Sand
N____r and also was creating a ruckus out in the parking lot when there were other guests out in
the parking lot at the time.” Arb. Tr. 174. Shaffer did not disclaim this conduct in the arbitration
hearing or in the pleadings before the Judge. There was further testimony that Shaffer “was
abusive to the team captain and to fellow members” and that “when the team vacated his
[Shaffer’s] particular room had additional damage that was investigated after they had left and
moved to another hotel.” Id. at 170, 174.
The operator removed Shaffer from the mine rescue team and suspended him for five
days for his actions. Id. at 170-71. There is no evidence Shaffer or the UMWA filed any
complaint or grievance for such discipline. Vile, racist language is reprehensible in itself;
destructive rage carries misconduct to an even higher level. These are important contextual
details that an employer would be expected to take into account in determining whether or not to
retain an employee.
Testimony also established without dispute that two months before the conflict leading to
his discharge occurred, Shaffer said “f___ you” to his supervisor Adam Bond when Bond simply
told Shaffer that he would need to work overtime. Arb. Tr. 79-81. Bond testified that Shaffer
repeated it and then said, “I am going to f___ your eyeballs out.” Id. at 81. Shaffer admitted that
he used “f___” toward Bond on that day. Id. at 263.
The critical confrontation for this case was also between Shaffer and Bond. Shaffer
testified that Bond cursed at him for raising problems with the equipment. Bond testified that
Shaffer swore at him for reprimanding Shaffer for driving with his lights out, and that Shaffer
threatened to take him to the gate — that is, from the mine site — and beat him.4 Paul Dixon, a
mechanic for a subcontractor testified he could hear some of the conversation, although some
equipment moving nearby partially affected his hearing. He testified that he heard Shaffer
“hollering at [Bond], ‘F___ you’ repeatedly.” Id. at 139. Clarifying, Dixon stated, “I mean he
4

There also was an earlier conversation. Shaffer asserted that at that separate time he
asserted safety rights and requested a safety representative. Bond said Shaffer only said the truck
was defective and that he (Bond) directed him to park the truck and use a different one. There
were no witnesses.

40 FMSHRC Page 48

was literally screaming ‘F___ you’ and he was right up – I mean he was right up against him.”
Id. at 141. Dixon heard Shaffer “holler[] out, ‘The gate,’ and pointed down towards the main
gate.” Id. at 139. During the exchange, Dixon could tell that Bond seemed calm, but he “could
definitely hear [Shaffer] screaming.” Id. at 140. Dixon did not count how many times Shaffer
said “f___ you” to Bond, but he said he was sure it was 10 to 15 times. Id. at 142.
This evidence is relevant, and the Bond testimony, confirmed to some extent by Dixon,
supports a rebuttal and/or affirmative defense. But at this stage, there has been no discovery. The
Secretary had no opportunity to cross-examine Dixon about his perception or motivations. And
there is little evidence about the context surrounding the confrontation between Shaffer and
Bond. But we note that at some point, a claimant’s testimony may be rendered inherently
incredible by the weight of evidence against it.
At that point, the Judge would not be making a “credibility determination,” but a finding
that evidence offered by the claimant is so unreliable that a reasonable person could not choose
to believe it. Had Dixon’s account been more clear and corroborated by other disinterested
witnesses or a recording of the conversation, the Judge might well have concluded substantial
evidence established that Shaffer profanely and repeatedly threatened to take Bond to the gate
and beat him and that such conduct was intolerable regardless of the context.
In the absence of a disparate-impact component or, perhaps, severe provocation,5 there
can be no doubt that vulgar threats to a supervisor to take him off-site and beat him, especially in
light of prior unrebutted bad conduct, would constitute a separate and sufficient reason for
discharge6 because there would not be reasonable cause to believe the claimant could prevail on
his claim. In short, if testimony or evidence for a claimant is conclusively disproved by other
evidence (video or audio tapes, evidence of a criminal conviction for the underlying misconduct,
etc.), it is not necessary to accept such refuted testimony or evidence in deciding whether there is
5

Due to the outcome in this proceeding and the fact that Shaffer has denied making the
statement rather than claiming provocation, we need not consider the dubious proposition that
wrongfully reprimanding an employee for complaining about the safety of equipment would be
sufficiently provocative to justify a miner with a history of misconduct threatening to beat his
supervisor.
6

At MSHA’s 2016 Annual Training Resources Applied to Mining Conference, Charlie
Moore of Catamount Consulting LLC cited a survey by Business Wire Magazine that found that
“[w]orkplace [v]iolence is considered the most significant threat to American Business.” Charlie
Moore, Workplace Violence – Who is At Risk and How to Reduce It, 2016 TRAM Conference,
https://arlweb.msha.gov/Training/materials/tram/2016/WorkplaceViolence&Prevention.pdf
(emphasis in original). The presentation identified 14 signs of impending violence. Among them
were (1) “persons who make veiled or clear threats,” (2) “persons who attempt to intimidate or
instill fear in others,” (3) “persons who cannot calmly accept criticism,” (4) “persons who hold
grudges, silently or with ongoing talk,” and (5) “[persons who are] easily agitated and take
longer to ‘wind down’ each time.” Separately, it is regrettable that MSHA has missed the ninetyday statutory deadline for completing its investigation in this case. The ninety-day requirement is
not jurisdictional but MSHA should not treat it as a mere suggestion, especially in cases dealing
with alleged threats of physical violence.

40 FMSHRC Page 49

a reasonable cause to believe a claim may succeed, because the miner’s testimony, alone, would
not rise to the level of substantial evidence necessary to support a viable claim.
Here, it is Shaffer’s version against Bond’s version, except to the extent Dixon supports
Bond. Determining that there was a genuine conflict between the version of events presented by
Shaffer and that offered by Bond, and corroborated to some extent by Dixon, was within the
Judge’s discretion. Substantial evidence supports the Judge’s finding, and we concur in affirming
reinstatement.

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

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

40 FMSHRC Page 50

COMMISSION ORDERS

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

February 15, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2017-0148
v.
WHITE COUNTY COAL, LLC
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
ORDER
BY THE COMMISSION:
On February 9, 2018, Administrative Law Judge Priscilla Rae requested leave of the
Commission to amend her Decision Approving Settlement, issued in this proceeding on October
24, 2017, in order to correct a clerical error. Under section 113(d)(1) of the Act, the Judge’s
decision became a final order of the Commission 40 days after its issuance. 30 U.S.C. §
823(d)(1). However, pursuant to Commission Procedural Rule 69(c), a Judge may correct
clerical errors in a final decision with leave of the Commission. 29 C.F.R. § 2700.69(c).
Upon consideration of the Judge’s request, it is GRANTED. We reopen the case, remand
the matter to the Judge, and grant her leave to correct the error as requested.

/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

40 FMSHRC Page 51

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

February 15, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2015-525-M
A.C. No. 05-04745-377565

v.
WILLITS COMPANY, 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.

40 FMSHRC Page 52

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

40 FMSHRC Page 53

Distribution:
Robert C. Willits
President
P.O. Box 825
Cheyenne, WY 82003-0825
Ali Beydoun
Office of the Solicitor
US Department of Labor
201 12th St. South-Suite 401
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

40 FMSHRC Page 54

ADMINISTRATIVE LAW JUDGE DECISIONS

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

January 11, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ANTHONY VEGA,
Complainant,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2018-0135-DM
MSHA Case No: WE MD 18-02

v.
SYAR INDUSTRIES, INC.,
Respondent.

Mine: Napa Quarry
Mine ID: 04-00023

DECISION AND ORDER TEMPORARILY REINSTATING ANTHONY VEGA
Appearances:

Abigail G. Daquiz, Esq., Office of the Solicitor, U.S. Department of
Labor, Seattle, Washington, for Complainant;
Bradley B. Johnson, Esq., Harrison, Temblador, Hungerford & Johnson
LLP, Sacramento, California, for Respondent.

Before:

Judge L. Zane Gill

This case involves an Application for Temporary Reinstatement filed on December 11,
2017, by the Secretary of Labor (“Secretary”) on behalf of Anthony Vega (“Vega” or
“Complainant”), pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of
1977 (“Act” or “Mine Act”), 30 U.S.C. § 815(c)(2), and 29 C.F.R. § 2700.45. Vega filed a
Discrimination Complaint with the Mine Safety and Health Administration (“MSHA”) in its
Western District Office on November 8, 2017. The complaint alleged that Vega was terminated
for activity protected under the Mine Act. In his Application for Temporary Reinstatement, the
Secretary contends that Vega’s complaint was not frivolously brought and seeks an order
temporarily reinstating Vega to his former position as a mobile equipment technician for the
Respondent, Syar Industries, Inc. (“Syar”), at the Syar Napa shop pending the final hearing and
disposition of this case. Syar filed a Request for Hearing on December 22, 2017. An expedited
hearing on the application was held on January 4, 2018, in Vacaville, California.
On January 2, 2018, two days prior to the hearing, the Secretary filed a motion in limine
to exclude evidence extending beyond the limited scope of the hearing. Syar’s counsel stated that
Syar did not oppose the Secretary’s motion. (Tr.6:11–15) During the hearing I ruled on ad hoc
objections by counsel with the Secretary’s limine motion in mind, but did not otherwise rule on
it.

40 FMSHRC Page 55

For the reasons that follow, I grant the application and order Vega’s temporary
reinstatement.
I. SUMMARY OF THE EVIDENCE
Syar is a mine operator in northern California, primarily involved in the rock quarrying,
asphalt mining, and concrete businesses. (Tr.12:1–10) The mine at issue is divided by a freeway
into two parts: the Napa shop and the Napa quarry. (Tr.16:23–17:5) The Napa shop does
maintenance work, while the Napa quarry is where the extraction is done. (Tr.17:2–5)
Vega started working at Syar in 1995 while in college. (Tr.14:24–15:3) While at Syar, he
worked in various positions: first as a parts runner (Tr.15:8–9), then in the machine shop for six
months (Tr.15:10–11), and next as a mechanic, after completing an apprenticeship with the
journeyman mechanics. (Tr.15:12–17) Before being terminated by Syar, Vega was most recently
employed as a heavy duty repairman. (Tr.15:18–20) Vega primarily worked at the Napa shop site
and reported directly to Foreman Ken Calvin. (Tr.17:6–7, 11–13; 19:15; 43:10–11) In addition to
his work as a heavy duty repairman, Vega was a Cal/OSHA representative, MSHA miners’
representative, and a steward with the Operating Engineers Local 3 Union. (Tr.15:21–22) As a
union steward, Vega was tasked with referring other members’ complaints to management.
(Tr.46:16–18)
Smoke in the Hose Repair Room
The hose repair room is a metal shed measuring approximately 12 feet by 12 feet
(Tr.18:20), constructed approximately ten years ago for the purpose of cutting wire-braided
hydraulic hoses.1 (Tr.49:23–24; 50:2–11) Vega testified that although an ordinary “knife blade”
would cut a regular rubber hose and up to two wires, most of Syar’s hoses are high-pressure
hydraulic hoses, which contain four to six wires and cannot be severed by a knife blade.
(Tr.18:3–8) Miners were therefore told to cut the hydraulic hoses with an abrasive wheel, which
“basically just grinds the rubber and billows out a lot of smoke.” (Tr.18:8–11)
Vega wondered if the smoke was toxic and subsequently reported the issue to Napa shop
safety director James Kerr sometime in January 2017. (Tr.16:18–20; 41:20–42:2; 51:8–18) Vega
testified that Kerr was unable to find any information on the toxicity of the smoke and advised
Vega to wear a respirator if the smoke was an issue. (Tr.18:15–17; 42:3–7) Vega testified that
the smoke problem had been ongoing since the hose repair room was constructed ten years prior.
(Tr.49:16–24) However, until the January 2017 complaint to Kerr, Vega had not reported this
smoke issue on his workplace exam forms nor did he raise the issue during safety meetings.
(Tr.50:21–51:3)
In July 2017, Bob Hayes, a co-worker, complained to Vega about the hose repair room
smoke while they were working on changing out a hydraulic hose that had blown. (Tr.19:1–4;
42:23–43:4) Hayes told Vega that he wanted to see if they could order a hose cutter machine that
could cut hoses without producing smoke. (Tr.19:4–7) Vega was skeptical that Syar would buy a
1

The hoses being cut in the hose repair room are very large, measuring approximately 30
feet in length, 2.5 inches in diameter, and weighing 300 pounds. (Tr.20:12–25; 50:14–20)

40 FMSHRC Page 56

new machine, and suggested that they should instead look for a better blade. (Tr.19:7–9) Vega
subsequently searched online and found a blade that would fit the old chop saw machine.
(Tr.19:9–10) Vega believed that management did not like him (Tr.19:13–14; 33:12–24). He
suggested that Hayes make the request for the new part because he felt that management would
reject the request if they knew it came from Vega. (Tr.19:11–14) Hayes made the request to their
direct supervisor and foreman, Ken Calvin, and received permission to go ahead with the order.
(Tr.19:14–16; 43:8–11; 62:10–11) Hayes then submitted the order to Randy Novack, the parts
specialist. (Tr.19:17–18)
A week later, Vega followed up with Novack and was told that the parts request was put
on hold by Napa shop superintendent James Irvine while he looked for cheaper alternatives.
(Tr.19:20–23; 21:11–18) Vega did a second follow-up with Novack the next week but was again
told that Irvine was waiting to see what other companies were using to cut their hoses.
(Tr.19:24–20:6) Vega testified he told Novack that if Irvine continued to stall, and if the smoke
continued to be an issue, Vega would call MSHA. (Tr.20:7–16; 44:7–9) Vega testified that he
did not hear anything more about the status of the chop saw or requested part from that point on.
(Tr.21:5–8)
Near-Miss Incident on Quarry Haul Road
In July 2017, Vega was working in the quarry when a fellow miner told him of a recent,
near-miss incident involving two vehicles on a haul road. (Tr.21:21–22:13) Vega told the miner
he would talk to Napa shop safety director Kerr to see what the legal requirements were for the
width of a two-way haul road and if warning signs were necessary. (Tr.22:14–18) When he
returned to the Napa shop, Vega spoke with Kerr and asked him what the legal width of a haul
road was for two-way traffic. (Tr.22:19–20; 53:1–4) Kerr was unable to immediately find an
answer. (Tr.22:22–24) Rather than wait, Vega asked Kerr to keep him updated and to relay any
findings to Jamal Grayson, the Napa quarry safety director. (Tr.22:25–23:7)
A few days later, Vega spoke again with Kerr. (Tr.23:13–18) Kerr stated that he could
not find any information, so he spoke with Irvine about the issue. (Tr.23:17–20) Vega testified
that Kerr indicated that Irvine was upset with Vega for involving himself with Napa quarry
issues, since Vega was a miners’ representative for the Napa shop, not the quarry. (Tr.23:21–
24:1; 61:4–7) To Vega’s knowledge, nothing further was done about the haul road issue.
(Tr.23:8–10)
Writing on Pay Envelopes & Investigation by Management
In mid-July 2017, Vega noticed that people were drawing smiley faces and writing
“Hello” or “Good job” on co-workers’ pay envelopes left at the front counter. (Tr.25:15–18;
54:12–16) Vega also began writing complimentary notes like “Great job today” or “glad to have
you on board” on his co-workers’ pay envelopes. (Tr.25:19–20) In one case, Vega wrote, “There
is nothing more pleasing than hearing the sound of your voice over the radio in the morning.”
(Tr.40:10–13) Vega testified that he only wrote complimentary notes on the envelopes and
sometimes signed them with “RT”—the initials of quarry manager Rick Tranchina. (Tr.25:24–

40 FMSHRC Page 57

26:1; 40:3–5; 75:13–16) Vega thought some of his notes were funny. (Tr.40:17–19) This practice
continued for approximately four to six weeks. (Tr.25:23; 74:3–4)
In the first week of August, Tranchina raised the envelope issue with HR Manager Ann
Pearson. (Tr.67:15–18; 75:10–16) No other employee, including those who received the
envelopes with notes, raised the issue with Pearson. (Tr.75:17–24) Syar subsequently installed a
camera near the front counter and hired a handwriting analyst to catch the perpetrators.
(Tr.26:22–25; 71:10–15; 76:12–13; 79:5–6) Vega was not told to stop writing on the envelopes
or warned in any way by management. (Tr.27:1–5; 32:12–15; 75:25–76:6) Vega was made
aware of the camera around September 9, 2017, when a co-worker pointed it out to him.
(Tr.29:1–8; 32:2–8; 36:8–17) Vega immediately stopped writing notes on the envelopes when he
learned about the camera and management’s attempt to catch the perpetrator. (Tr.29:2–3; 32:10–
11)
To his knowledge, Vega was the only employee videotaped writing on the envelopes.
(Tr.37:14–19) Tom Vella, a co-worker, was also observed on camera standing with Vega as
Vega wrote on the envelopes. (Tr.70:19–24; 71:5–7) Vella did not actually write on the
envelopes. (Tr.71:22–23)
Termination
On September 11, 2017, Vega and Vella were called into the main office. (Tr.24:9–15;
56:9–16) When Vega arrived, Jesse Espinoza, Vega’s business representative, was waiting in the
lobby. (Tr.24:18–20) Vega, Vella, and Espinoza went to the conference room, where Irvine,
Pearson, and Lance Stevenson were waiting. (Tr.25:8–9) Pearson handed Vega a letter of
termination for impersonating a quarry manager. (Tr.25:10–11; 56:18–19) Vella was suspended
for two days without pay and given a written warning in his file. (Tr.72:2–3)
Vega testified that Espinoza said they would grieve Vega’s termination. (Tr.26:16–17)
The grievance was initiated the same day. (Tr.57:14–16) A board of adjustment (grievance)
hearing was held in mid to late October. (Tr.58:3–11) At the hearing, two company
representatives, including James Irvine, and two union representatives, including Bran Eubanks,
met to resolve Vega’s contest of his termination. (Tr.58:15–17; 59:10–20; 62:15–18; 64:23–65:5;
66:13–18) Ultimately, the grievance board was unable to reach an agreement—both company
representatives sided with the company; both union representatives sided with Vega. (Tr.66:9–
10; 66:18–23)
Animus & Disparate Treatment
Vega testified he felt there was “bad blood” with Irvine ever since Irvine’s promotion to
superintendent in 2014. (Tr.32:24–25; 33:12–24) As a Union Steward, Vega had a history of
bringing complaints to Irvine, which were not resolved. (Tr.34:1–4) Vega testified that he would
have to “go the union route” to deal with these issues, resulting in his having to “battle it out”
with human resources. (Tr.34:5–9) Vega also testified that he never experienced hostility or
animus toward himself in his role as a miner’s rep. (Tr.46:1–3)

40 FMSHRC Page 58

Vega contends that after he was terminated, he learned that Tranchina had warned other
miners to stop writing on the envelopes. (Tr.31:14–18; 31:23–32:1; 37:21–38:2) Vega testified
that he would have stopped writing on the envelopes had Tranchina given him the same warning
he gave to the other miners. (Tr.31:18–20) Vega testified that this discrepancy in treatment made
him feel that he was being singled out. (Tr.32:16–21)
Vega also testified about an incident in 2015, when management tried to suspend him for
failing to show up for work, although he had already received permission to take leave from Bob
Schwab, the human resources manager at the time. (Tr.34:15–35:18) Vega believes this was
another example of management singling him out. (Tr.34:12–15)
II. DISCUSSION OF RELEVANT LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
right protected by the Mine Act. The purpose of the protection is to encourage miners “to play an
active part in the enforcement of the [Mine] Act” recognizing that, “if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation.” S. Rep. No.
95-181, at 35 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 623 (1978).
Congress created temporary reinstatement as “an essential protection for complaining
miners who may not be in the financial position to suffer even a short period of unemployment
or reduced income pending the resolution of the discrimination complaint.” Id. at 624–25.
When a person covered by the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815(c)(2), notifies the Secretary that he/she believes discrimination has occurred, the Secretary
is obligated to investigate, “and if the Secretary finds that such complaint was not frivolously
brought, the Commission, on an expedited basis [. . .], shall order the immediate reinstatement of
the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2).
The Commission has established a procedure for making the reinstatement decision.
Commission Rule 45(d) states:
The scope of a hearing on an application for temporary
reinstatement is limited to a determination as to whether the
miner’s complaint was frivolously brought. The burden of proof
shall be upon the Secretary to establish that the complaint was not
frivolously brought. In support of his application for temporary
reinstatement, the Secretary may limit his presentation to the
testimony of the complainant. The respondent shall have an
opportunity to cross-examine any witnesses called by the Secretary
and may present testimony and documentary evidence in support
of its position that the complaint was frivolously brought.
29 C.F.R. § 2700.45(d)

40 FMSHRC Page 59

The scope of a temporary reinstatement hearing is narrow, being limited to a
determination whether a miner’s complaint was frivolously brought. Sec’y of Labor on behalf of
Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d sub nom. Jim Walter
Res., Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990).
The legislative history for section 105(c) reveals that Congress discussed the term
“frivolous” with the understanding that a complaint is not frivolous if it “appears to have merit.”
S. Rep. No. 95-181, at 36–37 (1977), reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624
(1978). The “not frivolously brought” standard has also been equated to the “reasonable cause to
believe” standard applied in other contexts. Jim Walter Res., Inc., 920 F.2d. at 747; Sec’y of
Labor on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 153, 157 (Feb. 2000).
When determining whether a miner’s discrimination claim is not frivolous, the Court is
essentially required to consider the facts in the light most favorable to the claimant. When
presented with conflicting evidence, the judge and the Commission are not required to resolve
conflicts in testimony at the temporary reinstatement stage of a discrimination proceeding. Sec’y
of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999), citing Jim
Walter Res., Inc., 920 F.2d at 744. Indeed, the Commission has determined that it is
inappropriate for the Judge to make credibility determinations or resolve conflicts in testimony
during a temporary reinstatement hearing. Sec’y of Labor on behalf of Williamson v. CAM
Mining, LLC, 31 FMSHRC 1085, 1088 (Oct. 2009). Rather, “[a] non-frivolous issue may be
shown where there is both supporting and detracting evidence in the record.” Sec’y of Labor on
behalf of Nickoson v. Mammoth Coal Co., 34 FMSHRC 1252, 1255 (June 2012), citing Chicopee
Coal Co., 21 FMSHRC at 718–19. Where there is conflicting evidence in the record, there must
be facts in the record that support the Secretary’s theory of liability in order to meet the “not
frivolously brought” standard. Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 34
FMSHRC 1875, 1878–79 (Aug. 2012).
To prove a prima facie case of discrimination under section 105(c) of the Act, the
Secretary bears the burden of establishing: (1) that the miner engaged in protected activity; and
(2) that the adverse action complained of was motivated in any part by that activity. Sec’y of
Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981);
Sec’y of Labor on behalf of Jenkins v. Hecla–Day Mines Corp., 6 FMSHRC 1842 (Aug. 1984);
Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (Nov. 1981), rev’d
on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
An applicant for temporary reinstatement, however, does not require the Secretary or
aggrieved miner to prove a prima facie case of discrimination with the attendant requirement of
proving all necessary elements at a higher evidentiary standard. The applicant must merely
provide evidence of sufficient quality and quantity to allow the judge to find, by application of
the “reasonable cause to believe” standard, that: (1) the applicant engaged in protected activity;
and, (2) there is sufficient showing of a nexus between the protected activity and the alleged
discrimination to support a conclusion that the complaint of discrimination is not frivolous.

40 FMSHRC Page 60

Regarding the nexus requirement, judges and the Commission have adopted elements of
the full prima facie case to create an analytical framework that comports with the strictures of the
limited evidentiary scope of the temporary reinstatement process yet is useful in bridging the
sometimes difficult gap between alleged actions and the intentions behind them. See, e.g., CAM
Mining, LLC, 31 FMSHRC at 1088 (“While an applicant for temporary reinstatement need not
prove a prima facie case of discrimination, it is useful to review the elements of a discrimination
claim in order to assess whether the evidence at this stage of the proceedings meets the nonfrivolous test.”). In recognition of the fact that direct evidence of intent or motivation is rarely
found, the Commission has identified several circumstantial indicia of discriminatory intent: (1)
knowledge of the protected activity; (2) coincidence in time between the protected activity and
the adverse action; (3) hostility or animus toward the protected activity; and, (4) disparate
treatment. Chacon, 3 FMSHRC at 2510–12.
III. CONTENTIONS
The Secretary of Labor on behalf of Complainant argues that he has met his burden of
establishing that the discrimination complaint is non-frivolous, and, as a result, Vega should be
temporarily reinstated. The Secretary asserts that Vega’s complaints to his supervisors in
January, July, and August of 2017 constituted protected activity and that his termination on
September 11, 2017, was an adverse action, for which Syar is liable under the Act.
Respondent argues that no nexus exists between Vega’s alleged protected activity and the
subsequent termination because Vega was terminated for tampering with employee pay checks
and forging a manager’s initials.
IV. APPLICATION OF LAW TO THE EVIDENCE
The scope of this temporary reinstatement proceeding is narrow. For the reasons set forth
below, I find that Vega’s discrimination complaint was not frivolously brought.
a. Vega Engaged in Protected Activity
In enacting the Mine Act, Congress indicated that the concept of protected activity in
section 105(c) “be construed expansively to assure that miners will not be inhibited in any way in
exercising any rights afforded by the legislation.” S. Rep. No. 95-181, at 36 (1977), reprinted in
Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 624 (1978). Protected activity under the Act can include
making a complaint to an operator or its agent about unsafe equipment, see, e.g., Sec’y of Labor
on behalf of Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833, 837 (May 1995), or an
alleged danger or safety or health violation. See, e.g., Sec’y of Labor on behalf of Davis v.
Smasal Aggregates & Asphalt, LLC, 28 FMSHRC 172, 175 (Mar. 2006) (ALJ).

40 FMSHRC Page 61

Vega testified that he made three safety complaints. The first was made to shop safety
director Kerr in January 2017, regarding the heavy smoke in the hose repair room.2 The second,
also regarding the smoke in the hose repair room, was brought to the attention of Vega’s direct
supervisor Calvin and parts specialist Novack in July 2017. The third safety complaint was made
to Kerr in July or August 2017, regarding a near-miss incident on the quarry haul road and the
type of signs legally required on a road with the haul road’s width. I note that Respondent has
not disputed that Vega made these complaints.
I conclude that the Secretary has presented sufficient evidence at this temporary
reinstatement stage to establish that Vega’s safety complaints are protected activities under the
Act.
b. Vega Suffered an Adverse Employment Action
According to the Act and well-settled Commission precedent, suffering a discharge or
demotion is an adverse employment action. 30 U.S.C. § 815(c)(1); see also Moses v. Whitley
Dev. Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985). Vega was
terminated on September 11, 2017. His termination constitutes an adverse employment action.
The Secretary has presented sufficient evidence to satisfy this element of the test at this
temporary reinstatement stage.
c. A Nexus can be Reasonably Alleged Between the Protected Activity and the Adverse
Employment Action
The Commission has noted that “direct evidence of motivation is rarely encountered;
more typically, the only available evidence is indirect.” Chacon, 3 FMSHRC at 2510.
Circumstantial evidence may include: (1) knowledge of the protected activity; (2) coincidence in
time between the protected activity and the adverse action; (3) hostility or animus toward the
protected activity; and (4) disparate treatment. Id. at 2510–12. I will discuss each factor in turn
below.
1. Knowledge of the Protected Activity
According to the Commission, “the Secretary need not prove that the operator has
knowledge of the complainant’s activity in a temporary reinstatement proceeding, only that there
is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31 FMSHRC at 1090, citing
Chicopee Coal Co., 21 FMSHRC at 718.
The Commission has held that “an operator’s knowledge of the miner’s protected activity
is probably the single most important aspect of a circumstantial case.” Sec’y of Labor on behalf
of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999), citing Chacon, 3 FMSHRC at
2510. Whether the operator had knowledge of the protected activity may be “proved by
circumstantial evidence and reasonable inferences.” Id. Additionally, the Commission has held
2

Although Vega testified numerous times at hearing that he complained to Kerr about the
smoke in January 2017, he failed to mention this event in his Discrimination Complaint. See Ex.
S–A.

40 FMSHRC Page 62

that a supervisor’s knowledge of the protected activity may be imputed to the operator where
knowledgeable supervisors are consulted regarding the miner’s employment. See Turner v. Nat’l
Cement Co. of Cal., 33 FMSHRC 1059, 1067–68 (May 2011) (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) (stating that “[a]n operator may not escape responsibility
by pleading ignorance due to the division of company personnel functions.”); see also Bos.
Mutual Life Ins. Co. v. NLRB, 692 F.2d 169, 171 (1st Cir. 1982) (declining to “launder” regional
sales manager’s knowledge and animus through a neutral superior where superior had no
knowledge of employee’s protected activity but “acted in direct response” to regional sales
manager’s recommendation to dismiss employee); Grand Rapids Die Casting Corp. v. NLRB,
831 F.2d 112, 117–18 (6th Cir. 1987) (imputing plant manager’s knowledge of, and animus
against, employee’s protected activity based on his involvement in decision to terminate
employee by recommending employee’s termination to company’s industrial relations manager,
who had no knowledge of employee’s protected activity and relied on plant manager’s
recommendation) (internal quotations and citations omitted).
Vega testified that he spoke directly with Napa shop safety director Kerr about the smoke
in the hose repair room in January 2017. In July 2017, Vega discussed the smoke issue with parts
specialist Novack when he inquired why the part was put on hold. Vega allegedly stated that
MSHA might have to get involved if the smoke continued to be an issue.
Vega also testified that he spoke directly about the haul road incident with Kerr in either
July or August 2017. According to Vega, Kerr later told him that Napa shop superintendent
Irvine was upset that Vega was involving himself with quarry safety issues. At the hearing,
Irvine admitted knowing that safety complaints had been made regarding both the Napa quarry
haul road and the smoke in the hose repair room, but he denied knowing who specifically made
the complaints. (Tr.64:14–22)
Nonetheless, a credibility determination is proscribed at this juncture. The allegation by
Vega that he spoke directly with Napa shop safety director Kerr in January 2017 and parts
specialist Novack in July 2017, regarding the smoke issue in the Hose Repair Room, and with
Kerr again in July or August 2017, regarding the near-miss incident at the haul road, is sufficient
at this stage to establish a non-frivolous issue as to Respondent’s knowledge of Vega’s safety
complaints.
2. Coincidence in Time
The Commission has stated that “[a]dverse action under circumstances of suspicious
timing taken against the employee who is [a] figure in protected activity casts doubt on the
legality of the employer’s motive [. . .].” Chacon, 3 FMSHRC at 2511. The Commission has also
stated, “[W]e ‘appl[y] no hard and fast criteria in determining coincidence in time between
protected activity and subsequent adverse action when assessing an illegal motive. Surrounding
factors and circumstances may influence the effect to be given to such coincidence in time.”’
Sec’y of Labor on behalf of Hyles v. All Am. Asphalt, 21 FMSHRC 34, 47 (Jan. 1999) (quoting
Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991)).

40 FMSHRC Page 63

Often, improper motivation is found “where the complainant proved that the operator
knew of the protected activities and that only a short period of time elapsed between the
protected activity and the discharge.” Baier, 21 FMSHRC at 958 (citing Knotts, 19 FMSHRC at
837).
Improper motive has been found in cases with varying periods between the protected
activity and the adverse action, ranging from a few hours to a few months. See, e.g., Sec’y of
Labor on behalf of McGill v. U.S. Steel Mining Co., 23 FMSHRC 981, 986–87 (holding that the
ALJ was correct in inferring a discriminatory motive from adverse action taken less than two
hours after complainant’s safety complaints); Sec’y of Labor on behalf of Houston v. Highland
Mining Co., 35 FMSHRC 1081, 1093 (Apr. 2013) (ALJ) (holding that a five-day gap between
the adverse action and protected activity constituted circumstantial evidence of a nexus); Baier,
21 FMSHRC at 959 n.7 (holding that two weeks between complainant’s discussion with MSHA
inspector and discharge was sufficiently coincidental in time to support a finding of
discriminatory motive); see also CAM Mining, LLC, 31 FMSHRC at 1090 (holding that three
weeks between the protected activity and adverse action was sufficient to find discriminatory
motive); Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1365 (Dec. 2000) (holding
that an adverse employment action four months after a protected activity constituted close
temporal proximity where the operator had knowledge of the protected activity); Hyles, 21
FMSHRC at 42, 46–47 (finding temporal proximity despite 15-month gap between miners’
contact with MSHA and the failure to recall miners from layoff where only a month had passed
from MSHA's issuance of penalty as a result of the miners’ notification of the violations and
given evidence of intervening acts of hostility, animus, and disparate treatment).
In this case, Complainant’s protected activities occurred approximately eight months, two
months, and one month before the adverse action. I determine that this proximity in time,
especially in light of Vega’s contention that Irvine was aware of Vega’s role in at least one of his
safety complaints, establishes a non-frivolous claim that a nexus exists.
3. Hostility Toward the Protected Activity
The Commission has held, “[h]ostility towards protected activity—sometimes referred to
as ‘animus’— is another circumstantial factor pointing to discriminatory motivation. The more
such animus is specifically directed towards the alleged discriminatee’s protected activity, the
more probative weight it carries.” Chacon, 3 FMSHRC at 2511 (citations omitted).
Vega testified that he felt there was “bad blood” with Irvine, that Irvine put a stop to the
blade part request, and that Irvine was upset with Vega for involving himself with safety issues
at the Napa quarry. I find that the Secretary has presented sufficient evidence to establish a nonfrivolous claim that management may have harbored hostility or animus about Vega’s alleged
protected activities.
4. Disparate Treatment
Disparate or inconsistent treatment is another, indirect indicium of discrimination.
“Typical forms of disparate treatment are encountered where employees guilty of the same, or
more serious, offenses than the alleged discriminatee escape the disciplinary fate which befalls

40 FMSHRC Page 64

the latter.” Chacon, 3 FMSHRC at 2512. It has been recognized that “precise equivalence in
culpability between employees” is not required in analyzing a claim of disparate treatment under
traditional employment discrimination law. Pero, 22 FMSHRC at 1368 (citing McDonald v.
Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976)). Rather, the complainant must
simply show that the employees were engaged in misconduct of “comparable seriousness.” Id.
While disparate treatment is most often analyzed by comparing disciplinary fates of
similarly situated individuals, Vega’s testimony that he was not afforded the same warning to
stop writing on the envelopes that Tranchina gave to other miners establishes a non-frivolous
issue as to Vega’s inconsistent, and possibly disparate treatment.
d. Conclusion
The Secretary has established a non-frivolous claim that: (1) Vega engaged in protected
activities; (2) Vega suffered an adverse employment action; and, (3) there was a nexus between
the protected activities and the adverse employment action. Vega is entitled to Temporary
Reinstatement under the provisions of Section 105(c) of the Act.
V. ORDER
It is ORDERED that ANTHONY VEGA be immediately TEMPORARILY
REINSTATED to his former job with Syar Industries, Inc. at the Syar Napa shop at his former
rate of pay, overtime, and all benefits he was receiving at the time of his termination.
This Order SHALL remain in effect until such time as there is a final determination in
this matter by hearing and decision, approval of settlement, or other order of this court or the
Commission.
I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R.
§ 2700.45(e)(4). The Secretary SHALL provide a report on the status of the underlying
discrimination complaint within 30 days. Counsel for the Secretary SHALL also immediately
notify my office of any settlement or of any determination that Respondent did not violate
Section 105(c) of the Act.

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

40 FMSHRC Page 65

Distribution: (Via Electronic Mail & U.S. Mail):
Abigail G. Daquiz, Esq., U.S. Department of Labor, Office of the Solicitor, 300 Fifth Avenue,
Suite 1120, Seattle, WA 98104–2397
(daquiz.abigail@dol.gov)
Anthony Vega, 1125 Wildplum Ct, Vacaville, CA 95687–7714
Bradley B. Johnson, Esq., Harrison, Temblador, Hungerford & Johnson LLP, 2801 T Street,
Sacramento, CA 95816
(bjohnson@hthjlaw.com)

40 FMSHRC Page 66

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

January 11, 2018
SECRETARY OF LABOR,
U.S. DEPARTMENT OF LABOR on
behalf of CARL EBERT,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEVA 2016-565-D
MSHA No. MORG-CD-2016-19

v.
MARSHALL COUNTY COAL CO.,
Respondent

Mine: Marshall County Mine
Mine ID: 46-01437
DECISION

Appearances: Jessica R. Brown, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania for Complainant;1
Philip K. Kontul, Esq., Daniel D. Fassio, Esq., Ogletree, Deakins, Nash, Smoak,
& Stewart, P.C., Pittsburgh, Pennsylvania for Respondent
Before:

Judge Feldman

This case is before me based on an August 19, 2016, discrimination complaint filed
pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(c)(2) (2006) (“the Act”) by the Secretary of Labor (“the Secretary”) on behalf of Carl Ebert
against Marshall County Coal Co. (“Marshall County”). The hearing was conducted in
Wheeling, West Virginia, on May 23 and May 24, 2017.2 The parties have filed post-hearing
briefs that have been considered in the disposition of this matter.

1

The United Mine Workers of America (“UMWA”) filed an unopposed post-hearing
Entry of Appearance on September 29, 2017. However, the UMWA has not filed any briefs in
this matter. A copy of this decision has been provided to the UMWA.
2

There is an error in the pagination of the two-volume hearing transcript. Volume 1 ends
at page 262. However, Volume 2 begins at page 163, instead of page 263. Consequently, in
citing Volume 2 in this decision, the number 100 has been added to each of the numbered pages
in Volume 2 so that the transcript pages can be cited consecutively. By way of illustration, page
164 in Volume 2 would be cited as page 264.

40 FMSHRC Page 67

I.

Statement of the Case

The Secretary alleges that Marshall County violated the provisions of section 105(c)(1) of
the Act,3 30 U.S.C. § 815(c)(1), when it suspended Ebert for two-and-a-half days for allegedly
failing to timely complete a pre-operational (“pre-op”)4 examination of his shuttle car on
March 7, 2016, at the Marshall County Mine (“the mine”). The Secretary contends that Ebert’s
suspension was motivated, at least in part, by Ebert’s safety related complaints that occurred in
the weeks preceding Ebert’s suspension. Marshall County seeks dismissal of the subject
discrimination complaint as untimely. Alternatively, Marshall County asserts that Ebert’s
suspension was motivated by an independent business justification, and not by Ebert’s protected
activity.
Activities on the subject shift at the working section began at approximately 9:05 a.m. on
March 7, 2016. At that time, foreman Grant Paugh completed his pre-shift meeting with the
section crew, at which time Paugh departed the power center to conduct his fire boss duties.
After completing his fire boss duties, Paugh returned to the section power center at
approximately 9:55 a.m. at which time he determined that Ebert had not begun the pre-op
examination of his shuttle car. The evidence reflects it took Ebert approximately 30 additional
minutes to complete his pre-op examination. Thus, Ebert was not available to begin his assigned
routine mining activities, such as operation of his shuttle car, until approximately 10:25 a.m.
Believing that Ebert did not have an adequate justification for the delay in his pre-op inspection,
Paugh had Ebert removed from the mine, which ultimately resulted in the imposition of a twoand-a-half day suspension.
A mine operator has a legitimate business interest in ensuring that pre-op examinations
are completed in a timely manner. Marshall County’s rejection of Ebert’s explanation for the
significant delay in completing his pre-op duties is a reasonable exercise of its administrative
prerogatives. Thus, Marshall County has demonstrated a credible business justification for
Ebert’s suspension. Although Ebert did communicate several safety related concerns to Paugh in
the weeks preceding Ebert’s suspension, Paugh took actions that reasonably addressed each of
Ebert’s concerns. The Secretary has failed to demonstrate, through adequate direct or indirect
evidence, that Ebert’s suspension was also motivated, in any part, by his protected activity.
Consequently, Ebert’s discrimination complaint must be denied.
3

Section 105(c)(1), provides, in pertinent part:

No person shall discharge or in any manner discriminate against or cause to be
discharged or cause discrimination against or otherwise interfere with the exercise
of the statutory rights of any miner . . . because such miner . . . has filed or made a
complaint under or related to [the Act], including a complaint notifying the
operator … of an alleged danger or safety or health violation in a coal or other
mine, … or because of the exercise by such miner … of any statutory right
afforded by [the Act].
4

For the purposes of this decision, the term “pre-op” examination is synonymous with
the term “pre-shift” examination.

40 FMSHRC Page 68

II.

Timeliness

Section 105(c)(3) of the Act provides that “[w]ithin 90 days of the receipt of a complaint
filed under [section 105(c)(2)], the Secretary shall notify, in writing, the miner . . . of his
determination whether a violation has occurred.” Section 105(c)(2) further provides that “[i]f
upon [the] investigation [of a complaint], the Secretary determines that the provisions of this
subsection have been violated, he shall immediately file a complaint with the Commission, with
service upon the alleged violator and the miner . . . alleging such discrimination.” 30 U.S.C. §
815(c)(2). Commission Rule 41(a) has interpreted the statutory provision to “immediately file a
complaint with the Commission” to mean that the Secretary is required to file a complaint with
the Commission “within 30 days after his written determination that a [105(c)] violation has
occurred.” 29 C.F.R. § 2700.41(a).
Thus, the operative time period for the Secretary’s filing of a discrimination complaint, as
contemplated by Section 105(c) of the Act and Commission Rule 41(a), is 120 days (a total of 90
days in the Act plus 30 days in Rule 41(a), after the filing of the underlying complaint with the
Mine Safety and Health Administration (“MSHA”)). Ebert’s complaint was filed with MSHA on
March 17, 2016.
Relying on the operative 120 day filing period, Marshall County argues that the Secretary
was required to file the subject 105(c)(2) complaint on or before July 15, 2016. Resp’t Br. at 1415. However, the Secretary did not file the complaint until August 19, 2016, approximately 155
days after the filing of Ebert’s original complaint. Thus, Marshall County seeks the dismissal of
the complaint as untimely because it was not filed within 120 days. I construe Marshall County’s
untimeliness claim as a motion to dismiss.
The Commission has stated that “[w]hile the language of section 105(c) leaves no doubt
that Congress intended these directives to be followed by the Secretary, the pertinent legislative
history nevertheless indicates that these timeframes are not jurisdictional.” Sec’y of Labor on
behalf of Hale v. 4-A Coal Co., Inc., 8 FMSHRC 905, 908 (June 1986). Thus, a late-filed
complaint “is subject to dismissal [only] if the operator demonstrates material legal prejudice
attributable to the delay,” and “absen[t this] requisite foundation, the judge [would] err[] in
granting [a] motion to dismiss” on untimeliness grounds. Id. at 908-909. Specifically, the
legislative history states that:
The Secretary must initiate his investigation within 15 days of receipt of
the complaint, and immediately file a complaint with the Commission, if he
determines that a violation has occurred. The Secretary is also required
under section 10[5](c)(3) to notify the complainant within 90 days whether a
violation has occurred. It should be emphasized, however, that these time-frames
are not intended to be jurisdictional. The failure to meet any of them should not
result in the dismissal of the discrimination proceedings; the complainant should

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not be prejudiced because of the failure of the Government to meet its time
obligations.
S. Rep. No. 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).
Having filed the subject 105(c)(2) complaint on August 19, 2016, instead of on or before
July 15, 2016, the Secretary’s filing is approximately one month late. Given the Secretary’s
rather brief filing delay, Marshall County does not assert that it has suffered actual prejudice.
However, Marshall County seeks to support its request for dismissal on two theories. First,
Marshall County asserts that the Secretary must justify the reason for the filing delay to
successfully defeat a motion to dismiss for untimeliness. Resp’t Br. at 16-17. While an
explanation by the Secretary may be relevant in cases where there is a lengthy filing delay, the
legislative history makes clear that the relatively brief one month delay in this case “should not
[prejudice a complainant] because of the failure of the Government to meet its time obligations.”
S. Rep. NO. 95-181, supra.
The second assertion raised by Marshall County is that the Secretary’s failure to abide by
the relevant filing deadline is inherently prejudicial. Resp’t Br. at 16-17. In support of this
proposition, Marshall County notes that Commission Judge Manning has held that the
Secretary’s delay in filing a 105(c)(2) complaint may be viewed as prejudicial per se. Respt. Br.
at 16 (citing Sec’y of Labor on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 793,
795 (June 2000) (ALJ)). However, unlike this case where the filing delay is approximately one
month, the filing delay in Judge Manning’s case was more than 36 months. The approximate 35
month differential is a distinction with a difference. Consequently, Marshall County’s reliance on
Judge Manning’s decision is misplaced. Having failed to demonstrate any meaningful prejudice,
Marshall County’s motion for dismissal of the subject complaint as untimely shall be denied.
III.

Findings of Fact
a. Background

Carl Ebert has been employed at the Marshall County Mine for approximately seven
years. Tr. 17. Grant Paugh began working at the mine as a section foreman in November 2015
and became Ebert’s supervisor shortly thereafter. Tr. 55, 99, 282, 285. Paugh conceded that
Ebert has a reputation at the mine as “a safety advocate,” who does not hesitate to “bring safety
issues he observes to” his supervisors. Tr. 340.
Ebert has worked at the mine as a shuttle car operator for the last five years. Tr. 17-18. A
shuttle car is used to transport coal from the vicinity of the face to the dumping point (“tail
piece”) of a belt line, where it is then carried to the surface through a series of conveyers. Tr. 18.
With the exception of one incident that occurred in March 2015 that did not involve
Paugh, for which Ebert received a verbal warning, there is no evidence that Ebert had been the
victim of any disciplinary action as a consequence of his safety related advocacy. The March

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2015 incident occurred when Ebert detected methane in the explosive range after noticing that
there was no line curtain ventilating the section face. Tr. 93. Consequently, Ebert de-energized
his shuttle car. Tr. 94. Although Ebert’s supervisor Shannon Looney initially disagreed that there
was methane at potentially hazardous levels, he eventually allowed Ebert to retrieve and install
line curtains at the face. Tr. 94. Disappointed by Looney’s reaction, at the end of his shift Ebert
asked his section coordinator, Justin Miller, if he could be transferred to a different crew with a
different foreman. Tr. 95. Looney approached Ebert and Miller and disputed Ebert’s version of
events. Upon being challenged, and in the presence of Looney, Ebert told Miller that Looney
“did not have enough brains to blow his own nose.” Tr. 95, 146. Although Ebert was informally
counseled as a result of this incident, there was no disciplinary action taken, nor was there any
documentation placed in Ebert’s personnel file. Tr. 163-66; Resp’t Ex. 9.
Although there is no history of relevant adverse action suffered by Ebert prior to Paugh’s
employment at the mine, the Secretary asserts in his brief that “Ebert’s safety efforts earned him
the particular ire of Foreman Paugh, who viewed his safety complaints as delaying production.”
Sec’y Br. at 2. Roof bolter Todd Cross equivocally opined that he “never really had that much
problems with [Paugh’s response to safety complaints], but, I mean, on some of the safety issues,
he’s not the best.” Tr. 222-23.
The Secretary relies on five instances of protected activity that are related to safety
concerns communicated to Paugh in the weeks preceding Ebert’s March 2016 suspension. Sec’y
Br. at 10. The occurrence of these incidents is not challenged by Marshall County. Ebert testified
that Paugh addressed each of the five concerns raised by Ebert that are enumerated below. Tr.
134-35.
b. History of Protected Activity
i. Unbolted Cuts
During the weeks preceding Ebert’s March 2016 suspension, roof-bolter Cross informed
Ebert that the mine had four unbolted cuts at the face and that the company’s roof control plan
required installation of a first row of roof bolts before a fifth cut could be taken. Tr. 113; Sec’y
Ex. 4 at 5. Paugh took the necessary action to ensure that the first row of roof bolts was installed.
Ebert testified that Paugh was unhappy because it took an hour to install the necessary bolts,
which interfered with production. Tr. 113.
ii. Emergency Ride Brake
Several days prior to Ebert’s suspension, a mechanic from the previous shift informed
Ebert’s crew that there was a problem with the section’s emergency ride brakes. Tr. 108; Sec’y
Ex. 4 at 5. Ebert asked Paugh to have the emergency ride brakes replaced. Tr. 108. Ebert testified
that the mine’s mechanic, Dean Williams, examined the problem and concluded that there was a
leak in the brakes. Tr. 108. According to Ebert, Paugh told Williams, “Fill it with fluid, and let’s
go.” Tr. 108. Ebert does not contend that mechanic Williams concluded that the brakes needed to
be replaced. Ebert testified that he questioned Paugh’s decision because he still did not think the

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emergency ride vehicle was safe. Ebert further testified that Paugh became upset when Ebert
expressed his opinion. Tr. 108.
iii. Loading Supplies
Prior to Ebert’s suspension, Paugh requested Ebert and his crew to retrieve supplies that
were located at the end of a track. However, there was a roof bolter on a flat car, used to
transport equipment, that was chained to the flat car in a crooked manner, causing a blockage of
the walkway. Paugh requested the crew to retrieve the supplies by having some individuals on
one side of the flat car hand over the supplies to individuals positioned on the other side of the
flat car by passing the supplies over the top of the bolter. Ebert suggested to Paugh that if a pile
of trash, consisting of old mangled rib straps, bolts, cardboard, and oil cans, located on the side
of the track where the supplies were located, was removed, it would provide a safer, direct path
to the supplies. Paugh adopted Ebert’s suggestion to remove the trash. However, Ebert testified
that Paugh “became very irritated.” Tr. 102-03; Sec’y Ex. 4 at 6.
iv. Shuttle Car Cable
On March 4, 2016, Ebert observed that a shuttle car power cable was tied to a rib strap by
a tow rope. Tr. 104; Sec’y Ex. 4 at 4. Ebert believed this was not a safe method of securing the
power cable because the rib strap was sharp and could slice through the cable’s rubber jacket,
creating a shock hazard. Ebert told Paugh that a proper anchor bolt was needed to secure the
power cable. Cross testified that Paugh was not happy about having to install an anchor bolt
instead of using the rib strap as an anchor. Tr. 222. However, after initially disagreeing, Paugh
acquiesced to Ebert’s suggestion that an anchor bolt was required. It took approximately 20-25
minutes to install the anchor bolt. Tr. 104.
v. Excessive Rail Cars
On March 5, 2016, Marshall County attempted to bring an additional rail car to the end of
the mine section’s track. At that time, there were already 10 supply cars on the track. Ebert
believed West Virginia mine regulations only permitted a maximum of seven cars at the end of
the track. Ebert testified that when he raised this issue, Paugh reportedly “became very irritated
with [him]” and asked, “‘Why are you always trying to shut me down?’” 5 Tr. 99-100.
Paugh had been Ebert’s foreman since December 2015. During the approximate three
month period preceding his March 2016 suspension, Ebert continued to raise safety issues when
appropriate, despite his testimony that Paugh was resentful. Ebert testified that although the
safety issues he raised were always addressed, he claimed they were done so reluctantly. There is
no evidence that Ebert was the victim of any adverse action as a result of his safety concerns
5

Ebert raised an additional safety related concern expressed to Paugh regarding the
location of a refuge chamber during a March 2016 interview with an MSHA special investigator
at MSHA’s District 3 Field Office in Clairsville, Ohio. See Sec’y Ex. 4 at 6. This incident was
not addressed during testimony.

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during the months preceding his March 2016 suspension. Tr. 134-35. Paugh continued to be
Ebert’s supervisor for an uneventful eight month period following Ebert’s March 2016
suspension. Tr. 182.
c. March 7, 2016 Incident
On March 7, 2016, there were three operational shifts at Marshall County’s mine: a
morning shift, from 8:00 a.m. to 4:00 p.m.; an afternoon shift, from 4:00 p.m. to midnight; and a
midnight shift, from midnight to 8:00 a.m. Tr. 47-48. On that day, Paugh’s crew of
approximately 10 miners, including Ebert, was assigned to work the morning shift in a
continuous mining section driving entries in preparation for setting up the 14 East longwall
section. Tr. 35, 55, 282-83. Each shift for a continuous mining section has two shuttle car
operators. On March 7, Ebert and John Harris were partnered together as the two shuttle car
operators for the morning shift. Tr. 30-31.
On March 7, 2016, Paugh’s crew reported to the mine at 8:00 a.m. and traveled
underground via elevator, whereupon they traveled to the working section via a mantrip, arriving
at the 14 East power center at approximately 9:00 a.m. Tr. 305. Beginning shortly after 9:00 a.m,
Paugh conducted a routine “safety talk” with the crew at the power center, during which he
provided general information about the roof control plan and the layout of the section. Tr. 55-56,
288; Resp’t Ex. 7.
Upon completion of the safety talk at approximately 9:05 a.m., Paugh left the crew to
perform his fire boss duties and returned to the section at approximately 9:55 a.m. Tr. 293;
Resp’t Ex. 7. During this time, Paugh traveled to each section face and to the track where the
mine’s charger was located. In addition, he took air and methane readings, checked the refuge
alternatives, and inspected for violations of mandatory health and safety standards. Tr. 292-93.
In the meantime, Ebert was required to conduct a pre-operational check on his shuttle car, after
which he was expected to start loading supplies on the continuous miner. Tr. 56, 291. Ebert’s
shuttle car was used on the previous shift without evidence of any reported problems. Tr. 48-50,
197-98.
Paugh testified that a typical pre-operational examination of a shuttle car takes
approximately 10-15 minutes. Tr. 307. For example, Paugh testified that Ebert’s partner Harris
routinely took 5-10 minutes to perform the part of the pre-op that involved inspecting the shuttle
car and that it would then take him roughly another 5 minutes to perform the rest of his pre-op
duties, which would include watering the roads. Tr. 356. In contrast, Ebert testified that the preoperational examination of his shuttle car on a typical day with no major problems took him
approximately 40-45 minutes. Tr. 33.
The right of a miner to perform a thorough pre-op examination is protected by section
105(c)(1) of the Act. Sec’y Br. at 12. Although Paugh was aware that it normally took Ebert up
to 45 minutes to complete a pre-op inspection, there is no evidence that Paugh had expressed any
objections or concerns over the length of time Ebert took to complete his pre-op responsibilities.
Tr. 356.

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Ebert testified that he began his pre-op duties by assisting his partner Harris in watering
the tram road as required. Tr. 56-57. The hose used to accomplish watering the road is the
equivalent of a three-quarter inch garden hose. Tr. 390. Ebert claims the hose was tangled with
other cables along the mine’s ribs. Tr. 59. Therefore, while Harris watered approximately
300 feet of the tram road, Ebert reportedly assisted him by untangling the water hose to create
the slack necessary for Harris to water the entire length of the road. Tr. 60-61.
In his initial interview with MSHA, Ebert claimed that it took him only a few minutes to
untangle the hose from around the shuttle car cable. Gov’t Ex. 4 at 2. At trial, Ebert initially
testified that untangling the hose and providing the requisite slack for watering the roadway took
approximately 10-15 minutes that day. Tr. 60-61. On cross-examination, he stated that it took
him 15-20 minutes. Tr. 118-119. Minutes later, after further deliberation, Ebert stated that it took
him half an hour. Tr. 120-121.
Next, Ebert testified that before proceeding to his shuttle car to complete his pre-op
duties, he was stopped by two mechanics, Kirk Roth and Tim Black, who sought information
concerning the layout of the section and directions to the tool car, as they did not normally work
on the 14 East Longwall setup section. Tr. 61-62, 243. Black was a union mechanic, and Roth
was a company maintenance foreman. Tr. 62. Ebert claims this conversation lasted 10-15
minutes. Tr. 119. Black testified that the conversation lasted around 7-10 minutes. Tr. 245.
Having completed his fireboss duties, Paugh returned to the power center at
approximately 9:55 a.m. and noticed Ebert talking to Roth and Black, in the same vicinity at
which he had last seen Ebert at 9:05 a.m. Tr. 295-96; Resp’t Ex. 7. Paugh instructed Ebert to
begin helping the crew supply the continuous miner. However, Ebert responded that he could not
do so because he had not yet completed his pre-op. Tr. 295. Paugh told him that “quite a bit of
time had [e]lapsed,” somewhere between 45-50 minutes by his estimation, and then “asked him
why he hadn’t completed his pre-op [in] that time.” Tr. 296. Ebert testified he explained that he
had some difficulty untangling the hose earlier and that he was then interrupted by Roth and
Black, who needed assistance. Tr. 63, 196. In response, Paugh told Ebert to finish his pre-op. Tr.
64. Consequently, Ebert continued to his shuttle car and completed the remaining tasks for his
pre-op examination, which he estimated required another 30 minutes. Tr. 64, 82-84.
The evidence with respect to the extent that Ebert assisted Harris in watering the road is
equivocal. Paugh testified that he immediately sought out Harris to confirm whether Ebert had
been assisting him with his tasks. At that time, he observed Harris still watering the road. Tr.
300. However, Paugh did not notice any entanglement of the hose. Tr. 302-03. Paugh testified
that Harris responded he had watered the roads himself, “just like always.” Tr. 300. Paugh
testified that although this job was the responsibility of both Harris and Ebert, Harris did the job
himself on the majority of occasions. Tr. 301. Paugh claimed to have spoken to Ebert about this
problem before. Tr. 301-02. Tim Black testified that when he first observed Ebert before
engaging him in conversation, he believed Ebert “was dragging a hose or something.”
Tr. 249.
Paugh testified that, after speaking to Harris, Paugh returned to Ebert and told him that it
was “ridiculous” and “unacceptable” that Ebert did not finish his pre-op and assist with other

40 FMSHRC Page 74

tasks as needed during the preceding approximate 45 minute interval when Paugh was
conducting his fire boss examination. Tr. 308-09. Paugh sought a further explanation from Ebert
to account for Ebert’s apparent inactivity during this period, but did not receive any. Tr. 308-09.
Paugh testified that he told Ebert that his insubordinate behavior would not be tolerated. Tr. 309.
According to Paugh, Ebert responded, “You do what you got to do.” Tr. 309. Ebert denies that
this conversation took place. Tr. 129-130. However, Ebert does not deny that he was
significantly delayed in completing his pre-op examination duties. Tr. 82-83.
Paugh testified that after failing to get an adequate explanation from Ebert, he called his
own supervisor, Brad Racer, to request Ebert’s removal from the section. Tr. 310. Paugh testified
that he wanted someone else to remove Ebert from the mine because he wanted to avoid a
confrontation. Tr. 312.
At around 10:20 a.m., after unsuccessfully attempting to reach the mine superintendent,
Paugh called the mine’s general manager, Eric Grimm, to inform him that he was removing
Ebert from the mine. Tr. 313-314. Then, Paugh took notes to record his version of these events.
Tr. 318; Resp’t Ex. 7.
After completing the pre-op of his shuttle car, at approximately 10:25 a.m., Ebert
proceeded to walk to the continuous miner where he helped load supplies on a bolter. See Tr. 64,
69, 82-84. The operable 10:25 a.m. time is consistent with Ebert’s testimony that he needed an
additional 30 minutes to complete the pre-op of his shuttle car after speaking to Paugh, who had
returned to the power center at approximately 9:55 a.m. Tr. 84, 294. Thus, the evidence reflects
Ebert was not available to engage in production activities for at least a one hour and 20 minute
period, beginning the calculation from approximately 9:05 a.m. when Paugh completed his
safety meeting at the power center.
After Ebert completed loading the supplies on the bolter, he asked Paugh if there was
anything else Paugh wanted him to do. Tr. 70. Paugh told him to go to retrieve his shuttle car.
Tr. 70. When Ebert reached the shuttle car, he was greeted by Racer, who informed him that
Paugh had requested Ebert’s removal from the mine. Tr. 70. Ebert testified that Racer told him
that he was being removed for refusing a direct order and being argumentative. Tr. 71. Ebert
testified that he disputed these charges and told Racer that Roth could corroborate his account.
Tr. 71.
When Ebert reached the surface, he clocked out and went to the human resources (“HR”)
department to seek clarification from Amy Bailey, an HR employee, about his next course of
action. Tr. 73-74. Ebert was paid for the time he worked that day. Tr. 75-76.
Later that day, Paugh spoke with General Manager Grimm, who ultimately was
responsible for disciplining miners. Tr. 319-20, 358-59. Paugh related to Grimm what had
occurred with Ebert and explained his reasons for removing him from the mine. Tr. 319-20.
Paugh also provided Grimm with his notes. Tr. 362-63; see Resp’t Ex. 7. In addition, Paugh
related to Grimm what Harris reportedly had told him. However, Grimm did not seek to verify
this information from Harris. Tr. 367-68.

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Ebert was later contacted by telephone and asked to appear for a meeting with mine
management. Tr. 75-76. The meeting took place several days after the March 7, 2016, incident.
Tr. 265; Resp’t Ex. 10 at 2. At the meeting, Ebert was accompanied by two union officials.
Tr. 75; 172-73. During the meeting, Grimm asked Ebert to account for his time during the
“47 minute” period Paugh was absent from the face while conducting his fire boss duties.
Tr. 367. Grimm concluded that Ebert did not offer a “credible” and “satisfactory explanation” for
“what he did for 47 minutes when he should have been pre-oping his shuttle car.” Tr. 367.
Following the meeting, Grimm decided to suspend Ebert for two and a half days for
insubordination. Tr. 367-71; Sec’y Ex. 9. Insubordination is defined, under Marshall County
Coal’s Employee Conduct Rule Number 4, as “refusal or failure to perform work assigned or to
comply with supervisory direction.” Resp’t Ex. 16. Ebert returned to the mine to resume work on
March 15, 2016. Tr. 75-76.
IV.

Further Findings and Conclusions
a. Analytical Framework

Section 105(c) prohibits retaliating against a miner because of his participation in safety
related activities. Congress provided this statutory protection to encourage miners “to play an
active part in the enforcement of the Act,” recognizing that “if miners are to be encouraged to be
active in matters of safety and health, they must be protected against any possible discrimination
which they might suffer as a result of their participation.” S. Rep. No. 95-181, at 35 (1977),
reprinted in Legis. Hist. at 623. It is the intent of Congress that, “[w]henever protected activity is
in any manner a contributing factor to the retaliatory conduct, a finding of discrimination should
be made.” Id. at 624.
The Secretary has the burden of demonstrating a prima facie case of discrimination. In
order to establish a prima facie case, the Secretary must establish that Ebert engaged in protected
activity, and that Ebert’s March 2016 two-and-a-half day suspension was motivated, in some
part, by that activity. See Sec'y of Labor on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2797-2800 (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, 817-18 (Apr. 1981).
Marshall County may rebut a prima facie case by demonstrating, either that no protected
activity occurred, or, that Ebert’s suspension was not motivated in any part by his protected
activity. Robinette, 3 FMSHRC at 818 n.20. Consequently, Marshall County seeks to challenge
Ebert’s discrimination complaint by asserting that his suspension was solely predicated on a
legitimate business justification. Specifically, Marshall County contends that Ebert’s March 7,
2016, failure to timely perform the pre-op duties required of a shuttle car operator was the sole
basis for his suspension.
Marshall County may also affirmatively defend against a prima facie case by establishing
that it was also motivated by unprotected activity, i.e., a failure to timely perform pre-op
examination duties, and that it would have taken the adverse action for the unprotected activity
alone. See also Jim Walter Resources, 920 F.2d 738, 750 (11th Cir. 1990), citing with approval

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E. Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the Commission's Pasula-Robinette test).
The Secretary contends that Ebert’s protected activities were a motivating factor in
Marshall County’s decision to suspend Ebert. It is undisputed that Ebert had a reputation for
being a safety advocate during his seven year employment at the mine. In addition, the Secretary
relies on a series of safety related concerns communicated by Ebert to Paugh during the weeks
preceding his March 2016 suspension.
When viewed in a vacuum, given the undisputed knowledge and coincidence in time of
the protected activities relied upon by the Secretary, the Secretary has presented sufficient prima
facie evidence “‘from which the trier of fact could infer retaliation.’” Metz v. Carmeuse Lime,
Inc., 34 FMSHRC 1820, 1824 (Aug. 2012) (quoting Turner v. Nat’l Cement Co. of Cal.,
33 FMSHRC 1059, 1065 (May 2011)). (Emphasis added).
Marshall County has not disputed this series of safety related complaints voiced shortly
before Ebert’s suspension. Despite Ebert’s history of expressing safety concerns, Marshall
County seeks to rebut Ebert’s proffered prima facie case by contending that Ebert’s safety related
activities played no role in its decision to suspend him.
b. Alleged Business Justification
The evidence reflects that during the day-shift beginning at 8:00 a.m. on March 7, 2016,
Paugh and his crew traveled to the 14 East Longwall setup section, arriving at the power center
at approximately 9:00 a.m., at which time Paugh conducted his daily roof control meeting with
his crew. Tr. 305. At approximately 9:08 a.m., Paugh left the power center to perform his
fireboss duties, returning to the power center at approximately 9:55 a.m. Tr. 292-93. During this
approximate 47 minute interval, Paugh expected Ebert and Harris to water the relevant roadway
and perform pre-operational examinations for each of their respective shuttle cars. Tr. 56, 291.
Upon his return to the power center at approximately 9:55 a.m., Paugh observed Ebert
talking to Roth and Black. Tr. 294-96. Black testified that the conversation with Ebert was about
the layout of the section and directions to the tool car. Tr. 243. Upon approaching them, Paugh
requested that Ebert help supply the continuous miner. Tr. 295. At that time, Ebert informed
Paugh that he was unable to assist because he had not yet performed a pre-op examination of his
shuttle car. Tr. 63. Ebert estimated that he needed an additional 30 minutes to perform the pre-op
on his shuttle car. Tr. 64, 82-84.
To account for his failure to pre-op his shuttle car, Ebert told Paugh that he was delayed
because he had some difficulty untangling the hose in preparation for assisting Harris with
watering the tram roadway. He also told Paugh that his pre-op was further delayed because of his
conversation with Roth and Black. Tr. 63-64.
Paugh questioned Harris to determine if Ebert’s explanation for failing to pre-op his
shuttle car during the 47 minute interval that had elapsed was justified. Paugh testified that he

40 FMSHRC Page 77

asked Harris if Ebert had helped him water the road. Paugh testified that Harris responded that he
had done the watering by himself, “just like always.” Tr. 300.
Paugh’s recollection at trial is somewhat inconsistent with his March 7, 2016,
contemporaneous notes for the disciplinary action taken that day with respect to the degree that
Ebert did, or did not, participate in watering the tram roadway. The notes, when read in
conjunction with Paugh’s testimony, reflect that when Paugh returned from his fireboss
duties at 9:55 a.m., he found Ebert talking to Roth and Black at the power center. Tr. 295-96;
Resp’t Ex. 7. It is not difficult to imagine Paugh’s state of mind when he found Ebert at the
power center at 9:55 a.m., the very same location in which he had last seen him at approximately
9:05 a.m., when Paugh had departed to conduct his fireboss duties. When asked why Ebert did
not complete the pre-op of his shuttle car, the notes reflect that Ebert replied that he “had to help
stretch out [the] wash down hose.” The notes further reflect that Harris stated that “this only took
a couple minutes to do.” Resp’t Ex. 7.
In any event, both Paugh’s testimony and his contemporaneous notes reflect that Paugh
did not believe the “tangled hose” explanation was an adequate justification for the pre-op delay.
In this regard, Paugh’s contemporaneous notes further reflect that Paugh concluded that if it took
five minutes to stretch the hose, “that leaves 42 minutes to complete [the] pre-op, which was not
done.” Id.
Although Ebert denies that this conversation occurred, Paugh testified that, given Harris’s
failure to corroborate Ebert’s story, Paugh told Ebert that it was “ridiculous” and “unacceptable”
that Ebert had not performed his shuttle car pre-op or assisted with other pre-op duties, and that
Ebert’s insubordination would not be tolerated. Tr. 129-30, 308-09. Paugh further testified that
Ebert responded, “‘You do what you got to do.’” Tr. 309.
To avoid a confrontation with Ebert, Paugh asked Racer, Paugh’s immediate supervisor,
to remove Ebert from the mine. Tr. 310-12. A disciplinary meeting was conducted by
Mine Manager Grimm on March 9, 2016. Resp’t Ex. 10. Participants at the meeting included
members of mine management, Ebert, and union President Thomas McGary as well as union
Vice-President Ryan Sparks. Id. Paugh was not present at the meeting and did not have the
authority to suspend Ebert. Id.; Tr. 283. After hearing Ebert’s account of the events of March 7,
2016, Grimm concluded that Ebert did not adequately explain why he had not begun the pre-op
examination of his shuttle car for 47 minutes. Tr. 367. Consequently, Grimm imposed a two-anda-half day suspension as a sanction against Ebert. Tr. 367-71.
The parameters for analyzing a claimed business justification for disciplining a miner
who has brought a discrimination claim before this Commission are well settled. The
Commission has addressed the proper criteria for considering the merits of an operator's asserted
business justification:
Commission judges must often analyze the merits of an operator's alleged
business justification for the challenged adverse action. In appropriate cases, they
may conclude that the justification is so weak, so implausible, or so out of line

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with normal practice that it was mere pretext seized upon to cloak discriminatory
motive. But such inquiries must be restrained.
The Commission and its judges have neither the statutory charter nor the
specialized expertise to sit as a super grievance or arbitration board meting out
industrial equity. Once it appears that a proffered business justification is not
plainly incredible or implausible, a finding of pretext is inappropriate. We and our
judges should not substitute for the operator's business judgment our views on
“good” business practice or on whether a particular adverse action was “just” or
“wise.” The proper focus, pursuant to Pasula, is on whether a credible
justification figured into the motivation and, if it did, whether it would have led to
the adverse action apart from the miner's protected activities.
Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516-17 (Nov.
1981) (citations omitted), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983).
The Commission subsequently further explained that it is not the role of the judge to
substitute his or her judgment for that of the mine operator if the proffered business justification
is facially reasonable. The Commission stated:
[A] judge, in carefully analyzing such defenses, should not substitute his business
judgment or a sense of “industrial justice” for that of the operator. As we recently
explained, “Our function is not to pass on the wisdom or fairness of such asserted
business justifications, but rather only to determine whether they would have
motivated the particular operator as claimed.”
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982) (citations omitted).
The Commission has addressed the parameters for showing that a mine operator’s
explanation for the adverse action complained of is not credible. Consistent with Turner, the
Secretary must demonstrate that Marshall County’s reasons for suspending Ebert either: (1) had
no basis in fact; (2) did not actually motivate his suspension; or (3) were insufficient to motivate
his suspension. See Turner, 33 FMSHRC at 1073 (citing Madden v. Chattanooga City Wide
Service Dep't., 549 F.3d 666, 675 (6th Cir. 2008)) (additional citations omitted) (emphasis in
original).
The first and third showings addressed in Turner are inextricably intertwined. With
respect to (1) basis in fact and (3) sufficient motivation, obviously mine operators have a
legitimate interest in requiring their employees to complete their pre-op examinations in a timely
manner. The evidence reflects that Ebert had not begun the pre-op examination of his shuttle car
during the 47 minute period following the termination of Paugh’s roof control meeting at the
power center. Ebert testified that he needed approximately 30 additional minutes to complete his
pre-op examination when Paugh requested, at 9:55 a.m., that he help load the continuous miner.
Tr. 82-84. Thus, by his own admission, Ebert would not have been able to place his shuttle car in
service or perform other routine activities as assigned until approximately 10:25 a.m.

40 FMSHRC Page 79

Determining whether the 47 minute delay provides a reasonable justification for Marshall
County’s suspension of Ebert requires consideration of the chronology of the March 7, 2016,
events. Ebert testified that his conversation with Roth and Black lasted approximately 10-15
minutes. Tr. 119. Black testified that the conversation took 7-10 minutes. Tr. 245. Thus, I
conclude that the conversation with Roth and Black took no more than 15 minutes. This leaves
approximately 32-37 minutes during which time Ebert failed to perform a pre-op examination of
his shuttle car. In justifying this failure, Ebert, in effect, claims that it took him and Harris this
period of time to jointly untangle the equivalent of a garden hose and water the roadway. Tr. 66.
Thus, Ebert would have Marshall County believe that it took the equivalent of between 64 and
74 man minutes to water the roadway.
While it is true that the right to conduct a thorough pre-op examination is protected, it is
also true that operators retain the authority to ensure that pre-op examinations are not
unjustifiably delayed. The evidence reflects, when viewed in context, that Ebert’s “tangled hose”
explanation for the significant delay in the completion of his pre-op examination duties is not
credible. It is noteworthy that Ebert has not adequately explained how long his reported attempts
to untangle the hose delayed completion of his pre-op duties. In this regard, as previously noted,
Ebert initially testified that this task took 10-15 minutes that day. Tr. 61. On cross-examination,
he stated that it took him 15-20 minutes. Tr. 118-119. Minutes later, after further deliberation,
Ebert stated that it took him half an hour. Tr. 120-121. In his initial interview with MSHA, Ebert
claimed that the task took him only a few minutes. Gov’t Ex. 4 at 2. Consequently, I find that
Marshall County’s rejection of Ebert’s claimed justification for the delay in performing his preop examination on March 7, 2016, must be viewed as a legitimate exercise of its business
judgment. Therefore, the record, on balance, reflects that Marshall County had a reasonable
business justification for disciplining Ebert.
c. Alleged Discriminatory Motive
Having determined that the reasons advanced by Marshall County for Ebert’s suspension
were both factual and sufficient to motivate its disciplinary action, the first and third elements
contemplated by Turner support Marshall County’s claimed business rationale. We now turn to
the second element in Turner: whether Ebert’s untimely pre-op examination actually was the
sole motivation for his suspension. Ebert’s suspension was consistent with Marshall County’s
permissible conduct rule that prohibits “refusal or failure to perform work assigned or to comply
with supervisory direction.” Resp’t Ex. 16. The rationale given to Ebert at the time of his
suspension is consistent with the rationale proffered by Marshall County during the course of this
proceeding. However, Marshall County does not simply prevail by showing that its justification
for suspending Ebert was not implausible or otherwise pretexual. The Secretary may still prevail
by showing that the operator was motivated, at least in part, by Ebert’s protected activities.
As noted, the Commission has recognized that it is not uncommon for operators to
attempt to mask discriminatory motivation by asserting that unprotected activity is the sole
justification for the adverse action complained of. Chacon, 3 FMSHRC at 2516-17. In evaluating
whether an operator’s claimed business justification is disingenuous, the Commission has noted
that direct evidence of a discriminatory motive is rare. As such, discrimination can usually only

40 FMSHRC Page 80

be demonstrated through circumstantial evidence. Id. at 2510 (quoting NLRB v. Melrose
Processing Co., 351 F.2d 693, 698 (8th Cir. 1965)).
The Commission has identified that some of the more common circumstantial indicia of
discriminatory intent are: 1) knowledge of the protected activity and coincidence in time between
the adverse action and that protected activity; 2) hostility or animus towards the protected
activity; and 3) disparate treatment of the complainant. Id.
To successfully demonstrate a discriminatory motive by indirect evidence requires a
rational connection between the indirect evidence and the fact in issue, i.e., the motivation for
Ebert’s suspension. See Garden Creek Pocahontas, 11 FMSHRC 2148, 2153 (Nov. 1989) (citing
Mid-Continent Resources, Inc., 6 FMSHRC at 1132, 1138 (May 1984)) (noting that there must
be a rational connection between the evidentiary facts and the adverse action complained of).
An evaluation of whether there is sufficient indirect evidence of discriminatory intent follows.
i. Knowledge and Coincidence in Time
Marshall County does not dispute that Ebert had a reputation as a safety advocate who
frequently brought safety related issues to his supervisors’ attention. Tr. 340. It is also
undisputed that Ebert communicated at least five safety related concerns to Paugh in the weeks
preceding his March 2016 suspension. Paugh’s knowledge of Ebert’s expressed safety concerns
is imputed to Grimm. See Turner, 33 FMSHRC at 1068 (holding that a supervisor’s knowledge
of protected activity may be imputed to a decision maker without such knowledge, who
nonetheless relied on the supervisor’s recommendation). Moreover, there is a coincidence in time
between these expressed safety related concerns and Ebert’s suspension. Thus, two of the
circumstantial elements identified in Chacon have been demonstrated. However, in apparent
recognition that coincidence in time and knowledge, alone, may be inadequate to infer a
discriminatory motive, the Secretary also asserts an animus toward Ebert’s safety related
activities, and, that Ebert was the victim of disparate treatment. Whether the Secretary has
adequately demonstrated that these two elements of Chacon played a role in Ebert’s suspension
is discussed below.
ii. Animus
The Secretary alleges that Paugh exhibited hostility toward Ebert as a consequence of the
following safety related concerns which were communicated to Paugh in the weeks preceding his
suspension: (1) Ebert’s insistence on ensuring adequate roof bolting before continuing
production in a working section; (2) Ebert’s concern regarding a defect in the brakes on an
emergency ride; (3) Ebert’s suggested safer alternative method for retrieving supplies from the
end of a track; (4) Ebert’s insistence that the safe anchoring of a power cable required installation
of an anchor bolt rather than reliance on a rib strap; and (5) Ebert’s concern regarding an
excessive number of supply cars at the end of a section track. Sec’y Br. at 10, 14.
In evaluating whether there is sufficient evidence to infer animus toward protected
activity, it is helpful to consider, by analogy, the Commission’s longstanding case law with
respect to a protected work refusal. In this regard, once a miner expresses a good faith,

40 FMSHRC Page 81

reasonable belief in a hazard, the focus shifts to whether the mine operator addressed the miner’s
concern “in a way that his fears reasonably should have been quelled.” Gilbert v. FMSHRC, 866
F.2d 1433, 1439 (D.C. Cir. 1989). Significantly, Ebert’s testimony reflects that Paugh adequately
responded to each of Ebert’s enumerated safety related concerns by taking appropriate remedial
actions.
Despite Paugh’s responses to Ebert’s complaints, the Secretary relies on Ebert’s selfserving assertion that these complaints were not welcomed by Paugh. In this regard, Ebert
testified that he perceived Paugh as being “angry,” “irritated,” and “upset” over Ebert’s
expressions of safety related concerns. Tr. 103, 108, 113. Ebert also alleges that Paugh accused
Ebert of “always trying to shut [him] down.” Tr. 100.
On balance, the evidence is insufficient to infer hostility on the part of Paugh based on
Ebert’s self-serving accounts without sufficient supporting evidence by a witness, or, objective
evidence of discriminatory intent, such as relevant past verbal or written disciplinary actions. It is
true that Cross testified that Paugh was “not happy” about having to install a roof bolt instead of
using a rib strap as an anchor for a power cable because Paugh apparently believed that the rib
strap did not jeopardize the integrity of the cable’s outer jacket. Tr. 222. It would be naïve to
think that a mine foreman will always welcome a subordinate miner’s insistence on an alleged
safety related remedy which the foreman believes is unnecessary. Of course, operators should err
on the side of caution when deciding whether to address reasonable safety related concerns
expressed by miners. Thus, it is the totality of the foreman’s response which is dispositive of the
issue of animus.
I am cognizant that hostility to safety related complaints can cause a chilling effect.
However, the record does not reflect objective evidence of hostility in this case. There is no
evidence of any adverse action suffered by Ebert at the hands of Paugh, either before or after his
March 7, 2016, suspension, as a result of Ebert’s practice of performing thorough pre-op
examinations or because of his expressed safety related concerns. To assume animus as a
motivating factor requires the conclusion that Marshall County implemented a “lying in wait”
strategy by disingenuously seizing upon Ebert’s failure to adequately explain the reason for the
delay in completing his pre-op examination duties. Such an assumption is a bridge too far based
on the evidence of record.
Although Cross testified that Paugh was “not the best” about responding to safety
complaints, Cross also testified that he never personally experienced a problem with Paugh with
respect to any of his safety related concerns. Tr. 222-23. Cross’s equivocal testimony is
insufficient to satisfy the Secretary’s burden of demonstrating animus.
Notwithstanding the Secretary’s claimed animus toward Ebert’s history of protected
activity, the Secretary relies on general concerns about a loss of productivity as additional
indirect evidence of animus. In this regard, the Secretary sought to elicit testimony from Paugh
that Paugh resented Ebert’s safety complaints because they resulted in an interruption of

40 FMSHRC Page 82

production. The following testimony elicited from Paugh by the Secretary’s counsel is
illustrative:
Q. Okay. Now, Mr. Paugh, Mr. Ebert is clearly a safety advocate; is that fair to say?
[A]: Yes. . . .
Q. And he'll bring safety issues he observes to you, correct?
A. Yes.
Q. And when those issues have to be addressed, they can slow down production?
A. Not always.
Q. But sometimes, right?
A. Yes.
Q. So, for example, . . . [d]id [the] roof control plan for the mine only allow for you to
have four unbolted entries, right?
A. Yes.
Q. And before you can begin mining a fifth, you have to roof bolt the first, right?
A. Yes.
Q. So if Mr. Ebert was to bring that issue to your attention, it would certainly slow down
production?
A. Yes.
Q. And it would take probably over an hour to bolt an entire entry, right?
A. An entire entry?
Q. Yes.
A. It could.
Q. And it is your job to try to maximize production, right?
A. Yes.
Tr. 340-42.
The Commission has concluded that the goal of maximizing production is a legitimate
business motivation as long as it does not interfere with a miner’s statutory right to engage in
protected activity. Sec’y of Labor on behalf of Zecco v. Consolidation Coal Co., 2 FMSHRC
985, 994 (Sept. 1999). Consequently, management’s desire to “maximize production” is not, in
and of itself, evidence of a discriminatory motive as long as safety related concerns are not
subordinated. To hold otherwise would be tantamount to concluding that an operator’s interest in
maximizing production is discriminatory per se.
Finally, the Secretary seeks to infer animus by asserting that Grimm’s inquiry into the
facts surrounding Paugh’s suspension was inadequate by virtue of the fact that Grimm “did not
interview Harris, Black, or Roth, all of whom could have confirmed either Paugh or Ebert’s
version of events.” Sec’y Br. at 15. Grimm testified that he did not find Ebert’s explanation for
the significant delay in the completion of Ebert’s pre-op examination duties to be plausible.
Grimm’s inquiry afforded Ebert significant procedural protections, in that Grimm’s fact-finding
was conducted in the presence of union officials. Tr. 75. As previously noted, the Commission
and its judges do not sit as a super grievance or arbitration board. Chacon, 3 FMSHRC at 251617. It is not within the purview of a Commission judge to substitute how the judge would have

40 FMSHRC Page 83

conducted the inquiry, provided that the inquiry was not so perfunctory or otherwise
procedurally deficient to suggest an underlying animus.
In the final analysis, the reported self-serving perceived hostility of Paugh, a general
company goal of maximizing production, and the claimed insufficiency of Grimm’s inquiry, do
not provide an adequate basis for inferring animus.
iii. Disparate Treatment
In order to prevail with respect to a claim of disparate treatment, the Secretary must show
that a similarly situated employee who committed the same or a more serious offense did not
suffer the same disciplinary fate as the complainant. See Dreissen v. Nevada Goldfields, Inc., 20
FMSHRC 324, 331 n.14 (Apr. 1998) (citing Schulte v. Lizza Indus., Inc. 6 FMSHRC 8, 16 (Jan.
1984); Chacon, 3 FMSHRC at 2512).
The Secretary alleges that Paugh treated Ebert differently from shuttle car operator John
Harris, who was still watering the road when Paugh returned from his fireboss run at 9:55 a.m.
By virtue of Harris’s watering activities, the Secretary asserts that Harris, like Ebert, had not
completed his pre-op duties by 9:55 a.m. Therefore, the Secretary alleges that Paugh’s failure to
discipline or even question Harris constitutes disparate treatment. Sec’y Br. at 16-17.
Paugh testified that when he saw Harris watering the road at approximately 9:55 a.m., he
assumed Harris had already completed his pre-operational inspection of his shuttle car, which
Paugh testified routinely took Harris 10-15 minutes. Tr. 346-47. Paugh further testified that
Harris informed him that Ebert had not assisted him in watering the roads that morning. Tr. 300.
Consequently, Paugh testified that Harris refuted Ebert’s claim that he was busy helping Harris
water the road. See Tr. 300.
In any event, at approximately 9:55 a.m., Paugh observed Harris fulfilling his watering
duties and actively working. Tr. 302. At that time, in contrast, Paugh observed Ebert near the
power center, where he had last seen him, talking with Roth and Black. Tr. 294-95, 298. When
Paugh broke up that conversation by requesting that Ebert help supply the continuous miner, he
first learned that Ebert had not yet begun the pre-op of his shuttle car, which Ebert estimated
would take approximately an additional 30 minutes. Tr. 82-84; 295. Consequently, as previously
noted, the record reflects that Ebert was not available to perform his routine shift duties, such as
supplying the continuous miner and operating his shuttle car, until approximately 10:25 a.m.
The Secretary’s assertion that Harris was similarly situated is speculative. It is unclear
whether Harris, like Ebert, would not have been available until later that morning to resume his
operational duties. It is equally unclear whether Ebert had done any meaningful work that
morning prior to his encounter with Paugh at 9:55 a.m. While it is true that Marshall County
could have called Harris to support Paugh’s testimony, it is also true that the Secretary could
have called Harris to support Ebert’s testimony. Neither having availed themselves of Harris’s
testimony, on balance the weight of the evidence must be given to Paugh, given that the
Secretary bears the burden of proof in this discrimination proceeding. Thus, the evidence

40 FMSHRC Page 84

presented by the Secretary is insufficient to warrant the conclusion that Ebert was the victim of
disparate treatment.
In sum, the Secretary has demonstrated indirect evidence consisting of knowledge and
coincidence in time. However, the Secretary has failed to demonstrate animus and disparate
treatment. As previously noted, successfully relying on indirect evidence to prove a
discriminatory motive requires a rational connection between the indirect evidence and Ebert’s
suspension. Garden Creek Pocahontas, 11 FMSHRC at 2153. Reliance solely on Marshall
County’s knowledge of Ebert’s protected activity that occurred shortly before his suspension to
infer discriminatory motive is inadequate in this case, when Ebert’s transgression was
sufficiently serious in nature to warrant a reasonable disciplinary response. Simply put, a miner’s
exercise of protected activity shortly before the disciplinary action complained of does not
insulate the miner from the consequences of conduct that an operator reasonably views as
unacceptable. Significantly, the two-and-a-half day suspension imposed on Ebert was not
disproportionate or overly harsh, and, thus is not indicative of a discriminatory motive.
Having determined that Marshall County has successfully rebutted the Secretary’s case
by adequately demonstrating that Ebert’s suspension was not motivated, in any part, by his
protected activity, I need not address the alternative affirmative defense raised by Marshall
County.
ORDER
In view of the above, IT IS ORDERED that Marshall County’s motion to dismiss the
subject discrimination complaint as untimely IS DENIED.
The Secretary has failed to present sufficient circumstantial evidence to demonstrate that
Ebert’s March 2016 suspension was motivated, in any part, by his protected activity.
Consequently, IT IS FURTHER ORDERED that the discrimination complaint filed by the
Secretary of Labor on behalf of Carl Ebert IS DENIED.
As such, IT IS FUTHER ORDERED that Docket No. WEVA 2016-565-D
IS DISMISSED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

40 FMSHRC Page 85

Distribution: (Electronic and Certified Mail)
Jessica R. Brown, Esq., Office of the Regional Solicitor, U.S. Department of Labor, Suite 630 E,
The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
brown.jessica.r@dol.gov
Philip Kontul, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., One PPG Place, Suite
1900, Pittsburgh, PA 15222
philip.kontul@ogletreedeakins.com
Laura P. Karr, United Mine Workers of America, 18354 Quantico Gateway Drive, Suite 200,
Triangle, VA 22172
lkarr@umwa.org

40 FMSHRC Page 86

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

January 26, 2018
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 2016-02691
A.C. No. 12-02295-406669

v.

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

PEABODY MIDWEST MINING, LLC,
Respondent.

Mine: Francisco Underground Pit

DECISION AND ORDER
Appearances:

Daniel J. Colbert, Esq., Anthony Fassano, Esq2., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for the Secretary
Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania,
for the Respondent

Before:

Judge Moran

These consolidated cases are before the Court upon petitions 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). A hearing was held in Henderson, Kentucky, commencing on August 24, 2017. For the
reasons which follow, all of the violations are upheld but, save one, the unwarrantable failure
designations are removed, and those are therefore modified to section 104(a) citations, with
appropriate modifications to the penalties.

1

Docket No. LAKE 2016-0268 was consolidated with the other dockets in the caption.
On November 18, 2016, the parties submitted a proposed settlement motion for the three 104(a)
citations within that docket. That Motion is HEREBY APPROVED and the Decision
Approving Settlement appears in the Appendix for this decision and is also separately issued
today.
2

Attorney Fassano was the Secretary’s trial attorney for Docket Nos. LAKE 2016-0269
and LAKE 2016-0232. Attorney Colbert submitted the Secretary’s post-hearing briefs.

40 FMSHRC Page 87

Violations at Issue in Docket No. LAKE 2016-0269
At issue in Docket No. LAKE 2016-0269 are two section 104(d)(2) orders: Order No.
9036922 and Order No. 9036663. Order No. 9036922 was specially assessed at $70,000. Had it
been regularly assessed, the proposed penalty would have been $44,645. Order No. 9036663was
regularly assessed at $38,503.
Order No. 9036922
Order No. 9036922, issued on December 22, 2015, alleged a violation of 30 C.F.R. §
75.202(a). The cited standard, titled “Protection from falls of roof, face and ribs,” provides
“[t]he roof, face and ribs of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or
rock bursts.”
The condition or practice was identified as follows:
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. Loose 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 1/2 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. This violation is an
unwarrantable failure to comply with a mandatory standard. Standard
75.220(a)(1) was cited 21 times in two years at mine 1202295 (21 to the operator,
0 to a contractor). This violation is an unwarrantable failure to comply with a
mandatory standard. Standard 75.202(a) was cited 32 times in two years at mine
1202295 (32 to the operator, 0 to a contractor).
Order No. 9036922.
The inspector assessed the gravity as highly likely, the injury or illness that could
reasonably be expected to be permanently disabling, the negligence as high, and the violation as
S&S, with 14 persons affected.
Order No. 9036663
Order No. 9036663, issued on February 3, 2016, alleged a violation of 30 C.F.R. §
75.360(a)(1). The cited standard, titled “Preshift examination at fixed intervals,” provides,
“[e]xcept 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.”

40 FMSHRC Page 88

The condition or practice was identified as follows:
A preshift exam was not conducted on the intake aircourse South West Main seals
prior to the afternoon shift miners entering the mine on 2-3-2016. There were not
DT&Is at the seals for the oncoming afternoon shift. Inby of this location was
Unit #3 Maintenance crew, Unit #2 production crew as well as other miners
working inby this location. In order to abate this order, training must be
conducted on the importance of examining seals and how to correctly fill out the
required books. Standard 75.360(a)(1) was cited 1 time in two years at mine
1202295 (1 to the operator, 0 to a contractor). This violation is an unwarrantable
failure to comply with a mandatory standard.
Order No. 9036663.
The inspector assessed the gravity as reasonably likely, the injury or illness that could
reasonably be expected to be fatal, the negligence as high, and the violation as S&S, with 31
persons affected.
Violations at Issue in Docket No. LAKE 2016-0232
At issue in Docket No. LAKE 2016-0232 are five 104(d)(2) orders, with a total proposed
penalty of $86,000.00.
Three of the (d)(2) orders, Order Nos. 9036654, 9036656, and 9036657 invoke the same
standard, 30 C.F.R. § 75.1731(a). That standard, titled, “Maintenance of belt conveyors and belt
conveyor entries” provides, at subsection (a) “Damaged rollers, or other damaged belt conveyor
components, which pose a fire hazard must be immediately repaired or replaced. All other
damaged rollers, or other damaged belt conveyor components, must be repaired or replaced.”
Each of these three orders proposed a penalty of $4,000.00.
Order No. 9036654
In citing an alleged violation of 30 C.F.R. § 75.1731(a), the inspector listed the condition
or practice as:
The Operating 1C (4th Southeast Mains) Belt is being allowed to operate with
damaged rollers. There are two top rollers that are hanging out of the bottom
bracket at crosscuts 42-43, causing the rollers to be frozen and allowing the belt to
rub them. Also in this area there is a top outside roller that is missing. There is
also a frozen top center roller at crosscut 13-14, and a frozen top center roller at
crosscut #35. These rollers were obvious to the most casual observer. This
violation is an unwarrantable failure to comply with a mandatory standard.
Standard 75.1731(a) was cited 43 times in two years at mine 1202295 (43 to the
operator, 0 to a contractor).
Order No. 9036654.

40 FMSHRC Page 89

The inspector assessed the gravity as unlikely, the injury or illness that could reasonably
be expected to be lost workdays or restricted duty, the negligence as high, and the violation as
non-S&S, with one person affected. The Secretary proposed a civil penalty of $4,000.00.
Order No. 9036656
The inspector listed the condition or practice as:
The Operating 1B (2nd Main South) Belt is being allowed to operate with
damaged rollers. There is a frozen top center roller at crosscut #14 and a frozen
top outside roller at crosscut #10-11. These rollers were obvious to the most
casual observer. This violation is an unwarrantable failure to comply with a
mandatory standard. Standard 75.1731(a) was cited 43 times in two years at mine
1202295 (43 to the operator, 0 to a contractor).
Order No. 9036656.
The inspector assessed the gravity as unlikely, the injury or illness that could reasonably
be expected to be lost workdays or restricted duty, the negligence as high, and the violation as
non-S&S, with one person affected.
Order No. 9036657
The inspector listed the condition or practice as:
The Operating 1A Belt (3rd Southeast Mains) is being allowed to operate with
damaged rollers. There are frozen top center rollers at crosscuts # 26,21, and 13.
Also there is a frozen top outside roller at crosscut 19-20. There is a top center
roller missing at crosscut #8-9 allowing the belt to rub the structure when loaded.
These rollers were obvious to the most casual observer. This violation is an
unwarrantable failure to comply with a mandatory standard. Standard 75.1731(a)
was cited 43 times in two years at mine 1202295 (43 to the operator, 0 to a
contractor).
Order No. 9036657.
The inspector assessed the gravity as unlikely, the injury or illness that could reasonably
be expected to be lost workdays or restricted duty, the negligence as high, and the violation as
non-S&S, with one person affected.
Order No. 9036658
Order No. 9036658 invoked standard 30 C.F.R. § 75.360(b)(11)(vi). That standard, titled,
“Preshift examination at fixed intervals,” provides, in relevant part, “(b) The person conducting
the preshift examination shall examine for hazardous conditions and violations of the mandatory
health or safety standards referenced in paragraph (b)(11) of this section, test for methane and

40 FMSHRC Page 90

oxygen deficiency, and determine if the air is moving in its proper direction at the following
locations: … (11) Preshift examinations shall include examinations to identify violations of the
standards listed below: … (vi) § 75.1731(a) - maintenance of belt conveyor components.”
30 C.F.R. § 75.360(b)(11)(vi)
The inspector listed the condition or practice as:
The exam conducted on The 1A, 1B, and 1C belts has been found to be
inadequate. Upon inspection there are 12 rollers that were damaged or missing on
these three belts. This area had been examined prior to inspection by
approximately 3.5 hrs. Standard 75.360(a)(1) was cited 1 time in two years at
mine 1202295 (1 to the operator, 0 to a contractor). This violation is an
unwarrantable failure to comply with a mandatory standard.
Order No. 9036658.
The inspector assessed the gravity as reasonably likely, the injury or illness that could
reasonably be expected to be lost workdays or restricted duty, the negligence as high, and the
violation as S&S, with one person affected.
The proposed a penalty for this Order was $4,000.00.
Order No. 9036924
Order No. 9036924 alleged a violation of 30 C.F.R. § 75.360(a)(1).3 The inspector
assessed the gravity as unlikely, the injury or illness that could reasonably be expected to be
permanently disabling, the negligence as high, and the violation as S&S, with 14 persons
affected. The condition or practice is:
An inadequate preshift examination was performed on the midnight shift
(12/22/2015, 4:00 a.m. to 7:00 a.m.). A hazardous condition (inadequately
supported ribs) located on the #2 Unit, MMU-002 and MMU-022 active working
sections from crosscut #1 to #5 in all entries and crosscuts. This condition was not
posted in or recorded in a book maintained for the purpose on the surface at the
mine. This hazardous condition was obvious and extensive and condition had
existed for a significant period of time. Order #9036922 was issued in conjunction
with this 104(d)(2) order. This violation is an unwarrantable failure to comply
with a mandatory standard.
Order No. 9036924.
As a subsequent action, the operator “held an examination training with all mine
management and examiners on standard 75.202(a). The main emphases [sic] was on rib control
3

The text of this standard has been set forth above

40 FMSHRC Page 91

which also included hazards related to the roof and face.” Id. The Secretary proposed a civil
penalty of $70,000.00.
Findings of Fact4
MSHA inspector Glenn Fishback is a roof control specialist, a position he has held for the
past four years. VI Tr. 26-27. Fishback began working in mines when he was 18 years old. VI
Tr. 30. Prior to becoming an MSHA roof control specialist, Fishback was a regular MSHA coal
mine inspector for six years. VI Tr. 27. It is noteworthy that Fishback had 28 years of mining
experience in the private sector before joining MSHA. VI Tr. 28. Part of that private experience
included about six months working at the Francisco Underground, the same mine involved with
the matters in these dockets. At the Francisco Underground he was a section foreman. VI Tr. 30.
Fishback affirmed that loose ribs are a relevant consideration for roof control plans. VI
Tr. 31. Among other reasons, this is so because “loose ribs have contributed to many fatalities
and disabling injuries and should be taken into great consideration just as much as the roof . . .”
Id. As explained further, below, a noteworthy aspect for these citations is that there was a “mud
seam” present. In Unit 2, the split in the seam was in the middle of it and was made up of mud,
rock, and coal. VI Tr. 194. The inspector informed that this refers to a seam of mud that's placed
within the coal seam itself, which can range from as little as a quarter inch to two or three feet.
Fishback has seen such seams, noting that their size can vary depending on the particular strata
involved. VI Tr. 31-32. The significance of the presence of mud seams is that “[t]hey [can]
deteriorate [roof conditions] very fast, very quickly, and allow for them to slide out without
warning.” VI Tr. 32. Mud seams can be present both on ribs and roofs. Id.
Fishback spoke to the alleged violations as the Francisco Underground Pit, arising from
his inspection on December 22, 2015. He was at the mine at that time for a spot inspection.5 The
inspector was aware that the mine has a history of falls and he had investigated prior falls at the
mine in his capacity as a roof control specialist. VI Tr. 38. He had issued roof violations at the
mine prior to December 22nd and in the summer of that year he had put the mine on notice of the
need for greater diligence in controlling roof conditions. VI Tr. 39. Prior to his December 22nd
inspection, Fishback spoke with his supervisor, Phillip, “Doug,” Herndon. VI Tr. 40. He and
Herndon discussed the rib conditions that another MSHA inspector had observed at the mine.
Herndon also accompanied Fishback on his December 22nd inspection of the Francisco
Underground Pit. VI Tr. 41. When Fishback arrived that day, the mine was on the day shift and
he informed that he was there on an E02 spot inspection. Id. He inspected the mine’s Unit 2 on
that day. Id.
4

The testimony for these dockets was taken over three days. Unfortunately, the transcript
pagination began anew for each day. For that reason, transcript cites begin by identifying the
volume involved; VI designating the first day, VII the second and VIII the third day of
testimony.
5

Spot inspections are related to inspection for methane liberation and, depending on the
amount of such liberation, the inspections can be on five, ten or 15 day intervals. VI Tr. 35.
These inspections cover the entire mine. VI Tr. 37.

40 FMSHRC Page 92

Fishback identified Gov. Ex. P 6 as the on-shift and pre-shift records for December 22,
2015. VI Tr. 42. Page 2, of Ex. P 6, reflects the pre-shift from the third shift, done for the day
shift coming on. Id. Thus it was the pre-shift exam that occurred immediately prior to his
arriving that day. The inspector stated that the pre-shift did not record that the mine was
experiencing any adverse roof conditions. VI Tr. 43.
After examining those records, the inspector went underground with Eric Carter, the mine
escort for that day and they proceeded to Unit 2. At that time, Unit 2 had 11 entries and
approximately three crosscuts. VI Tr. 44. Upon leaving the mantrip he went to the left side of the
section, walked about two crosscuts and then encountered “a very adverse rib.” VI Tr. 45-45.
Fishback stated that when he found the condition, “it had been rock dusted over.” VI Tr. 45. This
meant the condition had to have “been there prior to the shift starting.” Id. He then returned to
the mantrip, retrieved his camera, and took pictures of the condition. Id.
For context, Fishback informed that in the course of conducting an inspection, each time
an inspector enters a working section, he conducts an imminent danger examination, also called
an imminent danger run, on each working face. On this occasion, to do this run, Fishback started
on the far left entry and then worked his way across the section. On the working section itself, at
the stopping line, he would take air readings on each side of the section. VI Tr.46. When
Fishback conducted his imminent danger run, he found “[t]he whole section had adverse rib
conditions.” Id. By the “whole section,” Fishback stated he found adverse rib conditions in
“[e]very entry, every crosscut we encountered.” Id. By “we” Fishback informed that at that time
he was with his supervisor, Herndon, and the mine’s Mr. Carter. Id. The inspector asserted that
all of the adverse rib conditions he found were inby the loading point. Id. Fishback then issued a
104(d)(2) order for those rib conditions he had just observed across the whole working section.
VI Tr. 47. Gov. Ex. P 1 and Ex. P 2, the inspector’s notes relating to that order.
Fishback identified Gov. Ex P 3 as the photographs he took on that date. 6 VI Tr. 48.
Some of the photos within that exhibit were taken by Fishback when he arrived on the section
and others were taken after he completed his imminent danger run and advised Carter that he was
going to issue a closure order. VI Tr. 48-49. All the pictures were taken on the same unit, that is,
Unit 2. VI Tr. 49. He was unable to provide exactitude for locations of the photos he took within
Unit 2. Id. The Court asked additional questions about the locations of the photographs. Fishback
confirmed they were all taken “within the entry area of the loading point.” VI Tr. 56. All the
photos were within the same entries.7 Id. The inspector acknowledged that all of the photos have
6

Respondent objected to the introduction of Exhibit P 3 because, in its view, there was
insufficient specificity as to the location of the photographs. Regarding this issue, the Court ruled
against the Respondent’s Motion in Limine prior to the commencement of the hearing.
Respondent renewed and preserved the objection at the hearing. VI Tr. 55. The issue is discussed
further infra.
7

An issue of no consequence, the times reflected on the photos are accurate, but they
reflect the time zone of the inspector’s office, in Vincennes, Indiana, which office was on eastern
time. However, the mine was then on central time, an hour earlier. Therefore while the camera
recorded the time as 11:21 a.m., it was actually 10:21 at the mine. VI Tr. 50-51.

40 FMSHRC Page 93

the same “Location/bolter description.” VI Tr. 54. This general description was provided,
because it was not an isolated area – it “was across the whole room and section entries and cross
space.” Id. Unit 2 had 11 entries.8 Id.
The Court finds it noteworthy that, when the inspector was taking these photos, Eric
Carter was the mine’s escort with him on that day and Carter was present for nearly each photo
the inspector took. 9 VI Tr. 77. In addition, as mentioned earlier, the inspector’s supervisor was
with him. Id. When the Court inquired if any mine official challenged the inspector’s
observations, the inspector responded no one did so and that, to the contrary, Carter, was
concerned about it “and had been trying to address it but hadn’t had any luck with it yet.” VI Tr.
78.
Several of the photographs taken by Fishback were enlarged to poster board size.10
Exhibit P 3A, an enlargement of photo 39 from Exhibit P 3, was one of those. VI Tr. 67. The
inspector, referring to the enlargement, advised that both ribs were “leaning in, …bent coming
down.” VI Tr. 58. Ribs, he noted, are supposed to be vertical but these ribs were leaning. By that
description, the inspector affirmed that he meant that the ribs were coming into the entry. VI Tr.
59. Some of the ribs had already fallen off. This is evidenced by the presence of dark, shiny,
coal. VI Tr. 58-59. The roof in this area was about six and a half to seven feet high. VI Tr. 59.
Referring again to the enlargement of photo 39, the inspector marked areas11 on that enlargement
showing a dark blackish hue, which he stated reflected areas that had already sloughed off the
rib. VI Tr. 62. Those blackish areas revealed that the rib was deteriorating and about to fall off
the solid pillar. Id. At the bottom of the same photo, the inspector marked another area where the
8

Also of no consequence, the inspector informed that he had incorrectly listed the
number of entries as 10, when it actually had 11. VI Tr. 54.
9

Respondent’s Counsel inquired, generally, to these photographic exhibits, asking what
they were being offered to represent. The Court responded that its understanding was that each of
these photos were enlargements of the photos which are part of Ex. P 3. The Secretary’s Counsel
agreed with the Court’s description; each photo, both those enlarged and those non-enlarged,
represent the conditions the inspector observed during his inspection on December 22. VI Tr. 80.
10

There was an unfortunate development regarding the poster-board enlargements, as
they were never received at the Commission. The Secretary maintained that he sent them to the
Commission, but had no tracking information to support that claim. A search of the Commission
docket office found no such submissions. The record made it clear that the Secretary was to
deliver the photo enlargements to the Commission. They were, after all, the Secretary’s admitted
exhibits. VI Tr. 67-68. Fortunately, digital copies of the exhibits were made and sent to the
Commission via email, to the Court, and by overnight mail to the Commission. Respondent’s
Counsel, Attorney Arthur M. Wolfson was also very helpful in overcoming this evidentiary
deficiency, created by the Secretary of Labor, sending scanned digital copies to the Court and
overnighting them to the Commission. The parties agreed that the digital copies would suffice.
11

The inspector’s initials, “GF” coupled with numbers, matched the areas marked on the
photographs with his testimony. VI Tr. 64.

40 FMSHRC Page 94

rib had gapped away from the solid pillar. VI Tr. 63, and the number 3 on P 3A. The roof is
about 6 ½ to 7 feet high in this area. VI Tr. 65. The inspector asserted that all of the areas of
concern with the ribs were above his head level. VI Tr. 65-66. The crack he identified in the
photo P 3A extended from the floor all the way to the roof. VI Tr. 66.
The inspector then spoke to page 34 of Ex. P 3 and the enlargement of that exhibit, which
was marked as P 3 B.12 VI Tr. 68. The color in the enlargement reflects that the rock dust there
was wet. VI Tr. 69. As with the prior photo enlargement, the inspector identified areas located at
the top of the photo where the rib was starting to fall off. He also noted there was no rock dust at
those locations, another indicator that the rib was deteriorating and falling off. VI Tr. 70.
Marking a separate area on P 3 B with the number 2, the inspector stated it showed the same
problem but that it was more adverse, as more rib was falling off. VI Tr. 71. Another similar
problem area was identified and marked by the inspector on Exhibit P 3 B with the number 4. VI
Tr. 72. The presence of “joints,” also described as “gaps,” in the ribs informs that there is
separation from them. VI Tr. 75-76. The inspector marked the number “6” in an area to the right
of the photograph. VI Tr. 76. He informed they were the same as those on the left side, though
on the right lower side it was separated more and they were “stacked,” an indication that
“[t]hey’re going to start separating and fall out.” Id. Another one, marked with the number “7,”
reflects an area where the gap was going up. Id.
Exhibit P 3 C is another photo enlargement from Ex. P 3, photo 4 of 20. On the
enlargement the inspector circled the top portion of the photo where there is a bright pink or red
area and also marked that with the number 1. VI Tr. 81. The red or pink marking represents the
time that someone did a preshift or onshift exam. VI Tr. 81-82. Referring to the bottom left
quadrant of the photo, towards the center, the inspector drew an arrow to that area, marking it
with the number 2. VI Tr. 83. The top portion of the photo is whitish in color, a feature that the
inspector informed is from rock dust. Id. Below the white area, he stated that the darker area is
“an adverse parting that was in the coal seam across the whole section.” VI Tr. 83-84. The area
with an arrow to GF 2 reflects that “a previous either initial or time that was there before it was
rock dusted last time after it had already fallen off.” VI Tr. 84. The red spray painted area, part
white and part black, shows that it was dusted and the date and initials were made after it was
dusted, or the condition existed prior to the examination. Id. At the bottom left quadrant, and the
area within that with red paint, the inspector marked that as GF 3. The inspector informed that
there were areas where the spray paint was applied after part of the rib had fallen, marking that
area as GF 4. Id.
Exhibit P 3, at photo 19 of 20, and the enlargement of that photo, designated as P 3D is
another photo taken in the area. The inspector marked the right and middle portion of the
enlarged photo including the spray painted number 60, adding the number 1 and his initials to
that marked area. VI Tr. 86, 87. The inspector stated that the spray painted numbers had been
written right over the adverse rib and that the rib was ready to fall. Id. Thus, at the areas marked
number 1 and number 60, the inspector stated that the paint had been applied right over the
adverse condition. VI Tr. 88 and the number 4 and initials on the exhibit, indicating that area. He
12

In response to the Court’s inquiry, the inspector stated that the colors in the
enlargement, P 3B, are more accurate than the binder copy of the exhibit, at page 34. VI Tr. 69.

40 FMSHRC Page 95

also identified that area, reflecting the adverse condition of the ribs, marking it as E F2. VI Tr.
87. That area had portions that had already fallen out and showed cracks that had parted off
across the rib. The absence of rock dust meant that it had already starting falling out. Id.
For photograph 13 of 20 from Exhibit P 3 and the enlargement of that photo, P 3 E, the
inspector identified the roof and circled that area with the number 1. VI Tr. 89-90. That area also
reflects screen wiring on the roof, which the inspector marked with an X and the number 2. VI
Tr. 90. The area marked with the number 3 on that photo is the portion of the rib that came away
from the solid color and Fishback stated that it was on the verge of falling. He added that, in the
remainder of the photo, the rib was already falling out underneath. VI Tr. 90-91. The black color
in the photo shows that the condition had not lasted long because the rib had not had a chance to
absorb the moisture. VI Tr. 91. The area marked with “3” on the photo, was six and a half to
seven feet in height. Id. The area where the rib had already fallen out was marked with the
number 4. Id. This was marked on the lower portion of the exhibit by a continuous line across
one end of the photo to the other. VI Tr. 91-92.
Upon admission of Gov. Exhibits P 3A through P 3E, the Respondent reasserted its
objection, which objection, as noted, was based upon the inspector’s inability to precisely
identify the location for each photo. VI Tr. 92. The Court noted that it had already ruled upon the
Respondent’s objection, adding that while the inspector could not be precise about the location
of each photo, they were all taken within the same section at Unit 2. VI Tr. 92-93. However, in
light of the renewed objection, the Court then asked some follow-up questions of the inspector,
inquiring, “And the photographs – the various photographs within [Petitioner’s Exhibit 3] would
there – by representative, you mean they're typical of what you encounter[ed]?” The inspector
confirmed that was true. VI Tr. 94. The Court also asked of the inspector if the admitted photos
represented the only areas where he saw a problem within the section. VI Tr. 95. The inspector
responded that the photos were not the only areas, expressing, “[e]verywhere I walked had
adverse rib conditions. I just did not take a picture of every location.” Id.
This is an appropriate time to note that the Court finds that, while the particulars
identified by the inspector are of note and useful, the more important point to keep in mind, so as
not to miss the forest for the trees, so to speak, is that there were multiple areas of concern with
the ribs credibly identified by the inspector.
Upon making his observations, as described above, Fishback then issued his Order and
informed Carter that he wanted a meeting with the crew about the conditions he found. VI Tr.
95-96. He then met with the section foreman, Zach Hudson, advising that the section was being
shut down until the adverse roof conditions were corrected. The purpose of the crew meeting was
to advise them of the danger posed by the conditions. VI Tr. 96.
Referring to Gov. Ex. 21, Fishback’s Order, and to Section 8 of that Order, which
pertains to the condition or practice, the inspector modified the order to note that the MMU was
022, not MMU 12. VI Tr.100, Gov. Ex. P1, at page 4. The condition or practice also records 300
feet, which is the approximate distance from the face outby the affected areas. This figure was
derived by the center to the crosscuts. Id. The Court observes that this is another factor
identifying the location of the ribs in issue. Another measurement, the thickness, is listed as 8 to

40 FMSHRC Page 96

24 inches. VI Tr. 101. That figure was derived from the average measurement of the thickness of
the ribs that the inspector observed on the ground. Id. The inspector did not measure all the
problematic ribs he observed. A five and half to six foot measurement, which was an
approximation, was also listed as was a measurement of 30 to 40 feet. That figure was derived
from the measurements of the height of the walls of the areas. Id. This too was an approximation,
arrived at by the length to the total. VI Tr. 102. The inspector added that he was looking at areas
“gapped away from the solid filler approximately three to six inches.” By that, he meant “areas
of the ribs that [he] measured being gapped from the solid filler.” Id.
Testimony then turned to Gov. Ex. P 4, which pertains to the inspector’s 104(d)(2) order
for an inaccurate pre-shift exam.13 VI Tr. 103. The inaccurate pre-shift exam order was issued in
conjunction with the adverse rib conditions, as just described, next above. Id., Gov. Ex. P 5, the
inspector’s notes associated with these orders. Those notes reflect that the miners were retrained
on the cited standard, section 202(a).14
An objection was raised when Fishback was asked for his opinion as to the length of time
the adverse rib conditions had existed. The Court held that, as the inspector had 39 years of
mining experience, he was qualified to offer such an opinion. Fishback stated that the condition
had existed for “a substantial amount of time.” VI Tr. 109-110. With more particularity, he was
then asked for his opinion as to the period of time that the adverse roof conditions he observed
on the December 22nd had existed in Unit 2. His response was that “[i]t existed for a substantial
amount of time, several shifts.” VI Tr. 110. His support for that view was “[b]ecause the
condition [he] found and the area that had been rock dusted over with the adverse conditions
present, which [the] photographs already represent.” VI Tr. 111. The inspector confirmed that
the number of problematic ribs he found also informed his view as to how long the conditions
had existed. Id. This view was “[b]ecause of the condition they were in and -- and how many
there was and that the agent of the operator is a pre-shift examiner or the section foreman. Their
initials were on the adverse conditions, and they did not occur in that short -- you know, [a]
time.” Id.
There was some unhappiness expressed by the mine foreman about the inspector’s
determinations, with the inspector stating that the section foreman “was very disgruntled toward
me and my supervisor both. He didn't want to talk.” Id. The section was shut down after the
order was issued and work scaling the ribs then began. That work was required in order to have
the orders terminated. VI Tr. 113.
13

Because it is a potential source for confusion for one reviewing the record, if the case is
appealed, it is pointed out that Gov. Ex. P 4, which as noted pertains to the inspector’s 104(d)(2)
order for an inaccurate pre-shift exam, Order No. 9036924, is from Docket No. LAKE 20160232. By contrast, the rib violation itself, Order No. 9036922, is within Docket No. LAKE
2016-0269.
14

Gov. Ex. P 5, at pages N through 12, represents “all these responsible people who are
agents of the operator on this section on all three shifts had been previously trained on rib
conditions on 10-28 of '15.” VI Tr. 106. That retraining occurred two months prior to the cited
conditions in this case. Id.

40 FMSHRC Page 97

Addressing the hazards presented by adverse rib conditions, the inspector stated that the
potential injury can range from permanently disabling to a fatality, depending upon the thickness
and length of the rib which falls, how tall the rib is, and how far it falls. VI Tr. 113-114. As for
the inadequate exam of these ribs, the inspector noted that the examiner is exposed to the same
hazards as the crew working in the area. By not reporting the hazard, and taking no action to
address it, the section foreman endangered the whole crew. Instead, the crew began mining in the
section and they were mining when the inspector arrived. VI Tr. 115. The section foreman was
Zach Hudson and the pre-shift examiner was Matt Benjamin. VI Tr. 116.
The inspector marked the injury aspect of gravity for both violations as “highly likely,”
and it was his view that if an injury were to occur, at a minimum, it would be permanently
disabling. VI Tr. 116. The Court notes that in the citation/order form, 7000-3, for gravity, only
“occurred” is above “highly likely” and “Reasonably likely” is just below “highly likely.” The
inspector maintained that all 14 miners on the active section were exposed to the hazard. Id. He
added that the breadth of the condition increased the exposure, because “the condition existed
across the whole section. So everywhere you walked, you were exposed to that.” VI Tr. 117. The
inspector also considered that the violations were of high negligence and unwarrantable failure,
on the grounds that: the agent of the operator was involved; the extensiveness of the condition;
and the length of time that it had been allowed to exist, and that many should have known of the
conditions’ existence. Id.
Fishback considered that the mine should have known of the condition, because “the
examiner [as] an agent of the operator, [ ] should have reported it in the record book and called it
out to the previous section foreman that was coming off shift.” VI Tr. 117. The mine’s history,
with multiple roof rib violations, and its roof fall history, were also factors that should have made
them more alert. VI Tr. 117-118. That history included the inspector having called these issues to
the mine’s attention during the preceding summer, speaking to John Hughes, who is part of
upper management, and to others at the mine. VI Tr. 118. The inspector asserted that the
conditions supporting his determination of unwarrantable failure and high negligence applied
equally to the pre-shift violation. VI Tr. 119. The Court notes that its analysis takes the same
approach in evaluating those claims.
Per cross-examination, Inspector Fishback agreed that to have the title of roof control
specialist one need not have a degree nor a certification. VI Tr. 120-121. However, annually, the
inspector does receive a notification upon completing his annual roof control training. VI Tr.
123.
Fishback agreed that, for a short time, some five or six months, he worked at the
Francisco Mine, but he disputed the suggestion that he left the mine because of a disagreement.
VI Tr. 124. However, when shown his deposition of January 2017, he agreed that he left
employment with the mine because he did not get along with the mine superintendent. VI Tr.
126. However, he added that he also left because he found a better job. Id. Fishback also agreed
that during his employment with Air Quality, that mine was acquired by Peabody and that he had
issues with mine management at Air Quality as well. VI Tr. 127-128. The Court notes that it is
fair to state that Fishback was reluctant to admit his past disagreements with the management at
those two Peabody mines. For example, during his testimony at the hearing, he was evasive

40 FMSHRC Page 98

about the individuals at those mines with whom he had issues. Yet, during his deposition he
named the individuals – Maynard and Campbell. Further, in his deposition, Fishback agreed that
he liked working at Air Quality better when it was run by Black Beauty than when Peabody took
it over. VI Tr. 129. However, the Court also notes that those prior employment issues were in
2000 whereas the citations in this proceeding were issued in late 2015. VI Tr. 130. Nevertheless,
when testifying, MSHA inspectors should be direct and not elusive when under crossexamination. Anything less potentially puts their credibility at risk.
Fishback stated that, prior to his December 2015 inspection, another inspector had told
him about rib conditions at the mine, but he could not recall which inspector told him that nor
could he recall the particular locations named by that inspector. VI Tr. 131-132. However he
recalled that the other inspector had mentioned Unit 2 and that was the reason he inspected that
area. VI Tr. 132-133.
This mine was on a five day spot inspection because of its methane liberation. Such
inspections check violation controls but that is not all that occurs. VI Tr. 134. As part of that spot
inspection process, MSHA keeps a log of the areas that have been inspected and that is how
MSHA decides to go or not go to a particular area. Id. The log is used so that one doesn’t return
to the same unit again. VI Tr. 135-136. However, contrary to his earlier statement, at his
deposition, Fishback stated that Unit 2 was the next up, although he did not contend that it had
not been inspected before. VI Tr. 136. Respondent inquired about the inspector’s remark during
direct that he had previously put the mine on notice. Fishback responded that it was during the
summer of 2015. VI Tr. 138. He added that he issued a citation at the time he put them on notice,
but was he was unsure if it was for rib conditions, as it could have been for excessive entry
widths. VI Tr. 138-139.
The inspector stated that, while he considered the mine’s history regarding roof falls
violations, per 75.202(a), and that he also considered the mine’s roof fall history to be
“extensive,” he maintained that when he issued the order in this matter, it was based on the
conditions he observed the day he was there. VI Tr. 142-143.
Continuing with the subject of the mine’s violation history, when shown Exhibit R 8 and
directed to the repeat violation points the mine was given for the alleged section 75.202(a)
violation, the inspector read that two (2) points had been assigned. VI Tr.146. However Table 8
of 30 C.F.R. section 100.3 allows for a range of zero to 20 points for repeat violations. VI Tr.
146-147. The Court takes note that, obviously, two points is on the low end of repeat violations
scale, given that as many as 20 points can be applied. The Court observes that, if a violation is
established, it looks at the history of violations, not the Part 100 penalty point system for that
category, as penalties are determined by evaluating the evidence against the statutory criteria.
Respondent revisited its issue with the photographs Fishback took in support of his order
concerning the condition of the ribs. As before, the inspector could not identify the precise
location of any of the photos, other than to say that they were all on that section, Unit 2. VI Tr.
157. Nor could he give the entry and/or crosscut where the photos were taken. Id. The Court
continues to not think much of limited basis of the Respondent’s assault. After all, the inspector
was under no obligation to take any photos of the ribs at all. The absence of photos would not be

40 FMSHRC Page 99

a basis to dismiss such an order. Absent a contention that the photographs were not taken in Unit
2 at all, a claim not made by the Respondent, or worse – that they were fabrications, unrelated to
the mine entirely, it would be odd indeed to have photographic evidence of the conditions
observed work against an alleged violation, at least on the grounds asserted by the Respondent.
Further, as a practical matter, it would be unrealistic to impose exactitude for the photos’
locations, beyond the area, identified by the inspector.15
The Court asked the inspector to put aside his interest in having the mine do a better job
in controlling the roof and rib, and therefore to put aside the mine’s future actions, and also to
put aside the mine’s past conduct, and instead to focus only on what he observed the day he
issued the order. With that limited focus in mind, the Court asked if the inspector just looked at
what he observed that day and forgot what happened before and ignored what he speculated
might happen in the future, would he still have arrived at the same conclusions that he marked in
these two matters. Fishback responded he still would have still reached the same conclusions. VI
Tr. 190.
Directing Inspector Fishback to Ex. P 3, he was able to identify the first area that he
called to Carter’s attention that needed abatement, identifying photo 7 of 20 within Exhibit P 3.
VI Tr. 159. The inspector could only surmise, reasonably in the Court’s view, that the date, time
and initials appearing on Exhibit 3D, which he had previously labeled with the number 4, were
from that day because otherwise one should not be able to see them, as they would’ve been rock
dusted over. VI Tr. 160.
The inspector informed that, within his mining experience as a section foreman, he has
worked on a section that had a mud seam, and also that a mud seam can result in conditions
which require one to scale, and that scaling is an acceptable means for controlling ribs. VI Tr.
161. Further, he agreed that if a rib had been rock dusted, and then scaled, the scaled area will
then be black. VI Tr. 162. However, he pointed out that it is not simply scaling that is required,
but continuous scaling that is needed. Id.
Fishback agreed that Hudson was unhappy about the order being issued, and that he
inquired of Fishback how long the inspector and his supervisor had worked in the mines.
Fishback also recalled Hudson telling him about the efforts the mine was making to control the
ribs. VI Tr. 163.
Regarding Ex. P1, Fishback acknowledged that the measurements listed in that exhibit
reflect the average thickness. VI Tr. 165. He affirmed that in Unit 2 the height of the entry was
about five and a half to six feet, but as with the rib conditions, he could not precisely identify
where he made those measurements. VI Tr. 166. Speaking to Ex. P 4, the inadequate pre-shift
15

The Court asked about the practicality of measuring or otherwise determining the exact
locations of the cited ribs, asking, “[w]as there a practical and reasonable, and by that I mean, not
excessively time-consuming way by which you could have more particularly identified the
location for each of the photos that you took?” Fishback answered, “With the number of entries
and crosscuts, I think it would have been very difficult to do.” VI Tr. 186. However, the entry
number would have been an additional means of identification. VI Tr. 187.

40 FMSHRC Page 100

examination order, Fishback stated that order referenced crosscuts one to five in all entries, and
by that he meant the affected area, with five being the first crosscut inby the last open crosscut.
VI Tr. 168-169.
As part of the Secretary’s case, the contention was made that the inspector had previously
put the mine on notice that they had to exercise greater oversight as a consequence of the adverse
rib conditions found in the summer of 2015. The Secretary also contended that the mine had a
history of standard 75.202 violations. That standard addresses roof control. During the summer
of 2015 Fishback issued a 75.202 violation to the mine. At that time he told the mine they would
have to do a better job of controlling the ribs. VI Tr. 173. However, while the inspector asserted
that the prior citations he had issued for 75.202(a) violations at the mine were an additional
reason for putting the mine on notice, he could not independently recall the details of those prior
events. VI Tr. 184. The Court observes that a history of violations may not be necessary to
support the seriousness associated a citation or order. That is to say, the special findings in an
order or citation can be upheld apart from any prior history of violations.
As noted, Fishback’s order, shutting down the section, was issued on December 22nd.
Unit 2 was in its second day of mining at that time. VI Tr. 177-178. Fishback stated that at that
time the mine was running coal but he saw no signs that scaling had occurred. VI Tr. 178.
Also, informative in the Court’s estimation, Fishback stated it is not his common practice
to close a section when he encounters loose ribs. VI Tr. 187. Asked what made this instance
different, prompting him to shut down the section, the inspector answered, “Because of the
extensiveness. It was in every entry, every crosscut I went through. The seam had a split in it
itself. The picture illustrated that.” VI Tr. 188. Fishback also stated that he saw no “other side” of
the story to the conditions he observed and therefore did not approach the pre-shift examiner to
hear his views. Id.
The Court also addressed the issue of whether Fishback had an animus towards Peabody
Midwest, as he had been employed by that entity at one time. The essence of the question was,
because of that prior employment, whether the inspector brought a predisposition against the
mine. Fishback responded, “No, sir. I don't get any joy out of writing an order. It contains a lot of
paperwork for me to write that.” VI Tr. 191. The Court continued, “So are you telling me you
had no predisposition against Peabody? You didn't go in there with a chip on your shoulder
towards them?” The Inspector answered, “No, sir.” Id. The Court finds that Fishback’s testimony
was not biased. His observations were based on the conditions he viewed that day, and those
observations were also supported by Inspector Herndon’s firsthand views of the same areas.
The termination of the order is reflected at Ex. P 1 at page 5. This involved installing
supplemental roof support with “tall panels to retain loose coal and rock away from the mine,
and it was mechanically dusted before production resumed.”16 VI Tr. 193.
Phillip Douglas Herndon, MSHA inspector, also testified for the Secretary. Herndon is
the district roof control supervisor, a position he has held for about three years. VI Tr. 197. His
16

Another inspector, Keith Dunham, issued the termination order. VI Tr. 193.

40 FMSHRC Page 101

mining experience in private industry began around 1982 and continued until 1989. He stated
that his inspectors are to take photos of roof related citations, but that such photos are to be
representative of the conditions observed. They are not to take a voluminous amount of photos.
VI Tr. 201-202.
Turning to the orders in this litigation, that is, those issued during the December 22, 2015
inspection, Herndon stated that he was aware of the rib conditions at the mine. As noted,
Herndon accompanied Fishback during the latter’s December 22nd inspection of the Francisco
Underground Pit. VI Tr. 206. They were there for an E02 ventilation spot inspection. Part of the
reason he accompanied Fishback on that date was that the mine had violations going on for ribrelated conditions and he had been informed that such conditions were really bad in one general
area. VI Tr. 207. On that date Herndon and Fishback were only at the Unit 2 section.
VI Tr. 209. When they arrived on the section that day, it was a new setup, as mining had just
moved from a different location. Id. At that time Herndon observed that the “ribs were poor in
condition, not adhered to each other, rashing17 in various different sizes basically from the mine
floor all the way to the mine roof.” Id.
Herndon confirmed that he observed Fishback taking pictures of the ribs and that they
were in the company of the mine’s Eric Carter. VI Tr. 210. Herndon did not claim that the three
were next to one another the entire time, but they were all together on the section, as they were
close enough to be able to carry on a conversation by raising their voices. Id. According to
Herndon, Carter agreed “that the roof control plan, you know, needed to be addressed, conditions
that was not mentioned in there for this area of mining. ... [and that he] was in safety compliance,
I believe, and mentioned stuff about wanting some bigger plates or seam control and stuff like
that so he really spoke about stuff he needed.” VI Tr. 212.
Herndon also recalled speaking with the foreman on that shift, Hudson, asserting that the
foreman “was on the verge of being irate at the time of their conversation. I never met the young
man before, and he approached -- or we approached him, I'm not for sure, but whenever we met
up, he seemed to be extremely upset with us having to shut down to fix these.” VI Tr. 213. As
with Fishback’s account, Herndon asserted that Hudson was not very professional, questioned
how long the inspectors had been experienced with mining and then suggested that the inspectors
“ought to know that you have to do what you got to do to run coal or something like that.” Id.
Later, after the inspectors required a safety talk with the entire crew, another miner came to them
and apologized for Hudson’s earlier attitude in the prior conversation. VI Tr. 214.
Herndon made it clear that the decision to shut down the section was Fishback’s call, but
that he agreed with it. VI Tr. 215. He also confirmed that at the time the order was issued, the
mine was producing coal. VI Tr. 216. The Court used the same approach it applied to Fishback,
asking that Herndon put aside his “prior knowledge of this mine and the problems or alleged
problems with roof control, rib -- roof and rib control. . . . [and it also asked that he] discard any
of [his] concerns looking forward, that is beyond December 22, 2015, and [the Court asked him]
17

“Rashing,” Herndon explained is “like, scaling that is falling off, like chunks up in the
-- slip off, like sloughing.” VI Tr. 210. This exists not because of anything the mine did. Rather it
is a consequence of the “geological configuration.” Id.

40 FMSHRC Page 102

to focus solely on the conditions that [he] observed along with Inspector Fishback on December
22, 2015.” VI Tr. 230.
With that focus in mind, the Court then inquired, “had [he, i.e. Herndon] been the issuing
inspector, would [he] have issued – looking at the conditions which were cited by the inspector
[Fishback], would [he] have also issued this as a 104(d) order?” VI Tr. 230-231. Herndon
responded, “Yes,” and affirmed that he had “no doubt at all” about that. VI Tr. 231. So too,
Herndon responded that he would have marked the citation’s findings the same as Fishback did.
Thus, looking at Ex. P 1, when the Court asked, where Inspector Fishback marked on the Order
under gravity, that the injury was highly likely, permanently disabling, significant and substantial
and with 14 persons affected, and the negligence as high, if Herndon, as one who was there, had
been the issuing inspector, would he have marked the evaluation differently, Herndon responded,
he would not have. That is, he would have marked the evaluation the same as Fishback. Id.
Respondent’s defense began with Barry McKinnon. He is a scoop operator at the
Francisco Mine. VI Tr. 235. Working on the A crew, occasionally he will fill in as a section
foreman. Id. The A crew is the idle shift. The other two crews were producing coal. VI Tr. 236237. On the December date in issue in this litigation, McKinnon was working in Unit 2. While
the A and B crews rotate every two weeks, the A continues to be the idle shift. VI Tr. 237. The
idle shift does what one might expect; clean, rock dust and perform equipment maintenance. Id.
Seven to eight miners make up the A crew. By comparison, a production crew has about 15
people. Id. McKinnon described the specific jobs the A crew would perform as “scoop operator,
which cleaned, dusted the units, cleaned for walls, set them up. You would have two or three
guys building walls. One man doing ventilation. We got one guy that washes.” VI Tr. 238.
McKinnon is usually the scoop operator.
When prompted by Respondent’s Counsel, McKinnon then added that prying ribs is a
common activity for the A crew. He also asserted that everyone on the A crew pries ribs during
their shift. Discerning a conflict with that response, Respondent’s Counsel inquired, “[b]ut if
you're the section foreman or if you're the scoop man, in the normal course of mining operations,
how will the scoop man have an opportunity to pry ribs?” VI Tr. 238. McKinnon responded,
“Well, he [i.e. the scoop man] would -- if he did any prying, he would basically what he did, he
pried them down. If it was something that was out of control for a pry bar, he would use a scoop
bucket and take down the excess or whatever.” VI Tr. 238-239 (emphasis added). A similar
question arose regarding the roof bolters, with Counsel asking, “What about the roof bolters? In
what context would they pry ribs?” VI Tr. 239. McKinnon answered, “They would pry ribs down
as they advance in, scaling them, normal things like that when they would advance in on the
bolt.” Id. He informed that there is a pry bar on the roof bolter. Id. So too, it was appropriately
asked how miners building walls (i.e. stoppings) would have an opportunity to scale ribs.
McKinnon answered they would scale ribs around the work area. Id. The Court finds that
McKinnon’s testimony on this subject lacked some credibility. Accordingly, the Court finds that
the A crew members’ focus was on jobs other than prying ribs.
McKinnon stated that, before his shift began the crew would meet at the command center,
which is underground. There they would “get [their] game plan for the day and put out jobs and
send them on their way.” VI Tr. 240. Only upon prompting did McKinnon assert that rib control

40 FMSHRC Page 103

would come up as a topic at those meetings. VI Tr. 241. However, when asked how that subject
would come up, he answered, “[w]ell it was -- it was everybody's job to pry ribs. Everybody
knows it, and that's what -- when you have the meeting at the school, that's just one of the topics
that was brought up.” Id. The Court did not find McKinnon to be completely credible on this
topic either.
Turning to the violations alleged in this litigation, McKinnon was asked, “[i]n December
2015, do you think you and your crew were successful in managing the ribs on Unit 2?” VI Tr.
241. McKinnon responded, “[y]es,” but his support for that assertion, was that “[b]ecause no one
got hurt.” Id. Later, McKinnon would affirm that his test was whether someone got hurt. VI Tr.
257-258. The Court finds that McKinnon’s response was both a revealing and a disappointing
standard for safety that he applied.
McKinnon’s duties, when acting as a section foreman required him to do examinations.
These include an on-shift report and a pre-shift report. As before, when asked what he looks for
when doing his pre-shift, McKinnon answered, “are you looking for? “Well, pre-shift you -- you
walk the faces, check for gases, air readings, adverse conditions on ribs, top, loose bolts, et
cetera.” VI Tr. 242. Not picking up from what his responses were lacking in his earlier
testimony, he was specifically asked, “[w]hile doing the pre-shift examination, would you -would you -- would you have pried ribs?” McKinnon responded, with an uninspiring, “[y]eah.
As needed.” Id. The Court finds that McKinnon’s response speaks for itself.
McKinnon was directed to Respondent’s Ex. R 2 P, which he identified as the on-shift
report for second shift, Unit 2, on December 21st. VI Tr. 243. On that day he was acting as the
shift foreman. The second page of that exhibit records the pre-shift exam for the same day. Id.
Activities and corrective actions are listed on the on-shift exam. That report reflects “[p]rying
ribs down in by the tail.” VI Tr. 244. McKinnon stated that was done by the “whole crew,” an
indication, in the Court’s estimation, that this was a situation needing attention. Id.
Next, McKinnon was asked about R 2S, the on-shift report for Unit 2, second shift, on
December 22nd. That report pertained to the shift after the order was issued and the unit was still
shut down at that time. V I Tr. 244-245. Ribs were pried down, bolts spotted and timbers were
set across the unit and these things were done on the 2A roadway too. That roadway is outby the
loading point and “technically” is not on the working section. VI Tr. 245. The 2A is also a
travelway. Work was being done there because it had been “red flagged” and shut down. The
Court observes that the report does not present a picture in conflict with the earlier testimony of
MSHA inspectors Fishback and Herndon.
McKinnon stated that most of the rib prying had been done before his crew came in on
their shift and that more of the activity involved bolting, and timber setting, a condition that
developed after the rib prying resulted in too wide an entry. VI Tr. 246-247. As has been noted,
the mining occurring where the orders were issued was on Unit 2, but previously they were on a
different panel, which ran parallel to the panel where the miners had been working. VI Tr. 247.
McKinnon stated that the previous panel had the same problem with the ribs, requiring that they
be pried. VI Tr. 248.

40 FMSHRC Page 104

On cross-examination by the Secretary, McKinnon was directed to Ex. P 5, at page 4, and
further identified as “examination training,” and dated October 28, 2015. VI Tr. 251-252.
McKinnon agreed that it reflects that he was among those receiving retraining on standard
75.202(a), regarding loose rib maintenance. VI Tr. 253. McKinnon affirmed his earlier testimony
that, when acting as a scoop operator, he would take down loose ribs when encountered and that
he could do this without first notifying his foreman of this action. VI Tr. 253-254. However,
when asked by the Court, McKinnon qualified his testimony, stating that, prior notification to the
foreman about prying a rib would depend on the size of the rib to be pried down. VI Tr. 254.
The concern is associated with whether such prying makes the bolt spacing too wide. VI Tr. 255.
McKinnon affirmed that, on December 22nd, the second shift was the shift he was
working, after the orders in issue had been issued. VI Tr. 258. Therefore, at that time, he was
dealing with the conditions that Fishback had cited. Id. The crew’s action of abating the cited
conditions continued the entire shift. VI Tr. 259. McKinnon believed that, by the end of his shift,
there was still more work to be done abating the conditions. VI Tr. 260.
McKinnon was also asked about Ex. R 2 S, which pertained to the on-shift exam that he
conducted on December 22nd and he agreed that the exhibit reflects that the crew was dealing
solely with the conditions cited by the inspector. VI Tr. 260-261. Asked about R 2 I, R 2 F, R 2
C, and R 2 P, McKinnon agreed that each reflect that ribs were pried down.18 VI Tr. 261-262.
At the start of the day two of the hearing Matthew Benjamin, who is an underground
miner and a mine examiner at Respondent’s mine, testified for the Respondent. VII at Tr. 8.
Benjamin used to fill in as a section foreman (aka a “face boss”) frequently, but does not do that
anymore. VII Tr. 9. In his former role as a fill-in, that included filling in on Unit 2. Id.
He
worked the third shift, the “C-crew,” which had hours from 11 p.m. to 7 a.m., and was a
production shift. VII Tr. 10. Unit 2 was a “split air” unit, a term which refers to air which comes
up the intake and then splits to the left and right sides of the unit, allowing both units to run at the
same time. VII Tr. 10-11. Under this arrangement there would be a continuous miner, coal
18

The Secretary inquired why the wording was different for R 2 S. McKinnon agreed that
R 2 S reflects that, in addition to prying ribs down in the tail, they also spotted bolts “across unit,
spot bolts on 2A, 23 crosscut, 14 crosscut, set timbers nine through 20.” VI Tr. 262. The
Secretary’s Counsel asked why none of the other exams required spot bolting. VI Tr. 263.
McKinnon responded only that “[i]t's because they pried all their ribs down.” Id. Pressed, he
said, they “could have” done some spot bolting but did not record it, though they should have
recorded it. Id. Directed to Ex. R 2 S, McKinnon agreed that the spot bolting referenced in that
exhibit indicates that the mine had been spot bolting for at least nine crosscuts, from 23 to 13. VI
Tr. 265. On redirect, Respondent returned to Ex P1, McKinnon affirmed that the area on the 2A
travelway is not on the unit, but outby it. VI Tr. 267. The crosscuts 23 to 14, referred to in R2 S,
are on two-way travel, outby the working section. Id. Distinct from the travelway, the reference
in P1, to “MMU- 002 and MMU-012, are at the active working sections, and refer to the unit. Id.
McKinnon also stated that not everyone on the crew stayed on the working section to address the
conditions, as some were on the roadway spotting bolts. VI Tr. 268. The Court considered this
testimony to be tangential. It is included only to reflect completeness, regarding McKinnon’s
testimony.

40 FMSHRC Page 105

haulers and a roof bolter on each side, although typically a single scoop covered both sides. Id.
The belt entry is at entry five and the travelway was usually at entry four. VII Tr. 11. This was
the situation in December 2015. VII Tr. 12.
Benjamin recalled that at that time there was a mud seam or mud vein, which term he
also described as a “parting.” VII Tr. 13-14. He estimated the mud seam size to be about 4 to 8
inches in width. VII Tr. 14. The mud seam material is softer than coal, it is also wet and a few
days after the mine is set up in the area there would be a “slough.” Id. That is to say, material
would come off the rib. This occurred because the seam would dry out and then slough off. VII
Tr. 15. However, he did not view it as a “challenge,” because they knew of the condition and
they would take care of it. VII Tr. 14. The issue was addressed by prying the ribs down. VII Tr.
15. He asserted that, when working in Unit 2, prying the ribs was done frequently and that it was
a subject of the crew in safety meetings “to make sure we’re taking care of them.” VII Tr. 16.
Benjamin agreed, when asked, that the miners were encouraged to take steps to control the ribs
on Unit 2. VII Tr. 17. Elaborating, Benjamin stated, “The guys that -- like I said, they knew
about the conditions. They knew about the ribs. They would pry the ribs. They were encouraged
to pry the ribs. A really good crew. You didn't have to encourage them very much at all. They -they would take it upon themselves to take care of the ribs.” VII Tr. 17. Benjamin stated that his
continuous miner operator, Nathan Sumner, would use his equipment to “knock down the ribs.”
VII Tr. 19. He added that Tim Loveless and Stuart Davis, both hauler drivers, also would use
their equipment to “hit ribs, pry down ribs, knock any -- pull the slough off or anything like
that.” Id. He considered it safer to use equipment, rather than a pry bar, to pry down the ribs, as
one would be farther away from the ribs during that task. Id. By “equipment” Benjamin meant
coal haulers and continuous mining machines, the latter described in shorthand as “miners”. VII
Tr. 20. Benjamin stated that he would use a “red bar,” which he described as similar to a “big
screwdriver,” to pry down loose ribs and he affirmed that he would use the red bar on every shift
up on Unit 2. VII Tr. 24.
Benjamin was directed to Gov. Ex. P 1, which is Order No. 9036922, issued on
December 22, 2015 on the day shift. VII Tr. 24- 25. He informed that he worked the midnight
shift immediately preceding the shift for which that order was issued. He was then presented
with Ex. R 2, Q which is the on-shift report for that midnight shift. Benjamin described the
conditions he encountered for his on shift as “The conditions we had were -- we had the loose
material, slough, around the parting that, like I said, I -- I believe the -- we were only there for a - a day or two. Like I said, that's when we pulled in and those were the conditions that [we] had.”
VII Tr. 26. He added that steps were taken to control the ribs on his midnight shift, stating, “We
had pried -- pried on ribs that day. We'd used equipment, the continuous miner. We used haulers
to also pry on the ribs or to scale the ribs.” Id. He also stated that Nathan Sumner used the
continuous miner to pry the ribs on that midnight shift. VII Tr. 27. When Benjamin arrived for
his next shift, the evening of December 22nd, he and Sumner were in disbelief that an order had
been issued, given the way they had attended to the control of the ribs. Id. His fellow miners,
Davis and Loveless, had used a hauler, while he had used his red prying tool to deal with the
ribs. He did recall one rib that was loose. That rib was too big for a red bar to handle so Loveless
used a hauler to deal with it. VII Tr. 28. Benjamin himself used his red bar to deal with the ribs
on the shift that preceded the order. Exhibit R 2 Q documents that he pried down ribs. VII Tr. 29.
Benjamin confirmed that he did both a pre-shift and an on-shift exam the night prior to the

40 FMSHRC Page 106

order’s issuance. He added that if rib issues were encountered during those exams he would
attend to them. While ribs being pried were noted in those exams, no names were associated with
those actions. VII Tr. 32.
Asked whether there were any adverse ribs when he performed his December 22nd preshift, Benjamin stated that, according to his report for that shift, per Ex. R2 Q, his answer was
“No.” VII Tr. 33. Because his answer was qualified, he was then asked what action he would
have taken if he had found hazardous ribs, and he responded that he would have tried to pry them
down. As to the issue if he had pried them whether he would still call it out, that is, using the
mine’s underground phone system, he answered, “sometimes.”19 Id.
Upon inquiring if there were any loose ribs uncorrected when he ended his day, Benjamin
responded, “We did not leave any hazardous ribs uncorrected.” VII Tr. 35 (emphasis added).
The Court noted that Benjamin seemed to draw a distinction between loose ribs and hazardous
ribs. Id. Benjamin responded that he did see such a distinction, answering, “A hazardous rib -- a
loose rib does not have to be a hazard. A lot of times, a loose rib will just be a -- a small crack
that you can knock off. You can take your hand pry -- the -- the prying tool and knock it off.
When it does come off, it might come down in little bitty pieces, maybe a inch or two thick.” VII
Tr. 36. Explaining further, he then added,
A hazardous rib -- a bigger rib, a rib that would cause injury, a rib that would
cause a -- someone to be severely hurt. Lot of times if you do have a -- there's a
rib that it's that big, it'd also take -- like I said, there'd be a bigger chunk of rib that
would come out to where the bolt spacing would be too wide, to where you
actually make other hazards. A loose -- like I said, the -- the loose rib is not a
hazardous rib. Like I said, the -- just like slough -- the -- the slough, just a smaller
-- smaller piece of the rib that you could -- that you can knock off.
VII Tr. 37.
Thus, the Court observes that Benjamin distinguished between loose ribs and cracks from
a hazardous rib or a large crack or a large piece of the rib, with the latter needing attention “right
then.” VII Tr. 37. Ultimately, however, Benjamin stated that all loose ribs need to be taken down
because they could become a bigger problem. VII Tr. 39.
Respondent’s Counsel, following up on that subject, asked if Benjamin would pry down
loose ribs and he answered that he would. As to whether there were any loose ribs uncorrected
that day when he left the section, he responded, “No. Not that I recall. The -- the loose ribs that
19

While Benjamin’s signature appears on the pre-shift, the report itself reflects another
person’s writing, which is to reflect Benjamin’s oral report using the phone system. VII Tr. 34.
In this instance, Benjamin stated, he calls out his report, which he believed was taken by Zach
Hudson. Hudson would then sign the report and later Benjamin would review it for accuracy,
make any corrections and then he would sign it too. Id. The first page of Ex R 2 Q is the on-shift
report. VII Tr. 35. The on-shift is not called out ahead, rather it is completed when Benjamin
returns to the surface. Id.

40 FMSHRC Page 107

we encountered we took care of. We take care of the loose -- loose ribs, loose material, slough
that we encountered on that shift.” VII Tr. 39-40. The Court then inquired further whether the
ribs were in “great shape” when Benjamin ended his shift on December 22nd. He responded, “No.
… They were not in good shape -- like I said, you -- you -- you pry down the ribs that you see.
You don't necessarily see everything.” VII Tr. 40. Uncertain about that answer, the Court asked
whether, based on what he saw during that shift, if the ribs were in great shape. Benjamin
answered, “From what we seen, yes. From the ribs that we encountered on that shift, we took
care of, yes.” VII Tr. 40-41. He then added that he did look at every rib in the section. VII Tr. 41.
Upon further questioning by the Respondent, Benjamin stated that the presence of the
mud vein made it impossible to pry everything there was to pry, stating, “Because that mud vein,
you can dig on the -- the parting/mud vein, you could dig on that thing all day long.” VII Tr. 4142. Nevertheless, Benjamin stated that one could distinguish between parting/mud vein issues
that needed to be pried down and those that did not. VII Tr. 42. And, according to Benjamin,
conditions could change in a short time, noting “Like I said, you could pry on it -- you could
leave there and it had been -- it'd look good. Come back a few hours later and you could see from
a different angle where that's not the way you left it.” Id.
Benjamin confirmed to the Court that the mud vein presented a continuing issue, not one
that could be addressed and then solved, “In that area, no. I mean, that was part of the geographic
of -- of that area. That mud vein was -- it was -- it was there. You couldn't get rid of that mud
vein.” VII Tr. 43. However, he then amended that answer, stating that “after a couple days is
when it kind of will dry out. Well, that coal below it, like I said, right there at that area of the
mud vein or the -- the parting itself, it would get dried out, as well. And so that's when it would
kind of separate from the rest of the coal.” VII Tr. 43. “Usually,” Benjamin then stated, they
“didn't have to go back and scale that again.” VII Tr. 44.
Benjamin was presented with Ex. R 2 D, his on-shift for December 17, 2015, pertaining
to the previous panel, which reflects that he did pry down ribs. VII Tr. 48. Similarly, Ex. R 2 G,
Benjamin’s on-shift for December 18, 2015, also reflects that ribs were pried down. VII Tr. 49.
Of greater significance, in the Court’s estimation, was Benjamin’s distinction between a
large rib and a hazardous rib, “Like I said, what a hazardous rib is to me is something that can
hurt somebody, something that could seriously injure somebody.” VII Tr. 54. He added that,
usually, a small rib problem is what it appears to be, small. That is, they do not turn out to be
larger than they seem to be. As for large rib issues, he stated that they are usually harder to
remove when one starts prying them down. VII Tr. 55.
Benjamin agreed that, for that section on Unit 2, typically he was prying down ribs on
each shift. Id. However, he could not state how many such ribs he pried down on average each
shift. VII Tr. 56. He acknowledged that Exhibits R 2 Q, G, and D all reflect that he and others on
that crew pried down ribs. VII Tr. 56-57. He also recalled that miner Sumner pried down a rib on
December 22nd using his continuous miner. VII Tr. 57. However, Benjamin did not consider that
rib to be a large rib and he informed that it had no effect on the bolt spacing. VII Tr. 58. He
watched Sumner scale that rib using a continuous miner. Id. Benjamin confirmed that he and
Sumner could not believe that an order had been issued for bad ribs. VII Tr. 58-59.

40 FMSHRC Page 108

Benjamin also stated that he observed miner Loveless scaling a rib using his hauler and
that rib also did not have an effect on the required bolt spacing. VII Tr. 59. He confirmed that
rock dusting is typically done after a rib is scaled. Id. Though he could not recall just where the
ribs which were scaled were located, they were ribs in the entries and crosscuts which were
between the faces and the loading point. VII Tr. 60. If rock dusting was done after such scaling,
that action would not necessarily be recorded in his corrective actions in his shift exam. VII Tr.
60-61. In his view, whether a scaled rib needs to be rock dusted is a judgment call. VII Tr. 62.
Thus, smaller areas do not need dusting, but if “it's a whole entire 80-foot-long rib from top to
bottom, well, . . . you go back and dust.” Id. Generally, Benjamin agreed that the ribs that were
pried, per Exhibits R 2, G, D, and Q, did not then require rock dusting. VII Tr. 63.
Benjamin stated that if he came upon a rib that needed attention, that discovery would be
recorded in either the pre-shift or on-shift report. VII Tr. 64-65. He added that after a rib comes
down it can still be a hazard if one could be seriously hurt, offering as an example, if after a rib is
scaled, a wide bolt space is created. VII Tr. 66. As the foreman on a working section, Benjamin
affirmed that he is responsible for the whole working section and that it is his call to determine
between a loose rib and a hazardous one. VII Tr. 68.
Benjamin believed that he was taking care of all the ribs that needed attention, that is to
say, at least all the loose ribs that they encountered. VII Tr. 75-76. He was also asked about the
re-training that the miners had to undergo, in October 2015, for loose ribs. Unable to recall when
it occurred, upon being shown Exhibit P 5, dated October 29, 2015, Benjamin agreed that exhibit
reflects that the mine’s C crew had rib examination training at that time. VII Tr. 77. In fact, the
exhibit reflects that “Examiners were re-trained on standard 75.202(a), with emphasis on loose
rib maintenance” on that date. Id. However, Benjamin stated that he recalled nothing about that
training, not even how long it lasted. VII Tr. 78.
On the resumption of direct examination, Benjamin agreed that he calls out hazards that
are uncorrected on a pre-shift. VII Tr. 78. The Court then inquired, “in your role as the mine
examiner, is it part of your responsibility to examine all ribs on the section as part of your preshift.” VII Tr. 80. Benjamin responded, “Yes.” Id. He then qualified that response, adding “[y]ou
try to check all of them.” He then added that, personally, he does not “feel as threatened from the
ribs as I do the -- say, the top.” VII Tr. 81. The concerns can vary depending on the time of year.
For example, during December or January, because they are dry months, one doesn’t have as
many rib problems. By contrast, he explained, during the summer, with more humidity, there can
be more rib issues. Id.
With that response, the Court then asked if it was fair to construe from his [i.e.
Benjamin’s] answer that “between … the roof and the ribs, [he] provide[s] greater attention to
the roof because [he] think[s] that [ ] - presents a greater hazard, personally [he] thinks, than
ribs.” VII Tr. 81. Benjamin first responded, “Right,” but then retracted that answer, stating that
he gives “as much attention to the ribs as you do the top.” VII Tr. 82. He elaborated, without
retreating from his amended answer, that it has been his personal experience that miners have
been injured more by roof than ribs. VII Tr. 83.

40 FMSHRC Page 109

Benjamin reaffirmed that both he and Sumner were in disbelief that an order was issued.
With that answer, the Court then inquired, “would you have had the same reaction if a 104(a)
citation was issued instead? Would you see that was fair but an order was too much, or do you
feel that neither should've been issued?” VII Tr. 84-85. Benjamin answered, “Honestly, I'd be
more upset with an order than a citation, but still in the same -- same time, I would be upset with
a citation, as well, just because I thought we were doing the -- the job that needed to be done,
taking care of the ribs.” VII Tr. 85. Thus, he affirmed that, in his view, there was no hazardous
condition from the ribs. VII Tr. 86.
Benjamin also reconfirmed that continuous mining machines and haulers were used to
deal with ribs that needed scaling and that in the shift prior to the order being issued, the shift in
which he was the foreman, he observed both Sumner and Loveless using, respectively, the miner
and the hauler to address ribs there. VII Tr. 87. That response prompted the Court to ask, “is that
rather unusual to require not just prying down ribs but using those rather formidable pieces of
equipment, haulers, continuous miners, to deal with ribs? Is that unusual or is that not unusual?”
Id. Benjamin responded that it was not unusual. VII Tr. 87-88.
Benjamin could not recall the number of miners working on his crew on December 22nd,
but did inform that typically there would be between 12 to 17 miners on his C crew. As to the
number among those miners that were dealing with rib issues on that date, he specifically
recalled Sumner, Loveless and Davis doing that work. As to the others on his crew that evening,
he couldn’t recall what they may have encountered with ribs that evening. VII Tr. 90-91. With it
being established that four miners, that is, including Benjamin, were dealing with ribs, he was
asked how much of their time during that shift was spent addressing rib issues. He responded
that it would be 10 percent or less. VII Tr. 92.
Respondent’s Counsel then asked Benjamin if there were any violative conditions
concerning ribs, when his shift ended on December 22nd, that he knew of and did not correct.
Benjamin responded, “no.” VII Tr. 93. As to the use of equipment other than scale bars,
Benjamin stated that did not mean that such bars could not have been used, but rather that it was
more efficient to use the continuous miner and the hauler. VII Tr. 94. Benjamin agreed that it
was common for a continuous miner to scale while tramming from one entry or crosscut to
another. VII Tr. 94. He maintained that his crew’s use of the miner and hauler was no different
on December 22nd than any other day when working on different panels. VII Tr. 95. However,
Benjamin allowed that he did spend more time on ribs on that panel than other panels. VII Tr.
96.
Nathan Ryan Sumner also testified for the Respondent. He is a continuous miner operator
at the mine and was acting in that role during December 2015, working the C crew, otherwise
called the third shift. VII Tr. 101. In that job he remotely operates the continuous miner. This
includes tramming the miner through the last open crosscut where the faces are located. VII Tr.
102. Directed to Order No. 9036922, issued December 22, 2015, Sumner stated that he was
working on the shift immediately preceding that order’s issuance and that he had been working
on Unit 2. VII Tr. 103. He agreed there was a mud vein or as also described, a “parting,” in Unit
2. That mud vein, he informed, made the ribs softer and that such material was softer than the
coal. VII Tr. 104. Sumner informed that they were all aware of the issue and that they would pry

40 FMSHRC Page 110

down any loose rib or a rib that needed attention. VII Tr. 105. To do that work, he would use
either a pry bar or the continuous miner. Id. A pry bar could be used to deal with ribs but he
stated that using a miner is more efficient and safer. Id.
Hauler20 operators, i.e. those who haul coal, work in the last open crosscut. VII Tr. 106.
They haul coal from the location where the continuous miner operator cuts the coal and transport
it to the feeder, which is some three to five breaks from there. VII Tr. 107. When told about the
order, Sumner thought that it was prank, especially because, “the panel that [they] came out of
beforehand was just like that. The -- the conditions were actually worse in the one we just had.”
Id. They had just moved to the panel for Unit 2, the location of the order. Id. In fact, they were
not yet ready to produce coal yet. VII Tr. 109-110. Sumner affirmed that they had taken care of
the ribs in that previous panel the same way. Thus, he believed that they had done a good job in
both panels. VII Tr. 108. It was his view that neither panel’s ribs warranted a violation, because
they took care of the conditions. VII Tr. 111-112.
Sumner stated that he did not examine the conditions on the left side of the unit as he
didn’t have occasion to go over there. Primarily, he was working in the last open crosscut. VII
Tr. 114. Therefore, he admitted that he rarely had occasion to go to crosscuts outby the last open
crosscut, “[o]nly if they needed me to help them with something, but [the] majority of time on
my shift, I never leave that -- that miner. That's my area.” VII Tr. 114-115. And, he added, he
did not have occasion to visit the outby crosscuts on December 22nd. VII Tr. 115.
Zachary Hudson also testified for the Respondent. VII Tr. 119. He is a face boss, also
known as a section foreman. In December 2015, he was a section foreman, though he was an
hourly employee then and on the B crew. VII Tr. 120. That crew would swap hours every two
weeks with the A crew, meaning they alternated working the day and afternoon shifts. Id. At
the time in issue, he was working in Unit 2, a production shift and he agreed that they were
dealing with a mud vein there. Id. He informed that the mud would break out but the effect was
mostly smaller material would be released. Occasionally larger pieces would come out and these
would be attended to by a hauler or a scoop. VII Tr. 121. Hudson asserted that the rib issue was
talked about by the crew every day. Id. The crew would be told, “watch the ribs.” Id. Hudson
maintained that they were “constantly scaling” things that needed to come down and they took
steps such as narrowing the cuts. VII Tr. 122. While cuts were usually 18 or 19 feet, they would
be narrowed to 16 or 17. Id. This, he said, meant that “your ribs wouldn’t pop out as bad.” Id.
Shown Gov. Ex. P1, which is Order No. 9036922, issued December 22, 2015, Hudson
stated that he was the section foreman the day before that order was issued. VII Tr. 124.
Presented with Ex. 7 D, Hudson identified it as his section report for December 21, 2015. They
ran coal during that shift, doing about 400 feet. Id. Shown Ex. 7 C, Hudson identified that as
Section Foreman Chris Falls’ report for December 21st. That report pertains to the shift before
Hudson’s shift that day. VII Tr. 125. It reflects that Falls’ crew was moving the feeder to the
setup location at the new panel. Id. This meant that Hudson’s was the first crew to start mining
coal at that new panel. VII Tr. 125-126. Hudson maintained that MSHA inspectors had been
present every week when he was working the prior panel and he also asserted that the conditions
20

A hauler is also called a “car.” VII Tr. 106

40 FMSHRC Page 111

at that prior panel “were the same,” and no MSHA person indicated that their efforts in the prior
panel were insufficient. Further, Hudson asserted that there was a mud vein in that prior panel
too. VII Tr. 126. Not only did he claim that rib conditions at the prior panel “were the same,” he
asserted that the mud vein at that prior panel was getting thicker, to the point that they pulled out
of that panel and moved to the panel where the order was issued.21 VII Tr. 127.
Turning his attention to December 22, 2015, Hudson stated that he met MSHA inspectors
Fishback and Herndon that day. VII Tr. 127. Hudson asserted that Fishback told him the mine
needed “to get people out on the travelway to start prying ribs,” and he [Hudson] then “moved
three operators out there . . . [and he told his manager] “what was going on so he'd [i.e. Hudson’s
mine manager would] come up and take a look at [the situation].” VII Tr. 128. Specifically,
Hudson agreed that Fishback advised there were some “ribs on the travelway that needed
attention.” Id. That area was outby the working section. Id. Hudson sent miners, (he believed he
sent three) to address the condition identified by Inspector Fishback. Id.
Following that, Hudson then got a call from Carter “about a loose rib in entry two that
was between the second-to-last open and last open. By the time [Hudson] got over there, they
done moved on and the rib was on the ground.” VII Tr. 128-129. Hudson asserted that the rib
had been pulled down, but he couldn’t tell how big it had been because it was then crumbled coal
on the ground. VII Tr. 129. Hudson stated he had never been in that entry two where the rib issue
occurred, never having been between the second to last and the last open crosscut in entry two.
VII Tr. 130. At that point, Hudson stated he was “pretty sure by that point they done said that the
left side would be shut down for loose ribs, and I called on the right side, told them to shut down
and back their equipment out, we're going to shut down the unit . . . [b]ecause if they shut the left
side down for the loose ribs, more than likely they were going to shut the right side down, so I
just shut it down and had people start working on ribs.” VII Tr. 131. At that time, Hudson had
walked the faces and did air readings through the last open crosscut, but he had not been through
the entire unit. Id. Hudson’s view was that the rib they had just pried down did not present a
hazard to anyone, but his attitude was “who's to say they're [i.e. MSHA] not going to go over
there and find something like that.” VII Tr. 131-132. As implied by his earlier comment, Hudson
then stated expressly that shutting down the left side “was too excessive.” VII Tr. 132.
Therefore, his action in shutting down the right side was anticipatory that MSHA would take
similar “excessive action.” Id.
Shown Exhibit R 7 G, the section report for December 22, 2015, Hudson stated it reflects
that production for that shift stopped at 10 a.m. Id. After he decided to shut down the whole unit,
the miners on that shift then “[w]orked on ribs, roof bolters. As we'd pry ribs down, we measured
the bolt spacing. If we had to spot bolts, we spotted bolts. I'm sure. And like right
here it says we set some timbers down the travelway, so a couple of them were doing that.” VII
Tr. 133. His miners were then working both on the section and outby. Id. Hudson admitted that
was another reason for shutting down the unit, “Yeah. I mean, they brought up the ribs on the
travelway. I had to send operators out there. They brought up the ribs on the left side - -” Id.
21

Though he reaffirmed that in the prior panel extra precautions had to be taken because
of the mud vein there, the decision was to leave the panel as it was “too costly” to stay. VII Tr.
141.

40 FMSHRC Page 112

Nevertheless, Hudson maintained that the decision to shut down the unit was not “because of any
loose rib that [he] knew hadn't been corrected yet.” VII Tr. 134. Hudson stated that the prying
was “mainly around the mud vein,” and that they were only getting “little chunks of coal,” and
he did not notice any large ribs being pried down. Id.
Hudson agreed that his interaction with Inspector Fishback did not go well, relating that
Fishback told him he “was a bad boss for letting [his] workers work in those conditions, which to
[Hudson] wasn't a condition, you know. It was something we were working in every day and we
dealt with it. We took care of business. He said . . . that the other bosses are bad bosses. He
wanted names of who was bossing on the other crews.” VII Tr. 135. Hudson maintained that he
tried to tell the inspector what they were doing to keep the unit safe, but the inspector simply told
him that it wasn’t good enough. Id. Hudson did not like that the inspector called him a “bad
boss.” Id. He felt that was an unfair label “[b]ecause we were dealing with the problem. We were
working safe. Nobody got hurt.” Id.
Hudson stated that he never saw Inspector Fishback take photographs. Shown Exhibit P
3, government photos, he was directed to photo 39. For that photo, Hudson asserted that it was
not taken on a working section, because phone lines and cables are present. Rather, that photo
was down the travelway. VII Tr. 136-137. Hudson expressed that phone lines are moved up as
mining progresses but they are never inby the loading point. VII Tr. 137. Directed to photo 49,
Hudson believed that was a photo of a maintenance ride, which would be used by maintenance
opertors. Vehicles such as that, including mantrips, would by parked outby the loading point. VII
Tr. 138.
On cross-examination, when asked if he remembered retraining for standard 75.202(a),
Hudson stated he did not remember that training. VII Tr. 138. However, upon being shown Ex.
P5, dated October 29, 2015, he then admitted that exhibit reflected such retraining, as his
signature appears on the exhibit. VII Tr. 139. However, he could not recall anything about the
retraining. Id.
Regarding the location where a rib did come down, though Hudson couldn’t determine
how large it was, he did acknowledge that miners could have been in that area on their way to the
faces. VII Tr. 146. After the unit was shut down, with the inspector shutting down the left side
and Hudson then deciding to shut down the right side, Hudson agreed that “after the unit was
shut down [ ] all of the miners on the shift were either taking care of the ribs in the travelway or
taking care of ribs on the section.” VII Tr. 148. Those miners then did nothing else but attend to
the rib conditions. Id. Asked if, when his shift ended, all rib issues had been resolved in that area,
Hudson responded, he was “not going to say that, because it's all a matter of opinion.” VII Tr.
149. Pressed on the issue, Hudson then stated there were no more ribs in need of being scaled or
pried. Id. However, he did not walk through the entire unit before leaving at the end of his shift,
stating, “[n]ot the entire unit. Last open and where my men were working, travelway. I was
taking care of all of the hot spots, mainly the travelway and where we were scaling ribs down,
you know. We mainly tried to take care of the run, where the coal haulers and everybody's
working.” VII Tr. 149-150. As to addressing the other entries and crosscuts, he answered, “[w]ell
if they're going to travel them a lot we would take care of them. We would walk through them.”
VII Tr. 150.

40 FMSHRC Page 113

Regarding Hudson’s issue with the inspector calling him a “bad boss,” he maintained that
everyone was working safe. VII Tr. 151. However, Hudson admitted that during his deposition
he denied that the inspector had any bias against him. VII Tr. 152. He was then asked about
Exhibit P 7, a statement that Hudson drafted on December 22, 2015. In that statement, Hudson
remarked that, “[s]ome of these ribs weren't that bad. Some of them we had to use equipment to
get them down.” VII Tr. 153. Based on that response, Hudson was asked if some of the ribs
required equipment to get them down. His response was that MSHA wanted them down, but they
had to beat on them to do that and a pry bar wasn’t useful. In short, he considered them not ready
to come down. Id. However, he allowed that some could be brought down with a pry bar. VII Tr.
154.
Based on answers which the Court found to be unclear, it inquired if Hudson was
contending that the only ribs that need attention are those for which a pry bar is effective.
Hudson denied implying that. Rather, his point was that if one has to use a big piece of
equipment to bring a rib down, then the rib was not posing a threat. VII Tr. 155. Hudson
explained his view further. His position was that, a rib that is removed by a continuous miner or
a hauler, as opposed to a pry bar, does not need attention “at that moment.” VII Tr. 156.
However, to the Court, the distinction he made was not absolute, as he then allowed that “Now,
I'm not saying that if -- here in a couple hours or something, you know, when the air gets behind
it or whatever, it starts drying out, you know, I'm saying there that it's not going to start popping
out more, but that's when you could take a pry bar in there and just pry down what needs to come
down.” Id. (emphasis added). Hudson made his position clear – it was his view that by having to
use a piece of equipment, “you're making it more -- you're creating more of a problem using a
piece of equipment to sit there and knock on the rib line.” VII Tr. 156-157. Just as quickly,
however, he allowed that there can be circumstances where using a piece of equipment is
preferable to using a pry bar. VII Tr. 157.
Eric Carter then testified for the Respondent. At the time of the hearing Carter was a
senior manager of production. In December 2015 his title was “continuous improvement [sic]
and a mine manager.” VII Tr. 163. In that December 2015 role, he “edited production reports,
reviewed all the callouts from the shift, as far as maintenance stuff, and then looked for ways to
help us cut costs and produce more efficiently.” Id. The Court notes that production was Carter’s
focus, not safety. Consistent with that observation, when asked if he had any specific knowledge
of rib conditions on Unit 2 in December 2015, he stated “[o]nly what would've been in a
production report.” Id.
Despite the above statements, Carter informed that he accompanied inspectors Fishback
and Herndon on December 22, 2015. VII Tr. 164. It was unusual for Carter to accompany
inspectors but others were on vacation, so the job fell to him. VII Tr. 165. It is of interest that on
their way in to the location to be inspected they came upon a timber that needed to be reset. That
was done and when Carter inquired if a citation would issue, the inspectors told him there would
not be. VII Tr. 166. Next, they “turned onto first northeast going towards Unit 2 and [they]
stopped. [The inspector] said -- there was a bad rib. [Carter then] pried it down.” Id. Again,
Carter inquired if a citation would be issued, and again he was told, no, the inspector just “just
wanted to see how bad it was.” Id. This occurred on the travelway. VII Tr. 166. As the

40 FMSHRC Page 114

reasonableness of the inspector has been raised by the defense, the Court believes that Fishback’s
responses to the problems they encountered with Carter speak, to a degree, to his reasonableness.
Upon arriving at the location of Unit 2, Carter informed that, again with no citations
being issued, “[t]here was a couple items there at the feeder that [the inspector] wanted corrected
and [Carter] got ahold of Zach [Hudson] to have those guys correct those items -- accumulations,
spillage around the feeder controls, fix some back stock around the feeder …” VII Tr. 166-167.
The inspectors just wanted those areas cleaned up. Id. Then, still in Unit 2, they moved to the
number 4 entry. At the second to last open cross cut, the inspector asked if they were scooping
on the unit, and told them they needed to do that. Carter called Hudson who informed that he was
“already on it.” VII Tr. 169.
From there, they then went to the two entry, where the inspector stated there was a bad
rib on the left side. Carter described the bad rib as follows: “The rib itself was probably about
six-and-a half feet tall. The coal had a parting in it, so there was a -- like a mud vein in that -- in - in the coal seam, so there would've been three-and-a-half to four feet of coal at the bottom of
the mud vein, and another two feet, probably, 18 inches above the mud vein, and then some rock
cut out above that.” VII Tr. 170. As far as Carter could tell, just the bottom of the rib seemed
loose, stating “just the bottom portion underneath the mud seam looked to -- appeared to be
loose.” VII Tr. 171. In Carter’s view, just one side of the ribs was loose, but the inspector told
him he wanted both sides pried down. Id. This area was on the sides of the entry. Carter had not
seen the right side at that point but he poked his head through the curtain and saw the area
identified by the inspector. Id. Carter stated that it did not involve the whole length of the rib. VII
Tr. 173. This time when Carter asked if a citation would be issued, the inspector affirmed that
would occur. Id. Carter then informed Hudson that he would be getting a citation for a loose rib
in the entry. The inspector told them to pry the loose rib down, but the miners did not have a pry
bar, only pinner steels. VII Tr. 174. A pinner steel is not the best tool choice to pry down a loose
rib. VII Tr. 175. As they could not pry the rib with the pinner steel, Carter told them to use a
scoop. Id.
Following that discovery, the inspector advised that he was expanding the scope of his
citation, informing that both ribs needed to be scaled. VII Tr. 176. Although the inspector
pointed to a rib needing scaling, Carter described it as “just flaking along the rib line. Not giant
material, just -- it looked football-size material or something.” VII Tr. 178. Carter also stated that
he observed evidence that scaling had occurred. Id. From his testimony of the conditions, Carter
expressed that the amount of material was minimal, either football or baseball sized. VII Tr. 179.
Then, shown Exhibit P 3 D, Carter agreed that was an example of what he was describing. He
characterized it as an area “where they picked out something that they thought was suspect.” VII
Tr. 180. Shown Exhibit P 3 E, Carter stated this was another example, where “they saw a crack,
they put something in and -- and they popped out pieces of material that they could get out.” Id.
Shown Exhibit P 3 C and P 3 E, Carter described those as showing flaking or portions that had
been scaled out. VII Tr. 181. However, upon questions from the Court, Carter then explained that
he was not present when those photos were taken and beyond that, he couldn’t “say that I was
ever in that -- I don't know where those came from.” VII Tr. 182. Instead, his opinions were
based only upon his experience as a miner, as he was unable to “tie those photos to a particular
area anywhere in the mine.” Id.

40 FMSHRC Page 115

Carter’s testimony suggested that the inspector issued his closure order for the right side
of the unit, even though neither he, Carter, nor the inspector had been there yet. VII Tr. 183. In
any event, Carter then informed Hudson that “the unit was down until the ribs were scaled and
properly re-supported, as per [the inspectors’] criteria, and then the whole unit was to start
scaling ribs at that point, from the feeder to the face.” VII Tr. 184. The Court inquired of Carter
whether, when he was with Inspector Fishback on December 22, 2015, there “were there any
areas that [Carter] observed when [he was] accompanying [the inspector], when [there was]
evidence of more than flaking.” VII Tr. 184. Carter responded, “Four to five crosscut, the last
open, the pinner was in five and we approached it and [the inspector] said, "Look at that rib."
And at that point, it was ten, 15 foot long and probably two-and-a-half to three foot tall. But we
didn't know if – [ ] they pried it out or if a miner hit it when it went across there. We didn't know
if it sloughed off and fell out itself …” VII Tr. 184-185. Questioned further, Carter maintained
that there were no other such areas, as the rest involved only “flaking.” VII Tr. 185. Carter’s
view was that the areas he described as showing only flaking did not require scaling. VII Tr. 186.
However, his view was qualified, as by that he meant that the flaking areas did not require “some
kind of immediate action.” VII Tr. 187 (emphasis added).
On cross-examination, Carter stated that if a citation is issued and he disagrees with it, he
will express his view to the inspector, but he does not argue about it. VII Tr. 197. Referred to
Exhibit P 8, Carter agreed it reflects that he disagreed with Inspector Fishback’s view of the
condition of the ribs on Unit 2. VII Tr. 199. Those notes, however, do not contain factual
information to support his opinion. VII Tr. 199-200. Although Carter maintained that he does not
record such information, so as not to be disrespectful, he admitted that, unless a matter goes to
hearing, an inspector would never see such remarks. VII Tr. 200. He did assert that he includes
what he witnessed in those notes. VII Tr. 200. However, although on direct Carter asserted that
there were ribs which Inspector Fishback claimed were loose but which ribs wouldn’t move
when he used a tool to try on them, Carter’s notes did not reflect that claim. VII Tr. 201. It was
not included, he said, because it was not part of the citation that was issued. VII Tr. 202. Upon
challenging that claim, Carter then conceded that the citation was for the entire unit. VII Tr. 202.
Therefore, his explanation for not including his claim was wanting.
Shown Exhibit P 3 at 39, Carter identified the roof as located “[w]here the hog panel is in
the top left corner.” VII Tr. 202. Carter then marked that location on the photo, with his initials
and the number 6, to show where the rib line meets the roof line. VII Tr. 204, 206. Then,
directed to the area on the photo where the inspector marked “6,” Carter was asked if he saw any
evidence of separation from the rib. Carter answered he saw a crack along the coal seam.22 Next,
directed to his notes, Exhibit P 8, Carter stated that, except for brief intervals, he was with the
MSHA inspectors the whole time, that is to say, in close proximity. VII Tr. 209. Carter
reaffirmed that inspector Fishback closed parts of the section that the inspector had not yet seen.
VII Tr. 210. However, though he asserted it to be a fact, that was not in his notes either. Id. His
explanation was that he never had an opportunity to complete his notes, as he was “called off to
do some other stuff, so [he] never got back to finishing them that day.” Id. Yet, there were more
22

However the Court noted that it seemed of questionable value for Carter to mark
anything on the exhibit, as Carter admitted he didn’t recall that area and therefore his marking
was based only on his general experience, not any recollection of it. VII Tr. 206.

40 FMSHRC Page 116

chronological notes. The Court finds that, as there were subsequent notes, Carter’s reason for not
finishing his notes regarding his claim that the inspector closed parts of the section he had never
seen, was undercut and therefore less credible.
When questioned about his claim upon viewing another photo and his answer that it
displayed flaking or that it had been scaled, Carter admitted that it was also possible that the
material could have simply fallen on its own. VII Tr. 212. He then conceded that the materials he
saw on December 22nd could’ve fallen on their own. Id.
Violations at Issue in Docket No. LAKE 2016-0232
Five orders are involved with this docket
Inspector Testimony of William Tisdale is an MSHA coal mine inspector.23 VII Tr. 225.
Tisdale is a CMI (coal mine inspector). He has experience inspecting beltlines, both as an
inspector and in his prior work as a coal miner. VII Tr. 227. Inspecting beltlines involves
“looking for bad rollers. You would look for a belt being misaligned. You would look for
hazardous rib conditions. You would look for hazardous roof conditions. You would look for
adequate rock dusting. You would look for any accumulations of material that could be
combustible. You would make sure that there's an adequate walkway.” Id. Frozen rollers are
another issue. If a belt is “contacting [a frozen roller], it will be rubbed or polished. It could eat
right through a roller. It'll eat indentions into it, and sometimes even mud will build up behind
them, or they'll be piles of dust under them where it's pulling dust off of a belt.” VII Tr. 228. A
frozen roller creates several hazards, including frictional heat source, accumulations of fine dust
under the roller, with the latter being a particular problem if the roller gets hot enough to become
an ignition source and the frozen roller can damage the belt itself. Id. Broken rollers and out of
bracket rollers also present hazards. VII Tr. 230.
It is helpful to determine roller problems when a belt is running but problems can be
identified on a belt when it is not running. This is accomplished by “visually inspecting it,
looking for obvious signs of where the rollers had been contacted by the belt and the roller itself
is not moving, flat spots, mud built up or coal dust built up behind them where it's obvious that
the roller's not turning, grooves cut into the -- the rollers themselves, rollers not being at a proper
angle, and obviously if you see one that's broken, it should be obvious as well because it's going
to be a different shape, it's going to be a different angle than what a normal intact roller is.”
VII Tr. 231-232. The duty of examining belts applies to both sides of the belt. VII Tr. 233.
The mine is required to have seals inspected. VII Tr. 234. Seals are subject to regular
inspections; some are weekly and some are done each shift. VII Tr. 234-235. Inspector Tisdale
demonstrated that he is knowledgeable, explaining, weekly exams apply “[t]ypically to seals that
are in the return air course, where the air is being coursed outside, and … seals that are not -- the
air is not being coursed to an operating unit, to a running section.” VII Tr. 235. Seals that require
pre-shift exams apply “where the air is actually ventilating a working section.” Id. This is
required because “the air going across these seals is at more risk to -- to have bad air in it or a -23

MSHA coal mine inspectors are sometimes referred to as “CMIs” VII Tr. 225.

40 FMSHRC Page 117

have an explosive mixture in it.” Id. Such air, after passing the seals, goes directly to a working
section where miners are working. Id. The concern being addressed by seals is methane gas. VII
Tr. 236.
Inspector Tisdale inspected the Francisco Underground Pit on January 21, 2016. VII Tr.
237. He examined the 1A, 1B and 1C belts that day. VII Tr. 242. At that time he issued an order
on the 1C beltline and also one on the 1B beltline.24 VII Tr. 238, Exhibits P 9 and P 10. In
connection with those orders, Tisdale also issued an order regarding the examination of those
belts. VII Tr. 239.
Before going underground that day, the inspector checked the mine’s examination book.
VII Tr. 241. Exhibit P 14 is the mine’s examination record for the two shifts prior to his
inspection. Id. That exhibit reflects the exam that Randy Hammond conducted for the mine for
those belts and the preshift for those belts performed by Kim Moore. Id.
Tisdale’s inspection began with the 1C belt, then on to the 1 B and the 1A. VII Tr. 243.
His direction was from the inby side, and he headed outby, meaning that he was on the left side
of the belts. Id. The mine’s Jeff Brand, accompanied him. Id. His first violation was for a
misaligned belt on the 1C, citing 30 C.F.R. §75.1731(b). Id. He then found damaged rollers on
the same belt. Directed to Exhibit P 9, and his Order No. 9036654, it reflects that he found “two
top rollers that [were] hanging out of the bottom brackets at crosscut 42 and 43, causing the
rollers to be frozen and allowing the belt to rub them.” VII Tr. 244. He could tell they were out
of their bracket because they had a different angle than the rest of the rollers. Id. The belt was
then shut down and the rollers were put back in the brackets. Tisdale came upon a number of
other rollers with problems, requiring the belt to be shut down. VII Tr. 245. Other roller
problems included a top outside roller that was missing, a frozen top center roller at crosscut 35,
and a top center roller at crosscut 13 and 14 that was not rolling. VII Tr. 246. Another roller issue
was at crosscut 20. Tr. 247, Exhibit P 13 at page 12.
There was an issue between the inspector and the mine’s Gotroman, in that the inspector
did not want the Gotroman to go ahead of him as the inspector examined the belts. The reason
for the inspector’s objection was over a concern that belt issues could be corrected before he
came upon them. VII Tr. 248.
Turning to Exhibit P 14, Tisdale stated that exhibit shows no indication that any rollers
had been changed on the 1C belt during those mine shift exams. VII Tr. 249. When Tisdale
worked as a miner and he found a bad roller, he would record that in the examination book. VII
Tr. 249. In terms of determining how long the belt problem had existed, Tisdale related that he
asked “Chris Robinson on this belt if the shift prior to this was a running shift that they were
running the belts, and I believe he told me that they were idle.” VII Tr. 249. Tisdale estimated
that the conditions existed for two to three weeks. VII Tr. 250. This was based upon his inquiring
24

Tisdale described the layout of those belts, “operating unit number one, the working
section, is dumping on the feeder, which dumps onto the 1-C tail, which then, in turn, dumps
onto the 1-B tail, which, in turn, then dumps onto the 1-A tail, which then dumps onto the main
south belt, where it exits the mine.” VII Tr. 242.

40 FMSHRC Page 118

of the mine operator how often they did belt moves. He was told they would move them one to
two times per week. VII Tr.250-251. He added that “[t]he two rollers that [he] found that were
actually out of their brackets were approximately ten crosscuts from the tail.” VII Tr. 251. Given
that, “if the mine operator was moving four crosscuts for each belt move, then that would put
them at 12 crosscuts,” and on that basis he determined the two to three weeks figure. Id.
Directed to Exhibit P 10, which pertains to order no. 9036656, and the 1 B belt, Tisdale
informed that he “observed a frozen top center roller at crosscut 14 and a frozen top outside
roller at crosscut 10 to 11,” a condition he noted because the rollers were not rolling when the
belt was moving. Id. In addition, almost all of the frozen rollers had flat areas on top or polished
shiny areas. VII Tr. 252. Those conditions indicate that the rollers had been frozen for a period of
time. Id.
Regarding Exhibit P 11, order no. 9036657, issued for the 1A belt, Tisdale informed that
there “were frozen top center rollers at crosscut 26, 21, and 13[, and the] [t]op outside roller was
also frozen at crosscut 19 to 20, and there was a top center roller missing at crosscut 8 to 9.”
VII Tr. 252-253.
Based on the number of roller issues he found that day, Tisdale stated that he considered
it to be an unusually large number. The Court inquired as to the basis for the Inspector’s view.
He responded, “[b]ecause that many rollers in a short period of time to -- to happen like that
would be extremely unlikely. If you had that many bad rollers occurring all the time, you'd never
be able to operate. You'd be constantly changing rollers. You'd never have any up time to really
produce coal.” VII Tr. 253. Tisdale added that the number was also unusual because when he
used to examine belts as a miner, he could not recall an instance with so many roller problems,
nor had he seen such a situation as an MSHA inspector. VII Tr. 253-254.
Tisdale informed that during his belt inspection he met with miner Lucas Dobbs. He
asked Dobbs if he found anything and Dobbs responded that “So far, it looks good.” VII Tr. 254.
This conflicted with the inspector’s observations after Dobbs made that remark as, while Tisdale
proceeded outby, he found “another frozen roller at crosscut 13 and a missing roller at crosscut
eight to nine.” VII Tr. 254-255. At that time, Dobbs was walking from the outby side, heading
inby. VII Tr. 255. Thus, going in opposite directions, they passed one another on the same side
of the belt. To state the obvious, Dobbs had walked by the problematic rollers that Tisdale found
moments later.25 Id.
Tisdale also interacted with the mine’s Chris Robinson, the mine manager/ mine foreman
for the afternoon shift on that day, who when the inspector asked if there were any mitigating
circumstances, responded, “just give us a chance. Let us prove ourselves.” VII Tr. 256.
Tisdale was not sympathetic, as he informed Robinson that a previous (d) order had been issued
25

Revisiting his earlier testimony regarding coming across Lucas Dobbs, Tisdale
reaffirmed that he was traveling outside and Dobbs inside, but both were on the same side of the
belt. Tisdale reaffirmed that after passing Dobbs he found some rollers with problems at
crosscuts 13 and 89. VIII Tr. 31. Thus, Tisdale affirmed that Dobbs had missed those problem
rollers.

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for the same problem with rollers by inspector Josh Gipper. VII Tr. 257. Tisdale considered the
three orders he issued to all warrant the same likelihood of injury and persons affected and
negligence. Id. The hazards created by these roller problems include frictional heat, damage to
the belts, and accumulations of combustible material. They present a risk of fire. Id. He marked
the negligence as high and unwarrantable failures, because “of how many there were in such a
short period. … I thought that they were obvious. If -- if you were looking at the belt, if you were
to walk up and see that a roller's not turning when the rest of them are, I thought that that would
be obvious. As far as the unwarrantable failure, I believe that the mine operator had been already
trained on this issue. I believe that they had -- already had many citations issued for this,
and they had reason to know about it.” VII Tr. 257-258.
Directed to Exhibit P 13, and pages 36-42, retraining is mentioned in Tisdale’s notes.
They recount, “Subject discussed. Damaged rollers or other damaged belt conveyor components
which posed fire hazard must be immediately repaired or replaced. All other damaged rollers or
damaged belt conveyor components must be repaired or replaced. … I believe it's the standard
straight out of the book.” VII Tr. 258. Tisdale then confirmed that when he returned to the
surface, he looked at the mine’s records and [he] “could not find any rollers being changed for a
very long period of time.” VII Tr. 259. That record book did not note any bad rollers through
January 4, 2016. Id. In Tisdale’s opinion that was a long period of time to not change rollers. VII
Tr. 260.
Moving to Order No. 9036658, Tisdale confirmed that was the order he issued in
connection with the three orders on the belts. Id. In issuing that order, he had in mind the exam
immediately prior to inspecting the belt. This involved Hammond’s exam. Id. Tisdale rejected
the suggestion that the problem rollers he found could've all gone bad after Orr's examination
because “of the wear where the operating belt had chewed through on some of these and some of
the grooves had -- had cut into some of these, some of the amount of mud that had built up
behind them. This is all stuff that doesn't happen in a shift's time, and especially if the belts were
idle prior to being inspected.” VII Tr. 261. His notes also indicated that they were running coal at
that time. Id. This conclusion was based upon being told that the belts had been pre-shifted
before the unit was idle. From that, Tisdale concluded that the unit was producing coal prior to
the day shift. VII Tr. 262. The hazard, he explained, is that belt examiners are not identifying
hazards. Id. By not correcting the belt problems, things will only get worse. Therefore Tisdale
marked the violation as reasonably likely. VII Tr. 263. He marked that violation as high
negligence and unwarrantable failure because he “found so many of them that I would've
expected them to find some, and yet, nothing was noted in any of the books. On the
unwarrantable failure, they had already been retrained for this previously, and yet still, here we
are finding several of them.” VII Tr. 264
However, evidencing the inspector’s reasonableness, he marked the three belt orders as
unlikely because there were no combustible materials around those rollers. Thus he did not find
an ignition source at the time of his inspection. Also some of the areas were damp and the area
was well rock dusted. Id.
Accordingly, while all the violations were serious, Tisdale considered the pre-shift to be
more concerning because “[b]y not identifying these, you are allowing … - things to build up.

40 FMSHRC Page 120

With normal mining practices, we're going to have accumulations. … with normal mining
practices, you're going to have … ribs fall out [and] … you're going to have fuel that's going to
end up being in the area.” VII Tr. 263-264.
Tisdale was then asked about Order No. 9036663,26 for which the Respondent stipulated
to the fact of violation, high negligence and unwarrantable failure. Therefore, the Secretary’s
inquiry addressed only the reasonably likely, fatal, and number of persons designations. VII Tr.
264-265. That order related to failing to examine the southwest main seals on February 3, 2016.
Id. Exhibit P 19 reflects the mine’s exam records and the inspector’s notes for that day. Tisdale
took photographs of the DT & I [Date, Time & Initials] boards at the seals. VII Tr. 267, Gov.
Exhibits P 18, P 19, and P 20. At that time Tisdale was inspecting the southwest sub-intake air
course, but that was not completed because he found the unexamined southwest main seals. VII
Tr. 269. The seals are important Tisdale expressed, because they “are on the intake air course,
which is putting intake air directly to a working section, and they are adjacent to the primary
escapeway.” Id.
Though perhaps obvious, Tisdale explained that failing to examine seals risks not
detecting seals that have deteriorated and could leak bad gas which would then travel to a
working section. VII Tr. 270. There is also a risk of an explosive mixture. Problems such an
ignition or asphyxiation could occur. Id. Those subject to these problems would be “[a]nyone
that is inby this area that – that this air is coursed to, which is at least one working section, and if
the seals were to blow out, it could -- it could blow out the stocking lines and it can affect the -the whole air course, which is affecting everyone inby that area.” VII Tr. 271. In listing 31
people as affected, Tisdale stated that the mine advised that 31 people would be inby. VII Tr.
271-272. Finding this problem, Tisdale had the mine evacuated. VII Tr. 272. Pre-shift examiners
have other responsibilities besides checking the seals. VII Tr. 272-274 and Tisdale’s notes at
Exhibit P 19A. Referring to the photographs he took, per Ex. P 20, Tisdale took those pictures to
show that the seals had not been examined. VII Tr. 275. There were associated problems with
this matter, as Tisdale discovered that Matt Walker, for his DT & I, “entered the wrong date, [ ]
whenever he was doing his exam the -- the day prior, but he only did half of the seals for that day
prior. He did not do both sides.” VII Tr. 276-277. Tisdale deduced this from the DT & I boards.
VII Tr. 277. The mine operator contacted Walker about the issue and relayed to Tisdale that
Walker admitted he had not inspected them. Id.
Tisdale, still referring to order number 9036663, Exhibit P 18, marked it as reasonably
likely because “without conducting an exam, there's no way to know what hazards may or may
not exist in said area, and … in mining, the environments is forever changing, so that's -- that's
why we need to make sure they're examined. This particular set of seals is also on a split of air
that ventilates a working section. It is upwind of it, which we also recognize that as -- as more of
a hazard, and that's why we require it to be examined more often.” VII Tr. 278-279. He marked
the violation as fatal because “if the seals were to be breached and this air goes inby, … you're
26

A separate area of potential confusion is noted here. Order No. 9036663 is part of
Docket No. LAKE 2016-0269, though logically, in terms of the date of the Order’s issuance, it
would have made more sense for it to be part of Docket No. LAKE 2016-232. Footnote 12,
supra, also notes this oddity.

40 FMSHRC Page 121

putting bad air, low-oxygen air, directly onto a working section, and potentially an explosive
mixture, which can also cause an ignition, and -- and you're going to blow out ventilation. …
[a]nd without ventilation in a mine, especially with fires, you're going to be in a really bad
situation.” VII Tr. 279. The Court then inquired, and the inspector confirmed that, in this
particular situation, the unexamined seals were determined to be fine. VII Tr. 280.
On cross-examination, Tisdale was asked about the difference between top and bottom
rollers. As the names imply, top rollers support the top of the belt while bottoms support the
bottom portion. VII Tr. 281. A “cam” refers to an individual roller.27 Id. A top set of rollers will
have three cams while the bottom will have one. Tisdale agreed that for his order not all three top
rollers had issues; only one of the three was problematic. VII Tr. 281-282. Tisdale agreed that a
“frozen” roller refers to a roller that is not turning. VII Tr. 282.
Tisdale acknowledged that his view that the problems with the rollers had existed for two
to three weeks was based on the scheduled belt moves and he affirmed that his view of the
duration of the problem applied to the out of bracket rollers and the one roller that was
completely missing. VII Tr. 285. Tisdale did not believe that the problems he found could have
occurred after the belt move. VII Tr. 286.
Referring to Inspector Tisdale’s view that he considered the number of problem rollers to
be large, Tisdale was asked to consider only the 1 C belt, where he found five problem rollers.
He confirmed his view that this was a large number of rollers. VII Tr. 287. He also considered
the two problem rollers he found on the 1B belt to be a large number because it was a short belt.
Id. Tisdale could not recall, nor calculate, the length of the shorter belt. VIII Tr. 9. He agreed
that when he worked at a mine, prior to becoming an inspector, the mine would use both
reclaimed and new belt structures.28 Id.
Questioned about Orr’s examination on the third (i.e. night) shift on December 21st and
Hammond’s exam on the day shift, Respondent pointed out, and the inspector agreed, that Orr’s
report noted that there were areas along the 1C belt that were dirty or clean. VIII Tr. 11. The
inspector also agreed that the report states “Clean 10 to 11, 12 to 14, 16 to 17, 51 to 52,” as areas
needing to be cleaned and that they were cleaned. VIII Tr. 11-12. As for Hammond’s exam
dealing with the 1 C belt, the inspector agreed that some areas needing to be broomed were
listed. VIII Tr. 12. While the inspector made reference in earlier testimony about a previous
27

Although transcribed as a “can,” the correct term is “cam.” VIII Tr. 57-58. Witness
Hammond described a cam as “a component of the belt. There's three top rollers, mainly consists
of four components -- or two different components, the frame and then three cams. The cams are
-- the best analogy … is very similar to a roll of paper towels, as far as physical size. So there's
two of them. One of them in the center is horizontal. And then the two on the 3 outsides, they're
at an angle, anywhere from like 25 to 33 degrees.” VIII Tr. 58.
28

Subsequently, when directed to his notes, per Exhibit P 13, Tisdale saw they reflected
56 crosscuts long for the 1C belt. VIII Tr. 29. Those notes also informed that the 1 B belt was
approximately 19 crosscuts long and that the total number of crosscuts was 103. VIII Tr. 30-31.
That meant the 1A belt was 28 crosscuts. VIII Tr. 31.

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104(d) enforcement for blowers, he could not provide any additional detail about that matter.
VIII Tr. 12-13.
The inspector was asked why, for the three roller orders, he listed them as “non-accident
likely.” His response, as he stated earlier, was the areas were well rock-dusted, no accumulations
were present and areas were damp. VIII Tr. 13. Tisdale agreed that the conditions he found on
1A and 1C influenced his decision to make the 1B belt a 104(d). VIII Tr.14. Similarly, the
conditions he found on 1C . . . influenced his decision to issue the violation as a 104(d). Id.
Asked if, under 30 C.F.R. §75.1731(a)29, it is true that under certain circumstances,
damaged rollers do not need to be replaced immediately, as the standard provides that only
where a fire hazard is posed do they need immediate replacement and that all other damaged
rollers must be replaced or repaired, Tisdale agreed. VIII Tr. 14-15. Further, he agreed that when
he used to work in mines, he replaced rollers on weekends and that such problems had been
found by examiners during the week but not replaced until the weekend. Id.
Directed to the seals violation, Turner stated that he had an occasion when he observed a
120 PSI seal that had .5 percent methane output in front of the seal. He was the examiner for that
circumstance and he agreed that he was not required to take any action for that methane level.
VIII Tr. 15-16.
Tisdale confirmed that he considered certain hazards in marking the violation as S&S.
One such hazard he identified is when “the seal itself becomes compromised with damage, and
starts leaking air if it allows [ ] the air to come out in a large amount.” VIII Tr. 17-18.
Whether that is reasonably likely to occur, Tisdale could not say. VIII Tr. 18. While the inspector
acknowledged that he considered asphyxiation to be another possible related hazard, he admitted
to having no way of knowing if that was reasonably likely to occur. Id. While that hazard would
come about through a lack of oxygen, Tisdale also agreed that oxygen is checked throughout the
mine where persons work. Id. Asked if there were other hazards from the condition, he stated his
view that “it creates an ignition source or an explosive mixture of gases, as well. It is going to be
in the working section, and the miners are going to be working. It can also disrupt ventilation if
the ignition is large enough where it would blow out any of the ventilation controls for that area
where the ignition happens.” VIII Tr. 19. He admitted that for that to occur there would need to
be an explosive level of methane. Id. However, when challenged about the reasonable likelihood
that one would encounter the 5 to 15 percent explosive level for methane, Tisdale informed,
“Without ventilation controls, [he] ha[s] encountered it.” Id.
Tisdale stated that there were other hazards considered by him in marking the order as
S&S, identifying the roof and ribs as not having been examined. VIII Tr. 21. Although
Respondent’s Counsel noted that only the examiner would be going to the seals, the Court is of
the view that such an observation misses the point of the hazard Tisdale was identifying. VIII Tr.
29

The cited subsection provides, “Damaged rollers or other damaged belt conveyor
components, which pose a fire hazard must be immediately repaired or replaced. All other
damaged rollers or other damaged belt conveyor components, must be repaired or replaced. 30
C.F.R. §75.1731(a)

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22. Tisdale’s prior mine experience included pre-shift exams of seals, which he described as
“inspect[ing] all the seals to make sure that they're intact. I check for gas levels at each of the
seals, and the entry that they are being aired by. I check for roof conditions. I check for rib
conditions. I check for proper rock dusting, and I look for any other signs of hazards or soon to
be hazards that are in the area.” Id. Asked if he did those things on February 3, 2016 when he
was inspecting the southwest seals, he responded, “I believe I did.” VIII Tr. 23. In this instance,
again in the Court’s view, the question from Respondent’s Counsel misses the point of
conducting the pre-shift exam. Tisdale affirmed that the things he listed as concerns, such as
methane, rock dusting, roof and ribs, turned out to not be present in that instance. VIII Tr. 23.
Consistent with the Court’s conclusion that Tisdale was a credible witness, he acknowledged that
the hazards he identified turned out not to be reasonably likely to occur. However, this too, in the
Court’s estimation, misses the point of the prophylactic purpose behind a preshift exam.
Tisdale’s company escort that day was Nathan Courtney, a certified examiner. However,
Tisdale informed that Courtney did not do everything that is expected during the seal
examination during the inspection because he did not look at all the seals nor did he take gas
checks. VIII Tr. 24. While Courtney requested that Tisdale allow him to perform an exam in
order to terminate the violation, Tisdale denied the request because Courtney was escorting him.
VIII Tr. 25. When Tisdale came to the surface he met Greg North who told him “Sir, I just want
to tell you that I did sign the book, but I did not examine those seals. Matt Walker was supposed
to examine those seals.” VIII Tr. 26. Tisdale’s order was terminated after the examiners were
retrained in the importance of exams and examining seals. Id.
Asked if he considered all examination violations for seals to be S&S, Tisdale responded
he did not view them all as S&S, though he was unable to give an example of a non-S&S seal
scenario, adding that he had not yet encountered a non-S&S seal violation in his experience.30
VIII Tr. 27. The Court understands that the point of the question was to show that the inspector
reflexively considered all seal violations to be S&S, but it views the question as a distraction
because the issue is whether this violation was S&S.
Regarding Tisdale’s remark that he had not decided whether to issue an order until after
he finished his inspection, he explained that reasoning, “The reason why is because that many
rollers, and the different ways of those rollers were oriented could mean a lot of different things,
in the way of that we see that they were there or we -- that we just miss this one. There's a lot of
different things. But whenever I start looking at the big picture of things, and I see that there's
that many rollers that are damaged or missing, it tells me that we just aren't looking for them.”
VIII Tr. 33.
Tisdale also confirmed that the same person examined all three belts, the 1A, 1B and 1C.
VIII Tr. 34. He was then asked about his acknowledgment that the action to be taken for rollers
distinguishes between those rollers which create a fire hazard and those that do not. For the latter
category, Tisdale agreed that such rollers do not require immediate replacement but they still
must be replaced. Id. However, it was his view that upon being detected through the
30

However, in Tisdale’s deposition he stated that he considered all seal exam violations
to be S&S. VII Tr. 28.

40 FMSHRC Page 124

examination, such other rollers would need to be noted by the mine examiner and then replaced.
VIII Tr. 35. In this matter, none of the problem rollers had been noted. Id.
Further regarding the seal violation of February 3rd, while Tisdale encountered no
methane, he only knew that by using his spotter device to measure the air. VIII Tr. 36. The
Court notes that one has to be conducting the seal exam to learn the methane content. Further, as
he focused on the absence of the seal examination, Tisdale did not issue any violation for the
seals themselves. If he had discovered an inadequate seal itself, a separate violation would have
been issued. Id.
Regarding the roof and rib in the area of the seals, Tisdale confirmed that he factored
them into his evaluation of the hazard, noting that the primary escapeway was adjacent to the
entry next to the seals. VIII Tr. 37, 43. In Tisdale’s view it was possible that adverse roof
conditions near the seals could affect people using the escapeway, “[b]ecause if the roof
conditions deteriorate in a cross-cut that are in the seal entries where they would have been
examined, for instance, if that roof deterioration oftentimes will carry on through other entries.
And that is why we, typically, require breaker props31 to be set around falls that are adjacent to
trap walls.” VIII Tr. 37-38.
At the conclusion of his testimony on direct and cross-examination, the Court inquired if
anyone with the mine challenged his findings, contending that the order was incorrect. Tisdale
informed there was no such challenge. VIII Tr. 44.
Respondent called Randy Hammond. VIII Tr. 45. Hammond is employed at the
Francisco Pit. He has had 30 years of coal mining experience. VIII Tr. 47. He is now with
service support, which entails the respirable dust sampling program at the mine, but at the time
of these matters, he was in compliance as an examiner. Id. In January 2016 he performed
examinations. Part of his duties at that time included pre-shift examinations. Hammond
described the process of examining belts; his description revealed that the task is detailed,
thorough and time consuming. VIII Tr. 48-51. He did state that examining the rollers as part of
the belt exam is more effective when the belt is running, not only visually, but also by using
one’s hearing and smell. VIII Tr. 51-52. Similarly, the rollers are easier to evaluate when coal is
running on the belts. VIII Tr. 53. When coal is not running, by design of the belt, many rollers
are not in contact with the belt. VIII Tr. 54. The MSHA safety standard requires that the preshift exam is to be done three hours before the oncoming shift. VIII Tr. 53.
Hammond was asked about his examination of January 21, 2016 for which he examined
the 1A, 1B and 1C belts on the day shift. VIII Tr. 55. As noted earlier, the mined coal moves
from the 1C to the 1B and then to the 1A belt. Exhibit R 21 is the production report from
supervisor Hayden for the day shift on Unit 1 on January 21, 2016. VIII Tr. 58. It reflects that
Unit 1 did not produce coal on that shift. VIII Tr. 59. It was on that shift that Hammond
performed his exam. Shown Exhibit R 22, Hammond identified it as the production report for the
afternoon shift that same day. Id. Coal was produced on that shift. VIII Tr. 60. Exhibit R 23
31

Breaker props are props that are set to help prevent more roof failure to keep
progressing through entries or cross-cuts, should a roof fall occur. VIII Tr. 38.

40 FMSHRC Page 125

provides data about “the three belts in question, and the length of the belts in feet, and the
number of top roller frames, and the number of top roller cams per frame.”32 VIII Tr. 60-61. It
reflects that for the three belts there were 8,000 feet in total and 4,782 cams. VIII Tr. 61-62.
Regarding his exam that day, Hammond began with the 1C belt, traveling outby, and on
the travelway, the right side, with the belt being on his left. He found no “hazards” on the 1C but
he distinguished that from “conditions … that needed to be addressed.” VIII Tr. 62-63.
Referring to Exhibit P 14, Hammond noticed the following conditions, “four on the 1C, I had
that brooming needed to be done in four spots. It was 52 to 56 – or 52 to the tail piece. Then I
found stock from 26 to, I think, 32, and 14 to 17 cross-cut. And then I had them -- one at the belt
through from … the crown roller or head roller inby to the end of the take up.” Tr. 63.
Hammond stated that when doing his exam the belt was only running for a short time and
intermittently at that. VIII Tr. 64. Referencing Exhibit P 9, Order No. 9036654, Hammond stated
that the belt not running would “negate” his ability to detect the conditions cited. VIII Tr. 65.
Next, Hammond was asked about the 1B belt. That belt was running but not transporting coal.
However, he added that if the 1C was not running, the 1B would not be running either. VIII Tr.
66. Again, at the time of his exam, he was proceeding outby, as he was when on the 1C. When
on the 1B, the belt was to his right. He found no hazards or conditions when he examined that
belt. VIII Tr. 67. Directed to Order no. 9036656, Exhibit P 10, in which two frozen top center
rollers were discovered by the inspector, Hammond stated that belt was not conveying coal, a
situation, as he noted earlier, which impacted his ability to inspect the belt. With no weight on
the belt, “the majority of the belt could be up in the air above the rollers, and not contacting the
rollers, so therefore, the rollers are not turning for me to see if they're frozen.” Id.
Turning to Order No. 9036657, which pertained to the 1A belt, this was the belt for
which the inspector found three frozen top side rollers, one frozen top outside roller and a
missing top center roller. VIII Tr. 68. Hammond stated that while the belt was running, it was
not then transporting coal. At that time he was on the left side of the belt. Again, he found no
hazards or conditions on that belt. Id. Thus, because the running belt was not carrying coal, he
wasn’t able to see the frozen rollers. As for the missing roller, Hammond conceded he simply
missed it. VIII Tr. 69. Hammond added that it has been his experience that MSHA inspectors do
not inspect a belt unless it is running. VIII Tr. 70. Part of the reason for that is that, if a belt isn’t
running, there is no ignition source. Id.
On cross-examination by the Secretary, Hammond admitted that the shift when he
conducted his exam was a production shift, but he explained that the particular unit was not a
production shift for that unit. VIII Tr. 72-73. At the time these orders were issued, the midnight
shift examiners could walk whichever side of the belt they chose. Now, following the orders
which were issued in the wake of this litigation, each shift rotates the side examined. VIII Tr. 7475. Hammond also stated that the ability to identify a roller out of the bracket can be diminished
if belt is not running and by which belt side one is walking on. VIII Tr. 80.

32

On redirect, referring to Exhibit R 23, Hammond stated that the reference in that
exhibit was to top rollers only, as bottom rollers were not involved. VIII Tr. 96-97.

40 FMSHRC Page 126

In defending the problematic rollers that he missed, Hammond requested data from the
engineering department about the belts’ length and learning that, it was calculated that .02
percent of the rollers were missed by him. Asked for the percentage of bad rollers that he found,
Hammond admitted that was zero. VIII Tr. 81. The Court notes that there were, undeniably, a lot
of rollers along the three belts. As Hammond stated, “[t]he number of top roller frames was
1,594, of which each frame consists of three cams. So, therefore, there's 4,782 cams in these belt
systems.” VIII Tr. 82. Asked if that meant that the rollers he missed, 12, was excusable, given
that large number, Hammond responded that it was not an excuse.33 VIII Tr. 83.
Although Hammond had stated that one detects frozen rollers by seeing that they are not
turning, he agreed that there are other signs of detecting this problem, as the rollers may have a
shiny spot on them where the belt has been rubbing the frozen roller. VIII Tr. 87. However, he
expressed that such shiny spots are harder to detect than when the belt is running. VIII Tr. 88.
When asked about required retraining, earlier in 2015, for identifying rollers that need to
be changed, Hammond agreed that he participated in that training. Id. He stated that the
retraining “was probably as a result of a citation or something to mandate from MSHA, and we
were instructed to basically enhance our inspections, and try to find the bad rollers to make sure
we adhere to federal regulations.” Id. Referred to the Exhibit P 13 and the inspector’s notes at
page 37, Hammond agreed that exhibit refers to the 2015 retraining. VIII Tr. 89-90. In fact,
Hammond had earlier stated that he had taught some of that retraining, but that the trainer was
Todd Seilhemer.34 Id.
The Court inquiring of Hammond, just what was involved in the retraining, learned that
such training is usually “predicated on the fact that we received a citation.”35 VIII Tr. 92.
Hammond maintained throughout his testimony that he did a good job with his belt
examinations. Id. The Court remarked that it believed Hammond’s testimony was candid and

33

Hammond was also asked about a notation within Ex. P 14, the belt examination for his
shift and the one before his, which remarked “Belt rubbing chains.” Hammond stated he did not
write that in the report, and did not know who did, and further that it was appropriate for
someone, other than him, to have written that into the exam report. VIII Tr. 85-87.
34

Post the issuance of the orders in this litigation, Hammond agreed that in addition to
changing the mine’s procedure for alternating belt sides during exams, that it also posts the time
frame, in order to better address the conditions cited by Tisdale. VIII Tr. 90. If the Court were to
consider this information at all, perhaps under a broad application of “good faith,” such
consideration would only be for the benefit of the Respondent, and not, for example as reflecting
the Respondent’s negligence. This is because it is inappropriate to consider such post-citation
actions, as such an approach would discourage improved procedures if they could later be raised
against a mine operator.
35

The Court also inquired how long it took him to walk these belts and Hammond’s
response was an hour and twenty minutes to an hour and a half, covering 7,970 feet. VIII Tr. 95.

40 FMSHRC Page 127

complemented him for that. VIII Tr. 92-93, 99. However that Court learned, through Hammond,
that the training is quite brief, “normally … two to three minutes.” VIII Tr. 93.
As will be discussed in more detail later, the Court notes that, while Hammond offered
several reasons for not detecting the belt roller issues, it can’t be completely overlooked that the
inspector found them.
Miguel Gonterman was also called by the Respondent. VIII Tr. 100. Gonterman is an
outby foreman or “lead man.” He is therefore in charge of outby activities, and is in charge of the
A crew. VIII Tr. 101. Gonterman is “responsible to maintain the roadways, belt lines, the pump.
Also the sport units for supplies, anything else they may need, personnel for the A crew.” VIII
Tr. 102. His experience includes conducting examinations of belt lines. Id. If a bad roller is
found, at times Gonterman is involved in fixing it. He stated that a frozen roller can develop
quickly. VIII Tr. 104. As with Hammond’s testimony, Gonterman stated that if a belt is not
operating, it impacts his ability to detect roller problems. VIII Tr.105.
Directed to January 21, 2016, Gonterman was called to the 1A, B, and C belts during his
shift by Chris, “Bert,” Robinson. He was called to deal with a missing or bad roller on the 1C
belt. VIII Tr.107. Then, speaking to Exhibit P 9, Order No. 9036654, he agreed he was to attend
to the two top rollers that were hanging out of the bottom bracket at cross-cuts 42 and 43. Id.
He found one end of the roller out of the bracket, adding that, if the belt is not running , it is
difficult to see a problem of that nature. VIII Tr. 108. He also stated that such a condition can
occur quickly. Id. The fix for such a problem, he asserted, takes only seconds to achieve. VIII Tr.
109. Next, he was asked about a missing roller at the top outside and two frozen top rollers.
Gonterman believed that he attended to those too, replacing the cams and rollers. VIII Tr. 110.
Gonterman was then directed to Order No. 9036656, which pertained to the 1B belt and
two frozen rollers there. He repaired these too, changing out the rollers to make the inspector
“happy.” VIII Tr. 110-111. Changing out is not always necessary, because, he contended, simply
by spinning the rollers, they may be fine. When changing out is needed, it is a two-person task.
Id. Turning to Exhibit P 11, relating to the order on the 1A belt, and the three frozen top center
rollers present on the outside, and a missing top center roller, Gonterman stated that he attended
to those too. Those were also changed out. VIII Tr.112.
While at the 1A belt Gonterman saw Lucas Dobbs, who was walking down the travelway
side, which was the same side he was on. Id. Dobbs was going inby, while Gonterman was
heading outby. Gonterman was able to see the missing top roller. He contended that it was easier
to see that problem when heading outby than if going inby. Thus, he asserted that such a
condition is “easily missed.” VIII Tr. 113. However, when questioned by the Court, Gonterman
acknowledged that one is supposed to “try to look for everything.” VIII Tr. 114. This requires
bending and looking back. Id.

40 FMSHRC Page 128

Following the issuance of the Order, Respondent’s Counsel inquired if the mine
changed its policy regarding the number of belt examinations. Gonterman advised,
[y]es, sir. Since we had so many rollers on this -- you know, these citations, they
had us walk at the beginning of each shift, which every four hours, because we
would do it at the beginning of our shift at our pre-shift, and then the next group
comes in and it's every four hours to monitor to make sure we were catching all
these rollers, because, you know, you would examine this, and you would have
nothing. And the next guy would come in, and he could find one, you know. But
they were just -- it was a huge structure, and, you know, they would go bad. You
know, and in no time. So, yes, we did change that. And we seemed to get a better
handle on it.
VIII Tr. 115.
This new practice exceeds MSHA’s requirements. VIII Tr. 115-116. Yet, even with that
change, Gonterman agreed they were still finding rollers that needed to be changed. VIII Tr. 116.
Gonterman believed the problem stemmed from the use of “used structure[s],” though that is a
common industry practice. Id. Pursuant to their change in practice, rollers were thereafter
replaced with new rollers, not with used rollers and this helped. VIII Tr. 117.
Upon cross-examination, Gonterman reaffirmed that it’s more difficult to detect problems
when the belt is not running. VIII Tr. 118. However, he also conceded that his belt exam
responsibilities are the same, regardless of whether a belt is running. Id. He also agreed that
some of the rollers were out of the bracket, some were frozen and some just missing. Id. For
missing rollers at least, he conceded that the ability to detect that problem is unaffected by the
belt running or not. VIII Tr.119. However, he did not concede that a roller that is out of its
bracket is always easy to see. For the cited out of bracket rollers, he could not recall whether they
were of the difficult to detect category. Id. Gonterman also informed that the first belt he
attended to was the 1C. For that belt, he recalled finding one additional roller in need of
replacement beyond those identified by the inspector. VIII Tr. 120-121.
Exhibit P16, an email created by Gonterman on January 22, 2016, was admitted. VIII Tr.
129. Gonterman agreed that he sent his boss the email and that his boss would want to know if
there were any facts about the Order that he, Gonterman, was disputing. This was particularly
true because his boss wasn’t present to see the conditions but Gonterman had such firsthand
knowledge. VIII Tr. 131. Yet, Gonterman admitted that he did not include in his email any
comment that some rollers did not need to be changed, nor did he contest whether there was a
violation. Id. Gonterman’s excuse for the omission was that he was “pretty new” and there were
“a lot of things [he] didn't put in there that [he] should have.” Id. The Court was not impressed
with the excuse, because, he had been an outby foreman for two years and therefore was not
really “pretty new.” He then essentially conceded that there was no record that he had ever
written anything down that reflected his view that at least some of the rollers didn’t need to be
changed. VIII Tr. 132.

40 FMSHRC Page 129

Gonterman was also asked about his interaction with Dobbs. As noted, he stated that they
passed one another that day, as Gonterman was walking outby and Dobbs outby. VIII Tr. 132.
Shortly after that, Tisdale discovered a missing roller, which Dobbs did not perceive. Gonterman
asserted that Dobbs direction of travel made it harder to see the absent roller. VIII Tr. 133.
Gonterman acknowledged that, direction of travel or not, it was still Dobbs’ job see such
problems, even if harder to detect. Id.
Asked about his retraining for belt problems, per Exhibit P13, Gonterman agreed that his
signature appears on the document for the July 10, 2015 retraining. VIII Tr. 139. However,
Gonterman seemed to see the problem as less of an issue than the inspector. When asked, “did
the events on January 21st strike [him] as odd given the number of rollers that [he] had to
change,” he responded, “[t]hat -- I mean, that day -- but there were frozen or missing. They
weren't bad, you know.” VIII Tr. 141-142. (emphasis added). Still, he admitted that frozen, out
of bracket or missing rollers require action. Id. On redirect, offered to show that rollers with
issues can be missed, Gonterman reaffirmed that the MSHA inspection itself had missed one
such problem. VIII Tr. 143.
The issue of the seals was then addressed. This involves Order No. 9036663. Respondent
stipulated to this violation. VIII Tr. 151. Nathan Courtney was called by the Respondent.
Courtney is the outby boss for the B crew. VIII Tr. 145. Thus, his job is the same as
Gonterman’s, but for the B crew. He has about seven years of coal mine experience. VIII Tr.
146. Courtney has performed pre-shift exams for seals, doing that task well over 100 times.
Intake seals are located in the intake air corridors and they are required to be greased. VIII Tr.
146-147. He described what is involved in such an exam,
[y]ou're mainly looking for -- at the seal face, and any conditions at the seal area,
as far as your roof, and your ribs, any timbers that are in that area. You're looking
for a way that it could be being taken by the timbers, making sure that the area is
adequately rock dusted. And you, actually, look at the face of the seal itself to
make sure there are no changes or any kind of cracks or abrasions in the seal, and
then take gas readings to make sure that there are no gases leaking from them.
VIII Tr. 147.
The term “set of seals” refers to the set which seals or isolates a given area. For example,
the southwest main seals, the area cited, is one set. There are eight faces associated with that set
of seals. VIII Tr. 147-148. A pre-shift exam is to examine each face of the seal. VIII Tr. 148.
The time it takes to examine each seal is not long, requiring about two minutes per seal. VIII Tr.
149. Directed to February 3, 2016, Courtney stated he was on the second shift, the afternoon
shift, that day, and was accompanying inspector Tisdale at that time. VIII Tr. 150. The cited sealrelated violation was located on the intake air course, at its beginning. Id. Courtney was quite

40 FMSHRC Page 130

familiar with that set of seals on the southwest main. VIII Tr. 151. Courtney stated there was not
a history of adverse roof or rib conditions at these seals.36 Id.
Upon cross-examination, Courtney stated that his examination of the seals was included
among his pre-shift exam duties and that it involved about 20 minutes of his time within the
three hours allotted for that exam to occur. VIII Tr. 158. Courtney confirmed that there are tags
and in some places chalkboards at the seals, which are for one to put initials, date and time of the
seals’ examination. Id. During the February 3rd inspection, Courtney realized there had not been
an exam performed, upon not finding any DTIs anywhere. VIII Tr. 159. Regarding his request of
the inspector to allow him to inspect the seals, Courtney’s aim was to prevent an evacuation of
the mine. Id. Courtney admitted that at the time of discovering the seal inspection issue he did
not then know how much of a pre-shift had actually been done. VIII Tr. 160. Upon Courtney’s
returning to the surface, the mine had two examiners go underground to examine the seals and
there is no dispute that, in terms of the conditions, nothing adverse was found. That is, no
hazards were found. VIII Tr. 161. While that exam had to occur, because it’s required, Courtney
believed it was likely for one to assume that if a set of seals had been examined 100 times and no
hazard found, he would assume that the 101st time would yield the same result – no hazard. VIII
Tr. 162.
Richard Reisinger then testified for the Respondent. A professional engineer, he is the
engineering manager at the Francisco underground mine. VIII Tr. 164-165. Reisinger testified at
length about seals, including the southwest main seals. VIII Tr. 166 – 175. Still, despite all of the
above history and information about seals, none of that dispels that weekly exams are required to
check for convergence37 on the seals. VIII Tr. 176. Further, because they are on the intake, the
seals cited here are required to be pre-shifted and they also must be examined weekly. Id.
Reisinger, directed to Exhibit R 39, identified the exhibit as the process for constructing
seals, as well as for certifying that they are installed correctly. VIII Tr. 177. Reisinger opined that
the quality specifications were met for the construction of that seal. VIII Tr. 178.

36

The testimony then veered off on a tangent regarding Courtney’s request to then
examine the seals so that an evacuation of the mine could be avoided. VIII Tr. 152. Courtney did
then examine the seals but the inspector would not allow that to impact the citation’s abatement,
which required that the mine first be evacuated. Id. As noted, upon making the examination,
Courtney found nothing adverse. VIII Tr. 153-154. Thus, the Respondent has suggested that the
inspector was unreasonable in requiring “that the seals would have to be examined by a certified
examiner, and that that examiner would have to come back out of the mine after examination,
and sign the books”. …and by the inspector’s requirement that the books be signed before miners
could re-enter the mine. VIII Tr. 155.
37

“Convergence” is “the allowing of the movement between the roof, and floor at the
seal, at each individual seal site.” VIII Tr. 175. It is monitored by a measuring stick to evaluate
movement between the rib and the floor at each seal site. VIII Tr. 175-176. Convergence levels
do not fluctuate quickly. VIII Tr. 176.

40 FMSHRC Page 131

Cross-examination pointed out that this violation involves the examination of seals, not
their construction or tests, or how seals have performed since they were installed.38 VIII Tr. 185.
Reisinger then admitted that he doesn’t do pre-shift exams, though he may do an on-shift exam.
VIII Tr. 186. Further, the location evaluation in constructing seals does not affect the types of
exams for which a seal will be subject, nor does the PSI level impact the type of required exams.
Instead, the type of required exams is determined by the nature of the air going across such seals.
VIII Tr. 188.
After Reisinger’s lengthy testimony about the seals and seal construction generally, the
Court asked if he agreed that it was his view that “these seals that were identified in R39, they
were thoughtfully planned, approved by MSHA, and then properly constructed.” VIII Tr. 192.
Reisinger agreed with that summation. Id. He also agreed that all of that construction occurred
some four years before the citation in issue in this proceeding. Id. Further, Reisinger agreed that,
even with all the effort in constructing such seals carefully, it is still important to conduct preshift exams. The importance, in his view, is because it is required and also for the safety and
health of the miners. VIII Tr. 193. Thus, he was not suggesting that it is unnecessary to continue
to monitor the seals by conducting pre-shift exams. Id. And, he agreed the importance is because
something bad may happen. Id. This is because, in Reisinger’s words, “[seals] can leak and,
typically, they do.” Id. This results because seals “breathe,” so they leak as the atmosphere
changes. VIII Tr. 193-194.
In the Court’s estimation, Reisinger’s testimony bolstered the Secretary’s case. Trying to
undo the damage, Respondent’s Counsel asked Reisinger if seals fluctuate and was told there
would be only minor fluctuations and that he would not expect those to affect the seals’ integrity.
VIII Tr. 196. Further, he opined that, if problems did develop, he would expect them to develop
gradually, not quickly. Id. Those answers to those questions did assist the Respondent’s position.
Peabody employee Chad Barras then testified for the Respondent. VIII Tr. 198. He is the
director of safety and compliance for the Respondent. VIII Tr. 199. His responsibility covers all
of Peabody’s mines “in the Americas.” Id. Before that, he was employed by MSHA, where he
was a ventilation engineer. Id. He is familiar with the MSHA standard that requires pre-shift
exams of intake seals. VIII Tr. 200. As with the previous witness, Barras provided historical
information. In this instance, relating his knowledge of the standard’s promulgation in 1996. VIII
Tr. 200-201. At that time, according to Barras, MSHA overhauled its ventilation regulations.
VIII Tr. 201. In that context, he spoke of the old seals versus the new ones, with of course the
new ones being an improvement. Barras then expressed his view that MSHA should’ve updated
the standard for the pre-shift requirement of seals to reflect the advances in seal technology. VIII
Tr. 206.

38

Over the Respondent’s objection, the Court allowed the Secretary’s question, and
essentially repeated the question, inquiring if Reisinger understood “that we are not here today to
understand about thoughtful process, and the efforts that went into -- were involved in the
construction of these various seals [that Mr. Reisinger] just testified about, but rather that we're
testifying about the condition of the seals in February of 2016.” Tr. 186. Reisinger responded
that he did understand that. Id.

40 FMSHRC Page 132

Turning to the matter at hand, Order No. 9036663, Barras stated that he is familiar with
the main seals at the mine, as he examined them prior to a settlement conference in connection
with this violation. His visit to those seals, however, was in the fall of 2016, that is, at a
considerable time after the order had been issued. VIII Tr. 209. He also looked at six months of
methane readings for the southwest seals and found little or no methane was present. VIII Tr.
213. Further, he examined barometer data in connection with assessing leakage and determined
that over a six month review, there was little or no transfer of gas in either direction, from the
inside out or outside in. VIII Tr. 214.
In response to the Court, Barras informed that the mine is on the five day spot inspection
for methane, the highest inspection level for methane liberation. VIII Tr. 215. Barras agreed with
the Court’s characterization that there are some limited circumstances where one could have an
S&S violation involving seals at this location but that the only possible source, in his view, for
an S&S situation to arise at the southwest main seal would be to have a water issue, and at that,
there would have to be a large amount of water. VIII Tr. 217. Asked if water was an issue at the
mine, Barras answered that there is water at Francisco Underground Pit, but it's on a separate
side of the mine, which is about two miles from this seal. VIII Tr. 217-218.
Moving to Barras’ implication, from his testimony, the Court inquired if he believed that
there should not be a pre-shift exam for these seals. Barras’ answer was only that it be lessened
from a pre-shift to a daily exam or perhaps to a weekly exam, as he believed that frequency
would be sufficient. VIII Tr. 219. The Court would comment that the difference in opinion as to
the appropriate frequency of exams was not extreme, with Barras urging a daily exam as
compared with the present requirement for a preshift exam.
On cross-examination Barras agreed that part of his job is ensure compliance with MSHA
standards, including those he disagrees with. VIII Tr. 223. Again, the essence of Barras’
testimony was that, due to technology advances, the rule which was promulgated in 1996 needs
to be modified now. VIII Tr. 223.
The Court notes that it must be observed that revisions to the existing standard are
outside of the realm of the issues for this violation. That said, the Court understands that the
perspective offered by Barras was for the limited purpose of defeating the S&S designation. In
fact, Barras stated that he was at the mine, albeit long after the citation had been issued, to figure
out how the violation could be deemed S&S. VIII Tr. 226. In that regard, he stated he was
trying to figure out how is the S&S come about on this citation. That's why I went
over there, and I'm trying to figure out what could happen here, because I know
that if the roof falls, they don't propagate out to the side from where they start. So
I'm thinking how can that get over the seal, because the seal is holding the roof up
to an extent. It's cementitious foam in them. I'm looking at the ribs to say, how
can this rib bust open or fall out? Well, the cement's poured on them. So it can't
come out. It's there. So then I'm thinking about the floor, because that's the only
way I can come up with this hazard of getting gas to the men inby. And I'm
looking at the floor. The floors are dry. I'm not seeing anything coming out of
those. I don't see any, you know, I've seen floor heat before, and you can, actually,

40 FMSHRC Page 133

see the floor crack a little as it -- as a pillar goes down, the floor can move to the
inside and up. And it opens up in the middle. That's kind of why we put bigger
pillars in there to minimize that effect. I was just trying to come up with a way to
say, hey, I can get gas out of here somehow, where is it? And I walked away, still
shaking my head, trying to figure out what it is.
Tr. 226.39
Significant and Substantial and Unwarrantable Failure Designations
As the citations and orders involved in these dockets allege that the violations were
Significant and Substantial and involved Unwarrantable Failures, the basics of those terms are
set forth here:
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., 1 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).

39

On cross-examination it was then pointed out that the citation was for failure to do the
pre-shift. VIII Tr. 227. However, the focus of the Respondent is the S&S designation, as it
conceded the violation.

40 FMSHRC Page 134

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 *518 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.
Warrior Coal, 39 FMSHRC 509, 517-518 (March 2017) (ALJ Andrews)
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.’”

40 FMSHRC Page 135

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.
Id. at 547
Discussion40
Docket No. LAKE 2016-0269
As noted, at issue in this docket are two section 104(d)(2) orders: Order No. 9036922 and
Order No. 9036663.
Order No. 9036922; the alleged rib control violation, issued December 22, 2015.
The cited standard, 30 C.F.R. § 75.202(a), titled “Protection from falls of roof, face and
ribs,” provides “[t]he roof, face and ribs of areas where persons work or travel shall be supported
or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs
and coal or rock bursts.”
Referencing the reasonably prudent person test and the preponderance of the evidence
standard, the Secretary contends that the operator failed to support the ribs in the cited area, an
area where persons work or travel, and therefore the violation was established. Sec. Br. at 9-10.
Regarding the inspector’s associated findings, including his unwarrantable failure and S&S
determinations, the Secretary contends they are supported based on Fishback’s testimony that
“the falling ribs were immediately obvious upon entering the mine.” Id. at 14. Therefore, “only a

40

The findings of fact have been listed supra. The Court read and considered the parties’
post-hearing briefs in their entirety.

40 FMSHRC Page 136

high degree of negligence could explain Respondent’s failure to correct the rib conditions.” Id.
The inspector’s “testimony that large sections of the ribs could fall established that it was highly
likely that 1 of the 14 miners on the working section could receive a permanently disabling
injury.” Id. Supporting the unwarrantable failure designation was Fishback’s testimony that the
violation had likely existed for several shifts, that the ribs’ condition was poor throughout the
mine, that Respondent should have been on notice that the ribs were a concern, and that the ribs’
condition was obvious. Id.
The S&S finding, the Secretary contends, is also supported. To establish that the violation
was S&S, the Secretary acknowledges that he “must prove that any miner on any shift would
have been exposed to the hazard created by the unsupported rib if normal mining operations
continued, so as to create a reasonable likelihood of injury. Id. Fishback’s testimony, the
Secretary contends, establishes that. The Secretary also notes that “an inspector’s judgment is an
important element in making S&S findings,” and that it should be credited when such testimony
“is reasonable, logical, and credible; and specific [,] based on the first-hand observations of the
inspector. . .” Id. at 14-15. That burden, the Secretary urges, has been met here. The Secretary
also asserts that the Respondent’s witnesses, all of whom were employees of the Respondent,
corroborated parts of Fishback’s testimony. As for those elements of their testimony that
contradicted Fishback’s account, the Secretary describes those as “self-serving to their employer
and [such testimony] offered only speculation that the dark areas in [Fishback’s] photographs
could be evidence of scaling instead of falling ribs.” Id. at 15. Accordingly, the Secretary
contends that the employees’ testimony is only “entitled to little weight” and that the violation
should be affirmed as issued. Id.
Respondent, revisiting its motion in limine on the same issue, contends that “the
photographs that Mr. Fishback claims to have taken of the cited area and measurements
referenced in Order No. 9036922 should not be admitted because the Secretary is unable to
identify the specific entry and crosscut at which each was taken.” R’s Br. at 13. Noting that the
Court rejected its motion, advising that its objections go to the weight, not the admissibility of
those photos, Respondent urges that the photos should be “afforded no weight.” Id. at 14. Apart
from its overall objection concerning the lack of location specificity for the 20 photographs
Fishback took, it contends that photo P 3(a) could not have been taken on the working section
because there are phone lines in it and such lines are never inby the loading point. Further, that
photo includes screen wire, and “[a]s a practice, Peabody only installed screen wire on the roof
of Entry Nos. 4 and 5 in a panel.” Id. From these observations, Respondent contends that “the
photo referenced by Mr. Fishback could not have been of the condition he purported to observe
in Entry No. 2.” Id.
The theme of Respondent’s objection is that the photos “should be afforded no weight
both because Peabody continues to be prejudiced by the Secretary’s reliance on them and
because they are of no probative value in resolving this matter.” Id. Respondent adds that
“[w]ithout the specific location, it cannot be determined whether anyone was present in these
areas, whether scaling or any other measures had been taken in these areas, the scope of the

40 FMSHRC Page 137

alleged condition relative to the context of the area, or any other important factors to consider.”41
Id.
In its Reply Brief, the Secretary states that it did not use Fishback’s photos to establish
particular areas of the mine. Rather, the photos reflect the conditions the inspector found in
the mine that day, including the working section, as noted in the order.42 The Secretary adds that
the evidence was not simply about the photos, but included the consistent testimony from
Fishback’s supervisor, Herndon, and even some of the Respondent’s witnesses. Sec. Reply at 12. The Secretary essentially makes the same response to the Respondent’s objection that the
measurements in the order were only estimates. So too, Respondent’s focusing on whether there
were five crosscuts in Unit 2 or actually three, overlooks the point that adverse rib conditions
were present throughout the working section. Id. at 3. The Court finds that, by far, the Secretary
has the better side of the argument. Accordingly, the Court finds that the photos do support the
violation.
The Secretary also challenges the Respondent’s claim that the rib violation was based on
hindsight.43 Instead, the Secretary asserts that the order was based on “Fishback’s observations
and what a reasonably prudent operator should have done based on what Respondent knew at the
time.” Id. at 4. Last, while the Secretary notes that Fishback acknowledged that the Respondent
may have made some efforts to control the ribs, he counters that such efforts must be adequate.
Id. As discussed infra, and as noted in the findings of fact, the Court takes into account that the
Respondent made some efforts at controlling the ribs.

41

Apparently, one of those “other important factors” is that “there was conflicting
testimony as to whether [the photos] represented areas where ribs had rashed or had been pried
[and consequently] [a]bsent information about the specific location of the photographs, that
conflict cannot be resolved definitively.” R’s Br. at 15. The problem with the Respondent’s
argument is, as mentioned above, that issues such as whether an area had been rashed or pried do
not depend exclusively upon the photos. Such matters are for the Court to resolve upon weighing
conflicts in the testimony. Further, the focus upon the “trees,” so to speak, misses the overall
contention of the Secretary that the rib conditions were widespread and required a shutdown of
the cited area.
42

The Court notes that the order stated: “[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.”
43

In making that challenge, the Secretary takes issue with the cases cited by the
Respondent on multiple grounds, but foremost, the Secretary contends that the inspector’s order
was not based on hindsight. The order was not created in the wake of an accident but rather on
the inspector’s finding that the rib conditions throughout the section were hazardous. Sec’s.
Reply at 3-4. The Court agrees that the cases cited by the Respondent, Jim Walker Resources,
Inc., 30 FMSHRC 872, 879 (ALJ Zielinski Aug. 2008), Harlan Cumberland Coal Co., 22
FMSHRC 672, 681 (ALJ Cetti May 2000); Energy West Mining Co., 18 FMSHRC 1628, 1639
(ALJ Cetti Sept. 1996), are distinguishable and not useful to the resolution of the issues in this
matter.

40 FMSHRC Page 138

Respondent’s Reply44 challenges the Secretary’s claim that he met the preponderance of
the evidence standard, contending that “[t]he Secretary’s ‘evidence’ amounts to nothing more
than a naked reliance on the inspectors’ unsupported statements.” R’s Reply at 5. From the
Respondent’s perspective the Secretary’s case relies upon the testimony of the two inspectors but
that “testimony was nonspecific, unsupported by any verifiable physical evidence and belied by
the facts …” Id. at 6. As to the Secretary’s assertion that heightened negligence and
unwarrantable failure were involved, the Respondent again contends that claim rests upon the
inspector’s testimony, while the Respondent presented testimony contradicting such testimony.
Id. at 7. Respondent’s overarching point is that the Secretary’s case rests upon the inspector’s
“naked assertion that adverse conditions existed across ‘the whole section’ because he said so.”45
Id. at 8.
The Court’s conclusions as to Order No. 9036922
As applied here, the essence of the cited standard requires that ribs be supported or
otherwise controlled where persons work or travel to protect them from falls of the ribs. The
Order asserts that such loose ribs were observed in multiple entries in the MMU-002 and 012
active working sections. The conditions continued for an approximate distance of 300 feet and

44

Respondent’s Reply also notes that the Secretary inaccurately asserts: that the Order
involved two working sections, whereas it was a single section with two MMUs and a split-air
arrangement; that the issuing inspector immediately observed the rib conditions – but Peabody
notes that the observation was not made until the inspector arrived on the section and that the rib
conditions were limited to that Unit and that outby areas are of no relevance to the order; that,
referring to exhibits P 3c and P 3d, the initials on a rib where material had fallen demonstrate
that the examiner saw a violative condition and did nothing about it, but that in fact the initials
were painted after the rib had fallen; that Respondent’s witness Benjamin stated that there would
not have been enough time for the mud seam to dry and create separation in the time between the
last production shifts in the area that Fishback inspected and the date of the inspection is
inaccurate because Benjamin limited that remark to the faces, not the entire unit; that the
Secretary’s remark that Benjamin’s standard for dealing with the ribs is that no one got hurt, is
incomplete and therefore an unfair characterization; and that, for one of the photos, that was not
on the working section; and finally that Hudson’s remark that miners could’ve entered the area,
sidesteps that it was not on a route miners would normally travel. R’s Reply at 2-5. The Court
would note that, inevitably, there will be aspects of testimony, from both sides, that can be
picked apart. The Court’s task is not to get bogged down in such details where they do not
substantially impact the issues, but rather it is to assess the entirety of the evidence, make
credibility determinations when necessary and to then determine whether a given citation or
order was established by the preponderance of the evidence. Where a violation has been
established, it then applies the same approach to resolve the issues of gravity, negligence, the
other statutory criteria and any special findings that may be involved such as whether a violation
involved an unwarrantable failure and significant and substantial aspects.
45

It is noted that the Respondent applies these contentions to Order No. 9036924, the
related inadequate preshift claim, as well. R’s Reply at 8.

40 FMSHRC Page 139

approximate measurements of the loose ribs were listed. As set forth below, and in the findings
of fact, supra, the Court finds that the violation was clearly established.
There is no genuine dispute that loose ribs can present a risk of disabling injuries and
fatalities and therefore must be taken seriously. Another aspect about which there is no genuine
dispute is that the mine was dealing with a mud seam in this area. On December 22, 2015, the
day of the inspection in issue by Inspector Fishback, in the cited unit, there was a mud seam in
the middle of the coal seam. Mud seams are a safety concern because they can deteriorate
quickly and cause a rib to slide out without warning. Fishback is a roof control specialist and had
29 years of coal mining experience before becoming an inspector for MSHA. Prior to the
issuance of this Order, Fishback had issued roof control violations for this mine and put them on
notice of the need for greater diligence in matters of roof control. Fishback was not the only
inspector to view the conditions cited in this Order, as his supervisor, Herndon was with him at
that time. The preshift exam immediately before the inspector viewed the rib conditions
prompting his order did not record any problems with the ribs. Fishback encountered “a very
adverse rib” almost immediately upon arriving at the section, and this rib had been rock dusted.
That meant that the rib condition had to have existed before the shift of Fishback’s inspection.
The rib condition was serious enough that it prompted Fishback to return to the mantrip and
retrieve his camera. Thus, when he began his inspection, Fishback did not have his camera on his
person. That is a strong indication that Fishback had come upon a concerning condition,
sufficient enough that he decided photos were in order. Fishback stated, credibly, in the Court’s
estimation, that upon conducting his imminent danger run at the working section, he found
adverse rib conditions in every entry and crosscut. Further, the Court has found that Fishback
testified credibly that all of the photos he took that day were within Unit 2 and that the rib
problems he found were across the whole room and section entries and cross space. Fishback
took nearly all the photos in the company of the mine’s Eric Carter. According to Fishback,
Carter did not contest his findings. To the contrary, Fishback stated that Carter told him they had
been trying to deal with the issue, but had not been successful yet.
Carter testified and, as noted by the Court earlier in this decision, Carter disclosed that
Fishback was not trigger happy about issuing citations. It was only upon seeing these rib
conditions that Fishback issued paper. Though Carter’s and Fishback’s estimations of the bad rib
they came upon at the two entry differed, even Carter admitted there was a rib issue there and he
admitted to the Court that there were other areas with rib issues, though again his estimation of
the degree of the problem differed from Fishback’s assessment. In addition, overall, as detailed
in the findings of fact, the Court finds that Fishback’s testimony was more credible than Carter’s.
Though Fishback had a prior employment history with Peabody, the Court finds that, at least for
this Order, (and for the order involving an inadequate pre-shift) it did not cause him to overstate
his view of the rib conditions.
The Court cannot buy into the Respondent’s objections to the photos. They are afforded
some weight because they support the inspectors’ testimony. It makes no sense to suggest that
the lack of specificity as to the location should result in no weight being given to them. There is
also an element of impracticality as to the Respondent’s argument that more specificity was
essential to its ability to defend against them. It is not as if the inspector merely stated that the

40 FMSHRC Page 140

photos were taken somewhere in the mine. The inspector provided sufficient specificity, though
not on a granular level, as Respondent urges is necessary.
In addition to the above considerations, as noted, Inspector Herndon saw the same ribs as
Fishback. His testimony supported Fishback’s accounting of the conditions. By contrast, overall,
the Court did not find McKinnon’s testimony to be as credible and his test for compliance with
the standard was, in the Court’s view, problematic. Further, in the big picture, McKinnon’s
testimony supports the view that ribs were an issue at Unit 2.
In evaluating the testimony of the witnesses on this issue, a factor which was also
considered was the relatively recent retraining on rib maintenance. Listening to the testimony
from those who took that retraining did not leave the Court with the impression that it was taken
seriously by the miners.
However, not to be discounted was the testimony of Respondent’s other witnesses,
Benjamin, Sumner and Hudson, each of whom the Court found to be generally credible. Those
individuals were not ignoring the ribs but they could have done more. Benjamin’s testimony
supported the testimony of every other witness in the sense that there was an issue with the ribs,
exacerbated by the mud seam, and that time was required to deal with the problem. Sumner’s and
Hudson’s testimony did not dispel that the ribs were a problem requiring attention. Thus, with no
one denying that there was a problem with the ribs, the question is whether the mine was doing
enough to address it.
The Court finds that the testimony of Fishback and Herndon, the photographic examples
of the conditions and, in a very real sense, the Respondent’s own witnesses, all establish that,
although the mine was making efforts to address the ribs, it was not doing enough to deal with
them. One of the themes that came through from the Respondent’s witnesses was the
perspective that some ribs issues did not require immediate attention, a view which seemed to
rest upon the test that if no one was injured, sufficient attention was being made. That
perspective is rejected. The Respondent’s witnesses seemed to take issue less with whether there
was a violation and more with the fact that an order, as opposed to a citation, was issued. Further,
it was an ironic defense to effectively assert that the previous section was worse than the area
cited.
With the above remarks in mind, though the violation was established, the Court finds
that the Respondent was making some good faith efforts to address the ribs. To be fair, the mud
seam was a bedeviling situation; the conditions could change as that seam dried out and it was
not entirely unreasonable for miners to reach different conclusions about the timing of the need
for action to control the ribs. As discussed below, the Court believes that this bears upon the
unwarrantable failure claim.
Overview of Penalty Assessments
In assessing civil monetary penalties, Section 110(i) of the Act requires that the
Commission consider the six statutory penalty criteria: [1] the operator’s history of previous
violations, [2] the appropriateness of such penalty to the size of the business of the operator

40 FMSHRC Page 141

charged, [3] whether the operator was negligent, [4] the effect on the operator’s ability to
continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
As the Commission has noted, “Administrative Law Judges are accorded broad discretion
in assessing civil penalties under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492
(Apr. 1986). A Judge’s penalty assessment is reviewed under an abuse of discretion standard.
Douglas R. Rushford Trucking, 22 FMSHRC 598, 601(May 2000).” Knight Hawk Coal, LLC, 38
FMSHRC 2361, 2373 (Sept. 2016).
That said, the Court recognizes that there are two important considerations that must be
evaluated; the Secretary’s burden to provide sufficient evidence to support the proposed
assessment; and the Court’s obligation to explain the basis for any substantial divergence from
the proposed amount. The Commission has noted that the “Secretary [ ] does bear the ‘burden’
before the Commission of providing evidence sufficient in the Judge’s discretionary opinion to
support the proposed assessment under the penalty criteria [and that] [w]hen a violation is
specially assessed that obligation may be considerable. [On the other hand] the Secretary’s
proposed penalty cannot be glided over, as the Commission also stated, ‘Judges must explain any
substantial divergence between the penalty proposed by MSHA and the penalty assessed by the
Judge. … If a sufficient explanation for the divergence is not provided, the credibility of the
administrative scheme providing for the increase or lowering of penalties after contest may be
jeopardized by an appearance of arbitrariness. [The American Coal Co., 38 FMSHRC 1987,
1993-1994 (Aug. 2016) ], (citing Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d,
736 F.2d 1147 (7th Cir. 1984)).” Consolidation Coal Co. 38 FMSHRC 2624, 2643-2644 (Oct.
2016) (ALJ Moran)
Penalty Assessment for Order No. 9036922
Order No. 9036922 was specially assessed at $70,000. As noted, had Order No. 9036922
been regularly assessed, the proposed penalty would have been $44,645. For the following
reasons, upon application of the statutory penalty criteria, the Court imposes a penalty of
$30,000 for this violation, an amount which the Court considers to be both an appropriate, and
significant, penalty under the circumstances.
The Narrative Findings for a Special Assessment shed little additional light in support of
the reason for employing that provision of Part 100 beyond the information asserted in the Order
itself. Nor did the Secretary, at the hearing, or in the post-hearing briefs present particular
reasoning in support of the Special Assessment. Further, the Court does not agree with assertion
that “[m]anagement failed to support or otherwise control the coal ribs,” as the Court finds that
the Respondent made some efforts to address the ribs, albeit insufficient ones. Accordingly, the
Court does not agree with the Narrative’s statement that “[m]anagement made no attempt to
correct the violations.”

40 FMSHRC Page 142

It is noted that the Special Assessment’s point valuation did not differ from the Regular
Assessment’s points on the criteria of size, good faith, or violation history, including repeat
violation points. Pursuant to the parties’ stipulations, presented at the hearing, payment of the
total proposed penalty in this matter will not affect Respondent’s ability to continue in business
and the Respondent demonstrated good faith in the abatement of the alleged violations.
Therefore, the negligence and gravity, and the related issues of unwarrantable failure and
significant and substantial, remained in issue.
The Court’s assessment of the negligence and gravity associated with the violation is not
restricted to the boxes in the Mine Citation/Order form, MSHA Form 7000-3. Evidence does not
always fit neatly into the choices that form offers. Instead, based on the overall testimony, the
Court concludes that the gravity was between reasonably likely and highly likely, that the
injuries could include lost workdays or restricted duty and possibly permanently disabling ones.
While the S&S finding is upheld, the diminished expected injury evaluation impacts the
reasonably serious injury aspect of that finding. Similarly, the negligence, in the Court’s
estimation, falls between moderate and high. While it is a close call, the Court finds that there
was not an unwarrantable failure, because there were efforts, insufficient though they were, to
address the ribs. It would be inaccurate to characterize the Respondent as having engaged in
reckless disregard, intentional misconduct, indifference, or a serious lack of reasonable care.
Accordingly, with the unwarrantable failure designation not justified, this order is modified to a
section 104(a) citation. Lodestar Energy, Inc., 25 FMSHRC 343 (July 2003) Cyprus
Cumberland Res. Corp., 21 FMSHRC 722, 725 (July 1999).
The remaining statutory criteria were duly considered in arriving at the penalty imposed.
The Commission has “recognized that in assessing a civil penalty, a Judge is not required to
assign equal weight to each of the penalty assessment criteria. Rather, “[j]udges have discretion
to assign different weight to the various factors, according to the circumstances of the case.
Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001). … Indeed, the Commission has held
that Judges have not abused their discretion by more heavily weighing gravity and negligence
than the other penalty criteria. Signal Peak Energy, LLC, 37 FMSHRC 470, 485 (Mar. 2015).”
Knight Hawk Coal, LLC, 38 FMSHRC 2361, 2374 (Sept. 2016).
Upon consideration of the above, the entire record, as set forth in some detail per
the Findings of Fact, the Court’s credibility determinations and the statutory criteria, the
Court imposes a civil penalty of $30,000 for former Order No. 9036922, now modified to a
section 104(a) citation.
Order No. 9036663; the admitted preshift examination violation, issued February 3, 2016,
which Order is not related to Order 9036922.

40 FMSHRC Page 143

Given the Respondent’s concessions about this order, the Secretary addressed the limited
subjects of controversy. However, the Secretary said little that actually supports his view of those
subjects.46
For the Respondent’s part, it acknowledges that an ineffective intake seal, leaking gases,
or seal failure, presents the hazard of such contaminated air being carried to the working face.
R’s Br. at 74. Respondent contends that the S&S determination must be viewed in the context of
the failure to conduct a single missed preshift exam in this location, the Southwest Main Seals.
With that focus, the Respondent asserts “the Secretary has adduced no particular facts to support
that the potential for leakage of gases that would affect the working section was reasonably
likely to occur. Mr. Tisdale could not establish that the hazards he identified as associated with
the hazardous release of gases were reasonably likely …. To the contrary, the Mr. Tisdale agreed
that at the time of the subject inspection, there were no hazards present at the Southwest Main
Seals that would indicate a leakage of methane was reasonably likely.” R’s Br. at 74-75.
Respondent also notes that “[t]he seals are evaluated weekly for convergence, and have
exhibit[ed] levels well within the allowable limits[;] [that] [s]ix months of weekly methane
readings prior to the issuance of the Order show no more than de minimis levels of methane[;]
[and that] [n]o geologic anomalies have developed.” Id. at 76. In addition, Respondent observes
that its witnesses, Barras and Reisinger, stated that for these seals a change in conditions would
not occur quickly, and because the Southwest Main Seals have historically exhibited stable
convergence levels, it is exceedingly unlikely that their condition would have changed in the
time covered by a single preshift examination.47 Id.

46

In its entirety, on these limited issues, the Secretary stated only, “Tisdale’s credible
testimony that daily preshift examinations are the only way to identify potentially dangerous
issues with seals established that a failure to do so was reasonably likely to cause injury and that
the violation was S&S. His testimony established that if an intake air course seal were to be
breached, it would put bad air directly onto a working section and could cause an explosive gas
mixture. These issues could cause death by asphyxiation or explosion. Respondent’s argument is
that it does not believe the preshift examinations required by MSHA are necessary, because its
seals have performed well so far. However, not only are intake air course seals required to be
examined, Tisdale’s testimony established that without the required examinations, it was
impossible to determine how well the seals were performing. He testified that the failure to
examine the seals created a reasonable likelihood of explosion or asphyxiation. His reasonable,
logical, credible, and specific testimony regarding the S&S assessment is entitled to substantial
weight.” Sec. Br. at 24. However, little of this actually addresses the S&S considerations and, as
explained infra, those aspects which do speak to the issue are found to be unpersuasive
considering the evidence as a whole.
47

Although the Court read and considered the parties’ reply briefs, it has determined that
no additional comments were needed regarding the issues surrounding the preshift violation for
the seals.

40 FMSHRC Page 144

The Court’s conclusions as to Order No. 9036663, the admitted preshift violation
As noted, the Respondent stipulated to the fact of violation, to high negligence and to
unwarrantable failure. Therefore, the Secretary had only to deal with the gravity designations of
reasonably likely, and fatal, and number of persons affected designation. The standard violated
requires preshift examinations. Involved in this instance was the failure to preshift the intake
aircourse South West Main seals prior to the afternoon shift miners entering the mine on
February 3, 2016. The violation was regularly assessed under Part 100 at $38,503.00. For the
reasons which follow, the Court finds that the appropriate penalty is $10,000.00 and it
imposes that sum.
No one disputes the importance of this admitted violation. After all, the southwest main
seal, which was not preshifted, was on the intake air course, and delivered air directly to a
working section, which was adjacent to the primary escapeway. However, having taken into
account the admitted violation, that it involved high negligence and an unwarrantable failure in
the penalty determination, the analysis must then focus on the likelihood, the fatal designation
and the accuracy of the number of persons affected, listed at 31 in the Order. Once those
determinations are made, they are folded into the admitted aspects, to arrive at the penalty.
Therefore, while the admitted hazard is that a leaking seal could allow bad gas to a
working section, the likelihood of that occurring under continued normal mining operations must
be determined. Inspector Tisdale stated that without performing the preshift exam, one cannot
know what hazards may or may not exist in that area. Though Tisdale addressed his S&S
finding, and the underlying hazard, he could not speak to the reasonable likelihood that air
leaking from a seal will come out in a large amount, nor could he speak to the reasonable
likelihood of asphyxiation occurring. He also conceded that while asphyxiation would come
about through lack of oxygen, oxygen is checked throughout the mine. As to the likelihood that
an explosive mixture of methane could occur, the inspector stated that, without ventilation
controls, seals being one of those controls, he has encountered it. While the Court acknowledges
that Tisdale viewed the failure to preshift the seals as just one element of that exam, which is to
include the roof and ribs and gas levels, he admitted that those concerns turned out not to be
present in this instance. He then conceded that the hazards he identified turned out not to be
reasonably likely to occur. It is also fair to conclude that Tisdale effectively viewed all such
failures to preshift a seal as S&S.
Addressing the aspects of the inspector’s evaluation with which it took issue,
Respondent’s witness Courtney stated, without contradiction, that there was not a history of
adverse roof or rib conditions at these seals. Respondent’s witness Reisinger also testified on the
seal issue. In many respects he did not advance the Respondent’s defense, but as to the issues
that Respondent was challenging, he did state that seal fluctuations would only be minor, that he
would not expect that those fluctuations would affect the seals’ integrity, and that if problems did
develop, they would likely develop gradually, not quickly.

40 FMSHRC Page 145

Respondent’s witness Barras also testified about the seals.48 Barras reviewed methane
and barometer readings for a six month period, finding little or no methane present at the seals in
issue and little or no gas transfer in either direction. A significant and substantial scenario could
develop, in his view, only if there was a significant water issue, an unlikely occurrence because
there is no nearby water issue to those seals. Barras gave the S&S issue some serious thought
and, as his testimony revealed, it is not reasonably likely that an injury would occur. The Court
found Barras’ reasoning to be sound and persuasive on the likelihood issue. This finding does not
directly impact the fatal nor number of persons affected designations but, with the occurrence not
being reasonably likely, it has an indirect effect on them. Accordingly, upon consideration of
all the evidence on this matter, it imposes the above-stated penalty of $10,000, an amount
the Court still considers to be a significant, and warranted, civil penalty assessment.
Docket No. LAKE 2016-0232
Violations at Issue in Docket No. LAKE 2016-0232
Order Numbers 9036654, 9036656, and 9036657 each alleged a violation of 30 C.F.R. §
75.1731(a). That standard, titled, “Maintenance of belt conveyors and belt conveyor entries”
provides, at subsection (a) “Damaged rollers, or other damaged belt conveyor components,
which pose a fire hazard must be immediately repaired or replaced. All other damaged rollers, or
other damaged belt conveyor components, must be repaired or replaced.” The Secretary
proposed a penalty of $4,000.00 for each of these alleged violations (i.e. $12,000.00 in total for
the three). The conditions prompting the issuance of all three orders were found on the
same day, January 21, 2016.
Because many aspects of the testimony for these three violations spoke of common
problems, the parties dealt with them collectively. The Court takes the same approach.
Order No. 9036654; alleged damaged rollers violation
The conditions found by the inspector have been set forth in the findings of fact but, in
sum, for the 1C belt the inspector found two top rollers out of bracket, allowing the belt to rub
them, a missing top outside roller and two frozen top center rollers. Based on his calculations of
belt move frequency, the inspector believed the conditions had existed for two to three weeks.
The inspector stated that these conditions were “obvious to the most casual observer.” He
marked the gravity as unlikely, the injury or illness that could reasonably be expected to be lost
workdays or restricted duty, the negligence as high, the violation as non-S&S, and as an
unwarrantable failure, with one person affected.

48

Mr. Barras’s expressed view that the cited standard needs to be updated in order to
catch up with advances in seal construction is beside the point, as the standard is enforced as
written until amended. However, one can compartmentalize his remarks as informative on the
likelihood factor and that is the approach the Court took here.

40 FMSHRC Page 146

Order No. 9036656; alleged damaged rollers violation
For this Order, applying to the 1B belt, the inspector found a frozen top center roller and
a frozen top outside roller. As with Order No. 9036654, the inspector stated that the problems
were “obvious to the most casual observer.” He marked the gravity as unlikely, the injury or
illness that could reasonably be expected to be lost workdays or restricted duty, the negligence as
high, the violation as non-S&S, and as an unwarrantable failure, with one person affected.
Stating that almost all of the frozen rollers had flat areas on top or polished shiny areas, the
inspector opined that the rollers had been frozen for a period of time.
Order No. 9036657; alleged damaged rollers violation
For this Order, applying to the 1A belt, the inspector found frozen top center rollers at
three locations, a single frozen top outside roller, and a missing top center roller, allowing the
belt to rub when loaded. As with Order Nos. 9036654 and 9036656 the inspector marked the
gravity as unlikely, the injury or illness that could reasonably be expected to be lost workdays or
restricted duty, the negligence as high, the violation as non-S&S, and as an unwarrantable
failure, with one person affected. Again, he stated that the problems were “obvious to the most
casual observer.”
Taken together, the inspector believed that the number of problem rollers he found was
an unusually large number. It was perplexing to the inspector and indicative of the inadequate
belt examination for these three belts that he met the belt examiner as they passed one another,
traveling in opposite directions along the belt line. The problem was that, shortly after their
meeting, the inspector came upon a frozen and a missing roller in the direction that the belt
examiner had just traveled but without observing the twin problems. The inspector, upon
checking the mine records, found that no bad rollers had been noted through January 4, 2016. He
considered that an unusual length of time to not discover rollers needing attention. Another issue
of concern for the inspector was that the miners had already been trained on this issue.
Speaking to the three damaged roller orders, Order Nos. 9036654, 9036656, and
9036657, the Secretary notes that rollers, as part of the belt haulage system, can present an
ignition hazard. However, implicitly, the Secretary concedes that the task is daunting as “[t]here
are thousands of rollers along the belt” and, as any number of them can malfunction, such
problems “are not uncommon.” Sec. Br. at 17. The Secretary points out the even rollers that
don’t present a fire hazard must still be replaced under the standard and argues that the
“Respondent did not change out bad rollers as often as would be expected and had left the bad
rollers in place for a long period of time.” Id. at 20. The Respondent’s failure to identify the bad
rollers supports the inspector’s high negligence finding. Id.
For its part, the Respondent, also addressing the three conveyor belts/roller issues
collectively, notes that “the 1A, 1B and 1C belts consisted of 7,970 feet of belt line, and had
4,782 top roller cans.” R’s Br. at 47. Respondent further states that the belt examiner has several
other tasks to perform while examining the belts in addition to the rollers. Beyond that, there was
testimony that it is more challenging to detect roller issues when the belt is not running, which
was the case in large measure, at least for the 1C belt. Id at 48.

40 FMSHRC Page 147

The Respondent challenges the unwarrantable failure and high negligence findings for
each of the three orders; No. 9036654, 9036656, and 9036657. If the Respondent’s perspective
were to be upheld for either of those findings, obviously it would impact the penalty assessment.
Respondent contends that there were mitigating circumstances. For the 1C belt, the rollers were
not readily observable, as Hammond had walked the opposite side of the belt than the inspector,
the belt was running when the inspector detected two frozen rollers, but Hammond’s exam
occurred when coal was not running. For the 1B belt, involving two frozen rollers, the inspector
observed the condition when the belt was running. Similarly, the belt was not running coal when
Hammond did his exam. While conceding that a single missing roller was not detected by
Hammond, Respondent notes that this must be viewed in the context of 7,970 feet of belt line.
R’s Br. at 59-60.
As for the unwarrantable designation, Respondent notes that the words used to describe
that term – words like aggravated conduct, reckless disregard, intentional misconduct,
indifference and a serious lack of reasonable care – simply do not apply to the facts involved
with these three orders. Respondent points to the conditions not being “extensive,” under any
reasonable interpretation of that word. The Respondent also asks if it is fair for the inspector to
have issued three separate orders, one for each belt, when his determination of unwarrantability
was based on his collective view of all three belts. The Court believes that the Respondent’s
arguments have merit.
Recognizing that there is a $4,000 statutory minimum for 104(d)(2) orders, Respondent
contends that the elements needed to sustain such an order were absent for Order Nos. 9036654,
9036656, and 9036657.49
The Court finds that the Respondent’s arguments carry the day and accordingly that none
of these three orders were unwarrantable failures. Further, it does not adopt the characterization
that all of the roller issues were obvious to the most casual observer. Consequently, it modifies
each of the orders to section 104(a) citations. Lodestar Energy, 25 FMSHRC 343 (July 2003).
Based on the foregoing, and each of the statutory factors, the Court imposes a civil
penalty of $1,000 for now modified Citations 9036654 and 9036657 and $500.00 for now
modified Citation 9036656.

49

As discussed below, the Respondent makes a similar claim for Order No. 9036658

40 FMSHRC Page 148

Order No. 9036658; alleged inadequate belt exam
For this Order, No. 9036658, alleging a violation of 30 C.F.R. § 75.360(b)(11)(vi), and
the attendant duty to preshift for violations involving belt conveyor components,50 the inspector
stated that “[t]he exam conducted on [t]he 1A, 1B, and 1C belts has been found to be inadequate.
Upon inspection there are 12 rollers that were damaged or missing on these three belts. This area
had been examined prior to inspection by approximately 3.5 hrs.”
The inspector assessed the gravity as reasonably likely, the injury or illness that could
reasonably be expected to be lost workdays or restricted duty, the negligence as high,
constituting an unwarrantable failure to comply with a mandatory standard, and S&S, with one
person affected. As with the orders for the belt issues, Order Nos. 9036654, 9036656 and
9036657, this belt-related violation had a proposed penalty of $4,000.00.
Respondent challenges the fact of violation, whether it was S&S, and whether it was
properly deemed an unwarrantable failure.
Given the Court’s findings and conclusions for former Order Nos. 9036654, 9036656,
and 9036657, each modified to section 104(a) citations, a similar result obtains for Order No.
9036658. Accordingly, that Order is also modified to a 104(a) citation. However, because that
former Order applied collectively to all three belts, as identified in now Citations Nos. 9036654,
9036656, and 9036657, a penalty of $2,500.00 is imposed for now-Citation No. 9036658.
Order No. 9036924; alleged inadequate preshift exam
Order No. 9036924, issued December 23, 2015, alleged a violation of 30 C.F.R. §
75.360(a)(1). As noted, it is actually associated with former Order, now section 104(a) citation,
No. 9036922 which is part of Docket No. LAKE 2016-0269. The Secretary specially assessed
this alleged violation, proposing a civil penalty of $70,000.00. Accordingly, though it would be
understandable to think of this Order as related, time-wise, to the other four orders in this docket,
all issued on January 21, 2016, this alleged violation was cited nearly a month earlier.
As previously stated, the cited standard, titled Preshift examination at fixed intervals, as
applicable here, provides at (a)(1): “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.”
50

The text of the relevant portions of the cited standard provides: “The person conducting
the preshift examination shall examine for hazardous conditions and violations of the mandatory
health or safety standards referenced in paragraph (b)(11) of this section, test for methane and
oxygen deficiency, and determine if the air is moving in its proper direction at the following
locations:… (11) Preshift examinations shall include examinations to identify violations of the
standards listed below: … (vi) § 75.1731(a) - maintenance of belt conveyor components.”

40 FMSHRC Page 149

Because of the special assessment, the text of the (d) order is repeated here. The inspector
described the condition or practice as follows:
An inadequate preshift examination was performed on the midnight shift
(12/22/2015, 4:00 a.m. to 7:00 a.m.). A hazardous condition (inadequately
supported ribs) located on the #2 Unit, MMU-002 and MMU-022 active working
sections from crosscut #1 to #5 in all entries and crosscuts. This condition was not
posted in or recorded in a book maintained for the purpose on the surface at the
mine. This hazardous condition was obvious and extensive and condition had
existed for a significant period of time. Order #9036922 was issued in conjunction
with this 104(d)(2) order. This violation is an unwarrantable failure to comply
with a mandatory standard.
Order No. 9036924.
The inspector assessed the gravity of the injury or illness as highly likely to occur, the
injury or illness that could reasonably be expected to be permanently disabling, the negligence as
high, and an unwarrantable failure and as S&S, with 14 persons affected.
The Secretary’s post-hearing brief notes that the inspector found nothing in the preshift
exam reflecting issues with the ribs. Further, the inspector believed that the rib problems existed
for several shifts. Sec. Br. at 15. The Secretary states that the violation was established because
the preshift exam did not note that the ribs presented a hazardous condition. Id. at 16. An
adequate preshift exam would have noted the obvious rib conditions. The Secretary also looks to
the inspector’s testimony for support of the gravity, negligence, unwarrantability and the other
designations made in the order, including the S&S determination. That last gravity finding, S&S,
is supported, the Secretary states through the inspector’s credible testimony “that the hazard
caused by Respondent’s failure to recognize and correct the poor condition of the ribs exposed
all of the miners on the working section to the hazard caused by the violation.” Id. at 17.
One simply cannot reconcile a finding upholding the violation alleged in Order No.
9036922, that the ribs were not supported or otherwise controlled, as the Court has done, with a
finding that the preshift exam requirement was somehow met in Order No. 9036924. Although
both violations are upheld, the Court has a similar take on the negligence and gravity elements.
Accordingly, it is similarly found that the gravity was between reasonably likely and highly
likely, that any injuries would, most likely, involve lost workdays or restricted duty and, less
likely, permanently disabling ones. While the S&S finding is upheld, the diminished expected
injury evaluation impacts the reasonably serious injury aspect of that finding. Similarly, the
negligence, in the Court’s estimation, falls between moderate and high. Applying the analysis
used in former order No. 9036922, and the Court’s conclusion that Benjamin was credible, the
Court finds that there was not an unwarrantable failure regarding this Order and therefore it is
modified to a section 104(a) citation.
The Court considers this Order, No. 9036924, to be inextricably related with associated
Order No. 9036922. These two violations took the majority of the time during the three days of
hearing testimony. As set forth above, the Court concluded that the preshift exam should have

40 FMSHRC Page 150

noted some of the conditions, and some of the ribs which were not scaled should have been, but
the mud seam’s presence complicated both the exam and the scaling because a rib might not
need attention at a given time, but would need scaling later, as the seam dried out. There was
also an honest difference of opinion about the rib conditions. No doubt some ribs should’ve been
acted upon without delay but other conditions, based upon the credible testimony of several of
the Respondent’s witnesses, involved flaking and small amounts of material, baseball or football
sized, and therefore it was questionable whether there was a failure to control the ribs in those
instances. At least it may be said that there was enough credible testimony to question whether
the unwarrantable failure allegations were established and the Court so finds those designations
were not demonstrated under the required burden of proof.
Accordingly, the Court, applying the statutory criteria, finds a civil penalty of
$30,000.00 to be appropriate and it therefore imposes that sum for the violation.
It is noted that the two related Orders total $60,000.00 and therefore represent a
considerable, but appropriate, penalty.
Summary
Docket No. LAKE 2016-0269
Order No. 9036922 is assessed a civil penalty of $30,000.00 and the unwarrantable failure
designation is removed. Accordingly, the section 104(d)(2) order is modified to a section
104(a) citation.
Order No. 9036663 is assessed a civil penalty of $10,000.00
Total penalty assessed for Docket No. LAKE 2016-0269: $40,000.00
Docket No. LAKE 2016-0232
Order No. 9036654 is assessed a civil penalty of $1,000.00
Order No. 9036656 is assessed a civil penalty of $500.00
Order No. 9036657 is assessed a civil penalty of $1,000.00
Order No. 9036658 is assessed a civil penalty of $2,500.00
Order No. 9036924 is assessed a civil penalty of $30,000.00
Total penalty assessed for Docket No. LAKE 2016-0232: $35,000.00
It is ORDERED that, as they lack unwarrantability, Order Nos. 9036654, 9036656,
9036657, 9036658 and 9036924 each be modified to Section 104(a) citations.

40 FMSHRC Page 151

It is further ORDERED that, within 30 days of this order: for Docket No. LAKE
2016-0269, Respondent pay a penalty of $40,000.00 and, for Docket No. LAKE 2016-0232,
Respondent pay a penalty of $35,000.00.
Upon receipt of the total payment in the sum of $75,000.00 for these two dockets,
this case is DISMISSED.

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

Distribution:
Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Ave, Suite
1500 Pittsburgh, PA 15222
Daniel Colbert, Esq., Office of the Solicitor, U.S. Department of Labor, Mine Safety and Health
Div., 201 12th Street South – Suite 401, Arlington, VA 22202-5450
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

40 FMSHRC Page 152

APPENDIX
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

January 26, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2016-0268
A.C. No. 12-02295-406669

PEABODY MIDWEST MINING, LLC,
Respondent.

Mine: Francisco Underground Pit

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 parties have filed a joint
motion to approve settlement. The originally assessed amount was $37,420.00, and the proposed
settlement is for $20,000.00. The parties also request that Citation Nos. 9036190 and 9036926 be
modified, as indicated 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.
The settlement amounts are as follows:
Citation No.
9036184
9036190
9036926

Assessment
$1,111.00
$1,657.00
$34,652.00

Settlement Amount
$1,111.00
$1,200.00
$17,689.00

TOTAL:

$37,420.00

$20,000.00

The parties present the following bases for the proposed reductions and modifications in
this case:
Regarding Citation No. 9036190, which alleged a violation of 30 C.F.R. § 75.601-1:
At hearing, Respondent would present evidence that the inspector over evaluated
the gravity associated with this violation. Respondent contends that this was a

40 FMSHRC Page 153

shielded cable. The shielded cable lessens the likelihood of a phase to phase short
circuit. Furthermore, the condition was only found on one machine. It is unlikely
that six people would be injured by this one trailing cable. Therefore, Respondent
requests that the Secretary change the likelihood to unlikely, remove the
significant and substantial designation, lower the number of persons affected to 2,
and reduce the civil penalty.
The Secretary, in reply to the Respondent's statements and contentions, states that
he recognizes that they raise factual and legal issues which can only be resolved
by a hearing before the Commission or by the parties reaching a compromise of
the penalty proposed by the Secretary or by a modification of the characterization
of the citation to reflect a lower level of gravity or negligence or both. The
Secretary is willing to agree to modify the number of persons affected to 2 and to
accept a reduced penalty.
Regarding Citation No. 9036926, which alleged a violation of 30 C.F.R. § 75.223(a)(1):
At hearing, Respondent would present evidence that the violation should be
vacated. The operator was following the procedures to address roof plan
inadequacies provided in the MSHA Policy Handbook. On April 9, 2014, the
operator updated the roof plan and this plan was approved by the District
Manager. On May 7, 2014, the District approved the operator's plan revision to
address changes in the red zone. On September 15, 2014, the District approved
the operator's new portal development as a supplement to the plan. On May 1,
2015, the District approved an action plan to recover a battery and charger. On
June 3, 2015, the District approved a plan revision to address additional support in
sandstone areas. On July 31, 2015, the District approved a plan supplement to
address 3SE Main Portal development. On August 3, 2015, the District approved
an action plan for a roof fall. On December 22, 2014, the District approved a plan
revision in response to a roof fall and 103(k) requirements. This revision included
language for encountering adverse roof conditions. The mine's history of updating
the plan demonstrates that it actively proposed revisions when conditions changed
underground in the mine. Therefore, Respondent requests that the Secretary
vacate this violation.
The Secretary, in reply to the Respondent's statements and contentions, states that
he recognizes that they raise factual and legal issues which can only be resolved
by a hearing before the Commission or by the parties reaching a compromise of
the penalty proposed by the Secretary or by a modification of the characterization
of the citation to reflect a lower level of gravity or negligence or both. The
Secretary is willing to agree to modify the citation to “reasonably likely,” to
modify the citation to “moderate negligence,” and to accept a reduced penalty.
WHEREFORE, the motion for approval of settlement is GRANTED.

40 FMSHRC Page 154

It is ORDERED that Citation No. 9036190 be MODIFIED from six to two persons
affected.
It is ORDERED that Citation No. 9036926 be MODIFIED from “highly likely”
“reasonably likely” and from high to moderate negligence.
It is further ORDERED that Respondent pay a penalty of $20,000.00 within 30 days of
this order.51 Upon receipt of payment, this case is DISMISSED.

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

Distribution:
Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Ave, Suite
1500 Pittsburgh, PA 15222
Paige I. Bernick, Esq., Office of the Solicitor, U.S. Department of Labor 211 7th Avenue North,
Suite 420, Nashville, Tennessee 37219-1823

51

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

40 FMSHRC Page 155

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

February 1, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 2017-134-M
A.C. No. 42-00410-423470
Beck Street South

STAKER & PARSON COMPANIES,
Respondent
DECISION
Appearances:

Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado for Petitioner;
M. Craig Hall, Esq., and F. Xavier Balderas, Esq., Oldcastle Law Group,
Atlanta, Georgia for Respondent.

Before:

Judge Manning

This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Staker & Parson Companies (“Staker”) pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties
presented testimony and documentary evidence at a hearing held in Salt Lake City, Utah, and
filed post-hearing briefs. Two section 104(a) citations were adjudicated at the hearing. Staker
operated the Beck Street South mine, a sand and gravel pit in Salt Lake County, Utah.
The two citations at issue stem from a fatal accident on March 8, 2016 in which a haul
truck driver was killed when his truck traveled through a berm, down an embankment and into a
partially flooded pit. For reasons set forth below, I VACATE Citation No. 8942613 and
MODIFY Citation No. 8942614 to low negligence. Although I have not included a detailed
summary of all evidence or each argument raised, I have fully considered all the evidence and
arguments.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
The Beck Street South Mine is a single bench sand and gravel operation. Tr. 25. At the
time of the fatal accident mine personnel were removing waste material from one area, loading
the material into haul trucks, transporting the material to a dump site, and dumping the material
into a pit. Tr. 25, 179. The designated dump site was at the top of an 80 foot embankment
between two large piles of material. Tr. 28, 47; PX-15 p. 7. A berm was maintained along the

40 FMSHRC Page 156

top edge of the embankment. Tr. 29. The purpose of the berm was to indicate the edge of the
highwall and prevent a truck from backing close to the dropoff. Tr. 94, 122. The berm was 44
inches tall and 14 feet wide at its base. Tr. 29, 34-35. The dumping process involved the haul
truck operator driving the truck into the dump site area with the berm at the top of the
embankment on his left side, making a right turn such that the right-hand side pile of the two
large piles of material could be seen in the haul truck’s left side mirror, backing the truck into the
area between the two large piles of material, and then dumping the truck’s load between the two
piles just short of the berm.1 Tr. 27-31, 34-35, 181. The two piles of material (the “guide piles”)
directed the truck drivers to the correct dumping location but the berm also continued to the right
well beyond the second guide pile. After dumping his load, the operator would lower his truck’s
bed and return for another load. Tr. 31-32.
On March 8, 2016, a fatal accident occurred when a haul truck driven by 54 year old
Blaine Linck traveled through a berm, down the 80 foot tall embankment, and into 14 feet of
water at the bottom of the pit. Tr. 20-21, 24-25. Linck drowned as a result of the accident.2 Tr.
54. Jory Argyle3, the mine’s safety manager at the time of the accident, timely reported the
accident to MSHA. Tr. 22.
MSHA Inspector Joe Summers4 was assigned to lead the investigation of the fatality. Tr.
20-21, 24. As the lead investigator he coordinated with two other MSHA employees, Ron
Medina5, from MSHA’s Technical Services, and Kent Norton, from MSHA’s Educational, Field
and Small Mine Services. Tr. 25
1

The haul truck operators dumped their loads away from the edge and berm. Tr. 32, 181.
Staker had a policy that the trucks were not to hit or disturb the berms at any time. Tr. 194. Once
the dumpsite between the two piles became full, a front loader would do a cleanup of the area by
pushing the dumped loads over the embankment before ensuring that there was a new berm at
the edge. Tr. 32-33.
2

The autopsy confirmed drowning as the cause of death. Tr. 58-59.

3

Argyle has been with Staker for twelve and a half years and has experience in the
mining and road construction industries. Tr. 199. As the mine safety and health manager he was
responsible for oversight of training over a broader area than just this mine and provided service
to the mine on an as needed basis. Tr. 200, 212.
4

Inspector Summers has been with MSHA for 12 years and conducted upwards of 400
metal/non-metal inspections. Tr. 17-18. He is a certified accident investigator and is trained to
reconstruct the scene of an accident. Tr. 18, 119. However, he is not trained on how to analyze
and draw conclusions based on disturbances of the earth to reconstruct accidents. Tr. 170. Prior
to his time with MSHA, he worked at various mines operating equipment, including haul trucks
similar in size and power to the one driven by Linck. Tr. 18-19.
5

Medina is a member of MSHA’s technical support department and specializes in
equipment and components found on vehicles. He is not a MSHA inspector. Summers testified
that MSHA ultimately determined that the truck did not contain any defects that contributed to
(continued…)

40 FMSHRC Page 157

Inspector Summers traveled to the mine on March 9, the day after the accident, and met
with a group of management officials from Staker. Tr. 40. Over the following weeks the
investigation team took photographs and measurements, gathered documents, tested a similar
truck, and interviewed employees of the mine. Tr. 41-43, 121.
During interviews, Inspector Summers learned that Linck began his shift at 4:00 PM and
mine personnel noticed that the truck went missing at approximately 10:56 PM. Tr. 125. When
the truck went missing, Neilo Taylor, the mine foreman, instructed mine personnel to cease
operations and locate the truck. Tr. 56, 126. Clint Leek, the loader operator, went to the edge of
the dump site, looked over, saw headlights from the truck in the pond below, and called in the
accident over the radio. Tr. 56. Taylor, in response, went to the pit and swam to the truck where
he found Linck deceased in the operator station face down in the water. Tr. 57, 108. The
operable seatbelt for Linck was not secured. Tr. 108.
Inspector Summers testified that, during his time with MSHA, he has never heard of a
situation where a seatbelt unlatches as a result of an accident. Tr. 109-110. Inspector Summers
stated that Linck could have taken his seatbelt off at any time the evening of the accident and
Staker would not have known. Tr. 110.
Inspector Summers testified that, based on records obtained and reviewed by Norton,6
Staker’s task training, training plan, and examinations relevant to the subject truck were all in
order.7 Tr. 54, 81. Further, the MSHA investigative team performed tests on the haul truck and
determined that no defects were found with the braking system, backup camera, throttle, pressure
in the steering system, or the safety system designed to prevent the truck from backing up while
the bed was raised.8 Tr. 79-81. In addition, the seatbelt in the truck, when tested multiple times,
5

(…continued)
the accident. Medina did not testify at hearing, but did provide deposition testimony during
discovery. While Medina offered deposition testimony with regard to other topics beyond the
issue of whether the truck was a contributing factor, I decline to take that testimony into
consideration given the court’s inability to weigh his credibility.
6

At hearing Respondent alleged that the Secretary had failed to produce Kent Norton for
deposition and moved the court to infer that Norton’s testimony would have been adverse to the
Secretary. However, as the Secretary noted, Norton retired during this litigation and was no
longer employed by MSHA. Although previous counsel for the Secretary indicated that he would
attempt to produce Norton for deposition, current counsel for the Secretary informed counsel for
the Respondent that he would not do so and Respondent made no attempt to obtain a subpoena
for Norton’s deposition testimony. Accordingly, I decline to apply the severe sanction of an
adverse inference. Respondent’s motion is DENIED.
7

Summers testified that, while records indicate that proper pre and post-operational
checks of the truck were done before Linck operated it, the pre-operational check documentation
filled out by Linck was destroyed by water. Tr. 81.
8

Testing of the actual steering was impossible due to damage to the front left of the
truck. Tr. 80.

40 FMSHRC Page 158

functioned as designed and was properly certified. Tr. 81-82, 110. MSHA determined that the
condition of the truck was not a contributing factor to the accident.9 Tr. 83, 156-158.
Based on his observations and other evidence collected, Inspector Summers determined
that Linck drove beyond the two guide piles rather than backing up between the piles where he
was required to dump the rock. The inspector believes that Linck’s truck, while in reverse,
overtraveled the 44 inch high berm to the right side of the pile marking the right edge of the
dump site, tumbled down the 80 foot embankment,10 landed right side up facing the opposite
direction in 14 feet of water, causing Linck to drown. Tr. 28-29, 44-45, 58-59; PX-15 p. 1, 3, 5;
PX-16 p. 2.11 Inspector Summers agreed that, while it was dark out at the time of the accident,
the lack of lighting in the area was not a contributing factor to the accident. Tr. 115-117.
Inspector Summers observed tracks and rubber from the tires on the rocks in the area where the
truck traveled through the berm. Tr. 59, 62; PX-15 p. 2. Based on this evidence, he theorized that
Linck had pulled up to the berm, felt resistance, pressed the accelerator, which spun the tires and
left rubber behind, powered through the berm, and traveled down the embankment into the pond
80 feet below.12 Tr. 59-62, 152-153, 156. He explained that, while berms can retard the progress
of a haul truck, they are designed to warn the driver and cannot stop a truck from going through
them. Tr. 94, 122-124. Damage to the operator’s station, front of the vehicle, rock guard above
the cab, mirrors, walkways, handrails and access ladder on the truck indicated to Inspector
Summers that the truck suffered a significant impact. Tr. 48-50, 142, 149; PX- 16 p. 4. The cab
itself was beaten up, but intact. Tr. 110.
9

Although the truck was equipped with a proximity detector to provide information
regarding materials behind the truck, it could not be tested because it had been submerged in
water as a result of the accident. Tr. 147-148.
10

Summers provided detailed testimony as to why he believed the truck traveled
backward through the berm and how it traveled down the embankment. Tr. 64-79, 130-144; PX15 p. 12-14. However, he conceded there was no way to know if the truck was going forwards or
backwards when it went through the berm. Tr. 130, 171. Matt Wilson, a Staker witness, also
believed that the truck was traveling in reverse when it went over the berm. Tr. 193-194.
Although it is possible Summers correctly discerned the exact sequence of events as to how the
truck tumbled down the embankment, I decline to credit that testimony given his lack of
expertise on the topic. Nevertheless, I find that the photographs of the indentations in the
embankment and the fact that the truck landed facing the opposite direction, establish that the
truck was violently tossed around as it travelled down the embankment and likely rolled.
11

Summers testified about and marked an aerial photo of the subject area. PX-12 p. 2.
The photo was taken by Staker personnel using a drone. Tr. 36. At hearing, Summers used pink
marker to show the road that the trucks travel into the dump site area, blue marker to show the
designated dump site, green marker to show where Linck went through the berm outside of the
designated dumpsite and down the embankment, and yellow marker to indicate where the truck
ultimately came to rest at the bottom of the embankment in the pond. Tr. 35-39.
12

On cross-examination Summers conceded that he was not capable of calculating the
speed that the truck was traveling at the time, nor is he trained to conduct an analysis of what
kind of force was required to damage the front of the truck and the attached ladders. Tr. 120-121.

40 FMSHRC Page 159

While the cause of death was ultimately determined by the coroner to be drowning, Linck
also suffered lacerations, abrasions and contusions to his body. Tr. 102-103; PX-13. Inspector
Summers agreed that that these types of injuries are what one would expect a haul truck driver to
suffer in an accident of this type. Tr. 102-103. The coroner’s report indicated that
pharmaceuticals, including antidepressants were found in Linck’s system. Tr. 104, PX-13.
At the time of the accident Linck had been operating haul trucks at the mine for
approximately four months. Tr. 55, 154, 175, 182. Inspector Summers confirmed that Linck’s
training, including his task training for operating the truck, was up to date and no deficiencies
were noted. Tr. 55-56. Moreover, he agreed that Linck was properly trained by Staker to wear a
seatbelt and taking the belt off at any time would have been contrary to his training. Tr. 111.
Inspector Summers also learned that Linck had recently been diagnosed with type 2 diabetes and
was going through a divorce. Tr. 160. However, these factors did not influence Summers’
conclusions. Tr. 160.
During interviews, Inspector Summers learned that, approximately an hour prior to the
fatal accident, Linck had been involved in an incident when the haul truck he was driving struck
a berm on the haul road while on his way to the dump site. Tr. 85, 87-89, 100, 104-105.
Although mine personnel asked Linck if he and the truck were okay, to which Linck responded
“yes,” nothing else was done. Tr. 86. 105. Matt Wilson,13 the mine’s foreman, who was not on
site when the berm brush incident occurred, confirmed that mine personnel made contact with
Linck after the incident and that Taylor felt that it was okay to allow Linck to continue working.
Tr. 185.
Wilson testified that, with regard to the chain of command, Linck reported to Neilo
Taylor who in turn reported to Wilson. Tr. 175. He averred that Linck was a model employee
who had worked at the mine for four months, dumping in the same area, without any issues. Tr.
175, 183, 187-188. His driving skills were carefully monitored during his first month of driving
to make sure he could safely perform the job. Argyle admitted that Linck was no longer
permitted to drive a vehicle on public highways on behalf of Staker because his driver’s license
had been revoked the day prior to the accident.14 Tr. 215-216. At some point after the fatal
accident Wilson learned from Linck’s family that Linck suffered from diabetes and was going
through a nasty divorce. Tr. 192. Prior to that Staker had no knowledge of any health concerns
with Linck. Tr. 191. Wilson explained that he was involved in the accident investigation and
believed that the accident may have been an intentional act because Linck was a well-trained and
competent truck operator, Linck’s son told Wilson that he thought his father did it on purpose,
and Linck was on medication with potential side effects such as blurred vision, mood and mental
13

Wilson started working at Staker in 1999. Tr. 173. He has worked as a laborer, road
crew foreman, and was a quarry foreman at the time of the accident. Tr. 173-174.
14

Argyle testified that Linck’s loss of his license had no bearing on his ability to lawfully
operate a haul truck on the mine property. Tr. 217. Had Staker been aware of the moving
violations that resulted in the revocation of Linck’s license, it would have taken it into account.
Tr. 214. However, he explained that the operation of a haul truck is vastly different from a
personal vehicle and haul truck operators are subject to driving tests, evaluations, and continuous
monitoring by peers. Tr. 214-215.

40 FMSHRC Page 160

changes, and suicidal thoughts. Tr. 186-187, 192-193, 210; RX-25 and 26. Moreover, Wilson
believed that it would have taken a serious and intentional effort on Linck’s part to get through
or over the berm. Staker built a berm of the same size on level ground to see how difficult it
would be to travel over the berm.15 Tr. 193-194. He agreed that the rubber and ruts on the ground
near the berm indicate that the truck’s accelerator had been pressed all the way down. Tr. 191.
Wilson explained that the mine conducts daily inspections and safety meetings. Tr. 183184. Argyle testified that Staker maintains an employee driven safety culture, as evidenced by
completed initial and refresher training, risk assessment tools utilized by the employees and
weekly “toolbox talks” to discuss different safety processes and ensure that the employees are
“constantly staying on top of any outcoming processes or procedures.” Tr. 201-202.
Wilson explained that Staker’s seatbelt policy requires operators to wear seatbelts,16
equipment operators are trained on the policy, and employees are not allowed to operate
equipment until they have shown they can do so correctly. Tr. 177. Argyle testified that,
although the policy had been violated in the past, no citations had ever been issued and
appropriate disciplinary action had been taken. Tr. 199, 211-212. According to Wilson, Linck
always wore his seatbelt, was a safe driver, was properly trained on the equipment, as evidenced
by the certificate of training,17 and never had any disciplinary problems at the mine. Tr. 177-180;
RX-20.
Citation No. 8942614
Citation No. 8942614, issued under section 104(a) of the Mine Act on April 26, 2016,
alleges a violation of Section 56.9101 of the Secretary’s safety standards and asserts that the haul
truck driver failed to maintain control of the haul truck when the vehicle traveled through a berm
and off a dump site into a partially flooded pit. The citation further alleges that there were no
signs of evasive or corrective actions taken by the driver to maintain control of the truck. Section
56.9101 requires that “[o]perators of self-propelled mobile equipment shall maintain control of
the equipment while it is in motion. Operating speeds shall be consistent with conditions of
15

Wilson testified that Staker conducted two tests in which an operator drove an identical
truck into a simulated berm. Tr. 188. The berm was constructed to the same measurements as the
berm Linck’s truck went through. Tr.189. During the first test, for which MSHA personnel were
present, the truck stopped when it ran into the berm at the required low speed. Tr. 189-190, 195.
Summers confirmed that the test revealed a berm would be minimally disturbed if it were struck
by a truck. Tr. 59. During the second test, when MSHA was not present, the truck was unable to
breach the berm in reverse even while traveling at a higher speed. Tr. 190.
16

The haul trucks are equipped with orange seatbelt straps so it is easy to see from
outside of the cab whether an operator is wearing it. Tr. 177-178, 203.
17

Wilson said that 40 hours of training was provided, after which equipment operators
must sit down with Wilson and go over safety procedures until Wilson feels that they are safe to
run the equipment, at which point the operator signs the certificate of training and keeps a copy
in their wallet. Tr. 180

40 FMSHRC Page 161

roadways, tracks, grades, clearance, visibility, and traffic, and the type of equipment used.” 30
C.F.R. § 56.9101.
Inspector Summers determined that a fatal injury had occurred, the condition was S&S,
affected one person, and was the result of Respondent’s moderate negligence. The Secretary
proposed a penalty of $3,876.00 for this alleged violation,
Inspector Summers testified that he determined the standard had been violated because
Linck deviated from normal procedures, he was not aware of the surroundings and he backed up
into an area outside of the designated dump site and powered through the berm. Tr. 90. As a
result, he did not have full control of the truck. Tr. 89-90. He explained that, in order to be in
control of the truck the operator must be trained and know the operating conditions (i.e., the load,
the surroundings, what equipment and personnel are in the area, and where and how you are
going to dump). Tr. 91-92. Because Linck did not have control while the truck powered through
the berm, which required a significant amount of force, Inspector Summers determined there was
a violation of the standard. Tr. 92-94. Moreover, he explained that because it required a
significant amount of force to get through the berm, he did not believe the operating speed that
Linck’s truck was traveling was consistent with the condition of the roadway and grade. Tr. 9495.
Inspector Summers testified that it does not matter why Linck failed to maintain control
and stated that even if Linck had been mistaken about his location, was suffering from a medical
condition that caused him to lose control, was on medications that affected his knowledge of the
surroundings, or accidentally stepped on the accelerator instead of the brake, he nevertheless
failed to maintain control, thereby violating the standard. Tr. 98-100, 155-156. Moreover, he
noted that while he could not be sure if Linck intentionally tried to power over the berm, intent is
not a factor to consider when determining whether there was a violation. Tr. 153-154, 61.
I find that the Secretary has proven a violation of the cited standard. The cited standard
requires that equipment operators maintain control of the equipment. Respondent argues that in
order “[f]or the Secretary to meet its evidentiary burden it must prove by a preponderance of the
evidence that Linck’s failure to maintain control of the Vehicle was the only plausible cause of
the Accident.” Staker Br. 16. I disagree. I must determine whether Staker violated the safety
standard not whether the violation caused the accident. Given the strict liability nature of the
Mine Act, whether Linck purposefully powered through the berm or accidently did so is not
dispositive. The Commission, in Daanen v. Janssen, Inc., 20 FMSHRC 189, 196 (Mar. 1998)
confirmed that the “reasons for a loss of control are irrelevant to consideration of whether control
over moving equipment was maintained.” Rather, in order to sustain a violation the Secretary
need only prove that Linck lost control of the truck at some point. Even if I were to assume that
Linck intentionally drove through the berm, thereby “controlling” the vehicle as it powered
through the material, there can be no question that he was not in control of the vehicle as it
tumbled down the embankment. Moreover, it is clear that, in powering through the berm outside
of the designated dumping area Linck was not following the mine’s proscribed dumping and
truck handling procedures, which call for the truck operator to dump between the two large guide
piles and not make contact with a berm. Accordingly, I find that Linck did not maintain control
of the truck.

40 FMSHRC Page 162

Notwithstanding the above analysis, I would also find a violation under the second part of
the cited standard, which requires that the truck be operated at a speed consistent with conditions
of the area. In order for the truck to have powered through the berm it had to have been traveling
at a very high rate of speed. Wilson agreed that the rubber and ruts on the ground near the berm
that the truck went through were evidence that the truck’s accelerator had been pressed all the
way down. Tr. 191. Moreover, the low speed testing conducted by Staker with MSHA present as
well as the subsequent higher speed testing make clear that the truck must have been traveling at
an exceptionally high rate of speed in order to break through or travel over the berm. Because the
truck was clearly operating at a speed in excess of that which was appropriate, I find that a
violation has also been proven under the second part of the standard.
Gravity and S&S
A S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). In
order to establish the S&S nature of a violation, the Secretary must prove “(1) the underlying
violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a measure of
danger to safety - contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek
Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria). An experienced MSHA inspector’s opinion that a
violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1278-79 (Dec. 1998).
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 2473, 2475 (Oct. 2016)
(citing Newtown Energy Inc., 38 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 2475-2476. This determination
must be made “based on the particular facts surrounding the violation[.]” Id. The third step then
requires the judge to assume the existence of a hazard and assess whether the hazard “was
reasonably likely to result in serious injury.” Newtown at 2038; ICG Illinois at 2476.
The “reasonably likely” provision does not require the Secretary to prove that an injury
was “more probable than not.” U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). In
addition, the “Secretary need not prove a reasonable likelihood that the violation itself will cause
injury” but, rather, that the hazard contributed to by the violation is reasonably likely to cause an
injury. Musser Engineering, Inc. and PBS Coals Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010)
(emphasis added); Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct. 2011).
Inspector Summers designated the citation as S&S because the failure to maintain control
of the truck could cause a crash that would result in serious and potentially fatal injuries such as,
bruising, contusions, broken bones, and internal injuries to both the driver and others in the area.
Tr. 100-101. He noted that the medical examiner’s report, while indicating drowning as the cause

40 FMSHRC Page 163

of death, also referenced lacerations, abrasions and contusions on Linck’s body. Tr. 102-103.
Inspector Summers characterized the injuries as blunt force type injuries that would be expected
on a haul truck driver when they have an accident. Tr. 104.
I find that the violation was S&S. I have already found that a violation existed. Here, the
hazard to which the violation allegedly contributes is a crash or other accident that results from
failure to maintain control of the truck. Assuming that control of the truck is lost, as it was here,
a multi-ton vehicle tumbling out of control down an 80 foot embankment into a 14 foot deep
pond is reasonably likely to result in very serious injuries. Consequently, I find that the violation
was S&S and the gravity was high.
Negligence
Inspector Summers designated the citation as being the result of Staker’s moderate
negligence. Tr. 106. He noted that while Linck was properly trained and knew how to operate the
truck, Staker management did not take action to ascertain whether Linck was physically and
mentally capable of operating the truck, or on any medication that might impair his driving, after
he brushed against the berm earlier in the shift. Tr. 105-106, 161. On cross-examination
Summers agreed that Staker did everything right with regard to training, equipment maintenance,
and testing. Tr. 127-129. Moreover, Inspector Summers agreed that Staker prohibited trucks
from coming into contact with a berm. Tr. 154-155.
Negligence is not defined in the Mine Act. The Commission determines negligence under
a traditional analysis rather than relying on the Secretary's regulations at 30 C.F.R. § 100.3(d).
Mach Mining, LLC v. Sec'y of Labor, 809 F.3d 1259, 1264 (D.C. Cir. 2016) (quoting Brody
Mining, 37 FMSHRC 1687, 1702 (Aug. 2015)). Each mandatory standard carries a requisite duty
of care. Id. In making a negligence determination, the Commission takes into account the
relevant facts, the protective purpose of the regulation, and what actions would be taken by a
reasonably prudent person familiar with the mining industry. Id. In evaluating these factors, the
negligence determination is based on the "totality of the circumstances holistically" and may
include other mitigating circumstances unique to the violation. Id. (quoting Brody Mining, 37
FMSHRC at 1703).
I find that Respondent exhibited only very low negligence. Inspector Summers agreed
that Linck was properly trained, the condition of the truck was not a contributing factor, and
Staker’s training and safety policies were good. However, I find that Staker management’s
failure to conduct even a cursory investigation of the berm brushing incident prior to the fatal
accident nevertheless warrants a finding of at least some negligence. Rather than conduct a brief
investigation, Staker personnel instead only asked Linck if he and the truck were okay. Although
the berm brush event was rather inconsequential, at the very least it put Staker on notice that
Linck had failed to comply with one of Staker’s own internal safety policies to never come in
contact with a berm and also on notice that Linck might not have been in condition to drive that
night. Citation No. 8942614 is MODIFIED to low negligence. I find that a penalty of $1,000 is
appropriate.

40 FMSHRC Page 164

Citation No. 8942613
Citation No. 8942613, issued under section 104(a) of the Mine Act on April 26, 2016,
alleges a violation of Section 56.14131(a) of the Secretary’s safety standards and asserts that the
haul truck driver was not wearing a seatbelt at the time of the accident. Section 56.14131(a)
requires that “[s]eat belts shall be provided and worn in haulage trucks.” 30 C.F.R. §
56.14131(a).
Inspector Summers determined that a fatal injury had occurred, the condition affected one
person and was S&S, and was the result of Respondent’s moderate negligence. The Secretary
proposed a penalty of $3,876.00 for this alleged violation.
Inspector Summers testified that the standard was violated because Linck was found
without his seatbelt on, floating face down in the water. Tr. 108. He explained that the standard
requires that belts be worn at all times when in haulage trucks. Tr. 110. On cross-examination he
agreed that it would have gone against Linck’s training for him to have not worn his seatbelt. Tr.
164.
In order for the Secretary to establish a violation of the cited standard he must prove by a
preponderance of the evidence that Linck was not wearing his seatbelt while operating the haul
truck. Respondent asserts, and I agree, that the Secretary has failed to establish that the Linck
was not wearing his seatbelt while operating the haul truck. While there is no dispute that when
Staker personnel found Linck’s body he was not wearing a seatbelt, there were no witnesses to
the accident, and the evidence before me is far from conclusive as to when Linck detached his
seatbelt. The Secretary asks the court to infer, based on indirect evidence, that Linck was not
wearing his seatbelt while operating the truck. I decline to do so for two reasons.
First, I credit Wilson and Argyle’s testimony that Linck was well trained in the use of his
seatbelt, Staker enforced its seatbelt policy, and Linck had never been seen operating a vehicle
without wearing a seatbelt. Moreover, Inspector Summers agreed that Linck was properly trained
by Staker to wear a seatbelt and taking the belt off at any time would have been contrary to his
training.
Second, the physical evidence suggests that Linck may have in fact been wearing his
seatbelt while the truck fell down the embankment. Inspector Summers testified that, although
Linck was found face down with his head in the water towards the passenger side, he was
nevertheless still in the operator station of the truck. Had Linck not been wearing his seatbelt, I
find it less than likely that he would have been in the position in which he was found, especially
given that windows of the operator station had broken out, and the truck had clearly been
violently tossed about and likely rolled, as it tumbled down the embankment. Moreover, I agree
with Respondent that the medical conclusions documented in the autopsy report do not seem to
support the Secretary’s theory that Linck was unbuckled during the accident sequence. Staker Br.
13-14. The report documents lacerations to the head and superficial blunt force injuries to the

40 FMSHRC Page 165

torso and extremities. Notably, no broken bones or internal injuries were found.18 Had Linck
been unbuckled during such a violent tumble down the embankment, it is likely he would have
sustained greater injuries. Given the above analysis, I find that it is just as likely that Linck
unlatched the seatbelt when the truck came to rest at the bottom of the pit or just prior to that
time. Consequently, I find that the Secretary has failed to meet his burden of proof. Citation No.
8942613 is VACATED.
II. APPROPRIATE CIVIL PENALTY
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. 30 U.S.C. § 820(i). According to MSHA’s website Staker worked
approximately 40,000 hours during 2015 and during 2016, which correlates with a small to
medium size operator. 30 C.F.R. § 100.3 Table III; Exhibit A to Penalty Petition. Exhibit A to the
penalty petition indicates that Staker’s controller worked over 7,000,000 hours, which correlates
with a large controller. 30 C.F.R. § 100.3 Table IV. Respondent has not argued that the penalty
will affect its ability to remain in business. Respondent’s violation history indicates four 104(a)
citations, only one of which was designated as S&S, in the 15 months preceding the issuance of
Citation No. 8942614. The gravity and negligence are discussed above. Citation No. 8942614
was timely abated. Based on the penalty criteria I assess a total penalty of $1,000.
III. ORDER
For reasons set forth above, Citation No. 8942613 is VACATED and Citation No.
8942614 is MODIFIED to low negligence. Staker & Parson Companies is ORDERED TO
PAY the Secretary of Labor the sum of $1,000 within 40 days of the date of this decision.19

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

18

Summers testified that broken bones and internal injuries would be expected in an
accident like this. The autopsy report concludes that these types of injuries were not present. This
evidence supports a conclusion that Linck was likely wearing his seatbelt as his truck tumbled
down the.
19

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

40 FMSHRC Page 166

Distribution:
Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd.,
Denver, CO 80204
M. Craig Hall, Esq. and F. Xavier Balderas, Esq, Oldcastle Law Group, 900 Ashwood Parkway,
Suite 700, Atlanta, GA 30338

40 FMSHRC Page 167

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

February 5, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDINGS
Docket No. SE 2017-0062
A.C. No. 31-00074-424547
Docket No. SE 2017-0063
A.C. No. 31-00074-424547

HANSON AGGREGATES
SOUTHEAST, LLC ,
Respondent.

Docket No. SE 2017-0137
A.C. No. 31-00074-433046
Docket No. SE 2017-0175-M
A.C. No. 31-00074-436078

Mine: Neverson Quarry
DECISION DENYING SETTLEMENT MOTION
Before: Judge Moran
Before the Court is the Secretary’s Joint Motion to Approve Settlement (“Motion”). The
Motion seeks a combined reduction for the four dockets from the Part 100 proposed figure of
$33,756 to $11,801, a 65% reduction overall. For the reasons which follow, the Motion must be
denied.
Most prominent among the alleged violations in these dockets is that a fatality was
involved. According to the Section 104(d)(1) Order, No. 8816532, issued November 2, 2016,
which is the lone matter in Docket No. SE 2017-0175-M, a haul truck operator died when the
truck he was operating (a CAT 773E Haul Truck S/N BDA01082) drifted across the haul road,
as he was descending the road’s 9% grade, and went over a 201 foot highwall, landing upside
down.1 The Order asserts that the truck operator did not maintain control of the truck while
traveling down the haul road and relates that there were no signs of evasive or corrective actions
taken by the truck operator to maintain control. The Order also states that “[m]anagement
engaged in aggravated conduct, constituting more than ordinary negligence by not ensuring that
the victim could operate the truck safely knowing that he had only a few hours of sleep the night
before. The violation is an unwarrantable failure to comply with a mandatory standard.”
1

For reasons which will become apparent, the alleged violations are not discussed
chronologically.

40 FMSHRC Page 168

Unsurprisingly, the Order was marked as S&S and with high negligence. The cited standard, 30
C.F.R. § 56.9101, titled, “Operating speeds and control of equipment,” provides that “[o]perators
of self-propelled mobile equipment shall maintain control of the equipment while it is in motion.
Operating speeds shall be consistent with conditions of roadways, tracks, grades, clearance,
visibility, and traffic, and the type of equipment used.”
Though discussed in more detail infra, it is noted that this Order, No. 8816532, was
regularly assessed (i.e. there was no special assessment) under 30 C.F. R. Part 100 at $12,075
and is proposed under the motion to be settled for $3,578, a 70.3% reduction.
Also issued that November day was a Section 104(d)(1) Order, No. 8816533, which is in
Docket No. SE 2017- 0137-M. It too is the only matter in that docket. The Order repeats a good
measure of the text from the Order just discussed above, No. 8816532, but adds that the “haul
truck operator was not wearing a seat belt and was ejected from the truck.” The Order then
asserts that “[m]anagement engaged in aggravated conduct, constituting more than ordinary
negligence by not ensuring the truck operators were wearing their seat belts and by not
correcting the altered state of harnesses in the haul trucks.” (emphasis added). The standard
cited in this Order, 30 C.F.R. § 56.14131(a), is titled “Seat belts for haulage trucks,” and
provides “Seat belts shall be provided and worn in haulage trucks.” As with Order No. 8816532,
this Order also asserts that the violation was an unwarrantable failure to comply with a
mandatory standard, and was marked as S&S and high negligence. As discussed further, infra,
No. 8816533 was regularly assessed under Part 100 at $13,417 and proposed to be settled for
$3,578, a 73.3% reduction.
The Court considers it to be significant that, less than two months before the fatalityrelated Orders described above were issued, MSHA cited Hanson Aggregates, on September 14,
2016, with two vehicle-related alleged violations, one of which involves a subject directly
associated with the fatality described above. These alleged violations are part of this decision
denying this settlement motion. From Docket No. SE 2017-0062, involved is a section 104(d)(1)
citation, No. 8910208, alleging a violation of 30 C.F.R. § 56.14131(b). As noted, that standard is
titled, “Seat belts for haulage trucks,” but in this instance the subsection cited provides that
“[s]eat belts shall be maintained in functional condition, and replaced when necessary to assure
proper performance.”
It is unclear if the identical haul truck involved in the fatality was cited, but it was the
same truck model, a CAT 773 E haul truck, identified as No. 652252. The (d)(1) citation states
that the “haul truck has a rag tied to both the lap and shoulder belt. This condition prevents its
automated mechanical retraction to function as designed and will not allow the seat belt to fit
firmly against the operator as intended by the manufacture [sic]. The seat belt in this truck has
been used in this manner for at least three years and does not provided [sic] protection to the
operator [adding, presciently] which could result in fatal injuries.” The citation concluded with
the statement that “[m]anagement has engaged in aggravated conduct constituting more than
ordinary negligence. This violation is an unwarrantable failure to comply with a mandatory
standard.” Citation No. 8910208. For this alleged violation, the proposed penalty was regularly
assessed under Part 100 at $2,398.00, while the motion seeks a penalty to $722.00, a 69.9%
reduction.

40 FMSHRC Page 169

Following that, issued on the same September 14, 2016 date, and also part of Docket No.
SE 2017-0062, was a 104(d)(1) order, No. 8910209, which order again invoked the same seat
belt subsection, 30 C.F.R. § 56.14131(b). In this instance another haul truck, also a CAT 769 D,
identified as No. 231508, was alleged to have the same rag arrangement tied to the lap and
shoulder belt. The Order makes the same assertions about the safety hindrances created by the
rag ties on the lap and shoulder belt and reaches the same conclusions about the length of time
the rag arrangement had been in use and that it constituted aggravated conduct beyond ordinary
negligence and was an unwarrantable failure to adhere to the standard. This alleged violation met
the same result; originally proposed at $2,665.00, the motion seeks to have it settled for $722.00,
representing a 72.9% reduction. 2
Armed with that background information, the Court reviewed the Secretary’s Motion.
Once past the Secretary’s customary boilerplate language that he has “evaluated the value of the
compromise, the likelihood of obtaining a better settlement … etc.” the Secretary presents empty

2

The Court has an issue with one of the two alleged violations within Docket No. SE
2017-0063, Citation No. 8910212, which alleges a violation of 30 C.F.R. § 46.7(a). The cited
standard is titled “New Task Training.” Subsection (a) provides “You must provide any miner
who is reassigned to a new task in which he or she has no previous work experience with training
in the health and safety aspects of the task to be assigned, including the safe work procedures of
such task, information about the physical and health hazards of chemicals in the miner's work
area, the protective measures a miner can take against these hazards, and the contents of the
mine's HazCom program. This training must be provided before the miner performs the new
task.”
The section 104(g)(1) citation alleges that four miners received their task training from a
person who did not meet “the requirements of a competent person capable of performing the
required task training.” For that citation the settlement retains the proposed penalty but reduces
the negligence from “High,” to “Moderate.” The motion relates, in part, that the Respondent
asserts that the records, though admittedly labeled as “Task Training,” were actually “an internal
company record of an annual observation by the quarry foreman.” Per usual, the Secretary offers
nothing in support of, nor even in reaction to, the Respondent’s claims. Instead, the Secretary
only offers its familiar, empty, response that “[w]hile not admitting the relevance or significance
of Respondent’s arguments, [he] agrees to modify the negligence to moderate and maintain the
original penalty of $803.00.” Motion at 6.
The Court has no issue with the other alleged violation in this docket, No. 8910210,
which is a section 104(a) citation alleging a violation of 30 C.F.R. §56.3130. That standard
requires that “[m]ining methods shall be used that will maintain wall, bank, and slope stability in
places where persons work or travel in performing their assigned tasks. When benching is
necessary, the width and height shall be based on the type of equipment used for cleaning of
benches or for scaling of walls, banks, and slopes.” The Citation alleges that the benches were
not sufficient to prevent falling material from reaching the roadway and work area below.
Assessed at $2,398.00, the Motion settles that citation for the amount proposed and with no
changes to the inspector’s evaluation.

40 FMSHRC Page 170

language in support the motion. Therefore, as the Motion fails to satisfy section 110(k) of the
Mine Act, it is rejected.
Discussion
Beginning with the fatality-related issuances, the Section 104(d)(1) Orders, Nos. 8816532
and 8816533, the Respondent contends that at a hearing, for Citation No. 8816532, the standard
requiring one to maintain control of equipment, “it would present evidence that it is likely that
the miner suffered a cardiac incident while operating the haul truck which might have caused
him to drift across the road and berm and fall 200 feet into the pit below. Respondent would also
argue that the symptoms of a cardiac incident may also account for his having removed his
seatbelt. Respondent would further argue that the miner was a properly trained, experienced haul
truck operator and that the physical evidence shows that the miner left the haul road suddenly
and there were no signs of corrective steering or breaking. Respondent would also offer evidence
to show that the road and berms were in good condition, the weather played no role in the
incident, there were no other vehicles in the area, and the truck was in good operating condition.”
Motion at 6. (italics added). The Secretary endorses none of it, “not admitting the relevance or
significance of Respondent’s arguments.” Id. Yet, for reasons unknown, he “agrees to reduce the
negligence from high to moderate and reduce the penalty [by 73.3%] to $3,578.00.”
The Secretary’s vacuous responses to the Respondent’s assertions do not permit the
Commission to meet its Congressionally directed duty under Section 110(k) of the Mine Act.
The Secretary’s non-responses also fly in the face of his claims of “transparency” in settlement
motions. Apart from the lack of any response to the Respondent’s claims, as presented, those
claims amount to nothing more than speculation. In fact, those claims are speculation upon
speculation, as the Respondent, without supporting information, such as an autopsy report,
speculates further that a cardiac incident may also have caused the deceased miner to remove his
seat belt.
Though nearly unimaginable, the rationale offered up for Order No. 8816533, the seat
belt requirement and the duty to wear such belt, is less than that of just discussed Order No.
8816532, and it adds a mysterious aspect. The Motion repeats the Respondent’s claim that “the
miner likely suffered a cardiac while operating the haul truck which might have caused him to
remove his seat belt,” this time adding that “mine management had no reason to know the miner
was not wearing his seatbelt.” Motion at 7. Disconcertedly, given MSHA’s September 2016 twin
citations to the Respondent for the unsafe rag-ties on the lap and shoulder belt arrangement, as
discussed above, the Respondent asserts that the rags “did not interfere with the function of the
seatbelt.” Id.
The mysterious element is that the Motion inaccurately represents that “[t]he Order
further alleges that there was dirt on the latch plate of the seatbelt and when coupled with the
rags tied around the seatbelt that prevent retraction, indicate that the miner had not worn his
seatbelt for some length of time.” Id. (emphasis added). The Order only refers to the uncorrected
altered state of harnesses in the haul trucks; it makes no specific mention of rags tied around the
seatbelt and it makes no mention of the dirty seat belt latch plate. Thus, this had to come from
some other source, likely the inspector’s notes.

40 FMSHRC Page 171

To all of this the Secretary only robotically repeats “[w]hile not admitting the relevance
or significance of Respondent’s arguments, the Secretary agrees to reclassify the violation to a
104(a) S&S violation, reduce the negligence from high to moderate, and reduce the penalty [by
more than 73%] to $3,578.00.” Id.
Thus what has been presented here is a fatality, with very large settlement reductions,
coupled with citations issued before this fatality addressing the same seat belt concerns and all of
that with the absence of any substantive comment from the Secretary’s representative about the
Respondent’s facially speculative claims in support of the motion’s significant penalty
reductions. In addition, there is the unidentified reference to dirt on the seatbelt latch plate, and
the continued use of rags on the seatbelt.
Is the Court suggesting that no reductions could ever be justified for these violations?
Absolutely not. The point is that reductions must be explained and that the only information
offered in this instance is speculation from the mine operator and no useful information from the
Secretary.3 Given the recent history involving alterations to seat belts at this mine, the motion is
particularly troublesome.
It is any wonder that, in circumstances such as these, Congress created section 110(k) to
ensure that facially questionable settlements be explained to the Commission. The settlement
motion being denied, the parties are directed to participate in a conference call to set this matter
for a hearing. Further, the Secretary is directed to provide all of the inspector’s notes (Inspectors
Phillips and Caudill) for these citations/orders.
Accordingly, the Joint Motion to Approve Settlement and to Dismiss Civil Penalty
Proceeding is DENIED.
SO ORDERED.
/s/ William B. Moran
William B. Moran
Administrative Law Judge

3

Although the Court has, on occasion, in the context of a settlement motion, requested
that the Secretary provide the inspector’s notes and inquired whether the Secretary has conferred
with the issuing inspector, regarding claims in support of mitigation made by a mine operator,
often the Secretary has declined to provide the information. These reactions strike the Court as
odd because, as to the former, one would think that the Secretary would, in the name of
transparency, be eager to provide the notes. The same observation applies to the latter, as the
issuing inspector is the only individual for the Secretary with firsthand knowledge of the
violations. Therefore, it seems odd that the Secretary would be reluctant to inform that the
respondent’s contentions have been raised before the inspector. Unilateral acceptance of a
respondent’s claims would likely discourage inspectors from diligently performing their safety
and health inspections duties.

40 FMSHRC Page 172

Distribution:
Margaret S. Lopez
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1909 K Street, N.W., Suite 1000
Washington, D.C. 20006
Melanie L. Paul
U.S. Department of Labor
Office of the Solicitor
61 Forsyth St., SW Room 7T10
Atlanta, GA 30303

40 FMSHRC Page 173

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

February 7, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 2017-327-M
A.C. No. 05-04822-432228
Pueblo Plant & Quarry

GCC RIO GRANDE, INC.,
Respondent
ORDER ACCEPTING APPEARANCE
ORDER GRANTING SECRETARY’S MOTION FOR PARTIAL SUMMARY DECISION
ORDER DENYING RESPONDENT’S MOTION FOR PARTIAL SUMMARY DECISION
DECISION APPROVING PARTIAL SETTLEMENT
Before: Judge Manning
This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against GCC Rio Grande, Inc., (“GCC”) pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties settled
six of the seven citations included in the docket and filed simultaneous cross-motions for
summary decision to address the single remaining citation, Citation No. 8838556. For the
reasons set forth below, the Secretary’s Motion for Partial Summary Decision is GRANTED,
Respondent’s Motion for Partial Summary Decision is DENIED, and the Motion to Approve
Partial Settlement is GRANTED.
I. BACKGROUND FOR CITATION NO. 8838556
On January 5, 2017, MSHA Inspector Hanna Hurst issued Citation No. 8838556 to
Respondent under section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging a violation of
section 56.11003 of the Secretary’s safety standards. 30 C.F.R. § 56.11003. The citation states as
follows:
The ladder accessing the deck on the west side of the additives
grizzly had been damaged. The ladder and part of the handrail
connected to it had been hit with a loader, resulting in broken
welds and incorrect positioning of the ladder. Ladders shall be
maintained in good condition. A miner attempting to use this
ladder to access the deck would be exposed to slip, trip, and fall
hazards because the ladder is not straight. Various injuries could
occur.

40 FMSHRC Page 174

Inspector Hurst determined that it was unlikely an injury or illness would be sustained as
a result of the violation, but that any injury could reasonably be expected to result in lost
workdays or restricted duty. She determined that the violation was not of a significant and
substantial nature, would affect only one person, and was a result of Respondent’s low
negligence. The Secretary proposed a penalty of $116.00 for the alleged violation.
II. STIPULATED FACTS
The parties submitted joint stipulations along with their respective motions. The
stipulations are as follows:
1. GCC Rio Grande, Inc., owns and operates the Pueblo Plant & Quarry (the “Mine”), in
Pueblo County, Colorado.
2. The Pueblo Plant & Quarry is a “mine” as that term is defined by § 3(h) of the Federal
Mine Safety and Health Act of 1977.
3. The operation and products of the Mine affect commerce and the Mine is subject to the
Mine Act.
4. On January 5, 2017, Inspector Hanna Hurst performed a regular E01 Inspection of the
Mine.
5. Inspector Hurst issued Citation No. 8838556 to GCC on January 5, 2017, alleging a
violation of 30 C.F.R. § 56.11003. Exhibit B.
6. Citation No. 8838556 alleges that a loader damaged the ladder on the west side of the
additives grizzly, breaking welds and forcing the ladder into an incorrect position.
7. The ladder at issue is the only access to the west side of the additives grizzly.
8. Miners access the west side of the additives grizzly infrequently, only to clean spillage.
9. The ladder is only used to access the west side of the additives grizzly.
10. The cited ladder existed in the condition pictured in Exhibit C when Inspector Hurst
issued Citation No. 8838556.
11. Red danger tape was placed across the only access point to the ladder.
12. Both ends of the red danger tape were secure.
13. The red danger tape showed no signs of falling.
14. The red danger tape existed as pictured in Exhibit C when Inspector Hurst issued Citation
No. 8838556.
15. GCC’s Safety Handbook outlines its safety policy.
16. GCC trains and requires its miners to follow the requirements of its Safety Handbook.
17. GCC’s Safety Handbook includes use of red danger tape under the section that describes
methods of barricading.
18. The Handbook defines Barricading as a method to limit or prevent access to potentially
hazardous areas and to increase employee awareness.

40 FMSHRC Page 175

19. Specifically, the Handbook states that red barrier tape labeled "Danger Do Not Enter" is
utilized to prohibit admittance or passage through an area, except by authorized personnel
who are working on the project requiring the barrier.
20. The Handbook requires that Barricades that represent no admittance (Ex. Red "Danger
Do Not Enter" tape) be provided to prevent entry into areas that may present hazards such
as falling materials, falling hot materials due to overhead cutting/welding/grinding, being
struck by equipment operating in the area, etc.
21. Before entering a taped-off area, the Handbook requires miners to contact the Control
Room or the individual that taped the area off.
22. Use of the ladder would require a miner to intentionally disregard GCC’s red danger tape
policy.
23. No evidence exists that miners used the cited ladder or crossed the red danger tape in the
cited area to access the barricaded area.
24. GCC did not assign any miner to perform any duties that required use of the ladder or
access to the west side of the additives grizzly.
25. GCC did not have a work order in place to repair the ladder when Inspector Hurst issued
Citation No. 8838556.
26. The Parties believe that there is no disputed issue as to any material fact and stipulate that
this issue can be decided via motion based upon these stipulated facts.
III. SUMMARY OF PARTIES’ ARGUMENTS
The Secretary argues that GCC violated section 56.11003 when it failed to maintain a
ladder that provided the only access to an area of the mine. Sec’y Mot. 3. There is no dispute that
the ladder was damaged and had separated from the concrete to which it had been attached. Id.
Accessing the ladder would have endangered the health and safety of a miner. Id. Although GCC
had strung red danger tape several feet away from the access to the ladder, miners could easily
duck under the tape to access the damaged ladder, GCC policy still allowed access to the area,
and there were no plans to repair or remove the ladder. Id. 3-4. Contrary to GCC’s argument, the
use of red danger tape does not defeat the violation, and its reliance on Essroc Cement Corp., 33
FMSHRC 456 (Feb. 2011) (ALJ) is misplaced, as that case is easily distinguished. Sec’y Mot. 5.
The Secretary asserts that the gravity and negligence are not at issue, and notes that, while the
operator had failed to schedule the replacement or repair of the ladder, the low negligence
designation is supported by the procedure the operator had in place to recognize and correct
hazards by using the red danger tape until the hazard could be addressed. Id. 6-7. Finally, the
Secretary argues that the proposed penalty of $116.00 is appropriate and requests that the citation
be affirmed as issued. Id. 8.
Respondent argues that Citation No. 8838556 should be vacated because the cited ladder
had been barricaded to prevent its use. GCC Mot. 2. It avers that barricades which comply with
section 56.20011 of the Secretary’s regulations, like the Secretary’s lockout/tagout procedures,
remove areas from eligibility for MSHA inspection. Id. 5. Here, citing this court’s decision in
Essroc Cement Corp., 33 FMSHRC 456 (Feb. 2011) (ALJ), it argues that the red tape was a

40 FMSHRC Page 176

barricade, noting that it was secure, physically obstructed the only possible access to the ladder,
and informed miners that they should not enter the area. GCC Mot. 7-8. Moreover, GCC trained
its miners so that they would never intentionally break or remove red tape and its internal
handbook policies indicate that miners cannot access areas barricaded with red tape. Id. 8.
IV. DISCUSSION AND ANALYSIS
Commission Procedural Rule 67 sets forth the grounds for granting summary decision, as
follows:
A motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a
matter of law.
29 C.F.R. § 2700.67(b).
The Commission has long recognized that “summary decision is an extraordinary
procedure.” Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri
Gravel Co., 3 FMSHRC 2470, 2471(Nov.1981)). The Commission has analogized Commission
Procedural Rule 67 to Federal Rule of Civil Procedure 56. Hanson Aggregates New York, Inc.,
29 FMSHRC 4, 9 (Jan. 2007); See also Energy West, 16 FMSHRC at 1419 (citing Celotex Corp
v. Catrett, 477 U.S. 317, 327 (1986)). When the Commission reviews a summary decision under
Rule 67, it looks “‘at the record on summary judgment in the light most favorable to . . . the party
opposing the motion,’ and that ‘the inferences to be drawn from the underlying facts contained in
[the] materials [supporting the motion] must be viewed in the light most favorable to the party
opposing the motion.’” Hanson Aggregates New York Inc., 29 FMSHRC at 9 (quoting Poller v.
Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369
U.S. 654, 655 (1962)).
The subject citation was issued under section 56.11003 which requires that “[l]adders
shall be of substantial construction and maintained in good condition.” 30 C.F.R. § 56.11003.
The parties have stipulated that “[t]he cited ladder existed in the condition pictured in [Sec’y
Mot.] Exhibit C when Inspector Hurst issued Citation No. 8838556.” Jt. Stip. 10. Respondent
does not dispute that the ladder presented a hazard and that the ladder had separated from the
concrete to which it had been attached. I agree that the conditions depicted in Sec’y Mot. Ex. C
clearly indicate that the ladder had not been maintained in good condition.
Respondent asserts that by stringing red caution tape across an area in front of the ladder
it “barricaded” the ladder. In doing so, it argues that, just as MSHA’s lockout/tagout procedure
removes equipment from service such that MSHA cannot cite it for hazardous conditions,
“barricading” the ladder removed it from service with the result that MSHA should not have
issued the subject citation. I find that the red danger tape used here was not a “barricade” as that
term has been defined by the Secretary.

40 FMSHRC Page 177

Section 56.20011, states in pertinent that “[a]reas where health or safety hazards exist
that are not immediately obvious to employees shall be barricaded, or warning signs shall be
posted at all approaches.” 30 C.F.R. § 56.20011. The safety standard further states that warning
signs must “display the nature of the hazard and any protective action required.” Respondent
does not argue that the red danger tape was a “warning sign” under section 56.20011. Moreover,
the red danger tape did not display the nature of the hazard, with the result that the tape did not
meet the requirements of the standard.
“Barricaded” is defined as “obstructed to prevent passage of persons, vehicles, or flying
materials.” 30 C.F.R. § 56.2. Although the red danger tape suggested that miners not enter the
area, it was not capable of preventing passage of persons. The Secretary’s regulations do not
define “prevent passage.” The Commission has held that in the absence of a regulatory definition
of a word, the ordinary meaning of that word may be applied. Peabody Coal Co., 18 FMSHRC
686, 690 (May 1996), aff'd, 111 F.3d 963 (D.C. Cir. 1997). The dictionary defines “prevent,” as
relevant to this analysis, as “to deprive of power or hope of acting or succeeding . . . [,] to keep
from happening or existing . . . [,] to hold or keep back[.]” Webster's New Collegiate Dictionary
905 (1979).
A reasonable interpretation of the cited standard requires that the barricade do far more
than put miners on notice of the hazard, but also must also act to hold them back and keep them
from being able to access the hazard without at least some effort. It must impede travel into the
hazardous area. The red danger tape was not capable of doing this. The Commission interprets
safety standards to take into consideration “ordinary human carelessness.” Thomson Bros. Coal
Co., 6 FMSHRC 2094, 2097 (Sept. 1984). Human behavior can be erratic and unpredictable.
“Even a skilled employee may suffer a lapse of attentiveness, either from fatigue or
environmental distractions[.]” Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983). I
have previously applied these principles to a violation of section 56.20011. Lehigh Southwest
Cement Co., 33 FMSHRC 340, 345 (Feb. 2011) (ALJ). As noted by the Secretary, a miner could
easily duck below the tape. Consequently, I find that this red danger tape was not a barricade.
Decisions of other Commission judges are consistent with this analysis.1
Finally, I agree with the Secretary that Respondent’s reliance on my decision in Essroc
Cement Corp., 33 FMSHRC 459, 474-75 (Feb. 2011) (ALJ) is misplaced. In that decision, I
made clear that I was vacating the guarding citation at issue primarily because the cited area was
more than seven feet from the walking or working surface, thereby satisfying an express
exception in the Secretary’s standards. 30 C.F.R. § 56.14107. Issues involving the adequacy of
the tape as a barricade were not sufficiently explored by the court in Essroc. Indeed, the
operator’s argument in that case was based erroneously on the Secretary’s definition of the term
1

In J.S. Redpath Corp., Judge Priscilla Rae determined that a strand of rope running from
rib to rib, along with PVC pipe and orange plastic snow fencing was not an adequate barricade
because, among other things, it was poorly constructed, had gaps, and was attached to the ribs in
a “non-permanent unsecure manner” such that it would not have prevented entry of “persons,
vehicles or flying materials.” 35 FMSHRC 2629, 2642 (Aug, 2013) (ALJ). In Newmont USA
Limited, 34 FMSHRC 146, 161 (Jan. 2012) (ALJ) Judge John Lewis held that that a rope strung
from rib to rib was incapable of preventing the passage of persons, vehicles or flying materials.

40 FMSHRC Page 178

“barrier.” 30 C.F.R. § 56.2. The Secretary’s definition of “barrier” specifically allows the use of
“a warning sign or tape” to demarcate a hazardous area.2 As a result, I find that Essroc is
distinguishable from the matter at hand.
I find that there are no genuine issues as to a material fact and that the Secretary is
entitled to summary decision as a matter of law. Respondent violated section 56.11003, as
alleged in the citation. Accordingly, I AFFIRM Citation No. 8838556 as issued.3
I must assess a civil penalty for the violation based on the six penalty criteria set forth in
the Mine Act. 30 U.S.C. § 820(i). GCC did not dispute the Secretary’s evidence of record
regarding the application of the penalty criteria to the citation. Consequently, I accept the
Secretary’s determinations. See 29 C.F.R. § 2700.67(d). The Secretary’s low gravity and
negligence designations are affirmed. Exhibit A to the Petition for Penalty demonstrates that
GCC abated the violation in good faith and that GCC is a medium sized operator with
approximately 155,000 operator hours worked, while its controlling entity worked approximately
800,000 hours. In addition, data from MSHA’s Mine Data Retrieval System at its website shows
that the Pueblo Plant & Quarry had a history of 89 violations in the 15 months preceding the
issuance of the subject citation, 16 of which were significant and substantial. Based on the above,
I find that the originally proposed penalty of $116.00 is appropriate for this violation.

2

“Barrier” is defined in section 56.2 as “a material object, or objects that separates, keeps
apart, or demarcates in a conspicuous manner such as cones, a warning sign, or tape.” 30 C.F.R.
§ 56.2.
3

The Secretary’s motion for partial summary decision and motion to approve settlement
were filed by Dennis J. Bellfi, a conference and litigation representative with MSHA. An
attorney with the Department of Labor’s Office of the Solicitor has not entered an appearance in
this case. Mr. Bellfi has been authorized by the Secretary to “represent the Secretary in all prehearing matters in this case, including representing the Secretary at a hearing without an attorney
from the Office of the Solicitor present.” (Notice of Unlimited Appearance). This authorization is
not binding on the Commission and such representation is not a matter of right. See e.g. Carter
Machinery Co. Inc., 40 FMSHRC ___, slip op. at 8-9, No. VA 2017-104 (Jan. 9, 2018) (ALJ);
Cyprus Emerald Resources Corp., 16 FMSHRC 2359 (Nov. 1994) (ALJ). Mr. Bellfi has
appeared in other cases before me and, based on his experience, I hereby determine he is a
competent representative. Consequently, I hereby permit him to represent the Secretary in this
case under Commission Procedural Rule 3(b)(4). 29 C.F.R. § 2700.3(b)(4).

40 FMSHRC Page 179

V. SETTLED CITATIONS
The parties offered the following settlement proposal for the remaining citations in this
docket:
Citation/Order No.
9304013
8838557
8838564
8838565
8838561
9304016

Modification
Proposed Penalty
Accept as Issued
$116.00
Accept as Issued
$129.00
Modify to “Low”
$116.00
Negligence
Modify to “Unlikely”
$305.00
& “Non S&S”
Modify to “Low”
$116.00
Negligence
Accept as Issued
$116.00
Totals
$898.00

Amended Penalty
$116.00
$129.00
$116.00
$116.00
$116.00
$116.00
$709.00

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. The
motion to approve settlement is GRANTED.
VI. ORDER
For the reasons set forth above, GCC Rio Grande Inc. is ORDERED TO PAY the
Secretary of Labor the sum of $825.00 within 30 days of the date of this decision.4

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

4

This decision and order resolves all issues in this docket. Payment should be sent to the
Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box
790390, St. Louis, MO 63179-0390

40 FMSHRC Page 180

Distribution:
Dennis J. Bellfi, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
P.O. Box, 25367, Denver, CO 80225
Kristin R.B. White, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver CO 80202

40 FMSHRC Page 181

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

February 20, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2016-0120
A.C. No. 12-02295-397991

v.

Docket No. LAKE 2016-0140
A.C. No. 12-02295-400067

PEABODY MIDWEST MINING, LLC,
Respondent.

Mine: Francisco Underground Pit

DECISION AND ORDER
Appearances:

Emelda Medrano, Esq. and Kevin Wender, Esq., Office of the Solicitor,
U.S. Department of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL
60604
Arthur Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite
1500, 401 Liberty Avenue, Pittsburgh, PA 15222

Before:

Judge Moran

These consolidated cases are before the Court upon petitions for assessment of civil
penalties under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(d). A hearing was held in Owensboro, Kentucky on November 7, 2017. For the reasons
which follow, the Court upholds each of the Orders and imposes the penalties sought by the
Secretary. 1
Violations at issue in Docket No. LAKE 2016-0120
At issue in Docket No. LAKE 2016-0120 is one 104(d)(2) order, Order No. 9036624,
with a proposed penalty of $4,000.00.

1

On November 2, 2017, the Court approved a partial settlement for three citations
involved in Docket No. LAKE 2016-0120; Citation Nos. 9036721, 9036722 and 9036832. Order
No. 9036624 was the only remaining violation from that docket for which evidence was
presented at hearing. Also, at the hearing the Court announced that it was approving the partial
settlement for LAKE 2016-0140 for Order Nos.9036701, 9033599, and 9033600, leaving Order
Nos. 9036623 and 9036625 for decision. The Decision approving partial settlement for LAKE
2016-0140 is being issued on the same day as this Decision and Order.

40 FMSHRC Page 182

Order No. 9036624 alleged a violation of 30 C.F.R. § 75.364(b).2 The MSHA inspector
assessed the gravity reasonably likely, the injury or illness that could reasonably be expected to
be lost workdays or restricted duty, the negligence as high, and the violation as S&S, with one
person affected. The condition or practice alleged is:
The examination conducted on the entire M.S. primary escapeway (35 crosscuts)
and from crosscut #1-26 of the 2nd South West primary escapeway have been
found to be inadequate. When inspected, there were at least 7 loose ribs that were
pulled down along the primary escapeway in this short distance. The last exam of
this area was conducted on 10/28/2015. These loose ribs were gapped from the rib
and were obvious to the most casual observer. This violation is an unwarrantable
failure to comply with a mandatory standard.
Order No. 9036624.
As a subsequent action, the operator retrained all examiners on 30 C.F.R. 75.202(a),
“with an emphasis on loose rib maintenance.” Id.
Marked as S&S, an unwarrantable failure, and high negligence, it was regularly assessed
at $4,000.00.
Violations at issue in Docket No. LAKE 2016-0140
At issue in Docket No. LAKE 2016-0140 are two 104(d)(2) orders, Nos. 9036623 and
9036625. Order No. 9036623 was marked as S&S, an unwarrantable failure, and high negligence
and was specially assessed at $15,900. Order No. 9036625 marked as non-S&S, but as an
unwarrantable failure, and with high negligence was regularly assessed at $4,000.00.

2

§ 75.364, titled, “Weekly examination,” provides at subsection (b), in relevant part:
“Hazardous conditions and violations of mandatory health or safety standards. At least every 7
days, an examination for hazardous conditions and violations of the mandatory health or safety
standards referenced in paragraph (b)(8) of this section shall be made by a certified person
designated by the operator at the following locations: (1) In at least one entry of each intake air
course, in its entirety, so that the entire air course is traveled. (2) In at least one entry of each
return air course, in its entirety, so that the entire air course is traveled. … (5) In each escapeway
so that the entire escapeway is traveled. … (8) Weekly examinations shall include examinations
to identify violations of the standards listed below: (i) §§ 75.202(a) and 75.220(a)(1) - roof
control …”

40 FMSHRC Page 183

Order No. 9036625
Order No. 9036625 alleged a violation of 30 C.F.R. § 75.202(a).3 The MSHA inspector
assessed the gravity as unlikely, the injury or illness that could reasonably be expected to be lost
workdays or restricted duty, the negligence as high, and the violation as non-S&S, with one
person affected. The condition or practice alleged is:
The ribs along Main South Primary escapeway, crosscut 7-8, entry #6 are not
being adequately supported to protect miners from falls of the rib. There are 3
loose ribs in this area. The largest of these ribs was approximately 6 feet in length,
and appproximately [sic] 8 inches thick, and gapped from the rib approximately 3
inches. The rib on the off belt side is approximately 4 feet long and up to
approximately 6 inches in thickness. This loose rib was gapped away from the rib
approximatley [sic] 1 inch. The mine operator immediately pulled these ribs
down. Standard 75.202(a) was cited 30 times in two years at mine 1202295 (30 to
the operator, 0 to a contractor). This violation is an unwarrantable failure to
comply with a mandatory standard.
Order No. 9036625.
The operator pulled the ribs down in order to terminate the order. Id.
Order No. 9036623:
Order No. 9036623 alleged a violation of 30 C.F.R. § 75.202(a). The MSHA inspector
assessed the gravity as reasonably likely, the injury or illness that could reasonably be expected
to be lost workdays or restricted duty, the negligence as high, and the violation as S&S, with one
person affected. The condition or practice alleged is:
The Ribs along the 2nd South West primary escapeway are not being adequately
supported to protect miners from falls of the rib. The rib between entries number
6-7, crosscut number 13, on the inby side are gapped away from the rib
approximately 2 inches in length. There are 2 ribs on the outby side of this entry
that are also gapped from the rib. The largest of these ribs measured
approximately 10.5 feet in length and up to 10 inches thick. There are also 2 loose
ribs at crosscut 25-26, entry #6, in the primary escapeway. The largest of these
ribs measures approximately 10 feet long up to 10 inches in thickness. This area
had was examined prior to inspection on 10/28/2015. The mine operator
immediately pulled these ribs down. Standard 75.202(a) was cited 29 times in two

3

30 C.F.R. § 75.202, titled, “Protection from falls of roof, face and ribs,” provides at
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.”

40 FMSHRC Page 184

years at mine 1202295 (29 to the operator, 0 to a contractor). This violation is an
unwarrantable failure to comply with a mandatory standard.
Order No. 9036623.
The operator pulled down the loose ribs to terminate the order. Id. The Secretary
proposed a civil penalty of $15,900.00.
Findings of Fact 4
Testimony began with MSHA Inspector Stephen William Tisdale. He was at the
Respondent’s Francisco Underground Pit on October 28, 2015 for an E01 (aka a “regular
quarterly”) inspection. With him was MSHA inspector trainee John Hohn. The mine’s
compliance manager, John Schwartze, accompanied them. Tr. 26. Shown Exhibit P 3, Tisdale
identified it as the mine’s exam records for that day relating to the mine’s primary escapeway.
Referring to that exhibit, Tisdale noted that the examiner did not note any hazards, nor any
actions for hazards. Tr. 28.
When Tisdale entered the mine that day he “directly entered the primary escapeway in
the intake air course and the group proceeded to inspect inby on the main south, and from there
then to the second southwest. Tr. 28. Tisdale identified Exhibit P 4 as the Order he issued that
day to Schwartze concerning “the ribs along the main south primary escapeway.” Tr. 29. Tisdale
wrote the order because of “[t]he amount of loose ribs that [he] found on this particular air
course and the size of them, and how they fell.” Tr. 29. By using the term “how they fell,”
Tisdale explained that the ribs were pried down while they were present, so he watched them
fall. Tr. 30. It was noted that Tisdale’s description of the conditions was an approximation of the
length and thickness of the ribs. This was because it was too dangerous to take an actual
measurement. Tr. 30. Despite his observations, Tisdale informed that he knew the area had been
recently examined. This was because he found DTI (date, time, and initial) tags on the intake air
course when they entered it. Thus, it was evident that the mine’s Mr. Meador had been there that
morning. Tr. 31-32. The DTI reflected a time after 12:00 a.m. and Tisdale was then there a short
time thereafter, at 7:00 a.m.
Returning to his observations associated with the order, Tisdale informed, he observed
“several loose ribs at crosshead 7A and entry 6. There were at [least] three loose ribs in this one

4

As noted, portions of these two dockets were settled prior to the hearing’s
commencement and the Court announced that it was approving those settlements. Remaining for
disposition at the hearing from Docket No. LAKE 2016-0140 are Orders Nos. 9036623 and
9036625 and, from Docket No. LAKE 2016-0120, is Order No. 9036624. Tr. 10.

40 FMSHRC Page 185

area that were obvious. They were gapped from the rib and were not addressed.” 5 Tr. 33. Tisdale
stated that the ribs identified in Order No. 9036625 were from the floor to the roof, and therefore
were about five feet high. Id. When Tisdale made his estimates, he used a tape measure and,
upon informing Schwartze of his numbers, the latter agreed. Tr. 34. Finding that the conditions
presented by the number of loose ribs created a safety hazard, Tisdale cited the Respondent
under 30 C.F.R. §75.202(a), a standard speaking to control of ribs.
The inspector listed the gravity as unlikely “because of the way that they fell and the
amount that fell in the actual travel way. [He did not] believe that it would have been real likely
that someone would have been injured severely with that.” Tr. 35. He added, the ribs “fell on the
sloughage for the most part. [However] [t]he tops did fall in the primary escapeway underneath
of the lifeline, which was the walk route by the examiner and anyone who would have been
following the lifeline in the same scenario.” Tr. 35-36. The height of the ribs was another factor
he considered, affirming the obvious that “the bigger they are, the -- the more room they have to
fall. The higher they are, the more they can fall on you. The farther they're going to come out, the
more damage they're going to do.” Tr. 36. Tisdale listed 1 person as being affected, essentially
anyone who would be traveling through the area, or performing functions such as attending to a
loose roof bolt, or rock dusting . Not to be overlooked, the cited area was an escapeway. Id. In
terms of the expected injury, in the Court’s view, Tisdale again displayed his reasonableness,
listing “contusions, scrapes, slips, trips, falls, and anything associated with the falls of ribs,”
which would include the potential for broken bones. Tr. 37.
Negligence, however, was another matter, as he marked that as “high,” because “the
examiner had been through this area nine hours prior to [his] inspection examining this area for
exactly these conditions.” Tr. 37. He added that the “examiner had been trained on this as
required, according to Mr. Schwartze, for this standard [ ] because it's required every quarter.
Also this mine had been put on heightened enforcement for this standard due to other citations
being issued for exactly this, so another reason for them to have -- be aware that this was
something they needed to pay attention to. And by the sheer number and obviousness of them
all.” Id.
The Court inquired of the inspector whether “there [was] any possibility that the
conditions that you observed developed in the interval from when the mine examiner was last
there and when you appeared during that approximate nine hours.” Tisdale answered, “I don't
believe so, sir, because [of] how wide the gaps were on these and how big these ribs are. It's not
something that's going to happen in nine hours. It typically takes quite a while for it to trade that
kind of gap as material falls behind it and pushes it away from a rib.” However, he added that
5

Indicative of the Inspector’s reasonableness, Tisdale added that “[t]here were several
other ribs as well that were loose, but with the way they fell and everything, I did not put them in
the citation.” Tr. 33. He did not include those conditions in the order because “[t]he way that
they fell, they would have fell in the sloughage, where is not where miners would normally travel
…” Id. However, when questioned by the Court about these other conditions which he elected
not to include in his order, Tisdale advised that if he had only observed those conditions, they
would still have constituted a violation of 75.202(a). Tr. 40. Further, all of the uncited ribs were
pried down as the inspection proceeded. Tr. 42.

40 FMSHRC Page 186

“[t]here was nothing showing me anything that there was movement at that time while I was
inspecting it.” Tr. 38.
In terms of how long the conditions he observed had existed prior to his viewing them,
Tisdale responded that “they existed at least three weeks, if not more.” Tr. 39. The cited
conditions could’ve been more expansively included, as they were obvious too, but because of
the way they fell, he didn’t include them in the citation. Id. As he summed it, these conditions do
“not happen in a short period of time.” Tr. 39. The Court asked for additional information,
inquiring why, for example, his estimate was not two weeks or only two shifts. Tisdale
responded that his estimate was based on his experience.6
Tisdale also informed that the mine was put on heightened notice in July and August
2015 because MSHA had been finding a lot of 75.202(a) and 75.364(b) violations. Tr. 41. In
terms of Tisdale listing the violation as an unwarrantable failure, he reiterated that an examiner
for the mine had been in that area about nine hours before his inspection and the conditions were
obvious. Tr. 43. Yet no action had been taken and the exam records noted nothing either. Tr. 43.
Tisdale considered whether he could just issue 104(a) citations, and verbally stated he would do
so, but then, upon reflection, given all that he observed, he decided an order was necessary. Tr.
43-44. The conditions were both obvious and not hard to detect. Tr. 46. As noted, several ribs
had to be pulled down during the course of inspection that day, and Tisdale observed those
actions being taken. Tr. 48-49.
Still referring to Order No. 9036625, involving the main south primary escapeway,7
Tisdale informed that “These [ribs] specifically fell where miners would be traveling, evidenced
by traffic through the area. They also fell underneath of the lifeline or the escapeway, which
would be traveled by anyone trying to escape the mine and also where the examiner is normally
traveling.” Tr. 50. His measurements also factored into his assessment of the conditions, because,
“[r]ocks that size hitting you are going to cause an injury.” Tr. 50.
Directed to Exhibit P 5, Order No. 9036623, Tisdale identified it as the order he issued on
October 28, 2015 for the second southwest primary escapeway. Id. As with the order just
discussed, this order was issued because of “[t]he number of loose ribs that were found, the size
of them, and the -- the obviousness of them.” Id. The conditions he observed were similar to
those he found on the main south primary escapeway, as he advised that the second southwest
primary escapeway was “[a] lot of what we seen on the main south primary escapeway, more
loose ribs that are not being controlled or being prevented from hurting miners, no indication that
any of them had been identified. The examiner had traveled that area also. They put tags about
6

Tisdale added that his estimate of three weeks was derived, because of their size and
his] mining experience, informing, “[t]ypically they will grow -- if they're tight, you can try to
pry on them and they won't move and you can -- you can almost steadily watch them get bigger
and bigger.” Tr. 39.
7

Although the two cited escapeways have separate air courses, they are related as they
“are connected to each other … Once the main south stops, then it continues on as the second
southwest air course.” Tr. 60.

40 FMSHRC Page 187

every ten crosscuts and we were able to see that he had been through there at a pretty good
pace.” Tr. 51. These conditions were examined by the same mine examiner that had examined
the main south primary escapeway, resulting in Order No. 9036625 being issued. Id. Thus, two
separate escapeways had these problems.
As with the previous order, Tisdale found for Order No. 9036623 “several loose ribs
again that were obvious. Obviously gaps in the rib that were not being controlled.” 8 Tr. 52. It is
also important to note the inspector’s information about where these ribs fell, as he informed, he
“believe[d] these fell directly underneath the lifeline. On the second southwest, the mine operator
had done some rehab work and had scooped a lot of the second southwest, and this particular
area was one of those, so there was not a lot of sloughage. The ribs fell where miners had
obviously traveled evidenced by their foot tracks, and it also fell directly underneath the lifeline.”
Tr. 53. Not to be lost among these findings, and to be plain, the hazard was again loose ribs. Tr.
54. Marking the gravity as “reasonably likely,” Tisdale identified the likely injury to be “[w]ith
ribs this size, [he]put down bruises, scrapes again, just like on the main south. But with this size,
you're going to have broken bones again. We've had fatalities with smaller ribs of the same thing.
It's a rules to live by standard 9 just for that reason. There are many, many different injuries that
can occur from bad ribs like this.” 10 Id. Tisdale expressed that the size of the ribs falling on a
miner would cause a severe injury. Again, as expressed before, the miners exposed to this
hazard would be anyone traveling through the area or working in it or those needing to use it as
8

Referring to his order, Tisdale provided specifics about the locations for these problem
ribs, stating, “The rib between entries 6 and 7, crosscuts number 13 on the inby side are gapped
away from the rib approximately two inches. There are two ribs on the outby side of this entry
that are also gapped from the rib. And the largest of these ribs measured approximately ten and a
half feet in length and up to ten inches thick. The ones that were on the outby side of this that are
described were where a miner had cut and left notches in the rib, and these were also very large
and very thick, but were not quite as long and large as the one that's noted here as far as the
measurements.” Tr. 52. In this instance, Shwartze again told Tisdale that he agreed with the
inspector’s measurements. Tr. 53.
9

Though well known, Tisdale reminded that the “Rules to live by” involve standards that
are so identified because there are “so many fatalities for that specific violation -- for that
specific hazard in a mine, that we try to raise awareness. … There are ten of them [i.e. ten rules],
and we try to make sure all miners are aware of them.” Tr. 54-55.
10

The Court asked about Tisdale’s noting a two inch gap, positing that it did not seem to
be a very significant gap and that it would be difficult to spot such a small gap. Tisdale informed,
“[m]y best example of that would be just like sitting in this courtroom, … If you seen a crack in
the wall that was approximately two inches wide in a -- in a difference of what you see in this
area, would you -- would you notice it? I mean, you -- because it's going to be jagged. It's going
to be dark inside of it. Your -- it's going to stand out to you. We were walking the same way as
the examiner and your light is going to shine right on that rib and it's going to create a shadow
right behind it as well. It's going to stand out just like it would in this room if there was a crack
either in the ceiling or if it was on the wall.” Tr. 55-56. Tisdale stated that with only a cap lamp,
such a two inch gap would still be obvious to detect. Tr. 56.

40 FMSHRC Page 188

an escapeway. Tr. 58. The same rationale used for the prior order, applied to this one. The
examiner had recently been in the area and the conditions were obvious. Id. This reasoning
applied to his unwarrantable failure designation as well. As before, Tisdale’s estimate was that
these conditions had existed for at least three weeks. Tr. 60.
Tisdale was then directed to Exhibit P 6, Order No. 9036624. This Order, very much
associated with the other orders just discussed, was for an inadequate exam. As he expressed it,
the order was issued because of “[t]he apparent lack of care to – to specifically check for loose
ribs through this whole area just was not finding them, not looking for hazards in this area -- for
the -- both the areas that were orders on.” Tr. 62. Thus, the mine examiner failed to adequately
look for loose ribs, which conditions were obvious, in both the southwest primary escapeway and
the main south primary escapeway. Tr.63. Though he could not give an exact number, Tisdale
found at least seven hazardous ribs.11 Id.
In determining that the gravity was “reasonably likely,” Tisdale explained that was
“[b]ecause of what we found with the ribs being that large and falling on someone, and that the
sheer number that there are, they're going to cause an injury.” Tr. 67. One person was marked as
being affected. In the inspector’s view, the mine offered no cognizable mitigating factors, as
weather and the assertion that this was not a (d) citation or (d) order mine were not persuasive to
him. Tr. 69-70.
Under cross-examination, Tisdale agreed that there are two examination records noted
within Ex. P 3., October 12th and October 26th. Tr. 72. It was pointed out by the Respondent that
the exhibit did not include the exam for the week between those dates.12 The inspector agreed
that for the week of October 26th, a condition was listed at line 5 and for the week of October
12th, a hazard was noted at line 12, the condition being exposed bolts. Tr. 72-73.
Regarding the height of the ribs for Order No. 9036625, Ex. P 4, pertaining to the main
south escapeway, the inspector agreed that his order did not list the rib height. Tr. 73. The same
was true for Ex. P 7, no rib height was listed. Tr. 74. The inspector also agreed that beyond the
11

Though the order was based on the ribs, the examiner’s failure to see the obvious
conditions made the inspector worry “what else [the examiner is] not identifying.” Tr. 65.
However, the Court made it explicit that any violations which may be upheld would be based on
what the inspector observed, not on speculation about other safety conditions which may have
been overlooked. Tr. 67.
12

The Court later inquired about the missing exam week, because there was at least a hint
that perhaps the Secretary did not want it included. As it developed this was not the case; the
Secretary did request the missing information. The Court noted initially, “[w]e've got the week
beginning of 10-26. We've got the week beginning of 10-12, and it was pointed out that there's
a missing week. Can either counsel, as officers of the court, explain to me this --.” The Secretary
informed that it did not believe it had the missing page but that it had been requested. Tr. 160.
Respondent’s Counsel then informed that it had not provided the missing page to the Secretary.
Tr. 161. He then advised that the missing page would be provided during the hearing, as part of a
planned exhibit for the Respondent covering two months of such exam records. Id.

40 FMSHRC Page 189

primary escapeways he cited, a mine is required to have a secondary escapeway. Id. That
secondary escapeway is the mine’s travel way, meaning the road used in normal mining
operations and on which miners drive in and out of the mine using rubber tired vehicles. Id. The
inspector agreed, and there is no dispute, that the rather obvious idea behind having two
escapeways is to deal with the situation if one cannot be used during an emergency. Given a
choice, the inspector also agreed that the roadway escape would be the preferred exit. 13 Tr. 75.
The Court notes that, as to the import of that argument, that an escapeway would rarely
be S&S, because there are two of them, and a second escapeway would only be needed if the
first escapeway could not be used, little needs to be said. The idea behind the two escapeway
requirement is just for such an eventuality. It is noted that even motels, hardly dangerous places,
have two stairway exits for escape.
Regarding the inspector’s statement that the mine had been put on notice, the inspector
agreed that such notice is broad, applying to any type of inadequate examination.14 Tr. 76. Also,
although the inspector knew that the mine had been put on notice regarding 75.202(a) on August
12, 2015, he did not know the circumstances which led to that notice.15 Tisdale agreed that
knowing of that prior notice created an additional factor that might more readily lead him to
issue heightened negligence, as it informed him that the mine “had reason to know.” Tr. 78.
Further the mine is not trapped in purgatory forever by receiving such a notice as, upon not
receiving new citations for that specific condition, they would be lifted from the heightened
awareness admonition . Tr. 79. While the mine protested that it had been “doing better,” Tisdale
informed that he didn’t know what they had been doing better, as there had not been any air
course inspections subsequent to that notice. Tr. 79-80.
Turning to Ex. P 5, Tisdale stated that he did not “measure” the ribs referred to in that
exhibit as both the inby side in crosscut 13 and the outby side of the crosscut were identified.
Instead, as he expressed earlier, he estimated the ribs on the outby side, measuring only the rib
on the inby side. Tr. 81-82.
On redirect, Tisdale was asked to read from Ex. P 7, his inspector notes, stating from
those notes, “[t]hese ribs were from the mine floor to the mine roof. The largest loose rib at the
13

Later in the hearing the mine’s Schwartze would testify about travel frequency in the
escapeways in normal mining operations, as “[a]ll miners are required to travel the escapeways -the primary escapeway twice a year in practice just so they know how to get out, and they travel
the secondary escapeway twice a year. Actually (referring to the secondary escapeway) they
travel it all the time, but it's -- record is kept of it twice a years.” Tr. 140 (italics added).
14

The Court does not find this argument persuasive. The fact that there are many types of
exams required; pre-shift, belts, weeklies of escapeways and air courses, seals and permissibility
exams, is an odd, and ineffective, way to defend the failures identified in these two orders.
15

Again, the Court does not find this argument persuasive. The fact that the notice
pertaining to 75.202(a) applies to roofs, as well as ribs, hardly constitutes any shortcoming of the
notice. Following that line of logic would mean that the specific area would need to have been
cited before. The “notice” is meant to wake up the mine to be attentive to all roof and rib issues.

40 FMSHRC Page 190

second southwest was approximately seven feet tall. The top strata fell with it that was measured
for thickness. It was measured at what would have been the top when it was standing, ten inches
thick.” Those notes, he confirmed, reflect what he observed at that time. Tr. 83-84. Though he
could not state the exact time when he made the notes, they were written at the site of the
observed conditions and while he was still underground. Tr. 85-86.
In response to a hypothetical question from the Court inquiring if the inspector were to
put aside the issue of the mine being “on notice,” if he would still have issued these orders as he
did, Tisdale answered, he “would have marked the negligence exactly the same as [he] did
whether they were put on notice or not because of everything that [he had previously] stated [in
his testimony]. They had reason to know. [The] [e]xaminer was there. The -- these are conditions
that have lasted for quite a while and they were obvious and extensive. Even if they weren't put
on notice, [he believed it would] support the negligence on it regardless of whether they were
already on [notice] or not.” Tr. 90. Tisdale affirmed that also would be his position regarding the
inadequate exam. Tr. 91.
Turning around the question about Tisdale’s view that the conditions had existed for
three weeks, the Court asked if, based upon his same mining experience, the condition could
have lasted for less than a shift. Tisdale informed it would not have existed for less than a shift.
Tr. 92.
The Secretary also called MSHA Inspector John N. Hohn. Prior to his employment with
MSHA he had a little more than eight years of mining experience, all of it in underground
mining. Tr. 97, 121. At the time of the matters in issue in this proceeding he was an MSHA
trainee. Id. Interestingly, as a trainee, Hohn was instructed not to point out anything to the
inspector he was accompanying that day. Tr. 98. Directed to Ex. P 3, he identified it as the
weekly examiner’s records of what they observed that day and whether they took any corrective
actions. Tr. 100. Essentially, Hohn confirmed observing the same conditions that Tisdale saw.
He stated that there were large gaps in the ribs and “[w]hen Schwartze pried them down, they fell
solid, falling across where the walk path would be. They were then measured as they were sitting
on the ground.” Tr. 103-104. Tisdale then took the measurements and called them out to him and
he (i.e. Hohn) then recorded them in his notes. Hohn’s notes appear in Exhibit P 8.16 Tr.104-105.
Hohn stated that the problematic ribs were not difficult to see. Tr. 106. It was his estimate that
one could detect these conditions from a distance of approximately 40 feet. Id.

16

Hohn, looking at his notes, remarked that for those ribs he had “one that was six foot
long, four foot tall, and eight inches thick. And … one recorded that was four foot tall, three-anda-half foot by six inches thick.” Tr. 105. During this time Schwartze at times held the
freestanding end of the tape measurer and at other times was prying down ribs. Tr. 106.

40 FMSHRC Page 191

Asked if Schwartze challenged the accuracy of any of the measurements, Hohn related
that Schwartze stated, “How can I argue with the tape measurer?”17 Tr. 107. The Court would
note that it is a fair and accurate summation to state that Hohn’s testimony corroborated that of
Inspector Tisdale’s. Hohn related that Schwartze’s expressed grounds for mitigation were that
“[h]e was asking Inspector Tisdale not to write these as orders. ‘Orders are for bad mines. We
are not a bad mine. We try hard. We have been fixing things on belt lines and travel roads. We've
retrained our engineers and are doing a lot better.’” Tr. 116. These were not mitigating factors,
Hohn informed, because “[m]itigating circumstances means that you've done something to
prevent this from happening, or you've -- you've got some reason that's valid that it happened.
This statement [i.e. Schwartze’s ]sound[ed] just like begging.” Tr. 117.
Hohn then added that Tisdale gave the mine several opportunities to present mitigating
circumstances to him, informing, “There were a number of times that Inspector Tisdale was
offering Schwartze to provide some kind of mitigating circumstances. And Tisdale stated that
with the recent history, past violations, the mine being placed on notice of higher negligence,
examiners having been retrained, and that the area being cited had been examined this morning,
he couldn't see any way out of writing a D [order] without mitigating circumstances.” 18 Id.
Under cross-examination, Hohn agreed that he did not know what, specifically, the mine
had been put on notice about, other than for section 202(a) roof and rib control. Tr. 123.
Respondent’s point was that such a notice is broad and covers a number of roof and rib matters,
including roof spacing, and roof bolts. Tr. 123-124.
The Respondent’s defense began with John Schwartze. He was the mine’s compliance
manager, at that time of these orders and occupied the same position at the time of the hearing.
Tr. 137. He has about 30 years of coal mine experience. Tr. 138. Questioned about the events of
October 28, 2015, Schwartze informed that the primary escapeway is traveled by an examiner
once a week. Tr. 140. Schwartze stated that the main south escapeway “starts in the pit or the
surface area, and extends due south for 34-35 crosscuts” and that “the second southwest
escapeway starts at the inby end of the main south.” Tr. 140-141. The second southwest starts
where the main south ends. Tr. 141. He stated that these areas are subject to changing conditions
due to weather, humidity and temperature. Id. These areas also function as air courses. These
factors, he stated, can have an effect on roof and rib conditions and that those conditions were
present in October 2015. Tr. 142.
17

Tisdale’s measurement process was also explained by Hohn: “[o]nce they were pried
down, the ones that fell, they were still a big solid piece. He'd – Inspector Tisdale measured the
solid piece and said that as far as he saw it, measuring the extra broken around the perimeter was
a bit of benefiting, and that would just give the operator something to argue about, so he
measured the solid slab of the rib.” Tr. 107. Measurements were not taken before the ribs were
pried down because of the obvious safety hazard of such an action. Id.
18

In fact, Hohn stated that he overheard Schwartze tell another miner who asked what
Tisdale was expecting of the examinations, that “ ‘These were not small, unnoticeable cracks.
These were obvious. We dropped the ball. It is what it is. We have to do better.’” Tr. 119, and
Hohn’s notes, Exhibit P 6 at p. 38.

40 FMSHRC Page 192

Regarding the orders in issue, Schwartze was asked about his notes associated with them.
Tr. 143. Exhibit R 3. The notes reflect his summary of the day, which he wrote when he returned
to the surface. Id. The inspection, he related, began with the main south. Focusing on the area at
crosscut seven to eight, and whether Tisdale alleged any loose ribs, Schwartze remarked that
“Tisdale stated he was going to issue a non S and S citation for loose ribs, crosscut seven to
eight, entry six. And he made that decision because if nothing fell onto the walkway, it was
unlikely that anyone would be hit.” Tr. 144-145. Schwartze advised that he pulled down the rib
with his walking stick. He did not “remember anything” about the size of the material that came
down. Tr. 145. Schwartze informed that if one does need to apply a lot of pressure when taking
down a rib it will “most generally will fall straight to the ground.” Tr. 146. To the Court, rather
than diminishing the hazard, Schwartze’s testimony indicates how susceptible the rib was to
coming down.
Contradicting the earlier testimony of both MSHA inspectors, Schwartze stated that he
did not observe either inspector taking measurements. Tr. 146. However, as to whether either
inspector related “numerical values related to estimates or measurements of the rib size” to him,
Schwartze informed only, “[n]ot -- not that I recall.” Id. Attempting to support his lack of
recollection, he maintained that if such estimates had been stated, he would have entered them in
his notes.19 Id.
Schwartze agreed that the inspection then continued to the second southwest primary
escapeway. Referred to Ex. P 5 and a reference within that to crosscut number 13, Schwartze
acknowledged that the inspector pointed out conditions involving ribs in that area, but he could
not recall how many problem ribs were identified, responding, “[n]o, I just know that a citation
was issued.” Tr. 148. For this too, he pulled the ribs down, but he had no recollection about their
size and he didn’t take any measurements, nor could he recall how the ribs fell. Tr. 148, 150. As
before, he did not remember either inspector taking notes. Tr. 150. Similarly, he asserted that if
that had occurred, that would have been in his notes. Id. Schwartze added that the inspector made
no mention that an order would result. Tr. 151.
Referring to Exhibit E 5, and that exhibit’s reference to “two loose ribs at crosscut 25 and
26,” Schwartze agreed that ribs were pointed out to him at that location. Id. However, he could
not remember how many ribs were involved. He was asked to pry them down and informed that
in this instance they were hard to pull down, breaking his walking stick in the effort. Tr. 152. He

19

The Court did express that it found Schwartze to be honest and candid. However, that
said, he had no useful memory of the events at all. As stated during the hearing, the Court
remarked it, “appreciate[d] [ ] [Schwartze’s] candor, that you're being honest in your answers. I
have the impression that in many respects you don't remember the details of these three matters
and that you have to rely almost entirely upon your notes as opposed to on your own; is that fair?
Is that accurate?” Schwartze responded, “ I -- I think it is, sir.” Tr. 154. As discussed later,
against the credible testimony of Inspector Tisdale, primarily, and as augmented by trainee
inspector Hohn, when evaluated upon consideration of Schwartze’s testimony and the other
witnesses for the Respondent, as set forth below, the Secretary established the violations under
the applicable burden of proof.

40 FMSHRC Page 193

opined that, because of that, the rib was not loose enough to fall on its own. Tr. 153. The Court
would comment that there is no suggestion that a walking stick is the equivalent of a rib pry bar.
Schwartze’s notes contained no information about the size of that rib, and he did not
recall either inspector taking measurements there either and reiterated that had they called any
measurements out to him, he would have recorded that in his notes. Id. Schwartze disclosed that
the inspector then advised that another citation would be issued and still another for an
inadequate examination. Tr. 153. No mention was made then that an order would instead be
issued. Tr. 154. As discussed below, the Court does not find that an inspector must be wedded to
his initial determination. Certainly, an inspector is entitled to further contemplate the appropriate
paper to be issued for a violation. This works both ways; if an order was contemplated first and
then the inspector reconsidered his initial view, perhaps upon being provided with mitigating
circumstances, it would not make sense to suggest that no reduced violation could be entertained.
Schwartze, still reading from his notes, not on any independent recollection, stated that
upon reaching the surface Tisdale was going to issue a citation, not an order, adding that “if
things had been any worse, he would be considering a D order, but not -- did not want to do
that.” Tr. 155. However, he then acknowledged that upon reaching the surface and while then in
Schwartze’s office, Tisdale told him he was issuing (d) orders. Tr. 156. Thus there was no
extended delay associated with Tisdale’s ultimate decision. Certainly within that short a time
frame an inspector is entitled to contemplate the correct action to take regarding observed
violations. Further, Schwartze admitted that Tisdale raised the issue of a (d) order while they
were still underground. Tr. 176.
The Respondent elicited from Schwartze that significant distances were involved within
the main south and the second southwest escapeways and that Schwartze knew of no reportable
injuries resulting from adverse rib conditions. Tr. 158.
Not exactly helping the Respondent’s case, when Schwartze was asked about Hohn’s
statements in Ex. P 8, at pages 37-38, and whether Schwartze actually made the remarks
attributed to him, he answered, he “probably would have participated in the pre-shift meeting,
but [he did not] remember saying this.” Tr. 159. So that the import of his answer was made clear,
the Court then inquired, “[s]taying on that page you were just on there, it's -- you know by
looking at, particularly on page 38,that this Inspector Hohn has put quotation marks asserting
that you said effectively -- or part of it is ‘We dropped the ball. It is what it is. We have to do
better.’ It's my understanding from your testimony just a moment ago that you're not claiming
that Inspector Hohn has made this up, it's just that you don't recollect. You might have said it.
You might not have said it. You just don't recall; is that fair?” To his credit, Schwartze
responded candidly, “That is correct.” Tr. 159-160.
Upon cross-examination, Schwartze stated that as the compliance manager he is not ever
required to review weekly exams to determine if any hazards are needed to be addressed. Tr.
163. In terms of his earlier testimony, that he didn’t see Tisdale take measurements of the ribs,
Schwartze undercut his earlier assertion, as he confirmed that he couldn’t recall if he saw Tisdale
take measurements or not. Tr. 167. Schwartze confirmed that he did recall pulling down a
number of ribs during the inspection, but about their size, when asked if some were big and some

40 FMSHRC Page 194

were small, he could only state, “[s]ome were bigger than others, yes.” Tr. 167. The Court
inquired further about this and Schwartze’s decision not to take measurements, as per his remark
the he “didn’t think it was necessary.” Tr. 169. When then asked why he felt it was not
necessary, Schwartze’s answer was only he “just didn’t.” Tr. 169-170.
Asked about his notes, made that day on October 28, 2015, Schwartze stated that he made
them because an order had been issued. This is his practice whenever an order is issued and he is
involved, as he was for these matters. Tr. 170-171.
Schwartze also agreed that MSHA has told him that the mine is under heightened
awareness for 75.202(a). Tr. 177. However, consistent with his general lack of recollection about
these matters, except for his notes, he could not recall if the mine was on heightened awareness
for inadequate examinations before October 2015. Tr. 178. This is an appropriate point to note
again that while the Court found that Mr. Schwartze was candid, that does not mean that his
testimony was informative or persuasive on the issues before the Court.
The Court inquired further about the essence of Schwartze’s testimony, first referring to
the rib issue along the main south primary escapeway and asking if it was fair that his problem
was that an order was issued. It asked whether Schwartze essentially agreed that there was a
violation, but it never should have warranted an order being issued. Schwartze agreed. Tr. 184.
Turning to the next order, and posing the same question, Schwartze agreed there were problems
with the ribs along the second southwest primary escapeway, but that a citation, not an order
should have resulted. Tr. 185. However, he parsed that response by adding “if that.” Id. This,
he explained, was because “some of the ribs [the mine] pulled down “already had timber set in
front of them.” Id. With that qualification, however, Schwartze agreed that, for the ribs described
in Ex. P 5, there were problems for those ribs. Id. He then conceded that, just based on that, and
apart from the unidentified areas he said were timbered, the remaining areas would be a violation
of 75.202(a). Tr. 185-186. Following that exchange, Schwartze then agreed that he did not
dispute that the order ending in 625 [Order No. 9036625] was also a violation. Tr. 186.
Though he conceded the first two orders at least reflected violations of 75.202(a),
Schwartze did not agree that necessitated a finding that the examination had been inadequate. Tr.
186. His reasoning was that “[w]hen -- when the examiner would have traveled this area, he
would have been by himself. Maybe he focused on ribs, maybe he focused on something else.
Two sets of eyes, we had six sets, so there was more of us. We had time for a more thorough
examination.” Tr. 186-187. Pressed about his perspective, the Court inquired if he was
contending that “it is reasonable that an examiner would have missed all of the locations
identified in those two orders and, therefore, it still would be considered an adequate
examination?” Schwartze affirmed that was his view, and that it was based on two
considerations; that an examiner has only one set of eyes and that “maybe some of them didn't
exist when the examiner was there.” Tr. 188. The Court does not buy into the multiple sets of
eyes argument, nor the suggestion that maybe some of the bad ribs weren’t present. This is
because of the number of hazardous ribs found as expressed through the credible testimony of
Tisdale.

40 FMSHRC Page 195

The Respondent then called Bill Sheffer who, in October 2015, was the compliance
supervisor at the mine. Tr. 191. He has some 38 years of mining experience. Id. On the day in
issue, Sheffer was working the second shift, meaning he would be at the mine by 2 p.m. Upon
his arrival he was advised of the three orders and was directed to take pictures of the rib rolls. Tr.
193. The locations were identified to him as “[t]he second southwest, the crosscut 13, and I
thin[k] 25 to 26. And also in the main south, there was a seven to eight crosscut.” Tr. 194.
Exhibit R 4 reflects photos Sheffer took that day. Asked if that represented all the pictures he
took that day, he answered, “That's all I can remember.”20 Id. Photos 1 – 3 were from the second
southwest at crosscut 13.21 Tr. 195. Asked if he saw any evidence of cleanup, Sheffer stated he
didn’t remember any cleanup there. Sheffer identified a lifeline in Photo 3, in the top center,
which appears as a thin rope or cable. By his estimate, the height of the roof in this area was
about six feet. Sheffer maintained that the material that had been pried down did not extend into
the area where the lifeline was located. Tr. 197. Photos 4, 5 and 6 were then discussed. Those
were taken at the same location, “[o]n the second southwest. The crosscut was 25, 26, 24 or 25 or
something.” Tr. 198. He could not recall the exact location. Id. He also could not recall how
many ribs there was evidence of being pried down.22
Continuing with his testimony associated with those photos, he identified the lifeline in
photo 6, and stated that the material came right to the edge of the lifeline. Tr. 199. The Court
questioned Sheffer’s description in that regard, stating that it appeared that the material was
directly beneath the lifeline cone. The Court offered Sheffer an opportunity to correct the Court’s
perception of the photo, if it was inaccurate but he only responded, “I'm mis -- this right here, I
don't know if that's just part of a bad picture or if that actually is the rib right in the center.” Tr.
201. He added that, though from his own photo, he did not recall. Tr. 201. However, Sheffer
stated that the majority of pried down material was between the rib and the water line, a point
made because he had earlier stated that miners don’t usually travel in the space between the rib
and the water line. Tr. 199. Again, referring to those photos, Sheffer stated that he did not
remember any evidence of cleanup “on the second southwest, crosscuts
25 and 26.” Tr. 201. Moving to Photo 7, Sheffer identified it as “on the main south at seven to
eight,” [and therefore relating to Order No. 9036625, the non-S&S order] stating that there had
been evidence of cleanup there. Tr. 202.
Upon cross-examination, Sheffer stated that the photos represented all of the areas listed
in the orders. Tr. 203. He admitted that he had not seen any of the cited ribs prior to them being
pulled down. Id. For the first six photos, he did not know if anyone had been down to those
locations after the orders had been issued and the time when he arrived. In contrast, with regard
20

When asked by the Court if he took other photos of the ribs that day, Sheffer again
stated that he didn’t recall taking other photos, but admitted it was possible other pictures were
taken. Tr. 212-213.
21

All three of those photos are of the same location and the same rib. The arrow depicted
pointing right is outby. The rib shown is on the inby side of the crosscut. Tr. 195-196.
22

Looking at photo 4, he believed there was rib down on the left. For Photo 6 he stated it
was both ribs, “more or less the center of the entry,” he could not tell if a rib had been recently
pried down from that photo. Tr. 198.

40 FMSHRC Page 196

to photo 7, he had been told that someone had been on the main south. Id. He took no notes of
the locations that he walked, nor of the locations that he photographed and he was by himself
when he took the photos. Tr. 204. Regarding the water and power lines displayed within photos
4, 5, and 6, Sheffer stated that there would be no maintenance associated with those lines, unless
the water line were to blow or if there was a problem with the power on the line. Tr. 206-207.23
When compared to the testimony of Inspector Tisdale (and secondarily to trainee Hohn),
the Court was not persuaded by Sheffer’s testimony. Neither the circumstances of his role and
more particularly his testimony regarding the photos aided the Respondent’s case.24
The Respondent then called Aaron C. Meador, a mine examiner for the Respondent’s
mine. Tr. 222. He has been an examiner since 2008. Tr. 225. Meador works the third shift, from
11 p.m. to 7 a.m. Id. He does pre-shift exams and weekly exams. Tr. 223. The weekly exams
involve the air courses. As noted, at this mine there were entries that served both as escapeways
and air courses. Id. Two separate records were required to be made for those exams. Turning to
the Main south escapeway and the second southwest primary escapeway, both also are air
courses. Tr. 224. In the course of his exams, Meador will look for “[a]ny and all hazards,
specifically loose ribs,exposed bolts, loose roof, slipping and tripping hazards, man door signs
not up, lifeline being connected all the way, oxygen deficiency, methane accumulates, ventilation
short circuits, adequate rock dust, things like that.” Tr. 225. Meador stated that, if he comes upon
a loose rib, he will try and pry it down, using his walking stick. If that doesn’t accomplish the
task, he will “flag it out” using red danger tape and he will also report it. Tr. 226.
Focusing then upon his exam of October 28, 2015, he was asked about Exhibit R 1 at
page 9 and R 2. For the former, Meador identified it as the weekly examination of emergency
escapeways. Line 7 of R 1 reflects the exam for the main south and the second southwest up to
crosscut 84. Tr. 229. R 2 is the “weekly examination for hazards, conditions, violations,
including test for methane. It's the regular air course book .” Tr. 229. Line 4 reflects a listing in
the air course records that also accounts for this main south and second southwest to the crosscut
84 area. Tr. 229. That line records, “[i]ntake air course, pit to northwest main, crosscut 10.” Id.
Other locations he examined that day are also recorded on the exhibit. Tr. 230.
Asked if he observed any hazards from those exams, Meador affirmed, “Yes, on line 2 in
the second southwest right return, I found a hazard of an exposed bolt, entry number 11 to 12,
crosscut 86,” on the second southwest, right intake. Tr. 231. And that was it, Meador found
nothing else in terms of hazards. Tr. 233.

23

When Sheffer was asked whether at that time, he was aware of Peabody being placed
on heightened notice or heightened enforcement for 202(a) for rib conditions, he responded that
he did not remember. Similarly, when asked if he recalled if the mine was on heightened notice
or heightened enforcement for inadequate examinations, he did not remember. Tr. 207.
24

At the conclusion of his testimony, the Court noted that Sheffer was “a nice
gentleman” and wished him well. Those comments, while sincere, did not mean that the Court
found his testimony persuasive.

40 FMSHRC Page 197

Then, directed to the first eight pages of R 1, Meador stated they reflected the other times
he had done escapeway exams. Tr. 233. For the week beginning September 1, 2105, Meador
stated that exam reflects hazards he had found. At that time he found, “no double cones for a
branch line, and that was entry 6, crosscut 79 … [and he] found where there was no man door
sign, entry 6,crosscut 88.” Tr. 234. For the week of September 8th, he found a hazard at the
primary escapeway, crosscut 84, second southwest to unit 3, in that there was a walkway needing
cleraring. Tr. 235. Meador cleared the walkway. Id. For the week of September 14th Meador
found in the first northeast entry for crosscut 79 that there were no double cones for a branch line
and in the first northeast entry 4, crosscut 75, crosscut 82, and crosscut 85, there were no spears
on the lifeline. He corrected those deficiencies. Tr. 237. For the week of September 21, 2015, he
found that there was a curtain left up. This presented a ventilation issue, which he rectified by
taking the curtain down. Tr. 238. For the week of October 12th, at the secondary escapeway from
the second southwest crosscut 81 to unit 3, he found some exposed bolts at the southeast entry 4
to 5 to crosscut 57 and entry 4 to 3, crosscut 82. Tr. 238. He corrected that hazard. Id. For the
week of October 19th, Meador found another exposed bolt and the absence of a man door sign in
an entry, and he addressed those hazards. Tr. 239-240.
Meador confirmed to the Court that in reviewing his examinations, as discussed during
his testimony, he did not find a single instance of a problem with any rib. Tr. 242. The Court
considered that to be notable. Cross-examination continued that theme. Directed to Exhibit R 1,
and page 9 and line 7, Meador read that the location was “the primary escapeway from the pit to
second southwest crosscut 84,” and that he found no conditions or hazards there. Tr. 244.
Further, he agreed that he examined the primary escapeway of entries 6 and 7 and that had he
pulled any ribs down in that location he would have noted that in his weekly exam log, and that
no such notations about ribs were made. Tr. 244-245. Though he could not be specific about a
date, Meador conceded that he was told about being more alert for rib problems prior to October
2015. Tr. 248.
Applicable Law
Unwarrantable Failure violations
As the Commission has noted, “The unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator
in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated conduct constituting more than
ordinary negligence. Unwarrantable failure is characterized by such conduct as “reckless
disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at
2002-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck
Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s
unwarrantable failure test). Whether the conduct is “aggravated” in the context of unwarrantable
failure is determined by looking at all the facts and circumstances of each case, including (1) the
extent of the violative condition, (2) the length of time that it has existed, (3) whether the
violation posed a high risk of danger, (4) whether the violation was obvious, (5) the operator’s
knowledge of the existence of the violation, (6) the operator’s efforts in abating the violative
condition, and (7) whether the operator has been placed on notice that greater efforts are

40 FMSHRC Page 198

necessary for compliance. Consolidation Coal Co., 35 FMSHRC 2326, 2330 (Aug. 2013), citing
Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346,
1350-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on
other grounds, 195 F.3d 42 (D.C. Cir. 1999); see also Consol Buchanan Mining Co. v. Sec’y of
Labor, 841 F.3d 642, 654 (4th Cir. 2016). These factors must be viewed in the context of the
factual circumstances of a particular case. Consolidation Coal Co., 22 FMSRHC 340, 353 (Mar.
2000).” American Coal, 39 FMSHRC 8, *9, (Jan. 2017).
Related to that is the subject of negligence, the Commission has noted that it “evaluates
the degree of negligence using ‘a traditional negligence analysis.’ Mach Mining, LLC v. Sec’y of
Labor, 809 F.3d 1259, 1264 (D.C. Cir. 2016) (citation omitted). Because the Commission is not
bound by the Secretary’s regulations addressing the proposal of civil penalties set forth in 30
C.F.R. Part 100, the Commission and its Judges are not required to consider the negligence
definitions in 30 C.F.R. § 100.3(d). Id. at 1263-64.” Id. at *14.
“Significant and substantial” violations
As the Commission has stated, [a] violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission further explained: In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard -that is, a measure of danger to safety -- contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature. **6 Id. at 3-4 (footnote
omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin
Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
Consol Pennsylvania Coal Co., 39 FMSHRC 1893, *1899 (Oct. 2017).
Discussion
In addition to determining whether violations were demonstrated for these three matters,
something the Court finds was clearly established for each, the other key issues involve whether
unwarrantable failures were present for all three orders and, for two of them, whether the
violations were significant and substantial. The Court, as noted at the outset of this decision,
affirms all three and in all particulars.25
The Respondent maintains that no violation of the adequate examination standard,
occurred, as alleged in Order No. 9036624. Respondent notes that “[d]etermination of
compliance with Section 75.364(b) is an objective inquiry that asks whether the operator acted
reasonably prudently and conducted an adequate examination for hazardous conditions and
25

While the Court read and fully considered the parties post-hearing briefs and the reply
briefs, it does not believe it is necessary to discuss with particularity each contention raised.

40 FMSHRC Page 199

certain violations [and that] [t]he ‘reasonably prudent person’ test considers whether ‘a
reasonably prudent person, familiar with the mining industry and protective purpose of the
standard, would have recognized [the condition at issue as a] hazardous condition that the
standard seeks to prevent.’” R’s Br. at 11. To support its contention, Respondent asserts that
Meador checked for “myriad hazards and conditions,” and if a loose rib was encountered he
would either pry it down or flag the condition. Id. at 12.
The problem is Meador’s professed diligent examination does not square with the
conditions Tisdale found. Though examiner Meador’s testimony went through the few hazards
he found, they were relatively isolated discoveries and not a one involved loose ribs.
Accordingly, the Court finds that Meador’s testimony actually supported the Secretary’s case.
The multiple weeks of his escapeway exams during September and October of 2015 were
notable for how little he found wrong over that extended period of time. Though the Respondent
argued that gaps in the ribs can be difficult to discern, the inspector’s order asserted that the
loose ribs “were obvious to the most casual observer.” Order No. 9036624. The Court which
finds Tisdale’s testimony to have been credible overall, finds that the ribs were as described by
the inspector. It must be remembered that this was not simply one missed loose rib. The
inspector found, credibly in the Court’s determination, at least seven loose ribs that day. The
violation is therefore affirmed.
Addressing the unwarrantable failure and high negligence determinations in the
inspector’s evaluation, as supported by his credible testimony, Respondent contends that neither
finding was proper. R’s Br. at 14. To support these arguments, Respondent contends that the
conditions were not extensive. The evidence shows otherwise. Further, that the ribs were pried
down in short order does not address either unwarrantable failure or the high negligence
determinations made by the inspector. The Court has already addressed the argument that the
inspector reconsidered his initial view that a citation, not an order, was appropriate.
Respondent then moves to the issue of examining whether there is a high degree of
danger in deciding if a violation constitutes an unwarrantable failure, contending that no such
high degree was present in this instance. R’s Br. at 17. For this the Respondent points to
relatively infrequent travel in the cited areas and because of testimony that some of the rib
material did not fall into the walkway. R’s Br. at 17-18.
The Respondent also contends that the claim that the conditions existed for an extended
time was speculative. R’s Br. at 19. Arguing that the conditions were not shown to have been
growing over the three week period, Respondent contends that the Secretary’s evidence was only
the inspector’s “testimony in support of [the] point.” Id. at 21. The Court would comment that
the inspector’s opinion was derived from his considerable mining experience. It is simply not
serious to suggest that the numerous loose ribs the inspector found all developed in the
approximate nine hours that elapsed between the mine examiner’s examination and the
inspector’s observations.
It is also contended by the Respondent that the “Secretary’s witnesses’ bald assertions
that Peabody was ‘on notice’ does not support the unwarrantable failure findings.” R’s Br. at 21.
To support that assertion, the Respondent notes that the notice was nonspecific and that the

40 FMSHRC Page 200

standard involved, 30 C.F.R. § covers more than ribs as it also addresses roof and face support.
Id. But, it must be noted that ribs, roof and faces are of the same family of concerns; each
address areas where persons work or travel and are aimed at protecting persons from falls from
each of the three. Indeed, the standard’s title itself informs that it addresses “[p]rotection from
falls of roof, face and ribs.” Beyond that observation, the inspector testified, credibly, as noted
in the findings of fact that, putting aside the prior notice issue, he still would have issued his
unwarrantable failure findings, irrespective of that notice. Further, when given the opportunity to
present mitigating factors, the Respondent came up empty.
Respondent’s contentions regarding the S&S and “reasonably likely” determinations for
Order Nos. 9036623 and 9036624, the rib support and inadequate examination.
Those orders, the reader will recall, relate to the rib conditions found by the inspector
along the two cited escapeways and the claim that the ribs were not adequately supported to
protect miners from rib falls. However, the Court notes at the outset that, while Inspector Tisdale
found that Order No. 9036623 was S&S, he also found that his other order for inadequate
support, per Order No. 9036625, was not S&S. In the Court’s estimation these speak to the
inspector’s discernment that the conditions did not present identical risks and it dispels the idea
that the inspector simply reflexively designated all such instances as S&S.
In any event, speaking to the third prong of Mathies, the Respondent contends that “[i]n
the context of a Section 75.202(a) violation, ‘[t]he likelihood of an injury producing event must
be evaluated by considering the likelihood of two specific events occurring simultaneously, a
rock or other material falling from the roof [or rib] and the presence of a miner directly
underneath it.’” R’s Br. at 27. Reduced to its essence, the Respondent has in essence argued that
infrequent travel in the cited area negates an S&S finding. R’s Br. at 27-28. The Respondent
also contends the material which fell “did not substantially extend to the center of the entry,
where miners would be expected to travel.” Id. at 29. Further, the Respondent maintains that the
inspector’s testimony “does not support that any injury was reasonably likely [as there was no
evidence] … to demonstrate the likelihood that a rib would fall at such a time when someone
would be present.” Id at 29. Thus, Respondent argues that there was “no explanation to support
that a fall of rib that would affect a miner would be reasonably likely.” Id at 30.
Last, the Respondent urges that the penalties sought by the Secretary are excessive,
observing that “[t]he Secretary proposed a specially assessed penalty of $15,900 for Order No.
9036623, and penalties of $4,000 each for Order Nos. 9036624 and 9036625, which represented
the statutory minimum for a Section 104(d)(2) enforcement action at the time of their issuance.”
Id. at 30. After noting that, when before the Commission, penalties are imposed de novo and
therefore that it is not bound by the Secretary’s proposed penalties, Respondent adds that
substantial divergences from the proposed penalties require that the basis for such changes be
explained. Id. at 30-32.
In each instance, the Respondent notes that the burden remains with the Secretary to
establish the appropriateness of the penalties sought and “when the Secretary petitions for
penalties above the normal formula or statutory minimum, … he has the burden of establishing
the existence of aggravating factors to justify such an increase.” R’s Br. at 32. Focusing upon

40 FMSHRC Page 201

Order No. 9036623, for which the Secretary has sought a special assessment of $15,900.00,
instead of the statutory minimum of $4,000.00, the Respondent contends that “[t]he Secretary
has offered no evidence that would show the propriety of penalties beyond [the regular, in this
instance, statutory minimum, assessment] amounts [and accordingly] [w]hen the Secretary
produces no justification for a specially assessed penalty, it should be rejected.” Id. at 33-34. If
the Court were to agree with the Respondent that “the unwarrantable failure and high negligence
findings for all three Orders are inappropriate [and consequently that] … the unwarrantable
failure findings were deleted, [ ] the statutory minimum [would] no longer [be] applied.26 Id. at
34.
The Respondent’s arguments in support of lower penalties only apply if the Court agrees
that aggravating factors were not demonstrated, and that the unwarrantable failure and high
negligence designations are not appropriate. The Court does not agree with the Respondent’s
perspective.
The Secretary’s post-hearing brief
The Secretary asserts that the uncontroverted evidence establishes that five loose ribs
were identified during the inspection of the 2nd Southwest Primary escapeway, which were
gapped from the rib and that three loose ribs were identified at the Main South Primary
escapeway which were gapped from the rib. Sec. Br. at 18-19. Ostensibly, these areas had been
examined only 9 hours earlier. Also, as the Secretary notes, no rib hazards were identified by the
Respondent in the previous two months of examinations. Id. at 19. The Court finds that, rather
than helping the Respondent’s position, those examination records, with so few problems
identified, detract from it.
The Court is in agreement with the Secretary’s observation that the Respondent’s
objection was directed more to the issuance of orders, instead of citations, with the latter being
more palatable.
Regarding the S&S finding for the 2nd Southwest Primary escapeway, as the Secretary
notes, those ribs, when pulled down, fell under the lifeline. As for the S&S finding for the
inadequate examination, the Secretary correctly observes, quoting from Mach Mining, LLC, 32
FMSHRC 1375, 1381 (Sept. 2010) (ALJ) (“Mach”), “[I]f the condition of the escapeway was
itself a significant and substantial violation, then for the same reasons the failure to document
and report such conditions constitutes a significant and substantial violation.” Sec. Br. at 23. The
Court agrees with the reasoning of the administrative law judge in that decision and that these
violations go hand in hand.
Continuing with its S&S analysis, the Secretary, and working from the Court’s finding
that all three violations were established, the second element, the measure of danger to safety –
contributed to by the violation, the twin failures – the failure to support the ribs and the failure to
26

The Respondent’s contends that if its arguments were adopted, “Order No. 9036623
would have been assessed a penalty of $3,493, Order No. 9036624 would have been assessed a
penalty of $2,976 and Order No. 9036625 would have been assessed a penalty of $705.” Id.

40 FMSHRC Page 202

note their presence – “resulted in the mine not addressing hazardous conditions and therefore
exposing miners to those conditions. By allowing the hazardous rib conditions to continue in an
area that had not been adequately examined, Peabody put its miners at risk for harm.” Id. at 24.
As for the third prong of Mathies, a reasonable likelihood that the hazard contributed to
will result in an injury, the inspector credibly testified in support of that element. As the
Secretary contends, “[t]he failure to identify loose ribs in examinations and the failure to control
them are reasonably likely to contribute to an injury.” Id. at 25.
For the fourth Mathies element, that there is a reasonable likelihood that the injury in
question will be of a reasonably serious nature, the Secretary notes that falling material, or falls
and tripping on material on the ground constitute such a reasonably serious injury. Id. In the
Court’s view, applying the Mathies analysis, establishes the S&S nature of the two orders which
made those assertions. While Mathies was met simply based on the limited regular travel along
these escapeways, it is also independently satisfied when viewed from the use of these areas
should the need for an escape occur. One cannot predict when the need for an escapeway will
arise. There is nothing in this record which would suggest that, under continued normal mining
operations, the unsupported ribs would have been addressed, especially given that no such
problems were noted, even 9 hours earlier. Again, the inspector displayed both reasonableness
and discernment in assessing the unsupported ribs by finding that only one of the two
unsupported rib violations was S&S.
As for the unwarrantable failure designations, which were applied to each of the matters
heard, the Secretary asserts that on the basis of Inspector Tisdale’s observations of “obviously
gapped ribs across two different escapeways, which had not been discovered and corrected
despite Peabody’s heightened notice regarding ongoing issues it was having with respect to rib
control [and considering that] Inspector Tisdale reviewed Peabody’s inspection reports and
found the examiner had not identified these hazards a mere nine hours prior to the MSHA
inspection [and also that] …. the hazards had not been identified at any time during the previous
two months,” such confluence of factors requires the Court to affirm the ‘unwarrantable failure’
classification.” Sec. Br. at 26-27. Although the Secretary points to the issuance of “30 citations
over the past two years for violations under 75.202(a),” in support of its unwarrantable failure
contention, the Court considers that aspect of the analysis to be potentially problematic, as the
status of those citations is unclear. Instead, the Court looks to the testimony that the Respondent
was put on notice about the issue of roof, face and rib issue, per 30 C.F.R. § 75.202, not long
before the orders in this case.
Beyond the history/notice issue, the Secretary points out the importance of examinations
in general, as a fundamental for safe mining. The Court agrees, seeing this as an obvious but
equally important responsibility, which is important to call out. As the Secretary states, miners
“rely on the information recorded in the examination books to ensure that everything is safe for
the oncoming shifts. Examiners are charged with a unique and singular responsibility to protect
miners from identifiable hazards, and it is paramount that mine examiners report these hazards
on the books so that mine management can eliminate the hazards and minimize the potential for
accidents.” Sec. Br. at 28-29.

40 FMSHRC Page 203

Conclusions and Penalty Determinations
The three violations involved here are obviously interrelated. Two involved inadequately
supported ribs along connected escapeways, while the other pertained to the concomitant
obligation to have the weekly inspections of those areas adequately performed. Because all three
were closely so related, it would be logically inconsistent to determine that only one or two were
unwarrantable failures. The conditions should have been observed during the examinations, as
they existed for a considerable period of time, certainly over multiple shifts, if not weeks. Such
conduct clearly constitutes a serious lack of reasonable care.
The same is true for the two orders involving a failure to adequately support the ribs, as a
serious lack of reasonable care occurred. The credible testimony from Inspector Tisdale was
clear – there were multiple instances of ribs, at least seven, which had to be taken down. The
inspector watched them being pried down and then made reasonable tape-measured estimates of
their size. As MSHA trainee inspector Hohn credibly recalled, Schwartze remarked that the mine
“dropped the ball” and it had to do better. Later, Schwartze did not fully deny that he made that
admission.
Among the seven factors the Commission has identified to determine if conduct is
“aggravated,” as set forth above, the Court finds that six were present. The lone factor that could
be debated was “whether the violation posed a high risk of danger.” This factor requires some
parsing. Given the critical nature for mine safety that examinations play, the Court finds that, as
to the inadequate exam charge, there was a high risk of danger, given the number of inadequately
supported ribs and the length of time those conditions existed. As for that factor’s application to
the inadequate supported ribs themselves, the inspector drew distinctions between the two,
finding the ribs along the 2nd South West primary escapeway to be “reasonably likely” to result
in an injury, while determining that the ribs along the Main South primary escapeway, was
unlikely to result in an injury.
However, there is no suggestion that the Commission has required all seven factors to
exist for an unwarrantable failure. Instead, that determination is to be made “by looking at all the
facts and circumstances of each case.” That is the approach the Court took. The Court found that
Inspector Tisdale was knowledgeable, articulate and reasonable in his assessment of the two
areas where he found inadequately supported ribs. His testimony was credible on those matters,
whereas the evidence presented by the defense was unpersuasive. Given the Court’s findings of
unwarrantable failure for all three orders, the “high negligence” determinations are similarly
sustained.
As for the S&S determinations, applicable to the inadequate examination and the
inadequately supported ribs along the 2nd South West primary escapeway, the violations have
been established. The discrete safety hazard, a measure of danger to safety, contributed by the
violation, inadequate exams being a linchpin to effective safety, provides such a measure when
an exam fails to note conditions “obvious to the most casual observer.” Regarding the last two
factors, the reasonable likelihood that the hazard contributed to will result in an injury; and that
the injury in question will be of a reasonably serious nature, the Court finds that Inspector
Tisdale’s testimony was persuasive on those scores. Harlan Cumberland Coal, 20 FMSHRC

40 FMSHRC Page 204

1275, 1278 (Dec. 1998). The idea that infrequent travel along the cited escapeways is
inconsistent with an S&S finding is rejected.
Summary
Having found that the violations identified in the Orders were each established and that
the Inspector’s evaluation of the gravity and negligence and his finding of unwarrantable failure
were demonstrated and no cognizable mitigation advanced,27 the Court therefore finds, that upon
application of the statutory criteria, the penalties proposed by the Secretary should be applied.28
Order No. 9036623 $15,900.00
Order No. 9036624 $ 4,000.00
Order No. 9036625 $ 4,000.00
Total penalty imposed: $23,900.00
ORDER
It is hereby ORDERED that the three Orders in this decision are AFFIRMED as
written. Respondent is ORDERED to pay civil penalties in the total amount of $23,900.00
within 30 days of this decision.29

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

27

The Secretary proved all elements of the alleged violations by a preponderance of the
evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000)
28

The other statutory factors were duly considered. From the parties’ stipulations, it is
noted that the Francisco Underground Pit mine site worked 2,935,577 tons during the period of
January 1, 2015 to December 31, 2015 and that the Respondent had 515 previous violations in
the 15 month period ending October 28, 2015.. (Stipulations 6 and 7; Sec’y Ex. P-1). 7. The
factors of good faith and ability to continue in business did not impact the penalty determination.
29

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.

40 FMSHRC Page 205

Distribution:
Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222
Emelda Medrano, Esq. and Kevin Wender, Esq., Office of the Solicitor, U.S. Department of
Labor, Region 5- Chicago, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604

40 FMSHRC Page 206

ADMINISTRATIVE LAW JUDGE ORDERS

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

January 9, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. SE 2017-236-M
A.C. No. 38-00600-443931 (1BU)

v.
BLANCHARD MACHINERY COMPANY,
Respondent.

Mine: Haile Gold Mine

ORDER GRANTING SECRETARY’S MOTION TO AMEND PLEADING
AND
ORDER ACCEPTING APPEARANCE
This case is before me upon the Petition for the Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) pursuant to section 105 of the Federal Mine Safety and Health
Act of 1977 (“Mine Act”), 30 U.S.C. § 815. It is hereby ORDERED that Conference and
Litigation Representative (“CLR”) Brandon E. Russell be accepted to represent the Secretary in
accordance with the Notice of Limited Appearance he filed with the penalty petition. Cyprus
Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 1994).
I. Procedural Background
On November 1, 2017, Chief Administrative Law Judge Robert J. Lesnick notified the
parties that Docket No. SE 2017-236-M had been designated for Simplified Proceedings and was
assigned to me. On November 14, 2017, I discontinued Simplified Proceedings and issued my
Prehearing Order requiring the parties either to settle this matter or position it for hearing by
April 3, 2018.
On December 7, 2017, the CLR on behalf of the Secretary filed a Motion to Amend
Citation requesting amendments to Citation No. 8792386. (Mot. at 1–4.) Respondent timely filed
a response on December 15, 2017, asserting that the Secretary’s motion to amend should be
denied as futile. (Resp. at 1–4.)
II. Principles of Law
The Commission has held that modification of a citation is analogous to the amendment
of pleadings under Federal Rule of Civil Procedure 15(a), which states that leave for amendment
“shall be freely given when justice so requires.” Wyoming Fuel Co., 14 FMSHRC 1282, 1290
(Aug. 1992) (quoting Fed. R. Civ. P. 15(a)). Accordingly, amendments are to be liberally granted
unless one of the following factors justifying denial is present: (a) undue delay; (b) bad faith by
moving party; (c) repeated failure to cure deficiencies by previous amendments; (d) undue

40 FMSHRC Page 207

prejudice to the opposing party; or (e) futility of amendment. Foman v. Davis, 371 U.S. 178, 182
(1962); see Wyoming Fuel Co., 14 FMSHRC at 1290 (citing Cyprus Empire Corp., 12 FMSHRC
911 (May 1990); 3 J. Moore & R. Freer, Moore’s Federal Practice ¶ 15.08[2], 15–47 to 49 (2d
ed. 1991)).
An amendment is futile if it could not survive a motion to dismiss for failure to state a
claim. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995) (citing Glick v. Koenig, 766
F.2d 265, 268–69 (7th Cir. 1985)). The Commission’s Procedural Rules do not provide formal
guidance on a motion to dismiss for failure to state a claim. However, Commission Judges have
treated such filings as motions for summary decision. See, e.g., Kerlock v. Asarco, LLC, 36
FMSHRC 2404, 2405 (Aug. 2014) (ALJ); Sec’y of Labor on behalf of Chaparro v. Comunidad
Argricola Bianci, Inc., 32 FMSHRC 1517 (Oct. 2010) (ALJ); Sec’y on behalf of Brewer v.
Monongalia Cnty. Coal Co., 38 FMSHRC 1876 (July 2016) (ALJ). Commission Procedural Rule
67(b) provides that a motion for summary decision shall be granted only if “the entire record,
including the pleadings, depositions, answers to interrogatories, admissions, and affidavits,
shows: (1) [t]hat there is no genuine issue of material fact; and (2) [t]hat the moving party is
entitled to summary decision as a matter of law.” 20 C.F.R. § 2700.67(b).
III. Discussion and Analysis
In his motion, the Secretary requests that the cited standard be modified from “30 C.F.R.
§ 47.41(a)(1)” to “30 C.F.R. § 56.4402.” (Mot. at 2.) Section 56.4402 provides that “[s]mall
quantities of flammable liquids drawn from storage shall be kept in safety cans labeled to
indicate the contents.” 30 C.F.R. § 56.4402. Additionally, the Secretary proposes to amend
Section 8 of the citation to now read:
A five (5) gallon safety can was observed was sitting in rear of the
International service truck without labeling containing the
appropriate information on it. The 1/3 full contained had what
appeared to be oil based substance (Gasoline Fuel) in it. The
purpose of the label is to reduce the possibility of injury or illness
by ensuring that each miner is provided correct information about
the hazardous properties of the contents and appropriate protective
measures to be taken. Should a miner allow gasoline vapors to
contact any ignition source, it would result a flash fire and
potential burns.
(Mot. at 2) (emphasis notes changed language.) The Secretary states that the proposed
amendments more accurately depict the violation that occurred, but do not substantively change
the factual basis of the violation alleged by the Secretary. (Id.) The Secretary asserts that the
amendments would not prejudice Respondent because the facts and witnesses remain the same,
the parties have not yet completed discovery, and a hearing date has not yet been scheduled.
(Id. at 3.)
In its response to the motion, Respondent contends only that the proposed amendments
are futile. (Resp. at 3.) Respondent argues that it did not violate the proposed amended standard,

40 FMSHRC Page 208

30 C.F.R. § 56.4402, because it is exempted from coverage by 30 C.F.R. § 47.44. (Id.)
Respondent claims that amending the citation to allege a violation of section 56.4402 instead of
section 47.41 is futile because Respondent meets an exception to both sections, and therefore did
not violate either. (Id. at 4.)
In order to establish that the Secretary’s proposed amendments are futile, Respondent
must prove it would be entitled to summary decision as a matter of law, even if the proposed
amendments were accepted. See Perkins, 55 F.3d at 917; see, e.g., Kerlock, 36 FMSHRC at
2405; Chaparro, 32 FMSHRC 1517; Brewer, 38 FMSHRC 1876. In this regard, Respondent
asserts that the alleged facts of the violation fit an exception to the container labeling
requirements provided in section 47.44. Section 47.44 states that “[t]he operator does not have to
label a temporary, portable container if he or she ensures that the miner” using the portable
container “[k]nows the identity of the chemical, its hazards, and any protective measures
needed,” and “[l]eaves the container empty at the end of the shift.” Respondent claims that
section 47.44 applies because the gasoline was kept in a “temporary, portable container,” the
operator of the vehicle where the container was kept knew of the container’s contents, and the
container was emptied at the end of his shift. (Resp. at 3–4.)
Despite Respondent’s arguments, there remain genuine issues of material fact as to
whether the “five (5) gallon safety can” that the Secretary identified in Citation No. 8792386 was
a “temporary, portable container” and thus covered by the exception found in section 47.44. As
such, Respondent has not established that the proposed amendments would not survive a motion
for summary decision at this juncture and are thus futile.
Respondent has not offered any arguments that the Secretary’s proposed amendments
would unduly delay the hearing, are motivated by bad faith, fail to cure deficiencies by previous
amendments, or would unduly prejudice Respondent. I therefore see no reason to disallow the
Secretary’s proposed amendments.
IV. Order
Accordingly, the Secretary’s Motion to Amend Pleading is GRANTED. It is hereby
ORDERED that the pleadings in Citation No. 8792386 are AMENDED in accordance with the
Secretary’s motion, as indicated in the motion and in my discussion supra Part III.

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

40 FMSHRC Page 209

Distribution: (Via Electronic Mail & U.S. Mail)
Brandon E. Russell, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
1030 London Drive, Suite 400, Birmingham, AL 35211-4542
(russell.brandon@dol.gov)
Uche Egemonye, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street
S.W., Room 7T10, Atlanta, GA 30303-8816
(egemonye.uche@dol.gov)
Travis W. Vance, Esq., Fisher & Phillips LLP, 227 West Trade Street, Suite 2020, Charlotte, NC
28202-1688
(tvance@fisherphillips.com)
/ivn

40 FMSHRC Page 210

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

January 9, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. VA 2017-0104
A.C. No. 44-07355-430464

CARTER MACHINERY CO INC,
Respondent.

Mine: Surface Mine No. 1

ORDER ON MOTIONS FOR SUMMARY DECISION
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 filed a
motion for summary decision (“Respondent’s Motion”) and Brief in Support thereof
(“Respondent’s Brief”). Thereafter, the Secretary of Labor, acting through a non-attorney, a
conference litigation representative, or “CLR,” filed a response to that motion and, in the same
response, included a cross-motion for summary decision. (“CLR Response and Cross-Motion”).
For the reasons which follow, the Court DENIES both motions. The Court further finds that the
CLR, a non-attorney, is attempting de facto to practice law without a license, and therefore, as
explained below, the CLR is DENIED permission by the Court to practice before it in such a
manner.
Background
This docket involves a single section 104(a) citation alleging a violation of 30 C.F.R.
§77.1104.1 The cited standard titled “Accumulations of combustible materials,” provides
“Combustible materials, grease, lubricants, paints, or flammable liquids shall not be allowed to
accumulate where they can create a fire hazard.”
The Citation alleges that the Respondent allowed combustible material, namely motor oil,
to accumulate in the engine compartment of a front-end loader. In particular, the Citation, which
was issued on December 19, 2016, alleged that “[a]ccumulations of combustible material in the
form of engine oil was [sic] located on the right side of the engine of the Kenworth maintenance
truck c/n 1357, tag 149087. The oil was covering the engine block behind the turbo and
alternator. The accumulations were being caused by an oil leak at the filter housing. Oil had

1

Part 77 sets forth mandatory safety standards for surface coal mines and surface work
areas of underground coal mines.

40 FMSHRC Page 211

puddle[d] under the truck due to this oil leak. Oil leaks near the turbo and electrical components
such as the alternator are reasonably likely to cause a fire resulting in serious injuries.2
SUMMARY DECISION
The Commission’s procedural rules speak to Summary decision of the Judge at 29 C.F.R.
§ 2700.67 which, in pertinent part, provides
(b)Grounds. 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.
(c) Form of motion. A motion shall be accompanied by a memorandum of points
and authorities specifying the grounds upon which the party seeks summary
decision and a statement of material facts specifying each material fact as to
which the party contends there is no genuine issue. Each material fact set forth in
the statement shall be supported by a reference to accompanying affidavits or
other verified documents.
(d)Form of opposition. An opposition to a motion for summary decision shall
include a memorandum of points and authorities specifying why the moving party
is not entitled to summary decision and may be supported by affidavits or other
verified documents. The opposition shall also include a separate concise statement
of each genuine issue of material fact necessary to be litigated, supported by a
reference to any accompanying affidavits or other verified documents. Material
facts identified as not in issue by the moving party shall be deemed admitted for
purposes of the motion unless controverted by the statement in opposition. If a
party does not respond in opposition, summary decision, if appropriate, shall be
entered in favor of the moving party.
(e)Affidavits. Supporting and opposing affidavits shall be made on personal
knowledge and shall show affirmatively that the affiant is competent to testify to
the matters stated. Sworn or certified copies of all papers or parts of papers
referred to in an affidavit shall be attached to the affidavit or be incorporated by
reference if not otherwise a matter of record. The judge shall permit affidavits to

2

The Citation also stated that “Standard 77.1104 was cited 8 times in two years at mine
4407[355] (0 to contractor BZ5).” It was marked as “Reasonably Likely,” “lost workdays or
Restricted Duty,” “Significant and Substantial,” of “Moderate” negligence, with 1 person
affected.

40 FMSHRC Page 212

be supplemented or opposed by depositions, answers to interrogatories,
admissions, or further affidavits.
29 C.F.R. § 2700.67 (emphasis added)
In John Richards Construction, 39 FMSHRC 959, May 2017, the Commission noted that
it “has long analogized summary decision to summary judgment under Rule 56 of the Federal
Rules of Civil Procedure, Fed R. Civ. P. 56. See, e.g., Kenamerican Res., Inc., 38 FMSHRC
1943, 1946 (Aug. 2016); Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994).” Id. at
*960. When the record shows disputed material facts, summary decision is inappropriate. Id.
In Sec. of Labor v Sunbelt Rentals, 39 FMSHRC 1183 May 2017, (“Sunbelt”) Judge
McCarthy noted that in “[a]pplying these rules, the Commission has long recognized that
summary decision is an extraordinary procedure analogous to Rule 56 of the Federal Rules of
Civil Procedure, under which “the Supreme Court has indicated that summary judgment is
authorized only ‘upon proper showings of the lack of a genuine, triable issue of material fact.”’
Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3
FMSHRC 2470, 2471 (Nov. 1981) and Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)); see
also Lakeview Rock Prods., Inc., 33 FMSHRC 2985, 2987-88 (Dec. 2011) (reiterating the
Commission’s summary decision rules). In reviewing a record on summary decision, a judge
must evaluate the evidence in the light most favorable to the party opposing the motion. Hanson
Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007); see also Poller v. Columbia
Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654,
655 (1962)).” Sunbelt at *1185
As noted in Crown Resources v Sec. of Labor, “Summary judgment should not be granted
‘unless the entire record shows a right to judgment with such clarity as to leave no room for
controversy and establishes affirmatively that the adverse party cannot prevail under any
circumstances.’ Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994) ...
For summary judgment to be appropriate, the evidence must do more than allow the court to find
in the movant’s favor, it must ‘require that the court do so.’ Hunt v. Cromartie, 526 U.S. 541,
552 (1999) (emphasis in original). If, when viewing the evidence and drawing all permissible
inferences in favor of the non-movant, the record could support either party, then resolution at
the summary judgment stage is inappropriate. Id.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-55 (1986). Disposition by summary decision is appropriate provided: (1) the entire record
establishes that there is no genuine issue as to any material fact; and (2) the moving party is
entitled to summary decision as a matter of law. 29 C.F.R. §2700.67(b). See Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986); Mo. Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981). If the
moving party fails to meet its burden, then summary decision must be denied, regardless of the
sufficiency of the opposition. Even the absence of an opposition does not entitle the movant to
summary decision when the motion is inadequately supported. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 159-61 (1970) (summary judgment must be denied where the evidence in support
of the motion does not establish the absence of any genuine issue, even if no opposing evidence
is presented). See also In re Rogstad, 126 F.3d 1224, 1227-28 (9th Cir. 1997); Campbell, 21 F.3d
at 55-56. 39 FMSHRC 1536, *1537, Crown Resources v. Sec of Labor, July 2017 Judge Gill

40 FMSHRC Page 213

Respondent’s Motion for Summary Decision and Brief in Support3
The Respondent contends that the Secretary cannot establish any of the three elements for
the cited standard: combustible material; which material was allowed to accumulate; in an area
where the accumulation can create a fire hazard. Respondent asserts there is no genuine issue of
material fact because the Secretary has no evidence as to the quality of the substance on the
engine block, nor its quantity, nor the temperatures to which such substance would be exposed.
Because the Secretary took no samples of the material, nor did he take measurements of its
quantity or the temperatures involved, there is no evidence to support the alleged violation.
Respondent’s Motion at 2.
Pointing to the Secretary’s responses to the Respondent’s requests for admission,
Respondent notes that the Secretary admits he did not take any temperature readings of the truck,
Requests for Admission (“RFA”) 5 and 9, nor take such readings while the truck was in
operation after 15 minutes, nor after 30 minutes, 1 hour, 2 hours or 3 hours, Id. at 3, RFAs 10-14.
Respondent asserts that Secretary cannot demonstrate that the material was motor oil, nor that it
was allowed to accumulate, nor that such amounts created a fire hazard. Id. at 4. Respondent
contends that the evidence does not show that the surface temperature of the equipment was high
enough to cause an auto ignition of the accumulation, arguing that, if that were true, other engine
parts would be subject to combustion.4 Id. at 5. Respondent also argues that, even if the motor
oil is assumed to have a flashpoint between 399 and 445 degrees, that does not establish the
presence of a fire hazard because it has not been shown that the location of any such
accumulations was sufficient to create a fire hazard. Id. at 6. In sum, the Respondent maintains
that a violation of the cited standard cannot be established simply because of the alleged
presence of motor oil on an engine when coupled with the fact that an engine produces heat.
The non-attorney conference litigation representative’s Response to Respondent’s Motion
for Summary Decision and Cross-Motion for Summary Decision5
Conference litigation representative David Steffey filed the Secretary of Labor’s
Response to Carter Machinery Co. Inc.’s Motion for Summary Decision and Cross-motion for
Summary Decision. December 8, 2017 (“CLR Response and Cross-Motion”). Speaking to the
standard cited, the CLR refers to “[c]ase law” that sets forth the elements of the standard at issue,
3

Respondent’s Motion for summary decision was submitted by an attorney. The same
attorney also filed the Respondent’s Reply in Opposition to the Secretary’s cross-motion for
summary decision.
4

In making this argument, Respondent takes issue with an article about turbochargers,
asserting that it does not advance the Secretary’s case. The Court views this issue as one best
resolved through testimony and, if such testimony is permitted, then followed by crossexamination.
5

The CLR also opines about the Respondent’s reference to the term “prevailing party”
offering his thoughts about the Equal Access to Justice Act. CLR Response and Cross-Motion at
2. In this setting of litigation, such expressions constitute the practice of law.

40 FMSHRC Page 214

30 C.F.R. §77.1104. In doing so, the CLR cites Maxxim Rebuild Co., LLC, 35 FMSHRC 3261,
3268 (Oct. 2013) (ALJ) and Northwestern Resources, 21 FMSHRC 431, 438 (Apr. 1999) (ALJ)
and other ALJ decisions. CLR Response and Cross-Motion at 2-3. The CLR then proceeds to
present his views of case law interpretation of the terms “combustible material,”
“accumulations,” and the meaning of “can” in the context of whether material can cause a fire
hazard. From there, citing another ALJ decision, the CLR addresses the Secretary’s burden
where an accumulation of combustible material on an engine was involved. Each of the CLR’s
references to and legal interpretations of the cited cases, constitute, in the opinion of the Court,
the unauthorized practice of law.
From that display of erudition, the CLR makes a host of contentions, including that “[t]he
normal operating temperature may be relevant to whether a fire was reasonably likely to occur
but it is not determinative of whether a fire ‘can’ occur,” that the issuing inspector stated that oil
leaks where located as alleged by the inspector are reasonably likely to cause a fire, that the
Secretary need not prove his allegations beyond a reasonable doubt, and that the inspector, as a
duly authorized representative of the Secretary, made observations about the combustibility and
the quantity of the oil. CLR Response and Cross-Motion at 4, 5. As such, applying the
framework and definitions provided by the Commission, and using logic and common sense, the
CLR asserts that it has been established that there was oil, that the oil was combustible and in
sufficient quantity to cause a fire. Id.
Given the above, that leaves, according to the CLR, only the issue of whether the
accumulation was in a location where it could cause a fire. Id. at 5. The CLR points to turbo
chargers as a significant ignition source, citing a 2004 fatality where hydraulic oil sprayed on a
turbo charger and the flash point of hydraulic oil. Id. In this instance, the CLR contends, the
normal operating temperature of the engine “goes to the likelihood of a fire and not whether a
fire was possible.” Id.
The CLR winds up his Response and Cross-Motion by asserting that the reasons he has
presented support denial of the Respondent’s Motion. Id. at 6.
The CLR then devotes only a single paragraph of his Response and Motion to his own
cross-motion for summary judgment, wherein he contends
Because a preponderance of the undisputed evidence demonstrates that
combustible material was allowed to accumulate where it could create a fire
hazard, summary decision should be granted in the Secretary’s favor and the
judge should find that §77.1104 was violated. The parties agreed during
settlement negotiations that an injury causing event was unlikely and that the
violation would be modified to Non S&S and the Respondent would accept the
citation being modified to Non S&S and pay a penalty of $345.00. The Secretary
does not intend to present evidence or argument that an injury was reasonably
likely to occur or that the violation was S&S. As such, there are no further issues
to be decided. The parties previously agreed that a penalty of $345.00 was
appropriate given the factors set forth at Section 110(c) of the Act. The affidavit
of Inspector Clevinger sets forth the basis for the negligence determination. The

40 FMSHRC Page 215

administrative law judge should find that the violation was not S&S and should
assess a penalty of $345.00.
CLR Response and Cross-Motion at 6.
The CLR’s cross-motion for summary judgment fails, completely, in form and
substance to meet the requirements of Commission procedural rule 29 C.F.R. § 2700.67.
Further, as Respondent notes in its Reply to the cross-motion, the CLR’s invoking claims
about the parties agreements in their settlement negotiations lays bare, starkly, the
hazards of having non-attorneys practice law.
Respondent Carter Machinery’s Reply in Opposition to the Secretary’s cross-motion for
summary decision.
Respondent Carter Machinery filed a Reply in further support of Respondent Carter
Machinery Co. Inc’s Motion for summary decision and memorandum in opposition to
Petitioner’s Cross-Motion for summary decision.6 (“Carter Reply”)
Carter contends that although the issuing inspector’s affidavit asserts that “oil leaks near
high heat sources such as the exhaust turbo and alternator can cause a fire,” such an assertion is
not the equivalent of a fact. Carter Reply at 3. The same is true, Carter asserts, with a host of
other claims by the inspector.7 On that basis, Carter asserts that the inspector’s affidavit “is
nothing more than the self-serving ipse dixit of an interested party.” Id.
Similarly, Carter asserts that the Secretary’s reference to an MSHA report involving a
fatality from hydraulic oil spraying onto a turbocharger is not relevant because, among other
distinctions, a different machine and a different combustible material were involved in that
instance. Id. at 4.
Of more significance, in the Court’s estimation, Carter notes that the Secretary’s filing
fails to comply with the provision in the Commission’s rule addressing summary decision that
such motions are to be accompanied by “a statement of material facts specifying each material
fact as to which the party contends there is no genuine issue. Each material fact set forth in the
6

In reviewing the submissions from both sides, this Order only addresses contentions that
pertain to the issue of the appropriateness of summary decision. Thus, legal theories in support
of such motions, asserting that one is entitled to summary decision as a matter of law, are not
addressed until the prerequisites are present. Thus, it must first be determined that there is no
genuine issue as to any material fact.
7

Some of the assertions made by the inspector, for which Carter asserts there is a lack
factual support, include his claims that oil leaks near high heat sources such as the exhaust turbo
and alternator can cause a fire, that the flash point of engine oil is far less than the temperatures
of the turbo or arc at the alternator, that the approximate flash point of the oil is approximately
420 degrees Fahrenheit and that the turbo and arc at alternator can exceed 1500 degrees
Fahrenheit. Carter Reply at 3.

40 FMSHRC Page 216

statement shall be supported by a reference to accompanying affidavits or other verified
documents.” 29 C.F.R. § 2700.67(c), Carter Reply at 6.
DISCUSSION
Summary Decision is not appropriate
In order to prevail on a motion for summary decision, the initial hurdle requires showing
that there is no genuine issue as to any material fact. One does not advance to the second step,
establishing that the moving party is entitled to prevail as a matter of law, until the first hurdle,
no genuine issue of material fact has been crossed. Upon review of the motions, the Court
concludes that there are issues of material fact and therefore summary decision is inappropriate.
The material facts involve three elements, establishing: the presence of combustible
material; an accumulation of such material; and an accumulation of a degree that it can create a
fire hazard. Considering the submissions, the Court finds that genuine issues of material fact
remain for each of these elements. Whether the Secretary will be able to establish each of the
elements for the alleged violation of 30 C.F.R. §77.1104, absent an appropriately substantiated
settlement, requires a hearing.8

8

In the Court’s October 6, 2017 Decision Denying Settlement, it was noted that the
Secretary’s original motion to approve settlement, dated July 7, 2017, presented no relevant
information to support the proposed settlement. Rather, the motion simply made an autocratic
pronouncement to the Court that “[t]he Secretary has determined that the S&S and gravity
determinations in the citation at issue shall be modified as discussed above. Substantive
modifications to citations and orders, including the S&S designation, are within the prosecutorial
discretion of the Secretary. Mechanicsville Concrete Inc., 18 FMSHRC 877 (1996). The
Commission’s review of settlement proposals involving such substantive modifications is limited
to whether the agreed-upon penalty amount is consistent with the agreed-upon substantive
modification. Here, a $147.00 reduction in the penalty from $492.00 to $345.00 is appropriate
and supported by the reduction in the gravity findings. The parties agree that the agreed-upon
penalty amount is reasonable given the circumstances surrounding the violation.” Motion at 2-3.
The Court reminded the CLR that Commission Procedural Rule 31(b), titled, “Content of
motion,” and subsection (b)(1) subtitled “Factual support,” require that all motions to approve
settlement “include . . . facts in support of the penalty agreed to by the parties.” 29 C.F.R. §
2700.31(b)(1). The CLR’s statement departs from Rule 31(b), and challenges the scope of the
Commission’s authority to approve settlements under section 110(k) of the Mine Act.” The
Court continued, informing that “[w]hen Commission judges approve settlements, they are
required under Procedural Rule 31 to set forth the reasons for approval of settlements and those
reasons shall be supported by the record. 29 C.F.R. § 2700.31(g) [and that it is] therefore
improper for this Court to issue an order approving a settlement in the absence of any factual
information in the record to support the proposed settlement.” Decision Denying Settlement at 2.

40 FMSHRC Page 217

The CLR’s Motion violates Commission Procedural Rule 29 C.F.R 2700.3(b) in a number
of particulars.
The Secretary’s non-attorney representative, conference litigation representative David
Steffey filed a notice of limited appearance. That notice asserts “The undersigned is authorized
to represent the Secretary in all pre-hearing matters in this case. The undersigned may appear at
a hearing on behalf of the Secretary if an attorney from the Office of the Solicitor is also
present. In the event that the undersigned becomes authorized to appear at a hearing on behalf of
the Secretary without an attorney from the Office of the Solicitor present, an Unlimited Notice of
Appearance of Secretary's Representative will be filed prior to the hearing.” March 14, 2017,
Notice of Limited Appearance of Secretary’s Representative at 1 (emphasis added).
The CLR is apparently of the “limited” representative category. There are several
problems with the Notice of Limited Appearance (“Notice”). First, as the title of “conference
litigation representative” informs, he is a conference representative. It is true that in its October
6, 2017 Decision Denying Settlement, the Court accepted the CLR but that acceptance was only
applicable to that limited appearance. When confined to that role, acting as an MSHA
conference rep, the Court does not take issue with that limited capacity. Typically, in such
circumstances, if a settlement motion is presented to the Court, the motion is focused on facts,
not law, in support of penalty reductions.
However, in this instance the CLR went far beyond that legitimate role of presenting
factual information. In the CLR’s filing of his “Notice” he acknowledges that he is limited to
pre-hearing matters and that if a hearing ensues an attorney from the Office of the Solicitor will
be present. However, merely filing a “Notice,” does not mean that one is accepted to practice
before the Commission. Commission Procedural Rule 29 C.F.R 2700.3(b) does not leave that
decision to a non-attorney filing such a Notice. That subsection provides under the subject
“Other persons” that “A person who is not authorized to practice before the Commission as an
attorney under paragraph (a) of this section may practice before the Commission as a
representative of a party if he is: (1) A party; (2) A representative of miners; (3) An owner,
partner, officer or employee of a party when the party is a labor organization, an association, a
partnership, a corporation, other business entity, or a political subdivision; or (4) Any other
person with the permission of the presiding judge or the Commission.” 29 C.F.R 2700.3(b)
(emphasis added).
Only subsection 4 of the procedural rule applies to the CLR and the Court has not given
permission for the CLR to practice before the Commission in this matter.
In the Court’s estimation the non-attorney CLR is attempting to practice law without
possessing a law license.
In filing his Response to Respondent’s Motion for Summary Decision and Cross-Motion
for Summary Decision, the CLR’s submission does not list any attorney for the Office of the
Solicitor on the submission. Plainly, the CLR is not licensed to practice law, and he does not
make any claim that he holds such a law license. By filing a motion, a legal document, and by
making arguments as to the applicability of summary decision, the CLR has engaged in the

40 FMSHRC Page 218

practice of law without a license. Besides the schooling and licensing requirements,
prerequisites for the practice of law, though such absences are sufficient to establish a serious
transgression, the Secretary’s CLR has provided a practical example of the tendency of the
non-licensed to, as it were, step in it. Carter correctly observes in its Reply that the non-attorney
has referenced that the parties have engaged in settlement negotiations, noting that “settlement
discussions are not considered by the Court, or by courts generally, when deciding the merits of a
case for many reasons, not the least of which is that considering statements made in settlement
negotiations would discourage the parties in any case from discussing settlement at all.” Carter
Reply at 5. In fact, the transgression by the CLR was egregious, as the CLR disclosed in his
Response and Cross-Motion that “[t]he parties agreed during settlement negotiations that an
injury causing event was unlikely and that the violation would be modified to Non S&S and the
Respondent would accept the citation being modified to Non S&S and pay a penalty of
$345.00.” Id. at 6.
Licenses are required for many occupations including such diverse field as auctioneers,
projection operators, security guards, makeup artists, massage therapists and manicurists, to
name a few. Licensing is important to help ensure competence. A fortiori, this is especially true
in complex professions such as law, medicine and accounting. The ability to practice the
profession of law requires considerable schooling beyond the attainment of a college degree.
To help ensure competence, all states have licensing requirements and nearly all require that a
bar exam be passed before a license is issued.
Unlicensed to practice law and out of his depth, the non-attorney conference litigation
representative’s Response to Respondent’s Motion for Summary Decision and Cross-Motion for
Summary Decision motion should only have been filed by an attorney. The Court wishes to
make it clear that it is sympathetic to the unnecessary position the Secretary has placed the
unfortunate CLR.
The Secretary is on notice that henceforth the Court will only consider motions which
contain legal arguments when signed by a licensed attorney.
Absent an appropriately supported amended motion to approve settlement, and the
Court’s approval of such motion, this matter, as previously noticed, remains set for hearing on
February 20, 2018.
SO ORDERED.

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

40 FMSHRC Page 219

Distribution:
CLR David A. Steffey, U.S. Department of Labor, MSHA, P.O. Box 560, Norton, VA 24273
Travis W. Vance, Esq., Fisher & Phillips LLP, 227 W. Trade Street, Suite 2020, Charlotte, NC
28202

40 FMSHRC Page 220

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

January 10, 2018
MICHAEL WILSON,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. KENT 2016-0319-D
MSHA Case No. MADI-CD-2016-02

v.
ARMSTRONG COAL COMPANY, INC.,
Respondent.

Mine: Parkway Mine
Mine ID: 15-19358

ORDER GRANTING COMPLAINANT’S MOTION FOR SUMMARY DECISION
ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION
This proceeding is properly before me upon a Complaint of Interference (“Complaint”)
filed by counsel for Michael Wilson (“Wilson” or “Complainant”) on April 18, 2016, pursuant to
section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 (“the Act” or “Mine Act”).
30 U.S.C. § 815(c)(3). Armstrong Coal Company, Inc., (“Armstrong”) is subject to the Act and
to the jurisdiction of the Federal Mine Safety and Health Review Commission (“Commission”).
The Administrative Law Judge (“ALJ”) has the authority to review this case and issue a decision.
The Record
Attached as exhibits to the Complaint filed by Wilson’s counsel on October 29, 2015,
were copies of the original Discrimination Complaint, MSHA Form 2000-123, and
Discrimination Report, MSHA Form 2000-124, (Exhibit A); A letter from MSHA to Wilson
dated March 18, 2016, declining to file a discrimination case with the Commission, with
distribution to Armstrong and to counsels Tony Oppegard and Wes Addington (Exhibit B); and
Mine Citation No. 9045905, issued to Armstrong on October 21, 2015, under 30 CFR §§ 40.4,
40.3 for failure to post a listing of Miners’ Representatives that included their addresses and
telephone numbers (Exhibit C).
On July 26, 2017, Respondent Armstrong, by counsel, filed a Motion for Summary
Disposition pursuant to Commission Procedural Rule 67, 29 CFR § 2700.67, requesting that the
case be dismissed as a matter of law. (“Armstrong’s Motion”). Attached were five exhibits:
Exhibit 1: Letter of October 29, 2015, from MSHA to Parkway mine personnel
transmitting the discrimination complaint, with a copy of the Discrimination
Report only, MSHA Form 2000-124;

40 FMSHRC Page 221

Exhibit 2: Letter of February 17, 2016, from MSHA to Michael Wilson declining to file
a discrimination case with the Commission with distribution of a copy only to
Armstrong;
Exhibit 3: Emails between attorneys on March 15, 2017;
Exhibit 4: A copy of mine information from the MSHA Mine Data Retrieval System
showing the status of the Parkway mine as abandoned as of April 4, 2017;
Exhibit 5: Affidavit of Steven James DeMoss dated July 24, 2017.
In early August 2017 the parties in the instant case, and representatives in several other
discrimination cases scheduled for hearing in the same time frame, requested a continuance
based on pending cross-motions for summary decision, the desirability of settlement discussions,
and to complete discovery in two of the dockets. On August 8, 2017, the scheduled hearings
were continued.
On August 19, 2017, Wilson’s Response in Opposition to Armstrong Coal’s Motion for
Summary Decision (“Wilson’s Opposition”) was filed. Attached were eight exhibits:
Exhibit 1: Another copy of the Citation No. 9045905;
Exhibit 2: Responses of Michael Wilson to Armstrong Coal’s 1st Request for
Admissions, served via electronic mail on July 10, 2017;
Exhibit 3: Answers of Michael Wilson to Armstrong Coal’s 1st set of Interrogatories,
served via electronic mail on July 10, 2017;
Exhibit 4: Responses of Michael Wilson to Armstrong Coal’s 1st request for Production
of Documents, served via electronic mail on July 10, 2017;
Exhibit 5: Supplemental Response of Michael Wilson to Armstrong Coal’s 1st Request
for Production of Documents served via electronic mail on August 2, 2017;
Exhibit 6: Notice of Deposition of Michael Wilson;
Exhibit 7: Notice of Deposition of Steve DeMoss; and
Exhibit 8: Listing of Armstrong mines from MSHA’s Mine Data Retrieval System as of
August 19, 2017.
On August 21, 2017, Armstrong’s Reply to Wilson’s Response in Opposition to
Armstrong’s Motion for Summary Disposition (“Armstrong’s Reply”) was filed. This was
followed on August 22, 2017, by the Sur-Reply of Michael Wilson (“Sur-Reply”). By email on
September 20, 2017, counsel for Wilson announced the intention to file a cross-motion for
summary decision.

40 FMSHRC Page 222

Wilson’s Cross-Motion for Summary Decision (“Cross-Motion”) was filed on October 6,
2017. Attached were the depositions of Steven James DeMoss (“Dep. DeMoss”) and Michael
“Flip” Wilson (“Dep. Wilson”). Also attached were eleven exhibits; only the following had not
been attached to other filings:
Exhibit 4: Statement of Interview, Michael “Flip” Wilson, dated November 2, 2015;
Exhibit 5: Armstrong’s Response to Complainant’s First Set of Interrogatories served
electronically on July 13, 2017;
Exhibit 6: List of Miners Representatives designated by MSHA Form 2000-238 dated
May 19, 2014;
Exhibit 8: List of Miners Representatives with handwritten notation “Per verification by
MSHA 10/16/15”;
Exhibit 9: Representation of Miners Designation Form of Mike Wilson, MSHA Form
2000-238;
Exhibit 10: Letter dated October 16, 2015, from MSHA District Manager to Armstrong
listing the names of Miners Representatives for Armstrong Coal Company
operations, including the Parkway Mine; and
Exhibit 11: Letter dated February 28, 2014, to Armstrong with the determination that
Mike Wilson had been properly and lawfully designated as a miners’
representative at the Parkway Mine.
Armstrong’s Response to Wilson’s Cross-Motion for Summary Decision (“Response to
Cross-Motion”) was served electronically on October 16, 2017. Wilson’s Reply to Armstrong’s
Response to Cross-Motion for Summary Decision (“Wilson’s Reply”) was served via electronic
mail on October 25, 2017.
Issues
The pleadings and evidence of record raise the following issues:
•
•
•
•
•

Timeliness of responses to discovery requests for admissions;
Timeliness of filing the Complaint of Interference;
Whether the relief sought is moot;
The legal test for interference; and
Whether Respondent interfered with Complaint’s statutory rights as a Miners’
Representative.

40 FMSHRC Page 223

Relief Sought
In the Discrimination Report of October 29, 2015, Complainant requested:
I want Armstrong Coal to be fined for violating section 105(c); I want the
FMSHRC to issue a cease and desist order requiring the company to stop
interfering with my statutory rights as a representative of miners; and I want all
management personnel at the Parkway mine to have to take training from MSHA
on the statutory rights of miners’ reps.
Complaint, Exhibit A, P. 2.
In the Complaint of April 18, 2016, filed by Wilson’s counsel the relief requested was:
1. Find that the action of Armstrong Coal in removing the addresses and
telephone numbers of the miners’ reps at the Parkway mine, and the
company’s failure to correct this error when it was brought to its attention by
Wilson, interfered with Wilson’s statutory rights as miners’ reps and violated
the Mine Act’s anti-discrimination provision.
2. Order Armstrong’s mine management to keep current the contact information
for all miners’ reps at the Parkway mine, as required by 30 CFR §40.4.
3. Impose a civil money penalty against Armstrong for its act of interference
found herein.
4. Order Armstrong Coal to reimburse Wilson for all expenses incurred in the
institution and litigation of this case, including attorney fees.
5. Order Armstrong Coal to post the Commission’s decision in this case at the
Parkway mine – and at all of Armstrong’s other mines in western Kentucky –
in conspicuous, unobstructed places where notices to employees are
customarily posted, for a period of 60 consecutive days.
6. Order any additional relief which may be necessary to make Wilson whole,
and such other relief as the Commission deems just and proper.
Complaint, p. 5.
Subsequently, the Parkway mine was abandoned as of April 4, 2017. (Armstrong’s
Motion, pp. 1, 3-5; Exhibits 4, 5). The relief was then amended:
•

That Armstrong post the Court’s decision at all of its other mines and
facilities;

40 FMSHRC Page 224

•

That DeMoss and other Armstrong management personnel be required to take
training in the statutory rights of miner’s reps;

•

That Armstrong comply with the requirements of 30 CFR §40.4 at all of its
mining entities (this could also be styled as a “cease and desist” order);

•

That Armstrong reimburse Wilson for all expenses incurred in the institution
and litigation of this case, including attorney fees; and

•

That Armstrong pay a civil penalty for its violation of § 105(c)(1).

Wilson’s Response, pp. 6, 7.
Applicable Law and Regulations
Section 105(c) 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 exercise
of the statutory rights of any miner, representative of miners or applicant for
employment in any coal or other mine subject to this Act because such miner,
representative of miners or applicant for employment has filed or made a
complaint under or related to this Act, including a complaint notifying the
operator or the operator’s agent, or the representative of the miners at the coal or
other mine of an alleged danger or safety or health violation in a coal or other
mine, or because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential transfer under a
standard published pursuant to section 101 or because such miner, representative
of miners or applicant for employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such miner, representative of
miners or applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.
30 U.S.C. § 815(c)(1) (emphasis added).
Part 40, Representative of Miners provides, in pertinent part:
§40.4 Posting at mine.
A copy of the information provided the operator pursuant to §40.3 of this part
shall be posted upon receipt by the operator on the mine bulletin board and
maintained in a current status.
§40.3 Filing procedures.

40 FMSHRC Page 225

(1) The name, address and telephone number of the representative of miners.
(5) The names, addresses, and telephone numbers, of any representative to serve
in his absence.
30 C.F.R. §§ 40.3 (a)(1)(5), 40.4.
Summary Decision Standard
Commission Procedural Rule 67 provides, in pertinent part:
Grounds. 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).
A material fact is defined as “a fact that is significant or essential to the issue or matter at
hand.” Black’s Law Dictionary (9th ed. 2009, fact). The record herein must be considered “in the
light most favorable to…the party opposing the motion.” Hanson Aggregates New York, Inc., 29
FMSHRC 4, 9 (Jan.2007) (citations omitted). Any inferences drawn from the facts contained in
the record must also be viewed in the light most favorable to the party opposing the motion. Id.
“There is a genuine issue of material fact if the nonmoving party has produced evidence such
that a reasonable factfinder could return a verdict in its favor.” Greenberg v. Bellsouth
Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (citation omitted).
I. Timeliness of Response to Discovery Request for Admissions
On June 13, 2016, Respondent served discovery requests upon attorneys for
Complainant, which included requests for admissions. One request was: “Request No. 2: Admit
that you and/or your attorney(s) received a letter from MSHA dated February 17, 2016 regarding
MSHA’s investigation of your Complaint.” (Armstrong’s Motion, p. 2).
On February 27, 2017, Respondent’ counsel notified, via electronic mail, Complainant’s
counsel that the discovery responses were not received. (Id.). After receiving no response,
Respondent’s counsel again inquired on March 15, 2017, and Counsel for Complainant
responded: “Sorry for the delay in getting back with you…Somehow your discovery got
misplaced (and forgotten), but I have them now…I will get our answers/responses to you next
week.” (Id; Exhibit. 3).
Complainant responded to Respondent’s discovery requests, including the 1st Request for
Admissions, on July 10, 2017. (Wilson’s Opposition, Exhibit 2; Armstrong’s Motion, p. 2). The

40 FMSHRC Page 226

response to Request No. 2 was: “Wilson is without sufficient knowledge to admit or deny this
request for admission. Therefore, it is denied.” (Wilson’s Opposition, p. 4; Exhibit 2.).
Contentions
Respondent contends that Complainant failed to timely respond to the requests for
admission of June 13, 2016, about the date the first MSHA denial letter was received, and thus
receipt of the February 17, 2016, letter must be deemed admitted as of July 8, 2016, under 29
CFR § 2700.58(b) and Rule 36(a)(3) of the Federal Rules of Civil Procedure. (Armstrong’s
Motion, p. 3; Armstrong’s Reply).
Complainant argues that while its discovery request answers were untimely, they were
served more than two weeks before Respondent filed its motion for summary decision, that
Respondent never filed a motion to compel, that Respondent was not prejudiced by the delay,
and that depositions were taken after Armstrong’s Motion for Summary Disposition was filed.
(Wilson’s Opposition, p. 4, 5). Complainant also argues the late discovery response is not an
admission under the Commission’s Procedural Rule 58(b), since the Rule also provides that the
Judge may order a shorter or longer time period for responding. (Sur-Reply, pp. 1, 2).
Analysis
The Commission has held that summary decision is an extraordinary procedure, and the
judge should view the record in the light most favorable to the non-moving party. Energy West
Mining Co., 16 FMSHRC 1414, 1419 (July 1994); Hanson Aggregates New York, Inc., 29
FMSHRC 4, 9 (Jan. 2007).
Commission Procedural Rule 58(b) governs requests for admission in §105(c)
proceedings. 29 C.F.R. § 2700.58(b). Rule 58(b) does not state that requests for admission are
deemed admitted if there is not a timely response. In fact, Rule 58(b) provides that a judge may
order a shorter or longer period of time for response. Thus, it is within the judge’s discretion to
determine when a party may respond. Id. This provision of the Rule gives Commission ALJs
flexibility in making determinations on the basis of fairness; the Commission’s Procedural Rule
is adequate on its own. Here, neither party requested leave of the court to shorten or lengthen the
time for this discovery. Instead, after the Complainant’s response, Respondent moved for
summary disposition, depositions were taken, and the above-listed pleadings were filed. It is
unnecessary to look to the Federal Rules of Civil Procedure to fill in a perceived “gap” in
Commission Rule 58(b). Since either party may petition the Court for a shorter or longer time for
a response, and as a result a date certain could be established by an order of the Court, there is no
need for a “deemed” admitted provision in the Rule. Accordingly, no admission regarding
receipt of the letter of February 17, 2016, will be deemed by Complainant’s late response to the
request for admissions.

40 FMSHRC Page 227

II. Timeliness of Filing the Complaint of Interference
The Discrimination Complaint of October 29, 2015, MSHA Form 2000-123, Section E,
contained this instruction:
If you desire that a copy of all correspondence addressed to you from MSHA be
provided to a representative (e.g. Union representative, attorney, etc.) please give
his/her name and address to the right.
To the right of this instruction were listed the names, addresses and telephone numbers of
Wilson’s co-counsel, Tony Oppegard, Esq., and Wes Addington, Esq. (Complaint, Exhibit A, p.
1).
The same day, MSHA by letter notified Legal Counsel at the Parkway Mine of
Discrimination Complaint Case Number MADI-CD-2016-02. (Armstrong’s Motion, Exhibit 1,
p. 1). Attached to this letter was Form 2000-124, the Complaint Report signed by attorney Tony
Oppegard on behalf of Michael Wilson. (Id., p.2).
On February 17, 2016, MSHA sent a form letter to Wilson that contained the following
notices:
Based on a review of the information gathered during the investigation, MSHA
does not believe that there is sufficient evidence to establish by a preponderance
of the evidence that a violation of Section 105(c) occurred. For that reason, the
Secretary of Labor will not file a discrimination case with the Federal Mine
Safety and Health Review Commission (“Commission”) in this matter.
However, you continue to have the right to file a discrimination case on your own
behalf with the Commission. If you decide to file your own case, you must do so
within 30 days of this letter by sending a discrimination complaint to the
Commission…
A copy of this letter was sent to Armstrong Coal Company. (Armstrong’s Motion, Exhibit 2).
Wilson was without sufficient knowledge to admit or deny whether he or his attorney(s) received
the February 17, 2016, letter. (Wilson’s Opposition, Exhibit 2, p.1).
On March 18, 2016, a second form letter was sent to Wilson containing the same
information as the letter of February 17, 2016, as set forth above. Copies of this letter were sent
to Armstrong Coal Company, Tony Oppegard, Esq., and Wes Addington, Esq. (Complaint,
Exhibit B). This letter was received by Wilson’s attorney on March 21, 2016. (Wilson’s
Opposition, Exhibit 3, p. 4).
On April 18, 2016, Wilson, through counsel, filed his Complaint of Interference.
(Complaint, pp. 1-5.).

40 FMSHRC Page 228

Contentions
Respondent contends Wilson’s complaint was untimely filed on April 18, 2016,
approximately 60 days after the MSHA letter of February 17, 2016, declining to prosecute this
case. (Armstrong’s Motion, pp. 1-2).
Complainant argues his filing was timely because a second MSHA negative
determination letter was sent dated March 18, 2016, and this letter was received by his attorney
on March 21, 2016. (Wilson’s Opposition, p. 4; Exhibit 3, p. 4).
Analysis
The failure of MSHA to provide proper notice of the Secretary’s negative Section 105(c)
determination to Wilson’s attorney by the February letter was a mistake. This was most likely an
inadvertent administrative error, since the Discrimination Complaint of October 29, 2015, clearly
listed Wilson’s co-counsel in Section E of the form as the attorneys to receive a copy of “all
correspondence addressed to you from MSHA”. Wilson’s attorney was first notified of MSHA’s
negative 105(c) determination when he received the March 18, 2016 letter on March 21, 2016.
Responding to this notice, the Complaint of Interference was filed on April 18, 2016. This is
within the 30 day time limit for filing under Section105(c)(3). Thus, in viewing the facts in a
light most favorable to Complainant, the complaint was timely filed.
Assuming arguendo that the first, February 17, 2016, letter controls as the date of notice,
the factual circumstances nevertheless establish that the 30 day delay in filing was excusable.
The Act’s legislative history instructs that the time limits are not jurisdictional. S. Rep. No. 95181, 37 (1977), reprinted in Senate Subcomm. on Labor, Comm. On Human Res., Legis. Hist. of
the Fed. Mine Safety and Health Act of 1977 at 37 (1978). The Commission interprets the 105(c)
time limitations as non-jurisdictional and subject to equitable tolling, and this interpretation has
been upheld by the Tenth Circuit Court of Appeals. Olson v. Fed. Mine Safety & Health Review
Comm’n, 381 F.3d 1007, 1012 (10th Cir. 2004). A failure to meet these filing time limitations
does not result in a dismissal absent material legal prejudice. Secretary of Labor on behalf of
Nantz v. Nally & Hamilton Enters., 16 FMSHRC 2208, 2214-15 (Nov. 1994) citing Secretary of
Labor on behalf of Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986). The decision to
permit or reject an untimely 105(c) filing is determined on a case-by-case basis, “taking into
account the unique circumstances of each situation.” Morgan v. Arch of Illinois, 21 FMSHRC
1381, 1386 (Dec. 1999) citing Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984).
The Section 105(c)(3) filing period can be equitably tolled when there are “justifiable
circumstances” for a late filing that do not cause prejudice. Morgan, at 1386. Justifiable
circumstances have been found in instances of “ignorance, mistake, inadvertence, and excusable
neglect.” Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1921-22 (Nov. 1996).
However, if even if there is an adequate excuse for late filing, material legal prejudice may
require dismissal. Perry, 18 FMSHRC at 1921-22 citing Hale,at 908. Material legal prejudice
must “affect issues necessary to a meaningful opportunity to defend,” and can include “tangible
evidence that has since disappeared, faded memories, or missing witnesses.” Farmer v. Island

40 FMSHRC Page 229

Creek Coal Co., 13 FMSHRC 1226, 1231 (May 1991); Schulte v. Lizza Indus., Inc., 6 FMSHRC
8, 13 (Jan. 1984).
Since the claimed filing delay was due to an administrative error, even if the letter of
February 17, 2016, controls the date of notice, there were justifiable circumstances for such late
filing. MSHA’s administrative error was a circumstance that did justify the delay in filing the
discrimination complaint. While Wilson did not know whether his attorney received the
February letter, the fact remains that MSHA did not send notice of the negative determination to
Wilson’s attorney until the second letter was sent in March. If the February letter had been
distributed as required by the names and addresses entered in the complaint form, then the 30
day limit would have been tolled as Respondent contends. But there was a failure of proper,
written notice to Wilson’s legal representative until the second, March letter was sent, apparently
to correct the error of omission of the first, February letter. If the 30 day limit were considered
tolled, a delay of only 30 days is nevertheless considered negligible. And, material legal
prejudice by this short delay has not been established by Respondent. No facts have been alleged
showing that witnesses cannot appear, evidence no longer exists, or that this short delay has
prejudiced Respondent’s meaningful opportunity to defend.
I find dismissal of the Complaint of Interference on the basis of untimely filing is not
warranted.
III. Whether the relief sought is moot
The status of the Parkway Mine was changed to abandoned on April 4, 2017.
(Armstrong’s Motion, Exhibit 4). After that date, there were no Miners’ Representatives for that
mine, and no regulatory postings on the bulletin board. (Id., Exhibit 5).
Contentions
Respondent contends that this matter is moot because the Parkway mine has been
abandoned, there is no bulletin board, Complainant is no longer a Miners’ Representative at the
mine, Complainant and a number of former Parkway employees are no longer employed by
Armstrong, and the non-S&S citation has been paid. (Armstrong’s Motion, p. 4; Exhibits 1, 4, 5).
Complainant argues that Armstrong Coal is still in operation, and Steve DeMoss
(“DeMoss”) who was named in Wilson’s original complaint is still employed as Manager of
Safety at Armstrong’s Kronos mine. (Wilson’s Opposition, p.6; Complaint, Exhibit A).
Armstrong has five active operations, and the relief sought can still be ordered. (Wilson’s
Opposition, pp. 6, 7; Exhibit 8). Further, upon a finding of interference, the case must be referred
to the Secretary of Labor for imposition of a civil penalty. (Id., p. 7).
Analysis
So long as any relief could potentially be granted, this matter will not be considered
moot. Armstrong has other active coal operations, including the Kronos mine where DeMoss is
employed as Safety Manager. There is no evidence that postings could not be accomplished at

40 FMSHRC Page 230

the active coal sites. Costs and attorney fees are capable of being determined. Indeed,
Respondent admits that the possibility of a civil penalty and attorney’s fees remains in this
matter. (Armstrong’s Reply, p. 2). Dismissal on the basis that no relief could be granted is not
warranted.
IV. Test for Interference
The Commission has not settled on a single test for interference violations. However, a
two-part test was endorsed by two Commissioners. Under this test an interference violation
occurs if:
1) A person’s action can be reasonably viewed, from the perspective of members
of the protected class and under the totality of the circumstances, as tending to
interfere with the exercise of protected rights, and
2) The person fails to justify the action with a legitimate and substantial reason
whose importance outweighs the harm caused to the exercise of protected
rights.
United Mine Workers of America obo Mark A. Franks and Ronald M. Hoy v. Emerald Coal
Resources, LP, 36 FMSHRC 2088, 2108 (Aug. 2014). This Franks test has been applied by the
undersigned and other Commission judges in interference cases. Lawrence Pendley v. Highland
Mining Co. & James Creighton, 37 FMSHRC 301 (Feb. 12, 2015)(ALJ Andrews); Scott D.
McGlothlin v. Dominion Coal Corp., 37 FMSHRC 1256 (Jun. 11, 2015)(ALJ); Sec’y of Labor
obo Greathouse et. al. v. Ohio County Coal, 37 FMSHRC 2892 (Dec. 30, 2015)(ALJ).
One Commission judge has found that the word because in section 105(c)(1) of the Act
requires the complainant to prove the interference alleged was motivated by the exercise of
protected rights. Sec’y of Labor obo Mindy S. Pepin v. Empire Iron Mining Partnership, 38
FMSHRC 1435, 1450-51, n. 11 (Jun. 6, 2016)(ALJ). Since under this view a motivational intent
must be shown, the second part of the test was changed to:
2) Such actions were motivated by the exercise of protected rights.
Id. at 1453-54.
Contentions
Respondent contends that the factual issue turns on both what was done and why it was
done, and there are no facts established about the motive behind the removal of the phone
numbers and addresses of the Miners’ Representatives. (Armstrong’s Response, pp. 1-3). Also,
since neither DeMoss nor Wilson was told why the contact information was removed,
Complainant has not identified a factual intent or motivation on the part of anyone at Armstrong.
(Id., pp.2, 3). Further, to prove interference in this case, the Pepin test must also be used.
(Armstrong’s Response, pp. 6, 7).

40 FMSHRC Page 231

Complainant argues a Miners’ Representative need not prove a company’s motivation for
interfering with his statutory rights in order to prevail in an interference proceeding under the
Mine Act, citing Secretary of Labor o/b/o Gray v. North Star Mining & Brummett, 27 FMSHRC
1 (Jan. 2005). Complainant, in effect, argues for application of the Franks test. (Wilson’s Reply,
pp. 5, 6).
Analysis
In his cogent analysis of the two tests, Judge Lewis explained that the motivational
requirement was in conflict with the first prong of both the Franks test and the Pepin test:
The phrase “tending to interfere” indicates that the employer’s conduct is inclined
to interfere with future miner conduct. However, the second prong in Pepin
requires a predicate exercise of protected rights that the conduct be in reaction to.
If a mine operator is interfering with a miner’s statutory rights, why should the
Complainant who is in a worse position to make a showing of the operator’s
motivations be required to show why the operator is acting in such a manner?
Instead, the operator should be required to show why the interference with a
miner’s statutory rights was due to “a legitimate and substantial reason whose
importance outweighs the harm cause[d] to the exercise of protected rights,” as
required by the Franks test. If it cannot, then the conduct should be prohibited
under Section 105(c).
Wilson, Greenwell & Shemwell v. Armstrong Coal Company, Inc., 39 FMSHRC 1072, 1093
(May 9, 2017)(ALJ Lewis)(emphasis added)1.
I agree with this analysis. Further, the Commission has held that the totality of
circumstances must be analyzed, not just the intent or motive in the alleged violative behavior.
Interference under the Act in this case does not turn on the operator’s motive, but whether its
conduct reasonably tended to interfere with the statutory rights of the Miner’s Representatives.
Sec’y of Labor o/b/o Gray v. North Star Mining & Brummett, 27 FMSHRC 1, 9, 10 (Jan. 2005)
citing American Freightways Co., 124 NLRB 146, 147 (1959). The future miner conduct under
the facts and circumstances in this case is the ability to easily make a telephone contact, in
private, with a Miners’ Representative. In order to interfere with the right of a miner to
communicate with one of the Miners’ Representatives, the burden is properly on the operator to
justify making a discussion between a miner and one of the representatives, like Wilson, more
difficult. I find that under all of the facts and circumstances in the instant case, it is the operator’s
conduct that is important. The operator’s motive for the conduct is relevant only in so far as there
is a claim of a legitimate and substantial reason whose importance outweighs the harm caused to
the protected rights of the Miners’ Representatives, as contemplated by step two of Franks. No
argument of a reason meeting this test is advanced here; and, the person most likely to have

1

Currently on review before the Commission.

40 FMSHRC Page 232

knowledge of intent, Safety Director Rick Brothers (“Brothers”), DeMoss’s boss, was not
deposed.2
I will again apply the Franks test.
V. Interference
Prior to October 16, 2015, a list dated May 19, 2014, in the upper right hand corner and
entitled “Miners Representatives designated by MSHA Form 2008-238”, that included the
names, addresses and telephone numbers of each Miners’ Representative was posted behind
glass on the bulletin board in the bathhouse at the Parkway mine. (Cross-Motion, Exhibit 6; Dep.
DeMoss, pp. 29-33; Dep. Wilson, pp. 25-28). DeMoss took a photo of this list. (Dep. DeMoss,
pp. 24, 25).
The name, address and telephone number of Mike Wilson, Complainant, was included in
the list dated May 19, 2014. (Cross-Motion, Exhibit 6). Wilson had been properly designated a
Miners’ Representative at the Parkway mine. (Cross-Motion, Exhibits 4, 6, 9, 10, 11; Dep.
DeMoss, pp. 58, 59, 67). He was a non-employee Miners’ Representative until the Parkway mine
closed. (Dep. Wilson, pp. 11-13, 53).
On October 16, 2015, a modified list of Miners’ Representatives was posted behind glass
in the bathhouse by DeMoss on the instruction of Brothers; this new list had no addresses or
telephone numbers for any of the Miners’ Representatives, including Wilson.3 (Cross-Motion,
Exhibit 5, Response to No. 8; Dep. DeMoss, pp. 13, 14, 21, 32, 36, 43, 45-47, 49).
The new list with no addresses or telephone numbers was posted for about 6 days, from
October 16, 2015 to October 21, 2015. (Dep. DeMoss, pp. 36, 44-47, 49-51).
On or about October 20, 2015 Wilson noticed that the list behind glass in the bathhouse
had been replaced with a list with all the Miners’ Representatives’ names, except the addresses
and telephone numbers were gone. (Dep. Wilson, pp. 27, 28). Wilson called the MSHA hotline
and reported that the addresses and phone numbers were off the paper. (Dep. Wilson, pp. 33, 34).
Wilson testified he remembered telling Chad Baldwin that as many as five people
working at the mines had been calling him early in the morning and at night before the list was
changed. (Dep. Wilson, pp. 35-37). Wilson had also told Brothers that miners at the mine called
him and reported safety and health issues to him. (Id., pp. 57-59; Complaint, p. 4, No.15).
Wilson believed Brothers made the decision to put up the new list because of what Wilson had
told him about people calling. (Id., pp. 60-62).
2

Brothers was not deposed because in another case scheduled to be heard in the same
time frame as the instant case, Brothers claimed an unspecified medical condition resulting in
virtually no recollection of his employment with Armstrong. (Cross-Motion, pp. 2, 3).
3

A photocopy or photograph of this list is not of record. (Dep. DeMoss, p. 49; but see
Dep. Wilson, p. 43).

40 FMSHRC Page 233

On October 21, 2015, Citation No. 9045905 was issued at 1510 hours for a violation of
30 CFR §§ 40.4, 40.3 since the listing of Miners’ Representatives posted on the mine bulletin
board did not include the addresses and telephone numbers of the Miners’ Representatives.
(Complaint, Exhibit C; Armstrong’s Motion, Exhibit 5, No. 4; Wilson’s Response, Exhibit 1).
The Citation was abated at 1520 hours by DeMoss when he updated and reposted the prior list
with the addresses and telephone numbers of the representatives. (Id.; Dep. DeMoss, pp. 39, 5356; Dep. Wilson, pp. 43, 44; Cross-Motion, Exhibits 7, 8).
The updated list was no longer dated May 19, 2014; in the upper right hand corner was
handwritten “Per verification by MSHA 10/16/15”. (Cross-Motion, Exhibit 8; Dep. DeMoss, pp.
53-56).
Armstrong has five active coal operations in the state of Kentucky. (Wilson’s Response,
Exhibit 8). Since January 2017 DeMoss has been Safety Manager at Armstrong’s Kronos mine.
(Armstrong’s Motion, Exhibit 5, No. 1; Dep. DeMoss, p. 15).
Contentions
Respondent contends the primary factual issue turns on what was done and why it was
done. Therefore, both tests for interference must be considered, or the legal analysis would be
incomplete and Complainant would not be entitled to summary decision as a matter of law.
(Armstrong’s Response, pp. 1, 5).
Complainant argues operators are required to post contact information of Miners’
Representatives so other miners will know how to contact a representative about matters that
affect their health and safety. Therefore, the removal of the contact information tended to
interfere with the Complainant’s statutory rights as a Miners’ Representative. Also, the company
has not and cannot justify its removal action with a legitimate and substantial reason whose
importance outweighs the harm caused to Complainant’s protected rights. (Cross-Motion, pp. 14,
15). Further, a Miners’ Representative need not prove a company’s motive for interfering with
his statutory rights to prevail under Section 105(c)(1). (Wilson’s Reply, p. 3).
Analysis
It was Brothers who provided the new list of Miners’ Representatives to DeMoss and
instructed DeMoss to post this list with the names of the representatives but with none of their
addresses or telephone numbers. The list that had been on the bulletin board behind glass in the
bathhouse did have the address and telephone number for each of the representatives. The
actions of Brothers and DeMoss constituted the removal of contact information important to the
health and safety of miners. Viewed from the perspective of both the Miners’ Representatives
and other miners the absence of this information, in particular the telephone numbers, did tend to
interfere with the exercise of their protected right to report safety and health concerns freely and
confidentially.
Consider, for example, the alternative presented to a miner who wished to report a safety
concern. This miner would need to find a Miners’ Representative, most likely at the mine site,

40 FMSHRC Page 234

and personally convey the concern. This might, or might not, take place out of “earshot” of other
miners or supervisory personnel. Another alternative would be for a miner to find and approach
Wilson or another representative at their address. Either alternative would place an unreasonable
burden on the miner with a safety concern to report, and potentially expose the miner to risk of
reprisal. Even to require a miner to search for an address or telephone number in order to be able
to privately report a safety concern imposes a burden. When compared with simply noting a
telephone number and making a call at any time and in confidence to a Miners’ Representative, it
becomes clear that removing the contact information was an act of interference under the first
prong of the Franks test.
Respondent has not established an important reason justifying the removal of the contact
information. Any such reason must be “legitimate and substantial” and outweigh the burden
imposed on miners with safety and health concerns but with no readily available, private and
confidential method of making a report to a Miners’ Representative. The one person who could
shed light on the removal reason, Brothers, was not deposed; therefore, the reason why the
violative action was taken remains unknown, and is perhaps not ascertainable.
I find that by removing the contact information for the Miners’ Representatives,
including Wilson’s, Respondent did interfere with the statutory rights of Wilson and the other
Miners’ Representatives.
Respondent relies on the second prong of the Pepin test to require proof of the motivation
of the operator in removing the contact information. If the motivation for the removal of the
contact information was the exercise of protected rights, such as presented here in the potential
expression of safety and health concerns by a miner to a Miners’ Representative, then the second
prong of the Pepin test could be satisfied and interference established. However, Complainant
Wilson is in a much worse position to discover motivation on the part of the operator, especially
where the management official who most likely knows the reason for the removal apparently
could not be deposed. This would mean, as Judge Lewis pointed out, the requirement of a
predicate exercise of protected rights that was reacted to by removing the addresses and
telephone numbers of the Miners’ Representatives. See, Wilson, et. al., v. Armstrong, Supra.
It is noteworthy that Wilson testified before the list was changed he told Baldwin people
had been calling him at night and early in the morning; he also told Brothers miners had been
calling him. Wilson testified to his belief Brothers took the phone numbers and addresses down
because of what he had told Brothers. DeMoss testified he did not know why the list was
changed, he was just following instructions. Brothers would be the person able to contradict
Wilson’s testimony, but he was not deposed, reportedly due to a memory deficit. Wilson’s
testimony that he told Brothers and Baldwin about the calls he was receiving and Wilson’s belief
that Brothers removed the contact information on purpose because people had been calling him
is evidence that protected rights were responded to by the violative act of removing the contact
information for all listed Miners’ Representatives at the Parkway mine. While I have applied the
Franks test in this case, there is evidence that the second prong of the Pepin test is also satisfied.
Based on review of the entire record and the applicable law, I find there is no dispute of
material fact and that Armstrong violated Section 105(c) of the Mine Act by interfering with

40 FMSHRC Page 235

Wilson’s statutory rights as a Miners’ Representative. I further find relief can be granted and this
matter is not moot, the delay in discovery responses is not cause for dismissal, and the Complaint
of Interference was timely filed. Therefore, Complainant is entitled to summary decision as a
matter of law.
ORDER
Respondent’s Motion for Summary Disposition is DENIED and Wilson’s Cross-Motion
for Summary Decision is GRANTED.
It is further ORDERED that Armstrong will immediately:
1) Post the Court’s decision at all of its active coal operations and facilities, at places
where notices to employees are customarily posted for a period of 30 days;
2) Require Armstrong management personnel at its active operations and facilities to
take training in the statutory rights of Miners’ Representatives; and
3) Comply with the requirements of 30 CFR §§ 40.4 and 40.3 at all of its active coal
operations and facilities.
The undersigned ALJ retains jurisdiction of this matter until all of the specific remedies
to which Wilson is entitled are resolved and finalized. Accordingly, this decision will not
become final until an order granting any further specific relief, including costs and attorney’s
fees, as well as any civil penalty to be assessed, has been entered.
Accordingly, the parties are ORDERED TO CONFER within 21 days of the date of
this decision for the purpose of arriving at an agreement on the specific actions and monetary
amounts that will constitute the complete relief to be ordered in this case. If an agreement is
reached, it shall be submitted within 30 days of the date of this decision.

40 FMSHRC Page 236

If an agreement cannot be reached, the parties are FURTHER ORDERED to submit
their respective positions, concerning those issues on which they cannot agree, with supporting
arguments, case citations and references to the record, within 30 days of the date of this decision.
For those areas of further, specific relief and any penalty amount on which the parties disagree,
they shall submit specific proposed dollar amounts for each category of relief. In the rare event
of factual disputes requiring an evidentiary hearing, the parties should submit a joint request.
Pursuant to Commission Rule 44(b), 29 C.F.R. § 2700.44(b), a copy of this decision will
be sent to the Office of the Regional Solicitor having responsibility for the area in which the
Parkway Mine was located so that the Secretary may take the actions required by the rule.

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

Distribution: (Certified Mail)
Marco M. Rajkovich, Jr., Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Cir., Suite 375, Lexington, KY 40513
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY
418858
Copy to: (First Class Mail)
Office of the Regional Solicitor, Castner Knott Building, 618 Church Street, Suite 230,
Nashville, TN 37219-2440

40 FMSHRC Page 237

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

January 16, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on
behalf of KEVIN R. SHAFFER,
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEVA 2018-117-D
MORG-CD-2018-01

v.
THE MARION COUNTY
COAL COMPANY,
Respondent

Marion County Mine
Mine ID: 46-01433

ORDER GRANTING TEMPORARY REINSTATEMENT
Before:

Judge Bulluck

This matter is before me upon Application for Temporary Reinstatement filed by the
Secretary of Labor (“Secretary”) on December 4, 2017, pursuant to section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815(c)(2), seeking an order
requiring The Marion County Coal Company (“Marion County Coal”) to temporarily reinstate
Kevin R. Shaffer to his former position of mobile equipment operator at Marion County Coal’s
Marion County Mine, at the same rate of pay and benefits. Section 105(c) prohibits operators
from discharging or otherwise discriminating against miners who have engaged in safety-related
protected activity, and authorizes the Secretary to apply to the Commission for temporary
reinstatement of miners, pending full resolution of the merits of their complaints. The
Application is supported by the Declaration of MSHA Special Investigator Clarence Moore, III,
and a copy of the Discrimination Complaint filed by Shaffer with MSHA on November 1, 2017.
The Application alleges that Shaffer was terminated by Marion County Coal because he made
safety complaints to management about mobile equipment that he had been operating, and
requested alternative work due to the unsafe condition of the equipment.
Based on Marion County Coal’s election to brief the issue in lieu of a hearing, the parties
agreed to an effective date for temporary reinstatement of December 31, 2017, and filed
simultaneous briefs on January 9, 2018. The Secretary’s Brief in Support of the Application for
Temporary Reinstatement (“Secretary’s Brief”) is supported by a copy of Special Investigator
Clarence Moore’s Declaration. Marion County Coal’s Brief Opposing Temporary Reinstatement
(“Opposition”) is supported by copies of the following: arbitration transcript of November 17,
2017 (Attachment A), and associated arbitration Decision and Award of December 11, 2017
(Attachment H); Marion County Coal’s Employee Conduct Rules (Attachment B); statement of
Marion County Coal supervisor Adam Bond of October 19, 2017 (Attachment C); statement of
Wheeling Diesel Shop mechanic Paul Dixon, undated (Attachment D); notes of Adam Bond
regarding an August 14, 2017 Verbal Warning issued to Shaffer, undated (Attachment E);

40 FMSHRC Page 238

Disciplinary Notice to Shaffer of August 10, 2013 (Attachment F); and letter of suspension with
intent to discharge Shaffer of October 23, 2017 (Attachment G).
Procedural Framework
The scope of this proceeding is governed by the provisions of Commission Rule 45(c),
which limits the inquiry to a “not frivolously brought” standard by providing that “[i]f no hearing
is requested, the Judge assigned to the matter shall review immediately the Secretary’s
application and, if based on the contents thereof the Judge determines that the miner’s complaint
was not frivolously brought, he shall issue immediately a written order of temporary
reinstatement.” 29 C.F.R. § 2700.45(c).
It is well settled that the “not frivolously brought” standard is entirely different from the
scrutiny applicable to a trial on the merits of the underlying discrimination complaint. In Jim
Walter Resources, Inc. v. FMSHRC, the 11th Circuit Court of Appeals explained the standard as
follows:
The legislative history of the Act defines the ‘not frivolously brought’ standard as
indicating whether a miner’s ‘complaint appears to have merit’ -- an interpretation
that is strikingly similar to a reasonable cause standard. In a similar context
involving the propriety of agency actions seeking temporary relief, the former
fifth circuit construed the ‘reasonable cause to believe’ standard as meaning
whether an agency’s ‘theories of law and fact are not insubstantial or frivolous.’
...
Congress, in enacting the ‘not frivolously brought’ standard, clearly intended that
employers should bear a disproportionately greater burden of the risk of an
erroneous decision in a temporary reinstatement proceeding. Any material loss
from a mistaken decision to temporarily reinstate a worker is slight; the employer
continues to retain the services of the miner pending a final decision on the
merits. Also, the erroneous deprivation of the employer’s right to control the
makeup of his workforce under section 105(c) is only a temporary one that can be
rectified by the Secretary’s decision not to bring a formal complaint or a decision
on the merits in the employer’s favor.
920 F.2d 738, 747-48 n.11 (11th Cir. 1990) (citations omitted) (footnotes omitted).
Ruling
The Mine Act accords to miners and miners’ representatives protection from discharge or
other discriminatory acts, based on their exercise of any statutory right under the Act. 30 U.S.C.
§ 815(c). The Commission has consistently held a miner seeking to establish a prima facie case
of discrimination to proving that he engaged in activity protected by the Act, and that he suffered
adverse action as a result of the protected activity. Sec’y of Labor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (Oct. 1980), rev’d on other grounds sub

40 FMSHRC Page 239

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).
The Secretary’s allegations are based on the findings of the Special Investigator and,
according to his Declaration, the following chronology of events occurred. Sec’y Br. at 1-3. On
October 18, 2017, Kevin Shaffer complained to his supervisor, Adam Bond, that the
transmission of the No. 4 ejector truck that he was operating, twice jumped out of neutral into
reverse, and he requested alternative work due to the truck’s unsafe condition. Bond reassigned
him to a different piece of equipment. Later that shift, Bond told Shaffer that Wheeling mechanic
Paul Dixon had reported to him that he saw Shaffer driving without headlights. Shaffer
responded by denying Dixon’s claim, and Bond, in turn, responded “I’m tired of this fucking shit
on this equipment.” The next day, Bond recounted the confrontation in an email that he sent to
Marion County Coal’s human resources department, alleging that Shaffer had cursed at him and
made physical threats. That day, Marion County Coal suspended Shaffer pending an
investigation, and then, on October 23, suspended him with intent to discharge. Moore concluded
that Shaffer’s Complaint, alleging that he was discharged for engaging in protected activity, was
not frivolously brought. Sec’y Br. Attach. A at 2-3.
Marion County Coal’s Opposition cites to portions of the arbitration testimony and
written statements to establish that the operator was not motivated by Shaffer’s safety complaints
or refusal to operate unsafe mobile equipment when it terminated him and, therefore, that the
Complaint was frivolously brought. According to Bond’s testimony and written statement, on
October 18, 2017, Shaffer radioed him that the No. 4 truck that he was operating was
malfunctioning. Resp’t Br. Attachs. A at 51; C. Bond further averred that, consistent with the
manner in which he routinely handles such complaints, he told Shaffer to stop operating the
truck, he called mechanic Dixon to service it, and he assigned Shaffer to a different truck. Resp’t
Br. Attachs. A at 51-52, 55; C. Shaffer’s testimony corroborates that Bond did, indeed, take
those actions. Resp’t Br. Attach. A at 253. Later that shift, according to Bond’s and Dixon’s
testimony and written statements, Dixon notified Bond that he saw Shaffer driving a truck
downhill at high speed, without headlights. Resp’t Br. Attachs. A at 64, 139; C; D. According to
them, when Bond confronted Shaffer about Dixon’s claim, Shaffer told Bond repeatedly “fuck
you.” Resp’t Br. Attachs. A at 65-66, 138-42; C; D. Bond further testified that Shaffer also told
him “I’m going to whip your ass; I’m going to take you to the gate,” which is generally
consistent with his prior written statement. Resp’t Br. Attach. A at 68; C. Dixon testified that he
recalled Shaffer yelling at Bond about “taking it to the gate,” although his written statement
makes no reference to Shaffer challenging Bond to a fight offsite. Resp’t Br. Attach. A 138-42;
D. According to Bond, he felt threatened by Shaffer, and the next day, he reported him to human
resources. Resp’t Br. Attachs. at 76; C.
Marion County Coal contends that it terminated Shaffer because he threatened Bond in
violation of its insubordination policy, and because he had similar discipline in his personnel
record. Resp’t Br. at 8; Resp’t Br. Attachs. B; G. It relies on Fletcher v. Frontier-Kemper
Contractors, Incorporated, for the proposition that a complainant’s violation of company policy
supports a finding that his complaint is frivolous. 34 FMSHRC 2189 (Aug. 2012) (ALJ)
(denying an application for temporary reinstatement where uncontradicted testimony

40 FMSHRC Page 240

demonstrated that the complainant violated the operator’s policy prohibiting working under
unsupported roof). Resp’t Br. at 7.
The operator’s reliance on Fletcher is misplaced here because the parties’ supportive
documentation set forth differing accounts of events precipitating the Complaint, which are not
appropriately resolved at this stage of the proceedings; nor is the arbitration Decision binding on
this Commission. See Sec’y of Labor on behalf of Nickoson v. Mammoth Coal Co., 34 FMSHRC
1252 (June 2012); Sec’y of Labor on behalf of Williamson v. CAM Mining LLC, 31 FMSHRC
1085 (Oct. 2009). The Secretary has set forth allegations of adverse treatment, close in proximity
to the protected activity, so as to create a nexus sufficient to raise an inference of discrimination.
Moreover, I note that Marion County Coal expressly asserts that it does not dispute that Shaffer
engaged in protected activity, and that Bond had knowledge of it. At best, Marion County Coal
has shown its intent to defend its actions at hearing on the basis of legitimate business-related,
non-discriminatory reasons. At this juncture, it is emphasized that the Secretary ultimately bears
the burden of proving discrimination by a preponderance of the evidence, in order to sustain a
violation under section 105(c). Accordingly, since the allegations of discrimination, as set forth
in the Secretary’s Application, have not been shown to be clearly lacking in merit, it must be
concluded that they are not frivolous and, therefore, satisfy the lesser threshold in this
proceeding.
WHEREFORE, the Application for Temporary Reinstatement is GRANTED, and it is
ORDERED that The Marion County Coal Company TEMPORARILY REINSTATE Kevin R.
Shaffer to the position of mobile equipment operator at its Marion County Mine, at the same rate
of pay and benefits, effective December 31, 2017.

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

Distribution:
Jennifer Bluer, Esq., Office of the Solicitor, U.S. Department of Labor, 170 S. Independence
Mall West, Suite 630 East, Philadelphia, PA 19106
Laura Karr, Esq., United Mine Workers of America, 18354 Quantico Gateway Drive, Suite 200,
Triangle, VA 22172
Thomas Smock, Esq., Michael Glass, Esq., Jennifer Betts, Esq., Ogletree, Deakins, Nash, Smoak
& Stewart, P.C., One PPG Place, Suite 1900, Pittsburgh, PA 15222
/tcp

40 FMSHRC Page 241

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

January 24, 2018
PEABODY TWENTYMILE MINING,
LLC,
Contestant,

CONTEST PROCEEDINGS
Docket No. WEST 2017-0247-R
Order No. 9025723;02/19/2017

v.
Docket No. WEST 2017-0248-R
Citation No. 9025724;02/19/2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

Foidel Creek Mine
Mine ID 05-03836
CIVIL PENALTY PROCEEDING
Docket No. WEST 2017-553
A.C. No. 05-03836-439555
Foidel Creek Mine

PEABODY TWENTYMILE MINING,
LLC,
Respondent
ORDER GRANTING THE SECRETARY’S MOTION TO QUASH SUBPOENAS
Before: Judge Manning
These cases are before me upon notices of contest filed by Peabody Twentymile Mining,
LLC, (“Twentymile”) and a petition for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration (“MSHA”), against
Twentymile pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). On January 22, 2018 the Secretary moved to
quash two subpoenas issued for the trial testimony of Tracy Santistevan and Robert Teeter which
is scheduled for February 13, 2018. For reasons that follow the Secretary’s motion is granted.
On January 5, 2018 counsel for Twentymile requested two subpoenas for the trial
testimony of Tracy Santistevan and Robert Teeter. Subsequently, on January 8, the court issued
the requested subpoenas. On January 22 the Secretary emailed the court and moved to quash the
subpoenas. The following day the court convened a conference call during which the parties
presented their positions on the Secretary’s motion.

40 FMSHRC Page 242

These cases involve one section 104(d)(1) citation and a corresponding imminent danger
order. The citation alleges a violation of 30 C.F.R. § 75.1725(c) and states, in part, that the
issuing inspector observed a “miner with a piece of roof bolter steel with a metal hook attached
to the end removing wood and metal from the moving feeder conveyor.” (Citation No.
9025724). During the conference call, Twentymile argued that the subpoenaed individuals
previously worked for Twentymile and are needed to provide testimony regarding the practice of
“fishing,” i.e., the removal of materials from a conveyor via the use of a metal hook. The
Secretary, in response, argued that the testimony of the subpoenaed individuals is not relevant
given that the individuals are no longer employees of Twentymile and, rather, are now MSHA
inspectors who were not present at the time the subject enforcement actions were issued and
have never observed the practice of “fishing” as inspectors.
The Commission’s procedural rules grant its judges discretion to regulate discovery “to
prevent undue delay or to protect a party or person from oppression or undue burden or expense”
for “good cause shown.” 29 C.F.R. § 2700.56(c). Judges have utilized that discretion to “limit
needless, speculative, overly broad, or duplicative discovery.” North American Quarry and
Constr. Services LLC, 38 FMSHRC 583, 586 (Mar. 2016) (ALJ) (citations omitted). Judges are,
similarly, afforded considerable discretion when it comes to regulating the course of a hearing
and determining what to receive into evidence. 29 C.F.R. § 2700.55. Moreover, a judge may
revoke a subpoena “for any other reason it is found to be . . . unreasonable.” 29 C.F.R. §
2700.60(c).
I find that the testimony sought from the subpoenaed individuals will be unreasonably
cumulative or duplicative and can be obtained from witnesses currently employed by
Twentymile. There has been no showing that the testimony of the two inspectors would present
facts that only they possess. The subpoenaed individuals were not present at the time the subject
citation and order were issued. Any testimony they could offer would relate to their general
knowledge of the “fishing” process based on their time working at the mine prior to becoming
MSHA inspectors. That same testimony can be obtained from others who are working at the
mine, as evidenced by Twentymile counsel’s statement during the conference call that other
witnesses would be called to testify about the practice of “fishing.” Counsel for Twentymile also
argues that the inspectors may be able to offer information relevant to issues surrounding the
high negligence and unwarrantable failure determinations set forth in the citation. I find that
testimony concerning “fishing” and the inspector’s negligence and unwarrantable failure
determinations “can better be obtained directly from individuals who have first-hand knowledge
of those matters and who undoubtedly occupy positions of responsibility in the operator's own
organization.” Martin Marietta Aggregates, 20 FMSHRC 1239, 1240 (Oct. 1998) (ALJ) (Order
quashing subpoena of MSHA special investigator in training).
It is important to note that in issuing the unwarrantable failure citation and imminent
danger order, MSHA Inspector Rufus Taylor relied upon specific conditions that he observed at
the time of his inspection. Even assuming that the two subpoenaed MSHA inspectors engaged in
or had knowledge of “fishing” when they worked at the Foidel Creek Mine, they have no
knowledge of the specific conditions that Inspector Taylor relied upon when issuing the citation
and the imminent danger order.

40 FMSHRC Page 243

It is quite apparent that Twentymile only seeks the testimony of these individuals because
they are presently MSHA inspectors. If these same individuals had left the mine to start a
business together, for example, Twentymile would not be seeking their testimony. Twentymile
is also not seeking to call them as expert witnesses. Requiring these individuals to testify would
take them away from the important work they do as inspectors and would be of no value to the
court given that the same facts can be obtained from other witnesses.
For the reasons discussed above, the Secretary’s motion is GRANTED and the
subpoenas issued on January 8, 2018 for the hearing testimonies of Tracy Santistevan and Robert
Teeter are QUASHED.

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

Distribution:
Kristi Henes, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., Suite
515, Denver, CO 80204
Christopher G. Peterson, Esq., and Benjamin Ross, Esq., Jackson Kelly PLLC, 1099 18th Street,
Suite 2150, Denver, CO 80202-1958

40 FMSHRC Page 244

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

January 31, 2018
MARSHALL JUSTICE,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEVA 2018-48-D
PINE-CD-2016-07

v.
ROCKWELL MINING, LLC,
Respondent.

Mine: Gateway Eagle Mine
Mine ID 46-06618

ORDER GRANTING, IN PART, AND DENYING, IN PART,
RESPONDENT’S MOTION TO DISMISS
This discrimination proceeding is before me pursuant to section 105(c)(3) of the Federal
Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(3). Chief Administrative
Law Judge Robert J. Lesnick assigned me this matter on December 4, 2017. On November 22,
2017, Respondent filed a Motion to Dismiss Marshall Justice’s Complaint.1 Complainant filed a
response on December 1, 2017. On December 11, 2017, the Secretary of Labor (“Secretary”)
filed both a motion to intervene and a response to the motion to dismiss. I hereby GRANT the

1

Respondent incorrectly filed the motion in Docket No. WEVA 2018-10-D, which
involves a section 105(c)(2) complaint filed by the Secretary on behalf of Justice. Likewise,
Complainant also incorrectly filed his response to the motion in Docket No. WEVA 2018-10-D.
On January 5, 2018, my law clerk emailed the parties for clarification, whereby the parties
confirmed that Respondent’s motion and Complainant’s response should be withdrawn from
Docket No. WEVA 2018-10-D and re-filed in Docket No. WEVA 2018-48-D.

40 FMSHRC Page 245

Secretary’s motion to intervene and consider his response.2 On December 21, 2017, Respondent
filed a motion for leave to file a reply, which I also hereby GRANT and consider the reply.
I. Factual and Procedural Background
A.

Justice’s Discrimination Complaint to MSHA

On July 20, 2016, Marshall Justice (“Complainant” or “Justice”) filed a discrimination
complaint with MSHA using the agency’s standard form and naming Rockwell Mining, LLC
(“Respondent” or “Rockwell”).3 (Compl., Ex. A.) The MSHA Form 2000-123 Discrimination
Complaint (“MSHA Form 2000-123”) alleges that Rockwell interfered with Justice’s rights as a
miner’s representative by failing to provide him copies of documents with proposed changes to
the mine’s ventilation plan, which miners’ representatives are entitled to receive notice of five
days before the changes are submitted to MSHA. (Id. at 2.) In addition, the complaint alleges that
Rockwell required Justice to operate a caged scoop, which Justice refused to operate because of
safety concerns, claiming it greatly diminished his field of vision. (Id.) Justice’s MSHA Form
2000-123 complaint sought an injunction to prevent Rockwell from interfering with his rights as
a miners’ representative and an injunction compelling Rockwell to recognize his valid refusal to
2

Under the Commission’s Procedural Rules, motions for leave to intervene may be filed
before the start of a hearing and shall set forth (1) the interest of the movant, (2) the reasons why
such interest is not otherwise adequately represented by the parties already involved in the
proceeding, and (3) a showing that intervention will not unduly delay or prejudice the
adjudication of the issues. 29 C.F.R. § 2700.4(b)(2)(i). Such intervention is not a matter of right
but of the sound discretion of the Judge. 29 C.F.R. § 2700.4(b)(2)(ii).
The Secretary states that he has an interest in ensuring the issues in the proceeding he
initiated under section 105(c)(2) in Docket No. WEVA 2018-10-D are not litigated in the
proceeding initiated by Complainant under section 105(c)(3) in Docket No. WEVA 2018-48-D.
(Mot. to Intervene at 2.) The Secretary further argues that none of the other parties can represent
the Secretary’s interest and that intervention for the limited purpose of responding to
Respondent’s motion to dismiss would not unduly delay or prejudice the adjudication of the
issues. (Id.) The Secretary’s motion states that Respondent does not object to the Secretary as
intervenor but that Complainant does. (Id.) Yet Complainant did not file a response to the
Secretary’s motion explaining its objection. Considering all the above, I grant the Secretary’s
motion to intervene for the limited purpose of filing a response to Respondent’s motion.
3

Justice has previously alleged discrimination against Rockwell in another matter before
the Commission. On August 10, 2015, Justice filed a complaint of discrimination under section
105(c)(3) against Gateway Eagle Coal Company (“Gateway Eagle”), Docket No. WEVA 2015924-D, and later moved to add Rockwell as a party under a theory of successorship liability. In
that proceeding, Administrative Law Judge David P. Simonton entered a default judgment
against Gateway Eagle, but denied Justice’s motion to amend his complaint to add Rockwell as a
party. Justice v. Gateway Eagle Coal Co., 38 FMSHRC 2341, 2345 (Aug. 2016) (ALJ). Judge
Simonton dismissed the proceeding after Justice failed to submit a claim for personal relief
against Gateway Eagle. Unpublished Order dated Sept. 15, 2016.

40 FMSHRC Page 246

operate the caged scoop. (Id.) In regard to the scoop, Justice demanded “to be made whole for
any and all losses that arose due to [his] refusal” to operate the scoop. (Id.)
Justice also states that he provided MSHA a supplemental statement on August 10, 2016,
in addition to his MSHA Form 2000-123 complaint. (See Compl. at 5, Ex. B; Justice Resp. at 3.)
The supplemental statement provides a timeline of events related to Justice’s allegations.
(Compl. at 5, Ex. B.) According to the timeline, the mine ventilation plan was revised on or
around June 7, 2016, and Justice was not provided a copy of the revisions in advance of the
company submitting the revisions to MSHA. (Id. at 1.) On June 21, 2016, Justice purportedly
filed a safety grievance about workers being ordered by foreman Rondale Gillespie to haul
supplies over long distances using Scoop #874, which was enclosed and allegedly restricted an
operator’s view. (Id.) On June 28, mine management allegedly posted a list of miners who could
work during vacation and did not include Justice on that list. (Id.) From late June to July 19,
2016, Justice described several instances where he worked with two enclosed scoops (#874 and
#882) and expressed his concerns over the equipment’s safety. (Id. 1–2.) On July 19, 2016,
Justice claims that he also attempted to exercise his walk-around rights as a miners’
representative, but was ordered by mine management to return to work. (Id. at 2–3.)
B.

MSHA’s Determination on Justice’s Complaint and Section 105(c)(2) Proceeding

On September 14, 2017, MSHA notified Justice that the agency had investigated Justice’s
discrimination complaint and determined that a violation of section 105(c) of the Mine Act had
occurred. (Compl., Ex. C.) On October 3, 2017, the Secretary filed a complaint with the
Commission under section 105(c)(2), which is contained in Docket No. WEVA 2018-10-D. The
Secretary’s section 105(c)(2) complaint alleges that Rockwell interfered with the exercise of
Justice’s statutory rights as a miners’ representative by failing to provide Justice with notice of
revisions to the mine’s ventilation plans. (Sec’y Compl. at 1–3.) However, the Secretary’s
section 105(c)(2) complaint does not pursue Justice’s claim regarding his refusal to work in an
allegedly unsafe scoop nor any other claims by Justice. (See id. at 1–5.)
C.

Justice’s Section 105(c)(3) Complaint

On October 30, 2017, Justice filed his own complaint of discrimination under section
105(c)(3) of the Mine Act. The complaint alleges that Respondent (1) interfered with Justice’s
rights as a miner’s representative by not providing notice of changes to the mine’s ventilation
plans, (2) interfered with Justice’s right to complain of unsafe mine equipment, and (3) imposed
retaliatory discipline against Justice which was motivated by Justice’s protected activity,
including his refusal to operate the unsafe equipment and his attempt to exercise his walk-around
rights as a miner’s representative. (Compl. at 2–5.)
In regard to the third allegation, Justice’s section 105(c)(3) complaint alleges that
Rockwell retaliated against Justice by notifying him on or around November 3, 2016, that Justice
would be subject to discipline if he were to leave early on Friday and arrive late on Saturday, in
observance of the Sabbath, which Justice alleges mine management had previously
accommodated. (Compl. at 3–4.) The complaint also claims that the mine attempted to “demote”

40 FMSHRC Page 247

Justice from his position as miners’ representative after Justice tried to exercise his walk-around
rights. (Id. at 4–5.)
Justice also attached to his section 105(c)(3) complaint copies of his MSHA Form 2000123 complaint, his supplemental statement to MSHA with his timeline dated August 10, 2016,
and MSHA’s September 14, 2017, determination letter. (Compl., Exs. A, B, C.)
II. Respondent’s Motion to Dismiss and Issues
On November 22, 2017, Respondent filed its Motion to Dismiss Marshall Justice’s
Complaint. Respondent argues that Justice’s allegations of interference—with (1) his rights as a
miners’ representative and (2) his right to refuse unsafe work—both lack merit as a matter of
law. (Mot. at 1–5.) First, Respondent notes that the Secretary filed a section 105(c)(2) complaint
on behalf of Justice regarding the alleged interference with a miners’ representative’s rights and
argues that Justice may not file a separate section 105(c)(3) complaint on that issue. (Id. at 3–4.)
Second, Respondent argues that Complainant’s work refusal allegation lacks merit because
Complainant exercised his right to complain about the allegedly unsafe scoop and his belief that
this equipment is unsafe is unreasonable. (Id. at 2–5, n.12; Reply at 3, n.8.) Respondent also
argues that Complainant added several new issues to his complaint, including claims of
retaliation, which are impermissible because they were not initially presented to the Secretary in
MSHA’s investigation. (Mot. at 3–6, n. 16; Reply at 3–4.)
Complainant filed his response on December 1, 2017. Complainant first asserts that he is
permitted to intervene in the Secretary’s section 105(c)(2) proceeding and would not oppose
dismissal of his section 105(c)(3) claim insofar as it relates to the alleged interference with the
rights of a miners’ representative and would be duplicative. (Justice Resp. at 1.) Second,
Complainant argues that he presented claims regarding unsafe work to the Secretary and
submitted arguments to the Secretary regarding loss of vacation days, imposition of discipline,
and other retaliatory measures. (Id. at 2–4.) Because the Secretary found that no violation
occurred in regard to the alleged unsafe work, Complainant asserts that he may proceed under
section 105(c)(3) on that claim. (Id.)
The Secretary in his December 11, 2017, response to the motion to dismiss argues that
Justice’s claim of interference with his rights as a miners’ representative should be dismissed
from this section 105(c)(3) proceeding because it duplicates the interference claim set forth in the
Secretary’s section 105(c)(2) proceeding, Docket No. WEVA 2018-10-D. (Sec’y Resp. at 3–4.)
The Secretary further asserts that Justice should be permitted to pursue his interference claim
regarding the unsafe scoop as this allegation was raised in his complaint to MSHA, but was not
further pursued by the Secretary. (Id. at 4.) However, the Secretary argues that Justice’s claims
of retaliation should be dismissed because Justice did not raise any claim regarding retaliation in
his initial complaint to MSHA. (Id. at 5–6.)
Accordingly, the following issues are before me—(1) whether Justice’s interference
claim regarding his right as miners’ representative to receive notice of mine ventilation plan
revisions should be dismissed; (2) whether Justice’s interference claim regarding the unsafe mine

40 FMSHRC Page 248

equipment should be dismissed; and (3) whether Justice’s other claims, including those alleging
retaliation, should be dismissed.
III. Principles of Law
A.

Initiating Section 105(c) Proceedings

The Mine Act provides that upon receipt of a discrimination complaint, the Secretary
“shall cause such investigation to be made as he deems appropriate,” and that “[i]f upon such
investigation, the Secretary determines that the provisions of this subsection have been violated,
he shall immediately file a complaint with the Commission. . . .” 30 U.S.C. § 815(c)(2). Pursuant
to section 105(c)(2), “[t]he complaining miner, applicant, or representative of miners may
present additional evidence on his own behalf during any hearing. . . .” Id.
Section 105(c)(3) of the Mine Act provides that if the Secretary determines that no
discriminatory violation occurred, “the complainant shall have the right, within 30 days of notice
of the Secretary’s determination, 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). Thus, the statutory scheme provides to miners an administrative investigation and
evaluation of an allegation of discrimination, as well as the right to private action in the event
that the administrative evaluation results in a determination that no discrimination occurred.
Hatfield v. Colquest Energy, 13 FMSHRC 544, 545 (Apr. 1991).
In order for the statutory prerequisites for a section 105(c)(3) complaint to be met, the
written discrimination complaint filed with MSHA must contain specific allegations that are
investigated by MSHA and considered in the Secretary’s determination of whether the Mine Act
has been violated. See Hatfield, 13 FMSHRC at 546 (vacating order denying dismissal and
remanding for consideration of whether alleged protected activities were part of Secretary’s
investigation). However, the Commission has recognized that it is the scope of the Secretary’s
investigation, rather than the initiating complaint, that governs the permissible ambit of the
complaint filed with the Commission. Sec’y of Labor on behalf of Dixon v. Pontiki Coal Corp.,
19 FMSHRC 1009, 1017 (June 1997).
B.

Dismissal of a Discrimination Complaint

The Commission’s Procedural Rules do not provide formal guidance on motions to
dismiss. However, Commission Judges have treated such filings as motions for summary
decision. See, e.g., Kerlock v. Asarco, LLC, 36 FMSHRC 2404, 2405 (Aug. 2014) (ALJ)
(denying motion to dismiss section 105(c)(3) complaint); Sec’y of Labor on behalf of Chaparro
v. Comunidad Agricola Bianchi, Inc., 32 FMSHRC 1517 (Oct. 2010) (ALJ) (denying motion to
dismiss section 105(c)(2) complaint); Sec’y on behalf of Brewer v. Monongalia Cnty. Coal Co.,
38 FMSHRC 1876 (July 2016) (ALJ) (denying motion to dismiss 105(c)(3) complaint based on
timeliness of filing). Commission Procedural Rule 67(b) provides that a motion for summary
decision shall be granted only if “the entire record, including the pleadings, depositions, answers
to interrogatories, admissions, and affidavits, shows: (1) [t]hat there is no genuine issue of
material fact; and (2) [t]hat the moving party is entitled to summary decision as a matter of law.”

40 FMSHRC Page 249

20 C.F.R. § 2700.67(b). A “material fact” for the purposes of defeating summary decision can
also be an inference, drawn from evidence on record, as to a factual element of a claim.
KenAmerican Res., 38 FMSHRC 1943, 1946 (Aug. 2016).
The Commission has consistently held that summary decision is an “extraordinary
procedure” and analogizes it to Rule 56 of the Federal Rules of Civil Procedure.4 Lakeview Rock
Prods., Inc., 33 FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The Supreme Court, as
the Commission observes, has determined that summary judgment is only appropriate “upon
proper showings of the lack of a genuine, triable issue of material fact.” Id. (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 327 (1986)). The Supreme Court has also held that both the record and
“inferences drawn from the underlying facts” are viewed in the light most favorable to the party
opposing the motion. Id. at 2988 (quoting Poller v. Columbia Broadcasting Sys., 368 U.S. 464,
473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
The Commission also noted that a party moving for summary judgment bears the initial
burden of showing that there is no genuine dispute as to material facts. KenAmerican Res., 38
FMSHRC at 1946 (citing Celotex Corp., 477 U.S. at 323; Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970)). If the moving party carries its burden, then the burden shifts to the non-movant
to establish a genuine dispute as to material fact. Id. However, in determining whether facts are
disputed, Commission Judges should not solely rely on the parties’ claims, but should conduct an
independent review of the record. Id.
C.

Section 105(c): Tests for Discrimination and Interference

Section 105(c)(1) of the Mine Act states, in relevant part, that “[n]o person shall
discharge or in any manner discriminate against . . . or otherwise interfere with the statutory
rights of any miner . . . because of the exercise by such miner . . . on behalf of himself or others
of any statutory right afforded by [the Mine Act].” 30 U.S.C. § 815(c)(1).
Under the traditional Pasula-Robinette framework, a complainant establishes a prima
facie case of section 105(c) discrimination 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). 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
4

Federal Rule of Civil Procedure 56(a) provides for the filing of motions for summary
judgment and states that: “The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).

40 FMSHRC Page 250

any event based on unprotected activities alone. Driessen, 20 FMSHRC at 328–29; Pasula, 2
FMSHRC at 2800.
In regard to claims of interference, the Commission has not settled on a single
framework. Two Commissioners have supported the two-prong Franks test advocated by the
Secretary whereby a violation of interference occurs if: (1) a person’s action can be reasonably
viewed, from the perspective of members of the protected class and under the totality of the
circumstances, as tending to interfere with the exercise of protected rights, and (2) the person
fails to justify the action with a legitimate and substantial reason whose importance outweighs
the harm caused to the exercise of protected rights. UMWA on behalf of Franks v. Emerald Coal
Res., LP, 36 FMSHRC 2088, 2108 (Aug. 2014) (Jordan & Nakamura, Comm’rs).
Several Commission Judges have applied the Franks test. See, e.g., McNary v. Alcoa
World Alumina LLC, 39 FMSHRC __, slip op. 44–46, No. CENT 2015-279-DM (Dec. 21, 2017)
(applying Franks test in determining complainant did not prove interference), appeal granted,
(Jan. 30, 2018); Pendley v. Highland Mining Co., 37 FMSHRC 301 (Feb. 2015) (ALJ) (applying
Franks test to determine that operator interfered with complainant’s miners’ representative
rights); McGlothlin v. Dominion Coal Corp., 37 FMSHRC 1256 (June 2015) (ALJ) (applying
Franks test in granting complainant’s motion for summary decision); Sec’y of Labor on behalf of
Greathouse v. Ohio County Coal, 37 FMSHRC 2892 (Dec. 2015) (ALJ) (reasoning that the
Franks test is consistent with Commission precedent and the Mine Act’s legislative directive).
Although a majority of the Commission has not formally adopted the Franks test as the single
test for interference, it has confirmed that the test is consonant with Commission precedent.
Sec’y of Labor on behalf of McGary et al. v. Ohio Cnty. Coal, 38 FMSHRC 2006, 2011–12
(Aug. 2016); see Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478–79 (Aug. 1982), aff’d,
770 F.2d 168 (6th Cir. 1985) (finding interference because conduct would “chill the exercise” of
protected rights, but recognizing that an operator may have legitimate and substantial reasons for
its conduct); Gray v. North Star Mining, Inc., 27 FMSHRC 1, 9 (Jan. 2005) (analyzing whether
conduct reasonably tended to interfere with the free exercise of protected rights).
Yet, the wording in section 105(c)(1) has also been interpreted to require the complainant
to prove the interference alleged was motivated by the exercise of protected rights. Sec’y of
Labor on behalf of Pepin v. Empire Iron Mining Partnership, 38 FMSHRC 1435, 1450–51, n.11
(June 2016) (ALJ); see McGary, 38 FMSHRC at 2012 n.11 (declining to adopt single
interference test and noting that the elements of both the Franks and Pepin tests would be met
under the facts of the case). Under this view, a motivational intent must be shown, thus altering
the second part of the test to: (2) such actions were motivated by the exercise of protected rights.
Pepin, 38 FMSHRC at 1453–54 (ALJ).
IV. Discussion and Analysis
A.

Interference with Miners’ Representative Right to Notice of Mine Ventilation Plans

Respondent argues that Complainant’s claim that Rockwell interfered with his rights as a
miners’ representative by refusing to provide notice of mine ventilation plan revisions should be
dismissed because the Secretary has initiated a section 105(c)(2) proceeding on the claim. (Mot.

40 FMSHRC Page 251

at 3–4.) The Secretary concurs that the claim should be dismissed from this section 105(c)(3)
proceeding as the adjudication of the related issues would be duplicative of the proceeding
contained in Docket No. WEVA 2018-10-D. (Sec’y Resp. at 2–4.) Complainant has expressed
that he would not be opposed to the dismissal of his section 105(c)(3) claim insofar as it relates
to interference with his right as a miners’ representative to receive notice of mine ventilation
plan revisions. (Justice Resp. at 1.)
Pursuant to section 105(c)(2), Complainant may present additional evidence regarding
interference with his rights as a miners’ representative5 on his own behalf during the hearing in
Docket No. WEVA 2018-10-D. 30 U.S.C. § 815(c)(2). Because of the parties’ agreement on the
issue, the on-going section 105(c)(2) case before me, and the lack of prejudice to Complainant in
dismissing the duplicative interference claim, I therefore conclude that dismissal of Justice’s
interference claim regarding his right as a miners’ representative to receive notice of mine
ventilation plan revisions from Docket No. WEVA 2018-48-D is appropriate.
B.

Interference with Right to Refuse Unsafe Work

Respondent asserts that Complainant’s interference claim regarding the unsafe scoop fails
as a matter of law because Justice did in fact complain about the scoop, and therefore Rockwell
never interfered with his right to do so. (Mot. at 2, n.12; Reply at 3, n.8.) Respondent also argues
that Complainant’s work refusal allegation lacks merit due to Complainant’s unreasonable belief
that the caged scoop was unsafe. (Mot. at 4–5; Reply at 3, n. 8.) Complainant asserts that the
caged scoop obscured the driver’s field of vision and that operating the scoop over long distances
had caused accidents. (Justice Resp. at 4.) Complainant claims that despite expressing his safety
concerns, Rockwell continued to assign him to work in the caged scoop. (Compl. at 3.) The
Secretary has no objection to Complainant pursuing this claim under section 105(c)(3) in Docket
No. WEVA 2018-48-D. (Sec’y Resp. at 4.)
First, to prove interference, a claimant must demonstrate that a person’s actions can be
reasonably viewed, from the perspective of members of the protected class and under the totality
of the circumstances, as tending to interfere with the exercise of protected rights. See Franks, 36
FMSHRC at 2108; Pepin, 38 FMSHRC at 1453–54 (ALJ); McGary, 38 FMSHRC at 2011–12,

5

I acknowledge that Complainant also “seeks to establish that the Respondent interfered
with his right to refuse work in unsafe conditions” and therefore wishes to intervene in the
section 105(c)(2) proceeding to present evidence related to this allegation. (Justice Resp. at 1.)
However, the Secretary’s section 105(c)(2) complaint in Docket No. WEVA 2018-10-D involves
only Justice’s claim of interference with his right as a miners’ representative to receive notice of
mine ventilation plan changes. (Sec’y Compl. at 1–5.) All other claims of discrimination or
interference by Justice should therefore be litigated and addressed pursuant to section 105(c)(3)
in Docket No. WEVA 2018-48-D.

40 FMSHRC Page 252

n.11.6 Because this first part of the test focuses on the tendency to interfere, actions that could
reasonably chill the exercise of protected rights may qualify as acts of interference even if the
miner has not been actually prevented or deterred from exercising his rights. Pepin, 38 FMSHRC
at 1454 n.15 (ALJ).7 I therefore reject Respondent’s argument that because Justice exercised his
right to refuse unsafe work, no interference could have occurred. Complainant states that he
expressed safety concerns about the caged scoop to mine management, yet Rockwell continued
to assign Justice to work in the caged scoop. (Compl. at 3.) Repeatedly assigning work that a
miner reasonably believes to be unsafe despite the miner’s objections could chill the exercise of
protected rights by discouraging the miner from continuing to report the unsafe conditions, thus
allowing an operator to ignore and eventually suppress legitimate safety concerns. I determine
that such acts could form the basis of a plausible claim of interference.
In regard to Respondent’s second argument, a miner has the right under section 105(c) of
the Mine Act to refuse work, if the miner has a good faith, reasonable belief in a hazardous
condition. Braithwaite v. Tri-Star Mining, 15 FMSHRC 2460, 2463 (Dec. 1993); Sec’y of Labor
on behalf of Hogan v. Emerald Mines Corp., 8 FMSHRC 1066 (July 1986); Robinette, 3
FMSHRC at 808–12. Here, Rockwell asserts that it is undisputed that the safety cage on the
scoop was installed by the manufacturer, that MSHA approved the scoop’s safety cage, that the
scoop’s safety cage was inspected and never cited, and that other miners who have operated the
scoop have never complained about its safety cage. (Mot. at 5.)
Nevertheless, Complainant alleges that “[w]hile this type of scoop may be used safely for
various maintenance tasks and heavy duty wench work,” Respondent forced Justice “to operate
[the scoop] in other, unsafe circumstances on a daily basis[,]” including operating the scoop
alone in the mine during regular long distance coal haulage. (Compl. at 3.) Complainant asserts
that he could be trapped inside the cage and could also run over obstructions because the scoop
did not have a proximity detection system. (Id.)
After review of the parties’ submissions, I find that there remain genuine issues of
material fact as to whether a miner could reasonably believe the circumstances under which
Justice was assigned to operate the scoop were hazardous. Although Rockwell avers the safety
scoop was inspected and approved by MSHA, Complainant has alleged facts that the scoop was
being used for tasks other than its intended use. Rockwell has not presented undisputed evidence

6

Although it has not adopted a single interference test, the Commission appears to agree
that to establish interference, a complainant must first prove: a person’s action can be reasonably
viewed, from the perspective of members of the protected class and under the totality of the
circumstances, as tending to interfere with the exercise of protected rights. This element is the
first part of the Franks test, which two Commissioners supported. Franks, 36 FMSHRC at 2108
(Jordan & Nakamura, Comm’rs). It is also the first part of the Pepin test, which another two
Commissioners suggested may be an appropriate framework for finding interference. Pepin, 38
FMSHRC at 1453–54 (ALJ); McGary, 38 FMSHRC at n.11 (Young & Althen, Comm’rs).
7

Although the Commission Judge’s decision I cite herein is not binding precedent, see
29 C.F.R. § 2700.69(d), I find the decision’s reasoning persuasive.

40 FMSHRC Page 253

that the equipment had been inspected while being utilized for the purpose of hauling coal over
long distances underground and is thus objectively safe under these conditions.
Viewing the facts in the light most favorable to Complainant, I conclude that Respondent
has not established a right to summary decision as a matter of law. Therefore, I determine that
dismissal of Justice’s claim of interference with his right to refuse unsafe work is inappropriate.
C.

Discriminatory Retaliation and Other Claims

Respondent lastly argues that Complainant has added several new issues to his section
105(c)(3) complaint including allegations of retaliation, which were not initially raised in his
complaint to MSHA. (Mot. at 3–6, n.16; Reply at 3–4.) According to the Secretary, the
allegations regarding retaliatory discipline was not considered or investigated by the agency
because Justice did not raise such claims. (Sec’y Resp. at 4–6.) In contrast, Complainant argues
that he alleged both protected activity and adverse action in his MSHA complaint and submitted
arguments to the Secretary regarding loss of vacation days, imposition of discipline, and other
retaliatory measures. (Justice Resp. at 2–4.)
In order to meet the statutory prerequisites for a section 105(c)(3) complaint, the written
discrimination complaint filed with MSHA must contain specific allegations that are investigated
and considered in the Secretary’s determination. Hatfield, 13 FMSHRC at 546. Nevertheless, the
scope of the Secretary’s investigation, rather than the initiating complaint, governs the
permissible ambit of the complaint file with the Commission. Pontiki, 19 FMSHRC at 1017. In
Hatfield, the Commission vacated an order denying summary dismissal of a section 105(c)(3)
complaint and remanded the matter to the judge, stating that a complainant should be afforded an
opportunity to demonstrate that the allegations in his section 105(c)(3) complaint were
investigated by the Secretary in connection with his initial discrimination complaint to MSHA.
Hatfield, 13 FMSHRC at 546.
Here, Complainant attached to his section 105(c)(3) complaint a copy of his MSHA Form
2000-123 complaint, as well as a supplemental statement that Justice states he also submitted to
MSHA. (Compl. at 5, Exs. A, B; Justice Resp. at 3.) Although his MSHA Form 2000-123
complaint only generally refers to “any and all losses that arose due to [his] refusal,” his
supplemental statement outlines specific dates of events concerning his allegations. (Compl.,
Exs. A, B.) Specifically, he provides several dates when he expressed his safety concerns about
two caged scoops (#874 and #882). (Compl., Ex. B at 1–2.) He also provides the date he was not
given an opportunity to work during vacation when other miners had been. (Id. at 1.) Lastly, he
lists the date he allegedly attempted to exercise his walk-around rights, but was denied and
ordered to return to work underground. (Id. at 2–3.) Furthermore, Justice’s section 105(c)(3)
complaint alleges that Justice suffered retaliation in the form of a threat that he would be
disciplined for observing the Sabbath. (Compl. at 4.) This threat allegedly occurred on November
3, 2016, which was after Justice filed his July 20, 2016, MSHA Form 2000-123 complaint, but
before MSHA concluded its investigation and notified Justice of its determination on September
14, 2017. (Compl. at 4, Exs. A, C.)

40 FMSHRC Page 254

Complainant’s timeline in his supplemental statement describes matters that could form
the elements of a discrimination claim, which Justice’s section 105(c)(3) complaint alleges:
protected activity (work refusal), adverse action (loss of opportunity to work during vacation),
and motivational nexus (proximity in time). Moreover, post-complaint adverse actions alleged to
have been motivated by protected activity previously investigated by the Secretary may be
proper subjects of a section 105(c)(3) proceeding. Womack v. Graymont Western U.S. Inc., 25
FMSHRC 235, 248 (May 2003) (ALJ) (holding that because complainant’s protected activity
was investigated by the Secretary, any adverse action allegedly stemming from that protected
activity come within the permissible ambit of a section 105(c) complaint) (citing Pontiki, 19
FMSHRC at 1017).8 Although Justice did not mention that he was threatened with discipline for
observing the Sabbath in his MSHA Form 2000-123 complaint, this alleged retaliation occurred
during the period MSHA was conducting its investigation of the protected activity that Justice
alleges motivated the retaliation. However, the supplemental statement and time frame do not
conclusively establish that the Secretary investigated and considered these allegations as part of
his determination of whether section 105(c) had been violated, especially considering the
Secretary’s denial that he was made aware of such claims. (Sec’y Resp. at 5.)
Nevertheless, in considering a motion to dismiss, I must view the facts in the light most
favorable to the party opposing the motion. At this juncture, there remain genuine issues of
material fact over whether the statutory prerequisites for a section 105(c)(3) complaint have been
met in regard to Justice’s other claims. Per the Commission’s precedent in Hatfield, Complainant
should be afforded the opportunity to demonstrate that such allegations were investigated by the
Secretary and/or considered in the Secretary’s determination. Hatfield, 13 FMSHRC at 546. I am
cognizant that such evidence, including interviews, notes, or statements made during the
investigation, may only become available to Complainant after engaging in discovery. But given
that the Secretary has undertaken a section 105(c)(2) case in which Justice is a party, there
should be ample opportunity to obtain information on the scope of the Secretary’s investigation.
Therefore, Complainant should have the opportunity to present additional evidence at hearing
that such claims meet the statutory requirements for a section 105(c)(3) complaint.
Accordingly, I determine that Rockwell is not entitled to summary decision as a matter of
law and that dismissal of Justice’s other claims, including those alleging retaliatory
discrimination, is inappropriate.

8

Although the Commission Judge’s decision I cite herein is not binding precedent, see
29 C.F.R. § 2700.69(d), I find the decision’s reasoning persuasive.

40 FMSHRC Page 255

V. Order
Based on the preceding discussion, Respondent’s motion to dismiss Justice’s interference
claim regarding his right as a miners’ representative to receive notice of mine ventilation plan
revisions is hereby GRANTED. It is hereby ORDERED that this claim be DISMISSED from
Docket No. WEVA 2018-48-D, as such claim will be the subject of the upcoming hearing in
Docket No. WEVA 2018-10-D. Respondent’s motion to dismiss Justice’s other claims is hereby
DENIED.

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

Distribution: (Via Electronic Mail & Certified U.S. Mail – Return Receipt Requested)
Samuel B. Petsonk, Esq., Mountain State Justice, Inc., 1031 Quarrier Street, Suite 200,
Charleston, WV 25301-2314
(sam@msjlaw.org)
Ronald Gurka, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street South,
Suite 401, Arlington, VA 22202-5450
(gurka.ronald@dol.gov)
Jonathan R. Ellis, Esq., Steptoe & Johnson PLLC, P.O. Box 1588, Charleston, WV
25326-1588
(jonathan.ellis@steptoe-johnson.com)
/ivn

40 FMSHRC Page 256

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

February 22, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 2017-0546
A.C. No. 04-01299-437883

ORIGINAL SIXTEEN TO ONE MINE INC,
Respondent.

Docket No. WEST 2017-0685
A.C. No. 04-01299-445257
Docket No. WEST 2018-0100
A.C. No. 04-01299-450097
Mine: Sixteen to One Mine

ORDER
Before: Judge Moran
These consolidated cases are before the Court upon petitions for assessment of a civil
penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977.1 On January 29,
2017 the parties informed the Court of a dispute that has arisen during the discovery process.
On that date, the Conference and Litigation Representative, (“CLR”), Mr. Randy
Cardwell,2 sent an email to the Court informing that he “requested the following information
from Mr. Miller, per the Prehearing Orders as described under § 2700.105 Disclosure of
Information by the Parties:
Citation No. 8785581: Please provide the Respondents policies and procedures
regarding the use of self-rescuers, and any training documentation, which would
indicate that miners were trained in the use of self-rescuers.
Citation No. 8785582: Please provide any information the Respondent may have
regarding any requests made to have the Speedair air compressor inspected.

1

These matters are currently set to be heard commencing April 17, 2017 in Nevada City,
California. All three dockets have been designated for simplified proceedings pursuant to 30
C.F.R. § 2700.102.
2

It is the Court’s understanding that Attorney Isabella M. Finneman has or will file a
notice of appearance for these dockets, as the CLR has not sought the Court’s permission to
practice regarding these dockets, per 29 C.F.R. §2700.3(b)(4). The Court construes the CLR’s
informal request as seeking factual information from the Respondent.

40 FMSHRC Page 257

In looking at the termination for the Speedair air compressor, the compressor was
removed from the mine site, was there a reason as to why the Respondent chose to
remove the compressor? Instead of having it inspected.
Citation No. 8879879: Please provide any records which would show when the
W65 Self- Rescuer unit EN8047 was weighed, dating back to when it was
assigned.
Citation No. 8879886: Please provide any information which would indicate how
the inside of the magazine was kept suitably dry.
Citation No. 8879887: Please provide any information indicating when the Cobra
blasting caps and the Dyno Nobel Nonel shock tube detonators were purchased
and delivered to the mine site.
Cardwell email to the Court January 29, 2018
Each of these dockets has been designated for Simplified Proceedings. The provision
cited by the CLR, § 2700.105, titled, “Disclosure of information by the Parties,” provides, in
relevant part,
(a) Within 45 calendar days after a case has been designated for Simplified
Proceedings, the parties shall provide any information in a party's possession,
custody, or control that the disclosing party or opposing party may use to support
its claims or defenses. Any material or object that cannot be copied, or the
copying of which would be unduly burdensome, shall be described and its
location specified. Materials required to be disclosed include, but are not limited
to, inspection notes from the entire subject inspection, rebuttal forms, citation
documentation, narratives, photos, diagrams, preshift and onshift reports, training
documents, mine maps, witness statements (subject to the provisions of
§ 2700.61), witness lists, and written opinions of expert witnesses, if any.
29 C.F.R. § 2700.105 (emphasis added).
The Court, noting that, per 29 C.F.R. 2700.107, discovery is not permitted except as
ordered by the administrative law judge, finds that the information sought by the CLR constitutes
discovery.3

3

For example, the CLR’s request for any information the Respondent may have
regarding any requests made to have the Speedair air compressor inspected will only come into
play if the Respondent is asserting this as a defense or in mitigation. Several of the requests, such
as the information how the magazine was kept suitably dry, may simply be addressed through the
Secretary’s cross-examination, if such matters come up. The Respondent (and the Secretary) are
again advised to pay attention to the caveat in this Order.

40 FMSHRC Page 258

That said, the Court advises the Respondent that the determination in this Order
comes with an important caveat. Through experience in other hearings, the Respondent is well
aware of the importance of each side disclosing information intended to be used at the hearing.
In the past, with this Respondent, the Court has been lenient in permitting the Respondent to
submit documents in its defense at, or very near to, the commencement of the hearing. However,
it will not allow that practice to continue to occur. Therefore, it is in the Respondent’s interest to
disclose any such information per the prehearing exchange date. Of course, this applies to both
sides. As the Court has informed the Respondent on other occasions, modern litigation avoids
such late disclosure of information in order to prevent surprise. The idea is that both sides put
their cards “face up” so to speak, in order to provide for a fairer and more accurate determination
of the issues in dispute. Both sides are hereby ORDERED to respond to the Court
acknowledging receipt of this Order and to their understanding of the consequences of failing to
provide to one another information intended for their respective petition or defense.
SO ORDERED.

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

Distribution:
Isabella M. Finneman, Esq., U.S. Department of Labor, 90 Seventh Street, Suite 3-800, San
Francisco, CA 94103
Randy Cardwell, CLR, U.S. Department of Labor, MSHA, 991 Nut Tree Road, 2nd Floor,
Vacaville, CA 95687
Michael Miller, Original Sixteen to One Mine Inc., P.O. Box 909, Alleghany, CA 95910
/KP

40 FMSHRC Page 259